We are anonymous, we are legion

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

amber — 2021-05-31T09:39:14Z

For more details visit https://cis-india.org/internet-governance/files/it-for-change-february-2021-amber-sinha-regulating-sexist-online-harassment.pdf

Regulating Sexist Online Harassment as a Form of Censorship

amber — 2021-05-31T09:56:31Z

This paper is part of a series under IT for Change’s project, Recognize, Resist, Remedy: Combating Sexist Hate Speech Online. The series, titled Rethinking Legal-Institutional Approaches to Sexist Hate Speech in India, aims to create a space for civil society actors to proactively engage in the remaking of online governance, bringing together inputs from legal scholars, practitioners, and activists. The papers reflect upon the issue of online sexism and misogyny, proposing recommendations for appropriate legal-institutional responses. The series is funded by EdelGive Foundation, India and International Development Research Centre, Canada.

Introduction

The proliferation of internet use was expected to facilitate greater online participation of women and other marginalised groups. However, over the past few years, as more and more people have come online, it is evident that social power in online spaces mirrors offline hierarchies. While identity and security thefts may be universal experiences, women and the LGBTQ+ community continue to face barriers to safety that men often do not, aside from structural barriers to access. Sexist harassment pervades the online experience of women, be it on dating sites, online forums, or social media.

In her book, Twitter and Tear Gas: The Power and Fragility of Networked Protest, Zeynep Tufekci argues that the nature and impact of censorship on social media are very different. Earlier, censorship was enacted by restricting speech. But now, it also works in the form of organised harassment campaigns, which use the qualities of viral outrage to impose a disproportionate cost on the very act of speaking out. Therefore, censorship plays out not merely in the form of the removal of speech but through disinformation and hate speech campaigns.

In most cases, this censorship of content does not necessarily meet the threshold of hate speech, and free speech advocates have traditionally argued for counter speech as the most effective response to such speech acts. However, the structural and organised nature of harassment and extreme speech often renders counter speech ineffective. This paper will explore the nature of online sexist hate and extreme speech as a mode of censorship. Online sexualised harassment takes various forms including doxxing, cyberbullying, stalking, identity theft, incitement to violence, etc. While there are some regulatory mechanisms – either in law, or in the form of community guidelines that address them, this paper argues for the need to evolve a composite framework that looks at the impact of such censorious acts on online speech and regulatory strategies to address them.

Click on to read the full text [PDF; 495 Kb]

For more details visit https://cis-india.org/internet-governance/blog/it-for-change-amber-sinha-regulating-sexist-online-harassment

Regulating Bitcoin in India

vipul — 2017-04-20T13:17:37Z

The article discusses the possible contours of future bitcoin regulation in India. Bitcoin, often considered a ‘notorious’ virtual currency limited only to techies or speculators, is currently fighting a battle to become a bona fide mainstream means of exchange.

While most currencies in the real world have the backing of a central authority of some kind (such as a sovereign or a Central Bank) infusing them with an air of legitimacy, Bitcoin has no such central authority which issues or controls it. Additionally, the distributed and decentralised nature of the Bitcoin network makes regulation a tricky issue. This article seeks to touch upon the issue of Bitcoin regulation and makes certain broad suggestions for the future. It is a follow-up to a previous article by this author discussing the legal treatment of Bitcoin under Indian law, available at http://cis-india.org/internet-governance/bitcoin-legal-regulation-india.

The Reserve Bank of India (RBI) has not exactly been shy in recognising and even regulating technological advances in the financial sector as is evident from their detailed guidelines on Internet Banking,[1] Prepaid Payment Instruments[2] Account Aggregator Regulations,[3] and the consultation paper on proposed regulations for P2P lending platforms,[4] etc. However, though the RBI has acknowledged the existence of Bitcoin (it issued a note cautioning the public against dealing in virtual currencies including Bitcoin way back in 2013[5] and again in 2017[6]), there have been no clear guidelines regarding the same. Nevertheless, Bitcoin has come a long way since its inception and a consensus is emerging amongst the more technically inclined individuals that Bitcoin is infact here to stay.

Even if a sceptical view is taken that Bitcoin may not last for a long time, that does not mean that regulation is useless as there is already a large amount of money invested in Bitcoin entities in India and Bitcoin exchanges seem to be betting big on this sector really taking off - especially in the backdrop of the government’s recent push towards a more digital and less cash dependent economy.

While the Indian government is trying to hard sell the idea of digital payments, primarily using existing banking channels as well as the relatively new National Payments Corporation of India (NPCI) and the various applications that are cropping up around the NPCI’s UPI platform, one must note that going digital could involve high administrative costs. These costs are typically charged by banks and intermediary merchants, and may not be palatable to all stakeholders, as was evident in the recent fracas between petrol pump owners and banks over proposed transactional charges on card payments.[7]

It is this vacuum that alternatives such as prepaid payment instruments and virtual currencies can fill while addressing the concern of high administrative charges, which is likely to be a major hurdle in going digital. Administrative charges for most of these instruments are significantly lower than what existing payment channels charge for digital transactions.[8]

Legality of Bitcoin and the need for Regulation

Bitcoin technology is being widely embraced all over the world, including neighbouring China which has become one of the biggest markets for the uniquely decentralised currency. However the biggest hurdle that Bitcoin enthusiasts see in mainstreaming this technology is the fact that most countries are treading too cautiously around Bitcoin and therefore do not have regulation governing them.

The creation and transfer of Bitcoin is based on an open source cryptographic protocol and is not managed by any central authority.[9] It is the decentralized nature of this virtual currency that makes regulation a major challenge. This does not mean that regulators are not capable of regulating Bitcoin, in fact attempts have been made in several jurisdictions but these are mostly in the discussion stage, for eg. the Washington Department of Financial Institutions (“DFI”) introduced a bill in December, 2016 which proposes amendments to certain portions of the Washington Uniform Money Services Act and includes provisions specific to digital currencies;[10] the U.S. District Court for the Southern District of New York has in a decision in September, 2016 taken the view that Bitcoin is money under the plain meaning of Section 1960, the federal money transmission statute.[11]

This article does not intend to undertake a discussion on how Bitcoin is dealt with in various jurisdictions, but instead is aimed at suggesting a possible way forward for Indian regulators to regulate Bitcoin in a manner that satisfies the regulatory zeal towards security as well as ensures that the technology does not get stifled through overregulation. It is important that the regulators create a balanced regulation because an impractical ecosystem for Bitcoin exchanges and their users, may lead to traders seeking alternative methods of purchasing Bitcoin such as P2P trading, over-the-counter (OTC) markets and underground trading platforms, which are significantly more difficult to regulate.[12]

Suggestions for Regulation

Since Bitcoin is a decentralised cryptocurrency, it is impossible to regulate it through one single centralised point for all transactions. Neither is it feasible to regulate each and every Bitcoin user. A pragmatic compromise between these two extremes could be to regulate the points at which fiat currency or valuable goods enter the Bitcoin system, i.e. the Bitcoin exchanges where people may buy and sell Bitcoin for actual real world money, or websites which offer Bitcoin as a means of payment. Such an approach would reduce the number of points of supervision and lead to effective enforcement of the regulations. The regulations may require any entity providing services such as buying and selling of Bitcoin for actual money, trading in Bitcoin (such as non-cash exchanges) or providing other Bitcoin related services (such as Bitcoin wallets, merchant gateways, remittance facilities, etc.) to be registered with a central government agency, preferably the Reserve Bank of India.

One legal issue regarding the regulation of companies transacting in Bitcoin is whether the RBI has the authority or jurisdiction to regulate Bitcoin in the first place. Without getting into the arguments regarding whether it is a dangerous trend or not, an easy way in which the RBI could ensure it has the authority to regulate Bitcoin would be to follow the path that the RBI adopted while regulating Account Aggregators under the Non-Banking Financial Company - Account Aggregator (Reserve Bank) Directions, 2016 wherein the RBI declared Account Aggregators as Non Banking Finance Companies under section 45-I(f)(iii) thereby getting the authority to regulate and supervise them under section 45JA of the Reserve Bank of India Act, 1934.

The Regulations, once issued by the Reserve Bank of India, can prescribe mandatory registration, capital adequacy provisions, corporate governance conditions, minimum security protocols, Know Your Customer (KYC) requirements and most importantly provide for regular and ongoing reporting requirements as well as supervision of the Reserve Bank of India over the activities of Bitcoin companies.

Any proposed Bitcoin regulatory framework would seek to address certain issues; for the purposes of this article, we will assume that the following three issues are the ones that must necessarily be addressed by a regulatory framework:

Security of the consumer’s property and prevention of fraud on the consumer. In the technology sector this translates into specific emphasis on increased security (against hacking) for accounts that the consumers maintain with the service provider.
India has robust exchange control laws and the inherently decentralised and digital nature of Bitcoin can enable transfer of value from one jurisdiction to another without any oversight by a central agency, potentially violating the exchange control laws of India.
Bitcoin has for long been associated with criminal and nefarious activities, infact many believe that the famous black market website “Silk Road” played a big role in making Bitcoin famous[13] and therefore preventing Bitcoin from being used for illegal activities (or creating a mechanism to ensure a digital trail to help investigations post facto) would be a major issue that the regulations would seek to tackle.

Given the above assumptions, let us examine whether the Regulations suggested above can satisfactorily address the concerns of security of consumers, exchange control, and keeping a tab on criminal activities.

If the regulations provide for minimum capital adequacy requirements as well as registration by the RBI or some other central agency, then the chances of consumers being duped by “fly-by-night” operators would be significantly reduced. The Regulations can also provide for minimum security protocols to be maintained by the companies, which protocols can themselves be developed in concert with Bitcoin experts. Critics may point to the hacking of various Bitcoin exchanges in the recent past, including that of MtGox, in which Bitcoin worth millions of dollars were siphoned off, and argue that the security protocols may not be enough to prevent future instances of hacking. But that is true even for the current security protocols for online banking; and that has not prevented a large number of banks from providing online banking facilities and the RBI regulating the same. The other vital issue that legally mandated security protocols would address (and potentially solve) is the issue of liability in case of hackings. Regulations may provide clarity on this issue and protect innocent customers from negligent companies while at the same time protecting entrepreneurs by defining and limiting the liability for bona fide and vigilant companies.

The other issue that may be of major concern to the authorities is exchange control. India has extremely specific exchange control laws, and if any person in India wants to transfer any amount to any person overseas, the only legal way to do so is through a bank transfer, which requires filling paperwork giving the reason for the transfer (although the RBI and banks usually don’t ask for any proof for small amounts upto a few lakhs). This means that all transfers outside India are done through proper banking channels and are therefore under the supervision of the RBI. However the decentralised nature of Bitcoin enables individuals to transfer money outside the borders of India without going through any banking channels and hence stay completely outside the purview of the RBI’s supervision. Such a system which lets users transfer money beyond national borders outside legal banking channels could be easily misused by nefarious actors and this is exactly what happened as international drug cartels turned to Bitcoin and other digital currencies to move their ill gotten wealth beyond the borders of various countries.[14] Regulating the entities which provide Bitcoin wallets and Bitcoin exchanges will ensure that the RBI can exercise its supervisory jurisdiction over Bitcoin transactions of individual customers even though these transactions do not go through the regular banking channels. The Regulations could impose an obligation on the companies to provide information on any suspicious activities or provide greater information about accounts which see very high volumes, etc. to ensure that Bitcoin is not used to finance organised crime. Thus, the regulations could have provisions that would require the companies providing the Bitcoin wallets or exchanges to flag and monitor customers whose trading accounts or Bitcoin wallets have transactions of an amount greater than a specified limit. This would provide the RBI with the ability to enquire as to the reasons for such high volumes and weed out illegal transactions while at the same time allowing bona fide transactions to continue.

Very closely linked to the issue of exchange control and supervision of transactions is the issue of checking the furtherance of criminal activities using the apparent anonymity offered by Bitcoin. However if the RBI has regulatory oversight over all the Bitcoin companies that are operating in India, then it would be possible for it to keep an eye on most Bitcoin transactions in India as long as the wallet that originates or terminates the transaction has been provided by a Bitcoin service provider located in India. An argument may be made that a criminal may use the services of Bitcoin wallet services provided by companies outside India and therefore outside the purview of the RBI and its regulations. However this argument may not be as plausible as it may seem at first look; if we assume that for any criminal activity the ultimate goal is to get the money in the form of recognizable legal tender (preferably cash or money in a bank account) then it stands to reason that the Bitcoin in the wallet would be exchanged for currency at some point or the other in the chain, which can only be done through a Bitcoin exchange if the transaction is of a fairly high value (which most criminal transactions are) and these exchanges as well as the accounts maintained by them will be under the purview of the RBI, thus providing the law enforcement agencies with the final link in the chain of transactions. Further, the public nature of the blockchain (the ledger where each Bitcoin trade is registered and verified) also makes it possible for the enforcement agencies to follow the trail of money for each and every Bitcoin or part thereof.

Conclusion

From the discussion above, we see that the major arguments that have been given by sceptics regarding Bitcoin and its attractiveness to criminals due to its decentralised nature are actually not very viable on a closer look. Bitcoin and the blockchain technology are extremely important steps in the direction of better and more efficient financial transactions in the global economy, which is why a number of mainstream banks are also showing a keen interest in the blockchain technology.[15] Regulations governing Bitcoin or virtual currencies would clear the air regarding their legal status so that consumers as well as entrepreneurs and investors can invest more money in this technology which could potentially change the way financial transactions are carried out across jurisdictions.

[1] https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=414&Mode=0

[2] https://rbi.org.in/scripts/NotificationUser.aspx?Id=10799&Mode=0

[3] https://www.rbi.org.in/scripts/BS_ViewMasDirections.aspx?id=10598

[4] https://rbidocs.rbi.org.in/rdocs/content/pdfs/CPERR280416.pdf

[5] https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=30247

[6] https://rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=39435

[7] http://timesofindia.indiatimes.com/business/india-business/petrol-pumps-wont-accept-cards-from-monday-to-protest-banks-transaction-fee/articleshow/56402253.cms

[8] For example, currently the network fee for a person to person Bitcoin transfer is 0.0001 Bitcoin, which comes to roughly Rs. 6 per transaction irrespective of the amount involved.

[9] The processing of Bitcoin transactions is secured by servers called Bitcoin “miners”. These servers communicate over an internet-based network and confirm transactions by adding them to a ledger which is updated and archived periodically using peer-to-peer filesharing technology, also known as the “blockchain”. The integrity and chronological order of the blockchain is enforced with cryptography. In addition to archiving transactions, each new ledger update creates some newly-minted Bitcoins.

[10] https://www.virtualcurrencyreport.com/2017/01/washington-department-of-financial-institutions-proposes-virtual-currency-regulation/

[11] https://www.virtualcurrencyreport.com/2016/09/sdny-opinion-re-bitcoin/. For a discussion on how different States and agencies in the United States deal with Bitcoin, please see Misha Tsukerman, “THE BLOCK IS HOT: A SURVEY OF THE STATE OF BITCOIN REGULATION AND SUGGESTIONS FOR THE FUTURE, Berkeley Technology Law Journal, Vol. 30:385, 2015, p. 1127, available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2084&context=btlj .

[12] http://themerkle.com/why-china-isnt-interested-in-banning-bitcoin-importance-of-regulation/

[13] See generally, Nathaniel Popper, “Digital Gold: Bitcoin and the Inside Story of the Misfits and Millionaires Trying to Reinvent Money”, Harper Collins, 2015.

[14] https://www.bloomberg.com/view/articles/2013-11-18/are-bitcoins-the-criminal-s-best-friend-

[15] http://www.morganstanley.com/ideas/big-banks-try-to-harness-blockchain.

For more details visit https://cis-india.org/internet-governance/blog/regulating-bitcoin-in-india

Registering for Aadhaar in 2019

sunil — 2019-01-03T14:59:04Z

It is a lot less scary registering for Aadhaar in 2019 than it was in 2010, given how the authentication modalities have since evolved.

The article was published in Business Standard on January 2, 2019.

Last November, a global committee of lawmakers from nine countries the UK, Canada, Ireland, Brazil, Argentina, Singapore, Belgium, France and Latvia summoned Mark Zuckerberg to what they called an “international grand committee” in London. Mr. Zuckerberg was too spooked to show up, but Ashkan Soltani, former CTO of the FTC was among those who testified against Facebook. He said “in the US, a lot of the reticence to pass strong policy has been about killing the golden goose” referring to the innovative technology sector. Mr. Soltani went on to argue that “smart legislation will incentivise innovation”. This could be done either intentionally or unintentionally by governments. For example, a poorly thought through blocking of pornography can result in innovative censorship circumvention technologies. On other occasions, this can happen intentionally. I hope to use my inaugural column in these pages to provide an Indian example of such intentional regulatory innovation.

Eight years ago, almost to this date, my colleague Elonnai Hickok wrote an open letter to the Parliamentary Finance Committee on what was then called the UID or Unique Identity. She compared Aadhaar to the digital identity project started by the National Democratic Alliance (NDA) government in 2001. Like the Vajpayee administration which was working in response to the Kargil War, she advocated a decentralised authentication architecture using smart cards based on public key cryptography. Last year, even before the five-judge constitutional bench struck down Section 57 of the Aadhaar Act, the UIDAI preemptively responded to this regulatory development by launching offline Aadhaar cards. This was to be expected especially since from the A.P. Shah Committee report, the Puttaswamy Judgment, the B.N. Srikrishna Committee consultation paper, report and bill, the principle of “privacy by design” was emerging as a key Indian regulatory principle in the domain of data protection.

The introduction of the offline Aadhaar mechanism eliminates the need for biometrics during authentication. I have previously provided 11 reasons why biometrics is inappropriate technology for e-governance applications by democratic governments, and this comes as a massive relief for both human rights activists and security researchers. Second, it decentralises authentication, meaning that there is a no longer a central database that holds a 360-degree view of all incidents of identification and authentication. Third, it dramatically reduces the attack surface for Aadhaar numbers, since only the last four digits remain unmasked on the card. Each data controller using Aadhaar will have to generate his/her own series of unique identifiers to distinguish between residents. If those databases leak or get breached, it won’t tarnish the credibility of Aadhaar or the UIDAI to the same degree. Fourth, it increases the probability of attribution in case a data breach were to occur; if the breached or leaked data contains identifiers issued by a particular data controller, it would become easier to hold them accountable and liable for the associated harms. Fifth, unlike the previous iteration of the Aadhaar “card”, on which the QR code was easy to forge and alter, this mechanism provides for integrity and tamper detection because the demographic information contained within the QR code is digitally signed by the UIDAI. Finally, it retains the earlier benefit of being very cheap to issue, unlike smart cards.

Thanks to the UIDAI, the private sector is also being forced to implement privacy by design. Previously, since everyone was responsible for protecting Aadhaar numbers, nobody was. Data controllers would gladly share the Aadhaar number with their contractors, that is, data processors, since nobody could be held responsible. Now, since their own unique identifiers could be used to trace liability back to them, data controllers will start using tokenisation when they outsource any work that involves processing of the collected data. Skin in the game immediately breeds more responsible behaviour in the ecosystem.

The fintech sector has been rightfully complaining about regulatory and technological uncertainty from last year’s developments. This should be addressed by developing open standards and free software to allow for rapid yet secure implementation of these changes. The QR code standard itself should be an open standard developed by the UIDAI using some of the best practices common to international standard setting organisations like the World Wide Web Consortium, Internet Engineers Task Force and the Institute of Electrical and Electronics Engineers. While the UIDAI might still choose to take the final decision when it comes to various technological choices, it should allow stakeholders to make contributions through comments, mailing lists, wikis and face-to-face meetings. Once a standard has been approved, a reference implementation must be developed by the UIDAI under liberal licences, like the BSD licence that allows for both free software and proprietary software derivative works. For example, a software that can read the QR code as well as send and receive the OTP to authenticate the resident. This would ensure that smaller fintech companies with limited resources can develop secure systems.

Since Justice Dhananjaya Y. Chandrachud’s excellent dissent had no other takers on the bench, holdouts like me must finally register for an Aadhaar number since we cannot delay filing taxes any further. While I would still have preferred a physical digital artefact like a smart card (built on an open standard), I must say it is a lot less scary registering for Aadhaar in 2019 than it was in 2010, given how the authentication modalities have since evolved.

For more details visit https://cis-india.org/internet-governance/blog/business-standard-january-2-2019-registering-for-aadhaar-in-2019

Reddit, Telegram among websites blocked in India, say internet groups

Sai Sachin Ravikumar — 2019-04-15T10:32:54Z

Discussion board Reddit, messaging service Telegram and comedy site College Humor have been blocked for intermittent periods, say internet groups.

The article by Sai Sachin Ravikumar was published in Business Standard on April 3, 2019. Gurshabad Grover was quoted.

Websites like Reddit and Telegram are being blocked in India by internet service providers, throwing into question the enforcement of net neutrality rules, advocacy groups said on Wednesday.

Restrictions on "torrent sites" that offer free movie and music downloads are routine in India to prevent copyright infringement. Pornography websites are also blocked by court orders seeking to protect children.

But in recent months, websites such as the discussion board Reddit, messaging service Telegram and comedy site College Humor have been blocked for intermittent periods, often for days and only in some regions, baffling internet users.

"It's not making any sense, what's happening," said Apar Gupta, executive director at the non-profit Internet Freedom Foundation (IFF). "A lot of these blocks are also happening in such a way that no notices are displayed." Since January, there have been at least 250 reports of websites blocked on networks operated by Jio, a unit of Reliance Industries, Bharti Airtel and Hathway, the IFF said in a letter to the telecoms department.

Jio and Airtel are among India's top telecom providers.

Some internet users have posted on social media screenshots of pages displaying messages saying a website was blocked to comply with government orders.

When Reuters tried to access CollegeHumor.com on Wednesday a message read: "Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India."

An official at the telecoms department, which last year approved rules on net neutrality--the concept that all websites and data on the Internet be treated equally--declined to comment when contacted by Reuters.

Complaints by Indian internet users have covered "most forms of net neutrality violations," IFF's Gupta said.

Nearly 60 per cent of the user reports compiled by the foundation since January involved Jio networks, the IFF's data showed.

A Jio representative did not respond to an emailed request for comment. Hathway did not reply to phone and email requests for comment.

Bharti Airtel said in a statement it "supports an open internet" and does not block content unless directed by authorities. It did not say if it was currently blocking any websites.

Reddit did not respond to an emailed request for comment outside regular U.S. business hours.

Telegram, which has been blocked previously in Russia and Iran, did not immediately respond to a phone message seeking comment.

If websites are blocked based on government or court orders, or internet firms have legal grounds to restrict web pages, they might not violate net neutrality rules, said Gurshabad Grover, a researcher at the non-profit Centre for Internet and Society.

"But in this case we're not entirely sure," he said.

Other sites blocked this year include tax portal Taxscan and legal database Indian Kanoon.

After complaints from Jio's internet users, Indian Kanoon founder Sushant Sharma said he had been told by Jio the portal was blocked for one day last week due to a government order.

"By evening, apparently, that order was taken back," said Sharma, whose website has some 150,000 daily visitors.

For more details visit https://cis-india.org/internet-governance/news/business-standard-sai-sachin-ravikumar-april-3-2019-reddit-telegram-among-websites-blocked-in-india

Recruitment Tracker: 21 students placed out of the 49 who sat for recruitment in Christ University’s School of Law, Class of 2012

praskrishna — 2012-06-18T08:45:53Z

The Class of 2012 at the School of Law, Christ University saw 21 students placed out of the 49 who sat for recruitment. The graduating class has a batch strength of 77 students. The batch saw 8 pre-placement offers, 4 students being accepted for LLM’s abroad and 3 students opting for litigation while 1 student opted to appear for the civil services examination.

Published by the Bar & Bench News Network on June 11, 2012

Pangea 3 was the biggest recruiter, bagging four students while Nishith Desai Associates, Murli & Co., Clutch Group and Prudent Insurance Brokers Private Limited hiring two students each. J. Sagar Associates, Linklegal, PXV Law Partners, BMR Advisors and Bajaj Allianz General Insurance Corporation picked up one student each.

The Centre for Internet and Society, human-rights organisation Justice and Care, Teach for India and the Freeland Wildlife Trust hired one student each. Out of the four students who have opted for a Masters programme, two will be going to the National University of Singapore and one each to Cornell University and George Washington University.

At the time of publication, the recruitment process for one student was currently under progress at J. Sagar Associates.

Name of the Company / Firm	Number of Students Recruited
Pangea3	4
Nishith Desai & Associates	2
Murli & Co.	2
Prudent Insurance Brokers	2
Clutch Group	2
BMR Advisors	1
J Sagar Associates	1
Bajaj Allianz General Insurance Corporation	1
PXV Law Partners	1
Link Legal	1
Freeland Wildlife Trust	1
Centre for Internet & Society	1
Justice and Care	1
Teach for India	1
TOTAL	21

For more details visit https://cis-india.org/news/recruitment-tracker-21-students-placed

Reconfiguring Data Governance: Insights from India and the EU

2024-02-20T00:30:00Z

This policy paper is the result of a workshop organised jointly by the Tilburg Institute of Law, Technology and Society, Netherlands, the Centre for Communication Governance at the National Law University Delhi, India and the Centre for Internet & Society, India in January, 2023. The workshop brought together a number of academics, researchers, and industry representatives in Delhi to discuss a range of issues at the core of data governance theory and practice.

The workshop aimed to compare and assess lessons from data governance from India and the European Union, and to make recommendations on how to design fit-for-purpose institutions for governing data and AI in the European Union and India.

This policy paper collates key takeaways from the workshop by grounding them across three key themes: how we conceptualise data; how institutional mechanisms as well as community-centric mechanisms can work to empower individuals, and what notions of justice these embody; and finally a case study of enforcement of data governance in India to illustrate and evaluate the claims in the first two sections.

This report was a collaborative effort between researchers Siddharth Peter De Souza, Linnet Taylor, and Anushka Mittal at the Tilburg Institute for Law, Technology and Society (Netherlands), Swati Punia, Sristhti Joshi, and Jhalak M. Kakkar at the Centre for Communication Governance at the National Law University Delhi (India) and Isha Suri, and Arindrajit Basu at the Centre for Internet & Society, India.

Click to download the report

For more details visit https://cis-india.org/internet-governance/blog/reconfiguring-data-governance-insights-from-india-and-eu

Reclaiming AI Futures: Call for Contributions and Provocations

Divij Joshi — 2020-11-18T09:04:25Z

CIS is pleased to share this call for contributions by Mozilla Fellow Divij Joshi. CIS will be working with Divij to edit, collate, and finalise this publication. This publication will add to Divij’s work as part of the AI observatory. The work is entirely funded by Divij Joshi.

Please visit this link for the full call, and details on how to apply.

For more details visit https://cis-india.org/internet-governance/blog/reclaiming-ai-futures-call-for-contributions-and-provocations

Reading a closed book

radha — 2011-04-02T14:50:00Z

With the right combination of privacy tweaks and a little prudence, you can maintain privacy online - an article in Livemint by Krish Raghav (29th September, 2009)

Perhaps, no other word has undergone as much shape-shifting in the last few years as “privacy”. The concept, especially with the mainstreaming of social networking sites such as Facebook and Orkut, has metamorphosed into a fuzzy mess, with borders increasingly blurry and confines increasingly limited.

The story of Anoushka Shankar’s Facebook stalker may make the Internet look like a dangerous place for the unprepared, but with the right amount of prudence, you can maintain your privacy without having to give up on your online vices. While Facebook has faced enormous criticism for its lax privacy policies in the past, it’s wisened up now and features a detailed master control panel of privacy features, and the right combination of toggles and switches can help you put the personal back in your personal life. Here are five simple ways to help you define privacy online:

Learn the Privacy Settings

Privacy Settings is the second menu option under “Settings” in the big blue bar on top of every Facebook page. An important first step is defining who gets to see your contact information. Not all “friends” on Facebook need to be privy to your telephone number, for example. Proceed to the “Info” tab on your profile and click “Edit” under Contact information. Each item in that list can be customized to be viewable only to specific people.

It’s also best to be careful with what you put up in this section. “Don’t upload material that contains hints to your passwords,” says Sunil Abraham, executive director of the Bangalore-based non-profit civil society group, The Centre for Internet and Society. “Often, the answers to the secret question used to remind users of their password on sensitive online services can be determined by examining social networking content.” The name of your pet, birth date and names of schools are the usual secret questions and common information on profiles. “This is increasingly being targeted by hackers who use social engineering as their method of choice,” he says.

Organize your online social life

“Group your friends and fine-tune access-control over your social network content,” says Abraham. “Facebook allows you to granularly control who sees what. Configure this and then test your configuration before uploading sensitive content.”

Click on “Friends” on the top blue bar and select “Create new list” to begin organizing your friends. A useful distinction to start with is “Family” and “Friends”. While the latter might like to see photos of parties you attended last week, the former may not necessarily need to. It’s also important, says Abraham, to test your groupings to see if everything works. “Testing can be done by sitting with close friends who you can shift from group to group,” he says.

Be discreet

“Don’t upload material that might embarrass your future self: Text, images and video content that might be perfectly acceptable to your teen peers may not be acceptable to a future employer,” says Abraham. Rants against bosses or co-workers are highly unadvised and it’s best to stay away from anything inflammatory or potentially damaging. “Social networks have policies regarding data retention that change according to their commercial ambition and performance. Thus, in future, you may find it impossible to delete embarrassing content.”

Hide yourself from Google

To hide your profile from Google searches, go to “Privacy Settings”, click on “Search Privacy Settings” and deselect the box that says “create a public search listing for me and submit it for search engine indexing”. While that will hide your profile from showing up in search engines, the same can’t be said for content that you post there. “Don’t upload material that you would not want featured in mass media: Security compromises in social network services are usually systemic,” says Abraham. “Last year, 17GB of private photos were stolen from MySpace and were publicly available for download through torrent trackers such as Thepiratebay.org.”

Be careful of applications

Sure, Mafia Wars and FarmVille are great fun, but always read the fine print before using an application. Many are harmless, but some ask you for contact information and others that integrate external online services may make private information on these sites accessible. As an example, don’t give away your geographic location, warns Abraham. “If knowledge about your geographic location can be useful to business competitors, please be judicious when integrating services like Dopplr with your social network.” Dopplr is a site that allows travellers to plan itineraries and arrange meetings with people who might be at the same place at the same time.

Link to article in Livemint

For more details visit https://cis-india.org/news/reading-a-closed-book

re:thinking tomorrow

praskrishna — 2015-06-19T14:12:08Z

The lightning spread of communication technologies has enabled the dissemination of information and ideas that mainstream media have been unwilling or unable to publish.

While the Internet empowers individuals to engage in advocating, mobilising and reacting on behalf of the disempowered, it also raises significant issues of privacy and hate speech when used by the wrong people for the wrong reasons.

Are we at a stage where we can argue that online activism challenges the balance of power between governments and citizens, giving rise to a new form of deliberative and participatory democracy? Or is the transformative power of virtual civil disobedience blown out of proportion? To what extent is the Internet a level playing field where gender, ethnicity or class do not matter? What kinds of legal and political instruments are available to governments and corporations in their efforts to control the Internet? This panel discussion will bring together four female jury members of The BOBS Award 2015 who will seek answers to these and other questions regarding Internet activism, citizen journalism and grassroots mobilisation.

Rohini Lakshané was a panelist at this event organized by Hertie School of Governance at Berlin on May 4, 2015. For more see the event brochure.

For more details visit https://cis-india.org/internet-governance/news/re-thinking-tomorrow

Re: The Human DNA Profiling Bill, 2012

bhairav — 2013-10-29T10:00:47Z

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated drafted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India, which seeks to collect human DNA samples, profile them and store them. These comments are made clause-by-clause against the DBT Bill.

Note: Clause-by-clause comments on the Working Draft version of April 29, 2012 from the Centre for Internet and Society

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated within the Experts Committee constituted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India.
This note must be read against the relevant provisions of the DBT Bill and, where indicated, together with the proposed Forensic DNA Profiling (Regulation) Bill, 2013 that was drafted by the Centre for Internet & Society, Bangalore ("CIS Bill"). These comments must also be read alongside the two-page submission titled “A Brief Note on the Forensic DNA Profiling (Regulation) Bill, 2013” ("CIS Note"). Whereas the aforesaid CIS Note raised issues that informed the drafting of the CIS Bill, this present note seeks to provide legal comments on the DBT Bill.
Preamble
The DBT Bill, in its current working form, lacks a preamble. No doubt, a preamble will be added later once the text of the DBT Bill is finalised. Instead, the DBT Bill contains an introduction. It must be borne in mind that the purpose of the legislation should be spelt out in the preamble since preambular clauses have interpretative value. [See, A. Thangal Kunju Musaliar AIR 1956 SC 246; Burrakur Coal Co. Ltd. AIR 1961 SC 954; and Arnit Das (2000) 5 SCC 488]. Hence, a preamble that states the intent of Parliament to create permissible conditions for DNA source material collection, profiling, retention and forensic use in criminal trials is necessary.
Objects Clause
An ‘objects clause,’ detailing the intention of the legislature and containing principles to inform the application of a statute, in the main body of the statute is an enforceable mechanism to give directions to a statute and can be a formidable primary aid in statutory interpretation. [See, for example, section 83 of the Patents Act, 1970 that directly informed the Order of the Controller of Patents, Mumbai, in the matter of NATCO Pharma and Bayer Corporation in Compulsory Licence Application No. 1 of 2011.] Therefore, the DBT Bill should incorporate an objects clause that makes clear that (i) the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimisation must be adhered to at all times; (ii) DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity; (iii) all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA; (iv) centralised databases are inherently dangerous because of the volume of information that is at risk; (v) forensic DNA profiling is intended to have probative value; therefore, if there is any doubt regarding a DNA profile, it should not be received in evidence by a court; (vi) once adduced, the evidence created by a DNA profile is only corroborative and must be treated on par with other biometric evidence such as fingerprint measurements.
Definitions
The definition of “analytical procedure” in clause 2(1)(a) of the DBT Bill is practically redundant and should be removed. It is used only twice – in clauses 24 and 66(2)(p) which give the DNA Profiling Board the power to frame procedural regulations. In the absence of specifying the content of any analytical procedure, the definition serves no purpose.
The definition of “audit” in clause 2(1)(b) is relevant for measuring the training programmes and laboratory conditions specified in clauses 12(f) and 27. However, the term “audit” is subsequently used in an entirely different manner in Chapter IX which relates to financial information and transparency. This is a conflicting definition. The term “audit” has a well-established use for financial information that does not require a definition. Hence, this definition should be removed.
The definition of “calibration” in clause 2(1)(d) is redundant and should be removed since the term is not meaningfully used in the DBT Bill.
The definition of “DNA Data Bank” in clause 2(1)(h) is unnecessary. The DBT Bill seeks to establish a National DNA Data Bank, State DNA Data Banks and Regional DNA Data Banks vide clause 32. These national, state and regional databases must be defined individually with reference to their establishment clauses. Defining a “DNA Data Bank”, exclusive of the national, state and regional databases, creates the assumption that any private individual can start and maintain a database. This is a drafting error.
The definition of “DNA Data Bank Manager” in clause 2(1)(i) is misleading since, in the text of the DBT Bill, it is only used in relation to the proposed National DNA Data Bank and never in relation to the State and Regional Data Banks. If it is the intention of DBT Bill that only the national database should have a manager, the definition should be renamed to ‘National DNA Data Bank Manager’ and the clause should specifically identify the National DNA Data Bank. This is a drafting error.
The definition of “DNA laboratory” in clause 2(1)(j) should refer to the specific clauses that empower the Central Government and State Governments to license and recognise DNA laboratories. This is a drafting error.
The definition of “DNA profile” in clause 2(1)(l) is too vague. Merely the results of an analysis of a DNA sample may not be sufficient to create an actual DNA profile. Further, the results of the analysis may yield DNA information that, because of incompleteness or lack of information, is inconclusive. These incomplete bits of information should not be recognised as DNA profiles. This definition should be amended to clearly specify the contents of a complete and valid DNA profile that contains, at least, numerical representations of 17 or more loci of short tandem repeats that are sufficient to estimate biometric individuality of a person.
The definition of “forensic material” in clause 2(1)(o) needs to be amended to remove the references to intimate and non-intimate body samples. If the references are retained, then evidence collected from a crime scene, where an intimate or non-intimate collection procedure was obviously not followed, will not fall within the scope of “forensic material”.
The terms “intimate body sample” and “non-intimate body sample” that are defined in clauses 2(1)(q) and 2(1)(v) respectively are not used anywhere outside the definitions clause except for an inconsequential reference to non-intimate body samples only in the rule-making provision of clause 66(2)(zg). “Intimate body sample” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The terms “intimate forensic procedure” and “non-intimate forensic procedure”, that are defined in clauses 2(1)(r) and 2(1)(w) respectively, are not used anywhere except for an inconsequential reference of non-intimate forensic procedure in the rule-making provision of clause 66(2)(zg). “Intimate forensic procedure” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The term “known samples” that is defined in clause 2(1)(s) is not used anywhere outside the definitions clause and should be removed for redundancy.
The definition of “offender” in clause 2(1)(y) if vague because it does not specify the offences for which an “offender” need be convicted. It is also linked to an unclear definition of the term “undertrial”, which does not specify the nature of pending criminal proceedings and, therefore, could be used to describe simple offences such as, for example, failure to pay an electricity bill, which also attracts criminal penalties.
The term “proficiency testing” that is defined in clause 2(1)(zb) is not used anywhere in the text of the DBT Bill and should be removed.
The definitions of “quality assurance”, “quality manual” and “quality system” serve no enforceable purpose since they are used only in relation to the DNA Profiling Board’s rule-making powers under clauses 18 and 66. Their inclusion in the definitions clause is redundant. Accordingly, these definitions should be removed.
The term “suspect” defined in clause 2(1)(zi) is vague and imprecise. The standard by which suspicion is to be measured, and by whom suspicion may be entertained – whether police or others, has not been specified. The term “suspect” is not defined in either the Code of Criminal Procedure, 1973 ("CrPC") or the Indian Penal Code, 1860 ("IPC").
The DNA Profiling Board
Clause 3 of the DBT Bill, which provides for the establishment of the DNA Profiling Board, contains a sub-clause (2) which vests the Board with corporate identity. This vesting of legal personality in the DNA Profiling Board – when other boards and authorities, even ministries and independent departments, and even the armed forces do not enjoy this function – is ill-advised and made without sufficient thought. Bodies corporate may be corporations sole – such the President of India, or corporations aggregate – such as companies. The intent of corporate identity is to create a fictional legal personality where none previously existed in order for the fictional legal personality to exist apart from its members, enjoy perpetual succession and to sue in its own legal name. Article 300 of the Constitution of India vests the Central Government with legal personality in the legal name of the Union of India and the State Governments with legal personality in the legal names of their respective states. Apart from this constitutional dispensation, some regulatory authorities, such as the Telecom Regulatory Authority of India ("TRAI") and the Securities and Exchange Board of India ("SEBI") have been individually vested with legal personalities as bodies corporate to enable their autonomous governance and independent functioning to secure their ability to free, fairly and impartially regulate the market free from governmental or private collusion. Similarly, some overarching national commissions, such as the Election Commission of India and the National Human Rights Commission ("NHRC") have been vested with the power to sue and be sued in their own names. In comparison, the DNA Profiling Board is neither an independent market regulator nor an overarching national commission with judicial powers. There is no legal reason for it to be vested with a legal personality on par with the Central Government or a company. Therefore, clause 3(2) should be removed.
The size and composition of the Board that is staffed under clause 4 is extremely large. Creating unwieldy and top-heavy bureaucratic authorities and investing them with regulatory powers, including the powers of licensing, is avoidable. The DBT Bill proposes to create a Board of 16 members, most of them from a scientific background and including a few policemen and one legal administrator. In its present form, the Board is larger than many High Courts but does not have a single legal member able to conduct licensing. Drawing from the experiences of other administrative and regulatory bodies in India, the size of the Board should be drastically reduced to no more than five members, at least half of whom should be lawyers or ex-judges. The change in the legal composition of the Board is necessary because the DBT Bill contemplates that it will perform the legal function of licensing that must obey basic tenets of administrative law. The current membership may be viable only if the Board is divested of its administrative and regulatory powers and left with only scientific advice functions. Moreover, stacking the Board with scientists and policemen appears to ignore the perils that DNA collection and retention pose to the privacy of ordinary citizens and their criminal law rights. The Board should have adequate representation from the human rights community – both institutional (e.g NHRC and the State Human Rights Commissions) and non-institutional (well-regarded and experienced human rights activists). The Board should also have privacy advocates.
Clauses 5(2) and 5(3) establish an unequal hierarchy within the Board by privileging some members with longer terms than others. There is no good reason for why the Vice-Chancellor of a National Law University, the Director General of Police of a State, the Director of a Central Forensic Science Laboratory and the Director of a State Forensic Science Laboratory should serve membership terms on the Board that are longer than those of molecular biologists, population geneticists and other scientists. Such artificial hierarchies should be removed at the outset. The Board should have one pre-eminent chairperson and other equal members with equal terms.
The Chairperson of the Board, who is first mentioned in clause 5(1), has not been duly and properly appointed. Clause 4 should be modified to mention the appointment of the Chairperson and other Members.
Clause 7 deals with the issue of conflict of interest in narrow cases. The clause requires members to react on a case-by-case basis to the business of the Board by recusing themselves from deliberations and voting where necessary. Instead, it may be more appropriate to require members to make a full and public disclosures of their real and potential conflicts of interest, and then granting the Chairperson the power to prevent such members from voting on interested matters. Failure to follow these anti-collusion and anti-corruption safeguards should attract criminal penalties.
Clause 10 anticipates the appointment of a Chief Executive Officer of the Board who shall be a serving Joint Secretary to the Central Government. Clause 10(3) further requires this officer to be scientist. This may not be possible because the administrative hierarchy of the Central Government may not contain a genetic scientist.
The functions of the Board specified in clause 12 are overbroad. Advising ministries, facilitating governments, recommending the size of funds and so on – these are administrative and governance functions best left to the executive. Once the Board is modified to have sufficient legal and human rights representation, then the functions of the Board can non-controversially include licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority.
DNA Laboratories
The provisions of Chapters V and VI may be simplified and merged.
DNA Data Banks
The creation of multiple indices in clause 32(4) cannot be justified and must be removed. The collection of biological source material is an invasion of privacy that must be conducted only in strict conditions when the potential harm to individuals is outweighed by the public good. This balance may only be struck when dealing with the collection and profiling of samples from certain categories of offenders. The implications of collecting and profiling DNA samples from corpses, suspects, missing persons and others are vast and have either not been properly understood or deliberately ignored. At this moment, the forcible collection of biological source material should be restricted to the categories of offenders mentioned in the Identification of Prisoners Act, 1920 ("Prisoners Act") with a suitable addition for persons arrested in connection with certain specified terrorism-related offences. Therefore, databases should contain only an offenders’ index and a crime scene index.
Clause 32(6), which requires the names of individuals to be connected to their profiles, and hence accessible to persons connected with the database, should be removed. DNA profiles, once developed, should be anonymised and retained separate from the names of their owners.
Clause 36, which allows international disclosures of DNA profiles of Indians, should be removed immediately. Whereas an Indian may have legal remedies against the National DNA Data Bank, he/she certainly will not be able to enforce any rights against a foreign government or entity. This provision will be misused to rendition DNA profiles abroad for activities not permitted in India. Similarly, as in data protection regimes around the world, DNA profiles should remain within jurisdictions with high privacy and other legal standards.
Use
The only legitimate purpose for which DNA profiles may be used is for establishing the identity of individuals in criminal trials and confirming their presence or absence from a certain location. Accordingly, clauses 39 and 40 should be re-drafted to specify this sole forensic purpose and also specify the manner in which DNA profiles may be received in evidence. For more information on this point, see the relevant provisions of the CIS Note and the CIS Bill.
The disclosure of DNA profiles should only take place to a law enforcement agency conducting a valid investigation into certain offences and to courts currently trying the individuals to whom the DNA profiles pertains. All other disclosures of DNA profiles should be made illegal. Non-consensual disclosure of DNA profiles for the study of population genetics is specifically illegal. The DBT Bill does not prescribe stringent criminal penalties and other mechanisms to affix individual liability on individual scientists and research institutions for improper use of DNA profiles; it is therefore open to the criticism that it seeks to sacrifice individual rights of persons, including the fundamental right to privacy, without parallel remedies and penalties. Clause 40 should be removed in entirety.
Clause 43 should be removed in entirety. This note does not contemplate the retention of DNA profiles of suspects and victims, except as derived from a crime scene.
Clause 45 sets out a post-conviction right related to criminal procedure and evidence. This would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights. However, courts may re-try cases in certain narrow cases when fresh evidence is brought forth that has a nexus to the evidence upon which the person was convicted and if it can be proved that the fresh evidence was not earlier adduced due to bias. Any other fresh evidence that may be uncovered cannot prompt a new trial. Clause 45 is implicated by Article 20(2) of the Constitution of India and by section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721].

For more details visit https://cis-india.org/internet-governance/blog/re-the-human-dna-profiling-bill-2012

Re-Wiring Women's Rights Debates in the Digital Age

praskrishna — 2015-02-12T17:07:32Z

IT for Change in partnership with Kutch Mahila Vikas Sangathan and ANANDI organized this event on September 13 and 14, 2014. Rohini Lakshane participated as a speaker.

Website:
http://www.itforchange.net/ITfC_Course_Re-wiring_womens_rights/index.php/Agenda

Speakers List:
http://www.itforchange.net/ITfC_Course_Re-wiring_womens_rights/index.php/Session_speakers

Video

For more details visit https://cis-india.org/internet-governance/news/re-wiring-women-rights-debates-in-digital-age

Re-thinking Key Escrow

natasha — 2011-08-22T11:44:21Z

Would you make duplicates of your house keys and hand them over to the local police authority? And if so, would you feel safe? Naturally, one would protest this invasion of privacy. Similarly, would it be justified for the government to have a copy of the private key to intercept and decrypt communications? This is the idea behind key escrow; it enables government ‘wiretapping’.

The evolution of technology has allowed for increased communication and interconnectedness among people, markets and institutions all over the globe. This has increasingly facilitated the transaction and exchange of all kinds of information. However, this has raised major ethical concerns surrounding the privacy of communication and security of information. Key encryption is an important tool developed to preserve an individual’s privacy. It involves transforming information, so as to ensure that it is unreadable. The need for encryption is irrefutable.

Governments and authorities are concerned with the difficulties associated with accessing and intercepting the encrypted communication. For lawful interception a recovery key is escrowed with a trusted third party. Key escrow is controversial as it is vulnerable to lawful interception and has the potential to threaten the security of sensitive and personal data. In India, key escrow is a requirement under the Indian Internet Service Provider (ISP) license. This means that an ISP, a law enforcement agency, or other party has the potential to partake in covert surveillance and maliciously use the key, thereby compromising the data.

In a short video Jim X. Dempsey, Vice President of Public Policy at the Centre for Democracy and Technology in Washington, DC reviews the public policy battle over key escrow in the United States that took place in the 1990's. At the time the U.S government’s approach to encryption technology involved the use of key escrow in communication devices. One danger of using key escrow in this way was that it allowed for the commercial use of encryption technology, provided that a copy of the private key is held in escrow by the U.S. government. The use of key escrow also permitted the U.S. government to decrypt all data transmitted across communication networks. The risks associated with the use of key escrow led to widespread dissatisfaction from the private sector in the U.S., which ultimately led to the rejection of encryption technology by the President and Congress. In response to the strong negative feedback given by different stakeholders, the US government lifted the controls on encryption technology thereby allowing it to become widely available.

The use of key escrow in India should be seriously reconsidered. Foremost, it subverts basic constitutional practices by violating various freedoms and civil liberties guaranteed in the fundamental rights. Secondly, it threatens the security of personal information. Lastly, it could significantly hinder the growth of e-commerce, transactions, and purchases made over the Internet. The Indian government should take into consideration the failed attempt in implementing the system of key escrow in the United States when deciding on whether or not to implement the use of key escrow in India.

Please see Jim Dempsey’s account on the Short History of Key Escrow.

For more details visit https://cis-india.org/internet-governance/blog/privacy/key-escrow

RBI Directions on Account Aggregators

Vipul Kharbanda and Elonnai Hickok — 2016-10-21T15:25:01Z

The Reserve Bank of India's (RBI) Directions for account aggregator services in India seem to lay great emphasis on data security by allowing only direct access between institutions and do away with data scraping techniques.

These days’ people have access to various financial services and manage their finances in a diverse manner while dealing with a large number of financial service providers, each providing one or more services that the user may need such as banking, credit card services, investment services, etc. This multiplicity of financial service providers could make it inconvenient for the users to keep track of their finances since all the information cannot be provided at the same place. This problem is sought to be solved by the account aggregators by providing all the financial data of the user at a single place. Account aggregation is the consolidation of online financial account information (e.g., from banks, credit card companies, etc.) for online retrieval at one site. In a typical arrangement, an intermediary (e.g., a portal) agrees with a third party service provider to provide the service to consumers, the intermediary would then generally privately label the service and offer consumers access to it at the intermediary’s website.[1] There are two major ways in which account aggregation takes place, (i) direct access: wherein the account aggregator gets direct access to the data of the user residing in the computer system of the financial service provider; and (ii) scraping: where the user provides the account aggregator the username and password for its account in the different financial service providers and the account aggregator scrapes the information off the website/portal of the different financial service providers.

Since account aggregation involves the use and exchange of financial information there could be a number of potential risks associated with it such as (i) loss of passwords; (ii) frauds; (iii) security breaches at the account aggregator, etc. It is for this reason that on the advice of the Financial Stability and Development Council,[2] the Reserve Bank of India (“RBI”) felt the need to regulate this sector and on September 2, 2016 issued the Non-Banking Financial Company - Account Aggregator (Reserve Bank) Directions, 2016 to provide a framework for the registration and operation of Account Aggregators in India (the “Directions”). The Directions provide that no company shall be allowed to undertake the business of account aggregators without being registered with the RBI as an NBFC-Account Aggregator. The Directions also specify the conditions that have to be fulfilled for consideration of an entity as an Account Aggregator such as:

the company should have a net owned fund of not less than rupees two crore, or such higher amount as the Bank may specify;
the company should have the necessary resources and wherewithal to offer account aggregator services;
the company should have adequate capital structure to undertake the business of an account aggregator;
the promoters of the company should be fit and proper individuals;
the general character of the management or proposed management of the company should not be prejudicial to the public interest;
the company should have a plan for a robust Information Technology system;
the company should not have a leverage ratio of more than seven;
the public interest should be served by the grant of certificate of registration; and
Any other condition that made be specified by the Bank from time to time.[3]

The Direction further talk about the responsibilities of the Account Aggregators and specify that the account aggregators shall have the duties such as: (a) Providing services to a customer based on the customer’s explicit consent; (b) Ensuring that the provision of services is backed by appropriate agreements/ authorisations between the Account Aggregator, the customer and the financial information providers; (c) Ensuring proper customer identification; (d) Sharing the financial information only with the customer or any other financial information user specifically authorized by the customer; (e) Having a Citizen's Charter explicitly guaranteeing protection of the rights of a customer.[4]

The Account Aggregators are also prohibited from indulging in certain activities such as: (a) Support transactions by customers; (b) Undertaking any other business other than the business of account aggregator; (c) Keeping or “residing” with itself the financial information of the customer accessed by it; (d) Using the services of a third party for undertaking its business activities; (e) Accessing user authentication credentials of customers; (f) Disclosing or parting with any information that it may come to acquire from/ on behalf of a customer without the explicit consent of the customer.[5] The fact that there is a prohibition on the information accessed from actually residing with the Account Aggregator will ensure greater security and protection of the information.

Consent Framework

The Directions specify that the function of obtaining, submitting and managing the customer’s consent should be performed strictly in accordance with the Directions and that no information shall be retrieved, shared or transferred without the explicit consent of the customer.[6] The consent is to be taken in a standardized artefact, which can also be obtained in electronic form,[7] and shall contain details as to (i) the identity of the customer and optional contact information; (ii) the nature of the financial information requested; (iii) purpose of collecting the information; (iv) the identity of the recipients of the information, if any; (v) URL or other address to which notification needs to be sent every time the consent artefact is used to access information; (vi) Consent creation date, expiry date, identity and signature/ digital signature of the Account Aggregator; and (vii) any other attribute as may be prescribed by the RBI.[8] The account aggregator is required to inform the customer of all the necessary attributes to be contained in the consent artefact as well as the customer’s right to file complaints with the relevant authorities.[9] The customers shall also be provided an option to revoke consent to obtain information that is rendered accessible by a consent artefact, including the ability to revoke consent to obtain parts of such information.[10]

Comments: While the Directions have specific provisions regarding how the financial data shall be dealt with, it is pertinent to note that the actual consent artefact also has personal information and it is not clear whether Account Aggregators are allowed disclose that information to third parties are not.

Disclosure and sharing of financial information

Financial information providers such as banks, mutual funds, etc. are allowed to share information with account aggregators only upon being presented with a valid consent artifact and also have the responsibility to verify the consent as well as the credentials of the account aggregator.[11] Once the verification is done, the financial information provider shall digitally sign the financial information and transmit the same to the Account Aggregator in a secure manner in real time, as per the terms of the consent.[12] In order to ensure smooth flow of data, the Directions also impose an obligation on financial information providers to:

implement interfaces that will allow an Account Aggregator to submit consent artefacts, and authenticate each other, and enable secure flow of financial information;
adopt means to verify the consent including digital signatures;
implement means to digitally sign the financial information; and
maintain a log of all information sharing requests and the actions performed pursuant to such requests, and submit the same to the Account Aggregator.[13]

Comments: The Directions provide that the Account Aggregator will not support any transactions by the customers and this seems to suggest that in case of any mistakes in the information the customer would have to approach the financial information provider and not the Account Aggregator.

Use of Information

The Directions provide that in cases where financial information has been provided by a financial information provider to an Account Aggregator for transferring the same to a financial information user with the explicit consent of the customer, the Account Aggregator shall transfer the same in a secure manner in accordance with the terms of the consent artefact only after verifying the identity of the financial information user.[14] Such information, as well as information which may be provided for transferring to the customer, shall not be used or disclosed by the Account Aggregator or the Financial Information user except as specified in the consent artefact.[15]

Data Security

The Directions specify that the business of an Account Aggregator will be entirely Information Technology (IT) driven and they are required to adopt required IT framework and interfaces to ensure secure data flows from the financial information providers to their own systems and onwards to the financial information users.[16] This technology should also be scalable to cover any other financial information or financial information providers as may be specified by the RBI in the future.[17] The IT systems should also have adequate safeguards to ensure they are protected against unauthorised access, alteration, destruction, disclosure or dissemination of records and data.[18] Information System Audit of the internal systems and processes should be in place and be conducted at least once in two years by CISA certified external auditors whose report is to be submitted to the RBI.[19] The Account Aggregators are prohibited from asking for or storing customer credentials (like passwords, PINs, private keys) which may be used for authenticating customers to the financial information providers and their access to customer’s information will be based only on consent-based authorisation (for scraping).[20]

Grievance Redressal

The Directions require the Account Aggregator to put in place a policy for handling/ disposal of customer grievances/ complaints, which shall be approved by its Board and also have a dedicated set-up to address customer grievances/ complaints which shall be handled and addressed in the manner prescribed in the policy.[21] The Account Aggregator also has to display the name and details of the Grievance Redressal Officer on its website as well as place of business.[22]

Supervision

The Directions require the Account Aggregators to put in place various internal checks and balances to ensure that the business of the Account Aggregator does not violate any laws or regulations such as constitution of an Audit Committee, a Nomination Committee to ensure the “fit and proper” status of its Directors, a Risk Management Committee and establishment of a robust and well documented risk management framework.[23] The Risk Management Committee is required to (a) give due consideration to factors such as reputation, customer confidence, consequential impact and legal implications, with regard to investment in controls and security measures for computer systems, networks, data centres, operations and backup facilities; and b) have oversight of technology risks and ensure that the organisation’s IT function is capable of supporting its business strategies and objectives.[24] Further the RBI also has the power to inspect any Account Aggregator at any time.[25]

Penalties

The Directions themselves do not provide for any penalties for non compliance, however since the Directions are issued under Section 45JA of the Reserve Bank of India Act, 1934 (“RBI Act”), this means that any contravention of these directions will be punishable under Section 58B of the RBI Act which provides for an imprisonment of upto 3 years as well as a fine for any contravention of such directions.

Conclusion

The Directions by the RBI provide a number of regulations and checks on Account Aggregators with the view to ensure safety of customer financial data. These Directions appear to be quite trendsetting in the sense that in most other jurisdictions such as the United States or even Europe there are no specific regulations governing Account Aggregators but their activities are mainly being governed under existing privacy or consumer protection legislations.[26]

The entire regulatory regime for Account Aggregators seems to suggest that the RBI wants Account Aggregators to be like funnels to channel information from various platforms right to the customer (or financial information user) and it does not want to take a chance with the information actually residing with the Account Aggregators. Further, by prohibiting Account Aggregators from accessing user authentication credentials, the RBI is trying to eliminate the possibility of this information being leaked or stolen. Although this may make it more onerous for Account Aggregators to provide their services, it is a great step to ensure the safety and security of customer data.

In recent months the RBI has been trying to actively engage with the various new products being introduced in the financial sector owing to various technological advancements, be it the circular informing the public about the risks of virtual currencies including Bitcoin, the consultation paper on P2P lending platforms or these current guidelines on Account Aggregators. These recent actions of the RBI seem to suggest that the RBI is well aware of various technological advancements in the financial sector and is keeping a keen eye on these technologies and products, but appears to be taking a cautious and weighted approach regarding how to deal with them.

[1] Ann S. Spiotto, Financial Account Aggregation: The Liability Perspective, Fordham Journal of Corporate & Financial Law, 2006, Volume 8, Issue 2, Article 6, available at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1181&context=jcfl

[2] https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=34345

[3] Clause 4.2.2 of the Directions.

[4] Clause 5 of the Directions.

[5] Clause 5 of the Directions.

[6] Clauses 6.1 and 6.2 of the Directions.

[7] Clause 6.4 of the Directions.

[8] Clause 6.3 of the Directions.

[9] Clause 6.5 of the Directions.

[10] Clause 6.6 of the Directions.

[11] Clauses 7.1 and 7.2 of the Directions.

[12] Clauses 7.3 and 7.4 of the Directions.

[13] Clause 7.5 of the Directions.

[14] Clause 7.6.1 of the Directions.

[15] Clause 7.6.2 of the Directions.

[16] Clause 9(a) of the Directions.

[17] Clause 9(c) of the Directions.

[18] Clause 9(d) of the Directions.

[19] Clause 9(f) of the Directions.

[20] Clause 9(b) of the Directions.

[21] Clauses 10.1 and 10.2 of the Directions.

[22] Clause 10.3 of the Directions.

[23] Clauses 12.2, 12.3 and 12.4 of the Directions.

[24] Clause 12.4 of the Directions.

[25] Clause 15 of the Directions.

[26] http://www.canadiancybersecuritylaw.com/2016/07/german-regulator-finds-banks-data-rules-impede-non-bank-competitors/

For more details visit https://cis-india.org/internet-governance/blog/rbi-directions-on-account-aggregators

RBI Ban on Cryptocurrencies not backed by any data or statistics

vipul — 2020-03-05T18:35:48Z

In March 2020, the Supreme Court of India quashed the RBI order passed in 2018 that banned financial services firms from trading in virtual currency or cryptocurrency. Keeping this policy window in mind, the Centre for Internet & Society will be releasing a series of blog posts and policy briefs on cryptocurrency regulation in India

On April 6, 2018 the RBI issued a circular preventing all Commercial and Co-operative Banks, Payments Banks, Small Finance Banks, NBFCs, and Payment System Providers not only from dealing in virtual currencies themselves but also directing them to stop providing services to all entities which deal with virtual currencies. The RBI had issued a Press Release cautioning the public against dealing in virtual currencies including Bitcoin in 2013. However, the growing popularity of cryptocurrencies and its adoption by large numbers of Indian users, may have been the reason which forced the RBI to issue another Press Release in February 2017 reiterating its earlier concerns regarding cryptocurrencies raised in its earlier circular of 2013. In December 2017 both the RBI as well as the Ministry of Finance issued Press Releases cautioning the general public about the dangers and risks associated with cryptocurrencies, finally culminating in the circular dated April 6, 2018 banning financial institutions from dealing with cryptocurrency traders. As a result of this circular the operations of cryptocurrency exchanges took a severe hit and the number of transactions on these exchanges reduced substantially. The cryptocurrency market in India all but disappeared with only a few extremely determined enthusiasts still dealing in cryptocurrencies, at the risk of potentially depriving themselves of banking services altogether.

The RBI circular was challenged in the Supreme Court by the Internet and Mobile Association of India; final arguments in the case were concluded only in the last week of January, 2020 with the judgment of the Supreme Court being awaited. Generally speaking, whenever such policy decisions of the executive branch are challenged in the courts, a well accepted defense for the executive authorities, specifically in highly complicated fields such as finance, etc. is that the decision was taken by an expert body using its expertise in the field. The basic rationale underlying this argument is that the authority has relied on verifiable data and used its expertise to analyse the same in order to arrive at its decision.

However, it appears from the response by the RBI to an RTI query by Centre for Internet and Society, that requested the RBI for a copy of all reports, papers, opinions and advice that was relied upon for issuing the April 6, 2018 circular, that the RBI has not relied upon any such data to come to a conclusion that banking services should be denied to all those entities dealing in cryptocurrencies. It appears from the response to the RTI query that it was the RBI’s own previous circulars and press releases which formed the basis for the April 6, 2018 circular. This response completely undermines the argument that the decision by the RBI was taken after an analysis of all the facts and statistics concerned with cryptocurrency trading.

Not only does the RTI response weaken the commonly accepted defense of an expert body making a well-reasoned decision, but it also strengthens another legal ground for challenging the decision of the RBI, viz. arbitrariness. One of the grounds on which executive decisions can be challenged is that the decision was made without taking into account relevant material and without the application of mind. The admission by the RBI in its RTI response that there is no material relied upon by the RBI, except its own previous Press Releases, only strengthens the argument that the decision was made in an arbitrary manner.

Such an admission by the RBI regarding the process followed before issuing the April 6, 2018 circular reduces the credibility of the decision itself. However it remains to be seen whether the Supreme Court of India agrees with the arguments of the petitioners challenging the April 6, 2018 circular, even though the petitioners may not have been able to produce this RTI response from the RBI to further bolster their case.

For more details visit https://cis-india.org/internet-governance/blog/rbi-ban-on-cryptocurrencies-not-backed-by-any-data-or-statistics