Protection of Privacy in Mobile Phone Apps

According to NASSCOM, the Indian fintech market is worth an estimated USD 1.2 billion, and is predicted to reach USD 2.4 billion by 2020.[1] The services brought forth by Fintech, such as digital wallets, lending, and insurance, have transformed the ways in which businesses and institutions execute dayto-day transactions. The rise of fintech in India has rendered the nation’s market a point of attraction for global investment.[2] Fintech in India is perceived both as a catalyst for economic growth and innovation, as well as a means of financial inclusion for the millions of unbanked individuals and businesses. The government of India, along with regulators such as SEBI (Securities and Exchange Board of India) and RBI (Reserve Bank India), has consistently supported the digitalization of the nation’s economy and the formation of a strong fintech ecosystem through funding and promotional initiatives.[3]

The RBI has been pivotal in enabling the development of India’s fintech sector and adopting a cautious approach in addressing concerns around consumer protection and law enforcement. Its key objective as a regulator has been to create an environment for unimpeded innovations by fintech, expanding the reach of banking services for unbanked populations, regulating an efficient electronic payment system and providing alternative options for consumers. The RBI’s prime focus areas for enabling fintech have been around payment, lending, security/biometrics and wealth management. For example, the RBI has introduced “Unified Payment Interface” with the NPCI (National Payments Corporation of India), which has been critical in revolutionizing digital payments and pushing India closer to the objective of a cash-less society. It has also released a consultation paper on regulating Peer 2 Peer (P2P) lending market in India, highlighting the advantages and disadvantages of regulating the sector.[4]

The consultation paper offers a definition of P2P lending as well as a general explanation of the activity and the digital platforms that facilitate transactions between lenders and borrowers. It also provides a set of arguments for and against regulating P2P lending. The arguments against regulating the sector mainly pertain to the risk of stifling the growth of an innovative, efficient and accessible avenue for borrowers who either lack access to formal financial channels or are denied loans by them.[5]

This is the general consensus around the positive impact of the Fintech sector in India: its facilitation of financial inclusion and economic opportunity. However, the paper lists many more arguments for regulation than against. One of the main points made is with regards to P2P lending’s potential to disrupt the financial sector by challenging traditional banking channels. There is also the argument that, if properly regulated, the P2P lending platforms can more efficiently and effectively exercise their potential of promoting alternative forms of finance.[6]

The paper concludes that the balance of advantage would lie in developing an appropriate regulatory and supervisory toolkit that facilitates the orderly growth of the P2P lending sector in order to harness its ability to provide an alternative avenue for credit for the right borrowers[7]

The RBI’s regulatory framework for P2P lending platforms encompasses the permitted activity, prudential regulations on capital, governance, business continuity plan (BCP) and customer interface, apart from regulatory reporting.[8]

The Securities and Exchange Board of India (SEBI) is also a prominent regulator of the Indian fintech sector. They issued a consultation paper on “crowdfunding”, which is defined as the solicitation of funds (small amounts) from multiple investors through a web-based platform or social networking site for a specific project, business venture or social cause. P2P lending is then a form of crowdfunding, which can be understood as an umbrella term that covers fintech lending practices. SEBI’s paper aimed to provide a brief overview of the global scenario of crowdfunding including the various prevalent models under it, the associated benefits and risks, the regulatory approaches in different jurisdictions, etc. It also discusses the legal and regulatory challenges in implementing the framework for crowdfunding. The paper proposes a framework for ushering in crowdfunding by giving access to capital markets to provide an additional channel of early stage funding to Start-ups and SME’s and seeks to balance the same with investor protection.[9] Unlike RBI’s consultation paper on P2P lending, SEBI’s paper on crowdfunding was intended mainly to invite discussion and not necessarily to implement a framework for regulation.

Some of the benefits cited in SEBI’s crowdfunding paper pertain to the commonly mentioned advantages of fintech: economic opportunity for the SME sector and start-ups, alternative lending systems to keep SMEs alive when traditional banks crash, new investment avenues for the local economy and increased competition in the financial sector.[10]

The paper also lists a set of risks that suggest the need for a regulatory framework for crowdfunding. For example, it mentions the “substitution of institutional risk by retail risk”, meaning that individual lenders, who’s risk tolerance may be low, bear the risk of low/no return investors when they lend to SMEs without adequate assessment of credit worthiness. Also, there is the risk that the digital platform that facilitates lending and issues all the transactions, may not conduct proper due diligence. If the platform is temporarily shut down or closed permanently, no recourse is available to the investors.[11]

The SEBI paper mentions a long list of other risks associated with crowdfunding, mostly associated with systemic failures, loan defaults, fraud practices, and information asymmetry. Information asymmetry refers partially to the chance that lending decisions are made based on incomplete data sets that are based on social networking platforms. There is a lack of transparency and reporting obligations in issuers including with respect to the use of funds raised.[12]

Similar to the RBI consultation paper, SEBI makes a decent effort to weigh the costs and benefits of crowdfunding practices but only does this from an economic/financial perspective. Most of the cited risks, benefits and concerns tend to overlook information security and risks of privacy breaches of the implicated borrowers.

India Stack is a paperless and cashless service delivery system that has been supported by the Indian government as part of the fintech sector. It is a new technology paradigm that is designed to handle massive data inflows, and is poised to enable entrepreneurs, citizens and governments to interact with one another transparently. It is intended to be an open system to electronically verify businesses, people and services. It allows the smartphone to become the delivery platform for services such as digital payments, identification and digital lockers. The vision of India Stack is to shift India towards a paperless economy.[13]

The central government, based on its experience with the Aadhaar project, decided to launch the opendata initiative in 2012 supported by an open API policy, which would pave the way for private technology solutions to build services on top of Aadhaar and to make India a digital cash economy. Unified Payments Interface (UPI), which will make mobile payments card-less and completely digital, allows consumers to transact directly through their bank account with a unique UPI identity that syncs to Aadhaar’s verification and connects to the merchant, the settlement and the issuing bank to close transactions.[14]

It is suspected that India Stack will shift in business models in banking from low-volume, high-value, high-cost and high fees to high-volume, low-value, low cost and no fees. This well lead to a drastic increase in accessibility and affordability, and the market force of consumer acquisition and the social purpose of mass inclusion will converge.[15]

India Stack serves as an example of how the Government of India has supported initiatives that would promote the fintech sector while facilitating economic growth and financial opportunity for unbanked individuals. However, there is continuous discussion around India Stack’s attachment to the Aadhaar system, which can lead to the exclusion of unregistered individuals from the benefits that would otherwise be reaped from the open-data initiative. It can also result in many privacy and security breaches when records of individuals’ daily transactions are attached to their Aadhaar numbers, which carry their biometric information and is linked to other personal data that is held by the government such as health records.

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[1]. KPMG: https://assets.kpmg.com/content/dam/kpmg/pdf/2016/06/FinTech-new.pdf

[2]. Id.

[3]. Id.

[4]. Id.

[5]. RBI 2P2 Consultation Paper, https://rbidocs.rbi.org.in/rdocs/content/pdfs/CPERR280416.pdf

[6]. Id.

[7]. Id.

[8]. Id.

[9]. SEBI Crowdfunding consultation paper, http://www.sebi.gov.in/cms/sebi_data/attachdocs/1403005615257.pdf

[10]. Id.

[11]. Id.

[12]. Id.

[13]. Krishna, https://yourstory.com/2016/07/india-stack/

[14]. Id.

[15]. Nilekani, http://indianexpress.com/article/opinion/columns/the-coming-revolution-in-indian-banking-2924534/