Centre for Internet and Society

Privacy, Free/Open Source, and the Cloud

elonnai — 2012-03-22T05:50:10Z

A look into the questions that arise in concern to privacy and cloud computing, and how open source plays into the picture.

Introduction

Cloud computing, in basic terms, is internet-based computing where shared resources and services are taken from the primary infrastructure of the internet and provided on demand. Cloud computing creates a shared network between major corporations like Google, Microsoft, Amazon and Yahoo. In this way, cloud systems are related to grid computing systems/service- oriented architectures, and create the potential for the entire I.T. infrastructure to be programmable. Because of this, cloud computing establishes a new consumption and delivery standard for IT services based on the internet. It is a new consumption and delivery model, because it is made up of services delivered through common centers and built on servers which act as a point of access for the computing needs of consumers. The access points facilitate the tailoring and delivering of targeted applications and services to consumers. Details are taken from the users, who no longer need to have an understanding of, or control over the technology infrastructure in the cloud that supports their desired application.

There are both corporate and consumer implications for such a system. For example, according cloud computing lowers the barriers to entry for corporations and new services. It also enables innovative enterprise in locations where there is an insufficient supply of human or other resources through the provision of inexpensive hardware, software, and applications. The consumer, in turn, is provided with information that he or she is projected to be interested in based on information he or she has already “consumed.” Thus, for example: Google has the ability to monitor a person’s consuming habits through searches and to reduce those habits to a pattern which selects applications to display – and consumption of those reinforces the pattern.

Privacy Concerns:

Though cloud computing can be a useful tool for consumers, corporations, and countries, cloud computing poses significant privacy concerns for all actors involved. For the consumer, a major concern is that future business models may rely on the use of personal data from consumers of cloud services for advertising or behavioral targeting. This concern brings to light the fundamental problem of cloud computing which is that consumers consent to the secondary use of their personal data only when they are signing up for services, and that “consent” is almost automatically generated. How can the cloud assure users that their private data will be properly protected? It is true that high levels of encryption can be (and are) used, and that many companies also take other precautionary measures, but protective measures vary, and the secondary sources that gain access to information may not protect it as well as the initial source. Moreover, even strong protection measures are vulnerable to hackers. As well, what happens if a jurisdiction, like the Indian government, gains access to information about a foreign national? India still does not have a comprehensive data protection law, nor does it have many forms of redress for violations of privacy. How is that individuals information protected?

These questions give rise to other privacy concerns with respect to the data that is circulated and stored on the cloud, which are the questions of territory, sovereignty, and regulation. Many of these were brought up at the Internet Governance Forum, which took place on the 16th of September including: Which jurisdiction has authority in cases of dispute or digital crime? If you lose data or your data is damaged, stolen, or manipulated, where do you go? Is the violation enforced under local laws, and, if so, under the law of the violator or the law of the violated? If international law, who can access the tribunals, and which tribunals have this jurisdiction? What if a person's data is replicated in two data centres in two different countries? Are the data subject to scrutiny by the officials of all three? Is there a remedy against abuse by any of them? Does it matter whether the country in which the data centre resides does not require a warrant for government access? And how will a consumer know any of that up front? As a corollary, if content is being sent to one country but resides on a data centre in another country, whose data protection standards apply? For example, certain governments in Europe require data retention for limited amount of time for purposes for law enforcement, but other countries may allow retention of data for shorter or longer periods of time.

How are privacy, free/open source, and the cloud related ?

Eben Moglen, a professor from Columbia law school, and founder and chairman of the Software Freedom Law Center who spoke on cloud computing, privacy, and free/open software at the Indian Institute for science on Thursday September 25, had another solution to the privacy concerns that arise out of the cloud. His lecture explains how the internet has moved from a tool that once promoted equality between people – no servants and no masters – to a tool that reinforces social hierarchies. The reinforcement of these hierarchies is directly related to the language used and communication facilitated between the computer and the individual. Professor Moglen describes how initially, when computers were first introduced to the public, humans spoke directly to computers, and computers responded directly to humans. This open, two-way communication changed when Microsoft, Apple, and IBM removed the language between humans and computers and created proprietary software based on a server-client computing relationship. By removing the language between humans and computers, these corporations dis-empowered individuals. Professor Moglen used this as a springboard to address the privacy concerns that come up in cloud computing. Privacy at its base is the ability of an individual to control access to various aspects of self, such as decisional, informational, and locational. In having the ability to control these factors, privacy consists of a relation between a person and another person or an entity. Professor Moglen postulated that free/open access to code would make the internet an environment where choices over that relationship were still in the hands of an individual, and, among other protections, the individuals could build up their desired levels of privacy.

Is free/open software the solution?

Eben Moglen's solution to the many privacy concerns that arise out of cloud computing is the application and use of free software/open source by individuals. Unlike some applications on the cloud, open source is free, and once an individual has access to the code, that person can control how a program functions, including how a program uses personal information, and thus the person would be able to protect their privacy. Of course, this presumes that the consumer of the internet is sophisticated enough to access and manipulate code. But even putting that presumption aside, is the ability to write code enough to protect data (will help you protect data better – add more security)? Perhaps if a person could create his own server and bypass the cloud, but this does not seem like an ideal (or practical) solution. Though free/open source is an important element that should be incorporated into cloud computing, free/open source depends on open standards. According to Pranesh Prakash, in his presentation at the Internet Governance Forum, the role of standards in ensuring interoperability is critical to allowing consumers to choose between different devices to access the cloud, to choose between different software clients, and to shift between one service and another. This would include moving information, both the data and the metadata, from one cloud to another. Clouds would need to be able to talk to one another to enable data sharing, and open source is key to this, though it is important to note that if one uses free/open source, they must set up their own infrastructure.

Conclusion

Even though Moglen believes that free/open source software brings freedom and provides the solution to protect an individual’s privacy in the context of cloud computing, he was not speaking to the specific context of India. To do that, it is important to expand the definitions that one uses of free/open source and privacy, and then to contextualize them. Looking closely at the words “free/open source,” they are not limited to access to a software's code, even though that is free/open source’s base. For the ideology of free/open source to work, access to code is just a key to the puzzle. A person, community, culture and state must understand the purpose of free/open source, know how to use it, and know how it can be applied in order for it to be transformative, liberating, and protective. There needs to be a shared understanding that free/open source is not just about being able to change code, but about a shared commitment to sharing code and making it transparent and accessible. In the United States and other countries, free/open source did not just enter into American society and immediately fix issues of privacy by bringing freedom, as it seems Professor Moglen is suggesting free/open source will do in India. Though Professor Moglen promises freedom and privacy protection through free/open source, perhaps this is not an honest appraisal of the technology. Free/open source, if not equally accessed or misapplied, protects neither freedom nor privacy. As noted above, even if a person has access to code, he can protect data only to a certain extent. Thus, he might think that he has created a privacy wall around information that actually is readily accessible. In other words, free/open source cannot be the only answer to freedom, but instead a piece to a collective answer.

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

Privacy vs. Transparency: An Attempt at Resolving the Dichotomy

sunil — 2015-03-08T06:26:21Z

The right to privacy has been articulated in international law and in some national laws. In a few countries where the constitution does not explicitly guarantee such a right, courts have read the right to privacy into other rights (e.g., the right to life, the right to equal treatment under law and also the right to freedom of speech and expression).

With feedback and inputs from Sumandro Chattapadhyay, Elonnai Hickok, Bhairav Acharya and Geetha Hariharan. I would like to apologize for not providing proper citation to Julian Assange when the first version of this blog entry was published. I would also like to thank Micah Sifry for drawing this failure to his attention. The blog post originally published by Omidyar Network can be read here. Also see http://newint.org/features/2015/01/01/privacy-transparency/

In other countries where privacy is not yet an explicit or implicit right, harm to the individual is mitigated using older confidentiality or secrecy law. After the Snowden affair, the rise of social media and the sharing economy, some corporations and governments would like us to believe that “privacy is dead”. Privacy should not and cannot be dead, because that would mean that security is also dead. This is indeed the most dangerous consequence of total surveillance as it is technically impossible to architect a secure information system without privacy as a precondition. And conversely, it is impossible to guarantee privacy without security as a precondition.

The right to transparency [also known as the right to information or access to information] – while unavailable in international law – is increasingly available in national law. Over the last twenty years this right has become encoded in national laws – and across the world it is being used to hold government accountable and to balance the power asymmetry between states and citizens. Independent and autonomous offices of transparency regulators have been established. Apart from increasing government transparency, corporations are also increasingly required to be transparent as part of generic or industry specific regulation in the public interest. For instance, India’s Companies Act, 2013, requires greater transparency from the private sector. Other areas of human endeavor such as science and development are also becoming increasingly transparent though here it is still left up to self-regulation and there isn’t as much established law. Within science and research more generally, the rise of open data accompanied the growth of the Open Access and citizen science movement.

So the question before us is: Are these two rights – the right to transparency and the right to privacy – compatible? Is it a zero-sum game? Do we have to sacrifice one right to enforce the other? Unfortunately, many privacy and transparency activists think this is the case and this has resulted in some conflict. I suggest that these rights are completely compatible when it comes to addressing the question of power. These rights do not have to be balanced against one another. There is no need to settle for a sub-optimal solution. Rather this is an optimization problem and the solution is as follows: privacy protections must be inversely proportionate to power and as Julian Assange says transparency requirements should be directly proportionate to power.[*]

In most privacy laws, the public interest is an exception to privacy. If public interest is being undermined, then an individual privacy can be infringed upon by the state, by researchers, by the media, etc. And in transparency law, privacy is the exception. If the privacy of an individual can be infringed, transparency is not required unless it is in the public interest. In other words, the “public interest” test allows us to use privacy law and transparency law to address power asymmetries rather than exacerbate them. What constitutes “public interest” is of course left to courts, privacy regulators, and transparency regulators to decide. Like privacy, there are many other exceptions in any given transparency regime including confidentiality and secrecy. Given uneven quality of case law there will be a temptation by the corrupt to conflate exceptions. Here the old common-law principle of “there is no confidence as to the disclosure of iniquity” – which prevents confidentiality law from being used to cover malfeasance or illegality – can be adopted in appropriate jurisdictions.

Around 10 years ago, the transparency movement gave birth to yet another movement – the open government data movement. The tension between privacy and transparency is most clearly seen in the open government data movement. The open government data movement in some parts of the world is dominated by ahistorical and apolitical technologists, and some of them seem intent on reinventing the wheel. In India, ever since the enactment of the Right to Information Act, 2003, 30 transparency activists are either killed, beaten or criminally intimidated every year. This is the statistic from media coverage alone. Many more silently suffer. RTI or transparency is without a doubt one of the most dangerous sectors within civil society that you could choose to work in. In contrast, not a single open data activist has ever been killed, beaten or criminally intimidated. I suspect this is because open data activists do not sufficiently challenge power hierarchies. Let us look a little bit closely at their work cycle. When a traditional transparency activist asks a question, that is usually enough to get them into trouble. When an open data activist publishes an answer [a dataset nicely scrubbed and machine readable, or a visualization, or a tool] they are often frustrated because nobody seems interested in using it. Often even the activist is unclear what the question is. This is because open data activist works where data is available. Open data activists are obsessed with big datasets, which are easier to find at the bottom of the pyramid. They contribute to growing surveillance practices [the nexus between Internet giants, states, and the security establishment] rather that focusing on sousveillance [citizen surveillance of the state, also referred to as citizen undersight or inverse surveillance]. They seem to be obsessed only with tools and technologies, rather than power asymmetries and injustices.

Finally, a case study to make my argument easier to understand – Aadhaar or UID, India’s ambitious centralized biometric identity and authentication management system. There are many serious issues with its centralized topology, proprietary technology, and dependence on biometrics as authentication factors – all of which I have written about in the past. In this article, I will explain how my optimization solution can be applied to the project to make it more effective in addressing its primary problem statement that corruption is a necessary outcome of power asymmetries in India.

In its current avatar – the Aadhaar project hopes to assign biometric-based identities to all citizens. The hope is that, by doing authentication in the last mile, corruption within India’s massive subsidy programmes will be reduced. This, in my view, might marginally reduce retail corruption at the bottom of the pyramid. It will do nothing to address wholesale corruption that occurs as subsidies travel from the top to the bottom of the pyramid. I have advocated over the last two years that we should abandon trying to issue biometric identities to all citizens, thereby making them more transparent to the state. Let us instead issue Aadhaar numbers to all politicians and bureaucrats and instead make the state more transparent to citizens. There is no public interest in reducing privacy for ordinary citizens – the powerless – but there are definitely huge public interest benefits to be secured by increasing transparency of politicians and bureaucrats, who are the powerful.

The Indian government has recently introduced a biometric-based attendance system for all bureaucrats and has created a portal that allows Indian citizens to track if their bureaucrats are arriving late or leaving early. This unfortunately is just bean counting [for being corrupt and being punctual are not mutually exclusive] and public access to the national portal was turned off because of legitimate protests from some of the bureaucrats. What bureaucrats do in office, who they meet, and which documents they process is more important than when they arrive at or depart from work. The increased transparency or reduced privacy was not contributing to the public interest.

Instead of first going after small-ticket corruption at the bottom of the pyramid, maximization of public interest requires us to focus on the top, for there is much greater ROI for the anti-corruption rupee. For example: constructing a digital signature based on audit trails that track all funds and subsidies as they move up and down the pyramid. These audit trails must be made public so that ordinary villagers can be supported by open data activists, journalists, social entrepreneurs, and traditional civil society in verification and course correction.

I hope open data activists, data scientists, and big data experts will draw inspiration from the giants of the transparency movement in India. I hope they will turn their attention to power, examine power asymmetries and then ask how the Aadhaar project can be leveraged to make India more rather than less equal.

Videos

Open Up? 2014: Risky Business: Transparency, Technology, Security, and Human Rights

Open Up? 2014: Data Collection and Sharing: Transparency and the Private Sector

The videos can also be watched on Vimeo:

[*].http://prospect.org/article/real-significance-wikileaks “Transparency should be proportional to the power that one has.”

Read the presentation on Risky Business: Transparency, Technology, Security and Privacy made at the Pecha Kucha session here. (ODP File, 35 kb)

Disclaimer: The views, opinions, and positions expressed by the author(s) of this blog are theirs alone, and do not necessarily reflect the views, opinions, or positions of Omidyar Network. We make no representations as to accuracy, completeness, timeliness, suitability or validity of any information presented by individual authors of the blogs and will not be liable for any errors, omissions, or delays in this information or any losses, injuries or damages arising from its display or use.

For more details visit https://cis-india.org/openness/blog-old/privacy-v-transparency

Privacy Newsletter February 2017

praskrishna — 2017-07-20T14:00:13Z

For more details visit https://cis-india.org/internet-governance/files/privacy-newsletter-february-2017.pdf

Privacy Meeting: Brussels – Bangalore

praskrishna — 2013-09-12T07:56:53Z

The Centre for Internet and Society, Bangalore welcomes you to a talk on privacy by Gertjan Boulet and Dariusz Kloza on August 14, 2013, 5.00 p.m. to 8.00 p.m.

Slides from the talk can be accessed here.

Draft Agenda

Time	Detail
17.00 17.15	Brief presentation of the Research Group on Law, Science, Technology and Society (LSTS) at the Vrije Universiteit Brussel (VUB), Belgium
17.15 18.15	Session on "new tools" to protect privacy and personal data. A case-study on (European) approach to privacy impact assessment This session will provide an overview to the main findings of the projects carried out by VUB-LSTS (predominantly) with regard to privacy impact assessments (PIA), starting with the EU co-funded PIAF (“A Privacy Impact Assessment Framework for data protection and privacy rights”; 2011-2012), which reviewed existing PIA frameworks worldwide, surveyed opinions of national data protection authorities (DPAs) on an optimal PIA policy and, finally, provided a set of recommendations for PIA policy-makers and practitioners. This session will be concluded by proposing adaptation of the so-called environmental democracy to the needs and reality of privacy. The points in this session will be contrasted with the experience of India.
18.15 18.45	Session on co-operation of data protection authorities "Improving Practical and Helpful cooperation between Data Protection Authorities", 2013-15. This session will provide a preliminary analysis of the (legal) factors that pose as obstacles to and/or encourage co-operation between DPAs worldwide in enforcing privacy and data protection laws. Such an analysis aims at creating a 'wish-list', i.e. at identifying what measures could be taken to reduce barriers and to further foster co-operation. This session will be concluded by discussing what DPAs' can learn about co-operation from European and international competition law. The points in this session will be contrasted with the experience of India.
18.45 19.00	Break
19.00 19.15	Small session on big data The focus of this session will be on the challenges posed to sovereignty by cross-border law enforcement access to big data. The Belgian Yahoo-case will be discussed as it is emblematic of a reality with broad national claims to access data in a trans-border context. Indian perspectives on this topic will be taken into account.
19.15 20.00	Open discussion

Materials

Wright, David, Kush Wadhwa, Paul De Hert, and Dariusz Kloza, A Privacy Impact Assessment Framework for Data Protection and Privacy Rights, 2011. http://piafproject.eu/ref/PIAF_D1_21_Sept2011Revlogo.pdf
Hosein, Gus, and Simon Davies, Empirical Research of Contextual Factors Affecting the Introduction of Privacy Impact Assessment Frameworks in the Member States of the European Union, 2012. http://piafproject.eu/ref/PIAF_deliverable_d2_final.pdf
De Hert, Paul, Dariusz Kloza, and David Wright, Recommendations for a Privacy Impact Assessment Framework for the European Union, 2012. http://piafproject.eu/ref/PIAF_D3_final.pdf
Kloza Dariusz, Moscibroda Anna, Boulet Gertjan, “Improving Co-operation Between Data Protection Authorities: First Lessons from Competition Law.” in Jusletter IT. Die Zeitschrift für IT und Recht, published by Weblaw AG. http://jusletter-it.weblaw.ch/issues/2013/20-Februar-2013/2128.html
Kloza Dariusz, “Public voice in privacy governance: lessons from environmental democracy”, in Erich Schweighofer (ed.), KnowRight 2012 conference proceedings [forthcoming].

Other resources

PHAEDRA project: http://www.phaedra-project.eu

PIAF project: http://piafproject.eu
PIAw@tch, the PIA observatory: http://piawatch.eu

The Speakers

Gertjan Boulet

Gertjan Boulet holds a joint LL.M/MPhil (2010) from Leuven University (Belgium) and Tilburg University (the Netherlands) where he successfully completed a Research Master of Laws programme focused on legal methods and interdisciplinary research. He started to work as a doctoral researcher at the Research Group on Law, Science, Technology and Society (LSTS) at the Vrije Universiteit Brussel in January 2013 for the EU-funded research project 'Improving Practical and Helpful cooperAtion bEtween Data PRotection Authorities' (PHAEDRA). Before, he was a freelance researcher at VUB, and became a member of the programming committee of the annual conference 'Computers, Privacy & Data Protection' (CPDP). Prior to joining the Vrije Universiteit Brussel, Gertjan worked for the Brussels Airport Company (2010) and the law firm DLA Piper (2011). He also completed internships at the Belgian Public Prosecutor (2007), the Constitutional Court of Belgium (2012) and the Belgian Privacy Commission (2013).

Gertjan Boulet

Dariusz Kloza

Dariusz (Darek) Kloza is a doctoral researcher at the Research Group on Law, Science, Technology, and Society (LSTS) and the Institute for European Studies (IES) at Vrije Universiteit Brussel (VUB). He holds both an LL.M. in Law and Technology (2010) from the Tilburg Institute for Law, Technology, and Society (TILT) at Tilburg University (with distinction) and a master degree in law from University of Białystok (2008). He was also an exchange student at University of Copenhagen (2007-2008). His research is focused on fundamental rights in the digital era (especially privacy and data protection), liability of intermediary service providers and private international law. His doctoral research focuses on positive procedural obligations for privacy and data protection from the European perspective.

He has been involved in researching privacy and data protection issues in a number of EU co-funded projects, such as PIAF (Privacy Impact Assessment Framework for data protection and privacy rights), PHAEDRA (Improving Practical and Helpful cooperAtion bEtween Data PRotection Authorities) and ADVISE (Advanced Video Surveillance archives search Engine for security applications). He has also contributed to the work of the European Commission’s Task Force for Smart Grids, aimed at ensuring high level of privacy and personal data protection in smart grids/metering.

Dariusz Kloza

For more details visit https://cis-india.org/internet-governance/events/privacy-meeting-brussels-bangalore

Privacy Matters, Guwahati — Event Report

praskrishna — 2011-08-26T10:31:08Z

On June 23, a public seminar on “Privacy Matters” was held at the Don Bosco Institute in Karhulli, Guwahati. It was organised by IDRC, Society in Action Group, IDEA Chirang, an NGO initiative working with grassroots initiatives in Assam, Privacy India and CIS and was attended by RTI activists and grass roots NGO representatives from across the North Eastern region: Manipur, Arunachal Pradesh, Tripura, Nagaland, Assam and Sikkim. The event focused on the challenges and concerns of privacy in India.

Unfortunately many of the scheduled invitees had to drop out owing to developments on the Lokpal issue at the Centre, and simultaneously Guwahati was witnessing unrest following an agitation over land rights that left three persons dead.

Welcoming the participants, Prashant Iyengar, lead researcher for Privacy India, gave an introduction to the objectives of Privacy India, and briefed the gathering about the thematic “Privacy Matters” consultations previously held across the country in Kolkata, Bangalore and Ahmedabad. Mr. Iyengar also gave a background to issues that India is facing in concern with privacy, explaining the many contexts that privacy can be found in, and raising questions such as: Why is privacy important? How can it be maintained with the way technology is encroaching upon our lives? And how can we make privacy laws functional?

"Privacy objectives are to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. One of Privacy India’s goals is to build consensus towards the promulgation of a comprehensive privacy legislation in India through consultation with the public, legislators and the legal and academic community."

Prashant Iyengar, Privacy India.

Event Sessions

The structure of the event was one of open discussion, with presentations made by those who wanted to share. Throughout the day, the conversation fell into three main topics including: privacy and the RTI, privacy and the UID, and privacy and surveillance in the context of North East India.

Privacy and the RTI

Prashant Iyengar opened the discussion on privacy and the RTI by highlighting the tension between the need for transparency of the State, and the need to protect the privacy of public figures. For many participants privacy and transparency was a new concept that they had just started thinking about. Participant Rakesh (HRLN, Manipur) spoke on the shortcomings that he saw in the RTI Act noting that though the RTI brings some transparency to society, many citizens still do not understand the extent of their Right to Information as it is protected under the Act. Furthermore, the RTI Act is still not applied equally across the country, and the transparency that the RTI tries to achieve is still in very nascent stages. Lowang, a participant from Aru nachal Pradesh, shared the importance of drawing a line between privacy and transparency when it comes to information related to education and health. Anjuman Azra Begum, a research scholar working on indigenous people rights, noted the irony of the RTI as it is meant to bring transparency to the state, yet all ministers and MLA’s take an oath of secrecy, not transparency. Anjuman also spoke on the fact that the RTI often fails to protect the privacy of sensitive issues, such as sexual balance. She echoed Rakesh’s comment on the inaccessibility of the RTI, sharing that for a common person to exercise his/her rights is a very daunting task. Anthony Debbarmun, a human rights activist from Tripura noted that he felt that the North Eastern states are by and large seen as resource (land) by the centre and has shown no concern for citizens and their well-being. Government is seen as a dictator in this region, hence the question — Transparency for whom?, Privacy for Whom? The distinction between the transparency brought about by the RTI and individual privacy was also made. It was pointed out that the RTI is concerned with transparency of the State, but individual privacy is separate from this concept.

Personal Experiences Shared

Anjuman Azra Begum shared her sister’s experience with the RTI. Her sister had applied for a job in 2008. Their family filed an RTI for details of the procedure, but was denied details by the RTI officer, who said that furnishing details would violate the privacy of other candidates. This example raises questions about when it is appropriate for RTI officers to withhold information in the name of privacy, and what mechanisms can be put in place to ensure that the RTI does not use privacy as a way to deny information. Lowang also shared his experience with the RTI. He had filed an RTI asking for answer sheets because he doubted the appointment of police personnel. He was told that the cost in total would be Rs.2000, when in reality each sheet costs Rs.2 — the misconstruing of facts was another example of how RTI officials restrict access information indirectly. From these examples the concern about RTI officials using privacy as an excuse to deny information was brought to the surface. To highlight the problems with the current implementation of the RTI and the lack of basic knowledge of how to use the RTI Mhao Lotha from the DICE Foundation shared a personal experience of his friend who had filed an RTI against the fishery department, and the RTI official simply shouted at her. L. Rima told a similar story as Mhao Lotha. In her experience the RTI is good in theory, but in practice it has become a commercial platform, where officers pay money to applicants for RTI cases to be taken off.

From the discussion and the shared experiences it was clear that the RTI, although a strong law on paper, still faces many challenges in implementation that a privacy law could also face, and that the fact that if more privacy is brought into the RTI, it will become yet another way for the State to avoid disclosing information.

Questions to Consider

Can a privacy law be made to be functional in the same way that the RTI is functional?
In terms of the RTI who should have more privacy? Who should be more transparent? Can NGOs be held accountable under the RTI?
What mechanism should be established to enforce the balance between privacy and transparency?

Privacy and Security/Law Enforcement in the North East of India

Another important discussion held during the conference was the practices of law enforcement in the North East, security, and privacy. Because the North East is in a state of armed conflict several laws such as the Armed Forces Special Powers Act, Sedition Act and provisions in the IPC give immunity to security forces. This has led to gross violation of citizens’ privacy by law enforcement agencies — as the acts give large amounts

of power to law enforcement agencies with little or no accountability, and the acts are often misused. Furthermore, the security laws that exist in the North East explicitly prohibit access to individual personal information. For example, in the Assam Police Manual, which is followed by police in the North East — no papers can be given out to the public except to the investigation officer — this includes personal information such as medical records and post-mortem reports. Anjuman shared an example of how this rule violates individual privacy. In her example, a victim was not allowed access her own medical report, but her medical records were being circulated among police, doctors, and media. This example highlights how privacy and the right to information can go hand in hand as it was the victim’s right to access her own medical file, and at the same time getting access to her own medical file is an act of personal privacy protection.

Personal Experiences Shared

Participants shared how individual privacy is often violated by the army, as it is allowed to enter and search any space without warrant, if there is any type of “suspicion”. They also shared how phone tapping and random monitoring is a common practice by both the army and civil police. For example, one day the police recorded a conversation by Director of the Police, Wireless who was giving a lecture on how to lead an effective agitation. The transcript was handed to the high court and the director punished. Other examples include policemen frisking women in public, newspapers publishing police frisking women in public, and law enforcement agencies compelling pregnant women to give birth in open in front of people. The discussion surrounding privacy and security/law enforcement highlighted an important way in which privacy is violated in the North East. The unregulated action of law enforcement acts as a very real and dangerous way in which individual privacy is violated on a daily basis.

Questions to Consider

Can privacy legislation regulate the acts of law enforcement agencies?
Will privacy legislation be implemented differently in the North East because of the armed conflict?
Will a privacy law supersede other laws such as the AFSPA?

Privacy and the UID

During the conference the discussion also briefly focused on the UID and privacy. It was shared that there had yet to be UID consultations in the North East of India. The only information individuals had about the UID was that it was going to allow individuals to access BPL benefits more easily.

Questions around the UID included: why is the UID needed for citizens living within their own country? How will the UID impact and help families who send their children to gather rations from the ration shops? What is the connection between the UID and the expected privacy law? What is the connection between the UID and intelligence agencies? What would UID mean to people living in border areas?

Conclusion

Privacy as a Fundamental Right

In the closing discussion Prashant Iyengar shared different examples of privacy in Indian case law, and the various ways in which the Supreme Court has defined privacy as a right that is implicit in the right to life. The participants discussed what privacy means to them, and what they thought a right to privacy should entail. Among the points raised, it was brought up that privacy should be a right that is legally protected for sovereign individuals. The law should also include parameters and limitations in order to protect an individual’s autonomy. Furthermore, privacy should be understood and linked to the concept of human rights and individual rights. From the closing session, and the above sessions many themes and questions pertaining to privacy came out that will need to be addressed when considering the way forward for a privacy legislation including:

Property rights and privacy
Privacy rights of minorities
Privacy and the UID
Privacy and law enforcement agencies
Privacy as a fundamental right
The interplay of privacy law and traditional law

Download the Event Report here [PDF, 178 kb]

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

Privacy matters

praskrishna — 2011-04-04T07:22:24Z

Privacy India invites individuals to attend “Privacy Matters”, a one-day conference on 23 January 2011 at the WB National University of Juridical Sciences (NUJS) Law School in Kolkata. Privacy India, Society in Action Group and the Centre for Internet & Society have joined hands to organize this.

The conference will focus on discussing the challenges to privacy that India is currently facing. The right to privacy in India has been a neglected area of study and engagement. Although sectoral legislation deals with privacy issues, e.g., the TRAI Act for telephony or RBI Guidelines for Banks, India does not as yet have a horizontal legislation that deals comprehensively with privacy across all contexts. This lack of uniformity has led to ironically imbalanced results. In India today one has a stronger right to privacy over telephone records than over one’s own medical records. The absence of a minimum guarantee of privacy is felt most heavily by marginalized communities, including HIV patients, children, women, sexuality minorities, prisoners, etc. – people who most need to know that sensitive information is protected.

The emergence of information and communications technologies over the past two decades has radically transformed the speed and costs of access to information. However, this enhanced climate of access to information has been a mixed blessing. Whilst augmenting our access to knowledge, this new networked information economy has also now made it much easier, quicker, and cheaper to gain access to intimate personal information about individuals than ever before. As people expose more and more of their lives to others through the use of social networks, reliance on mobile phones, global trade, etc., there has emerged a heightened risk of privacy violations in India. As privacy continues to be a growing concern for individuals, nations, and the international community, it is critical that India understands and addresses the questions, challenges, implications and dilemmas that violations of privacy pose.

Who We Are

Privacy India was set up in collaboration with the Centre for Internet & Society (CIS), Bangalore and Society in Action Group (SAG), under the auspices of the international organization ‘Privacy International’. Privacy International is a non-profit group that provides assistance to civil society groups, governments, international and regional bodies and the media and the public in a number of countries (see www.privacyinternational.org). Its Advisory Board is made up of distinguished intellectuals, academicians, thinkers and activists such as Noam Chomsky, the late Harold Pinter, and others, and it has collaborated with organizations such as the American Civil Liberties Union (ACLU).

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" Privacy Matters" Conference Agenda

Time	Item
10:30 11:00	Welcome: Rajan Gandhi a. Who is PI b. What are our objectives c. Why is privacy important in India
11:00 11:30	Keynote: Sudhir Krishnaswamy
11:30 11:45	Tea Break
11:45 1:00	Session I: Prashant Iyengar and Elonnai Hickok a. Personal privacy: Violations and Indian legislation that addresses these violations Case study: Nira Radia and wiretapping b. Informational privacy: Violations and Indian legislation that addresses these violations Case study: The proposed data protection legislation in India c. What is the existing vacuum in Indian legislation concerning privacy
1:00 2:00	Lunch
2:00 3:30	Session II: Prashant Iyengar, Deva Prasad, Amba Kak a. Identity and privacy: why does it matter b. International approaches to identity c. The UID and privacy
3:30 3:45	Tea Break
3:45 4:30	Open discussion and opinion sharing

VIDEOS

For more details visit https://cis-india.org/events/privacy-matters

Privacy concerns multiply for Aadhaar, India’s national biometric identity registry

praskrishna — 2017-03-22T14:38:52Z

The largest and most sophisticated biometric identity system of any country in the world, India’s Aadhaar, is sparking new fears that the personal data it stores on more than 1.1 billion people could be vulnerable to exploitation.

The article by Kaelyn Lowmaster was published by One World Identity on March 17, 2017, Sunil Abraham was quoted.

Aadhaar, which translates to “foundation” in Hindi, is a unique 12-digit code tied to citizens’ biometric data and personal information. The system was launched in 2009 in an effort to extend social services to India’s millions of unregistered citizens, and to cut down on welfare benefit “leakage” resulting from an opaque and often corrupt bureaucracy.

Constructing a centralized repository of biometric data on nearly a fifth of the world’s population has raised serious concerns among privacy advocates.

The government has also looked to Aadhaar data to underpin mobile payment transfer platforms, which have become crucial for cashless transactions during the country’s demonetization push over past year.

But constructing a centralized repository of biometric data on nearly a fifth of the world’s population has raised serious concerns among privacy advocates, who cite several vulnerabilities both with the Aadhaar system and the Modi administration’s planned expansion.

Despite this, recent metrics indicate that Aadhaar has been enormously successful in achieving those goals. Though the program is theoretically voluntary, more than 99% of Indian adults are now enrolled. Over three billion individual identity verifications have been conducted, and some reports indicate that the Indian government is saving a billion dollars per year now that welfare subsidies can be paid to citizens directly through Aadhaar-verified fund transfers.

Prime Minister Narendra Modi has ambitions to broaden the system even further, seeking to use Aadhaar as the gateway for accessing government programs ranging from public education to subsidized cooking gas, as well as partnering with private companies to offer services facilitated by the Aadhaar database.

Concerns, however, remain. One primary worry is that India’s legal framework for information security is still weak and fragmented, despite government assurances that Aadhaar biometrics have never been misused or stolen.

“There are no regulations in India on safeguards over and procedures for the collection, processing, storage, retention, access, disclosure, destruction, and anonymization of sensitive personal information by any service provider,” according to a 2016 World Bank report.

A patchwork of rules outlining “reasonable security practices and procedures” for personal data has accumulated since Aadhaar was launched, but there is no codified law outlining how data in the system must be secured, or what penalties exist for potential leaks, fraud or misuse.

“Imagine a situation where the police (are) secretly capturing the iris data of protesters and then identifying them through their biometric records” – Sunil Abraham, executive director of the Centre for Internet and Society in Bangalore

This regulatory gap poses a particularly acute risk now that the government has begun offering companies and app developers support for starting new businesses that use Aadhaar data. Through a new initiative called IndiaStack, the administration is providing open program interfaces for companies in fintech, healthcare, and other areas to integrate Aadhaar-based transactions into their business platforms. While IndiaStack’s terms of use explicitly state that user consent is required for any information sharing between service providers and the Aadhaar database, doubts remain about the integrity of the network infrastructure and the lack of clarity surrounding acceptable information sharing and storing protocols.

Another source of concern is the risk that Aadhaar information could be leveraged by the government itself for political purposes.

“Maintaining a central database is akin to getting the keys of every house in Delhi and storing them at a central police station,” Sunil Abraham, executive director of the Centre for Internet and Society in Bangalore, told Reuters. “It is very easy to capture iris data of any individual with the use of next generation cameras. Imagine a situation where the police (are) secretly capturing the iris data of protesters and then identifying them through their biometric records.”

Further stoking fears of federal overreach, the Modi administration has attempted to make Aadhaar registration mandatory in certain sectors, violating a Supreme Court ruling from October 2015 that enrollment must remain voluntary.

Still, the benefits of building on the Aadhaar identity system appear to be outweighing the risks for now, and the system is gathering momentum worldwide. The World Bank is helping market the Aadhaar model abroad, and Russia, Morocco, Tunisia, and Algeria have all expressed interest in instituting national biometric identity programs of their own. Microsoft is already on board, and Google is negotiating ways to get involved.

Aadhaar may indeed live up to is potential and become the global standard for universal legal identity, but until India can manage to create more robust mechanisms to protect citizens’ personal data, their security could remain uncertain.

For more details visit https://cis-india.org/internet-governance/news/one-world-indentity-kaelyn-lowmaster-march-17-2017-privacy-concerns-multiply-for-aadhaar-indias-national-biometric-identity-registry

Privacy By Design — Conference Report

praskrishna — 2011-08-22T12:03:30Z

How do we imagine privacy? How is privacy being built into technological systems? On April 16th,The Center for Internet and Society hosted Privacy by Design, an Open Space meant to answer these questions and more around the topic of privacy. Below is a summary of the conversations and dialogs from the event.

Introduction

On April 16th, The Center for Internet and Society hosted Privacy by Design, an Open Space meant to foster discussions around questions related to how privacy is being designed into technological systems. The day opened with two basic questions: How do we imagine privacy? And how are individuals building technology systems incorporating privacy into the system? Throughout the day the conversations took many twist and turns, but at the end of the day three basic points about privacy had come out of the many discussions: 1. Privacy cannot be limited to one definition; it is constantly changing based on person and on context 2. To a person - privacy is a function of abuse and violation 3. The increased generation of data that was made possible by web 2.0 has lead to a rise in privacy issues and is significantly changing many traditional concepts, spaces, and relationships – such as what constitutes a public space, and the relationship between a state and its citizens.

Database architecture and privacy

The morning discussion focused on databases and privacy, and began with questions like: How can a database be built to protect privacy? When a database is built, what role does privacy play in the migration of data? Is privacy protected in databases simply by limiting access to certain parts of data sets? Though many of these were left unanswered, the conversation highlighted the fact that th databases are coded to segregate /regulate users and information in order to protect the system. Thus, databases are architected to incorporate privacy in such a way that protects the viability of only the system and not the individual. In our research we have seen many cases of this. Individual’s privacy has been violated because of malfunctioning or poorly constructed databases. For example, currently Indian governmental databases often have incorrect information, individuals do not have the ability to access and change their information, and if an individual’s information is compromised the government is not held accountable, and there is no course of action that an individual can take towards redress.

Security vs. Privacy

Embedded in this understanding of how privacy is built into technological systems is the question of what security is, and when systems are built, whether privacy and security are considered to be essentially the same. Thus far in our research we have distinguished between privacy and security, saying that, security and privacy have an interesting relationship, because they go hand in hand, and yet at the same time have a different focus, because of this differing focus data security and privacy are not the same. Data breaches that contain personal information of any sort that can be matched, tracked or otherwise co-related to a person or persons will result in a privacy breach too. Though data security is critical for protecting privacy, because data security and privacy have different focuses, the principles that each follows are also different and sometimes conflicting. For example, data security focuses on data retention, logging, etc, while privacy focuses on consent, restricted access to data, limited data retention, and anonymity. If security measures are carried out without privacy interests in mind, privacy violations can easily result. Therefore we have thought that data security should influence and support a privacy regime, but not drive it.

security and privacy have an interesting relationship, because they go hand in hand, and yet at the same time have a different focus, because of this differing focus data security and privacy are not the same. Data breaches that contain personal information of any sort that can be matched, tracked or otherwise co-related to a person or persons will result in a privacy breach too. Though data security is critical for protecting privacy, because data security and privacy have different focuses, the principles that each follows are also different and sometimes conflicting. For example, data security focuses on data retention, logging, etc, while privacy focuses on consent, restricted access to data, limited data retention, and anonymity. If security measures are carried out without privacy interests in mind, privacy violations can easily result. Therefore we have thought that data security should influence and support a privacy regime, but not drive it.

The right to be forgotten and regulation of data

The possibility of creating systems with "off switches" also came out of this thread of conversation. For instance, can a database be structured to show only necessary information to third parties based on the context. In this scenario a card would be created that has all of an individual’s information on it, but only the pertinent information will be shown based on the different situations - if, for example, a teenager goes to a bar, the card will only show a third party that he is over 18. This idea is already taking shape in many Western countries, and is similar to the idea of a federated identity system. A question to ask though is if such a system could work for India, or be even more appropriate for India than a system like the UID. The purpose of federated systems of identity is to take context into consideration, and enable users to keep contexts separate, and link information about an individual only takes place when consent is given by the user. In response to the idea of an identity system that allows only certain information to be seen by third parties based on the situation, it was brought out that privacy is not protected simply by the separation of data into public or private categories, because all data have the potential to be misused. The immediate response to this concern was that if all data have the potential to be mis-used – than the use of data should be carefully regulated. The regulation of data though is also a double edged sword. On one hand regulating the use of data can stop a company from misusing information, but on the other hand it can keep a country from having full and equal access to the internet. A question that came out of this discussion on regulation was about the right to be forgotten. Does an individual have the right to regulate all information about themselves that is in the public sphere? Can they ask for their photos or videos to be taken down from the internet? In India this question has yet to be answered by the law, and it is a question that our research is looking into.

The purpose of federated systems of identity is to take context into consideration, and enable users to keep contexts separate, and link information about an individual only takes place when consent is given by the user. In response to the idea of an identity system that allows only certain information to be seen by third parties based on the situation, it was brought out that privacy is not protected simply by the separation of data into public or private categories, because all data have the potential to be misused. The immediate response to this concern was that if all data have the potential to be mis-used – than the use of data should be carefully regulated. The regulation of data though is also a double edged sword. On one hand regulating the use of data can stop a company from misusing information, but on the other hand it can keep a country from having full and equal access to the internet. A question that came out of this discussion on regulation was about the right to be forgotten. Does an individual have the right to regulate all information about themselves that is in the public sphere? Can they ask for their photos or videos to be taken down from the internet? In India this question has yet to be answered by the law, and it is a question that our research is looking into.

Data types and privacy

Emerging from the conversation on database structure, a conversation on types of data in databases was started. The question was raised as to whether or not databases can actually handle certain types of data. The example given was caste-related data. Information about a person’s caste is constantly changing as people lie about their caste, change their caste, and become married and take on another caste. Furthermore, some people do not want to live with their caste and want to shed off their caste. Therefore, can a database accurately represent such a dynamic data set? Is it dangerous to put such a politically volatile concept as caste into a database where it will confine a person to one definition once entered? Another side to this question though is that perhaps it is in fact necessary to try and place a person in one caste, as there benefits enshrined by law based on a person’s caste, and an individual who has the ability to change his/her caste at their whim therefore defeats and takes advantage of governmental benefits. The point was also raised that by placing information like caste and identity into a database, governments have the ability to divide the country into subsets of identities that they decide to generate. Caste is not the only data that faces these complications and issues. For instance religion and race raise similar question. How can you define and represent a person’s relationship with God in a database? How to you represent a child of multiracial parents on a database?

Changes in the relationship between the state and the citizen

It was also brought out that the representation of citizens’ identities on a database changes the relationship between a state and its citizenry. States no longer see citizens as individuals, but instead as data samples. The UID is an example of an e-governance program that if enacted, could further such a change in the relationship between the state and the citizen, as the whole of India will suddenly and ubiquitously be recognized by the Government (and other entities/organizations) according to their aadhaar number. The relationship between the state and the citizen is not the only social change that databases bring about. Databases also change the concept of public space. As web 2.0 has facilitated the generation of large amounts of data, public space has become a space where one enters and interacts as a dataset. For example face book and twitter allow individuals to create datasets of them and interact with other people through their datasets. Beyond social networking online banking and online shopping also push people to form datasets about themselves and interact with services that were traditionally done in person as individuals, as datasets.

Questions of ownership

The above thread of conversation led to the next question of whether or not individuals control technology or whether technology controls individuals. The example of Facebook was used to illustrate this question. Even though Facebook has a privacy policy, once a person engages with Facebook he or she accepts Facebook’s definition of privacy – which is two tiered. On one level Facebook defines user privacy in terms of restriction - allowing the user to limit who can see their profiles. On another level Facebook’s privacy policy allows the company to share and sell personal information. In these ways companies are constructing databases so that instead of the company being the custodian of information – an entity that provides a structure to protect and hold information - the companies are now the owners of information- selling and using individuals information for profit. In India, this is a problem. Companies, once they collect data, treat it as their own - selling and sharing data with third parties, or using it in ways that were not agreed to by the customer. The question of ownership was a critical question for the group. In the discussions it was important to individuals that they had control and ownership over their information. Individuals felt that information that could be traced back to them or their identity belonged to them, and that in order to protect privacy consent should be secured before any information is used. For instance, data mining by websites without notice was seen as a violation of privacy. The collection of data in public places for marketing purposes without a person’s consent or awareness was similarly seen as a privacy violation. It was also brought out from this conversation that the digitization of information has caused a commercialization of information, and that has led to a sense of ownership and need for privacy over information. For example, before, if someone were to take one’s name and mis-use it, that person was charged with defamation – not for violation of privacy – but if someone misuses information that is in a database or online, that person is now charged for a violation of privacy. This shift in thinking is another example of how web 2.0 has increased privacy violations.

Perceptions and expectations of privacy

The day ended with a conversation about the perceptions and expectations of privacy. Privacy as it relates to an individual is almost wholly dependent on expectation, which changes from person to person, from community to community, and from culture to culture. Just as the expectation of privacy varies between individuals, so does the degree of violation. Thus, it is important to recognize the changing nature of privacy, because it explains why it is difficult for the legal system to address all the nuances of privacy with one broad legislation. This point has been crucial in our research thus far as we are consulting with the public, analyzing legislation, and following news items to see if privacy legislation is wanted and needed in India, and if it is - how it should be shaped.

From the conversation on perceptions of privacy and privacy violations it was also brought out that the concept of privacy is on one hand related to the notion of ownership, and on the other hand it is related to the violation. From the experiences shared by individuals, their privacy never became a concern until it was violated, or they learned about someone else’s privacy being violated. This led to the observation that not only is it difficult for the law to address privacy violations because the violation is based on perception, but also because the effect when one’s privacy is violated is often an emotional one.

Conclusion

The conversations held throughout the day showed the dynamic and personal nature of privacy, and how when databases are constructed, and how our lives made digital this personal aspect is easily lost. When we think about the conversations held throughout the day in relation to our initial questions: what are the different ways of imagining privacy, and how is privacy being built into technological systems, besides the three basic themes of privacy highlighted in the beginning of this blog - there emerged to more themes. One theme portrayed an imagination of privacy that is more personal, and that address the emotional component and the perception component to privacy. Another theme portrayed an imagination of privacy that is technologically more controlled, that allows for more personal regulation, more precise segregation of information in a database, and restricted access by third parties. This imagination of privacy can be and is being met by new and developing technologies. Increasingly in many countries technology is being structured with privacy built into the system. The larger question that this open space has raised, and not completely answered is if privacy legislation can adequately protect an individual’s privacy, and if it cannot, can technology can fill the gaps that privacy legislation leaves open.

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

Privacy and the Information Technology Act — Do we have the Safeguards for Electronic Privacy?

Prashant Iyengar — 2012-12-14T10:29:12Z

How do the provisions of the Information Technology Act measure up to the challenges of privacy infringement? Does it provide an adequate and useful safeguard for our electronic privacy? Prashant Iyengar gives a comprehensive analysis on whether and how the Act fulfils the challenges and needs through a series of FAQs while drawing upon real life examples.

What kinds of computer related activities impinge on privacy?

Although Information and Communications Technologies (ICTs) have greatly enhanced our capacities to collect, store, process and communicate information, it is ironically these very capacities of technology which make us vulnerable to intrusions of our privacy on a previously impossible scale. Firstly, data on our own personal computers can compromise us in unpleasant ways — with consequences ranging from personal embarrassment to financial loss. Secondly, transmission of data over the Internet and mobile networks is equally fraught with the risk of interception — both lawful and unlawful — which could compromise our privacy. Thirdly, in this age of cloud computing when much of "our" data — our emails, chat logs, personal profiles, bank statements, etc., reside on distant servers of the companies whose services we use, our privacy becomes only as strong as these companies’ internal electronic security systems. Fourthly, the privacy of children, women and minorities tend to be especially fragile in this digital age and they have become frequent targets of exploitation. Fifthly, Internet has spawned new kinds of annoyances from electronic voyeurism to spam or offensive email to ‘phishing’ — impersonating someone else’s identity for financial gain — each of which have the effect of impinging on one’s privacy.

Although there are a number of technological measures through which these risks can be reduced, it is equally important to have a robust legal regime in place which lays emphasis on the maintenance of privacy. This note looks at whether and how the Information Technology Act that we currently have in India measures up to these challenges of electronic privacy [1].

What provisions in the IT Act protect against violations of privacy?

At the outset, it would be pertinent to note that the IT Act defines a ‘computer resource’; expansively as including a “computer, computer system, computer network, data, computer database or software” [2]. As is evident, this definition is wide enough to cover most intrusions which involve any electronic communication devices or networks — including mobile networks. Briefly, then IT Act provides for both civil liability and criminal penalty for a number of specifically proscribed activities involving use of a computer — many of which impinge on privacy directly or indirectly. These will be examined in detail in the following sub-sections.

Intrusions into computers and mobile devices

accessing

downloading/copying/extraction of data or extracts any data

introduction of computer contaminant[3];or computer virus[4]

causing damage either to the computer resource or data residing on it

disruption

denial of access

facilitating access by an unauthorized person

charging the services availed of by a person to the account of another person,

destruction or diminishing of value of information

stealing, concealing, destroying or altering source code with an intention

The Act provides for the civil remedy of “damages by way of compensation” for damages caused by any of these actions. In addition anyone who “dishonestly” and “fraudulently” does any of these specified acts is liable to be punished with imprisonment for a term of upto three years or with a fine which may extend to five lakh rupees, or with both[5].

Bangalore techie convicted for hacking govt site (2009, Deccan Herald)[6]

In November 2009, The Additional Chief Metropolitan Magistrate, Egmore, Chennai, sentenced N G Arun Kumar, a techie from Bangalore to undergo a rigorous imprisonment for one year with a fine of Rs 5,000 under section 420 IPC (cheating) and Section 66 of IT Act (hacking).

Investigations had revealed that Kumar was logging on to the BSNL broadband Internet connection as if he was the authorised genuine user and ‘made alteration in the computer database pertaining to broadband Internet user accounts’ of the subscribers.

The CBI had registered a cyber crime case against Kumar and carried out investigations on the basis of a complaint by the Press Information Bureau, Chennai, which detected the unauthorised use of broadband Internet.

The complaint also stated that the subscribers had incurred a loss of Rs 38,248 due to Kumar’s wrongful act. He used to ‘hack’ sites from Bangalore as also from Chennai and other cities, they said.

Children's privacy online

As computers and the Internet become ubiquitous children have increasingly become exposed to crimes such as pornography and stalking that make use of their private information. The newly inserted section 67B of the IT Act (2008) attempts to safeguard the privacy of children below 18 years by creating a new enhanced penalty for criminals who target children.

The section firstly penalizes anyone engaged in child pornography. Thus, any person who “publishes or transmits” any material which depicts children engaged in sexually explicit conduct, or anyone who creates, seeks, collects, stores, downloads, advertises or exchanges this material may be punished with imprisonment upto five years (seven years for repeat offenders) and with a fine of upto Rs. 10 lakh.

Secondly, this section punishes the online enticement of children into sexually explicitly acts, and the facilitation of child abuse, which are also punishable as above.

Viewed together, these provisions seek to carve out a limited domain of privacy for children from would-be sexual predators.

The section exempts from its ambit, material which is justified on the grounds of public good, including the interests of "science, literature, art, learning or other objects of general concern". Material which is kept or used for bona fide "heritage or religious purpose" is also exempt.

In addition, the newly released Draft Intermediary Due-Diligence Guidelines, 2011 [7]require ‘intermediaries’[8]to notify users not to store, update, transmit and store any information that is inter alia, “pedophilic” or “harms minors in any way”. An intermediary who obtains knowledge of such information is required to “act expeditiously to work with user or owner of such information to remove access to such information that is claimed to be infringing or to be the subject of infringing activity”. Further, the intermediary is required to inform the police about such information and preserve the records for 90 days.

Electronic Voyeurism

Although once regarded as only the stuff of spy cinema, the explosion in consumer electronics has lowered the costs and the size of cameras to such an extent that the threat of hidden cameras recording people’s intimate moments has become quite real. Responding to the growing trend of such electronic voyeurism, a new section 66E has been inserted into the IT Act which penalizes the capturing, publishing and transmission of images of the "private area" [9]of any person without their consent, "under circumstances violating the privacy" [10] of that person.

This offence is punishable with imprisonment of upto three years or with a fine of upto Rs. two lakh or both.

Phishing – or Identity Theft

The word 'phishing' is commonly used to describe the offence of electronically impersonating someone else for financial gain. This is frequently done either by using someone else’s login credentials to gain access to protected systems, or by the unauthorized application of someone else’s digital signature in the course of electronic contracts. Increasingly a new type of crime has emerged wherein sim cards of mobile phones have been ‘cloned’ enabling miscreants to make calls on others' accounts. This is also a form of identity theft.

Two sections of the amended IT Act penalize these crimes:

Section 66C makes it an offence to “fraudulently or dishonestly” make use of the electronic signature, password or other unique identification feature of any person. Similarly, section 66D makes it an offence to “cheat by personation” [11] by means of any ‘communication device’[12] or 'computer resource'.

Both offences are punishable with imprisonment of upto three years or with a fine of upto Rs. one lakh.

Mumbai Police Solves Phishing scam [13]

In 2005, a financial institute complained that they were receiving misleading emails ostensibly emanating from ICICI Bank’s email ID.

An investigation was carried out with the emails received by the customers of that financial institute and the accused were arrested. The place of offence, Vijaywada was searched for the evidence. One laptop and mobile phone used for committing the crime was seized.

The arrested accused had used open source code email application software for sending spam e-mails. He had downloaded the same software from the Internet and then used it as it is.

He used only VSNL to spam the e-mail to customers of the financial institute because VSNL email service provider does not have spam box to block the unsolicited emails.

After spamming e-mails to the institute customers he got the response from around 120 customers of which 80 are genuine and others are not correct because they do not have debit card details as required for e-banking."

The customers who received his e-mail felt that it originated from the bank. When they filled the confidential information and submitted it the said information was directed to the accused. This was possible because the dynamic link was given in the first page (home page) of the fake website. The dynamic link means when people click on the link provided in spam that time only the link will be activated. The dynamic link was coded by handling the Internet Explorer onclick () event and the information of the form will be submitted to the web server (where the fake website is hosted). Then server will send the data to the configured e-mail address and in this case the e-mail configured was to the e-mail of the accused. All the information after phishing (user name, password, transaction password, debit card number and PIN, mother’s maiden name) which he had received through the Wi-Fi Internet connectivity of Reliance.com was now available on his Acer laptop.

This crime was registered under section 66 of the IT Act, sections 419, 420, 465, 468 and 471 of the Indian Penal Code and sections 51, 63 and 65 of the Indian Copyright Act, 1957 which attract the punishment of three years imprisonment and fine upto Rs 2 lac which the accused never thought of.

Spam and Offensive Messages

Although the advent of e-mail has greatly enhanced our communications capacities, most e-mail networks today remain susceptible to attacks from spammers who bulk-email unsolicited promotional or even offensive messages to the nuisance of users. Among the more notorious of these scams is/was the so-called "section 409 scam" in which victims receive e-mails from alleged millionaires who induce them to disclose their credit information in return for a share in millions.

Section 66A of the IT Act attempts to address this situation by penalizing the sending of:

any message which is grossly offensive or has a menacing character
false information for the purpose of causing annoyance, inconvenience, danger, insult, criminal intimidation, enmity, hatred or ill-will
any electronic e-mail for the purpose of causing annoyance or inconvenience, or to deceive the addressee about the origin of such messages;

This offence is punishable with imprisonment upto three years and with a fine[14]

Hoax E-mails [15]

In 2009, a 15-year-old Bangalore teenager was arrested by the cyber crime investigation cell (CCIC) of the city crime branch for allegedly sending a hoax e-mail to a private news channel. In the e-mail, he claimed to have planted five bombs in Mumbai, challenging the police to find them before it was too late.

According to police officials, at around 1p.m. on May 25, the news channel received an e-mail that read: “I have planted five bombs in Mumbai; you have two hours to find it.” The police, who were alerted immediately, traced the Internet Protocol (IP) address to Vijay Nagar in Bangalore. The Internet service provider for the account was BSNL, said officials.

Minor Hoax Spells Major Trouble

Sixteen-year-old Rakesh Patel (name changed), a student from Ahmedabad, sent an e-mail to a private news channel on March 18, 2008, warning officials of a bomb on an Andheri-bound train. In the e-mail, he claimed to be a member of the Dawood Ibrahim gang. Three days later, the crime investigation cell (CCIC) of the city police arrested the boy under section 506 (ii) for criminal intimidation. He was charge-sheeted on November 28, 2008.
Status: Patel was given a warning by a juvenile court
A 14-year-old Colaba boy sent a hoax e-mail to a TV channel in Madhya Pradesh, three days after the July 26, 2008, Ahmedabad bomb blasts. He claimed that 29 bombs would go off in Jabalpur. He was picked up by officers of the anti-terrorism squad (ATS) who, with the help of the MP police, were able to trace the e-mail to a cyber café in Colaba.
Status: No FIR was registered. The Cuffe Parade police registered a non-cognizable (NC) complaint against him, and the boy was allowed to go home after the police gave him a “strict warning”.
Shariq Khan, 18, was arrested in Bhopal on July 26, 2006, for sending out three e-mails claiming to be a member of the terrorist organisation, which the police believed was behind the 7/11 train bombings. He was arrested by the Bhopal police. Later, the ATS brought the boy to Mumbai and also booked him for a five-year-old unsolved case where an unknown accused had sent e-mail warnings to the department of Atomic Energy (DAE) in 2001.
Status: The police filed a charge-sheet against Shariq who claimed that he had sent the e-mails for fun. Trial is pending in a juvenile court. Shariq is presently out on bail in Bhopal.
On February 26, 2006, a 17-yearold student from Jamnabai Narsee School called an Alitalia flight bound to Milan at 2 a.m. telling them there was a bomb on board. He wanted to stop his girlfriend from going abroad. She was one of the 12 students on their way to attend a mock United Nations session in Geneva.
Status: After being grilled by the police, he was arrested, but let out on bail.

Lawful Interception and monitoring of electronic communications under the IT Act

In addition to violations of privacy by criminal and the mischievous minded, electronic communications and storage are also a goldmine for governmental supervision and surveillance. This section provides a brief overview of the provisions in the IT Act which circumscribe the powers of the state to intercept electronic communications.

The newly amended IT Act completely rewrote its provisions in relation to lawful interception. The new section 69 dealing with “power to issue directions for interception or monitoring or decryption of any information through any computer resource” is much more elaborate than the one it replaced, In October 2009, the Central Government notified rules under section 69 which lay down procedures and safeguards for interception, monitoring and decryption of information (the “Interception Rules 2009”). This further thickens the legal regime in this context.

Unlawful Intercept

In August 2007, Lakshmana Kailash K., a techie from Bangalore was arrested on the suspicion of having posted insulting images of Chhatrapati Shivaji, a major historical figure in the state of Maharashtra, on the social-networking site Orkut. The police identified him based on IP address details obtained from Google and Airtel – Lakshmana’s ISP. He was brought to Pune and detained for 50 days before it was discovered that the IP address provided by Airtel was erroneous. The mistake was evidently due to the fact that while requesting information from Airtel, the police had not properly specified whether the suspect had posted the content at 1:15 p.m. or a.m.

Taking cognizance of his plight from newspaper accounts, the State Human Rights Commission subsequently ordered the company to pay Rs 2 lakh to Lakshmana as damages [16].

The incident highlights how minor privacy violations by ISPs and intermediaries could have impacts that gravely undermine other basic human rights [17].

In addition to section 69, the Government has been empowered under the newly inserted section 69B to "monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource".

"Traffic data" has been defined in the section to mean “any data identifying or purporting to identify any person, computer system or computer network or any location to or from which communication is or may be transmitted.” Rules have been issued by the Central Government under this section (the “Monitoring and Collecting Traffic Data Rules, 2009”) which are similar, although with important distinctions, to the rules issued under section 69.

Thus, there are two parallel interception and monitoring regimes in place under the Information Technology Act. In the paragraphs that follow, we provide an overview of the regime of surveillance under section 69 — since they are more targeted towards the individual, and consequently the threats to privacy are more severe — while highlighting important differences in the rules drafted under section 69.

Who may lawfully intercept?

Section 69 empowers the “Central Government or a state government or any of its officers specially authorised by the Central Government or the state government, as the case may be” to exercise powers of interception under this section.

Under the Interception Rules 2009, the secretary in the Ministry of Home Affairs has been designated as the "competent authority", with respect to the Central Government, to issue directions pertaining to interception, monitoring and decryption. Similarly, the respective state secretaries in charge of Home Departments of the various states and union territories are designated as "competent authorities" to issue directions with respect to the state government [18].

	Central Government	State/Union Territory
Ordinary Circumstances	Secretary in the Ministry of Home Affairs	Secretary in charge of Home Departments of State
Emergency	Head or second senior most officer of security and law enforcement	Authorized officer not below the rank of Inspectors General of Police

However, an exception is made in cases of emergency, either

in remote areas where obtaining prior directions from the competent authority is not feasible or

for ‘operational reasons’ where obtaining prior directions is not feasible.

In such cases it would be permissible to carry out interception after obtaining the orders of the Head or second senior most officer of security and law enforcement at the central level, and an authorized officer not below the rank of Inspector General of Police at the state or union territory level. The order must be communicated to the competent authority within three days of its issue, and approval must be obtained from the authority within seven working days, failing which the order would lapse.

Where a state/union territory wishes to intercept/monitor or decrypt information beyond its territory, the competent authority for that state must make a request to the competent authority of the Central Government to issue appropriate directions.

Under what circumstances a direction to intercept may be issued?

Purposes for which interception may be directed

Under section 69, the powers of interception may be exercised by the authorized officers “when they are satisfied that it is necessary or expedient” to do so in the interest of:

sovereignty or integrity of India,

defense of India,

security of the state,

friendly relations with foreign states or

public order or

preventing incitement to the commission of any cognizable offence relating to above or

for investigation of any offence.

Under section 69B, the competent authority may issue directions for monitoring for a range of “cyber security”[20] purposes including, inter alia, “identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach cyber security”.

Contents of direction

The reasons for ordering interception must be recorded in writing [21].

In the case of a direction under section 69, in arriving at its decision, the competent authority must consider alternate means of acquiring the information other than issuing a direction for interception [22]. The direction must relate to information sent or likely to be sent from one or more particular computer resources to another (or many) computer resources [23]. The direction must specify the name and designation of the officer to whom information obtained is to be disclosed, and also specify the uses for which the information is to be employed [24].

Duration of interception and periodic review

Once issued, an interception direction issued under section 69 remains in force for a period of 60 days (unless withdrawn earlier), and may be renewed for a total period not exceeding 180 days [25]. A direction issued under section 69B does not expire automatically through the lapse of time and theoretically would continue until withdrawn.

Within seven days of its issue, a copy of a direction issued under either section 69 or section 69B must be forwarded to the review committee constituted to oversee wiretapping under the Indian Telegraph Act [26]. Every two months, the review committee is required to meet and record its findings as to whether the direction was validly issued in light of section 69(3) [27]. If the review committee is of the opinion that it was not, it can set aside the direction and order destruction of all information collected [28].

What powers of interception do they have?

The competent authority may, in his written direction “direct any agency of the appropriate government to intercept monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource”[29].

Accordingly, the subscriber or intermediary or any person in charge of the computer resource is must, if required by the designated government agency, extend all facilities, equipment and technical assistance to:

provide access to or secure access to the computer resource generating, transmitting, receiving or storing such information; or

intercept, monitor, or decrypt[30] the information, as the case may be; or

provide information stored in computer resource.

The intermediary must maintain records mentioning the intercepted information, the particulars of the person, e-mail account, computer resource, etc., that was intercepted, the particulars of the authority to whom the information was disclosed, number of copies of the information that were made, the date of their destruction, etc. [31]. This list of requisitions received must be forwarded to the government agency once every 15 days to ensure their authenticity [32].

In addition, a responsibility is cast on the intermediary to put in place adequate internal checks to ensure that unauthorized interception does not take place, and extreme secrecy of intercepted information is maintained [33].

How long can information collected during interception be retained?

Interception rules require all records, including electronic records pertaining to interception to be destroyed by the government agency “in every six months except in cases where such information is required or likely to be required for functional purposes”. In the case of the Monitoring and Collecting of Traffic Data Rules 2009, this period is nine months from the date of creation of record.

In addition, all records pertaining to directions for interception and monitoring are to be destroyed by the intermediary within a period of two months following discontinuance of interception or monitoring, unless they are required for any ongoing investigation or legal proceedings. In the case of Monitoring Rules, this period is six months from the date of discontinuance.

What penalties accrue to intermediaries and subscribers for resisting interception?

Section 69 stipulates a penalty of imprisonment upto a term of seven years and fine for any “subscriber or intermediary or any person who fails to assist the agency” empowered to intercept.

Data Protection under the IT Act

Data Retention Requirements of 'Intermediaries'

Section 67C of the amended IT Act mandates ‘intermediaries’[34] to maintain and preserve certain information under their control for durations which are to be specified by law.

Any intermediary who fails to retain such electronic records may be punished with imprisonment up to three years and a fine.

Liability for body-corporates under section 43A

The newly inserted section 43A makes a start at introducing a mandatory data protection regime in Indian law. The section obliges corporate bodies who ‘possess, deal or handle’ any ‘sensitive personal data’ to implement and maintain ‘reasonable’ security practices, failing which they would be liable to compensate those affected by any negligence attributable to this failure.

It is only the narrowly-defined ‘body corporates’ [35] engaged in ‘commercial or professional activities’ who are the targets of this section. Thus government agencies and non-profit organisations are entirely excluded from the ambit of this section [36].

“Sensitive personal data or information” is any information that the Central Government may designate as such, when it sees fit to.

The “reasonable security practices” which the section obliges body corporates to observe are restricted to such measures as may be specified either “in an agreement between the parties” or in any law in force or as prescribed by the Central Government.

By defining both “sensitive personal data” and “reasonable security practice” in terms that require executive elaboration, the section in effect pre-empts the courts from evolving an iterative, contextual definition of these terms.

Mphasis BPO Fraud: 2005 [37]

In December 2004, four call centre employees, working at an outsourcing facility operated by MphasiS in India, obtained PIN codes from four customers of MphasiS’ client, Citi Group. These employees were not authorized to obtain the PINs.

In association with others, the call centre employees opened new accounts at Indian banks using false identities. Within two months, they used the PINs and account information gleaned during their employment at MphasiS to transfer money from the bank accounts of CitiGroup customers to the new accounts at Indian banks.

By April 2005, the Indian police had tipped off to the scam by a U.S. bank, and quickly identified the individuals involved in the scam. Arrests were made when those individuals attempted to withdraw cash from the falsified accounts, $426,000 was stolen; the amount recovered was $230,000.

Draft Reasonable Security Practices Rules 2011 [38]

In February 2011, the Ministry of Information and Technology, published draft rules under section 43A in order to define “sensitive personal information” and to prescribe “reasonable security practices” that body corporates must observe in relation to the information they hold.

Sensitive Personal Information
Rule 3 of these Draft Rules designates the following types of information as ‘sensitive personal information’:

password;

user details as provided at the time of registration or thereafter;

information related to financial information such as Bank account / credit card / debit card / other payment instrument details of the users;

physiological and mental health condition;

medical records and history;(vi) Biometric information;

information received by body corporate for processing, stored or processed under lawful contract or otherwise;

call data records;

This however, does not apply to “any information that is freely available or accessible in public domain or accessible under the Right to Information Act, 2005”.

They and “any person” holding sensitive personal information are forbidden from “keeping that information for longer than is required for the purposes for which the information may lawfully be used”[40]

Mandatory Privacy Policies for body corporates

Rule 4 of the draft rules enjoins a body corporate or its representative who “collects, receives, possess, stores, deals or handles” data to provide a privacy policy “for handling of or dealing in user information including sensitive personal information”. This policy is to be made available for view by such “providers of information” [41]. The policy must provide details of:

Type of personal or sensitive information collected under sub-rule (ii) of rule 3;
Purpose, means and modes of usage of such information;
Disclosure of information as provided in rule 6 [42].

Prior Consent and Use Limitation during Data Collection

In addition to the restrictions on collecting sensitive personal information, body corporate must obtain prior consent from the “provider of information” regarding “purpose, means and modes of use of the information”. The body corporate is required to “take such steps as are, in the circumstances, reasonable”[43] to ensure that the individual from whom data is collected is aware of :

the fact that the information is being collected; and
the purpose for which the information is being collected; and
the intended recipients of the information; and
the name and address of :
the agency that is collecting the information; and
the agency that will hold the information.

During data collection, body corporates are required to give individuals the option to opt-in or opt-out from data collection [44]. They must also permit individuals to review and modify the information they provide "wherever necessary" [45]. Information collected is to be kept securely [46], used only for the stated purpose [47] and any grievances must be addressed by the body corporate “in a time bound manner” [48].

Unlike "sensitive personal information" there is no obligation to retain information only for as long as is it is required for the purpose collected.

Limitations on Disclosure of Information

The draft rules require a body corporate to obtain prior permission from the provider of such information obtained either “under lawful contract or otherwise” before information is disclosed [49]. The body corporate or any person on its behalf shall not publish the sensitive personal information [50]. Any third party receiving this information is prohibited from disclosing it further [51]. However, a proviso to this sub-rule mandates information to be provided to ‘government agencies’ for the purposes of “verification of identity, or for prevention, detection, investigation, prosecution, and punishment of offences”. In such cases, the government agency is required to send a written request to the body corporate possessing the sensitive information, stating clearly the purpose of seeking such information. The government agency is also required to “state that the information thus obtained will not be published or shared with any other person” [52].

Sub-rule (2) of rule 6 requires “any information” to be “disclosed to any third party by an order under the law for the time being in force.” This is to be done “without prejudice” to the obligations of the body corporate to obtain prior permission from the providers of information [53].

Reasonable Security Practices

Rule 7 of the draft rules stipulates that a body corporate shall be deemed to have complied with reasonable security practices if it has implemented security practices and standards which require:

a comprehensive documented information security program; and

information security policies that contain managerial, technical, operational and physical security control measures that are commensurate with the information assets being protected.

In case of an information security breach, such body corporate will be “required to demonstrate, as and when called upon to do so by the agency mandated under the law, that they have implemented security control measures as per their documented information security program and information security policies”.

The rule stipulates that by adopting the International Standard IS/ISO/IEC 27001 on “Information Technology – Security Techniques – Information Security Management System – Requirements”, a body corporate will be deemed to have complied with reasonable security practices and procedures.

The rule also permits “industry associations or industry clusters” who are following standards other than IS/ISO/IEC 27001 but which nevertheless correspond to the requirements of sub-rule 7(1), to obtain approval for these codes from the government. Once this approval has been sought and obtained, the observance of these standards by a body corporate would deem them to have complied with the reasonable security practice requirements of section 43A.

Penalties and Remedies for breach of Data Protection

Civil Liability for Corporates

As mentioned above, any body corporates who fail to observe data protection norms may be liable to pay compensation if:

it is negligent in implementing and maintaining reasonable security practices, and thereby

causes wrongful loss or wrongful gain to any person;[54]

Claims for compensation are to be made to the adjudicating officer appointed under section 46 of the IT Act. Further, details of the powers and functions of this officer are given in succeeding sections of this note.

Criminal liability for disclosure of information obtained in the course of exercising powers under the IT Act

Section 72 of the Information Technology Act imposes a penalty on “any person” who, having secured access to any electronic record, correspondence, information, document or other material using powers conferred by the Act or rules, discloses such information without the consent of the person concerned. Such unauthorized disclosure is punishable “with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.”

Criminal Liability for unauthorized disclosure of information by any person of information obtained under contract

Section 72A of the IT Act imposes a penalty on any person [55] (including an intermediary) who

has obtained personal information while providing services under a lawful contract and

discloses the personal information without consent of the person,

with the intent to cause, or knowing it is likely to cause wrongful gain or wrongful loss [56]

Such unauthorised disclosure to a third person is punishable with imprisonment upto three years or with fine upto Rs five lakh, or both.

Whom to call? Adjudicatory Mechanism and Remedies under the IT Act

This section provides a brief outline of the mechanism installed by the IT Act to activate the various remedies and penalties prescribed in various sections of the Act. As a victim of online intrusion, how does one use the IT Act to seek redressal?

As mentioned above, the IT Act provides for both the civil remedy of damages in compensation (Chapter IX) as well as criminal penalties for offences such as imprisonment and fine (Chapter XI). In general, claiming a civil remedy does not bar one from seeking criminal prosecution and ideally both should be pursued together. For clarity, in the sections that follow, we will be discussing the two procedures separately.

Civil Damages and Compensation

Whom to approach?

Section 46 of the IT Act empowers the Central Government to appoint “adjudication officers” to adjudicate whether any person has committed any of the contraventions described in Chapter IX of the Act (See section 2.1 and 4.2 above) and to determine the quantum of compensation payable. Accordingly, the Central Government has designated the secretaries of the Department of Information Technology of each of the states or union territories as the “adjudicating officer” with respect to each of their territories [57].

However, a pecuniary limit has been placed on the powers of adjudicating officers, and they may only adjudicate cases where the quantum of compensation claimed does not exceed Rs. five crores. In cases where the compensation claimed exceeds this amount, jurisdiction would vest in the “competent court”, under the Code of Civil Procedure [58].

Section 61 of the Act bars ordinary civil courts from jurisdiction over matters which the adjudicating officers have been empowered to decide under this Act.

When must a complaint be filed?

The Limitation Act provides that a suit must be filed within three years from when the right to sue accrues [59].

What is the procedure?

Section 46 and the rules framed under that section provide elaborate guidelines on the procedure that is to be followed by the adjudicating officer. Thus, the adjudicating officer is required to give the accused person “a reasonable opportunity for making representation in the matter”. Thereafter, if , on an inquiry, “he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.”

In order to carry out their duties adjudicating officer have been invested with the powers of a civil court which are conferred on the cyber appellate tribunal [60]. Additionally, they have the power to punish for their contempt undert the Code of Criminal Procedure.

Rules framed under the section provide further details on the procedure that must be followed and provide for the issuance of a “show cause notice”, manner of holding enquiry, compounding of offences, etc. [61].

Section 47 provides that in adjudging the quantum of compensation, the adjudicating officer shall have due regard to the following factors, namely:—

the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;

the amount of loss caused to any person as a result of the default;

the repetitive nature of the default.

Where must a complaint be filed and in what format?

The complaint must be made to the adjudicating officer of the state or union territory on the basis of location of computer system, computer network. The complaint must be made on a plain paper in the format provided in the Performa attached to the rules [62].

In case the offender or computer resource is located abroad, it would be deemed, for the purpose of prosecution to be located in India [63].

How long does the process take?

The Rules direct that the whole matter should be heard and decided “as far as possible” within a period of six months [64].

How much does it cost?

The Rules stipulates a variable fee payable by a bank draft calculated on the basis of damages claimed by way of compensation

a) Upto Rs. 10,000	10% ad valorem rounded off to nearest next hundred
b) From 10001 to Rs.50000	Rs. 1000 plus 5% of the amount exceeding Rs.10,000 rounded off to nearest next hundred
c) From Rs.50001 to Rs.100000	Rs. 3000/- plus 4% of the amount exceeding Rs. 50,000 rounded off to nearest next hundred
d) More than Rs. 100000	Rs.5000/- plus 2% of the amount exceeding Rs. 100,000 rounded off to nearest next hundred

Appeals to the Cyber Appellate Tribunal and the High Court

The Act provides for the constitution of a cyber appellate tribunal to hear appeals from cases decided by the adjudicating officer.

Within 25 days of the copy of the decision being made available by the adjudicating officer, the aggrieved party may file an appeal before the cyber appellate tribunal.

Section 57 provides that the appeal filed before the cyber appellate tribunal shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal. Section 62 gives the right of appeal to a high court to any person aggrieved by any decision or order of the cyber appellate tribunal on any question of fact or law arising out of such order. Such an appeal must be filed within 60 days from the date of communication of the decision or order of the cyber appellate tribunal.

Can contraventions be compounded (compromised) with the offender?

Except in the case of repeat offenders, contraventions may be compromised by the adjudicating officer or between the parties either before or after institution of the suit. Where any contravention has been compounded the IT Act provides that “no proceeding or further proceeding, as the case may be, shall be taken against the person guilty of such contravention in respect of the contravention so compounded”[65].

Criminal Penalties

The process described above applies to “contraventions” under Chapter IX of the Act. In addition to being liable to pay compensation, in the cases falling under section 43, such offenders may also be liable for criminal penalties such as imprisonment and fines [66]. This sub-section of this paper deals with the procedure to be followed with respect to the criminal offences set out under Chapter XI of the Act (for example, see sections 2.2 to 2.5 above).

Whom to approach? Who can take cognizance of offences and investigate them?

Section 78 of the IT Act empowers police officers of the rank of Inspectors and above to investigate offences under the IT Act.

Many states have set up dedicated cyber crime police stations to investigate offences under this Act [67]. Thus, for example, the State of Karnataka has set up a special cyber crime police station responsible for investigating all offences under the IT Act with respect to the entire territory of Karnataka [68].

When must a complaint be lodged?

Although there is no time limit prescribed by the IT Act or the Code of Criminal Procedure with respect to when an FIR must be filed, in general, courts tend to take an adverse view when a significant delay has occurred between the time of occurrence of an offence and it’s reporting to the nearest police station.

The Code of Criminal Procedure forbids courts from taking cognizance of cases after three years “if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years”. Where either the commission of the offence was not known to the person aggrieved, or where it is not known by whom the offence committed, this period is computed from the date on which respectively the offence or the identity of the offender comes to the knowledge of the person aggrieved [69].

What is the procedure?

No special procedure is prescribed for the trial of cyber offences and hence the general provisions of criminal procedure would apply with respect to investigation, charge sheet, trial, decision, sentencing and appeal.

Can offences be compounded?

Offences punishable with imprisonment of upto three years are compoundable by a competent court. However, repeat offenders cannot have their subsequent offences compounded. Additionally, offences which “affect the socio-economic conditions of the country” or those committed against a child under 18 years of age or against women cannot be compounded [70].

Bibliography

[1].The IT Act is only one of the various laws which safeguard citizens from violations of online privacy. In addition, in the domain of finance, for instance, various RBI regulations mandate strong security protocols with respect to data held by financial institutions. Since this is the subject of a different dispatch on banking and privacy which we have brought out, these regulations are omitted from this discussion.

[2].Section 2(k) of the IT Act defines ‘computer’ as any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.

[3].Section 43 defines "computer contaminant" as any set of computer instructions that are designed— (a) to modify, destroy, record, transmit data or program residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network;

[6].Section 66 of the IT Act. Anon, 2009. Bangalore techie convicted for hacking govt site. Deccan Herald. Available at: http://goo.gl/jCvAh. [Accessed March 29, 2011];

[7].The Information Technology (Due Diligence observed by Intermediaries Guidelines) Rules, 2011;

[8].‘Intermediary’ has been defined very expansively under section 2(w) of the Act to mean, with respect to any electronic record, “any person who on behalf of another person receives, stores or transmits that record, or provides any service with respect to that record and includes telecom service providers, network service providers, Internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes

[9].‘Private area’ has been defined in section 66E as “the naked or undergarment clad genitals, pubic area, buttocks or female breast”.

[10].Defined as “circumstances in which a person can have a reasonable expectation that (i) he or she could disrobe in privacy, without being concerned that an image of his or her private area was being captured or (ii) any part of his or her private area would not be visible to the public regardless of whether that person is in a public or private place”. See explanation to Section 66E

[11]."Cheating by personation" is a crime defined under section 416 the Indian Penal Code. According to that section, “a person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is." The explanation to the section adds that "the offence is committed whether the individual personated is a real or imaginary person". Two illustrations to the section further elaborate its meaning: (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.

[12].Communication device" has been defined to mean "cell phones, personal digital assistance (sic) or combination of both or any other device used to communicate send or transmit any text, video, audio or image".

[13].2005. Cyber Crime Cell, Mumbai: Case of Phishing. Mumbai Police. Available at: http://www.cybercellmumbai.com/case-studies/case-of-fishing [Accessed March 23, 2011].

[14]. Although no maximum limit is prescribed for the fine under this section, Section 63 of the Indian Penal Code declares that “Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive”.

[15].Hafeez, M., 2009. Crime Line: Curiosity was his main motive, say city police. Crime Line. Available at: http://mateenhafeez.blogspot.com/2009/05/curiosity-was-his-main-motive-say-city.html [Accessed March 23, 2011].

[16]. Holla, A., 2009. Wronged, techie gets justice 2 yrs after being jailed. Mumbai Mirror. Available at: http://www.mumbaimirror.com/index.aspx?page=article&sectid=2&contentid=200906252009062503144578681037483 [Accessed March 23, 2011].

[18]. By contrast, rules framed under Section 69B designates only the Secretary to the Government of India in the Department of Information Technology under the Ministry of Communications and IT as the “competent authority” to issue orders of interception.

[19].It is unclear what these “operational reasons” could mean. The text of the rules provide no useful guidance.

[20].“Cyber security breach” is defined as meaning “any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly acceptable security policy resulting in unauthorized access, denial of service, disruption, unauthorized use of a computer resource for processing or storage of information or changes to date, information without authorization”. Rule 2(f) of the Monitoring and Collecting of Traffic Data Rules 2009.

[21].Rule 7 of the Interception Rules 2009; Rule 3(3) of the Monitoring and Collecting of Traffic Data Rules 2009

[22].Rule 8 of the Interception Rules 2009

[23]. Rule 9 of the Interception Rules 2009

[24].Rule 10 of the Interception Rules 2009;

[25].Rule 11 of the Interception Rules 2009

[26].Rule 7 of the Interception Rules 2009

[27].Rule 22 of the Interception Rules 2009

[28]. Ibid

[29].Section 69 of the IT Act.

[30].The intermediary is required to assist in the decryption only to the extent that the intermediary has control over the decryption key. See Sub-Rule 13(3) of the Interception Rules 2009. Rule 17 enjoins the holder of a decryption key to provide decryption assistance when directed to by the competent authority.

[31].Rule 16 of the Interception Rules 2009

[32].Rule 18 of the Interception Rules 2009

[33]. Rule 20 of the Interception Rules 2009; Rules 10 & 11 of the Monitoring and Collecting of Traffic Data Rules 2009. Failure to maintain secrecy of data may attract punishment under Section 72 of the Information Technology Act.

[34].Supra n. 6 for definition

[35].Section 43A defines "'body corporate" as any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities;

[36].This does not necessarily mean that these entitles are exempt from taking reasonable care to safeguard information that they collect, maintain or control – only that remedies against the government must be sought under general common law, rather than under the IT Act.

[37].Anon, 2005. The MphasiS Scandal – And How it Concerns U.S. Companies Considering Offshore BPO. Carretek. Available at: http://www.carretek.com/main/news/articles/MphasiS_scandal.htm [Accessed March 29, 2011]. See also Anon, 2005. MphasiS case: BPOs feel need to tighten security. Indian Express. Available at: http://www.expressindia.com/news/fullstory.php?newsid=44856 [Accessed March 29, 2011].

[38]. The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules, 2011. Available at http://www.mit.gov.in/sites/upload_files/dit/files/senstivepersonainfo07_02_11.pdf, last accessed February 15th, 2011.

[39].Rule 5 of the Draft Rules.

[40]. This is perhaps a bit vague, since the potential ‘lawful uses’ are numerous and could be inexhaustible. It is unclear whether “lawful usage” is coterminous with “the uses which are disclosed to the individual at the time of collection”. In addition, this rule is framed rather weakly since it does not impose a positive obligation (although this is implied) to destroy information that is no longer required or in use.

[41].“Provider of data” is not the same as individuals to whom the data pertains, and could possibly include intermediaries who have custody over the data. We feel this privacy policy should be made available for view generally – and not only to providers of information. In addition, it might be advisable to mandate registration of privacy policies with designated data controllers.

[42]. This is well framed since it does not permit body corporates to frame privacy policies that detract from Rule 6.

[43].One wonders about the convoluted language used here when a simpler phrase like “take reasonable steps” alone might have sufficed - reasonableness has generally been interpreted by courts contextually. As the Supreme Court has remarked, “`Reasonable’ means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. See Gujarat Water Supply and Sewage Board v. Unique Erectors (Guj) AIR 1989 SC 973.

[44].Sub-Rule 5(7).

[45].Sub-Rule 5(6). It is unclear what would count as a ‘necessary’ circumstance and who would be the authority to determine such necessity.

[46].Sub-Rule 5(8).

[47].Sub-Rule 5(5).

[48].Sub-Rule 5(9).

[49]. Sub-Rule 6(1) There are two problems with this rule. First, it requires prior permission only from the provider of information, and not the individual to whom the data pertains. In effect this whittles down the agency of the individual in being able to control the manner in which information pertaining to her is used. Second, it is not clear whether this information includes “sensitive personal information”. The proviso to this rule includes the phrase “sensitive information”, which would suggest that such information would be included. This makes it even more important that the rule require that prior permission be obtained from the individual to whom the data pertains and not merely from the provider of information.

[50].Sub-Rule 6(3).

[51].Sub-Rule 6(4).

[52].This is a curious insertion since it begs the question as to the utility of such a statement issued by the requesting agency. What are the sanctions under the IT Act that may be attached to a government agencies that betrays this statement? Why not instead, insert a peremptory prohibition on government agencies from disclosing such information (with the exception, perhaps, of securing conviction of offenders)?

[53].This sub-rule does not distinguish between orders issued by a court and those issued by an administrative/quasi-judicial body.

[54]. “Wrongful loss” and “wrongful gain” have been defined by Section 23 of the Indian Penal Code. Accordingly, "Wrongful gain" is gain by unlawful means of property which the person gaining is not legally entitled. "Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.” The section also includes this interesting explanation “Gaining wrongfully, losing wrongfully- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property”. Following this, it could be possible to argue that the retention of data beyond the period of its use would amount to a “wrongful gain”.

[55]. Section 3(39) of the General Clauses Act defines a person to include “any company or association or body of individuals whether incorporated or not”. An interesting question here would be whether the State can be considered “a person” so that it can be held liable for unauthorized disclosure of personal information. In an early case of Shiv Prasad v. Punjab State AIR 1957 Punj 150, the Punjab High Court had excluded this possibility. However, the case law on this point has not been consistent. In Ramanlal Maheshwari v.Municipal Committee, the MP High Court held that the Municipal Council could be treated as a ‘person’ for the purpose of levying a fine attached to a criminal offence. Statutory corporate bodies (such as the proposed UID Authority of India) have been held to be ‘persons’ for purposes of law . See Commissioners, Port of Calcutta v. General Trading Corporation, AIR 1964 Cal 290. Here under the Calcutta Port Act, Port Commissioners were declared to be a “body corporate”, and hence were held to be a ‘person’.

[56].See supra n. 44.

[57]. See G.S.R.240(E) New Delhi, the 25th March, 2003 available at < http://www.mit.gov.in/content/it-act-notification-no-240> .

[58].See Section 46(1A).

[59].Schedule I, Part X of the Limitation Act “Suits for which there is no prescribed period.”

[60].The powers of the Cyber Appellate Tribunal under Section 58 include the powers of (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents or other electronic records; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte.

[61].Information Technology (Qualification and Experience of Adjudicating Officers and Manner of holding Enquiry) Rules, 2003 [GSR 220(E)] Available at <http://cca.gov.in/rw/resource/notification-gsr220e.pdf?download=true>.

[62]. Ibid Rule 4(b).

[63]. Section 75.

[64]. Ibid, Rule 4(k).

[65]. Section 63 of the Act.

[66].Prior to amendment in 2008, contraventions listed in Section 43 were only liable to be compensated by damages through civil proceedings. Thus in 2007, the Madras High Court annulled an FIR lodged in a police station which listed an activity mentioned in 43(g). See S. Sekar vs The Principal General Manager < http://indiankanoon.org/doc/182565/> This position has however been changed with the new Section 66 which makes all actions listed in Section 43 an offence when committed with dishonest or fraudulent intent. Thus an FIR can be lodged with respect to these activities as well.

[67].An incomplete list of cyber crime cells of police in different states can be viewed at <http://infosecawareness.in/cyber-crime-cells-in-india>.

[68]. Home and Transport3 Secretariat, Notification no. HD 173 POP 99 Bangalore, Dated 13th September 2001 Available at < http://cyberpolicebangalore.nic.in/pdf/notification_1.pdf>.

[69]. Sections 468 and 469 of the Code of Criminal Procedure, 1973.

[70]. Section 77A of the Information Technology Act.

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For more details visit https://cis-india.org/internet-governance/blog/privacy/safeguards-for-electronic-privacy

Privacy and Telecommunications: Do We Have the Safeguards?

elonnai — 2012-03-21T10:06:48Z

All of you often come across unsolicited and annoying telemarketing calls/ SMS's, prank calls, pestering calls for payment, etc. Do we have any safeguards against them? This blog post takes a look at the various rules and regulations under Indian law to guard our privacy and confidentiality.

1 Introduction

With a subscriber base that stands at just over 700 million (TRAI, August 2010) the telecom industry has enjoyed spectacular success at absorbing Indians into its fold. Tele-density which, even as recently as in 2002 was stagnant in the low single-digits, today stands at a proud 59%. However far one could go today, it would seem one would never be too distant from a mobile phone.

While this extensive penetration has heralded an era of unprecedented access – truly a ‘communications revolution’ whose full effects it may still be too early to grasp – it has also led to the exposure of individuals to risks on a magnitude never before witnessed. Firstly, in the ordinary course of their business, telecom companies accumulate vast volumes of personal information about their customers including photocopies of identity documents, biographical information etc, which could potentially be misused;

Secondly, the fact that a vast amount of our communication now occurs with the involvement of electronic media has rendered us more susceptible to invasive surveillance - whether lawful or not;

Thirdly, much of our communication is now not merely ephemeral, but is stored in digital form for indefinite periods in corporate ‘data centers’.;

Lastly, owning a mobile phone not only enables us to communicate with our business partners and loved ones, but also forces us to engage with an incessant stream of ‘noise’ – telemarketing calls and SMSes, prank/hoax calls, calls pestering us for the payment of bills and offensive/threatening calls.

This note examines the kinds of safeguards that currently exist under Indian law to protect the privacy of telecom users. Broadly there are three streams of such protection

1) The Telegraph Act and Rules, which contains provisions that prohibit and penalize unlawful interception of communication. Furthermore, licenses issued to telecom service providers (TSPs) under this Act require TSPs to take measures to safeguard the privacy of their customers and confidentiality of communications.

2) The Telecom Regulatory Authority of India has issued various guidelines to TSPs many of which pertain to privacy.

3) The Consumer Protection Act provides customers with an avenue of redress in case of violation of their privacy.

The first two are described in greater detail in the paragraphs that follow. This is followed by a brief analysis of certain international norms

2 Indian Regulatory Regime

2.1 The Indian Telegraph Act and Rules

First enacted in 1885, the Telegraph Act remains today on the statute books as the umbrella legislation governing most forms of electronic communications in India including telephones, faxes, the internet etc. The Act contains several provisions which regulate and prohibit the unauthorized interception or tampering with messages sent over ‘telegraphs’i. The following sections apply:

1) Section 5 empowers the Government to take possession of licensed telegraphs and to order interception of messages in cases of ‘public emergency’ or ‘in the interest of the public safety’. Interception may only be carried out pursuant to a written order by an officer specifically empowered for this purpose by the State/Central Government. The officer must be satisfied that “it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”ii

2) Section 23 imposes a fine of Rs. 500 on anyone who enters a telegraph office without proper authorization.

3) Section 24 makes it a criminal offence for a person to enter a telegraph office “with the intent of unlawfully learning the contents of any message”. Such a person may be punished with imprisonment for a term of up to a year.

4) Section 25 further imposes a criminal penalty on anyone who damages or tampers with any telegraph with the intent to prevent the transmission of messages or to acquaint himself with the contents of any message or to commit mischief. Punishment in this case could extend to 3 years imprisonment or a fine or both.

5) Section 26 makes it an offence for a Telegraph Officer to alter, unlawfully disclose or acquaint himself with the content of any message. This is also punishable with up to 3 years imprisonment or a fine or both.

6) Section 30 criminalizes the fraudulent retention or willful detention of a message which is intended for someone else. Punishment extends to 2 years imprisonment or fine or both.

2.2 License Agreements

Although the statute itself governs the actions of telecom operators in a general way, more detailed guidelines regulating their behavior are contained in the terms of the licenses issued to the telecoms which permit them to conduct businessiii. Frequently, these licenses contain clauses requiring telecom operators to safeguard the privacy of their consumers. A few examples include:

1) Clause 21 of the National Long Distance Licenseiv comprehensively covers various aspects of privacy including

a. Licensees to be responsible for the protection of privacy of communication, and to ensure that unauthorised interception of message does not take place.

b. Licensees to take all necessary steps to safeguard the privacy and confidentiality of any information about a third party and their business to whom they provide service and from whom they have acquired such information by virtue of those service and shall use their best endeavors to secure that :

i. No person acting on behalf of the Licensees or the Licensees themselves divulge or uses any such information except as may be necessary in the course of providing such service to the Third Party; and

ii. No such person seeks such information other than is necessary for the purpose of providing service to the Third Party.

c. The above safeguard however does not apply where

i. The information relates to a specific party and that party has consented in writing to such information being divulged or used, and such information is divulged or used in accordance with the terms of that consent; or

ii. The information is already open to the public and otherwise known.

d. The Licensees shall take necessary steps to ensure that the they and any person(s) acting on their behalf observe confidentiality of customer information.

2) Clause 39.2 of the Unified Access Service License and clause 42.2 of the Cellular Mobile Telephone Service licence enjoin the licensee to take all necessary steps to safeguard the privacy and confidentiality of any information about a third party, and its business to whom it provides the service. The Licensee is required to use its best endeavors to secure that no person acting on behalf of the licensee or the licensee divulges or uses any such information - except as may be necessary in the course of providing such service to the third party.

3) The Internet Services License Agreement (which authorizes ISPs to function in India) similarly contains provisions touching on privacy:

a) Part VI of the License Agreement gives the Government the right to inspect/monitor the TSPs systems. The TSP is responsible for making facilities available for such interception.

b) Clause 32 under Part VI contains provisions mandating the confidentiality of information. These provisions are identical to those described in Clause 21 of the NLD License agreement (see above).

c) Clause 33.4 makes it the responsibility of the TSP to trace nuisance, obnoxious or malicious calls, messages or communications transported through its equipment.

d) Clause 34.8 requires ISPs to maintain a log of all users connected and the service they are using (mail, telnet, http etc.). The ISPs must also log every outward login or telnet through their computers. These logs, as well as copies of all the packets originating from the Customer Premises Equipment (CPE) of the ISP, must be available in REAL TIME to Telecom Authority. The Clause forbids logins where the identity of the logged-in user is not known.

e) Clause 34.12 and 34.13 requires the Licensee to make available a list of all subscribers to its services on a password protected website for easy access by Government authorities.

f) Clause 34.16 requires the Licensee to activate services only after verifying the bonafides of the subscribers and collecting supporting documentation. There is no regulation governing how long this information is to be retained.

g) Clause 34.22 makes it mandatory for the Licensee to make available “details of the subscribers using the service” to the Government or its representatives “at any prescribed instant”.

h) Clause 34.23 mandates that the Licensee maintain “all commercial records with regard to the communications exchanged on the network” for a period of “at least one year for scrutiny by the Licensor for security reasons and may be destroyed thereafter unless directed otherwise by the licensor”.

i) Clause 34.28 (viii) forbids the licensee from transferring the following information to any person/place outside India:

j) Any accounting information relating to subscriber (except for international roaming/billing) (Note: it does not restrict a statutorily required disclosure of financial nature) ; and

k) User information (except pertaining to foreign subscribers using Indian Operator’s network while roaming).

l) Clause 34.28(ix) and (x) require the TSP to provide traceable identity of their subscribers and on request by the Government must be able to provide the geographical location of any subscriber at any given time.

m) Clause 34.28(xix) stipulates that “in order to maintain the privacy of voice and data, monitoring shall only be upon authorisation by the Union Home Secretary or Home Secretaries of the States/Union Territories”. (It is unclear whether this is to operate as an overriding provision governing all other clauses as well)

2.3 TRAI Regulations and Directions

The Telecom Regulatory Authority of India was established by statute in 1997 to safeguard interests of consumers while simultaneously nurturing conditions for growth of telecommunications in the country. The Authority has issued several regulations on various subjects which are binding on TSPs. The following regulations touch on the subject of privacy:

2.4 Unsolicited Commercial Communications Regulation

In 2007, the Authority introduced the Telecom Unsolicited Commercial Communications Regulations which were aimed at creating a mechanism for registering requests of subscribers who did not wish to receive unsolicited commercial communications.

* The regulations define “unsolicited commercial communication” as any message, through telecommunications service, which is transmitted for the purpose of informing about, or soliciting or promoting any commercial transaction in relation to goods, investments or services which a subscriber opts not to receive,

* The following categories of message are excluded

(i) any message under a specific contract between the parties to such contract; or

(ii) any messages relating to charities, national campaigns or natural calamities transmitted on the directions of the Government or agencies authorized by it for the said purpose;

(iii) any message transmitted, on the directions of the Government or any authority or agency authorized by it, in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality;

* The regulations specified a procedure for initiation of complaints by consumers and for their adjudication and disposal.

* Telemarketers who initiate unsolicited commercial communication with a person who has opted not to receive such communications face a fine of Rs. 500 per call/SMS as well as disconnection of their telephone services.

* The regulations require the TSPs to maintain confidentiality of all information submitted by the subscribers for the purposes of the ‘Do not Call Registry’.

2.5 Privacy and Confidentiality Direction

In February 2010, the TRAI issued a direction seeking to implement the privacy and confidentiality related clauses in the service providers’ licenses (see previous sections). Accordingly by this direction, the TRAI ordered all service providers to “put in place an appropriate mechanisms, so as to prevent the breach of confidentiality on information belonging to the subscribers and privacy of communication”. All service providers were required by this regulation to submit a report to the TRAI giving details of measures so adopted.

3 International Norms

3.1 Telecommunications in the EU

In 2006, the European Union adopted Directive 2006/24/EC which mandated member states to store citizens' telecommunications data for six to 24 months stipulating a maximum time period. The directive permits police and security agencies to request access to details such as IP address and time of use of every email, phone call and text message sent or received. A request to access the information would only be granted through a court order. In 2002 the Directive adopted the Privacy and Electronic Communications Directive. The ECD regulates the electronic communications sector and addresses issues such as: the retention of data, the sending of unsolicited e-mail, the use of cookies and the inclusion of personal data in public directories.

Art 10(1) of the German Constitution holds “The secrecy of letters, as well as of the post and telecommunications, is inviolable”. However, in 1968 an amendment was introduced which permitted (1) surveillance to occur without the affected person ever being informed of it; and (2) surveillance without judicial review, but through “a review of the

case by bodies and auxiliary bodies appointed by Parliament.”These measures could only be invoked in order to protect “the free democratic basic order or the existence or security of the Federation or a state.”

3.2 Telecommunication in the United States

In the United States telecommunications are regulated by the Federal Communications Commission. Specifically the FCC regulates how telecommunications carriers and providers of cable television use customer personal information, cable subscriber information, and telemarketing and junk fax activities. Every company that participates in telemarketing must comply with the FCC's rules. The main legislation used to regulate telecommunication carriers is the Federal Communication Act. The Act applies to how carriers may use and disclose “Customer Proprietary Network Information” which includes billing information, type of telecommunications service used, and the types of calls customers tend to make. The Act further requires that carriers must provide customer notice and the opportunity to opt out of marketing. The FCC does though provide, what is known as a “total service approach”, exception to these rules - that allows carriers to use CPNI to market to existing customers. Also, under the Act, cable providers are required to provide to their subscribers detailed notice about the collection and use of information, and gather consent before collecting, distributing, or disclosing information. Additionally, customers are granted access to their information, and information must be destroyed after it has served the purpose for which it is collected. The Act further requires that carriers must provide customer notice and the opportunity to opt out of marketing.

The Telephone Consumer Protection Act applies to U.S companies that tele-market to consumers for commercial purposes. The rules require that phone calls are not permitted before 8:00 am or after 9:00 pm, the company must keep an internal record of consumer who ask not to be called again, and the company must refrain from sending commercial faxes without the recipient's consent. Telephone monitoring and recording are regulated in each state. Many states follow a system known as “one-party consent”, which permits a party to record a telephone conversation without the other party's consent. Only eleven states require consent of all parties before a telephone conversation is recorded (ibid Westby, International Guide to Privacy, 2004).

4 Discussion

The Indian Constitution does not, as in certain other countries (Eg. Germany), contain express language upholding the right to privacy in telecommunications. This absence has not however hindered the Supreme Court from reading in the right to privacy into the Fundamental Right to Life. Various judicial decisions as well as statutes affirm this right to privacy in telecommunications. In conclusion, we would like to provide a quick FAQ on privacy in telecommunications that draws on the foregoing analysis of Indian Law.v

(1) To what extent is there legal protection for customer information (such as one’s name, address, telephone number, or non-dynamic IP address);

As mentioned above, it is fairly easy for enforcement agencies to obtain this data. ISPs are required to make available much of this data on a website for the government to access at all times. Such access may be gained without judicial scrutiny and without even any showing of suspicion.

(2) The extent of legal protection for connection data (such as the telephone numbers called; time and length of connection; one’s dynamic IP address) and the content of telecommunications

Targeted surveillance or wiretapping is only possible following the procedure laid out in the Telegraph Rules which specify the manner in which such an order may be made, the review procedure and the maximum permissible duration of surveillance.

(3) the legal requirements placed on telecommunications providers for data retention or data erasure;

The ISP License agreement requires the ISP to maintain “all commercial records with regard to the communications exchanged on the network” for a period of “at least one year for scrutiny. No definition is provided of what these commercial records would include or exclude. There is no information on the extent to which ISPs in India currently comply with this requirement and whether they follow any data erasure procedures.

Questions:

Will a privacy legislation address data retention for the Telecom sector?

Will a privacy legislation regulate the monitoring and tapping of phones?

End Notes

i‘Telegraph’ is defined widely in the Act to include any “apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature” thus covering most known mediums of communication.

ii In 1997, the Supreme Court of India held in PUCL v. Union of India that the interception of communications under this section was unlawful unless carried out according to procedure established by law. Since no Rules had been prescribed by the Government specifying the procedure to be followed, the Supreme Court framed guidelines to be followed before tapping of telephonic conversation. These guidelines have been substantially incorporated into the Indian Telegraph Rules in 2007. Rule 419A stipulates the authorities from whom permission must be obtained for tapping, the manner in which such permission is to be granted and the safeguards to be observed while tapping communication. The Rule stipulates that any order permitting tapping of communication would lapse (unless renewed) in two months. In no case would tapping be permissible beyond 180 days. The Rule further requires all records of tapping to be destroyed after a period of two months from the lapse of the period of interception.

iii Section 4 of the Telegraph Act forbids the establishment of any telegraph service (including, as mentioned earlier, all telephony, internet etc) without obtaining a license from the Central Government.

iv Issued to TSPs who offer long distance telephony in India

v These questions drawn from a template provided in Schwartz, Paul M. “German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance.” Hastings Law Journal 54 (August 25, 2003): 751.

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

Privacy and Surveillance Talk by Sunil Abraham

praskrishna — 2013-09-13T09:47:09Z

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

Privacy and Surveillance in India

praskrishna — 2013-09-13T09:49:25Z

Sunil Abraham, Executive Director from the Centre for Internet and Society will give a talk on privacy and surveillance in India at this event organised by the Centre for Culture, Media and Governance, Jamia Millia Islamia on September 18, 2013. The talk will be held at Network Governance Lab, CCMG, Jamia Millia Islamia in New Delhi at 11.30 a.m.

Click to read the brochure

Abstract

The talk will cover the development of privacy policy in India over the last 3 years, particularly in relation to projects such as NATGRID, CMS and UID. Special attention will be paid to the Justice A.P. Shah committee report, the last leak of the privacy bill from the DoPT and also the citizen draft of the privacy bill developed by the Centre for Internet and Society. International experiences such as Snowden's disclosures and the development of communication surveillance principles developed by EFF and others will be compared and contrasted with the Indian context.

About the Speaker

Sunil is the executive director of the Centre for Internet and Society (CIS), Bangalore. CIS is a 4 year old policy and academic research organisation that focuses on accessibility by the disabled, intellectual property rights policy reform, openness [Free/Open Source Software, Open Standards, Open Content, Open Access and Open Educational Resources], internet governance, telecom, digital natives and digital humanities.

He is also the founder of Mahiti, a social enterprise aiming to reduce the cost and complexity of information and communication technology for the voluntary sector by using free software. Sunil continues to serve on the board of Mahiti. He is an Ashoka fellow and was elected for a Sarai FLOSS Fellowship. For three years, Sunil also managed the International Open Source Network, a project of United Nations Development Programme's Asia-Pacific Development Information Programme, serving 42 countries in the Asia-Pacific region.

Sunil currently serves on the advisory boards of Open Society Foundations - Information Programme, Mahiti, Samvada and International Centre for Free/Open Source Software.

For more details visit https://cis-india.org/news/jamia-millia-islamia-new-delhi-september-18-2013-privacy-and-surveillance-in-india

Privacy and Security Implications of Public Wi-Fi - A Case Study

praskrishna — 2016-12-09T14:01:44Z

For more details visit https://cis-india.org/internet-governance/files/privacy-and-security-implications-of-public-wi-fi-a-case-study

Privacy and Security Implications of Public Wi-Fi - A Case Study

vanya — 2016-12-12T12:29:49Z

Today internet is an essential necessity in everyday work and recognizing its vital role, governments across the world including the Indian government, are giving access to public Wi-Fi. However, use of public Wi-Fi brings along with it certain privacy and security risks. This research paper analyses some of these concerns, along with the privacy policies of key ISPs in India providing public Wi-Fi service in Bangalore-namely D-VoIS and Tata Docomo, as a case study to provide suitable recommendations.

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1. Introduction

2. Global Scenario

3. Overview of Public Wi-Fi in India

4. Indian Policy and Legal Conundrum

5. Public Wi-Fi and Privacy Concerns

5.1. Data Theft

5.2. Tracking an Individual

5.3. Makes the Electronic Devices Prone to Hacking and Setting up Fake Networks

5.4. Illegal Use of Data

6. Ranking Digital Rights Project

6.1. D-VoIS, Bangalore

6.2. Tata Docomo, Bangalore

7. Compliance of Privacy Policies with Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

8. Conclusion and Recommendations

8.1. Commitment

8.2. Freedom of Expression

8.3. Privacy

1. Introduction

Recognizing internet as a critical tool for day-to-day work and facilitating increased access to it in the past few years,^[1] the Indian Government as well as Governments across the world have rolled out plans for offering public Wi-Fi. However, privacy risks of using public Wi-Fi have also been flagged across jurisdictions, which will be discussed in this paper. Apart from highlighting key privacy concerns associated with the use of free public Wi-Fi, this case study aims to analyse the privacy policies of two of the Internet Service Providers in India-namely Tata Docomo^[2] and D-VoiS^[3], which offer public Wi-Fi services in Bangalore city against the indicators listed under the Ranking Digital Rights project^[4], as well as the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011^[5]. Based on this analysis, this paper shall list key recommendations to these ISPs to ensure sound privacy policies and practices with a view to have a balanced framework and ecosystem in light of key privacy considerations, especially in light of public Wi-Fi.

2. Global Scenario

Security and privacy concerns around the use of free and public Wi-Fi have been raised in India^[6] as well as across the globe. In various cities like Bangalore, Delhi, Hyderabad, New York, London, Paris, etc., privacy experts have raised concerns over the public Wi-Fi systems at metro stations, malls, payphones and other such public places.^[7]

For many years, New York City has been in the process of developing a “free” public Wi-Fi project called LinkNYC^[8] to bring wireless Internet access to the residents of the city. However, privacy concerns have been raised by the users and privacy advocates like the New York Civil Liberties Union, where the latter also issued a letter to the Mayor's office regarding this^[9] as the collection of potentially sensitive personal, locational and behavioral data, without adequate safeguards could result in sharing of such data without the data subject’s consent or knowledge. For example, one of the concerns raised has been regarding retention of user's data by CityBridge, the company behind the LinkNYC kiosks, often indefinitely, for building a massive database which carries a risk of security breaches and unwarranted surveillance by the police. ^[10] Also, users are concerned that their internet browsing history may reveal sensitive information about their political views, religious affiliations or medical issues^[11], since registration is required to use LinkNYC by submitting their email addresses and by agreeing to allow CityBridge to collect information about the websites they visit, the duration for which they linger on certain information on a webpage and the links they click on. On the contrary, the privacy policy of CityBridge states that this massive amount of personally identifiable user information would be cleared only if there have been 12 months of user inactivity, raising an alarm in light of privacy concerns.^[12]

In the year 2015, the Information Commissioner’s Office (ICO) conducted a review of public Wi-Fi services on a UK high street, where it was found that the Wi-Fi networks requested for varying levels of personal data, which was also processed for marketing purposes. The results highlighted that while some networks did not request any personal data, others asked for varying amounts, including information regarding name, postal and email address, mobile number, gender, as well as asking for a date of birth as a mandatory requirement (except for gender). During the sign-up process, though some Wi-Fi networks provided users with the choice to opt-in or opt-out for receiving electronic newsletters and updates, others offered no choice at all.^[13] As a result of the review process, the ICO notified Wi-Fi network providers that it had reviewed and advised them of improvements that they could make to their service and issued guidance^[14] regarding the dangers of using public Wi-Fi^[15]. ICO also recommended users to take time to read all the information given by providers of Wi-Fi services before connecting.

In 2006, the European Data Retention Directive 2006/24/EC^[16] was introduced for the retention of communications data by providers of public electronic communications services for national security. The Directive provides an obligation for providers of publicly available electronic communications services and public communications networks to retain traffic and location data for the purpose of the investigation, detection, and prosecution of serious crime.^[17] Also, the Data Retention (EC Directive) Regulations 2009^[18] were introduced to implement the Directive in the UK. However, this was challenged on grounds of insufficient safeguards for the privacy rights of individuals, given the substantial interference which it facilitated with those rights.^[19]

To ensure protection of user’s data and information, the Data Protection Act 1998^[20] in UK obliges businesses retaining people’s data to comply with the law, which involves informing people about what data is being collected and ensure that the data is stored securely.^[21] . Therefore, in case of ISP’s providing public Wi-Fi service, this would relate to the information people provide when they log on, such as their email address. Under the Act, the data protection principles must be complied with by the data controllers and it needs to be ensured that the information is used fairly and lawfully, for limited and stated purposes, used in a way that is adequate, relevant and not excessive, kept for no longer than is absolutely necessary, handled according to people’s data protection rights, kept safe and secure and not transferred outside the European Economic Area without adequate protection.^[22] This would soon be updated and synced with the European Union’s General Data Protection Directive (GDPR).

3. Overview of Public Wi-Fi in India

In India, the public Wi-Fi in some cases has been offered free for a limited duration, in several cities across the country. For example, in 2014, Bangalore became the first city in the country to establish free public Wi-Fi- Namma Wi-Fi (802.11N) to make Bangalore a smart and connected city. The service is offered at MG Road, Brigade Road and four other locations in Bangalore including Traffic and Transit Management Centres (TTMCs) at Shanthinagar, Yeshwanthpur, Koramangala and CMH Road in Indiranagar.^[23] The internet and Wi-Fi service provider for Namma Wi-Fi is D-VoiS Broadband Ltd,a city-based firm.^[24] However, it seems the State Government plans to pull the plug on the project, funds, lack of awareness and difficulty in access as key constraints.^[25] Tata Docomo has inked an agreement with GMR Airports to offer Wi-Fi services at several International Airports in the country, including the Bangalore International Airport. It offers access to access free Wi-Fi service for 45 minutes, following which they users are required to pay for the service online, to continue using the Wi-Fi service.^[26]

Delhi has also introduced free Wi-Fi at its premier shopping hubs of Connaught Place and Khan Market in the year 2014, and BSNL launched a free WiFi service at Karnataka’s Malpe beach in the year 2016 making it the first WiFi beach in the three coastal districts of the state.^[27] The State Governments of Mumbai, Kolkata, Patna and Ahmedabad also offer free Wi-Fi services in limited areas.^[28] As part of the flagship programme by Indian Government, Digital India, the Government announced the rollout of Wi-Fi services by June 2015 at select public places in 25 Indian cities with population of over 10 lakh and tourist destinations by December 2015.^[29] Also, the Government has plans to digitise India by rolling out free Wi-Fi in 2500 towns and cities over a span of 3 years.^[30] Google plans to deploy WiFi at 100 railway stations in partnership with Railtel. Under this scheme, Mumbai Central was the first station to get free Wi-Fi in the year 2016.^[31] Also, Google's Project Loon aims to provide internet connectivity in remote and rural areas in India, which is currently being tested in other countries.^[32].

4. Indian Policy and Legal Conundrum

In light of national security concerns around the misuse of public Wi-Fi, the Department of Telecommunication, GoI, published a regulation^[33] dated February 2009, defining procedures for the establishment and use of public Wi-Fi to prevent misuse of public Wi-Fi and to be able to track the perpetrator in case of abuse. Indeed, the DOT has stated that “Insecure Wi-Fi networks are capable of being misused without any trail of user at later date”.^[34]

As per the 2009 Regulations, DoT has instructed ISPs to enforce centralized authentication using Login ID and Password for each user to ensure that the identity of the user can be traced.^[35] Regarding Wi-Fi services provided at public places, the Regulations state that bulk login IDs shall be created for controlled distribution, with authentication done at a centralized server. The subscribers are required to use public Wi-Fi by registering with temporary user ID and password, in the following methods:

Obtaining copy of photo identity of the subscriber, to be maintained by Licensee for one year; or
Providing details of user ID and password via SMS on subscriber's mobile phone , to be used as his/her identity by keeping the mobile number for one year.

Additionally, the data protection regime in India is governed by section 43A of the Information Technology Act, 2000 and the Rules^[36] notified under it. It obliges corporate bodies which possess, deal or handle any sensitive personal data to implement and maintain reasonable security practices, failing which they would be held liable to compensate those affected by any negligence attributable to this failure. The said Rules also define requirements and safeguards that every Body Corporate is legally required to incorporate into the company's privacy policy. The Rules put restrictions on body corporates on collecting sensitive personal information, and also states that it must obtain prior consent from the “provider of information” regarding “purpose, means and modes of use of the information, along with limiting disclosure of such information.^[37] Most of the ISPs in India being a private company, like D-VoiS and Tata Docomo, are obliged to comply with these provisions. Also, under the model License Agreement for Unified License^[38] by Ministry of Communication & IT, Department of Telecommunications, Government of India, where the Unified Access License Framework allows for a single license for multiple services such as telecom, the internet and television and provides certain security guidelines, privacy of communications is to be maintained by the Licensee (the ISPs in this case) and network security practices and audits are mandated along with penalties for contravention in addition to what is prescribed under the Information Technology Act,2000. It also provides for ensuring unauthorized interception of messages does not take place. Therefore, the ISPs providing public Wi-Fi services in various cities across India would be governed by the data protection regime and could be held liable under these provisions in case of non-compliance with the security measures so stated.

In July 2016, the Telecom Regulatory Authority of India (hereinafter referred as “TRAI”) floated a Consultation paper on Proliferation of Broadband through Public Wi-Fi Networks^[39] with an objective to examine the need of encouraging public Wi-Fi networks in the country from a public policy point of view and discuss the issues as well as solutions in its proliferation. The paper recognises the fact that India is still in a green field deployment phase in terms of adoption of public Wi-Fi services and requires solutions for resolving the challenges and risks being faced in the process and lay a strong foundation to evolve towards a meaningful position in the advancement of initiatives related to Internet of Things, Smart Cities, etc.^[40] This is an important step towards fulfilment of the Digital India scheme of the Indian Government to ensure better connectivity. In the paper, TRAI has advocated development of a payment platform which allows easy access to Wi-Fi services across internet service providers (ISPs) and through any payment instrument.^[41] Besides that, the paper raises issues of various regulatory, licensing or policy measures required to encourage ubiquitous city-wide Wi-Fi networks as well as expansion of Wi-Fi networks in remote or rural areas, along with the issue of encouraging interoperability between the Wi-Fi networks of different service providers, both within the country and internationally, as well as between cellular and Wi-Fi networks.^[42]

5. Public Wi-Fi and Privacy Concerns

Since proliferation of public Wi-Fi in India is happening at a moderate pace, the paper discusses key issues towards this, one of them being the logistics of deploying this service. This section briefly states and acknowledges privacy and security concerns as an important factor that may be posing issues in the adoption of public Wi-Fi services in the country. Since there have been numerous cases of security vulnerabilities in public Wi-Fi networks worldwide, security of networks and cyber crimes is a key issue for consideration.^[43]

Deployment of public wireless access points has made it more convenient for people to access the Internet outside of their offices or homes. Despite advantages like ease of accessibility, connectivity and convenience, public Wi-Fi connection pose serious concerns as well. “The proliferation of public Wi-Fi is one of the biggest threats to consumer data”, says David Kennedy, founder of TrustedSec, a specialised information security consulting company based in the United States of America.^[44] Also, the networks become an easier target with little public awareness about the existence of such threats wherein users expose valuable personal data over Wi-Fi hotspots. The recently released Norton Cyber Security Report 2016^[45] shows how the benefit of constant connectivity is often outweighed by consumer complacency, leaving consumers and their Wi-Fi networks at risk. For the purpose of this report, Norton surveyed 20,000 people (over a 1,000 from India ) which reflects that though users in India may be increasingly becoming aware of the cyber threats they face due to use of public Wi-Fi, they don’t fully understand the accompanying risks and their online behaviour is often contradictory.^[46] Also, it is important to consider that the services which claim to be free, actually generate revenue by advertisements, where the model works by providing free access to internet in exchange for user's’ personal and behavioral data, which is subsequently used to target ads to them.^[47]

Some of the privacy harms stemming from use of public Wi-Fi are listed below.

5.1. Data Theft

With hackers finding it easy to access personal information of the data subjects, data can be hijacked by unauthorized internet access by spoofing the MAC and IP addresses of the authenticated user’s device or by use of default settings (saved passwords or IPs).^[48] The following kinds of data is at a risk of being stolen and further misused:

demographic and locational data^[49]
forms of personal information acting as identifiers like financial information, social and personal information^[50]
private information like passwords to social networking sites, email accounts and banking websites^[51]
historical data from the devices^[52]

5.2. Tracking an Individual

Like cell phones, Wi-Fi devices have unique identifiers that can be used for tracking purposes which can cause potential security issues. Tracking by using a Wi-Fi hotspot can also lead to third party harms like stalking.^[53] To receive or use a service, often websites require the user to share their personal information such as name, age, ZIP code, or personal preferences, which is many times shared with advertisers and other third parties, without the knowledge or consent of the users.^[54]

5.3. Makes the Electronic Devices Prone to Hacking and Setting up Fake Networks

A recent experiment conducted by the chief scientist at mobile security firm Appknox at the Bengaluru International Airport, India, found that the wireless devices could be easily hacked over the airport’s free Wi-Fi network due to the easily exploitable security holes in the software made by Apple, Google, and Microsoft.^[55] A similar experiment was backed by the European law enforcement agency, Europol, where a mobile hotspot was created in central London^[56] and the hacker was able to gain access to passwords, apps, and even credit card and banking information with ease.^[57] Lack of secure softwares and prevalence of open, unprotected Wi-Fi has made it fairly easy for hackers to set up fake twin access points that give them access to data histories and personal information.^[58] This makes is easy to track data histories of users. Even if certain softwares use encryption codes, a simple decryption software can be used to obtain the information.^[59]

5.4. Illegal Use of Data

By authorities: the authorities have easier access to people’s browsing details and habits, and with justification in the name of national security, could be used to monitor the people without their consent.^[60]

Wi-Fi provider: can sell the user’s demographic and location information. ^[61] Also, it was revealed in a study that the personal information of users is often transmitted by service providers without encryption. Anyone along the path between the user and the service’s data center can then intercept this information, opening users to grave privacy and security risks.^[62]

By hackers: steal information and hack into unsuspecting victim’s bank accounts and misuse corporate financial information and secrets^[63]

6. Ranking Digital Rights Project

The "Ranking Digital Rights" project, an ongoing international non-profit research initiative, aims to promote greater respect for freedom of expression and privacy by focusing on the policies and practices of companies in the information communications technology (ICT) sector^[64], rank such companies in this light, and undertake research to develop the ranking methodology.^[65]

In November 2015, the Ranking Digital Rights project launched the Corporate Accountability Index. Since several actors like the Internet and telecommunications companies, software producers, and device and networking equipment manufacturers exert growing influence over the political and civil lives of people all over the world, it is important to state that these organisations share a responsibility to respect human rights. For this purpose, 16 Internet and telecommunications companies were evaluated according to 31 indicators, which focused on corporate disclosure of policies and practices that affect users’ freedom of expression and privacy.^[66]

The data produced by the index can help companies improve their policies, practices and help them identify challenges faced by companies in meeting their corporate obligations to respect human rights like Freedom of Expression and Privacy in the digital space.^[67] Some of the key corporate practices which affect these rights are :

How companies handle government requests to hand over user data or restrict content;
How companies enforce their own terms of service;
What information companies collect about users and how long they retain it; and
To whom they share or sell user information.^[68]

The 2015 Corporate Accountability Index assesses transparency levels of the World’s most powerful Internet and telecommunications companies regarding their commitments, policies and practices that affect users’ freedom of expression and privacy and evaluates what companies share about these practices and offers recommendations for improvement. The methodology adopted relies on publicly available information so that advocates, researchers, journalists, policy makers, investors, and users can understand the extent to which different companies respect freedom of expression and privacy, and make appropriate policy, investment, and advocacy decisions. Also, public disclosures would enable researchers and journalists to investigate and verify the accuracy of company statements.^[69]

For the purpose of this research, we would apply this index and the indicators to the internet service provider of public Wi-Fi in Bangalore-D-VoiS Ltd. and Tata Docomo to understand how comprehensive their privacy policies are when compared to global standards and make informed recommendations. Analysing policies against the index can help these companies identify best practices, as well as the obstacles they face in meeting their corporate obligations to respect human rights in the very digital spheres they helped to create.^[70] The information has been gathered and analysed on the basis of publicly available information, and this can help companies empower users to make informed decisions about how they use technology, which would help build trust between users and companies in the long run.^[71]

6.1. D-VoIS^[72], Bangalore

For the purpose of this case study, the Privacy Policies of D-VoIS have been analysed on the basis of the Corporate Accountability index, and the answers can be accessed in Annex 1.

Summary

On the basis of the indicators and the information available, it can be ascertained that:

The Company has a freely available and understandable Privacy Policy and Terms of Use, though only in the English language.

The company does not commit to notify users in case of changes in the privacy policy of the company.

The company states circumstances in which it would restrict use of its services, along with reasons for content restriction.

The Company commits to the principle of data minimization, discloses circumstances when it shares information with third parties, and provides users with options to control the company’s collection and sharing of their information

Deploys industry standards for security of products and services.

Analysis

Commitment: D-VoIS fares low on Commitment since it has made no overarching public commitments to protect users’ freedom of expression or privacy in a manner that meets the Index’s criteria. The Company lacks adequate top-level policy commitments to users’ freedom of expression and privacy, establishing executive and management oversight over these issues, creating a process for human rights impact assessment, and lacks stakeholder engagement and a grievance mechanism.

Freedom of Expression: The Company also fares low on Freedom of Expression as the terms of services, though easily available, are only in English language. Also, it does not commit to notify users about changes to the terms of service. While the company discloses what content and activities it prohibits , it provides no information about how the company notifies these restrictions to the users.

Regarding transparency about content restriction requests, since the Indian law prevents the company from disclosing government requests for content removal^[73], but it does not prevent the company from publishing more information about private requests for content restriction. D-VoIS does not provide any information with respect to this.

Privacy: D-VoIS is required by law to have a privacy policy available on its website, this policy is available in English, but not in other languages spoken in India. Also, D-VoIS does not disclose what user information is collected, how and why, nor does it offer users meaningful access to their information. D-VoIS does not disclose any information regarding retention of user information, and the company could improve its disclosures about what user information it collects and how long it is retained.

Though the company discloses information about its security practices, it does not disclose any information regarding its efforts to educate users about security threats. It also does not disclose information regarding requests by non-governmental entities for user data.

6.2. Tata Docomo^[74], Bangalore

The Privacy Policy and Terms & Conditions of Tata Docomo have been analysed on the basis of the Corporate Accountability index, and the answers can be accessed in Annex 2.

Summary

On the basis of the indicators and the information available, it can be ascertained that:

The Company has a freely available and understandable Data Privacy Policy and Terms of Use, though only in English language.

The Company has established electronic and administrative safeguards designed to secure the information collected to prevent unauthorized access to or disclosure of that information and to ensure it is used appropriately.

The company states circumstances in which it would restrict use of its services, along with reasons for content restriction. The company’s disclosed policies and practices demonstrate how it works to avoid contributing to actions that may interfere with the right to freedom of expression, except where such actions are lawful, proportionate and for a justifiable purpose.

The Company clearly states the kind of information collected, ways of collection and the reasons for collection as well as sharing.

Deploys industry standards for security of products and services

Analysis

Commitment: Tata Docomo fares low on Commitment since it has made no overarching public commitments to protect users’ freedom of expression or privacy in a manner that meets the Index’s criteria. Though the Company has established electronic and administrative safeguards designed to secure the information collected, it lacks adequate top-level policy commitments to users’ freedom of expression and privacy, establishing executive and management oversight over these issues, creating a process for human rights impact assessment, and lack of stakeholder engagement.

Freedom of Expression: The Company fares low on Freedom of Expression as the terms of services, though easily available, are only in English language. Also, it does not commit to notify users about changes to the terms of service. While the company discloses what content and activities it prohibits , it provides no information about how the company notifies these restrictions to the users.

Regarding transparency about content restriction requests, since the Indian law prevents the company from disclosing government requests for content removal, it does not prevent the company from publishing more information about private requests for content restriction. Tata Docomo does not provide any information with respect to that.

Privacy: Tata Docomo is required by law to have a privacy policy available on its website, this policy is available in English, but not in other languages spoken in India. No information is publically available regarding users option to control company's collection of information. Tata Docomo discloses that user information shall be retained as long as required and does not mention a specific duration for the same. Though the company discloses information about its security practices, it does not disclose any information regarding its efforts to educate users about security threats. It also does not disclose information regarding requests by non-governmental entities for user data.

7. Compliance of Privacy Policies with Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

The Privacy Policy and Terms & Conditions of D-VoIS and Tata Docomo have been analysed on the basis of the security measures and procedures stated under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 to ascertain how sound and compliant the framework is with the existing data protection regime in India. The comparison can be accessed in Annex 3.

Comparing the requirements listed under the Rules with the policies of both the companies, it can be said that though the websites of both companies provide privacy policies and are easily accessible, they lack crucial information regarding consent of the user before collection as well as sharing of information. Also, though the policies state the purpose of sharing such data with third parties, it does not state the purpose of collection of the information. The policies are also silent regarding the requirements to be complied with before transferring personal data into another jurisdiction . There is also no information about the companies having a grievance officer. Additionally, though the terms of services of D-VoIS state that the customer may choose to restrict the collection or use of their personal information, both companies do not specifically provide for an opt out mechanism to its users.

8. Conclusion and Recommendations

To allay the numerous concerns regarding privacy and security with respect to public Wi-Fi’s, the ISPs must have a sound Privacy Policy in place. For this purpose, adherence to the indicators as listed under the Corporate Accountability Index, along with requirements for security of personal information stated under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 and improving the policies accordingly shall greatly contribute to protection of Freedom of Expression and ensure Privacy of user information. Ensuring compliance with the existing data protection regime in the country becomes more important in light of the growing privacy and security concerns due to proliferation of free and public Wi-Fi service in India. Adequate measures like acquiring consent for collection and sharing of user data, commitment by company executives to ensure protection of rights of individuals, adoption of security standards, creating awareness about security concerns, etc. by such corporate must be considered to ensure protection of personal information and reduce the likelihood of a data breach. Both D-VoIS and Tata Docomo must consider the following recommendations in order to meet the criteria set by the Ranking Digital Rights project, ensuring commitment towards protection of right to freedom of expression and privacy of the users.

8.1. Commitment

Set in place an oversight mechanism to monitor how the company’s policies and practices affect freedom of expression and privacy. In case the Company already has that in place, information regarding the same must be made publically available for greater transparency.
Also, they must conduct regular, comprehensive, and credible due diligence, such as human rights impact assessments, to identify how all aspects of their business impact freedom of expression and privacy.
In addition to that, they must Provide for a remedy or grievance mechanism. The Telecom Regulatory Authority of India also requires that all service providers have redress mechanisms. In case the Company already has that in place, information regarding the same must be made publically available for greater transparency.

8.2. Freedom of Expression

The Companies must make an effort to make the Terms of Service available in the most commonly spoken languages by its users, besides English.
Also, it is recommended that the Companies must ensure to provide meaningful notice to users regarding change in terms of service.
Besides disclosing what content and activities the companies prohibit, they must disclose information regarding how it enforces these prohibitions and should provide examples regarding the circumstances under which it may suspend service to individuals or areas to help users understand such policies.
The Companies must also disclose information regarding the process for evaluating and responding to requests from third parties to restrict content or service. Additionally, it must disclose how long it retains user information, publish process for evaluating and responding to requests from government and other third parties for stored user data and/or real-time communications.

8.3. Privacy

Though both the Companies disclose that the user information shall be shared with third parties, and Tata Docomo discloses what information is collected and how, yet there should be no legal impediment for the companies to improve its disclosures about what user information it collects, with whom it is shared, and how long it is retained to protect the privacy of the users.
Though Tata Docomo allows the users to review and correct their Personal Information collected by the Company, D-VoIS must release information regarding whether the users are able to view, download or otherwise obtain all of the information about them that the company holds. In case it does not allow, the Company must duly change its policy regarding the same.
The Companies must also publish information to help users defend against cyber threats.

^[1] The Financial Express, ‘Free wi-fi: Digital Dilemma’, February 22, 2015,

http://www.financialexpress.com/article/economy/free-Wi-Fi-digital-dilemma/45804/

^[2] Tata Docomo, http://www.tatadocomo.com/

^[3] D-VoIS Communication Pvt. Ltd. http://www.dvois.com/

^[4] Ranking Digital Rights, https://rankingdigitalrights.org/

^[5] the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. Available at : http://www.wipo.int/edocs/lexdocs/laws/en/in/in098en.pdf

^[6] See : http://indianexpress.com/article/technology/technology-others/public-wifi-can-be-used-to-steal-private-information-it-security-expert/, http://www.aljazeera.com/indepth/features/2016/03/india-unlocking-public-wi-fi-hotspots-160308072320835.html , http://www.business-standard.com/article/technology/indians-most-willing-to-share-personal-data-over-public-wifi-116083000673_1.html and http://articles.economictimes.indiatimes.com/2015-05-20/news/62413108_1_corporate-espionage-hotspots-bengaluru-airport

^[7] Scroll, ‘Free wifi in Delhi is good news but here is the catch’, November 21, 2014, http://scroll.in/article/690755/free-wifi-in-delhi-is-good-news-but-here-is-the-catch

^[8] LinkNYC, https://www.link.nyc/

^[9] See : http://www.nyclu.org/files/releases/city%20wifi%20letter.pdf

^[10] The Huffingtonpost, ‘Maybe You Shouldn't Use Public Wi-Fi In New York City’, March 16, 2016, http://www.huffingtonpost.in/entry/public-wifi-nyc_us_56e96b1ce4b0b25c9183f74a

^[11] NYCLU, ‘City’s Public Wi-Fi Raises Privacy Concerns’, March 16, 2016,

http://www.nyclu.org/news/citys-public-wi-fi-raises-privacy-concerns

^[12] NYCLU, ‘City’s Public Wi-Fi Raises Privacy Concerns’, March 16, 2016,

http://www.nyclu.org/news/citys-public-wi-fi-raises-privacy-concerns

^[13]Information Commissioner’s Office Blog, ‘Be wary of public Wi-Fi’September 25, 2015, https://iconewsblog.wordpress.com/2015/09/25/be-wary-of-public-Wi-Fi/

^[14]Information Commissioner’s Office Blog, ‘Be wary of public Wi-Fi’September 25, 2015, https://iconewsblog.wordpress.com/2015/09/25/be-wary-of-public-Wi-Fi/

^[15]Marketing Law, ‘The ICO sounds a warning on public wi-fi and privacy’, November 24, 2015,

http://marketinglaw.osborneclarke.com/data-and-privacy/the-ico-sounds-a-warning-on-public-Wi-Fi-and-privacy/

^[16]Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0024

^[17] Feiler, L., "The Legality of the Data Retention Directive in Light of the Fundamental Rights to Privacy and Data Protection", European Journal of Law and Technology, Vol. 1, Issue 3, 2010, http://ejlt.org/article/view/29/75

^[18] The Data Retention (EC Directive) Regulations 2009 http://www.legislation.gov.uk/ukdsi/2009/9780111473894/pdfs/ukdsi_9780111473894_en.pdf

^[19] Purple, ‘Update on the legal implications of offering public WiFi in the UK’, September 10, 2014, http://purple.ai/update-legal-implications-offering-public-wifi-uk/

^[20] Data Protection Act 1998, http://www.legislation.gov.uk/ukpga/1998/29/contents

^[21] Wireless Social, http://www.wireless-social.com/how-it-works/legal-compliance/

^[22] Data Protection Act 1998, https://www.gov.uk/data-protection/the-data-protection-act

^[23]The Hindu, ‘Free wifi on M.G. Road and Brigade Road from Friday’, January 23, 2014, http://www.thehindu.com/news/cities/bangalore/free-wifi-on-mg-road-and-brigade-road-from-friday/article5606757.ece

^[24]The Telegraph, ‘Free Wi-fi on tech city streets- Bangalore offers five public hotspots’, January 25, 2014, http://www.telegraphindia.com/1140125/jsp/nation/story_17863705.jsp#.VwIv_Zx97IU

^[25]Economic Times, ‘Karnataka Govt pulls the plug on public Wi-Fi spots in Bengaluru’, March 15, 2016, http://tech.economictimes.indiatimes.com/news/internet/karnataka-govt-pulls-the-plug-on-public-Wi-Fi-spots-in-bengaluru/51404414

^[26] Medianama, ‘Why Don’t Indian Airports Offer Free WiFi To Passengers?’, May 22, 2013, http://www.medianama.com/2013/05/223-indian-airports-free-wifi/

^[27]Hindustan Times, ‘BSNL launches free public WiFi at Karnataka’s Malpe beach’, January 25, 2016, http://www.hindustantimes.com/tech/bsnl-launches-free-public-wifi-on-karnataka-s-malpe-beach/story-XVM06KQKIcoyqV8CLJoYzJ.html

^[28]TechTree, ‘Problems With Free City-Wide Wi-Fi Hotspots In India’, September 28, 2015,

http://www.techtree.com/content/features/9914/problems-free-city-wide-Wi-Fi-hotspots-india.html#sthash.2ZSf9kq7.dpuf

^[29]India Today, ‘25 Indian cities to get free public Wi-Fi by June 2015’, December 17, 2014, http://indiatoday.intoday.in/technology/story/25-indian-cities-to-get-free-public-Wi-Fi-by-june-2015/1/407214.html

^[30]Business Insider, ‘Modi Government To Roll Out Free Wi-Fi In 2,500 Towns And Cities To Make India Digital’, January 23, 2015, http://www.businessinsider.in/Modi-Government-To-Roll-Out-Free-Wi-Fi-In-2500-Towns-And-Cities-To-Make-India-Digital/articleshow/45989339.cms

^[31]RailTel launches free high-speed public Wi-Fi service with Google at Mumbai Central, http://www.railtelindia.com/images/Mumbai.pdf

^[32]Economic Times, ‘Google may get government nod to conduct pilot for Project Loon in India’, May 24, 2016,

http://economictimes.indiatimes.com/tech/internet/google-may-get-government-nod-to-conduct-pilot-for-project-loon-in-india/articleshow/52408455.cms

^[33]Department of Telecommunications, Ministry of Communications & IT, Government of India, February 23, 2009, http://www.dot.gov.in/sites/default/files/Wi-%20fi%20Direction%20to%20UASL-CMTS-BASIC%2023%20Feb%2009.pdf

^[34] Scroll, ‘Free wifi in Delhi is good news but here is the catch’ November 21, 2014, http://scroll.in/article/690755/free-wifi-in-delhi-is-good-news-but-here-is-the-catch

^[35]MojoNetworks, ‘Complying with DoT Regulation on Secure Use of WiFi: Less in Letter, More in Spirit’, http://www.mojonetworks.com/fileadmin/pdf/Implementing_DoT_Regulation_on_WiFi_Security.pdf

^[36] Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011

^[37]The Centre for Internet & Society, ‘Privacy and the Information Technology Act — Do we have the Safeguards for Electronic Privacy?’, April 7, 2011, http://cis-india.org/internet-governance/blog/privacy/safeguards-for-electronic-privacy

^[38]License Agreement for Unified License, http://www.dot.gov.in/sites/default/files/Unified%20Licence.pdf

^[39] Telecom Regulatory Authority of India, ‘Consultation Paper on Proliferation of Broadband through Public Wi-Fi Networks’ July 13, 2016, https://www.mygov.in/sites/default/files/mygov_1468492162190667.pdf

^[40] Telecom Regulatory Authority of India, ‘Consultation Paper on Proliferation of Broadband through Public Wi-Fi Networks’ July 13, 2016, https://www.mygov.in/sites/default/files/mygov_1468492162190667.pdf

^[41] The Economic Times, ‘Trai floats consultation paper to boost broadband through Wi-Fi in public places’, July 14, 2016, http://economictimes.indiatimes.com/articleshow/53195586.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

^[42] Telecom Regulatory Authority of India, ‘Consultation Paper on Proliferation of Broadband through Public Wi-Fi Networks’ July 13, 2016, https://www.mygov.in/sites/default/files/mygov_1468492162190667.pdf

^[43]Mint, ‘Trai issues paper on public Wi-Fi networks’ July 14, 2016, http://www.livemint.com/Industry/1jVgso2R2Lz4NR5IYFaCtN/Trai-issues-paper-on-public-WiFi-networks.html

^[44]Forbes,’How To Avoid Data Theft When Using Public Wi-Fi’, March 4, 2014, http://www.forbes.com/sites/amadoudiallo/2014/03/04/hackers-love-public-wi-fi-but-you-can-make-it-safe/#373c75e32476

^[45]Symantec, ‘Norton Cyber Security Insights Report’, 2016, https://www.symantec.com/content/dam/symantec/docs/reports/2016-norton-cyber-security-insights-report.pdf

^[46]The Indian Express, ‘Indian cybercrime victims don’t learn from past experience: Norton Report’, November 18, 2016, http://indianexpress.com/article/technology/tech-news-technology/indian-users-complacent-when-it-comes-to-cyber-security-norton-report/

^[47]Mashable, ‘This is the real price you pay for 'free' public Wi-Fi’, January 26, 2016, http://mashable.com/2016/01/25/actual-cost-free-Wi-Fi/?utm_cid=mash-com-Tw-main-link#WmAJGJ_COiq5

^[48]MojoNetworks, ‘Complying with DoT Regulation on Secure Use of WiFi: Less in Letter, More in Spirit’, http://www.mojonetworks.com/fileadmin/pdf/Implementing_DoT_Regulation_on_WiFi_Security.pdf

^[49]Network Computing, ‘Public WiFi, Location Data & Privacy Anxiety’, July 4, 2015, http://www.networkcomputing.com/wireless/public-wifi-location-data-privacy-anxiety/1496375374

^[50]Network Computing, ‘Public WiFi, Location Data & Privacy Anxiety’, July 4, 2015, http://www.networkcomputing.com/wireless/public-wifi-location-data-privacy-anxiety/1496375374

^[51]The Indian Express, ‘Public Wifi can be used to steal private information: IT Security Expert’, May 19, 2015, http://indianexpress.com/article/technology/technology-others/public-wifi-can-be-used-to-steal-private-information-it-security-expert/#sthash.xiuWtL6v.dpuf

^[52]Medium, ‘Maybe Better If You Don’t Read This Story on Public WiFi’, October 14, 2014, https://medium.com/matter/heres-why-public-wifi-is-a-public-health-hazard-dd5b8dcb55e6#.3061h6lsv

^[53]Network Computing, ‘Public WiFi, Location Data & Privacy Anxiety’, July 4, 2015, http://www.networkcomputing.com/wireless/public-wifi-location-data-privacy-anxiety/1496375374

^[54]University of Washington, Computer Science and Engineering, ‘When I am on Wi-Fi, I am Fearless:” Privacy Concerns & Practices in Everyday Wi-Fi Use’, https://djw.cs.washington.edu/papers/wifi-CHI09.pdf

^[55]Breitbart, ‘Fre Public Wi-Fi poses security risks’, May 19, 2015, http://www.breitbart.com/big-government/2015/05/19/free-public-wifi-poses-security-risk/

^[56]The Guardian, ‘Londoners give up eldest children in public Wi-Fi security horror show’, September 29, 2014, https://www.theguardian.com/technology/2014/sep/29/londoners-Wi-Fi-security-herod-clause

^[57] Medium, ‘Maybe Better If You Don’t Read This Story on Public WiFi’, October 14, 2014, https://medium.com/matter/heres-why-public-wifi-is-a-public-health-hazard-dd5b8dcb55e6#.3061h6lsv

^[58]ABC13, ‘Hackers set up fake Wi-Fi hotspots to steal your information, July 10, 2015, http://abc13.com/technology/hackers-set-up-fake-Wi-Fi-hotspots-to-steal-your-information/835223/

^[59]Medium, ‘Maybe Better If You Don’t Read This Story on Public WiFi’, October 14, 2014, https://medium.com/matter/heres-why-public-wifi-is-a-public-health-hazard-dd5b8dcb55e6#.3061h6lsv

^[60] Scroll, ‘Free wifi in Delhi is good news but here is the catch’ November 21, 2014, http://scroll.in/article/690755/free-wifi-in-delhi-is-good-news-but-here-is-the-catch

^[61] Scroll, ‘Free wifi in Delhi is good news but here is the catch’ November 21, 2014, http://scroll.in/article/690755/free-wifi-in-delhi-is-good-news-but-here-is-the-catch

^[62]University of Washington, Computer Science and Engineering, ‘When I am on Wi-Fi, I am Fearless:” Privacy Concerns & Practices in Everyday Wi-Fi Use’, https://djw.cs.washington.edu/papers/wifi-CHI09.pdf

^[63] Breitbart, ‘Fre Public Wi-Fi poses security risks’, May 19, 2015, http://www.breitbart.com/big-government/2015/05/19/free-public-wifi-poses-security-risk/

^[64] Ranking Digital Rights, https://rankingdigitalrights.org/who/frequently-asked-questions/

^[65] Business & Human Rights Resource Centre, ‘Ranking Digital Rights Project’, http ://business-humanrights.org/en/documents/ranking-digital-rights-project

^[66] Ranking Digital Rights, https://rankingdigitalrights.org/about/

^[67] Ranking Digital Rights, https://rankingdigitalrights.org/about/

^[68] Ranking Digital Rights, https://rankingdigitalrights.org/who/frequently-asked-questions/

^[69] Ranking Digital Rights, https://rankingdigitalrights.org/who/frequently-asked-questions/

^[70] Ranking Digital Rights, https://rankingdigitalrights.org/about/

^[71] Ranking Digital Rights, https://rankingdigitalrights.org/who/frequently-asked-questions/

^[72] D-VoIS Communication Pvt. Ltd. http://www.dvois.com/

^[73]Section 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 states that all request and complaints must be kept confidential.

^[74] Tata Docomo, http://www.tatadocomo.com/

For more details visit https://cis-india.org/internet-governance/blog/privacy-and-security-implications-of-public-wi-fi-a-case-study

Privacy after Big Data

praskrishna — 2017-01-27T00:08:39Z

For more details visit https://cis-india.org/internet-governance/files/privacy-after-big-data