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Comments to ICANN Supporting the DNS Industry in Underserved Regions

jyoti — 2014-07-04T06:48:36Z

Towards exploring ideas and strategies to help promote the domain name industry in regions that have typically been underserved, ICANN published a call for public comments on May 14, 2014. In particular, ICANN sought comments related to existing barriers to Registrar Accreditation and operation and suggestions on how these challenges might be mitigated. CIS contributed to the comments on this report, which will be used to determine next steps to support the domain name industry in underserved regions.

Domain names and the DNS are used in virtually every aspect of the Internet, and without the DNS, the Internet as we know it, would not exist. The DNS root zone has economic value and ICANN's contract with Verisign delineates the selling of domain names via only ICANN accredited registrars. By the indirect virtue of its control of the root, ICANN has the power and capacity to influence the decisions of entities involved in the management and operations of the DNS, including registrars.

Too far, too many?

We acknowledge some of the efforts for improvements, in particular with reference to barriers to participation in DNS-related business in regions such as Africa and the Middle East, including the creation of a fellowship program, and increased availability of translated materials. However, despite these efforts, the gaps in the distribution of the DNS registrars and registries across the world has become an issue of heightened concern.

This is particularly true, in light of the distribution of registrars and given that, of the 1124 ICANN-accredited registrars, North America has a total of 765 registrars. US and Canada together, have more than double the number of registrars than the rest of the world taken collectively. To put things further into perspective, of the total number of registrars 725 are from the United States alone, and 7 from the 54 countries of Africa.

A barrier to ICANN's capacity building initiatives has been the lack of trust, given the general view that, ICANN focuses on policies that favour entrenched incumbents from richer countries. Without adequate representation from poorer countries, and adequate representation from the rest of the world's Internet population, there is no hope of changing these policies or establishing trust. The entire region of Latin America and the Caribbean, comprising of a population of 542.4 million internet users[1] in 2012, has only 22 registrars spread across a total of 10 countries. In Europe, covering a population of 518.5 million internet users[2], are 158 registrars and 94 of those are spread across Germany, UK, France, Spain and Netherlands. The figures paint the most dismal picture with respect to South Asia, in particular India, where just 16 registrars cater to the population of internet users that is expected to reach 243 million by June 2014[3].

While we welcome ICANN's research and outreach initiatives with regard to the DNS ecosystem in underserved regions, without the crucial first step of clarifying the metrics that constitute an underserved region, these efforts might not bear their intended impact. ICANN cannot hope to identify strategies towards bridging the gaps that exist in the DNS ecosystem, without going beyond the current ICANN community, which, while nominally being 'multistakeholder' and open to all, grossly under-represents those parts of the world that aren't North America and Western Europe.

The lack of registries in the developing world is another significant issue that needs to be highlighted and addressed. The top 5 gTLD registries are in the USA and it is important that users and the community feels that the fees being collected are equivalent compensation for the services they provide. As registries operate in captive markets that is allocated by ICANN, we invite ICANN to improve its financial accountability, by enabling its stakeholders to assess the finances collected on these registrations.

Multistakeholderism—community and consensus

As an organization that holds itself a champion of the bottom-up policy development process, and, as a private corporation fulfilling a public interest function, ICANN, is in a unique position to establish new norms of managing common resources. In theory and under ICANN’s extensive governance rules, the board is a legislative body that is only supposed to approve the consensus decisions of the community and the staff wield executive control. However in reality, both board and the staff have been criticised for decisions that are not backed by the community.

The formal negotiations between ICANN and Registrar Stakeholder Group Negotiating Team (Registrar NT) over the new Registrar Accreditation Agreement (RAA), is an example of processes that have a multistakeholder approach but fail on values of deliberation and pluralistic decision making.[4] ICANN staff insisted on including a "proposed Revocation (or "blow up") Clause that would have given them the ability to unilaterally terminate all registrar accreditations" and another proposal seeking to provide ICANN Board ability to unilaterally amend the RAA (identical to proposal inserted in the gTLD registry agreement - a clause met with strong opposition not only from the Registry Stakeholder Group but from the broader ICANN community).

Both proposals undermine the multistakeholder approach of the ICANN governance framework, as they seek more authority for the Board, rather than the community or protections for registrars and more importantly, registrants. The proposed amendments to the RAA were not issues raised by Law Enforcement, GAC or the GNSO but by the ICANN staff and received considerable pushback from the Registrar Stakeholder Group Negotiating Team (Registrar NT). The bottom-up policy making process at ICANN has also been questioned with reference to the ruling on vertical integration between registries and registrars, where the community could not even approach consensus.[5] Concerns have also been raised about the extent of the power granted to special advisory bodies handpicked by the ICANN president, the inadequacy of existing accountability mechanisms for providing a meaningful and external check on Board decisions and the lack of representation of underserved regions on these special bodies. ICANN must evolve its accountability mechanisms, to go beyond the opportunity to provide comments on proposed policy, and extend to a role for stakeholders in decision making, which is presently a privilege reserved for staff rather than bottom-up consensus.

ICANN was created as a consensus based organisation that would enable the Internet, its stakeholders and beneficiaries to move forward in the most streamlined, cohesive manner.[6] Through its management of the DNS, ICANN is undertaking public governance duties, and it is crucial that it upholds the democratic values entrenched in the multistakeholder framework. Bottom up policy making extends beyond passive participation and has an impact on the direction of the policy. Presently, while anyone can comment on policy issues, only a few have a say in which comments are integrated towards outcomes and action. We would like to stress not just improving and introducing checks and balances within the ICANN ecosystem, but also, integrating accountability and transparency practices at all levels of decision making.

Bridging the gap

We welcome the Africa Strategy working group and the public community process that was initiated by ICANN towards building domain name business industry in Africa, and, we are sure there will be lessons that will applicable to many other underserved regions. In the context of this report CIS, wants to examine the existing criteria of the accreditation process. As ICANN's role evolves and its revenues grow across the DNS and the larger Internet landscape, it is important in our view, that ICANN review and evolve it's processes for accreditation and see if they are as relevant today, as they were when launched.

The relationship between ICANN and every accredited registrar is governed by the individual RAA, which set out the obligations of both parties, and, we recommend simplifying and improving them. The RAA language is complex, technical and not relevant to all regions and presently, there are no online forms for the accreditation process. While ICANN's language will be English, the present framing has an American bias—we recommend—creating an online application process and simplifying the language keeping it contextual to the region. It would also be helpful, if ICANN invested in introducing some amount of standardization across forms, this would reduce the barrier of time and effort it takes to go through complex legal documents and contribute to the growth of DNS business.

The existing accreditation process for registrars requires applicants to procure US$70,000 or more for the ICANN accreditation to become effective. The applicants are also required to obtain and maintain for the length of accreditation process, a commercial general liability insurance with a policy limit of US$500,000 or more. The working capital and the insurance are quite high and create a barrier to entrance of underserved regions in the DNS ecosystem.

With lack of appropriate mechanisms registrars resort to using US companies for insurance, creating more foreign currency pressures on themselves. The commercial general liability insurance requirement for the registrars is not limited to their functioning as a registrar perhaps not the most appropriate option. ICANN should, and must, increase efforts towards helping registrars find suitable insurance providers and scaling down the working capital. Solutions may lie in exploring variable fee structures adjusted against profits, and derived after considering factors such as cost of managing domain names and sub-domain names, expansion needs, ICANN obligations and services, financial capacities of LDCs and financial help pledged to disadvantaged groups or countries.

Presently, the start-up capital required is too high for developing countries, and this is reflected in the number of registries in these areas. Any efforts to improve the DNS ecosystem in underserved regions, must tackle this by scaling down the capital in proportion to the requirements of the region.

Another potential issue that ICANN should consider, is that users getting sub-domain names from local registrars located in their own country, are usually taxed on the transaction, however, online registration through US registrars spares users from paying taxes in their country.[7] This could create a reverse incentive for registering domain sub-names online from US registrars. ICANN should push forward on efforts to ensure that registrars are sustainable by providing incentives for registering in underserved regions and help towards maintain critical mass of the registrants. The Business Constituency (BC)—the voice of commercial Internet users within ICANN, could play a role in this and ICANN should endeavour to either, expand the BC function or create a separate constituency for the representation of underserved regions.

[1] Internet Users and Population stats 2012. http://www.internetworldstats.com/stats2.htm

[2] Internet Users and Population stats 2012. http://www.internetworldstats.com/stats4.htm

[3] Times of India IAMAI Report. http://timesofindia.indiatimes.com/tech/tech-news/India-to-have-243-million-internet-users-by-June-2014-IAMAI/articleshow/29563698.cms

[4] Mar/07/2013 - Registrar Stakeholder Group Negotiating Team (Registrar NT) Statement Regarding ICANN RAA Negotiations.http://www.icannregistrars.org/calendar/announcements.php

[5] Kevin Murphy, Who runs the internet? An ICANN 49 primer. http://domainincite.com/16177-who-runs-the-internet-an-icann-49-primer

[6] Stephen Ryan, Governing Cyberspace: ICANN, a Controversial Internet Standards Body http://www.fed-soc.org/publications/detail/governing-cyberspace-icann-a-controversial-internet-standards-body

[7] Open Root-Financing LDCs in the WSIS process. See: http://www.open-root.eu/about-open-root/news/financing-ldcs-in-the-wsis-process

For more details visit https://cis-india.org/internet-governance/blog/cis-comments-supporting-the-dns-industry-in-underserved-regions

Comments on the Zero Draft of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (WSIS+10)

geetha — 2015-10-16T02:44:16Z

On 9 October 2015, the Zero Draft of the UN General Assembly's Overall Review of implementation of WSIS Outcomes was released. Comments were sought on the Zero Draft from diverse stakeholders. The Centre for Internet & Society's response to the call for comments is below.

These comments were prepared by Geetha Hariharan with inputs from Sumandro Chattapadhyay, Pranesh Prakash, Sunil Abraham, Japreet Grewal and Nehaa Chaudhari. Download the comments here.

The Zero Draft of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (“Zero Draft”) is divided into three sections: (A) ICT for Development; (B) Internet Governance; (C) Implementation and Follow-up. CIS’ comments follow the same structure.
The Zero Draft is a commendable document, covering crucial areas of growth and challenges surrounding the WSIS. The Zero Draft makes detailed references to development-related challenges, noting the persistent digital divide, the importance of universal access, innovation and investment, and of enabling legal and regulatory environments conducive to the same. It also takes note of financial mechanisms, without which principles would remain toothless. Issues surrounding Internet governance, particularly net neutrality, privacy and the continuation of the IGF are included in the Zero Draft.
However, we believe that references to these issues are inadequate to make progress on existing challenges. Issues surrounding ICT for Development and Internet Governance have scarcely changed in the past ten years. Though we may laud the progress so far achieved, universal access and connectivity, the digital divide, insufficient funding, diverse and conflicting legal systems surrounding the Internet, the gender divide and online harassment persist. Moreover, the working of the IGF and the process of Enhanced Cooperation, both laid down with great anticipation in the Tunis Agenda, have been found wanting.
These need to be addressed more clearly and strongly in the Zero Draft. In light of these shortcomings, we suggest the following changes to the Zero Draft, in the hope that they are accepted.
A. ICT for Development
Paragraphs 16-21 elaborate upon the digital divide – both the progresses made and challenges. While the Zero Draft recognizes the disparities in access to the Internet among countries, between men and women, and of the languages of Internet content, it fails to attend to two issues.
First, accessibility for persons with disabilities continues to be an immense challenge. Since the mandate of the WSIS involves universal access and the bridging of the digital divide, it is necessary that the Zero Draft take note of this continuing challenge.
We suggest the insertion of Para 20A after Para 20:
“20A. We draw attention also to the digital divide adversely affecting the accessibility of persons with disabilities. We call on all stakeholders to take immediate measures to ensure accessibility for persons with disabilities by 2020, and to enhance their capacity and access to ICTs.”
Second, while the digital divide among the consumers of ICTs has decreased since 2003-2005, the digital production divide goes unmentioned. The developing world continues to have fewer producers of technology compared to their sheer concentration in the developed world – so much so that countries like India are currently pushing for foreign investment through missions like ‘Digital India’. Of course, the Zero Draft refers to the importance of private sector investment (Para 31). But it fails to point out that currently, such investment originates from corporations in the developed world. For this digital production divide to disappear, restrictions on innovation – restrictive patent or copyright regimes, for instance – should be removed, among other measures. Equitable development is the key.
Ongoing negotiations of plurilateral agreements such as the Trans-Pacific Partnership (TPP) go unmentioned in the Zero Draft. This is shocking. The TPP has been criticized for its excessive leeway and support for IP rightsholders, while incorporating non-binding commitments involving the rights of users (see Clause QQ.G.17 on copyright exceptions and limitations, QQ.H.4 on damages and QQ.C. 12 on ccTLD WHOIS, https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf). Plaudits for progress make on the digital divide would be lip service if such agreements were not denounced.
Therefore, we propose the addition of Para 20B after Para 20:
“20B. We draw attention also to the digital production divide among countries, recognizing that domestic innovation and production are instrumental in achieving universal connectivity. Taking note of recent negotiations surrounding restrictive and unbalanced plurilateral trade agreements, we call on stakeholders to adopt policies to ensure globally equitable development, removing restrictions on innovation and conducive to fostering domestic and local production.”
Paragraph 22 of the Zero Draft acknowledges that “school curriculum requirements for ICT, open access to data and free flow of information, fostering of competition, access to finance”, etc. have “in many countries, facilitated significant gains in connectivity and sustainable development”.
This is, of course, true. However, as Para 23 also recognises, access to knowledge, data and innovation have come with large costs, particularly for developing countries like India. These costs are heightened by a lack of promotion and adoption of open standards, open access, open educational resources, open data (including open government data), and other free and open source practices. These can help alleviate costs, reduce duplication of efforts, and provide an impetus to innovation and connectivity globally.
Not only this, but the implications of open access to data and knowledge (including open government data), and responsible collection and dissemination of data are much larger in light of the importance of ICTs in today’s world. As Para 7 of the Zero Draft indicates, ICTs are now becoming an indicator of development itself, as well as being a key facilitator for achieving other developmental goals. As Para 56 of the Zero Draft recognizes, in order to measure the impact of ICTs on the ground – undoubtedly within the mandate of WSIS – it is necessary that there be an enabling environment to collect and analyse reliable data. Efforts towards the same have already been undertaken by the United Nations in the form of “Data Revolution for Sustainable Development”. In this light, the Zero Draft rightly calls for enhancement of regional, national and local capacity to collect and conduct analyses of development and ICT statistics (Para 56). Achieving the central goals of the WSIS process requires that such data is collected and disseminated under open standards and open licenses, leading to creation of global open data on the ICT indicators concerned.
As such, we suggest that following clause be inserted as Para 23A to the Zero Draft:

“23A. We recognize the importance of access to open, affordable, and reliable technologies and services, open access to knowledge, and open data, including open government data, and encourage all stakeholders to explore concrete options to facilitate the same.”

15. Paragraph 30 of the Zero Draft laments “the lack of progress on the Digital Solidarity Fund”, and calls “for a review of options for its future”.

16. The Digital Solidarity Fund was established with the objective of “transforming the digital divide into digital opportunities for the developing world” through voluntary contributions [Para 28, Tunis Agenda]. It was an innovative financial mechanism to help bridge the digital divide between developed and developing countries. This divide continues to exist, as the Zero Draft itself recognizes in Paragraphs 16-21.

17. Given the persistent digital divide, a “call for review of options” as to the future of the Digital Solidarity Fund is inadequate to enable developing countries to achieve parity with developed countries. A stronger and more definite commitment is required.

18. As such, we suggest the following language in place of the current Para 30:

“30. We express concern at the lack of progress on the Digital Solidarity Fund, welcomed in Tunis as an innovative financial mechanism of a voluntary nature, and we call for voluntary commitments from States to revive and sustain the Digital Solidarity Fund.”

19. Paragraph 31 of the Zero Draft recognizes the importance of “legal and regulatory frameworks conducive to investment and innovation”. This is eminently laudable. However, a broader vision is more compatible with paving the way for affordable and widespread access to devices and technology necessary for universal connectivity.

20. We suggest the following additions to Para 31:

“31. We recognise the critical importance of private sector investment in ICT access, content and services, and of legal and regulatory frameworks conducive to local investment and expansive, permissionless innovation.”

B. Internet Governance

21. Paragraph 32 of the Zero Draft recognizes the “general agreement that the governance of the Internet should be open, inclusive, and transparent”. Para 37 takes into account “the report of the CSTD Working Group on improvements to the IGF”. Para 37 also affirms the intention of the General Assembly to extend the life of the IGF by (at least) another 5 years, and acknowledges the “unique role of the IGF”.

22. The IGF is, of course, unique and crucial to global Internet governance. In the last 10 years, major strides have been made among diverse stakeholders in beginning and sustaining conversations on issues critical to Internet governance. These include issues such as human rights, inclusiveness and diversity, universal access to connectivity, emerging issues such as net neutrality, the right to be forgotten, and several others. Through its many arms like the Dynamic Coalitions, the Best Practices Forums, Birds-of-a-Feather meetings and Workshops, the IGF has made it possible for stakeholders to connect.

23. However, the constitution and functioning of the IGF have not been without lament and controversy. Foremost among the laments was the IGF’s evident lack of outcome-orientation; this continues to be debatable. Second, the composition and functioning of the MAG, particularly its transparency, have come under the microscope several times. One of the suggestions of the CSTD Working Group on Improvements to the IGF concerned the structure and working methods of the Multistakeholder Advisory Group (MAG). The Working Group recommended that the “process of selection of MAG members should be inclusive, predictable, transparent and fully documented” (Section II.2, Clause 21(a), Page 5 of the Report).

24. Transparency in the structure and working methods of the MAG are critical to the credibility and impact of the IGF. The functioning of the IGF depends, in a large part, on the MAG. The UN Secretary General established the MAG, and it advises the Secretary General on the programme and schedule of the IGF meetings each year (see <http://www.intgovforum.org/cms/mag/44-about-the-mag>). Under its Terms of Reference, the MAG decides the main themes and sub-themes for each IGF, sets or modifies the rules of engagement, organizes the main plenary sessions, coordinates workshop panels and speakers, and crucially, evaluates the many submissions it receives to choose from amongst them the workshops for each IGF meeting. The content of each IGF, then, is in the hands of the MAG.

25. But the MAG is not inclusive or transparent. The MAG itself has lamented its opaque ‘black box approach’ to nomination and selection. Also, CIS’ research has shown that the process of nomination and selection of the MAG continues to be opaque. When CIS sought information on the nominators of the MAG, the IGF Secretariat responded that this information would not be made public (see <http://cis-india.org/internet-governance/blog/mag-analysis>).

26. Further, our analysis of MAG membership shows that since 2006, 26 persons have served for 6 years or more on the MAG. This is astounding, since under the MAG Terms of Reference, MAG members are nominated for a term of 1 year. This 1-year-term is “automatically renewable for 2 more consecutive years”, but such renewal is contingent on an evaluation of the engagement of MAG members in their activities (see <http://www.intgovforum.org/cms/175-igf-2015/2041-mag-terms-of-reference>). MAG members ought not serve for over 3 consecutive years, in accordance with their Terms of Reference. But out of 182 MAG members, around 62 members have served more than the 3-year terms designated by their Terms of Reference (see <http://cis-india.org/internet-governance/blog/mag-analysis>).

27. Not only this, but our research showed 36% of all MAG members since 2006 have hailed from the Western European and Others Group (see <http://cis-india.org/internet-governance/blog/mag-analysis>). This indicates a lack of inclusiveness, though the MAG is certainly more inclusive than the composition and functioning of other I-Star organisations such as ICANN.

28. Tackling these infirmities within the MAG would go a long way in ensuring that the IGF lives up to its purpose. Therefore, we suggest the following additions to Para 37:

“37. We acknowledge the unique role of the Internet Governance Forum (IGF) as a multistakeholder platform for discussion of Internet governance issues, and take note of the report and recommendations of the CSTD Working Group on improvements to the IGF, which was approved by the General Assembly in its resolution, and ongoing work to implement the findings of that report. We reaffirm the principles of openness, inclusiveness and transparency in the constitution, organisation and functioning of the IGF, and in particular, in the nomination and selection of the Multistakeholder Advisory Group (MAG). We extend the IGF mandate for another five years with its current mandate as set out in paragraph 72 of the Tunis Agenda for the Information Society. We recognize that, at the end of this period, progress must be made on Forum outcomes and participation of relevant stakeholders from developing countries.”

29. Paragraphs 32-37 of the Zero Draft make mention of “open, inclusive, and transparent” governance of the Internet. It fails to take note of the lack of inclusiveness and diversity in Internet governance organisations – extending across representation, participation and operations of these organisations. In many cases, mention of inclusiveness and diversity becomes tokenism or formal (but not operational) principle. In substantive terms, the developing world is pitifully represented in standards organisations and in ICANN, and policy discussions in organisations like ISOC occur largely in cities like Geneva and New York. For example, the ‘diversity’ mailing list of IETF has very low traffic. Within ICANN, 307 out of 672 registries listed in ICANN’s registry directory are based in the United States, while 624 of the 1010 ICANN-accredited registrars are US-based. Not only this, but 80% of the responses received by ICANN during the ICG’s call for proposals were male. A truly global and open, inclusive and transparent governance of the Internet must not be so skewed.

30. We propose, therefore, the addition of a Para 37A after Para 37:

“37A. We draw attention to the challenges surrounding diversity and inclusiveness in organisations involved in Internet governance, and call upon these organisations to take immediate measures to ensure diversity and inclusiveness in a substantive manner.”

31. Paragraphs 36 of the Zero Draft notes that “a number of member states have called for an international legal framework for Internet governance.” But it makes no reference to ICANN or the importance of the ongoing IANA transition to global Internet governance. ICANN and its monopoly over several critical Internet resources was one of the key drivers of the WSIS in 2003-2005. Unfortunately, this focus seems to have shifted entirely. Open, inclusive, transparent and global Internet are misnomer-principles when ICANN – and in effect, the United States – continues to have monopoly over critical Internet resources. The allocation and administration of these resources should be decentralized and distributed, and should not be within the disproportionate control of any one jurisdiction.

32. Therefore, we suggest the following Para 37A after Para 37:

“37A. We affirm that the allocation, administration and policy involving critical Internet resources must be inclusive and decentralized, and call upon all stakeholders and in particular, states and organizations responsible for essential tasks associated with the Internet, to take immediate measures to create an environment that facilitates this development.”

33. Paragraph 43 of the Zero Draft encourages “all stakeholders to ensure respect for privacy and the protection of personal information and data”. But the Zero Draft inadvertently leaves out the report of the Office of the UN High Commissioner for Human Rights on digital privacy, ‘The right to privacy in the digital age’ (A/HRC/27/37). This report, adopted by the Human Rights Council in June 2014, affirms the importance of the right to privacy in our increasingly digital age, and offers crucial insight into recent erosions of privacy. It is both fitting and necessary that the General Assembly take note of and affirm the said report in the context of digital privacy.

34. We offer the following suggestion as an addition to Para 43:

“43. We emphasise that no person shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, consistent with countries’ applicable obligations under international human rights law. In this regard, we acknowledge the report of the Office of the UN High Commissioner for Human Rights, ‘The right to privacy in the digital age’ (A/HRC/27/37, 30 June 2014), and take note of its findings. We encourage all stakeholders to ensure respect for privacy and the protection of personal information and data.”

35. Paragraphs 40-44 of the Zero Draft state that communication is a fundamental human need, reaffirming Article 19 of the Covenant on Civil and Political Rights, with its attendant narrow limitations. The Zero Draft also underscores the need to respect the independence of the press. Particularly, it reaffirms the principle that the same rights that people enjoy offline must also be protected online.

36. Further, in Para 31, the Zero Draft recognizes the “critical importance of private sector investment in ICT access, content, and services”. This is true, of course, but corporations also play a crucial role in facilitating the freedom of speech and expression (and all other related rights) on the Internet. As the Internet is led largely by the private sector in the development and distribution of devices, protocols and content-platforms, corporations play a major role in facilitating – and sometimes, in restricting – human rights online. They are, in sum, intermediaries without whom the Internet cannot function.

37. Given this, it is essential that the outcome document of the WSIS+10 Overall Review recognize and affirm the role of the private sector, and crucially, its responsibilities to respect and protect human rights online.

38. We suggest, therefore, the insertion of the following paragraph Para 42A, after Para 42:

“42A. We recognize the critical role played by corporations and the private sector in facilitating human rights online. We affirm, in this regard, the responsibilities of the private sector set out in the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/17/31 (21 March 2011), and encourage policies and commitments towards respect and remedies for human rights.”

C. Implementation and Follow-up

39. Para 57 of the Zero Draft calls for a review of the WSIS Outcomes, and leaves a black space inviting suggestions for the year of the review. How often, then, should the review of implementation of WSIS+10 Outcomes take place?

40. It is true, of course, that reviews of the implementation of WSIS Outcomes are necessary to take stock of progress and challenges. However, we caution against annual, biennal or other such closely-spaced reviews due to concerns surrounding budgetary allocations.

41. Reviews of implementation of outcomes (typically followed by an Outcome Document) come at considerable cost, which are budgeted and achieved through contributions (sometimes voluntary) from states. Were Reviews to be too closely spaced, budgets that ideally ought to be utilized to bridge digital divides and ensure universal connectivity, particularly for developing states, would be misspent in reviews. Moreover, closely-spaced reviews would only provide superficial quantitative assessments of progress, but would not throw light on longer term or qualitative impacts.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-zero-draft-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10

Comments on the Telecom Commercial Communications Customer Preference Regulations

Sandeep Kumar, Torsha Sarkar, Swaraj Barooah, Gurshabad Grover — 2018-06-23T00:44:47Z

This submission presents comments by the Centre for Internet & Society, India (“CIS”) on the Telecom Commercial Communications Customer Preference Regulations which was released to the public by the Telecom Regulatory Authority of India (TRAI) on 29th May 2018 for comments and views.

Preliminary

This submission presents comments by the Centre for Internet & Society (“CIS”), India on ‘The Telecom Commercial Communications Customer Preference Regulations, 2018’ which were released on 29th May 2018 for comments and counter-comments.

CIS appreciates the intent and efforts of Telecom Regulatory Authority of India (TRAI) to curb the problem of Unsolicited Commercial Communication (UCC), or spam. Spam messages are constant irritants for telecom subscribers. Acknowledging the same, TRAI has proposed regulations which aim to empower subscribers in effectively dealing with UCC. CIS is grateful for the opportunity to put forth its views and comments on the regulations. This submission was made on 18th June 2018. This text has been slightly edited for readability.

The first part of the submission highlights some general issues with the regulations. While TRAI has offered a technological solution to the menace of UCC, the policy documents have no accompanying technical details. TRAI has not made a compelling case for why Distributed Ledger Technologies (DLTs) should be used for storing data instead of a distributed database. There is no clarity on the technical aspects of the proposed DLTs: the participating nodes in the network, how these nodes arrive at a consensus, whether they are independent of each other, are questions that remain unanswered. The draft regulations also mention curbing Robocalls, but technical challenges associated with the same have not been discussed. Spam which is non-commercial in nature remains out of the scope of the current regulations.

The second part of this submission puts forth specific comments related to various sections of the draft and suggests improvements therein. While CIS appreciates the extension of the deadline from 11th June to 18th June, we would like to highlight that the Draft was released on 29th May, and despite the extension, the time to submit comments remains less than a month. Considering the fact that the draft regulations hold significance for the entire telecom industry and nearly 1.5 billion subscribers, TRAI should have granted at least a month’s time for the stakeholder’s sound scrutiny.

General Comments

Distributed Ledger Technology (DLT)

The draft greatly emphasizes the fact that data regarding Consent, Complaints, Headers, Preferences, Content Template Register and Entities are stored on distributed ledgers. The intent is to keep data cryptographically secure with no centralized point of control. However, the regulations do not go into the technical details of the working of these distributed ledgers leading to several potential pitfalls.

As per the draft, every access provider has to establish distributed ledgers for Complaints, Consent, Content, Preference, Header, Entities and so on. There are specific entities mentioned which will act as nodes in the network, and these nodes are preselected.

Whenever a sender seeks to send commercial communications across a list of subscribers, the list is ‘scrubbed’ against the DL-Consent and DL-Preference, to check whether the subscriber has given consent and registered their preference. The sender can only send the commercial communication to the numbers which are present in the scrubbed list.

The objective of these regulations is to protect consumers’ rights but the consumer, i.e., the subscriber, is not a node in the distributed ledger. Since the primary benefits of decentralization are gained when the trust is devolved to the individual subscribers, and the individual users are not specified as participating nodes in the ledger, the justification behind a distributed ledger is unclear.

Additionally, the proposed regime requires the subscriber to place her trust in the access provider to register the complaint, thus offers no tangible benefit over the current regulation. While there are penalties for non-compliant Access Providers (APs), there are no business incentives for APs to expend the extra amount of resources required in for effective implementation of this technology, to act in the users’ interest. This builds a system where APs interests clash with subscribers, but they are nonetheless required to be the guardian of the subscribers’ concerns.

Further, the nodes are entities constituted by the access providers (APs), and there is no mechanism to ensure that they behave independently of each other. In such case, it is wholly possible that all nodes on a distributed ledger are run by the same entity, thus defeating the purpose of establishing consensus. The proposed regulations do not address this scenario.

One solution would be to add subscribers as nodes to the DLT network. But this would be impractical as the technical challenges associated therein, including generating public-private key pairs of each user, the computational complexity of the network, are immense. If this is indeed the intention of TRAI, this has not been spelled out clearly in the draft regulations. Additionally, in such a scenario, there would be no requirement for mandating every AP to maintain their own DLT for customer preference and consent artifacts.

Considering the points mentioned above, we request TRAI to publish the technical specifications of DLTs, which addresses the following issues:

Who can participate in the network other than the entities mentioned in the regulations? Are these participating entities independent of each other? If not, then how will the conflict of interest be resolved?
What is the consensus algorithm used in the DLTs?
Will the code to implement DLTs be open-source?

Our recommendations are three-fold in this regard:

If distributed ledger is used, then, mechanisms should be devised to ensure the integrity of the consensus. For this, participating nodes in the network must be independent of each other. Aforementioned points regarding consensus protocol should be taken into consideration as well.

In place of DLTs, we recommend the use of a distributed database with signature-based authentication and encryption of the data to be stored. The immutability and non-repudiation of data can be achieved in this way. Distributed ledgers such as DL-consent, DL-preference, DL-complaints are instances where authentication of data and subscriber can be done using simplers means such as OTP verification, etc. So, such ledgers need not necessarily utilize DLTs.

The regulations should mandate the open-source publication of the implementation of the DLTs. This will enable interoperability, add transparency to the functioning of the regulations, and enable security audits to ensure accountability of the APs.

Broadening the scope of the Regulations to non-commercial communication

The proposed regulations attempt to specifically curb unsolicited commercial communications as defined in Regulation 2(bt). But, there are other forms of communication which are unsolicited and non-commercial, including political messages and market surveys.

We recommend that the scope of the regulations should be broadened to include both commercial and non-commercial communications. And both of these should be grouped under the category of Institutional Communications. Wherever needed, changes should be made to the regulations dealing with UCC to suit the specific requirements of dealing with unsolicited non-commercial communications as well. At the same time, the regulations should ensure that individual communications are not brought within their ambit.

Technical challenges in combating Robocalls

Robocalls are defined in Regulation 2(ba) and in Schedule IV, provision 3, it has been clubbed with other kinds of spam. However, there are some specific technical challenges in regulating robocalls. Right now, ‘block listing’ is a prevalent model where one can identify a number and then block it so that it cannot be used further. But with robocalls, spoofing of other numbers is easily achievable which makes the blocking of the real identity of caller difficult. The proposed regulations do not adequately address this challenge.

The Alliance for Telecommunications Industry Solutions, with working groups of the Internet Engineering Task Force (IETF), has been working on a different approach to solve this problem. They are working on standards for all mobile and VoIP calling services which would enable them to do cryptographic digital call signing, “so calls can be validated as originating from a legitimate source, and not a spoofed robocall system. The protocols, known as ‘STIR’ and ‘SHAKEN,’ are in industry testing right now through ATIS's Robocalling Testbed, which has been used by companies like Sprint, AT&T, Google, Comcast, and Verizon so far”.

TRAI should take into account these developments and propose a specific regime accordingly. One possible way forward, for now, could be the banning of robocalls unless there is explicit opt-in by subscribers.

Registration of content-template

The draft envisages a distributed ledger system for registration of content template which would have both a fixed part and a variable part. The content template needs to be registered by the content template registrar, which would be an authorized entity.

Problematically, the content template is defined to include the fixed part as well as the variable part. Further, Schedule I, provision 4(3)(e) mandates that content template registration functions should be utilized to extract fixed and the variable portion from actual messages offered for delivery or already delivered. The variable portion of the message contains information specific to a customer, as defined in regulation 2(q)(ii). In addition to privacy concerns with accessing the variable part, there is no functional reason for variable portions to be extracted from the actual message, as only the fixed portion needs to be verified.

The hash of the fixed portion of the message can be used to identify whether a user has received UCC or not. We, therefore, recommend that the variable portion of the message shall not be made accessible to entities because it is not required for the identification of a message as UCC.

‘Safe and Secure Manner’

Throughout the draft, reference is made to the data collected being stored and/or exchanged in a ‘safe and secure manner’, without any clarification as to what this term implies.

We recommend that the term be defined as ‘measures in accordance with reasonable security practices and procedures’ as given in section 43A of the Information Technology Act, 2008 read with section 8 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.

Bulk Registration

In the Consultation paper published by TRAI, bulk registration was envisaged as a way to curb UCC wherein one member of the family can register on behalf of the family. Australia has already implemented this mechanism.

In India, evidence suggests that major victims of spam are the elderly and people with limited financial capacities. In such cases, consent and preference registration on behalf of these people by one person may help in the successful control of UCC.

Some telecom service providers argued against this by emphasizing the individual choice of a subscriber. However, in cases where there is authorization given by the customer, the primary user can register consent on his/her behalf. Similarly, since corporate connections are by definition owned and paid for by corporates, bulk registration in those situations can be also be done.

We recommend that given the situation in India, the provision for bulk registration be incorporated in the regulations for specific scenarios, as mentioned above. An authorization template giving the nominee power to register on behalf of a class can be incorporated to this effect. Also, an opt-out option must be incorporated in case an individual choice differs from the choice registered in the bulk-registration.

Specific Comments

Inferred Consent [Regulation 2(k)(II)(A)]

Comments
Regulation 2(k)(ii)(a) of the Draft defines consent as “voluntary permission given by the customer to the sender to receive commercial communication”. However, the draft also includes, “inferred consent”, which is defined as consent that can be “reasonably inferred from the customer’s conduct or the business and the relationship between the individual and the sender”.

When consent is derived from the customer’s conduct, rather than being given explicitly, it defeats its ‘voluntary nature’. The provision of consent being ‘reasonably inferred’ from the customer’s conduct is also vague, and there is no indication given in the draft as to what kind of conduct would lead to a reasonable inference of implied consent. The definition can also be interpreted to mean that customer’s conduct will be subject to monitoring, which raises privacy concerns.

Recommendations
Consent shall not be derived from the customer’s conduct unless the person provides it explicitly. We recommend amendment to the definition of ‘inferred consent’ accordingly.

Three years history to be stored in DL-Complaints [Regulations 24(3) and 24(4)]

Comments

Regulation 24(3) and (4) states that the DL-Ledger for Complaints (DL-Complaints) shall record ‘three years history’ of both the complainant and the sender, with details of complaints made, date, time and status of the resolution of the complaint. It is not clear from the regulation whether the mentioned set of data is exhaustive or not.

Recommendations
We recognize that the legislative intent behind drafting Regulation 24(3) and (4) was to curb frivolous or false complaints, which has already been a concern of TRAI. Storing both the complainant and the sender’s history, in such cases, may aid in resolving these.

We recommend that the language of the regulations may be amended to “three years history which only includes details of all complaint(s) made by him, with date(s) and time(s) . . .”, thereby giving a limiting qualification to the broad scope of the term.

The responsibility of the APs to ensure that the devices support the requisite permissions [Regulation 34]

Comments
Regulation 34 mandates that the APs are to ensure that the devices “registered in the network” shall support the requisite permissions of the Apps under this regulations.

In terms of jurisdiction, regulation of the functioning of electronic devices (which can be phones, tablets or smart watches) is outside the scope of the proposed regulations, and probably out of TRAI's regulatory competence.

Even if TRAI can impose the regulation on end devices, this regulation puts the burden on the APs to ensure that devices support the pertinent app permissions. Considering that TRAI itself has been weighing legal recourse against device manufacturers on similar grounds, it is unclear why TRAI assumes that APs have any legal or technical method to ensure control of a device which has neither been manufactured by them nor is it under their physical or remote control.

In modern smartphones, the end-user has full control over most app installations and permissions. This practice is consistent with a consumer's autonomy over the device and its functioning. Considering the fact that TRAI has not implemented basic security features in the 'Do Not Disturb' app, TRAI is putting at risk the privacy of millions of device owners by legally mandating permissions for an app with the second proviso. The proviso further gives TRAI the power to order APs to derecognize devices from their network. This regulation is draconic and inimical to the rights of consumers, who are at risk of losing network access and connectivity because of their device choice, which is a completely different business and market.

Recommendations
Reporting unsolicited messages or calls is a consumer right, and the regulations are in furtherance of the same goals. TRAI should enable consumer rights by giving subscribers the option to report spam and has no reason to force users to report spam possibly through legal overreach and privacy invasion. Accordingly, we recommend the removal of Regulation 34.

Additional Suggestions

Consumer and subscriber

The usage of the terms ‘customer’ and ‘subscriber’ in Regulation 3(1) implies that the terms have two different meanings. This interpretation, however, clashes with the actual definition given in Regulation 2(u) and 2(bk), whereby a customer is a subscriber. This is an inconsistent interpretation.

Either the definition of a ‘customer’ must be clarified or differentiated from that of a ‘subscriber’ in regulation 2, or regulation 3 must be amended to indicate what its actual object of regulation is - the customer or the subscriber.

Drafting misnumbering

There are a few instances of misnumbering of regulations and reference regulations which are non-existent.

Regulations 25(5)(b) and (c) make a reference to regulation 25(3)(a), which does not exist in the given draft. A bare reading of regulation 25, however, indicate that the intention was to refer to regulation 25(5)(a), and as such, this misnumbering should be rectified.

Regulation 34 makes a reference to regulation 7(2), which again, does not exist. In such case, either regulation 34 or regulation 7(2) must be amended to keep a consistent interpretation.

Ambiguous terms

‘Allocation and assignment principles and policies’ - Provision 4(1)(a) of Schedule I of the regulations indicate that header assignment should be done on the basis of ‘allocation and assignment principles and policies’, without any clarification to the meaning of this term. We recommend an amendment to this provision accordingly.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-telecom-commercial-communications-customer-preference-regulations

Comments on the Statistical Disclosure Control Report

Srinivs Kodali and Amber Sinha — 2019-03-13T00:28:44Z

This submission presents comments by the Centre for Internet and Society, India (“CIS”) on the Statistical Disclosure Control Report published on March 30th by Ministry of Statistics and Programme Implementation.

1. PRELIMINARY

CIS is thankful for the opportunity to put forth its views.
This submission is divided into three main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part contains the ‘Comments’.

2. ABOUT CIS

CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cybersecurity.

CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles.

3. Comments

3.1 General Comments

As a non-profit organisation we recognize the importance of the efforts by the Ministry of Statistics and Programme Implementation (MoSPI) to make the data you collect available to the public in open formats with relevant information about reliability of statistical estimates.

We at CIS have recently released a report titled “Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information”. We encountered several central and state government departments collecting socioeconomic data from citizens, linking it with Aadhaar and even publishing them in exportable data formats like EXCEL and MS ACCESS Databases. While we understand this issue primarily concerns to Unique Identification Authority of India (UIDAI), the lack of standards around information/statistical disclosure are a general threat to transparency in a democracy and privacy of individuals. Going through the report we understand the committee is unable to prescribe a standard for other ministries and departments until they try and pilot these standards within Ministry of Statistics and Programme Implementation. This delay in prescribing the standards can be really dangerous in the current circumstances of massive data collection by government departments and linking all the databases with a unique identifier, Aadhaar Number. At the same time we understand the importance of data dissemination to be carried out and we recommend the following for improving the standards around data disclosure control.

3.2 Integrity of Information and Data

We agree with the committee that the error rates need to be kept in mind while designing practices to convert raw data. But we request the process of changes being made be actively measured and documented. In case of errors being computed, guidelines can be made to decrease the possibilities of misinterpretation of errors causing loss of integrity of information. Statistics are important for decision making in governance, errors in computations can be biased towards millions of people. Statistical biases are important to be looked into while converting data from its raw format to make sure there are no damage caused by information.

3.3 Data Security

One of the important issues around storage and publication of Aadhaar information is the lack of masking standards. With the availability of data from multiple departments, it is possible to reconstruct identification details by linking data from multiple databases. It is recommended to bring masking standards while personally identifiable micro data is being published. There is an urgent need for departments to also look at auditing access to information and tracking sharing of information. It is recommended the department digitally signs all the information and documents being published or shared by them to keep track of who had accessed the information and verifying the authenticity of information.

We request the department to define what exactly is “usage for statistical purposes only” and recommend standards to control and restrict usage of information for this purpose. It is important they design frameworks or mechanisms to allow others to report violations around this. This process should be transparent and documented heavily.

3.4 Anonymization of microdata

We recommend the data being collected be anonymized at source to evade the possibility of the accidental disclosure of personally identifiable information. While the current anonymization efforts have been helpful, with steady increase in data mining and classification algorithms and practices it is recommended to evolve the standards around this area.

3.5 Data Dissemination

Data dissemination is an important aspect for district statistics officers, we recommend they actively communicate their work through monthly newsletters, quarterly workshops to help improve the conversations around statistics and at the same time engage with the users who would benefit from the data.

We also recommend that data when being published includes metadata of collection, modification, storage and other important information. Also the information needs to be published in open formats which does not require proprietary software to be used to open them. At the same time data should be published in multiple formats like CSV, XLS, PDF,

The committee also recognizes the need for having data users part of discussions around important decisions and be part of committees. We would like the department to recognize our efforts and consider us for future committee representations.

Thank you for this opportunity and we look forward to work with you in future.

For more details visit https://cis-india.org/internet-governance/comments-on-the-statistical-disclosure-control-report

Comments on the Proposed Rule 138A of the Central Motor Vehicle Rules, 1989 Concerning Radio Frequency Identification Tags

bhairav — 2012-12-04T15:32:55Z

The Centre for Internet & Society gave its comments on the proposed Rule 138A of the Central Motor Vehicle Rules, 1989. The comments were made in response to Notification GSR 738(E) published in the Gazette of India on October 3, 2012.

I Preliminary

1.1 These initial comments are made with regard to Notification GSR 738(E), published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), on 3 October 2012
(“Impugned Notification”).

1.2 The Impugned Notification proposes to insert a new rule 138A in the Central Motor Vehicle Rules, 1989 (“CMV Rules”) to make mandatory the installation of radio frequency identification (“RFID”) tags on all light and heavy motor vehicles to enable their instant identification and monitoring by electronic toll collection booths, the police and any other authority or person that is able to query and read RFID tags.

II Validity of the Impugned Notification

(a) The Scope and Limits of the Executive Power of the Union

2.1 The competence of the Central Government to govern by executive action (such as the Impugned Notification) is restricted to the extent of the executive power of the Union.[1] Following the Ram Jawaya Kapur case,[2] it is settled that the extent of the Union’s executive power is coterminous with the legislative power of Parliament even in the absence of controlling legislation in that field.[3] This is in addition to the Union’s subordinate executive power to give effect to legislation through statutory delegation[4] and its directory executive power to give directions to the States.[5] Thus, there are three kinds of executive power exercisable by the Union:

(a) the regular power, exercisable in the absence of controlling legislation, if the subject of executive action is a matter upon which Parliament is competent to legislate;
(b) the subordinate power, exercisable under the terms of a controlling statute, if that statute specifically delegates such a power to the Union; and
(c) the directory power, exercisable within judicial limits, to secure the compliance of the States with the laws of the Union.

2.2 The regular executive power of the Union cannot be exercised over a matter that is controlled by parliamentary legislation.[6] This principle is akin to, but does not correspond exactly with, the doctrine of occupied field which is primarily concerned with the legislative entries contained in Schedule VII of the Constitution of India. Nevertheless, it is settled that since the power of the executive to act is subject to the control of the legislature, a statutory regime, where it exists, cannot be circumvented by the free exercise of executive power.[7] In the case of the Impugned Notification, the Motor Vehicles Act, 1988 constitutes a statutory regime that occupies the field to preclude regular executive action by the Central Government with regard to RFID tags in motor vehicles. The Impugned Notification should next be examined only in light of the scope and limits of the Union’s subordinate executive power since, as the Impugned Notification is not a direction to the States, the Union’s directory executive power is not in issue.

(b) Extent of the Central Government’s Rule-Making Power

2.3 The subordinate executive power of the Union emanates from section 110 of the Motor Vehicles Act, 1988 (“MV Act”) that confers the Central Government with the power to make rules to implement the statute. At this point it is important to note that the legislative competence of the MV Act is traceable to Entry 35 of List III, Schedule VII of the Constitution of India. Entry 35 concerns:

Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.

Entry 35 being a concurrent subject, it is open to both the Union and the States to act to regulate motor vehicles.[8] Accordingly, the MV Act also vests the States with subordinate executive power through sections 28, 38, 65, 95, 96, 107, 111, 138 and 176 which confer State Governments with the power to make rules to implement the statute in, and amend its application to, their particular states. As for the Union, so for the States is the regular executive power precluded by the existence of a statutory regime.[9]

2.4 Section 110 of the MV Act states:

110. Power of the Central Government to make rules. – (1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-

(a) the width, height, length and overhand of vehicles and of the loads carried;
(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;
(c) brakes and steering gear;
(d) the use of safety glasses including prohibition of the use of tinted safety glasses;
(e) signalling appliances, lamps and reflectors;
(f) speed governors;
(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;
(h) the reduction of noise emitted by or caused by vehicles;
(i) the embossment of chassis number and engine number and the date of manufacture;
(j) safety belts, handle bars of motor cycles, auto-dippers and other equipments essential for safety of drivers, passengers and other road-user;
(k) standards of the components used in the vehicle as inbuilt safety devices;
(l) provision for transportation of goods of dangerous or hazardous nature to human life;
(m) standards for emission of air pollutants;
(n) installation of catalytic convertors in the class of vehicles to be prescribed;
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;
(p) warranty after sale of vehicle and norms therefor:

Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.

(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

(3) Notwithstanding anything contained in this section,-

(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;
(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.

2.5 The subordinate executive power of the Union, i.e. the rule-making power, is restricted to the exact extent of the delegation.[10] This is a well settled and undisputed principle of administrative law. Therefore, the Central Government cannot, in exercise of the rule-making power granted under section 110 of the MV Act, frame rules for matters for which it has not been specifically empowered under that section. Section 110 of the MV Act does not grant the Central Government the power to make rules for mandating RFID tags on vehicles. Clauses (a) to (p) of section 110(1) descriptively list the matters relating to the construction, equipment and maintenance of motor vehicles that the Central Government is competent to regulate by exercising its executive power. This list is exactingly drafted; the absence of general words or a miscellaneous empowerment obviates the need for examining any particular word or words in clauses (a) to (p) in light of the principle of ejusdem generis.

2.6 In the absence of a specific empowerment, or even a general empowerment that may be positively construed ejusdem generis, only two clauses of section 110(1) require further examination. These are:

(e) signalling appliances, lamps and reflectors; and,
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;

Clause (e), which deals with signalling appliances, cannot be read to include RFID tags since, in accordance with the principle of noscitur a sociis, the meaning of the words “signalling appliances” is derived from its association with the words “lamps and reflectors.”[11] Therefore, RFID tags, which are totally unrelated to lamps, reflectors and related signalling appliances, are not the subject of clause (e). On the other hand, while clause (o) contains an executive empowerment in respect of radio devices, the empowerment only concerns “public vehicles”; and, hence, the installation of RFID tags in non-public vehicles including light vehicles, such as cars, and heavy vehicles, such trucks and lorries, cannot be carried out under this clause. In any event, the word “radio” must be interpreted noscitur a sociis in light of its association with the words “audio-visual” and “tape recorder” to yield an executive empowerment in respect of in-vehicle entertainment devices only.

2.7 Therefore, in the absence of an empowerment under section 110 of the MV Act in respect of RFID tags, the Impugned Notification of the Central Government is ultra vires the MV Act. Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void.[12] The Impugned Notification is both ultra vires its parent statute and void. In this regard, it is instructive to note that it is settled that void rules neither acquire validity by a subsequent conferment of statutory power nor by their publication in the Official Gazette.[13]

III Constitutional Implications regarding Privacy

3.1 Across the world, RFID technology has been challenged on the basis of its intrusion into personal privacy. RFID tags operate on a pre-determined radio frequency; and, unless the tags are programmed to rapidly, constantly and randomly switch frequencies or are able to jam unauthorised queries – an extremely expensive proposition, RFID signals can be easily intercepted. The interception a vehicle’s RFID signals, whether by public authorities or by private persons, can yield detailed locational information of the driver of the vehicle. This is an unwarranted intrusion into the locational privacy of individuals.

3.2 Locational privacy is an intrinsic part of the right to privacy. An intrusion into this right, such as in the form of mandatory RFID tags on vehicles, will reveal information as to inter alia a person’s whereabouts and daily routine as well as addresses of friends’ houses, visits to the hospital, visits to a place of worship, restaurant preferences, addresses of children’s schools and so on. This will affect ordinary citizens, politicians and civil servants equally. All this information will be at the hands of the police. To place the power of tracking and monitoring ordinary individuals with the police, when such technology is not even available with intelligence agencies, would be an act of recklessness. This is compounded by the total lack of safeguards accompanying the attempted imposition of RFID technology.

3.3 Following the Kharak Singh[14] and Gobind[15] cases, the locational privacy of individuals, specifically in relation to their privacy from the police, is constitutionally protected.[16] It is now accepted that privacy is an essential ingredient of personal liberty forming a part of the right recognised under Article 21 of the Constitution. It is further settled that the personal liberty of an individual cannot be taken away except by a law that establishes a procedure that is fair, just and reasonable that withstands the tests of Article 14 and Article 19 of the Constitution.[17]The Impugned Notification, while constituting a “law” under Article 13 of the Constitution, does not create a fair, just and reasonable procedure to deprive individuals of their personal liberty and therefore fails the tests imposed by Maneka Gandhi. Therefore, the Impugned Notification, even if it were not void for want of competence, would be ultra vires the Constitution for violating Article 21.[18]

IV Summary

4.1 In sum:

(a) Section 110 of the MV Act does not bestow on the Central Government a specific empowerment to make rules in respect of RFID tags;
(b) The Impugned Notification exceeds the delegated limits of the Central Government’s subordinate executive power;
(c) The Impugned Notification is ultra vires the MV Act, its parent statute;
(d) Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void;
(e) The Impugned Notification is void;
(f)   The imposition of mandatory RFID tags on vehicles will yield locational information to seriously invade the right to privacy;
(g) The right to privacy is an essential ingredient of personal liberty and is constitutionally protected;
(h) The Impugned Notification violates the right to privacy without creating a fair, just and reasonable procedure to deprive persons of their personal liberty;
(i)   The Impugned Notification is ultra vires the Constitution for violating Article 21;
(j)   Any rule that mandates RFID tags on vehicles to violate the right to privacy is void ab initio.

[1]. Article 73 of the Constitution of India.
[2]. Ram Jawaya Kapur AIR 1955 SC 549.
[3]. Ibid at prs. 12-14.
[4]. See generally, In re Delhi Laws Act AIR 1951 SC 332, Harishankar Bagla AIR 1954 SC 465, Rajnarain Singh AIR 1954 SC 569 and Edward Mills AIR 1955 SC 25.
[5]. See Articles 256 and 257 of the Constitution and State of Rajasthan (1977) 3 SCC 592.
[6]. Bishamber Dayal (1982) 1 SCC 39 at pr. 20.
[7]. Bharat Coking Coal (1990) 4 SCC 557 at prs. 15-17.
[8].Article 253 of the Constitution.
[9]. Article 162 of the Constitution.
[10]. See In re Delhi Laws Act AIR 1951 SC 332, State of Bihar (2000) 4 SCC 640, Shri Sitaram Sugar (1990) 3 SCC 223 [all Constitution Benches], Ramakrishnan Kulwant Rai 1989 Supp (1) SCC 541, K. M. Charia Abdullah (1965) 1 SCR 601, Charanjit Gill (2000) 5 SCC 742, ADM (Rev.) Delhi Administration (2000) 5 SCC 451 and State of Karnataka (1983) 2 SCC 402.
[11]. For foundational Indian case law on the principle of noscitur a sociis, see generally, M. K. Ranganathan AIR 1955 SC 604, Hospital Mazdoor Sabha AIR 1960 SC 110 and Corporation of the City of Nagpur AIR 1960 SC 675.
[12]. See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.
[35]. General Officer Commanding-in-Chief (1988) 2 SCC 351 at prs. 12-14.
[14]. Kharak Singh AIR 1963 SC 1295. The majority, speaking through Ayyangar, J., found that ‘domiciliary visits’ conducted by the police in exercise of powers granted under police regulations violated Article 21 of the Constitution; and, the minority speaking through Subba Rao, J., found that both secret police picketing (as to the location of individuals) and domiciliary visits violated both Article 21 and Article 19(1)(d) of the Constitution.
[15]. Gobind (1975) 2 SCC 148.
[16]. For a jurisprudential development of the right to privacy in India, see generally Kharak Singh AIR 1963 SC 1295, R. M. Malkani (1973) 1 SCC 471, Gobind (1975) 2 SCC 148, R. Rajagopal (1994) 6 SCC 632, People’s Union for Civil Liberties (1997) 1 SCC 301, Mr ‘X’ (1998) 8 SCC 296, Canara Bank (2005) 1 SCC 496, Bharat Shah (2008) 13 SCC 5, Naz Foundation (2009) 160 DLT 277, Selvi (2010) 7 SCC 263 and Ram Jethmalani (2011) 8 SCC 1.
[17]. Maneka Gandhi (1978) 1 SCC 248 at prs. 4-14 (per Bhagwati, Untwalia and Fazal Ali, JJ.), 48-49 (per Chandrachud, J.), 62-78 and 79-91 (per Krishna Iyer, J.) and 192-199, 201, 203 and 211-215 (per Beg, CJI.)
[18]. In this regard, see also Supreme Court Welfare Association (1989) 4 SCC 187 and N. Bakshi 1962 Supp (1) SCR 505 for the proposition that rules violating the Constitution are void ab initio.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-motor-vehicle-rules

Comments on the Proposed ICANN Community Anti-Harassment Policy

Padma Venkataraman, Rohini Lakshané, Sampada Nayak and Vidushi Marda — 2017-01-13T15:56:40Z

ICANN sought community input on the Proposed ICANN Community Anti-Harassment Policy on 7 November 2016. In response to this the Centre for Internet & Society (CIS) submitted its comments.

We at CIS are grateful for the opportunity to comment on the proposed ICANN Community Anti-Harassment Policy (“Policy”). We provide our specific comments to the Policy below, in three sections. The first section addresses the Terms of Participation, the second deals with the Reporting and Complaint Procedure, and the third places on record our observations on questions and issues for further consideration which have not been covered by the Policy.

Besides various other observations, CIS broadly submitted:

The attempt to provide an exhaustive definition of “Specified Characteristics” results in its meaning being unclear and exclusionary.
CIS strongly supports the phrase “including, but not limited to” that is followed by a bulleted list of inappropriate conduct.
The word “consent” is entirely missing from the draft policy even though the deciding factor in the “appropriateness” of an act or conduct is active and explicit consent to the act by both/ all individuals involved.
There is a need for clarity of communication platforms. The current Policy fails to specify instances of face-to-face and online communications.
The policy fails to account for a body of persons (as is provided for in the IETF policy) for the redressal of harassment complaints.
The provision for an informal resolution of a harassment issue is problematic as it could potentially lead to negative consequences for the complainant.
The Ombudsperson’s discretion in the determination of remedial action is detrimental to transparency and accountability.
The Policy in its current form lacks provisions for ensuring privacy and confidentiality of the complainant as well as interim relief while the Ombudsperson is looking into the complaint

Read the Complete Submission here

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-proposed-icann-community-anti-harassment-policy

Comments on the National Policy of Information Technology

praskrishna — 2011-11-09T10:28:31Z

The NPIT 2011 has the laudable goal of making India a ‘knowledge economy with a global role’ by developing and deploying ICT solutions in all sectors to foster development within India and at a global level. The policy identifies several praiseworthy goals such as the promotion of open standards and open technologies, accessibility for persons with disabilities, affordable ICT services, transparency, accountability, technology development for Indian languages, placing data in public domain for use and value addition, using social media to engage with citizens and investing in indigenous R&D and capacity building. We deeply appreciate this initiative of the Department of Information Technology and offer below brief comments to strengthen the draft.

Mission

It may be important to have one mission which is more citizen centric, for instance, to use ICT to empower and mainstream underprivileged sections of the population such as persons with disabilities, economically disadvantaged people, etc. All of the missions currently listed are related to making India an IT hub and around economic/commercial indicators and the focus on the human development aspect seems to be lacking.

Objectives

Objectives 8 and 9 which are dealing with government services could specifically mention accessibility. While access for persons with disabilities is covered in objective 12, it does not imply inherent accessibility of all government services, but merely an enablement of those which are required.

Enforcement Mechanism

While the policy has several commendable goals, there is little indication as to how it will be sought to be implemented. It would be helpful to have clear mention of the responsible authorities and execution mechanisms, including a mechanism for periodic review to ensure that all security, standards and quality guidelines and timelines are met.

Development of Language Technologies

Since the development of language technologies is extremely crucial to ensure that ICT access is possible for persons in both rural and urban areas, affordability should be stressed as a key aspect of this research and open source solutions may come out of public funded research.

For more details visit https://cis-india.org/internet-governance/comments-national-policy-information-technology

Comments on the National Digital Health Blueprint

Samyukta Prabhu, Ambika Tandon, Torsha Sarkar and Aayush Rathi — 2019-08-07T13:24:55Z

The Ministry of Health and Family Welfare had released the National Digital Health Blueprint on 15 July 2019 for comments. The Centre for Internet & Society submitted its comments.

This submission presents comments by the Centre for Internet and Society (CIS), on the National Digital Health Blueprint (NDHB) Report, released on 15th July 2019 for publicconsulations. It must be noted at the outset that the time given for comments was less than three weeks, and such a short window of time is inadequate for all stakeholdersinvolved to comprehensively address the various aspects of the Report. Accordingly, on behalf of all other interested parties, we request more time for consultations.

We also note that the nature of data which would be subject to processing in the proposed digital framework pre-supposes a robust data protection regime in India, onewhich is currently absent. Accordingly, we also urge ceasing the implementation of the framework until the Personal Data Protection Bill is passed by the parliament. We wouldbe explaining our reasonings on this particular point below.

Click to download the full submission here.

For more details visit https://cis-india.org/internet-governance/blog/samyukta-prabhu-ambika-tandon-torsha-sarkar-and-aayush-rathi-august-4-2019-comments-on-national-digital-health-blueprint

Comments on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

bhairav — 2013-07-12T12:13:53Z

Bhairav Acharya on behalf of the Centre for Internet and Society prepared the following comments on the Sensitive Personal Data Rules. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 The Centre for Internet and Society (“CIS”) is pleased to present this submission on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 313(E) on 11 April 2011 (“Sensitive Personal Data Rules” or “Rules”) to the Committee on Subordinate Legislation of the Fifteenth Lok Sabha.

1.2 The protection of personal information lies at the heart of the right to privacy; and, for this reason, it is an imperative legislative and policy concern in liberal democracies around the world. In India, although remedies for invasions of privacy exist in tort law and despite the Supreme Court of India according limited constitutional recognition to the right to privacy[1], there have never been codified provisions protecting the privacy of individuals and their personal information.

The Sensitive Personal Data Rules represent India’s first legislative attempt to recognise that all persons have a right to protect the privacy of their personal information. However, the Rules suffer from numerous conceptual, substantive and procedural weaknesses, including drafting defects, which demand scrutiny and rectification. The interpretation and applicability of the Rules was further confused when, on 24 August 2011, the Department of Information Technology of the Ministry of Communications attempted to reinterpret the Rules through a press release oblivious to the universally accepted basic proposition that law cannot be made or reinterpreted via press releases.[2] Therefore, the attention of the Committee on Subordinate Legislation of the Fifteenth Lok Sabha is called to the following submissions:

II Principles to Facilitate Appraisal
2.1 The Sensitive Personal Data Rules are an important step towards building a legal regime that protects the privacy of individuals whilst enabling the secure collection, use and storage of personal information by state and private entities. The Rules are to be welcomed in principle. However, at present, the Rules construct an incomplete regime that does not adequately protect privacy and, for this reason, falls short of internationally accepted data protection standards.[3]

This not only harms the personal liberties of Indian citizens, it also affects the ability of Indian companies to conduct commerce in foreign countries. More importantly, the Rules offer no protection against the state.

2.2 To enact a comprehensive personal information protection regime, CIS believes that the Rules should proceed on the basis of the following broad principles:

(a) Principle of Notice / Prior Knowledge

All persons from whom personal information is collected have a right to know, before the personal information is collected and, where applicable, at any point thereafter: (i) of an impending collection of personal information; (ii) the content and nature of the personal information being collected; (iii) the purpose for which the personal information is being collected; (iv) the broad identities of all natural and juristic persons who will have access to the collected personal information; (v) the manner in which the collected personal information will be used; (vi) the duration for which the collected personal information will be stored; (vii) whether the collected personal information will be disclosed to third parties including the police and other law enforcement agencies; (viii) of the manner in which they may access, check, modify or withdraw their collected personal information; (ix) the security practices and safeguards that will govern the sanctity of the collected personal information; (x) of all privacy policies and other policies in relation to the collected personal information; (xi) of any breaches in the security, safety, privacy and sanctity of the collected personal information; and, (xii) the procedure for recourse, including identities and contact details of ombudsmen and grievance redress officers, in relation to any misuse of the collected personal information.

(b) Principle of Consent

Personal information must only be collected once the person to whom it pertains has consented to its collection. Such consent must be informed, explicit and freely given. Informed consent is conditional upon the fulfilment of the principle of notice/prior knowledge set out in the preceding paragraph. Consent must be expressly given: the person to whom the personal information to be collected pertains must grant explicit and affirmative permission to collect personal information; and, he must know, or be made aware, of any action of his that will constitute such consent. Consent that is obtained using threats or coercion, such as a threat of refusal to provide services, does not constitute valid consent. Any person whose personal information has been consensually collected may, at any time, withdraw such consent for any or no reason and, consequently, his personal information, including his identity, must be destroyed. When consent is withdrawn in this manner, the person who withdrew consent may be denied any service that requires the use of the personal information for which consent was withdrawn.

Personal information must only be collected when, where and to the extent necessary. Necessity cannot be established in general; there must be a specific nexus connecting the content of the personal information to the purpose of its collection. Only the minimal amount of personal information necessary to achieve the purpose should be collected. If a purpose exists that warrants a temporally specific, or an event-dependent, collection of personal information, such a collection must only take place when that specific time is reached or that event occurs. If the purpose of personal information is dependent upon, or specific to, a geographical area or location, that personal information must only be collected from that geographical area or location.

(d) Right to be Forgotten / Principle of Purpose Limitation

Once collected, personal information must be processed, used, stored or otherwise only for the purpose for which it was collected. If the purpose for which personal information was collected is achieved, the collected personal information must be destroyed and the person to whom that personal information pertained must be ‘forgotten.’ Similarly, collected personal information must be destroyed and the person to whom it pertained ‘forgotten’ if the purpose for which it was collected expires or ceases to exist. Personal information collected for a certain purpose cannot be used or stored for another purpose nor even used or stored for a similar purpose to arise in the future without the express and informed consent of the person from whom it was collected in accordance with the principles of notice/prior knowledge and consent.

(e) Right of Access

All persons from whom personal information is collected have a right to access that personal information at any point following its collection to check its accuracy, make corrections or modifications and have destroyed that which is inaccurate. Where personal information of more than one person is held in an aggregated form such that affording one person access to it may endanger the right to privacy of another person, the entity holding the aggregated personal information must, to the best of its ability, identify the portion of the personal information that pertains to the person seeking access and make it available to him. All persons from whom personal information is collected must be given copies of their personal information upon request.

(f) Principle regarding Disclosure

Personal information, once collected, must never be disclosed. However, if the person to whom certain personal information pertains consents to its disclosure in accordance with the principle of consent after he has been made aware of the proposed disclosee and other details related to the personal information in accordance with the principle of notice/prior knowledge, the personal information may be disclosed. Consent to a disclosure of this nature may be obtained even during collection of the personal information if the person to whom it pertains expressly consents to its future disclosure. Notwithstanding the rule against disclosure and the consent exception to the rule, personal information may be disclosed to the police or other law enforcement agencies on certain absolute conditions. Since the protection of personal information is a policy imperative, the conditions permitting its disclosure must be founded on a clear and serious law enforcement need that overrides the right to privacy; and, in addition, the disclosure conditions must be strict, construed narrowly and, in the event of ambiguity, interpreted to favour the individual right to privacy. Therefore, (i) there must be a demonstrable need to access personal information in connection with a criminal offence; (ii) only that amount of personal information that is sufficient to satisfy the need must be disclosed; and, (iii), since such a disclosure is non-consensual, it must follow a minimal due process regime that at least immediately notifies the person concerned and affords him the right to protest the disclosure.

(g) Principle of Security

All personal information must be protected to absolutely maintain its sanctity, confidentiality and privacy by implementing safeguards against loss, unauthorised access, destruction, use, processing, storage, modification, de-anonymisation, unauthorised disclosure and other risks. Such a level of protection must include physical, administrative and technical safeguards that are constantly and consistently audited. Protection measures must be revised to incorporate stronger measures and mechanisms as and when they arise.

(h) Principle of Transparency / ‘Open-ness’

All practices, procedures and policies governing personal information must be made available to the person to whom that personal information pertains in a simple and easy-to-understand manner. This includes policies relating to the privacy, security and disclosure of that personal information. If an entity that seeks to collect personal information does not have these policies, it must immediately draft, publish and display such policies in addition to making them available to the person from whom it seeks to collect personal information before the collection can begin.

(i) Principle of Accountability

Liability attaches to the possession of personal information of another person. Since rights and duties, such as those in relation to privacy of personal information, are predicated on accountability, this principle binds all entities that seek to possess personal information of another person. As a result, an entity seeking to collect, use, process, store or disclose personal information of another person is accountable to that person for complying with all these principles as well as the provisions of any law. The misuse of personal information causes harm to the person to whom it pertains to attract and civil and criminal penalties.

2.3 These principles are reflective of internationally accepted best practices to form the basis upon which Indian legislation to protect personal information should be drafted. The Sensitive Personal Data Rules, in their current form, fall far short of the achieving the substantive intent of these principles. CIS submits that either (i) the Sensitive Personal Data Rules should be replaced with new and comprehensive legislation that speaks to the objectives and purpose of these principles, or (ii) the Sensitive Personal Data Rules are radically modified by amendment to bring Indian law to par with world standards. Nevertheless, without prejudice to the preceding submission, CIS offers the following clause-by-clause comments on the Sensitive Personal Data Rules:

III Clause-by-Clause Analysis and Comments

Rule 2 - Definitions

3.1.1 Rule 2(1)(b) of the Sensitive Personal Data Rules defines “biometrics” as follows:

"Biometrics" means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', "facial patterns', 'hand measurements' and 'DNA' for authentication purposes.

3.1.2 Firstly, the Sensitive Personal Data Rules do not use the term “biometrics.” Instead, rule 3(vi), which defines sensitive personal data, uses the term “biometric information.” It is unclear why rule 2(1)(b) provides a definition of the technologies by which information is obtained instead of clearly identify the information that constitutes sensitive personal data. This is one of several examples of poor drafting of the Sensitive Personal Data Rules. Secondly, biometric information is not used only for authentication; there are many other reasons for collecting and using biometric information. For instance, DNA is widely collected and used for medical research. Restricting the application of the definition to only that biometric information that is used for authentication is illogical to deprive the Rules of meaning.

3.1.3 Therefore, it is proposed that rule 2(1)(b) be re-drafted to read as follows:

““Biometric information” means any information relating to the physical, physiological or behavioural characteristics of an individual which enable their unique identification including, but not limited to, fingerprints, retinas, irises, voice patterns, facial patterns, Deoxyribonucleic acid (DNA) and genetic information.”

3.2.1 Rule 2(1)(c) of the Sensitive Personal Data Rules defines “body corporate” in accordance with the definition provided in clause (i) of the Explanation to section 43A of the Information Technology Act, 2000 (“IT Act”) as follows:

“body corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities.

3.2.2 Firstly, this definition of a body corporate is poorly drafted to extend beyond incorporated entities to bring within its ambit even unincorporated professional organisations such as societies and associations which, by their very nature, are not bodies corporate.[4]

This is an arbitrary reinterpretation of the fundamental principles of company law. As it presently stands, this peculiar definition will extend to public and private limited companies, including incorporated public sector undertakings, ordinary and limited liability partnerships, firms, sole proprietorships, societies and associations; but, will exclude public and private trusts[5] and unincorporated public authorities. Hence, whereas non-governmental organisations that are organised as societies will fall within the definition of “body corporate,” those that are organised as trusts will not. Similarly, incorporated public authorities such as Delhi Transport Corporation and even municipal corporations such as the Municipal Corporation of Delhi will fall within the definition of “body corporate” but unincorporated public authorities such as the New Delhi Municipal Council and the Delhi Development Authority will not. This is a prima facie violation of the fundamental right of all persons to be treated equally under the law guaranteed by Article 14 of the Constitution of India.

3.2.3 Secondly, whereas state entities and public authorities often collect and use sensitive personal data, with the exception of state corporations the Sensitive Personal Data Rules do not apply to the state. This means that the procedural safeguards offered by the Rules do not bind the police and other law enforcement agencies allowing them a virtually unfettered right to collect and use, even misuse, sensitive personal data without consequence. Further, state entities such as the Unique Identification Authority of India or the various State Housing Boards which collect, handle, process, use and store sensitive personal data are not covered by the Rules and remain unregulated. It is not possible to include these unincorporated entities within the definition of a body corporate; but, in pursuance of the principles set out in paragraph 2.2 of this submission, the Rules should be expanded to all state entities, whether incorporated or not.

3.2.4 Therefore, it is proposed that rule 2(1)(c) be re-drafted to read as follows:

““body corporate” means the body corporate defined in sub-section (7) of section 2 read with section 3 of the Companies Act, 1956 (1 of 1956) and includes those entities which the Central Government may, by notification in the Official Gazette, specify in this behalf but shall not include societies registered under the Societies Registration Act, 1860 (21 of 1860), trusts created under the Indian Trusts Act, 1882 (2 of 1882) or any other association of individuals that is not a legal entity apart from the members constituting it and which does not enjoy perpetual succession.”

Further, it is proposed that the Sensitive Personal Data Rules be re-drafted to apply to societies registered under the Societies Registration Act, 1860 and trusts created under the Indian Trusts Act, 1882 in a manner reflective of their distinctiveness from bodies corporate.

Furthermore, it is proposed that the Sensitive Personal Data Rules be re-drafted to apply to public authorities and the state as defined in Article 12 of the Constitution of India.

3.3.1 Rule 2(1)(d) of the Sensitive Personal Data Rules defines “cyber incidents” as follows:

"Cyber incidents" means any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly applicable security policy resulting in unauthorised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation.

3.3.2 Before examining the provisions of this clause, CIS questions the need for this definition. The term “cyber incidents” is used only once in these rules: the proviso to rule 6(1) which specifies the conditions upon which personal information or sensitive personal data may be disclosed to the police or other law enforcement authorities without the prior consent of the person to whom the information pertains. An analysis of rule 6(1) is contained at paragraphs 3.11.1 – 3.11.4 of this submission. Firstly, personal information and sensitive personal data should only be disclosed in connection with the prevention, investigation and prosecution of an existing offence. Offences cannot be created in the definitions clause of sub-statutory rules, they can only be created by a parent statute or another statute. Secondly, the scope and content of “cyber incidents” are already covered by section 43 of the IT Act. When read with section 66 of IT Act, an offence is created that is larger than the scope of the term “cyber incidents” to render this definition redundant.

3.3.3 Therefore, it is proposed that the definition of “cyber incidents” in rule 2(1)(d) be deleted and the remaining clauses in sub-rule (1) of rule 2 be accordingly renumbered.

3.4.1 Rule 2(1)(g) of the Sensitive Personal Data Rules defines “intermediary” in accordance with the definition provided in section 2(1)(w) of the IT Act. However, the term “intermediary” is not used anywhere in the Sensitive Personal Data Rules and so its definition is redundant. This is another instance of careless drafting of the Sensitive Personal Data Rules.

3.4.2 Therefore, it is proposed that the definition of “intermediary” in rule 2(1)(g) be deleted and the remaining clauses in sub-rule (1) of rule 2 be accordingly renumbered.

Rule 3 - Sensitive Personal Data

3.5.1 Rule 3 of the Sensitive Personal Data Rules provides an aggregated definition of sensitive personal data as follows:

Sensitive personal data or information of a person means such personal information which consists of information relating to –

(i) password;

(ii) financial information such as Bank account or credit card or debit card or other payment instrument details ;

(iii) physical, physiological and mental health condition;

(iv) sexual orientation;

(v) medical records and history;

(vi) Biometric information;

(vii) any detail relating to the above clauses as provided to body corporate for providing service; and

(viii) any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise:

provided that, any information that is freely available or accessible in public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules.

3.5.2 In accordance with the principle that certain kinds of personal information are particularly sensitive, due to the intimate nature of their content in relation to the right to privacy, to invite privileged protective measures regarding the collection, handling, processing, use and storage of such sensitive personal data, it is surprising that rule 3 does not protect electronic communication records of individuals. Emails and chat logs as well as records of internet activity such as online search histories are particularly vulnerable to abuse and misuse and should be accorded privileged protection.

3.5.3 Therefore, it is proposed that rule 3 be re-drafted to read as follows:

“Sensitive personal data or information of a person means personal information as to that person’s –

(i) passwords and encryption keys;

(ii) financial information including, but not limited to, information relating to his bank accounts, credit cards, debit cards, negotiable instruments, debt and other payment details;

(iii) physical, physiological and mental condition;

(iv) sexual activity and sexual orientation;

(v) medical records and history;

(vi) biometric information; and

(vii) electronic communication records including, but not limited to, emails, chat logs and other communications made using a computer;

and shall include any data or information related to the sensitive personal data or information set out in this rule that is provided to, or received by, a body corporate.

Provided that, any information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules.”

Rule 4 - Privacy and Disclosure Policy

3.6.1 Rule 4 of the Sensitive Personal Data Rules, which obligates certain bodies corporate to publish privacy and disclosure policies for personal information, states:

Body corporate to provide policy for privacy and disclosure of information. – (1) The body corporate or any person who on behalf of body corporate collects, receives, possess, stores, deals or handle information of provider of information, shall provide a privacy policy for handling of or dealing in personal information including sensitive personal data or information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract. Such policy shall be published on website of body corporate or any person on its behalf and shall provide for –

(i) Clear and easily accessible statements of its practices and policies;

(ii) type of personal or sensitive personal data or information collected under rule 3;

(iii) purpose of collection and usage of such information;

(iv) disclosure of information including sensitive personal data or information as provided in rule 6;

(v) reasonable security practices and procedures as provided under rule 8.

3.6.2 This rule is very badly drafted, contains several discrepancies and is legally imprecise. Firstly, this rule is overbroad to bind all bodies corporate that receive and use information, as opposed to “personal information” or “sensitive personal data.” All bodies corporate receive and use information, even a vegetable seller uses information relating to vegetables and prices; but, not all bodies corporate receive and use personal information and even fewer bodies corporate receive and use sensitive personal data. The application of this provision should turn on the reception and use of personal information, which includes sensitive personal data, and not simply information. Secondly, although this rule only applies when a provider of information provides information, the term “provider of information” is undefined. It may mean any single individual who gives his personal information to a body corporate, or it may even mean another entity that outsources or subcontracts work that involves the handling of personal information. This lack of clarity compromises the enforceability of this rule. The government’s press release of 24 August 2011 acknowledged this error but since it is impossible, not to mention unconstitutional, for a statutory instrument like these Rules to be amended, modified, interpreted or clarified by a press release, CIS is inclined to ignore the press release altogether. It is illogical that privacy policies not be required when personal information is directly given by a single individual. This rule should bind all bodies corporate that receive and use personal information irrespective of the source of the personal information. Thirdly, it is unclear whether separate privacy policies are required for personal information and for sensitive personal data. There is a distinction between personal information and sensitive personal data and since these Sensitive Personal Data Rules deal with the protection of sensitive personal data, this rule 4 should unambiguously mandate the publishing of privacy policies in relation to sensitive personal data. Any additional requirement for personal information must be set out to clearly mark its difference from sensitive personal data. Fourthly, because of sloppy drafting, the publishing duties of the body corporate in respect of any sensitive personal data are unclear. For example, the phrase “personal or sensitive personal data or information” used in clause (ii) is meaningless since “personal information” and “sensitive personal data or information” are defined terms.

3.6.3 Therefore, it is proposed that rule 3 be re-drafted to read as follows:

“Duty to publish certain policies. – (1) Any body corporate that collects, receives, possesses, stores, deals with or handles personal information or sensitive personal data from any source whatsoever shall, prior to collecting, receiving, possessing, storing, dealing with or handling such personal information or sensitive personal data, publish and prominently display the policies listed in sub-rule (2) in relation to such personal information and sensitive personal data.

(2) In accordance with sub-rule (1) of this rule, all bodies corporate shall publish separate policies for personal information and sensitive personal data that clearly state –

(i) the meanings of personal information and sensitive personal data in accordance with these rules;

(ii) the practices and policies of that body corporate in relation to personal information and sensitive personal data;

(iii) descriptive details of the nature and type of personal information and sensitive personal data collected, received, possessed, stored or handled by that body corporate;

(iv) the purpose for which such personal information and sensitive personal data is collected, received, possessed, stored or handled by that body corporate;

(v) the manner and conditions upon which such personal information and sensitive personal data may be disclosed in accordance with rule 6 of these rules; and

(vi) the reasonable security practices and procedures governing such personal information and sensitive personal data in accordance with rule 8 of these rules.”

Rule 5 - Collection of Information

3.7.1 Rule 5(1) of the Sensitive Personal Data Rules lays down the requirement of consent before personal information can be collected as follows:

Body corporate or any person on its behalf shall obtain consent in writing through letter or Fax or email from the provider of the sensitive personal data or information regarding purpose of usage before collection of such information.

3.7.2 Firstly, the principle and requirement of consent is of overriding importance when collecting personal information, which includes sensitive personal data. Pursuant to the principles laid down in paragraph 2.2 of this submission, consent must be informed, explicit and freely given. Since sub-rule (3) of rule 5 attempts to secure the informed consent of persons giving personal information, this sub-rule must establish that all personal information can only be collected upon explicit consent that is freely given, irrespective of the medium and manner in which it is given. Secondly, it may be noted that sub-rule (1) only applies to sensitive personal data and not to other personal information that is not sensitive personal data. This is ill advised. Thirdly, this sub-rule relating to actual collection of personal information should follow a provision establishing the principle of necessity before collection can begin. The principle of necessity is currently laid down in sub-rule (2) of rule 5 which should be re-numbered to precede this sub-rule relating to collection.

3.7.3 Therefore, it is proposed that rule 5(1) be re-numbered to sub-rule (2) of rule 5 and re-drafted to read as follows:

“A body corporate seeking to collect personal information or sensitive personal data of a person shall, prior to collecting that personal information or sensitive personal data, obtain the express and informed consent of that person in any manner, and through any medium, that may be convenient but shall not obtain such consent through threat, duress or coercion.”

3.8.1 Rule 5(2) of the Sensitive Personal Data Rules sets out the principle of necessity governing the collection of personal information as follows:

Body corporate or any person on its behalf shall not collect sensitive personal data or information unless —

(a) the information is collected for a lawful purpose connected with a function or activity of the body corporate or any person on its behalf; and

(b) the collection of the sensitive personal data or information is considered necessary for that purpose.

3.8.2 Firstly, before allowing a body corporate to collect personal information, which includes sensitive personal data, the law should strictly ensure that the collection of such personal information is necessary. Necessity cannot be established in general, there must be a nexus connecting the personal information to the purpose for which the personal information is sought to be collected. This important sub-rule sets out the principles upon which personal information can be collected; and, should therefore be the first sub-rule of rule 5. Secondly, this sub-rule only applies to sensitive personal data instead of all personal information. It is in the public interest that the principle of necessity applies to all personal information, including sensitive personal data.

3.8.3 Therefore, it is proposed that rule 5(2) be re-numbered to sub-rule (1) of rule 5 and re-drafted to read as follows:

“No body corporate shall collect any personal information or sensitive personal data of a person unless it clearly establishes that –

(a) the personal information or sensitive personal data is collected for a lawful purpose that is directly connected to a function or activity of the body corporate; and

(b) the collection of the personal information or sensitive personal data is necessary to achieve that lawful purpose.”

3.9.1 Rule 5(3) of the Sensitive Personal Data Rules attempts to create an informed consent regime for the collection of personal information as follows:

While collecting information directly from the person concerned, the body corporate or any person on its behalf snail take such steps as are, in the circumstances, reasonable to ensure that the person concerned is having the knowledge of —

(a) the fact that the information is being collected;

(b) the purpose for which the information is being collected;

(c) the intended recipients of the information; and

(d) the name and address of —

(i) the agency that is collecting the information; and

(ii) the agency that will retain the information.

3.9.2 Firstly, this sub-rule (3) betrays the carelessness of its drafters by bringing within its application any and all information collected by a body corporate from a person instead of only personal information or sensitive personal data. Secondly, this provision is crucial to establishing a regime of informed consent before personal information is given by a person to a body corporate. For consent to be informed, the person giving consent must be made aware of not only the collection of that personal information or sensitive personal data, but also the purpose for which it is being collected, the manner in which it will be used, the intended recipients to whom it will be sent or made accessible, the duration for which it will be stored, the conditions upon which it may be disclosed, the conditions upon which it may be destroyed as well as the identities of all persons who will collect, receive, possess, store, deal with or handle that personal information or sensitive personal data. Thirdly, the use of the phrase “take such steps as are, in the circumstances, reasonable” dilutes the purpose of this provision and compromises the establishment of an informed consent regime. Instead, the use of the term “reasonable efforts”, which has an understood meaning in law, will suffice to protect individuals while giving bodies corporate sufficient latitude to conduct their business.

3.9.3 Therefore, it is proposed that rule 5(3) be re-drafted to read as follows:

“A body corporate seeking to collect personal information or sensitive personal data of a person shall, prior to such collection, make reasonable efforts to inform that person of the following details in respect of his personal information or sensitive personal data –

(a) the fact that it is being collected;

(b) the purpose for which it is being collected;

(d) the intended recipients to whom it will be sent or made available;

(e) the duration for which it will be stored;

(f) the conditions upon which it may be disclosed;

(g) the conditions upon which it may be destroyed; and

(h) the identities of all persons and bodies corporate who will collect, receive, possess, store, deal with or handle it.”

3.10.1 Rule 5(4) of the Sensitive Personal Data Rules lays down temporal restrictions to the retention of personal information:

Body corporate or any person on its behalf holding sensitive personal data or information shall not retain that information for longer than is required for the purposes for which the information may lawfully be used or is otherwise required under any other law for the time being in force.

3.10.2 Since this sub-rule (4) only applies to sensitive personal data instead of all personal information, bodies corporate are permitted to hold personal information of persons that is not sensitive personal data for as long as they like even after the necessity that informed the collection of that personal information expires and the purpose for which it was collected ends. This is a dangerous provision that deprives the owners of personal information of the ability to control its possession to jeopardise their right to privacy. The Sensitive Personal Data Rules should prescribe a temporal limit to the storage of all personal information by bodies corporate.

3.10.3 Therefore, it is proposed that rule 5(4) be re-drafted to read as follows:

“No body corporate shall store, retain or hold personal information or sensitive personal data for a period longer than is required to achieve the purpose for which that personal information or sensitive personal data was collected.”

Rule 6 - Disclosure of Information

3.11.1 Rule 6(1) of the Sensitive Personal Data Rules, which deals with the crucial issue of disclosure of personal information, states:

Disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information, who has provided such information under lawful contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation:

Provided that the information shall be shared, without obtaining prior consent from provider of information, with Government agencies mandated under the law to obtain information including sensitive personal data or information for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences. The Government agency shall send a request in writing to the body corporate possessing the sensitive personal data or information stating clearly the purpose of seeking such information. The Government agency shall also state that the information so obtained shall not be published or shared with any other person.

3.11.2 In addition to errors and discrepancies in drafting, this sub-rule contains wide and vague conditions of disclosure of sensitive personal data to gravely impair the privacy rights and personal liberties of persons to whom such sensitive personal data pertains. A summary of drafting errors and discrepancies follows: Firstly, this sub-rule only applies to sensitive personal data instead of all personal information. The protection of personal information that is not sensitive personal data is an essential element of the right to privacy; hence, prohibiting bodies corporate from disclosing personal information at will is an important public interest prerogative. Secondly, the use of the phrase “any third party” lends vagueness to this provision since the term “third party” has not been defined. Thirdly, the repeated use of the undefined phrase “provider of information” throughout these Rules and in this sub-rule is confusing since, as pointed out in paragraph 3.6.2 of this submission, it could mean either or both of the single individual who consents to the collection of his personal information or another entity that transfers personal information to the body corporate.

3.11.3 Further, the conditions upon which bodies corporate may disclose personal information and sensitive personal data without the consent of the person to whom it pertains are dangerously wide. Firstly, the disclosure of personal information and sensitive personal data when it is “necessary for compliance of a legal obligation” is an extremely low protection standard. The law must intelligently specify the exact conditions upon which disclosure sans consent is possible; since the protection of personal information is a public interest priority, the conditions upon which it may be disclosed must outweigh this priority to be significant and serious enough to imperil the nation or endanger public interest. The disclosure of personal information and sensitive personal data for mere compliance of a legal obligation, such as failure to pay an electricity bill, is farcical. Secondly, the proviso sets out the conditions upon which the state, through its law enforcement agencies, may access personal information and sensitive personal data without the consent of the person to whom it pertains. Empowering the police with access to personal information can serve a public good if, and only if, it results in the prevention or resolution of crime; if not, this provision will give the police carte blanche to misuse and abuse this privilege. Hence, personal information should only be disclosed for the prevention, investigation and prosecution of an existing criminal offence. Thirdly, the definition and use of the term “cyber incidents” is unnecessary because section 43 of the IT Act already lists all such incidents. In addition, when read with section 66 of the IT Act, there emerges a clear list of offences to empower the police to seek non-consensual disclosure of personal information to obviate the need for any further new terminology. In sum, with regard to the non-consensual disclosure of personal information for the purposes of law enforcement: a demonstrable need to access personal information to prevent, investigate or prosecute crime must exist; only that amount of personal information sufficient to satisfy the need must be disclosed; and, finally, no disclosure may be permitted without clearly laid down procedural safeguards that fulfil the requirements of a minimal due process regime.

3.11.4 Therefore, it is proposed that rule 6(1) be re-drafted to read as follows:

“No body corporate shall disclose any personal information or sensitive personal data to anyone whosoever without the prior express consent of the person to whom the personal information or sensitive personal data to be disclosed pertains.

Provided that if the personal information or sensitive personal data was collected pursuant to an agreement that expressly authorises the body corporate to disclose such personal information or sensitive personal data, and if the person to whom the personal information or sensitive personal data pertains was aware of this authorisation prior to such collection, the body corporate may disclose the personal information or sensitive personal data without obtaining the consent of the person to whom it pertains in the form and manner specified in such agreement.

Provided further that if a reasonable threat to national security, defence or public order exists, or if the disclosure of personal information or sensitive personal data is necessary to prevent, investigate or prosecute a criminal offence, the body corporate shall, upon receiving a written request from the police or other law enforcement authority containing the particulars and details of the personal information or sensitive personal data to be disclosed, disclose such personal information or sensitive personal data to such police or other law enforcement authority without the prior consent of the person to whom it pertains.”

3.12.1 Rule 6(2) of the Sensitive Personal Data Rules creates an additional disclosure mechanism:

Notwithstanding anything contain in sub-rule (1), any sensitive personal data on Information shall be disclosed to any third party by an order under the law for the time being in force.

3.12.2 This sub-rule is overbroad to enable anyone’s sensitive personal data to be disclosed to any other person without the application of any standards of necessity, proportionality or due process and without the person to whom the sensitive personal data pertains having any recourse or remedy. Such provisions are the hallmarks of authoritarian and police states and have no place in a liberal democracy. For instance, the invocation of this sub-rule will enable a police constable in Delhi to exercise unfettered power to access the biometric information or credit card details of a politician in Kerala since an order of a policeman constitutes “an order under the law”. Pursuant to our submission in paragraph 3.11.4, adequate measures exist to secure the disclosure of personal information or sensitive public data in the public interest. The balance of convenience between privacy and public order has already been struck. This sub-rule should be removed.

3.12.3 Therefore, it is proposed that rule 6(2) be deleted and the remaining sub-rules in rule 6 be accordingly renumbered.

3.13.1 Rule 6(4) of the Sensitive Personal Data Rules states:

The third party receiving the sensitive personal data or information from body corporate or any person on its behalf under sub-rule (1) shall not disclose it further.

3.13.2 Firstly, as mentioned elsewhere in this submission, the phrase “third party” has not been defined. This is a drafting discrepancy that must be rectified. Secondly, this sub-rule only encompasses sensitive personal data and not other personal information that is not sensitive personal data. Thirdly, it may be necessary, in the interests of business or otherwise, for personal information or sensitive personal data that has been lawfully disclosed to a third person to be disclosed further if the person to whom that personal information consents to it.

3.13.3 Therefore, it is proposed that rule 6(4) be re-drafted to read as follows:

“Personal information and sensitive personal data that has been lawfully disclosed by a body corporate to a person who is not the person to whom such personal information or sensitive personal data pertains in accordance with the provisions of these rules may be disclosed further upon obtaining the prior and express consent of the person to whom it pertains.”

Rule 7 - Transfer of Information

3.14.1 Rule 7 of the Sensitive Personal Data Rules sets out the conditions upon which bodies corporate may transfer personal information or sensitive personal data to other bodies corporate in pursuance of a business arrangement:

A body corporate or any person on its behalf may transfer sensitive personal data or information including any information, to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by the body corporate as provided for under these Rules. The transfer may be allowed only if it is necessary for the performance of the lawful contract between the body corporate or any person on its behalf and provider of information or where such person has consented to data transfer.

3.14.2 This provision allows personal information and sensitive personal data to be transferred across international borders to other bodies corporate in pursuance of a business agreement. The transfer of such information is a common feature of international commerce in which Indian information technology companies participate with significant success. Within India too, personal information and sensitive personal data is routinely transferred between companies in furtherance of an outsourced business model. Besides affecting ease of business, the sub-rule also affects the ability of persons to control their personal information and sensitive personal data. However, the sub-rule has been poorly drafted: firstly, the simultaneous use of the phrases “provider of information” and “such person” is imprecise and misleading; secondly, the person to whom any personal information or sensitive personal data pertains must pre-consent to the transfer of such information.

3.14.3 Therefore, it is proposed that rule 7 be re-drafted to read as follows:

“A body corporate may transfer any personal information or sensitive personal data in its possession to another body corporate, whether located in India or otherwise, if the transfer is pursuant to an agreement that binds the other body corporate to same, similar or stronger measures of privacy, protection, storage, use and disclosure of personal information and sensitive personal data as are contained in these rules, and if the express and informed consent of the person to whom the personal information or sensitive personal data pertains is obtained prior to the transfer.”

Rule 8 - Reasonable Security Practices

3.15.1 Following rule 8(1) of the Sensitive Personal Data Rules that prescribes reasonable security practices and procedures necessary for protecting personal information and sensitive personal data, rule 8(2) asserts that the international standard ISO/IEC 27001 fulfils the protection standards required by rule 8(1):

The international Standard IS/ISO/IEC 27001 on "Information Technology - Security Techniques - Information Security Management System - Requirements" is one such standard referred to in sub-rule (1).

3.15.2 ISO/IEC 27001 is an information security management system standard that is prescribed by the International Organisation for Standardisation and the International Electrotechnical Commission. CIS raises no objection to the content or quality of the ISO/IEC 27001 standard. However, to achieve ISO/IEC 27001 compliance and certification, one must first purchase a copy of the standard. A copy of the ISO/IEC 27001 standard costs approximately Rs. _____/-. The cost of putting in place the protective measures required by the ISO/IEC 27001 standard are higher: these include the cost of literature and training, the cost of external assistance, the cost of technology, the cost of employees’ time and the cost of certification.

3.15.3 Therefore, to bring these standards within the reach of small and medium-sized Indian bodies corporate, an appropriate Indian authority, such as the Bureau of Indian Standards, should re-issue affordable standards that are equivalent to ISO/IEC 27001.

IV The Press Release of 24 August 2011

4.1 The shoddy drafting of the Sensitive Personal Data Rules resulted in national and international confusion about its interpretation. However, instead of promptly correcting the embarrassingly numerous errors in the Rules, the Department of Information Technology of the Ministry of Communications and Information Technology chose to issue a press release on 24 August 2011 that was published on the website of the Press Information Bureau. The content of that press release is brought to the attention of the Committee of Subordinate Legislation as follows:

Clarification on Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 Under Section 43A of the Information Technology ACT, 2000.

Press Note

The Department of Information Technology had notified Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 43A of the Information Technology Act, 2000 on 11.4.2011 vide notification no. G.S.R. 313(E).

These rules are regarding sensitive personal data or information and are applicable to the body corporate or any person located within India. Any such body corporate providing services relating to collection, storage, dealing or handling of sensitive personal data or information under contractual obligation with any legal entity located within or outside India is not subject to the requirement of Rules 5 & 6. Body corporate, providing services to the provider of information under a contractual obligation directly with them, as the case may be, however, is subject to Rules 5 & 6. Providers of information, as referred to in these Rules, are those natural persons who provide sensitive personal data or information to a body corporate. It is also clarified that privacy policy, as prescribed in Rule 4, relates to the body corporate and is not with respect to any particular obligation under any contract. Further, in Rule 5(1) consent includes consent given by any mode of electronic communication.

Ministry of Communications & Information Technology (Dept. of Information Technology)

Press Information Bureau, Government of India, Bhadra 2, 1933, August 24, 2011

SP/ska
(Release ID :74990)

4.2 It is apparent from a plain reading of the text that this press release seeks to re-interpret the application of rules 5 and 6 of the Sensitive Personal Data Rules insofar as they apply to Indian bodies corporate receiving personal information collected by another company outside India. Also, it seeks to define the term “providers of information” to address the confusion created by the repeated use this term in the Rules. Further, it re-interprets the scope and application of rule 4 relating to duty of bodies corporate to publish certain policies. Furthermore, it seeks to amend the provisions of rule 5(1) relating to manner and medium of obtaining consent prior to collecting personal information.

4.3 At the outset, it must be understood that a press release is not valid law. According to Article 13(3) of the Constitution of India,

...law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law.

Law includes orders made in exercise of a statutory power as also orders and notifications made in exercise of a power conferred by statutory rules.

[See, Edward Mills AIR 1955 SC 25 at pr. 12, Babaji Kondaji Garad 1984 (1) SCR 767 at pp. 779-780 and Indramani Pyarelal Gupta 1963 (1) SCR 721 at pp. 73-744]

Sub-delegated orders, made in exercise of a power conferred by statutory rules, cannot modify the rules.

[See, Raj Narain Singh AIR 1954 SC 569 and Re Delhi Laws Act AIR 1951 SC 332]

Therefore, press releases, which are not made or issued in exercise of a delegated or sub-delegated power are not “law” and cannot modify statutory rules.

V Summary

5.1 CIS submits that the following provisions of the Sensitive Personal Data Rules be amended or annulled

Rule 2(1)(b);
Rule 2(1)(c);
Rule 2(1)(d);
Rule 2(1)(g);
Rule 3;
Rule 4(1);
Rule 5(1);
Rule 5(2);
Rule 5(3);
Rule 5(4);
Rule 6(1);
Rule 6(1) Proviso;
Rule 6(2);
Rule 6(4);
Rule 7; and
Rule 8.

5.2 CIS submits that the Committee on Subordinate Legislation should take a serious view of the press release issued by the Department of Information Technology of the Ministry of Communications and Information Technology on 24 August 2011.

5.3 CIS submits that in exercise of the powers granted to the Committee on Subordinate Legislation under Rules 317 and 320 of the Lok Sabha Rules of Procedure, the provisions of the Sensitive Personal Data Rules listed in the preceding paragraph 5.1 should be annulled; and, the Committee may be pleased to consider and recommend as an alternative the amendments proposed by CIS in this submission.

5.4 CIS thanks the Committee on Subordinate Legislation for the opportunity to present this submission and reiterates its commitment to supporting the Committee with any clarification, question or other requirement it may have.

[1]. See generally, Kharak Singh AIR 1963 SC 1295, Gobind (1975) 2 SCC 148, R. Rajagopal (1994) 6 SCC 632, People’s Union for Civil Liberties (1997) 1 SCC 301 and Canara Bank (2005) 1 SCC 496.

[2]. See infra pr. 4.3.

[3]. See, for comparison, Directive 95/46/EC of 24 October 1995 of the European Parliament and Council, the Data Protection Act, 1998 of the United Kingdom and the Proposed EU Regulation on on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).

[4].See generally, Board of Trustees of Ayurvedic College AIR 1962 SC 458 and S. P. Mittal AIR 1983 SC 1.

[5]. See generally, W. O. Holdsworth AIR 1957 SC 887 and Duli Chand AIR 1984 Del 145.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011

Comments on the Information Technology (Guidelines for Cyber Cafe) Rules, 2011

bhairav — 2013-07-12T12:15:30Z

Bhairav Acharya on behalf of the Centre for Internet and Society submitted the following comments on the Information Technology (Guidelines for Cyber Cafe Rules), 2011.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 This submission presents preliminary clause-by-clause comments from the Centre for Internet and Society (“CIS”) on the Information Technology (Guidelines for Cyber Café) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 315(E) on 11 April 2011 (“Cyber Café Rules”).

1.2 This submission is for the consideration of the Committee on Subordinate Legislation of the Fifteenth Lok Sabha. In its 21^st Report, the Committee on Subordinate Legislation presciently noted that:

“…statutory rules ought to be framed and notified not only in time but utmost care and caution should also be exercised in their formulation and finalization so as to get rid of any avoidable discrepancies. As far as possible, the aim should be to prevent needless litigation arising subsequently from badly framed rules.” [See the 21^st Report of the Lok Sabha Committee on Subordinate Legislation presented on 16 December 2011 at pr. 2.1]

Unfortunately, the Cyber Café Rules have been poorly drafted, contain several discrepancies and, more seriously, may impinge upon constitutionally guaranteed freedoms of Indian citizens. The attention of the Committee on Subordinate Legislation is accordingly called to the following provisions of the Cyber Cafe Rules:

II Validity of the Cyber Cafe Rules

2.1 The Cyber Cafe Rules are made in exercise of powers granted under section 87(2)(zg) read with section 79(2) of the Information Technology Act, 2000 (“IT Act”). Read together, these delegated powers invest the executive with the power to frame rules for exempting cyber cafes from liability for any third party information, data or communication link if they comply with Central Government guidelines. The empowerment made by section 87(2)(zg) of the IT Act pertains to:

“the guidelines to be observed by the intermediaries under sub-section (2) of section 79”

Sections 79 (1) and (2) state:

“79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.”

2.2 Hence, section 79(2) permits the Central Government to prescribe guidelines for cyber cafes to comply with in order to claim the general exemption from liability granted by section 79(1) of the IT Act. The Cyber Cafe Rules constitute those guidelines. However, the liability from which cyber cafes may be exempted extends only to “any third party information, data, or communication link made available or hosted” by users of cyber cafes. In other words, the liability of cyber cafes (the exemption from which is supposed to be controlled by the Cyber Cafe Rules) is only in respect of the information, data or communication links of their users. No liability is assigned to cyber cafes for failing to collect identity information of their users. Therefore, the Cyber Cafe Rules made under the power granted by section 79(2)(c) of the IT Act cannot make cyber cafes liable for user identification information. In accordance with sections 79(2)(c) and 79(1) read with section 87(2)(zg) of the IT Act, the Cyber Cafe Rules may legitimately deal with the duties of cyber cafes in respect of any information, data or communication links of their users, but not in respect of user identification. However, the thrust of the Cyber Cafe Rules, and the pith of their provisions, is concerned solely with registering and identifying cyber cafe users including collecting their personal information, photographing them, storing their personal information and reporting these non-content related details to the police. There is even a foray into interior design to dictate the height limits of furniture inside cyber cafes. All of this may be a legitimate governance concern, but it cannot be undertaken by the Cyber Cafe Rules. To the extent that the Cyber Cafe Rules deal with issues beyond those related to any information, data or communication links of cyber cafe users, the Rules exceed the permissible limit of delegated powers under section 79(2) and 87(2)(zg) of the IT Act and, consequently, are ultra vires the IT Act.

III Clause-by-Clause Analysis and Comments

Rule 2 - Definitions

3.1 Rule 2(1)(c) of the Cyber Cafe Rules defines a cyber cafe in accordance with the definition provided in section 2(1)(na) of the IT Act as follows:

““cyber cafe” means any facility from where access to the internet is offered by any person in the ordinary course of business to the members of the public”

This definition of a cyber cafe is overbroad to bring within its ambit any establishment that offers internet access in the course of its business such as airports, restaurants and libraries. In addition, some State Road Transport Corporations offer wi-fi internet access on their buses; and, Indian Railways, as well as Bangalore Metro Rail Corporation Limited, plans to offer wi-fi internet access on some of its trains. These will all fall within the definition of “cyber cafe” as it is presently enacted. The definition of “cyber cafe” should be read down to only relate to commercial establishments that primarily offer internet access to the general public for a fee.

Therefore, it is proposed that rule 2(1)(c) be amended to read as follows:

“notwithstanding anything contained in clause (na) of sub-section (1) of section 2 of the Act, and for the purposes of these rules only, “cyber cafe” means, any commercial establishment which primarily offers access to the internet to members of the general public for consideration for any purpose but does not include any educational or academic institution, office or place where access to the internet is restricted to authorised persons only.”

3.2 Rule 2(1)(e) of the Cyber Cafe Rules defines “data” in accordance with the definition provided in section 2(1)(o) of the IT Act. However, the term “data” is not used anywhere in the Cyber Cafe Rules and so its definition is redundant. This is one of several instances of careless drafting of the Cyber Cafe Rules.

Therefore, it is proposed that the definition of “data” in rule 2(1)(e) be deleted and the clauses in sub-rule (1) of rule 2 be accordingly renumbered.

3.3 Rule 2(1)(g) of the Cyber Cafe Rules defines “intermediary” in accordance with the definition provided in section 2(1)(w) of the IT Act. While all cyber cafes are intermediaries, not all intermediaries are cyber cafes: there are different categories of intermediaries that are regulated by other rules under the IT Act. The Cyber Cafe Rules make no mention of any other category of intermediaries other than cyber cafes; indeed, the term “intermediary” is not used anywhere in the Cyber Cafe Rules. Its definition is therefore redundant.

Therefore, it is proposed that the definition of “intermediary” in rule 2(1)(g) be deleted and the clauses in sub-rule (1) of rule 2 be accordingly renumbered.

Rule 3 - Agency for Registration of Cyber Cafes

4.1 Rule 3 of the Cyber Cafe Rules, which attempts to set out a registration regime for cyber cafes, as follows:

“3. Agency for registration of cyber cafe. – (1) All cyber cafes shall be registered with a unique registration number with an agency called as registration agency as notified by the Appropriate Government in this regard. The broad terms of registration shall include:

(i) name of establishment;

(ii) address with contact details including email address;

(iii) whether individual or partnership or sole properitership or society or company;

(iv) date of incorporation;

(v) name of owner/partner/proprietor/director;

(vi) whether registered or not (if yes, copy of registration with Registrar of Firms or Registrar of Companies or Societies); and

(vii) type of service to be provided from cyber cafe

Registration of cyber cafe may be followed up with a physical visit by an officer from the registration agency.

(2) The details of registration of cyber cafe shall be published on the website of the registration agency.

(3) The Appropriate Government shall make an endeavour to set up on-line registration facility to enable cyber cafe to register on-line.

(4) The detailed process of registration to be mandatorily followed by each Registration Agency notified by the Appropriate Government shall be separately notified under these rules by the central Government.”

CIS raises two unrelated and substantial objections to this provision: firstly, all cyber cafes across India are already registered under applicable local and municipal laws such as the relevant State Shops and Establishments Acts and the relevant Police Acts that provide detailed information to enable the relevant government to regulate cyber cafes; and, secondly, the provisions of rule 3 create an incomplete and clumsy registration regime that does not clearly establish a procedure for registration within a definite timeframe and does not address the consequences of a denial of registration.

4.2 At the outset, it is important to understand the distinction between registration and licensing. The state may identify certain areas or fields of business, or certain industries, to be regulated by the conditions of a licence in the public interest. These may include shops selling alcohol or guns; or, industries such as telecommunications, mining or nuclear power. Licences for various activities are issued by the state for a limited term on the basis of need and public interest and licensees are permitted to operate only within the term and conditions of the licence. Failure to observe licence conditions can result in the cancellation of the licence and other penalties, sometimes even criminal proceedings.

Registration, on the other hand, is an information-gathering activity that gives no power of intervention to the state unless there is a general violation of law. The primary statutory vehicle for achieving this registration are the various Shops and Establishments Acts of each State and Union Territory and other municipal registration regulations. For example, under section 5 of the Delhi Shops and Establishments Act, 1954, an establishment, which includes shops, commercial establishments and places of public amusement and entertainment, must fulfil the following registration requirements:

“5. Registration of establishment. – (1) Within the period specified in sub-section (5), the occupier of every establishment shall send to the Chief Inspector a statement in a prescribed form, together with such fees as may be prescribed, containing

(a) the name of the employer and the manager, if any;

(b) the postal address of the establishment;

(c) the name, if any, of the establishment,

(d) the category of the establishment, i.e. whether it is a shop, commercial establishment, residential hotel, restaurant eating house, theatre or other place of public amusement or entertainment;

(e) the number of employees working about the business of the establishment; and

(f) such other particulars as may be prescribed.

(2) On receipt of the statement and the fees, the Chief Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the Register of Establishments in such manner as may be prescribed and shall issue, in a prescribed form, a registration certificate to the occupier.

(3) The registration certificate shall be prominently displayed at the establishment and shall be renewed at such intervals as may be prescribed in this respect.

(4) In the event of any doubt or difference of opinion between an occupier and the Chief Inspector as to the category to which shall after such enquiry, as it may think proper, decide the category of each establishment and the decision thereto shall be final for the purpose of this Act.

(5) Within ninety days from the date mentioned in column 2 below in respect of the establishment mentioned in column 1, the statement together with fees shall be sent to the Chief Inspector under sub-section (1).”

Besides the registration regime, the Shops and Establishments Acts also enact inspection regimes to verify the accuracy of all registered information, the maintenance of labour standards and other public safety requirements. These are not addressed by the Cyber Cafe Rules.

4.3 In addition to the various Shops and Establishments Acts which prescribe registration procedures, all premises within which cyber cafes operate are subject to a further licensing regime under the various State Police Acts as places of public amusement and entertainment. For example, a cyber cafe is deemed to be a “place of public amusement” under section 2(9) of the Bombay Police Act, 1951 and therefore subject to the licensing, registration and regulatory provisions of the Rules for Licensing and Controlling Places of Public (Other than Cinemas) and Performances for Public Amusement including Cabaret Performances, Discotheque, Games, Poll Game, Parlours, Amusements Parlours providing Computer Games, Virtual Reality Games, Cyber Cafes with Net Connectivity, Bowling Alleys, Cards Rooms, Social Clubs, Sports Clubs, Meals and Tamasha Rules, 1960. Similar provisions exist in Delhi.

In view of these two-fold registration requirements under the Shops and Establishments Acts and relevant Police Acts, creating yet another layer of registration is unwarranted. The Cyber Cafe Rules do not prescribe any new registration requirement that has not already been covered by the Shops and Establishments Acts and Police Acts. Multiple overlapping legislations will create confusion within the various departments of the relevant government and, more importantly, will result in non-compliance.

4.4 Without prejudice to the preceding comments relating to already existing registration requirements under the Shops and Establishments Acts and Police Acts, rule 3 of the Cyber Cafe Rules are very poorly drafted and do not fulfil the requirements of a valid registration regime. Most State governments have not notified a registration agency for cyber cafes as required by the Cyber Cafe Rules, probably because appropriate provisions under the Shops and Establishments Acts already exist. No time-limit has been specified for the registration process. This means that the (as yet non-existent) registration agency may delay, whether out of inefficiency or malice, a registration application without consequences for the delay. This not only discourages small and medium enterprises to hinder economic growth, it also encourages corruption as cyber cafe operators will be forced to pay a bribe to receive their registration.

4.5 Furthermore, rule 3(4) of the Cyber Cafe Rules, which calls on the Central Government to notify rules made by State governments, reads as follows:

“(4) The detailed process of registration to be mandatorily followed by each Registration Agency notified by the Appropriate Government shall be separately notified under these rules by the central Government.”

This nonsensical provision, which gives the Central Government the power to notify rules made by State governments, prima facie violates the constitutional scheme of division of legislative powers between the Union and States. Rules that have been made by State governments, the subject matter of which is within the legislative competence of the State legislatures, are notified by those State governments for application within their States and no separate notification of these rules can be done by the Central Government.

Therefore, it is proposed that rule 3 be deleted in entirety and the remaining rules be accordingly renumbered.

Rule 4 - Identification of User

5.1 Rule 4 of the Cyber Cafe Rules attempts to establish the identity of cyber cafe users. This is a legitimate and valid exercise to prevent unlawful use of cyber cafes. Sub-rule (1) of rule 4 reads as follows:

“(1) The Cyber Cafe shall not allow any user to use its computer resource without the identity of the user being established. The intending user may establish his identify by producing a document which shall identify the users to the satisfaction of the Cyber Cafe. Such document may include any of the following:

(i) Identity card issued by any School or College; or

(ii) Photo Credit Card or debit card issued by a Bank or Post Office; or

(iii) Passport; or

(iv) Voter Identity Card; or

(v) Permanent Account Number (PAN) card issued by Income-Tax Authority; or

(vi) Photo Identity Card issued by the employer or any Government Agency; or

(vi) Driving License issued by the Appropriate Government; or

(vii) Unique Identification (UID) Number issued by the Unique Identification Authority of India (UIDAI).”

The use of credits cards or debit cards to verify identity is specifically discouraged by the Reserve Bank of India because it directly results in identity theft, fraud and other financial crimes. Online credit card fraud results in large losses to individual card-holders and to banks. The other identity documents specified in rule 4 will suffice to accurately establish the identity of users.

Therefore, it is proposed that the use of credit or debit cards as a means of establishing identity in rule 4(1)(ii) be deleted and the remaining clauses in sub-rule (1) of rule 4 be accordingly renumbered.

5.2 Rule 4(2) of the Cyber Café Rules compels the storage of photographs and other personal information of users by cyber cafés:

“The Cyber Cafe shall keep a record of the user identification document by either storing a photocopy or a scanned copy of the document duly authenticated by the user and authorised representative of cyber cafe. Such record shall be securely maintained for a period of at least one year.”

While this submission does not question the requirement of storing user information for the purposes of law enforcement, this rule 4(2) does not prescribe the standards of security, confidentiality and privacy that should govern the storage of photographs and other personal information by cyber cafes. Without such a prescription, cyber cafes will simply store photographs of users, including minors and women, and important personal information that can be misused, such as passport copies, in a file with no security. This is unacceptable. Besides endangering vulnerable user information, it makes identity theft and other offences easier to perpetrate. If cyber cafes are to collect, store and disclose personal information of users, they must be bound to strict standards that explicitly recognise their duties and obligations in relation to that personal information. In this regard, the attention of the Committee on Subordinate Legislation is called to CIS’ submission regarding the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

Therefore, it is proposed that rule 4(2) be amended to read as follows:

“Any information of any user collected by a cyber cafe under this rule shall be collected, handled, stored and disclosed in accordance with the provisions of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, for a period not exceeding six months from the date of collection of that information.”

5.3 Sub-rule (3) of rule 4 allows cyber cafe users to be photographed:

“(3) In addition to the identity established by an user under sub-rule (1), he may be photographed by the Cyber Cafe using a web camera installed on one of the computers in the Cyber Cafe for establishing the identity of the user. Such web camera photographs, duly authenticated by the user and authorised representative of cyber cafe, shall be part of the log register which may be maintained in physical or electronic form.”

Since the identity documents listed in rule 4(1) all contain a photograph of their owner, the need for further photography is unnecessary. This provision needlessly burdens cyber cafe owners, who will be required to store two sets of photographs of users – their photographic identity documents in addition to individual photographs, and invades the individual privacy rights of users who will be exposed to unnecessary photography by private cyber cafe operators. Granting a non-state entity the right to take photographs of other individuals to no apparent gain or purpose is avoidable, especially when no measures are prescribed to regulate the safe and lawful storage of such photographs. Without strict safety measures governing the taking and storing of photographs of users, including minor girls and women, the Cyber Cafe Rules leave open the possibility of gross misuse of these photographs.

Therefore, it is proposed that sub-rule (3) of rule 4 be deleted and the remaining sub-rules of rule 4 be accordingly renumbered.

5.4 Sub-rue (4) of rule 4 reads as follows:

“(4) A minor without photo Identity card shall be accompanied by an adult with any of the documents as required under sub-rule (1).”

Regulating a minor’s access and use of the internet may serve a public good but it cannot be achieved by law. Information deemed unsuitable for minors that is available via other media, such as video, television or magazines, is not legally proscribed for minors. The law cannot and does not regulate their availability to minors. The protection of minors is an overriding public and jurisprudential concern, but law alone cannot achieve this end. Most minors do not possess photographic identity documents and rule 4(4) will, if implemented, result in internet access being taken away from minors. Restricting a minor’s ability to access useful, educational and other harmless content available on the internet is harmful to the public interest as it discourages education and awareness.

Therefore, it is proposed that rule 4(4) be amended to read as follows:

“A minor who does not possess any of the identity documents listed under sub-rule (1) of this rule may provide the name and address of his parent or guardian prior to using the cyber cafe.”

5.5 Rule 4(5) of the Cyber Cafe Rules states that a user “shall be allowed to enter the cyber cafe after he has established his identity.” However, since rule 4(1) already addresses identity verification by specifically preventing a cyber cafe from “allow[ing] any user to use its computer resource without the identity of the user of the user being established,” this rule 4(5) is redundant.

Therefore, it is proposed that rule 4(4) be deleted and the remaining sub-rules of rule 4 be accordingly renumbered.

5.6 Rule 4(6) of the Cyber Cafe Rules states:

“(6) The Cyber cafe shall immediately report to the concerned police, if they have reasonable doubt or suspicion regarding any user.”

This provision is legally imprecise, poorly drafted and impossible to enforce. The nature of doubt or suspicion that is necessary before contacting the police is unclear. A cyber cafe may doubt whether a customer is able to pay the bill for his internet usage, or be suspicious because of the length of a person’s beard. Requiring the police to be called because someone is doubtful is ridiculous. Furthermore, reasonableness in law is a well-established concept of rationality; it is not open to interpretation. “Reasonable doubt” is a criminal law threshold that must be reached in order to secure a conviction. Reporting requirements must be clear and unambiguous.

Therefore, it is proposed that rule 4(6) be deleted.

Rule 5 - Log Register

6.1 Rule 5(3) of the Cyber Cafe Rules states:

“(3) Cyber Cafe shall prepare a monthly report of the log register showing date- wise details on the usage of the computer resource and submit a hard and soft copy of the same to the person or agency as directed by the registration agency by the 5th day of next month.”

This provision is akin to telephone tapping. If phone companies are not required to report the call histories of each of their users and cable television providers not required to report individual viewing preferences, there is no reason for cyber cafes to report the internet usage of users. There may be instances where public interest may be served by monitoring the internet history of specific individuals, just as it is possible to tap an individual’s telephone if it is judicially determined that such a need exists. However, in the absence of such protective provisions to safeguard individual liberties, this sub-rule (3) is grossly violative of the individual right to privacy and should be removed.

Therefore, it is proposed that rule 5(3) be deleted and the remaining sub-rules of rule 5 be accordingly renumbered.

Rule 7 - Inspection of Cyber Cafe

7.1 Rule 7 of the Cyber Cafe Rules provides for an inspection regime:

“An officer autnorised by the registration agency, is authorised to check or inspect cyber cafe and the computer resource of network established therein, at any time for the compliance of these rules. The cyber cafe owner shall provide every related document, registers and any necessary information to the inspecting officer on demand.”

The corollary of a registration regime is an inspection regime. This is necessary to determine that the information provided during registration is accurate and remains updated. However, as stated in paragraphs 3.2 – 3.4 of this submission, a comprehensive and more easily enforceable registration and inspection regime already exists in the form of the various Shops and Establishments Acts in force across the country. Those provisions also provide for the consequences of an inspection, which the Cyber Cafe Rules do not.

Therefore, it is proposed that rule 7 be deleted.

IV Summary

8.1 In sum:

(a) Under the delegated powers contained in section 87(2)(zg) read with section 79(2) of the IT Act, the Central Government does not have the competence to make rules for identifying cyber cafe users including collecting, storing and disclosing personal information of cyber cafe users nor for prescribing the interior design of cyber cafes and, to the extent that the Rules do so, they are ultra vires the parent statute;

(b) The attention of the Committee on Subordinate Legislation is invited to the following provisions of the Cyber Cafe Rules which require amendment or annulment:

Rule 2(1)(c);
Rule 2(1)(e);
Rule 2(1)(g);
Rule 3(1);
Rule 3(4);
Rule 4(1);
Rule 4(2);
Rule 4(3);
Rule 4(4);
Rule 4(5);
Rule 4(6);
Rule 5(3); and
Rule 7.

(c) The Cyber Cafe Rules are extremely poorly framed, rife with discrepancies and will give rise to litigation. They should be selectively annulled and, to prevent a repeat of the same mistakes, new rules may be framed in concert with experts, professional organisations and civil society in a democratic manner.

8.2 CIS would like to conclude by taking this opportunity to present its compliments to the Committee on Subordinate Legislation and to offer the Committee any assistance or support it may require.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-it-guidelines-for-cyber-cafe-rules-2011

Comments on the Information Technology (Electronic Service Delivery) Rules, 2011

bhairav — 2013-07-12T12:12:16Z

Bhairav Acharya on behalf of the Centre for Internet and Society prepared the following comments on the Information Technology (Electronic Services Delivery) Rules, 2011. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha. These were submitted to the Committee on Subordinate Legislation of the 15th Lok Sabha.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

I Preliminary

1.1 This submission presents comments from the Centre for Internet and Society (“CIS”) on the Information Technology (Electronic Service Delivery) Rules, 2011 that were notified by the Central Government in the Gazette of India vide Notification GSR 316(E) on 11 April 2011 (“ESD Rules” or “Rules”).

1.2 The ESD Rules were notified only eight months before the Electronic Delivery of Services Bill, 2011 was tabled in the Lok Sabha on 27 December 2011 (Bill 137 of 2011) (“EDS Bill” or “Bill”). Both the ESD Rules and the EDS Bill are concerned with enabling computer-based electronic delivery of government services to Indian citizens (“electronic service delivery”). Both the Rules and the Bill originate from the same government department: the Department of Electronics and Information Technology of the Ministry of Communications and Information Technology. Since the EDS Bill seeks to enact a comprehensive legislative framework for mandating and enforcing electronic service delivery, the purpose of the ESD Rules are called into question.

II Basic Issues Regarding Electronic Service Delivery

2.1 CIS believes that there are significant conceptual issues regarding electronic service delivery that demand attention. The Department-related Parliamentary Standing Committee on Information Technology of the Fifteenth Lok Sabha (“Standing Committee”) raised a few concerns when it submitted its 37th Report on the EDS Bill on 29 August 2012. There is a clear need for a national debate on the manner of effecting exclusive electronic service delivery to the exclusion of manual service delivery. Some of these issues are briefly summarised as follows:

(a) Mandatory exclusive electronic service delivery pre-supposes the ability of all Indian citizens to easily access such mechanisms. While there are no authoritative national statistics on familiarity with computer-related technologies, it is apparent that a large majority of Indians, most of whom are likely to be already marginalised and vulnerable, are totally unfamiliar with such technologies to endanger their ability to receive basic government services;

(b) Consequent upon mandatory exclusive electronic service delivery for basic government services, a large group of ‘middlemen’ will arise to facilitate access for that majority of Indians who cannot otherwise access these services. This group will control the interface between citizens and their government. As a result, citizens’ access to governance will deteriorate. This problem may be mitigated to a certain extent by creating a new class of public servants to solely facilitate access to electronic service delivery mechanisms;

(c) The issue of governmental incapacity at the citizen-government interface might be addressed by contracting private service providers to operate mandatory exclusive electronic service delivery mechanisms. However, it is difficult to see how commercialising access to essential government services serves the public interest, especially when public funds will be expended to meet the costs of private service providers. Permitting private service providers to charge a fee from the general public to allow access to essential government services is also ill advised;

(d) All electronic service delivery, whether mandatory to the exclusion of other service delivery mechanisms or offered simultaneously with manual service delivery, must be accompanied by strong data protection measures to ensure the sanctity of sensitive personal information shared online with the state. At present, there are no specific laws that bind the state, or its agents, to the stringent requirements of privacy necessary to protect personal liberties. In the same vein, strong data security measures are necessary to prevent sensitive personal information from being compromised or lost;

(e) All electronic service delivery, whether mandatory to the exclusion of other service delivery mechanisms or offered simultaneously with manual service delivery, must ensure ease and equality of accessibility. For this reason, electronic service delivery mechanisms should conform to the National Policy on Open Standards, 2010 (or the proposed National Electronic Access Policy which is currently awaiting adoption), the Interoperability Framework for E-Governance in India and the Website Guidelines of the National Informatics Centre;

(f) Electronic service delivery requires infrastructure which India does not currently have but can develop. Only 1.44 per cent of India’s population has access to a broadband internet connection[1] and current daily energy demand far exceeds supply. On the other hand, the number of broadband subscribers is increasing,[2] the annual installed capacity for electricity generation is growing[3] and the literacy rate is increasing.[4]

2.2 The ESD Rules do not address any of the issues raised in the preceding paragraph. As a result, they cannot be seen to represent the result of a national consensus on the crucial question of mandating exclusive electronic service delivery and the means of enforcing such a scheme. Further, very few of the provisions of the Rules are binding; instead, the Rules appear to be drafted to serve as a minimal model for electronic service delivery. In this background, CIS believes that the Rules should be treated as an incomplete arrangement that prescribe the minimal standards necessary to bind private service providers before comprehensive and statutory electronic service delivery legislation is enacted, perhaps in the form of the EDS Bill or otherwise. Therefore, without prejudice to the issues raised in the preceding paragraph, CIS offers the following comments on the provisions of the Rules while reserving the opportunity to make substantive submissions on electronic service delivery in general to an appropriate forum at a later date.

III Improper Exercise of Subordinate Legislative Power

3.1 Rule 317 of the Rules of Procedure and Conduct of Business in the Lok Sabha (Fourteenth Edition, July 2010) (“Rules of Procedure”), which empowers the Committee on Subordinate Legislation to scrutinise exercises of statutory delegation of legislative powers for impropriety, states:

There shall be a Committee on Subordinate Legislation to scrutinize and report to the House whether the powers to make regulations, rules, subrules, bye-laws etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation.

Further, the Committee on Subordinate Legislation is specifically empowered by rule 320(vii) of the Rules of Procedure to examine any provision of the ESD Rules to consider “whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made.”

3.2 Accordingly, the attention of the Committee on Subordinate Legislation is called to an improper exercise of delegated power under rule 3(1) of the ESD Rules, which states:

The appropriate Government may on its own or through an agency authorised by it, deliver public services through electronically- enabled kiosks or any other electronic service delivery mechanism.

This sub-rule (1) empowers both the Central Government and State Governments to provide electronic service delivery on their own.

3.3 The ESD Rules are made in exercise of delegated powers conferred under section 87(2)(ca) read with section 6-A(2) of the Information Technology Act, 2000 (“IT Act”). Section 87(2)(ca) of the IT Act empowers the Central Government to make rules to provide for:

the manner in which the authorised service provider may collect, retain and appropriate service charges under sub-section (2) of section 6-A.

Section 6-A(2) of the IT Act states:

The appropriate Government may also authorise any service provider authorised under sub-section (1) to collect, retain and appropriate such service charges, as may be prescribed by the appropriate Government for the purpose of providing such services, from the person availing such service.

Prima facie, the delegated powers under section 87(2)(ca) read with section 6-A(2) of the IT Act, in exercise of which the ESD Rules are made, only permit delegated legislation to regulate private service providers, they do not permit the executive to exercise these powers to empower itself to conduct electronic service delivery on its own. Therefore, to the extent that the ESD Rules authorise the Central Government and State Governments to provide electronic service delivery on their own, such authorisation constitutes an improper exercise of delegated power and is ultra vires the IT Act. This may be resolved by deriving the delegated legislative competence of the ESD Rules from section 87(1) of the IT Act, instead of section 87(2)(ca) read with section 6-A(2).

IV Clause-by-Clause Comments

Rule 2 - Definitions

4.1.1 Rule 2(c) of the ESD Rules states:

"authorised agent" means an agent of the appropriate Government or service provider and includes an operator of an electronically enabled kiosk who is permitted under these rules to deliver public services to the users with the help of a computer resource or any communication device, by following the procedure specified in the rules

In accordance with the argument regarding improper exercise of delegated power contained in paragraphs 3.1 – 3.3 of this submission, the appropriate Government cannot undertake electronic service delivery under these Rules. Consequently, the appropriate Government cannot appoint an agent to provide electronic service delivery on behalf, and under the control, of the appropriate Government since, as the principal, the appropriate Government would be responsible for the acts of its agents. Instead, private service providers may provide electronic service delivery as contractees of the appropriate Government who might enter into such contracts as a sovereign contractor. Therefore, only a private service provider may appoint an authorised agent under these Rules.

4.1.2 Therefore, it is proposed that rule 2(c) is amended to read as follows:

““authorised agent” means an agent of a service provider, and includes an operator of an electronically enabled kiosk, who is permitted under these rules to deliver public services with the help of a computer resource or any communication device, by following the procedure specified in these rules”

Rule 3 - System of Electronic Service Delivery

4.2.1 Rule 3(3) of the ESD Rules states:

The appropriate Government may determine the manner of encrypting sensitive electronic records requiring confidentiality, white they are electronically signed.

This sub-rule is supposed to prescribe stringent standards to maintain the security, confidentiality and privacy of all personal information used during electronic service delivery transactions. In the absence of transactional security, electronic service delivery will invite fraud, theft and other misuse to impugn its viability as a means of delivering public services. However, the use of the term “may” leaves the prescription of security standards up to the discretion of the appropriate Government. Further, the language of the sub-rule is unclear and imprecise.

4.2.2 Therefore, it is proposed that rule 3(3) is amended to read as follows:

“The appropriate Government shall, prior to any electronic service delivery, determine the manner of encrypting electronic records and shall prescribe standards for maintaining the safety, security, confidentiality and privacy of all information collected or used in the course of electronic service delivery.”

4.3.1 Rule 3(5) of the ESD Rules states:

The appropriate Government may allow receipt of payments made by adopting the Electronic Service Delivery System to be a deemed receipt of payment effected in compliance with the financial code and treasury code of such Government.

Firstly, if these Rules enable payments to be made electronically, they must also validate the receipt of these payments. Inviting citizens to make electronic payments for government services without recognising the receipt of those payments is farcical to attract abusive and corrupt practices. Therefore, it is imperative that these Rules compulsorily recognise receipt of payments, either by deeming their receipt to be valid receipts under existing law or by specially recognising their receipt by other means including the law of evidence. Either way, electronic receipts of electronic payments must be accorded the validity in law that manual/paper receipts have; and, copies of such electronic receipts must be capable of being adduced in evidence. Secondly, the use of the phrase “financial code and treasury code” is avoidable since these terms are undefined.

4.3.2 Therefore, it is proposed that rule 3(5) be amended to read as follows:

“Any receipt of payment made by electronic service delivery shall be deemed to be a valid receipt of such payment under applicable law and shall be capable of being adduced as evidence of such payment.”

4.4.1 Rule 3(6) of the ESD Rules states:

The appropriate Government may authorise service providers or their authorised agents to collect, retain and appropriate such service charges as may be specified by the appropriate Government for the purpose of providing such services from the person availing such services:

Provided that the apportioned service charges shall be clearly indicated on the receipt to be given to the person availing the services.

This sub-rule is an almost verbatim reproduction of the provisions of section 6-A(2) of the IT Act which reads as follows:

Since the IT Act specifically delegates to the appropriate Governments the power to authorise service providers to levy charges, rule 3(6) of the ESD Rules that merely copies the provisions of the parent statute is meaningless. The purpose of delegated legislation is to give effect to the provisions of a statute by specifying the manner in which statutory provisions shall be implemented. Copying and pasting statutory provisions is a absurd misuse of delegated legislative powers.

4.4.2 Therefore, it is proposed that sub-rule (6) is deleted and the remaining sub-rules of rule 3 are renumbered.

4.5.1 Rule 3(7) of the ESD Rules states:

The appropriate Government shall by notification specify the scale of service charges which may be charged and collected by the service providers and their authorised agents for various kinds of services.

This is an almost verbatim reproduction of the provisions of section 6-A(4) of the IT Act which reads as follows:

The appropriate Government shall, by notification in the Official Gazette, specify the scale of service charges which may be charged and collected by the service providers under this section.

As noted in paragraph 4.3.1 of this submission, the purpose of delegated legislation is not to copy the provisions of the parent statute, but to amplify the scope of the delegated power and the manner of effecting its implementation.

4.5.2 Therefore, it is proposed that sub-rule (7) is deleted and the remaining sub-rules of rule 3 are renumbered.

4.6.1 Rule 3(8) of the ESD Rules states:

The appropriate Government may also determine the norms on service levels to be complied with by the Service Provider and the authorised agents.

There is no quarrel with the power of the government to determine norms for, or directly prescribe, service levels to regulate service providers. However, without a scheme of statutory or sub-statutory penalties for contravention of the prescribed service levels, a sub-delegated service level cannot enforce any penalties. Simply put, the state cannot enforce penalties unless authorised by law. Unfortunately, rule 3(8) contains no such authorisation. Service levels for service providers without a regime of penalties for non-compliance is meaningless, especially since service providers will be engaged in providing access to essential government services.

4.6.2 Therefore, it is proposed that rule 3(8) be amended to read as follows:

“The appropriate Government shall prescribe service levels to be complied with by all service providers and their authorised agents which shall include penalties for failure to comply with such service levels.”

[1]. Thirty-Seventh Report of the Standing Committee on Information Technology (2011-12) on the Electronic Delivery of Services Bill, 2011 (New Delhi: Lok Sabha Secretariat, 29 August 2012) at pp. 13, 17 and 34. See also, Telecom Sector in India: A Decadal Profile (New Delhi: Telecom Regulatory Authority of India, 8 June 2012).

[2]. Annual Report (2011-12) of the Department of Telecommunications, Ministry of Communications and Information Technology, Government of India (New Delhi: Department of Telecommunications, 2012) at pp. 5 and 1-3.

[3]. Report of the Working Group on Power of the Twelfth Plan (New Delhi: Planning Commission, Government of India, January 2012).

[4]. Provisional Report of the Census of India 2011 (New Delhi: Registrar General and Census Commissioner, 2011) from p. 124.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-it-electronic-service-delivery-rules-2011

Comments on the Draft Second Protocol to the Convention on Cybercrime (Budapest Convention)

vipul — 2019-02-25T16:48:18Z

Following consultations with data protection, civil society, industry and others, during the Cybercrime Convention Committee (T-CY) meeting from 29 November 2018 onwards, the Cybercrime Convention Committee has sought additional contributions regarding the provisional draft text for a Second Additional Protocol to the Budapest Convention on Cybercrime (“Budapest Convention”).

The Centre for Internet and Society, (“CIS”), is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, artificial intelligence, freedom of expression, and cyber-security. This submission is consistent with CIS’ commitment to safeguarding general public interest, and the rights of stakeholders. CIS is thankful to the Cybercrime Convention Committee for this opportunity to provide feedback to the Draft.

The draft text addresses three issues viz. language of requests, emergency multilateral cooperation and taking statements through video conferencing. Click to download the entire submission here.

For more details visit https://cis-india.org/internet-governance/blog/vipul-kharbanda-february-25-2019-comments-on-draft-second-protocol-to-convention-on-cybercrime-budapest-convention

Comments on the Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (WSIS+10)

geetha — 2015-11-18T06:33:13Z

Following the comment-period on the Zero Draft, the Draft Outcome Document of the UN General Assembly's Overall Review of implementation of WSIS Outcomes was released on 4 November 2015. Comments were sought on the Draft Outcome Document from diverse stakeholders. The Centre for Internet & Society's response to the call for comments is below.

The WSIS+10 Overall Review of the Implementation of WSIS Outcomes, scheduled for December 2015, comes as a review of the WSIS process initiated in 2003-05. At the December summit of the UN General Assembly, the WSIS vision and mandate of the IGF are to be discussed. The Draft Outcome Document, released on 4 November 2015, is towards an outcome document for the summit. Comments were sought on the Draft Outcome Document. Our comments are below.

The Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (“the current Draft”) stands considerably altered from the Zero Draft. With references to development-related challenges, the Zero Draft covered areas of growth and challenges of the WSIS. It noted the persisting digital divide, the importance of innovation and investment, and of conducive legal and regulatory environments, and the inadequacy of financial mechanisms. Issues crucial to Internet governance such as net neutrality, privacy and the mandate of the IGF found mention in the Zero Draft.
The current Draft retains these, and adds to them. Some previously-omitted issues such as surveillance, the centrality of human rights and the intricate relationship of ICTs to the Sustainable Development Goals, now stand incorporated in the current Draft. This is most commendable. However, the current Draft still lacks teeth with regard to some of these issues, and fails to address several others.
In our comments to the Zero Draft, CIS had called for these issues to be addressed. We reiterate our call in the following paragraphs.

(1) ICT for Development

In the current Draft, paragraphs 14-36 deal with ICTs for development. While the draft contains rubrics like ‘Bridging the digital divide’, ‘Enabling environment’, and ‘Financial mechanisms’, the following issues are unaddressed:
Equitable development for all;
Accessibility to ICTs for persons with disabilities;
Access to knowledge and open data.

Equitable development

In the Geneva Declaration of Principles (2003), two goals are set forth as the Declaration’s “ambitious goal”: (a) the bridging of the digital divide; and (b) equitable development for all (¶ 17). The current Draft speaks in detail about the bridging of the digital divide, but the goal of equitable development is conspicuously absent. At WSIS+10, when the WSIS vision evolves to the creation of inclusive ‘knowledge societies’, equitable development should be both a key principle and a goal to stand by.
Indeed, inequitable development underscores the persistence of the digital divide. The current Draft itself refers to several instances of inequitable development; for ex., the uneven production capabilities and deployment of ICT infrastructure and technology in developing countries, landlocked countries, small island developing states, countries under occupation or suffering natural disasters, and other vulnerable states; lack of adequate financial mechanisms in vulnerable parts of the world; variably affordable (or in many cases, unaffordable) spread of ICT devices, technology and connectivity, etc.
What underscores these challenges is the inequitable and uneven spread of ICTs across states and communities, including in their production, capacity-building, technology transfers, gender-concentrated adoption of technology, and inclusiveness.
As such, it is essential that the WSIS+10 Draft Outcome Document reaffirm our commitment to equitable development for all peoples, communities and states.
We suggest the following inclusion to paragraph 5 of the current Draft:

“5. We reaffirm our common desire and commitment to the WSIS vision to build an equitable, people-centred, inclusive, and development-oriented Information Society…”

Accessibility for persons with disabilities

10. Paragraph 13 of the Geneva Declaration of Principles (2003) pledges to “pay particular attention to the special needs of marginalized and vulnerable groups of society” in the forging of an Information Society. Particularly, ¶ 13 recognises the special needs of older persons and persons with disabilities.

11. Moreover, ¶ 31 of the Geneva Declaration of Principles calls for the special needs of persons with disabilities, and also of disadvantaged and vulnerable groups, to be taken into account while promoting the use of ICTs for capacity-building. Accessibility for persons with disabilities is thus core to bridging the digital divide – as important as bridging the gender divide in access to ICTs.

12. Not only this, but the WSIS+10 Statement on the Implementation of WSIS Outcomes (June 2014) also reaffirms the commitment to “provide equitable access to information and knowledge for all… including… people with disabilities”, recognizing that it is “crucial to increase the participation of vulnerable people in the building process of Information Society…” (¶8).

13. In our previous submission, CIS had suggested language drawing attention to this. Now, the current Draft only acknowledges that “particular attention should be paid to the specific ICT challenges facing… persons with disabilities…” (paragraph 11). It acknowledges also that now, accessibility for persons with disabilities constitutes one of the core elements of quality (paragraph 22). However, there is a glaring omission of a call to action, or a reaffirmation of our commitment to bridging the divide experienced by persons with disabilities.

14. We suggest, therefore, the addition of the following language the addition of paragraph 24A to the current Draft. Sections of this suggestion are drawn from ¶8, WSIS+10 Statement on the Implementation of WSIS Outcomes.

"24A. Recalling the UN Convention on the rights of people with disabilities, the Geneva principles paragraph 11, 13, 14 and 15, Tunis Commitment paras 20, 22 and 24, and reaffirming the commitment to providing equitable access to information and knowledge for all, building ICT capacity for all and confidence in the use of ICTs by all, including youth, older persons, women, indigenous and nomadic peoples, people with disabilities, the unemployed, the poor, migrants, refugees and internally displaced people and remote and rural communities, it is crucial to increase the participation of vulnerable people in the building process of information Society and to make their voice heard by stakeholders and policy-makers at different levels. It can allow the most fragile groups of citizens worldwide to become an integrated part of their economies and also raise awareness of the target actors on the existing ICTs solution (such as tolls as e- participation, e-government, e-learning applications, etc.) designed to make their everyday life better. We recognise need for continued extension of access for people with disabilities and vulnerable people to ICTs, especially in developing countries and among marginalized communities, and reaffirm our commitment to promoting and ensuring accessibility for persons with disabilities. In particular, we call upon all stakeholders to honour and meet the targets set out in Target 2.5.B of the Connect 2020 Agenda that enabling environments ensuring accessible telecommunication/ICT for persons with disabilities should be established in all countries by 2020.”

Access to knowledge and open data

15. The Geneva Declaration of Principles dedicates a section to access to information and knowledge (B.3). It notes, in ¶26, that a “rich public domain” is essential to the growth of Information Society. It urges that public institutions be strengthened to ensure free and equitable access to information (¶26), and also that assistive technologies and universal design can remove barriers to access to information and knowledge (¶25). Particularly, the Geneva Declaration advocates the use of free and open source software, in addition to proprietary software, to meet these ends (¶27).

16. It was also recognized in the WSIS+10 Statement on the Implementation of WSIS Outcomes (‘Challenges-during implementation of Action Lines and new challenges that have emerged’) that there is a need to promote access to all information and knowledge, and to encourage open access to publications and information (C, ¶¶9 and 12).

17. In our previous submission, CIS had highlighted the importance of open access to knowledge thus: “…the implications of open access to data and knowledge (including open government data), and responsible collection and dissemination of data are much larger in light of the importance of ICTs in today’s world. As Para 7 of the Zero Draft indicates, ICTs are now becoming an indicator of development itself, as well as being a key facilitator for achieving other developmental goals. As Para 56 of the Zero Draft recognizes, in order to measure the impact of ICTs on the ground – undoubtedly within the mandate of WSIS – it is necessary that there be an enabling environment to collect and analyse reliable data. Efforts towards the same have already been undertaken by the United Nations in the form of ‘Data Revolution for Sustainable Development’. In this light, the Zero Draft rightly calls for enhancement of regional, national and local capacity to collect and conduct analyses of development and ICT statistics (Para 56). Achieving the central goals of the WSIS process requires that such data is collected and disseminated under open standards and open licenses, leading to creation of global open data on the ICT indicators concerned.”

18. This crucial element is missing from the current Draft of the WSIS+10 Outcome Document. Of course, the current Draft notes the importance of access to information and free flow of data. But it stops short of endorsing and advocating the importance of access to knowledge and free and open source software, which are essential to fostering competition and innovation, diversity of consumer/ user choice and ensuring universal access.

19. We suggest the following addition – of paragraph 23A to the current Draft:

"23A. We recognize the need to promote access for all to information and knowledge, open data, and open, affordable, and reliable technologies and services, while respecting individual privacy, and to encourage open access to publications and information, including scientific information and in the research sector, and particularly in developing and least developed countries.”

(2) Human Rights in Information Society

20. The current Draft recognizes that human rights have been central to the WSIS vision, and reaffirms that rights offline must be protected online as well. However, the current Draft omits to recognise the role played by corporations and intermediaries in facilitating access to and use of the Internet.

21. In our previous submission, CIS had noted that “the Internet is led largely by the private sector in the development and distribution of devices, protocols and content-platforms, corporations play a major role in facilitating – and sometimes, in restricting – human rights online”.

22. We reiterate our suggestion for the inclusion of paragraph 43A to the current Draft:

"43A. We recognize the critical role played by corporations and the private sector in facilitating human rights online. We affirm, in this regard, the responsibilities of the private sector set out in the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/17/31 (21 March 2011), and encourage policies and commitments towards respect and remedies for human rights.”

(3) Internet Governance

The support for multilateral governance of the Internet

23. While the section on Internet governance is not considerably altered from the zero draft, there is a large substantive change in the current Draft. The current Draft states that the governance of the Internet should be “multilateral, transparent and democratic, with full involvement of all stakeholders” (¶50). Previously, the zero draft recognized the “the general agreement that the governance of the Internet should be open, inclusive, and transparent”.

24. A return to purely ‘multilateral’ Internet governance would be regressive. Governments are, without doubt, crucial in Internet governance. As scholarship and experience have both shown, governments have played a substantial role in shaping the Internet as it is today: whether this concerns the availability of content, spread of infrastructure, licensing and regulation, etc. However, these were and continue to remain contentious spaces.

25. As such, it is essential to recognize that a plurality of governance models serve the Internet, in which the private sector, civil society, the technical community and academia play important roles. We recommend returning to the language of the zero draft in ¶32: “open, inclusive and transparent governance of the Internet”.

Governance of Critical Internet Resources

26. It is curious that the section on Internet governance in both the zero and the current Draft makes no reference to ICANN, and in particular, to the ongoing transition of IANA stewardship and the discussions surrounding the accountability of ICANN and the IANA operator. The stewardship of critical Internet resources, such as the root, is crucial to the evolution and functioning of the Internet. Today, ICANN and a few other institutions have a monopoly over the management and policy-formulation of several critical Internet resources.

27. While the WSIS in 2003-05 considered this a troubling issue, this focus seems to have shifted entirely. Open, inclusive, transparent and global Internet are misnomer-principles when ICANN – and in effect, the United States – continues to have monopoly over critical Internet resources. The allocation and administration of these resources should be decentralized and distributed, and should not be within the disproportionate control of any one jurisdiction.

28. Therefore, we reiterate our suggestion to add paragraph 53A after Para 53:

"53A. We affirm that the allocation, administration and policy involving critical Internet resources must be inclusive and decentralized, and call upon all stakeholders and in particular, states and organizations responsible for essential tasks associated with the Internet, to take immediate measures to create an environment that facilitates this development.”

Inclusiveness and Diversity in Internet Governance

29. The current Draft, in ¶52, recognizes that there is a need to “promote greater participation and engagement in Internet governance of all stakeholders…”, and calls for “stable, transparent and voluntary funding mechanisms to this end.” This is most commendable.

30. The issue of inclusiveness and diversity in Internet governance is crucial: today, Internet governance organisations and platforms suffer from a lack of inclusiveness and diversity, extending across representation, participation and operations of these organisations. As CIS submitted previously, the mention of inclusiveness and diversity becomes tokenism or formal (but not operational) principle in many cases.

31. As we submitted before, the developing world is pitifully represented in standards organisations and in ICANN, and policy discussions in organisations like ISOC occur largely in cities like Geneva and New York. For ex., 307 out of 672 registries listed in ICANN’s registry directory are based in the United States, while 624 of the 1010 ICANN-accredited registrars are US-based.

32. Not only this, but 80% of the responses received by ICANN during the ICG’s call for proposals were male. A truly global and open, inclusive and transparent governance of the Internet must not be so skewed. Representation must include not only those from developing countries, but must also extend across gender and communities.

33. We propose, therefore, the addition of a paragraph 51A after Para 51:

"51A. We draw attention to the challenges surrounding diversity and inclusiveness in organisations involved in Internet governance, including in their representation, participation and operations. We note with concern that the representation of developing countries, of women, persons with disabilities and other vulnerable groups, is far from equitable and adequate. We call upon organisations involved in Internet governance to take immediate measures to ensure diversity and inclusiveness in a substantive manner.”

Prepared by Geetha Hariharan, with inputs from Sunil Abraham and Japreet Grewal. All comments submitted towards the Draft Outcome Document may be found at this link.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-draft-outcome-document-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10

Comments on the Draft National Policy on Software Products

Anubha Sinha, Rohini Lakshané, and Udbhav Tiwari — 2016-12-12T14:45:11Z

The Centre for Internet & Society submitted public comments to the Department of Electronics & Information Technology (DeitY), Ministry of Information & Communications Technology, Govt. of India on the National Policy of Software Products on December 9, 2016.

I. Preliminary

1. This submission presents comments by the Centre for Internet and Society, India (“CIS”) on the Draft National Policy on Software Products [1] (“draft policy”), released by the Ministry of Electronics & Information Technology (“MeitY ”).

2. CIS commends MeitY on its initiative to present a draft policy, and is thankful for the opportunity to put forth its views in this public consultation period.

3. This submission is divided into three main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part contains the comments by CIS on the Draft National Policy on Software Products.

II. About CIS

4. CIS is a non-profit organisation [2] that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber security.

5. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles.

III. Comments on the Draft National Policy on Software Products

General Comments

6. CIS commends MeitY on its initiative to develop a consolidated National Policy on Software Products. We believe that there are certain salient points in the draft policy that deserve particular appreciation for being in the interest of all stakeholders, especially the public. An indicative list of such points include:

A focus on aiding digital inclusion via software, especially in the fields of finance, education and healthcare.
The recognition of the need for openness and application of open data principles in the private and public sector. Identifying the need for diversification of the information technology sector into regions outside the developed cities in India.
Identifying the need for innovation and original research in emerging fields such as Internet of Things and Big Data.

7. We observe that the draft policy weighs in the favour of creating a thriving digital economy, which indeed is a commendable objective per se. However, there are certain aspects which remain to be addressed by the draft policy, to ensure that the growth of our domestic software industry truly achieves the vision set out in Digital India for better delivery of government services and maximisation of the public interest.

8. We submit that the proposed policy should include certain additional guiding principles to direct creation of software and its end-utilisation. These principles would ensure responsible, inclusive, judicious and secure software product life cycle by all the relevant stakeholders, including the industry, the government and especially the public. An indicative list of such principles that we believe should be explicitly included in the policy are:

Ensuring that internationally accepted principles of privacy are followed in software development and utilisation, including public awareness.
Requiring basic yet sufficient standards of information security to ensure protection of user data at all stages of the software product life cycle.
Enforcing lingual diversity in software to allow for India’s diverse population to operate indigenous software in an inclusive manner.
Mandating minimum standards on accessibility in software creation, procurement and implementation to ensure sustainable use by the differently-abled.
Focusing on transparency & accountability in software procurement for all public funded projects.
Implementing the utilisation of Free and Open Source Software (“FOSS”) in the execution of public funded projects as per the mandate of the Policy on Adoption of Open Source Software for Government of India; thereby incentivising the creation of FOSS for use in both private and public sector.
For software to be truly inclusive of the goals of Digital India, it is essential that to provide supports to Indic languages and scripts without yielding an inferior experience or results for the end user in non-English interfaces. Software already deployed should be translated and localised.

9. The inclusion of these principles in substantive clauses of the policy will go a long way in ensuring the sustainable and transparent growth of domestic software product ecosystem.

Specific Comments

10. Development of a robust Electronic Payment Infrastructure

10.1. CIS observes that clauses 5.4 and 6.7 of the draft policy aim to establish a seamless electronic payment infrastructure. We submit that an electronic payment infrastructure should be designed with strong standards of information security, privacy and inclusivity (both accessibility and lingual).

10.2. We recommend that the policy mandate minimum standards of information security, privacy and inclusivity in all payment systems across private and public sectors. The policy should, therefore, ideally specify the respective standards for these categories, for instance ISO 27001 and National Policy on Universal Electronics Accessibility [3], alongside other industry standards for Electronic Payment Infrastructure.

11. Government Procurement

11.1. CIS observes that clause 6.1 of the draft policy seeks to develop a framework for inclusion of Indian software in government procurement. It is commendable that the draft policy identifies the need for a better framework. CIS notes that the existing procurement procedure allows for usage of Indian software. In fact, the Government e-Marketplace(eGM) already has begun to incorporate some of these principles in general procurement.

11.2. Indeed, the presence of a transparent and accountable government procurement, which leverages technology and the internet, is key to ensuring a sustainable and fair market. CIS recommends that the policy refer to these guiding principles to enable the development of a viable cache of Indian software products by creating more avenues, including government procurement.

12. Incentives for Digital India oriented software

12.1. CIS observes that clause 6.3 of the draft policy incentivises the creation of software addressing the action pillars of the commendable Digital India programme.

12.2. For development of superior quality software which will ensure excellent success of the Digital India programme, CIS recommends that the incentives should be provided contingent to the incorporation of certain minimum standards of software development. Such products and services should, inter alia, adhere to the stipulations under National Policy on Universal Electronics Accessibility, the Guidelines for Indian Government Websites, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, etc. In the process, the software should be subjected to reviews by a neutral entity to gauge the compliance with the abovementioned minimum standards.

13. Increasing adoption of Open APIs and Open Data

13.1. CIS observes that clause 6.6 of the draft policy promotes the use of open APIs and open data in development of e-government services.

13.2. We strongly recommend that open APIs and open data principles be adopted by software used in all government organizations, and non-commercial software . Open Data and Open APIs can serve a vital role in ensuring transparent, accountable and efficient governance, which can be leveraged in a major way within the policy by the public and civil society.

14. Creation of Enabling Environment for Innovation, R&D, and IP Creation and Protection

14.1. CIS observes that clause 8.1 of the draft policy seeks to create an enabling environment for innovation, R&D, and IP creation and protection.

14.2. CIS submits that the existing TRIPS-compliant Indian intellectual property law regime is adequately designed to incentivise creativity and innovation in the area of software development. The Indian Patents Act, 1970 read with the Guidelines for Examination of Computer Related Inventions, 2016 do not permit the patenting of computer programmes per se. Several Indian software developers, notably small and medium sized development companies have made evidence-based submissions to the government previously on the negative impact of software patenting on software innovation [4].

14.3. CIS recommends that the proposed policy re-affirm the adequacy of the Indian intellectual property regime to protect software development, in compliance with the TRIPS Agreement.

IV. Conclusion

15. CIS commends the MeitY on the development of the draft policy. We strongly urge MeitY to address the issues highlighted above, especially emphasising the incorporation of essential principles such as information security, privacy, accessibility, etc. Adoption of such measures will ensure a fair balance between commercial growth of domestic software industry and the maximisation of public interest.

[1]. National Policy on Software Products (2016, Draft internal v1. 15) available at http://meity.gov.in/sites/upload_files/dit/files/National%20Policy%20on%20Software%20Products.pdf

[2]. See The Centre for Internet and Society, available at http://cis- india.org for details of the organization,and our work.

[3]. See http://meity.gov.in/sites/upload_files/dit/files/Accessible-format-National%20Policy%20on%20Universal%20Electronics.pdf

[4]. See http://economictimes.indiatimes.com/articleshow/52159304.cms?utm_source=contentofinterest&utm_me dium=text&utm_campaign=cppst

For more details visit https://cis-india.org/internet-governance/blog/comments-on-draft-national-policy-on-software-products

Comments on the Draft National Policy on Official Statistics

Gurshabad Grover and Sandeep Kumar — 2018-06-07T02:54:18Z

This submission presents comments by the Centre for Internet & Society, India (“CIS”) on the Draft National Policy on Official Statistics which was released to the public by the Ministry of Statistics and Programme Implementation on 17th May 2018 for comments and views.

Edited by Swaraj Barooah. Download a PDF of the submission here

Preliminary

CIS appreciates the Government’s efforts in realising the importance of the need for high quality statistical information enshrined in the Fundamental Principles of Official Statistics as adopted by the UN General Assembly in January 2014. CIS is grateful for the opportunity to put forth its views on the draft policy. This submission was made on 31st May, 2018.

First, this submission highlights some general defects in the draft policy: there is lack of principles guiding data dissemination policies; there are virtually no positive mandates set for Government bodies for secure storage and transmission of data; and while privacy is mentioned as a concern, it has been overlooked in designing the principles of the implementation of surveys. Then, this submission puts forward specific comments suggesting improvements to various sections in the draft policy.

CIS would also like to point out the short timeline between the publication of the draft policy (18th May, 2018), and the deadline set for the stakeholders to submit their comments (31st May, 2018). Considering that the policy has widespread implications for all Ministries, citizens, and State legislation rights (proposed changes include a Constitutional Amendment), it is necessary that such call-for-comments are publicised widely, and enough time is given to the public so that the Government can receive well-researched comments.

General Comments

Data dissemination

For data dissemination, the draft policy does not stress upon a general principle or set of principles, and often disregards principles specified in the Fundamental Principles of Official Statistics, which are the very principles the Government intends to draw its policies on official statistics from. Rather it relies on context-specific provisions that fail to summarise and articulate a general philosophy for the dissemination of official statistics, and fails to practically embody some stated goals. The first principle on Official Statistics, as realised by the United Nations General Assembly, clearly states that: “[...] official statistics that meet the test of practical utility are to be compiled and made available on an impartial basis by official statistical agencies to honour citizens’ entitlement to public information.”

Let us compare this with Section 5.1.7 (9) of the draft policy, which refers to policies regarding core statistics: it mentions a data “warehouse” to be maintained by the NSO which should be accessible to private and public bodies. While this does point towards an open data policy, such a vision has not been articulated in any part thereof.

The draft policy, at the outset, should have general guiding principles of publishing data openly and freely (once it meets the utility test, and it has been ensured that individual privacy will not be violated by the publishing of such statistics). This should serve well to inform further regulations and related policies governing the use and publishing of statistics, like the Statistical Disclosure Control Report.

A general commitment to a well-articulated policy on data dissemination will ensure easy-to-follow principles for the various Ministries that will refer to the document. The additional principles that come with open data principles should also be described by the policy document: a commitment to publishing data in a machine-readable format, making it available in multiple data formats (.txt, .csv, etc.), and including its metadata.

Data storage and usage

In the absence of a regime for data protection, it is absolutely necessary that a national policy on statistics provide positive mandates for the encryption of all digitally-stored personal and sensitive information collected through surveys. Even though the current draft of the policy mentions the need to protect confidential information, it sets no mandatory requirements on the Government to ensure the security of such information, especially on digital platforms.

Additionally, all transmission of potentially sensitive information should be done with the digital signatures of the employee/Department/Ministry authorising said transmission. This will ensure the integrity and authenticity of the information, and provide with an auditable trail of the information flowing between entities in the various bodies.

Data privacy

It is appreciable that Section 5.7.9 of the draft policy notes, “[a]ll statistical surveys represent a degree of privacy invasion, which is justified by the need for an alternative public good, namely information.” However, all statistical surveys may not be proportionate in their invasiveness, even if they might serve a legitimate public goal in the future.

The draft policy does not address how privacy concerns can be taken into account while designing the survey itself. A necessary outcome of the realisation of the possible privacy violations that may arise due to surveys is that all data collection be “minimally intrusive”, the data be securely stored (see previous comment section, ‘Data storage and usage’), and the surveyed users have control over the data even after they have parted with their information.

Since the policy deals extensively with the implementation of surveys, the following should details should be clearly laid out in the policy:

The extent to which an individual has control over the data they have provided to the surveying agency.
The means of redressal available to an individual who feels that his/her privacy has been violated through the publication of certain statistical information

Specific Comments

Section 5.1: Dichotomising official statistics as core statistics and other official statistics

Comments

The reasons for dichotomising official statistics has not been appropriately substantiated with evidence, considering the wide implications of policy proposals that arise from the definition of “core statistics.”

Firstly, the descriptions of what constitutes “core statistics” casts too wide a net by only having a single vague qualitative criterion, i.e. “national importance.” All the other characteristics of the “core statistics” are either recommendations or requirements as to how the data will be handled and thus, pose no filter to what can constitute “core statistics.” The wide net is apparent in the fact that even the initially-proposed list of “core statistics”, given in Annex-II of the policy, has 120 categories of statistics.

Secondly, the policy does not provide reasons for why the characteristics of “core statistics”, highlighted in Section 5.1.5, should not apply to all official statistics at the various levels of Government. Therefore, the utility of the proposed dichotomy has also not been appropriately substantiated with illustrative examples of how “core statistics” should be considered qualitatively different from all official statistics.

This definition may lead to widespread disagreement between the States and the Centre, because Section 5.2 proposes that “core statistics” be added to the Union List of the Seventh Schedule of the Constitution. How the proposal may affect Centre-State responsibilities and relations pertaining to the collection and dissemination of statistics is elaborated in the next section.

Recommendations

The policy should not make a forced dichotomy between “core” and (ipso facto) non-core statistics. If a distinction is to be made for any reason(s) (such as for the purposes of delineating administrative roles) then such reason must be clearly defined, along with a clear explanation for why such a dichotomy would alleviate the described problem. The definitions should have tangible and unambiguous qualitative criteria.

Section 5.2: Constitutional amendment in respect of core statistics

Comments

The main proposal in the section is that the Seventh Schedule of the Constitution be amended to include “core statistics” in the Union List. This would give the Parliament the legislative competence to regulate the collection, storage, publication and sharing of such statistics, and the Central Government the power to enforce such legislation. Annex-II provides a tentative list of what would constitute “core statistics”; as is apparent, this list is wide-ranging and consists over 120 items which span the gamut of administrative responsibilities.

The list includes items such as “Landholdings Number, area, tenancy, land utilisation [...]” (S. No. 21), and “Statistics on land records” (S. No. 111) while most responsibilities of land regulation currently lie with the States. Similarly, items in Annex-II venture into statistics related to petroleum, water, agriculture, electricity, and industry; some of which are in the Concurrent or State List.

Statistics are metadata. There is no reason for why the administration of a particular subject lie with the State, and the regulation of data about such subject should lie with solely with the Central Government. It is important to recognise that adding the vaguely defined “core statistics” to the Union List, while enabling the Central Government to execute and plan such statistical exercises, will also prevent the States from enacting any legislation that regulates the management of statistics regarding its own administrative responsibilities.

The regulation of State Government records in general has been a contentious issue, and its place in our federal structure has been debated several times in the Parliament: the enactment of Public Records Act, 1993; the Right to Information Act, 2005; and the Collection of Statistics Act, 2008 are predicated on an assumption of such competence lying with the Parliament. However, it is equally important to recognise the role States have played in advancing transparency of Government records. For example, State-level Acts analogous to the Right to Information Act existed in Tamil Nadu and Karnataka before the Central Government enactment.

Recommendations

We strongly recommend that “statistics” be included in the Concurrent List, so that States are free to enact progressive legislation which advances transparency and accountability, and is not in derogation of Parliamentary legislation.

The Ministry should view this statistical policy document as a venue to set the minimum standards for the collection, handling and publication of statistics regarding its various functions. If the item is added to the Concurrent List, the States, through local legislation, will only have the power to improve on the Central standards since in a case of conflict, State-levels laws will be superseded by Parliamentary ones.

Section 5.3: Mechanism for regulating core statistics including auditing

Comments

The draft policy in Section 5.3.2 says, “[...] The Committee will be assisted by a Search Committee headed by the Vice-Chairperson of the NITI Aayog, in which a few technical experts could be included as Members.” The non-commital nature of the word ‘could’ in this statement detracts from the importance of having technical experts on this committee, by making their inclusion optional. The policy also does not specify who has the power to include technical experts as Members in the Search Committee. The statement should include either a minimum number of a specific number or members, and not use the non-committal word “could”

The National Statistical Development Council, as mentioned in 5.3.9, is supposed to “handle Centre-State relations in the areas of official statistics, the Council should be represented by Chief Ministers of six States to be nominated by the Centre” (Section 5.3.10). The draft does not elaborate on the rationale behind including just six states in the Council. It does not recommend any mechanism on the basis of which Centre will nominate states in the council.

Recommendations

The policy should recommend a minimum number of technical experts who must be included in the search committee, along with a clear process for how such members are to be appointed.

Additionally, the policy appropriately recognises the great diversity in India and the unique challenges faced by each State. Thus, each State has its unique requirements. Since in Section 5.3.11, the policy recommends that council meet at a low frequency of at least once in a year, all States should be represented in the Council.

Section 5.4: Official Machinery to implement directions on core statistics

Comments

The functions of Statistics Wing in the MOSPI, laid out in Section 5.4.7, include advisory functions which overlap with functions of National Statistical Commission (NSC) mentioned in Section 5.3.5. Some regulatory functions of Statistics Wing, like “conducting quality checks and auditing of statistical surveys/data sets”, overlap with the regulatory functions of NSC mentioned in Section 5.3.7.

In section 5.3.1, the draft policy explicitly mentions that “what is feasible and desirable is that production of official statistics should continue with the Government, whereas the related regulatory and advisory functions could be kept outside the Government”. But Statistics Wing is a part of the government and it also has regulatory and advisory functions. It will adversely affect the power of NSC as an autonomous body.

There are inconsistencies in the draft-policy regarding the importance and need of a decentralized statistical system. In section 3 [Objectives], it has been emphasized that the Indian Statistical System shall function within decentralized structure of the system. But, in section 5.4.15, the draft says that decentralized statistical system poses a variety of problems, and advocates for a unified statistical system. Again, in section 5.15, draft emphasizes the development of sub-national statistical systems. These views are inconsistent and create confusion regarding the nature of statistical system that policy wants to pursue.

Recommendations

The functions of the NSC should be kept in its exclusive domain. Any such overlapping functions should be allocated to one agency taking into consideration the Fundamental Principles on Official Statistics.

The inconsistencies regarding the decentralisation philosophy of the statistical system should be addressed.

Section 5.5: Identifying statistical products required through committees

Comments

While Section 5.5.2 recognises data confidentiality as a goal for statistical coordination, it does not take into account the violation of privacy that might occur due to the sharing of data. For example, a certain individual might agree to share personal information with a particular Ministry, but have apprehensions about it being shared with other Ministries or private parties.

Recommendations

We recommend that point 4 in Section 5.5.2 be read as, “enabling sharing of data without compromising the privacy of individuals and the confidentiality/security of data.”The value of of the individual privacy stems from both the recent Supreme Court judgment that affirmed privacy as a Fundamental Right, and also Principle 6 of the of the Fundamental Principles of Official Statistics. Realising privacy as a goal in this section will add a realm of individual control that is already articulated in Section 5.7.9.

Annex-VII: Guidelines on Outsourcing statistical activities

Comments

Section 6 defines “sensitive information” in an all-inclusive manner and does not leave space for further inclusion of any information that may be interpreted as sensitive. For example, biometric data has not been listed as “sensitive information”.

Section 9.1, draft says, “[t]he identity of the Government agency and the Contractor may be made available to informants at the time of collection of data”. It is imperative that informants have the right to verify the identity of the Government agency and the Contractor before parting with their personal information.

Recommendations

The definition of “sensitive information” should be broad-based with scope for further inclusion of any kind of data that may be deemed “sensitive.”

Section 9.1 must mandate that the identity of the Government agency and the Contractor be made available to informants at the time of collection of data.

Section 9.6 can be redrafted to state that each informant must be informed of the manner in which the informant could access the data collected from the informant in a statistical project, as also of the measures taken to deny access on that information to others, except in the cases specified by the policy.

Section 10.2 can be improved to state that if information exists in a physical form that makes the removal of the identity of informants impracticable (e.g. on paper), the information should be recorded in another medium and the original records must be destroyed.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-draft-national-policy-on-official-statistics