Centre for Internet and Society

Community Prioritisation of Content Donation: Kannada Wikisource

hasan — 2015-12-15T07:42:09Z

CIS-A2K has initiated a community consultation in order to prioritise and streamline the work on Wikisource projects across FLA. Due to the commitment of volunteers from the respective FLA and the institutional partnerships that A2K has developed we have been able to bring a large corpus of content under free licence into our Wikisource projects. CIS-A2K promotes both content donation and content acquisition strategies in order to bring in free licence content.

The re-releasing of the content under CC-BY-SA is a difficult task no doubt, but the even more difficult task is to get the donated content digitised and made available on Wikisource. As this activity involves three intermediary steps of scanning the original document, uploading the same on commons.wikimedia.org and finally recreate the same page on Wikisource by typing.

It is common knowledge that Indian Language Wikimedia communities consist of very few volunteers and in many communities it is Wikipedia that is the chief attraction for volunteers. This compounds the problem towards work that has to be done on Wikisource. To overcome this problem CIS-A2K has initiated a community consultation and prioritisation effort. CIS-A2K consults community in form of posts on Village pump, mailing lists and other channels of communication and update them about the overall content donated towards Wikisource projects and requests for suggestions and feedback as to the plan to digitse and bringing the content on Wikisource.

For the month of November, 2015 CIS-A2K discussed the plan with the Kannada community Wikimedians and proposed a plan of aggregating all the content that has been donated towards Kannada Wikisource and copyright lapse content that has been identified by Wikimedians. A2K team is currently utilising its institutional partnership with Christ University in digitising the content of Sri. Niranjana a prominent Kannada author that was donated by Prof. Tejaswini Niranjana. As a result of this collaboration with the community A2K team shall be posting a comprehensive list of the content donated to Kannada Wikisource along with copyright lapse books that are available digitally on Digital Library of India and Osmania University Digital Library and other such platforms.

This consultation process with the Kannada Wikimedia community also seeded an idea of creating a 'Book Bank' for Kannada Wikimedians. The objective of the book bank is to provide authentic references, citation material and other primary sources of information for content generation. As a first step towards building of the proposed book bank, we have purchased encyclopaedic material on Stone Inscriptions found in Karnataka, Women writers of Karnataka, Literary history of Karnataka and Kannada Dictionaries. The material acquired under 'Book Bank' will serve as resources for community and will be provided to the community members upon request for the same.

Following lists provide information about the current status of projects undertaken on Kannada Wikipedia:

Projects which are active on Wikisource:

Vimochane - 50 pages to be typed out of 355
Abhaya - 63 to be typed of 326 pages
Doorada Nakshatra - 23 typed out of 175
Rangammana Vathara - 23 to be typed of 209 pages
Ekangini - 41 typed of 228 pages
Kalyanaswami - 100 typed of 251

These books are scanned and uploaded on Kannada Wikisource

Books to be uploaded on Wikisource:

Chirasmarane
Mrutyunjaya
Deekshe
Navodaya
Palike banda panchamruta
Swami Aparampara

Books available to be scanned:

Banashankari
Nandagokula

CIS-A2K has visited the following libraries in order to optimise the efforts put into Kannada Wikisource:

1) Central Library, Cubbon Park, Bangalore

2) Kannada Shaitya Parishat, Chamarajpet, Bangalore

3) B.M. Shri Pratishtana Library, Bangalore

4) Gokhale Institute of Public Affairs, Basavanagudi, Bangalore

The visits have resulted in identifying many books that were hitherto unavailable with A2K team. We are in process of getting these books and digitise them so that they can be uploaded on Kannada Wiisource. A2K team is hopeful that the increased levels of activity and consultation held with the community will help the overall progress of Kannada Wikisource project.

For more details visit https://cis-india.org/a2k/blogs/community-prioritisation-content-donation-kannada-wikisource

Community Digest: Tulu Wikipedia Goes Live after Eight Years in Incubator; News in Brief

Subhashish Panigrahi and Ting-Yi Chang — 2016-08-26T15:21:58Z

Eight years after being created in the Wikimedia Incubator, the Tulu-language Wikipedia is now live as the 23rd Indic language Wikipedia.

The blog post was published in the Wikimedia blog on August 24, 2016.

Available at https://tcy.wikipedia.org, the project has a total of 1285 articles contributed by 198 editors.

Tulu is spoken by between three and five million people principally concentrated in the states of Karnataka and Kerala in south-west and south India (respectively), with more in the US and in Gulf countries. The Wikimedia Foundation’s Executive Director Katherine Maher announced that the project would go live in her keynote at WikiConference India 2016.

Tulu Wikipedia was started in the Wikimedia Incubator back in 2008 with a one or two editors, but neither the project nor the community remained active except sporadic edits. Without any meetups and outreach, it was difficult for those editors to work as a community to bring the project live from Incubator. The Centre for Internet and Society’s Access to Knowledge program, a catalytic program funded by the Wikimedia Foundation to support and grow Indian language Wikipedias and Wikimedia projects in the Indian subcontinent, started building a Tulu-language community in 2014. They and the community conducted Wikipedia editing training workshops at St. Aloysius College in Mangaluru, who opened their doors to introduce the Wikipedia Education Program (WEP). As part of the WEP, students started editing Wikipedia as part of their syllabus with the leadership and guidance of Dr. Vishwanatha Badikana, assistant professor of the Kannada-language department at St. Aloysius, who himself became an active Tulu Wikipedia editor. Similarly, many students from both the institutions also contributed articles of diverse subject areas.

However, the community is fairly small and needs a way to grow outside the institution. “A series of eight how-to video tutorials have been created to help editors to learn about Wikipedia policies and guidelines, manual of style and overall editing. Many students have contributed in creating these tutorials”, Badikana says, and the existing set of editors are doing their best to spread the word about the project. In an interview with the media portal Daijiworld, Bharathesha Alasandemajalu, an active editor based in Oman, said, “anyone can write or edit articles on the Tulu Wikipedia but it should not be plagiarised. The photos should be one’s own or uploaded with valid permission from the owner. This will help the future generation to know more about the language and act as a source of information on Tulu language and culture.”

One of the biggest challenges in growing the project—apart the community’s limitations within institutional frameworks and having just a handful of editors outside—is the lack of codification of the project as per Unicode compliance. Unicode is a global standard for scripts, and the modern Tulu script (derived from the original Tigalari script) is not yet encoded in Unicode. As a result, all the articles in the Tulu Wikipedia are written in the Kannada script, as the speakers are mostly based in the state of Karnataka and speak Kannada as a second language.

Despite a long linguistic heritage, Tulu is still struggling to be widely used, especially in its native script. Badikana says that he is really hopeful that he will see more Tulu speakers start contributing to the language’s Wikipedia, as he feels that growing language content online would be the best thing to do while working in a conventional classroom.

In brief

Ongoing India At Rio Olympics 2016 Edit-a-thon promises to plant one tree for every 20 new articles created

India this year has a great participation in the Rio Olympics; some of the participating athletes have brought medals and glory for the country and some lost in the tight competition. But for Wikipedia, every single athlete matters! An edit-a-thon is being organized by Wikimedia India in collaboration with not-for-profit “Sankalp Taru”, publication house Niyogi books. Several Indian-language Wikipedia communities are participating in creating Wikipedia articles related to the Rio Olympics and India’s participation in it. A unique goal is set for this edit-a-thon where a tree will be planted for every 20 new articles created and it could also be monitored online. The edit-a-thon started officially at 0:00 UTC on 29 July 2016 and will go on 23:59 UTC on 18 September 2016. Apart from several other rules for participation, the rule also discourages pure machine translation of the articles as historically there has been disastrous impact of Google Translate for many Indian language Wikipedias.

Wiki Loves Monuments returns to India after three years

Wiki Loves Monuments, the global photo competition that is organized by the Wikimedia communities in September with the focus of getting good quality photographs of monuments of historical interest, will be organized in India. “The aim of the contest is to ask the general public—readers and users of Wikipedia, photographers, hobbyists, etc.—to take pictures of cultural heritage monuments and upload them to Wikimedia Commons for use on Wikipedia and its other sister projects.”, shared Abhinav Srivastava, Executive Committee member of Wikimedia India which is the official organizer of the event. More details about participating in this event could be found in the event page.

WikiConference India 2016, the largest Wikimedia community gathering of the year in South Asia comes to an end

Organized by the Wikimedia communities in India, the WikiConference India 2016 was the largest Wikimedia gathering in the subcontinent of this year. After a long break of five years, the event has about 250 participants including over 100 scholarship recipients from four countries representing Wikimedia projects in 20 Indic languages. As reported in the Signpost, nearly 25% of scholarship recipients were women, and the inclusion of speakers of ~20 languages. There were 89 accepted submissions including workshops, presentations, The event also included an edit-a-thon to improve the content related to Punjab, Punjabi language and culture as a gesture of respect to the place where the event was organized. Over 2000 articles have been created by more than 150 editors in 12 different language Wikipedias.

A gender gap-focused panel, led by formed Wikimedia Foundation’s Board of Trustees member Bishakha Datta, was held on the second day of the conference to share the research and outreach experiences in different communities (featuring Kannada, Tamil, and Marathi communities). Researchers proposed new strategies and practices in tackling the systematic and social barriers for Indian women joining Wikimedia projects. Other presenters shared tips and event-organizing experience on various outreach activities—from edit-a-thons and photo-thons in the International Women’s Month to student-led events in college institutions—demonstrating respective communities’ efforts on the local, national, and global scales. The panel was followed by a Wikiwomen’s Lunch meetup attended by most female Wikipedians at the conference along with Bishakha, Wikimedia Foundation’s Board of Trustees member Nataliia Tymkivand WMF staff members.

Ashutosh Sarangi, the youngest Wikimedian from the oldest Indian-language Wikipedia community

At the closing ceremony WikiConference India 2016, Ashutosh Sarangi was awarded as the youngest Wikimedian at the conference by , two days after Katherine congratulated the Odia Wikipedia for celebrating its 14th birthday, where the project happens to be the oldest of all Indian-language Wikipedias. Ashutosh, a 6th grade student, is the son of Pankajmala Sarangi, the most active Odia Wikisourcer, and is active in Odia Wikisource with 226 edits for digitization of two books so far. “Living and studying in New Delhi where Hindi is predominantly the primary language, having a conversation in our native language Odia itself is so difficult. I am proud to be a mother who not only teaches Odia language to her kids but also helps them contribute to the open Internet. At some point of time, these valuable books Ashutosh has contributed in digitizing on Odia Wikisource will be of great read for others”, she shares. Long time Hindi-language Wikipedian Raju Suthar has mentioned in a news article in Hindi newspaper the Sanjivani saying, “Ashutosh has won everyone’s heart as the youngest Wikimedian in this conference. Asaf Bartov and Nataliia Tymkov have awarded him for his contribution”. Ashutosh started contributing to Odia Wikisource in February this year on the day of the second workshop in New Delhi.

MediaWiki hackathon at WikiConference India 2016 has seven important outputs

The MediaWiki hackathon that was running at the WikiConference India in the leadership of Santosh Shingare was productive to engage with several participants and bring as many as seven most important outcomes:

WikiSpeak, an easy-to-use Android (source code) and web app (source code) that read the the Wikipedia articles in native languages.
Edit Tamil Wiktionary, android app that helps create entries in Tamil-language Wiktionary from a spreadsheet created with a .tsv extension. The app checks for existing entries and creates only entries that are not existent. (source code)
Commons audio uploader, Android app that helps a user to log in using Mediawiki credentials, create audio recordings using their phone microphone, and upload them on Commons. (source code)
Wikipedia articles on Google map, web application that can show Wikipedia articles with geo-cordinates in Google Maps when the phone’s location is enabled for Google Maps. The application is responsive enough to adjust the portion of the Wikipedia article it displays on the screen, and works for all the Indian languages. (source code)
OCR (Native Application) : Convert scanned book copy to Indian language text with google doc (Tested for Hindi and Malayalam).
Communication platform[WebRTC] (Web Application) : Community used this to talk or conference (Audio/video web conferencing application)
Notification (Event based) : showing popup on event eg (If recent changes happen, It will show popup which article was updated)

For more details visit https://cis-india.org/a2k/blogs/community-digest-tulu-wikipedia-goes-live-after-eight-years-in-incubator-news-in-brief

Community digest: Konkani language speakers are separated by scripts but unite by Wikipedia; news in brief

subha — 2016-08-07T03:11:06Z

Konkani-language Wikipedians on what they think of Wikipedia as a binding factor for native speakers who speak in different variations of the same language and write in different scripts.

This was published on Wikimedia Blog on August 4, 2016

I reached out to a few Goan Konkani Wikipedians to learn about their experience with the project, especially after it went live in 2015. In the interview they share what they think of Wikipedia as a binding factor for native speakers that are currently dispersed in many states, speak in different variations of the same language, and write in different scripts.

Subhashish Panigrahi (SP): Hi The Discoverer [a long time contributor to Wikipedia who is actively contributing to the Goan Konkani Wikipedia], you have been actively contributing to the Goan Konkani Wikipedia since 2006 even before it went live in 2014. What potential do you see in the Goan Konkani Wikipedia bringing Konkani speakers from the states of Goa, Maharashtra, Karnataka and Kerala?
User:The Discoverer (TD): Even though my first contributions were in 2006, I have been moderately active on Wikipedia all these years.

I do agree with you that Konkani Wikipedia has the potential to bind people across borders. As you have rightly pointed out, Konkani is remarkable in that, for the small geographical area where it is a native language, it has developed a large number of dialects, in addition to being used in multiple scripts. Unfortunately, in the offline world, we see that there are disagreements over certain Konkani scripts being favored or not favored in terms of official recognition. Konkani Wikipedia can not only be a platform in bringing together Konkani speakers from many regions but can also be the unifying factor among the Konkani people.

SP: How do think Wikipedia could be a good platform to help unifying the Konkani people?
TD: For Konkani Wikipedia to succeed, it is not just a ‘good idea’ for Konkani speakers writing in various scripts to work together on one Wikipedia, but it’s also a necessity and a challenge at the same time. It’s a necessity, because as things stand, no one script has a strong enough community to run a Wikipedia by themselves. It’s a challenge because not everyone can read every script, and it’s important for all the users of a Wikipedia to be able to understand all the content on that site.

SP: Very rightly spotted. And how do you think the Wikipedia community and the CIS-A2K program should work together to tackle this challenge?
TD: We need an automatic script converter (see the script converter resource page for Konkani on Meta and task on Phabricator) that could make the lives of the editors easier. Most people cannot read more than two scripts. Most users are currently depending on an external site for transliteration when the user cannot read the script used in a Wikipedia article. That’s painful and a user might also would not know about a third party converter. An automatic script converter on Wikipedia would enable people to read any page in the script of their choice in a single click. This is where CIS-A2K can really help Konkani Wikipedia, by helping to implement the script converter. In addition to the script converter, CIS-A2K could also study various multi-script Wikipedias in existence and prepare a list of such features that are used in these Wikipedias to deal with multiple scripts, so that Indian multi-script Wikipedias can consider implementing such a feature as well.

Konkani Wikipedia is facing another challenge right now in growing the community as there are only handful of active editors. And we need contributors from varied walks of life to add more diversity to the community. The boost that was needed initially to make Konkani Wikipedia live—thanks to institutions like Goa University (GU) and Nirmala Institute of Education (NIE) and CIS-A2K for bringing in many student-editors—needs more intensity now. Students from GU and NIE were mainly from the Konkani language and teaching disciplines. If you consider other larger Wikipedias, like the English Wikipedia, they owe their success to editing by people from a diverse backgrounds, and also to the fact that the people are comfortable with the basics of markup and coding and were able to build templates, etc. Today, there is almost no one who is working on templates and other similar technical stuff for Konkani Wikipedia. Here too, CIS-A2K can help by reaching out to Konkani speakers with a background in computing—for instance, students of Bachelor of Computer Application (BCA), Master in Computer Application, Computer Science and engineering. This will help build a community that is technically adept at creating templates and dealing with more advanced types of content for the Wikipedia.

The Konkani Wikipedia can also take advantage of software extensions like VisualEditor and Flow that the knowledge of markup and other technicalities that the user needs to have, so that users who are uncomfortable with editing markup can focus on just adding content with a much more simple and user-friendly interface.

In these ways, participation of people from different regional and vocational backgrounds can form a vibrant editing community leading to the growth of the Konkani Wikipedia.

In brief

WikiConference India 2016 to be held at Chandigarh during August 5–7: The second WikiConference India (WCI) will be held on August 5-7 in Chandigarh, India. After the first WCI in 2011, this will be the largest gathering of the Wikimedians from the Indian subcontinent. A team of volunteers representing several Wikimedia communities across the country and three Wikimedia affiliates—Wikimedia India, Punjabi Wikimedians and Centre for Internet and Society’s Access to Knowledge program—are working together to make this event a success. Over 100 scholarships have been offered to noteworthy contributors from India, Pakistan, Nepal, Bangladesh and Sri Lanka. Various talks, meetups and workshops are planned for the three-day event, and a needs assessment survey has been put in place for ensuring any hackathon needs are addressed.
Punjab edit-a-thon: A month-long edit-a-thon has been running in 12 Indic language Wikipedias and one European language Wikipedia (the Ukrainian) to enrich the content related to Punjab, the Punjabi people, and their language and culture. So far, more than 1000 articles have been created by about 100 Wikipedians. As we have already surpassed the dream target of 1000 articles, we are planning to extend the edit-a-thon through WikiConference India so many can participate during the event.
Campaign for relicensing copyrighted books under Creative Commons licenses: A campaign has been started to relicense Telugu-language books of several noted authors from “all rights reserved” to a Creative Commons Share-Alike (CC BY-SA) license. This campaign was started on June 19 and copyright migration process is complete for 17 books so far. Once the copyright migration is over the books—ranging from historical figures and popular personalities to regional history—are going to be digitized on Wikisource. “I don’t want these works to be in bookshelf and get wasted by termites. My wish as an author and researcher is to make these works available to future historians who can make use of it, so that our people get to know the local history” shares Kanuri Badarinadh, a historian, novelist and journalist who has donated some of his books.
Train-the-trainer and Mediawiki training program for capacity building of community leaders from Indian subcontinent: After two iterations of the Train the Trainer in 2013 and 2015, CIS-A2K organized the third program during June 15-17 at Bengaluru. The Mediawiki training was designed to help groom technical leadership skills of the technical contributors of the communities. A total of 45 participants, that were selected by a collaborative consultation with the community, took part in these events. The trainers for both the events consisted of subject experts from the Wikimedia community, the free knowledge movement, the free and open source software community and CIS-A2K program staff. A series of small Mediawiki trainings will follow soon that will be led by the trained participants.
Indian women in Science edit-a-thon: Organized by IndiaBioscience, a not-for-profit working for research and advocacy on the life sciences in India, this edit-a-thon began with an introduction to the series of Wikipedia edit-a-thons that have been running to expand Wikipedia’s reach on Indian women with contribution to Science. There was a Q&A session Professor Vaishnavi Ananthanarayanan followed by introduction to Wikipedia editing, its policies and guidelines, and brief on copyright, and Creative Commons licensing. 11 new articles were created and 11 existing articles were expanded in English, Hindi and Odia-language Wikipedias.
Indigenous South-Asian language gets a new open Unicode font: A new font for the Ol chiki script (used to write the Santali language) along with input tools are getting ready to be released soon. Santali is spoken by over 6 million people in South Asia over Bangladesh and Nepal and six states in India. This project, supported by the Centre for Internet of India, will help native language speakers type in Unicode across platforms, and also using Universal Language System in all Wikimedia projects.

For more details visit https://cis-india.org/a2k/blogs/community-digest-konkani-language-speakers-are-separated-by-scripts-but-unite-by-wikipedia-news-in-brief

Comments to the United Nations Human Rights Commission Report on Gender and Privacy

Aayush Rathi, Ambika Tandon and Pallavi Bedi — 2019-10-27T04:08:18Z

For more details visit https://cis-india.org/internet-governance/files/comments-to-the-united-nations-human-rights-commission-report-on-gender-and-privacy

Comments to the Rights of Persons with Disabilities Bill, 2014

Nirmita Narasimhan and Anandhi Viswanathan — 2014-10-30T16:13:45Z

On behalf of the Centre for Internet and Society (“CIS”), the following are the comments and recommendations on the Rights of Persons with Disabilities Bill, 2014 (“RPD Bill”). It was submitted to the Parliamentary Standing Committee in October 2014.

I. Definitions

Section 2(c) “Barrier”: - definition to include attitudinal barriers: Should read as follows: “Barrier means any factor which hampers the full and effective participation of persons with disabilities in society, including attitudinal, communicational, cultural, economic, environmental, institutional, political, social or structural factors which hampers the full and effective participation of persons with disabilities in society.”

Section 2(f) “Communication”: - definition to include sign language: Should read as follows: “Communication includes means and formats of communication, languages, display of text, Braille, tactile communication, signs, large print, accessible multimedia, written, audio, plain-language, sign language, human reader, augmentative and alternative modes and accessible information and communication technology.”

Section 2 (h) “establishment” to include private establishments as well. The UNCRPD places an obligation on State Parties to take ‘appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’ [Article 4(1)(e)]. It also requires that State Parties promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures [Article 27(1)(h)]. Thus it is important that ‘establishments’ as covered under the RPD Bill, which would refer to rights relating to employment of persons with disabilities, reservation of jobs and provision of reasonable accommodation should include state as well as private establishments. The intention to ensure the representation of persons with disabilities in the private sector was also recognised by the Supreme Court in Union of India v. National Federation of the Blind. Therefore the definition should read as follows:

‘Establishment’ means and includes:

Department and Ministries of Government;

Local authorities and authorities or bodies owned, controlled or aided by the Central or State Government;

Any statutory or non-statutory body created, owned, financially or administratively controlled or aided by the Central or State Government or any such body performing public functions which are primarily welfare activities and includes Government Companies as defined in Section 617 of the Companies Act, 1956;

Any company, firm, cooperative or other society, association, trust, agency, institution, organization, union, landlord, industry, supplier of goods or services, factory or other non-statutory body which is not covered under clause (i) to (iv)

Insertion of the term “discrimination on the basis of disability” Since the term is widely used across the document, it is important to define it. A suggested definition of the term based on the definition available in the e-Accessibility Tool Kit for Policy Makers is as follows: “Accessibility is a measure of the extent to which any infrastructure, product or service can be used by a person with a disability as effectively as it can be used by a person without that disability.”

Section 2(x): definition of specified disability to be deleted.

Section 2(t): Definition of “Reasonable Accommodation” to be altered: 'disproportionate or undue burden’ to be deleted. Because there is no definition given as to what would constitute an undue burden or what would be disproportionate, along with the fact that this can be used as an exit route for public authorities and private employers to evade their responsibility to provide reasonable accommodation. Most other disability rights legislations including the Americans with Disabilities Act of 1990 do not have this qualification in the definition of reasonable accommodation. The definition should instead read as follows: "Reasonable accommodation" means necessary and appropriate modification and adjustments to ensure to persons with disabilities the enjoyment or exercise of rights equally with others. It can include but is not limited to:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities;

(B) and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

II. Voting and other Rights

i. Expansion of Section 10:

It is not sufficient to only make polling stations accessible. Section 10 needs to be expanded to include the following:

To make all voter registration stations and facilities accessible to persons with disabilities
All materials and communication must be made available in multiple formats.

Election Commissions to take special measures to promote participation of persons with disabilities in the electoral process- both in terms of casting votes, as well as standing for elections.

ii. Section 11 (4) to be expanded to include Section 11 (4) (c):- to include the following: “The enjoyment of equal right to conduct their own financial affairs and avail of forms of financial credit such as bank loans, mortgages, insurance etc., should be on the same terms and conditions as other customers without discrimination or on special terms which may be advantageous to persons with disabilities.”

III. Education

Section 17 - addition of a sub section requiring the appropriate government to promote alternate teaching methods using new forms of information and communications technologies and pedagogic techniques.
All children with disabilities should have access to and training in the use of computers and educational and knowledge materials in accessible formats.
Appropriate government should promote harmonization of syllabus to enable sharing of accessible resources across the state and recognize and support the efforts of disability and other organizations in imparting training to disabled children.
The present draft limits the provisions of this Act to educational institutions funded by the appropriate government- this needs to be expanded to include all educational institutions, private and public.
The government should also accordingly revise existing schemes for providing financial aid to such families having children with disabilities to keep abreast of present financial needs along with launching new ones.
Section 16(g) - aids and ATs should be provided free of cost till the completion of school education and not just until 18 years since very often children with disabilities start their education late.
Section 15 on education - private schools should also be required to employ special educators for students with disabilities and all private educational institutions- both for school as well as higher education should admit students with disabilities without discrimination if they meet the requisite criteria.

IV. Employment

Section 19 (1) proviso - permitting for exemption of any establishment to be deleted.
Section 33 (3) - The age relaxation in upper age limit has been reduced to five years from the current norm of 10 years. This should be revised to 10 years.

V. Access

Section 40 - provides that the government shall provide for access to transport by retrofitting old modes of transport where “technically feasible and economically viable”. This can potentially lead to a situation where transport is not made accessible on the ground that it is too expensive or technically not feasible. In such instances, persons with disabilities cannot be deprived of access to transport. We thus recommend the insertion of the following clause to section 40 (1)(b): “Where a facility cannot be retrofitted because it is too technically challenging or expensive, there must be made available an alternate means of accessing that transport or facility.” Coupled with insertion of a time frame of 3 years for making all modes of transport accessible – like in the US model.

Section 41 – The following should be inserted

Accessibility of websites: All websites must conform to the current Web Content Accessibility Guidelines formulated by the World Wide Web Consortium and all government communication must be accessible electronically as well as in print.

There should be a periodic audit for accessibility of all Government websites and training must be imparted to technology developers to create and maintain accessible products, interfaces and content. Research must be ongoing to develop new and open source assistive technologies for all disabilities and in all languages and for this purpose tenders must be invited from the public as well as private sector.

To insert a new section on Procurement- “Appropriate Governments must ensure that there is a procurement policy in place which mandates that all products (hardware and software), goods and services procured by them must conform to accessibility requirements and this should be introduced in the license terms of service contracts itself.”
Section 44 (1) to refer to all “buildings accessible to the public” instead of “public buildings” - This is to ensure that it is not only government buildings that are made accessible but also all buildings available to the public such as hospitals, hotels, libraries, shops, banks etc., whether public or private, are made accessible. The UNCRPD places an obligation on State Parties to take ‘appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’ [Article 4(1)(e)]. It also specifically requires that State Parties ensure that ‘private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities’ [Article 9(2)(b)].
To insert a new sub-section in Section 44 for periodic audit of buildings: “The Central Government must establish a system for periodic audit of all building and physical spaces and use these reports for measuring pace and extent of rectification and adherence to the standards.”
Section 45- the blanket time frame of 2 years is too ambiguous for service providers and has to be revised. The National Commission or relevant authority (for example TRAI in the case of telecom operators) may determine a reasonable time frame for provision of accessible services and such time frame may be a little more in case of rectification/ retrofitting as the case may be. The Rationale for this is that the time to provide accessible billing facilities for mobile phones or making a website accessible would be barely a matter of months, while for something else may be a year, hence such a blanket provision of time of 2 years should be avoided.

VI. General Comments

Restore section on women and girls with disabilities, which was present in the 2011 draft. The present Act does not contain specific section for them, just mentions them in a diluted manner across the legislation.
Same for children with disabilities- addition of a dedicated section for them- as present in previous draft.
Section 23(1) - the words 'within the limit of its economic capacity and development' must be removed because it is an exit route for states from formulating anything more than the minimum necessary schemes in this area. Our experience with the previous Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) 1995 Act has demonstrated that almost all the sections with 'within the economic limits' were not complied with by all states and proved ineffectual. Furthermore, the enjoyment and exercise of the fundamental rights of persons with disabilities cannot hinge on the economic capacity of states. All states will have the minimum capacity required - it is a question of priority.
Section 28 needs a sub section, which incorporates the copyright fair dealing exception to make all copyrighted cultural works accessible to persons with disabilities.
Appropriate governments should ensure that one member from the Disability Advisory Committee should be able to participate on all key policy making committees to ensure that the disability perspective is adequately represented across all government initiatives.
Section 61(b) and 67(b) should be deleted since they state unsoundness of mind as a reason for disqualification, which goes against the spirit of the UNCRPD.
Similarly Sections 76(1)(c) and 89(1)(c) should be deleted since they cite physical/ mental incapacity as a disqualification from holding office.
Sections 103 and 104 should include offences committed by the Government, public officials and government companies respectively in the discharge of their duties.
Section 73(2) - The chairperson of the National Commission has to necessarily be a person with disability.
Section 86 (2) on the Chairperson of the state commission- should be made mandatory that the Chairperson should be a person with disability
Duties and Responsibilities of Appropriate Governments: The clause “every appropriate government should set up a help line and other resources to assist persons with disabilities” should be included.
Access to emergency services: The appropriate governments should ensure that:

i. Persons with disabilities have instantaneous access to all emergency services such as ambulance, fire engine, hospital and police and to this end ensure that measures are taken to make these accessible to them;

ii. Steps are taken to ensure that during times of disasters such as floods and earthquakes, mitigation, rescue, relief and reconstruction measures take into account the needs of persons with disabilities and especially women and children with disabilities.

For more details visit https://cis-india.org/accessibility/blog/comments-to-rights-of-persons-with-disablities-bill-2014

Comments to the Personal Data Protection Bill 2019

Amber Sinha, Elonnai Hickok, Pallavi Bedi, Shweta Mohandas, Tanaya Rajwade — 2020-02-21T10:13:35Z

The Personal Data Protection Bill, 2019 was introduced in the Lok Sabha on December 11, 2019.

Please view our general comments below, or download as PDF here.

Our comments and recommendations can be downloaded as PDF here.

We have also prepared an annotated version of the Bill, where our detailed comments and recommendations can be viewed alongside the Bill, available as PDF here.

General Comments

1. Executive notification cannot abrogate fundamental rights

In 2017, the Supreme Court in K.S. Puttaswamy v Union of India [1] held the right to privacy to be a fundamental right. While this right is subject to reasonable restrictions, the restrictions have to meet a three fold requirement, namely (i) existence of a law; (ii) legitimate state aim; (iii) proportionality.Under the 2018 Bill, the exemption to government agencies for processing of personal data from the provisions of the Bill in the ‘interest of the security of the State’ [2] was subject to a law being passed by Parliament. However, under Clause 35 of the present Bill, the Central Government is merely required to pass a written order exempting the government agency from the provisions of the Bill.Any restriction on the right to privacy will have to comply with the conditions prescribed in Puttaswamy I. An executive order issued by the central government authorising any agency of the government to process personal data does not satisfy the first requirement laid down by the Supreme Court in Puttaswamy I — as it is not a law passed by Parliament. The Supreme Court while deciding upon the validity of Aadhar in K.S. Puttaswamy v Union of India [3] noted that “an executive notification does not satisfy the requirement of a valid law contemplated under Puttaswamy. A valid law in this case would mean a law passed by Parliament, which is just, fair and reasonable. Any encroachment upon the fundamental right cannot be sustained by an executive notification.”

2. Exemptions under Clause 35 do not comply with the legitimacy and proportionality test

The lead judgement in Puttaswamy I while formulating the three fold test held that the restraint on privacy emanate from the procedural and content based mandate of Article 21 [4]. The Supreme Court in Maneka Gandhi v Union India [5] had clearly established that “mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive and arbitrary” [6]. The existence of a law is the first requirement; the second requirement is that of ‘legitimate state aim’. As per the lead judgement this requirement ensures that “the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action” [7]. It is established that for a provision which confers upon the executive or administrative authority discretionary powers to be regarded as non-arbitrary, the provision should lay down clear and specific guidelines for the executive to exercise the power [8]. The third test to be complied with is that the restriction should be ‘proportionate,’ i.e. the means that are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. The Supreme Court in Modern Dental College & Research Centre v State of Madhya Pradesh [9] specified the components of proportionality standards —

A measure restricting a right must have a legitimate goal;
It must be a suitable means of furthering this goal;
There must not be any less restrictive, but equally effective alternative; and
The measure must not have any disproportionate impact on the right holder

Clause 35 provides extensive grounds for the Central Government to exempt any agency from the requirements of the bill but does not specify the procedure to be followed by the agency while processing personal data under this provision. It merely states that the ‘procedure, safeguards and oversight mechanism to be followed’ will be prescribed in the rules.The wide powers conferred on the central government without clearly specifying the procedure may be contrary to the three fold test laid down in Puttaswamy I, as it is difficult to ascertain whether a legitimate or proportionate objective is being fulfilled [10].

3. Limited powers of Data Protection Authority in comparison with the Central Government

In comparison with the last version of the Personal Data Protection Bill, 2018 prepared by the Committee of Experts led by Justice Srikrishna, we witness an abrogation of powers of the Data Protection Authority (Authority), to be created, in this Bill. The powers and functions that were originally intended to be performed by the Authority have now been allocated to the Central Government. For example:

In the 2018 Bill, the Authority had the power to notify further categories of sensitive personal data. Under the present Bill, the Central Government in consultation with the sectoral regulators has been conferred the power to do so.
Under the 2018 Bill, the Authority had the sole power to determine and notify significant data fiduciaries, however, under the present Bill, the Central Government has in consultation with the Authority been given the power to notify social media intermediaries as significant data fiduciaries.

In order to govern data protection effectively, there is a need for a responsive market regulator with a strong mandate and resources. The political nature of the personal data also requires that the governance of data, particularly the rule-making and adjudicatory functions performed by the Authority are independent of the Executive.

4. No clarity on data sandbox

The Bill contemplates a sandbox for “ innovation in artificial intelligence, machine-learning or any other emerging technology in public interest.” A Data Sandbox is a non-operational environment where the analyst can model and manipulate data inside the data management system. Data sandboxes have been envisioned as a secure area where only a copy of the company’s or participant companies’ data is located [11]. In essence, it refers to the scalable and creation platform which can be used to explore an enterprise’s information sets. On the other hand, regulatory sandboxes are controlled environments where firms can introduce innovations to a limited customer base within a relaxed regulatory framework, after which they may be allowed entry into the larger market after meeting certain conditions. This purportedly encourages innovation through the lowering of entry barriers by protecting newer entrants from unnecessary and burdensome regulation. Regulatory sandboxes can be interpreted as a form of responsive regulation by governments that seek to encourage innovation – they allow selected companies to experiment with solutions within an environment that is relatively free of most of the cumbersome regulations that they would ordinarily be subject to, while still subject to some appropriate safeguards and regulatory requirements. Sandboxes are regulatory tools which may be used to permit companies to innovate in the absence of heavy regulatory burdens. However, these ordinarily refer to burdens related to high barriers to entry (such as capital requirements for financial and banking companies), or regulatory costs. In this Bill, however, the relaxing of data protection provisions for data fiduciaries would lead to restrictions of the privacy of individuals. Limitations to a fundamental rights on grounds of ‘fostering innovation’ is not a constitutional tenable position, and contradict the primary objectives of a data protection law.

5. The primacy of ‘harm’ in the Bill ought to be reconsidered

While a harms based approach is necessary for data protection frameworks, such approaches should be restricted to the positive obligations, penal provisions and responsive regulation of the Authority. The Bill does not provide any guidance on either the interpretation of the term ‘harm,’ [12] or on the various activities covered within the definition of the term. Terms such as ‘loss of reputation or humiliation’ ‘any discriminatory treatment’ are a subjective standard and are open to varied interpretations. This ambiguity in the definition will make it difficult for the data principal to demonstrate harm and for the DPA to take necessary action as several provisions are based upon harm being caused or likely to be caused.Some of the significant provisions where ‘harm’ is a precondition for the provision to come into effect are —

Clause 25: Data Fiduciary is required to notify the Authority about the breach of personal data processed by the data fiduciary, if such breach is likely to cause harm to any data principal. The Authority after taking into account the severity of the harm that may be caused to the data principal will determine whether the data principal should be notified about the breach.
Clause 32 (2): A data principal can file a complaint with the data fiduciary for a contravention of any of the provisions of the Act, which has caused or is likely to cause ‘harm’ to the data principal.
Clause 64 (1): A data principal who has suffered harm as a result of any violation of the provision of the Act by a data fiduciary, has the right to seek compensation from the data fiduciary.

Clause 16 (5): The guardian data fiduciary is barred from profiling, tracking or undertaking targeted advertising directed at children and undertaking any other processing of personal data that can cause significant harm to the child.

6. Non personal data should be outside the scope of this Bill

Clause 91 (1) states that the Act does not prevent the Central Government from framing a policy for the digital economy, in so far as such policy does not govern personal data. The Central Government can, in consultation with the Authority, direct any data fiduciary to provide any anonymised personal data or other non-personal data to enable better targeting of delivery of services or formulation of evidence based policies in any manner as may be prescribed.It is concerning that the data protection bill has specifically carved out an exception for the Central Government to frame policies for the digital economy and seems to indicate that the government plans to freely use any and all anonymized and/or non-personal data that rests with any data fiduciary that falls under the ambit of the bill to support the digital economy including for its growth, security, integrity, and prevention of misuse. It is unclear how the government, in practice, will be able to compel organizations to share this data. Further, there is a lack of clarity on the contours of the definition of non-personal data and the Bill does not define the term. It is also unclear whether the Central Government can compel the data fiduciary to transfer/share all forms of non-personal data and the rights and obligations of the data fiduciaries and data principals over such forms of data. Anonymised data refers to data which has ‘ irreversibly’ been converted into a form in which the data principal cannot be identified. However, as several instances have shown ‘ irreversible’ anonymisation is not possible. In the United States, the home addresses of taxi drivers were uncovered and in Australia individual health records were mined from anonymised medical bills [13]. In September 2019, the Ministry of Electronics and Information Technology, constituted an expert committee under the chairmanship of Kris Gopalkrishnan to study various issues relating to non-personal data and to deliberate over a data governance framework for the regulation of such data.The provision should be deleted and the scope of the bill should be limited to protection of personal data and to provide a framework for the protection of individual privacy. Until the report of the expert committee is published, the Central Government should not frame any law/regulation on the access and monetisation of non-personal/ anonymised data nor can they create a blanket provision allowing them to request such data from any data fiduciary that falls within the ambit of the bill. If the government wishes to use data resting with a data fiduciary; it must do so on a case to case basis and under formal and legal agreements with each data fiduciary.

7. Steps towards greater decentralisation of power

We propose the following steps towards greater decentralisation of powers and devolved jurisdiction —

Creation of State Data Protection Authorities: A single centralised body may not be the appropriate form of such a regulator. We propose that on the lines of central and state commissions under the Right to Information Act, 2005, state data protection authorities are set up which are in a position to respond to local complaints and exercise jurisdiction over entities within their territorial jurisdictions.
More involvement of industry bodies and civil society actors: In order to lessen the burden on the data protection authorities it is necessary that there is active engagement with industry bodies, sectoral regulators and civil society bodies engaged in privacy research. Currently, the Bill provides for involvement of industry or trade association, association representing the interests of data principals, sectoral regulator or statutory Authority, or an departments or ministries of the Central or State Government in the formulation of codes of practice. However, it would be useful to also have a more active participation of industry associations and civil society bodies in activities such as promoting awareness among data fiduciaries of their obligations under this Act, promoting measures and undertaking research for innovation in the field of protection of personal data.

8. The Authority must be empowered to exercise responsive regulation

In a country like India, the challenge is to move rapidly from a state of little or no data protection law, and consequently an abysmal state of data privacy practices to a strong data protection regulation and a powerful regulator capable of enabling a state of robust data privacy practices. This requires a system of supportive mechanisms to the stakeholders in the data ecosystem, as well as systemic measures which enable the proactive detection of breaches. Further, keeping in mind the limited regulatory capacity in India, there is a need for the Authority to make use of different kinds of inexpensive and innovative strategies.We recommend the following additional powers for the Authority to be clearly spelt out in the Bill —

Informal Guidance: It would be useful for the Authority to set up a mechanism on the lines of the Security and Exchange Board of India (SEBI)’s Informal Guidance Scheme, which enables regulated entities to approach the Authority for non-binding advice on the position of law. Given that this is the first omnibus data protection law in India, and there is very little jurisprudence on the subject from India, it would be extremely useful for regulated entities to get guidance from the regulator.
Power to name and shame: When a DPA makes public the names of organisations that have seriously contravened data protection legislation, this is a practice known as “naming and shaming.” The UK ICO and other DPAs recognise the power of publicity, as evidenced by their willingness to co-operate with the media. The ICO does not simply post monetary penalty notices (MPNs or fines) on its websites for journalists to find, but frequently issues press releases, briefs journalists and uses social media. The ICO’s publicity statement on communicating enforcement activities states that the “ICO aims to get media coverage for enforcement activities.”
Undertakings: The UK ICO has also leveraged the threats of fines into an alternative enforcement mechanism seeking contractual undertakings from data controllers to take certain remedial steps. Undertakings have significant advantages for the regulator. Since an undertaking is a more “co-operative”solution, it is less likely that a data controller will change it. An undertaking is simpler and easier to put in place. Furthermore, the Authority can put an undertaking in place quickly as opposed to legal proceedings which are longer.

9. No clear roadmap for the implementation of the Bill

The 2018 Bill had specified a roadmap for the different provisions of the Bill to come into effect from the date of the Act being notified [14]. It specifically stated the time period within which the Authority had to be established and the subsequent rules and regulations notified.The present Bill does not specify any such blueprint; it does not provide any details on either when the Bill will be notified or the time period within within which the Authority shall be established and specific rules and regulations notified. Considering that 25 provisions have been deferred to rules that have to be framed by the Central Government and a further 19 provisions have been deferred to the regulations to be notified by the Authority the absence and/or delayed notification of such rules and regulations will impact the effective functioning of the Bill.The absence of any sunrise or sunset provision may disincentivise political or industrial will to support or enforce the provisions of the Bill. An example of such a lack of political will was the establishment of the Cyber Appellate Tribunal. The tribunal was established in 2006 to redress cyber fraud. However, it was virtually a defunct body from 2011 onwards when the last chairperson retired. It was eventually merged with the Telecom Dispute Settlement and Appellate Tribunal in 2017.We recommend that Bill clearly lays out a time period for the implementation of the different provisions of the Bill, especially a time frame for the establishment of the Authority. This is important to give full and effective effect to the right of privacy of the
individual. It is also important to ensure that individuals have an effective mechanism to enforce the right and seek recourse in case of any breach of obligations by the data fiduciaries.For offences, we suggest a system of mail boxing where provisions and punishments are enforced in a staggered manner, for a period till the fiduciaries are aligned with the provisions of the Act. The Authority must ensure that data principals and fiduciaries have sufficient awareness of the provisions of this Bill before bringing the provisions for punishment are brought into force. This will allow the data fiduciaries to align their practices with the provisions of this new legislation and the Authority will also have time to define and determine certain provisions that the Bill has left the Authority to define. Additionally enforcing penalties for offences initially must be in a staggered process, combined with provisions such as warnings, in order to allow first time and mistaken offenders from paying a high price. This will relieve the fear of smaller companies and startups who might fear processing data for the fear of paying penalties for offences.

10. Lack of interoperability

In its current form, a number of the provisions in the Bill will make it difficult for India’s framework to be interoperable with other frameworks globally and in the region. For example, differences between the draft Bill and the GDPR can be found in the grounds for processing, data localization frameworks, the framework for cross border transfers, definitions of sensitive personal data, inclusion of the undefined category of ‘critical data’, and the roles of the authority and the central government.

11. Legal Uncertainty

In its current structure, there are a number of provisions in the Bill that, when implemented, run the risk of creating an environment of legal uncertainty. These include: lack of definition of critical data, lack of clarity in the interpretation of the terms ‘harm’ and ‘significant harm’, ability of the government to define further categories of sensitive personal data, inclusion of requirements for ‘social media intermediaries’, inclusion of ‘non-personal data’, framing of the requirements for data transfers, bar on processing of certain forms of biometric data as defined by the Central Government, the functioning between a consent manager and another data fiduciary, the inclusion of an AI sandbox and the definition of state. To ensure the greatest amount of protection of individual privacy rights and the protection of personal data while also enabling innovation, it is important that any data protection framework is structured and drafted in a way to provide as much legal certainty as possible.

Endnotes

1. (2017) 10 SCC 641 (“Puttaswamy I”).

2. Clause 42(1) of the 2018 Bill states that “Processing of personal data in the interests of the security of the State shall not be permitted unless it is authorised pursuant to a law, and is in accordance with the procedure established by such law, made by Parliament and is necessary for, and proportionate to such interests being achieved.”

3. (2019) 1 SCC 1 (“Puttaswamy II”)

4. Puttaswamy I, supra, para 180.

5. (1978) 1 SCC 248.

6. Ibid para 48.

7. Puttaswamy I supra para 180.

8. State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284; Satwant Singh Sawhney v A.P.O AIR 1967 SC1836.

9. (2016)7 SCC 353.

10. Dvara Research “Initial Comments of Dvara Research dated 16 January 2020 on the Personal Data Protection Bill, 2019 introduced in Lok Sabha on 11 December 2019”, January 2020, https://www.dvara.com/blog/2020/01/17/our-initial-comments-on-the-personal-data-protection-bill-2019/ (“Dvara Research”).

11. “A Data Sandbox for Your Company”, Terrific Data, last accessed on January 31, 2019, http://terrificdata.com/2016/12/02/3221/.

12. Clause 3(20) — “harm” includes (i) bodily or mental injury; (ii) loss, distortion or theft of identity; (ii) financial loss or loss of property; (iv) loss of reputation or humiliation; (v) loss of employment; (vi) any discriminatory treatment; (vii) any subjection to blackmail or extortion; (viii) any denial or withdrawal of service,benefit or good resulting from an evaluative decision about the data principal; (ix) any restriction placed or suffered directly or indirectly on speech, movement or any other action arising out of a fear of being observed or surveilled; or (x) any observation or surveillance that is not reasonably expected by the data principal.

13. Alex Hern “Anonymised data can never be totally anonymous, says study”, July 23, 2019 https://www.theguardian.com/technology/2019/jul/23/anonymised-data-never-be-anonymous-enough-study-finds.

14. Clause 97 of the 2018 Bill states“(1) For the purposes of this Chapter, the term ‘notified date’ refers to the date notified by the Central Government under sub-section (3) of section 1. (2)The notified date shall be any date within twelve months from the date of enactment of this Act. (3)The following provisions shall come into force on the notified date-(a) Chapter X; (b) Section 107; and (c) Section 108. (4)The Central Government shall, no later than three months from the notified date establish the Authority. (5)The Authority shall, no later than twelve months from the notified date notify the grounds of processing of personal data in respect of the activities listed in sub-section (2) of section 17. (6)The Authority shall no, later than twelve months from the date notified date issue codes of practice on the following matters-(a) notice under section 8; (b) data quality under section 9; (c) storage limitation under section 10; (d) processing of personal data under Chapter III; (e) processing of sensitive personal data under Chapter IV; (f ) security safeguards under section 31; (g) research purposes under section 45; (h) exercise of data principal rights under Chapter VI; (i) methods of de-identification and anonymisation; (j) transparency and accountability measures under Chapter VII. (7)Section 40 shall come into force on such date as is notified by the Central Government for the purpose of that section.(8)The remaining provision of the Act shall come into force eighteen months from the notified date.”

For more details visit https://cis-india.org/internet-governance/blog/comments-to-the-personal-data-protection-bill-2019

Comments to The PDP Bill 2019

akash — 2020-02-12T11:52:11Z

For more details visit https://cis-india.org/internet-governance/comments-to-the-pdp-bill-2019

Comments to the BIS on Smart Cities Indicators

Elonnai Hickok, Rohini Lakshané and Udbhav Tiwari — 2016-12-11T07:56:16Z

The Bureau of Indian Standards released the Smart Cities - Indicator on 30 September 2016. The Centre for Internet & Society (CIS) presented its views.

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Name of the Commentator/ Organisation: The Centre for Internet and Society, India^[1]

PRELIMINARY

This submission presents comments by the Centre for Internet and Society, India (“CIS”) on the Smart Cities - Indicators (dated 30 September 2016), released by the Bureau of Indian Standards (“BIS”).
CIS is thankful for the opportunity to put forth its views.
This submission is divided into three main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part contains the ‘Comments’.

ABOUT CIS

CIS is a non-profit organisation^{^[2]} that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cybersecurity.
CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles.

III. Comments

Clause/ Para/ Table/ Figure No. commented	Comments/Modified Wordings	Justification of Proposed Change
General Comment	The indicators could generally utilize more of smart data, from both analog and digital sources, to better reflect the performance of various	Using technology to gather information rather than limiting its scope to existing mostly non-digital sources of data. There is a lot of potential information,

	indicators.	already collected, that simply goes unused or underutilized. Principled use of such information to make informed decisions on key aspects of urban development will lead to ‘truly’ smart cities. Further, the indicators should include actionable aspects and include avenues to leverage research to better their performance. Moreover, indicators that allow for audits for rights and transparency should be focused on as core indicators.
General Comment	Indicators are limited in scope to basic sustainability.	The indicators in their current form restrict themselves to sustainability, focused on basic sustenance, which seems to limit the scope of the Smart Cities project. Having a core set of indicators that is more relevant to India but also have an optional, more ambitious set of indicators for cities to become truly advanced and for the standard to be more dynamic. Encourage them by leveraging technology in a sustainable, human welfare and development-oriented approach, which the indicators can inculcate. Further, policy pivots being driven by these indicators could be given to make the decision making in smart cities more transparent and accountable.
Economy	Granularity of information pertaining to macro-level economic indicators	All the indicators in the Economic section pertain to macro-level standards/ indicators. Their limitation is that they provide very little information about the diversity of the economy of a city, the factors responsible for positive or negative effects and offer no real way to encourage microeconomic changes that can lead to the improvement of the economic condition of a city, aided by modern technology. Example indicators could be: average GDP of districts within a city, and total number of operating businesses and merchants in sub-localities in the city. All of this data can also be used to drive micro policies to enable localized development.

Education	Include data at city-level and indicators for higher education.	The indicators measured in the Education section only look at city level information about schools, ignoring district and even school level information already recorded and present in the system. Teacher and student attendance rates, level of basic infrastructure present in schools, presence of toilets for both genders, provisions for meals, etc. are some of the parameters that can be included in the indicator list. Further, the list completely excludes college education (both degree and diploma level) as a relevant indicator, nor does it include indicators for the average education of the population of the city, both of which can be easily measured using census data.

		Further, data that allows for a holistic decision making process - poverty levels, distance to schools, transportation levels, access to higher learning, etc. can also be used as supporting indicators. These could come from studies already done that call out the factors.
5. Education 5.1, 5.2, 5.3, 5.5	Include gender-specific indicators for students completing primary education, secondary education, and higher education, and enrolled in education institutions. Change the term “survival rate” to “retention rate”.	Indicators for the “survival rate” (may be better represented as retention rate) of students who identify as female or transgender in schools and universities, and enrollment of school-aged and college-aged girls, women and transgender students would help work towards an inclusive smart city.
Energy	Better utilisation of data from digital electricity meters.	The advent of digital meters allows for home/business level capturing of energy usage. This information can be leveraged to better target energy leaks, theft, repair work, pricing and even renewable energy incentives.
Finance	Indicators for digital and cashless payment and transaction systems.	The strong push by the government towards digital payments could also be reflected on the list of indicators, such as the “number of establishments accepting (and not accepting) digital payment systems” being a supporting indicator. Similar standards can be extended to include microfinance (number of avenues available for lending, successful payback of loans, et cetera.)

Governance	Recommended inclusion of indicators pertaining to the Right to Information Act, 2005	The number of requests made under the Right to Information Act, 2005, and the time taken by the responding office to reply to them (in terms of the number of days) by the government offices in the city as a relevant factor to gauge transparency and accountability of the governance structures. The same can also be extended to map the parliamentary performance of the elected officials from the city at the state and national level, especially for the interests of the city. Parliamentary performance here would mean attendance records, number of question raised, resources spent on constituency development, et cetera.
10. Governance 10.2, 10.3, 10.6	Indicators for the number of women and transgenders elected to public office in the city, employed in the government workforce in the city in reserved positions. Indicators for women and transgendered voters registered as a percentage of the voting-age population.	In the interest of inclusive smart cities, this indicator would help fathom if positions reserved for women and transgenders are filled out and the possible reasons, if any, for some of them going vacant.The number of women and transgender voters would help track the participation of women and transgendered voters in democracy. Further, inclusion of indicators that check voter fraud, political participation levels and technologies that enable secure voter participation and involvement would also be beneficial.
Health	“Cost of basic health services” and number of healthcare facilities as a supporting indicator.	The cost, quality and access of public primary healthcare services, which can be easily measured using digital systems, should also be included in the overall scheme as a supporting indicator.

Recreation	“Utilisation of public spaces” as a supporting indicator.	Information about the utilisation of public spaces, such as parks and grounds. can be included as a supporting indicator. Relevant information could footfalls per month or year, number of public events held at these locations, et cetera. Most of this information is already present via figures for ticket sales while the rest could be collected using digital attendance systems. Other supporting indicators could include green space per resident, play area/park space per child, quality of the public space - (lack of garbage, sewage, etc).
Safety	“Overall crime reporting statistics”as a core indicator.	The overall incidence rates of various crimes reported, crimes solved, and data regarding investigations (such as mapping of the crime to a map, number of FIR's filed, not filed, outcomes of investigations, etc.) should all be included as core indicators to better gauge the safety record of the city.
Safety 13.3	Include “crimes carried out using technology or the Internet, as per the Criminal Procedure Code and Information Technology Act, 2008 (Amended)”.	This indicator will expand the scope of crimes against women to include acts of crime carried out using the Internet as well.
Safety 13.4	Include “Response time of the police department from the initial call in instances of crimes against women”	This would include crimes against women as defined in 13.3. This indicator gives more granular information about safety in general and women’s safety in particular, and of the perception of certain kinds of crimes not being serious enough for the police to respond to.

Shelter	Expansion of indicators to include per capita living space, basic amenities within the houses.	The scope of shelter should be expanded to include per capita living space in housing units as well as availability of basic home amenities to provide a more wholesome view of the living situation in a city. Some basic amenities that could be included are electricity uptime, water distribution (in liters/ per household), number of residents in the household, kind of house roofing, etc.
Telecommunication and Innovation	Inclusion of indicators on mobile phone usage, mobile network connectivity and computer literacy.	There are no indicators for mobile phone usage and computer literacy, both of which are essential for the healthy functioning of any city. Indicators to gauge this could include number of mobile phone users, number of (active) mobile connections, number of computer literate people, etc. Similar indicators should also be included for cellphone network coverage, public WiFi connectivity and digital public service provisions as well. Indicators for the same could be number of neighbourhoods/ localities/ suburbs covered by 2G/3G/4G/ 5G out of the total number in city, total number of Public WiFi spots per unit area, etc.
Transportation	Inclusion of indicators for efficiency, sustainability and planning of city-level transportation.	The current set of indicators do not include indicators to measure the efficiency, fuel consumption, sustainability and reach of public transport, especially in the outskirts or suburban areas. These can be included as supporting indicators: the number of GPS-connected public transport vehicles to the total number, number of vehicles equipped with panic buttons, quantum of vehicles in the city using renewable energy sources as fuel, automation of toll booths, automation of points where traffic offences can be logged (e.g illegal honking) or overspeeding.

Urban Planning	Digital information, such as geospatial data, remote sensing and digital mapping can be used to provide better and more sustainable core indicators.	Geo-spatial information (from surveys and satellites) can be utilised to provide macro-level data that can then be utilised to factor city expansions, illegal structures, suburban development, etc. Digital mapping and remote sensing capabilities can be leveraged to provide this information and the utilisation of such information in city development can be made a supporting indicator.
Sewerage and Sanitation	Indicators governing community hygiene and sanitation.	Information about covered toilets per capita of the population, sewage treatment plants, etc. are either absent or too vaguely detailed in the current set of indicators, despite the push from the government towards the Swachh Bharat programme. They should be included as Core Indicators to encourage sanitation at a citizen level.
Water Supply	Indicators for digital measurement of water consumption per capita and at the city-level.	Digital water meters are starting to become pervasive and can provide detailed information about water consumption at a household level that was previously unavailable in city planning. A supporting indicator at a minimum can be included to further bolster information aware governance in the field.

[1] This submission is authored, in alphabetical order, by Elonnai Hickok (elonnai@cis-india.org), Rohini Lakshané (rohini@cis-india.org) and Udbhav Tiwari (udbhav@cis-india.org) on behalf of the Centre for Internet and Society, India.

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

For more details visit https://cis-india.org/internet-governance/blog/comments-to-bis-on-smart-cities-indicators

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

geetha — 2015-10-16T02:44:16Z

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

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

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

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

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

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

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

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

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

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

20. We suggest the following additions to Para 31:

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

B. Internet Governance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Implementation and Follow-up

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

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

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

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

Comments on the Zero Draft of the UN General Assembly

praskrishna — 2015-10-16T02:41:04Z

For more details visit https://cis-india.org/internet-governance/blog/comments-on-zero-draft-of-un-general-assembly.pdf

Comments on the Telecom Commercial Communications Customer Preference Regulations

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

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

Preliminary

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

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

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

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

General Comments

Distributed Ledger Technology (DLT)

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

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

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

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

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

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

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

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

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

Our recommendations are three-fold in this regard:

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

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

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

Broadening the scope of the Regulations to non-commercial communication

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

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

Technical challenges in combating Robocalls

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

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

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

Registration of content-template

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

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

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

‘Safe and Secure Manner’

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

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

Bulk Registration

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

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

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

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

Specific Comments

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

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

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

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

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

Comments

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

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

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

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

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

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

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

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

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

Additional Suggestions

Consumer and subscriber

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

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

Drafting misnumbering

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

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

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

Ambiguous terms

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

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

Comments on the Statistical Disclosure Control Report

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

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

1. PRELIMINARY

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

2. ABOUT CIS

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

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

3. Comments

3.1 General Comments

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

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

3.2 Integrity of Information and Data

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

3.3 Data Security

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

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

3.4 Anonymization of microdata

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

3.5 Data Dissemination

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

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

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

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

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

Comments on the Science, Technology and Innovation Policy (Draft)

snehashish — 2012-12-01T15:36:38Z

The Department of Science and Technology invited public comments on the Science, Technology and Innovation Policy (Draft). Accordingly, the Centre for Internet and Society has made the following comments on the draft policy document.

Department of Science and Technology,
Ministry of Science and Technology,
Government of India

Subject: Comments on the Science, Technology and Innovation Policy (Draft)

Dear Sir/Madam,

We at the Centre for Internet and Society commend the drafting of the Science, Technology and Innovation Policy 2013 (Draft). It is a well rounded policy which will pave the way for further informed policy decisions on innovation and research and development in the country.

Few of the notable and welcome policy statements are:

The Policy aims at ‘inclusive innovation’ and takes into consideration the “need to ensure access, availability and affordability of solutions to as large a population as possible”. It also aims at building a conducive environment for research and development by modifying the IPR policy to include marching rights with respect to social goods funded by public. This in line with the aim of the policy to provide access new technologies. The use of government funding in commercially viable research would not only assure better access to medicine and other technological innovations but also ensure knowledge transfer.

The policy decision to "foster data sharing and access" is most welcome and will act as a catalyst for further research and development through open and collaborative research and development.

Policy also lays emphasis on open source discoveries for "public and social good" and it is indeed a pleasure to note that the Policy wishes to build knowledge commons by collaborative generation of IPR. This will definitely go a long way in encouraging further innovation in the country.

It is also appreciated that the policy will aim at "increasing accessibility, availability and affordability of innovations" and will establish a fund for innovation in this direction.

The Policy also states that the "people" and "decision makers" should be made aware of the implications of emerging technologies, including their ethical, social and economic dimensions. Implementation of such policy is a necessity and will enable the government to make informed policy decisions in the future.

Suggestion:

It is submitted that the policy document should take into account that in order ensure ‘inclusive innovation’ and accessibility, the policy should specifically include mandates to encourage and foster innovation in technology related to accessibility tools for persons with disabilities.www.dst.gov.in/sti-policy.pdf

For more details visit https://cis-india.org/a2k/blogs/comments-on-science-technology-and-innovation-policy-draft

Comments on the Right to Information Rules, 2017

amber — 2017-04-27T09:25:42Z

On March 31st, 2017, the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training released a Circular framing rules under the Right to Information Act, 2005 (“RTI Rules”). The Ministry invited comments on on the RTI Rules. CIS submitted its comments on April 25, 2017.

1. Preliminary

1.1 On March 31st, 2017, the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training released a Circular framing rules under the Right to Information Act, 2005 (“RTI Rules”). The Ministry invited comments on on the RTI Rules.

2. The Centre for Internet and Society

2.1. The Centre for Internet and Society, (“CIS”), is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, and cyber-security.

3. Comments

3.1 General Comments

The new RTI Rules introduce various procedural hurdles and provides a great deal of discretionary power to the CIC in dealing with RTI applications and appeals. One of the provisions which has attracted attention in the past also is the abatement of appeals upon the death of the RTI applications. This provision, explored in more detail is especially objectionable in light of the threats that RTI activists face.

3.2 Specific Comments

3.2.1 Rule 4 of the RTI Rules states that the fees for providing information under the RTI Act would be ‘as notified by Central Government from time to time’. While the RTI Rules also prescribe the fee for filing RTI applications, this phrase provides a window to increase the fees through subsequent notifications. We recommend that the phrase “or as notified by Central Government from time to time” be deleted in order prevent prohibitive increase in the fees in future.

3.2.2 Rule 4 of the RTI Rules also specifies the fees for provision of information via floppies and diskettes. There is no plausible reason to engage in continued rulemaking applicable to outdated modes of data storage. It would be of much more help if the rules were to prescribe fees for CDs, DVDs and email. We also submit that no fees need be charged for information provided through emails, and this mode of communication must be adopted where possible.

3.2.3 Rule 8 (1)(viii) states that every appellant must affirm that they have not filed an appeal pertaining to similar matters before the Commission or any court. However, the same matter can lead to multiple counts of causes of actions, and the principle of res judicata barring further action should not apply in these cases. Therefore, it is recommended that this requirement is deleted.

3.2.4 Rule 12 permits the withdrawal of an appeal on the request of the appellant and the abatement of an appeal on the death of the appellant. This provisions needs to be evaluated in light of the increasing number of cases of threats received by RTI activists. There have been close to 400 documented cases of attacks on RTI applicants,[1] including cases of murder and physical assault. This provision will serve to enable withdrawal of RTI appeals through harassment and other means of coercion.

Further, the abatement of an appeal upon death of an RTI appellant is a clause without any merit and could translate into murders of appellants to cause abatement of the appeal. Additionally, the Supreme Court’s judgment in the matter of Union of India v. Namit Sharma[2] must be kept in mind which clarified the position that RTI applications and appeals are not in the nature of lis and deal with the question of whether requested information ought to be disclosed. Therefore, there is no reason why appeals should abate upon the demise of the appellant.

3.2.5 Rule 14 permits the CIC to return complaints due to non-compliance with the procedural rules in Rule 13. Such rules[3] have been used in the past to return complaints on unreasonable or artificial grounds. This is an example of additional procedural hurdles introduced by through the rulemaking process instead of making the process more citizen friendly.

3.2.6 Rule 15 (iii) of the RTI Rules gives the CIC the discretion to close a case without even allowing hearing to the applicant. There is no requirement on the CIC to provide a detailed reasoning of its determination either. This rule is in violation of the right to be heard before adjudication under natural justice principles.

3.7 The redressal mechanism under Rule 16 of the RTI Rules leaves a lot to be desired. Beginning with the use of the term ‘communication’ to refer to the complaint regarding a non-compliance of the CIC’s order, the rule takes a cavalier approach to addressing the significant number of cases of non-compliance with the CIC’s order. Further, there is no clear procedure spelt out with regard to how the CIC will deal with such matters and whether parties may be heard before making an adjudication. Further, there is an inconsistency in that a communication may be rejected if not submitted in the prescribed format, whereas in the case of appeals it clearly stated that they may not be returned/rejected only on the ground of non-compliance with the format.

[1] http://attacksonrtiusers.org

[2] https://indiankanoon.org/doc/47938967/

[3] Rule 9 of the RTI Rules, 2012.

For more details visit https://cis-india.org/openness/blog-old/comments-on-the-right-to-information-rules-2017

Comments on the RBI's Consultation Paper on Peer to Peer Lending

sumandro — 2016-06-01T20:21:13Z

The Reserve Bank of India published a Consultation Paper on Peer to Peer Lending on April 28, 2016, and invited comments from the public. CIS submitted the following response, authored by Elonnai Hickok, Pavishka Mittal, Sumandro Chattapadhyay, Vidushi Marda, and Vipul Kharbanda.

1. Preliminary

1.1. This submission presents comments and recommendations by the Centre for Internet and Society (“CIS”) on the Consultation Paper on Peer to Peer Lending (“the consultation paper”) by the Reserve Bank of India (“RBI”) [1].

2. The Centre for Internet and Society

2.1. The Centre for Internet and Society, CIS [2], is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfiguration of social processes and structures through the internet and digital media technologies, and vice versa.

2.2. This submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. The comments in this submission aim to further the concerns of citizens’ and users’ rights in the context of products, services, and transactions facilitated by digital media technologies, the , the principle that regulation should be defined around functions of the acts concerned, and not the technologies of delivery. Our comments are limited to the clauses that most directly have an impact on these concerns.

3. Response

3.1. Whether there is a felt need for regulating peer to peer lending platforms?

3.1.1. Peer to peer (“P2P”) lenders are platforms serving as marketplaces for the lenders and the borrowers of funds to connect. Their very business model does not render them as a provider of finance, as they aspire to function as pure intermediaries to enable lending and borrowing.

3.1.2. The Section 45I.(f)(iii) of the RBI Act, 1935 [3], provides RBI the authority to classify any financial institution as a non-banking financial company (“NBFC”) “with the previous approval of the Central Government and by notification in the Official Gazette.” Since the P2P lending platforms do not provide any finance themselves, undertake acquisition of financial instruments, deliver financial and/or insurance services, or collect financial resources directly, the only ground for classifying such companies as “financial institutions” [4] appears to be their involvement in “managing, conducting or supervising, as foreman, agent or in any other capacity, of chits or kuries as defined in any law which is for the time being in force in any State, or any business, which is similar thereto” [5]. P2P lending platforms can be considered to be brokers and thus there are other aspects that merit scrutiny such as antitrust issues, obligations of either party, company activities and the transactional system involved, as we will discuss in this document.

3.1.3. The consultation paper itself states that the balance sheet of the platform cannot indicate any borrowing / lending activity, which entails that the platform cannot itself provide finance or receive any funds for the provision of loans to others. Platforms are not allowed to determine the interest rates as they are not a party to the transaction. Neither would they be liable in cases of default by the borrower. These rules, standard for P2P platforms in other jurisdictions as well, confirm the assumption that the platform itself is not providing finance and thus, cannot be entrusted with any liability, obligation from the transaction.

3.1.4. Further, with RBI raising the threshold asset size for an NBFC to be considered systemically important (NBFC-ND-SI) from Rs. 100 Crores to Rs. 500 Crores [6], and Economic Times reporting that one of the biggest Indian P2P lending platform’s enterprise valuation (which can be taken as indicative of its net assets) is Rs 50 Crores [7], we may assume that most P2P lending platforms will have net assets worth less than 500 crore, at least in the near future; although there is a possibility for exponential growth with some companies.

3.1.5. Given the limited sphere of operation, restricted ability (by design) of these platforms to shape interest rates and other features of financial instruments, and their generally non-systemically-important nature, we would submit that the regulation of such P2P lending platforms are kept to an absolute minimum, so that their economic viability is not undermined, and at the same time the key risks associated with their operations are addressed by RBI.

3.2. Is the assessment of P2P lending and risks associated with it adequate?

3.2.1. CIS observes that the following are the key risks involved with the operations of the P2P lending platforms, and these are being respectively addressed by, or can be addressed by RBI in the following manners.

Insufficient information about the conditions of lending, leading to defrauding of the borrower: The borrower may not receive appropriate information about the terms of the loan, and/or the P2P lending platform may not act in a “fair” manner (say, in case of collusion between the P2P lending platform and the lender, or the lending platform and the borrower), which may lead to defrauding and/or economic loss of either party. By classifying P2P lending platforms as NBFCs, RBI will ensure that these companies follow the Guidelines on Fair Practices Code for NBFCs [8], which extensively addresses concerns related to this type of risks.
Insufficient information about the borrower, or her/his ability to repay the loan, may lead to non-repayment and economic loss of the lender: If the P2P lending platform allows the lender to offer loans to borrowers without acquiring and/or providing sufficient information to the lender about the borrower’s credit history and/or ability to repay the loan, modes of formulating security for loans, this may heighten the risks of non-repayment of loans. By classifying P2P lending platforms as NBFCs, RBI will ensure that these companies follow the Master Circular – 'Know Your Customer' (KYC) Guidelines – Anti Money Laundering Standards (AML) - Prevention of Money Laundering Act, 2002 - Obligations of NBFCs [9], which extensively addresses concerns related to this type of risks.
Credit-related information of the lenders and the borrowers collected by P2P lending platforms may not be made available to other financial institutions and that will lead asymmetry in credit information available across various actors in the sector: Credit information, related to both lending and borrowing practices of entities using the platform concerned, is a key asset of the P2P lending platforms. Lack of sharing of such information with Credit Information Companies, for economic reasons or otherwise, may however, lead to information asymmetry within the financial sector, which will structurally weaken the entire sector (with pieces of credit information being distributed across actors and not being shared internally). By classifying P2P lending platforms as NBFCs, RBI will ensure that these companies follow the Credit Information Companies (Regulation) Act, 2005 [10], which extensively addresses concerns related to this type of risks.
P2P lending platforms diversifying their financial operations without informing RBI and hence without appropriate regulatory control: It is possible that P2P lending platforms may decide to diversify their activities. There have been similar examples in other related sectors, say e-commerce marketplaces, that have started their own product re/selling companies that use the same online marketplace concerned. By classifying P2P lending platforms as NBFCs, RBI will ensure that these companies provide RBI with detailed and regular reports of their economic activities and investments, which is expected to address concerns related to this type of risks.

3.3. Are there any other risks which ought to be addressed?

3.3.1. CIS observes that as part of the usual transaction related activities of the P2P lending platforms, the companies will come into possession of what has been defined as “sensitive personal data or information” by the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 [11]. The concerns related to this type of risk is directly addressed by the Rules concerned, and may not require additional attention from the RBI.

3.3.2. CIS observes that as borrowers and lenders start using specific P2P lending platforms, the data regarding their credit histories and/or “financial reputation” will be owned by these companies. While such information might be shared internally within the financial sector through the Credit Information Companies, the borrowers and lenders themselves may not get direct access to such data. Hence, the borrowers and lenders will not be able to move easily and smoothly to a new P2P lending platform and make use of their existing credit information and/or “financial reputation” when accessing services offered via the new P2P lending platform. In other words, the borrowers and lenders may face a service provider lock-in, and inability to move between P2P lending platforms easily, without explicit access to their own credit history/reputation, and will not have the ability to migrate such information from one P2P lending platform to another (or to any other agency, for that matter). CIS submits that RBI must provide a mechanism to allow users to migrate between platforms as it has not been discussed in the consultation paper.

3.4. Is the proposed approach to regulating these platforms adequate?

3.4.1. CIS observes that while classification of P2P lending platforms will appropriately address key risks associated with their operations (as listed in 3.2.1. A-D), it will not address a major risk emerging out of their operations that is unique to the technological basis of the business concerned (as mentioned in 3.3.2.), and further, it will impose substantial financial and management obligations that have a very high probability of undermining the economic viability of this emerging and niche sector of intermediated direct lending and borrowing.

3.4.2. CIS observes that these financial and management obligations may involve the following topics among others discussed: 1) minimum net worth requirement for registration, 2) minimum investments required to be made government securities, 3) transferring of minimum percentage of net profits to RBI, 4) guidelines regarding corporate governance [12], etc.

3.4.3. Given this, CIS submits that instead of classifying P2P lending platforms as “Misc NBFCs,” a new sub-classification is created under the category of NBFC for such platforms, that directly addresses the key risks associated with businesses of P2P lending platforms, and protects lenders as well as borrowers while enhancing transparency in operations. This new sub-classification of P2P lending companies should also be divided into systemically-important and non-systemically-important like other NBFCs, and requirements regarding financial operations and corporate management should only be enforced for the former category of P2P lending companies.

3.5. Any other relevant issues pertaining to P2P lending

Beyond the issues already discussed above, CIS seek clarity from the RBI around the following aspects:

Transactional system pertaining to P2P lending:
1. What are the requirements and prerequisites for mandating the collection of user identity?
2. Establishing a maximum sum that can be transferred per transaction.
Company activities:
1. Fees that can be charged by platforms.
2. How data security can be best addressed.
3. How the financial transactions are brokered.
4. Modes of redressal.
5. Restitution to users if something goes amiss in the transaction.
6. Insurance that the company has to buy or capital on hand to support.