Centre for Internet and Society

Analysis of the Report of the Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security and Implications for India

Elonnai Hickok and Vipul Kharbanda — 2016-08-11T09:58:59Z

This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.

The United Nations Group of Experts on ICT issued their report on Developments in the Field of Information and Telecommunications in the Context of International Security in June, 2015. This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. CIS believes that the report of the Group of Experts provides important minimum standards that countries could adhere to in light of challenges to international security posed by ICT developments. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.

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1. Introduction

2. Analysis of the Recommendations

2a. Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security

2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences

2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs; of the Recommendations

2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect

2e. States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression

2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public

2g. States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions

2h. States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty

2i. States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions

2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure

2k. States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity

3. Conclusion

1. Introduction

Cyberspace[1] touches every aspect of our lives, has enormous benefits, but is also accompanied by a number of risks. The international community at large has realized that cyberspace can be made stable and secure only through international cooperation. Traditionally, though there are a number of bilateral agreements and forms of cooperation the foundation of this cooperation has been the international law and the principles of the Charter of the United Nations.

To this end, on December 27, 2013 the United Nations General Assembly adopted Resolution No. 68/243 requesting the" Secretary General, with the assistance of a group of governmental experts,…… to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them, including norms, rules or principles of responsible behaviour of States and confidence-building measures, the issues of the use of information and communications technologies in conflicts and how international law applies to the use of information and communications technologies by States……. and to submit to the General Assembly at its seventieth session a report on the results of the study. "In pursuance of this resolution the Secretary General established a Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security; the report was agreed upon by the Group of Experts in June, 2015. On 23 December 2015, the UN General Assembly unanimously adopted resolution 70/237[2] which welcomed the outcome of the Group of Experts and requested the Secretary-General to establish a new GGE that would report to the General Assembly in 2017.

The report developed by governmental experts from 20 States addresses existing and emerging threats from uses of ICTs, by States and non-State actors alike. These threats have the potential to jeopardize international peace and security. The experts gave recommendations which have built on consensus reports issued in 2010 and 2013, and offer ideas on norm-setting, confidence-building, capacity-building and the application of international law for the use of ICTs by States. Among other recommendations, the Report lays down recommendations for States for voluntary, non-binding norms, rules or principles of responsible behaviour to promote an open, secure, stable, accessible and peaceful ICT environment.

As larger international dialogues around cross border sharing of information and cooperation for cyber security purposes take place between the US and EU, it is critical that India begin to participate in these discussions.[3] It is also necessary to take cognizance of the importance of implementing internal practices and policies that are recognized and set strong standards at the international level.

This paper marks the beginning of a series of questions we will be asking and processes we will be analysing with the aim of understanding the role of international cooperation for cyber security and the interplay between privacy and security. The report analyses the existing norms in India in the backdrop of the recommendations in the Report of Experts to discover how interoperable Indian law and policy is vis-à-vis the recommendations made in this report as well as making recommendations towards ways India can enhance national policies, practices, and approaches to enable greater collaboration at the international level with respect to issues concerning ICTs and security.

2. Analysis of the Recommendations

The Group of Experts took into account existing and emerging threats, risks and vulnerabilities, in the field of ICT and offered the following recommendations for consideration by States for voluntary, non-binding norms, rules or principles of responsible behaviour.

2a. Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security

1. India has been working with a number of countries such as Belarus, Canada, China, Egypt, and France on a number of ICT-related isues thereby increasing international cooperation in the ICT sector, such as:

(i) setting up the India-Belarus Digital Learning Centre (DLC-ICT) to promote

development of ICT in Belarus;

(ii) sending an official business delegation to Canada to attend the 2^ndJoint Working Group meeting in ICTE;

(iii) holding Joint Working Groups on ICT with China.[4]

As can be seen from this, most of the cooperation with other countries is currently government to government (or government institution to government institution) cooperation. However, it must be noted that the entire digital revolution, including ICT necessarily involves ICT companies, and thus the role of the private sector in participating in these negotiations as well as the responsibilities of private sector ICT companies in cross border cooperation. Furthermore, the above examples are a few of the many agreements, Memoranda of Understanding (MOU), and negotiations that India has with other countries on cross border cooperation. It is important that, to the extent possible, these negotiations and transparent and easily publicly available.

2. The primary legislation governing ICT in India is the Information Technology Act, 2000 ("IT Act") which was passed to provide legal recognition for the transactions carried out by means of electronic data interchange and other means of electronic communication. The IT Act contains a number of provisions that declare illegal activities that threatenICT infrastructure, data, and individuals as illegal and provide for penalties for the same. These activities are:

Section 43 - Penalty and Compensation for damage to computer, computer system, etc.: If any person without permission: (i) accesses a computer, computer system or network; (ii) downloads, copies or extracts any data from such computer, computer system or network; (iii) introduces any computer contaminant or computer virus into, destroys, deletes or alters any information on, damages or disrupts any computer, computer system or network; (iv) denies or causes the denial of access to any computer, computer system or network by any means; (v) helps any person to access a computer, computer system or network in contravention of the Act; (vi) charges the services availed of by a person to the account of another person through manipulation; or (vii) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation to the person so affected.

Section 66 - Computer Related Offences: If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to Rs. 5,00,000/- or with both.

Section 66B - Punishment for dishonestly receiving stolen computer resource or communication device: Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to Rs. 1,00,000/- or with both.

Section 66C - Punishment for identity theft: Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

Section 66D - Punishment for cheating by personation by using computer resource: Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to Rs. 1,00,000/-.

Section 66E - Punishment for violation of privacy: Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding Rs. 2,00,000 or with both.

Section 66F - Punishment for cyber terrorism: (1) Whoever,- (A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by -

Denying or cause the denial of access to computer resource; or
Attempting to penetrate a computer resource; or
Introducing or causing to introduce any computer contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure, or

(B) knowingly or intentionally penetrates a computer resource and by by doing so obtains access to information that is restricted for reasons of the security of the State or foreign relations; or any restricted information with reasons to believe that such information may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.

(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life.

Section 67 - Publishing of information which is obscene in electronic form: Whoever publishes or transmits in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons, shall be punished on first conviction with a maximum imprisonment upto 2 years and a maximum fine upto Rs. 5,00,000 and for a second or subsequent conviction with a maximum imprisonment upto 5 years and also a maximum with fine upto Rs. 10,00,000.

Section 67A - Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form: Whoever publishes or transmits in the electronic form any material which contains sexually explicit act or conduct shall be punished on 1st conviction with a maximum imprisonment for 5 years and a maximum fine of upto Rs. 10,00,000 and for a 2nd or subsequent conviction with a maximum imprisonment of 7 years and a maximum fine upto Rs. 10,00,000.

Section 67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form: Whoever,- (a) publishes or transmits material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online; or (e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with a maximum imprisonment upto 5 years and a maximum fine upto Rs. 10,00,000 and in the event of a 2nd or subsequent conviction with a maximum imprisonment upto 7 years and also a maximum fine upto Rs. 10,00,000.[5]

Section 72 - Breach of confidentiality and privacy: Any person who, in pursuance of any of the powers conferred under this Act, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses the same to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rs. 1,00,000 or with both.

Section 72-A - Punishment for Disclosure of information in breach of lawful contract: Any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to Rs. 5,00,000 or with both.

3. The broad language and wide terminology used IT Act seems to cover most of the cyber crimes faced in India as of now, though the technical abilities to prevent the crimes still leave a lot to be desired. The prevention of cyber crime is not the domain of the IT Act and is rather the responsibility of the law enforcement authorities (note: there is no specific authority created under the IT Act, the Act is enforced by the police and other law enforcement authorities). That said, it may be a useful exercise to briefly compare these provisions with the crimes mentioned in the Convention on Cybercrime, 2001 (Budapest Convention), an international treaty that seeks to addresses threats in cyber space by promoting the harmonization of national laws and cooperation across jurisdictions, to examine if there are any that are not covered by the IT Act. A comparison of the principles in Budapest Convention and the IT Act is below:

S. No.	Article of the Budapest Convention	Provisions of the IT Act which cover the same
1	Article 2 - Illegal Access	Section 43(a) read with Section 66
2	Article 3 - Illegal Interception	Section 69 of the IT Act read with section 45 as well as Section 24 of the Telegraph Act, 1885
3	Article 4 - Data interference	Sections 43(d) and 43(f) read with section 66
4	Article 5 - System interference	Sections 43(d), (e) and (f) read with section 66
5	Article 6 - Misuse of devices	Not specifically covered
6	Article 7 - Computer related forgery	Computer related forgery is not specifically covered, but it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes
7	Article 8 - Computer related fraud	While not specifically covered by the IT Act, it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes
8	Article 9 - Offences relating to child pornography	Section 67B

As can be seen from the above discussion, most of the criminal acts elucidated in the Budapest Convention are covered under the IT Act except for the provision on misuse of devices, which requires the production, dealing, trading, etc. in devices whose sole objective is to violate the provisions of the IT Act, though it is possible that provisions of the Indian Penal Code, 1860 dealing with conspiracy and aiding and abetment may be pressed into service to cover such incidents.

4. Further, there are a number of laws which deal with critical infrastructure in India, however since these are mostly sectoral laws dealing with specific infrastructure sectors, the one most relevant to ICT is the Telegraph Act, 1885, which makes it illegal to interfere with or damage critical telegraph infrastructure. The specific penal provisions are listed below:

Section 23 - Intrusion into signal-room, trespass in telegraph office or obstruction: If any person - (a) without permission of competent authority, enters the signal room of a telegraph office of the Government, or of a person licensed under this Act, or (b) enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or (c) refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or (d) wilfully obstructs or impedes any such officer or servant in the performance of his duty, he shall be punished with fine which may extend to Rs. 500.

Section 24 - Unlawfully attempting to learn the contents of messages: If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act, he may (in addition to the fine with which he is punishable under section 23) be punished with imprisonment for a term which may extend to one year.

Section 25 - Intentionally damaging or tampering with telegraphs: If any person, intending - (a) to prevent or obstruct the transmission or delivery of any message, or (b) to intercept or to acquaint himself with the contents of any message, or (c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine or with both.

Section 25A - Injury to or interference with a telegraph line or post: If, in any case not provided for by section 25, any person deals with any property and thereby wilfully or negligently damages any telegraph line or post duly placed on such property in accordance with the provisions of this Act, he shall be liable to pay the telegraph authority such expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000:

5. The telecom service providers in India have to sign a license agreement with the Department of Telecommunications for the right to provide telecom services in various parts of India. The telecom regulatory regime in India has gone through a lot of turmoil and evolution and currently any service provider wanting to provide telecom services is issued a Unified License (UL) and has to abide by the terms of the UL. Whilst most of the prohibited activities under the UL refer to specific terms under the UL itself such as non payment of fees and not fulfilling obligations under the UL, section 38 provides for certain specific prohibited activities which may be relevant for the ICT sector. These prohibited activities include:

(i) Carrying objectionable, obscene, unauthorized or any other content, messages or communications infringing copyright and intellectual property right etc., which may be prohibited by the laws of India;

(ii) Provide tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through his equipment and network, to the authorised government agencies;

(iii) Ensuring that the Telecommunication infrastructure or installation thereof, carried out by it, should not become a safety or health hazard and is not in contravention of any statute, rule, regulation or public policy;

(iv) not permit any telecom service provider whose license has been revoked to use its services. Where such services are already provided, i.e. connectivity already exists, the license is required to immediately sever connectivity immediately.

2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences

The Department of Electronics and Information Technology (DEITY) has released the XIIth Five Year Plan on the information technology sector and the report of the Sub-Group on Cyber Security in the plan recognizes that cyber security threats emanate from a wide variety of sources and manifest themselves in disruptive activities that target individuals, businesses, national infrastructure and Governments alike. [6] The primary objectives of the plan for securing the country's cyber space are preventing cyber attacks, reducing national vulnerability to cyber attacks, and minimizing damage and recovery time from cyber attacks. The plan takes into account a number of focus areas to achieve its stated objectives, which are described briefly below:

Enabling Legal Framework - Setting up think tanks in Public-Private mode to identify gaps in the existing policy and frameworks and take action to address them including addressing the privacy concerns of online users.
Security Policy, Compliance and Assurance - Enhancement of IT product security assurance mechanism (Common Criteria security test/evaluation, ISO 15408 & Crypto Module Validation Program), establishing a mechanism for national cyber security index leading to national risk management framework.
Security Resarch&Development (R&D) - Creation of Centres of Excellence in identified areas of advanced Cyber Security R&D and Centre for Technology Transfer to facilitate transition of R&D prototypes to production, supporting R&D projects in thrust areas.
Security Incident - Early Warning and Response - Comprehensive threat assessment and attack mitigation by means of net traffic analysis and deployment of honey pots, development of vulnerability database.
Security awareness, skill development and training - Launching formal security education, skill building and awareness programs.
Collaboration - Establishing a collaborative platform/ think-tank for cyber security policy inputs, discussion and deliberations, operationalisation of security cooperation arrangements with overseas CERTs and industry, and seeking legal cooperation of international agencies on cyber crimes and cyber security.

2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs

As mentioned in response to (a) above, the primary legislation in India that deals with information technology and hence ICT as well is the Information Technology Act, 2000. The IT Act contains a number of penal provisions which make it illegal to indulge in a number of practices such as hacking, online fraud, etc. which have been recognised internationally as wrongful acts using ICT ( Please refer to answer under section (a) above for details of the penal provisions). Further section 1(2) of the IT Act provides that it also applies to any offence or contravention hereunder committed outside India by any person. This means that the IT Act also covers internationally wrongful acts using ICTs.

2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect

There are a number of ways in which states can share information by using widely accepted formal processes precisely for this purpose. Some of the most common methods of international exchange used by India are given below.

MLATs

Although the exact process by which intelligence agencies in India share information with other agencies internationally is unclear, India is a member of Interpol and the Central Bureau of Investigation, which is a Federal/Central investigating agency functioning under the Central Government, Department of Personnel & Training and is designated as the National Central Bureau of India. A very useful tool in the effort to establish cross-border cooperation is Mutual Legal Assistance Treaties (MLATs). MLATs are extremely important for law enforcement agencies, governments and the private sector, since they act as formal mechanisms for access to data which falls under different jurisdictions. India currently has MLATs with the following 39 countries [7]

Although MLATs are considered to be a useful mechanism to ensure international cooperation, there are certain criticisms of the MLAT mechanism, such as:

The Lack of Clear Time Tables: Although MLATs do provide for broad time frames, they do not provide for more specific time tables and usually do not have any provision for an expedited process, for eg. it is believed that for requests to the U.S., processing can take from six weeks (for requests with minimal issues complying with U.S. legal standards) to 10 months.[8] Such a long time frame is clearly a burden on the investigation process and has been criticised for being ineffectual as they may not provide information fast enough;
Variation in Legal Standards: The legal standards for requesting information, for eg. the circumstances under which information can be requested or what information can be requested, differ from jurisdiction to jurisdiction. These differences are often not understood by requesting nations thus causing problems in accessing information;[9]
Inefficient Legal Process: The legal process to carry out requests through the MLAT process is often considered too cumbersome and inefficient.
Non-incorporation of Technological Challenges: MLATs have not been updated to meet the challenges brought about by technology, especially with the advent of networked infrastructure and ICT which raise issues of attribution and cross-jurisdictional access to information. [10]

Extradition

Extradition generally refers to the surrender of an alleged or convicted criminal by one State to another. More precisely, it may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial ~~and punishment~~ or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State. Extradition plays an important role in the international battle against crime and owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. India currently has extradition treaties with 37 countries and extradition arrangements with an additional 8 countries.[11]

Letters Rogatory

A Letter Rogatory is a formal communication in writing sent by the Court in which an action is pending to a foreign court or Judge requesting that the testimony of a witness residing within the jurisdiction of that foreign court be formally taken under its direction and transmitted to the issuing court making the request for use in a pending legal contest or action. This request entirely depends upon the comity of courts towards each other and usages of the court of another nation.

Apart from the above methods, India also regularly signs Bilateral MoUs with various countries on law enforcement and information sharing specially in cases related to terrorism. India also regularly helps and gets helps from Interpol, the International Criminal Police Organisation for purposes of investigation, arrests and sharing of information.[12]

Other than these formal methods states sometimes share information on an informal basis, where the parties help each other purely on the basis of goodwill, or sometimes even coercion. A recent example of informal cooperation between the security agencies of India and Nepal, although not in the realm of cyber space, was the arrest of YasinBhatkal, leader of the banned organisation Indian Mujahideen (IM) where the Indian security agencies allegedly sought informal help from their Neapaelese counterparts to arrest a person who was wantedhad long been wanted by the Indian security agencies for a long time. [13]

In the current environment of growing ICT and increased cross-border information sharing between individuals, the role of private companies who carry this information has become much more pronounced. This changed dynamic raises new problems, especially because manyin light of thesefact that a number of these companies do not have a physical presence in all the countries where they offer services over the internet. This leads to problems for states in terms of law enforcement, speciallyespecially if they want information from these companies who do not have an incentive or desire to provide itagainst their will. These circumstances lead to a number of prickly situations where states are often frustrated in using legal and formal means and often resort to informal pressure to get the companies to agree to data localization requests, encryption/decryption standards and keys, back doors, and other requests. etc., Tthe most famous of these in the Indian context being the disagreement/ heated exchange between the Indian government and Canada based Blackberry Limited (formerly Research in Motion) for data requests on their Blackberry enterprise platform.

2e. States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression

Right to Privacy

The right to privacy has been recognised as a constitutionally protected fundamental right in India through judicial interpretation of the right to life which is specifically guaranteed under the Constitution of India. Since the right to privacy was read into the constitution by judicial pronouncements, it could be said that the right to privacy in India is a creature of the courts at least in the Indian context. For this reason it may be useful to list out some of the major cases which deal with the right to privacy in India:

i. Kharak Singh v. Union of India¸[14] (1962)

a. For the first time, the courts recognized the right to privacy as a fundamental right, although in a minority opinion.

b. The decision lLocated the right to privacy under both the right to personal liberty as well as freedom of movement.

ii. Govind v. State of M.P.,[15] (1975)

a. Adopted the minority opinion of Kharak Singh as the opinion of the Supreme Court and held that the right to privacy is a fundamental right.

b. An individual deDerivesd the right to privacy from both the right to life and personal liberty as well as freedom of speech and movement.

c. The right to privacy was said to encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.

d. The court established that the rRight to privacy can be violated in the following circumstances (i) important countervailing interest which is superior, (ii) compelling state interest test, and (iii) compelling public interest.

iii. R. Rajagopal v. Union of India,[16] (1994)

a. Recognised that the rRight to privacy is a part of the right to personal liberty guaranteed under the constitution.

b. Recognizeds that the right to privacy can be both a tort (actionable claim) as well as a fundamental right.

c. Established that aA citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and nobody can publish anything regarding the same unless (i) he consents or voluntarily thrusts himself into controversy, (ii) the publication is made using material which is in public records (except for cases of rape, kidnapping and abduction), or (iii) he is a public servant and the matter relates to their discharge of official duties.

iv. People's Union for Civil Liberties v. Union of India,[17] (1996)

a. Extended the right to privacy to include communications privacy..

b. Laid down guidelines which form the backbone for checks and balances in interception provisions.

v. District Registrar and Collector, Hyderabad and another v. Canara Bank and another, [18] (2004)

a. Refers to personal liberty, freedom of expression and freedom of movement as the fundamental rights which give rise to the right to privacy.

b. The rRight to privacy deals with persons and not places.

c. Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders and (3) judicial orders.

vi. Selvi and others v. State of Karnataka and others,[19] (2010)

a. The Court acknowledged the distinction between bodily/physical privacy and mental privacy

b. Subjecting a person to techniques such as narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test without consent violates the subject's mental privacy
Although the judgements in the above cases (except for the case of People's Union for Civil Liberties v. Union of India) were pronounced given in a non telecomnot delivered in a telecommunications context, however the ease with which these principles were applied in the case of People's Union for Civil Liberties v. Union of India, suggests that these principles, where applicable, would be applied even in the context of ICT and are not limited to only the non-digital world.
It must however be noted that dueDue to some incongruities in the interpretation of the earlier judgments, the Supreme Court has recently referred the matter regarding the existence and scope of the right to privacy in India to a larger bench so as to bring clarity regarding the exact scope of the right to privacy in Indian law. The very concept that the Constitution of India guarantees a right to privacy was challenged due to an "unresolved contradiction" in judicial pronouncements. This "unresolved contradiction" arose because in the cases of M.P. Sharma & Others v. Satish Chandra & Others,[20] and Kharak Singh v. State of U.P. & Others, [21](decided byEigheighttandsixSixJudges respectively) the majority judgment of the Supreme Court had 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,[22] (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 without addressing the fact that this was a minority opinion and that the majority opinion had denied the existeance of the right to privacy. 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,[23] (popularly known as Auto Shanker's case) and People's Union for Civil Liberties (PUCL) v. Union of India & Another.[24] However, as was noticed by the Supreme Court in its August 11, 2015 order, all these judgments were decided by two or three Judges only which could not have overturned the judgments given by larger benches.[25] It was to resolve this judicial incongruity that the Supreme Court referred this issue to a larger bench to decide on the existence and scope of the right to privacy in India.

Freedom of Expression

Freedom of expression is one of the most important fundamental rights guaranteed under the constitution and has been vehemently protected by the judiciary on a number of occasions whenever it has been threatened. With the advent of social media, the entire dynamics of the freedom of speech and expression have changed in that it is now possible for every individual, with an internet connection and a Facebook/Twitter/Whatsapp account to reach millions of people without spending any extra money. This ability to reach a much larger and wider audience also led to greater friction between people holding different opinions. As the ease of the internet removed the otherwise filtering effects of geography and made it easier for people to communicate with each other, the advent of social media made it easier for them to communicate with a larger number of people at the same time. This ability to communicate within a group also gave rise to "debates" which often turngot ugly, highlighting giving way to concerns of how easy it is to harass people on social media.
This concern over of harassment led a number of people to call for greater censorship of social media and it was perhaps this concern which gave rise to the biggest challenge to the freedom of speech and expression in the online world, in the form of section 66A of the Information Technology Act, 2000 which made it an offense to send information which was "grossly offensive" (s.66A(a)) or caused "annoyance" or "inconvenience" while being known to be false (s.66A(c)). This section was used widely seen by Oonline activists, including the Centre for Internet and Society, widely considered this section as a tool for the government to silence those who criticised it. In fact, statistics compiled by the National Crime Records Bureau from 2014 revealed that 2,402 people, including 29 women, were arrested in 4,192 cases under section 66A which accounted for nearly 60% of all arrests under the IT Act, and 40% of arrests for cyber crimes in 2014. [26]
The section was finally struck down by the Supreme Court in 2015 in the case of Shreya Singhalv. Union of India, [27] on the ground of being too vague. This decision was seen as a huge victory for the campaign for freedom of speech and expression in the virtual world since this section was frequently used by the state (or rather government in power) to muzzle free speech against the incumbent government or political leaders. The offending section 66A made it an offence to send any information that was "grossly offensive or has menacing character" or "which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by makinguse of such computer resource or a communication device,". These terms quoted above were held by the Court to be too vague and wide and falling foul of the limited restrictions constitutionally imposed on the freedom of expression. The Supreme Court therefore, and were therefore struck down section 66A by the Supreme Court.

2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public

The researchers of this report could not locate any norms in India which address this issue. To the best of their knowledge, India does not support any ICT activity that intentionally damages critical infrastructure or impairs the use and operation of critical infrastructure.

2g. States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions

1. Section 70 of the IT Act gives the government the authority to declare any computer system which directly affects any critical information infrastructure to be a protected system. The term "critical information infrastructure" (CII) is defined in the IT Act "the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety." Once the government declares any computer resource as a protected system it gets the authority to prescribe information security practices for such as system as well as identify the persons who are authorised to access such systems. Any person who accesses a protected system in contravention of the provision of Section 70 of the IT Act shall be liable to be imprisoned for a maximum period of 10 years and also pay a fine. Further, section 70A of the IT Act gives the government the power to name a national nodal agency in respect of CII and also prescribe the manner for such agency to perform its duties. In pursuance of the powers under sections 70A the government has designated the National Critical Information Infrastructure Protection Centre (NCIIPC) situated in the JNU campus as the nodal agency [28]. This agency is a part of and under the administrative control of the National Technical Research Organisation (NTRO) [29].

2. The functions and manner of performing such functions by the NCIIPC has been prescribed in the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.[30] According to these Rules the functions of the NCIIPC include, inter alia, (i) the protecting and giving advice to reduce the vulnerabilities of CII against cyber terrorism, cyber warfare and other threats; (ii) identification of all critical infrastructure elements so that they can be notified by the government; (iii) providing strategic leadership and coherence across the government to respond to cyber security threats against CII; (iv) coordinating, sharing, monitoring, analysing and forecasting national level threats to CII for policy guidance, expertiese sharing and situational awareness for early warning alerts; (v) assisting in the development of appropriate plans, adoption of standards, sharing best practices and refinining procurement processes for CII; (vi) undertaking and funding research and development to innovate future technologies and collaborate with PSUs, academia and international partners for protection of CII; (vii) organising training and awareness programmes and development of audit and certification agencies for protection of CII; (viii) developing and executing national and international cooperation strategies for protection of CII; (ix) issuing guidelines, advisories and vulnerability notes relating to CII and practices, procedures, prevention and responses in consultation with CERT-In and other organisations; (x) exchanging information with CERT-In, especially in relation to cyber incidents; and (xi) calling for information and giving directions to critical sectors or persons having a critical impact on CII, in the event of any threat to CII.[31]

3. The NCIIPC had in the year 2013 released (non publicly) Guidelines for the Protection of National Critical Information Infrastructure [32] (CII Guidelines) which presented 40forty controls and respective guiding principles for the protection of CII. It is expected that these controls and guiding principles will help critical sectors to draw a CII protection roadmap to achieve safe, secure and resilient CII for India. The 'Guidelines for forty Critical Controls' is considered by the NCIIPC to be a significant milestone in its efforts for the protection of nation's critical information assets. These fort controls can be found in Section 6 (Best Practices, Controls and Guidelines) of the CII Guidelines. It must be noted that the CII Guidelines were drafted after taking inputs from a number of stakeholders such as the national Stock Exchange, the Airports Authority of India, National Thermal Power Corporation, Reserve Bank of India, Indian Railways, Telecom Regulatory Authority of India, Bharat Sanchar Nigam Limited, etc. This exercise of taking inputs from different stakeholders as well as developing a standard of as many as 40forty aspects of security seems to suggest that the NCIIPC is taking steps in the right direction.

4. The Recommendations on Telecommunication Infrastructure Policy issued by the Telecom Regulatory Authority of India in April, 2011 are silent on the issue of security of critical information infrastructure.s. However, the National Policy on Information Technology, 2012 (NPIT) does address the issue of security of cyber space by saying that the government should make efforts to do the following:

"9.1 To undertake policy, promotion and enabling actions for compliance to international security best practices and conformity assessment (product, process, technology & people) and incentives for compliance.

9.2 To promote indigenous development of suitable security techniques & technology through frontier technology research, solution oriented research, proof of concept, pilot development etc. and deployment of secure IT products/processes

9.3 To create a culture of cyber security for responsible user behavior & actions including building capacities and awareness campaigns.

9.4 To create, establish and operate an 'Information Security Assurance Framework'."

5. The Department of Information and Technology has formed the Computer Emergency Response Term of India (CERT-In) to enhance the security of India's Communications and Information Infrastructure through proactive action and effective collaboration. The Information Security Policy on Protection of Critical Infrastructure released by the CERT-In considers information recorded, processed or stored in electronic medium as a valuable asset and is geared towards protection of such "valuable asset". The policy recognises the importance of critical information infrastructure network and says that any disruption of the operation of such networks is likely to have devastating effects. The policy prescribes that personnel with program delivery responsibilities should also recognise the importance of security of information resources and their management. Thus Ddue to this recognition of the growing networked nature of government as well as critical organisations and the need to have a proper vulnerability analysis as well as effective management of information security risks, the Department of Technology prescribes the following information security policy:

"In order to reduce the risk of cyber attacks and improve upon the security posture of critical information infrastructure, Government and critical sector organizations are required to do the following on priority:

Identify a member of senior management, as Chief Information Security Officer (CISO), knowledgeable in the nature of information security & related issues and designate him/her as a 'Point of contact', responsible for coordinating security policy compliance efforts and to regularly interact with the Indian Computer Emergency Response Team (CERT-In), Department of Information Technology (DIT), which is the nodal agency for coordinating all actions pertaining to cyber security;
Prepare information security plan and implement the security control measures as per ISI/ISO/IEC 27001: 2005 and other guidelines/standards, as appropriate;
Carry out periodic IT security risk assessments and determine acceptable level of risks, consistent with criticality of business/functional requirements, likely impact on business/ functions and achievement of organisational goals/objectives;
Periodically test and evaluate the adequacy and effectiveness of technical security control measures implemented for IT systems and networks. Especially, Test and evaluation may become necessary after each significant change to the IT applications/systems/networks and can include, as appropriate the following:

➢ Penetration Testing (both announced as well as unannounced)

➢ Vulnerability Assessment

➢ Application Security Testing

➢ Web Security Testing

Carry out Audit of Information infrastructure on an annual basis and when there is major upgradation/change in the Information Technology Infrastructure, by an independent IT Security Auditing organization;..........

Report to CERT-In the cyber security incidents, as and when they occur and the status of cyber security, periodically."

6. The Department of Electronics and Information Technology (DEITY) released the National Policy on Electronics in 2012 which contained the government's take on the electronics industry in India. Section 5 of the said policy talks about cCyber sSecurity and states that to create a complete secure cyber eco-system in the country, careful and due attention is required for creation of well-d defined technology and systems, use of appropriate technology and more importantly development of appropriate products and& solutions. The priorities for action should be suitable design and development of indigenous appropriate products through frontier technology/product oriented research, testing and& validation of security of products meeting the protection profile requirements needed to secure the ICT infrastructure and cyber space of the country.

7. In addition the CERT-In has issued an Information Security Management Implementation Guide for Government Organisations. [33] CERT-In has also prescribed progressive steps for implementation of Information Security Management System in Government & Critical Sectors as per ISO 27001. The steps prescribed are as follows:

Identification of a Point-of-Contact (POC) / Chief Information Security Officer (CISO) for coordinating information security policy implementation efforts and communication with CERT-In
Information Security Awareness Programme
Determination of general Risk environment of the organization (low / medium / hHigh) depending on the nature of web and& networking environment, criticality of business functions and impact of information security incidents on the organization, business activities, assets / resources and individuals
Status appraisal and gap analysis against ISO 27001 based best information security practices
Risk assessment covering evaluation of threat perception and technical and &operational vulnerabilities
Comprehensive risk mitigation plan including selection of appropriate information security controls as per ISO 27001 based best information security practices
Documentation of agreed information security control measures in the form of information security policy manual, procedure manual and work instructions
Implementation of information security control measures (Managerial, Technical and& operational)
Testing & evaluation of technical information security control measures for their adequacy & effectiveness and audit of IT applications/systems/networks by an independent information security auditing organization (penetration testing, vulnerability assessment, application security testing, web security testing, LAN audits, etc)
Information Security Management assessment and certification against ISO 27001 standard, preferably by an independent & accredited organization

8. The Unified License for providing various telecommunication services also discusses contains certain terms which talk about how to engagedeal with telecommunication infrastructure in light of national security, which include the following recommendations:

Providing necessary facilities to the Government to counteract espionage, subversive act, sabotage or any other unlawful activity;
Giving full access to its network and equipment to the authorised persons for technical scrutiny and inspection;
Obtaininggettting security clearance for all foreign nationals deployed on for installation, operation and maintenance of the network;
Being completely responsible for the security of its network and having organizational policy on security and security management of its network including Network forensics, Network Hardening, Network penetration test, Risk assessment;
Auditing its network or getting the network audited from security point of view once in a financial year from a network audit and certification agency;
Inducting only those network elements into its telecommunications network, which have been got tested according tos per relevant contemporary Indian or International Security Standards;
Including all contemporary security related features (including communication security) as prescribed under relevant security standards while procuring the equipment and implementing all such contemporary features into the network;
Keeping requisite records of operations in the network;
Monitoring of all intrusions, attacks and frauds on his technical facilities and provide reports on the same to the Licensor.

Further statutory restrictions on tampering critical infrastructure are already contained in the Telegraph Act and have been discussed above, though the penalties provided may need to be increased if they are to act as a deterrent in this age where the stakes are much higher.

2h. States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty

There is yet to be a publicly acknowledged request from a foreign government asking the Indian government to take steps to prevent malicious ICT acts originating from its territory.

2i. States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions;

Section 4 of the National Electronics Policy, 2012 talks about "Developing and Mandating Standards" and says that in order to curb the inflow of sub-standard and unsafe electronic products the government should mandate technical and safety standards which conform to international standards and do the following:

Develop Indian standards to meet specific Indian conditions including climatic, power supply, and handling and other conditions etc., by suitably reviewing existing standards.

Mandate technical standards in the interest of public health and safety.

Set up an institutional mechanism within Department of Information Technology for mandating compliance to standards for electronics products.

Develop a National Policy Framework for enforcement and use of Standards and Quality Management Processes.

Strengthen the lab infrastructure for testing of electronic products and encouraging development of conformity assessment infrastructure by private participation.

Create awareness amongst consumers against sub-standard and spurious electronic products.

Build capacity within the Government and public sector for developing and mandating standards.

Actively participate in the international development of standards in the Electronic System Design and Manufacturing sector.

2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure

Under section 70B of the IT Act, India has established a Computer Emergency Response Team (CERT-In) to serve as the national agency for incident responses. The functions mandated to be performed by CERT-In as per the IT Act are:

Collection, analysis and dissemination of information on cyber incidents;
Forecasting and alerts of cyber security incidents;
Emergency measures for handling cyber security incidents;
Coordination of cyber incidents response activities;
Issuing ofe guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, prevention, response and reporting of cyber incidents;
Such other functions relating to cyber security as may be prescribed.

CERT-In also publishes information regarding various cyber threats on its websites so as to keep internet users aware of the latest threats in the online world. Such information can be accessed both on the main page of the CERT-In website or under the Advisories section on the website. [34]

2k. States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity.

There are no official or public reports of India using its CERT-In to harm the information systems of another state, although it is highly unlikely that any state would publicly acknowledge such activities even if it was indulging in them.

3. Conclusion

As can be seen from the discussion above, the statutory, regulatory and policy regime in India does seem to address most of the cyber security norms in some manner or the other, but these efforts almost always fall short of meeting some of the norms. While the Information Technology Act along with the Rules thereunder, as being the umbrella legislation for digital transactions in India, does address some of the issues mentioned above, it does not address some of the problems that arise out of a greater reliance on the internet such as spamming, trolling, and, online harassment, etc. Although some of these acts may be addressed by regular legislation by applying them in the online world however this does not always take into account the unique features and complexities of committing these acts/crimes in the online world.

In the area of exchange of information between states, India has entered into a number of MLATs and extradition treaties, and frequently issues Letters of Rogatory. Yet however these mechanisms may not be adequate to address the needs of crime prevention of crimes in the age of ICT, as crime prevention it often requires exchange of information inon r a real time basis which is not possible with the bureaucratic procedures involved in the MLAT process. There also needsd to be stronger standards which are applicable to ICT equipment, including imported equipment especially in light of the fact that security concerns related to Chinese ICT equipment that from China have been raised quite frequently in the past. There also needs to be a better system of reporting ICT vulnerabilities to CERT-In or other authorized agencies so that mitigation measure can be implemented in time.

It should be noted that the work of the Group of Experts is not complete since the General Assembly has asked the Secretary General to form a new Group of Experts which would report back to the Secretary General in 2017. It is imperative that the Government of India realise the importance of the work being done by the Group of Experts and take measures to ensure that a representative from India is included in or atleast the comments and concerns of India are included and addressed by the Group of Experts. Meanwhile, India can begin by strengthening domestic privacy safeguards, improving transparency and efficiency of relevant policies and processes, and looking towards solutions that respect rights and strengthen security. Brutent force solutions such as demands for back doors, unfair and unreasonable encryption regulation, and data localization requirements will not help propel India forward in international discussions, dialogues, or agreements on cross-border sharing of information. Though the recommendations from the Group of Experts are welcome, beyond a preliminary mention of privacy and freedom of expression, the rights of individuals - and the ways in which these can be protected, various components that go into supporting those rights including redress, transparency, and due process measures - was inadequately addressed.

[1] The terms "cyberspace" has been defined in the Oxford English Dictionary as the notional environment in which communication over computer networks occurs. Although the scope of this paper is not to discuss the meaning of this term, it was felt that a simple definition of the term would be useful to better define the parameters of the discussion.

[2] https://s3.amazonaws.com/unoda-web/wp-content/uploads/2016/01/A-RES-70-237-Information-Security.pdf

[3] https://www.justsecurity.org/29203/british-searches-america-tremendous-opportunity/

[4] http://deity.gov.in/content/country-wise-status

[5] Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes

Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years.

[6] http://deity.gov.in/sites/upload_files/dit/files/Plan_Report_on_Cyber_Security.pdf

[7] List of the countries is available at http://cbi.nic.in/interpol/mlats.php

[8] https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society

[9] Peter Swire& Justin D. Hemmings, "Re-Engineering the Mutual Legal Assistance Treaty Process", http://www.heinz.cmu.edu/~acquisti/SHB2015/Swire.docx, cf. https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society .

[10] MLATS and International Cooperation for Law Enforcement Purposes, available at http://cis-india.org/internet-governance/blog/presentation-on-mlats.pdf

[11] The full list of the countries with which India has agreed an MLAT is available at http://cbi.nic.in/interpol/extradition.php

[12] http://cbi.nic.in/interpol/assist.php

[13] http://www.firstpost.com/india/how-the-police-tracked-and-arrested-im-founder-yasin-bhatkal-1071755.html

[14] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641

[15] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014

[16] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212

[17] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=14584

[18] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=26571

[19] http://dspace.judis.nic.in/bitstream/123456789/26592/1/36303.pdf

[20] 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."

[21] 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 Constitution and 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."

[22] (1975) 2 SCC 148.

[23] (1994) 6 SCC 632.

[24] (1997) 1 SCC 301.

[25] http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril

[26] http://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act

[27] http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf

[28] http://deity.gov.in/sites/upload_files/dit/files/S_O_18(E).pdf

[29]

[30] http://deity.gov.in/sites/upload_files/dit/files/GSR_19(E).pdf

[31] Rule 4 of the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.

[32] Since these Guidelines were not publicly released they are not available on any government website. In this paper we have relied on a version available on a private website at http://perry4law.org/cecsrdi/wp-content/uploads/2013/12/Guidelines-For-Protection-Of-National-Critical-Information-Infrastructure.pdf

[33] Available at http://www.cert-in.org.in/

[34] http://www.cert-in.org.in/

List of Acronyms

ICTs – Information Communication Technologies
GGE – Group of Experts
EU – European Union
DLC-ICT – India-Belarus Digital Learning Center
IT Act – Information Technology Act, 2000
UL - Unified License
DEITY – Department of Electronics and Information Technology
IT – Information Technology
ISO – International Organization for Standardisation
CERT – Computer Emergency Response Team
CERT-In - Computer Emergency Response Team, India
MLAT – Mutual Legal Assistance Treaty
CII – Critical Information Infrastructure
NCIIPC - National Critical Information Infrastructure Protection Centre
NTRO - National Technical Research Organisation
NPIT - National Policy on Information Technology
CISO - Chief Information Security Officer

For more details visit https://cis-india.org/internet-governance/blog/analysis-report-experts-information-telecommunications-security-implications-india

Submitted Comments on the 'Government Open Data Use License - India'

sinha — 2016-07-26T09:23:48Z

The public consultation process of the draft open data license to be used by Government of India has ended yesterday. Here we share the text of the submission by CIS. It was drafted by Anubha Sinha, Pranesh Prakash, and Sumandro Chattapadhyay.

The following comments on the 'Government Open Data Use License - India' was drafted by Anubha Sinha, Pranesh Prakash, and Sumandro Chattapadhyay, and submitted through the MyGov portal on July 25, 2016. The original submission can be found here.

I. Preliminary

This submission presents comments by the Centre for Internet and Society (“CIS”) [1] on the draft Government Open Data Use License - India (“the draft licence”) [2] by the Department of Legal Affairs.
This submission is based on the draft licence released on the MyGov portal on June 27, 2016 [3].
CIS commends the Department of Ministry of Law and Justice, Government of India for its efforts at seeking inputs from various stakeholders prior to finalising its open data licence. CIS is thankful for the opportunity to have been a part of the discussion during the framing of the licence; and to provide this submission, in furtherance of the feedback process continuing from the draft licence.

II. Overview

The Centre for Internet and Society is a non-governmental organisation engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. This clause-by-clause submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. Accordingly, the comments in this submission aim to further these principles and are limited to those clauses that most directly have an impact on them.

III. Comments and Recommendations

Name of the Licence: CIS recommends naming the licence “Open Data Licence - India” to reflect the nomenclature already established for similar licences in other nations like the UK and Canada. More importantly, the inclusion of the word ‘use’ in the original name “Government Open Data Use License” is misleading, since the licence permits use, sharing, modification and redistribution of open data.
Change Language on Permissible Use of Data: The draft licence uses the terms “Access, use, adapt, and redistribute,” which are used in UNESCO’s definition of open educational resources, whereas, under the Indian Copyright Act [4], it should cover “reproduction, issuing of copies,” etc. To resolve this difference, we suggest the following language be used: “Subject to the provisions of section 7, all users are provided a worldwide, royalty-free, non-exclusive licence to all rights covered by copyright and allied rights, for the duration of existence of such copyright and allied rights over the data or information.”
Add Section on the Scope of Applicability of the Licence: It will be useful to inform the user of the licence on its applicability. The section may be drafted as: “This licence is meant for public use, and especially by all Ministries, Departments, Organizations, Agencies, and autonomous bodies of Government of India, when publicly disclosing, either proactively or reactively, data and information created, generated, collected, and managed using public funds provided by Government of India directly or through authorized agencies.”
Add Sub-Clause Specifying that the Licence is Agnostic of Mode of Access: As part of the section 4 of the draft licence, titled ‘Terms and Conditions of Use of Data,’ a sub-clause should be added that specifies that users may enjoy all the freedom granted under this licence irrespective of their preferred mode of access of the data concerned, say manually downloaded from the website, automatically accessed via an API, collected from a third party involved in re-sharing of this data, accessed in physical/printed form, etc.
Add Sub-Clause on Non-Repudiability and Integrity of the Published Data: To complement the sub-clause 6.e. that notes that data published under this licence should be published permanently and with appropriate versioning (in case of the published data being updated and/or modified), another sub-clause should be added that states that non-repudiability and integrity of published data must be ensured through application of real/digital signature, as applicable, and checksum, as applicable. This is to ensure that an user who has obtained the data, either in physical or digital form, can effectively identify and verify the the agency that has published the data, and if any parts of the data have been lost/modified in the process of distribution and/or transmission (through technological corruption of data, or otherwise).
Combine Section 6 on Exemptions and Section 7 on Termination: Given that the licence cannot reasonably proscribe access to data that has already been published online, it is suggested that it would be better to simply terminate the application of the licence to that data or information that ought not to have been published for grounds provided under section 8 of the RTI Act, or have been inadvertently published. It should also be noted that section 8 of the RTI Act cannot be “violated” (as stated in Section 6.g. of the draft licence), since it only provides permission for the public authority to withhold information, and does not impose an obligation on them (or anyone else) to do so. The combined clause can read: “Upon determination by the data provider that specific data or information should not have been publicly disclosed for the grounds provided under Section 8 of the Right to Information Act, 2005, the data provider may terminate the applicability of the licence for that data or information, and this termination will have the effect of revocation of all rights provided under Section 3 of this licence.”
It will be our pleasure to discuss these submissions with the Department of Legal Affairs in greater detail, supplement these with further submissions if necessary, and offer any other assistance towards the efforts at developing a national open data licence.

[1] See: http://cis-india.org/.

[2] See: https://www.mygov.in/sites/default/files/mygov_1466767582190667.pdf.

[3] See: https://www.mygov.in/group-issue/public-consultation-government-open-data-use-license-india/.

[4] See: http://www.copyright.gov.in/Documents/CopyrightRules1957.pdf.

For more details visit https://cis-india.org/openness/submitted-comments-on-the-government-open-data-use-license-india

CIS Submission to TRAI Consultation on Free Data

pranesh — 2016-07-01T16:04:27Z

The Telecom Regulatory Authority of India (TRAI) held a consultation on Free Data, for which CIS sent in the following comments.

The Telecom Regulatory Authority of India (TRAI) asked for public comments on free data. Below are the comments that CIS submitted to the four questions that it posed.

Question 1
Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.

Is There a Need for Free Data?

No, there is no need for free data, just as there is no need for telephony or Internet. However, making provisions for free data would increase the amount of innovation in the Internet and telecom sector, and there is a good probability that it would lead to faster adoption of the Internet, and thus be beneficial in terms of commerce, freedom of expression, freedom of association, and many other ways.

Thus the question that a telecom regulator should ask is not whether there is a need for TSP agnostic platforms, but whether such platforms are harmful for competition, for consumers, and for innovation. The telecom regulator ought not undertake regulation unless there is evidence to show that harm has been caused or that harm is likely to be caused. In short, TRAI should not follow the precautionary principle, since the telecom and Internet sectors are greatly divergent from environmental protection: the burden of proof for showing that something ought to be prohibited ought to be on those calling for prohibition.

Goal: Regulating Gatekeeping

TRAI wouldn’t need to regulate price discrimination or Net neutrality if ISPs were not “gatekeepers” for last-mile access. “Gatekeeping” occurs when a single entity establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach their end customers without passing through ISPs (generally telecom networks). The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in “transit agreements”, a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is generally not possible in the last mile.¹ This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice.

However, the aim of regulation by TRAI cannot be to prevent gatekeeping, since that is not possible as long as there are a limited number of ISPs. For instance, even by the very act of charging money for access to the Internet, ISPs are guilty of “gatekeeping” since they are controlling who can and cannot access an Internet service that way. Instead, the aim of regulation by TRAI should be to “regulate gatekeepers to ensure they do not use their gatekeeping power to unjustly discriminate between similarly situated persons, content or traffic”, as we proposed in our submission to TRAI (on OTTs) last year.

Models for Free Data

There are multiple models possible for free data, none of which TRAI should prohibit unless it would enable OTTs to abuse their gatekeeping powers.

Government Incentives For Non-Differentiated Free Data

The government may opt to require all ISPs to provide free Internet to all at a minimum QoS in exchange for exemption from paying part of their USO contributions, or the government may pay ISPs for such access using their USO contributions.

TRAI should recommend to DoT that it set up a committee to study the feasibility of this model.

ISP subsidies

ISP subsidies of Internet access only make economic sense for the ISP under the following ‘Goldilocks’ condition is met: the experience with the subsidised service is ‘good enough’ for the consumers to want to continue to use such services, but ‘bad enough’ for a large number of them to want to move to unsubsidised, paid access.

Providing free Internet to all at a low speed.
1. This naturally discriminates against services and applications such as video streaming, but does not technically bar access to them.
Providing free access to the Internet with other restrictions on quality that aren’t discriminatory with respect to content, services, or applications.

Rewards model

A TSP-agnostic rewards platform will only come within the scope of TRAI regulation if the platform has some form of agreement with the TSPs, even if it is collectively. If the rewards platform doesn’t have any agreement with any TSP, then TRAI does not have the power to regulate it. However, if the rewards platform has an agreement with any TSP, it is unclear whether it would be allowed under the Differential Data Tariff Regulation, since the clause 3(2) read with paragraph 30 of the Explanatory Memorandum might disallow such an agreement.

Assuming for the sake of argument that platforms with such agreements are not disallowed, such platforms can engage in either post-purchase credits or pre-purchase credits, or both. In other words, it could be a situation where a person has to purchase a data pack, engage in some activity relating to the platform (answer surveys, use particular apps, etc.) and thereupon get credit of some form transferred to one’s SIM, or it could be a situation where even without purchasing a data pack, a consumer can earn credits and thereupon use those credits towards data.

The former kind of rewards platform is not as useful when it comes to encouraging people to use the Internet, since only those who already see worth in using in the Internet (and can afford it) will purchase a data pack in the first place. The second form, on the other hand is quite useful, and could be encouraged. However, this second model is not as easily workable, economically, for fixed line connections, since there is a higher initial investment involved.

Recharge API

A recharge API could be fashioned in one of two ways: (1) via the operating system on the phone, allowing a TSP or third parties (whether OTTs or other intermediaries) to transfer credit to the SIM card on the phone which have been bought wholesale. Another model could be that of all TSPs providing a recharge API for the use of third parties. Only the second model is likely to result in a “toll-free” experience since in the first model, like in the case of a rewards platform that requires up-front purchase of data packs, there has to be a investment made first before that amount is recouped. This is likely to hamper the utility of such a model.

Further, in the first case, TRAI would probably not have the powers to regulate such transactions, as there would be no need for any involvement by the TSP. If anti-competitive agreements or abuse of dominant position seems to be taking place, it would be up to the Competition Commission of India to investigate.

However, the second model would have to be overseen by TRAI to ensure that the recharge APIs don’t impose additional costs on OTTs, or unduly harm competition and innovation. For instance, there ought to be an open specification for such an API, which all the TSPs should use in order to reduce the costs on OTTs. Further, there should be no exclusivity, and no preferential treatment provided for the TSPs sister concerns or partners.

“0.example” sites

Other forms of free data, for instance by TSPs choosing not to charge for low-bandwidth traffic should be allowed, as long as it is not discriminatory, nor does it impose increased barriers to entry for OTTs. For instance, if a website self-certifies that it is low-bandwidth and optimized for Internet-enabled feature phones and uses 0.example.tld to signal this (just as wap.* were used in for WAP sites and m.* are used for mobile-optimized versions of many sites), then there is no reason why TSPs should be prohibited from not charging for the data consumed by such websites, as long as the TSP does so uniformly without discrimination. In such cases, the TSP is not harming competition, harming consumers, nor abusing its gatekeeping powers.

OTT-agnostic free data

If a TSP decides not to charge for specific forms of traffic (for example, video, or for locally-peered traffic) regardless of the Internet service from which that traffic emanates, as as long as it does so with the end customer’s consent, then there is no question of the TSP harming competition, harming consumers, nor abusing its gatekeeping powers. There is no reason such schemes should be prohibited by TRAI unless they distort markets and harm innovation.

Unified marketplace

One other way to do what is proposed as the “recharge API” model is to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP’s ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn’t lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn’t there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

Question 2

Whether such platforms need to be regulated by the TRAI or market be allowed to develop these platforms?

In many cases, TRAI would have no powers over such platforms, so the question of TRAI regulating does not arise. In all other cases, TRAI can allow the market to develop such platforms, and then see if any of them violates the Discriminatory Data Tariffs Regualation. For government-incentivised schemes that are proposed above, TRAI should take proactive measure in getting their feasibility evaluated.

Question 3

Whether free data or suitable reimbursement to users should be limited to mobile data users only or could it be extended through technical means to subscribers of fixed line broadband or leased line?

Spectrum is naturally a scarce resource, though technological advances (as dictated by Cooper’s Law) and more efficient management of spectrum make it less so. However, we have seen that fixed-line broadband has more or less stagnated for the past many years, while mobile access has increased. So the market distortionary power of fixed-line providers is far less than that of mobile providers. However, competition is far less in fixed-line Internet access services, while it is far higher in mobile Internet access. Switching costs in fixed-line Internet access services are also far higher than in mobile services. Given these differences, the regulation with regard to price discrimination might justifiably be different.

All in all, for this particular issue, it is unclear why different rules should apply to mobile users and fixed line users.

Question 4

Any other issue related to the matter of Consultation.

None.

In India’s mobile telecom sector, according to a Nielsen study, an estimated 15% of mobile users are multi-SIM users, meaning the “gatekeeping” effect is significantly reduced in both directions: Internet services can reach them via multiple ISPs, and conversely they can reach Internet services via multiple ISPs. See Nielsen, ‘Telecom Transitions: Tracking the Multi-SIM Phenomena in India’, http://www.nielsen.com/in/en/insights/reports/2015/telecom-transitions-tracking-the-multi-sim-phenomena-in-india.html↩

For more details visit https://cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data

Submission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior

vidushi — 2016-06-30T06:07:37Z

Prepared by Vidushi Marda, with inputs from Dr. Nirmita Narasimhan and Sunil Abraham.

We at the Centre for Internet and Society (“CIS”) are grateful for the opportunity to comment on the proposed revisions to ICANN’s Expected Standards of Behavior (“Standards”).

Before providing specific comments on the proposed revisions, CIS would like to state for the record our extreme disappointment while noting that there is no indication of the intention to draft and adopt a dedicated anti - harassment policy. We are of the firm opinion that harassment, and particularly sexual harassment, is not only a sensitive topic, but also a deeply complex one. Such a policy should consider scope, procedural questions, redressal and remedies in cases of harassment in general and sexual harassment in particular. A mere change in language to these Standards, however well intentioned, cannot go too far in preventing and dealing with cases of harassment in the absence of a framework within which such instances can be addressed.

Some of the issues that arose at ICANN55 were confusion surrounding the powers and limits of the Ombudsman’s office in dealing with cases of harassment, the exact procedure to be followed for redressal surrounding such incidents, and the appropriate conduct of parties to the matter. There will be no clarity in these respects, even if these proposed changes are to be adopted.

Specifically, the proposed language is problematic and completely inadequate for the following reasons:

Vague

Terms like “professional conduct” and “appropriate behavior” mean little in the absence of a definition that entails such conduct. These terms could mean vastly different things to each community member and such language will only encourage a misalignment of expectation of conduct between community members. The “general” definition of harassment is at best, an ineffective placeholder, as it does not encompass exactly what kind of behavior would fall under its definition.
Fails to consider important scenarios

The proposed language fails to consider situations where some attempts or advances at communication, sexual or otherwise, occur. For example, consider a situation in which one community member stalks another online, and catalogues his/her every move. This is most certainly foreseeable, but will not be adequately covered by the proposed language. Further, terms like “speech or behavior that is sexually aggressive or intimidates” could or could not include types of speech such as art, music, photography etc, depending on who you ask. It also does not explain the use of the word behavior - physical, emotional, professional, online behavior are all possible, but the scope of this term would depend on the interpretation one chooses to apply. In part 4 below, we will demonstrate how ICANN has applied a far more detailed framework for harassment elsewhere.
Ignores complexity

In discussions surrounding the incident at ICANN55, a number of issues of arose. These included, inter alia, the definition of harassment and sexual harassment, what constituted such conduct, the procedure to be followed in such cases, the appropriate forum to deal with such incidents and the conduct that both parties are expected to maintain. These questions cannot, and have not been answered or addressed in the proposed change to the Standards. CIS emphasizes the need to understand this issue as one that must imbibe differences in culture, expectation, power dynamics, and options for redressal. If ICANN is to truly be a safe space, such issues must be substantively and procedurally fair for both the accused and the victim. This proposed definition is woefully inadequate in this regard.
Superficial understanding of harassment, sexual harassment

The proposed changes do not define harassment, and sexual harassment in an adequate fashion. The change currently reads, “Generally, harassment is considered unwelcome hostile or intimidating behavior -- in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.” These are subject to broad interpretation, and we have already highlighted the issues that may arise due to this in 1, above. Here, we would like to point to a far more comprehensive definition.

ICANN’s own Employment Policy includes within the scope of sexual harassment “verbal, physical and visual conduct that creates an intimidating, offensive or hostile working environment, or interferes with work performance.” The policy also states:

Harassing conduct can take many forms and includes, but is not limited to, the following:

Slurs, jokes, epithets, derogatory comments, statements or gestures;

Assault, impeding or blocking another’s movement or otherwise physically interfering with normal work;

Pictures, posters, drawings or cartoons based upon the characteristics mentioned in the first paragraph of this policy.
Sexually harassing conduct includes all of the above prohibited actions, as well as other unwelcome conduct, such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.”

This definition is not perfect, it does not comprehensively consider advances or attempts at communication, sexual or otherwise, which are unwelcome by the target. Nonetheless, CIS believes that this is a far more appropriate definition that does not include vague metrics that the proposed changes do. Since it is one ICANN has already adopted, it can act as an important stepping stone towards a comprehensive framework.

Like ICANN, UNESCO’s organisational approach has been to adopt a comprehensive Anti-Harassment Policy which lays down details of definition, prevention, complaint procedure, investigations, sanctions, managerial responsibility, etc. Acknowledging the cultural sensitivity of harassment particularly in international situations, the policy also recognizes advances or attempts at communication, sexual or otherwise. Most importantly, it states that for conduct to come within the definition of sexual harassment, it “must be unwelcome, i.e. unsolicited and regarded as offensive or undesirable by the victim.”

Conclusion

In conclusion, we would like to reiterate the importance of adopting and drafting a dedicated anti-harassment policy and framework. The benefits of safety, certainty and formal redressal mechanisms in cases of harassment cannot be over emphasized.

Importantly, such measures have already been taken elsewhere. The IETF has adopted an instrument to address issues of harassment that occur at meetings, mailing lists and social events. This instrument contemplates in detail, problematic behavior, unacceptable conduct, the scope of the term harassment, etc. It further envisages a framework for redressal of complaints, remediation, and even contemplates issues that may arise with such remediation. It is particularly important to note that while it provides a definition of harassment, it also states that "[a]ny definition of harassment prohibited by an applicable law can be subject to this set of procedures, recognising harassment as a deeply personal and subjective experience, and thus encouraging members to take up issues of harassment as per their cultural norms and national laws, which are then considered as per procedures laid down."

A similar effort within the ICANN community is critical.

For more details visit https://cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior

Smart City Policies and Standards: Overview of Projects, Data Policies, and Standards across Five International Smart Cities

Kiran A. B., Elonnai Hickok and Vanya Rakesh — 2016-06-11T13:29:04Z

This blog post aims to review five Smart Cities across the globe, namely Singapore, Dubai, New York City, London and Seoul, the Data Policies and Standards adopted. Also, the research seeks to point the similarities, differences and best practices in the development of smart cities across jurisdictions.

Download the brief: PDF.

Introduction

Smart City as a concept is evolutionary in nature, and the key elements like Information and Communication Technology (ICT), digitization of services, Internet of Things (IoT), open data, big data, social innovation, knowledge, etc., would be intrinsic to defining a Smart City [1].

A Smart City, as a “system of systems”, can potentially generate vast amounts of data, especially as cities install more sensors, gain access to data from sources such as mobile devices, and government and other agencies make more data accessible. Consequently, Big Data techniques and concepts are highly relevant to the future of Smart Cities. It was noted by Kenneth Cukier, Senior Editor of Digital Products at The Economist, that Big Data techniques can be used to enhance a number of processes essential to cities - for example, big data can be used to spot business trends, determine quality of research, prevent diseases, tack legal citations, combat crime, and determine real-time roadway traffic conditions [2]. Having said this, data is deemed to be the lifeblood of a Smart City and its availability, use, cost, quality, analysis, associated business models and governance are all areas of interest for a range of actors within a smart city [3]

This blog reviews five Smart Cities namely Singapore, Dubai, New York City, London and Seoul. In doing so, the research seeks to point the similarities, differences and best practices in the development of smart cities across jurisdictions. To achieve this, the research reviews:

The definition of a Smart City in a given context or project (if any).
Existing policy/regulations around data or notes the lack thereof.
The cities adherence to the International standards and providing an update on the current status of the Smart City programme.

Singapore

Introduction

The Smart Nation programme in Singapore was launched on 24th November, 2014. The programme is being driven by the Infocomm Development Authority of Singapore, through which Singapore seeks to harness ICT, networks and data to support improved livelihoods, stronger communities and creation of new opportunities for its residents [4] According to the IDA, a Smart Nation is a city where “people and businesses are empowered through increased access to data, more participatory through the contribution of innovative ideas and solutions, and a more anticipatory government that utilises technology to better serve citizens’ needs” [5]. The Smart Nation programme is driven by a designated Office in the Prime Minister’s Office [6]. As a core component to the Smart Nation Programme, the Smart Nation Platform has been developed as the technical architecture to support the Programme. This Platform enables greater pervasive connectivity, better situational awareness through data collection, and efficient sharing and access to collected sensor data, allowing public bodies to use such data to develop policy and practical interventions [7] Such access would allow for anticipatory governance - a goal of the Smart Nation Programme as noted by Dr. Yaacob Ibrahim, Minister for Communications and Information stating “Insights gained from this data would enable us to better anticipate citizens’ needs and help in better delivery of services” [8].

Status of the Project

The Smart Nation Programme is an ongoing initiative, being built on the past programme Intelligent Nation 2015 (iN2015 masterplan). The plan involves putting in place the infrastructure, policies, ecosystem and capabilities to enable a Smart Nation, by adopting a people-centric approach [9]. A number of co-creating solutions adopted by the Government include:

Development of Mobile Apps to facilitate communication between the public and the providers of public services.
Organization of Hackathons by government agencies or corporations in collaboration with schools and industry partners to ideate and develop solutions to tackle real-world challenges.
Adopt measure for smart mobility to create a more seamless transport experience and providing greater access to real-time transport information so that citizens can better plan their journeys.
Smart technologies are also being introduced to the housing estates [10].

Policies and Regulations

The Smart Nation plan derives its legitimacy from the constitution of Singapore, holding the Prime Minister responsible to take charge of the subject ‘Smart Nation’ blueprint under the Statutory body of ‘Smart Nation’ Programme Office [11]. Singapore has a comprehensive data protection law – the Personal Data Protection Act 2012, rules governing the collection, use, disclosure and care of personal data. The Personal Data Protection Commission of Singapore has committed to work closely with the private sector, and also to support the Smart Nation vision on data privacy and cyber security ecosystem [12] [13].

Towards achieving the Smart Nation vision the government has also promoted the use of open data. In 2015 the Department of Statistics has made a vast amount of data available (across multiple themes say transport, infocomm, population, etc.) for free to the public in order to encourage innovation and facilitate the Smart Nation [14]. Prior to this initiative, the government had adopted the Open Data Policy in 2011, enabling public data for analysis, research and application development [15]. The concept of Virtual Singapore, which is a part of the Smart Nation Initiative, has been developed to adopt and simulate solutions on a virtual platform using big data analytics [16].

Adoption of International Standards

The Smart Nation initiative follows the standards laid under the purview of the Singapore Standards Council (SSC). It specifies three types of Internet of Things (IoT) Standards – sensor network standards (TR38 - for public areas & TR40 - for homes), IoT foundational standards (common set of guidelines for IoT requirements and architecture, information and service interoperability, security and data integrity) and domain-specific standards (healthcare, mobility, urban living, etc.) [17].

Singapore is part of ISO/IEC JTC 1/WG7 Sensor Networks and ISO/IEC JTC 1/WG10 Internet of Things (IoT) [18]. Singapore IT standards abides to the international standards as defined by ISO, ITU, etc.Singapore is a member of many international standards forums (see Singapore International Standards Committee) which includes JTC1/WG9 - Big Data; JTC1/WG10 - Internet of Things; JTC1/WG11 - Smart Cities.

Dubai, United Arab Emirates

Introduction

The Dubai Smart City strategy was launched as part of the Dubai Plan 2021 vision, in the year 2015 [19]. Dubai Plan 2021 describes the future of Dubai evolving through holistic and complementary perspectives, starting with the people and the society and places the government as the custodian of the city’s development. Within the Plan, the smart city theme envisions a platform that is fully connected and integrated infrastructure that enables easy mobility for all residents and tourists, and provides easy access to all economic centers and social services, in line with the world’s best cities [20]. Center to the smart city platform is data and data analytics, particularly cross functional data and big data techniques to give a complete view of the city [21] As envisioned, the Dubai Data portal would provide a gateway to empower relevant stakeholders to understand the nuances of the city and pursue questions that will result in the greatest impact from the city’s data [22]. The platform will be based on current data and existing services, initiatives, and networks to identify opportunities for a smart city [23]. The Smart City Plan also includes a framework for aligning districts of Dubai with the Smart City vision and dimensions [24].

The Smart Dubai roadmap 2015 provides a consolidated report and planned smart city services, its status and the stage of its implementation, for e.g. Smart Grid, Mobile Payment, Smart Water, Health applications, Public Wi-Fi, Municipality, E-Traffic solutions, etc [25].

Status of the Project

The Smart Dubai strategy is envisioned to be completed by the year 2020, and currently it’s ongoing. The first phase of Smart Dubai masterplan is expected to end by 2016. Between 2017 and 2019, the plan aims to deliver new initiatives and services. The second phase of the masterplan is expected to be completed by the year 2020 [26].

Policies and Regulations

The Smart City Plan is being driven by the Dubai Smart City Office – which has been established under Law No. (29) of 2015 on the establishment of Dubai Smart City Office; Law No. (30) of 2015 on the establishment of Dubai Smart City Establishment; Decree No. (37) of 2015 on the formation of the Board of the Dubai Smart City Office; and Decree No (38) of 2015- appointing a Director General for the Office, which will develop overall policies and strategic plans, supervise the smart transformation process and approve joint initiatives, projects and services [27]. Also, an open data law called Dubai Open Data Law was issued to complete the legislative framework for transforming Dubai into a Smart City [28]. This law will enable the sharing of non-confidential data between public entities and other stakeholders.

Adoption of International Standards

In 2015 the Smart Dubai Executive Committee has collaborated through an agreement with the International Telecommunications Union (ITU) adopt the performance indicators by the ITU Focus Group on Smart Sustainable Cities to evaluate the feasibility of the indicators [29]. The Focus Group is working towards identifying global best practices for the development of smart cities [30].

New York City, United States of America

Introduction

The ‘One New York Plan’ announced in the year 2015 is a comprehensive plan for a sustainable and resilient city. It includes the adoption of digital technology and considers the importance of the role of data in transforming every aspect of the economy, communications, politics, and individual and family life [31]. Furthermore, through a publication on 'Building a Smart+Equitable City', the Mayor’s Office of Technology and Innovation (MOTI) describes efforts to leverage new technologies to build Smart city.

Accordingly, the plan seeks to establish better lives through establishing principles and strategic frameworks to guide connected device and Internet of Things (IoT) implementation; MOTI serving as the coordinating entity for new technology and IoT deployments across all City agencies; collaborating with academia and the private sector on innovative pilot projects, and partnering with municipal governments and organizations around the world to share best practices and leverage the impact of technological advancements [32].

Status of the Project

OneNYC represents a unified vision for a sustainable, resilient, and equitable city developed with cross-cutting interagency collaboration, public engagement, and consultation with leading experts in their respective fields. The Mayor’s Office of Sustainability oversees the development of OneNYC and now shares responsibility with the Mayor’s Office of Recovery and Resiliency for ensuring its implementation [33].

Policies and Regulations

As per the Local Law 11 of 2012, each City entity must identify and ultimately publish all of its digital public data for citywide aggregation and publication by 2018. In adherence to this law, there exists a NYC Open Data Plan which requires annual data updation [34].

The LinkNYC initiative, one of the key projects to make New York a ‘smart’ city, aims to connect everyone through a city wide wi-fi network. The LinkNYC initiative will retrofit payphones with kiosks to provide high-speed WiFi hotspots and charging stations for increased connectivity [35]. Data Privacy in the initiative is addressed through the customer first privacy policy, which considers user’s privacy on priority and will not sell any personal information or share with third parties for their own use. LinkNYC will use anonymized, aggregate data to make the system more efficient and to develop insights to improve your Link experience [36].

Adoption of International Standards

The ANSI Network on Smart and Sustainable Cities (ANSSC) is a forum for information sharing and coordination on voluntary standards, conformity assessment and related activities for smart and sustainable cities in the US [37]. The US is a signatory of the ISO/ITU defined standards on smart cities [38].

London, United Kingdom

Introduction

The Smart London Plan was unveiled in the year 2013 by the Mayor of London. The plan is being driven through the Greater London Authority, with the advice of the Smart London Board. The Smart London Plan envisions ‘Using the creative power of new technologies to serve London and improve Londoner’s lives’ [39]. ‘Smart London’ is about harnessing new technology and data so that businesses, Londoners and visitors experience the city in a better way, and do not face bureaucratic hassle and congestion. Smart London seeks to improve the city as a whole and focuses on city macro functions that result from the interplay between city subsystems - such as local labour markets to financial markets, from local government to education, healthcare, transportation and utilities. According to strategy documents, a smarter London recognises and employs data as a service and will leverage data to enable informed decision making and the design of new activities.

Status of the Project

This project is currently ongoing. Since its formation in March 2013, the Smart London Board has been advising the Greater London Authority.The Plan sits within the overarching framework of the Mayor’s Vision 2020 [40].

Policies and Regulations

The Smart London Plan incorporates the existing open data platform called ‘London DataStore’. The rules and guidelines for this platform are defined by the Greater London Authority, which includes working with public and private sector organisations to create, maintain and utilise it, enabling common data standards, identify and prioritise which data are needed to address London’s growth challenges, establish a Smart London Borough Partnership to encourage boroughs to free up London’s local level data. Also, privacy is protected and there is transparent use of data - to ensure data use is managed in the best interests of the public rather than private enterprise.⁴² The Smart London Plan aims to build on this existing datastore to identify and publish data that addresses specific growth challenges, with an emphasis on working with companies and communities to create, maintain, and use this data [41].

The Open Data White Paper, issued by the Office of Paymaster General, seeks to build a transparent society by releasing public data through open data platforms and leveraging the potential of emerging technologies [42]. The Greater London Authority processes personal data in accordance with the Data Protection Act 1998 [43].

Adoption of International Standards

The British Standards Institution (BSI) has already established Smart City standards and has associated with the ISO Advisory Group on smart city standards. The UK subscribes to the BSI standards for smart cities and has adopted the same [44]. The following standards and publications help address various issues for a city to become a smart city:

The development of a standard on Smart city terminology (PAS 180)
The development of a Smart city framework standard (PAS 181)
The development of a Data concept model for smart cities (PAS 182)
A Smart city overview document (PD 8100)
A Smart city planning guidelines document (PD 8101)
BS 8904 Guidance for community sustainable development provides a decision-making framework that will help setting objectives in response to the needs and aspirations of city stakeholders
BS 11000 Collaborative relationship management
BSI BIP 2228:2013 Inclusive urban design - A guide to creating accessible public spaces.

Further, the Smart London Plan incorporates open data standards in accordance with London DataStore [45]. Various government reports – Smart Cities background paper, Open Data White Paper, etc., have suggested the use of standards related to Internet of Things (IoT), open data standards, etc [46].

Seoul, Korea

Introduction

Smart Seoul 2015 was announced in June 2011 by the Seoul Metropolitan Government, which envisions integrating IT services into every field, including administration, welfare, industry and living. Through this, the Seoul Metropolitan Government plans to create a Seoul that uses smart technologies by 2015 [47]. Towards this, the Seoul Metropolitan Government plans to make use of Big Data in policy development, and through scientific analytics, will provide customized administrative services and reduce wasteful spending. Also, the government is utilising Big Data to analyse trends emerging from existing services [48]. Examples of projects that leverage big data that the government has undertaken include the Taxi Matchmaking Project – analyzes the data related to taxi stands and passengers, the Owl Bus [49] - maps the bus routes, etc.

Status of the Project

Building on the Smart Seoul 2015, the Seoul Metropolitan Government plans to establish 'Global Digital Seoul 2020 – New Connections, Different Experiences' vision in next five-years. In this multi-objective plan, it aims to establish a ’Big Data campus’ providing win-win cooperation among public, private, industry and university [50].

Policies and Regulations

The Smart Seoul 2015 aims to create a ‘Seoul Data Mart’, which will be an open platform that makes public information available for data processing [51]. Furthermore, Seoul has opened the Seoul Open Data Plaza [52], an online channel to share and provide citizens with all of Seoul’s public data, such as real-time bus operation schedules, subway schedules, non-smoking areas, locations of public Wi-Fi services, shoeshine shops, and facilities for disabled people, and the information registered in Seoul Open Data Plaza is provided in the open API format.⁴⁵

South Korea has a comprehensive law governing data privacy – Personal Information Protection Act, 2011. The law includes data protection rules and principles, including obligations on the data controller and the consent of data subjects, rights to access personal data or object to its collection, and security requirements. It also covers cookies and spam, data processing by third parties and the international transfer of data [53].

International Standards

The smart city standards are adopted in the development of smart cities in Korea [54]. Korea has adopted the ISO/TC 268, which is focused on sustainable development in communities. Korea also has one working group developing city indicators and another working group developing metrics for smart community infrastructures [55].

Conclusion

The smart city projects studied are at different levels of implementation and have both similarities and differences. Below is an analysis of some of the key similarities and differences between smart city projects, a comparison of these points to India’s 100 Smart City Mission, and a summary of best practices around the development of smart city frameworks.

Nodal Agency

All cities studied have nodal agencies driving the smart city initiatives and many have policies in place backing these initiatives. For example, while the Smart Nation programme in Singapore is being driven by the Infocomm Development Authority, in London the smart city project is governed by the Great London Authority. The Smart Seoul Project in Korea is governed by the Seoul Metropolitan Government and New York has the Mayor’s Office of Technology and Innovation serving as the coordinating entity for new technology and IoT deployments across all City agencies. In India, the nodal agency driving the 100 Smart Cities Project is the Ministry of Urban Development under the Indian Government. In India, the implementation of the Mission at the City level will be done by a Special Purpose Vehicle (SPV), which will be a limited company and will plan, appraise, approve, release funds, implement, manage, operate, monitor and evaluate the Smart City development projects.

Policies

Many of the cities had open data policies and data protection policies that pertain to the Smart City initiatives. In Dubai, an open data law called Dubai Open Data Law has been issued to complete the legislative framework for transforming Dubai into a Smart City and the Smart City Establishment will develop policies for the project. New York also has an Open Data Plan in place and LinkNYC will use anonymized, aggregate data to address data privacy of users. In London, the Smart London Plan incorporates the existing open data platform called ‘London DataStore’, the rules for which are defined by the Greater London Authority, which also ensures privacy and transparent use of data by processing personal data in accordance with the Data Protection Act 1998. For regulation of data in Seoul, a ‘Seoul Data Mart’ will be established to make public information available for data processing and the Seoul Open Data Plaza is an existing online channel to share and provide citizens with all of Seoul’s public data. South Korea has a comprehensive law governing data privacy in place as well. In Singapore, the Personal Data Protection Commission has committed to work and support the Smart Nation vision on data privacy and cyber security ecosystem. To achieve the vision of the project, the government has also promoted the use of open data. It can be said the these countries , with clearly laid out policies to support and guide the project, have well planned ecosystem for regulation and governance of systems, technologies and cities. All cities have incorporated open data into smart cities and many have developed guidelines for its use. All cities have similar goals of enhancing the lives of citizens and developing anticipatory regulation, however, there appears to be little discussion on the need to amend existing law or enable new law around privacy and data protection in light of data collection through smart cities. In India, no enabling legislation or policy has been formulated by the Government, apart from releasing “Mission Statement and Guidelines”, which provides details about the Project and vision, excluding a definition of a ‘smart city’ or the relevant applicable laws and policies. No information is publicly available regarding deployment of open data, use of specific technologies like cloud, big data, etc., the relevant policies and applicability of laws. Unlike India, all cities recognize the importance of big data techniques in enabling smart city visions, technology and policies. On the lines of these cities, India must work towards addressing the need for an open data framework in light of the 100 Smart Cities Mission to enable the sharing of non-confidential data between public entities and other stakeholders. This requires co-ordination to incorporate, enable and draw upon open data architecture in the cities by the Government with the existing open data framework in India, like the National Data Sharing and Accessibility Policy, 2012. Use of technology in the form of IoT and Big Data entails access to open data, bringing another policy area in its ambit which needs consideration. Also, identification and development of open standards for IoT must be looked at. Also, as data in smart cities will be generated, collected, used, and shared by both the public and private sector. It is essential that India’s existing data protection standards and regime must be amended to extend the data regulation beyond a body corporate and oversee the collection and use of data by the Government, and its agencies.

Standards

In Singapore, the Smart Nation initiative follows the standards laid under the purview of the Singapore Standards Council (SSC)and the Singapore IT standards abides to the international standards as defined by ISO, ITU, etc. The Country is also a member of many international standards forums (see Singapore International Standards Committee) which includes JTC1/WG9- Big Data; JTC1/WG10 - Internet of Things; JTC1/WG11 - Smart Cities. In Dubai, the Smart Dubai Executive Committee with the International Telecommunications Union (ITU) to adopt the performance indicators by the ITU Focus Group on Smart Sustainable Cities to evaluate the feasibility of the indicators. For the purpose of standards, the ANSI Network on Smart and Sustainable Cities (ANSSC) in New York is a forum smart and sustainable cities, along with US being a signatory of the ISO/ITU defined standards on smart cities. Also, The British Standards Institution (BSI) has already established Smart City standards and has associated with the ISO Advisory Group on smart city standards. The UK subscribes to the BSI standards for smart cities and has adopted the same and the Smart London Plan incorporates open data standards in accordance with London DataStore. For development of smart cities, Korea has adopted the ISO/TC 268, which is focused on sustainable development in communities and also has one working group developing city indicators and another working group developing metrics for smart community infrastructures. However, in India, the Bureau of Indian Standards (BIS) has undertaken the task to formulate standardised guidelines for central and state authorities in planning, design and construction of smart cities by setting up a technical committee under the Civil engineering department of the Bureau. However, adoption of the standards by implementing agencies would be voluntary and intends to complement internationally available documents in this area. Also, The Global Cities Institute (GCI) has undertaken a mission in the year 2015 to align with the Bureau of Indian Standards regarding development of standards of smart cities and also to forge relationships with Indian cities in light of ISO 37120. It can be said that India has currently not yet adopted international standards, but is in the process of developing national standards and adopting key international standards. Unlike other cities,which are adopting standards - national, ISO, or ITU, Indian cities are yet to adopt standards for regulation of the future smart cities.

Notes for India

India is in the nascent stages of developing smart cities across the country. Drawing from the practices adopted by cities across the world, smart cities in India should adopt strong regulatory and governance frameworks regarding technical standards, open data and data security and data protection policies. These policies will be essential in ensuring the sustainability and efficiency of smart cities while safeguarding individual rights. Some of these policies are already in place - such as India’s Open Data Policy and India’s data protection standards under section 43A of the ITA. It will be important to see how these policies are adopted and applied to the context of smart cities.

References

[1] Smart Cities and Transparent Evolution, http://www.posterheroes.org/Posterheroes3/_mat/PH3_eng.pdf.

[2] "Data, Data Everywhere." The Economist, February 25, 2010. Accessed March 17, 2016, http://www.economist.com/node/15557443.

[3] "Smart Cities." ISO. 2015. Accessed March 17, 2016, http://www.iso.org/iso/smart_cities_report-jtc1.pdf.

[4] Transcript of Prime Minister Lee Hsien Loong's speech at Smart Nation launch on 24 November, http://www.pmo.gov.sg/mediacentre/transcript-prime-minister-lee-hsien-loongs-speech-smart-nation-launch-24-november.

[5] Smart Nation Vision, https://www.ida.gov.sg/Tech-Scene-News/Smart-Nation-Vision.

[6] Smart Nation, http://www.pmo.gov.sg/smartnation.

[7] Smart Nation Platform, https://www.ida.gov.sg/~/media/Files/About%20Us/Newsroom/Media%20Releases/2014/0617_smartnation/AnnexA_sn.pdf.

[8] Transcript of Prime Minister Lee Hsien Loong's speech at Smart Nation launch on 24 November, https://www.ida.gov.sg/blog/insg/featured/singapore-lays-groundwork-to-be-worlds-first-smart-nation/.

[9] Prime Ministers’ Office Singapore-Smart Nation, http://www.pmo.gov.sg/smartnation.

[10] Prime Ministers’ Office Singapore-Smart Nation, http://www.pmo.gov.sg/smartnation.

[11] Constitution of the Republic of Singapore (Responsibility of the Prime Minister) Notification 2015, http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=Status%3Acurinforce%20Type%3Aact,sl%20Content%3A%22smart%22;rec=4;resUrl=http%3A%2F%2Fstatutes.agc.gov.sg%2Faol%2Fsearch%2Fsummary%2Fresults.w3p%3Bquery%3DStatus%253Acurinforce%2520Type%253Aact,sl%2520Content%253A%2522smart%2522;whole=yes.

[12] Personal Data Protection Singapore-Annual Report 2014-15, https://www.pdpc.gov.sg/docs/default-source/Reports/pdpc-ar-fy14---online.pdf.

[13] Balancing Innovation and Personal Data Protection, https://www.ida.gov.sg/Tech-Scene-News/Tech-News/Digital-Government/2015/9/Balancing-innovation-and-personal-data-protection.

[14] Department of Statistics Singapore- Free Access to More Data on the SingStat Website from 1 March 2015, http://www.singstat.gov.sg/docs/default-source/default-document-library/news/press_releases/press27022015.pdf.

[15] Singapore Marks 50th Birthday With Open Data Contest, https://blog.hootsuite.com/singapore-open-data/.

[16] Virtual Singapore - a 3D city model platform for knowledge sharing and community collaboration, http://www.sla.gov.sg/News/tabid/142/articleid/572/category/Press%20Releases/parentId/97/year/2014/Default.aspx.

[17] Internet of Things (IoT) Standards Outline to Support Smart Nation Initiative Unveiled, http://www.spring.gov.sg/NewsEvents/PR/Pages/Internet-of-Things-(IoT)-Standards-Outline-to-Support-Smart-Nation-Initiative-Unveiled-20150812.aspx.

[18] Information Technology Standards Committee, https://www.itsc.org.sg/technical-committees/internet-of-things-technical-committee-iottc and https://www.ida.gov.sg/~/media/Files/Infocomm%20Landscape/iN2015/Reports/realisingthevisionin2015.pdf.

[19] Government of Dubai-2021 Dubai Plan-Purpose, http://www.dubaiplan2021.ae/the-purpose/.

[20] Government of Dubai-2021 Dubai Plan, http://www.dubaiplan2021.ae/dubai-plan-2021/.

[21] Smart Dubai, http://www.smartdubai.ae/foundation_layers.php.

[22] The Internet of Things: Connections for People’s happiness, http://www.smartdubai.ae/story021002.php.

[23] Smart Dubai - Current State, http://www.smartdubai.ae/current_state.php.

[24] Smart Dubai - District Guidelines, http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf.

[25] See; http://roadmap.smartdubai.ae/search-services-public.php and http://roadmap.smartdubai.ae/search-initiatives-public.php.

[26] Smart Dubai-Smart District Guidelines, http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf.

[27] Dubai Ruler issues new laws to further enhance the organisational structure and legal framework of Dubai Smart City, https://www.wam.ae/en/news/emirates/1395288828473.html.

[28] See: http://slc.dubai.gov.ae/en/AboutDepartment/News/Lists/NewsCentre/DispForm.aspx?ID=147&ContentTypeId=0x01001D47EB13C23E544893300E8367A23439 and http://www.smartdubai.ae/dubai_data.php.

[29] Dubai first city to trial ITU key performance indicators for smart sustainable cities, http://www.itu.int/net/pressoffice/press_releases/2015/12.aspx#.VtaYtlt97IU.

[30] Smart Dubai Benchmark Report 2015 Executive Summary, http://smartdubai.ae/bmr2015/methodology-public.php.

[31] Building a Smart + Equitable City, http://www1.nyc.gov/assets/forward/documents/NYC-Smart-Equitable-City-Final.pdf

[32] Building a Smart + Equitable City, http://www1.nyc.gov/site/forward/innovations/smartnyc.page.

[33] One New York: The Plan for a Strong and Just City, http://www1.nyc.gov/html/onenyc/about.html

[34] Open Data for All, http://www1.nyc.gov/assets/home/downloads/pdf/reports/2015/NYC-Open-Data-Plan-2015.pdf.

[35] 7 public projects that are turning New York into a “smart city”, http://www.builtinnyc.com/2015/11/24/7-projects-are-turning-new-york-futuristic-technology-hub.

[36] LinkNYC, https://www.link.nyc/faq.html#privacy.

[7] ANSI Network on Smart and Sustainable Cities, http://www.ansi.org/standards_activities/standards_boards_panels/anssc/overview.aspx?menuid=3

[38] IoT-Enabled Smart City Framework, http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20Publications/Links%20Within%20Stories/IoT-EnabledSmartCityFrameworkWP20160213.pdf.

[39] Smart London (UK) Plan: Digital Technologies, London and Londoners, http://munkschool.utoronto.ca/ipl/files/2015/03/KleinmanM_Smart-London-UK-v5_30AP2015.pdf.

[40] Smart London Plan, http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf.

[41] Smart London Plan, http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf.

[42] Open Data White Paper, https://data.gov.uk/sites/default/files/Open_data_White_Paper.pdf.

[43] London Datastore-Privacy, http://data.london.gov.uk/about/privacy/.

[44] Future Cities Standards Centre in London, https://eu-smartcities.eu/commitment/5937.

[45] Smart London Plan, http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf.

[46] Smart Cities background paper, October 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246019/bis-13-1209-smart-cities-background-paper-digital.pdf.

[47] Presentation of 2015 Blueprint of Seoul as ‘State-of-the-art Smart City’, http://english.seoul.go.kr/presentation-of-2015-blueprint-of-seoul-as-%E2%80%98state-of-the-art-smart-city%E2%80%99/.

[48] “Policy Where There is Demand,” Seoul Utilizes Big Data, http://english.seoul.go.kr/policy-demand-seoul-utilizes-big-data/

[49] Seoul’s “Owl Bus” Based on Big Data Technology, http://www.citiesalliance.org/sites/citiesalliance.org/files/Seoul-Owl-Bus-11052014.pdf

[50] Seoul Launches “Global Digital Seoul 2020”, http://english.seoul.go.kr/seoul-launches-global-digital-seoul-2020/

[51] Smart Seoul 2015, http://english.seoul.go.kr/wp-content/uploads/2014/02/SMART_SEOUL_2015_41.pdf

[52] Disclosing public data through the Seoul Open Data Plaza, http://english.seoul.go.kr/policy-information/key-policies/informatization/seoul-open-data-plaza/

[53] Data protection in South Korea: overview, http://uk.practicallaw.com/2-579-7926.

[54]Smart Cities Seoul: a case study, https://www.itu.int/dms_pub/itu-t/oth/23/01/T23010000190001PDFE.pdf

[55] Smart Cities-ISO, http://www.iso.org/iso/livelinkgetfile-isocs?nodeid=16193764.

For more details visit https://cis-india.org/internet-governance/blog/policies-and-standards-overview-of-five-international-smart-cities

FAQ on the Aadhaar Project and the Bill

Elonnai Hickok, Vanya Rakesh, and Vipul Kharbanda — 2016-04-13T14:06:43Z

This FAQ attempts to address the key questions regarding the Aadhaar/UIDAI project and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 (henceforth, Bill). This is neither a comprehensive list of questions, nor does it contain fully developed answers. We will continue to add questions to this list, and edit/expand the answers, based on our ongoing research. We will be grateful to receive your comments, criticisms, evidences, edits, suggestions for new answers, and any other responses. These can either be shared as comments in the document hosted on Google Drive, or via tweets sent to the information policy team at @CIS_InfoPolicy.

To comment on and/or download the file, click here.

For more details visit https://cis-india.org/internet-governance/blog/aadhaar-project-and-bill-faq

Analysis of Aadhaar Act in the Context of A.P. Shah Committee Principles

Vipul Kharbanda — 2016-03-17T19:43:53Z

Whilst there are a number of controversies relating to the Aadhaar Act including the fact that it was introduced in a manner so as to circumvent the majority of the opposition in the upper house of the Parliament and that it was rushed through the Lok Sabha in a mere eight days, in this paper we shall discuss the substantial aspects of the Act in relation to privacy concerns which have been raised by a number of experts. In October 2012, the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee submitted its report which listed nine principles of privacy which all legislations, especially those dealing with personal should adhere to. In this paper, we shall discuss how the Aadhaar Act fares vis-à-vis these nine principles.

Introduction

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”) was introduced in the Lok Sabha (lower house of the Parliament) by Minister of Finance, Mr. Arun Jaitley, in on March 3, 2016, and was passed by the Lok Sabha on March 11, 2016. It was sent back by the Rajya Sabha with suggestions but the Lok Sabha rejected those suggestions, which means that the Act is now deemed to have been passed by both houses as it was originally introduced as a Money Bill. Whilst there are a number of controversies relating to the Aadhaar Act including the fact that it was introduced in a manner so as to circumvent the majority of the opposition in the upper house of the Parliament and that it was rushed through the Lok Sabha in a mere eight days, in this paper we shall discuss the substantial aspects of the Act in relation to privacy concerns which have been raised by a number of experts. In October 2012, the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee submitted its report which listed nine principles of privacy which all legislations, especially those dealing with personal should adhere to. In this paper, we shall discuss how the Aadhaar Act fares vis-à-vis these nine principles.

In order for the reader to better understand the frame of reference on which we shall analyse the Aadhaar Act, the nine principles contained in the report of the Group of Experts on Privacy are explained in brief below:

Principle 1: Notice - Does the legislation/regulation require that entities governed by the Act give simple to understand notice of its information practices to all individuals, in clear and concise language, before any personal information is collected from them.
Principle 2: Choice and Consent - Does the legislation/regulation require that entities governed under the Act provide the individual with the option to opt in/opt out of providing their personal information.
Principle 3: Collection Limitation - Does the legislation/regulation require that entities governed under the Act collect personal information from individuals only as is necessary for a purpose identified.
Principle 4: Purpose Limitation - Does the legislation/regulation require that personal data collected and processed by entities governed by the Act be adequate and relevant to the purposes for which they are processed.
Principle 5: Access and Correction - Does the legislation/regulation allow individuals: access to personal information about them held by an entity governed by the Act; the ability to seek correction, amendments, or deletion of such information where it is inaccurate, etc.
Principle 6: Disclosure - Does the legislation ensure that information is only disclosed to third parties after notice and informed consent is obtained. Is disclosure allowed for law enforcement purposes done in accordance with laws in force.
Principle 7: Security - Does the legislation/regulation ensure that information that is collected and processed under that Act, is done so in a manner that protects against loss, unauthorized access, destruction, etc.
Principle 8: Openness - Does the legislation/regulation require that any entity processing data take all necessary steps to implement practices, procedures, policies and systems in a manner proportional to the scale, scope, and sensitivity to the data that is collected and processed and is this information made available to all individuals in an intelligible form, using clear and plain language?
Principle 9: Accountability - Does the legislation/regulation provide for measures that ensure compliance of the privacy principles? This would include measures such as mechanisms to implement privacy policies; including tools, training, and education; and external and internal audits.

Analysis of the Aadhaar Act

The Aadhaar Act has been brought about to give legislative backing to the most ambitious individual identity programme in the world which aims to provide a unique identity number to the entire population of India. The rationale behind this scheme is to correctly identify the beneficiaries of government schemes and subsidies so that leakages in government subsidies may be reduced. In furtherance of this rationale the Aadhaar Act gives the Unique Identification Authority of India (“UIDAI”) the power to enroll individuals by collecting their demographic and biometric information and issuing an Aadhaar number to them. Below is an analysis of the Act based on the privacy principles enumerated I the A.P. Shah Committee Report.

Collection Limitation

Collection of Biometric and Demographic Information: The Aadhaar Act entitles every “resident” [1] to obtain an Aadhaar number by submitting his/her biometric (photograph, finger print, Iris scan) and demographic information (name, date of birth, address [2]) [3]. It must be noted that the Act leaves scope for further information to be included in the collection process if so specified by regulations. It must be noted that although the Act specifically provides what information can be collected, it does not specifically prohibit the collection of further information. This becomes relevant because it makes it possible for enrolling agencies to collect extra information relating to individuals without any legal implications of such act.

Authentication Records: The UIDAI is mandated to maintain authentication records for a period which is yet to be specified (and shall be specified in the regulations) but it cannot collect or keep any information regarding the purpose for which the authentication request was made [4].

Unauthorized Collection: Any person who in not authorized to collect information under the Act, and pretends that he is authorized to do so, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- [5]. It must be noted that the section, as it is currently worded seems to criminalize the act of impersonation of authorized individuals and the actual collection of information is not required to complete this offence. It is not clear if this section will apply if a person who is authorized to collect information under the Act in general, collects some information that he/she is not authorized to collect.

Notice

Notice during Collection: The Aadhaar Act requires that the agencies enrolling people for distribution of Aadhaar numbers should give people notice regarding: (a) the manner in which the information shall be used; (b) the nature of recipients with whom the information is intended to be shared during authentication; and (c) the existence of a right to access information, the procedure for making requests for such access, and details of the person or department in-charge to whom such requests can be made [6]. A failure to comply with this requirement will make the agency liable for imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- [7]. It must be noted that the Act leaves the manner of giving such notice in the realm of regulations and does not specify how this notice is to be provided, which leaves important specifics to the realm of the executive.

Notice during Authentication: The Aadhaar Act requires that authenticating agencies shall give information to the individuals whose information is to be authenticated regarding (a) the nature of information that may be shared upon authentication; (b) the uses to which the information received during authentication may be put by the requesting entity; and (c) alternatives to submission of identity information to the requesting entity [8]. A failure to comply with this requirement will make the agency liable for imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- [9]. Just as in the case of notice during collection, the manner in which the notice is required to be given is left to regulations leaving an unclear picture as to how comprehensive, accessible, and frequent this notice must be.

Access and Correction

Updating Information: The Aadhaar Act give the UIDAI the power to require residents to update their demographic and biometric information from time to time so as to maintain its accuracy [10].

Access to Information: The Aadhaar Act provides that Aadhaar number holders may request the UIDAI to provide access to their identity information expect their core biometric information [11]. It is not clear why access to the core biometric information [12] is not provided to an individual. Further, since section 6 seems to place the responsibility of updation and accuracy of biometric information on the individual, it is not clear how a person is supposed to know that the biometric information contained in the database has changed if he/she does not have access to the same. It may also be noted that the Aadhaar Act provides only for a request to the UIDAI for access to the information and does not make access to the information a right of the individual, this would mean that it would be entirely upon the discretion of the UIDAI to refuse to grant access to the information once a request has been made.

Alteration of Information: The Aadhaar Act gives individuals the right to request the UIDAI to alter their demographic if the same is incorrect or has changed and biometric information if it is lost or has changed. Upon receipt of such a request, if the UIDAI is satisfied, then it may make the necessary alteration and inform the individual accordingly. The Act also provides that no identity information in the Central database shall be altered except as provided in the regulations [13]. This section provides for alteration of identity information but only in the circumstances given in the section, for example demographic information cannot be changed if it has been lost, similarly biometric information cannot be changed if it is inaccurate. Further, the section does not give a right to the individual to get the information altered but only entitles him/her to request the UIDAI to make a change and the final decision is left to the “satisfaction” of the UIDAI.

Access to Authentication Record: Every individual is given the right to obtain his/her authentication record in a manner to be specified by regulations. [14]

Disclosure

Sharing during Authentication: The UIDAI is entitled to reply to any authentication query with a positive, negative or any other response which may be appropriate and may share identity information except core biometric information with the requesting entity [15]. The language in this provision is ambiguous and it is unclear what 'identity information' may be shared and why it would be necessary to share such information as Aadhaar is meant to be only a means of authentication so as to remove duplication.

Potential Disclosure during Maintenance of CIDR: The UIDAI has been given the power to appoint any one or more entities to establish and maintain the Central Identities Data Repository (CIDR) [16]. If a private entity is involved in the maintenance and establishment of the CIDR it can be presumed that there is the possibilty that they would, to some degree, have access to the information stored in the CIDR, yet there are no clear standards in the Act regarding this potential access. And the process for appointing such entities. The fact that the UIDAI has been given the freedom to appoint an outside entity to maintain a sensitive asset such as the CIDR raises security concerns.

Restriction on Sharing Information: The Aadhaar Act creates a blanket prohibition on the usage of core biometric information for any purpose other than generation of Aadhaar numbers and also prohibits its sharing for any reason whatsoever [17]. Other identity information is allowed to be shared in the manner specified under the Act or as may be specified in the regulations [18]. The Act further provides that the requesting entities shall not disclose the identity information except with the prior consent of the individual to whom the information relates [19]. There is also a prohibition on publicly displaying Aadhaar number or core biometric information except as specified by regulations [20]. Officers or the UIDAI or the employees of the agencies employed to maintain the CIDR are prohibited from revealing the information stored in the CIDR or authentication record to anyone [21]. It is not clear why an exception has been carved out and what circumstances would require publicly displaying Aadhaar numbers and core biometric information, especially since the reasons for which such important information may be displayed has been left up to regulations which have relatively less oversight. The section also provides the requesting entities with an option to further disclose information if they take consent of the individuals. This may lead to a situation where a requesting entity, perhaps the of an essential service, may take the consent of the individual to disclose his/her information in a standard form contract, without the option of saying no to such a request. It may lead to situations where the option is between giving consent to disclosure or denial or service altogether. For this reason it is necessary that there should be an opt in and opt out provision wherever a requesting entity has the power to ask for disclosure of information, so that people are not coerced into giving consent.

Disclosure in Specific Cases: The prohibition on disclosure of information (except for core biometric information) does not apply in case of any disclosure made pursuant to an order of a court not below that of a District Judge [22]. There is another exception to the prohibition on disclosure of information (including core biometric information) in the interest of national security if so directed by an officer not below the rank of a Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government. Before any such direction can take effect, it will be reviewed by an oversight committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology. Any such direction shall be valid for a period of three months and may be extended by another three months after the review by the Oversight Committee [23]. Although this provision has been criticized, and rightly so, for the lack of accountability since the entire process is being handled within the executive and there is no independent oversight, however it must be mentioned that the level of oversight provided here is similar to that provided to interception requests, which involve a much graver if not the same level of invasion of privacy.

Penalty for Disclosure: Any person who intentionally and in an unauthorized manner discloses, transmits, copies or otherwise disseminates any identity information collected in the course of enrolment or authentication shall be punishable with imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/ [24]. Further any person who intentionally and in an unathorised manner, accesses information in the CIDR [25], downloads, copies or extracts any data from the CIDR [26], or reveals or shares or distributes any identity information, shall be punishable with imprisonment of upto 3 years and a fine of not less than Rs. 10,00,000/-.

Consent

Consent for Authentication: A requesting entity has to take the consent of the individual before collecting his/her identity information for the purposes of authentication and also has to inform the individual of the alternatives to submission of the identity information [27]. Although this provision requires entities to take consent from the individuals before collecting information for authentication, however how useful this requirement of consent would be, still remains to be seen. There may be instances where a requesting entity may take the consent of the individual in a standard form contract, without the individual realizing what he/she is consenting to.

Note: The Aadhaar Act provides no requirement or standard for the form of consent that must be taken during enrollment. This is significant as it is the point at which individuals are providing raw biometric material and during previous enrollment, has been a point of weakness as the consent taken is an enabler to function creep as it allows the UIDAI to share information with engaged in delivery of welfare services [28].

Purpose

Use of Information: The authenticating entities are allowed to use the identity information only for the purpose of submission to the CIDR for authentication [29]. Further, the Act specifies that identity information available with a requesting entity shall not be used for any purpose other than that specified to the individual at the time of submitting the information for authentication [30]. The Act also provides that any authentication entity which uses the information for any purpose not already specified will be liable to punishment of imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/ [31].

Security

Security and Confidentiality of Information: It is the responsibility of the UIDAI to ensure the security and confidentiality of the identity and authentication information and it is required to take all necessary action to ensure that the information in the CIDR is protected against unauthorized access, use or disclosure and against accidental or intentional destruction, loss or damage [32]. The UIDAI is required to adopt and implement appropriate technical and organisational security measures and also ensure that its contractors do the same [33]. It is also required to ensure that the agreements entered into with its contractors impose the same conditions as are imposed on the UIDAI under the Act and that they shall act only upon the instructions of the UIDAI [34].

Biometric Information to be Electronic Record: The biometric information collected by the UIDAI has been deemed to be an “electronic record” as well as “sensitive personal data or information”, which would mean that in addition to the provisions of the Aadhaar Act, the provisions contained in the Information Technology Act, 2000 will also apply to such information [35]. It must be noted that while the Act lays down the principle that UIDAI is required to ensure the saecurity of the information, it does not lay down any guidelines as to the minimum security standards to be implemented by the Authority. However, through this section the legislature has linked the security standards contained in the IT Act to the information contained in this Act. While this is a clean way of dealing with the issue, some people may argue that the extremely sensitive nature of the information contained in the CIDR requires the standards for security to be much stricter than those provided in the IT Act. However, a perusal of Rule 8 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 shows that the Rules themselves provide that the standard of security must be commensurate with the information assets being protected. It would thus seem that the Act provides enough room to protect such important information, but perhaps leaves too much room for interpretation for such an important issue.

Penalty for Unauthorised Access: Apart from the security provisions included in the legislation, the Aadhaar Act also provides for punishment of imprisonment of upto 3 years and a fine which shall not be less than Rs. 10,00,000/-, in case of the following offences:

introduction of any virus or other computer contaminant in the CIDR [36];
causing damage to the data in the CIDR [37];
disruption of access to the CIDR [38];
denial of access to any person who is authorised to access the CIDR [39];
destruction, deletion or alteration of any information stored in any removable storage media or in the CIDR or diminishing its value or utility or affecting it injuriously by any means [40];
stealing, concealing, destroying or altering any computer source code used by the Authority with an intention to cause damage [41].

Further, unauthorized usage or tampering with the data in the CIDR or in any removable storage medium with the intent of modifying information relating to Aadhaar number holder or discovering any information thereof, is also punishable with imprisonment for a term which may extend to 3 years and also a fine which may extend to Rs. 10,000/- [42].

Accountability

Inspections and Audits: One of the functions listed in the powers and functions of the UIDAI is the power to call for information and records, conduct inspections, inquiries and audit of the operations of the CIDR, Registrars, enrolling agencies and other agencies appointed under the Aadhaar Act [43].

Grievance Redressal: Another function of the UIDAI is to set up facilitation centres and grievance redressal mechanisms for redressal of grievances of individuals, Registrars, enrolling agencies and other service providers [44]. It must be said here that considering the importance that the government has given to and intends to give to Aadhaar in the future, an essential task such as grievance redressal should not be left entirely to the discretion of the UIDAI and some grievance redressal mechanism should be incorporated into the Act itself.

Openness

There does not seem to be any provision in the Aadhaar Act which requires the UIDAI to make its privacy policies and procedure available to the public in general even though the UIDAI has the responsibility to maintain the security and confidentiality of the information.

Endnotes

[1] A resident is defined as any person who has resided in India for a period of atleasy 182 days in the previous 12 months.

[2] It has been specified that demographic information will not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.

[3] Section 3(1) of the Aadhaar Act.

[4] Section 32(1) and 32(3) of the Aadhaar Act.

[5] Section 36 of the Aadhaar Act.

[6] Section 3(2) of the Aadhaar Act.

[7] Section 41 of the Aadhaar Act.

[8] Section 8(3) of the Aadhaar Act.

[9] Section 41 of the Aadhaar Act.

[10] Section 6 of the Aadhaar Act.

[11] Section 28, proviso of the Aadhaar Act.

[12] Core biometric information is defined as fingerprints, iris scan or other biological attributes which may be specified by regulations.

[13] Section 31 of the Aadhaar Act.

[14] Section 32(2) of the Aadhaar Act.

[15] Section 8(4) of the Aadhaar Act.

[16] Section 10 of the Aadhaar Act.

[17] Section 29(1) of the Aadhaar Act.

[18] Section 29(2) of the Aadhaar Act.

[19] Section 29(3)(b) of the Aadhaar Act.

[20] Section 29(4) of the Aadhaar Act.

[21] Section 28(5) of the Aadhaar Act.

[22] Section 33(1) of the Aadhaar Act.

[23] Section 33(2) of the Aadhaar Act.

[24] Section 37 of the Aadhaar Act.

[25] Section 38(a) of the Aadhaar Act.

[26] Section 38(b) of the Aadhaar Act.

[27] Section 8(2)(a) and (c) of the Aadhaar Act.

[28] For example, see: http://www.karnataka.gov.in/aadhaar/Downloads /Application%20form%20-%20English.pdf.

[29] Section 8(2)(b) of the Aadhaar Act.

[30] Section 29(3)(a) of the Aadhaar Act.

[31] Section 37 of the Aadhaar Act.

[32] Section 28(1), (2) and (3) of the Aadhaar Act.

[33] Section 28(4)(a) and (b) of the Aadhaar Act.

[34] Section 28(4)(c) of the Aadhaar Act.

[35] Section 30 of the Aadhaar Act.

[36] Section 38(c) of the Aadhaar Act.

[37] Section 38(d) of the Aadhaar Act.

[38] Section 38(e) of the Aadhaar Act.

[39] Section 38(f) of the Aadhaar Act.

[40] Section 38(h) of the Aadhaar Act.

[41] Section 38(i) of the Aadhaar Act.

[42] Section 39 of the Aadhaar Act.

[43] Section 23(2)(l) of the Aadhaar Act.

[44] Section 23(2)(s) of the Aadhaar Act.

For more details visit https://cis-india.org/internet-governance/blog/analysis-of-aadhaar-act-in-context-of-shah-committee-principles

List of Recommendations on the Aadhaar Bill, 2016 - Letter Submitted to the Members of Parliament

Amber Sinha, Sumandro Chattapadhyay, Sunil Abraham, and Vanya Rakesh — 2016-03-21T08:50:09Z

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. Based on these concerns, and numerous others, we submitted an initial list of recommendations to the Members of Parliaments to highlight the aspects of the Bill that require immediate attention.

Download the submission letter: PDF.

Text of the Submission

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. The Bill has made it compulsory for all Indian to enroll for Aadhaar in order to receive any subsidy, benefit, or service from the Government whose expenditure is incurred from the Consolidate Fund of India. Apart from the issue of centralisation of the national biometric database leading to a deep national vulnerability, the Bill also keeps unaddressed two serious concerns regarding the technological framework concerned:

Identification without Consent: Before the Aadhaar project it was not possible for the Indian government or any private entity to identify citizens (and all residents) without their consent. But biometrics allow for non-consensual and covert identification and authentication. The only way to fix this is to change the technology configuration and architecture of the project. The law cannot be used to correct the problems in the technological design of the project.
Fallible Technology: The Biometrics Standards Committee of UIDAI has acknowledged the lack of data on how a biometric authentication technology will scale up where the population is about 1.2 billion. The technology has been tested and found feasible only for a population of 200 million. Further, a report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population. For the current Indian population of 1.2 billion the expected proportion of duplicates is 1/121, a ratio which is far too high. [1]

Based on these concerns, and numerous others, we sincerely request you to ensure that the Bill is rigorously discussed in Rajya Sabha, in public, and, if needed, also by a Parliamentary Standing Committee, before considering its approval and implementation. Towards this, we humbly submit an initial list of recommendations to highlight the aspects of the Bill that require immediate attention:

Implement the Recommendations of the Shah and Sinha Committees: The report by the Group of Experts on Privacy chaired by the Former Chief Justice A P Shah [2] and the report by the Parliamentary Standing Committee on Finance (2011-2012) chaired by Shri Yashwant Sinha [3] have suggested a rigorous and extensive range of recommendations on the Aadhaar / UIDAI / NIAI project and the National Identification Authority of India Bill, 2010 from which the majority sections of the Aadhaar Bill, 2016, are drawn. We request that these recommendations are seriously considered and incorporated into the Aadhaar Bill, 2016.
Authentication using the Aadhaar number for receiving government subsidies, benefits, and services cannot be made mandatory: Section 7 of the Aadhaar Bill, 2016, states that authentication of the person using her/his Aadhaar number can be made mandatory for the purpose of disbursement of government subsidies, benefits, and services; and in case the person does not have an Aadhaar number, s/he will have to apply for Aadhaar enrolment. This sharply contradicts the claims made by UIDAI earlier that the Aadhaar number is “optional, and not mandatory”, and more importantly the directive given by the Supreme Court (via order dated August 11, 2015). The Bill must explicitly state that the Aadhaar number is only optional, and not mandatory, and a person without an Aadhaar number cannot be denied any democratic rights, and public subsidies, benefits, and services, and any private services.
Vulnerabilities in the Enrolment Process: The Bill does not address already documented issues in the enrolment process. In the absence of an exhaustive list of information to be collected, some Registrars are permitted to collect extra and unnecessary information. Also, storage of data for elongated periods with Enrollment agencies creates security risks. These vulnerabilities need to be prevented through specific provisions. It should also be mandated for all entities including the Enrolment Agencies, Registrars, CIDR and the requesting entities to shift to secure system like PKI based cryptography to ensure secure method of data transfer.
Precisely Define and Provide Legal Framework for Collection and Sharing of Biometric Data of Citizens: The Bill defines “biometric information” is defined to include within its scope “photograph, fingerprint, iris scan, or other such biological attributes of an individual.” This definition gives broad and sweeping discretionary power to the UIDAI / Central Government to increase the scope of the term. The definition should be exhaustive in its scope so that a legislative act is required to modify it in any way.
Prohibit Central Storage of Biometrics Data: The presence of central storage of sensitive personal information of all residents in one place creates a grave security risk. Even with the most enhanced security measures in place, the quantum of damage in case of a breach is extremely high. Therefore, storage of biometrics must be allowed only on the smart cards that are issued to the residents.
Chain of Trust Model and Audit Trail: As one of the objects of the legislation is to provide targeted services to beneficiaries and reduce corruption, there should be more accountability measures in place. A chain of trust model must be incorporated in the process of enrolment where individuals and organisations vouch for individuals so that when a ghost is introduced someone has can be held accountable blame is not placed simply on the technology. This is especially important in light of the questions already raised about the deduplication technology. Further, there should be a transparent audit trail made available that allows public access to use of Aadhaar for combating corruption in the supply chain.
Rights of Residents: There should be specific provisions dealing with cases where an individual is not issued an Aadhaar number or denied access to benefits due to any other factor. Additionally, the Bill should make provisions for residents to access and correct information collected from them, to be notified of data breaches and legal access to information by the Government or its agencies, as matter of right. Further, along with the obligations in Section 8, it should also be mandatory for all requesting entities to notify the individuals of any changes in privacy policy, and providing a mechanism to opt-out.
Establish Appropriate Oversight Mechanisms: Section 33 currently specifies a procedure for oversight by a committee, however, there are no substantive provisions laid down that shall act as the guiding principles for such oversight mechanisms. The provision should include data minimisation, and “necessity and proportionality” principles as guiding principles for any exceptions to Section 29.
Establish Grievance Redressal and Review Mechanisms: Currently, there are no grievance redressal mechanism created under the Bill. The power to set up such a mechanism is delegated to the UIDAI under Section 23 (2) (s) of the Bill. However, making the entity administering a project, also responsible for providing for the frameworks to address the grievances arising from the project, severely compromises the independence of the grievance redressal body. An independent national grievance redressal body with state and district level bodies under it, should be set up. Further, the NIAI Bill, 2010, provided for establishing an Identity Review Committee to monitor the usage pattern of Aadhaar numbers. This has been removed in the Aadhaar Bill 2016, and must be restored.

Endnotes

[1] See: http://cis-india.org/internet-governance/blog/Flaws_in_the_UIDAI_Process_0.pdf.

[2] See: http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf.

[3] See: http://164.100.47.134/lsscommittee/Finance/15_Finance_42.pdf.

For more details visit https://cis-india.org/internet-governance/blog/list-of-recommendations-on-the-aadhaar-bill-2016

Flaws in the UIDAI Process

hans — 2016-03-06T10:40:59Z

The accuracy of biometric identification depends on the chance of a false positive: the probability that the identifiers of two persons will match. Individuals whose identifiers match might be termed duplicands. When very many people are to be identified success can be measured by the (low) proportion of duplicands. The Government of India is engaged upon biometrically identifying the entire population of India. An experiment performed at an early stage of the programme has allowed us to estimate the chance of a false positive: and from that to estimate the proportion of duplicands. For the current population of 1.2 billion the expected proportion of duplicands is 1/121, a ratio which is far too high.

The article was published in Economic & Political Weekly, Journal » Vol. 51, Issue No. 9, 27 Feb, 2016.

A legal challenge is being mounted in the Supreme Court, currently, to the programme of biometric identification that the Unique Identification Authority of India (UIDAI) is engaged upon: an identification preliminary and a requisite to providing citizens with “Aadhaar numbers” that can serve them as “unique identiﬁers” in their transactions with the state. What follows will recount an assessment of their chances of success. We shall be using data that was available to the UIDAI and shall employ only elementary ways of calculation. It should be recorded immediately that an earlier technical paper by the author (Mathews 2013) has been of some use to the plaintiffs, and reference will be made to that in due course.

The Aadhaar numbers themselves may or may not derive, in some way, from the biometrics in question; the question is not material here. For our purposes a biometric is a numerical representation of some organic feature: like the iris or the retina, for instance, or the inside of a ﬁnger, or the hand taken whole even. We shall consider them in some more detail later. The UIDAI is using ﬁngerprints and iris images to generate a combination of biometrics for each individual. This paper bears on the accuracy of the composite biometric identiﬁer. How well those composites will distinguish between individuals can be assessed, actually, using the results of an experiment conducted by the UIDAI itself in the very early stages of its operation; and our contention is that, from those results themselves, the UIDAI should have been able to estimate how many individuals would have their biometric identiﬁers matching those of some other person, under the best of circumstances even, when any good part of population has been identiﬁed.

Read the full article here.

The author thanks Nico Temme of the Centrum Wiskunde & Informatica in The Netherlands for the bounds he derived on the chance of a false positive. He is particularly grateful to the anonymous referee of this journal who, through two rounds of comment, has very much improved the presentation of the results. A technical supplement to this paper is placed on the EPW website along with this paper.

For more details visit https://cis-india.org/internet-governance/blog/epw-27-february-2016-hans-varghese-mathews-flaws-in-uidai-process

Comments by the Centre for Internet and Society on the Report of the Committee on Medium Term Path on Financial Inclusion

vipul — 2016-03-01T13:53:38Z

Apart from item-specific suggestions, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

The Centre for Internet and Society (CIS) is a non-governmental organization which undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives.

In the course of its work CIS has also extensively researched and witten about the Aadhaar Scheme of the Government of India, specially from a privacy and technical point of view. CIS was part of the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee and was instrumental in drafting a major part of the report of the Group. In this background CIS would like to mention that it is neither an expert on banking policy in general nor wishes to comment upon the purely banking related recommendations of the Committee. We would like to limit our recommendations to the areas in which we have some expertise and would therefore be commenting only on certain Recommendations of the Committee.

Before giving our individual comments on the relevant recommendations, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

Another problem with linking bank accounts with Aadhaar numbers, even if it is not mandatory, is that when the RBI issues an advisory to (optionally) link Aadhaar numbers with bank accounts, a number of banks may implement the advisory too strictly and refuse service to customers (especially marginal customers) whose bank accounts are not linked to their Aadhaar numbers, perhaps due to technical problems in the registration procedure, thereby denying those individuals access to the banking sector, which is contrary to the aims and objectives of the Committee and the stated policy of the RBI to improve access to banking.

Individual Comments

Recommendation 1.4 - Given the predominance of individual account holdings, the Committee recommends that a unique biometric identifier such as Aadhaar should be linked to each individual credit account and the information shared with credit information companies. This will not only be useful in identifying multiple accounts, but will also help in mitigating the overall indebtedness of individuals who are often lured into multiple borrowings without being aware of its consequences.

CIS Comment: The discussion of the committee before making this recommendation revolves around the total incidence of indebtedness in rural areas and their Debt-to-Asset ratio representing payment capacity. However, the committee has not discussed any evidence which indicates that borrowing from multiple banks leads to greater indebtedness for individual account holders in the rural sector. Without identifying the problem through evidence the Committee has suggested linking bank accounts with Aadhaar numbers as a solution.

Recommendation 2.2 - On the basis of cross-country evidence and our own experience, the Committee is of the view that to translate financial access into enhanced convenience and usage, there is a need for better utilization of the mobile banking facility and the maximum possible G2P payments, which would necessitate greater engagement by the government in the financial inclusion drive.

CIS Comment: The drafting of the recommendation suggests that RBI is batting for the DBT rather than the subsidy model. However an examination of the discussion in the report suggests that all that the Committee has not discussed or examined the subsidy model vis-à-vis the direct benefit transfer (DBT) model here (though it does recommend DBT in the chapter on G-2-P payments), but only is trying to say is that where government to people money transfer has to take place, it should take place using mobile banking, payment wallets or other such technologies, which have been known to be successful in various countries across the world.

Recommendation 3.1 - The Committee recommends that in order to increase formal credit supply to all agrarian segments, the digitization of land records should be taken up by the states on a priority basis.

Recommendation 3.2 - In order to ensure actual credit supply to the agricultural sector, the Committee recommends the introduction of Aadhaar-linked mechanism for Credit Eligibility Certificates. For example, in Andhra Pradesh, the revenue authorities issue Credit Eligibility Certificates to Tenant Farmers (under ‘Andhra Pradesh Land Licensed Cultivators Act No 18 of 2011'). Such tenancy /lease certificates, while protecting the owner’s rights, would enable landless cultivators to obtain loans. The Reserve Bank may accordingly modify its regulatory guidelines to banks to directly lend to tenants / lessees against such credit eligibility certificates.

CIS Comment: The Committee in its discussion before the recommendation 3.2 has discussed the problems faced by landless farmers, however there is no discussion or evidence which suggests that an Aadhaar linked Credit Eligibility Certificate is the best solution, or even a solution to the problem. The concern being expressed here is not with the system of a Credit Eligibility Certificate, but with the insistence on linking it to an Aadhaar number, and whether the system can be put in place without linking the same to an Aadhaar number.

Recommendation 6.11 - Keeping in view the indebtedness and rising delinquency, the Committee is of the view that the credit history of all SHG members would need to be created, linking it to individual Aadhaar numbers. This will ensure credit discipline and will also provide comfort to banks.

CIS Comment: There is no discussion in the Report on the reasons for increase in indebtedness of SHGs. While the recommendation of creating credit histories for SHGs is laudable and very welcome, however there is no logical reason that has been brought out in the Report as to why the same needs to be linked to individual Aadhaar numbers and how such linkage will solve any problems.

Recommendation 6.13 - The Committee recommends that bank credit to MFIs should be encouraged. The MFIs must provide credit information on their borrowers to credit bureaus through Aadhaar-linked unique identification of individual borrowers.

CIS Comment: Since the discussion before this recommendation clearly indicates multiple lending practices as one of the problems in the Microfinance sector and also suggests better credit information of borrowers as a possible solution, therefore this recommendation per se, seems sound. However, we would still like to point out that the RBI may think of alternative means to get borrower credit history rather than relying upon just the Aadhaar numbers.

Recommendation 7.3 - Considering the widespread availability of mobile phones across the country, the Committee recommends the use of application-based mobiles as PoS for creating necessary infrastructure to support the large number of new accounts and cards issued under the PMJDY. Initially, the FIF can be used to subsidize the associated costs. This will also help to address the issue of low availability of PoS compared to the number of merchant outlets in the country. Banks should encourage merchants across geographies to adopt such applicationbased mobile as a PoS through some focused education and PoS deployment drives.

Recommendation 7.5 - The Committee recommends that the National Payments Corporation of India (NPCI) should ensure faster development of a multi-lingual mobile application for customers who use non-smart phones, especially for users of NUUP; this will address the issue of linguistic diversity and thereby promote its popularization and quick adoption.

Recommendation 7.8 - The Committee recommends that pre-paid payment instrument (PPI) interoperability may be allowed for non-banks to facilitate ease of access to customers and promote wider spread of PPIs across the country. It should however require non-bank PPI operators to enhance their customer grievance redressal mechanism to deal with any issues thereof.

Recommendation 7.9 - The Committee is of the view that for non-bank PPIs, a small-value cashout may be permitted to incentivize usage with the necessary safeguards including adequate KYC and velocity checks.

CIS Comments: While CIS supports the effort to use technology and mobile phones to increase banking penetration and improve access to the formal financial sector for rural and semi-rural areas, sufficient security mechanisms should be put in place while rolling out these services keeping in mind the low levels of education and technical sophistication that are prevalent in rural and semi-rural areas.

Recommendation 8.1 - The Committee recommends that the deposit accounts of beneficiaries of government social payments, preferably all deposits accounts across banks, including the ‘inprinciple’ licensed payments banks and small finance banks, be seeded with Aadhaar in a timebound manner so as to create the necessary eco-system for cash transfer. This could be complemented with the necessary changes in the business correspondent (BC) system (see Chapter 6 for details) and increased adoption of mobile wallets to bridge the ‘last mile’ of service delivery in a cost-efficient manner at the convenience of the common person. This would also result in significant cost reductions for the government besides promoting financial inclusion.

CIS Comment: While the report of the Committee has already given several examples of how cash transfer directly into the bank accounts (rather than requiring the beneficiaries to be at a particular place at a particular time) could be more efficient as well as economical, the Committee is making the same point again here under the chapter that deals specifically with government to person payments. However even before this recommendation, there has been no discussion as to the need for linking or “seeding” the deposit accounts of the beneficiaries with Aadhaar numbers, let alone a discussion of how it would solve any problems.

Recommendation 10.6 - Given the focus on technology and the increasing number of customer complaints relating to debit/credit cards, the National Payments Corporation of India (NPCI) may be invited to SLBC meetings. They may particularly take up issues of Aadhaar-linkage in bank and payment accounts.

CIS Comment: There is no discussion on why this recommendation has been made, more particularly; there is no discussion at all on why issues of Aadhaar linkage in bank and payment accounts need to be taken up at all.

For more details visit https://cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion

Facebook Shares 10 Key Facts about Free Basics. Here's What's Wrong with All 10 of Them.

sunil — 2015-12-25T14:59:10Z

Shweta Sengar of Catch News spoke to Sunil Abraham about the recent advertisement by Facebook titled "What Net Neutrality Activists won't Tell You or, the Top 10 Facts about Free Basics". Sunil argued against the validity of all the 'top 10 facts'.

Facebook has rebranded internet.org as Free Basics. After suffering from several harsh blows from the net neutrality activists in India, the social media behemoth is positioning a movement in order to capture user attention.

Apart from a mammoth two page advertisement on Free Basics on 23 December in a leading English daily, we spotted a numerous hoardings across the capital.

Unlike Facebook, Wikipedia has a rather upfront approach for raising funds. You must have noticed a pop-up as you open Wikipedia when they are in need of funds. What Facebook has done is branded Free Basics as 'free' as the basic needs of life.

The newspaper advertisement by Facebook was aimed at clearing all the doubts about Free Basics. The 10 facts highlighted a connected India and urging users to take the "first step towards digital equality."

In an interview with Catch, Sunil Abraham, Executive Director of Bangalore based research organisation, the Centre for Internet and Society, shared his thoughts on the controversial subject. Abraham countered each of Facebook's ten arguments. Take a look:

01 Free basics is open to any carriers. Any mobile operator can join us in connecting India.

Sunil Abraham: Free Basics was initially exclusive to only one telecom operator in most markets that it was available in.

The non-exclusivity was introduced only after activists in India complained. But now the arrangement is exclusive to Free Basics as a walled garden provider. But discrimination harms remain until other Internet services can also have what Facebook has from telecom operators ie. free access to their destinations.

02 We do not charge anyone anything for Free Basics. Period.

SA: As Bruce Schneier says "surveillance is the business model of the Internet". Free basics users are subject to an additional layer of surveillance ie. the data retention by the Facebook proxy server. Just as Facebook cannot say that they are ignoring Data Protection law because Facebook is a free product - they cannot say that Free Basics can violate network neutrality law because it is a free service. For ex. Flipkart should get Flipkart Basic on all Indian ISPs and Telcos.

03 We do not pay for the data consumed in Free Basics. Operators participate because the program has proven to bring more people online. Free Basics has brought new people onto mobile networks on average over 50% faster since launching the service.

SA: Facebook has been quoting statistics as evidence to influence the policy formulation process. But we need the absolute numbers and we also need them to be independently verifiable. At the very least we need the means to cross verify these numbers with numbers that telcos and ISPs routinely submit to TRAI.

Theoretical harms must be addressed through net neutrality regulation. For example, you don't have to build a single, centralised database of all Indian citizens to know that it can be compromised - from a security design perspective centralisation is always a bad idea. Gatekeeping powers given to any powerful entity will be compromised. While evidence is useful, regulation can already begin based on well established regulatory principles. After scientific evidence has been made available - the regulation can be tweaked.

04 Any developer or publisher can have their content on Free Basics. There are clear technical specs openly published here ... and we have never rejected an app or publisher who has me these tech specs.

SA: Again this was only done as a retrospective fix after network neutrality activists in India complained about exclusive arrangements. For example, the music streaming service Hungama is not a low-bandwidth destination but since it was included the technical specifications only mentions large images and video files. Many of the other sites are indistinguishable from their web equivalents clearly indicating that this was just an afterthought. At the moment Free Basics has become controversial so most developers and publishers are not approaching them so there is no way for us to verify Facebook's claim.

05 Nearly 800 developers in India have signed their support for Free Basics.

SA: I guess these are software developers working in the services industry who don't see themselves as potential competition to Facebook or any of the services within Free Basics. Also since Facebook as been completely disingenuous when it comes to soliciting support for their campaigns it is very hard to believe these claims. It has tried to change the meaning of the phrase "net neutrality" and has framed the debate in an inaccurate manner - therefore I could quite confidently say that these developers must have been fooled into supporting Free Basics.

06 It is not a walled garden: In India, 40% of people who come online through Free Basics are paying for data and accessing the full internet within the first 30 days. In the same time period, 8 times more people are paying versus staying on just

SA: Again, no absolute numbers and also no granularity in the data that makes it impossible for anyone to verify these numbers. Also there is no way to compare these numbers to access options that are respectful of network neutrality such as equal rating. If the numbers are roughly the same for equal rating and zero-rating then there is no strong case to be made for zero-rating.

07 Free Basics is growing and popular in 36 other countries, which have welcomed the program with open arms and seen the enormous benefits it has brought.

SA: Free Basics was one of the most controversial topics at the last Internet Governance Forum. A gratis service is definitely going to be popular but that does not mean forbearance is the only option for the regulator. In countries with strong civil society and/or a strong regulator, Free Basics has ran into trouble. Facebook has been able to launch Free Basics only in jurisdictions where regulators are still undecided about net neutrality. India and Brazil are the last battle grounds for net neutrality and that is why Facebook is spending advertising dollar and using it's infrastructure to win the global south.

08 In a recent representative poll, 86% of Indians supported Free Basics by Facebook, and the idea that everyone deserves access to free basic internet services.

SA: This is the poll which was framed in alarmist language where Indian were asked to choose between perpetuating or bridging the digital divide. This is a false choice that Facebook is perpetuating - with forward-looking positive Network Neutrality rules as advocated by Dr. Chris Marsden it should be possible to bridge digital divide without incurring any free speech, competition, innovation and diversity harms.

09 In the past several days, 3.2 million people have petitioned the TRAI in support of Free Basics.

SA: Obviously - since Free Basics is better than nothing. But the real choice should have been - are you a) against network neutrality ie. would you like to see Facebook play gatekeeper on the Internet OR b) for network neutrality ie. would you like to see Free Basics forced to comply with network neutrality rules and expand access without harms to consumers and innovators.

10 There are no ads in the version of Facebook on Free Basics. Facebook produces no revenue. We are doing this to connect India, and the benefits to do are clear.

SA: As someone who has watched the Internet economy since the first dot com boom - it is absolutely clear that consumer acquisition is as important as revenues. They are doing it to connect people to Facebook and as a result some people will also connect to the Internet. But India is the last market on the planet where the walled garden can be bigger than the Internet, and therefore Facebook is manipulating the discourse through it's dominance of the networked public sphere.

Bravo to TRAI and network neutrality activists for taking Facebook on.

Originally published by Catch News, on December 24, 2015.

For more details visit https://cis-india.org/internet-governance/news/facebook-shares-10-key-facts-about-free-basics-heres-whats-wrong-with-all-10-of-them

Smart Cities in India: An Overview

vanya — 2016-01-11T01:30:07Z

The Government of India is in the process of developing 100 smart cities in India which it sees as the key to the country's economic and social growth. This blog post gives an overview of the Smart Cities project currently underway in India. The smart cities mission in India is at a nascent stage and an evolving area for research. The Centre for Internet and Society will continue work in this area.

Overview of the 100 Smart Cities Mission

The Government of India announced its flagship programme- the 100 Smart Cities mission in the year 2014 and was launched in June 2015 to achieve urban transformation, drive economic growth and improve the quality of life of people by enabling local area development and harnessing technology. Initially, the Mission aims to cover 100 cities across the countries (which have been shortlisted on the basis of a Smart Cities Proposal prepared by every city) and its duration will be five years (FY 2015-16 to FY 2019-20). The Mission may be continued thereafter in the light of an evaluation to be done by the Ministry of Urban Development (MoUD) and incorporation of the learnings into the Mission. The Mission aims to focus on area-based development in the form of redevelopment of existing spaces, or the development of new areas (Greenfield) to accommodate the growing urban population and ensure comprehensive planning to improve quality of life, create employment and enhance incomes for all - especially the poor and the disadvantaged. ^{^[1]} On 27th August 2015 the Centre unveiled 98 smart cities across India which were selected for this Project. Across the selected cities, 13 crore population ( 35% of the urban population will be included in the development plans. ^{^[2]} The mission has been developed for the purpose of achieving urban transformation. The vision is to preserve India's traditional architecture, culture & ethnicity while implementing modern technology to make cities livable, use resources in a sustainable manner and create an inclusive environment. ^{^[3]}

The promises of the Smart City mission include reduction of carbon footprint, adequate water and electricity supply, proper sanitation, including solid waste management, efficient urban mobility and public transport, affordable housing, robust IT connectivity and digitalization, good governance, citizen participation, security of citizens, health and education.

Questions unanswered

Why and How was the Smart Cities project conceptualized in India? What was the need for such a project in India?
What was the role of the public/citizens at the ideation and conceptualization stage of the project?
Which actors from the Government, Private industry and the civil society are involved in this mission? Though the smart cities mission has been initiated by the Government of India under the Ministry of Urban Development, there is no clarity about the involvement of the associated offices and departments of the Ministry.

How are the Smart Cities being selected?

The 100 cities were supposed to be selected on the basis of Smart cities challenge^{^[4]} involving two stages. Stage I of the challenge involved Intra-State city selection on objective criteria to identify cities to compete in stage-II. In August 2015, The Ministry of Urban Development, Government of India announced 100 smart cities ^{^[5]} evaluated on parameters such as service levels, financial and institutional capacity, past track record, called as the 'shortlisted cities' for this purpose. The selected cities are now competing for selection in the Second stage of the challenge, which is an All India competition. For this crucial stage, the potential 100 smart cities are required to prepare a Smart City Proposal (SCP) stating the model chosen (retrofitting, redevelopment, Greenfield development or a mix), along with a Pan-City dimension with Smart Solutions. The proposal must also include suggestions collected by way of consultations held with city residents and other stakeholders, along with the proposal for financing of the smart city plan including the revenue model to attract private participation. The country saw wide participation from the citizens to voice their aspirations and concerns regarding the smart city. 15th December 2015 has been declared as the deadline for submission of the SCP, which must be in consonance with evaluation criteria set by The MoUD, set on the basis of professional advice. ^{^[6]} On the basis of this, 20 cities will be selected for the first year. According to the latest reports, the Centre is planning to fund only 10 cities for the first phase in case the proposals sent by the states do not match the expected quality standards and are unable to submit complete area-development plans by the deadline, i.e. 15th December, 2015. ^{^[7]}

Questions unanswered

Who would be undertaking the task of evaluating and selecting the cities for this project?
What are the criteria for selection of a city to qualify in the first 20 (or 10, depending on the Central Government) for the first phase of implementation?

How are the smart cities going to be Funded?

The Smart City Mission will be operated as a Centrally Sponsored Scheme (CSS) and the Central Government proposes to give financial support to the Mission to the extent of Rs. 48,000 crores over five years i.e. on an average Rs. 100 crore per city per year. ^{^[8]} The additional resources will have to be mobilized by the State/ ULBs from external/internal sources. According to the scheme, once list of shortlisted Smart Cities is finalized, Rs. 2 crore would have been disbursed to each city for proposal preparation.^{^[9]}

According to estimates of the Central Government, around Rs 4 lakh crore of funds will be infused mainly through private investments and loans from multilateral institutions among other sources, which accounts to 80% of the total spending on the mission. ^{^[10]} For this purpose, the Government will approach the World Bank and the Asian Development Bank (ADB) for a loan costing £500 million and £1 billion each for 2015-20. If ADB approves the loan, it would be it will be the bank's highest funding to India's urban sector so far.^{^[11]} Foreign Direct Investment regulations have been relaxed to invite foreign capital and help into the Smart City Mission. ^{^[12]}

Questions unanswered

The Government notes on Financing of the project mentions PPPs for private funding and leveraging of resources from internal and external resources. There is lack of clarity on the external resources the Government has/will approach and the varied PPP agreements the Government is or is planning to enter into for the purpose of private investment in the smart cities.

How is the scheme being implemented?

Under this scheme, each city is required to establish a Special Purpose Vehicle (SPV) having flexibility regarding planning, implementation, management and operations. The body will be headed by a full-time CEO, with nominees of Central Government, State Government and ULB on its Board. The SPV will be a limited company incorporated under the Companies Act, 2013 at the city-level, in which the State/UT and the Urban Local Body (ULB) will be the promoters having equity shareholding in the ratio 50:50. The private sector or financial institutions could be considered for taking equity stake in the SPV, provided the shareholding pattern of 50:50 of the State/UT and the ULB is maintained and the State/UT and the ULB together have majority shareholding and control of the SPV. Funds provided by the Government of India in the Smart Cities Mission to the SPV will be in the form of tied grant and kept in a separate Grant Fund.^{^[13]}

For the purpose of implementation and monitoring of the projects, the MoUD has also established an Apex Committee and National Mission Directorate for National Level Monitoring^{^[14]}, a State Level High Powered Steering Committee (HPSC) for State Level Monitoring^{^[15]} and a Smart City Advisory Forum at the City Level ^{^[16]}.

Also, several consulting firms^{^[17]} have been assigned to the 100 cities to help them prepare action plans.^{^[18]} Some of them include CRISIL, KPMG, McKinsey, etc. ^{^[19]}

Questions unanswered

What policies and regulations have been put in place to account for the smart cities, apart from policies looking at issues of security, privacy, etc.?
What international/national standards will be adopted while development of the smart cities? Though the Bureau of Indian Standards is in the process of formulating standardized guidelines for the smart cities in India^{^[20]}, yet there is lack of clarity on adoption of these national standards, along with the role of international standards like the ones formulated by ISO.

What is the role of Foreign Governments and bodies in the Smart cities mission?

Ever since the government's ambitious project has been announced and cities have been shortlisted, many countries across the globe have shown keen interest to help specific shortlisted cities in building the smart cities and are willing to invest financially. Countries like Sweden, Malaysia, UAE, USA, etc. have agreed to partner with India for the mission.^{^[21]} For example, UK has partnered with the Government to develop three India cities-Pune, Amravati and Indore.^{^[22]} Israel's start-up city Tel Aviv also entered into an agreement to help with urban transformation in the Indian cities of Pune, Nagpur and Nashik to foster innovation and share its technical know-how.^{^[23]} France has piqued interest for Nagpur and Puducherry, while the United States is interested in Ajmer, Vizag and Allahabad. Also, Spain's Barcelona Regional Agency has expressed interest in exchanging technology with the Delhi. Apart from foreign government, many organizations and multilateral agencies are also keen to partner with the Indian government and have offered financial assistance by way of loans. Some of them include the UK government-owned Department for International Development, German government KfW development bank, Japan International Cooperation Agency, the US Trade and Development Agency, United Nations Industrial Development Organization and United Nations Human Settlements Programme. ^{^[24]}

Questions unanswered

Do these governments or organization have influence on any other component of the Smart cities?
How much are the foreign governments and multilateral bodies spending on the respective cities?
What kind of technical know-how is being shared with the Indian government and cities?

What is the way ahead?

On the basis of the SCP, the MoUD will evaluate, assess the credibility and select 20 smart cities out of the short-listed ones for execution of the plan in the first phase. The selected city will set up a SPV and receive funding from the Government.

Questions unanswered

Will the deadline of submission of the Smart Cities Proposal be pushed back?
After the SCP is submitted on the basis of consultation with the citizens and public, will they be further involved in the implementation of the project and what will be their role?
How will the MoUD and other associated organizations as well as actors consider the implementation realities of the project, like consideration of land displacement, rehabilitation of the slum people, etc.
How are ICT based systems going to be utilized to make the cities and the infrastructure "smart"?
How is the MoUD going to respond to the concerns and criticism emerging from various sections of the society, as being reflected in the news items?
How will the smart cities impact and integrate the existing laws, regulations and policies? Does the Government intend to use the existing legislations in entirety, or update and amend the laws for implementation of the Smart Cities Mission?

^{^[1]} Smart Cities, Mission Statement and Guidelines, Ministry of Urban Development, Government of India, June 2015, Available at : http://smartcities.gov.in/writereaddata/SmartCityGuidelines.pdf

^{^[2]} http://articles.economictimes.indiatimes.com/2015-08-27/news/65929187_1_jammu-and-kashmir-12-cities-urban-development-venkaiah-naidu

^{^[3]} http://india.gov.in/spotlight/smart-cities-mission-step-towards-smart-india

^{^[4]} http://smartcities.gov.in/writereaddata/Process%20of%20Selection.pdf

^{^[5]} Full list : http://www.scribd.com/doc/276467963/Smart-Cities-Full-List

^{^[6]} http://smartcities.gov.in/writereaddata/Process%20of%20Selection.pdf

^{^[7]} http://www.ibtimes.co.in/modi-govt-select-only-10-cities-under-smart-city-project-this-year-report-658888

^{^[8]} http://smartcities.gov.in/writereaddata/Financing%20of%20Smart%20Cities.pdf

^{^[9]} Smart Cities presentation by MoUD : http://smartcities.gov.in/writereaddata/Presentation%20on%20Smart%20Cities%20Mission.pdf

^{^[10]} http://indianexpress.com/article/india/india-others/smart-cities-projectfrom-france-to-us-a-rush-to-offer-assistance-funds/

^{^[11]} http://indianexpress.com/article/india/india-others/funding-for-smart-cities-key-to-coffer-lies-outside-india/#sthash.5lnW9Jsq.dpuf

^{^[12]} http://india.gov.in/spotlight/smart-cities-mission-step-towards-smart-india

^{^[13]} http://smartcities.gov.in/writereaddata/SPVs.pdf

^{^[14]} http://smartcities.gov.in/writereaddata/National%20Level%20Monitoring.pdf

^{^[15]} http://smartcities.gov.in/writereaddata/State%20Level%20Monitoring.pdf

^{^[16]} http://smartcities.gov.in/writereaddata/City%20Level%20Monitoring.pdf

^{^[17]} http://smartcities.gov.in/writereaddata/List_of_Consulting_Firms.pdf

^{^[18]} http://pib.nic.in/newsite/PrintRelease.aspx?relid=128457

^{^[19]} http://economictimes.indiatimes.com/articleshow/49242050.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

^{^[20]} http://www.business-standard.com/article/economy-policy/in-a-first-bis-to-come-up-with-standards-for-smart-cities-115060400931_1.html

^{^[21]} http://accommodationtimes.com/foreign-countries-have-keen-interest-in-development-of-smart-cities/

^{^[22]} http://articles.economictimes.indiatimes.com/2015-11-20/news/68440402_1_uk-trade-three-smart-cities-british-deputy-high-commissioner

^{^[23]} http://www.jpost.com/Business-and-Innovation/Tech/Tel-Aviv-to-help-India-build-smart-cities-435161?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork

^{^[24]} http://indianexpress.com/article/india/india-others/smart-cities-projectfrom-france-to-us-a-rush-to-offer-assistance-funds/#sthash.nCMxEKkc.dpuf

For more details visit https://cis-india.org/internet-governance/blog/smart-cities-in-india-an-overview

CIS's Position on Net Neutrality

sunil — 2015-12-09T13:06:06Z

As researchers committed to the principle of pluralism we rarely produce institutional positions. This is also because we tend to update our positions based on research outputs. But the lack of clarity around our position on network neutrality has led some stakeholders to believe that we are advocating for forbearance. Nothing can be farther from the truth. Please see below for the current articulation of our common institutional position.

Net Neutrality violations can potentially have multiple categories of harms — competition harms, free speech harms, privacy harms, innovation and ‘generativity’ harms, harms to consumer choice and user freedoms, and diversity harms thanks to unjust discrimination and gatekeeping by Internet service providers.
Net Neutrality violations (including some those forms of zero-rating that violate net neutrality) can also have different kinds benefits — enabling the right to freedom of expression, and the freedom of association, especially when access to communication and publishing technologies is increased; increased competition [by enabling product differentiation, can potentially allow small ISPs compete against market incumbents]; increased access [usually to a subset of the Internet] by those without any access because they cannot afford it, increased access [usually to a subset of the Internet] by those who don't see any value in the Internet, reduced payments by those who already have access to the Internet especially if their usage is dominated by certain services and destinations.
Given the magnitude and variety of potential harms, complete forbearance from all regulation is not an option for regulators nor is self-regulation sufficient to address all the harms emerging from Net Neutrality violations, since incumbent telecom companies cannot be trusted to effectively self-regulate. Therefore, CIS calls for the immediate formulation of Net Neutrality regulation by the telecom regulator [TRAI] and the notification thereof by the government [Department of Telecom of the Ministry of Information and Communication Technology]. CIS also calls for the eventual enactment of statutory law on Net Neutrality. All such policy must be developed in a transparent fashion after proper consultation with all relevant stakeholders, and after giving citizens an opportunity to comment on draft regulations.
Even though some of these harms may be large, CIS believes that a government cannot apply the precautionary principle in the case of Net Neutrality violations. Banning technical innovations and business model innovations is not an appropriate policy option. The regulation must toe a careful line to solve the optimization problem: refraining from over-regulation of ISPs and harming innovation at the carrier level (and benefits of net neutrality violations mentioned above) while preventing ISPs from harming innovation and user choice. ISPs must be regulated to limit harms from unjust discrimination towards consumers as well as to limit harms from unjust discrimination towards the services they carry on their networks.
Based on regulatory theory, we believe that a regulatory framework that is technologically neutral, that factors in differences in technological context, as well as market realities and existing regulation, and which is able to respond to new evidence is what is ideal.

This means that we need a framework that has some bright-line rules based, but which allows for flexibility in determining the scope of exceptions and in the application of the rules. Candidate principles to be embodied in the regulation include: transparency, non-exclusivity, limiting unjust discrimination.
The harms emerging from walled gardens can be mitigated in a number of ways. On zero-rating the form of regulation must depend on the specific model and the potential harms that result from that model. Zero-rating can be: paid for by the end consumer or subsidized by ISPs or subsidized by content providers or subsidized by government or a combination of these; deal-based or criteria-based or government-imposed; ISP-imposed or offered by the ISP and chosen by consumers; Transparent and understood by consumers vs. non-transparent; based on content-type or agnostic to content-type; service-specific or service-class/protocol-specific or service-agnostic; available on one ISP or on all ISPs. Zero-rating by a small ISP with 2% penetration will not have the same harms as zero-rating by the largest incumbent ISP. For service-agnostic / content-type agnostic zero-rating, which Mozilla terms ‘equal rating’, CIS advocates for no regulation.
CIS believes that Net Neutrality regulation for mobile and fixed-line access must be different recognizing the fundamental differences in technologies.
On specialized services CIS believes that there should be logical separation and that all details of such specialized services and their impact on the Internet must be made transparent to consumers both individual and institutional, the general public and to the regulator. Further, such services should be available to the user only upon request, and not without their active choice, with the requirement that the service cannot be reasonably provided with ‘best efforts’ delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or that the discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.
On incentives for telecom operators, CIS believes that the government should consider different models such as waiving contribution to the Universal Service Obligation Fund for prepaid consumers, and freeing up additional spectrum for telecom use without royalty using a shared spectrum paradigm, as well as freeing up more spectrum for use without a licence.
On reasonable network management CIS still does not have a common institutional position.

For more details visit https://cis-india.org/internet-governance/blog/cis-position-on-net-neutrality

Crowdsourcing Incidents of Communication Privacy Violation in India

sumandro — 2015-10-16T10:49:17Z

In the context of several ongoing threads of debates and policy discussions, we are initiating this effort to crowdsource incidents of violation of digital/online/telephonic privacy of persons and organisations in India. The full list of submitted incidents is publicly shared, under Creative Commons Attributions-ShareAlike 4.0 International license. Please contribute and share with your friends and colleagues.

Report an incident: http://goo.gl/forms/8Xcf0zcWZW

Collected incidents: http://bit.ly/privacy-violation-india (CC BY-SA 4.0)

You are welcome to cross-post this to your website or other online forum. Please provide attribution, and link back to this page. For any clarification, write to Sumandro Chattapadhyay, Research Director, CIS, at sumandro[at]cis-india[dot]org.

For more details visit https://cis-india.org/internet-governance/crowdsourcing-incidents-of-communication-privacy-violation-in-india

Open Letter to PM Modi on Intellectual Property Rights issues on His Visit to the United States of America in September, 2015

Pranesh Prakash and Nehaa Chaudhari — 2015-09-25T06:43:12Z

This is an open letter by CIS to the Prime Minister, Shri Narendra Modi in light of his impending visit to the USA. This letter asks the Prime Minister to urge the USA to ratify the Marrakesh Treaty; and asks that India not be a party to TPP negotiations, in light of recent reports on a study encouraging India to join the TPP.

Shri Narendra Damodardas Modi
Hon’ble Prime Minister of India
152, South Block, Raisina Hill
New Delhi-110011

22 September, 2015

Dear Sir,

We write on behalf of the Centre for Internet and Society, India [1], a Bangalore and New Delhi based not-for-profit organization engaging in research on among others, accessibility for persons with disabilities, intellectual property rights, openness and access to knowledge. Over the past fifteen months, we have welcomed and support certain initiatives of our government as being in line with some of our research interests, specifically, the "Make in India" and "Digital India" initiatives, and your vision of a digitally empowered India, as we have noted in an earlier open letter to you. [2]

This letter is in light of your visit to the United States of America (“USA”) this month, to articulate a two-fold request: first, that during the course of your visit you request the government of the USA to ratify the Marrakesh Treaty for visually impaired persons (“Marrakesh Treaty”); [3] and second, that the Indian government not enter into any negotiations around the Trans-Pacific Partnership trade agreement (“the TPP”).

On the Marrakesh Treaty

According to figures by the World Blind Union, approximately 90% of all published material is not accessible to blind or print disabled people. [4] The severity of the ‘book famine’ experienced by the world’s estimated 300 million blind or otherwise print or visually disabled people (of which an estimated 63 million are in India) was highlighted by India in its Closing Statement at the Diplomatic Conference convened to conclude the Marrakesh Treaty. [5] India has historically been a strong advocate of the spirit of the Marrakesh Treaty, becoming the first country to ratify it in June, 2014. [6] Amendments in 2012 to India’s copyright law predated the signature to the Marrakesh Treaty. These amendments created disability and works neutral exceptions to our copyright law, well beyond the mandate of the Marrakesh Treaty.

The true realization of the promise of the Marrakesh Treaty however will remain a distant dream until the treaty comes into effect (three months) after 20 Member States have ratified it or acceded to it. [7] According to information available from the World Intellectual Property Organization [8], this number is currently only 9, and the USA is not one of the countries to have done so. The USA is home [9] to some of the largest publishers of both academic and other/leisure material including Penguin Random House, Harper Collins, John Wiley & Sons, the RELX Group, McGraw-Hill Education, Scholastic and Cengage Learning to name a few. It accounts for a large volume of the world’s book and other print material export. The active participation of the USA through the ratification of the Marrakesh treaty is critical if the treaty is to be truly effective.

During your visit, we urge you request the government of the United States of America to ratify the Marrakesh Treaty at the earliest. This will bring us one important step closer to eradicating the book famine.

On the TPP

We are concerned after reports [10] of a recent study authored by C Fred Bergsten that encourages India to join the TPP. On this front, we are in complete agreement with the reported statement of the Hon’ble Ambassador Shri Arun K. Singh, where he disagrees with some of the findings and analysis of this recent report. [11]

The TPP has come into severe criticism [12] over the years [13] from a vast multitude [14] of sources [15] (including a group of 30 law professors in 2012) [16] across the various countries that are a party to the negotiations. Among others and most relevant to us as an organization is the criticism around the secrecy of negotiations [17] as well as the content of the chapter on intellectual property in the TPP. It is our belief that eventually, India stands to lose as a result of the TPP [18] with its possible adverse impact on our economy. [19]

The rigid intellectual property protections (including criminal penalties for unintentional copying) [20] sought to be enforced through the TPP would benefit only US pharmaceutical and entertainment industries. [21] These provisions (among others) mandate the inclusion of TRIPS plus provisions in national laws, envisage possible extensions in term of protection on patents, restrict copyright exceptions and limitations, extend copyright protection terms and impose a higher liability on intermediaries; [22]all of which would be disastrous for an emerging economy such as India’s, which is a heavy user of intellectual property and not a heavy producer of the same.

Historically, India has been a supporter of a transparent, multilateral decision making process, a commitment to which was also reiterated recently by the Hon’ble Minister of State for Commerce and Industry, Smt. Nirmala Sitharaman. [23]India has also raised many of its concerns (on the secrecy of the negotiations as well as substantive provisions themselves) around the TPP and its close cousin, the Anti-Counterfeiting Trade Agreement (“ACTA”) in 2011 [24] and 2012 [25] at the World Trade Organization (“WTO”) TRIPS Council and on the ACTA in 2010, also at the WTO Trips Council. [26]

In light of the above, we strongly urge the Indian government to not engage in negotiations on the TPP. At a minimum, we would request that any engagement in TPP negotiations be preceded by national consultations on the same, soliciting input from various stakeholders with diverging interests, including academia, civil society, industry associations, large Indian corporations, small and medium enterprises and multi- national corporations, rights holders associations and other interest groups.

We thank you for the opportunity to present these views to you. We do hope that you will consider these suggestions favourably, in the interests of India’s economic and social development. We welcome any opportunity to assist you with any queries you may have with regard to these submissions.

Thank you.

Yours truly

(For the Centre for Internet and Society, India)

Pranesh Prakash, Policy Director
Nehaa Chaudhari, Programme Officer

Copies to:

Smt. Smriti Zubin Irani, Minister for Human Resource Development, Government of India.
Prof. (Dr.) Ram Shankar Katheria, Minister of State for Human Resource Development (Higher Education), Government of India.
Smt. Nirmala Sitharaman, Minister of State for Commerce and Industry, Government of India.
Shri Vinay Sheel Oberoi, Secretary (Department of Higher Education), Ministry of Human Resources Development, Government of India, Government of India.
Shri Amitabh Kant, Secretary (Department of Industrial Policy and Promotion), Ministry of Commerce and Industry, Government of India.

(Edit - 25 September, 2015) - The following people have reached out to us in support of this letter and have expressed a desire to have their signatures placed on record as support. We wish to acknowledge the same.

Prof. Dinesh Abrol - Convenor, National Working Group on Patent Laws and WTO
Dr. B. Ekbal - President, Democratic Alliance for Knowledge Freedom, Kerala
T.C. James - President, NIPO
Dr. Suman Sahai - Chairperson, Gene Campaign
Dr. Biswajit Dhar - Professor, Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University

[1]See generally http://cis-india.org/ (last accessed 22 September, 2015).

[2]Rohini Lakshane, Open Letter to Prime Minister Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 September, 2015); Centre for Internet and Society/Rohini Lakshane, Digital India & Make in India : Form a patent pool of critical mobile technologies – CIS India, available at http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/ (last accessed 22 September, 2015).

[3]The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities adopted on June 27, 2013. Treaty text and other official documentation available at http://www.wipo.int/treaties/en/ip/marrakesh/ (last accessed 22 September, 2015).

[4]World Blind Union, Marrakesh Treaty – Right to Read Campaign, available at http://www.worldblindunion.org/English/our-work/our-priorities/Pages/right-2-read-campaign.aspx (last accessed 22 September, 2015).

[5]Pranesh Prakash, India’s Closing Statement at Marrakesh on the Treaty for the Blind, available at http://cis-india.org/a2k/blogs/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 22 September, 2015).

[6]Nehaa Chaudhari, India’s Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched, available at http://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated (last accessed 22 September, 2015).

[7]Article 18 of the Marrakesh Treaty.

[8]World Intellectual Property Organization, WIPO Administered Treaties: Contracting Parties > Marrakesh VIP Treaty (Treaty not yet in force), available at http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843 (last accessed 22 September, 2015).

[9]Publishers Weekly, The World’s 57 Largest Book Publishers, 2015, available at http://www.publishersweekly.com/pw/by-topic/international/international-book-news/article/67224-the-world-s-57-largest-book-publishers-2015.html (last accessed 22 September, 2015).

[10]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015); Indo-Asian News Service on NDTV, India Can Boost Exports by $500 Billion with Trade Liberalization: Study, available at http://www.ndtv.com/india-news/india-can-boost-exports-by-500-billion-with-trade-liberalization-study-1218887 (last accessed 22 September, 2015); Raghavendra M., India can boost exports by $500 billion with trade liberalization: study, available at http://www.americanbazaaronline.com/2015/09/18/india-can-boost-exports-by-500-billion-with-trade-liberalization-study/ (last accessed 22 September, 2015); Press Trust of India in the Business Standard, India can boost exports by USD 500 bn by joining the TPP: report, available at http://www.business-standard.com/article/pti-stories/india-can-boost-exports-by-usd-500-bn-by-joining-tpp-report-115091701149_1.html (last accessed 22 September, 2015); Seema Sirohi, India must expand its trade before it gets left behind in the race, available at http://blogs.economictimes.indiatimes.com/letterfromwashington/india-must-expand-its-trade-before-it-gets-left-behind-in-the-race/ (last accessed 22 September, 2015).

[11]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015)

[12]Natasha Lennard, Noam Chomsky: Trans-Pacific Partnership is a “neoliberal assault”, available at http://www.salon.com/2014/01/13/chomsky_tpp_is_a_neoliberal_assault/ (last accessed 22 September, 2015); Zach Carter and Ryan Grim, Noam Chomsky: Obama Trade Deal a ‘Neoliberal Assault’ to ‘Further Corporate Domination’, available at http://www.huffingtonpost.com/2014/01/13/noam-chomsky-obama-trans-pacific-partnership_n_4577495.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); Sean Flynn;, Margot E Kaminski, Brook K Baker and Jimmy H Koo., "Public Interest Analysis of the US TPP Proposal for an IP Chapter" (2011). PIJIP Research Paper Series. Paper 21. http://digitalcommons.wcl.american.edu/research/21 (last accessed 22 September, 2015).

[13]BBC News, TPP: What is it and why does it matter?, available at http://www.bbc.com/news/business-21782080 (last accessed 22 September, 2015);

[14]For a compilation on writing on the TPP see James Love, Trans-Pacific Partnership (TPP also known as the TPPA), available at http://keionline.org/tpp (last accessed 22 September, 2015); see also American University Program on Information Justice and Intellectual Property, Trans-Pacific Partnership, available at http://infojustice.org/tpp (last accessed 22 September, 2015).

[15]Zach Carter, Alan Grayson on Trans-Pacific Partnership: Obama Secrecy Hides ‘Assault on Democratic Government’, available at http://www.huffingtonpost.com/2013/06/18/alan-grayson-trans-pacific-partnership_n_3456167.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); James Love, KEI analysis of Wikileaks leak of TPP IPR text, from August 30, 2013, available at http://keionline.org/node/1825 (last accessed 22 September, 2015); Ian Verrender, The TPP has the potential for real harm, available at http://www.abc.net.au/news/2015-03-16/verrender-the-tpp-has-the-potential-for-real-harm/6321538 (last accessed 22 September, 2015).

[16]Sean Flynn, Law Professors Call for Trans-Pacific Partnership (TPP) Transparency, available at http://infojustice.org/archives/21137 (last accessed 22 September, 2015).

[17]Sachie Mizohata, "The Trans-Pacific Partnership and Its Critics: An introduction and a petition," The Asia-Pacific Journal, Vol. 11, Issue 36, No. 3, available at http://japanfocus.org/-Sachie-MIZOHATA/3996/article.html (last accessed 22 September, 2015).

[18]Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015).

[19]Sylvia Mishra, How will the Trans-Pacific Partnership affect India?, available at http://www.observerindia.com/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=85684&mmacmaid=85685 (last accessed 22 September, 2015).

[20]Gabrielle Chan, Trans-Pacific Partnership: a guide to the most contentious issues, available at http://www.theguardian.com/world/2013/dec/10/trans-pacific-partnership-a-guide-to-the-most-contentious-issues (last accessed 22 September, 2015).

[21]James Love, New leak of TPP consolidated text on intellectual property provides details of pandering to drug companies and publishers, available at http://www.keionline.org/node/2108 (last accessed 22 September, 2015); Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015) referencing Paul Krugman.

[22]William New, Leaked TPP Draft Reveals Extreme Rights Holder Position Of US, Japan, Outraged Observers Say, available at http://www.ip-watch.org/2014/10/17/leaked-tpp-draft-reveals-extreme-rights-holder-position-of-us-japan-outraged-observers-say/ (last accessed 22 September, 2015).

[23]Lalit K Jha, India not being left out of global trade pacts: Minister, available at http://www.thestatesman.com/news/business/india-not-being-left-out-of-global-trade-pacts-minister/91679.html (last accessed 22 September, 2015).

[24]Thirukumaran Balasubramaniam, WTO TRIPS Council: India raises concerns on ACTA and TPPA on discussion of “Trends in the Enforcement of IPRs”, available at https://donttradeourlivesaway.wordpress.com/2011/10/29/wto-trips-council-india-raises-concerns-on-acta-and-tppa-on-discussion-of-trends-in-the-enforcement-of-iprs/ (last accessed 22 September, 2015).

[25]Thirukumaran Balasubramaniam, 28 Feb 2012: Intervention delivered by India at WTO TRIPS Council on IP Enforcement Trends noting concerns with ACTA and TPPA, available at http://keionline.org/node/1376 (last accessed 22 September, 2015).

[26]Kanaga Raja, ACTA comes in for criticism at the TRIPS council, available at http://www.twn.my/title2/wto.info/2010/twninfo100606.htm (last accessed 22 September, 2015).

For more details visit https://cis-india.org/a2k/blogs/open-letter-on-intellectual-property-rights-issues-during-your-visit-to-the-united-states-of-america-in-september-2015

Centre for Internet and Society

Analysis of the Report of the Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security and Implications for India

1. Introduction

2. Analysis of the Recommendations

2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences

2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs

2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect

2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public

2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure

3. Conclusion

List of Acronyms

Submitted Comments on the 'Government Open Data Use License - India'

I. Preliminary

II. Overview

III. Comments and Recommendations

CIS Submission to TRAI Consultation on Free Data

Question 1 Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.

Is There a Need for Free Data?

Goal: Regulating Gatekeeping

Models for Free Data

Government Incentives For Non-Differentiated Free Data

ISP subsidies

Rewards model

Recharge API

“0.example” sites

OTT-agnostic free data

Unified marketplace

Question 2

Question 3

Question 4

Submission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior

Conclusion

Smart City Policies and Standards: Overview of Projects, Data Policies, and Standards across Five International Smart Cities

Download the brief: PDF.

Introduction

Singapore

Introduction

Status of the Project

Policies and Regulations

Adoption of International Standards

Dubai, United Arab Emirates

Introduction

Status of the Project

Policies and Regulations

Adoption of International Standards

New York City, United States of America

Introduction

Status of the Project

Policies and Regulations

Adoption of International Standards

London, United Kingdom

Introduction

Status of the Project

Policies and Regulations

Adoption of International Standards

Seoul, Korea

Introduction

Status of the Project

Policies and Regulations

International Standards

Conclusion

Nodal Agency

Policies

Standards

Notes for India

References

FAQ on the Aadhaar Project and the Bill

To comment on and/or download the file, click here.

Analysis of Aadhaar Act in the Context of A.P. Shah Committee Principles

Introduction

Analysis of the Aadhaar Act

Collection Limitation

Notice

Access and Correction

Disclosure

Consent

Purpose

Security

Accountability

Openness

Question 1
Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.