Centre for Internet and Society

SEBI and Communication Surveillance: New Rules, New Responsibilities?

kovey — 2013-07-12T10:51:46Z

In this blog post, Kovey Coles writes about the activities of the Securities Exchange Board of India (SEBI), discusses the importance of call data records (CDRs), and throws light on the significant transition in governmental leniency towards access to private records.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC

Introduction

The Securities Exchange Board of India (SEBI) is the country’s securities and market regulator, an investigation agency which seeks to combat market offenses such as insider trading. SEBI has received much media attention this month regarding its recent expansion of authority; the agency is reportedly on track to be granted powers to access telecom companies’ CDRs. These CDRs are kept by telecommunication companies for billing purposes, and contain information on who sent a call, who received a call, and how long the call lasted, but does not disclose information about call content. Although SEBI has emphatically sought several new investigative powers since 2009 (including access to CDRs, surveillance of email, and monitoring of social media), India’s Ministry of Finance only recently endorsed SEBI’s plea for direct access to service providers’ CDRs. In SEBI’s founding legislation, this capability is not mentioned. Very recently, however, the Ministry of Finance has decided to support expansion of current legislation in regards to CDR access for SEBI, the Reserve Bank of India (RBI), and potentially other agencies, when it comes to prevention of money laundering and other economic offenses.

SEBI’s Authority (Until Now)

Established in 1992 under the Securities and Exchange Board of India Act, SEBI was created with the power of "registering and regulating the working of… [individuals] and intermediaries who may be associated with securities markets in any manner."[1] Its powers have included "calling for information from, undertaking inspection, conducting inquires and audits of the intermediaries and self-regulatory organisations in the securities market."[2] Although the agency has held the responsibility to investigate records on market activity, they have never explicitly enjoyed a right to CDRs or other communications data. Now, with the intention of “meeting new challenges thrown forward by the technological and market advances,”[3] SEBI and the Ministry of Finance want to extend their record keeping scope and investigative powers to include CDR access, a form of communications surveillance.

But the ultimate question is whether agencies like SEBI need this type of easy access to records of communication.

What is the Importance of CDR Access?

Reports on SEBI’s recent expansion are quick to ensure that the agency is not looking for phone-tapping rights, which intercepts messages within telephonic calls, but instead only seeks call records. CDRs, in effect, are “metadata,” a sort of information about information. In this case, it is data about communications, but it is not the communications themselves. Currently, there a total of nine agencies which are able to make actual phone-tapping requests in India. But when it comes to access of CDRs, the government seems much more generous in expanding powers of existing agencies. SEBI, as well as RBI and others, are all looking to be upgraded in their authority over CDRs. Experts argue, however, that "metadata and other forms of non-content data may reveal even more about an individual than the content itself, and thus deserves equivalent protection."[4] Therefore, a second crucial question is whether this sensitive CDR data will feature the same detail of protection and safeguards which exist for communication interception.

One reason for the recent move in CDR access is that SEBI and RBI have found the process of obtaining CDRs too arduous and ill-defined.[5] Currently, under section 92 of the CrPc, Magistrates and Commissioners of Police can request a CDR only with an official corresponding first information report (FIR), while there exists no explicit guideline for SEBI’s role in the process of CDR acquisition.[6] Although the government may seek to relax this procedure, SEBI’s founding legislation prohibits investigation without the pretense of “reasonable grounds," as stipulated in section 11C of the SEBI Act.[7] It has always stood that only under these reasonable grounds could SEBI begin inspection of an intermediary’s "books, registers, and other documents."[7] With the government creating a way for SEBI and similar agencies to circumvent the traditional procedures for access to CDRs, these new standards should incorporate safeguards to ensure the protection of individual privacy. Banking companies, financial institutions, and intermediaries have already been obliged to maintain extensive record keeping of transactions, clients, and other financial data under section 12 of the Prevention of Money-Laundering Act of 2002.[8] But books and records containing financial data differ greatly from communication data, which can include much more personal information and therefore may compromise individuals’ freedom of speech and expression, as well as the right to privacy.

Significance and Responsibility in this Decision

Judging from SEBI’s prior capabilities of inspection and inquiry, this change may initially seem only a minor expansion of power for the agency, but it actually represents a significant transition in governmental leniency toward access to private records. As mentioned, the recent goal of the Ministry of Finance to extend rights to CDRs is resulting in amended powers for more agencies than only SEBI. Moreover, this power expansion comes on the heels of controversy surrounding America’s National Security Agency (NSA) amassing millions of CDRs and other datasets both domestically and internationally. There is obvious room for concern over Indian citizen’s call records being made more easily accessible, with fewer checks and balances in place. The benefits of the new policy include easier access to evidence which could incriminate those involved in financial crimes. But is that benefit actually worth giving SEBI the right to request citizen’s call records? In the cases against economic offenses, CDR access often amounts only to circumstantial evidence. With its ongoing battle against insider trading and other financial malpractice, crimes which are inherently difficult to prove, SEBI could have aspirations to grow progressively more omnipresent. But as the agency’s breadth expands, citizen’s rights to privacy are simultaneously being curtailed. Ultimately, the value of preventing economic offense must be balanced with the value of the people’s rights to privacy.

[1]. 1992 Securities and Exchange Board of India Act, section 11, part 2(b).

[2]. 1992 Securities and Exchange Board of India Act, section 11, part 2(i).

[3]. “Sebi Finalising new Anti-money laundering guidelines,” The Times of India, June 16, 2013

http://timesofindia.indiatimes.com/business/india-business/Sebi-finalizing-new-anti-money-laundering-guidelines/articleshow/20615014.cms

[4]. International Principles on the Application of Human Rights to Communications Surveillance -http://www.necessaryandproportionate.net/#_edn1

[5]. “Sebi to soon to get Powers to Access Call Records,” Business Today, June 13, 2013

http://businesstoday.intoday.in/story/sebi-call-record-access/1/195815.html

[6]. 1973 Criminal Procedure Code, Section 92 http://trivandrum.gov.in/~trivandrum/pdf/act/CODE_OF_CRIMINAL_PROCEDURE.pdf

“Govt gives Sebi, RBI Access to Call Data Records,” The Times of India, June 14, 2013

http://articles.timesofindia.indiatimes.com/2013-06-14/india/39975284_1_home-ministry-access-call-data-records-home-secretary

[7]. 1992 Securities and Exchange Board of India Act, section 11C, part 8

[8]. 2002 Prevention of Money-Laundering Act, section 12

For more details visit https://cis-india.org/internet-governance/blog/sebi-and-communication-surveillance

Search and Seizure and the Right to Privacy in the Digital Age: A Comparison of US and India

divij — 2014-06-02T06:45:14Z

The development of information technology has transformed the way in which individuals make everyday transactions and communicate with the world around us. These interactions and transactions are recorded and stored – constantly available for access by the individual and the company through which the service was used.

For example, the ubiquitous smartphone, above and beyond a communication device, is a device which can maintain a complete record of the communications data, photos, videos and documents, and a multitude of other deeply personal information, like application data which includes location tracking, or financial data of the user. As computers and phones increasingly allow us to keep massive amounts of personal information accessible at the touch of a button or screen (a standard smartphone can hold anything between 500 MB to 64 GB of data), the increasing reliance on computers as information-silos also exponentially increases the harms associated with the loss of control over such devices and the information they contain. This vulnerability is especially visceral in the backdrop of law enforcement and the use of coercive state power to maintain security, juxtaposed with the individual’s right to secure their privacy.

American Law - The Fourth Amendment Protection against Unreasonable Search and Seizure

The right to conduct a search and seizure of persons or places is an essential part of investigation and the criminal justice system. The societal interest in maintaining security is an overwhelming consideration which gives the state a restricted mandate to do all things necessary to keep law and order, which includes acquiring all possible information for investigation of criminal activities, a restriction which is based on recognizing the perils of state-endorsed coercion and its implication on individual liberty. Digitally stored information, which is increasingly becoming a major site of investigative information, is thus essential in modern day investigation techniques. Further, specific crimes which have emerged out of the changing scenario, namely, crimes related to the internet, require investigation almost exclusively at the level of digital evidence. The role of courts and policy makers, then, is to balance the state’s mandate to procure information with the citizens’ right to protect it.

The scope of this mandate is what is currently being considered before the Supreme Court of the United States, which begun hearing arguments in the cases Riley v. California,[1] and United States v Wurie,[2]on the 29^th of April, 2014. At issue is the question of whether the police should be allowed to search the cell phones of individuals upon arrest, without obtaining a specific warrant for such search. The cases concern instances where the accused was arrested on account of a minor infraction and a warrantless search was conducted, which included the search of cell phones in their possession. The information revealed in the phones ultimately led to the evidence of further crimes and the conviction of the accused of graver crimes. The appeal is for a suppression of the evidence so obtained, on grounds that the search violates the Fourth Amendment of the American Constitution. Although there have been a plethora of conflicting decisions by various lower courts (including the judgements in Wurie and Riley),[3] the Federal Supreme Court will be for the first time deciding upon the issue of whether cell phone searches should require a higher burden under the Fourth Amendment.

At the core of the issue are considerations of individual privacy and the right to limit the state’s interference in private matters. The fourth amendment in the Constitution of the United States expressly grants protection against unreasonable searches and seizure,[4]however, without a clear definition of what is unreasonable, it has been left to the courts to interpret situations in which the right to non-interference would trump the interests of obtaining information in every case, leading to vast and varied jurisprudence on the issue. The jurisprudence stems from the wide fourth amendment protection against unreasonable government interference, where the rule is generally that any warrantless search is unreasonable, unless covered by certain exceptions. The standard for the protection under the Fourth Amendment is a subjective standard, which is determined as per the state of the bind of the individual, rather than any objective qualifiers such as physical location; and extends to all situations where individuals have a reasonable expectation of privacy, i.e., situations where individuals can legitimately expect privacy, which is a subjective test, not purely dependent upon the physical space being searched.[5]

Therefore, the requirement of reasonableness is generally only fulfilled when a search is conducted subsequent to obtaining a warrant from a neutral magistrate, by demonstrating probable cause to believe that evidence of any unlawful activity would be found upon such search. A warrant is, therefore, an important limitation on the search powers of the police. Further, the protection excludes roving or general searches and requires particularity of the items to be searched. The restriction derives its power from the exclusionary rule, which bars evidence obtained through unreasonable search or seizure, obtained directly or through additional warrants based upon such evidence, from being used in subsequent prosecutions. However, there have evolved several exceptions to the general rule, which includes cases where the search takes place upon the lawful arrest of an accused, a practice which is justified by the possibility of hidden weapons upon the accused or of destruction of important evidence.[6]

The appeal, if successful, would provide an exception to the rule that any search upon lawful arrest is always reasonable, by creating a caveat for the search of computer devices like smartphones. If the court does so, it would be an important recognition of the fact that evolving technologies have transmuted the concept of privacy to beyond physical space, and legal rules and standards that applied to privacy even twenty years ago, are now anachronistic in an age where individuals can record their entire lives on an iPhone. Searching a person nowadays would not only lead to the recovery of calling cards or cigarettes, but phones and computers which can be the digital record of a person’s life, something which could not have been contemplated when the laws were drafted. Cell phone and computer searches are the equivalent of searches of thousands of documents, photos and personal records, and the expectation of privacy in such cases is much higher than in regular searches. Courts have already recognized that cell phones and laptop computers are objects in which the user may have a reasonable expectation of privacy by making them analogous to a “closed container” which the police cannot search and hence coming under the protection of the Fourth Amendment.[7]

On the other hand, cell phones and computers also hold data which could be instrumental in investigating criminal activity, and with technologies like remote wipes of computer data available, such data is always at the risk of destruction if delay is occurred upon the investigation. As per the oral arguments, being heard now, the Court seems to be carving out a specific principle applicable to new technologies. The Court is likely to introduce subtleties specific to the technology involved – for example, it may seek to develop different principles for smartphones (at issue in Riley) and the more basic kind of cell-phones (at issue in Wurie), or it may recognize that only certain kinds of information may be accessed,[8]or may even evolve a rule that would allow seizure, but not a search, of the cell phone before a search warrant can be obtained.[9] Recognizing that transformational technology needs to be reflected in technology-specific legal principles is an important step in maintaining a synchronisation between law and technology and the additional recognition of a higher threshold adopted for digital evidence and privacy would go a long way in securing digital privacy in the future.

Search and Seizure in India

Indian jurisprudence on privacy is a wide departure from that in the USA. Though it is difficult to strictly compartmentalize the many facets of the right to privacy, there is no express or implicit mention of such a right in the Indian Constitution. Although courts have also recognized the importance of procedural safeguards in protecting against unreasonable governmental interference, the recognition of the intrinsic right to privacy as non-interference, which may be different from the instrumental rights that criminal procedure seeks to protect (such as misuse of police power), is sorely lacking. The general law providing for the state’s power of search and seizure of evidence is found in the Code of Criminal Procedure, 1973.

Section 93 provides for the general procedure of search. Section 93 allows for a magistrate to issue a warrant for the search of any “document or thing”, including a warrant for general search of an area, where it believes it is required for the purpose of investigation. The particularity of the search warrant is not a requirement under S. 93(2), and hence a warrant may be for general or roving search of a place. Section 100, which further provides for the search of a closed place, includes certain safeguards such as the presence of witnesses and the requirement of a warrant before a police officer may be allowed ingress into the closed place. However, under S. 165 and S. 51 of the code, the requirements of a search warrant are exempted. S. 165 dispenses with the warrant requirement and provides for an officer in charge of a police station, or any other officer duly authorized by him, to conduct the search of any place as long as he has reasonable grounds to believe that such search would be for the purpose of an investigation and a belief that a search warrant cannot be obtained without undue delay. Further, the officer conducting such search must as far as possible note down the reasons for such belief in writing prior to conducting the search. Section 51 provides another express exception to the requirement of search warrants, by allowing the search of a person arrested lawfully provided that the arrested person may not or cannot be admitted to bail, and requires any such seized items to be written in a search memo. As long as these conditions are fulfilled, the police has an unqualified authority to search a person upon arrest. Therefore, where the arrestee can be admitted to bail as per the warrant, or, in cases of warrantless arrest, as per the law, the search and seizure of such person may not be regular, and the evidence so collected would be subject to greater scrutiny by the court. However, besides these minimal protections, there is no additional procedural protection of individual privacy, and the search powers of the police are extremely wide and discretionary. In fact, there is a specific absence of the exclusionary rule as a protection as well, which means that, unlike under the Fourth Amendment, the non-compliance with the procedural requirements of search would not by itself vitiate the proceedings or suppress the evidence so found, but would only amount to an irregularity which must be simply another factor considered in evaluating the evidence.[10]

The extent of the imputation of the Fourth Amendment protection against unreasonable governmental interference in the Indian constitution is also uncertain. A direct imputation of the Fourth Amendment into the Indian Constitution has been disregarded by the Supreme Court.[11]Though the allusions to the Fourth Amendment have mostly been invoked on facts where unreasonable intrusions into the homes of persons were challenged, the indirect imputation of the right to privacy into the right under Article 21 of the Constitution, invoking the right to privacy as a right to non-interference and a right to live with dignity, would suggest that the considerations for privacy under the Constitution are not merely objective, or physical, but depend on the subjective facts of the situation, i.e. its effect on the right to live with dignity (analogous to the reasonable expectation of privacy test laid down in Katz).[12] Further, the court has specifically struck down provisions for search and seizure which confer particularly wide and discretionary powers on the executive without judicial scrutiny, holding that searches must be subject to the doctrine of proportionality, and that a provision probable cause to effect any search.[13] The Fourth Amendment protection against unreasonable interference in private matters by the state is a useful standard to assess privacy, since it imputes a concept of privacy as an intrinsic right as well as an instrumental one, i.e. privacy as non-interference is a good in itself, notwithstanding the rights it helps achieve, like the freedom of movement or speech.

Regarding digital privacy in particular, Indian law and policy has failed to stand up to the challenges that new technologies pose to privacy and has in fact been regressive, by engaging in surveillance of communications and by allowing governmental access to digital records of online communications (including emails, website logs, etc.) without judicial scrutiny and accountability.[14] In an age of transformative technology and of privacy being placed at a much greater risk, laws which were once deemed reasonable are now completely inadequate in guaranteeing freedom and liberty as encapsulated by the right to privacy. The disparity is even more pronounced in cases of investigation of cyber-crimes which rely almost exclusively on digital evidence, such as those substantively enumerated under the Information Technology Act, but investigated under the general procedure laid down in the Code of Criminal Procedure, which is already mentioned. The procedures for investigation of cyber-crimes and the search and seizure of digital evidence require special consideration and must be brought in line with changing norms. Although S.69 and 69B lay down provisions for investigation of certain crimes,[15] which requires search upon an order by competent authority, i.e. the Secretary to the Department of IT in the Government of India, the powers of search and seizure are also present in several other rules, such as rule 3(9) of the Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011 which allows access to information from intermediaries by a simple written order by any agency or person who are lawfully authorised for investigative, protective, cyber security or intelligence activity; or under rule 6 of the draft Reasonable Security Practices Rules, 2011 framed under Section 43A of the Information Technology Act, where any government agency may, for the prevention, detection, investigation, prosecution, and punishment of offences, obtain any personal data from an intermediate “body corporate” which stores such data. The rules framed for investigation of digital evidence, therefore, do not inspire much confidence where safeguarding privacy is concerned. In the absence of specific guidelines or amendments to the procedures of search and seizure of digital evidence, the inadequacies of applying archaic standards leads to unreasonable intrusions of individual privacy and liberties – an incongruity which requires remedy by the courts and legislature of the country.

[1]. http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf

[2]. http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-212_86qd.pdf

[3]. In Wurie, the motion to supress was allowed, while in Riley it was denied. Also see US v Jacob Finley, US v Abel Flores-Lopez where the motion to suppress was denied.

[4]. The Fourth Amendment to the Constitution of the United States of America: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[5]. Katz v United States, 389 U.S. 347, 352 (1967).

[6]. Stephen Saltzer, American Criminal Procedure

[7]. United States v Chan, 830 F. Supp. 531,534 (N.D. Cal. 1993).

[8]. A factor considered in US v Abel Flores-Lopez, where the court held that the search of call history in a cell phone did not constitute a sufficient infringement of privacy to require the burden of a warrant.

[9]. The decision in Smallwood v. Florida, No. SC11-1130, before the Florida Supreme Court, made such a distinction.

[10]. State Of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593; Radhakrishnan v State of UP, 1963 Supp. 1 S.C.R. 408

[11]. M.P. Sharma v Satish Chandra, AIR 1954 SC 300

[12]. Kharak Singh v State of UP, (1964) 1 SCR 332; Gobind v State of Madhya Pradesh, 1975 AIR 1378

[13]. District Registrar and Collector v. Canara Bank, AIR 2005 SC 186, which related to S.73 of the Andhra Pradesh Stamps Act which allowed ‘any person’ to enter into ‘any premises’ for the purpose of conducting a search.

[14]. S. 69 and 69B of the Information Technology (Amendment) Act, 2008.

[15]. Procedures and Safeguards for Monitoring and collecting traffic data or information rules 2009, available at http://cis-india.org/internet-governance/resources/it-procedure-and-safeguard-for-monitoring-and-collecting-traffic-data-or-information-rules-2009

For more details visit https://cis-india.org/internet-governance/blog/search-and-seizure-and-right-to-privacy-in-digital-age

Sean McDonald - Ebola: A Big Data Disaster

sumandro — 2016-04-21T09:57:26Z

We are proud to initiate the CIS Papers series with a fascinating exploration of humanitarian use of big data and its discontents by Sean McDonald, FrontlineSMS, in the context of utilisation of Call Detail Records for public health response during the Ebola crisis in Liberia. The paper highlights the absence of a dialogue around the significant legal risks posed by the collection, use, and international transfer of personally identifiable data and humanitarian information, and the grey areas around assumptions of public good. The paper calls for a critical discussion around the experimental nature of data modeling in emergency response due to mismanagement of information has been largely emphasized to protect the contours of human rights.

Read

Download the paper: PDF.

Preface

This study titled “Ebola: A Big Data Disaster” by Sean Martin McDonald, undertaken with support from the Open Society Foundation, Ford Foundation, and Media Democracy Fund, explores the use of Big Data in the form of Call Detail Record (CDR) data in humanitarian crisis.

It discusses the challenges of digital humanitarian coordination in health emergencies like the Ebola outbreak in West Africa, and the marked tension in the debate around experimentation with humanitarian technologies and the impact on privacy. McDonald’s research focuses on the two primary legal and human rights frameworks, privacy and property, to question the impact of unregulated use of CDR’s on human rights. It also highlights how the diffusion of data science to the realm of international development constitutes a genuine opportunity to bring powerful new tools to fight crisis and emergencies.

Analysing the risks of using CDRs to perform migration analysis and contact tracing without user consent, as well as the application of big data to disease surveillance is an important entry point into the debate around use of Big Data for development and humanitarian aid. The paper also raises crucial questions of legal significance about the access to information, the limitation of data sharing, and the concept of proportionality in privacy invasion in the public good. These issues hold great relevance in today's time where big data and its emerging role for development, involving its actual and potential uses as well as harms is under consideration across the world.

The paper highlights the absence of a dialogue around the significant legal risks posed by the collection, use, and international transfer of personally identifiable data and humanitarian information, and the grey areas around assumptions of public good. The paper calls for a critical discussion around the experimental nature of data modelling in emergency response due to mismanagement of information has been largely emphasized to protect the contours of human rights.

This study offers an important perspective for us at the Centre for Internet and Society, and our works on Privacy, Big Data, and Big Data for Development, and very productively articulates the risks of adopting solutions to issues important for development without taking into consideration legal implications and the larger impact on human rights. We look forward to continue to critically engage with issues raised by Big Data in the context of human rights and sustainable development, and bring together diverse perspectives on these issues.

- Elonnai Hickok, Policy Director, the Centre for Internet and Society

CIS Papers

The CIS Papers series publishes open access monographs and discussion pieces that critically contribute to the debates on digital technologies and society. It includes publication of new findings and observations, of work-in-progress, and of critical review of existing materials. These may be authored by researchers at or affiliated to CIS, by external researchers and practitioners, or by a group of discussants. CIS offers editorial support to the selected monographs and discussion pieces. The views expressed, however, are of the authors' alone.

For more details visit https://cis-india.org/papers/ebola-a-big-data-disaster

SC directs govt to further regulate social media: Is it necessary? Experts weigh in

Geetika Mantri — 2019-09-30T14:28:10Z

With the SC's directive to the Indian government for further regulation of social media, TNM asked experts what were the challenges associated with the same.

The article by Geetika Mantri was published in the News Minute on September 28, 2019. Pranesh Prakash was quoted.

The Supreme Court recently expressed the need to regulate social media to curb fake news, defamation and trolling. It also asked the Union government to come up with guidelines to prevent misuse of social media while protecting users’ privacy in three weeks’ time.

The apex court made these statements while hearing a transfer petition by Facebook which has asked for petitions on regulation of social media filed in Madras, Bombay and Madhya Pradesh High Courts on similar issues to be transferred to the SC so that the scope can be expanded.

In India, social media platforms already come under the purview of the Information Technology (IT) Act, the ‘intermediaries guidelines’ that were notified under the IT Act in 2011 and the Indian Penal Code.

With the SC's directive to the Indian government for further regulation of social media, TNM asked experts what were the challenges associated with the same.

Existing regulations and misuse

Executive Director of the Internet Freedom Foundation (which is also an intervenor in the above case in SC) and lawyer Apar Gupta points out that under existing laws, social media channels are already required to take down content if they are directed to do so by a court or law enforcement.

There are also reporting mechanisms on these platforms, where they exercise discretion to ascertain whether a reported post is violating community guidelines and needs to be taken down. These, however, have been reported to be arbitrary – many posts on body positivity and menstruation, for instance, have been taken down in the past while other explicit imagery continues to be allowed.

“But it’s necessary to have minimum legal standards that need to be fulfilled to compel such take-downs on social media. If platforms had to take down posts based on individual complaints, it could result in many frivolous take-downs. Free speech should be the norm, and removal of content, the exception,” Apar argues.

IT consultant Kiran Chandra says that many of the existing regulations themselves are “dangerously close to censorship and may have a chilling effect on freedom of speech, which is why cases are being fought on those in courts.”

Even under existing regulations, there is scope for misuse - which has also been documented in the past - to curb dissent.

“One of the key problems of a lot of regulatory measures is the vagueness of language which is exploited by state agencies to behave in a repressive way,” Kiran says. “Any regulation has to be clear and concrete so that there is no scope for overreach."

Much of fake news is driven by politics

Fake news isn't exactly new, but its proliferation and extent have expanded manifold with social media.

Srinivas Kodali, an independent security researcher, says that it is not as though governments do not know where a good portion of fake news is coming from. “Most political parties have IT cells that dedicatedly work on creating and spreading fake news. But what is the Election Commission or anyone else doing to stop that?” he questions.

Kiran points out that this machinery exists with a view to gain electoral dividends. “There can be no countering fake news without taking on these structures and the political forces behind them,” he says.

He adds that social media giants also need to take responsibility. “Currently, considering the role social media companies play in the society, they are doing almost nothing [about fake news]. In fact, virality - and a lot of fake news tends to be viral - is the basis of the business model of many social media companies, including Facebook, and WhatsApp, which it owns. At the very least, these companies need to dedicate far more resources, and must provide more transparency into their functioning if any dent has to be made in countering fake news.”

Kiran also says that there is a need to support websites that bust fake news, and make people more aware of the need to verify news.

Defamation and online harassment

Experts say that when it comes to the SC’s observation that there should be redressal mechanisms for someone who has been ‘defamed’ on social media, the recourse is pretty clear-cut.

Pranesh Prakash, a fellow at the Centre for Internet and Society, says, “If it concerns defamation, it is very likely that the victim knows where the defamatory post has come from. Even if it is not an original message, the defamation law does not require you to find out the origin of such a message. Anyone who has put it, forwarded it, is liable.”

That being said, it is the social media giants that need to pick up the slack when it comes to dealing with targeted harassment and online bullying.

It has been reported earlier that Facebook, due to its lack of understanding of the Indian context as well as diversity, often fails in effectively removing hate speech from the platform in India. Facebook's community guidelines are unavailable in several Indian languages too.

Kiran says that while there already exist legal provisions for dealing with offensive speech, the problem is that they are either misused or underused. “Critics of the government get hit with these cases unreasonably while many who engage in hate speech and abuse are followed by the most powerful people in the country. Here again, social media firms need to massively increase the resources they spend on weeding out such content.”

Privacy and surveillance concerns

Any conversation on additional regulation of social media brings up concerns about privacy and surveillance.

Apar says if regulators want easy access to user information for curbing misuse, spread of fake news and the like, it would require online platforms to modify their products to increase surveillance - to have exact details about who said what, when and about whom. “This is why it’s important for legal standards and conditions for accessing user information to be followed. Government also needs to become more accountable on what information on users they are demanding from social media companies.”

Kiran cautions that “any bid at regulating expression online has to be proportional and concrete with adequate redressal mechanisms and without any blanket provisions.”

“We need strong data protection and privacy laws which restrict the scope of these companies and reduce their footprint online,” he adds, referring, for instance to Facebook's monopoly - the company also owns Instagram. “Similarly, the role they play in elections and political processes as a whole, needs to be checked.”

Srinivas points out that ultimately, social media is a reflection of what is happening in the society: “If there is no rule of law offline, it won’t be there online.”

For more details visit https://cis-india.org/internet-governance/news/the-news-minute-geetika-mantri-september-28-2019-sc-directs-govt-to-further-regulate-social-media

Sameet Panda - Impact of the JAM Trinity on Pension & PDS in Odisha during COVID-19

sumandro — 2021-02-26T06:45:00Z

For more details visit https://cis-india.org/raw/sameet-panda-impact-of-the-jam-trinity-on-pension-pds-in-odisha-during-covid-19

Sameet Panda - Data Systems in Welfare: Impact of the JAM Trinity on Pension & PDS in Odisha during COVID-19

Sameet Panda — 2021-02-26T07:36:10Z

This study by Sameet Panda tries to understand the integration of data and digital systems in welfare delivery in Odisha. It brings out the impact of welfare digitalisation on beneficiaries through primary data collected in November 2020. The researcher is thankful to community members for sharing their lived experiences during course of the study. Fieldwork was undertaken in three panchayats of Bhawanipatna block of Kalahandi district, Odisha. Additional research support was provided by Apurv Vivek and Vipul Kumar, and editorial contributions were made by Ambika Tandon (Senior Researcher, CIS). This study was conducted as part of a project on gender, welfare, and surveillance, supported by Privacy International, UK.

Report: Download (PDF)

Extract from the Report

The COVID-19 pandemic has accelerated flaws in social institutions as never before - threatening food security, public health systems, and livelihood in the informal sector. At the time of writing this report, India is the second-worst affected country in the world with over 9.8 million confirmed cases and more than 1.4 hundred thousand deaths. Unemployment has been increasing at an alarming rate, from 6.67 to 7 percent in October...

Following the national lockdown, many families belonging to low-income groups and daily wage earners found themselves stranded without money, food or credit from their employers. During the strict lockdown of the economy between March to June 2020 lakhs of migrants faced starvation in cities and walked back home. The government responded with some urgent measures, although inadequate. To cope with the food and economic crisis the Government of India and state governments initiated several social protection schemes. In Odisha, The central government provided two kinds of support, cash transfer through Direct Benefit Transfer (DBT) MGNREGS, Pradhan Mantri Jan Dhan Yojana (PMJDY) and Pradhan Mantri Ujjwala Yojana (PMUJ), advance release of pension in cash to existing beneficiaries and cash support of Rs. 1000. The Odisha government provided cash support of Rs. 1000 to ration card holding families. Beneficiaries of the Public Distribution System also received free-of-cost food grain under the Pradhan Mantri Garib Kalyan Anna Yojana...

Over the last couple of years, along with making the Aadhaar mandatory, the government has also been working towards linking mobile numbers and bank accounts of beneficiaries. An increasing number of schemes are shifting to Direct Benefit Transfer from in-kind or cash benefits - 324 schemes under 51 ministries of the Government of India. Such schemes are relying on the linkage of Jan Dhan accounts, the Aadhaar, and mobile numbers (the “JAM trinity”) to facilitate access to Direct Benefit Transfers. The Economic Survey 2015-16 has pointed out that without improving mobile penetration and rural banking infrastructure making the JAM trinity mandatory would continue to lead to exclusions. The issues with each of the components of the JAM trinity worsened during the COVID-19 crisis with restrictions on physical movement, difficulties in topping up mobile phone accounts, and enrolling for the Aadhaar or addressing other technical issues.

This report assesses the role of the data system in welfare delivery. It focuses on the impact of the three components of the JAM trinity - Jan Dhan Account, mobile numbers and the Aadhaar on Direct Benefit Transfer, social security pension and the Public Distribution System. The objective of this study is to understand the challenges faced by beneficiaries in accessing PDS and pension as a result of digitisation processes. This includes failures in Direct Benefit Transfers and exclusions from databases, particularly during the COVID-19 pandemic. The study focuses on gender as a key component shaping the impact of digitisation on beneficiaries. The sample includes both men and women beneficiaries in order to identify such gendered differences. It will also identify infrastructural constraints in Odisha that impact the implementation of digital systems in welfare. Also, it will analyse policy frameworks at central and state levels, to compare their discourse with the impact on the ground.

For more details visit https://cis-india.org/raw/sameet-panda-jam-trinity-pension-pds-odisha-covid-19

Sales of surveillance cameras are soaring, raising questions about privacy

Admin — 2018-10-16T14:22:55Z

The Telangana government wants more eyes on the streets to upgrade Hyderabad’s safety. It has asked enterprises, public sectors, residential associations and individuals to install closed-circuit television cameras (CCTVs) in and around their premises.

The article by Rahul Sachitanand was published in Economic Times on October 14, 2018. Elonnai Hickok was quoted.

More than a lakh CCTVs are expected to be installed across the city in the next few years. The initiative is part of the Nenu Saitham (Telugu for Me Too) project — being promoted by Hyderabad Police, which will monitor the feed. To ensure that lowquality CCTVs are not installed and the project is sustainable, the police has asked citizens to only buy from selected vendors.

With this move, launched in November 2017, the Telangana govt joins a growing list of governments, corporations, educational institutes, residential buildings and small businesses across the country that are buying such technology.

According to industry estimates, over a million surveillance units were sold every month a couple of years ago. Now it is two million. The Indian market is growing 20-25% annually, say experts. Frost & Sullivan says the security & surveillance market was worth Rs 8,200 crore in FY2017, reached Rs 11,000 crore in FY2018 and is expected to touch Rs 20,000 crore in FY2020.

The rise in CCTV coverage can also be observed anecdotally. There’s a steady uptick in CCTV clips circulating on Whatsapp, capturing crimes or funny events that would otherwise have gone undocumented. Many of the sensational crimes recently, including multiple incidents of murder in Tamil Nadu, were captured on CCTV cameras, distilling the pure horror of those moments on our mobile screens, and also offering valuable proof to nail the culprits.

The surveillance and security boom is fed by several companies, ranging from homegrown firms such as CP Plus to joint ventures such as Prama Hikvision to multinationals such as Bosch, Panasonic, Honeywell and Axis. The Telangana project, for example, helped Sweden-based Axis Communications widen its India market. It has already installed 1,500 cameras, and more will be installed soon. Other state governments have or are in the process of placing orders.

The Swedish company says it recently installed cameras and associated technology across a range of large corporate and government establishments across India. “We are at the beginning of a five-year boom cycle for these devices,” says Sudhindra Holla, sales director (India & Saarc), Axis Communications. “We are catering to a rush of orders ranging from large companies with complex security infrastructure to deals from government agencies in small towns such as Nanded and Kolhapur.”

Multiple factors are driving the growth in the CCTV segment, says Manu Tiwari, programme manager (automation and electronics practice), Frost and Sullivan. A strong government push to enhance security; purchases for initiatives such as the Smart City project, which covers 100 cities, and the Rs 2,219 crore allocated under the Nirbhaya Fund for women’s safety, which covers eight cities, are some of the growth drivers.

According to Sanjay Kaushik, managing director of security consultancy Netrika Consulting, there is a push to better use CCTV feeds to improve security across India. “While the focus hitherto has been on post facto scouting of footage to find perpetrators, organisations are now trying to be more proactive with their monitoring to spot suspicious people and packages before crimes occur.”

This could involve closely looking at footage to spot suspicious movements at places such as malls or airports or using technology to spot suspicious objects left unattended for long periods. Then, there’s also a focus on making sure the cameras are installed correctly. “Recognisability is key. Organisations are being pushed to ensure simple things like camera feeds are free of obstructions, licence plates are visible in feeds and there is adequate lighting,” adds Kaushik. Advances in technology have ensured that CCTV systems are cheaper and more accessible.

While large enterprises had taken to such technology earlier, even smaller commercial establishments and private residents now can afford to install security systems. The prices have practically halved over the last couple of years. An entry-level camera is now available for a little over Rs 2,000. “Even the cost of an integrated solution, which was as much as Rs 40,000 to Rs 50,000 three or four years ago, is today available for as little as Rs 15,000,” says Yogesh Dutta, COO of New Delhi-based CP Plus. “A rapid increase in the number of CCTVs sellers and technicians has also helped widen access.” The devices have become popular as it helps law enforcers to tackle crime, he adds.

CP Plus’s customers include Vedanta Power and Odisha Police, which has also decided to use e-surveillance to enhance security. Frost and Sullivan says small & medium enterprises and large corporations were together the biggest end-user segments in FY18. This segment had a market share of 33%. Residential had a 28% market share; the industrial segment had 18% and the government 13%, it said. Other major end-user segments are hospitality, education and healthcare.

An increase in such surveillance, however, may be double-edged, say privacy advocates. While a blanket coverage using CCTVs may give citizens a feeling of security, India’s rudimentary legislation around who can access these feeds is a problem. Some countries such as the UK and UAE have stricter guidelines on this. Law-enforcement agencies can access such feeds while following up on their investigations, says Supreme Court lawyer Karnika Seth, without procuring a warrant. “As long as it is for this purpose, it is within the purview of the law. However, with the new judgment on privacy, anything more would be a no-go area.”

The use of CCTV can potentially impinge on the rights of an individual, says Elonnai Hickok, who heads privacy research at the Centre for Internet and Society, an advocacy outfit in Bengaluru. “Technically speaking, the feed can reveal personal information about an individual, including identity, location and daily patterns. Because the feed captures individuals in public spaces, it is not possible for people to have an opt-out option. The access and use of the data are often unclear.” Regulations are starting to address the use of CCTV imagery in some places. The European Union’s General Data Protection Regulation, for example, has recognised that imagery that identifies an individual is personal data and thus requires lawful, fair and transparent processing.

The draft data protection bill by the Srikrishna committee also says CCTV imagery would be considered personal data. If CCTV cameras are put in place by a private actor, Hickok contends, they would need to adhere to the principles laid out in chapters II and III of the draft — which covers fair and reasonable processing, purpose limitation, collection limitation, lawful processing, notice, data quality, data storage limitation, accountability and consent.

For feeds used by the state for reasons such as public safety, the consent clause will not apply. But state actors will still need to adhere to the principles laid out in chapter II. If CCTVs are used for the purpose of prevention, detection, investigation and prosecution of a crime, it will be exempt from adhering to the requirements of the bill. However, this use must be backed by a law passed in Parliament and the data cannot be retained once its purpose has been met.

There are more legal restrictions if the CCTV application is integrated with capabilities that capture biometrics. "Clear responsibilities and reasons should be enunciated, the policies should be clearly documented and publicised and, importantly, the cost and benefits should be ascertained," Hickock argues. ¡§It is important to have technical safeguards like encryption and procurement guidelines.

Legal and privacy issues aside, the commercial aspect is clearly looking bright. Prama Hikvision, a Chinese-Indian joint venture, has invested Rs 100 crore in a factory in Bhiwandi to make 500,000 cameras a month. A second factory, possibly in Telangana, is expected to go on stream soon, with a monthly capacity of 1,50,000 units. "CCTVs have gone from being used by a sliver of companies, primarily banks and jewellers, to being adopted by a much broader audience," says Ashish Dhakan, MD and CEO, Prama Hikvision. "Our client list includes companies in the sectors of transportation, power, petroleum, oil and gas and retail."

Another trend market players have spotted is a shift from analog, which used tapes to record footage, to digital systems, where recording time and storage space are not major constraints. "We see continuous enhancement to megapixel (displays) from lowresolution, improved compression technology. This allows more data, more storage capacity, and overall lowering of cost for storage recording devices," says Sharad Yadav, general manager, Honeywell Building Technologies, India. Frost and Sullivan analyst Tiwari lists emerging offerings - including intelligent video surveillance, wireless systems and higher resolution of visuals - as features that will define the next-generation devices.

But digital also comes with some dangers. As CCTV cameras go from standalone devices to being digital and connected ones, experts say there is a risk of hacking. Hackers may also be able to use the network as a gateway. This could give hackers access to much more than just the camera feed. "Cybersecurity is a constant focus for us," says Holla of Axis Communications. "While no camera is hackproof, we believe we have built enough capabilities to react to these hacks and quickly release patches to secure them."

Others such as Hickok of CIS say more safeguards are required. "Technical safeguards like encryption and procurement guidelines are also important, as has been highlighted by the UK Information Commissioner's Office," she says. Keeping the cameras safe may be as important as safeguarding the lives these devices monitor.

For more details visit https://cis-india.org/internet-governance/news/economic-times-rahul-sachitanand-october-14-2018-sales-of-surveillance-cameras-are-soaring-raising-questions-about-privacy

RTI on Officials and Agencies Authorized to Intercept Telephone Messages in India

praskrishna — 2013-07-15T05:23:54Z

In an RTI mailed on April 17, 2013, the Centre for Internet and Society sought comprehensive information on the officials and agencies authorized to intercept telephone messages in India.

A portion of the RTI still awaits response, as it was redirected to the Department of Electronics and Information Technology. But on May 23, 2013 Rakesh Mittal of the Ministry of Home Affairs responded in brief and directed us to the 2007 Amendment to the 1885 Indian Telegraph Act.

Referring to rule 419-A of the amendment and the Ministry of Home Affairs website, we find that within central government the power to order communications surveillance is normally reserved for Union Home Secretary, a position held by Shir Anil Goswami as of June 30, 2013 (previously R.K. Singh). The amendment goes on to say, “In unavoidable circumstances,” however, such an order can be commanded by a Joint Secretary who has been authorized by Union Home Secretary Goswami. On the federal level, the Ministry of Home Affairs includes nearly 20 such Joint Secretaries able to be authorized for making interception commands.

A listing of the original question requests are given below:

Please provide a list containing name, rank and office address of the officers/agencies authorized by the Central Government to issue an order for interception under section 5(2) of the Telegraph Act, 1885
Please provide a list containing name, rank and office address of the officers authorized to issue interception orders under Rule 419A(1) of the Telegraph Rules, 1951 in unavoidable circumstances when such orders cannot be issued by the secretary to the Government of India, Ministry of Home Affairs.
Please provide a list containing the name, rank and office address of the officers/agencies designated as “competent authority” in terms of the Rule 419A(1) proviso of the Telegraph Rules, 1951.
Please provide a list of the agencies authorized by the Central Government to intercept, monitor, decrypt any information generated, transmitted, received or stored in any computer resource under section 69(1) of the Information Technology Act, 2000.
Please provide a list of the agencies authorized by the Central Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource under section 69-B of the Information Technology Act, 2000.
Please provide a list containing name, rank and office address of the officers/agencies authorized to issue interception orders under Rule 3, first proviso, of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
Please provide a list of the agencies authorised to intercept, monitor, decrypt any information generated, transmitted, received or stored in any computer resource under Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009.

For more details visit https://cis-india.org/internet-governance/resources/rti-on-officials-and-agencies-authorized-to-intercept-telephone-messages-in-india

Roundtable on Indian Privacy Law and Policy

bhairav — 2014-12-27T14:18:16Z

This event was hosted by the Centre for Law and Development of the National University of Advanced Legal Studies (NUALS) in Kochi. It was attended by members of the faculty of NUALS, some students from the 2nd year, 3rd year, 4th year, and 5th year.

The meeting began with a talk by Bhairav Acharya on the origin of privacy law, its jurisprudential evolution, and the current context in which privacy is being debated in India and around the world.

Bhairav began by talking about the nature of privacy law around the world. Privacy has, until recently, never been a right in English common law. Indeed, the tort of invasion of privacy is also relatively incomplete. Privacy is protected through other torts, including the torts of nuisance, trespass, and others. European treaty requirements have foisted a right to privacy upon the British legal system; the contours of this right remain unclear.

American courts, on the other hand, have been more receptive to claims of the right to privacy. There is much in the American political and legal tradition that has contributed to the easy acceptability of privacy claims. Not least among these are the strong emphasis on the individual as the fundamental unit of governance and sovereignty, and the American libertarian tradition of autonomy.

Bhairav then spoke of the right to privacy in India. Early cases in the Supreme Court of India see privacy as a negotiation between the liberties of citizens and the power of the state. In a legal tradition deeply influenced by colonialism, Indian courts readily accepted claims against physical police surveillance and other related rights in the criminal justice process – public rights against the state that were once denied to Indian subjects of colonial rule, but held short of viewing privacy as a necessary individual protection against society. This has resulted in dichotomous privacy jurisprudence.

Bhairav then talked about the contexts in which privacy claims arise in India today. Specifically, he spoke about increasingly sophisticated surveillance techniques and large-scale personal data collection and processing. There are many complexities in both these fields and a lot of time and questions were spent going over them. Surveillance is older than the nation-state; privacy law does not seek the end of surveillance, but only its optimal use. There are many kinds of surveillance, the contemporary debate deals solely with wiretapping and electronic surveillance. Privacy law cannot be blind to the many other kinds of surveillance, including old-fashioned physical surveillance on the road.

Data collection, too, cannot be ended, nor should it for it forms the basis of modern commerce and is tied to India’s economic growth. There were questions and discussion on ‘big data’, data mining, analytics, business models, and other related areas. In India, however, in the absence of an innovative IT industry, the dominant business model is of receiving foreign personal data, usually of Europeans and Americans, to provide cheap processing services. This model depends entirely on comparatively lower Indian wages. Hence, it is not surprising that the first personal data protection rules issued by the Indian government in 2011 applied solely to foreign data that was outsourced to India.

Bhairav then introduced the 2011 draft Right to Privacy Bill that was proposed by the Department of Personnel and Training of the Indian government, as well as the Personal Data Protection Rules issued under the Information Technology Act, 2000. These measures were studied clause-by-clause.

Similarly, Indian law in respect of communications surveillance was analysed in detail. The Indian Telegraph Act 1885, the Indian Telegraph Rules 1951 (including the amendments of 1961, 1999, 2007, and 2014) were looked at in detail. These laws were compared to the Indian Post Office Act 1898 and the Information Technology Act 2000. The 1968 report of the Law Commission of India that examined the wiretapping power and suggested possible overreach was also examined.

Bhairav reviewed Indian law in respect of wiretapping. All Supreme Court case law, especially the cases of Hukum Chand and Peoples Union for Civil Liberties, were analysed. Finally, the group looked at how the legal principles applicable to wiretapping have been extended to electronic and Internet surveillance. Over here, the group studied the two sets of 2011 Rules under the IT Act that enable Internet and email surveillance of both content and metadata.

After a lunch break, the group spoke about possible models for privacy regulation and protection in India. In respect of surveillance, a lot of time was spent discussing the merits and demerits of judicial warranting of surveillance, as opposed to executive authorisations. The consensus of the group, with a few exceptions, was that judicial warranting would not be a suitable model for Indian surveillance, due to several systemic weaknesses. The group also rejected several of the principles proposed by Justice A. P. Shah in the 2012 Report that was commissioned by the Planning Commission.

After a discussion on legislative models, the group discussed, clause-by-clause, the CIS proposal on privacy that was read through by Bhairav. This discussion lasted several hours, and covered many areas.

For more details visit https://cis-india.org/internet-governance/blog/roundtable-on-indian-privacy-law-and-policy

Role of the US Tech Companies in Government Surveillance: A Lecture by Christopher Soghoian

praskrishna — 2012-08-26T11:03:19Z

Christopher Soghoian will deliver a lecture on the role US tech companies play in assisting government surveillance at the Centre for Internet & Society office in Bangalore on August 27, 2012, from 5.00 p.m. to 7.00 p.m.

Your internet, phone and web application providers are all, for the most part, in bed with US and other foreign government agencies. They all routinely disclose their customers' communications and other private data to law enforcement and intelligence agencies. Worse, firms like Google and Microsoft specifically log data in order to assist the government. How many government requests does your ISP get for its customers' communications each year? How many do they comply with? How many do they fight? How much do they charge for the surveillance assistance they provide? Who knows? Most companies have a strict policy of not discussing such topics.

The differences in the privacy practices of the major players in the telecommunications and internet applications market are significant. Some firms retain identifying data for years, while others retain no data at all; some voluntarily provide the government access to user data, while other companies refuse to voluntarily disclose data without a court order; some companies charge government agencies when they request user data, while others disclose it for free. For an individual, later investigated by the police or intelligence services, the data retention practices adopted by their phone company or email provider can significantly impact their freedom.

Unfortunately, although many companies claim to care about end-user privacy, and some even that they compete on their privacy features, none seem to be willing to compete on the extent to which they assist or resist the government in its surveillance activities. Because information about each firms' practices is not publicly known, consumers cannot vote with their wallets, and pick service providers that best protect their privacy.

This talk will pierce the veil of secrecy surrounding these practices. Based upon a combination of Freedom of Information Act requests, off the record conversations with industry lawyers, and investigative journalism, the practices of many of these firms will be revealed.

Christopher's Personal Experience

In the year 2006, the Federal Bureau of Investigation (FBI) raided Christopher’s home at 2.00 a.m. seizing his personal documents and computers. Two attorneys, Stephen Braga and Jennifer Granick came to his defence. With their expert assistance, Christopher was able to get back his possessions within three weeks, and FBI’s criminal and TSA’s civil investigations were closed without any charges being filed.

Jennifer Granick came to Christopher’s assistance once again (joined by Steve Leckar) in 2010 after the Federal Trade Commission’s Inspector General investigated Christopher for using his government badge to attend a closed-door surveillance industry conference. It was at that event that Christopher recorded an executive from wireless carrier ‘Sprint’ bragging about the eight million times his company had obtained GPS data on its customers for law enforcement agencies in the previous years.

To know more, read Christopher Soghoian’s dissertation titled "The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance". [PDF, 1056 Kb]

About Christopher Soghoian

Christopher Soghoian is a privacy researcher and activist, working at the intersection of technology, law and policy. He is a Principal Technologist and Senior Policy Analyst at the American Civil Liberties Union and is based in Washington, D.C.

Soghoian completed his Ph.D. at Indiana University in 2012, which focused on the role that third party service providers play in facilitating law enforcement surveillance of their customers. In order to gather data, he has made extensive use of the Freedom of Information Act, sued the Department of Justice pro se, and used several other investigative research methods. His research has appeared in publications including the Berkeley Technology Law Journal and been cited by several federal courts, including the Ninth Circuit Court of Appeals.

Between the years, 2009-2010, he was the first ever in-house technologist at the Federal Trade Commission's Division of Privacy and Identity Protection, where he worked on investigations of Facebook, Twitter, MySpace and Netflix. Prior to joining the FTC, he co-created the Do Not Track privacy anti-tracking mechanism now adopted by all of the major web browsers.

He is a TEDGlobal 2012 Fellow, was an Open Society Foundations Fellow between the years, 2011-2012, and was a Student Fellow at the Berkman Center for Internet & Society, Harvard University between 2008 and 2009.

For more details visit https://cis-india.org/internet-governance/role-of-us-tech-companies-in-govt-surveillance

RIM Offered Security Fixes

praskrishna — 2011-04-02T10:24:12Z

In India Talks, BlackBerry Maker Said It Could Share Metadata, Notes Show

Research In Motion Ltd. has offered information and tools to help India conduct surveillance of wireless email and messaging services on RIM's popular BlackBerry, say people familiar with the negotiations, illuminating RIM's dealings as it seeks to balance sovereign security concerns with its customers' privacy.

In a series of discussions that intensified this summer, RIM offered to provide crucial information that would help the Indian government track down messages sent via the company's popular and encrypted corporate email service, according to those familiar with the confidential talks and to minutes of meetings reviewed by The Wall Street Journal.

In a July 26 meeting, RIM representatives told Indian officials "they have a setup to help the security agencies in tracking the messages in which security agencies are interested," according to an Indian government summary of the meeting.

The Waterloo, Ontario, company has become an industry leader in part on the strength of a secure technology that offers information privacy to customers. But as RIM seeks to expand, it is grappling with how its promise of user confidentiality is encountering resistance from governments around the globe.

RIM's challenge, along with Google Inc.'s face-off with China over censorship issues, illustrates the growing tensions between Western technology giants, who seek to woo millions of emerging-market consumers with increasingly sophisticated technology, and governments that are trying to maintain security in the face of it.

The stakes are high in India, the world's No. 2 wireless market, behind China, with 635 million subscribers. Emerging economies are vital to RIM as its smartphones face competition in North America from Apple Inc.'s iPhone and devices that run on Google's Android software. RIM's new international subscribers for the first time outnumbered new North American subscribers in the quarter that ended Feb. 27, according to brokerage GMP Securities.

Discussions between RIM and India took a public turn Thursday when India's government threatened to block some BlackBerry services from the country's telecommunications networks unless the services could be opened to surveillance by Aug. 31. On Friday, an Indian government official said RIM had assured India it would meet the deadline.

A spokesman for RIM in India declined to comment on negotiations with India. Sachin Pilot, India's Minister of State for Communications and Information Technology said Friday there are promising signs that the company is willing to cooperate, but there's no deal "until I have something in writing."

RIM has come under scrutiny in recent months amid contentious negotiations with countries including the United Arab Emirates and Saudi Arabia, which have also sought to monitor BlackBerry services for threats to national security.

A person familiar with the negotiations in the U.A.E. said officials in the region believed RIM had been holding back from them technological solutions that had been offered to Western governments, specifically in regards to BlackBerry Messenger.

RIM declines to discuss its negotiations with governments and didn't comment on negotiations in India and other countries.

In a statement issued Thursday, RIM outlined its guidelines for how far it is willing to go in helping carriers meet surveillance needs. RIM said it will only help carriers meet strict national-security rules, won't provide more access than its competitors already do and won't alter the security architecture of its corporate email servers in response to government needs.

"RIM maintains a consistent global standard for lawful access requirements that does not include special deals for specific countries," the statement said.

Governments are pressuring RIM to comply with their demands for information in part because unlike other smartphone vendors, it operates its own network of servers, the biggest of which is in Canada, outside their monitoring reach and jurisdiction.

That contrasts with devices such as the iPhone, which don't operate their own email services. Governments generally have laws that allow them to monitor traffic on mobile and computer networks operating within their own countries.

Talks between RIM and various countries have centered mostly on data routed through the company's system for corporate emails, BlackBerry Enterprise Server, and its instant-messaging service, BlackBerry Messenger, whose high levels of encryption can prevent government monitors from deciphering content or determining sender or recipient. RIM has said that even it can't decrypt BlackBerry corporate emails.

India's security services argue they need access to selected emails to ward off criminal and terrorist threats. "In terms of our issues of national security, any responsible government would not want to compromise," said Mr. Pilot, the communications minister. "I don't think what we are asking is out of the ordinary vis-à-vis other countries."

Security and technology experts say each country has different surveillance needs, technology infrastructures and laws governing how security forces and police can access data. It is generally Internet service providers and telecommunications carriers that must implement the country's monitoring regime, and the kinds of help RIM gives carriers in doing that varies with each nation, says a person familiar with RIM's operations.

According to minutes taken by the Indian side, the parties discussed whether RIM could provide "metadata" from encrypted corporate emails—information such as the email's sender and recipient and the time sent. "After some persuasion, the [RIM] representative agreed that they can provide the metadata of the message," according to an Indian summary of one discussion.

Cyber-security experts say such metadata would give government intelligence services important leads to locate BlackBerry traffic on corporate email servers, where messages are in decrypted form. It wasn't clear under what circumstances RIM would agree to divulge such information.

In the meetings, RIM also promised to develop tools to help Indian authorities tap into third-party Internet chat services, such as Google's Gmail, that run on its handsets, according to the meeting minutes. It isn't clear whether or how RIM has proposed to help security officials decode BlackBerry Messenger.

RIM also appears to have put itself in a role of educating Indian officials over the operation of its network and on network security in general, suggesting to officials that emails that aren't subject to heavy corporate encryption can be viewed with assistance from local carriers.

Governments that have been reviewing their data-access arrangements with RIM have been sharing information with each other, said an official in the region with knowledge of the Indian negotiations.

The U.A.E. and Saudi Arabia, the Middle East's largest economies, upped their ante with RIM weeks before India did. Both countries have been negotiating with RIM for the same kinds of access to data that India wants, but people familiar with talks in the Gulf countries say they have been acrimonious.

Government officials say RIM has taken a condescending attitude to developing countries' security demands, and say they believe the company was holding out on solutions to access information, such as on BlackBerry Messenger, that had been offered to other countries.

"They refuse to listen to us," said a person familiar with the negotiations. "It's like we aren't speaking the same language."

Anger boiled over last month with the U.A.E. announcing a ban on BlackBerry email, Internet and instant-messaging services from Oct. 11, citing a lack of progress in more than three years of negotiations. Saudi Arabia followed with a threatened ban on BlackBerry Messenger.

Tensions were fueled when RIM co-CEO Michael Lazaridis said in an interview earlier this month with The Wall Street Journal that many of the nations the company deals with aren't tech-savvy and don't understand the Internet. "We work with these countries to educate them," he said.

Negotiations between the U.A.E. and RIM are ongoing. The government says it remains optimistic of a solution. In Saudi Arabia, telecommunications regulators announced earlier this week that RIM had offered them a technical fix that would let them access data from BlackBerry Messenger.

In RIM's home country of Canada, the U.S. and other countries, police and security agents typically must get a court order to gain access to things like the content of emails.

India's regulations in this area are murky. An 1885 law that has been updated over the years allows the government to intercept Internet traffic "on the occurrence of any public emergency." A 2008 law gives bureaucrats in various agencies the authority to order monitoring of any entity's Web traffic, though the matter can be challenged in court.

It remains unclear whether RIM's promise to provide metadata to corporate messages will be enough to satisfy India's concerns. A more drastic solution, says Sunil Abraham of the Bangalore-based Center for Internet and Society, would be for the government to require RIM to build a BlackBerry data center within India—something that could cost tens of millions of dollars, people familiar with the matter say—and then classify the company as an Indian Internet service provider.

Such a move would put India on stronger legal footing, analysts say, to demand data from RIM as well as companies whose employees use BlackBerrys. Under such a scenario, "the government would be allowed to get a room inside RIM and install whatever machines they want to monitor that traffic," Mr. Abraham said.

It wasn't clear from the government documents summarizing the meetings between RIM and the government whether such an option is being considered. The company would vehemently oppose such a classification, people familiar with the situation say. In the U.A.E, RIM has balked at the government's request that it set up a local data center, people familiar with those negotiations said.

Read the original in Wall Street Journal

For more details visit https://cis-india.org/news/rim-offered-security-fixes

RightsCon 2014

praskrishna — 2014-04-08T05:04:09Z

RightsCon Silicon Valley 2014 was an incredible mixture of more than 700 attendees from more than 65 countries and 375 institutions. Pranesh Prakash and Malavika Jayaram were speakers at this event organized by RightsCon at San Francisco on March 3 and 4, 2014.

This incredible union of expertise has led to real outcomes, many of which are viewable here or as a PDF report here. Missed a session? A special thanks to all our speakers and sponsors who made 2014 so smart and productive.

Missed a session in San Francisco? Many of the videos are available for viewing. To learn more about past RightsCon conferences, head here.

Even as we continue to work diligently on the the work generated from RightsCon Silicon Valley 2014, we are looking ahead to 2015 and Southeast Asia, where we will convene civil society and key decision-makers in this rapidly evolving region. Click here to learn more about the planning for RCSEA2015.

Pranesh was invited to be on five panels, and spoke in three.

He spoke in the following sessions:

March 3 from 14:00-15:15 - Nicolas Seidler's panel on "Localizing the Global Internet: Data Centers, Traffic Rerouting, and the Implications of Post-Surveillance Policy Proposals"

March 4 from 12:00-13:15 - Paul & Bertrand's panel on "Internet and Jurisdiction: How Can Heterogenous Laws Coexist in Cross-Border Online Spaces?"

March 4 from 14:30-15:45 - Amie Stepanovich's panel on "The NSA Strikes Back: Who Really Won the Crypto Wars?"

He was also invited to the following panels:

"Toward Accountability: Reflecting on ICT Industry Action To Protect User Rights"

"Policy Laundering: Hacking the International Innovation Policy Machine"

For more info on the conference, click here. For the full list of speakers, see here.

Video

For more details visit https://cis-india.org/news/rights-con-2014

Right to Privacy in Peril

vipul — 2015-08-13T15:32:18Z

It seems to have become quite a fad, especially amongst journalists, to use this headline and claim that the right to privacy which we consider so inherent to our being, is under attack. However, when I use this heading in this piece I am not referring to the rampant illegal surveillance being done by the government, or the widely reported recent raids on consenting (unmarried) adults who were staying in hotel rooms in Mumbai. I am talking about the fact that the Supreme Court of India has deemed it fit to refer the question of the very existence of a fundamental right to privacy to a Constitution Bench to finally decide the matter, and define the contours of such right if it does exist.

In an order dated August 11, 2015 the Supreme Court finally gave in to the arguments advanced by the Attorney General and admitted that there is some “unresolved contradiction” regarding the existence of a constitutional “right to privacy” under the Indian Constitution and requested that a Constitutional Bench of appropriate strength.

The Supreme Court was hearing a petition challenging the implementation of the Adhaar Card Scheme of the government, where one of the grounds to challenge the scheme was that it was violative of the right to privacy guaranteed to all citizens under the Constitution of India. However to counter this argument, the State (via the Attorney General) challenged the very concept that the Constitution of India guarantees a right to privacy by relying on an “unresolved contradiction” in judicial pronouncements on the issue, which so far had only been of academic interest. This “unresolved contradiction” arose because in the cases of M.P. Sharma & Others v. Satish Chandra & Others,[1] and Kharak Singh v. State of U.P. & Others,[2] (decided by Eight and Six Judges respectively) the Supreme Court has categorically denied the existence of a right to privacy under the Indian Constitution.

However somehow the later case of Gobind v. State of M.P. and another,[3] (which was decided by a two Judge Bench of the Supreme Court) relied upon the opinion given by the minority of two judges in Kharak Singh to hold that a right to privacy does exist and is guaranteed as a fundamental right under the Constitution of India.[4] Thereafter a large number of cases have held the right to privacy to be a fundamental right, the most important of which are R. Rajagopal & Another v. State of Tamil Nadu & Others,[5] (popularly known as Auto Shanker’s case) and People’s Union for Civil Liberties (PUCL) v. Union of India & Another.[6] However, as was noticed by the Supreme Court in its August 11 order, all these judgments were decided by two or three Judges only.

The petitioners on the other hand made a number of arguments to counter those made by the Attorney General to the effect that the fundamental right to privacy is well established under Indian law and that there is no need to refer the matter to a Constitutional Bench. These arguments are:

(i) The observations made in M.P. Sharma regarding the absence of right to privacy are not part of the ratio decidendi of that case and, therefore, do not bind the subsequent smaller Benches such as R. Rajagopal and PUCL.

(ii) Even in Kharak Singh it was held that the right of a person not to be disturbed at his residence by the State is recognized to be a part of a fundamental right guaranteed under Article 21. It was argued that this is nothing but an aspect of privacy. The observation in para 20 of the majority judgment (quoted in footnote 2 above) at best can be construed only to mean that there is no fundamental right of privacy against the State’s authority to keep surveillance on the activities of a person. However, they argued that such a conclusion cannot be good law any more in view of the express declaration made by a seven-Judge bench decision of this Court in Maneka Gandhi v. Union of India & Another.[7]

(iii) Both M.P. Sharma (supra) and Kharak Singh (supra) were decided on an interpretation of the Constitution based on the principles expounded in A.K. Gopalan v. State of Madras,[8] which have themselves been declared wrong by a larger Bench in Rustom Cavasjee Cooper v. Union of India.[9]

Other than the points above, it was also argued that world over in all the countries where Anglo-Saxon jurisprudence is followed, ‘privacy’ is recognized as an important aspect of the liberty of human beings. The petitioners also submitted that it was too late in the day for the Union of India to argue that the Constitution of India does not recognize privacy as an aspect of the liberty under Article 21 of the Constitution of India.

However these arguments of the petitioners were not enough to convince the Supreme Court that there is no doubt regarding the existence and contours of the right to privacy in India. The Court, swayed by the arguments presented by the Attorney General, admitted that questions of far reaching importance for the Constitution were at issue and needed to be decided by a Constitutional Bench.

Giving some insight into its reasoning to refer this issue to a Constitutional Bench, the Court did seem to suggest that its decision to refer the matter to a larger bench was more an exercise in judicial propriety than an action driven by some genuine contradiction in the law. The Court said that if the observations in M.P. Sharma (supra) and Kharak Singh (supra) were accepted as the law of the land, the fundamental rights guaranteed under the Constitution of India would get “denuded of vigour and vitality”. However the Court felt that institutional integrity and judicial discipline require that smaller benches of the Court follow the decisions of larger benches, unless they have very good reasons for not doing so, and since in this case it appears that the same was not done therefore the Court referred the matter to a larger bench to scrutinize the ratio of M.P. Sharma (supra) and Kharak Singh (supra) and decide the judicial correctness of subsequent two judge and three judge bench decisions which have asserted or referred to the right to privacy.

[1] AIR 1954 SC 300. In para 18 of the Judgment it was held: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

[2] AIR 1963 SC 1295. In para 20 of the judgment it was held: “… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitutionand therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

[3] (1975) 2 SCC 148.

[4] It is interesting to note that while the decisions in both Kharak Singh and Gobind were given in the context of similar facts (challenging the power of the police to make frequent domiciliary visits both during the day and night at the house of the petitioner) while the majority in Kharak Singh specifically denied the existence of a fundamental right to privacy, however they held the conduct of the police to be violative of the right to personal liberty guaranteed under Article 21, since the Regulations under which the police actions were undertaken were themselves held invalid. On the other hand, while Gobind held that a fundamental right to privacy does exist in Indian law, it may be interfered with by the State through procedure established by law and therefore upheld the actions of the police since they were acting under validly issued Regulations.

[5] (1994) 6 SCC 632.

[6] (1997) 1 SCC 301.

[7] (1978) 1 SCC 248.

[8] AIR 1950 SC 27.

[9] (1970) 1 SCC 248.

For more details visit https://cis-india.org/internet-governance/blog/right-to-privacy-in-peril

Right to Food Campaign, Ranchi Convention, 2016

sumandro — 2019-03-16T04:40:52Z

The Right to Food Campaign held its 2016 Convention in Ranchi during September 23-25, 2016. While three years have elapsed since the passage of the National Food Security Act, despite improvements in the Public Distribution System (PDS), large implementation gaps remain. This is what the Convention focused on, and gathered researchers and campaigners from across the country to share experiences and case studies on effectiveness and exclusions from the PDS. Sumandro Chattapadhyay took part in a session of the Convention to discuss how UID-linked welfare delivery is being rolled out across key programmes like provision of pension and rationed distribution of essential commodities, and their impact on people's right to welfare services.

Right to Food Campaign: Website.

Right to Food Campaign: Cash Transfers and UID: Our Main Demands.

Ranchi Convention, 2016: Programme.

For more details visit https://cis-india.org/internet-governance/news/right-to-food-campaign-ranchi-convention-2016

Rick van Amersfoort to give a public lecture on his work at CIS on May 15

praskrishna — 2011-04-05T04:07:10Z

Rick van Amersfoort, researcher based in Amsterdam will describe his work at Buro Jansen & Janssen, in the Netherlands and Europe.

Reading, digging in archives, procedures under the freedom of Information Act, supporting people for access to their police and intelligence service records, describing mechanisms the state uses to monitor, control and discipline civilians, but also means to overcome eavesdropping, surveillance, arrest or jail is the daily practice of Jansen. Since 25 years it has been active on the edge of legality and illegality. No scientists, nor journalists, but active civilians in a constant battle with the state and its services. Not only the state is evaluated. ‘City of Discipline’ is a project that tries to explain the lack of public outrage against far-reaching laws, although the crime rate is going down and the effectiveness of more security is doubtful.

Buro Jansen & Janssen hosts a variety of websites, some of these are:

The NTRO (National Technical Research Organization) eavesdropping scandal with so-called IMSI-catchers; According to the magazin Outlook the Mata Hari (the Dutch woman Margaretha Geertruida) of India, Madhuri Gupta; Possible police and state operations against protesting farmers in for example Devanahalli and Doddaballapur; Threats from the Indian government towards people and organizations who have contacts with the CPI or other Maoist groups; The 26 November 2008 Mumbai attacker verdict of five death sentences; Destroyed archives on the 1971 war between India and Pakistan are just some news items from the last week that describe the work/research/ activities which Buro Jansen & Janssen is conducting in the Netherlands, Europe and abroad. Van Amersfoort will shed light on the work of Jansen & Janssen in the Netherlands and Europe in relation to the above mentioned news items in India.

About Rick van Amersfoort

The past 10 years Rick van Amersfoort (1964 NL) has been researcher at Buro Janssen & Jansen, an organisation that critically investigates police, justice, secret services and home affairs in Holland and the European Union. Buro Jansen and Janssen publish online the Observant, a bimonthly mailing informing subscribers of the latest governmental infringements and political lobbies within the Netherlands. Other websites include http://www.openheid.nl/ that gives legal advise for public access to people’s records held by police and security services, http://www.preventieffouilleren.nl/, deals with stop and search operations by police and http://www.identificatieplicht.nl that addresses mandatory identification regulation. In 2006 Amersfoort co-authored (Wil van der Schans) Under Pressure, antiterrorism in the Netherlands. Buro Jansen & Janssen regularly appear in the media, local and national newspapers, radio and internet interviews. Current projects include ‘City of Discipline’, a project that tries to explain the lack of public outrage against far-reaching laws, although the crime rate is going down and the effectiveness of more security is doubtful. Van Amersfoort is presently designing a website for public access in connection with the Freedom of Information Act. http://openbaarheid.nl

For more details visit https://cis-india.org/events/rick-van-amersfoort