Centre for Internet and Society

The Centre for Internet and Society’s comments and feedback to the: Digital Personal Data Protection Rules 2025

Pallavi Bedi, Vipul Kharbanda, Shweta Mohandas, Anubha Sinha and Isha Suri — 2025-03-06T02:06:44Z

The Centre for Internet & Society (CIS) submitted its comments and feedback to the Digital Personal Data Protection Rules 2025 initiated by the Indian government.

Rule 3 - Notice given by data fiduciary to data principal - Under Section 5(2) of the DPDP Act, when the personal data of the data principal has been processed before the commencement of the Act, then the data fiduciary is required to give notice to the data principal as soon as reasonably practicable. However, the Rules fail to specify what is meant by reasonably practicable. The timeline for a notice in such circumstances is unclear.

In addition, under Rule 3(a) the phrase “be presented and be understandable independently” is ambiguous. It is not clear whether the consent notice has to be presented independently of any other information or whether it only needs to be independently understandable and can be presented along with other information.
In addition to this we suggest that the need for “privacy by design” mentioned in the earlier drafts is brought back, with the focus on preventing deceptive design practices (dark patterns) being used while collecting data.

Rule 4 - Registration and obligations of Consent Manager- The concept of independent consent managers, similar to account aggregators in the financial sector, and consent manager platforms in the EU is a positive step. However, the Act and the Rules need to flesh out the interplay between the Data Fiduciary and the Consent Managers in a more detailed manner, for example, how does the data fiduciary know if a data principal is using a consent manager, and under what circumstances can the data fiduciary bypass the consent manager, what is the penalty/consequence, etc.

Rule 6 - Reasonable security safeguards - While we appreciate the guidance provided in terms of the measures for security such as “encryption, obfuscation or masking or the use of virtual tokens”, it would also be good to refer to the SPDI Rules and include the example of the The international Standard IS/ISO/IEC 27001 on Information Technology - Security Techniques - Information Security Management System as an illustration to guide data fiduciaries.

Rule 7 - Intimation of personal data breach - As per the Rules, the data fiduciary on becoming aware of any personal data breach is required to notify the data principal and the Data Protection Board without delay; a plain reading of this Rule suggests that data fiduciary has to report the breach almost immediately, and this could be a practical challenge. Further, the absence of any threshold (materiality, gravity of the breach, etc) for notifying the data principal means that the data fiduciary will have to inform the data principal about even an isolated data breach which may not have an impact on the data principal. In this context, we recommend the Rule be amended to state that the data fiduciary should be required to inform the Data Protection Board about every data breach, however the data principal should be informed depending on the gravity and materiality of the breach and when it is likely to result in high risk to the data principal.

Whilst the Rules have provisions for intimation of data breach, there is no specific provision requiring the Data Fiduciary to take all steps necessary to ensure that the Data Fiduciary has taken all necessary measures to mitigate the risk arising out of the said breach. Although there is an obligation to report any such measures to the Data Principal (Rule 7(1)(c)) as well as to the DPBI (Rule 7(2)(b)(iii)), there is no positive obligation imposed on the Data Fiduciary to take any such mitigation measures. The Rules and the Act merely presume that the Data Fiduciary would take mitigation measures, perhaps that is the reason why there are notification requirements for such breach, however the Rules and the Act do not put any positive obligation on the Data Fiduciary to actually implement such measures. This would lead to a situation where a Data Fiduciary may not take any measures to mitigate the risks arising out of the data breach, and be in compliance with its legal obligations by merely notifying the Data Principal as well as the DPBI that no measures have been taken to mitigate the risks arising from the data breach. In addition, the SPDI Rules state that in an event of a breach the body corporate is required to demonstrate that they had implemented reasonable security standards. This provision could be incorporated in this Rule to emphasize on the need to implement robust security standards which is one of the ways to curb data breaches from happening, and ensure that there is a protocol to mitigate the breach.

Rule 10 - Verifiable consent for processing of personal data of child or of person with disability who has a lawful guardian - The two mechanisms provided under the Rules to verify the age and identity of parents pre-suppose a high degree of digital literacy on the part of the parents. They may either give or refuse consent without thinking too much about the consequences arising out of giving or not giving consent. As there is always a risk of individuals not providing the correct information regarding their age or their relationship with the child, platforms may have to verify every user’s age; thereby preventing users from accessing the platform anonymously. Further, there is also a risk of data maximisation of personal data rather than data minimisation; i.e parents may be required to provide far more information than required to prove their identity. One recommendation/suggestion that we propose is to remove the processing of children's personal data from the ambit of this law, and instead create a separate standalone legislation dealing with children’s digital rights. Another important issue to highlight here is the importance of the Digital Protection Board and its capacity to levy fines and impose strictures on the platforms. We have seen from examples from other countries that platforms are forced to redesign and provide for better privacy and data protection mechanisms when the regulator steps in and imposes high penalties

Rule 12 - Additional obligations of Significant Data Fiduciary - The Rules do not clarify which entities will be considered as a Significant Data Fiduciary, leaving that to the government notifications. This creates uncertainty for data fiduciaries, especially smaller organisations that might not be able to set up the mechanisms and people for conducting data protection impact assessment, and auditing. The Rule provides that SDFs will have to conduct an annual Data Protection Impact Assessment. While this is a step in the right direction, the Rules are currently silent on the granularity of the DPIA. Similarly for “audit” the Rules do not clarify what type of audit is needed and what the parameters are. It is therefore imperative that the government notifies the level of details that the DPIA and the audit need to go into in order to ensure that the SDFs actually address issues where their data governance practices are lacking and not use the DPIA as a whitewashing tactic.There is also a need to reduce some of the ambiguity with regards to the parameters, and responsibilities in order to make it easier for startups and smaller players to comply with the regulations. In addition, while there is a need to protect data and increase responsibility on organisations collecting sensitive data or large volumes of data, there is a need to look beyond compliance and look at ways that preserve the rights of the data principal. Hence significant data fiduciaries should also be given the added responsibility of collecting explicit consent from the data principal, and also have easier access for correction of data, grievance redressal and withdrawal of consent.

Rule 14 - Processing of personal data outside India - As per section 16 of the Act the government could, by notification, restrict the transfer of data to specific countries as notified. This system of a negative list envisaged under the Act appears to have been diluted somewhat by the use of the phrase “any foreign State” under the Rules. This ambiguity should be addressed and the language in the Rules may be altered to bring it in line with the Act. Further, the rules also appear to be ultra vires to the Act. As per the DPDP Act, personal data could be shared to outside India, except to countries which were on the negative list, however, the dilution of the provision through the rules appears to have now created a white list of countries; i.e. permissible list of countries to which data can be transferred.

Rule 15 Exemption from Act for research, archiving or statistical purposes- While creating an exception for research and statistical purposes is an understandable objective, the current wording of the provision is vague and subject to mischief. The objective behind the provision is to ensure that research activities are not hindered due to the requirements of taking consent, etc. as required under the Act. However the way the provision is currently drafted, it could be argued that a research lab or a research centre established by a large company, for e.g. Google, Meta, etc. could also seek exemptions from the provisions of this Act for conducting “research”. The research conducted may not be shared with the public in general and may be used by the companies that funded/established the research centre. Therefore there should be further conditions attached to this provision, that would keep such research centers outside the purview of the exemption. Conditions such as making the results of the research publicly available, public interest, etc. could be considered for this purpose.

Rule 22 - Calling for Information from data fiduciary or intermediary - This rule read with the seventh schedule appears to dilute the data minimisation and purpose limitation provisions provided for in the Act. The wide ambit of powers appears to be in contravention of the Supreme Court judgement in the Puttaswamy case, which places certain restrictions on the government while collecting personal data. This “omnibus” provision flouts guardrails like necessity and proportionality that are important to safeguard the fundamental right to privacy.

It should be clarified whether this rule is merely an enabling provision to facilitate sharing of information, and only designated competent authorities as per law can avail of this provision. Need for Confidentiality

Additionally, the rule mandates that the government may “require the Data Fiduciary or intermediary to not disclose” any request for information made under the Act. There is no requirement of confidentiality indicated in the governing section, i.e. section 36, from which Rule 22 derives its authority. Talking about the avoidance of secrecy in government business, the Supreme Court in the State of U.P. v. Raj Narain, (1975) 4 SCC 428 has held that
“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussions on public security (2). To cover with [a] veil [of] secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”
In order to ensure that state interests are also protected, there may be an enabling provision whereby in certain instances confidentiality may be maintained, but there has to be a supervisory mechanism whereby such action may be judged on the anvil of legal propriety.

For more details visit https://cis-india.org/internet-governance/blog/cis-comments-and-feedback-to-digital-personal-data-protection-rules-2025

[···]

kaeru — 2025-11-19T17:19:28Z

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

The Centre for Internet & Society Joins the Global Network Initiative

praskrishna — 2012-04-25T09:13:50Z

The Global Network Initiative (GNI) is pleased to announce its newest member, the Centre for Internet & Society based in Bangalore, India. A technology policy research institute, CIS brings to GNI in-depth expertise on global Internet governance as well as online freedom of expression and privacy in India.

"We are delighted to add our first member based in India and welcome CIS’s engagement in support of transparency and accountability in technology," says GNI Executive Director Susan Morgan. "GNI's Principles for responsible company behavior apply globally, but require an appreciation of unique local contexts if they are to take hold. CIS will provide invaluable insight as we consider opportunities to work with India's burgeoning ICT industry."

"India’s ICT sector is one of the most dynamic worldwide, " says CIS Executive Director Sunil Abraham, "but rapid technological advances have raised anxieties around issues including hate speech, political criticism, and obscene content at a time when Indian institutions for the protection of free expression are under strain. We look forward to working with GNI's member organizations on these challenging issues."

CIS an independent, non-profit, research organization which is involved in research on the emerging field of the Internet and its relationship to the society, CIS brings together scholars, academics, students, programmers and scientists to engage in a large variety of Internet issues. CIS also runs different academic and research programs and is receptive to new ideas and collaborations, projects and campaigns for the public.

Leslie Harris, GNI Board Member and President and CEO of the Center for Democracy and Technology says: "The addition of CIS not only increases GNI’s global reach, it significantly enhances the initiative’s capacity around shared learning and policy engagement, not just in India, but on internet policy around the world."

Click to read the original published on the Global Network Initiative website.

For more details visit https://cis-india.org/internet-governance/cis-joins-gni

The Central Monitoring System: Some Questions to be Raised in Parliament

bhairav — 2013-09-25T10:30:10Z

The following are some model questions to be raised in the Parliament regarding the lack of transparency in the central monitoring system.

Preliminary

The Central Monitoring System (CMS) is a Central Government project to intercept communications, both voice and data, that is transmitted via telephones and the internet to, from and within India. Owing to the vast nature of this enterprise, the CMS cannot be succinctly described and the many issues surrounding this project are diverse. This Issue Brief will outline preliminary constitutional, legal and technical concerns that are presented by the CMS.
At the outset, it must be clearly understood that no public documentation exists to explain the scope, functions and technical architecture of the CMS. This lack of transparency is the single-largest obstacle to understanding the Central Government’s motives in conceptualising and operationalizing the CMS. This lack of public documentation is also the chief reason for the brevity of this Issue Note. Without making public the policy, law and technical abilities of the CMS, there cannot be an informed national debate on the primary concerns posed by the CMS, i.e the extent of envisaged state surveillance upon Indian citizens and the safeguards, if any, to protect the individual right to privacy.

Surveillance and Privacy

Surveillance is necessary to secure political organisation. Modern nation-states, which are theoretically organised on the basis of shared national and societal characteristics, require surveillance to detect threats to these characteristics. In democratic societies, beyond the immediate requirements of national integrity and security, surveillance must be targeted at securing the safety and rights of individual citizens. This Issue Brief does not dispute the fact that democratic countries, such as India, should conduct surveillance to secure legitimate ends. Concerns, however, arise when surveillance is conducted in a manner unrestricted and unregulated by law; these concerns are compounded when a lack of law is accompanied by a lack of transparency.
Technological advancement leads to more intrusive surveillance. The evolution of surveillance in the United States resulted, in 1967, in the first judicial recognition of the right to privacy. In Katz v. United States the US Supreme Court ruled that the privacy of communications had to be balanced with the need to conduct surveillance; and, therefore, wiretaps had to be warranted, judicially sanctioned and supported by probable cause. Katz expanded the scope of the Fourth Amendment of the US Constitution, which protected against unreasonable searches and seizures. Most subsequent US legal developments relating to the privacy of communications from surveillance originate in the Katz judgement. Other common law countries, such as the United Kingdom and Canada, have experienced similar judicial evolution to recognise that the right to privacy must be balanced with governance.

Right to Privacy in India

Unfortunately, India does not have a persuasive jurisprudence of privacy protection. In the Kharak Singh (1964) and Gobind (1975) cases, the Supreme Court of India considered the question of privacy from physical surveillance by the police in and around the homes of suspects. In the latter case, the Supreme Court found that some of the Fundamental Rights “could be described as contributing to the right to privacy” which was nevertheless subject to a compelling public interest. This insipid inference held the field until 1994 when, in the Rajagopal (“Auto Shankar”, 1994) case, the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty recognised by Article 21 of the Constitution. However, Rajagopal dealt specifically with the publication of an autobiography, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the PUCL case. While finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards which continue to be routinely ignored. A more robust statement of the right to privacy was made recently by the Delhi High Court in the Naz Foundation case (2011) that de-criminalised consensual homosexual acts; however, this judgment has been appealed to the Supreme Court.

Issues Pertaining to the CMS

While judicial protection from physical surveillance was cursorily dealt with in the Kharak Singh and Gobind cases, the Supreme Court of India directly considered the issue of wiretaps in the PUCL case. Wiretaps in India primarily occur on the strength of powers granted to certain authorities under section 5(2) of the Indian Telegraph Act, 1885. The Court found that the Telegraph Act, and Rules made thereunder, did not prescribe adequate procedural safeguards to create a “just and fair” mechanism to conduct wiretaps. Therefore, it laid down the following procedure to conduct wiretaps:

(a) the order should be issued by the relevant Home Secretary (this power is delegable to a Joint Secretary),
(b) the interception must be carried out exactly in terms of the order and not in excess of it,
(c) a determination of whether the information could be reasonably secured by other means,
(d) the interception shall cease after sixty (60) days.

Therefore, prima facie, any voice interception conducted through the CMS will be in violation of this Supreme Court judgement. The CMS will enforce blanket surveillance upon the entire country without regard for reasonable cause or necessity. This movement away from targeted surveillance to blanket surveillance without cause, conducted without statutory sanction and without transparency, is worrying.
Accordingly, the following questions may be raised, in Parliament, to learn more about the CMS project:

Which statutes, Government Orders, notifications etc deal with the establishment and maintenance of the CMS?
Which is the nodal agency in charge of implementing the CMS?
What are the powers and functions of the nodal agency?
What guarantees exist to protect ordinary Indian citizens from intrusive surveillance without cause?
What are the technical parameters of the CMS?
What are the consequences for misuse or abuse of powers by any person working in the CMS project?
What recourse is available to Indian citizens against whom there is unnecessary surveillance or against whom there has been a misuse or abuse of power?

For more details visit https://cis-india.org/internet-governance/blog/central-monitoring-system-questions-to-be-asked-in-parliament

The Audacious ‘Right to Be Forgotten’

kovey — 2013-07-31T10:08:55Z

There has long been speculation over the permanency of our online presence. Posting about excessively-personal details, commenting in a way which is later embarrassing, being caught in unflattering public photos; to our chagrin, all of these unfortunate situations often persist on the web, and can continue to haunt us in future years.

Perhaps less dire, what if someone decides that she no longer wants the history of her internet action stored in online systems?

So far, there has been confusion over what should be done, and what realistically can be done about this type of permanent presence on a platform as complex and international in scope as the internet. But now, the idea of a right to be forgotten may be able to define the rights and responsibilities in dealing with unwanted data.

The right to be forgotten is an interesting and highly contentious concept currently being debated in the new European Union Data Protection Regulations.[1]

The Data Protection Regulation Bill was proposed in 2012 by EU Commissioner Viviane Reding and stands to replace the EU’s previous Data Protection law, which was enacted in 1995. Referred to as the “right to be forgotten” (RTBF), article 17 of the proposal would essentially allow an EU citizen to demand service providers to “take all reasonable steps” to remove his or her personal data from the internet, as long as there is no “legitimate” reason for the provider to retain it.[1] Despite the evident emphasis on personal privacy, the proposition is surrounded by controversy and facing resistance from many parties. Apparently, there are a range of concerns over the ramifications RTBF could bring.

Not only are major IT companies staunchly opposed to the daunting task of being responsible for the erasure of data floating around the web, but governments like the United States and even Great Britain are objecting the proposal as well.[2],[3]

From a commercial aspect, IT companies and US lobbying forces view the concept of RTBF as a burden and a waste of resources for service providers to implement. Largely due to the RTBF clause, the new EU Data Protection proposal as a whole has witnessed intense, “unprecedented” lobbying by the largest US tech companies and US lobby groups[4],[5]. From a different angle, there are those like Great Britain, whose grievances with the RTBF are in its overzealous aim and insatiable demands.[2] There are doubts as to whether a company will even be able to track down and erase all forms of the data in question. The British Ministry of Justice stated, "The UK does not support the right to be forgotten as proposed by the European commission. The title raises unrealistic and unfair expectations of the proposals."[2] Many experts share these feasibility concerns. The Council of European Professional Informatics Societies (CEPIS) wrote a short report on the ramifications of cloud computing practices in 2011, in which it conformed, “It is impossible to guarantee complete deletion of all copies of data. Therefore it is difficult to enforce mandatory deletion of data. Mandatory deletion of data should be included into any forthcoming regulation of Cloud Computing services, but still it should not be relied on too much: the age of a ‘Guaranteed complete deletion of data’, if it ever existed has passed."[6]

Feasibility aside, the most compelling issue in the debate over RTBF is the demanding challenge of balancing and prioritizing parallel rights. When it comes to forced data erasure, conflicts of right to be forgotten versus freedom of speech and expression easily arises. Which right takes precedence over the other?

Some RTBF opponents fear that RTBF will hinder freedom of speech. They have a valid point. What is the extent of personal data erasure? Abuse of RTBF could result in some strange, Orwellian cyberspace where the mistakes or blemishes of society are all erased or constantly amended, and only positivity fills the internet. There are reasonable fears that a chilling effect may come into play once providers face the hefty noncompliance fines of the Data Protection law, and begin to automatically opt for customer privacy over considerations for freedom of expression. Moreover, what safeguards may be in place to prevent politicians or other public figures from removing bits of unwanted coverage?

Although these examples are extreme, considerations like these need to be made in the development of this law. With the amount of backlash from various entities, it is clear that a concept like the right to be forgotten could not exist as a simple, generalized law. It needs refinement.

Still, the concept of a RTBF is not without its supporters. Viktor Mayer-Schönberger, professor of Internet Governance at Oxford Internet Institute, considers RTBF implementation feasible and necessary, saying that even if it is difficult to remove all traces of an item, "it might be in Google's back-up, but if 99% of the population don't have access to it you have effectively been deleted."[7] Additionally, he claims that the undermining of freedom of speech and expression is "a ridiculous misstatement."[7] To him, the right to be forgotten is tied intricately to the important and natural process of forgetting things of the past.

Moreover, the Data Protection Regulation does mention certain exceptions for the RTBF, including protection for "journalistic purposes or the purpose of artistic or literary expression." [1] The problem, however, is the seeming contradiction between the RTBF and its own exceptions. In practice, it will be difficult to reconcile the powers granted by the RTBF with the limitations claimed in other sections of the Data Protection Regulation.

Currently, the are a few clean and straight forward implementations of RTBF. One would be the removal of mined user data which has been accumulated by service providers. Here, invoking the right would be possible once a person has deleted accounts or canceled contracts with a service (thereby fulfilling the notion that the service no longer has "legitimate" reason to retain the data). Another may be in the case of personal data given by minors who later want their data removed, which is an important example mentioned in Reding’s original proposal.[4] These narrow cases are some of the only instances where RTBF may be used without fear of interference with other social rights. Broader implementations of the RTBF concept, under the current unrefined form, may cause too many conflicting areas with other freedoms, and especially freedom of expression.

Overall, the Right to Be Forgotten is a noble concept, born out of concern for the citizen being overpowered by the internet. As an early EU publication states, "The [RTBF] rules are about empowering people, not about erasing past events or restricting the freedom of the press."[8] But at this point, too many clear details seem to be lacking from the draft design of the RTBF. There is concern that without proper deliberation, the concept could lead to unforeseen and undesirable outcomes. Privacy is a fundamental right that deserves to be protected, but policy makers cannot blindly follow the ideals of one right to the point where it interferes with other aspects of society.

Fortunately, recent amendment proposals have attempted some refinement of the bill. Jeffrey Rosen writes in the Stanford Law Review about a certain key concept that could help legitimize the right, namely an amendment proposing that only personally contributed data may be rescinded.[9] This would help avoid interference with others’ rights to expression, and provide limitations on the extent of right to be forgotten claims. As Leslie Harris, president of the Center for Democracy and Technology wrote in the Huffington Post, amendments are needed which can specifically define personal data in the RTBF sense; thereby distinguishing which type of data is allowed to be removed.[10] In the upcoming months, the European Parliament will be considering such amendments to the proposal. This time will be crucial as it will determine if the development of the right to be forgotten will make it a viable option for the EU’s 500 million citizens.

But even after terms are defined and after safeguards are established, this underling philosophical question remains:

Should a person be able to reclaim the right to privacy after willingly giving it up in the first place?

The RTBF is obviously a contentious topic, one which may need to be gauged individually by nation states; it will soon be revealed if the EU becomes the first to adopt the right. If RTBF fails to pass in European parliament, I would hope that it at least serves to remind people of the permanence of the data which they add to the internet, further incentivizing careful consideration of what one yields to the web. Rights frequently evolve and expand to meet societal or technological advances. If we are to expand the concept of privacy, however, then we must do so with proper consideration, so that privacy may not gain disproportionate power over other rights, or vice versa.

[1]. http://bit.ly/WSZvHv

[2]. http://bit.ly/YxKaNJ

[3]. http://tcrn.ch/YdH82f

[4]. http://bit.ly/196E8qj

[5]. http://bit.ly/wJKWTZ

[6]. http://bit.ly/15aoknF

[7]. http://bit.ly/Z3JbRU

[8]. http://bit.ly/xfodhI

[9]. http://bit.ly/13uyda5

[10]. http://huff.to/16P2XIS

For more details visit https://cis-india.org/internet-governance/blog/the-audacious-right-to-be-forgotten

The Appropriate Use of Digital Identity

amber — 2019-08-08T10:24:40Z

As governments across the globe implement new, foundational, digital identification systems (“Digital ID”), or modernize existing ID programs, there is dire need for greater research and discussion about appropriate uses of Digital ID systems. This significant momentum for creating Digital ID in several parts of the world has been accompanied with concerns about the privacy and exclusion harms of a state issued Digital ID system, resulting in campaigns and litigations in countries such as UK, India, Kenya, and Jamaica. Given the very large range of considerations required to evaluate Digital ID projects, it is necessary to think of evaluation frameworks that can be used for this purpose.

At RightsCon 2019 in Tunis, we presented working drafts on appropriate use of Digital ID by the partner organisations of this three-region research alliance - ITS from Brazil, CIPIT from Kenya, and CIS from India.

In the draft by CIS, we propose a set of principles against which Digital ID may be evaluated. We hope that these draft principles can evolve into a set of best practices that can be used by policymakers when they create and implement Digital ID systems, provide guidance to civil society examinations of Digital ID and highlight questions for further research on the subject. We have drawn from approaches used in documents such as the necessary and proportionate principles, the OECD privacy guidelines and scholarship on harms based approach.

Read and comment on CIS’s Draft framework here.

Download Working drafts by CIPIT, CIS, and ITS here.

For more details visit https://cis-india.org/internet-governance/blog/the-appropriate-use-of-digital-identity

The All India Privacy Symposium: Conference Report

natasha — 2012-04-30T05:16:41Z

Privacy India, the Centre for Internet and Society and Society in Action Group, with support from the International Development Research Centre, Privacy International and Commonwealth Human Rights Initiative had organised the All India Privacy Symposium at the India International Centre in New Delhi, on February 4, 2012. Natasha Vaz reports about the event.

The symposium was organized around five thematic panel discussions:
Panel 1: Privacy and Transparency
Panel 2: Privacy and E-Governance Initiatives
Panel 3: Privacy and National Security
Panel 4: Privacy and Banking
Panel 5: Privacy and Health

Introduction

Elonnai Hickok (Policy Advocate, Privacy India) introduced the objectives of Privacy India. The primary objectives were to raise national awareness about privacy, do an in-depth study of privacy in India and provide feedback on the proposed ‘Right to Privacy’ Bill. Privacy India has reviewed case laws, legislations, including the upcoming policy and conducted state-level privacy workshops and consultations across India in Kolkata, Bangalore, Ahmedabad, Guwahati, Chennai, and Mumbai. India like the rest of the world is answering some fundamental questions about the powers of the government and citizen’s rights and complications that arise from emerging technologies. Through our research we have come to understand that privacy varies across cultures and contexts, and there is no one concept of privacy but instead several distinct core notions that serve as complex duties, claims and obligations.

Privacy and Transparency

Panelists: Ponnurangam K, (Assistant Professor, IIIT New Delhi), ), Chitra Ahanthem (Journalist, Imphal), Nikhil Dey (Social & Political Activist), Deepak Maheshwari (Director, Corporate Affairs, Microsoft), Gus Hosein (Executive Director, Privacy International, UK), and Prashant Bhushan, (Senior Advocate, Supreme Court of India).
Moderator: Sunil Abraham (Executive Director, Centre for Internet and Society, Bangalore)
Poster: Srishti Goyal (Law Student, NUJS)

Srishti Goyal provided the general contours, privacy protections, limits to privacy and loopholes of policy relating to transparency and privacy, specifically analyzing the Right to Information Act, Public Interest Disclosures Act, and the Official Secrets Act.

Nikhil Dey commented on the interaction between the right to privacy and the right to information (RTI). He referred to Gopal Gandhi, the former Governor of West Bengal, “we must ensure that tools like the UID must help the citizen watch every move of government; not allow the government watch every move of the citizen.” Currently, the RTI and the UID stand on contrary sides of the information debate. A privacy law could allow for a backdoor to curb RTI. So, utmost care has to be taken while drafting legislation with respect to right to privacy.

Data and information has leaked furiously in India and it has leaked to the powerful. A person who is in a position of power can access private information irrespective of any laws in place to safeguard privacy. It is necessary to look at the power dynamics, which exists in the society before formulating legislation on right to privacy. According to Nikhil Dey, there should be different standards of privacy with respect to public servants. A citizen should be entitled to information related to funds, functions and functionaries. The main problem arises while defining the private space of a public servant or functionaries.

The RTI Act has failed to address the legal protection for the right to privacy. Perhaps, rules regarding privacy can be added to the Act. It can be defined by answering the questions: (i) what is ‘personal information’? (ii) what is it’s relation to public activity or public interest? (iii) what is the unwarranted invasion of the privacy of an individual? and (iv) what is the larger public good? Expanding on these four points can provide greater legal protection for the right to privacy.

Gus Hosein described the intersection and interaction of the right to information and the right to privacy. He referred to a petition filed by Privacy International requesting information on the expenses of members of parliament. Privacy and transparency of the government are compatible in the public interest. Gross abuse of the public funds by MPs was revealed by this particular petition such as pornography or cleaning of moats of MPs homes. Privacy advocates are supporters of RTI, however, it cannot be denied that there is no tension between transparency and privacy. In order chalk out the differences, there is a need of a legal framework. According to Gus Hosein, in many countries the government office that deals with right to information also deals with cases related to right to privacy.

Mumbai and New Delhi police have started using social media very aggressively, encouraging citizens to take photographs of traffic violations and upload them to Facebook or Twitter. In reference to this, Ponnurangam described the perceptions of privacy and if it agreed or conflicted with his research findings. Ponnurangam has empirically explored the awareness and perspective of privacy in India with respect to other countries. He conducted a privacy survey in Hyderabad, Chennai and Mumbai. People are very comfortable in posting pictures of others committing a traffic violation or running a red light. Ironically, many people have posted pictures of police officers committing a traffic violation such as not wearing a helmet or running a red light.

Chitra Ahanthem described the barriers and challenges of using RTI in Manipur. There are more than 40 armed militia groups, which are banned by the central and state government. The central government provides economic packages for the development of the north-east region. However, the state government officials and armed groups pocket the economic packages. These armed groups have imposed a ban on RTI. Furthermore, Manipur is a very small community. If people try and access information through RTI they risk getting threatened by the Panchayat members and being ostracized from the community or their clan.

People are apprehensive about filing RTI because they believe that these procedures are costly and the police and government may also get involved. Officials use the privacy plea to avoid giving out information. Since certain information are private and not in the public domain, government officials, use the defense of privacy to hide information. In addition, the police brutality prevalent in the area deters people to even have interactions with government officials.

According to Deepak Maheshwari, the open data initiative is a subset within the larger context of open information. There is an onus on the government to publish information, which is in the public domain. As a result, one does not necessarily have to go through the entire process of filing an RTI to get information, which is already there in the public domain. Moreover, if it is freely available in public domain, then one can anonymously access such information; this further strengthens the privacy aspects of requesting information and facilitating anonymity with respect to access to such information in the public domain. It has also to be noted that it is not sufficient to put data out in the public domain but it should also disclose the basis of the data for example, if there is representation of a data on a pie chart, the data which was used to arrive at the pie chart should also be available in the public domain. The main intention of releasing data to the public domain or having open data standards should not only be to provide access to such data but also should be in such a fashion so as to enable people to use the data for multiple purposes.

Prashant Bhushan noted that one of the grounds for withholding information in the RTI Act is privacy. An RTI officer can disclose personal information if he feels that larger public interest warrants the disclosure, even if it is personal information, which has no relationship to public activity or interest. This raises the important question, “what constitutes personal information?” He referred to the Radia Tapes controversy. Ratan Tata has filed a petition in the Supreme Court on the grounds that the Nira Radia tapes contained personal information and that the release of these tapes into the public domain violated his privacy. The Centre for Public Interest Litigation has filed a counter petition on the grounds that the nature of the conversations was not personal but in relation to public activity. They were between a lobbyist and bureaucrats, journalists and ministers. Prashant Bhushan stressed the importance of releasing these tapes into the public domain to show glimpses of all kinds of fixing, deal-making and show how the whole ruling establishment functions. It is absurd for Ratan Tata to claim that this is an invasion of privacy. Lastly, he felt when drafting a privacy law, clearly defining and distinguishing personal information and public is extremely important.

One of the interesting comments made during the panel was on the assumption that data is transparent. Transparency can be staged; questions have to be asked around whether the word is itself transparent.

Privacy and E-Governance Initiatives

Panelists: Anant Maringanti, (Independent Social Researcher), Usha Ramanathan, (Advocate & Social Activist), Gus Hosein, (Executive Director, Privacy International, UK), Apar Gupta, (Advocate, Supreme Court of India), and Elida Kristine Undrum Jacobsen (Doctoral Researcher, The Peace Research Institute Oslo).
Moderator: Sudhir Krishnaswamy (Centre for Law and Policy Research)
Poster: Adrija Das (Law Student, NUJS)

Adrija Das discussed the legal provision relating to identity projects and e-governance initiatives in India. The objective of any e-governance project is to increase efficiency and accessibility of public services. However, a major problem that arises is the linkage of the data results in the creation of a central database, accessible by every department of the government. Furthermore, implementing data protection and security standards are very expensive.

Sudhir Krishnaswamy highlighted the default assumptions surrounding e-governance initiatives: e-governance initiatives solve governance problems, increase efficiency, increase transparency and increase accountability. It is important to analyze the problems that arise from e-governance initiatives, such as privacy.

Usha Ramanathan described the increased number and vastness of e-governance initiatives such as UID, NPR, IT Rules and NATGRID. There are also many burdens on privacy that emanate from the introduction and existence of electronic data management systems. Electronic data management systems have allowed state to collect, store and use personal information of individual. Currently, the DNA Profiling Bill is pending before the Parliament. It is important to question the purpose and need for the government to collect such personal information. It is also to be noted that, there are certain laws such as Collection of Statistics Act, 2008 that penalize individuals if they do not comply with the information requests of the government.

Anant Maringanti discussed the limitations of data sharing that once existed. Currently, data can move across space in a very short time. He analyzed the state and market rationalities involved in e-governance initiatives, which raise the question “who can access data and at what price?”. Data may seem to be innocent or neutral, but data in the hands of wrong people becomes very crucial due to abuse and misuse. For example, Andhra Pradesh was praised as the model state for UID implementation. However, during the process of collecting data for UID a company bought personal information and sold the data to third parties.

Apar Gupta discussed the dilemmas of e-governance. Generally information in the form of an electronic record is presumed to be authentic. The data which government collects is most often inaccurate and wrong. So the digital identity of a person can be totally different from the real identity of that particular person. The process for correcting such information is also very inconvenient and sometimes impossible.
Under the evidence law any electronic evidence is presumed to be authentic and admissible as evidence. The Bombay High Court decided a case involving the authenticity of a telephone bill generated by a machine. The judgment said that since it is being generated by a machine, through and automated process, there is no need to challenge the authenticity of the document, it is presumed to true and authentic. The main danger in such case is that one does away with the process of law and attaches certain sanctity to the electronic record and evidence.

It should be also observed that how government maintains secrecy as to the ways in which it collects data. For example, the Election Commission has refused to disclose the functioning and design of electronic voting machines. The reason given for such secrecy is that if such information is put in the public domain then the electronic voting machines will be vulnerable and can be tampered with. But we, who use the voting machines, will never find out its vulnerabilities.

According to Gus Hosein, politicians generally have this wrong notion that technology can solve complex administrative problems. Furthermore, the industry is complicit; they indulge in anti-competitive market practice to sell these technologies as a solution to problems. However, such technology does not solve any problems rather it gives rise to problems.

Huge amount of government funds is associated with collection of personal data but such data is rendered useless or rather misused, because the government does not have clue as to how to use the data for development and security purposes. The UK National Health Records project estimated to cost around twelve to twenty billion pounds. However, a survey carried out by a professor in University College London showed that the hospital and other health institutions do not use the information collected by the National Health Records. Similarly, the UK Identity Card scheme was estimated to cost 1.3 billion pounds and finally it was estimated to cost five billion pounds. The identity cards are rendered obsolete, the sole department interested in the identity card was the Home Office Department, no other department intended on using it.

Technology should be built in such a manner that it empowers the individual. Technology should allow the individual to control his identity and as well as access all kinds of information available to the government and private bodies on that individual.

According to Elida Kristine Undrum Jacobsen, technology is regarded in this linear manner. It is increasingly being naturalized and as an all-encompassing solution. The use of biometric systems in the UID raises three areas of concern: power, value and social relationships.

With regards to power, there is a difference between providing documentation and information for identification. However, problems arise when the mode of identification becomes one’s body. It also leads to absolute reliance on technology, if the machine says that this is an individual’s identity then it is considered to be the absolute truth and it does not matter even if the individual is someone else. It becomes furthermore problematic with biometric system because it is generally used for forensic purposes.

The other component of UID or any national identification scheme is the question of consent and its relationship to privacy. In the case of UID project, people are totally unaware about how their information will be used and what purposes can it be used or misused for. Therefore, there is no informed consent when it comes to collection of biometric data under the UID project.

On the issue of social value it is to be noted that the value of efficiency becomes the most important value, which is valued. Many of the UIDAI documents state that the UID will provide a transactional identity. However, at the same time it takes away societal layers, which is inherently part of one’s identity. In addition, it makes it possible for the identity of a person to become a commodity to be sold. This also means that the personal information has economic value and players in the market such as insurance companies, banks can buy and sell the information.

When there is identification projects using biometrics it gives the State a lot of power; the power to determine and dictate one’s identity irrespective of the difference in real identity. Moreover, when such identifications projects are carried out at a national level it also gives rise to problem related to exclusion and inclusion of people or various purposes. The classification of the society based on various factors becomes easy and there is a huge risk involved with such classification.

The issues, which came out from the Q&A session, were:

The interplay between fairness and lawfulness in the context of privacy and data collection. There has to be a question asked as to why certain information is required by the State and how is it lawful.
In the neo-liberal era corporations are generally considered to be private. This has to be questioned and furthermore the difference between what is private and what is public. There are also concerns about corporations increasingly collaborating with the State. Can it be still considered as private?

Privacy and National Security

Panelists: PK Hormis Tharakan (Former Chief of Research and Analysis Wing, Government of India), Saikat Datta (Journalist), Menaka Guruswamy, (Advocate, Supreme Court, New Delhi), Prasanth Sugathan, (Legal Counsel, Software Freedom Law Center), and Oxblood Ruffin, (Cult of the Dead Cow Security and Publishing Collective).
Moderator: Danish Sheikh (Alternative Law Forum)
Poster: Suchitra Menon (Law Student, NUJS)

Suchitra Menon discussed the legal provisions for national security in relation to privacy. Specifically, she described the guidelines and procedural safeguards with respect to phone tapping and interception of communication decisional jurisprudence.

In the year 2000, the Information Technology Act (IT Act), 2000 was enacted, this Act had under section 69 allowed the State to monitor and intercept information through intermediaries. Prasanth Sugathan described how the government has been trying to bypass the procedural safeguard laid down by the Supreme Court in the PUCL case by using Section 28 of the IT Act, 2000. The provision deals with certifying authority for digital signatures. The certifying authority under the Act also has the authority to investigate offences under the Act. The provision mainly deals with digital signature but it is used by the government to intercept communication without implementing the procedural safeguards laid down for such interception. Furthermore, the IT Rules which was notified by the government in April, 2007 allows the government to intercept any communication with the help of the intermediaries. The 2008 amendment to the IT Act was an after effect of the 26/11 attacks in Mumbai. The legislation has become draconian since then and privacy has been sacrificed to meet the ends of national security.

Oxblood Ruffin read out his speech and the same is reproduced below.

“The online citizenry of any country is part of its national security infrastructure. And the extent to which individual privacy rights are protected will determine whether democracy continues to succeed, or inches towards tyranny. The challenge then is to balance the legitimate needs of the state to secure its sovereignty with protecting its most valuable asset: The citizen.

It has become trite to say that 9/11 changed everything. Yet it is as true for the West as it is for the global South. 9/11 kick started the downward spiral of individual privacy rights across the entire internet. It also ushered in a false dichotomy of choice, that in choosing between security and privacy, it was privacy that had adapted to the new realities, or so we’ve been told.

Let’s examine some of the fallacies of this argument.

The false equation which many argue is that we must give up privacy to ensure security. But no one argues the opposite. We needn’t balance the costs of surveillance over privacy, because rarely banning a security measure protects privacy. Rather, protecting privacy typically means that government surveillance must be subjected to judicial oversight and justification of the need to surveillance. In most cases privacy protection will not diminish the state’s effectiveness to secure itself.

The deference argument is that security advocates insist that the courts should defer to elected officials when evaluating security measures. But when the judiciary weighs privacy against surveillance, privacy almost always loses. Unless the security measures are explored for efficacy they will win every time, especially when the word terrorism is invoked. The courts must take on a more active role to balance the interests of the state and its citizens.

For the war time argument security proponents argue that the war on terror requires greater security and less privacy. But this argument is backwards. During times of crisis the temptation is to make unnecessary sacrifices in the name of security. In the United States, for example, we saw that Japanese-American internment and the McCarthy-era witch-hunt for communists was in vain. The greatest challenge for safeguarding privacy comes during times when we are least inclined to protect it. We must be willing to be coldly rational and not emotional during such times.

We are often told that if you have nothing to hide, you have nothing to fear. This is the most pervasive argument the average person hears. But isn’t privacy a little like being naked? We might not be ashamed of our bodies but we don’t walk around naked. Being online isn’t so different. Our virtual selves should be as covered as our real selves. It’s a form of personal sovereignty. Being seen should require our consent, just as in the real world. The state has no business taking up the role of Peeping Tom.

I firmly believe that the state has a right and a duty to secure itself. And I equally believe that its citizens are entitled to those same rights. Citizens are part of the national security infrastructure. They conduct business; they share information; they are the benefactors of democratic values. Privacy rights are what, amongst others, separate us from the rule of tyrants. To protect them is to protect and preserve democracy. It is a fight worth dying for, as so many have done before us.

PK Hormis Tharakan discussed the importance of interception communication in intelligence gathering. In the western liberal democracies, restrictions of privacy were introduced for the anti-terrorism campaigns and these measures are far restrictive than what the Indian legislations contemplate. Preventive intelligence is a major component in maintenance of national security and this intelligence is generated and can be procured through interception.

We do need laws to make sure that the power of interception is not excessive or out of proportion. But the graver issue is that the equipment used for interception of communication is freely available in the market at a cheap price. This allows private citizens also to snoop into others conversation. So, interception by civilians should be the main concern.

Menaka Guruswamy discussed the lack of regulation of Indian intelligence agencies that creates burdens on privacy. When there is a conflict between individual privacy and national security, the court will always rule in favour of the national security. Public interest always takes precedence over individual interest.

When there is a claim right to privacy vis-à-vis national security, generally these claims are characterized by dissent, chilling effects on freedom of expression and government accountability. In India, privacy is fragile and relatively a less justifiable right. Another challenge to privacy is that, when communication is intercepted, which part of the conversation can be considered to be private and which part cannot be considered so.

Saikat Datta described his experience of being under illegal surveillance by an unauthorized intelligence agency. When a person is under surveillance, he or she is already considered to be suspect. If the State commits any mistake as to surveillance, carrying surveillance, who is not at all a person of interest in such case upon discovery, there is no penalty for such discrepancy.
He warned of the dangers of excessive wiretapping, a practice that currently generates such a “mountain” of information that anything with real intelligence value tends to be ignored until it is too late, as happened with the Mumbai bombings in 2008. It is clear that the Indian government’s surveillance and interception programmes far exceed what is necessary for legitimate law enforcement.

The issues, which came during the Q&A session was:

In case of national security vis-à-vis privacy in heavily militarized zone, legislations such as Armed Forces Special Powers Act actually give authority to the army to search and seizure on mere suspicion? This amounts gross violation of privacy.

Privacy and Banking

Panelists: M R Umarji, (Chief Legal Advisor, Indian Banks Associations), N A Vijayashankar, (Cyber Law Expert), Malavika Jayaram, (Advocate, Bangalore)
Moderator: Prashant Iyengar (Associate Professor, Jindal Law University)
Poster: Malavika Chandu (Law Student, NUJS)

Prashant Iyengar highlighted how privacy has been a central feature in banking and finance. Even before the notion of privacy came into existence, banks had developed an evolved notion of secrecy and confidentiality, which was fairly robust. Every legislation dealing with banking and finance generally have a clause related to privacy and confidentiality. It might seem that it would be easy to implement privacy in banking and finance given the long relationship between banking and secrecy and confidentiality. However, this is not the case in the contemporary times. Specifically, with the growth in issues related to national security, transparency and technology, the highly regarded notion of privacy seems to be slowly depleting.

Malavika Chandu described the data protection standards that govern the banking industry. As part of the know-you-customer guidelines, banks are required to provide the Reserve Bank with customer profiles and other identification information. Lastly, she described case laws in relation to privacy with respect to financial records.

N A Vijayashankar noted that the confidentiality and secrecy practices in the banking sector emanate from the banker-customer relationship. In the present context, secrecy and privacy maintained by the banks should be analyzed from the perspective of the right of the customer to safeguard his or her information from any third party. Generally, banks and other financial institutions protect personal information as a fraud control measure and not as duty to protect the privacy of a customer.

There has been a paradigm shift in banking practices from traditional banking practices to more efficient but less secure banking practice. Some of the terms and conditions of internet banking are illegal and do not stand the test of law. In contemporary times, banking institutions use confidentiality to cover up problems and data breach rather than protecting the customer. But the banks are not ready to disclose data breach as it apprehends that it will result in public losing faith in the system. The Reserve Bank of India, has recently notified that protection which is provided to the customers in banking services should also be extended to e-banking services. However, the banks have not properly implemented this.

M R Umarji highlighted fourteen laws related to banking which carries confidentiality clauses. In India, public sector banks dominate the market. These banks are created under a statute and such statute governs them. Therefore, they are duty bound to maintain secrecy and confidentiality. Private banks and cooperative banks are not bound by any statute. They do not have any obligations to maintain secrecy, but they do strictly observe confidentiality as a form of banking practice.

Banks are not allowed to reveal any personal information of an individual unless it is sought by some authority that has a legitimate right to claim such information. There has been a constant erosion of confidentiality due to various laws which empowers authorities to seek confidential information from the banks. Recently, in the light of the growing national security concerns, banks also have an obligation to report suspicious transactions. These have caused heavy burdens on right to privacy of an individual.

Under the Right to Information Act, 2005 public sector banks are considered to be public authorities. By the virtue of the Statute, any person can access information from banks. For example, in a recent case an information officer directed Reserve Bank of India, to disclose Inspection Reports. These reports generally contain information regarding doubtful accounts, non-performing account, etc. There is a need that banks should be exempted from the Right to Information Act, 2005. Since they are not dealing with public funds there is no need to apply transparency law to the banks.

Malavika Jayaram described the major conflicts and tensions with respect to privacy vis-à-vis banking and financial systems and financial data. Other privacy and transparency issues include: the publication of online tax information and income data.

Surveillance is built in the design of banking system, so it is capable of tracking personal information and activity. There is a need to implement more privacy friendly and privacy by design systems in the banking sector. Customers are generally ignorant about privacy policies and this influences informed consent and furthermore marketing institution may influence customers to behave in a particular manner. In this context privacy by design becomes very important.

Data minimization principles should be applied; since the more data collected the more there is a risk of data breach and misuse. In case of data retention it is necessary that person giving such data should know how much proportion of the data is being retained and for how long it is stored and also what is the scope of the data and for what purpose will it be used.

Personal information and data, which was previously collected by the government, are gradually being outsourced to private bodies. On one hand it is a good thing that private sector get their technology and security measures right as compared to the government agencies but it comes with the risk that it can be sold out by private bodies as commodities in the market. Private bodies that are harvesting the data can also be forced by the government to disclose it under a particular law or statute without taking into consideration the consent of the individual whose personal information is sought for.

There is multiplicity of documentation for identification, which makes transactions less efficient. This has attracted customers to more convenient systems such as one-access point systems, but people tend to forget the issues related to privacy, in using such a system. What is portrayed as efficient for the consumer is a tool for social control and who has access and authority to use such information.

Often the reason given for collecting information is that it will help the service provider to combat fraud. However, studies have shown people more often fake situation rather than identity. The other concerns are that of sharing of information and lack of choice with respect to such sharing. There should be check as to sharing of personal information as the data belongs to the individual and not the bank or any other institution which requires furnishing personal information in lieu of services. This gives rise to a binary choice to the user; either the individual has to provide information to avail the service or else one cannot avail the services.

There is supposed to be market for privacy. The notion of personal information is subjective and varies from person to person. For example, one might be comfortable to share certain information. However, others might not be.

The issues that came out of the Q&A sessions are:

The default settings are generally put at the low protection settings. Unless the user is aware of the privacy protection setting, he or she is prone to breach of privacy. Should the default privacy setting be set to maximum security and option can be given to the user to change it according to his or her preference?
Is there any system in the banks, which allows the customers of bank to know about which all third parties the bank has shared his or her personal information with?

Health Privacy

Panelists: K. K. Abraham, (President, Indian Network for People with HIV), Dr. B. S. Bedi, (Advisor, CDAC & Media Lab Asia), and Raman Chawla, (Senior Advocacy Officer, Lawyers Collective).
Moderator: Ashok Row Kavi (Journalist and LGBT Activist)
Poster: Danish Sheikh (Researcher, Alternative Law Forum)

Danish Sheikh outlined the possible health privacy violations. These included the disclosure of personal health information to third parties without consent, inadequate notification to a patient of a data breach, the purpose of collecting data is not specified and improper security standards, storage and disposal. The disclosure of personal health information has the potential to be embarrassing, stigmatizing or discriminatory.

Subsequently, Danish Sheikh examined the status of sexual minorities’ vis-à-vis the privacy framework. Culling out some real life examples based on various studies, media reports and judgments from the Supreme Court and the High Courts of Delhi and Allahabad, he also described privacy violations committed by both individuals as well as state authorities.

Ashok Row Kavi recounted how privacy was very contextual when debating section 377 in the LGBT community. The paradigm upon which they were going to fight the anti-sodomy law was that it was consenting sex between two adults in private space. However, this paradigm was not well received by women, as women did not see private space as safe space, due to domestic violence. Perceptions of privacy are very subjective and it differs from person to person.

Raman Chawla recounted the history of the Draft HIV/AIDS Bill. In 2002, the need for law related to HIV/AIDS was realized in order to protect right to consent, right against discrimination and right to confidentiality of HIV patients. The bill was finalized in the year 2006. Alarmingly, it is yet to be tabled before the Parliament.

The privacy provisions in the HIV bill clearly state that no person can be tested, treated or researched for HIV without the consent of the patient. It also casts that in a fiduciary relationship the health care provider must maintain confidentiality, however if the patient provides written consent then their status may be disclosed. The HIV condition of the patient can also revealed by the doctor if there is a court order demanding such disclosure. The doctor may disclose the status of the patient to his or her partner but he has to follow a particular protocol. The doctor should have sufficient belief that his or her partner is at risk of contracting HIV. The person who is infected will be asked for his/her views and counseled before his/her partner is informed. However, there are doubts as to the implementation and enforcement of this protocol.

Conclusion

Natasha Vaz (Policy Advocate, Privacy India) brought the symposium to a close by thanking the partners, the panelists, the moderators and the participants for their sincere efforts in making the All India Privacy Symposium a grand success. In India, a public discussion regarding privacy has been long over due. The symposium provided a platform for dialogue and building greater awareness around privacy issues in health, banking, national security, transparency and e-governance. Using our research, expert opinions, personal experiences, questions and comments various facets of privacy were explored.

Press Coverage

The event was featured in the media as well:

India needs an independent privacy law, says NGO Privacy India, Economic Times, February 2, 2012
New Bill to decide on individual’s right to privacy, Tehelka, February 6, 2012
Lack of strong privacy law in healthcare a big worry, Daily News & Analysis, February 13, 2012
Privacy concerns grow in India, Washington Post, February 3, 2012

Click to download the Agenda and Profile of Speakers (PDF, 1642 Kb)

Download the PDF (555 Kb)
Follow the webcast of the event

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

The AI Task Force Report - The first steps towards India’s AI framework

Elonnai Hickok, Shweta Mohandas and Swaraj Paul Barooah — 2018-06-27T14:32:56Z

The Task Force on Artificial Intelligence was established by the Ministry of Commerce and Industry to leverage AI for economic benefits, and provide policy recommendations on the deployment of AI for India.

The blog post was edited by Swagam Dasgupta. Download PDF here

The Task Force’s Report, released on March 21st 2018, is a result of the combined expertise of members from different sectors and examines how AI will benefit India. It sheds light on the Task Force’s perception of AI, the sectors in which AI can be leveraged in India, the challenges endemic to India and certain ethical considerations. It concludes with a set of policy recommendations for the government to leverage AI for the next five years. While acknowledging AI as a social and economic problem solver, the Report attempts to answer three policy questions:

What are the areas where government should play a role?
How can AI improve quality of life and solve problems at scale for Indian citizens?
What are the sectors that can generate employment and growth by the use of AI technology?

This blog will look at how the Task Force answered these three policy questions. In doing so, it gives an overview of salient aspects and reflects on the strengths and weaknesses of the Report.

Sectors of Relevance and Challenges

In order to navigate the outlined questions, the Report looks at ten sectors that it refers to as ‘domains of relevance to India’. Furthermore, it examines the use of AI along with its major challenges, and possible solutions for each sector. These sectors include: Manufacturing, FinTech, Agriculture, Healthcare, Technology for the Differently-abled, National Security, Environment, Public Utility Services, Retail and Customer Relationship, and Education. While these ten domains are part of the 16 domains of focus listed in the AITF’s web page, it would have been useful to know the basis on which these sectors were identified. A particular strength of the identified sectors is the consideration of technology for the differently abled as well as the recognition to the development of AI systems in spoken and sign languages in the Indian context.

Some of the problems endemic to India that were recognized include infrastructural barriers, managing scale and innovation, and the collection, validation and distribution of data. The Task Force also noted the lack of consumer awareness, and inability of technology providers to explain benefits to end users as further challenges. The Task Force — by putting the onus on the individual — seems to hint that the impediment to the uptake of technology is the inability of individuals to understand the benefits of the technology, rather than aspects such as poor design, opacity, or misuse of data and insights. Furthermore, although the Report recognizes the challenges associated to data in India and highlights the importance of quality and quantity of data; it overlooks the importance of data curation in creatinge reliable AI systems.

Although the Report examines challenges to AI in each sector, it fails to include all challenges that require addressal. For example, the report fails to acknowledge challenges such as the lack of appropriate certification systems for AI driven health systems and technologies. In the manufacturing sector, the Report fails to highlight contextual challenges associated with the use of AI. This includes the deployment of autonomous vehicles compared to the use of industrial robots.

On the use of AI in retail, the Report while examining consumer data and its respective regulatory policies, identified the issues to be related to the definition, discrimination, data breaches, digital products and safety awareness and reporting standards. In this, the Report is limited in its understanding of what categories of data can lead to discrimination and restricts mechanisms for transparency and accountability to data breaches. The Report could have also been more forward looking in its position on security — including security by design and security by default. Furthermore, these issues were noted only in the context of the retail sector and ideally should have been discussed across all sectors.

The challenges for utilizing AI for national security could have been examined beyond cost and capacity to include associated ethical and legal challenges such as the need for legal backing. The use of AI in national security demands clear accountability and oversight as it is a ground for legitimate state interference with fundamental rights such as privacy and freedom of expression. As such, there is a need for human rights impact assessments, as well as a need for such uses to be aligned with international human rights norms. Government initiatives that allow country wide surveillance and AI decisions based on such data should ideally be implemented only after a comprehensive privacy law is in place and India’s surveillance regime has been revisited.

Recognizing the potential of AI for the benefit of the differently abled is one of the key takeaways from this section of the Report. Furthermore, it also brings in the need for AI inclusivity. AI in natural language generation and translation systems have the potential to help the large number of youth that are disabled or deprived. Therefore, AI could have a large positive impact through inclusive growth and empowerment.

Although the Report examines each of the ten domains in an attempt to provide an insight into the role the government can play, there seems to be a lack of clarity in terms of the role that each department will and is playing with respect to AI. Even the section which lays down the relevant ministries for each of the ten domains failed to include key ministries and departments. For example, the Report does not identify the Ministry of Education, nor does it list the Ministry of Law for national security. The Report could have also identified government departments which would be responsible for regulation and standardization. This could include the Medical Council of India (healthcare), CII (manufacture and retail), RBI (Fintech) etc. The Report also does not recognize other developments around AI emerging out the government. For example, the Draft National Digital Communications Policy (published on May 1, 2018) seeks to empower the Department of Telecommunication to provide a roadmap for AI and robotics. Along similar lines, the Department of Defence Production has also created a task force earlier this year to study the use of AI to accelerate military technology and economic growth. The government should look at building a cohesive AI government body, or clearly delineating the role of each ministry, in order to ensure harmonization going forward.

Areas in need of Government Intervention

The Report also lists out the grand challenges where government intervention is required. This includes data collection and management and the need for widespread expertise contributing to research, innovation, and response. However, while highlighting the need for AI experts from diverse backgrounds, it fails to include experts from law and policy into the discussion. While identifying manufacturing, agriculture, healthcare and public utility to be places where government intervention is needed, the Report failed to examine national security beyond an important domain to India and as a sector where government intervention is needed.

Participation in International Forums

Another relevant concern that the Report underscores is India’s scarce participation as researchers, AI developers and government engagement in global discussions around AI. The Report states that although efforts were being made by Indian universities to increase their presence in international AI conferences, they were lagging behind other nations. On the subject of participation by the government it recommends regular presence in International AI policy forums. Hence, emphasising the need for India’s active participation in global conversations around AI and international rulemaking.

Key Enablers to AI

The Report while analysing the key enablers for AI deployment in India states that positive societal attitudes will be the driving force behind the proliferation of AI. Although relying on positive social attitudes alone will not help in increasing the trust on AI, steps such as making algorithms that are used by public bodies public, enacting a data protection law etc. will be important in enabling trust beyond highlighting success stories.

Data and Data Marketplaces

While the Report identifies data as a challenge where government intervention is needed, it also points to the Aadhaar ecosystem as an enabler. It states that Aadhaar will help in the proliferation of AI in three ways: one as a creator of jobs as related to the collection and digitization of data, two as a collector of reliable data, and three as a repository of Indian data. However, since the very constitutionality of Aadhaar is yet to be determined by the Supreme Court, the task force should have used caution in identifying Aadhaar as a definitive solution. Especially while making statements that the Aadhaar along with the SC judgement has created adequate frameworks to protect consumer data. Additionally, the Task Force should have recognized the various concerns that have been voiced about Aadhaar, particularly in the context of the case before the Supreme Court.

This section also proposes the creation of a Digital Data Marketplace. A data marketplace needs to be framed carefully so as to not create a situation where privacy becomes a right available to only those who can afford it. It is concerning that the discussion on data protection and privacy in the Report is limited to policies and guidelines for businesses and not centered around the individual.

Innovation and Patents

The Report states that the Indian startups working in the field of AI must be encouraged, and industry collaborations and funding must be taken up as a policy measure. One of the ways in which this could be achieved is by encouraging innovations, and one of the ways to do so is by adding a commercial incentive to it, such as through IP rights. Although the Report calls for a stronger IP regime that protects and incentivises innovation, it remains ambiguous as to which aspect of IP rights — patents, trade secrets and copyrights — need significant changes. If the Report is specifically advocating for stronger patent rights in order to match those of China and US, then it shows that the the task force fails to understand the finer aspects of Indian patent law and the history behind India’s stance on patenting. This includes the fact that Indian patent law excludes algorithms from being patented. Indian patent law, by providing a higher threshold for patenting computer related inventions (CRIs), ensures that only truly innovative patents are granted. Given the controversies over CRIs that have dotted the Indian patent landscape, the task force would have done well to provide more clarity on the ‘how’ and ‘why’ of patenting in this sector, if that is their intent with this suggestion.

Ethical AI framework

Responsible AI

In terms of establishing an ethical AI framework, the Task Force suggests measures such as making AI explainable, transparent, and auditable for biases. The Report addresses the fact that currently with the increase in human and AI interaction there is a need to have new standards set for the deployment of AI as well as industrial standards for robots. However, the Report does not go into details of how AI could cause further bias based on various identifiers such as gender and caste, as well as the myriad concerns around privacy and security. This is especially a concern given that the Report envisions widespread use of AI in all major sectors. In this way, the Report looks at data as both a challenge and an enabler, but fails to dedicate time towards explaining the various ethical considerations behind the collection and use of data in the context of privacy, security and surveillance as well as account for unintended consequences. In laying out the ethical considerations associated with AI, the report does not make a distinction between the use of AI by the public sector and private sector. As the government is responsible for ensuring the rights of citizens and holds more power than the citizenry, the public sector needs to be more accountable in their use of AI. This is especially so in cases where AI is proposed to be used for sovereign functions such as national security.

Privacy and Data

The Report also recognises the significance of the implementation of the Aadhaar Act, the privacy judgement and the proposed data protection laws, on the development and use of AI for India. Yet, the Report does not seem to recognize the importance of a robust and multi-faceted privacy framework as it assumes that the Aadhaar Act and the Supreme Court Judgement on privacy and potential privacy law have already created a basis for safe and secure utilization and sharing of customer data. Although the Report has tried to be an expansive examination of various aspects of AI for India, it unfortunately has not looked in depth at the current issues and debates around AI privacy and ethics and makes policy recommendations without appearing to fully reflect on the implementation and potential impact of the same. Similar to the discussion paper by the Niti Aayog, this Report does not consider the emerging principles of data protection such as right to explanation and right to opt-out of automated processing, which directly relate to AI. Furthermore, there is a lack of discussion on issues such as data minimisation and purpose limitation which some big data and AI proponents argue against.

Liability

On the question of liability, the Report only states that specific liability mechanisms need to be worked out for certain categories of machines. The Report does not address the questions of liability that should be applicable to all AI systems, and on whom the duty of care lies, not only in case of robots but also in the case of automated decision making etc. Thus, there is a need for further thinking on mechanisms for determining liability and how these could apply to different types of AI (deep learning models and other machine learning models) and AI systems.

AI and Employment

On the topic of jobs and employment, the Report states that AI will create more jobs than it takes as a result of an increase in the number of companies and avenues created by AI technologies. Additionally, the Report provides examples of jobs where AI could replace the human (autonomous drivers, industrial robots etc,) but does not go as far as envisioning what jobs could be created directly from this replacement. Though the Report recognizes emerging forms of work such as crowdsourcing platforms like Mturk, it fails to examine the impact of such models of work on workers and traditional labour market structures and processes. Going forward, it will be important that the government and the private sector undertake the necessary steps to ensure that fair, protected, and fulfilling jobs are created simultaneously with the adoption of AI. This will include revisiting national and organizational skilling programmes, labor laws, social benefit schemes, relevant economic policies, and exploring best practices with respect to the adoption and integration of AI in work.

Education and Re-skilling

The task force emphasised the need for a change in the education curriculum as well as the need to reskill the labour force to ensure an AI ready future. This level of reskilling will be a massive effort, and a thorough review and audit of existing skilling programmes in India is needed before new skilling programmes are established and financed. The Report also clarifies that the statistics used were based on a study on the IT component of the industry, and that a similar study was required to analyse AI’s effect on the automation component. Going forward, there is the need for a comprehensive study of the labour intensive sectors and formal and informal sectors to develop evidence based policy responses.

Policy Recommendations

The Task Force_, in its policy recommendations, notes that the successful adoption of AI in India will depend on three factors: people, process and technology. However, it does not explain these three factors any further.

National Artificial Intelligence Mission

The most significant suggestion made in the Report is for the establishment of the National Artificial Intelligence Mission (N-AIM) — a centralised nodal agency for coordinating and facilitating research, collaboration and providing economic impetuous to AI startups. The mission with a budget allocation of Rs 1,200 crore over five years aims, among other things, to look at various ways to encourage AI research and deployment. Some of the suggestions include targeting and prototyping AI systems and setting up of a generic AI test bed. These suggestions seems to draw inspiration from other countries such as the US DARPA Challenge and Japan’s sandbox for self driving trucks. The establishment of N-AIM is a welcome step to encourage both AI research and development on a national scale. The availability of public funds will encourage more AI research and development.Additionally, government engagement in AI projects has thus far been fragmentedand a centralised body will presumably bring about better coordination and harmonization. Some of the initiatives such as Capture the flag competition that seeks to centre around the provision for real datasets to catalyze innovation will need to be implemented with appropriate safeguards in place.

Other recommendations

There are other suggestions that are problematic — particularly that of funding “an inter-disciplinary large data integration center in pilot mode to develop an autonomous AI Machine that can work on multiple data streams in real time and provide relevant information and predictions to public across all domains.” Before such a project is developed and implemented there are a number of factors where legal clarity is required; a few being: data collection and use, accuracy and quality of the AI system. There is also a need to ensure that bias and discrimination have been accounted for and fairness, responsibility and liability have been defined with consideration that this will be a government driven AI system. Additionally, such systems should be transparent by design and should include redress mechanisms for potential harms that may arise. This can be through the presence of a human in the loop, or the existence of a kill switch. These should be addressed through ethical principles, standards, and regulatory frameworks.

The recommendations propose establishing operation standards for data storage and privacy, communication standards for autonomous systems, and standards to allow for interoperability between AI based systems. A significant lacuna in this list is the development of safety, accuracy, and quality standards for AI algorithms and systems.

Similarly, although the proposed public private partnership model for research and startups is a good idea, this initiative should be undertaken only after questions such as the implications of liability, ownership of IP and data, and the exclusion of critical sectors are thought through.

Furthermore, the suggestion to ‘fund a national level survey on identification of cluster of clean annotated data necessary for building effective AI systems’ needs to recognize the existing initiatives around open data or use this as a starting place. The Report does not clarify if this survey would involve identifying data.

Conclusion

The inconspicuous release of the Report as well as the lack of a call for public comments results in the fact that the Report does not incorporate or reflect on the sentiments of the public or draw upon the expertise that exists in India on the topic or policies around emerging technologies, which will have a pervasive and wide effect on society. The need for multi stakeholder engagement and input cannot be understated. Nonetheless, the Report of the Task Force is a welcome step towards understanding the movement towards an definitive AI policy. The task force has attempted answering the three policy questions keeping people, process and technology in mind. However, it could have provided greater details about these indices. The Report, which is meant for a wider audience, would have done well to provide greater detail, while also providing clarity on technical terms. On a definitional plane, a list of technologies that the task force perceived as AI for this Report, could have also helped keep it grounded on possible and plausible 5 year recommendations.

Compared to the recent Niti Aayog Discussion Paper, this Report misses out on a detailed explanation on AI and ethics, however, it does spend some considerable amount of time on education and the use of AI for the differently abled. Additionally, the Report’s statement on the democratization of development and equal access as well as assigning ownership and framing transparent rules for usage of the infrastructure is a positive step towards making AI inclusive. Overall, the Report is a progressive step towards laying down India’s path forward in the field of Artificial Intelligence. The emphasis on India’s involvement in International rulemaking gives India an opportunity to be a leader of best practice in international forums by adopting forward looking and human rights respecting practices. Whether India will also become a strong contender in the AI race, with policies favouring the development of a socio-economically beneficial, and ethical-AI backed industries and services is yet to be seen.

The Task Force consists of 18 members in total. Of these, 11 members are from the field of AI technology both research and industry, three from the civil services, one from healthcare research, one with and Intellectual property law background, and two from a finance background. The specializations of the members are not limited to one area as the members have experience or education in various areas relevant to AI. https://www.aitf.org.in// There is a notable lack of members from Civil Society. It may also be noted that only 2 of the 18 members are women

The Report on the Artificial Intelligence Task Force, Pg. 1,http://dipp.nic.in/sites/default/files/Report_of_Task_Force_on_ArtificialIntelligence_20March2018_2.pdf

ibid.

The Artificial Intelligence Task Force https://www.aitf.org.in/

The Report on the Artificial Intelligence Task Force, Pg. 8

The Report on the Artificial Intelligence Task Force, Pg. 9,10.

The Report on the Artificial Intelligence Task Force, Pg. 9

ibid.

Artificial Intelligence in the Healthcare Industry in India https://cis-india.org/internet-governance/files/ai-and-healtchare-report

Artificial Intelligence in the Manufacturing and Services Sector https://cis-india.org/internet-governance/files/AIManufacturingandServices_Report _02.pdf

The Report on the Artificial Intelligence Task Force, Pg. 21.

Submission to the Committee of Experts on a Data Protection Framework for India, Centre for Internet and Society https://cis-india.org/internet-governance/files/data-protection-submission

The Report on the Artificial Intelligence Task Force, Pg. 22

Draft National Digital Communications Policy-2018, http://www.dot.gov.in/relatedlinks/draft-national-digital-communications-policy-2018

Task force set up to study AI application in military,https://indianexpress.com/article/technology/tech-news-technology/task-force-set-up-to-study-ai-application-in-military-5049568/

It is not just technical experts that are needed, ethical, technical, and legal experts as well as domain experts need to be part of the decision making process.

The Report on the Artificial Intelligence Task Force, Pg. 31

Constitutional validity of Aadhaar: the arguments in Supreme Court so far, http://www.thehindu.com/news/national/constitutional-validity-of-aadhaar-the-arguments-in-supreme-court-so-far/article22752084.ece

ibid.

CIS Submission to TRAI Consultation on Free Data http://trai.gov.in/Comments_FreeData/Companies_n_Organizations/Center_For_Internet_and_Society.pdf

The Report on the Artificial Intelligence Task Force, Pg. 30

Section 3(k) of the patent act describes that a mere mathematical or business method or a computer programme or algorithm cannot be patented.

Patent Office Reboots CRI Guidelines Yet Again: Removes “novel hardware” Requirement

https://spicyip.com/2017/07/patent-office-reboots-cri-guidelines-yet-again-removes-novel-hardware-requirement.html

The Report on the Artificial Intelligence Task Force, Pg. 37

The Report on the Artificial Intelligence Task Force, Pg. 7

ibid.

The Report on the Artificial Intelligence Task Force, Pg. 8

National Strategy for Artificial Intelligence: http://niti.gov.in/writereaddata/files/document_publication/NationalStrategy-for-AI-Discussion-Paper.pdf

Meaningful information and the right to explanation,Andrew D Selbst Julia Powles, International Data Privacy Law, Volume 7, Issue 4, 1 November 2017, Pages 233–242

The Principle of Purpose Limitation and Big Data, https://www.researchgate.net/publication/319467399_The_Principle_of_Purpose_Limitation_and_Big_Data

M-Turk https://www.mturk.com/

For example a lesser threshold of minimum wages, no job secuirity etc, https://blogs.scientificamerican.com/guilty-planet/httpblogsscientificamericancomguilty-planet20110707the-pros-cons-of-amazon-mechanical-turk-for-scientific-surveys/

The Report on the Artificial Intelligence Task Force, Pg. 41

Report of Artificial Intelligence Task Force Pg, 46, 47

ibid.

The DARPAChallenge https://www.darpa.mil/program/darpa-robotics-challenge

Japan may set regulatory sandboxes to test drones and self driving vehicles http://techwireasia.com/2017/10/japan-may-set-regulatory-sandboxes-test-drones-self-driving-vehicles/

Mariana Mazzucato in her 2013 book The Entrepreneurial State, argued that it was the government that drives technological innovation. In her book she stated that high-risk discovery and development were made possible by government spending, which the private enterprises capitalised once the difficult work was done.

https://tech.economictimes.indiatimes.com/news/technology/govt-of-karnataka-launches-centre-of-excellence-for-data-science-and-artificial-intelligence/61689977,https://analyticsindiamag.com/amaravati-world-centre-for-ai-data/

The Report on the Artificial Intelligence Task Force, Pg. 47

Report of Artificial Intelligence Task Force Pg. 49

The Report on the Artificial Intelligence Task Force, Pg. 47

The AI task force website has a provision for public comments although it is only for the vision and mission and the domains mentioned in the website.

National Strategy for Artificial Intelligence: http://niti.gov.in/writereaddata/files/document_publication/NationalStrategy-for-AI-Discussion-Paper.pdf

For more details visit https://cis-india.org/internet-governance/blog/the-ai-task-force-report-the-first-steps-towards-indias-ai-framework

The Aadhaar of all things

praskrishna — 2017-04-03T15:46:23Z

From a severely critical stand against Aadhaar in 2014, the Modi-led BJP in power has made a sharp U-turn to bulldoze its way into having every Indian scanned, tagged and labelled. A timeline of the country’s chequered date with the unique identification project.

The article by Shriya Mohan was published in the Hindu Businessline on March 31, 2017. Sunil Abraham was quoted.

You’ve probably read the WhatsApp joke about a post-Aadhaar scenario in 2020 India. A man orders pizza over phone. He is asked for his Aadhaar number first. He then orders a family-size seafood pizza, only to be reminded by the attendant about his high blood pressure and cholesterol levels (thanks to his Aadhaar history visible to everybody “on the system”) and is advised to order the low-fat Hokkien Mee pizza instead, based on his recent search history on Hokkien cuisine. As if this isn’t creepy enough, the pizza guy refuses a card payment, citing the man’s maxed-out credit cards, advises against ATM withdrawal owing to his massive overdraft and even decides to hold off the free cola offer given his dire health situation. When the man turns livid, he is told to mind his language, given that in 2007 he was already imprisoned for verbally abusing a policeman!

2020 is two and a half years away, and the WhatsApp scenario appears less incredulous by the day.

By the government’s latest estimate, 112,01,12,468 Aadhaar cards have been issued since January 2009, when the Unique Identification Authority of India (UIDAI) was set up under the Planning Commission. So if you are an adult Indian resident without an Aadhaar card, you are in a two per cent minority (98 per cent adults are covered).

Last week, Finance Minister Arun Jaitley said the 12-digit number would be the single monolith identity for all Indians in the coming years, replacing every other identity card. The government is serious because each week a new scheme is added to the three dozen schemes in which Aadhaar has been made mandatory. All the 84 schemes under the direct subsidy benefit transfer programme are expected to follow suit.

Here are just a few instances in which you should be ready to whip out your Aadhaar card — a free midday meal at a government school, access to Sarv Shiksha Abhiyan, LPG subsidy and foodgrains under the public distribution system, six scholarship schemes for students with disabilities, getting your EPF pensions, booking a train ticket online, getting a backward caste quota or benefit, and, according to the most recent directive in the Finance Bill, filing your tax returns.

Why did a dispensation so critical of Aadhaar in 2014 make a sharp U-turn to bulldoze its way into having every single Indian citizen scanned, tagged and labelled?

The earliest felt need for an identification project can be traced to the Kargil Review Committee, instituted by the Vajpayee Government in 1999, in the wake of the Indo-Pak war. The Krishnaswamy Subrahmanyam-led panel had recommended a citizenship database for the identification of legitimate Indian citizens living in border areas.

As outlined in a Scroll article, this quickly expanded to include all Indians under the Multipurpose National Identity Card project, which was pilot tested in a few villages. The Citizenship Act was also amended to give a legislative backing to the scheme, which built on the Bharatiya Janata Party’s general stance against illegal immigrants.

The search for identity

The Citizenship Act was amended in 2004 by the incumbent Congress government to make way for the National Population Register (NPR), a database of the identities of all Indian residents, maintained by the Registrar General and Census Commissioner of India.

Eventually, in 2009, Aadhaar, or UIDAI, surfaced as a 12-digit identification number that served as proof of identity and address — meaning, it applies to all residents whether they are citizens or not, unlike with the NPR. Aadhaar, which means ‘basis’ in Hindi, is intended to be an all-encompassing substratum of identities that can provide “instant access to services like banking, mobile phone connections and other government and non-government services”. The United Progressive Alliance government managed to link it to its Direct Benefit Transfer (DBT) system for subsidies provided to targeted groups.

As the main Opposition party, the BJP had felt that the Aadhaar number ought to have been given only to Indian citizens, and not all residents, which, in its view, would include millions of illegal immigrants.

Nandan Nilekani, the former CEO of IT giant Infosys, was appointed UIDAI chairman in July 2009. The first Aadhaar number was issued in September 2010, and then the pace accelerated: 100 million by November 2011, 200 million by February 2012 and 500 million by end of 2013. “We felt speed was strategic. Doing and scaling things quickly was critical. If you move very quickly it doesn’t give opposition the time to consolidate,” Nilekani told Forbes India in a 2013 interview.

Here’s the part most of us forget: The largest opposition that Nilekani was referring to at that time was the BJP.

“The people who thought of themselves as having given birth to IT in this country refused to listen to a common man like me. Even the SC has demanded answers,” Narendra Modi, then Gujarat chief minister, had said and alleged that the Aadhaar programme was a bundle of lies to loot the country’s treasury.

As the BJP’s prime ministerial candidate for the 2014 Lok Sabha elections, days ahead of delivering the party’s biggest-ever victory, he had tweeted: “On Aadhaar, neither the Team that I met nor PM could answer my Qs on security threat it can pose. There is no vision, only political gimmick.” Recently, when Aadhaar enrolments had crossed the billion mark, this tweet was dug out prominently.

The U-turn

So, what changed? How did the Aadhaar’s primary opposition become it’s key crusader?

There were two meetings that supposedly changed the destiny of the Aadhaar project. In the first week of June 2014, as Nilekani was vacating his government-allotted Lutyen’s bungalow as UIDAI chief, he met Modi and Jaitley and persuaded the new regime to persist with Aadhaar. The more important meeting was with Vijay Madan, the UIDAI director general and mission director. According to a Governance Now article, when the UID team spoke of the potential savings from plugging subsidy leakages, and weeding out “ghost beneficiaries”, Modi asked them to give a precise estimate. The figure was “up to ₹50,000 crore a year” or a good 9.4 per cent of India’s ₹5,31,177-crore fiscal deficit.

Modi in his keenness to showcase the arrival of “acche din” immediately sought a 100-crore enrolment target at the ‘earliest’, putting paid to speculations that the new government would shelve the UIDAI project. A funding of ₹2,039.64 crore was formalised in the 2014-2015 Budget presented a week later, to create the infrastructure to enrol 30 crore people to add to the 70 crore already enrolled. The UIDAI targeted the 1-billion mark by the end of that fiscal.

Money bill to beat legal hurdles

It was in November 2012 that the SC admitted a PIL filed by retired Karnataka High Court judge KS Puttaswamy and advocate Parvesh Khanna, questioning the government’s decision to issue Aadhaar even as the National Identification Authority of India Bill 2010 was pending before the Rajya Sabha since December 3, 2010. They argued that there was no legislative backing for obtaining personal information. Also, the proposed law was rejected by the Parliamentary Standing Committee on Finance.

The PIL argued that linking the Aadhaar number with food security, LPG subsidy, the Employees’ Provident Fund and other direct benefit transfers made the enrolment mandatory, thereby falsifying the government’s claim that it was voluntary. Several other PILs too voiced similar privacy concerns.

Currently, there are two legal strictures governing the validity of Aadhaar: the apex court order of October 15, 2015, limiting the card’s voluntary use to six schemes (PDS, MGNREGA, LPG, NEPS and social assistance programmes) and prohibiting the government from making it mandatory for receiving any benefits or services; and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which is under challenge today. Both strictures have distinct operational status, but petitioners argue that recent government directives making Aadhaar mandatory are leading them to wonder whether the SC’s interim order is overshadowed by the Aadhaar Act or if the government is defying the court.

On March 3, 2016, in a surprise move, to put all dissent to rest, the Aadhaar Act was introduced as a Money Bill in Parliament to give it legislative backing. Things moved pretty fast thereon. On March 11, the Aadhaar Act 2016 was passed in the Lok Sabha. On March 26, the Act was notified. Accusing the BJP-led NDA government of showing “utter contempt” for the Rajya Sabha by taking the Money Bill route, senior Congress leader Jairam Ramesh challenged it in the Supreme Court in April. He likened the use of the Money Bill, which was passed overruling amendments moved in the Rajya Sabha, to “knocking a nail in the coffin of the Upper House”.

The government’s move took many, including Aadhaar advocates, by surprise. “We need to separate Aadhaar as identity from its specific functionality for which it’s used,” says Praveen Chakravarty, a senior fellow at the IDFC institute and a former member of Nilekani’s core team. He believes that just as a voter ID alone isn’t enough to vote, seeing the ownership of an Aadhaar card as key for any transaction is “fear-mongering”. Its use will still involve a process of checks and balances.

But can’t thumb prints be replicated with Fevicol?

“Sure, there could be failures, as there are with any system. But this is a far more foolproof method than any we’ve had before. Internationally also, biometric is to authenticate a higher level of security.”

The argument for privacy

“Aadhaar has the potential to improve welfare service delivery. But it has to be achieved in an inclusive manner befitting a truly liberal society and not through coercion,” says Chakravarty.

His only misgiving is with the use of the Money Bill to introduce the Aadhaar, without any right to privacy. “It should have gone through the process of debate in Parliament. Then it wouldn’t have been passed without a strong right to privacy safeguard,” he says, pointing that even a junior UIDAI officer can access the data of anybody he/she chooses.

“Aadhaar inverts the idea of transparency. It makes people transparent but the State opaque,” says legal expert Usha Ramanathan, a legal expert and anti-Aadhaar crusader.

The use of Aadhar as verification at every instance can help piece together very detailed information about citizens. These include banking transactions, online purchases, travel itineraries, mobile phone usage, location history and practically anything that can be electronically recorded and verified with an Aadhaar.

In February this year, the UIDAI filed a police case against Axis Bank and others for alleged unauthorised authentication and impersonation attempts by illegally storing Aadhaar biometrics.

The latest outcry over breached privacy involved a screenshot of cricketer Mahendra Singh Dhoni’s personal details that went viral on Twitter. The UIDAI blacklisted the agency that revealed Dhoni’s Aadhaar details after his wife complained to the IT Minister. A recent Scroll report shows the UIDAI received 1,390 similar complaints but took no action.

There are legitimate fears such an information database might eventually be misused, for instance in racial profiling or revealing voting preferences.

In January this year, Hyderabad-based ECIL developed a biometric-enabled mobile terminal for instant authentication of a voter “to prevent rigging of votes”. Till August 2015, the Election Commission was working on seeding Aadhaar data with that of voter ID card, in an attempt to weed out fake voters. However, the poll panel stopped this exercise after the SC ruled that Aadhaar be made compulsory only for PDS and LPG distribution.

Nilekani, in an interview to BLink, insisted that the Aadhaar has more privacy regulations than any other service in the world. He also pointed out that all election commission data is already online, and anyone can look up any voter’s name, date of birth, gender and address.

Additionally, social media profiles too are shared publicly of our own volition.

Concurring with this view, Chakravarty says, “It is surprising that we’re perfectly okay with giving all our life information to a 32-year-old named Mark Zuckerberg. However, this is voluntary. Whether we fully know consequences or not is another matter altogether.”

With the Finance Bill requiring all PAN cards to be linked to Aadhaar, there is added concern over privacy. Sunil Abraham, founder of the Centre for Internet and Society, says Aadhaar runs the risk of being used fraudulently. “If I want to get you in trouble, I can make a large purchase of gold against your Aadhaar number, which is linked to your PAN,” he explains.

He advocates for a system where different government departments don’t store Aadhaar numbers in their databases but instead use a token issued by UIADI kiosks. This would prevent proliferation of the number.

Technical glitches

In February this year, Modi claimed in the Lok Sabha that plugging leakages through Aadhaar had saved the government ₹14,000 crore. And that nearly four crore fake ration cards have been seized till date.

One method of establishing a fake ration card is if the owner has not availed himself of his ration. Ever since Aadhaar’s biometric identification has been linked to point-of-sale (POS) machines at ration shops, residents have had to queue up with a prayer on their lips. A lot could go wrong — the biometric might not recognise them or, worse, there could be a network failure, forcing everyone to return home empty-handed. In both instances, while ration shop owners should ideally mark such transactions under ‘Transactions with “N” response from Aadhaar’, they invariably mark them under “Household yet to take ration”, implying that the beneficiary has chosen not to take home her share.

The February 2017 data for 22 ration shops across Delhi, accessed on the Department of Food & Supplies website, shows that none have a single beneficiary marked under “N”. At a Delhi Cantonment outlet, of the 1,038 registered beneficiaries only 168 have been marked “Y”, or ‘Yes’, showing they have taken their rations. Another 871 have been marked “Household yet to take ration” and none have been marked ‘N’ to indicate glitches in the Aadhaar authentication.

As Amrita Johri of citizens’ action group Satark Nagrik Sangathan explains, “Aadhaar relies on internet and electricity. This might seem like a problem only of rural areas. But we don’t have to go far. In South Delhi’s East Mehraam Nagar, there is a ration shop with no mobile signal and no network. Officials said we have to show that Aadhaar is a success, so the shop’s POS machine was finally hung on a jamun tree to get it to work.”

She questions the government’s reluctance to acknowledge the many instances of failure in the project.

Frighteningly, three consecutive failed attempts could lead to the card being placed in an abeyance list and possibly invalidated.

Top performers and laggards

Delhi is rated one of the better performing States/union territories, while Rajasthan has one of the worst records with the maximum number of biometric and network failures.

According to the government’s 2017 monthly estimates, 27 per cent of the residents whose Aadhaar cards have been seeded to the PDS were denied rations owing to biometric or network failure. This figure would be higher if the unseeded cards are also taken into account.

Nikhil Dey, founder of Rajasthan’s Mazdoor Kisan Shakti Sangathan (MKSS) says his organisation is fighting with its back against a wall.

“Nearly 73 lakh households get their monthly rations in this State, where a little over a crore households are eligible to receive them. We’re not even talking about exclusions here,” says Dey. Besides network failure, there are many instances of the old and sick who are unable to visit the shop to physically verify themselves.

“Back-up options such as OTP (one-time password) or facial recognition only work in theory,” says Dey. He alleges that shop owners often fudge the OTP system by punching in their own numbers and stealing the quotas of genuine beneficiaries.

He too believes that several names have been struck off as dead to project that the Aadhaar has weeded out a high number of fake social security pension ers.

Nilekani applauds Andhra Pradesh for its progress in the Aadhaar project by investing in infrastructure to eliminate technical glitches. J Satyanarayana, the UIDAI’s part-time chairperson, told BLink in an email interview that Aadhaar has led to transparency and efficiency in nearly all government schemes in AP.

During March 2017, 42.29 lakh (93.02 per cent) pensioners received their payment through Aadhaar-based biometric authentication, he says, adding that real-time monitoring systems are in place.

“The entire PDS (rations) is linked to Aadhaar,” he says. As many as 1.21 crore (87.39 per cent) card holders collected their ration this month, and 95.94 lakh received wages (totalling ₹5,283 crore under MNREGA through Aadhaar-enabled systems, he informs.

Neighbouring Telangana too is known for its 99 per cent Aadhaar enrollment, leading to an impressive 80 per cent of its population accessing the PDS.

BP Acharya, special chief secretary in Telangana’s planning department says, “Aadhaar’s use can perhaps be most seen in Telangana’s speedy clearances, investment promotion, creating licences and clearances for shops and establishments.”

Telangana took the Aadhaar database project one step further through its Citizen 360 programme. In August 2014, months after the State was newly formed, it conducted one of the largest household surveys in a single day, covering one crore households. This data was integrated with the Aadhaar database and now links different benefits on the same platform. Now the Aadhaar identity is linked to other details such as the holder’s driving licence and even crime record.

The UIDAI holds out AP and Telangana as shining examples of Aadhaar’s efficiency when backed by the right network and infrastructure. But for the lakhs of biometric factory rejects who are denied their rights, Aadhaar can only mean a mass experiment gone horribly wrong.

Aadhaar Timeline

2006

The ministry of communications and information technology approves the ‘Unique ID for Below Poverty Line (BPL) families’ project under the chairmanship of Arvind Virmani, then principal advisor, Planning Commission

2008

Empowered group of ministers formed by former Prime Minister Manmohan Singh decides to collate two schemes — the National Population Register under the Citizenship Act, 1955 and the UID project — to conceive Aadhaar.

2009

Planning Commission issues a notification to constitute the Unique Identification Authority of India (UIDAI).

Government appoints Infosys co-founder Nandan Nilekani as the first chairman of UIDAI, with the rank and status of a cabinet minister.

2012

Former Karnataka high court judge justice K Puttaswamy files a public interest litigation before the Supreme Court (SC) declaring that Aadhaar violates an individual’s right to privacy and that the scheme lacks legislative backing.

2014

In an interim order, the SC restrains the UIDAI from transferring biometric information with an Aadhaar number to any other agency without the individual’s consent in writing.

2015

Three-judge bench of the apex court rules the unique identity number is not mandatory to avail of benefits from government programmes, restricting the use of Aadhaar to beneficiaries of the public distribution system and subsidies on cooking gas and kerosene, and refers the question on privacy to a larger constitution bench.

Centre moves SC seeking a review and modification of the August 11 interim order. A five-judge constitution bench modifies the same and extends the use of Aadhaar to Mahatma Gandhi National Rural Employment Guarantee Scheme, Jan Dhan Yojana, pensions and the Employees’ Provident Fund scheme.

2016

Finance minister Arun Jaitley announces in the budget speech that the government will offer statutory backing for Aadhaar. The Lok Sabha passes the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 as a Money Bill, rejecting Rajya Sabha recommendations.

2017

Aadhaar is made mandatory for three dozen schemes with 84 more expected under direct benefit transfers, including midday meal scheme and universal education.

SC again rules that Aadhaar cannot be made mandatory for welfare schemes.

For more details visit https://cis-india.org/internet-governance/news/hindu-businessline-shriya-mohan-the-aadhaar-of-all-things

The Aadhaar Case

vipul — 2014-09-05T09:12:21Z

In 2012 a writ petition was filed by Justice K.S. Puttaswamy in the Supreme Court of India challenging the policy of the government in making an Aadhaar card for every person in India and its later plans to link various government benefit schemes to the same.

Over time a number of other cases have been filed in the Supreme Court challenging the Aadhaar mechanism and/or its procedure most of which have now been linked to the main petition filed by Justice Puttaswamy.[1] This means that the Supreme Court now hears all these cases together (i.e. at the same time) since they throw up similar questions and involve the same or similar issues. The court while hearing the case made an interim order on September 23, 2013 whereby it ordered that no person should suffer on account of not having an Aadhaar card and that Aadhaar cards should not be issued to any illegal immigrants. The relevant extract from the Order of the court is reproduced below:

"No person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant."[2]

It must be noted that the above order was only an interim measure taken by the Supreme Court till the time it finally decided all the issues involved in the case, which is still pending in the Supreme Court.

In November 2013 during one of the hearings of the matter, the Supreme Court came to the conclusion that it was an important enough matter for all the states and union territories to be impleaded as parties to the case and passed an order to this effect.[3] This was probably because the Aadhaar cards will be issued in the entire country and this is a national issue and therefore it is possible that the court thought that if any of the states have any concerns regarding the issue they should have the opportunity to present their case.

In another petition filed by the Unique Identification Authority of India (UIDAI), the Supreme Court on March 24, 2014 reiterated its earlier order and held that no person shall be deprived of any service just because such person lacked an aadhaar number if he/she was otherwise eligible for the service. A direction was issued to all government authorities and departments to modify their forms/circulars, etc., so as to not compulsorily require an aadhaar number. In the same order the Supreme Court also restrained the UIDAI from transferring any biometric data to any agency without the consent of the person in writing as an interim measure.[4] After passing these orders the Supreme Court linked this case as well to the petition filed by Justice Puttaswamy on which final arguments were being heard in February 2014 which so far do not seem to have concluded.

Note : Please note that the case is still being heard by the Supreme Court and the orders given so far and explained in this blog are all interim measures till the case is finally disposed off. The status of the cases can be seen on the following link:

http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp

The names and number of the cases that have been covered in this blog are given below:

W.P(C) No. 439 of 2012 titled S. Raju v. Govt. of India and Others pending before the D.B. of the High Court of Judicature at Madras.
PIL No. 10 of 2012 titled Vickram Crishna and Others v. UIDAI and Others pending before the High Court of Judicature at Bombay.
W.P. No. 833 of 2013 titled Aruna Roy & Anr v. Union of India & Ors.
W.P. No. 829 of 2013 titled S.G. Vombatkere & Anr v. Union of India & Ors.
Petition(s) for Special Leave to Appeal (Crl) No(s).2524/2014 titled Unique Identification Authority of India & another v. Central Bureau of Investigation.

All the above cases have now been linked with the ongoing Supreme Court case of K. Puttaswamy v. Union of India.

[1] W.P(C) No. 439 of 2012 titled S. Raju v. Govt. of India and Others pending before the D.B. of the High Court of Judicature at Madras and PIL No. 10 of 2012 titled Vickram Crishna and Others v. UIDAI and Others pending before the High Court of Judicature at Bombay were transferred to the Supreme Court vide Order dated September 23, 2013. Also W.P. No. 833 of 2013 titled Aruna Roy & Anr Vs Union of India & Ors, W.P. No. 829 of 2013 titled S G Vombatkere & Anr Vs Union of India & Ors and Petition(s) for Special Leave to Appeal (Crl) No(s).2524/2014 titled Unique Identification Authority of India & another v. Central Bureau of Investigation.

[2] http://judis.nic.in/temp/494201232392013p.txt

[3] http://judis.nic.in/temp/4942012326112013p.txt

[4] http://courtnic.nic.in/supremecourt/temp/sr%20252414p.txt

For more details visit https://cis-india.org/internet-governance/blog/the-aadhaar-case

The Aadhaar Act is Not a Money Bill

Amber Sinha — 2016-04-25T10:51:37Z

While the authority of the Lok Sabha Speaker is final and binding, Jairam Ramesh’s writ petition may allow the Supreme Court to question an incorrect application of substantive principles. This article by Amber Sinha was published by The Wire on April 24, 2016.

Originally published by The Wire on April 24, 2016.

Since its introduction as a money bill in the Lok Sabha in the first week of March [1], the Aadhaar (Targeted delivery of Financial and other subsidies, benefits and services) Bill, 2016 has been embroiled in controversy. The Lok Sabha rejected the five recommendations of the Rajya Sabha and adopted the bill on March 16 and only presidential assent was required for it become to become valid law. However, former Union Minister Jairam Ramesh filed a writ petition contesting the decision to treat the Aadhaar Bill as a money bill. The petition is due to be heard before the Supreme Court on April 25, and should the court decide to entertain the petition, it could have far-reaching implications for the Aadhaar project and the manner in which money bills are passed by the Parliament.

There are three broad categories of bills (all legislations or Acts are known as ‘bills’ till they are passed by the Parliament) that the Parliament can pass. The first kind, Constitution Amendment Bills, are those that seek to amend a provision in the Constitution of India. The second are financial bills which contain provisions on matters of taxation and expenditure. Money bills are a subset of the financial bills which contain provisions only related to taxation, financial obligations of the government, expenditure from or receipt to the Consolidated Fund of India and any matters incidental to the above. The third category is of ordinary bills which includes all other bills. The process for the enactment of all these bills is different. Money bills are peculiar in that they can only be introduced in the Lok Sabha where it can be passed by simple majority. Following this, it is transmitted to the Rajya Sabha. The Rajya Sabha’s powers are restricted to giving recommendations on the Bill and sending it back to the Lok Sabha, which the Lok Sabha is under no obligation to accept. The decision to introduce the Aadhaar Bill as a money bill has been widely seen as an attempt to circumvent the Rajya Sabha where the ruling party is in a minority.

Article 110 (1) of the Constitution defines a money bill as one containing provisions only regarding the matters enumerated or any matters incidental to them. These are a) imposition, regulation and abolition of any tax, b) borrowing or other financial obligations of the Government of India, c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, d) appropriation of money out of CFI, e) expenditure charged on the CFI or f) receipt or custody or audit of money into CFI or public account of India. Article 110 is modelled on Section 1(2) of the (UK) Parliament Act, 1911 which also defines the money bills as those only dealing with certain enumerated matters. The use of the word “only” was brought up by Ghanshyam Singh Gupta during the Constituent Assembly Debates. He pointed out that the use of the word “only” limits the scope of money bills to only those legislations which did not deal with other matters. His amendment to delete the word “only” was rejected clearly establishing the intent of the framers of the Constitution to keep the ambit of money bills extremely narrow.

While the Aadhaar Bill does make references to benefits, subsidies and services funded by the Consolidated Fund of India (CFI), even a cursory reading of the bill reveals its main objectives as creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process. The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money bill. The bill merely speaks of facilitating access to unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation. Erskine May’s seminal textbook, ‘Parliamentary Practice” is instructive in this respect and makes it clear that a legislation which simply makes a charge on the Consolidated Fund does not becomes a money bill if otherwise its character is not that of one.

PDT Achary, former secretary general of the Lok Sabha, has expressed concern about the use of Money Bills as a means to circumvent the Rajya Sabha. He has written here [2] and here [3], on what constitutes a money bill and how the attempts to pass off financial bills like the Aadhaar Bill as money bills could erode the supervisory role Rajya Sabha is supposed to play. This is especially true in the case of a legislation like the Aadhaar Bill which has far reaching implications for individual privacy as it governs the identification system conceptualised to provide a unique and lifelong identity to residents of India dealing with both the analog and digital machinery of the state and by virtue of Section 57 of any private entities. Already over 1 billion people have been enrolled under this identification scheme, and the project has been a subject of much debate and a petition before the Supreme Court. The project has been portrayed as both the last hope for a welfare state and surveillance infrastructure. Regardless of which of the two ends of spectrum one leans towards, it is undeniable that the law governing the Aadhaar project deserved a proper debate in the Parliament. Even those who are strong proponents of the project must accept the decision to pass it off as a money bill undermines the importance of democratic processes and is a travesty on the Constitution and a blatant abrogation of the constitutional duties of the speaker.

The petition by Jairam Ramesh would hinge largely on the powers of the judiciary to question the decision of the Speaker of the Lok Sabha. Article 110 (3) is very clear in pronouncing the authority of the Speaker as final and binding. Additionally, Article 122 prohibits the courts from questioning the validity of any proceedings in Parliament on the ground of any alleged irregularity of procedure. The powers of privilege that Parliamentarians enjoy are integral to the principle of separation of powers. However, the courts may be able to make a fine distinction between inquiring into procedural irregularity which is prohibited by the Constitution; and questioning an incorrect application of substantive principles, which I would argue, is the case with the Speaker decision.

References

[1] See: http://thewire.in/2016/03/07/arun-jaitley-introduces-money-bill-on-aadhar-in-lok-sabha-24115/.

[2] See: http://indianexpress.com/article/opinion/columns/show-me-the-money-4/.

[3] See: http://www.thehindu.com/opinion/lead/circumventing-the-rajya-sabha/article7531467.ece.

For more details visit https://cis-india.org/internet-governance/blog/the-aadhaar-act-is-not-a-money-bill

The 12-digit conundrum

praskrishna — 2017-03-14T13:50:05Z

Even as the Centre plans to link as many as 500 schemes to Aadhaar, concerns over data safety are rising. Richa Mishra reports.

The article by Richa Mishra was published in the Hindu Businessline on March 13, 2017. Sunil Abraham was quoted.

The developments of last few weeks seem to have made real some of the worst fears about Aadhaar. In February, UIDAI (Unique Identification Authority of India) filed a police complaint alleging attempts of unauthorised authentication and impersonation of data related to Aadhaar. Since then, each and every machinery within the government has been trying to convince otherwise, that Aadhaar database is safe and secure, and that the data is protected both by the best available advanced technology as well as by the stringent legal provisions in the Aadhaar Act.

Not everyone is convinced. Critics say, biometrics only make the citizen transparent to the State, it does not make the State transparent to citizens. “We warned the government six years ago, but they ignored us,” said Sunil Abraham, Executive Director of Bengaluru-based research organisation, Centre for Internet and Society. According to him, the legislation implementing Aadhaar has almost no data protection guarantees for citizens. He also believes that by opting for biometrics instead of smart cards the government is using surveillance technology instead of e-governance technology.

“Biometrics is remote, covert and non-consensual identification technology. It is totally inappropriate for authentication. This has only increased the fragility of Indian cyber security,” he stresses.

However, officials associated with UIDAI dismiss these arguments. Collecting biometrics does not pose any threat to the right to privacy because people have been giving their thumb impression for ages, they say. “The biometrics are encrypted at source and kept safe and secure. Unauthorised sharing and leakage of the data does not happen. Fears related to collection of biometrics are not justified,” an official at the helm of affairs said. He requested anonymity.

“However, as and when we find that some suspicious activity or misuse is happening, we will strike at the very beginning itself. UIDAI has full authentication regulation under the Aadhaar Act that has to be followed. It specifies in what manner authorities can use Aadhaar,” the official pointed out.

On the ground

Even as the debate over data security rages, the aam aadmi seem to be little perturbed about the alleged risks involved. For Padmini, who works as a domestic help in East Delhi and is the sole bread earner for her family of four, the Aadhaar card meant access to all government benefits.

“Koi farak nahi padta, kaun dekhta hai mera card. Mujhko LPG cylinder ka paisa bank mein mil jata hai,” (It doesn’t matter to me who sees my card. The subsidy for LPG gets transferred to my account) she says. “Baccho ke school admission mein bhi zaroorat pada,” (I needed it to get my children’s admission in school), she added. Sukh, a cab driver also uses it to get the LPG subsidy.

While everyone BusinessLine talked to were convinced that Aadhaar was not a citizenship card, the more aware ones saw it as a door that gave access to government schemes.

While they had a point, government officials are careful to make it clear that Aadhaar is not mandatory. But the popular perception increasingly points to the opposite view, especially after it emerged that Aadhaar might be made mandatory for children to receive midday meals at schools.

Another senior government official said, “Aadhaar is not mandatory under any welfare scheme of the government and no one is being deprived of a service or benefit for the want of Aadhaar…it’s required for availing a service/subsidy/benefit that accrues through the Consolidated Fund of India.” He added that those who do not have the 12-digit number would be provided with the facility to enrol by the Requiring Agency. “And till the time Aadhaar is assigned, alternative IDs would be allowed,” he said.

If a school which has to get Aadhaar enrolment done for its students puts the Aadhaar numbers of its students on its site and the same is used by someone, you can’t blame us, the official argues. Then, who is accountable?

Pushing for Aadhaar, the UIDAI officials cite the example of Kerala’s Department of General Education (DGE), which has integrated Aadhaar with the student databases and has thereby optimised the teacher-student ratio and identified the schools with excess teachers. In a single academic year, 3,892 excess teacher posts were identified.

“Due to this exercise, no new posts have been sanctioned for the last two years, resulting in notional savings of ₹540 crore per annum,” said a UIDAI official. After student enrolment in the state was linked to Aadhaar since 2012-2013, the head count of pupils have fallen by 5 lakh. Similar trends have been reported in Haryana. Critics have also pointed out the possible security risk in using AadhaarPay, the Andriod-based app. Merchants can download the app in their phone and install a fingerprint scanner linked to the phone. Customers with Aadhaar numbers can use their fingerprints (like the secret PIN in case of debit cards) to do a transaction. While doubts have been raised about the safety of fingerprint data, officials in the know blame the controversy on the “card lobbies.”

“Thirty crore Indians have no mobiles. They find it difficult to handle password, pin or card, this is where AadhaarPay will come handy,” the official added. “They don’t need a smart phone or feature phone. They don’t need a debit card.

“Today more than 112 crore people have the Aadhaar card. Approximately, 52.95 crore people have linked their Aadhaar numbers to their bank accounts. We already have a system of Aadhaar authentication in place,” the official added.

Government officials are at pain to point out the larger benefits of Aadhaar, including savings of more than ₹49,000 crore by plugging leakages in government schemes like PDS. Government plans to increase the number of welfare schemes linked to Aadhaar from 36 to over 500. While the intent is good, concerns remain.

For more details visit https://cis-india.org/internet-governance/news/richa-mishra-hindu-businessline-march-13-2017-the-12-digit-conundrum

The 2nd IJLT-CIS Lecture Series — A Post-event Report

praskrishna — 2011-11-17T10:25:56Z

The Indian Journal of Law and Technology (IJLT) and the Centre for Internet and Society (CIS), organised the 2nd IJLT-CIS Lecture Series on the 21st and 22nd of May 2011 at the National Law School of India University, Nagarbhavi, Bangalore. The main theme for this year was Emerging Issues in Privacy Law: Law, Policy and Practice.

Speakers and Topics

Spread over two days, the National Law School hosted six speakers who held forth on the different aspects of privacy law, speaking from perspectives that were grounded in theory and actual practice and some that were India-centric while others applied equally to any jurisdiction.

Vivek Durai, Partner, Atman Law Partners, addressed the gathering and gave the general introduction to the need for a discussion relating to privacy and the law. He spoke of technology and certain current events, including technological advances, have made privacy an issue with which serious engagement of the law has become imperative.

Usha Ramanathan, an independent law researcher, spoke of the Unique Identity Project (Aadhar) launched by the Government of India and its implications on the privacy and data relating to the citizens. Ms. Ramanathan was critical of the Government’s plans on the basis that an ill-planned and executed project that sought to collect data such as this could provide easy fodder for data-mining. The latest 2011 rules that outline the relationship between the citizen and the state and the extent of privacy the citizen has in respect of this relationship.

Hamish Fraser, a leading Australian practitioner in the field of technology law, addressed the gathering via video conference and spoke about cloud computing and privacy of parties using such facilities. He highlighted how technology such as cloud computing where the storage of data is almost fully virtual, with only the weakest of links to any physical storage space, were being increasingly widely used. He helped provide a practitioners perspective to the lecture as well by discussing how companies and individuals seeking to utilise cloud computing facilities, particularly for business purposes, must check for some essential legal provisions that would allow them to retain control over their data and prevent their data from being misappropriated by the provider of the virtual storage space in the cloud. He briefly also discussed the draft Australian privacy legislation.

Sean Blagsvedt, founder of Baba Jobs, discussed the interplay between privacy and transparency and argued convincingly that under certain circumstances, transparency holds greater value than blind protection of privacy. He spoke of his experience in setting up Baba Jobs that seeks to act as a job portal-cum-social networking site for persons providing essential services such as plumbers, electricians, carpenters, house painters, etc. Rather than seeking to strictly protect the details and identity of these persons, Blagsvedt found that one of the most important factors for future employers while considering hiring such service personnel were the details of their previous assignments and testimonials from previous employers – the transparency that Baba Jobs offered became its USP. Blagsvedt talked of how a misplaced over-emphasis on privacy could often lead to greater detriments than benefits and prevent trust due to a lack of information. He concluded by predicting that as people increasingly shifted social and commercial transactions to the online world, the demands for privacy online would soon be offset by demands for greater transparency.

Sudhir Krishnaswamy, Professor of Law at the Azim Premji University, Bangalore delivered a lecture on the state and privacy in India illustrating the development of the law on the matter. He also discussed about the balance that needs to be struck between the individual’s requirement for privacy and the state’s desire for secrecy. He also spoke about two manners in which to conceptualise privacy — recognising privacy as an inherent right that may be at times restricted to a certain extent, vis-a-vis seeing privacy as a right that the state grants to a citizen.

Abhayraj Naik, Assistant Professor, Jindal Global Law School, Sonepat, gave a lecture on informational privacy in comparative contexts. The discussion centred on information surveillance in different jurisdictions and how the values attached to the attribution of information reflects in the laws relating to privacy in those different jurisdictions. His approach included mathematical modelling of information attribution and provided an interdisciplinary approach.

Participation

The lecture series saw registration from over 50 people, including students from law schools all over the country, practitioners, and even educators. Since the lectures were streamed live online, and this was only the second event in NLS to use this facility apart from the Annual Convocation, many more people listened to the lectures online. The lectures were available online for a period of one week after the conclusion of the lecture series.

IJLT-CIS Lecture Series 2011 Registration

The following people participated in the event:

Adithya Banavar, Akanksha Arora, Anand VJ, Aniket Singhania, Ankit Verma, Anupama Kumar, Aparna Gokhale, Arjun Krishnamoorthy, Arjun Sharma, Arun Menon, Asif Ayaz, B. N. Vivek, Batool, Chirag Tanna, Deepakar Livingston.P., Deepthi R, Dheer Bhatnagar, Dinesh Subramany, Esha Goel, Gopalakrishnan R., J Suresh, Jamshed Ansari, Kanti Jadia, Khadeeja Nadeem, Khumtiya Debbarma, Mani Bhushan, Manish, Nayan Jain, Neha Baglani, Panduranga Acharya, Partha Chakravarty, Parul Bali, Prashanth Ramdas, Prateek Rath, Preyanka Sapru, Prianca Ravichander, Priytosh Singh, Purushotham.G, Ralph A, Ruhi Chanda, S. Badrinath, S. Bhushan, S. K. Mohanty, Sahana Manjesh, Sanjana Chappalli, Santosh Dindima, Shalini Iyengar, Shalini S, Sibani Saxena, Spoorthy M. S., Tarang Shashishekar, Tarun Kovvali, Tejaswini Rajkumar, Vaishali Kant, and Y. Shiva Santosh Kumar.

See the Letter of Agreement [PDF, 1 MB]

For more details visit https://cis-india.org/internet-governance/ijlt-cis-lecture-series-report

The (in)Visible Subject: Power, Privacy and Social Networking

rebecca — 2011-08-18T05:06:52Z

In this entry, I will argue that the interplay between privacy and power on social network sites works ultimately to subject individuals to the gaze of others, or to alternatively render them invisible. Individual choices concerning privacy preferences must, therefore, be informed by the intrinsic relationship which exists between publicness/privateness and subjectivity/obscurity.
The Architecture of Openness

Through a Google search or a quick scan of Facebook, people today are able to gain “knowledge” on others in a way never once possible. The ability to search and collect information on individuals online only continues to improve as online social networks grow and search engines become more comprehensive. Social networks, and the social web more broadly, has worked to fundamentally alter the nature of personal information made available online. Social networking services today enable the average person, with web access, to publish information through a “social profile”. Personal information made available online is now communicative, narrative and biographic. Consequentially, social profiles have become rich containers of personal information that can be searched, indexed and analyzed.

The architecture of the social web further encourages users to enclose volumes of personally identifiable information. Most social network sites embrace the “ethos of openness” as, by default, most have relaxed privacy settings. While most sites give users relative control over the disclosure of personal information, services such as MySpace, Facebook and Live Journal are far ahead of the black and white public/private privacy models of sites such as Bebo and Orkut. Bebo, for example, only allows users to disclose information to “friends” or “everyone”, granting little granularity for diverse privacy preferences. MySpace and Facebook, on the other hand, have made room for “friends of friends”, among other customizable group preferences. All networking sites also consider certain pieces of basic information publicly available, without privacy controls. On most sites, this includes name, photograph, gender and location, and list of friends. Okrut, however, considers far more information to public—leaving the political views and religions of its’ members public. This openness leaves the individual with little knowledge or control over how their information is viewed, and subsequently used.

Search functionality has also increased the visibility of individuals outside their immediate social network. For example, sites such Facebook and LinkedIn index user profiles through Google search. Furthermore, all social network sites index their users, effectively allowing profiles to be searched by other users through basic registration data, such as first and last name or registered email address. While most services allow users to remove their profiles from external search engines, they are often not able to effectively control internal searches. Orkut, for example, does not allow users to disable internal searches according to their first and last names. LinkedIn and MySpace also maintains that users be searchable by their email addresses.

Through this open architecture and search functionality, social network sites have rendered individuals more “visible” vis-à-vis one another. The social web has effectively altered the spatial dimensions of our social lives as grounded, embodied experience becomes ubiquitous and multiply experienced. Privacy, in the online social milieu, assumes greater fluidity and varied meaning—transcending spatially constructed understandings of the notion.

While the architecture of social networking sites encourages users to be more “public”, heightened control, or “more privacy” is generally suggested as the panacea to privacy concerns. However, the public/private binary of privacy talk often fails to capture the complex nexus which exists between privacy and power in the networked ecosystem. Privacy preferences on social networks, and the consequences thereof, are effectively shaped and influenced by structures of power. In this entry, I will argue that the interplay between privacy and power works ultimately to expose individuals to the subjective gaze of others, or to render them invisible. In this respect, individual choices concerning privacy preferences must be informed by the intrinsic relationship between notions of publicness/privateness and subjectivity/obscurity.

Power and Subjectivity

The searchable nature of the social profile allows others to quickly and easily aggregate information on one another. As privacy scholar Daniel Solve notes, social searching may be of genuine intent – individuals use social networking services to locate old friends, and to connect with current colleagues. However, curiosity does not always assume such innocence, as fishing expeditions for personal information may serve the purpose of judging individuals based perception of the social profile. The relatively power of search and open information can be harnessed to weed out potential job applicants, or to rank college applicants. Made possible through the architecture of the web and social constructions of power, individuals may be subjected to the deconstructive gaze of superiors.

The architecture of social networking sites significantly compliments this nexus between privacy and power. As individual behavior and preferences become more transparent, the act of surveillance is masked behind the ubiquity and anonymity of online browsing. Drawing on Foucault’s panopticism, social networks make for the “containerization” of social space –allowing the powerful to subjectively hierarchize and classify individuals in relation to one another [1]. This practice becomes particularly troublesome online, as individuals are often unable to control how they are constructed by others in cyberspace.

Perfect control is difficult to guarantee in an ecosystem where personal information is easily searched, stored, copied, indexed, and shared. In this respect, the privacy controls of social networking sites are greatly illusory. Googling an individual’s name, for example, may not reveal the full social profile of an individual, but may unveil dialogue involving the individual in a public discussion group. The searchable nature of personal information on the web has both complicated and undesirable consequences for privacy of the person for, what I believe, to be two main reasons.

The first point refers to what Daniel J. Solve describes as the “virtue of knowing less”. Individuals may be gaining more “information” on others through the internet, but this information is often insufficient for judging one’s character as it only communicates one dimension of an individual. In her work, Helen Nissenbaum emphasizes the importance contextual integrity holds for personal information. When used outside its intended context, information gathered online may not be useful for accurately assessing an individual. In addition, the virtual gaze is void of the essential components of human interaction necessary to effectively understand and situate each other. As Solve notes, certain information may distort judgment of another person, rather than increasing its accuracy.

Secondly, the act of surveillance through social networks work to undermine privacy and personhood, as individuals seek to situate others as “fixed texts” [2]. Due to the complex nature of the social self, such practice is undesirable. Online social networks are socially constructed spaces, with diverse meanings assigned by varied users. One may utilize a social network service to build and maintain professional relationships, while another may use it as an intimate space to share with close friends and family. James Rachels’ theory of privacy notes that privacy is important, as it allows individuals to selectively disclose information and to engage in behaviors appropriate and necessary for maintaining diverse personal relationships. Drawing on the work of performance theorists such as Judith Butler, we can assert that identity is not fixed or unitary, but is constituted by performances that are directed at different audiences [3]. Sociologist Erving Goffman also notes that we “live our lives as performers… [and] play many different roles and wear many different masks” [4]. Individuals, therefore, are inclined to perform themselves online according to their perceived audiences. It is the audience, or the social graph, which constructs the context that, in turn, informs individual behavior.

Any attempt to situate and categorize the individual becomes particularly problematic in the context of social networks, where information is often not intended for the purpose for which it is being used. Due to the complex nature of human behavior, judgments of character based on online observation only effectively capture one side of the “complicated self”. As Julie Cohen writes, the “law often fails to capture the mutually constitutive interactions between self and culture, the social constructions of systems of knowledge, and the interplay between systems of knowledge and systems of power”. Because the panoptic gaze is decentralized and anonymous in the networked ecosystem, individuals will often bear little knowledge on how their identities are being digitally deconstructed and rewired. Most importantly, much of this judgment will occur without individual consent or knowledge—emphasizing the transparent nature of the digital self.

Power and (in)visibility

In response to the notion that the architecture of the social web may render individuals transparent to the gaze of others, the need for more “control” over privacy on social network sites has captured the public imagination. Facebook’s abrupt privacy changes, for example, have received widespread attention in the blogosphere and even by governments. While popular privacy discourse often continues to fixate on the public/private binary—Facebook’s questionable move towards privacy decontrol has raised important questions of power and privilege.

A recent blog post by danah boyd nicely touches upon the dynamics of power, public-ness, and privilege in the context of online social networking. As she notes, “Public-ness has always been a privilege… but now we've changed the equation and anyone can theoretically be public… and seen by millions. However, there are still huge social costs to being public…the privileged don’t have to worry about the powerful observing them online…but most everyone else does –forcing people into the public eye doesn’t dismantle the structures of privilege and power, but only works to reinforce them” (emphasis added).

This point touches upon an important idea —that publicity has value. This nexus between visibility and power is one which unfolds quite clearly in the social media ecosystem. One’s relevance or significance could, arguably, be measured relative to online visibility. Many individuals who are seen as “leaders” within their own professional or social circles often maintain public blogs, maintain a herd of followers on Twitter, and often manage large numbers of connections on social network sites. The more information written by or on an individual online, arguably, the more relevant they appear to in the eyes of their peers and superiors alike.

Power and privilege, however experienced, will be mirrored in the online context. While the participatory and decentralized nature of Web 2.0 arguably works challenge traditional structures of power, systemic hierarchies and are often reinforced online –as Facebook’s privacy blunders clearly illustrates. The privileged need not worry about the subjective gaze of their superiors, as boyd notes. Those who may be compromised due to the lack of privateness, however, do. As boyd goes on to argue, “the privileged get more privileged, gaining from being exposed… and those struggling to keep their lives together are forced to create walls that are constantly torn down around them”. As public exposure may over often equate to power, we must critically challenge the assumption that the move towards more privacy control on social networks will best empower its members.

If publicity can potentially have great value for the individual, the opposite also rings true. Privacy, as polemic to publicness, alternatively works to diminish the presence of the individual, rendering them invisible or irrelevant within hyper-linked networks. With greater personal protectionism online, an individual may go unnoticed or unrecognized, fizzling out dully behind their more public peers. Drawing on social network theory, powerful people can be understood as “supernodes” as they connect more peripheral members of a network. As Lior Strahilevitz notes, supernodes tend to be better informed than the peripherals, and are most likely to be perceived as “leaders”.

As the power of the supernode relates to privacy, Strahilevitz states that that “supernodes maintain their privileged status by continuing to serve as information clearinghouses….and, in certain contexts, become supernodes based in part on their willingness to share previously private information about themselves”. It is within the context of visibility and power that the idea of (in)visibility and powerlessness online unfold. Those who have most at risk by going public, may chose not to do so. Those with in comfortable positions with considerably less to lose by going public may be inclined to “open up”. Heightened privacy controls on social network services, therefore, can work to reinforce the very structures of power they seek to dismantle.

This is not to argue, however, that more privacy is necessarily bad, and that less privacy is good, or that users shouldn’t be selective in their disclosures – to the contrary. As personal information has become ubiquitous and tools for aggregating information improve, maintaining privacy online becomes more pertinent than ever. However, the concept of privacy will only continue to become increasingly complex as digital networks continue to deconstruct and reconfigure the spatial dimensions of the public and private. How are we to effectively understand privacy in a social environment which values openness and publicity? Can the fluid and dynamic self gain visibility online without becoming subject to the gaze of superiors? Will those who selectively choose friends and carefully disclose personal information fizzle out, while the powerful and less inhibited continue to reassert privilege? The interplay between power and privacy on the social web is a multiply constitutive and reinforcing synergy –understanding how to effectively strike balance between the right to privacy and self-determination is the challenge ahead.

1. see “Foucault in Cyberspace” by James Boyle

2. Julie Cohen

3. Cohen citing Butler

4. Solve citing Goffman

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Technology in Government and Topics in Privacy

praskrishna — 2013-12-27T10:20:33Z

Malavika Jayaram is a speaker at an event organized by Data Privacy Lab at CGIS Cafe, Cambridge Street, Harvard University Campus. She will speak on Biometrics in Beta – India's Identity Experiment on December 9, 2013.

Technology in Government (TIG) and Topics in Privacy (TIP) consist of weekly discussions and brainstorming sessions on all aspects of privacy (TIP) and uses of technology to assess and solve societal, political, and government problems (TIG). Discussions are often inspired by a real-world problems being faced by the lead discussant, who may be from industry, government, or academia. Practice talks and presentations on specific techniques and topics are also common.

Abstract of the Talk

India's identity juggernaut - the Unique Identity (UID) project that has registered around 450 million people and is yet to be fully realized - is already the world's largest biometrics identity scheme. Based on the premise that centralized de-duplication and authentication will establish uniqueness and eliminate fraud, it is hailed as a game changer and a silver bullet that will solve myriad problems and improve welfare delivery, yet its conception and architecture raise significant concerns. In addition to the UID project, there is a slew of "Big Brother" systems that together form a matrix of identity and surveillance schemes: the UID is intended as a common identifier across this matrix as well as other public and private databases. Indian authorities frame Big Data as a panacea for fraud, corruption and abuse, without apprehending the further fraud, corruption and abuse that joined up databases can themselves engender. The creation of a privacy-invading technology layer not simply as a barrier to online participation but to social participation writ large is not fully appreciated by policy makers. Malavika will provide an overview of the identity landscape including the implications for privacy and free speech, and more broadly, democracy and openness.

Malavika Jayaram

Malavika is a Fellow at the Berkman Center for Internet and Society at Harvard, focusing on privacy, identity and free expression, especially in the context of India's biometric ID project. A Fellow at the Centre for Internet and Society, Bangalore, she is the author of the India chapter for the Data Protection & Privacy volume in the Getting the Deal Done series. She is one of 10 Indian lawyers in The International Who's Who of Internet e-Commerce & Data Protection Lawyers directory. In August 2013, she was voted one of India's leading lawyers - one of only 8 women to be featured in the "40 under 45" survey conducted by Law Business Research, London. In a different life, she spent 8 years in London, practicing law with global law firm Allen & Overy in the Communications, Media & Technology group, and as VP and Technology Counsel at Citigroup. During 2012-2013, She was a Visiting Scholar at the Annenberg School for Communication, University of Pennsylvania.

Click to read more on the event originally published by Data Privacy Lab here.

For more details visit https://cis-india.org/news/technology-in-government-and-topics-in-privacy

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Technology in Government and Topics in Privacy

Abstract of the Talk

Malavika Jayaram