We are anonymous, we are legion

Internet Shutdowns in 2016

japreet — 2017-04-28T13:50:09Z

An internet shutdown is an intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.

Download the report: PDF

There is no consolidated research on internet shutdowns worldwide and government policies relating to this phenomenon. Access, however, has been tracking instances of internet shutdowns here. According to this tracker, there were 56 internet shutdowns worldwide in 2016.

In this report, we have identified countries where shutdowns took place more than once in the past one year. We were able to identify these countries from the tracker that is being operated by Access. We have looked at the internet shutdown practices and government policies on shutdowns in these countries. The countries include Brazil, Egypt, Ethiopia, Gambia, India, Iraq, Pakistan, Syria, Turkey and Uganda.

We have greatly relied on media coverage of internet shutdowns in the aforementioned countries and reports by various organisations including Freedom House, Amnesty International, Human Rights Watch, Article 19, Access, Electronic Frontier Foundation, Brookings Institution, Annenberg School of Communication, OSCE, Centre for Communication Governance, OONI and Dyn documenting and/or analysing internet censorship in these countries.

While documenting internet shutdown practices in the countries identified above, we have looked at the geographical coverage of a shutdown i.e. whether it was carried out nationwide or in specific regions and type of internet services that were restricted i.e. whether access was restricted to the whole internet, mobile internet services or specific messaging services and/or applications. In this regard, we have referred to a report published by the Brookings Institution, Internet shutdowns cost countries $2.4 billion last year that has analysed the economic impact of internet shutdowns. In this report, the author has identified six categories of disruptions: national internet, subnational internet, national mobile internet, subnational mobile internet, national app/service, and subnational app/ service. I have used this classification to understand and document internet shutdown practices in the aforementioned countries.

This report was featured on the website of the Keep Us Online campaign led by the Internet Freedom Foundation.

For more details visit https://cis-india.org/internet-governance/blog/internet-shutdowns-in-2016

Aadhaar: A widening net

praskrishna — 2017-04-22T05:06:23Z

As India makes Aadhaar compulsory for a range of services, concerns about potential data breaches remain more than six years after the govt started building the world’s largest biometric identification system.

The article by Komal Gupta, Apurva Vishwanath and Suranjana Roy was published in Livemint on April 21, 2017. Pranesh Prakash was quoted.

On 29 March, a storm broke out on social media after private data that former Indian cricket captain M.S. Dhoni had furnished to get enrolled in India’s unique identity system, known as Aadhaar, were leaked online.

The popular cricketer’s wife, Sakshi, flagged the matter on Twitter, tagging information technology (IT) minister Ravi Shankar Prasad. “Is there any privacy left? Information of Aadhaar card, including application, is made public property,” Sakshi fumed on the microblogging site.

The minister replied: “Sharing personal information is illegal. Serious action will be taken against this.”

It turned out to be the fault of an overenthusiastic common services centre in Dhoni’s home town of Ranchi licensed to enrol people in Aadhaar. The centre was promptly blacklisted. “We have ordered further inquiry on the matter and action will be taken against all those involved in the leak,” said Ajay Bhushan Pandey, chief executive officer of the Unique Identification Authority of India (UIDAI), which administers Aadhaar.

The matter blew over soon enough, but it served to illustrate the lingering concerns about potential data breaches and privacy violations surrounding Aadhaar, which has become the world’s largest biometric identification database with 1.13 billion people enrolled in it in the past six years.

The project, under which a 12-digit identification number is to be allotted to every Indian resident, was originally supposed to be a way of plugging leakages in the delivery of state benefits such as subsidized grains to the poor.

It has now become mandatory for everything ranging from opening a bank account and getting a driver’s licence or a mobile phone connection to filing of income tax returns. Even government school students entitled to a free mid-day meal need an Aadhaar number.

The use of Aadhaar has only expanded with the government going on an overdrive to promote cashless transactions and payment systems linked to the biometric ID system after banning old, high-value bank notes in November in a crackdown on unaccounted wealth hidden away from the taxman.

For instance, the Aadhaar-Enabled Payment System (AEPS) empowers a bank customer to use Aadhaar as her identity to access her Aadhaar-enabled bank account and perform basic banking transactions like cash deposit or withdrawal through a bank agent or business correspondent.

The customer can carry out transactions by scanning her fingerprint at any micro ATM or biometric point-of-sale (POS) terminal, and entering the Aadhaar number linked to the bank account. A merchant-led model of AEPS, called Aadhaar Pay, has also been launched.

Last week, Prime Minister Narendra Modi launched the BHIM-Aadhaar platform—a merchant interface linking the unique identification number to the Bharat Interface for Money (BHIM) mobile application. This will enable merchants to receive payments through fingerprint scans of customers.

“Any citizen without access to smartphones, Internet, debit or credit cards will be able to transact digitally through the BHIM-Aadhaar platform,” a government statement said.

Aadhaar’s growing importance in the economy has only served to deepen concerns about potential data breaches. And there are other concerns as well.

For instance, the Aadhaar biometric authentication failure rate in the rural job guarantee scheme, which assures 100 days of work a year to one member of every rural household, is as high as 36% in the southern state of Telangana, according to data released by the state government.

“Aadhaar is supposed to be an enabler and it will happen only when it is made voluntary. Biometric authentications might fail due to poor data connectivity and transactions might not happen even though the Aadhaar number of the person is there; so, what’s the benefit,” asked Pranesh Prakash, policy director of the Centre for Internet and Society, a Bengaluru-based think tank.

Aadhaar was the brainchild of the previous United Progressive Alliance (UPA) government, which lost power in the 2014 general election to the National Democratic Alliance (NDA). The first 10 Aadhaar numbers were handed over to residents of a small village called Tembhli in Maharashtra on 29 September 2010 in the presence of then prime minister Manmohan Singh, Congress party president Sonia Gandhi and Aadhaar’s chief architect Nandan Nilekani, a co-founder of software services giant Infosys Ltd.

After coming to power, the NDA systematically went about making Aadhaar the pivot of government welfare programmes. In March last year, Parliament passed the Aadhaar Bill to make the use of Aadhaar mandatory for availing of government subsidies despite resistance from opposition parties.

Last month, finance minister Arun Jaitley said the 12-digit number would eventually become a single, monolithic proof of identity for every Indian, replacing every other identity card.

To be sure, Aadhaar has helped the government better target beneficiaries of its welfare programmes, cutting out middlemen and corruption. For instance, the government claims to have saved about Rs50,000 crore in cooking gas subsidies by linking the Aadhaar number with bank accounts in which the subsidy is directly transferred.

Yet, Aadhaar has its critics, who have challenged the project on grounds including potential compromise of national security, violation of the right to privacy and exclusion of people from welfare programmes. The Supreme Court has cautioned the government that no citizen can be denied access to welfare programmes for lack of an Aadhaar number.

Before cricketer Dhoni’s data breach made the headlines, in February, UIDAI filed a complaint against Axis Bank Ltd, business correspondent Suvidhaa Infoserve and e-sign provider eMudhra, alleging they had attempted unauthorized authentication and impersonation by illegally storing Aadhaar biometrics. The breach was noticed after one individual performed 397 biometric transactions between 14 July 2016 and 19 February 2017. All three entities have been temporarily barred from offering Aadhaar-related services until UIDAI makes a final decision.

Pranesh Prakash of the Centre for Internet and Society said rules on the use of Aadhaar data are inadequate.

“UIDAI is allowed to share the information of a person from its database on its website, after taking proper consent of that person. However, there is no law which states what should be done if any other party does that with the same individual. Such rules must be in place,” Prakash said.

Four years after the Aadhaar project took off, a retired judge took the government to court. K. Puttaswamy, a former judge of the Karnataka high court, moved the Supreme Court in 2013, arguing that Aadhaar violated his fundamental right to privacy under the constitution. The case opened the gates for legal challenges to Aadhaar. Over the next few years till date, at least a dozen cases had questioned the legality of the project.

Ramon Magsaysay award winner Aruna Roy brought a case on behalf of manual workers whose faint finger prints, she said, often go undetected. Currently, only 44 million out of the 101 million beneficiaries of India’s rural job entitlement are paid through Aadhaar.

To be sure, India’s Constitution does not contain a black and white reference to a “fundamental right to privacy”, that the government cannot violate. The list of rights says “no person shall be deprived of his life or personal liberty except according to a procedure established by law”—often interpreted by courts as an all-encompassing right including right to live with dignity, right to speedy justice and even a right to clean air.

Nilekani, the man behind Aadhaar, has cautioned that privacy is a broader issue involving how people retain their privacy in day-to-day life. “Privacy is an all-encompassing issue because of the rapid rate of digitization the world is seeing. Your smartphone has sensors, GPS and is generating more and more information about everything; voice-activated devices could also be recording your conversations. There’s a profusion of CCTV cameras at malls, restaurants, ATMs recording your movements,” Nilekani said in a recent interview with The Economic Times.

But this is where a problem arises. Although there is concurrence on the need for a privacy law, there is a great reluctance on the part of the government to come out with one.

“We don’t have a comprehensive privacy law; all our databases are unlinked. The government is trying to link the databases using Aadhaar for all schemes but a separate privacy law must be there for protecting any piece of information, whether or not linked to Aadhaar,” said Rahul Matthan, a partner at law firm Trilegal and a Mint columnist.

Matthan said first a privacy law must be put in place and then there has to be a discussion on what all it must include.

The government on its part pointed out that India’s apex court itself has been indecisive on a right to privacy.

“The larger question on privacy needs to be settled by the court. Till then, one cannot comment on secondary concerns,” attorney general Mukul Rohatgi said in an interview.

In 2015, the Supreme Court decided that a bench of at least seven judges will rule on the privacy issue, while clarifying that the government cannot make Aadhaar a mandatory proof of identity for its welfare schemes. Twenty months after the judicial order, the larger bench is yet to be formed by the apex court. The passing of the Aadhaar Act in Parliament to provide statutory backing to Aadhaar also indicates a departure from the Indian government’s position of not taking a legislative stand while an issue is under the apex court’s consideration.

For example, one of the reasons the Indian government has shown restraint in repealing a colonial law that criminalizes homosexuality is because the apex court is seized of the issue.

In the absence of legislation and pending an authoritative ruling by the top court, whether 1.3 billion Indians are entitled to their privacy remains a grey area. Meanwhile, the government is seemingly in the final stretch of its Aadhaar enrolment drive.

For more details visit https://cis-india.org/internet-governance/news/livemint-april-21-2017-komal-gupta-apurva-vishwanath-suranjana-roy-aadhaar-a-widening-net

Sunil Abraham: Honorary steward September 2017

praskrishna — 2017-04-20T13:30:23Z

Shuttleworth Foundation has announced Sunil Abraham as Honorary Steward for its September 2017 fellowship round.

Sunil Abraham is the Executive Director of Bangalore based research organisation, the Centre for Internet and Society.

“I have admired the stewardship of the Shuttleworth Foundation towards the access to knowledge and free culture movements ever since I interviewed Mark Shuttleworth at WSIS 2005. Many of my personal heroes have become Fellows over the years and it is therefore my privilege to contribute a southern perspective to this fellowship round.” – Sunil Abraham

Applications close 15 May 2017 for a 1 September 2017 fellowship start date. Read the original post on Shuttleworth Foundation website here

For more details visit https://cis-india.org/internet-governance/news/shuttleworth-foundation-april-19-2017-sunil-abraham-honorary-steward-september-2017

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

11th Meeting of Information Systems Security Sectional Committee (LITD 17)

praskrishna — 2017-04-19T02:57:03Z

Udbhav Tiwari represented CIS at this meeting organized by the Bureau of Indian Standards (BIS) at Manak Bhavan, New Delhi on April 13, 2017.

The meeting was the national mirror meeting for the 28th ISO/IEC JTC 1/SC 27 Plenary and Working Group Meetings being held at Hamilton, New Zealand between the April 18 and 25, 2017. The meeting provided a fascinating insight into the government and industry viewpoints on key cyber security and privacy issues, especially on the Aadhaar.

For more details visit https://cis-india.org/internet-governance/news/11th-meeting-of-information-systems-security-sectional-committee-litd-17

[···]

kaeru — 2026-03-14T04:30:47Z

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

An Open Digital Global South: Risks and Rewards

praskrishna — 2017-04-12T14:25:39Z

Pranesh Prakash will be speaking at a conference to be organized by UC Davis Law School on May 25 and 26, 2017, in California, USA.

The event is open to the public. Please register here.

This conference explores the promises and risks of openness in scholarship in relationship to the Global South. Scholars increasingly are under pressure to make their work “open” through sharing their research as reusable open data and open source software, and making their publications open access. Scholarly “openness”—for example, open data, open access, open source—is intended to facilitate the free flow of information, to address barriers to access, and to foster global intellectual conversations. Do attempts at promoting openness in scholarship create new forms of exclusion or hierarchy? How are Southern scholars and publishers’ experiences with open access and open data taken into account within conversations on developing standards and models for open access and open data in the Global North? What are the unanticipated risks created through the implementation of models for open data or open access?

For more info click here

For more details visit https://cis-india.org/internet-governance/news/an-open-digital-global-south-risks-and-rewards

Opposition questions govt move to make Aadhaar must

praskrishna — 2017-04-12T14:19:20Z

Congress leader Jairam Ramesh claimed that the Aadhaar system was becoming an instrument of social exclusion rather than one of identity.

The article by Komal Gupta was published in Livemint on April 11, 2017. Pranesh Prakash was quoted.

The Rajya Sabha on Monday witnessed a lively debate on Aadhaar, with the opposition questioning the government’s move to make the 12-digit unique identification number mandatory for a host of welfare benefits.

Congress leader Jairam Ramesh claimed that the Aadhaar system was becoming an instrument of social exclusion rather than one of identity.

“My major concern is implementation, how Aadhaar is being used to exclude people to avail benefits of the schemes which have been designed for them…If you need to apply to avail benefits, it’s as good as mandatory,” said Ramesh.

The former cabinet minister argued that over 25% of the population will stand excluded.

“The Rs50,000 crore savings due to Aadhaar linkage as given by the government is highly questionable,” he said, adding that according to Comptroller and Auditor General (CAG) reports, 92% of the savings on domestic gas subsidies is not on account of Aadhaar implementation or direct benefit transfer. “Instead, it is because of the fall in international oil prices,” Ramesh argued.

Trinamool Congress member Derek O’Brien said that for manual labourers, biometric identification does not always match and that can deprive them of welfare.

He gave the example of Andhra Pradesh, where almost half the 85,000 ration card holders in 2014 were unable to get subsidized foodgrains due to faulty point of sale machines and biometrics not matching.

K.T.S Tulsi, member of Parliament and senior Supreme Court advocate, said, “Not in my whole career have I come across a greater mutilation of a statutory provision than what has taken place in the case of Aadhaar.” He said Section 29 of the Aadhaar Act doesn’t permit data stored with the Unique Identification Authority of India (UIDAI) to be shared with anyone but a provision was later made for voluntary agreement to allow the sharing of data.

IT and law minister Ravi Shankar Prasad said, “No religion, income, medical history, ethnicity or education is asked in Aadhaar. Even email ID and phone number is optional.”

“The right of privacy of individuals must be respected. The privacy of the data cannot be breached by us except in the case of national security,” Prasad added.

He claimed that the government has been blacklisting operators that share data from the Aadhaar system. It has blacklisted 34,000 operators, and has taken action against 1,000 of them.

Prasad also said that UIDAI will be accountable to the Parliament.

Expressing concern on mandating the use of Aadhaar for different services, Pranesh Prakash, Policy director of the Centre for Internet and Society, said, “As an enabler, people would want to have Aadhaar. But when it is made mandatory, it becomes more of a disenabler instead of an enabler.”

“With the move towards a digital economy, setting up of a data protection authority as recommended by the Shah committee is important along with mass surveillance and greater accountability from the government,” he added.

For more details visit https://cis-india.org/internet-governance/news/livemint-april-12-2017-komal-gupta-opposition-questions-govt-move-to-make-aadhaar-must

Identities Research

praskrishna — 2017-04-12T13:54:53Z

Caribou Digital organized an identity research event in Bengaluru at TERI on April 6, 2017. A total of 16 participants attended the event. Sunil Abraham and Pranesh Prakash represented CIS at the event.

The Identities research project explores user experiences of identity technology, brought to you by Caribou Digital, Omidyar Network and the International Institute of Information Technology, Bangalore (IIITB). The need for user-centered research in “digital identity” arose out of concerns around top-down identity systems and lack of insights on how these are being understood and used, particularly amongst lower income populations. For more information on the event and viewing the episode videos click here.

For more details visit https://cis-india.org/internet-governance/news/identities-research

Privacy in the Age of Big Data

amber — 2017-04-11T14:43:59Z

Personal data is freely accessible, shared and even sold, and those to whom this information belongs have little control over its flow.

The article was published in the Asian Age on April 10, 2017.

In 2011 it was estimated that the quantity of data produced globally surpassed 1.8 zettabyte. By 2013, it had increased to 4 zettabytes. This is a result of digital services which involve constant data trails left behind by human activity. This expansion in the volume, velocity, and variety of data available, together with the development of innovative forms of statistical analytics on the data collected, is generally referred to as “Big Data”. Despite significant (though largely unrealised) promises about Big Data, which range from improved decision-making, increased efficiency and productivity to greater personalisation of services, concerns remain about the impact of such datafication of all human activity on an individual’s privacy. Privacy has evolved into a sweeping concept, including within its scope matters pertaining to control over one’s body, physical space in one’s home, protection from surveillance, and from search and seizure, protection of one’s reputation as well as one’s thoughts. This generalised and vague conception of privacy not only comes with great judicial discretion, it also thwarts a fair understanding of the subject. Robert Post called privacy a concept so complex and “entangled in competing and contradictory dimensions, so engorged with various and distinct meanings”, that he sometimes “despairs whether it can be usefully addressed at all”.

This also leaves the idea of privacy vulnerable to considerable suspicion and ridicule. However, while there is a lack of clarity over the exact contours of what constitutes privacy, there is general agreement over its fundamental importance to our ability to lead whole lives. In order to understand the impact of datafied societies on privacy, it is important to first delve into the manner in which we exercise our privacy. The ideas of privacy and data management that are prevalent can be traced to the Fair Information Practice Principles (FIPP). These principles are the forerunners of most privacy regimes internationally, such as the OECD Privacy Guidelines, APEC Framework, or the nine National Privacy Principles articulated by the Justice A.P. Shah Committee Report. All of these frameworks have rights to notice, consent and correction, and how the data may be used, as their fundamental principles. It makes the data subject to the decision-making agent about where and when her/his personal data may be used, by whom, and in what way. The individual needs to be notified and his consent obtained before his personal data is used. If the scope of usage extends beyond what he has agreed to, his consent will be required for the increased scope.

In theory, this system sounds fair. Privacy is a value tied to the personal liberty and dignity of an individual. It is only appropriate that the individual should be the one holding the reins and taking the large decisions about the use of his personal data. This makes the individual empowered and allows him to weigh his own interests in exercising his consent. The allure of this paradigm is that in one elegant stroke, it seeks to ensure that consent is informed and free and also to implement an acceptable trade-off between privacy and competing concerns. This approach worked well when the number of data collectors were less and the uses of data was narrower and more defined. Today’s infinitely complex and labyrinthine data ecosystem is beyond the comprehension of most ordinary users. Despite a growing willingness to share information online, most people have no understanding of what happens to their data.

The quantity of data being generated is expanding at an exponential rate. From smartphones and televisions, trains and airplanes, sensor-equipped buildings and even the infrastructures of our cities, data now streams constantly from almost every sector and function of daily life, “creating countless new digital puddles, lakes, tributaries and oceans of information”. The inadequacy of the regulatory approaches and the absence of a comprehensive data protection regulation is exacerbated by the emergence of data-driven business models in the private sector and the adoption of data-driven governance approach by the government. The Aadhaar project, with over a billion registrants, is intended to act as a platform for a number of digital services, all of which produce enormous troves of data. The original press release by the Central Government reporting the approval by the Cabinet of Ministers of the Digital India programme, speaks of “cradle to grave” digital identity as one of its vision areas.

While the very idea of the government wanting to track its citizens’ lives from cradle to grave is creepy enough in itself, let us examine for a minute what this form of datafied surveillance will entail. A host of schemes under Digital India shall collect and store information through the life cycle of an individual. The result, as we can see, is building databases on individuals, which when combined, will provide a 360 degree view into the lives of individuals. Alongside the emergence of India Stack, a set of APIs built on top of the Aadhaar, conceptualised by iSPIRT, a consortium of select IT companies from India, to be deployed and managed by several agencies, including the National Payments Corporation of India, promises to provide a platform over which different private players can build their applications.

The sum of these interconnected parts will lead to a complete loss of anonymity, greater surveillance and impact free speech and individual choice. The move towards a cashless economy — with sharp nudges from the government — could lead to lack of financial agencies in case of technological failures as has been the case in experiments with digital payments in Africa. Lack of regulation in emerging data driven sectors such as Fintech can enable predatory practices where right to remotely deny financial services can be granted to private sector companies. An architecture such as IndiaStack enables datafication of financial transactions in a way that enables linked and structured data that allows continued use of the transaction data collected. It is important to recognise that at the stage of giving consent, there are too many unknowns for us to make informed decisions about the future uses of our personal data. Despite blanket approvals allowing any kind of use granted contractually through terms of use and privacy policies, there should be legal obligations overriding this consent for certain kinds of uses that may require renewed consent.

Biometrics-based identification in UK: In 2005, researchers from London School of Economics and Political Science came out with a detailed report on the UK Identity Cards Bill (‘UK Bill’) — the proposed legislation for a national identification system based on biometrics. The project also envisaged a centralised database (like India) that would store personal information along with the entire transaction history of every individual. The report pointed strongly against the centralising storage of information and suggested other alternatives such as a system based on smartcards (where biometrics are stored on the card itself) or offline biometric-reader terminals.

As per the report, the alternatives would also have been cheaper as neither required real-time online connectivity. In India, online authentication is a far greater challenge. According to Network Readiness Index, 2016, India ranks 91, whereas UK is placed eight. Poor Internet connectivity can raise a lot of problems in the future including paralysis of transactions. The UK identification project was subsequently discarded as a result of the privacy and cost considerations raised in this report.

Aadhaar: Privacy concerns

Once the data is collected through National Information Utilities, it will be privatised and controlled by private utilities.
Once an individual’s data is entered in the system, it cannot be deleted. That individual will have no control over it.
Aadhaar Data (Demographic details along with photographs) are shared/transferred with the private entities including telecom companies as per the Aadhaar (Targeted delivery of Financial and other subsidies, benefits and services) Act, 2016 with the consent of Aadhaar number holder to fulfil their e-KYC requirements. The data is shared in encrypted form through secured channel.
Aadhaar Enabled Payment System (AEPS) on which 119 banks are live.
More than 33.87 crore transactions have taken place through AEPS, which was only 46 lakhs in May 2014.
As on 30-9-2016, 78 government schemes were linked to Aadhaar.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, provides that no core-biometric information (fingerprints, iris scan) shall be shared with anyone for any reason whatsoever (Sec 29) and that the biometric information shall not be used for any purpose other than generation of Aadhaar and authentication.
Access to the data repository of UIDAI, called the Central Identities Data Repository(CIDR), is provided to third parties or private companies.

Central Monitoring System (CMS) is already live in Delhi, New Delhi and Mumbai. Union minister Ravi Shankar Prasad revealed this in one of his replies in the Lok Sabha last year. CMS has been set up to automate the process of Lawful Interception & Monitoring of telecommunications.

Lawful Intercept and Monitoring (LIM) systems are used by the Indian Government to intercept records of voice, SMSes, GPRS data, details of a subscriber’s application and recharge history and call detail record (CDR) and monitor Internet traffic, emails, web-browsing, Skype and any other Internet activity of Indian users.

For more details visit https://cis-india.org/internet-governance/blog/asian-age-amber-sinha-april-10-2017-privacy-in-the-age-of-big-data

Privacy, what? Bengaluru police leaks 46,000 phone numbers on Twitter

praskrishna — 2017-04-07T02:57:49Z

Bengaluru police made the biggest goof up of all time by releasing private information of people who called 100 to complain since April 2015 and was seemingly unapologetic about the breach of privacy.

The article by Neha Vashishth was published by India Today on April 6, 2017. Pranesh Prakash was quoted.

We all love our privacy, don't we?

We put various locking apps and hide our private pictures on Facebook, Twitter etc and only share what we want the world to see. But sometimes even after our countless efforts, we end up losing our information on the internet. After all, a breach of privacy is the greatest nightmare one can have.

Bengaluru police goofed up too when it came to handling privacy concerns of Bengaluru citizens. The police department posted phone numbers of thousands of citizens on their Twitter handle (@BCPCR) who called 100 and complained against harassment, quarrels, and gambling etc.

The police posted over 46,000 tweets online since April 2015 sharing information of people who called on 100 along with the app known as 'Suraksha' to lodge complaints. The account was made private as soon as the matter escalated.

The police was unapologetic regarding the matter and said that the tweets were auto-generated from their twitter handle @BCPCR.

Pranesh Prakash, Policy Director at the Centre for Internet and Society said the "police officer who ordered to create such an account should be held responsible if any harm comes to a complainant."

This not only created a major breach of privacy of complainants but also risked their lives. This incident only proves that privacy and sensitivity of the matter has vanished in today's time.

For more details visit https://cis-india.org/internet-governance/news/india-today-neha-vashishth-april-6-2017-privacy-what-bengaluru-police-leaks-phone-numbers-on-twitter

India’s National ID Program May Be Turning The Country Into A Surveillance State

praskrishna — 2017-04-07T12:49:30Z

For seven years, India’s government has been scanning the irises and fingerprints of its citizens into a massive database. The once voluntary program was intended to fix the country’s corrupt welfare schemes, but critics worry about its Orwellian overtones.

The blog post by Pranav Dixit was published by BuzzFeedNews on April 4, 2017. Sunil Abraham was quoted.

An abridged version of the blog post containing Sunil Abraham's quotes are reproduced below:

“You can’t change your fingerprints”

Sunil Abraham, the CIS director, calls himself a “technological critic” of the Aadhaar platform. For years, he’s been warning of the security risks associated with a centralized repository of the demographic and biometric details of a billion or so people.

“Aadhaar is a sitting duck,” Abraham told BuzzFeed News. That’s not an unreasonable assessment considering that India’s track record for protecting people’s private data is far from stellar. Earlier this year, for example, a security researcher discovered a website that was leaking the Aadhaar demographic data of more than 500,000 minors. The website was subsequently shut down, but the incident raised questions about Aadhaar’s security protocols — particularly those around data shared with third parties.

Abraham’s concerns are not without global precedent. In 2012, Ecuadorian police jailed blogger Paul Moreno for breaking into the country’s online national identity database and registering himself as Ecuadorian President Rafael Correa. In April 2016, hackers posted a database containing names, national IDs, addresses, and birth dates of more than 50 million Turkish citizens, including Turkish President Recep Tayyip Erdogan; later that month, Mexico’s entire voter database — over 87 million national IDs, addresses, and more — was leaked onto Amazon’s cloud servers by as-yet-untraced sources; and in the Philippines, more than 55 million voters had their private information — including fingerprints — released on the Dark Web.

“When this database is hacked — and it will be — it will be because someone breaches the computer security that protects the computers actually using the data.”

“What is the price that we pay as a nation if our database of over a billion people — complete with all 10 fingerprints and iris scans — leaks?” Abraham asked. The consequences, he said, will be permanent. Unlike a password, which you can reset at any time, your biometrics, if compromised, are the ultimate privacy breach. “You can’t change your fingerprints.”

The UIDAI claims that the Aadhaar database is protected using the “highest available public key cryptography encryption (PKI-2048 and AES-256)” and would take “billions of years” to crack.

“Encryption like this doesn’t typically get broken, it gets circumvented,” security researcher Troy Hunt told BuzzFeed News. “For example, the web application that sits in front of it is compromised and data is retrieved after decryption.” Or alternatively, he said, the encryption key itself is compromised. “Naturally, governments will offer all sorts of assurances on these things, but the simple, immutable fact is that once large volumes are centralized like this, there is a heightened risk of security incidents and of the data consequently being lost or exposed,” he added.

Cryptographer and cybersecurity expert Bruce Schneier echoed Hunt’s assessment. “When this database is hacked — and it will be — it will be because someone breaches the computer security that protects the computers actually using the data,” he said. “They will go around the encryption.”

Nilekani — who did not respond to BuzzFeed News’ requests for comment — recently dismissed concerns around the project’s privacy implications as “hand-waving.” In an interview with the Economic Times, he repeatedly stressed how secure Aadhaar’s “advanced encryption technology” was. “I can categorically say that it’s the most secure system in India and among the most secure systems in the world,” he said.

Abraham is unconvinced by such assurances. He believes Aadhaar fundamentally changes the equation between a citizen and a state. “There’s a big difference between you identifying yourself to the government, and the government identifying who you are,” he said.

Aadhaar’s opponents say the program’s implementation has left India’s poorest people with no choice but to use it. “If you link people’s food subsidies, wages, bank accounts, and other crucial things to Aadhaar, you hit them where it hurts the most,” Ramanathan argued. “You leave them with no choice but to sign up.”

“Can you imagine if the United States passed a law that said that every person who wished to get food stamps would need their fingerprints registered in a government-owned database?” a journalist turned Aadhaar activist who did not wished to be named told BuzzFeed News. “Imagine what a scandal that would be.”

For Nilekani, such criticism is just overstatement and drama. “I think this so-called anti-Aadhaar lobby is really just a small bunch of liberal elites who are in some echo chamber,” he said during a recent interview with Indian business news channel ET Now. “The reality is that a billion people are using Aadhaar. A lot of the accusations are just delusional. Aadhaar is not a system for surveillance. [The critics] live in a bubble and are not connected to reality.”

Abraham laughed off Nilekani’s comments. “The Unique Identification Authority of India will become the monopoly provider of identification and authentication services in India,” he said. “That sounds like a centrally planned communist state to me. I don’t know which left liberal elites he’s talking about.”

For more details visit https://cis-india.org/internet-governance/news/buzzfeednews-pranav-dixit-april-4-2017-indias-national-id-program-may-be-turning-the-country-into-a-surveillance-state

NGOs, individuals urge state CMs to curb Internet shutdown

praskrishna — 2017-04-07T02:43:39Z

Amid rising instances of Internet curbs, a group of individuals and organisations have urged the chief ministers of 12 states to only restrict specific online content rather than resort to complete shutdown.

The article was published in the Times of India on April 4, 2017.

SFLC.in, a Delhi-based not-for-profit organisation, along with various Internet-related firms have sent letters in this regard to the chief ministers of these states impacted by Internet shutdowns.

The letters have been written to the chief ministers of Uttar Pradesh, Nagaland, Manipur, Maharashtra, J&K, Jharkhand, Rajasthan, Meghalaya, Arunachal Pradesh, Bihar, Gujarat and Haryana.

"The Internet shutdowns are imposed using state power under Section 144 by these specific states and not by the Union Government. The central government is bound to follow the process under Section 69 IT act.

"These letters to the chief ministers of all 12 states, which have been affected by Internet shutdowns till date, are an effort by us to address the source of the problem," SFLC.in President and Legal Director Mishi Choudhary told .

As per Internet Shutdown tracker of SFLC, there have been 28 incidents of Internet closure in Jammu & Kashmir, 9 cases each in Gujarat and Haryana, 8 in Rajasthan, 3 Nagaland, 2 cases each in Uttar Pradesh, Bihar and Manipur and 1 incident each in Maharashtra, Jharkhand, Meghalaya and Arunachal Pradesh since 2012.

As per the tracker, far India has experienced a record number of 66 such incidents since 2012, with the number increasing more than two-fold from 14 in 2015 to 31 in 2016.

The letters sent to the chief ministers urge them to "take requisite action that would prohibit the issuance of orders that make Internet services entirely inaccessible for a particular area, and rather recommend that Section 69A and the procedure established by the rules therein be applied to limit the restriction to certain specific online content."

The signatories of the letters include the Centre for Internet and Society, Digital Empowerment Foundation, Internet Democracy Project, IT for Change and Society for Knowledge Commons, individuals like Anivar Aravind (Executive Director, Indic Project), IIT Bombay professor Kannan Moudgalya and others.

"We are hopeful that our efforts will make the government take in account the enormous effects of Internet shutdowns on the social-economic condition of our citizens and understand their plight," Choudhary said. PRS MKJ

For more details visit https://cis-india.org/internet-governance/news/times-of-india-april-4-2017-ngos-individuals-urge-state-cms-to-curb-internet-shutdown

Bengaluru cops' twitter handle in ethical storm

praskrishna — 2017-04-07T02:38:24Z

The city's privacy activists are among the most strident in trying to prevent the Union government from gaining unprecedented access to citizens' personal information through Aadhaar. But in their own backyard, Bengaluru police have been publishing on Twitter the phone numbers of thousands of citizens reporting various crimes such as gambling on the streets, random quarrels and harassment of women.

The article by Umesh Yadav was published in the Times of India on April 6, 2017. Pranesh Prakash was quoted.

The police control room has put out more than 46,000 tweets since April 2015 containing the numbers of complainants calling the emergency number 100. The phone numbers of citizens reaching the control room through Bengaluru police's new emergency mobile application, Suraksha, too are being published through this handle.

Thankfully, the Twitter handle, @BCPCR, had a mere 66 followers as on the evening of April 5, nearly 30 per cent of which were various police stations in the city. On Wednesday evening, the police closed the account for public view.

ET has screenshots of tweets from the account. A senior police officer at Bengaluru police's Command Control was unapologetic for the breach of privacy. The tweets are generated automatically and meant to `show' the number of calls received by the control room and the number of people using the new app, he said.

On the matter of compromising the safety of the complainants, the officer said, "It is obvious that the accused will know who registered the complaint and privacy does not matter here."

Expectedly, privacy and law experts are indignant.

"This is horrible and unpardonable," said Supreme Court advocate KV Dhananjay. "The fact that the police did not consider it necessary to ask for permission before broadcasting someone's identity shows how insensitive the Police Commissioner's office has become to the privacy concern of our society." Pranesh Prakash, Policy Director at the Centre for Internet and Society and who has been at the forefront of the campaign against any potential misuse of Aadhaar, too said the "police officer who ordered to create such an account should be held responsible if any harm comes to a complainant."

Complainants ET spoke with were startled about the abuse of their privacy. Gowda, a complainant, who had informed the police control room about the sale of cigarettes within 100 metres of a school, had specifically requested the police to not disclose his identity.

"(This is why) it is better to keep quiet when you see lawbreakers," he said on hearing that Bengaluru police had published his phone number on Twitter.

"This is injustice and this is the reason why people are scared to inform the police of crimes. If the accused send people to beat me, what should I do?" Dhanusha had called the control room about some teenagers who were teasing girls at a bus stop. The police arrived and took the boys in. She, too, is now worried. "If the accused get my number, they are going to harass me. The police do not have any right to display our phone numbers in public."

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-april-6-2017-umesh-yadav-bengaluru-cops-twitter-handle-in-ethical-storm

Right to be Forgotten: A Tale of Two Judgements

amber — 2017-04-07T02:27:03Z

In the last few months, there have been contrasting judgments from two Indian high courts, Karnataka and Gujarat, on matters relating to the right to be forgotten. The two high courts heard pleas on issues to do the right of individuals to have either personal information redacted from the text of judgments available online or removal of such judgment from publically available sources.

While one High Court (Karnataka) ordered the removal of personal details from the judgment,^[1] the other (Gujarat) dismissed the plea^[2]. In this post, we try to understand the global jurisprudence on the right to be forgotten, and how the contrasting judgments in India may be located within it.

Background

The ‘right to be forgotten’ has gained prominence since a matter was referred to the Court of Justice of European Union (CJEU) in 2014 by a Spanish court.^[3] In this case, Mario Costeja González had disputed the Google search of his name continuing to show results leading to an auction notice of his reposed home. The fact that Google continued to make available in its search results, an event in his past, which had long been resolved, was claimed by González as a breach of his privacy. He filed a complaint with the Spanish Data Protection Agency (AEPD in its Spanish acronym), to have the online newspaper reports about him as well as related search results appearing on Google deleted or altered. While AEPD did not agree to his demand to have newspaper reports altered, it ordered Google Spain and Google, Inc. to remove the links in question from their search results. The case was brought in appeal before the Spanish High Court, which referred the matter to CJEU. In a judgement having far reaching implications, CJEU held that where the information is ‘inaccurate, inadequate, irrelevant or excessive,’ individuals have the right to ask search engines to remove links with personal information about them. The court also ruled that even if the physical servers of the search engine provider are located outside the jurisdiction of the relevant Member State of EU, these rules would apply if they have branch office or subsidiary in the Member State.

The ‘right to be forgotten’ is a misnomer, and essentially when we speak of it in the context of the proposed laws in EU, we refer to the rights of individuals to seek erasure of certain data that concerns them. The basis of what has now evolved into this right is contained in the 1995 EU Data Protection Directive, with Article 12 of the Directive allowing a person to seek deletion of personal data once it is no longer required.

Critical to our understanding of the rationale for how the ‘right to be forgotten’ is being framed in the EU, is an appreciation of how European laws perceive privacy of individuals. Unlike the United States (US), where privacy may be seen as a corollary of personal liberty protecting against unreasonable state intrusions, European laws view privacy as an aspect of personal dignity, and are more concerned with protection from third parties, particularly the media. The most important way in which this manifests itself is in where the burden to protect privacy rights lie. In Europe, privacy policy often dictates intervention from the state, whereas in the US, in many cases it is up to the individuals to protect their privacy.^[4]

Since the advent of the Internet, both the nature and quantity of information existing about individuals has changed dramatically. This personal information is no longer limited to newspaper reports and official or government records either. Our use of social media, micro-discussions on Twitter, photographs and videos uploaded by us or others tagging us, every page or event we like, favourite or share—all contribute to our digital footprint. Add to this the information created not by us but about us by both public and private bodies storing data about individuals in databases, our digital shadows begin to far exceed the data we create ourselves. It is abundantly clear that we exist in a world of Big Data, which relies on algorithms tracking repeated behaviour by our digital selves. It is in this context that a mechanism which enables the purging of some of this digital shadow makes sense.

Further, it is not only the nature and quantity of information that has changed, but also the means through which this information can be accessed. In the pre-internet era, access to records was often made difficult by procedural hurdles. Permissions or valid justifications were required to access certain kinds of data. Even for the information available in the public domain, often the process of gaining access were far too cumbersome. Now digital information not only continues to exist indefinitely, but can also be easily accessed readily through search engines. It is in this context that in a 2007 paper, Viktor Mayer-Schöenberger pioneered the idea of memory and forgetting for the digital age.^[5] He proposed that all forms of personal data should have an additional meta data of expiration date to switch the default from information existing endlessly to having a temporal limit after which it is deleted. While this may be a radical suggestion, we have since seen proposals to allow individuals some control over information about them.

In 2016, the EU released the final version of the General Data Protection Regulation. The regulation provides for a right to erasure under Article 17, which would enable a data-subject to seek deletion of data.^[6] Notably, except in the heading of the provision, Article 17 makes no reference to the word ‘forgetting.’ Rather the right made available in this regulation is in the form of making possible ‘erasure’ and ‘abstention from further dissemination.’ This is significant because what the proposed regulations provide for is not an overarching framework to enable or allow ‘forgetting’ but a limited right which may be used to delete certain data or search results. Providing a true right to be forgotten would pose issues of interpretation as to what ‘forgetting’ might mean in different contexts and the extent of measures that data controllers would have to employ to ensure it. The proposed regulation attempts to provide a specific remedy which can be exercised in the defined circumstances without having to engage with the question of ‘forgetting’.

The primary arguments made against the ‘right to be forgotten’ have come from its conflict with the right to freedom of speech. Jonathan Zittrain has argued against the rationale that the right to be forgotten merely alters results on search engines without deleting the actual source, thus, not curtailing the freedom of expression.^[7] He has compared this altering of search results to letting a book remain in the library but making the catalogue unavailable. According to Zittrain, a better approach would be to allow data subjects to provide their side of the story and more context to the information about them, rather than allowing any kind of erasure. Unlike in the US, the European approach is to balance free speech against other concerns. So while one of the exceptions in sub-clause (3) of Article 17 provides that information may not be deleted where it is necessary to exercise the right to free speech, free speech does not completely trump privacy as the value that must be protected. On the other hand, US constitutional law would tend to give more credence to the First Amendment rights and allow them to be compromised in very limited circumstances. As per the position of the US Supreme Court in Florida Star v. B.J.F., lawfully obtained information may be restricted from publication only in cases involving a ‘state interest of the highest order’. This position would allow any potential right to be forgotten to be exercised in the most limited of circumstances and privacy and reputational harm would not satisfy the standard. For these reasons the rights to be forgotten as it exists in Article 17 may be unworkable in the US.

Issues in application

Significant technical challenges remain in the effective and consistent application of Article 17 of the EU Directive. One key issue is concerned with how ‘personal data’ is defined and understood, and how its interpretation will impact this right in different contexts. According to Article 17 of the EU directive, the term ‘personal data’ includes any information relating to an individual. Some ambiguity remains about whether information which may not uniquely identify a person, but as a part of small group, could be considered within the scope of personal data. This becomes relevant, for instance, where one seeks the erasure of information which, without referring to an individual, points fingers towards a family. At the same time, often the piece of information sought to be erased by a person may contain personal information about more than one individual. There is no clarity over whether a consensus of all the individuals concerned should be required, and if not, on what parameters should the wishes of one individual prevail over the others. Another important question, which is as yet unanswered, is whether the same standards for removal of content should apply to most individuals and those in public life.

The issue of what is personal data and can therefore be erased gets further complicated in cases of derived data about individuals used in statistics and other forms of aggregated content. While, it would be difficult to argue that the right to be forgotten needs to be extended to such forms of information, not erasing such derived content poses the risk of the primary information being inferred from it. In addition, Article 17(1)(a) provides for deletion in cases where the data is no longer necessary for the purposes for which they were collected or used. The standards for circumstances which satisfy this criteria are, as yet, unclear and may only be fully understood through a consistent application of this law.

Finally, once there are reasonable grounds to seek erasure of information, it is not clear how this erasure will be enforced practically. It may not be prudent to require that all copies of the impugned data are deleted such that they may not be recovered, to the extent technologically possible. A more reasonable solution might be to permit the data to continue to remain available in encrypted forms, much like certain records are sealed and subject to the strictest confidentiality obligations. In most cases, it may be sufficient to ensure that the records of the impugned data is removed from search results and database reports without actually tampering with information as it may exist. These are some of the challenges which the practical application of this right will face, and it is necessary to take them into account in enforcing the proposed regulations.

The two Indian judgments

In the first case, (before the Gujarat High Court), the petitioner entered a plea for “permanent restraint [on] free public exhibition of the judgment and order.” The judgment in question concerned proceeding against the petitioner for a number of offences, including culpable homicide amounting to murder. The petitioner was acquitted, both by the Sessions court and the High Court before which he was pleading. The petitioner’s primary contention was that despite the judgment being classified as ‘unreportable’, it was published by an online repository of judgments and was also indexed by Google search. The decision of the High Court to dismiss the petition, rest of the following factors: a) failure on the part of the petitioner to show any provisions in law which are attracted, or threat to the constitutional right to life and liberty, b) publication on a website does not amount to ‘reporting’, as reporting only refers to that by law reports.

While the second point of reasoning made by the courts is problematic in terms of the function of precedent served by the reported judgments, and the basis for reducing the scope of ‘reporting’ to only law reports, the first point is of direct relevance to our current discussion. The lack of available legal provisions points to the absence of data protection legislation in India. Had there been a privacy legislation which addressed the issues of how personal information may be dealt with, it is possible that it may have had instructive provisions to address situation like these. In the absence of such law, the only recourse that an individual has is to seek constitutional protection under one of the fundamental rights, most notably Article 21, which over the years, has emerged as the infinite repository of unenumerated rights. However, typically rights under Article 21 are of a vertical nature, i.e., available only against the state. Their application in cases where a private party is involved remains questionable, at best.

In contrast, in the second case, the Karnataka High Court ruled in favor of the petitioner. In this case, the petitioner’s daughter instituted both criminal and civil proceedings against a person. However, later they arrived at a compromise and one of the conditions was quashing all the proceedings which had been initiated. The petitioner had raised concerns about the appearance of his daughter’s name in the cause title and was easily searchable. The court, while making vague references to “trend in the Western countries where they follow this as a matter of rule “Right to be forgotten” in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned, held in the petitioner’s favor, and order that the name be redacted from the cause title and the body of the order before releasing to any service provider. The second judgment is all the more problematic for while it makes a reference to jurisprudence in other countries, yet it does not base it on the fundamental right to privacy, but to the idea of modesty and reputation of women, which has no clear legal basis on either Indian or comparative jurisprudence.

Conclusion

The above two cases demonstrate the problem of lack of a clear legal basis being employed by the judiciary in interpreting the right to be forgotten. Not only were no clear legal provisions in Indian law were taken refuge of while ruling on the existence of this right, the court also do not engage in any analysis of comparative jurisprudence such as the GDPR or the Costeja judgment. Such ad-hoc jurisprudence underlines the need for a data protection legislation, as in its absence, it is likely that divergent views are taken upon this issue, without a clear legal direction. It is likely that most matters concerning the right to erasure concern private parties as data controllers. In such cases, the existing jurisprudence on the right to privacy as interpreted under Article 21 may also be of limited value. Further, as has been pointed out above, the right to be forgotten needs to be a right qualified by conditions very clearly, and its conflict with the right to freedom of expression under Article 19. Therefore, it is imperative that a comprehensive data protection law addresses these issues.

^[1] Sri Vasunathan vs The Registrar, available at http://www.iltb.net/2017/02/karnataka-hc-on-the-right-to-be-forgotten/

^[2] Dharmraj Bhanushankar Dave v. State of Gujarat, available at https://drive.google.com/file/d/0BzXilfcxe7yueXFJWG5mZ1pKaTQ/view.

^[3] Google Spain et al v. Mario Costeja González, available at http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=152065.

^[4] http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536459/IPOL_STU(2015)536459_EN.pdf

^[5] Mayer-Schoenberger, Viktor, Useful Void: The Art of Forgetting in the Age of Ubiquitous Computing (April 2007). KSG Working Paper No. RWP07-022. Available at SSRN: https://ssrn.com/abstract=976541 or http://dx.doi.org/10.2139/ssrn.976541.

^[6] Article 17 (1) states: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

(d) the personal data have been unlawfully processed;

(e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

(f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

^[7] Zittrain, Jonathan, “Don’t Force Google to ‘Forget’”, The New York Times, May 14, 2014. Available at https://www.nytimes.com/2014/05/15/opinion/dont-force-google-to-forget.html.

For more details visit https://cis-india.org/internet-governance/blog/right-to-be-forgotten-a-tale-of-two-judgments