Centre for Internet and Society

Nothing to Kid About – Children's Data Under the New Data Protection Bill

Shweta Mohandas and Anamika Kundu — 2022-03-10T13:19:52Z

The pandemic has forced policymakers to adapt their approach to people's changing practices, from looking at contactless ways of payment to the shifting of educational institutions online.

The article was originally published in the Indian Journal of Law and Technology

For children, the internet has shifted from being a form of entertainment to a medium to connect with friends and seek knowledge and education. However, each time they access the internet, data about them and their choices are inadvertently recorded by companies and unknown third parties. The growth of EdTech apps in India has led to growing concerns regarding children's data privacy. This has led to the creation of a self-regulatory body, the Indian EdTech Consortium. More recently, the Advertising Standard Council of India has also started looking at passing a draft regulation to keep a check on EdTech advertisements.

The Joint Parliamentary Committee (JPC), tasked with drafting and revising the Data Protection Bill, had to consider the number of changes that had happened after the release of the 2019 version of the Bill. While the most significant change was the removal of the term “personal data” from the title of the Bill, in a move to create a comprehensive Data Protection Bill that includes both personal and non personal data. Certain other provisions of the Bill also featured additions and removals. The JPC, in its revised version of the Bill has removed an entire class of data fiduciaries – guardian data fiduciary – which was tasked with greater responsibility for managing children's data. While the JPC justified the removal of the guardian data fiduciary stating that consent from the guardian of the child is enough to meet the end for which personal data of children are processed by the data fiduciary. While thought has been given to looking at how consent is given by the guardian on behalf of the child, there was no change in the age of children in the Bill. Keeping the age of consent under the Bill as the same as the age of majority to enter into a contract under the 1872 Indian Contract Act – 18 years – reveals the disconnect the law has with the ground reality of how children interact with the internet.

In the current state of affairs where Indian children are navigating the digital world on their own there is a need to look deeply at the processing of children’s data as well as ways to ensure that children have information about consent and informational privacy. By placing the onus of granting consent on parents, the PDP Bill fails to look at how consent works in a privacy policy–based consent model and how this, in turn, harms children in the long run.

1. Age of Consent

By setting the age of consent as 18 years under the Data Protection Bill, 2021, it brings all individuals under 18 years of age under one umbrella without making a distinction between the internet usage of a 5-year-old child and a 16-year-old teenager. There is a need to look at the current internet usage habits of children and assess whether requiring parental consent is reasonable or even practical. It is also pertinent to note that the law in the offline world does make the distinction between age and maturity. For example, it has been highlighted that Section 82 of the Indian Penal Code, read with Section 83, states that any act by a child under the age of 12 years shall not be considered an offence, while the maturity of those aged between 12–18 years will be decided by the court (individuals between the age of 16–18 years can also be tried as adults for heinous crimes). Similarly, child labour laws in the country allow children above the age of 14 years to work in non-hazardous industries, which would qualify them to fall under Section 13 of the Bill, which deals with employee data.

A 2019 report suggests that two-thirds of India’s internet users are in the 12–29 years age group, accounting for about 21.5% of the total internet usage in metro cities. With the emergence of cheaper phones equipped with faster processing and low internet data costs, children are no longer passive consumers of the internet. They have social media accounts and use several applications to interact with others and make purchases. There is a need to examine how children and teenagers interact with the internet as well as the practicality of requiring parental consent for the usage of applications.

Most applications that require age data request users to type in their date of birth; it is not difficult for a child to input a suitable date that would make it appear that they are over 18. In this case they are still children but the content that will be presented to them would be those that are meant for adults including content that might be disturbing or those involving use of alcohol and gambling. Additionally, in their privacy policies, applications sometimes state that they are not suited for and restricted from users under 18. Here, data fiduciaries avoid liability by placing the onus on the user to declare their age and properly read and understand the privacy policy.

Reservations about the age of consent under the Bill have also been highlighted by some members of the JPC through their dissenting opinions. MP Ritesh Pandey suggested that the age of consent should be reduced to 14 years keeping the best interest of the children in mind as well as to support children in benefiting from technological advances. Similarly, MP Manish Tiwari in his dissenting opinion suggested regulating data fiduciaries based on the type of content they provide or data they collect.

2. How is the 2021 Bill Different from the 2019 Bill?

The 2019 draft of the Bill consisted of a class of data fiduciaries called guardian data fiduciaries – entities that operate commercial websites or online services directed at children or which process large volumes of children’s personal data. This class of fiduciaries was barred from profiling, tracking, behavioural monitoring, and running targeted advertising directed at children and undertaking any other processing of personal data that can cause significant harm to the child. In the previous draft, such data fiduciaries were not allowed to engage in ‘profiling, tracking, behavioural monitoring of children, or direct targeted advertising at children’. There was also a prohibition on conducting any activities that might significantly harm the child. As per Chapter IV, any violation could attract a penalty of up to INR 15 crore of the worldwide turnover of the data fiduciary for the preceding financial year, whichever is higher. However, this separate class of data fiduciaries do not have any additional responsibilities. It is also unclear as to whether a data fiduciary that does not by definition fall within such a category would be allowed to engage in activities that could cause ‘significant harm’ to children.

The new Bill also does not provide any mechanisms for age verification and only lays down considerations that verification processes should be undertaken. Furthermore, the JPC has suggested that consent options available to the child when they attain the age of majority i.e. 18 years should be included within the rule frame by the Data Protection Authority instead of being an amendment in the Bill.

3. In the Absence of a Guardian Data Fiduciary

The 2018 and 2019 drafts of the PDP Bill consider a child to be any person below the age of 18 years. For a child to access online services, the data fiduciary must first verify the age of the child and obtain consent from their guardian. The Bill does not provide an explicit process for age verification apart from stating that regulations shall be drafted in this regard. The 2019 Bill states that the Data Protection Authority shall specify codes of practice in this matter. Taking best practices into account, there is a need for ‘user-friendly and privacy-protecting age verification techniques’ to encourage safe navigation across the internet. This will require looking at technological developments and different standards worldwide. There is a need to hold companies accountable for the protection of children’s online privacy and the harm that their algorithms cause children and to make sure that they are not continued.

The JPC in the 2021 version of the Bill removed provisions about guardian data fiduciaries, stating that there was no advantage in creating a different class of data fiduciary. As per the JPC, even those data fiduciaries that did not fall within the said classification would also need to comply with rules pertaining to the personal data of children i.e. with Section 16 of the Bill. Section 16 of the Bill requires the data fiduciary to verify the child’s age and obtain consent from the parent/guardian. The manner of age verification has also een spelt out. Furthermore, since ‘significant data fiduciaries’ is an existing class, there is still a need to comply with rules related to data processing. The JPC also removed the phrase “in the best interests of, the child” and “is in the best interests of, the child” under sub-clause 16(1), implying that the entire Bill concerned the rights of the data principal and the use of such terms dilutes the purpose of the legislation and could give way to manipulation by the data fiduciary.

Conclusion

Over the past two years, there has been a significant increase in applications that are targeted at children. There has been a proliferation of EduTech apps, which ideally should have more responsibility as they are processing children's data. We recommend that instead of creating a separate category, such fiduciaries collecting children's data or providing services to children be seen as ‘significant data fiduciaries’ that need to take up additional compliance measures.

Furthermore, any blanket prohibition on tracking children may obstruct safety measures that could be implemented by data fiduciaries. These fears are also increasing in other jurisdictions as there is a likelihood to restrict data fiduciaries from using software that looks out for such as Child Sexual Abuse Material as well as online predatory behaviour. Additionally, concerning the age of consent under the Bill, the JPC could look at international best practices and come up with ways to make sure that children can use the internet and have rights over their data, which would enable them to grow up with more awareness about data protection and privacy. One such example to look at could be the Children's Online Privacy Protection Rule (COPPA) in the US, where the rules apply to operators of websites and online services that collect personal information from kids under 13 or provide services to children that are directed at a general audience, but have actual knowledge that they collect personal information from such children. A form of combination of this system and the significant data fiduciary classification could be one possible way to ensure that children’s data and privacy are preserved online.

The authors are researchers at the Centre for Internet and Society and thank their colleague Arindrajit Basu for his inputs.

For more details visit https://cis-india.org/internet-governance/blog/ijlt-shweta-mohandas-and-anamika-kundu-march-6-2022-nothing-to-kid-about-childrens-data-under-the-new-data-protection-bill

Clause 12 Of The Data Protection Bill And Digital Healthcare: A Case Study

amber — 2022-03-01T15:07:44Z

In light of the state’s emerging digital healthcare apparatus, how does Clause 12 alter the consent and purpose limitation model?

The blog post was published in Medianama on February 21, 2022. This is the second in a two-part series by Amber Sinha.

In the previous post, I looked at provisions on non-consensual data processing for state functions under the most recent version of recommendations by the Joint Parliamentary Committee on India’s Data Protection Bill (DPB). The true impact of these provisions can only be appreciated in light of ongoing policy developments and real-life implications.

To appreciate the significance of the dilutions in Clause 12, let us consider the Indian state’s range of schemes promoting digital healthcare. In July 2018, NITI Aayog, a central government policy think tank in India released a strategy and approach paper (Strategy Paper) on the formulation of the National Health Stack which envisions the creation of a federated application programming interface (API)-enabled health information ecosystem. While the Ministry of Health and Family Welfare has focused on the creation of Electronic Health Records (EHR) Standards for India during the last few years and also identified a contractor for the creation of a centralised health information platform (IHIP), this Strategy Paper advocates a completely different approach, which is described as a Personal Health Records (PHR) framework. In 2021, the National Digital Health Mission (NDHM) was launched under which a citizen shall have the option to obtain a digital health ID. A digital health ID is a unique ID and will carry all health records of a person.

A Stack Model for Big Data Ecosystem in Healthcare

A stack model as envisaged in the Strategy Paper, consists of several layers of open APIs connected to each other, often tied together by a unique health identifier. The open nature of APIs has the advantage that it allows public and private actors to build solutions on top of it, which are interoperable with all parts of the stack. It is however worth considering both the ‘openness’ and the role that the state plays in it.

Even though the APIs are themselves open, they are a part of a pre-decided technological paradigm, built by private actors and blessed by the state. Even though innovators can build on it, the options available to them are limited by the information architecture created by the stack model. When such a technological paradigm is created for healthcare reform and health data, the stack model poses additional challenges. By tying the stack model to the unique identity, without appropriate processes in place for access control, siloed information, and encrypted communication, the stack model poses tremendous privacy and security concerns. The broad language under Clause 12 of the DPB needs to be looked at in this context.

Clause 12 allows non-consensual processing of personal data where it is necessary “for the performance of any function of the state authorised by law” in order to provide a service or benefit from the State. In the previous post, I had highlighted the import of the use of only ‘necessity’ to the exclusion of ‘proportionality’. Now, we need to consider its significance in light of the emerging digital healthcare apparatus being created by the state.

The National Health Stack and National Digital Health Mission together envision an intricate system of data collection and exchange which in a regulatory vacuum would ensure unfettered access to sensitive healthcare data for both the state and private actors registered with the platforms. The Stack framework relies on repositories where data may be accessed from multiple nodes within the system. Importantly, the Strategy Paper also envisions health data fiduciaries to facilitate consent-driven interaction between entities that generate the health data and entities that want to consume the health records for delivering services to the individual. The cast of characters involve the National Health Authority, health care providers and insurers who access the National Health Electronic Registries, unified data from different programmes such as National Health Resource Repository (NHRR), NIN database, NIC and the Registry of Hospitals in Network of Insurance (ROHINI), private actors such as Swasth, iSpirt who assist the Mission as volunteers. The currency that government and private actors are interested in is data.

The promised benefits of healthcare data in an anonymised and aggregate form range from Disease Surveillance to Pharmacovigilance as well as Health Schemes Management Systems and Nutrition Management, benefits which have only been more acutely emphasised during the pandemic. However, the pandemic has also normalised the sharing of sensitive healthcare data with a variety of actors, without much thinking on much-needed data minimisation practises.

The potential misuses of healthcare data include greater state surveillance and control, predatory and discriminatory practices by private actors which rely on Clause 12 to do away with even the pretense of informed consent so long as the processing of data is deemed necessary by the state and its private sector partners to provide any service or benefit.

Subclause (e) in Clause 12, which was added in the last version of the Bill drafted by MeitY and has been retained by the JPC, allows processing wherever it is necessary for ‘any measures’ to provide medical treatment or health services during an epidemic, outbreak or threat to public health. Yet again, the overly-broad language used here is designed to ensure that any annoyances of informed consent can be easily brushed aside wherever the state intends to take any measures under any scheme related to public health.

Effectively, how does the framework under Clause 12 alter the consent and purpose limitation model? Data protection laws introduce an element of control by tying purpose limitation to consent. Individuals provide consent to specified purposes, and data processors are required to respect that choice. Where there is no consent, the purposes of data processing are sought to be limited by the necessity principle in Clause 12. The state (or authorised parties) must be able to demonstrate necessity to the exercise of state function, and data must only be processed for those purposes which flow out of this necessity. However, unlike the consent model, this provides an opportunity to keep reinventing purposes for different state functions.

In the absence of a data protection law, data collected by one agency is shared indiscriminately with other agencies and used for multiple purposes beyond the purpose for which it was collected. The consent and purpose limitation model would have addressed this issue. But, by having a low threshold for non-consensual processing under Clause 12, this form of data processing is effectively being legitimised.

For more details visit https://cis-india.org/internet-governance/blog/medianama-february-21-2022-amber-sinha-data-protection-bill-digital-healthcare-case-study

How Function Of State May Limit Informed Consent: Examining Clause 12 Of The Data Protection Bill

amber — 2022-03-01T14:56:49Z

The collective implication of leaving out ‘proportionality’ from Clause 12 is to provide very wide discretionary powers to the state.

The blog post was published in Medianama on February 18, 2022. This is the first of a two-part series by Amber Sinha.

In 2018, hours after the Committee of Experts led by Justice Srikrishna Committee released their report and draft bill, I wrote an opinion piece providing my quick take on what was good and bad about the bill. A section of my analysis focused on Clause 12 (then Clause 13) which provides for non-consensual processing of personal data for state functions. I called this provision a ‘carte-blanche’ which effectively allowed the state to process a citizen’s data for practically all interactions between them without having to deal with the inconvenience of seeking consent. My former colleague, Pranesh Prakash pointed out that this was not a correct interpretation of the provision as I had missed the significance of the word ‘necessary’ which was inserted to act as a check on the powers of the state. He also pointed out, correctly, that in its construction, this provision is equivalent to the position in European General Data Protection Regulation (Article 6 (i) (e)), and is perhaps even more restrictive.

While I agree with what Pranesh says above (his claims are largely factual, and there can be no basis for disagreement), my view of Clause 12 has not changed. While Clause 35 has been a focus of considerable discourse and analysis, for good reason, I continue to believe that Clause 12 remains among the most dangerous provisions of this bill, and I will try to unpack here, why.

The Data Protection Bill 2021 has a chapter on the grounds for processing personal data, and one of those grounds is consent by the individual. The rest of the grounds deal with various situations in which personal data can be processed without seeking consent from the individual. Clause 12 lays down one of the grounds. It allows the state to process data without the consent of the individual in the following cases —

a) where it is necessary to respond to a medical emergency
b) where it is necessary for state to provide a service or benefit to the individual
c) where it is necessary for the state to issue any certification, licence or permit
d) where it is necessary under any central or state legislation, or to comply with a judicial order
e) where it is necessary for any measures during an epidemic, outbreak or public health
f) where it is necessary for safety procedures during disaster or breakdown of public order

In order to carry out (b) and (c), there is also the added requirement that the state function must be authorised by law.

Twin restrictions in Clause 12

The use of the words ‘necessary’ and ‘authorised by law’ is intended to pose checks on the powers of the state. The first restriction seeks to limit actions to only those cases where the processing of personal data would be necessary for the exercise of the state function. This should mean that if the state function can be exercised without non-consensual processing of personal data, then it must be done so. Therefore, while acting under this provision, the state should only process my data if it needs to do so, to provide me with the service or benefit. The second restriction means that this would apply to only those state functions which are authorised by law, meaning only those functions which are supported by validly enacted legislation.

What we need to keep in mind regarding Clause 12 is that the requirement of ‘authorised by law’ does not mean that legislation must provide for that specific kind of data processing. It simply means that the larger state function must have legal backing. The danger is how these provisions may be used with broad mandates. If the activity in question is non-consensual collection and processing of, say, demographic data of citizens to create state resident hubs which will assist in the provision of services such as healthcare, housing, and other welfare functions; all that may be required is that the welfare functions are authorised by law.

Scope of privacy under Puttaswamy

It would be worthwhile, at this point, to delve into the nature of restrictions that the landmark Puttaswamy judgement discussed that the state can impose on privacy. The judgement clearly identifies the principles of informed consent and purpose limitation as central to informational privacy. As discussed repeatedly during the course of the hearings and in the judgement, privacy, like any other fundamental right, is not absolute. However, restrictions on the right must be reasonable in nature. In the case of Clause 12, the restrictions on privacy in the form of denial of informed consent need to be tested against a constitutional standard. In Puttaswamy, the bench was not required to provide a legal test to determine the extent and scope of the right to privacy, but they do provide sufficient guidance for us to contemplate how the limits and scope of the constitutional right to privacy could be determined in future cases.

The Puttaswamy judgement clearly states that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” By locating the right not just in Article 21 but also in the entirety of Part III, the bench clearly requires that “the drill of various Articles to which the right relates must be scrupulously followed.” This means that where transgressions on privacy relate to different provisions in Part III, the different tests under those provisions will apply along with those in Article 21. For instance, where the restrictions relate to personal freedoms, the tests under both Article 19 (right to freedoms) and Article 21 (right to life and liberty) will apply.

In the case of Clause 12, the three tests laid down by Justice Chandrachud are most operative —
a) the existence of a “law”
b) a “legitimate State interest”
c) the requirement of “proportionality”.

The first test is already reflected in the use of the phrase ‘authorised by law’ in Clause 12. The test under Article 21 would imply that the function of the state should not merely be authorised by law, but that the law, in both its substance and procedure, must be ‘fair, just and reasonable.’ The next test is that of ‘legitimate state interest’. In its report, the Joint Parliamentary Committee places emphasis on Justice Chandrachud’s use of “allocation of resources for human development” in an illustrative list of legitimate state interests. The report claims that the ground, functions of the state, thus satisfies the legitimate state interest. We do not dispute this claim.

Proportionality and Clause 12

It is the final test of ‘proportionality’ articulated by the Puttaswamy judgement, which is most operative in this context. Unlike Clauses 42 and 43 which include the twin tests of necessity and proportionality, the committee has chosen to only employ one ground in Clause 12. Proportionality is a commonly employed ground in European jurisprudence and common law countries such as Canada and South Africa, and it is also an integral part of Indian jurisprudence. As commonly understood, the proportionality test consists of three parts —

a) the limiting measures must be carefully designed, or rationally connected, to the objective
b) they must impair the right as little as possible
c) the effects of the limiting measures must not be so severe on individual or group rights that the legitimate state interest, albeit important, is outweighed by the abridgement of rights.

The first test is similar to the test of proximity under Article 19. The test of ‘necessity’ in Clause 12 must be viewed in this context. It must be remembered that the test of necessity is not limited to only situations where it may not be possible to obtain consent while providing benefits. My reservations with the sufficiency of this standard stem from observations made in the report, as well as the relatively small amount of jurisprudence on this term in Indian law.

The Srikrishna Report interestingly mentions three kinds of scenarios where consent should not be required — where it is not appropriate, necessary, or relevant for processing. The report goes on to give an example of inappropriateness. In cases where data is being gathered to provide welfare services, there is an imbalance in power between the citizen and the state. Having made that observation, the committee inexplicably arrives at a conclusion that the response to this problem is to further erode the power available to citizens by removing the need for consent altogether under Clause 12. There is limited jurisprudence on the standard of ‘necessity’ under Indian law. The Supreme Court has articulated this test as ‘having reasonable relation to the object the legislation has in view.’ If we look elsewhere for guidance on how to read ‘necessity’, the ECHR in Handyside v United Kingdom held it to be neither “synonymous with indispensable” nor does it have the “flexibility of such expressions as admissible, ordinary, useful, reasonable or desirable.” In short, there must be a pressing social need to satisfy this ground.

However, the other two tests of proportionality do not find a mention in Clause 12 at all. There is no requirement of ‘narrow tailoring’, that the scope of non-consensual processing must impair the right as little as possible. It is doubly unfortunate that this test does not find a place, as unlike necessity, ‘narrow tailoring’ is a test well understood in Indian law. This means that while there is a requirement to show that processing personal data was necessary to provide a service or benefit, there is no requirement to process data in a way that there is minimal non-consensual processing. The fear is that as long as there is a reasonable relation between processing data and the object of the function of state, state authorities and other bodies authorised by it, do not need to bother with obtaining consent.

Similarly, the third test of proportionality is also not represented in this provision. It provides a test between the abridgement of individual rights and legitimate state interest in question, and it requires that the first must not outweigh the second. The absence of the proportionality test leaves Clause 12 devoid of any such consideration. Therefore, as long as the test of necessity is met under this law, it need not evaluate the denial of consent against the service or benefit that is being provided.

The collective implication of leaving out ‘proportionality’ from Clause 12 is to provide very wide discretionary powers to the state, by setting the threshold to circumvent informed consent extremely low. In the next post, I will demonstrate the ease with which Clause 12 can allow indiscriminate data sharing by focusing on the Indian government’s digital healthcare schemes.

For more details visit https://cis-india.org/internet-governance/blog/medianama-february-18-2021-amber-sinha-data-protection-bill-consent-clause-state-function

CIS Comments and Recommendations on the Data Protection Bill, 2021

Pallavi Bedi and Shweta Mohandas — 2022-02-14T16:07:44Z

This document is a revised version of the comments we provided on the 2019 Bill on 20 February 2020, with updates based on the amendments in the 2021 Bill.

After nearly two years of deliberations and a few changes in its composition, the Joint Parliamentary Committee (JPC), on 17 December 2021, submitted its report on the Personal Data Protection Bill, 2019 (2019 Bill). The report also contains a new version of the law titled the Data Protection Bill, 2021 (2021 Bill). Although there were no major revisions from the previous version other than the inclusion of all data under the ambit of the bill, some provisions were amended.

This document is a revised version of the comments we provided on the 2019 Bill on 20 February 2020, with updates based on the amendments in the 2021 Bill. Through this document we aim to shed light on the issues that we highlighted in our previous comments that have not yet been addressed, along with additional comments on sections that have become more relevant since the pandemic began. In several instances our previous comments have either not been addressed or only partially been addressed; in such instances, we reiterate them.

These general comments should be read in conjunction with our previous recommendations for the reader to get a comprehensive overview of what has changed from the previous version and what has remained the same. This document can also be read while referencing the new Data Protection Bill 2021 and the JPC’s report to understand some of the significant provisions of the bill.

Read on to access the comments | Review and editing by Arindrajit Basu. Copy editing: The Clean Copy; Shared under Creative Commons Attribution 4.0 International license

For more details visit https://cis-india.org/internet-governance/blog/pallavi-bedi-and-shweta-mohandas-cis-comments-on-data-protection-bill

Notes for India as the digital trade juggernaut rolls on

basu — 2022-02-09T15:04:36Z

Sitting out trade negotiations could result in the country losing out on opportunities to shape the rules.

The article by Arindrajit Basu was published in the Hindu on February 8, 2022

Despite the cancellation of the Twelfth Ministerial Conference (MC12) of the World Trade Organization (WTO) late last year (scheduled date, November 30, 2021-December 3, 2021) due to COVID-19, digital trade negotiations continue their ambitious march forward. On December 14, Australia, Japan, and Singapore, co-convenors of the plurilateral Joint Statement Initiative (JSI) on e-commerce, welcomed the ‘substantial progress’ made at the talks over the past three years and stated that they expected a convergence on more issues by the end of 2022.

Holding out

But therein lies the rub: even though JSI members account for over 90% of global trade, and the initiative welcomes newer entrants, over half of WTO members (largely from the developing world) continue to opt out of these negotiations. They fear being arm-twisted into accepting global rules that could etiolate domestic policymaking and economic growth. India and South Africa have led the resistance and been the JSI’s most vocal critics. India has thus far resisted pressures from the developed world to jump onto the JSI bandwagon, largely through coherent legal argumentation against the JSI and a long-term developmental vision. Yet, given the increasingly fragmented global trading landscape and the rising importance of the global digital economy, can India tailor its engagement with the WTO to better accommodate its economic and geopolitical interests?

Global rules on digital trade

The WTO emerged in a largely analogue world in 1994. It was only at the Second Ministerial Conference (1998) that members agreed on core rules for e-commerce regulation. A temporary moratorium was imposed on customs duties relating to the electronic transmission of goods and services. This moratorium has been renewed continuously, to consistent opposition from India and South Africa. They argue that the moratorium imposes significant costs on developing countries as they are unable to benefit from the revenue customs duties would bring.

The members also agreed to set up a work programme on e-commerce across four issue areas at the General Council: goods, services, intellectual property, and development. Frustrated by a lack of progress in the two decades that followed, 70 members brokered the JSI in December 2017 to initiate exploratory work on the trade-related aspects of e-commerce. Several countries, including developing countries, signed up in 2019 despite holding contrary views to most JSI members on key issues. Surprise entrants, China and Indonesia, argued that they sought to shape the rules from within the initiative rather than sitting on the sidelines.

India and South Africa have rightly pointed out that the JSI contravenes the WTO’s consensus-based framework, where every member has a voice and vote regardless of economic standing. Unlike the General Council Work Programme, which India and South Africa have attempted to revitalise in the past year, the JSI does not include all WTO members. For the process to be legally valid, the initiative must either build consensus or negotiate a plurilateral agreement outside the aegis of the WTO.

India and South Africa’s positioning strikes a chord at the heart of the global trading regime: how to balance the sovereign right of states to shape domestic policy with international obligations that would enable them to reap the benefits of a global trading system.

A contested regime

There are several issues upon which the developed and developing worlds disagree. One such issue concerns international rules relating to the free flow of data across borders. Several countries, both within and outside the JSI, have imposed data localisation mandates that compel corporations to store and process data within territorial borders. This is a key policy priority for India. Several payment card companies, including Mastercard and American Express, were prohibited from issuing new cards for failure to comply with a 2018 financial data localisation directive from the Reserve Bank of India. The Joint Parliamentary Committee (JPC) on data protection has recommended stringent localisation measures for sensitive personal data and critical personal data in India’s data protection legislation. However, for nations and industries in the developed world looking to access new digital markets, these restrictions impose unnecessary compliance costs, thus arguably hampering innovation and supposedly amounting to unfair protectionism.

There is a similar disagreement regarding domestic laws that mandate the disclosure of source codes. Developed countries believe that this hampers innovation, whereas developing countries believe it is essential for algorithmic transparency and fairness — which was another key recommendation of the JPC report in December 2021.

India’s choices

India’s global position is reinforced through narrative building by political and industrial leaders alike. Data sovereignty is championed as a means of resisting ‘data colonialism’, the exploitative economic practices and intensive lobbying of Silicon Valley companies. Policymaking for India’s digital economy is at a critical juncture. Surveillance reform, personal data protection, algorithmic governance, and non-personal data regulation must be galvanised through evidenced insights,and work for individuals, communities, and aspiring local businesses — not just established larger players.

Hastily signing trading obligations could reduce the space available to frame appropriate policy. But sitting out trade negotiations will mean that the digital trade juggernaut will continue unchecked, through mega-regional trading agreements such as the Regional Comprehensive Economic Partnership (RCEP) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). India could risk becoming an unwitting standard-taker in an already fragmented trading regime and lose out on opportunities to shape these rules instead.

Alternatives exist; negotiations need not mean compromise. For example, exceptions to digital trade rules, such as ‘legitimate public policy objective’ or ‘essential security interests’, could be negotiated to preserve policymaking where needed while still acquiescing to the larger agreement. Further, any outcome need not be an all-or-nothing arrangement. Taking a cue from the Digital Economy Partnership Agreement (DEPA) between Singapore, Chile, and New Zealand, India can push for a framework where countries can pick and choose modules with which they wish to comply. These combinations can be amassed incrementally as emerging economies such as India work through domestic regulations.

Despite its failings, the WTO plays a critical role in global governance and is vital to India’s strategic interests. Negotiating without surrendering domestic policy-making holds the key to India’s digital future.

Arindrajit Basu is Research Lead at the Centre for Internet and Society, India. The views expressed are personal. The author would like to thank The Clean Copy for edits on a draft of this article.

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-arindrajit-basu-february-8-2022-notes-for-india-as-the-digital-trade-juggernaut-rolls-on

Submission to the Facebook Oversight Board: Policy on Cross-checks

2022-02-09T05:31:32Z

The Centre for Internet & Society (CIS) submitted public comments to the Facebook Oversight Board on a policy consultation.

Whether a cross-check system is needed?

Recommendation for the Board: The Board should investigate the cross-check system as part of Meta’s larger problems with algorithmically amplified speech, and how such speech gets moderated.

Explanation: The issues surrounding Meta’s cross-check system are not an isolated phenomena, but rather a reflection of the problems of algorithmically amplified speech, as well the lack of transparency in the company’s content moderation processes at large. At the outset, it must be stated that the majority of information on the cross-check system only became available after the media reports published by the Wall Street Journal. While these reports have been extensive in documenting various aspects of the system, there is no guarantee that the disclosures obtained by them provides the complete picture regarding the system. Further, given that Meta has been found to purposely mislead the Board and the public on how the cross-check system operates, it is worth investigating the incentives that necessitate the cross-check system in the first place.

Meta claims that the cross-check system works as a check for false positives: they “employ additional reviews for high-visibility content that may violate our policies.” Essentially they want to make sure that content that stays up on the platform and reaches a large audience, is following their content guidelines. However, previous disclosures have proven policy executives have prioritized the company’s ‘business interests’ over removing content that violates their policies; and have waited to act on known problematic content until significant external pressure was built up, including in India. In this context, the cross-check system seems less like a measure designed to protect users who might be exposed to problematic content, and more as a measure for managing public perception of the company.

Thus the Board should investigate both how content gains an audience on the platform, and how it gets moderated. Previous whistleblower disclosures have shown that the mechanics of algorithmically amplified speech, which prioritizes engagement and growth over safety, are easily taken advantage of by bad actors to promote their viewpoints through artificially induced virality. The cross-check system and other measures of content moderation at scale would not be needed if it was harder to spread problematic content on the platform in the first place. Instead of focusing only on one specific system, the Board needs to urge Meta to re-evaluate the incentives that drive content sharing on the platform and come up with ways that make the platform safer.

Meta’s Obligations under Human Rights Law

Recommendation for the Board: The Board must consider the cross-check system to be violative of Meta’s obligations under the International Covenant of Civil and Political Rights (ICCPR). Additionally, the cross-check ranker must be incorporated with Meta’s commitments towards human rights, as outlined in its Corporate Human Rights Policy.

Explanation: Meta’s content moderation, and by extension, its cross-check system, is bound by both international human rights law as well as the Board’s past decisions. At the outset, The system fails the three-pronged test of legality, legitimacy and necessity and proportionality, as delineated under Article 19(3) of the International Covenant of Civil and Political Rights (ICCPR). Firstly, this system has been “scattered throughout the company, without clear governance or ownership”, which violates the legality principle, since there is no clear guidance on what sort of speech, or which classes of users, would deserve the treatment of this system. Secondly, there is no understanding about the legitimacy of aims with which this system had been set up in the first place, beyond Meta’s own assertions, which have been countered by evidence to the contrary. Thirdly, the necessity and proportionality of the restriction has to be read along with the Rabat Plan of Action, which requires that for a statement to become a criminal offense, a six-pronged test of threshold is to be applied: a) the social and political context, b) the speaker’s position or status in the society, c) intent to incite the audience against a target group, d) content and form of the speech, e) extent of its dissemination and f) likelihood of harm. As news reports have indicated, Meta has been utilizing the cross-check system to privilege speech from influential users, and in the process, have shielded inflammatory, inciting speech that would have otherwise qualified the Rabat threshold. As such, the third requirement is not fulfilled either.

Additionally, Meta’s own Corporate Human Rights Policy commits to respecting human rights in line with the UN Guiding Principles on Business and Human Rights (UNGPs). Therefore, the cross-check ranker must incorporate these existing commitments to human rights, including:

The right to freedom of expression:, UN Special Rapporteur on freedom of opinion and expression report A/HRC/38/35 (2018); Joint Statement of international freedom of expression monitors on COVID-19 (March, 2020).

The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addresses the regulation of user-generated online content.

The Joint Statement issued regarding Governmental promotion and protection of access to and free flow of information during the pandemic.

The right to non-discrimination: International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1 and 4.

Article 1 of the ICERD defines racial discrimination.

Article 4 of the ICERD condemns propaganda and organisations that attempt to justify discrimination or are based on the idea of racial supremacism.

Participation in public affairs and the right to vote: ICCPR Article 25.
The right to remedy: General Comment No. 31, Human Rights Committee (2004) (General Comment 31); UNGPs, Principle 22.

The General Comment discusses the nature of the general legal obligation imposed on State Parties to the Covenant.

Guiding Principle 22 states that where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.

Meta’s obligations to avoid political bias and false positives in its cross-check system

Recommendation for the Board: The Board must urge Meta to adopt and implement the Santa Clara Principles on Transparency and Accountability to ensure that it is open about risks to user rights when there is involvement from the State in content moderation. Additionally, the Board must ask Meta to undertake a diversity and human rights audit of its existing policy teams, and commit to regular cultural training for its staff. Finally, the Board must investigate the potential conflicts of interest that arise when Meta’s policy team has any sort of nexus with political parties, and how that might impact content moderation.

Explanation: For the cross-check system to be free from biases, it is important for Meta to come clear to the Board regarding the rationale, standards and processes of the cross check review, and report on the relative error rates of determinations made through cross check compared with ordinary enforcement procedures. It also needs to disclose to the Board in which particular situations it uses the system and in which it does not. Principle 4 under the Foundational Principles of the Santa Clara Principles on Transparency and Accountability in Content Moderation encourage companies to realize the risk to user rights when there is involvement from the State in processes of content moderation and asks companies to makes users aware that: a) a state actor has requested/participated in an action on their content/account, and b) the company believes that the action was needed as per the relevant law. Users should be allowed access to any rules or policies, formal or informal work relationships that the company holds with state actors in terms of content regulation, the process of flagging accounts/content and state requests to action.

The Board must consider that erroneous lack of action (false positives) might not always be a system's flaw, but a larger, structural issue regarding how policy teams at Meta functions. As previous disclosures have proven, the contours of what sort of violating content gets to stay up on the platform has been ideologically and politically coloured, as policy executives have prioritized the company’s ‘business interests’ over social harmony. In such light, it is not sufficient to simply propose better transparency and accountability measures for Meta to adopt within its content moderation processes to avoid political bias. Rather, the Board’s recommendations must focus on the structural aspect of the human moderator and policy team that is behind these processes. The Board must ask Meta to a) urgently undertake a diversity and human rights audit of its existing team and its hiring processes, b) commit to regular training to ensure that their policy staffs are culturally literate in the socio-political regions they work in. Further, the Board must seriously investigate the potential conflicts of interest that happen when regional policy teams of Meta, with nexus to political parties, are also tasked with regulating content from representatives of these parties, and how that impacts the moderation processes at large.

Finally, in case decision 2021-001-FB-FBR, the Board made a number of recommendations to Meta which must be implemented in the current situation, including: a) considering the political context while looking at potential risks, b) employment of specialized staff in content moderation while evaluating political speech from influential users, c) familiarity with the political and linguistic context d) absence of any interference and undue influence, e) public explanation regarding the rules Meta uses when imposing sanctions against influential users and f) the sanctions being time-bound.

Transparency of the cross-check system

Recommendation for the Board: The Board must urge Meta to adopt and implement the Santa Clara Principles on Transparency and Accountability to increase the transparency of its cross-check system.

Explanation: There are ways in which Meta can increase the transparency of not only the cross-check system, but the content moderation process in general. The following recommendations draw from The Santa Clara Principles and the Board’s own previous decisions:

Considering Principle 2 of the Santa Clara Principles: Understandable Rules and Policies, Meta should ensure that the policies and rules governing moderation of content and user behaviors on Facebook are clear, easily understandable, and available in the languages in which the user operates.

Drawing from Principle 5 on Integrity and Explainability and from the Board’s recommendations in case decision 2021-001-FB-FBR which advises Meta to“Provide users with accessible information on how many violations, strikes and penalties have been assessed against them, and the consequences that will follow future violations”, Meta should be able to explain the content moderation decisions to users in all cases: when under review, when the decision has been made to leave the content up, or take it down. We recommend that Meta keeps a publicly accessible running tally of the number of moderation decisions made on a piece of content till date with their explanations. This would allow third parties (like journalists, activists, researchers and the OSB) to keep Facebook accountable when it does not follow its own policies, as has previously been the case.

In the same case decision, the Board has also previously recommended that Meta “Produce more information to help users understand and evaluate the process and criteria for applying the newsworthiness allowance, including how it applies to influential accounts. The company should also clearly explain the rationale, standards and processes of the cross-check review, and report on the relative error rates of determinations made through cross-checking compared with ordinary enforcement procedures.” Thus, Meta should publicly explain the cross check system in detail with examples, and make public the list of attributes that qualify a piece of content for secondary review.

The Operational Principles further provide actionable steps that Meta can take to improve the transparency of their content moderation systems. Drawing from Principle 2: Notice and Principle 3: Appeals, Meta should make a satisfactory appeals process available to users - whether they be decisions to leave up or takedown content. The appeals process should be handled by context aware teams. Meta should then publish the results of the cross check system and the appeals processes as part of their transparency reports including data like total content actioned, rate of success in appeals and cross check process, decisions overturned and preserved etc, which would also satisfy the first Operational Principle: Numbers.

Resources needed to improve the system for users and entities who do not post in English

Recommendations for the Board: The Board must urge Meta to urgently invest in resources to expand Meta’s content moderation services into the local contexts in which the company operates and invest in training data for local languages.

Explanation: The cross-check system is not a fundamentally different problem than content moderation. It has been shown time and time again that Meta’s handling of content from non-Western, non-English language contexts is severely lacking. It has been shown how content hosted on the platform has been used to inflame existing tensions in developing countries, promote religious hatred in India, genocide in Mynmar, and continue to support human traffickers and drug cartels on the platform even when these issues have been identified.

There is an urgent need to invest resources to expand Meta’s content moderation services into the local contexts in which the company operates. The company should make all policies and rule documents available in the languages of its users; invest in creating automated tools that are capable of flagging content that is not posted in English; and add people familiar with the local contexts to provide context aware second level reviews. The Facebook Files show that even according to company engineering, automated content moderation is still not very effective in identifying hate speech and other harmful content. Meta should focus on hiring, training and retaining human moderators who have knowledge of local contexts. Bias training of all content moderators, but especially those who will participate in the second level reviews in the cross check system is also extremely important to ensure acceptable decisions.

Additionally, in keeping with Meta’s human rights commitments, the company should develop and publish a policy for responding to human rights violations when they are pointed out by activists, researchers, journalists and employees as a matter of due process. It should not wait for a negative news cycle to stir them into action as it seems to have done in previous cases.

Benefits and limitations of automated technologies

Meta recently changed its moderation practice wherein it uses technology to prioritize content for human reviewers based on their severity index. Facebook has not specified the technology it uses to prioritize high-severity content but its research record shows that it uses a host of automated frameworks and tools to detect violating content, including image recognition tools, object detection tools, natural language processing models, speech models and reasoning models. One such model is the Whole Post Integrity Embeddings (“WPIE”) which can judge various elements in a given post (caption, comments, OCR, image etc.) to work out the context and the content of the post. Facebook also uses image matching models (SimSearchNet++) that are trained to match variations of an image with a high degree of precision and improved recall; multi-lingual masked language models on cross-lingual understanding such as XLM-R that can accurately identify hate-speech and other policy-violating content across a wide range of languages. More recently, Facebook introduced its machine translation model called the M2M-100 whose goal is to perform bidirectional translation between 7000 languages.

Despite the advances in this field, there are inherent limitations of such automated tools. Experts have repeatedly maintained that AI will get better at understanding context but it will not replace human moderators for the foreseeable future. One such instance where these limitations were exposed was during the COVID-19 pandemic, when Facebook sent its human moderators home - the number of removals flagged as hate speech on its platform more than doubled to 22.5 million in the second quarter of 2020 but the number of successful content appeals was dropped to 12,600 from the 2.3 million figure for the first three months of 2020.

The Facebook Files show that Meta’s AI cannot consistently identify first-person shooting videos, racist rants and even the difference between cockfighting and car crashes. Its automated systems are only capable of removing posts that generate just 3% to 5% of the views of hate speech on the platform and 0.6% of all content that violates Meta’s policies against violence and incitement. As such, it is difficult to accept the company’s claim that nearly all of the hate speech it takes down was discovered by AI before it was reported by users.

However, the benefits of such technology cannot be discounted, especially when one considers automated technology as a way of reducing trauma for human moderators. Using AI for prioritizing content for review can turn out to be effective for human moderators as it can increase their efficiency and reduce harmful effects of content moderation on them. Additionally, it can also limit the exposure of harmful content to internet users. Moreover, AI can also reduce the impact of harmful content on human moderators by allocating content to moderators on the basis of their exposure history. Theoretically, if the company’s claims are to be believed, using automated technology for prioritizing content for review can help to improve the mental health of Facebook’s human moderators.

Click to download the file here.

For more details visit https://cis-india.org/internet-governance/blog/submission-to-the-facebook-oversight-board-policy-on-cross-checks

Transference: Reimagining Data Systems: Beyond the Gender Binary

torsha — 2021-12-15T12:58:31Z

The Centre for Internet and Society (CIS) invites you to participate in a day-long convening on the rights of transgender persons, specifically right to privacy and digital rights. Through this convening, we hope to highlight the concerns of transgender persons in accessing digital data systems and the privacy challenges faced by the community. These challenges include access to their rights — their right to self-identify their gender and welfare services offered by the State and the privacy challenges faced by transgender and intersex persons in revealing their identity.

As the meaning of the word ‘Transference’ goes, through this convening, as a learning, we hope to capture and transfer the realities of transgender persons with engaging and being a part of digital data systems in India. Given the rapid digitisation of different public and private data systems in India, we hope to initiate a conversation that understands their struggles and challenges to realistically initiate the re-imagination of data systems — digital and otherwise — one that is mindful about their everyday struggles with privacy and access.

Owing to the history of systemic exclusions faced by transgender persons, it is important to highlight their difficulties in accessing technological systems and the impact on their privacy, as central issues that require serious consideration. Presently, their realities seem to be ignored by the State while designing most technology laws and policies governing digital systems.

Background

In the landmark verdict in 2014, NALSA Vs Union of India, the Supreme Court of India for the first time recognised the right of an individual to self-identify their gender as male, female or transgender. This verdict detailed nine directives to be implemented by the central and state governments in India for the inclusion of transgender persons.

Similarly, 2017 was a watershed moment in India’s constitutional history when the Supreme Court held the right to privacy to be a fundamental right. More importantly, the Court expounded on this right and held that the protection of an individual’s gender identity is an essential component of the right to privacy and that privacy at its core includes the preservation of personal intimacies, autonomy, the sanctity of family life, marriage, procreation, the home and sexual orientation.

The 2017 privacy judgement led to the Supreme Court pronouncing the Navtej Johar v Union of India in 2018, striking down the Koushal judgement and decriminalising acts of consensual non-hetrosexual acts of intimacy. In 2019, the Personal Data Protection Bill, 2019 was introduced in Parliament for the regulation and protection of personal data. The PDP Bill classifies data into two categories as (i) personal data; and (ii) sensitive personal data. As per the PDP Bill, data identifying the transgender status and intersex status falls within the ambit of sensitive personal data. Around the time of the PDP Bill being tabled in Parliament, the Transgender Persons (Protection of Rights) Act 2019 was passed by the Parliament despite severe opposition to the Bill from civil society members as well as members of Parliament.

There is a lack of clarity on the interplay between the PDP Bill and the Transgender Act and the challenges the PDP Bill may pose to the transgender community. Moving beyond mere mentions in the definition of the law through a cisgendered heteronormative lens, it is important for the discourse on data and privacy to broaden its scope to realistically include people of different sexual orientations, gender and sexual identities, gender expressions and sex characteristics.

About the Event

Through these panel discussions, we propose to highlight the concerns of transgender persons with accessing digital data systems and the privacy challenges faced by them . These challenges include access to their rights — their right to self-identify their gender and access welfare services offered by the State and the privacy challenges faced by transgender persons in revealing their identity.

The objective of these discussions is to initiate more conversations about the technological and data exclusions faced by this historically marginalised community in India. The intent is to better understand the realities of transgender persons and contribute to the larger advocacy on privacy, intersectionality and (digital) systems design.

Click to register for the event here

For more details visit https://cis-india.org/internet-governance/events/transference-reimagining-data-systems-beyond-the-gender-binary

Launching CIS’s Flagship Report on Private Crypto-Assets

Aman Nair — 2021-12-13T09:11:18Z

This event will serve as a venue to bring together the various stakeholders involved in the crypto-asset space to discuss the state of crypto-asset regulation in India from a multitude of perspectives.

About the private crypto-assets report

The first output under this agenda is our report on regulating private cryptocurrencies in India. This report aims to act as an introductory resource for policymakers who are looking to implement a regulatory framework for private crypto-assets. The report covers the technical elements of crypto-assets, their history, proposed use cases as well as its benefits and limitations. It also examines how crypto-assets fit within India’s current regulatory and legislative frameworks and makes clear recommendations for the same.

About the Event

The launch event will feature an initial presentation by researchers at CIS on the various findings and recommendations of its flagship report. This will be followed by a moderated discussion with 5 panelists who represent the space in policy, academia and industry. The discussion will be centered around the current status of crypto-assets in India, the government’s new proposed regulations and what the future holds for the Indian crypto market.

The confirmed panelists are as follows:

Tanvi Ratna - Founder, Policy 4.0 and expert on blockchain and cryptocurrencies
Shehnaz Ahmed - Senior Resident Fellow and Fintech Lead at Vidhi Centre for Legal Policy
Nithya R. - Chief Executive Officer, Unos.Finace
Prashanth Irudayaraj - Head of R&D, Zebpay
Vipul Kharbanda - Non resident Fellow specialising in Fintech at CIS
Aman Nair - Policy Offer, CIS (Moderator)

Registration link: https://us06web.zoom.us/webinar/register/WN_TdY-EPLoRvGY2rfsq4CENw

Agenda

17.30 - 17.35	Welcome Note
17.35 - 18.35	The status of private crypto assets in India Presentation on CIS’ flagship Report on regulating private crypto-assets in India Moderated discussion with panelists across industry, government, journalism and academia providing their insight as to the current and future state of private crypto-assets, and their regulation, in India.
18.35 - 19.00	Audience questions and discussion

For more details visit https://cis-india.org/internet-governance/blog/launching-flagship-cis-report-on-private-crypto-assets

Launching CIS’s Flagship Report on Private Crypto-Assets

Admin — 2021-12-03T15:16:27Z

The Centre for Internet & Society is launching its flagship report on regulating private crypto-assets in India, as part of its newly formed Financial Technology (or Fintech) research agenda. This event will serve as a venue to bring together the various stakeholders involved in the crypto-asset space to discuss the state of crypto-asset regulation in India from a multitude of perspectives.

About the private crypto-assets report

About the Event

The confirmed panelists are as follows:

Tanvi Ratna - Founder, Policy 4.0 and expert on blockchain and cryptocurrencies
Shehnaz Ahmed - Senior Resident Fellow and Fintech Lead at Vidhi Centre for Legal Policy
Nithya R. - Chief Executive Officer, Unos.Finace
Prashanth Irudayaraj - Head of R&D, Zebpay
Vipul Kharbanda - Non resident Fellow specialising in Fintech at CIS
Aman Nair - Policy Offer, CIS (Moderator)

Registration link: https://us06web.zoom.us/webinar/register/WN_TdY-EPLoRvGY2rfsq4CENw

Agenda

17.30 - 17.35

Welcome Note

17.35 - 18.35

The status of private crypto-assets in India

Presentation on CIS’ flagship Report on regulating private crypto-assets in India
Moderated discussion with panelists across industry, government, journalism and academia providing their insight as to the current and future state of private crypto-assets, and their regulation, in India.

18.35 - 19.00

Audience questions and discussion

For more details visit https://cis-india.org/internet-governance/events/launching-cis-flagship-report-on-private-crypto-assets

Panel discussion on 'How to Avoid Digital ID Systems That Put People at Risk: Lessons from Afghanistan' at Freedom Online Conference

praskrishna — 2021-12-03T14:52:35Z

Amber Sinha participated as a panelist in a panel discussion on How to Avoid Digital ID Systems That Put People at Risk: Lessons from Afghanistan at the Freedom Online Conference yesterday.

The Freedom Online Coalition (FOC) was established in 2011 in response to the growing recognition of the importance of the Internet for the enjoyment of human rights. Periodically, the FOC holds a multistakeholder Conference that aims to deepen the discussion on how online freedoms are helping to promote social, cultural and economic development. The ownership of the Conference program and outputs lies with the host country, most often the Chair of the Coalition during that year.

The aim of the panel was to use the lessons learned from the Afghanistan case to take a critical and realistic look at the implementation of digital identification programs around the world. A video of the panel can be accessed here.

For more details visit https://cis-india.org/internet-governance/news/panel-discussion-how-to-avoid-digital-id-systems-that-put-people-at-risk

Facial Recognition Technology in India

Elonnai Hickok, Pallavi Bedi, Aman Nair and Amber Sinha — 2021-09-02T16:17:44Z

For more details visit https://cis-india.org/internet-governance/facial-recognition-technology-in-india.pdf

Facial Recognition Technology in India

Elonnai Hickok, Pallavi Bedi, Aman Nair and Amber Sinha — 2021-09-02T16:21:24Z

The Human Rights, Big Data and Technology Project, University of Essex, UK and the Centre for Internet & Society (CIS) have jointly published a research paper on facial recognition technology. Authors, Elonnai Hickok, Pallavi Bedi, Aman Nair and Amber Sinha, examine technological tools such as CCTV and FRT which are increasingly being deployed by the government.

Executive Summary

Over the past two decades there has been a sustained effort at digitising India’s governance structure in order to foster development and innovation. The field of law enforcement and safety has seen significant change in that direction, with technological tools such as Closed Circuit Television (CCTV) and Facial Recognition Technology (FRT) increasingly being deployed by the government.

Yet for all its increased use, there is still a lack of a coherent legal and regulatory framework governing FRT in India. Towards informing such a framework, this paper seeks to document present uses of FRT in India, specifically by law enforcement agencies and central and state governments, understand the applicability of existing legal frameworks to the use of FRT, and define key areas that need to be addressed when using the technology in India. We also briefly look at how the coverage of FRT has increased beyond law enforcement; it now covers educational institutions, employment purposes, and it is now being used for providing Covid-19 vaccines.

We begin by examining use cases of FRT systems by various divisions of central and state governments. In doing so, it becomes apparent that there is a lack of uniform standards or guidelines at either the state or central level - leading to different FRT systems having differing standards of applicability and scope of use. And while the use of such systems seems to be growing at a rapid rate, questions around their legality persist.

It is unclear whether the use of FRT is compliant with the fundamental right to privacy as affirmed by the Supreme Court in 2017 in Puttaswamy. While the right to privacy is not an absolute right, for the state to curtail this right, the restrictions will have to comply with a three-fold requirement— first, being the need for explicit legislative mandate in instances where the government looks to curtail the right. However, the FRT systems we have analysed do not have such a mandate and are often the result of administrative or executive decisions with no legislative blessing or judicial oversight.

We further locate the use of FRT technology within the country’s wider legislative, judicial and constitutional frameworks governing surveillance. We also briefly articulate comparative perspectives on the use of FRT in other jurisdictions. We further analyse the impact of the proposed Personal Data Protection Bill on the deployment of FRT. Finally, we propose a set of recommendations to develop a path forward for the technology’s use which include the need for a comprehensive legal and regulatory framework that governs the use of FRT. Such a framework must take into consideration the necessity of use, proportionality, consent, security, retention, redressal mechanisms, purpose limitation, and other such principles. Since the use of FRT in India is also at a nascent stage, it is imperative that there is greater public research and dialogue into its development and use to ensure that any harms that may arise in the field are mitigated.

Click to download the entire research paper here

For more details visit https://cis-india.org/internet-governance/blog/hrbdt-and-cis-august-31-2021-facial-recognition-technology-in-india

June and July Newsletter

pranav — 2021-08-10T15:57:16Z

The newsletter presents the work done in the months of June and July 2021.

Announcements

We are pleased to announce the launch of a seminar series to showcase research around digital rights and technology policy, with a focus on the Global South. The CIS seminar series will be a venue for researchers to share works-in-progress, exchange ideas, identify avenues for collaboration, and curate research. It will also seek to mitigate the impact of Covid-19 on research exchange, and foster collaborations among researchers and academics from diverse geographies. For more details on the first session, on Information Disorders, and to register, click here: [link]

We are also hiring for two full time remote positions:

Research Associate: Access to Knowledge Programme: Apply by August 13 [link]
Communication Designer: Apply by August 20 [link]

Cybersecurity, Privacy, and Emerging Technology

Following the MCA notification mandating disclosures of crypto currency holdings by companies, Aryan Gupta, in an issue brief, discusses the policy landscape in the United States of America, United Kingdom, and Japan with particular emphasis upon definition, accounting practices, and taxation, with respect to crypto currencies. [link]
We submitted comments in response to the Supreme Court E-committee’s draft vision document of phase III of the E-courts project. Aman Nair, Arinjay Vyas, Pallavi Bedi and Garima Saxena submitted their general comments and recommendations, and comparatively analysed the integration of digital technology into the judiciary in both South Asia and Africa. [link]
Google’s new Privacy Sandbox platform promises to preserve anonymity when serving tailored advertising. But does this new framework help users in any way? Maria Jawed’s analysis reveals that Google’s gambit to reorient the ad-tech ecosystem under the garb of privacy, ultimately ends up undermining it. [link]
Pandemic technology is taking a toll on data privacy, especially in the absence of any legal framework; these tools are being used for purposes beyond managing the pandemic. In an article published in the Deccan Herald, Aman Nair and Pallavi Bedi argue that India’s digital response to the pandemic has stoked concerns that surveillance could pose threats to the privacy of the personal data collected. [link]
In a piece for The Wire, Aman Nair analyses Tether, a lesser known crypto currency that is at the heart of a $3 trillion market. Issued by Tether Limited, Tether forms the foundation for modern day crypto trading and could potentially be one of the biggest schemes in financial history. [link]
India has 500 million internet users — over a third of its total population — making it the country with the second largest number of internet users after China. With this comes several kinds of digital threats that an average digital consumer in India must regularly contend with. Pranav M.B. attempts to identify the existing state of digital safety in India, with a report that maps digital threats in the country. [link]
Since last year, there have been regular questions around the anti-competitive practices of digital platforms. After 46 US states filed an antitrust case against Facebook along with the Federal Trade Commission (FTC) in December 2020, Kamesh Shekar analyzed these developments in a blog post. [link]
Recently, the Indian government mandated online messaging providers to enable identification of originators of messages on their platforms. In an academic paper for the NUJS Law Review, Gurshabad Grover, Tanaya Rajwade and Divyank Katira conduct a legal and constitutional analysis of this ‘traceability’ requirement, how it can be implemented, and how these methods come with serious costs to usability, security, and privacy. [link]
The National Digital Health Mission: Health Data Management Policy seeks to establish a digital health ecosystem by creating a unique health identity (UHID) for every Indian citizen. Pallavi Bedi points out that hasty implementation of the policy without adequate safeguards not only risks the privacy and security of medical data, but also undermines trust in the system leading to low uptake. [link]
In our comments to the proposed amendments to the Consumer Protection (E-Commerce) Rules, 2020, our analysis focuses on eight points: Definitions and Registration, Compliance, Data Protection and Surveillance, Flash Sales, Unfair Trade Practices, Jurisdictional Issues with Competition Law, Compliance with International Trade Law and Liabilities of Marketplace E-commerce Entities. [link]

Freedom of Expression, Intermediary Liability and Information Disorders

The recent “Infodemic” clearly shows that disinformation costs people’s lives. CIS, and the Global Disinformation Index have published a report that examines the risk of disinformation on digital news platforms in India, creating an index that is intended to serve donors and stakeholders with a neutral assessment of news sites that they can utilise to defund disinformation. [link]
Torsha Sarkar, Gurshabad Grover, Raghav Ahooja, Pallavi Bedi and Divyank Katira examine the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, highlighting potential benefits and harms that may arise from the rules, and making recommendations to retain the rules within constitutional bounds, and retain consistency with human rights based approaches to content regulation. [link]
The passage of the Intermediary Liability Rules, 2021, has also formalized the legal requirement for the utilization of automated tools in content moderation. In a blog-post for the KU Leuven’s Centre for IT and IP (CITIP) Blog, Shweta Mohandas and Torsha Sarkar analyze the requirement in light of concerns of freedom of expression of Internet users. [link]
Our comments to the Cinematograph (Amendment) Bill, 2021, authored by Tanvi Apte, Anubha Sinha, and Torsha Sarkar, examine the constitutionality and legality of the Bill and whether the proposed amendments are compatible with established constitutional principles, precedents, previous policy positions and existing law. [link]
Tanvi Apte and Torsha Sarkar, in a submission to the Facebook Oversight Board in Case 2021-008-FB-FBR: Brazil, Health Misinformation and Lockdowns, answer questions set out by the Board which concerned a post made by a Brazilian sub-national health official, and raised questions on health misinformation and enforcement of Facebook's community standards. [link]
In an essay for the Indian Journal of Law and Technology (IJLT), Torsha Sarkar analyzes issues rising out of the recent litigation between Trump and Twitter. Torsha examines intermediary liability issues under American law, and draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account. [link]

Copyright & Access to Knowledge

The Indian Parliamentary Standing Committee on Commerce’s report weighs on several aspects of the Indian IPR system and issues of protection and enforcement. In a blog post, Anubha Sinha summarily notes the observations and recommendations of the Committee on the Copyright Act, 1957 which stand to impact access to knowledge. [link]
The 41st edition of the Standing Committee on Copyright and Related Rights (SCCR) organized by the World Intellectual Property Organization (WIPO) was held from 28 June to 1 July. Anubha Sinha participated in the event as a speaker and delivered statements on the Protection of Broadcasting Organisations [link], and on Limitations and Exceptions [link]. Readers can access the notes from Day 1 [link], Day 2 [link], and Days 3 & 4 [link].
The CIS Access to Knowledge team published a comparative analysis of two prominent Wikimedia initiatives, Wikipedia Asian Month and Project Tiger, to understand prevailing challenges and opportunities, and strategies to address the same. Nitesh Gill in a two-part report outlines the research questions and methods of this study [link], and then presents some of the observations and learnings [link].

Labour and Social Justice

In a flagship report on domestic and care workers on digital platforms, Aayush Rathi and Ambika Tandon argue that digital platforms are complicit in discriminating against workers on the basis of their identities, and that domestic workers continue to remain in precarious positions without any legal recognition or support. This work was jointly authored between the Centre for Internet and Society and the Domestic Workers’ Rights Union. [link]
The ongoing pandemic has raised very valid questions of access and infrastructure in India, especially during a time when the Internet and digital technologies are essential, and in many ways the ‘new normal’. P.P. Sneha and Anasuya Sengupta write in Seminar Magazine, outlining some key challenges in digitalisation and representation of non-dominant/marginalised languages on the Internet, through reflections on two recent projects related to languages and the Internet. [link]
With the onset of the national lockdown on 24th March 2020 in response to the outbreak of COVID-19, the fate of millions of migrant workers was left uncertain. In addition, lack of enumeration and registration of migrant workers became a major obstacle for all state governments and the Central Government to channelize relief and welfare measures. Ankan Barman compiled a report to qualitatively assess health conditions of migrant workers and access to welfare during the first COVID-19 lockdown, in three host-states, Tamil Nadu, Maharashtra and Haryana. [link]
Between July to November 2019, Indian Federation of App-based Transport Workers (IFAT) and International Transport Workers’ Federation (ITF) conducted 2,128 surveys across six major cities: Bengaluru, Chennai, Delhi NCR, Hyderabad, Jaipur, and Lucknow, to determine the occupational health and safety of app-based transport workers. Findings from the survey have been compiled as a report which reveals the complete absence of social security and protection of workers in a digital platform economy. [link]

For more details visit https://cis-india.org/about/newsletters/june-july-2021-newsletter

Techno-solutionist Responses to COVID-19

Amber Sinha, Pallavi Bedi and Aman Nair — 2021-08-10T15:34:06Z

The Indian state has increasingly adopted a digital approach to service delivery over the past decade, with vaccination being the latest area to be subsumed by this strategy. In the context of the need for universal vaccination, the limitations of the government’s vaccination platform Co-WIN need to be analysed.

The article by Amber Sinha, Pallavi Bedi, and Aman Nair was published in the Economic & Political Weekly, Vol. 56, Issue No. 29, 17 Jul, 2021.

Over the last two decades, slowly but steadily, the governance agenda of the Indian state has moved to the digital realm. In 2006, the National e-Governance Plan (NeGP) was approved by the Indian state wherein a massive infrastructure was developed to reach the remotest corners and facilitate easy access of government services efficiently at affordable costs. The first set of NeGP projects focused on digitalising governance schemes that dealt with taxation, regulation of corporate entities, issuance of passports, and pensions. Over a period of time, they have come to include most interactions between the state and citizens from healthcare to education, transportation to employment, and policing to housing. Upon the launch of the Digital India Mission by the union government, the NeGP was subsumed under the e-Gov and e-Kranti components of the project. The original press release by the central government reporting the approval by the cabinet of ministers of the Digital India programme speaks of “cradle to grave” digital identity as one of its vision areas. This identity was always intended to be “unique, lifelong, online and authenticable.”

Since the inception of the Digital India campaign by the current government, there have been various concerns raised about the privacy issues posed by this project. The initiative includes over 50 “mission mode projects” in various stages of implementation. All of these projects entail collection of vast quantities of personally identifiable information of the citizens. However, most of these initiatives do not have clearly laid down privacy policies. There is also a lack of properly articulated access control mechanism and doubts exist over important issues such as data ownership owing to most projects involving public–private partnership which involves a private organisation collecting, processing and retaining large amounts of data. Most importantly, they have continued to exist and prosper in a state of regulatory vacuum with no data protection legislation to govern them. Further, the state of digital divide and digital literacy in India should automatically underscore the need to not rely solely on digital solutions.

Click to read the full article here

For more details visit https://cis-india.org/internet-governance/blog/economic-and-political-weekly-july-17-2021-amber-sinha-pallavi-bedi-aman-nair-techno-solutionist-responses-to-covid-19

March - May Newsletter

pranav — 2021-08-08T15:45:45Z

Cybersecurity, and Emerging Technology

Doctrinal clarity and institutional coherence are essential for a robust cybersecurity posture. Arindrajit Basu and Pranesh Prakash analyze this in an opinion piece in The Hindu. [link]
U.S. and Indian decisions about Huawei have implications not just for their separate relations with China, but the U.S.-India bilateral as well. Arindrajit Basu and Justin Sherman co-authored an article in The Diplomat examining Huawei’s role in India [link]
In an article for The Wire, Aman Nair points out that India might miss out on NFT (non-fungible tokens) which is set to become a mainstay in the modern digital zeitgeist. [link]
Arindrajit Basu and Andre Barrinha co-wrote for the EU Cyber Direct, on outer space diplomacy in the 1960s and why cyber (security) diplomacy isn’t quite progressing as well or as fast. [link]
Arindrajit Basu, Irene Poetranto and Justin Lau co-wrote an article for Carnegie Endowment for International Peace which captures some concerns with the United Nations OEWG process dealing with cyber norms and the absence of discussion at the forum on key issues. [link]
In an article for the Observer Research Foundation, Arindrajit Basu writes about how India must avoid getting its data policy caught up in tired existing machinations and instead forge a new path that prioritizes Indian strategic interests. [link]
Aman Nair, Arinjay Vyas, Pallavi Bedi, and Garima Saxena authored a response to the Supreme Court E-committee’s draft vision document of phase III of the E-courts project. This response recommends consideration be given to the digital and gender divide, and lack of clarity in the document on several data-related aspects. [link]

Privacy

The proposed Personal Data Protection Bill, 2019 is being deliberated by the Joint Parliamentary Committee and is expected to be tabled in the Monsoon Session of Parliament. Pallavi Bedi and Amber Sinha co-authored a white paper to examine the personal data implications on welfare delivery models in India and to suggest ways to operationalise key provisions. [link]
Shweta Mohandas authored an article for Rajiv Gandhi National University of Law Student Research Review (RSRR). In this article, which forms a part of RSRR’s ‘Excerpts from Experts Blog Series,’ Shweta examines whether Indian data protection legislation can act as a check on growing workplace surveillance. [link]
Aman Nair and Arindrajit Basu examine the changes in the context of data sharing between WhatsApp and Facebook as being an anticompetitive action in violation of the Indian Competition Act, 2002. Having previously examined the implications of WhatsApp’s changes to its privacy policy in 2021, this issue brief is the second output of the series examining the effects of the changes. [link]
In a blog-post, Pallavi Bedi provides recommendations for the Covid vaccine intelligence network (Co-Win) platform. She says that as a first step it is essential that Co-Win has a separate dedicated privacy policy which conforms to the internationally accepted privacy principles and enumerated in the Personal Data Protection Bill. [link]

Freedom of Expression, and Intermediary Liability

In February, the Advertising Standards Council of India (ASCI) had issued draft rules for regulation of digital influencers, with an aim to “understand the peculiarities of [online] advertisements and the way consumers view them,” as well as to ensure that: “consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain.” Torsha Sarkar and Shweta Mohandas respond with comments and recommendations to the rules. [link]

Copyright, and Access to Knowledge

Anubha Sinha explains what the draft national science, technology and innovation policy means for open access to scientific literature for Indians. This article was published in The Wire Science. [link]
In an article published in Info Justice, Anubha Sinha provides a summary of the progress of the copyright infringement suit against Sci-Hub and LibGen in India. [link]

Digital Cultures, and Social Justice

In a research paper, Noopur Raval offers critical historical insights from the fields of international development, anthropology, and postcolonial history to caution against both the possible harms of gender disaggregated datafication, as well as the consequences of non-participatory datafication of women. [link]
Kaarika Das, a research scholar at NIEPA and Sravya C, a researcher in the Humanizing Automation project at IIIT Bangalore published a study on migrants in India's Gig Economy. [link]
Sameet Panda and Vipul Kumar wrote a blog for Privacy International pointing the failures in the digitisation of India’s food security programme in light of the exclusion of married women of Odisha. [link]
Shreya Ghosh, a research scholar at the Centre for Political Studies, Jawaharlal Nehru University, New Delhi authored an article in EPW on access to welfare and health for women during the initial phase of the pandemic. [link]
Ambika Tandon and Aayush Rathi in a research paper, “Fault lines at the Front lines” analyze the changing employment conditions for domestic workers in the growing platform economies of South and Southeast Asia. By analyzing different platform designs and comparing regulations in India, Indonesia, Pakistan and Vietnam, the authors present a thorough picture of the situation for domestic workers in the new economy. [link]
In a blog post published by Ethical Source, Ambika Tandon throws light on artificial intelligence and allied technologies that form part of Industry 4.0 in the future of work. [link]
Ambika Tandon and Aayush Rathi authored a chapter titled “Care in the Platform Economy: Interrogating the Digital Organisation of Domestic Work in India” in a book titled “The Gig Economy: Workers and Media in the Age of Convergence.” [link]

For more details visit https://cis-india.org/about/newsletters/march-may-2021-newsletter