Centre for Internet and Society

MLATs and the proposed Amendments to the US Electronic Communications Privacy Act

Vipul Kharbanda and Elonnai Hickok — 2016-12-28T01:09:34Z

In continuance of our blog post on mutual legal assistance treaties (MLATs), we examine a new approach to international bilateral cooperation being suggested in the United States, by creating a mechanism for certain foreign governments to directly approach the data controllers.

Published under Creative Commons License CC BY-SA. Anyone can distribute, remix, tweak, and build upon this document, even for commercial purposes, as long as they credit the creator of this document and license their new creations under the terms identical to the license governing this document.

In the previous article on MLATs we discussed, in some detail, what MLATs are and why they are needed. One area which was briefly focused upon in that article was the limitations and criticisms of the MLAT mechanism, of which one of the main criticisms being the problems caused due to different legal standards in various jurisdictions as well as the time taken to process a request for information sent from one country to another. Talking specifically about the United States, where most internet companies are headquartered and hold large amounts of data, it typically takes months to process requests under MLATs and foreign governments often struggle to comprehend and comply with the legal standards in the United States for obtaining data for use in their investigations.[1] The requirement that a foreign government should take permission from, and comply with the requirements of a foreign government simply because the data needed happens to be controlled by a service provider based in a foreign country strikes many foreign law enforcement officials as damaging to security and law enforcement efforts, especially when they are requesting data pertaining to a crime between two of their own citizens that primarily took place on their soil.[2]

These inefficiencies of the MLAT process lead to further problems of foreign governments attempting to apply their search and surveillance laws in an extraterritorial manner for example in 2014 the UK passed the Data Retention and Investigatory Powers Act, 2014 with gives the government the power to directly access data from foreign service providers if sought for specific purposes and the request is approved by the Secretary of State or other specified executive branch official.[3] Another response that may occur is if, frustrated by such inefficiencies of the existing systems, courts in foreign states start assuming extra territorial jurisdiction, as happened when a District Court in Vishakhapatnam restrained Google from complying with a subpoena issued by the Superior Court of California, ordering Google to share the password of the Gmail account belonging to an Indian citizen residing in Vishakhapatnam.[4]

Solution proposed in the United States

In order to overcome these inefficiencies, at least in the American context, the Department of Justice has proposed a legislation which seeks to make the process of foreign governments getting information from US based entities more streamlined by amending the provisions of the Electronic Communications Privacy Act (ECPA) of the United States (the “Amendment”). These amendments have been proposed primarily for the US and UK to effectuate a proposed bilateral agreement whereby the UK government will be able to approach US companies directly with requests for information without going through the MLAT process or getting an order from a US court.

The Amendment seeks to ensure that requests from foreign governments for information from US entities get answered in a smooth manner by including those requests in the process for seeking information under the ECPA itself. This move would no doubt, make it easier for foreign governments to access data in the US, but such a move can be criticized on the ground that it would then allow all states, irrespective of their legal standards of privacy, etc. to get access to such information. This problem has been overcome in the amendment by adding a new section to Title 18 which would allow the Attorney General, with the concurrence of the Secretary of State to certify to the Congress that the legal standards in the contracting state which is being given access to the mechanism under the ECPA satisfies certain requirements specified in the chapter (and discussed below). Only after such a certification has been received by the Congress, a contracting state would be able to receive the benefits sought to be granted under the Amendment.

It is important to note that the US administration is looking to use the US-UK Agreement as a standard to be followed for similar potential agreements with a number of other countries wherein the agencies in those countries could request information from US based entities through court orders through a properly specified legal framework. Though to our knowledge India has not been formally approached by the US government to enter into such an agreement, it is important to ask the question viz. if approached:

Does India's present legal system meet the standards laid down in the amendment to the ECPA?
And if they do, should India also seek to enter into such an Agreement with the United States?
And if India does, what could be the implications for citizens and for countries in a similar position as India?

We hope to be able to answer the above three questions, or at least throw some light on them, in the conclusion of this paper by relying upon the discussions contained herein.

Criticisms of the Amendment

While such a mechanism may be very effective in addressing the needs of security agencies in investigation and prevention of criminal activities, one cannot accept such an overarching change in cross border enforcement without analyzing the consequences that such a proposal will have on the right to privacy. Some of these consequences have been highlighted by experts responding to the amendment:

Lack of Judicial Authorisation: The Amendment requires that the foreign governments have a process whereby a person could seek post-disclosure review by an independent entity instead of a warrant by a court.[5] Although a court order is not the norm for interception even in Indian law, however under American law such protection is given to data held by American companies even though the data may belong to Indian citizens and this protection will no longer be available if the Amendment is passed.

Vague Standard for requests: Under the domestic law of any state there is usually a large amount of jurisprudence regarding when search orders can be issued, such as the “probable cause” standard that is followed in the United States or similar standards that may be followed in other jurisdictions. This ensures that even when the wording of the law is not precise, which it cannot be for such a subjective issue, there is still some amount of clarity around when and under what circumstances such warrants may be issued. In contrast, the Amendment requires that the orders be based on “requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation.” Although the language here may seem reasonable but in the absence of any jurisprudence backing it, it becomes very vague and susceptible to misuse. Disclosure without a Warrant: Under the current MLAT process as followed in the United States, a judge in the U.S. must issue a warrant based on probable cause in order for a U.S. company to turn over content to a foreign government. This requirement protects individuals abroad by requiring their governments to meet certain standards when seeking information held by U.S. companies. The Amendment seeks to remove this essential safeguard for a judicial warrant. The Amendment does not require requests from foreign governments to be based on a prior judicial authorization, since a large number of countries (including India) do not always require judicial orders for such orders.[6]

Allows Real Time Surveillance by Foreign Governments: American privacy rights activists have raised the concern that the Amendment would allow foreign governments to conduct ongoing surveillance by asking American companies to turn over data in real time. The requirements that the foreign governments would have to fulfill to execute such an order are less stringent than those which have to be fulfilled by the American security agencies if they want to indulge in similar activities. When the U.S. government wants to conduct real-time surveillance, it must comply with the Wiretap Act, which imposes heightened privacy protections.[7] The court orders for this purpose also require minimization of irrelevant information, are strictly time-limited, only available for certain serious crimes, etc.[8] In Indian law any such request, apart from being time limited and being available only for certain specified purposes, also has to satisfy that interception is the only reasonable option to acquire such information.

Process to determine which countries can make demands is not credible: Under the Amendment, the Attorney General and the Secretary of State, would decide whether the laws and practices of the foreign government adequately meet the standards set forth in the legislation for entering into a bilateral agreement. Their decisions would not be liable to be reviewed by a court or in any administrative procedure. They could make their determinations based on information which is not available to the public and the criteria for making the decision are vague and flexible. Further these criteria have been described as “factors” and not “requirements”[9] so that even if some of them are not satisfied, the certification process can still be completed.

Companies do not have the resources to determine if a request complies with the terms of the agreement: The Amendment does not provide any oversight to ensure that technology companies are only turning over information permitted in a specific bilateral agreement. For example, a bilateral agreement may permit disclosure of information only in response to orders that do not discriminate on the basis of religion, however, it may not be possible for the companies receiving the request to determine whether a particular request complies with that condition or not. The Amendment does not require that individual companies put in place requisite processes to weed out requests that may be non compliant with the provisions of the agreement; nor are there periodic audits to ensure that companies are properly responding to foreign government information requests.[10]

Non compliance with Human Rights Standards: Under international human rights law, governments are allowed to conduct surveillance only based on individualized and sufficient suspicion; authorized by an independent and impartial decision-maker; necessary and proportionate to achieve a legitimate aim, including by being the least intrusive means possible.[11] However the mechanism proposed by the Amendment falls woefully short of these standards.[12]

One must not lose sight of the fact that most of the criticisms of the proposal that have been discussed above have been made in the context of, and based on the standards of privacy protection that are available to American citizens. If we look at it from an Indian perspective most of those protections are not available to Indian citizens in any case since independent judicial oversight is not a sine qua non for access to information by the security agencies in India. Although the Amendment leaves open the question of how a request would be made by the foreign government to the individual Agreements, it may be safe to assume that were India to enter into such an Agreement with the United States, it would require the orders for access to comply with the standards laid down under Indian law before the relevant authorities send the request to the US based data controllers. At the least, this would ensure that the rights of Indian citizens currently guaranteed under Indian law, howsoever flawed they might be, would in all likelihood be safeguarded as per Indian law.

Certification from the Attorney General to the US Congress

In the above background if India were to enter into the agreement with the U.S Government apart from actually negotiating and signing that Agreement, the Indian government will also have to ensure (if the Amendment is passed) that the Attorney General of the United States, with the concurrence of the Secretary of State gives a certificate to the Congress that Indian law satisfies the requirements set forth in the proposed section XXXX of Title 18.

It must be kept in mind that if the negotiations between India and the United States in this regard reach such a mature stage that the certification from the Attorney General is required, then that would mean that there is enough political will on both sides to ensure that such an arrangement actually comes to fruition. In this context it would not be unfair to assume that the Attorney General may have a slight bias towards opining that Indian laws do conform to the requirements of the Amendment, as the Attorney General would want to support the decision taken by the administration, and our analysis shall have a similar bias in order to be more contextual.

The certification would, inter alia, contain the determination of the Attorney General:

That the domestic law of India affords robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the Indian government that will be subject to the agreement.It should be noted that the Amendment specifies various factors that should be taken into account to reach such a determination, which include whether the Indian government:

(i) has adequate substantive and procedural laws on cybercrime and electronic evidence, as demonstrated through accession to the Budapest Convention on Cybercrime, or through domestic laws that are consistent with definitions and the requirements set forth in Chapters I and II of that Convention; Although India is not a signatory to the Budapest Convention the Information Technology Act, 2000 (which is the main legislation dealing with cybercrime) has penal provisions which have borrowed heavily from the provisions of the Budapest Convention.

demonstrates respect for the rule of law and principles of nondiscrimination;

The provisions of Article 14 as well as Article 21 of the Constitution of India demonstrates that the legal regime in India is committed to the rule of law and principles of non discrimination.

adheres to applicable international human rights obligations and commitments or demonstrates respect for international universal human rights (including but not limited to protection from arbitrary and unlawful interference with privacy; fair trial rights; freedoms of expression, association and peaceful assembly; prohibitions on arbitrary arrest and detention; and prohibitions against torture and cruel, inhuman, or degrading treatment or punishment);

India is a signatory to a number of international human rights conventions and treaties, it has acceded to the International Covenant on Civil and Political Rights (ICCPR), 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965, with certain reservations, signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 with certain reservations, Convention on the Rights of the Child (CRC), 1989 and signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984. Further the right to life guaranteed under Article 21 of the Constitution takes within its fold a number of human rights such as the right to privacy. Freedom of expression, right to fair trial, freedom of assembly, right against arbitrary arrest and detention are all fundamental rights guaranteed under the Constitution of India.

has clear legal mandates and procedures governing those entities of the foreign government that are authorized to seek data under the executive agreement, including procedures through which those authorities collect, retain, use, and share data, and effective of oversight of these activities;

India has a number of legislations which govern the interception and request for information such as the Information Technology Act, 2000, the Indian Telegraph Act, 1885, Code of Criminal Procedure, 1973, etc. which put in place mechanisms governing the authorities and entities which can ask for information.

has sufficient mechanisms to provide accountability and appropriate transparency regarding the government’s collection and use of electronic data; and

The Right to Information Act, 2005 provides the citizens the right to access any public document unless access to the same is prohibited due to the specific exemptions provided in the Act. It may be noted here that the provisions of the Right to Information Act are often frustrated by the bureaucracy by using exceptions such as “national security”, but for the purposes of this write up we are already assuming a bias towards fulfillment of these factors/conditions and therefore as long as there is even some evidence of compliance, the conditions will be considered as fulfilled by the Attorney General for the purposes of his certificate.

demonstrates a commitment to promote and protect the global free flow of information and the open, distributed, and interconnected nature of the Internet.

The Telecom Regulatory Authority of India, which regulates telecom services in India has also issued the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 which prohibits service providers from charging discriminatory tariffs for data services on the basis of content.

Other than Indian law, the certificate from the Attorney General will also have to certify certain issues which would have to be addressed in the bilateral agreement itself, viz.:

That the Indian government has adopted appropriate procedures to minimize the acquisition, retention, and dissemination of information concerning United States persons subject to the agreement.
That the agreement requires the following with respect to orders subject to the agreement:

(i) The Indian government may not intentionally target a United States person or a person located in the United States, and must adopt targeting procedures designed to meet this requirement;

(ii) The Indian government may not target a non–United States person located outside the United States if the purpose is to obtain information concerning a United States person or a person located in the United States;

(iii) The Indian government may not issue an order at the request of or to obtain information to provide to the United States government or a third-party government, nor shall the Indian government be required to share any information produced with the United States government or a third-party government;

(iv) Orders issued by the Indian government must be for the purpose of obtaining information relating to the prevention, detection, investigation, or prosecution of serious crime, including terrorism;

(v) Orders issued by the Indian government must identify a specific person, account, address, or personal device, or any other specific identifier as the object of the Order;

(vi) Orders issued by the Indian government must be in compliance with the domestic laws of India, and any obligation for a provider of an electronic communications service or a remote computing service to produce data shall derive solely from Indian law;

(vii) Orders issued by the Indian government must be based on requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation;

(viii) Orders issued by the Indian government must be subject to review or oversight by a court, judge, magistrate, or other independent authority;

(ix) Orders issued by the Indian government for the interception of wire or electronic communications, and any extensions thereof, must be for a fixed, limited duration; interception may last no longer than is reasonably necessary to accomplish the approved purposes of the order; and orders may only be issued where that same information could not reasonably be obtained by another less intrusive method;

(x) Orders issued by the Indian government may not be used to infringe freedom of speech;

(xi) The Indian government must promptly review all material collected pursuant to the agreement and store any unreviewed communications on a secure system accessible only to those trained in applicable procedures;

(xii) The Indian government must segregate, seal, or delete, and not disseminate material found not to be information that is, or is necessary to understand or assess the importance of information that is, relevant to the prevention, detection, investigation, or prosecution of serious crime, including terrorism, or necessary to protect against a threat of death or seriously bodily harm to any person;

(xiii) The Indian government may not disseminate the content of a communication of a U.S. person to U.S. authorities unless the communication (a) may be disseminated pursuant to Section 4(a)(3)(xii) and (b) relates to significant harm, or the threat thereof, to the United States or U.S. persons, including but not limited to crimes involving national security such as terrorism, significant violent crime, child exploitation, transnational organized crime, or significant financial fraud;

(xiv) The Indian government must afford reciprocal rights of data access to the United States government;

(xv) The Indian government must agree to periodic review of its compliance with the terms of the agreement by the United States government; and

(xvi) The United States government must reserve the right to render the agreement inapplicable as to any order for which it concludes the agreement may not properly be invoked.

Conclusion

It is clear from the discussion above that the proposed Amendment is a controversial piece of legislation which will affect the way law enforcement is carried out in the internet. While there is no doubt that proposing an alternate mechanism to the existing inefficient MLAT structure is definitely the need of the hour, whether the mechanism proposed in the proposed Amendment, with all the negative implications on privacy, is the right way forward is far from certain.

As for the three questions that we had sought out to answer in the beginning of this paper, we would not like to say that Indian law definitely conforms to all the requirements listed in the Amendments, but it can safely be said that it appears that if the governments of India and the United States so wish, it would not be difficult for the Attorney General of the United States to be able to give a certification to the Congress as required in the proposed Amendment.

The other two questions as to whether India should try to opt for such an arrangement if given a chance and what would be the consequence for its people are somewhat related, in the sense that it is only by examining the consequences on its citizens that we will arrive at an answer as to whether India should opt for such an arrangement or not. The level of protections offered to Indian citizens under India law in terms of protection of their private data from government surveillance is lower than that which is offered to American citizens under American law. The growing influence of the internet is changing the citizen-state dynamic giving rise to increasing incidents where the government has to approach private actors for permission in order to carry out their governmental functions of providing security. This is because more and more private data of individual citizens is being uploaded on to the internet and controlled by private actors such as telecom companies, social media sites, etc. and the governments have to approach these private actors in case they want access to this information. The fact that the government has to approach private actors to get access to data gives private citizens some leverage to ask for better privacy protections in the context of state surveillance.

Although this proposed Amendment may not affect the local surveillance laws in India, however it would definitely have an effect on the way that citizens’ data is protected and accessed by the government.

[1] Explanation by the Assistant Attorney General attached to the proposed Amendment.

[2] https://www.justsecurity.org/24145/u-s-u-k-data-sharing-treaty/

[3] https://www.justsecurity.org/24145/u-s-u-k-data-sharing-treaty/

[4] http://spicyip.com/2012/04/clash-of-courts-indian-district-court.html

[5] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[6] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[7] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[8] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[9] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[10] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[11] International Covenant on Civil and Political Rights, art. 17, Dec. 19, 1966, U.N.T.S 999, cf. https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[12] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

For more details visit https://cis-india.org/internet-governance/blog/mlats-and-the-proposed-amendments-to-the-us-electronic-communications-privacy-act

New regulations in place; Aadhaar Card records to be preserved for 7 yrs by Centre

praskrishna — 2016-10-17T14:46:31Z

UIDAI chief executive office ABP Pandey said that the concerns regarding Aadhar card-related benefits were "exaggerated" and that the agency will keep the records in case any disputes arise in the future.

The article was published in the Financial Express on October 17, 2016. Sunil Abraham was quoted.

As per new regulations, the government will now keep a record for seven years of all services and benefits that are availed using Aadhaar number. Fearing that the database might be used for surveillance, the Unique Identification Authority of India (UIDAI) will preserve the records.

UIDAI chief executive office ABP Pandey said that the concerns regarding Aadhar card-related benefits were “exaggerated” and that the agency will keep the records in case any disputes arise in the future.

Pandey added that the information will be available online for two years and shall be shifted to the offline archives for the next five years. In that case, users will be able to check the records only for two years. However, the rules won’t apply for security agencies and that they will need a district judge’s permission to access the data.

According to HT, the rules allow designated joint secretary-level officers at the Centre to order access to information on the grounds of national security.

Talking about this Sunil Abraham, director of the Bengaluru-based think tank, Centre for Internet and Society said that once Aadhar becomes mandatory, it can be misused to conduct a 360-degree surveillance on any person.

Every time a person fingerprints and quotes the Aadhaar number, the agency concerned sends the data to UIDAI to crosscheck the particulars.
The UIDAI authenticates about five million Aadhaar numbers, which are quoted to avail LPG subsidy, cheap ration and even passport, a day against a capacity to verify 100 million requests daily, reports HT.

Meanwhile, The Unique Identification Authority of India (UIDAI) has launched a drive to enrol any leftover population for Aadhaar in 22 states and UTs that have “statistically” hit 100 per cent coverage for adults.

The ‘Challenge drive’ starts from October 15 for a month, a UIDAI statement said, adding that as of today, over 106.69 crore Aadhaar numbers have been generated across the country.

For more details visit https://cis-india.org/internet-governance/news/financial-express-october-17-2016-new-regulations-in-place-aadhaar-card-records-to-be-preserved-for-7-yrs-by-centre

Govt to keep Aadhaar record for 7 years, activists worried

praskrishna — 2016-10-17T01:53:24Z

The government will keep for seven years a record of all the services and benefits availed using the Aadhaar number, say new rules, prompting fears that the database could be used for surveillance.

The article by Aloke Tikku was published in the Hindustan Times on October 17, 2016. Sunil Abraham was quoted.

The Unique Identification Authority of India (UIDAI), which issues the 12-digit biometric identity to all Indian residents, will be required to preserve its record of verification of an Aadhaar number for the duration.

“This is an unprecedented centralised data retention provision,” said Sunil Abraham, director of the Bengaluru-based think tank, Centre for Internet and Society.

UIDAI chief executive officer ABP Pandey said the concerns were exaggerated. The agency was keeping records in case a dispute arose over a transaction.

The information will be retained online for two years and another five years in the offline archives, say the rules notified in September.

Users will be able to check the records but only for two years.

This restriction won’t apply to security agencies. Pandey, however, said the records would not be available to them without a district judge’s permission.

But, HT found that the rules allow designated joint secretary-level officers at the Centre to order access to information on the grounds of national security.

“Once Aadhaar becomes mandatory for all services, it can be used by benign and malignant actors to conduct a 360-degree surveillance on any individual,” Abraham said.

This is how the system, which will need millions of fingerprint-reading machines, works.

Every time a person fingerprints and quotes the Aadhaar number, the agency concerned sends the data to UIDAI to crosscheck the particulars.

The UIDAI authenticates about five million Aadhaar numbers, which are quoted to avail LPG subsidy, cheap ration and even passport, a day against a capacity to verify 100 million requests daily.

“You can think of it as Natgrid Plus,” Abraham said, a reference to the National Intelligence Grid being built by the government.

A one-stop database for counter-terrorism agencies, Natgrid will collate information real time from databases of various agencies such as bank, rail and airline networks.

“…we do not record the purpose for which an authentication request was received but only the details of the agency that sent it,” UIDAI’s Pandey said.

But seven years is a long time. Only a select category of government files are kept for longer than five years.

Asked about two-year deadline for users, Pandey said it would have been a logistic nightmare to let people access the records once the information was offline.

The Supreme Court has a ruled that Aadhaar is not a must for availing welfare schemes and is to decide if collecting biometric data for the 12-digit number infringed an individual’s privacy.

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-aloke-tikku-october-17-2016-govt-to-keep-aadhaar-record-for-seven-years-activitsts-worried

Request for Specifics: Rebuttal to UIDAI

hans — 2016-10-30T15:06:31Z

Responding to the Unique Identification Authority of India’s article that found “serious mathematical errors” in “Flaws in the UIDAI Process” (EPW 12 March 2016), the main mathematical argument used to arrive at the number of duplicates in the biometric database is explained.

The article was published in the Economic & Political Weekly on September 3, 2016, Vol.51, Issue No.36.

The author of a technical paper will be alarmed when he is convicted of “serious mathematical errors” by someone who has not bothered himself with “going too deep into the mathematics” used. The man must possess miraculous powers of divination one feels: fears rather. The UIDAI seems to have even such formidable diviners in their employ: who have dismissed just so peremptorily, in their rebuttal, the calculations made in my paper titled Flaws in the UIDAI process. The paper appeared in the issue of this journal dated to February 27 of this year. The rebuttal was published in the issue dated to the 12th of March. The interested reader can confirm that I have only repeated what was said there. The rebuttal does not specify, in any way, the mathematical mistakes I am supposed to have made. So I shall rehearse the relevant calculations very broadly: and the experts of the UIDAI will then exhibit, I trust, the specific mistakes they impute to me.[*]

[*]My reply to the UIDAIs attempted rebuttal was sent in to the EPW a few days after that appeared in print: and published as a “web exclusive” article in Volume 51, Issue Number 36 of the EPW, on 03/09/2016.

Read the Full Article

For more details visit https://cis-india.org/internet-governance/blog/economic-and-political-weekly-journal-vol-51-issue-36-september-3-2016-hans-varghese-mathews-request-for-specifics

An 'app'ening world

praskrishna — 2016-10-05T00:24:19Z

A ‘forward’ has been doing the rounds on WhatsApp about the privacy concerns relating to that instant messaging app; it’s asking for permission to share user data with Facebook.

The article by Chetana Divya Vasudev was published in Deccan Herald on October 4, 2016. Rohini was quoted.

In the WhatsApp notification, asking users to agree to the terms and conditions again, the option to share these user details to help improve ads on Facebook is already selected. Those who are uncomfortable parting with this information have to uncheck it before clicking on the ‘I agree’ button.

“Agreeing to this would mean Facebook can see who you’re chatting with and what you’re talking about,” says tech expert Chinmayi S K. “So if you’re talking about cat adoption, the ads displayed on the side could be relevant to that.”

When it comes to other smartphone apps, she cites Zomato as an example. “It has been asking for user history — previous orders and other such details — to make recommendations,” she says. “This comes with the app update. Tinder, too, is asking for your location using wifi, which is more accurate than the GPRS location.”
It’s alright to agree to these permissions, she says, so long as you’re aware of what you’re signing up for and how that data is going to be used.

If you have qualms about agreeing to this, there are usually alternatives you can find, adds Rohini Lakshane, program officer, Centre for Internet and Society. “If not, it’s usually a trade-off: you have to see how much you want the app,” she points out.

There are, however, other apps that might be duplicates asking for access to your device or files, cautions Chinmayi.

“If a cooking app, a simple one that gives you recipes, asks for your call logs or other files, for example,” she says.

A discerning user, interjects Rohini, will check for permission to access files or functions that are not strictly necessary for the features the app supports. “I don’t want to name anything but some e-commerce and travel apps ask to access your browsing history and the other apps or networks you’re connect to. It could be to serve you contextual ads or content, like Zomato, or to sell it to someone. You never know,” she says. However, some devices or versions of the Android OS let you control what permissions you enable, she informs.

Aeronautical engineer Pavan Raj P V says he takes care not to compromise on his safety, whenever possible. “But there are a few apps that I have on my phone no matter what — Facebook, WhatsApp, LinkedIn, Instagram. Most of them auto-update and require no extra permissions.”

However, he has noticed that LinkedIn asks for access to Gmail contacts that you could accidentally accept “if you’re logging in mechanically”.

Varsha C V, communications specialist at Karnataka State Highways Improvement Project, says, “Last month, my husband asked me to download a Google app for free calls that required all sorts of permissions, such as access to your phone logs. When Skype offers the same features without asking for all this, why should anyone use this app?”

She believes privacy in India is not taken as seriously as it should be. “You should keep in mind that if you’re giving them access to your contacts, you’re also compromising on others’ privacy,” she points out.

Lokanand, a sound engineer, admits to not paying attention to what he’s giving apps access to. “I’m no expert but if you ask me, you download apps because they are useful. So I don’t really bother about what I’m saying yes to.”

For more details visit https://cis-india.org/internet-governance/news/deccan-herald-chetana-divya-vasudev-october-4-2016-an-appening-world

Eye on Mumbai

praskrishna — 2016-10-02T10:22:20Z

The feeds will be beamed to a video wall that stretches 21 feet across at the police’s command and control room.

The article by Tariq Engineer was published in Mumbai Mirror today. Sunil Abraham was quoted.

When seven bombs exploded on local trains between Khar and Borivali killing 209 people and injuring 714 in 2006, the Maharashtra police looked for CCTV footage but couldn’t find any because no cameras existed at railway stations back then.

When terrorists landed near Machimar colony in Cuffe Parade in 2008 and proceeded to slaughter hundreds of people in the city, CCTV footage was found only at the Taj and Trident hotels, Chhatrapati Shivaji Terminus and near the Times of India building. Places like Cama Hospital, Nariman House and Leopold Café were simply off the grid.

When Mumbai journalist J Dey was gunned down in Powai in 2011, the police obtained CCTV footage from a shopping centre nearby but it was so blurry, it was useless.

In each of these situations, a fully functioning high-definition CCTV system could have altered the outcome or aided the investigation in critical ways. That glaring gap in Mumbai’s security has now been filled by the Mumbai City Surveillance Project, which officially goes live today.

Over the last 20 months, a total of 4697 cameras have been installed at 1510 locations around Mumbai city. In addition to these, another 146 will survey the Bandra Kurla Complex. The tender for the project was issued in 2015 and won by a consortium led by construction major Larsen & Toubro with MTNL, CMS Computers and Infinova, which supplied the cameras, as partners.

The project is actually an outcome of the 26/11 attacks, having been recommended by the Ram Pradhan Committee, which was appointed to evaluate the city administration’s responses to the terror strike. According to Additional Chief Secretary (Home) KP Bakshi these cameras will ensure roughly 80 per cent of Mumbsi will be watched 24 hours a day, seven days a week. The city’s inhabitants will now have to be on their best behaviour.

“It was the police’s call to decide what they want to observe,” Bakshi said. “Do they want to look at the traffic or at a place where people gamble or do a lot of drinking?” The policeman in charge of selection of spots for installation of cameras was former additional commissioner of police Vasant Dhoble. Calling him a “game-changer”, one of the project managers said it was thanks to Dhoble that all the locations were surveyed in just twoand-a-half months. Dhoble was also instrumental in ensuring that the cameras were installed at the appropriate angles.

While the initial estimate was for 6,000 cameras, it was eventually determined that 4,697 were sufficient at this stage. The cameras have been placed on poles similar to street lights — 2290 of them — some with multiple cameras. “Let’s say there is a pole at Haji Ali Juice Center,” Bakshi said. “It may have three cameras — one looking towards Heera Panna, the other looking towards Mahalaxmi, the third looking towards Worli.”

The vast majority of the cameras — roughly 4200 — will be fixed and stare unblinkingly in one direction. The other 500 will be PTZ, or pan/tilt/zoom cameras, so those watching can scan an area or take a closer look at something that seems suspicious. All of the cameras can see in high definition, with visibility ranging from 50m to 120m. Some of them also have thermal imaging and night vision.

According to those involved in the project, the cameras have been built to withstand the rigours of Mumbai’s weather — specifically the heat and rain. Larsen & Toubro and CMS Computers are responsible for the maintenance of the system. Once the system is fully operational, the target is to have 99% of the cameras live at all times barring accidents. The responsibility for this lies with the service providers.

A smart system

The software that runs the cameras includes a Picture Intelligence Unit (PIU) that will conduct facial recognition analysis. If there is an image of a wanted person in the database, the program will scan the footage for matches and send a signal if it finds any. It will also send an alert if it notices a suspicious object, say one that has been left unattended for a pre-specified amount of time, so the cops can check it out. Tracking police vehicles — like you can follow the path of an Uber or Ola — is yet another feature, so if there is trouble, the nearest vehicle can be dispatched.

By Bakshi’s reckoning, if it is a small crime, then the police should be on the scene in five to ten minutes. If it is something like a bomb blast, then a Quick Response Team will be deployed, which will take a little longer – say 10 to 15 minutes.

Who will be watching you?

The feeds from these cameras will be fed to a video wall that stretches 21 feet across in a control room that has been set up in the Commissioner of Police Headquarters at Crawford Market. The footage will be monitored by about 20 observers who have been specially trained for the job.

However, a project manager said, watching the wall for more than eight minutes “would make anyone mad” because it is so chaotic. Therefore, each observer has his own workstation with three computer screens where he can only watch the feeds he has been assigned.

Entry to the control room is also strictly monitored. It requires five fingerprint access just to get in the room and a thumb print to turn individual workstations on. Mobile phones and personal effects are banned and the computers have no USB ports, so data can’t be copied.

In addition, there are viewing screens in each of the additional commissioner’s zonal offices and in all 23 police stations and roughly 200 observers will eventually be required to operate them. A project manager said he hoped to have a 60-40 or 50-50 split between male and female observers. The observers are monitored by the police, who will decide what actions to take depending on what alerts are generated.

The manpower is being provided by CMS Computers, with applicants having their resumes verified by the police. Observers will spend anywhere from four to six weeks in training before they get on the job, one of the project managers said.

Keeping the data secure

The images from the standard cameras will be stored for 90 days, while those taken with PTZ cameras will be stored for 30 days. “If you store for longer periods, it involves more cost,” Bakshi said. “We feel that if something has to be reported to us, it will be reported within 90 days.”

MTNL has set up a data centre in Worli and a disaster recovery centre in Belapur. If something goes wrong in Worli, there will still be connectivity via Belapur. Both centres have been “tied-up” to make the data as safe as possible. At the test lab at Larsen & Toubro’s project headquarters in Mallet Bunder, they even have a rodent detection device that broadcasts an ultrasonic frequency to drive away rats and stop them from chewing up the wires.

False starts

The project took some time to get off the ground because getting the details worked out was a painstaking elaborate process, former Maharashtra chief secretary ( home) Amitabh Rajan, told Mumbai Mirror. The committee wanted to make sure everything was transparent and that there were no allegations against the project. Control and security were also zealously guarded. “No compromise on security, not even cost,” Rajan said. “Like titration in chemistry, we eventually got the right concentration.”

There was also a battle between a lobby that wanted the system to be set up using dedicated fibre optic cables, and a lobby of technology providers that wanted to use wireless technology. The cops backed cables, which are not only safer but make it easy to add additional bandwidth, whereas wireless networks have limited bandwidth. It was a battle the cops would eventually win but at the cost of time.

The tender process didn’t go smoothly either. Larsen and Toubro were actually the winners of the fourth tender the Maharashtra government put forward. The first tender had to be cancelled because the winning consortium had not properly disclosed its ownership structure — one of the companies turned out to be controlled by a subsidiary of Reliance Industries. The second was cancelled when the vendor’s bank guarantee cheque of Rs 2 crore bounced and the owner disappeared. He was eventually found and arrested two years later.

The third tender received no bidders because it did not offer up-front payment for capital expenditure, according to then IT secretary Rajesh Aggarwal, who was part of the committee. It was finally on the fourth occasion, when the committee decided to offer a certain percentage of the project cost at the start and the rest over the remaining five years as maintenance fees, that a deal could be sealed.

Coordination headache

The next hurdle was coordinating the work between all the different organisations that populate Mumbai. The final total was around 35 or 40 bodies, including the Municipal Corporation of Greater Mumbai (MCGM), BEST and Reliance Power, the police, MMRDA, the Government of India and the High Court. “To explain to everyone that it is a security project and please don’t go by normal rules, you have to give concessions for all these things, all this co-ordination was a big job,” Bakshi said.

It led to delays, which is why the project had to take the extraordinary step of getting permission from the MCGM to dig up roads during the monsoon to lay the fibre-optic cables. It was the only way the project could make its deadline.

“If we had done it like a normal project, it would have taken five years,” an engineer said.

A question of privacy

Two experts in privacy issues that Mirror spoke to said that such a system is in the public interest, but safeguards must be built to prevent abuse. “If the data falls into the wrong hands, it can create havoc,” said Pavan Duggal, an expert in the field of cyber law. “Large scale surveillance of the public should not be the norm, it should be the exemption to the norm.” he said. “It can create unease and lessen the enjoyment of living in a democratic society.”

According to Sunil Abraham, director of the Centre for Internet and Society, the biggest problem is that India does not have an “omnibus privacy law”.

Instead, it has about 50 different laws across sectors and therefore privacy regulations are not consistent, which has created a legal thicket. “110 countries have passed privacy laws to European Union standards. India is really far behind,” he said.

He also listed a number of principles that he hoped the project would abide by, such as the principles of notice (CCTV cameras should be advertised as such), of openness (details of the system should be made public), security (“if you don’t have security, you can’t ensure privacy”) and of access (“we should have a right to get the footage of ourselves”). He also warned against the footage being shared between different security agencies without due process.

Additional Chief Secretary (Home) Bakshi said most of these principles were part of the system. There would be boards demarcating the CCTV cameras, the system would be publicly launched, it was being made as secure as possible and footage could be handed over depending on the circumstances. “If it is your own, then no problem,” Bakshi said. “If it is someone else’s then there are privacy issues. Is it because of criminal intent or you want to track your girlfriend’s other boyfriend to see if he is following her? These are issues. If you want yours, on merit we can give. No issue.”

Another concern Abraham raised is unique to India and the Aadhaar card, which uses biometric data as passwords, not identification. Since the CCTV cameras are high resolution, it raises the risk of someone recreating your iris or finger prints from a captured image and then “somebody could empty your Aadhaarlinked bank accounts,” Abraham said.

This is not as far-fetched as it sounds. Abraham pointed out that in 2014 a member of the Chaos Collective Club, the largest association of hackers in Europe, recreated the finger print of a German minister from a photograph they took of her hand.

“Other risks are smaller, a revealing photograph or someone trying to blackmail you,” Abraham said.

Not just for crime

The camera feed has other applications too, beginning with traffic management. An automatic number plate recognition system will be installed as well. If you look around the corner, don’t see a cop and jump a light, you could still get in trouble. “6000 [sic] police in the sky are watching you and you will get a challan sitting at home,” Aggarwal said. Other uses include tracking of encroachments by the Municipal Corporation of Greater Mumbai which will have an additional viewing centre. Also garbage disposal and other civic issues such as water logging and a subject dear to Mumbai citizens — potholes. “Somebody complains that this road has a pothole, immediately you can zoom in and see that yes, there is a pothole on this road,” Bakshi said.

There is also a provision to allow a further 103 locations to plug-in and play. For example, if the Taj Mahal Hotel wants the police to survey the hotel for a period of time, the hotel’s CCTV system can be hooked up to the main control room within 48 hours. The same goes for the airport or the railway stations.

Effect of CCTV surveillance

Worldwide the academic literature on CCTV surveillance suggests its effectiveness, especially on crime prevention, is uncertain or limited. “Post crime it really, really helps,” Aggarwal said, “but for prevention, we have to wait and watch. If it reduces sexual harassment for example, then that is priceless. Time will tell how people try to beat the system and how the system tries to catch up.”

Joint Commissioner of Police, Law and Order, Deven Bharti said he was already seeing an improvement in traffic management and in prevention and detection of crimes thanks to the 3000-plus cameras that were live when Mirror spoke to him two days ago, though he said he could not provide details. “The system is working to our satisfaction,” Bharti said.

Bakshi said the effects of the system should start showing roughly a month after the project is fully operational. “In Pune, results started being seen within a month. Once all 4700 [cameras] are live, you will start seeing the results on traffic violations, street crimes, and at general discipline level. [First] Let the people know they are under surveillance, that they are completely covered in Mumbai by CCTV.”

The total cost of the project is Rs 1008 crore. Out of this, about Rs 400 crore has already been spent. The balance will be paid out in regular installments until October 2021. At that point the Maharashtra government and Mumbai police will take complete control of the project. “We presume that in five years’ time, we will have enough trained people to run it ourselves,” Bakshi said.

For more details visit https://cis-india.org/internet-governance/news/mumbai-mirror-tariq-engineer-october-2-2016-eye-on-mumbai

WhatsApp ruling: Experts seek privacy law

praskrishna — 2016-09-27T02:35:06Z

On August 25, Whatsapp updated its policy to share user content with social network; the decision opened new monetisation models for the messaging app.

The article by Apurva Venkat and Moulishree Srivastava quoted Sunil Abraham. It was published in the Business Standard on September 24, 2016.

The recent Delhi High Court ruling that messaging app Whatsapp cannot share user data highlights the need for legislation on privacy, according to experts.

On August 25, Whatsapp, a platform with 70 million users in India that was acquired by Facebook in 2014, updated its policy to share user content with the social network. The decision opened new monetisation models for the messaging app.

In response to a PIL, the court ordered WhatsApp to delete data of users who chose to opt out of its policy changes before September 25. It also orderedWhatsApp not to share data collected before September 25 with Facebook for users who had not opted out.

"The decision makes a strong statement on privacy," said Sunil Abraham, executive director of the Centre for Internet Society. According to him, a user trusts a platform and provides access to his data. As another firm acquires the platform, it gains access to the data.

"Facebook owns Whatsapp. It has to look at ways of monetising it," said Nikhil Pahwa, co-founder of SavetheInternet.in.

"With so much digital data being generated, there is a need for a privacy law in the country," said Pahwa.

"Facebook's consent interface is confusing. It can make a person who wants to opt out let the company access his data," said Abraham, adding a law would take care of such intricacies. The government is working on a privacy bill.

Saroj Kumar Jha, partner, SRGR Law Offices, said there were few judgments on privacy in India based on constitutional rights.

"While the Information Technology Act enables courts to pass judgments on global companies on privacy, enforcing the orders is difficult," he said.

"What is required is a privacy law that can protect user data and uphold the individual's right to privacy," he added.

For more details visit https://cis-india.org/internet-governance/news/business-standard-september-24-apurva-venkat-and-moulishree-srivastava-whasapp-ruling-experts-seek-privacy-law

LITD 17 Committee, Bureau of Indian Standards Meeting

praskrishna — 2016-10-07T01:38:00Z

Vanya Rakesh attended the LITD-17 committee meeting (committee on Information Systems Security and Biometrics) organised by the Bureau of Indian Standards on 23 September 2016 in Bengaluru.

The agenda for the meeting included presentation of the draft data privacy standard for India which was proposed before the BIS and its members. Elonnai Hickok and Vanya are a part of the drafting committee for the same. The draft standard was accepted by BIS and would now be circulated for further comments. Click here to read the Agenda.

For more details visit https://cis-india.org/internet-governance/news/litd-17-committee-bureau-of-indian-standards-meeting

The Future of Privacy in the Age of Big Data

praskrishna — 2016-09-22T23:24:16Z

A study tour on privacy and big data was organised by Friedrich Naumann Foundation for Freedom from September 3 to 10, 2016 in Berlin and Hamburg. Vanya Rakesh was one of the participants from South Asia who went for the tour.

List of Participants

Shahid Ahmad, Deputy Director, Digital Empowerment Foundation
Shahzad Ahmad, Country Director, Bytes for All
Shivam Satnani, Senior Analyst, Data Security Council of India
Vanya Rakesh, Senior Policy Officer, Centre for Internet & Society
Anja Kovacs, Director, Internet Democracy Project
Tshering Cigay Dorji, CEO, Thimphu Tech Park
Vrinda Bhandari, Lawyer and Journalist, Chambers of Trideep Pais (Anwaltskanzlei)
Tahsin Ifnoor Sayeed, Head of Business Intelligence, DNet

Click to see the Agenda

For more details visit https://cis-india.org/internet-governance/news/study-tour-on-future-of-privacy-in-age-of-big-data

Glaring Errors in UIDAI's Rebuttal

pranesh — 2016-09-18T03:22:32Z

This response note by Pranesh Prakash questions Unique Identification Authority of India’s reply to Hans Verghese Mathews' article titled “Flaws in the UIDAI Process” (EPW, March 12, 2016), which found “serious mathematical errors” in the article.

The article was published in Economic & Political Weekly Vol. 51, Issue No. 36, September 3, 2016.

While I am not a statistician, I have followed the technical debate between Hans Verghese Mathews and the UIDAI closely, and see a number of glaring errors in the latter’s so-called rebuttal in EPW (March 12, 2016).

The UIDAI alleges Mathews to have ignored the evidence that the Receiver Operating Characteristic (ROC) "flattens" with more factors. However, Mathews cannot be accused of ignorance if the flattening of the ROC is not relevant to his argument. To explain this in simple terms, the ROC curve is used to choose the appropriate "threshold distance" which determines false positives and false negatives, and belongs to a stage which precedes the estimation of the false positive identification rates (FPIR).

However, Mathews has used the FPIR estimates provided by the UIDAI (based on evidence from the enrolment of 84 million persons), and calculated how the FPIR changes when extrapolated for a population of 1.2 billion persons. In other words, he did not need to look at the ROC curve as that factor is not relevant to his argument, since he has used UIDAI data (which has presumably been estimated on the basis of all 12 factors : 10 fingerprints and 2 irises).

Further, UIDAI asks why Mathews has assumed a linear curve for his extrapolation. Mathews has done no such thing. In fact, in their paper "Role of Biometric Technology in Aadhaar Enrollment," the UIDAI states: "FPIR rate grows linearly with the database size" (nd, 19). Thus, this is an assumption formerly made by them (without providing rationale for it to be a linear curve as opposed to anything else). Mathews mathematically derives bounds for the FPIR in his paper, that is, the range within which the FPIR lies. One gets a linear curve only if they use the upper bound and not on the usage of anything else. So while Mathews does, as he explains, provide the results of the calculation based on the upper bound for the sake of simplicity, he nowhere asserts nor assumes a linear curve.

If, as the UIDAI claims, one cannot perform such an extrapolation and needs to depend on “empirical evidence” instead, the question arises as to how the UIDAI decided to scale up the programme to 1.3 billion people given the error rates. One could also ask if the machines being used to capture biometrics are good enough for the enlargement. Surely they would have performed some extrapolations to decide this.

In their paper they note that "although it [FPIR] is expected to grow as the database size increases, it is not expected to exceed manageable values even at full enrolment of 120 crores" (UIDAI nd, 13). They do not illustrate the extent to which the FPIR is expected to grow—neither in their initial paper, nor in their rebuttal to Mathews—whereas Mathews provides a method of estimating the increase of FPIR. Even if UIDAI is correct in its appraisal of FPIR and that it will not exceed "manageable values," they need to either exemplify their calculations or release the latest data. They have done neither, and that is quite unfortunate.

References

UIDAI (nd): “Role of Biometric Technology in Aadhaar Enrollment,” Unique Identification Authority of India, Government of India, New Delhi, viewed on 18 August 2016, https://uidai.gov.in/images/FrontPageUpdates/role_of_biometric_technology

Related Links

Flaws in the UIDAI Process http://www.epw.in/journal/2016/9/special-articles/flaws-uidai-process.html
Erring on Aadhaar http://www.epw.in/journal/2016/11/discussion/erring-aadhaar.html
Request for Specifics http://www.epw.in/journal/2016/36/documents/request-specifics-rebuttal-u...
Glaring Errors in UIDAI's Rebuttal http://www.epw.in/journal/2016/36/documents/glaring-errors-uidais-rebutt...
Overlooking the UIDAI Process http://www.epw.in/journal/2016/36/documents/response-hans-verghese-mathe...

For more details visit https://cis-india.org/internet-governance/blog/glaring-errors-in-uidai-rebuttal-epw

India's Aadhaar mandate for smartphone makers may rile global firms

praskrishna — 2016-09-15T02:25:31Z

They are unlikely to oblige to request to make changes in their operating system and devices to ensure Aadhaar authentication is done securely on smartphones.

The article by Alnoor Peermohammed was published in the Business Standard on September 14, 2016. Sunil Abraham was quoted.

India is asking global smartphone makers such asApple and Google to adopt locally designed standards on their devices or operating systems that would allow use of biometric scanners for Aadhaarauthentication, a move that could face resistance from global firms.

Apple, the world’s largest smartphone maker runs its own iOS closed ecosystem and mandates apps built by developers to be certified by the company. Its closest rival Google, which owns the Android operating software that runs on nine out of ten smartphones in India, has directives for device makers to comply with. Firms such as Samsung, Lenovo and Micromax build smartphones on the Android OS that are sold in India.

Most global companies are unlikely to oblige India’s request that would require to make changes in their operating system and devices to ensure Aadhaarauthentication is done securely on smartphones, say analysts.

“There is no clarity so far. As of now, it is impossible that they (global smartphone makers) would oblige for a hardware safe zone baked on the sensors,” says Sunil Abraham, executive director at Centre for Internet and Society, a Bengaluru-based researcher that works on emerging technologies. “Because the biometrics contain sensitive personal information, they (UIDAI) don’t want anybody — vmobile manufacturer, OS vendor, telco or ISP — to intercept it”.

India is hoping that global firms would accept the country’s plea considering that most of India’s population use a mobile phone as their only computing device and need them to authenticate on Aadhaar for using government and banking services.

“Right now we’re in consultation with all these device manufacturers as well as the operating system vendors,” said Ajay Bhushan Pandey, Director General of the Unique Identification Authority of India (UIDAI) in a phone interview. “Basically we’re trying to evolve our system wherein a manufacturer or the devices where those operating systems are being used will have a facility where Aadhaar authentication can be made possible in a secure manner.”

India has over 105 crore people or 98% of adult population with Aadhaar. Most government and private organisations use Aadhaar authentication to issue services or products such as opening a bank account, getting a ration card or buying a mobile connection.

Reliance plans to reduce paperwork and issue connections in less than an hour usingAadhaar and try to get its 100 million target market sooner.

Over a fifth of India’s one billion users own smartphones and as the country sees better mobile internet access, more people are expected to upgrade to smartphones and use apps to access their banks to transfer funds, do online shopping and access government services.

For more details visit https://cis-india.org/internet-governance/news/business-standard-alnoor-peermohammed-september-14-2016-indias-aadhaar-mandate-for-smartphone-makers-may-rile-global-firms

Report on Understanding Aadhaar and its New Challenges

Japreet Grewal, Vanya Rakesh, Sumandro Chattapadhyay, and Elonnai Hickock — 2019-03-16T04:42:52Z

The Trans-disciplinary Research Cluster on Sustainability Studies at Jawaharlal Nehru University collaborated with the Centre for Internet and Society, and other individuals and organisations to organise a two day workshop on “Understanding Aadhaar and its New Challenges” at the Centre for Studies in Science Policy, JNU on May 26 and 27, 2016. The objective of the workshop was to bring together experts from various fields, who have been rigorously following the developments in the Unique Identification (UID) Project and align their perspectives and develop a shared understanding of the status of the UID Project and its impact. Through this exercise, it was also sought to develop a plan of action to address the welfare exclusion issues that have arisen due to implementation of the UID Project.

Report: Download (PDF)

This Report is a compilation of the observations made by participants at the workshop relating to myriad issues under the UID Project and various strategies that could be pursued to address these issues. In this Report we have classified the observations and discussions into following themes:

1. Brief Background of the UID Project

2. Legal Status of the UIDAI Project

Procedural issues with passage of the Act
Status of related litigation

3. National Identity Projects in Other Jurisdictions

Pakistan
United Kingdom
Estonia
France
Argentina

4. Technologies of Identification and Authentication

Use of Biometric Information for Identification and Authentication
Architectures of Identification
Security Infrastructure of CIDR

5. Aadhaar for Welfare?

Social Welfare: Modes of Access and Exclusion
Financial Inclusion and Direct Benefits Transfer

6. Surveillance and UIDAI

7. Strategies for Future Action

Annexure A Workshop Agenda

Annexure B Workshop Participants

1. Brief Background of the UID Project

In the year 2009, the UIDAI was established and the UID project was conceived by the Planning Commission under the UPA government to provide unique identification for each resident in India and to be used for delivery of welfare government services in an efficient and transparent manner, along with using it as a tool to monitor government schemes. The objective of the scheme has been to issue a unique identification number by the Unique Identification Authority of India, which can be authenticated and verified online. It was conceptualized and implemented as a platform to facilitate identification and avoid fake identity issues and delivery of government benefits based on the demographic and biometric data available with the Authority.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Act”) was passed as a money bill on March 16, 2016 and was notified in the gazette March 25, 2016 upon receiving the assent of the President. However, the enforceability date has not been mentioned due to which the bill has not come into force.

The Act provides that the Aadhaar number can be used to validate a person’s identity, but it cannot be used as a proof of citizenship. Also, the government can make it mandatory for a person to authenticate her/his identity using Aadhaar number before receiving any government subsidy, benefit, or service. At the time of enrolment, the enrolling agency is required to provide notice to the individual regarding how the information will be used, the type of entities the information will be shared with and their right to access their information. Consent of an individual would be obtained for using his/her identity information during enrolment as well as authentication, and would be informed of the nature of information that may be shared. The Act clearly lays that the identity information of a resident shall not be sued for any purpose other than specified at the time of authentication and disclosure of information can be made only pursuant to an order of a court not inferior to that of a District Judge and/or disclosure made in the interest of national security.

2. Legal Status of the UIDAI Project

In this section, we have summarised the discussions on the procedural issues with the passage of the Act. The participants had criticised the passage of the Act as a money bill in the Parliament. The participants also assessed the litigation pending in the Supreme Court of India that would be affected by this law. These discussions took place in the session titled, ‘Current Status of Aadhaar’ and have been summarised below.

Procedural Issues with Passage of the Act

The participants contested the introduction of the Act in the form of a money bill. The rationale behind this was explained at the session and is briefly explained here. Article 110 (1) of the Constitution of India defines a money bill as one containing provisions only regarding the matters enumerated or any matters incidental to the following: 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. The Act makes references to benefits, subsidies and services which are funded by the Consolidated Fund of India (CFI), however the main objectives of the Act is to create a right to obtain a unique identification number and provide for a statutory mechanism to regulate this process. The Act only establishes an identification mechanism which facilitates distribution of benefits and subsidies funded by the CFI and this identification mechanism (Aadhaar number) does not give it the character of a money bill. Further, money bills can be introduced only in the Lok Sabha, and the Rajya Sabha cannot make amendments to such bills passed by the Lok Sabha. The Rajya Sabha can suggest amendments, but it is the Lok Sabha’s choice to accept or reject them. This leaves the Rajya Sabha with no effective role to play in the passage of the bill.

The participants also briefly examined the writ petition that has been filed by former Union minister Jairam Ramesh challenging the constitutionality and legality of the treatment of this Act as a money bill which has raised the question of judiciary’s power to review the decisions of the speaker. Article 122 of the Constitution of India provides that this power of judicial review can be exercised to look into procedural irregularities. The question remains whether the Supreme Court will rule that it can determine the constitutionality of the decision made by the speaker relating to the manner in which the Act was introduced in the Lok Sabha. A few participants mentioned that similar circumstances had arisen in the case of Mohd. Saeed Siddiqui v. State of U.P. [1].

where the Supreme Court refused to interfere with the decision of the Uttar Pradesh legislative assembly speaker certifying an amendment bill to increase the tenure of the Lokayukta as a money bill, despite the fact that the bill amended the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975, which was passed as an ordinary bill by both houses. The Court in this case held that the decision of the speaker was final and that the proceedings of the legislature being important legislative privilege could not be inquired into by courts. The Court added, “the question whether a bill is a money bill or not can be raised only in the state legislative assembly by a member thereof when the bill is pending in the state legislature and before it becomes an Act.”

However, it is necessary to carve a distinction between Rajya Sabha and State Legislature. Unlike the State Legislature, constitution of Rajya Sabha is not optional therefore significance of the two bodies in the parliamentary process cannot be considered the same. Participants also made another significant observation about a similar bill on the UID project (National Identification Authority of India (NIDAI) Bill) that was introduced before by the UPA government in 2010 and was deemed unacceptable by the standing committee on finance, headed by Yashwant Sinha. This bill was subsequently withdrawn.

Status of Related Litigation

A panellist in this session briefly summarised all the litigation that was related to or would be affected by the Act. The panellist also highlighted several Supreme Court orders in the case of KS Puttuswamy v. Union of India [2] which limited the use of Aadhaar. We have reproduced the presentation below.

KS Puttuswamy v. Union of India - This petition was filed in 2012 with primary concern about providing Aadhaar numbers to illegal immigrants in India. It was contended that this could not be done without a law establishing the UIDAI and amendment to the Citizenship laws. The petitioner raised concerns about privacy and fallibility of biometrics.
Sudhir Vombatkere & Bezwada Wilson [3] - This petition was filed in 2013 on grounds of infringement of right to privacy guaranteed under Article 21 of the Constitution of India and the security threat on account of data convergence.
Aruna Roy & Nikhil Dey [4] - This petition was filed in 2013 on the grounds of large scale exclusion of people from access to basic welfare services caused by UID. After their petition, no. of intervention applications were filed. These were the following:
Col. Mathew Thomas [5] - This petition was filed on the grounds of threat to national security posed by the UID project particularly in relation to arrangements for data sharing with foreign companies (with links to foreign intelligence agencies).
Nagrik Chetna Manch [6] - This petition was filed in 2013 and led by Dr. Anupam Saraph on the grounds that the UID project was detrimental to financial service regulation and financial inclusion.
S. Raju [7] - This petition was filed on the grounds that the UID project had implications on the federal structure of the State and was detrimental to financial inclusion.
Beghar Foundation - This petition was filed in 2013 in the Delhi High Court on the grounds invasion of privacy and exclusion specifically in relation to the homeless. It subsequently joined the petition filed by Aruna Roy and Nikhil Dey as an intervener.
Vickram Crishna – This petition was originally filed in the Bombay High Court in 2013 on the grounds of surveillance and invasion of privacy. It was later transferred to the Supreme Court.
Somasekhar – This petition was filed on the grounds of procedural unreasonableness of the UID project and also exclusion & privacy. The petitioner later intervened in the petition filed by Aruna Roy and Nikhil Dey in 2013.
Rajeev Chandrashekhar– This petition was filed on the ground of lack of legal sanction for the UID project. He later intervened in the petition filed by Aruna Roy and Nikhil Dey in 2013. His position has changed now.
Further, a petition was filed by Mr. Jairam Ramesh initially challenging the passage of the Act as a money bill but subsequently, it has been amended to include issues of violation of right to privacy and exclusion of the poor and has advocated for five amendments that were suggested to the Aadhaar Bill by the Rajya Sabha.

Relevant Orders of the Supreme Court

There are six orders of the Supreme Court which are noteworthy.

Order of Sept. 23, 2013 - The Supreme court directed that: 1) no person shall suffer for not having an aadhaar number despite the fact that a circular by an authority makes it mandatory; 2) it should be checked if a person applying for aadhaar number voluntarily is entitled to it under the law; and 3) precaution should be taken that it is not be issued to illegal immigrants.
Order of 26th November, 2013 – Applications were filed by UIDAI, Ministry of Petroleum & Natural Gas, Govt of India, Indian Oil Corporation, BPCL and HPCL for modifying the September 23rd order and sought permission from the Supreme Court to make aadhaar number mandatory. The Supreme Court held that the order of September 23rd would continue to be effective.
Order of 24th March, 2014 – This order was passed by the Supreme Court in a special leave petition filed in the case of UIDAI v CBI [8] wherein UIDAI was asked to UIDAI to share biometric information of all residents of a particular place in Goa to facilitate a criminal investigation involving charges of rape and sexual assault. The Supreme Court restrained UIDAI from transferring any biometric information of an individual without to any other agency without his consent in writing. The Supreme Court also directed all the authorities to modify their forms/circulars/likes so as to not make aadhaar number mandatory.
Order of 16th March, 2015 - The SC took notice of widespread violations of the order passed on September 23rd, 2013 and directed the Centre and the states to adhere to these orders to not make aadhaar compulsory.
Orders of August 11, 2015 – In the first order, the Central Government was directed to publicise the fact that aadhaar was voluntary. The Supreme Court further held that provision of benefits due to a citizen of India would not be made conditional upon obtaining an aadhaar number and restricted the use of aadhaar to the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene and the LPG Distribution Scheme. The Supreme Court also held that information of an individual that was collected in order to issue an aadhaar number would not be used for any purpose except when directed by the Court for criminal investigations. Separately, the status of fundamental right to privacy was contested and accordingly the Supreme Court directed that the issue be taken up before the Chief Justice of India.
Orders of October 16, 2015 – The Union of India, the states of Gujarat, Maharashtra, Himachal Pradesh and Rajasthan, and authorities including SEBI, TRAI, CBDT, IRDA , RBI applied for a hearing before the Constitution Bench for modification of the order passed by the Supreme Court on August 11 and allow use of aadhaar number schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana (PMJDY) and Employees' Providend Fund Organisation (EPFO). The Bench allowed the use of aadhaar number for these schemes but stressed upon the need to keep aadhaar scheme voluntary until the matter was finally decided.

Status of these orders
The participants discussed the possible impact of the law on the operation of these orders. A participant pointed out that matters in the Supreme Court had not become infructuous because fundamental issues that were being heard in the Supreme Court had not been resolved by the passage of the Act. Several participants believed that the aforementioned orders were effective because the law had not come into force. Therefore, aadhaar number could only be used for purposes specified by the Supreme Court and it could not be made mandatory. Participants also highlighted that when the Act was implemented, it would not nullify the orders of the Supreme Court unless Union of India asked the Supreme Court for it specifically and the Supreme Court sanctioned that.

3. National Identity Projects in Other Jurisdictions

A panellist had provided a brief overview of similar programs on identification that have been launched in other jurisdictions including Pakistan, United Kingdom, France, Estonia and Argentina in the recent past in the session titled ‘Aadhaar - International Dimensions’. This presentation mainly sought to assess the incentives that drove the governments in these jurisdictions to formulate these projects, mandatory nature of their adoption and their popularity. The Report has reproduced the presentation here.

Pakistan

The Second Amendment to the Constitution of Pakistan in 2000 established the National Database and Regulation Authority in the country, which regulates government databases and statistically manages the sensitive registration database of the citizens of Pakistan. It is also responsible for issuing national identity cards to the citizens of Pakistan. Although the card is not legally compulsory for a Pakistani citizen, it is mandatory for:

Voting
Obtaining a passport
Purchasing vehicles and land
Obtaining a driver licence
Purchasing a plane or train ticket
Obtaining a mobile phone SIM card
Obtaining electricity, gas, and water
Securing admission to college and other post-graduate institutes
Conducting major financial transactions

Therefore, it is pretty much necessary for basic civic life in the country. In 2012, NADRA introduced the Smart National Identity Card, an electronic identity card, which implements 36 security features. The following information can be found on the card and subsequently the central database: Legal Name, Gender (male, female, or transgender), Father's name (Husband's name for married females), Identification Mark, Date of Birth, National Identity Card Number, Family Tree ID Number, Current Address, Permanent Address, Date of Issue, Date of Expiry, Signature, Photo, and Fingerprint (Thumbprint). NADRA also records the applicant's religion, but this is not noted on the card itself. (This system has not been removed yet and is still operational in Pakistan.)

United Kingdom

The Identity Cards Act was introduced in the wake of the terrorist attacks on 11th September, 2001, amidst rising concerns about identity theft and the misuse of public services. The card was to be used to obtain social security services, but the ability to properly identify a person to their true identity was central to the proposal, with wider implications for prevention of crime and terrorism. The cards were linked to a central database (the National Identity Register), which would store information about all of the holders of the cards. The concerns raised by human rights lawyers, activists, security professionals and IT experts, as well as politicians were not to do with the cards as much as with the NIR. The Act specified 50 categories of information that the NIR could hold, including up to 10 fingerprints, digitised facial scan and iris scan, current and past UK and overseas places of residence of all residents of the UK throughout their lives. The central database was purported to be a prime target for cyber attacks, and was also said to be a violation of the right to privacy of UK citizens. The Act was passed by the Labour Government in 2006, and repealed by the Conservative-Liberal Democrat Coalition Government as part of their measures to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.”

Estonia

The Estonian i-card is a smart card issued to Estonian citizens by the Police and Border Guard Board. All Estonian citizens and permanent residents are legally obliged to possess this card from the age of 15. The card stores data such as the user's full name, gender, national identification number, and cryptographic keys and public key certificates. The cryptographic signature in the card is legally equivalent to a manual signature, since 15 December 2000. The following are a few examples of what the card is used for:

As a national ID card for legal travel within the EU for Estonian citizens
As the national health insurance card
As proof of identification when logging into bank accounts from a home computer
For digital signatures
For i-voting
For accessing government databases to check one’s medical records, file taxes, etc.
For picking up e-Prescriptions
(This system is also operational in the country and has not been removed)

France

The biometric ID card was to include a compulsory chip containing personal information, such as fingerprints, a photograph, home address, height, and eye colour. A second, optional chip was to be implemented for online authentication and electronic signatures, to be used for e-government services and e-commerce. The law was passed with the purpose of combating “identity fraud”. It was referred to the Constitutional Council by more than 200 members of the French Parliament, who challenged the compatibility of the bill with the citizens’ fundamental rights, including the right to privacy and the presumption of innocence. The Council struck down the law, citing the issue of proportionality. “Regarding the nature of the recorded data, the range of the treatment, the technical characteristics and conditions of the consultation, the provisions of article 5 touch the right to privacy in a way that cannot be considered as proportional to the meant purpose”.

Argentina

Documento Nacional de Identidad or DNI (which means National Identity Document) is the main identity document for Argentine citizens, as well as temporary or permanent resident aliens. It is issued at a person's birth, and updated at 8 and 14 years of age simultaneously in one format: a card (DNI tarjeta); it's valid if identification is required, and is required for voting. The front side of the card states the name, sex, nationality, specimen issue, date of birth, date of issue, date of expiry, and transaction number along with the DNI number and portrait and signature of the card's bearer. The back side of the card shows the address of the card's bearer along with their right thumb fingerprint. The front side of the DNI also shows a barcode while the back shows machine-readable information. The DNI is a valid travel document for entering Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela. (System still operational in the country)

4. Technologies of Identification and Authentication

The panel in the session titled ‘Aadhaar: Science, Technology, and Security’ explained the technical aspects of use of biometrics and privacy concerns, technology architecture for identification and inadequacy of infrastructure for information security. In this section, we have summarised the presentation and the ensuing discussions on these issues.

Use of Biometric Information for Identification and Authentication

The panelists explained with examples that identification and authentication were different things. Identity provides an answer to the question “who are you?” while authentication is a challenge-response process that provides a proof of the claim of identity. Common examples of identity are User ID (Login ID), cryptographic public keys and ATM or Smart cards while common authenticators are passwords (including OTPs), PINs and cryptographic private keys. Identity is public information but an authenticator must be private and known only to the user. Authentication must necessarily be a conscious process and active participation by the user is a must. It should also always be possible to revoke an authenticator. After providing this understanding of the two processes the panellist then explained if biometric information could be used for identification or authentication under the UID Project. Biometric information is clearly public information and it is questionable if it can be revoked. Therefore it should never be used for authentication, but only for identity verification. There is a possibility of authentication by fingerprints under the UID Project, without conscious participation of the user. One could trace the fingerprints of an individual from any place the individual has been in contact with. Therefore, authentication must certainly be done by other means. The panellist pointed out that there were five kinds of authentication under the UID Project, out of which two-factor authentication and one time password were considered suitable but use of biometric information and demographic information was extremely threatening and must be withdrawn.

Architectures of Identification

The panelists explained the architecture of the UID Project that has been designed for identification purposes, highlighted its limitations and suggested alternatives. His explanations are reproduced below.

Under the UID Project, there is a centralised means of identification i.e. the aadhaar number and biometric information stored in one place, Central Identification Data Repository (CIDR). It is better to have multiple means of identification than one (as contemplated under the UID Project) for preservation of our civil liberties. The question is what the available alternatives are. Web of trust is a way for operationalizing distributed identification but the challenge is how one brings people from all social levels to participate in it. There is a need for registrars who will sign keys and public databases for this purpose.

The aadhaar number functions as a common index and facilitates correlation of data across Government databases. While this is tremendously attractive it raises several privacy concerns as more and more information relating to an individual is available to others and is likely to be abused.

The aadhaar number is available in human readable form. This raises the risk of identification without consent and unauthorised profiling. It cannot be revoked. Potential for damage in case of identity theft increases manifold.

Under the UID Project, for the purpose of information security, Authentication User Agencies (“AUA”) are required to use local identifiers instead of aadhaar numbers but they are also required to map these local identifiers to the aadhaar numbers. Aadhaar numbers are not cryptographically secured; in fact they are publicly available. Hence this exercise for securing information is useless. An alternative would be to issue different identifiers for different domains and cryptographically embed a “master identifier” (in this case, equivalent of aadhaar number) into each local identifier.

All field devices (for example POS machines) should be registered and must communicate directly with UIDAI. In fact, UIDAI must verify the authenticity (tamper proof) of the field device during run time and a UIDAI approved authenticity certificate must be issued for field devices. This certificate must be made available to users on demand. Further, the security and privacy frameworks within which AUAs work must be appropriately defined by legal and technical means.

Security Infrastructure of CIDR

The panelists also enumerated the security features of the UID Project and highlighted the flaws in these features. These have been summarised below.

The security and privacy infrastructure of UIDAI has the following main features:

2048 bit PKI encryption of biometric data in transit
End-to-end encryption from enrolment/POS to CIDR
HMAC based tamper detection of PID blocks
Registration and authentication of AUAs
Within CIDR only a SHA 1 Hash of Aadhaar number is stored
Audit trails are stored SHA 1 encrypted. Tamper detection?
Only hashes of passwords and PINs are stored. (biometric data stored in original form though!)
Authentication requests have unique session keys and HMAC
Resident data stored using 100 way sharding (vertical partitioning). First two digits of Aadhaar number as shard keys
All enrolment and update requests link to partitioned databases using Ref IDs (coded indices)
All accesses through a hardware security module
All analytics carried out on anonymised data

The panellists pointed out the concerns about information security on account of design flaws, lack of procedural safeguards, openness of the system and too much trust imposed on multiple players. All symmetric and private keys and hashes are stored somewhere within UIDAI. This indicates that trust is implicitly assumed which is a glaring design flaw. There is no well-defined approval procedure for data inspection, whether it is for the purpose of investigation or for data analytics. There is a likelihood of system hacks, insider leaks, and tampering of authentication records and audit trails. The ensuing discussions highlighted that the UIDAI had admitted to these security risks. The enrolment agencies and the enrolment devices cannot be trusted. AUAs cannot be trusted with biometric and demographic data; neither can they be trusted with sensitive user data of private nature. There is a need for an independent third party auditor for distributed key management, auditing and approving UIDAI programs, including those for data inspection and analytics, whitebox cryptographic compilation of critical parts of the UIDAI programs, issue of cryptographic keys to UIDAI programs for functional encryption, challenge-response for run-time authentication and certification of UIDAI programs. The panellist recommended that there was a need to to put a suitable legal framework to execute this.

The participants also discussed that information infrastructure must not be made of proprietary software (possibility for backdoors for US) and there must be a third party audit with a non-negotiable clause for public audit.

5. Aadhaar for Welfare?

The Report has summarised the discussions that took place in the sessions on ‘Direct Benefits Transfers’ and ‘Aadhaar: Broad Issues - II’ where the panellists critically analysed the claims of benefits and inclusion of Aadhaar made by the government in light of the ground realities in states where Aadhaar has been adopted for social welfare schemes.

Social Welfare: Modes of Access and Exclusion

Under the Act, a person may be required to authenticate or give proof of the aadhaar number in order to receive subsidy from the government (Section 7). A person is required to punch their fingerprints on POS machines in order to receive their entitlement under the social welfare schemes such as LPG and PDS. It was pointed out in the discussions that various states including Rajasthan and Delhi had witnessed fingerprint errors while doling out benefits at ration shops under the PDS scheme. People have failed to receive their entitled benefits because of these fingerprint errors thus resulting in exclusion of beneficiaries [9]. A panellist pointed out that in Rajasthan, dysfunctional biometrics had led to further corruption in ration shops. Ration shop owners often lied to the beneficiaries about functioning of the biometric machines (POS Machines) and kept the ration for sale in the market therefore making a lot of money at the expense of uninformed beneficiaries and depriving them of their entitlements.

Another participant organisation also pointed out similar circumstances in the ration shops in Patparganj and New Delhi constituencies. Here, the dealers had maintained the records of beneficiaries who had been categorized as follows: beneficiaries whose biometrics did not match, beneficiaries whose biometrics matched and entitlements were provided, beneficiaries who never visited the ration shop. It had been observed that there were no entries in the category of beneficiaries whose biometrics did not match however, the beneficiaries had a different story to tell. They complained that their biometrics did not match despite trying several times and there was no mechanism for a manual override. Consequently, they had not been able to receive any entitlements for months. The discussions also pointed out that the food authorities had placed complete reliance on authenticity of the POS machines and claim that this system would weed out families who were not entitled to the benefits. The MIS was also running technical glitches as a result there was a problem with registering information about these transactions hence, no records had been created with the State authority about these problems. A participant also discussed the plight of 30,000 widows in Delhi, who were entitled to pension and used to collect their entitlement from post offices, faced exclusion due to transition problems under the Jan Dhan Yojana (after the Jandhan was launched the money was transferred to their bank accounts in order to resolve the problem of misappropriation of money at the hands of post office officials). These widows were asked to open bank accounts to receive their entitlements and those who did not open these accounts and did not inform the post office were considered bogus.

In the discussions, the participants also noted that this unreliability of fingerprints as a means of authentication of an individual’s identity was highlighted at the meeting of Empowered Group of Ministers in 2011 by J Dsouza, a biometrics scientist. He used his wife’s fingerprints to demonstrate that fingerprints may change overtime and in such an event, one would not be able to use the POS machine anymore as the machine would continue to identify the impressions collected initially.

The participants who had been working in the field had contributed to the discussions by busting the myth that the UID Project helped to identify who was poor and resolve the problem of exclusion due to leakages in the social welfare programs. These discussions have been summarised below.

It is important to understand that the UID Project is merely an identification and authentication system. It only helps in verifying if an individual is entitled to benefits under a social security scheme. It does not ensure plugging of leakages and reducing corruption in social security schemes as has been claimed by the Government. The reduction in leakage of PDS, for instance, should be attributed to digitization and not UID. The Government claims, that it has saved INR 15000 crore in provision of LPG on identification of 3.34 crore inactive accounts on account of the UID Project. This is untrue because the accounts were weeded by using mechanisms completely unrelated to the UID Project. Consequently, the savings on account of UID are only of INR 120 crore and not 15000 crore.
The UID Project has resulted in exclusion of people either because they do not have an aadhaar number, or they have a wrong identification, or there are errors of classification or wilful misclassification. About 99.7% people who were given aadhaar numbers already had an identification document. In fact, during enrolment a person is required to produce one of 14 identification documents listed under the law in order to get an aadhaar number which makes it very difficult for a person with no identity to become entitled to a social welfare scheme.

A participant condemned the Government’s claim that the UID Project had helped in removing fake, bogus and duplicate cards and said that these terms could not be used synonymously and the authorities had no clarity about the difference between the meanings of these terms. The UID Project had only helped in removal of duplicate cards but had not helped in combating the use of fake and bogus cards.

Financial Inclusion and Direct Benefits Transfer

The participants also engaged in the discussions about the impact of the UID project on financial inclusion in India in the sessions titled ‘Aadhaar: Broad Issues - I & II’. We have summarised these discussions below.

The UID Project seeks to directly transfer money to a bank account in order to combat corruption. The discussions highlighted that this was nothing but introducing a neo liberal thrust in social policy and that it was not feasible for various reasons. First, 95% of rural India did not have functioning banks and banks are quite far away. Second, in order to combat this dearth of banks the idea of business correspondents, who handled banking transactions and helped in opening of bank accounts, had been introduced which had created various problems. The Reserve Bank of India reported that there was dearth of business correspondents as there was very little incentive to become one; their salary is merely INR 4000. Third, there were concerns about how an aadhaar number was considered a valid document for Know Your Customer (KYC) checks. There was a requirement for scrutiny and auditing of documents submitted during the time of enrolment which, in the present scheme of things, could not be verified. Fourth, there were no restrictions on number of bank accounts that could be opened with a single aadhaar number which gave rise to a possibility of opening multiple and shell accounts on a single aadhaar number. Therefore, records only showed transactions when money was transferred from an aadhaar number to another aadhaar number as opposed to an account-to-account transfer. The discussion relied on NPCI data which shows which bank an aadhaar number is associated with but does not show if a transaction by an aadhaar number is overwritten by another bank account belonging to the same aadhaar number.

6. Surveillance and UIDAI

The participants had discussed the possibility of an alternative purpose for enrolling Aadhaar in the session titled ‘Privacy, Surveillance, and Ethical Dimensions of Aadhaar’. The discussion traced the history of this project to gain insight on this issue. We have summarised below the key take aways from this discussion.

There are claims that the main objective of launching the UID Project is not to facilitate implementation of social security schemes but to collect personal (financial and non-financial) information of the citizens and residents of the country to build a data monopoly. For this purpose, PDS was chosen as a suitable social security scheme as it has the largest coverage. Several participants suggested that numerous reports authored by FICCI, KPMG and ASSOCHAM contained proposals for establishing a national identity authority which threw some light on the commercial intentions behind information collection under the UID Project.

It was also pointed out that there was documented proof that information collected under the UID Project might have been shared with foreign companies. There are suggestions about links established between proponents of the UID Project and companies backed by CIA or the French Government which run security projects and deal in data sharing in several jurisdictions.

7. Strategies for Future Action

The participants laid down a list of measures that must be taken to take the discussions forward. We have enumerated these recommendations below.

Prepare and compile an anthology of articles as an output of this workshop.
Prepare position papers on specific issues related to the UID Project
Prepare pamphlets/brochures on issues with the UID Project for public consumption
Prepare counter-advertisements for Aadhaar
Publish existing empirical evidence on the flaws in Aadhaar.
Set up an online portal dedicated to providing updates on the UID Project and allows discussions on specific issues related to Aadhaar.
Use Social Media to reach out to the public. Regularly track and comment on social media pages of relevant departments of the government.
Create groups dedicated to research and advocacy of specific aspects of the UID Project.
Create a Coordination Committee preferably based in Delhi which would be responsible for regularly holding meetings and for preparing a coordinated plan of action. Employ permanent to staff to run the Committee.
Organise an advocacy campaign against use of Aadhaar in collaboration with other organisations and build public domain acceptance.
The campaign must specifically focus on the unfettered scope of UID and expanse, misrepresentation of the success of Aadhaar by highlighting real savings, technological flaws, status of pilot programs and increasing corruption on account of the UID Project
Prepare a statement of public concern regarding the UID Project and collect signatures from eminent persons including academics, technical experts, civil society groups and members of parliament.
Organise events and discussions on issues relating to Aadhaar and invite members og government departments to speak and discuss the issues.
Write to Members of Parliament and Members of Legislative Assemblies raising questions on their or their parties’ support for Aadhaar and silence on the problems created by the UID Project.
Organise public hearings in states like Rajasthan to observe and document ground realities of the UID Project and share these outcomes with the state government and media.
Plan a national social audit and public hearing on the working of UID Project in the country.
File Contempt Petitions in the Supreme Court and High Courts against mandatory use of Aadhaar number for services not allowed by the Supreme Court.
Reach out to and engage with various foreign citizens and organisations that have been fighting on similar issues. The organisations and individuals who could be approached would include EPIC, Electronic Frontier foundation, David Moss, UK, Roger Clarke, Australia, Prof. Ian Angel, Snowden, Assange and Chomsky.
Work towards increasing awareness about the UID Project and gaining support from the student and research community, student organisations, trade unions, and other associations and networks in the unorganised sector.

Annexure A – Workshop Agenda

May 26, 2016

9:00-9:30	Registration
9:30-10:00	Prof. Dinesh Abrol - Welcome Self-introduction and expectations of participants Dr. Usha Ramanathan - Overview of the Workshop
10:00-11:00	Session 1: Current Status of Aadhaar Dr. Usha Ramanathan, Legal Researcher, New Delhi - What the 2016 Law Says, and How it Came into Being S. Prasanna, Advocate, New Delhi - Status and Force of Supreme Court Orders on Aadhaar Discussion
11:00-11:30	Tea Break
11:30-13:30	Session 2: Direct Benefits Transfers Prof. Reetika Khera, Indian Institute of Technology, Delhi - Welfare Needs Aadhaar like a Fish Needs a Bicycle Prof. R. Ramakumar, Tata Institute of Social Sciences, Mumbai - Aadhaar and the Social Sector: A critical analysis of the claims of benefits and inclusion Ashok Rao, Delhi Science Forum - Cash Transfers Study Discussion
13:30-14:30	Lunch
14:30-16:00	Session 3: Aadhaar: Science, Technology, and Security Prof. Subashis Banerjee, Dept of Computer Science & Engineering, IIT, Delhi - Privacy and Security Issues Related to the Aadhaar Act Pukhraj Singh, Former National Cyber Security Manager, Aadhaar, New Delhi - Aadhaar: Security and Surveillance Dimensions Discussion
16:00-16:30	Tea Break
16:30-17:30	Session 4: Aadhaar - International Dimensions Joshita Pai, Center for Communication Governance, National Law University, Delhi - Biometrics and Mandatory IDs in Other Parts of the World Dr. Gopal Krishna, Citizens Forum for Civil Liberties - International Dimensions of Aadhaar Discussion
17:30-18:00	High Tea

May 27, 2016

9:30-11:00	Session 5: Privacy, Surveillance and Ethical Dimensions of Aadhaar Prabir Purkayastha, Free Software Movement of India, New Delhi - Surveillance Capitalism and the Commodification of Personal Data Arjun Jayakumar, SFLC - Surveillance Projects Amalgamated Col Mathew Thomas, Bengaluru - The Deceit of Aadhaar Discussion
11:00-11:30	Tea Break
11:30-13:00	Session 6: Aadhaar - Broad Issues I Prof. G Nagarjuna, Homi Bhabha Center for Science Education, Tata Institute of Fundamental Research, Mumbai - How to prevent linked data in the context of Aadhaar Dr. Anupam Saraph, Pune - Aadhaar and Moneylaundering Discussion
13:00-14:00	Lunch
14:00-15:30	Session 7: Aadhaar - Broad Issues II Prof. MS Sriram, Visiting Faculty, Indian Institute of Management, Bangalore - Financial lnclusion Nikhil Dey, MKSS, Rajasthan - Field witness: Technology on the Ground Prof. Himanshu, Centre for Economic Studies & Planning, JNU - UID Process and Financial Inclusion Discussion
15:30-16:00	Session 8: Conclusion
16:00-18:00	Informal Meetings

Annexure B – Workshop Participants

Anjali Bhardwaj, Satark Nagrik Sangathan

Dr. Anupam Saraph

Arjun Jayakumar, Software Freedom Law Centre

Ashok Rao, Delhi Science Forum

Prof. Chinmayi Arun, National Law University, Delhi

Prof. Dinesh Abrol, Jawaharlal Nehru University

Prof. G Nagarjuna, Homi Bhabha Center for Science Education, Tata Institute of Fundamental Research, Mumbai

Dr. Gopal Krishna, Citizens Forum for Civil Liberties

Prof. Himanshu, Jawaharlal Nehru University

Japreet Grewal, the Centre for Internet and Society

Joshita Pai, National Law University, Delhi

Malini Chakravarty, Centre for Budget and Governance Accountability

Col. Mathew Thomas

Prof. MS Sriram, Indian Institute of Management, Bangalore

Nikhil Dey, Mazdoor Kisan Shakti Sangathan

Prabir Purkayastha, Knowledge Commons and Free Software Movement of India

Pukhraj Singh, Bhujang

Rajiv Mishra, Jawaharlal Nehru University

Prof. R Ramakumar, Tata Institute of Social Sciences, Mumbai

Dr. Reetika Khera, Indian Institute of Technology, Delhi

Dr. Ritajyoti Bandyopadhyay, Indian Institute of Science Education and Research, Mohali

S. Prasanna, Advocate

Sanjay Kumar, Science Journalist

Sharath, Software Freedom Law Centre

Shivangi Narayan, Jawaharlal Nehru University

Prof. Subhashis Banerjee, Indian Institute of Technology, Delhi

Sumandro Chattapadhyay, the Centre for Internet and Society

Dr. Usha Ramanathan, Legal Researcher

Note: This list is only indicative, and not exhaustive.

[1] Civil Appeal No. 4853 of 2014

[2] WP(C) 494/2012

[3] . WP(C) 829/2013

[4] WP(C) 833/2013

[5] WP (C) 37/2015; (Earlier intervened in the Aruna Roy petition in 2013)

[6] WP (C) 932/2015

[7] Transferred from Madras HC 2013.

[8] SLP (Crl) 2524/2014 filed against the order of the Goa Bench of the Bombay HC in CRLWP 10/2014 wherein the High Court had directed UIDAI to share biometric information held by them of all residents of a particular place in Goa to help with a criminal investigation in a case involving charges of rape and sexual assault.

[9] See :http://scroll.in/article/806243/rajasthan-presses-on-with-aadhaar-after-fingerprint-readers-fail-well-buy-iris-scanners

For more details visit https://cis-india.org/internet-governance/blog/report-on-understanding-aadhaar-and-its-new-challenges

Extending Aadhaar to more areas is a hare-brained idea, it should be dropped

praskrishna — 2016-08-24T03:05:01Z

News reports that the mandatory use of Aadhaar could be extended to a host of new areas are extremely disturbing. According to these reports, the Unique Identification Authority of India (UIDAI) has identified 20 new areas for which Aadhaar can be made mandatory. This includes registration of companies and NGOs, insurance, competitive examinations and property and vehicle registration.

The article by Seetha was published in First Post on August 23, 2016. CIS article by Pranesh Prakash and Amber Sinha was quoted.

If this happens, then it confirms the worst suspicions of all those who are opposed to Aadhaar – and this spans ideological divides – that it can be used to seriously compromise individual privacy.

A villager scanning fingerprint for Aadhaar. Reuters file photo

The defenders of Aadhaar – mainly the previous and current governments, the UIDAI and Nandan Nilekani, the father of the Aadhaar – have always argued that these concerns are exaggerated. They have pointed out that Aadhaar does not take any details that are not already in the public domain – name, date of birth and permanent address – and that the biometric data is not shared with any of the authorities that seek verification by Aadhaar. That data remains with the UIDAI and it only confirms that a person with a particular Aadhaar number is who he claims he is.

But Aadhaar’s opponents have argued that the extensive use of Aadhaar allows disparate bits of information to be linked and this could become a genuine concern if this hare-brained idea gets official approval.

Now, there is certainly no doubt that Aadhaar is, in the absence of anything better, the best technological tool for establishing identity. It is not entirely fool-proof – there are issues relating to the fingerprints of manual labourers and iris scan of aged people or those with cataract – a solution needs to be found for this. According to this report by the Centre for Internet and Society, there was fingerprint authentication failure in 290 of 790 ration card holders in Andhra Pradesh who did not lift rations, and there was an ID mismatch in 93 instances. These problems notwithstanding, there is no denying that Aadhaar has helped in significantly containing (perhaps not entirely eliminating) the problem of identity theft for diversion of government doles and other benefits.

So making Aadhaar compulsory for such cases is perfectly justifiable. Indeed, the Act giving legal status to Aadhaar is called Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Mandatory quoting of Aadhaar can even be justified in the cases where duplication or falsification of identity can be used by criminals or those who fall foul of the law. Passports, for example, can be brought under the ambit of Aadhaar. Or even driving licences. A person whose licence has been suspended for repeated traffic violations should not be allowed to get another one under the same name or an assumed name.

But why should it be mandatory for bank accounts, if an individual is not interested in getting government doles? The quoting of Aadhaar for property transactions also does not make sense. If the idea is to prevent fraudulent transactions, it will not be foolproof. A person intending to sell an already sold property or one he does not own can do so even with an Aadhaar number, since people are allowed to own more than one piece of property. What will prevent this from happening is compulsory registration and digitisation of records as well as mandatory property titling; there has been little progress on both.

When filing of income tax returns is not possible without a PAN, there is little rationale for making Aadhaar mandatory for filing returns and even for PAN. It is not clear how quoting of Aadhaar is going to help in ensuring that fly-by-night companies and NGOs do not get established.

The insistence of Aadhaar on purchase of vehicles, landline and mobile phone connections and demat accounts is seriously violative of individual privacy and has enormous potential for misuse. The Act does give the government unbridled power to access data in the name of national security. This itself is worrying, since it can allow security agencies to go an random fishing expeditions to access personal financial transactions. Making it mandatory for even buying cars and phone connections (even though it is not illegal to own more than one vehicle or telephone connection) makes it even riskier – private agencies get access to one’s Aadhaar number. Forget security agencies, even unscrupulous private persons can track an individual’s personal activities, especially financial transactions.

As it is, investigating agencies want to tap Aadhaar and biometric data at the drop of a hat. The UIDAI had to approach the Supreme Court in 2014 against a Goa High Court order ordering it to share biometric details of everyone enrolled in the state for solving a gang rape case. Even after the Supreme Court ruled in favour of UIDAI, a Kerala special investigation team wanted it to share biometric details to solve another rape case. If Aadhaar now becomes mandatory for a host of financial and other transactions, the points of potential privacy breaches only increase.

The move to extend the mandatory use of Aadhaar has to be stopped in its tracks. The mandatory use should be limited to delivery of government welfare benefits and doles (after ensuring that glitches are eliminated) and security-related services like passports. For everything else, it should be purely voluntary. There can be no compromise on this.

For more details visit https://cis-india.org/internet-governance/news/first-post-august-23-2016-seetha-extending-aadhaar-to-more-areas-is-a-hare-brained-idea-it-should-be-dropped

Policy Brief on the Report of the UN Group of Governmental Experts on ICT

Elonnai Hickok and Vipul Kharbanda — 2016-08-23T15:37:05Z

In light of the complex challenges and threats posed to, and by, the field of information telecommunications in cyberspace, in 1998 the draft resolution in the First Committee of the UN General Assembly was introduced and adopted without a vote (A/RES/53/70) ]. Since then, the Secretary General to the General Assembly has invited annual reports on the issue.

The most recent report, Developments in the Field of Information and Telecommunications in the Context of International Security, was published in June 2015. The 2015 Report touches upon a number of issues, including international cooperation, norms and principles for responsible state behavior, confidence building measures cross border exchange of information, and capacity building measures.

Annual reports will continue to be accepted by the General Assembly, and the 2016/2017 Group of Governmental Experts will have it's first meeting in August 2016. India was a member of the Group of Governmental Experts in 2013.

The Centre for Internet and Society (CIS) has written an article analyzing India’s alignment with the recommendations of the report of the Group of Governmental Experts. This policy brief attempts to articulate the major policy actions that may be considered by India to further incorporate and implement the principles enunciated in the Report.

CIS believes that the report of the Group of Governmental Experts provides important minimum standards that countries could adhere to in light of challenges to international security posed by ICT developments. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Governmental Experts and similar international forums are useful and important forums for India to continue to actively engage with.

Below are our specific recommendations:

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

India has entered into treaties on ICT issues with countries such as Belarus, Canada, China, Egypt, and France. Additionally, India’s IT Act addresses a number of the cyber crimes listed in the Budapest Convention. However, India is not yet a signatory to the Convention. This leaves scope for India to consider further forums and means of international cooperation to better realise this principle.

India has been invited to accede to the Budapest Convention in the past but for various tactical and political reasons has not yet agreed to do so. Although whether to accede to an International Convention or not is usually a well discussed and thought out policy decision of the diplomatic core of a country, the mutual assistance framework, however flawed it may be, would offer a better opportunity for India for international cooperation for increasing the stability and security of ICTs and prevent harmful ICT practices as envisaged in the Report of the Group of Governmental Experts.

(b) In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution [of cybercrime] in the ICT environment and the nature and extent of the consequences;

While the Department of Electronics and Information Technology (DEITY) as well as the Computer Emergency Response Team, India (CERT-In) have a number of policies which talk about maintaining security and means of addressing threats in the ICT environment, most ICT incidents, crimes or illegal activities using ICT, unless they involve large or government institutions, are handled by the regular police establishment of the country. The lack of capacity, both in terms of infrastructure and skill, of the regular police to adequately address most cyber crimes is an area that needs to be strengthened. The need for cyber security capacity building in India was highlighted in 2015 by the Standing Committee on Information Technology. It would be useful for dedicated cyber crime departments to be established in all districts. This would be a step in the right direction to provide the requisite capacity and resources to deal with the various technical issues such as attribution, jurisdiction, etc. arising out of ICT incidents.

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

Owing to the growing irrelevance of physical and political borders in the age of globally networked devices, one of the most important issues arising out of ICTs and cyber crimes is the need for greater and more efficient exchange of information between nations. It has been widely accepted that sharing of information on a regular and sustained basis between nation states would be a very important tool. Limitations in the traditional mechanisms (MLATs, Letters Rogatory, etc.) such as the delay in accessing the information as well as denial of access due to differences in legal standards, present hurdles to the efficacy of law enforcement agencies only emphasize the urgency of developing a new mechanism of international information sharing that would be able to deal with ICT incidents, while at the same time protecting the freedoms and privacy rights of the citizens of the world. Exploration and participation in dialogues and solutions that are evolving at the international level around cross border sharing of information is key.

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

While the National Electronics Policy of 2012 states that the government should mandate technical and safety standards in order to curb the inflow of sub-standard and unsafe electronic products, the government is yet to mandate any broad standards in the Indian market for ICT equipment. Considering the enormous security implications of compromised ICT this is an area where the government should prioritize and must act immediately. Mandating standards may require the establishment of a monitoring or enforcement mechanism to ensure that the standards are being implemented. This should be done with the aim of ensuring security while not hindering innovation or the flow of business. To achieve such a balance, research and discussion is needed within the government to formulate a mechanism which would ensure the safety and quality of ICT tools while at the same time ensuring that industry is not hindered.

Conclusion

The suggestions given above are some of the major lessons from the analysis of the UN Report on ICT which CIS believe the government of India could adopt and pursue to strengthen its enlightenment with the recommendations of the Report. It is also imperative that the Government of India continues to realise the importance of the work being done by the Group of Governmental Experts and take measures to ensure that a representative from India is included in future Groups. Meanwhile, India can take positive steps by strengthening domestic privacy safeguards, improving transparency and efficiency of relevant policies and processes, and looking towards solutions that respect rights and strengthen security.

For more details visit https://cis-india.org/internet-governance/blog/policy-brief-on-the-report-of-the-un-group-of-governmental-experts-on-ict

UIDAI and Welfare Services: Exclusion and Countermeasures (Bangalore, August 27)

sumandro — 2016-08-22T13:25:03Z

The Centre for Internet and Society (CIS) invites you to a one day workshop, on Saturday, August 27, 2016, to discuss, raise awareness of, and devise countermeasures to exclusion due to implementation of UID-based verification for and distribution of welfare services. We look forward to making this a forum for knowledge exchange and a learning opportunity for our friends and colleagues.

Invitation

Download (PDF)

Venue

Institution of Agricultural Technologists, No. 15, Queen’s Road, Bangalore, 560 052.

Location on Google Map: https://www.google.com/maps/place/Institution+of+Agricultural+Technologists/.

Agenda

10:00-10:30 Tea and Coffee

10:30-11:00 Introductions and Updates from Delhi Workshop

11:00-12:45 Reconfiguration of Welfare Governance by UIDAI

12:45-14:00 Lunch

14:00-15:00 Updates on Ongoing Cases against UIDAI

15:00-15:15 Tea and Coffee

15:15-16:45 Open Discussion on Countering Welfare Exclusion

16:45-17:00 Tea and Coffee

For more details visit https://cis-india.org/internet-governance/events/uidai-and-welfare-services-exclusion-and-countermeasures-aug-27