Centre for Internet and Society

Concerns Regarding DNA Law

bhairav — 2013-10-29T10:09:26Z

Recently, a long government process to draft a law to permit the collection, processing, profiling, use and storage of human DNA is nearing conclusion. There are several concerns with this government effort. Below, we present broad-level issues to be kept in mind while dealing with DNA law.

Background

The Department of Biotechnology released, in 29 April 2012, a working draft of a proposed Human DNA Profiling Bill, 2012 ("DBT Bill") for public comments. The draft reveals an effort to (i) permit the collection of human blood, tissue and other samples for the purpose of creating DNA profiles, (ii) license private laboratories that create and store the profiles, (iii) store the DNA samples and profiles in various large databanks in a number of indices, and (iv) permit the use of the completed DNA profiles in scientific research and law enforcement. The regulation of human DNA profiling is of significant importance to the efficacy of law enforcement and the criminal justice system and correspondingly has a deep impact on the freedoms of ordinary citizens from profiling and monitoring. Below, we highlight five important concerns to bear in mind before drafting and implementing DNA legislation.

Primary Issues

Purpose of DNA Profiling

DNA profiling serves two broad purposes – (i) forensic – to establish unique identity of a person in the criminal justice system; and, (ii) research – to understand human genetics and its contribution to anthropology, biology and other sciences. These two purposes have very different approaches to DNA profiling and the issues and concerns attendant on them vary accordingly. Forensic DNA profiling is undertaken to afford either party in a criminal trial a better possibility of adducing corroborative evidence to prosecute, or to defend, an alleged offence. DNA, like fingerprints, is a biometric estimation of the individuality of a person. By itself, in the same manner that fingerprint evidence is only proof of the presence of a person at a particular place and not proof of the commission of a crime, DNA is merely corroborative evidence and cannot, on its own strength, result in a conviction or acquittal of an offence. Therefore, DNA and fingerprints, and the process by which they are collected and used as evidence, should be broadly similar.

Procedural Integrity

Forensic DNA profiling results from biological source material that is usually collected from crime scenes or forcibly from offenders and convicts. Biological source material found at a crime scene is very rarely non-contaminated and the procedure by which it is collected and its integrity ensured is of primary legislative importance. To avoid the danger of contaminated crime scene evidence being introduced in the criminal justice system to pervert the course of justice, it is crucial to ensure that DNA is collected only from intact human cells and not from compromised genetic material. Therefore, if the biological source material found at a crime scene does not contain at least one intact human cell, the whole of the biological source material should be destroyed to prevent the possibility of compromised genetic material being collected to yield inconclusive results. Adherence to this basic principle will obviate the possibility of partial matches of DNA profiles and the resulting controversy and confusion that ensues.

Conditions of Collection

In India, the taking of fingerprints is chiefly governed by the Identification of Prisoners Act, 1920 ("Prisoners Act") and section 73 of the Indian Evidence Act, 1872 ("Evidence Act"). The Prisoners Act permits the forcible taking of fingerprints from convicts and suspects in certain conditions. The Evidence Act, in addition, permits courts to require the taking of fingerprints for the forensic purpose of establishing unique identity in a criminal trial. No
provisions exist for consensual taking of fingerprints, presumably because of the danger of self-incrimination and general privacy concerns. Since, as discussed earlier, fingerprints and DNA are biometric measurements that should be treated equally to the extent possible, the conditions for the collection of DNA should be similar to those for the taking of fingerprints.Accordingly, there should be no legal provisions that enable other kinds of collection, including from volunteers and innocent people.

Retention of DNA

As a general rule applicable in India, the retention of biometric measurements must be supported by a clear purpose that is legitimate, judicially sanctioned and transparent. The Prisoners Act, which permits the forcible taking of fingerprints from convicts, also mandates the destruction of these fingerprints when the person is acquitted or discharged. The indefinite collection of biometric measurements of people is dangerous, susceptible to abuse and invasive of civil rights. Therefore, once lawfully collected from crime scenes and offenders, their DNA profiles must be retained in strictly controlled databases with highly restricted access for the forensic purpose of law enforcement only. DNA should not be held in databases that allow non-forensic use. Further, the indices within these databases should be watertight and exclusive of each other.

DNA Laboratories

The process by which DNA profiles are created from biological source material is of critical importance. Because of the evidentiary value of DNA profiles, the laboratories in which these profiles are created must be properly licensed, professionally managed and manned by competent and impartial personnel. Therefore, the process by which DNA laboratories are licensed and permitted to operate is significant.

For more details visit https://cis-india.org/internet-governance/blog/concerns-regarding-dna-law

The India Privacy Monitor Map

maria — 2013-10-09T16:26:14Z

The Centre for Internet and Society has started the first Privacy Watch in India! Check out our map which includes data on the UID, NPR and CCTNS schemes, as well as on the installation of CCTV cameras and the use of drones throughout the country.

In a country of twenty-eight diverse states and seven union territories, it remained unclear to what extent surveillance, biometric and other privacy-intrusive schemes are being implemented. We are trying to make up for this by mapping out data in every single state in India on the UID, CCTNS and NPR schemes, as well as on the installation of CCTV cameras and the use of Unmanned Aerial Vehicles (UAVs), otherwise known as drones.

In particular, the map in its current format includes data on the following:

UID: The Unique Identification Number (UID), also known as AADHAAR, is a 12-digit unique identification number which the Unique Identification Authority of India (UIDAI) is currently issuing for all residents in India (on a voluntary basis). Each UID is stored in a centralised database and linked to the basic demographic and biometric information of each individual. The UIDAI and AADHAAR currently lack legal backing.

NPR: Under the National Population Register (NPR), the demographic data of all residents in India is collected on a mandatory basis. The Unique Identification Authority of India (UIDAI) supplements the NPR with the collection of biometric data and the issue of the AADHAAR number.

CCTV: Closed-circuit television cameras which can produce images or recordings for surveillance purposes.

UAV: Unmanned Aerial Vehicles (UAVs), otherwise known as drones, are aircrafts without a human pilot on board. The flight of a UAV is controlled either autonomously by computers in the vehicle or under the remote control of a pilot on the ground or in another vehicle. UAVs are used for surveillance purposes.

CCTNS: The Crime and Criminal Tracking Networks and Systems (CCTNS) is a nationwide networking infrastructure for enhancing efficiency and effectiveness of policing and sharing data among 14,000 police stations across India.

Our India Privacy Monitor Map can be viewed through the following link: http://cis-india.org/cisprivacymonitor

This map is part of on-going research and will hopefully expand to include other schemes and projects which are potentially privacy-intrusive. We encourage all feedback and additional data!

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

Re: The Human DNA Profiling Bill, 2012

bhairav — 2013-10-29T10:00:47Z

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated drafted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India, which seeks to collect human DNA samples, profile them and store them. These comments are made clause-by-clause against the DBT Bill.

Note: Clause-by-clause comments on the Working Draft version of April 29, 2012 from the Centre for Internet and Society

This short note speaks to legal issues arising from the proposed Human DNA Profiling Bill, 2012 ("DBT Bill") that was circulated within the Experts Committee constituted under the aegis of the Department of Biotechnology of the Ministry of Science and Technology, Government of India.
This note must be read against the relevant provisions of the DBT Bill and, where indicated, together with the proposed Forensic DNA Profiling (Regulation) Bill, 2013 that was drafted by the Centre for Internet & Society, Bangalore ("CIS Bill"). These comments must also be read alongside the two-page submission titled “A Brief Note on the Forensic DNA Profiling (Regulation) Bill, 2013” ("CIS Note"). Whereas the aforesaid CIS Note raised issues that informed the drafting of the CIS Bill, this present note seeks to provide legal comments on the DBT Bill.
Preamble
The DBT Bill, in its current working form, lacks a preamble. No doubt, a preamble will be added later once the text of the DBT Bill is finalised. Instead, the DBT Bill contains an introduction. It must be borne in mind that the purpose of the legislation should be spelt out in the preamble since preambular clauses have interpretative value. [See, A. Thangal Kunju Musaliar AIR 1956 SC 246; Burrakur Coal Co. Ltd. AIR 1961 SC 954; and Arnit Das (2000) 5 SCC 488]. Hence, a preamble that states the intent of Parliament to create permissible conditions for DNA source material collection, profiling, retention and forensic use in criminal trials is necessary.
Objects Clause
An ‘objects clause,’ detailing the intention of the legislature and containing principles to inform the application of a statute, in the main body of the statute is an enforceable mechanism to give directions to a statute and can be a formidable primary aid in statutory interpretation. [See, for example, section 83 of the Patents Act, 1970 that directly informed the Order of the Controller of Patents, Mumbai, in the matter of NATCO Pharma and Bayer Corporation in Compulsory Licence Application No. 1 of 2011.] Therefore, the DBT Bill should incorporate an objects clause that makes clear that (i) the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimisation must be adhered to at all times; (ii) DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity; (iii) all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA; (iv) centralised databases are inherently dangerous because of the volume of information that is at risk; (v) forensic DNA profiling is intended to have probative value; therefore, if there is any doubt regarding a DNA profile, it should not be received in evidence by a court; (vi) once adduced, the evidence created by a DNA profile is only corroborative and must be treated on par with other biometric evidence such as fingerprint measurements.
Definitions
The definition of “analytical procedure” in clause 2(1)(a) of the DBT Bill is practically redundant and should be removed. It is used only twice – in clauses 24 and 66(2)(p) which give the DNA Profiling Board the power to frame procedural regulations. In the absence of specifying the content of any analytical procedure, the definition serves no purpose.
The definition of “audit” in clause 2(1)(b) is relevant for measuring the training programmes and laboratory conditions specified in clauses 12(f) and 27. However, the term “audit” is subsequently used in an entirely different manner in Chapter IX which relates to financial information and transparency. This is a conflicting definition. The term “audit” has a well-established use for financial information that does not require a definition. Hence, this definition should be removed.
The definition of “calibration” in clause 2(1)(d) is redundant and should be removed since the term is not meaningfully used in the DBT Bill.
The definition of “DNA Data Bank” in clause 2(1)(h) is unnecessary. The DBT Bill seeks to establish a National DNA Data Bank, State DNA Data Banks and Regional DNA Data Banks vide clause 32. These national, state and regional databases must be defined individually with reference to their establishment clauses. Defining a “DNA Data Bank”, exclusive of the national, state and regional databases, creates the assumption that any private individual can start and maintain a database. This is a drafting error.
The definition of “DNA Data Bank Manager” in clause 2(1)(i) is misleading since, in the text of the DBT Bill, it is only used in relation to the proposed National DNA Data Bank and never in relation to the State and Regional Data Banks. If it is the intention of DBT Bill that only the national database should have a manager, the definition should be renamed to ‘National DNA Data Bank Manager’ and the clause should specifically identify the National DNA Data Bank. This is a drafting error.
The definition of “DNA laboratory” in clause 2(1)(j) should refer to the specific clauses that empower the Central Government and State Governments to license and recognise DNA laboratories. This is a drafting error.
The definition of “DNA profile” in clause 2(1)(l) is too vague. Merely the results of an analysis of a DNA sample may not be sufficient to create an actual DNA profile. Further, the results of the analysis may yield DNA information that, because of incompleteness or lack of information, is inconclusive. These incomplete bits of information should not be recognised as DNA profiles. This definition should be amended to clearly specify the contents of a complete and valid DNA profile that contains, at least, numerical representations of 17 or more loci of short tandem repeats that are sufficient to estimate biometric individuality of a person.
The definition of “forensic material” in clause 2(1)(o) needs to be amended to remove the references to intimate and non-intimate body samples. If the references are retained, then evidence collected from a crime scene, where an intimate or non-intimate collection procedure was obviously not followed, will not fall within the scope of “forensic material”.
The terms “intimate body sample” and “non-intimate body sample” that are defined in clauses 2(1)(q) and 2(1)(v) respectively are not used anywhere outside the definitions clause except for an inconsequential reference to non-intimate body samples only in the rule-making provision of clause 66(2)(zg). “Intimate body sample” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The terms “intimate forensic procedure” and “non-intimate forensic procedure”, that are defined in clauses 2(1)(r) and 2(1)(w) respectively, are not used anywhere except for an inconsequential reference of non-intimate forensic procedure in the rule-making provision of clause 66(2)(zg). “Intimate forensic procedure” is not used anywhere outside the definitions clause. Both these definitions are redundant and should be removed.
The term “known samples” that is defined in clause 2(1)(s) is not used anywhere outside the definitions clause and should be removed for redundancy.
The definition of “offender” in clause 2(1)(y) if vague because it does not specify the offences for which an “offender” need be convicted. It is also linked to an unclear definition of the term “undertrial”, which does not specify the nature of pending criminal proceedings and, therefore, could be used to describe simple offences such as, for example, failure to pay an electricity bill, which also attracts criminal penalties.
The term “proficiency testing” that is defined in clause 2(1)(zb) is not used anywhere in the text of the DBT Bill and should be removed.
The definitions of “quality assurance”, “quality manual” and “quality system” serve no enforceable purpose since they are used only in relation to the DNA Profiling Board’s rule-making powers under clauses 18 and 66. Their inclusion in the definitions clause is redundant. Accordingly, these definitions should be removed.
The term “suspect” defined in clause 2(1)(zi) is vague and imprecise. The standard by which suspicion is to be measured, and by whom suspicion may be entertained – whether police or others, has not been specified. The term “suspect” is not defined in either the Code of Criminal Procedure, 1973 ("CrPC") or the Indian Penal Code, 1860 ("IPC").
The DNA Profiling Board
Clause 3 of the DBT Bill, which provides for the establishment of the DNA Profiling Board, contains a sub-clause (2) which vests the Board with corporate identity. This vesting of legal personality in the DNA Profiling Board – when other boards and authorities, even ministries and independent departments, and even the armed forces do not enjoy this function – is ill-advised and made without sufficient thought. Bodies corporate may be corporations sole – such the President of India, or corporations aggregate – such as companies. The intent of corporate identity is to create a fictional legal personality where none previously existed in order for the fictional legal personality to exist apart from its members, enjoy perpetual succession and to sue in its own legal name. Article 300 of the Constitution of India vests the Central Government with legal personality in the legal name of the Union of India and the State Governments with legal personality in the legal names of their respective states. Apart from this constitutional dispensation, some regulatory authorities, such as the Telecom Regulatory Authority of India ("TRAI") and the Securities and Exchange Board of India ("SEBI") have been individually vested with legal personalities as bodies corporate to enable their autonomous governance and independent functioning to secure their ability to free, fairly and impartially regulate the market free from governmental or private collusion. Similarly, some overarching national commissions, such as the Election Commission of India and the National Human Rights Commission ("NHRC") have been vested with the power to sue and be sued in their own names. In comparison, the DNA Profiling Board is neither an independent market regulator nor an overarching national commission with judicial powers. There is no legal reason for it to be vested with a legal personality on par with the Central Government or a company. Therefore, clause 3(2) should be removed.
The size and composition of the Board that is staffed under clause 4 is extremely large. Creating unwieldy and top-heavy bureaucratic authorities and investing them with regulatory powers, including the powers of licensing, is avoidable. The DBT Bill proposes to create a Board of 16 members, most of them from a scientific background and including a few policemen and one legal administrator. In its present form, the Board is larger than many High Courts but does not have a single legal member able to conduct licensing. Drawing from the experiences of other administrative and regulatory bodies in India, the size of the Board should be drastically reduced to no more than five members, at least half of whom should be lawyers or ex-judges. The change in the legal composition of the Board is necessary because the DBT Bill contemplates that it will perform the legal function of licensing that must obey basic tenets of administrative law. The current membership may be viable only if the Board is divested of its administrative and regulatory powers and left with only scientific advice functions. Moreover, stacking the Board with scientists and policemen appears to ignore the perils that DNA collection and retention pose to the privacy of ordinary citizens and their criminal law rights. The Board should have adequate representation from the human rights community – both institutional (e.g NHRC and the State Human Rights Commissions) and non-institutional (well-regarded and experienced human rights activists). The Board should also have privacy advocates.
Clauses 5(2) and 5(3) establish an unequal hierarchy within the Board by privileging some members with longer terms than others. There is no good reason for why the Vice-Chancellor of a National Law University, the Director General of Police of a State, the Director of a Central Forensic Science Laboratory and the Director of a State Forensic Science Laboratory should serve membership terms on the Board that are longer than those of molecular biologists, population geneticists and other scientists. Such artificial hierarchies should be removed at the outset. The Board should have one pre-eminent chairperson and other equal members with equal terms.
The Chairperson of the Board, who is first mentioned in clause 5(1), has not been duly and properly appointed. Clause 4 should be modified to mention the appointment of the Chairperson and other Members.
Clause 7 deals with the issue of conflict of interest in narrow cases. The clause requires members to react on a case-by-case basis to the business of the Board by recusing themselves from deliberations and voting where necessary. Instead, it may be more appropriate to require members to make a full and public disclosures of their real and potential conflicts of interest, and then granting the Chairperson the power to prevent such members from voting on interested matters. Failure to follow these anti-collusion and anti-corruption safeguards should attract criminal penalties.
Clause 10 anticipates the appointment of a Chief Executive Officer of the Board who shall be a serving Joint Secretary to the Central Government. Clause 10(3) further requires this officer to be scientist. This may not be possible because the administrative hierarchy of the Central Government may not contain a genetic scientist.
The functions of the Board specified in clause 12 are overbroad. Advising ministries, facilitating governments, recommending the size of funds and so on – these are administrative and governance functions best left to the executive. Once the Board is modified to have sufficient legal and human rights representation, then the functions of the Board can non-controversially include licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority.
DNA Laboratories
The provisions of Chapters V and VI may be simplified and merged.
DNA Data Banks
The creation of multiple indices in clause 32(4) cannot be justified and must be removed. The collection of biological source material is an invasion of privacy that must be conducted only in strict conditions when the potential harm to individuals is outweighed by the public good. This balance may only be struck when dealing with the collection and profiling of samples from certain categories of offenders. The implications of collecting and profiling DNA samples from corpses, suspects, missing persons and others are vast and have either not been properly understood or deliberately ignored. At this moment, the forcible collection of biological source material should be restricted to the categories of offenders mentioned in the Identification of Prisoners Act, 1920 ("Prisoners Act") with a suitable addition for persons arrested in connection with certain specified terrorism-related offences. Therefore, databases should contain only an offenders’ index and a crime scene index.
Clause 32(6), which requires the names of individuals to be connected to their profiles, and hence accessible to persons connected with the database, should be removed. DNA profiles, once developed, should be anonymised and retained separate from the names of their owners.
Clause 36, which allows international disclosures of DNA profiles of Indians, should be removed immediately. Whereas an Indian may have legal remedies against the National DNA Data Bank, he/she certainly will not be able to enforce any rights against a foreign government or entity. This provision will be misused to rendition DNA profiles abroad for activities not permitted in India. Similarly, as in data protection regimes around the world, DNA profiles should remain within jurisdictions with high privacy and other legal standards.
Use
The only legitimate purpose for which DNA profiles may be used is for establishing the identity of individuals in criminal trials and confirming their presence or absence from a certain location. Accordingly, clauses 39 and 40 should be re-drafted to specify this sole forensic purpose and also specify the manner in which DNA profiles may be received in evidence. For more information on this point, see the relevant provisions of the CIS Note and the CIS Bill.
The disclosure of DNA profiles should only take place to a law enforcement agency conducting a valid investigation into certain offences and to courts currently trying the individuals to whom the DNA profiles pertains. All other disclosures of DNA profiles should be made illegal. Non-consensual disclosure of DNA profiles for the study of population genetics is specifically illegal. The DBT Bill does not prescribe stringent criminal penalties and other mechanisms to affix individual liability on individual scientists and research institutions for improper use of DNA profiles; it is therefore open to the criticism that it seeks to sacrifice individual rights of persons, including the fundamental right to privacy, without parallel remedies and penalties. Clause 40 should be removed in entirety.
Clause 43 should be removed in entirety. This note does not contemplate the retention of DNA profiles of suspects and victims, except as derived from a crime scene.
Clause 45 sets out a post-conviction right related to criminal procedure and evidence. This would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights. However, courts may re-try cases in certain narrow cases when fresh evidence is brought forth that has a nexus to the evidence upon which the person was convicted and if it can be proved that the fresh evidence was not earlier adduced due to bias. Any other fresh evidence that may be uncovered cannot prompt a new trial. Clause 45 is implicated by Article 20(2) of the Constitution of India and by section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721].

For more details visit https://cis-india.org/internet-governance/blog/re-the-human-dna-profiling-bill-2012

Privacy Meet

praskrishna — 2013-11-20T05:13:57Z

Bhairav Acharya was invited by Yahoo's Director of International Privacy, Laura Juanes Micas, to a dinner meeting on privacy at the Oberoi in New Delhi.

The meeting was attended by Justice A.P. Shah, Dr. Gulshan Rai, Dr. Kamlesh Bajaj and others. At this event, Bhairav spoke about the need to develop laws to regulate surveillance and personal data in India. Bhairav further spoke about both the commercial benefits that will accrue from data protection law as well as the national benefit from surveillance regulation and security law. Bhairav also spoke of the need to create a procedure that is just, fair and reasonable and, he highlighted the point that these laws would have to survive constitutional scrutiny by the Supreme Court of India. He also pointed out that meaningful protections lay in creating procedural law that allowed individuals the protection of natural justice and identified magistrates to authorise data collections and interceptions. He further made it clear that India's distinct security situation, both internal and external, warranted a robust surveillance framework that enables law enforcement and strengthens the criminal justice system in manner consistent with the rule of law.

Timings	Agenda
19.00 19.25	Handshakes and Introduction
19.25 19.30	Welcome Remarks by Laura Juanes Micas, Director – International Privacy, Yahoo Inc
19.30 19.35	Address by Manoj Joshi, Joint Secretary, Deptt of Personnel and Training
19.35 19.40	Address by Dr. Gulshan Rai, Director General, CERT-IN
19.40 19.45	Address by Dr. Kamlesh Bajaj, CEO – Data Security Council of India (DSCI)
19.45 19.50	Address by Bhairav Acharya, Legal Adviser, Centre for Internet and Society (CIS)
19.50 19.55	Address by Rajan Mathews, Director General, Cellular Operators Association of India (COAI)
19.55 20.00	Address by Justice A P Shah, Former Chief Justice, Delhi High Court and Chairman, Group of Experts
20.00 20.05	Address by Pavan Duggal, Advocate, Supreme Court
20.05 20.10	Address by Chinmayi Arun, Research Director – Centre for Communication Governance, National Law University - Delhi
20.10 20.15	Address by Prasanth Sugathan, Counsel, Software Freedom Law Centre (SFLC.IN)
20.15 20.20	Address by Dr. Subho Ray, President, Internet and Mobile Association of India (IAMAI)
20.20	Discussions (Along with Sit – Down Dinner)

For more details visit https://cis-india.org/news/privacy-meet-october-7-2013

An Analysis of the Cases Filed under Section 46 of the Information Technology Act, 2000 for Adjudication in the State of Maharashtra

bhairav — 2013-10-01T15:29:46Z

This is a brief review of some of the cases related to privacy filed under section 46 of the Information Technology Act, 2000 ("the Act") seeking adjudication for alleged contraventions of the Act in the State of Maharashtra.

Background

Section 46 of the Act grants the Central Government the power to appoint an adjudicating officer to hold an enquiry to adjudge, upon complaints being filed before that adjudicating officer, contraventions of the Act. The adjudicating officer may be of the Central Government or of the State Government [see section 46(1) of the Act], must have field experience with information technology and law [see section 46(3) of the Act] and exercises jurisdiction over claims for damages up to `5,00,00,000 [see section 46(1A) of the Act]. For the purpose of adjudication, the officer is vested with certain powers of a civil court [see section 46(5) of the Act] and must follow basic principles of natural justice while conducting adjudications [see section 46(2) of the Act]. Hence, the adjudicating officer appointed under section 46 is a quasi-judicial authority.

In addition, the quasi-judicial adjudicating officer may impose penalties, thereby vesting him with some of the powers of a criminal court [see section 46(2) of the Act], and award compensation, the quantum of which is to be determined after taking into account factors including unfair advantage, loss and repeat offences [see section 47 of the Act]. The adjudicating officer may impose penalties for any of the offences described in section 43, section 44 and section 45 of the Act; and, further, may award compensation for losses suffered as a result of contraventions of section 43 and section 43A. The text of these sections is reproduced in the Schedule below. Further law as to the appointment of the adjudicating officer and the procedure attendant on all adjudications was made by Information Technology (Qualification and Experience of Adjudicating Officers and the Manner of Holding Enquiry) Rules, 2003.[1]

It is clear that the adjudicating officer is vested with significant judicial powers, including the power to enforce certain criminal penalties, and is an important quasi-judicial authority.

Excursus

At the outset, it is important to understand the distinction between compensation and damages. Compensation is a sum of money awarded by a civil court, before or along with the primary decree, to indemnify a person for injury or loss. It is usually awarded to a person who has a suffered a monetary loss as a result of the acts or omissions of another party. Its quantification is usually guided by principles of equity. [See Shantilal Mangaldas AIR 1969 SC 634 and Ranbir Kumar Arora AIR 1983 P&H 431]. On the hand, damages are punitive and, in addition to restoring an indemnitee to wholeness, may be imposed to deter an offender, punish exemplary offences, and recover consequential losses, amongst other objectives. Damages that are punitive, while not judicially popular in India, are usually imposed by a criminal court in common law jurisdictions. They are distinct from civil and equitable actions. [See the seminal case of The Owners of the Steamship Mediana [1900] AC 113 (HL)].

Unfortunately, section 46 of the Act uses the terms “damage”, “injury” and “compensation” interchangeably without regard for the long and rich jurisprudence that finds them to be different concepts.

The Cases related to Privacy

In the State of Maharashtra, there have been a total of 47 cases filed under section 46 of the Act. Of these, 33 cases have been disposed of by the Adjudicating Officer and 14 are currently pending disposal. [2] At least three of these cases before the Adjudicating Officer deal with issues related to privacy of communications and personal data. They are:

Case Title	Forum	Date
Vinod Kaushik v. Madhvika Joshi	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	10.10.2011
Amit D. Patwardhan v. Rud India Chains	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	15.04.2013
Nirmalkumar Bagherwal v. Minal Bagherwal	Shri Rajesh Aggarwal Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra	26.08.2013

In all three cases the Adjudicating Officer was called upon to determine and penalise unauthorised access to personal data of the complainants. In the Vinod Kaushik case, the complainants’ emails and chat sessions were accessed, copied and made available to the police for legal proceedings without the permission of the complainants. In the Amit Patwardhan and Nirmalkumar Bagherwal cases, the complainants’ financial information in the form of bank account statements were obtained from their respective banks without their consent and used against them in legal proceedings.

The Vinod Kaushik complaint was filed in 2010 for privacy violations committed between 2008 and 2009. The complaint was made against the complainant’s daughter-in-law – the respondent, who was estranged from her husband, the complainant’s son. The respondent had, independent of the proceedings before the Adjudicating Officer, instituted criminal proceedings alleging cruelty and dowry-related harassment against her estranged husband and the complainant. To support some of the claims made in the criminal proceedings, the respondent accessed the email accounts of her estranged husband and the complainant and printed copies of certain communications, both emails and chat transcripts. The complaint to the Adjudicating Officer was made in relation to these emails and chat transcripts that were obtained without the consent and knowledge of the complainant and his son. On 09.08.2010, the then Adjudicating Officer dismissed the complaint after finding that, owing to the marriage between the respondent and the complainant’s son, there was a relation of mutual trust between them that resulted in the complainant and his son consensually sharing their email account passwords with the respondent. This ruling was appealed to the Cyber Appellate Tribunal ("CyAT") which, in a decision of 29.06.2011, found irregularities in the complainant’s son’s privity to the proceedings and remanded the complaint to the Adjudicating Officer for re-adjudication. The re-adjudication, which was conducted by Shri Rajesh Aggarwal as Adjudicating Officer, resulted in a final order of 10.10.2011 ("the final order") that is the subject of this analysis. The final order found that the respondent had violated the privacy of the complainant and his son by her unauthorised access of their email accounts and sharing of their private communications. However, the Adjudicating Officer found that the intent of the unauthorised access – to obtain evidence to support a criminal proceeding – was mitigatory and hence ordered the respondent to pay only a small token amount in compensation, not to the complainants but instead to the State Treasury. The Delhi High Court, which was moved in appeal because the CyAT was non-functional, upheld the final order in its decision of 27.01.2012.

The Amit Patwardhan complaint was filed against the complainant’s ex-employer – the respondent, for illegally obtaining copies of the complainant’s bank account statement. The complainant had left the employ of the respondent to work with a competing business company but not before colluding with the competing business company and diverting the respondent’s customers to them. For redress, the respondent filed suit for a decree of compensation and lead the complainant’s bank statements in evidence to prove unlawful gratification. Since the bank statements were obtained electronically by the respondent without the complainant’s consent, the jurisdiction of the Adjudicating Officer was invoked. In his order of 15.04.2013, Shri Rajesh Aggarwal, the Adjudicating Officer, found that the respondent had, by unlawfully obtaining the complainant’s bank account statements which constitute sensitive personal data, violated the complainant’s privacy. The Adjudicating Officer astutely applied the equitable doctrine of clean hands to deny compensation to the complainant; however, because the complainant’s bank was not a party to the complaint, the Adjudicating Officer was unable to make a ruling on the lack of action by the bank to protect the sensitive personal data of its depositors.

The Nirmalkumar Bagherwal complaint bears a few similarities to the preceding two cases. Like the Vinod Kaushik matter, the issue concerned the manner in which a wife, estranged but still legally married, accessed electronic records of personal data of the complainants; and, like the Amit Patwardhan matter, the object of the privacy violation was the bank account statements of the complainants that constitute sensitive personal data. The respondent was the estranged wife of one of the complainants who, along with his complainant father, managed the third complainant company. To support her claim for maintenance from the complainant and his family in an independent legal proceeding, the respondent obtained certain bank account statements of the complainants without their consent and, possibly, with the collusion of the respondent bank. After reviewing relevant law from the European Union and the United States, and observant of relevant sectoral regulations applicable in India including the relevant Master Circular of the Reserve Bank of India, and further noting preceding consumer case law on the subject, the Adjudicating Officer issued an order on 26.08.2013. The order found that the complainant’s right to privacy was violated by both the respondents but, while determining the quantum of compensation, distinguished between the respondents in respect of the degree of liability; the respondent wife was ordered to pay a token compensation amount while the respondent bank was ordered to pay higher compensation to each of the three complainants individually.

The high quality of each of the three orders bears specific mention. Despite the superb quality of the judgments of the Indian higher judiciary in the decades after independence, the overall quality of judgment-writing appears to have declined. [3] In the last decade, several Indian judges have called for higher standards of judgment writing from their fellow judges. [4] In this background, it is notable that Shri Rajesh Aggarwal, despite not being a member of the judiciary, has delivered well-reasoned, articulate and clear orders that are cognisant of legal issues and also easily understandable to a non-legal reader.

In each of these cases, the Adjudicating Officer has successfully navigated around the fact that none of the primary parties were interacting and transacting at arm’s length. In the Vinod Kaushik and Nirmalkumar Bagherwal matters, the primary parties were estranged but still legally married partners and in the Amit Patwardhan matter the parties were in an employer-employee relationship. The first Adjudicating Officer in the Vinod Kaushik matter failed, in his order of 09.08.2010, to appreciate that the individual communications of individual persons were privileged by an expectation of privacy, regardless of their relationship. Hence, despite acknowledging that the marital partners in that matter were in conflict with each other, and despite being told by one party that the other party’s access to those private communications was made without consent, the Adjudicating Officer allowed his non-judicial opinion of marriage to influence his order. This mistake was corrected when the matter was remanded for re-adjudication. In the re-adjudication, the new Adjudicating Officer correctly noted that the respondent wife could have chosen to approach the police or a court to follow the proper investigative procedure for accessing emails and other private communications of another person and that her unauthorised use of the complainant’s passwords amounted to a violation of their privacy.

Popular conceptions of different types of relationships may affect the (quasi) judicial imagination of privacy. In comparison to the Vinod Kaushik matter, the Nirmalkumar Bagherwal and Amit Patwardhan matters both dealt with unauthorised access to bank account statements, by a wife and by an ex-employer respectively. In any event, the same Adjudicating Officer presided over all three matters and correctly found that the facts in all three matters admitted to contraventions of the privacy of the complainants. The conjecture as to whether the first Adjudicating Officer in the Vinod Kaushik matter would have applied the same standard of family unity to unauthorised access of bank account statements by an estranged wife who was seeking maintenance remains untested. However, the reliance placed on the decision of the Delhi State Consumer Protection Commission in the matter of Rupa Mahajan Pahwa, [5] where the Commission found that unauthorised access to a bank pass book by an estranged husband violated the privacy of the wife, would suggest that judges clothe financial information with a standard of privacy higher than that given to emails.

Emails are a form of electronic communication. The PUCL case (Supreme Court of India, 1996)[6] while it did not explicitly deal with the standard of protection accorded to emails, held that personal communications were protected by an individual right to privacy that emanated from the protection of personal liberty guaranteed under Article 21 of the Constitution of India. Following the Maneka Gandhi case (Supreme Court of India, 1978)[7]

it is settled that persons may be deprived of their personal liberty only by a just, fair and reasonable procedure established by law. As a result, interceptions of private communications that are protected by Article 21 may only be conducted in pursuance of such a procedure. This procedure exists in the form of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 that came into effect on 27 October 2009 ("the Interception Rules"). The Interception Rules set out a regime for accessing private emails in certain conditions. The powers and procedure of Section 91 of the Code of Criminal Procedure ("CrPC") may also apply to obtain data at rest, such as emails stored in an inbox or sent-mail folder.

Finally, the orders of the Adjudicating Officer reveal a well-reasoned and progressive understanding of the law and principles relating to the quantification of compensation. By choosing to impose larger amounts of compensation on the bank that violated the privacy of the complainant in the Nirmalkumar Bagherwal matter, the Adjudicating Officer has indicated that the institutions that hold sensitive personal data, such as financial information, are subject to a higher duty of care in relation of it. But, most importantly, the act of imposing monetary compensation of privacy violations is a step forward because, for the first time in India, it recognises that privacy violations are civil wrongs or injuries that demand compensation.

[1]. These Rules were issued vide GSR 220(E), dated 17 March 2003 and published in the Gazette of India, Extraordinary, Part II, Section 3(i). These Rules can be accessed here – http://it.maharashtra.gov.in/PDF/Qual_ExpAdjudicatingOfficer_Manner_of_Holding_Enquiry_Rules.PDF (visited on 30 September 2013).

[2]. These cases and statistics may be viewed here – http://it.maharashtra.gov.in/1089/IT-Act-Judgements (visited on 30 September 2013).

[3]. See generally, Upendra Baxi “"The Fair Name of Justice": The Memorable Voyage of Chief Justice Chandrachud” in A Chandrachud Reader (Justice V. S. Deshpande ed., Delhi: Documentation Centre etc., 1985) and, Rajeev Dhavan, "Judging the Judges" in Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (Rajeev Dhavan and Salman Khurshid eds., London: Sweet & Maxwell, 1985).

[4]. See generally, Justice B.G .Harindranath, Art of Writing Judgments (Bangalore: Karnataka Judicial Academy, 2004); Justice T .S. Sivagnanam, The Salient Features of the Art of Writing Orders and Judgments (Chennai: Tamil Nadu State Judicial Academy, 2010); and, Justice Sunil Ambwani, “Writing Judgments: Comparative Models” Presentation at the National Judicial Academy, Bhopal (2006) available here – http://districtcourtallahabad.up.nic.in/articles/writing%20judgment.pdf (visited on 29 Sep 2013).

[5]. Appeal No. FA-2008/659 of the Delhi State Consumer Protection Commission, decided on 16 October 2008.

[6]. (1997) 1 SCC 301.

[7]. (1978) 1 SCC 248.

For more details visit https://cis-india.org/internet-governance/blog/analysis-of-cases-filed-under-sec-48-it-act-for-adjudication-maharashtra

A Privacy Meeting with the Federal Trade Commission in New Delhi

elonnai — 2013-10-03T10:25:33Z

On September 20, the Centre for Internet and Society held a roundtable meeting with Betsy Broder, Counsel for International Consumer Protection, and Sarah Schroeder, Attorney, Bureau of Consumer Protection, Federal Trade Commission (FTC), United States. The meeting took place at the Imperial, Janpath, New Delhi and discussed both the U.S framework to privacy and potential frameworks and challenges to privacy in India.

As a note, thoughts shared during the meeting represented personal perspectives, and did not constitute the official position of the Federal Trade Commission.

When explaining the U.S regulatory framework for privacy the FTC attorneys highlighted that the United States does not have comprehensive privacy legislation, like in Europe, but instead has sectoral laws that address different aspects of privacy. For example, the Fair Credit Reporting Act maintains confidentiality of consumer credit report information, the Gramm Leach Bliley Act imposes privacy and security requirements for financial institutions, HIPAA applies to patient health information, and the Children’s Online Privacy Protection Act prevents the collection and posting of personal information from minors. It was discussed that the sectoral model followed by the United States allows for a nuanced balance to be struck between privacy protection and the market. It was noted, however, that some have critiqued the U.S. regulatory framework for lacking clear principles that apply to the commercial world and lay out strong privacy protections for the individual. In light of this, the White House is developing a Privacy Bill of Rights.

The Federal Trade Commission is an independent agency in the United States Government with responsibility for enforcing both consumer protection and competition laws. It is composed of five commissioners, and a staff of roughly 1,000, which includes attorneys and economists. The FTC is primarily a law enforcement agency, but also undertakes policy development through workshops and reports, Consumer education is another key function of the agency.

On the consumer protection side, Congress has directed the FTC to enforce the Federal Trade Commission Act, as well as some more specific statutes, such as those that protect consumers from unwanted telemarketing laws, and the protection of children on line. Its main objectives are to protect consumer interests, and prevent fraud and unfair and deceptive business practices. The FTC carries out its privacy work through its consumer protection mission.

When understanding the FTC’s role in relation to privacy, it is important to understand that the FTC’s jurisdiction applies only to certain industries as defined by Congress. Thus, for example, the FTC does not have jurisdiction over banks or telecommunications.

The most critical part of the FTC’s activities is its law enforcement function. The FTC can investigate an organization if the staff believes that the entity may be involved in conduct that contravenes the FTC Act’s prohibition on unfair or deceptive practices, or another specific privacy law. The FTC has brought a number of privacy-related cases against major companies including Facebook, Google, ChoicePoint, and Twitter. Many of these cases address new challenges brought about by rapidly changing technologies.

The vast majority of the FTC’s actions have been settled with consent judgments. When the statute that the FTC enforces allows for the imposition of a civil penalty, the FTC sets the penalty at a level that ensures that it is fair and provides a deterrent, but will not impose a hardship on the company. As a civil enforcement agency, the FTC cannot seek criminal sanctions. While enforcement is the cornerstone of the FTC’s approach to privacy, the agency also supports self-regulation, where appropriate. In this system the FTC does not pre-approve an organization’s practices or define principles that all companies should abide by as it is felt that every organization is unique and has different needs and abilities, and assigning specific technical standards may stifle innovation.

In the meeting it was also discussed how US privacy laws may apply to overseas companies where they are providing services for US consumers or working on behalf of US companies. For example, under the Gramm Leach Bliley Act the FTC has created the Safeguards Rule, which speaks to how financial data by financial institutions must be handled and protected. This Rule applies to companies overseas if the company is performing work for US companies or US consumers. In other words, a US company cannot avoid compliance by outsourcing its work to an off shore organization. Discussions during the meeting also focused on consent and the key role that context, accessibility, and timing play in ensuring individuals have the ability to provide informed consent. Some of the attendees suggested that this practice could be greatly improved in India. For example, currently in India there are companies that only provide consumers access to the company privacy policy after an individual has consented and signed up to the service. When asked about the challenges to privacy that exist in India, many shared that, culturally, there is a different understanding of privacy in India than in many western countries.

Other thoughts included that the Indian government is currently imagining privacy regulation as being either fluid and purely self regulatory or being enforced through strict legal provisions. Instead, the government needs to begin to expand the possibilities for a regulatory framework for privacy in India in such a way that allows for strong legal enforcement, and flexible standards. The right to be forgotten was also discussed and it was mentioned that California has proposed a law that will allow individuals to request deletion of information.

For more details visit https://cis-india.org/internet-governance/blog/privacy-meeting-with-ftc-new-delhi

Privacy (Protection) Bill, 2013: Updated Third Draft

bhairav — 2013-10-01T12:25:43Z

The Centre for Internet and Society has been researching privacy in India since 2010 with the objective of raising public awareness around privacy, completing in depth research, and driving a privacy legislation in India. As part of this work, we drafted the Privacy (Protection) Bill, 2013.

This research is being undertaken as part of the 'SAFEGUARDS' project that CIS is doing with Privacy International and IDRC. The following is the latest version with changes based on the Round Table held on August 24:

[Preamble]

CHAPTER I

Preliminary

1. Short title, extent and commencement. – (1) This Act may be called the Privacy (Protection) Act, 2013.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. – In this Act and in any rules made thereunder, unless the context otherwise requires, –

(a) “anonymise” means, in relation to personal data, the removal of all data that may, whether directly or indirectly in conjunction with any other data, be used to identify the data subject;

(b) “appropriate government” means, in relation the Central Government or a Union Territory Administration, the Central Government; in relation a State Government, that State Government; and, in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly –

(i) by the Central Government or a Union Territory Administration, the Central Government;

(ii) by a State Government, that State Government;

(c) “authorised officer” means an officer, not below the rank of a Gazetted Officer, of an All India Service or a Central Civil Service, as the case may be, who is empowered by the Central Government, by notification in the Official Gazette, to intercept a communication of another person or carry out surveillance of another person under this Act;

(d) “biometric data” means any data relating to the physical, physiological or behavioural characteristics of a person which allow their unique identification including, but not restricted to, facial images, finger prints, hand prints, foot prints, iris recognition, hand writing, typing dynamics, gait analysis and speech recognition;

(e) “Chairperson” and “Member” mean the Chairperson and Member appointed under sub-section (1) of section 17;

(f) “collect”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or activity that results in a data controller obtaining, or coming into the possession or control of, any personal data of a data subject;

(g) “communication” means a word or words, spoken, written or indicated, in any form, manner or language, encrypted or unencrypted, meaningful or otherwise, and includes visual representations of words, ideas, symbols and images, whether transmitted or not transmitted and, if transmitted, irrespective of the medium of transmission;

(h) “competent organisation” means an organisation or public authority listed in the Schedule;

(i) “data controller” means a person who, either alone or jointly or in concert with other persons, determines the purposes for which and the manner in which any personal data is processed;

(j) “data processor” means any person who processes any personal data on behalf of a data controller;

(k) “Data Protection Authority” means the Data Protection Authority constituted under sub-section (1) of section 17;

(l) “data subject” means a person who is the subject of personal data;

(m) “deoxyribonucleic acid data” means all data, of whatever type, concerning the characteristics of a person that are inherited or acquired during early prenatal development;

(n) “destroy”, with its grammatical variations and cognate expressions, means, in relation to personal data, to cease the existence of, by deletion, erasure or otherwise, any personal data;

(o) “disclose”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or activity that results in a person who is not the data subject coming into the possession or control of that personal data;

(p) “intelligence organisation” means an intelligence organisation under the Intelligence Organisations (Restriction of Rights) Act, 1985 (58 of 1985);

(q) “interception” or “intercept” means any activity intended to capture, read, listen to or understand the communication of a person;

(r) “personal data” means any data which relates to a natural person if that person can, whether directly or indirectly in conjunction with any other data, be identified from it and includes sensitive personal data;

(s) “prescribed” means prescribed by rules made under this Act;

(t) “process”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or operation which is performed upon personal data, whether or not by automated means including, but not restricted to, organisation, structuring, adaptation, modification, retrieval, consultation, use, alignment or destruction;

(u) “receive”, with its grammatical variations and cognate expressions, means, in relation to personal data, to come into the possession or control of any personal data;

(v) “sensitive personal data” means personal data as to the data subject’s –

(i) biometric data;

(ii) deoxyribonucleic acid data;

(iii) sexual preferences and practices;

(iv) medical history and health;

(v) political affiliation;

(vi) commission, or alleged commission, of any offence;

(vii) ethnicity, religion, race or caste; and

(viii) financial and credit information.

(w) “store”, with its grammatical variations and cognate expressions, means, in relation to personal data, to retain, in any form or manner and for any purpose or reason, any personal data;

(x) “surveillance” means any activity intended to watch, monitor, record or collect, or to enhance the ability to watch, record or collect, any images, signals, data, movement, behaviour or actions, of a person, a group of persons, a place or an object, for the purpose of obtaining information of a person;

and all other expressions used herein shall have the meanings ascribed to them under the General Clauses Act, 1897 (10 of 1897) or the Code of Criminal Procedure, 1973 (2 of 1974), as the case may be.

CHAPTER II

Regulation of Personal Data

3. Regulation of personal data. – Notwithstanding anything contained in any other law for time being in force, no person shall collect, store, process, disclose or otherwise handle any personal data of another person except in accordance with the provisions of this Act and any rules made thereunder.

4. Exemption. – Nothing in this Act shall apply to the collection, storage, processing or disclosure of personal data for personal or domestic use.

CHAPTER III

Protection of Personal Data

5. Regulation of collection of personal data. – (1) No personal data of a data subject shall be collected except in conformity with section 6 and section 7.

(2) No personal data of a data subject may be collected under this Act unless it is necessary for the achievement of a purpose of the person seeking its collection.

(3) Subject to section 6 and section 7, no personal data may be collected under this Act prior to the data subject being given notice, in such and form and manner as may be prescribed, of the collection.

6. Collection of personal data with prior informed consent. – (1) Subject to sub-section (2), a person seeking to collect personal data under this section shall, prior to its collection, obtain the consent of the data subject.

(2) Prior to a collection of personal data under this section, the person seeking its collection shall inform the data subject of the following details in respect of his personal data, namely: –

(a) when it will be collected;

(b) its content and nature;

(d) the manner in which it may be accessed, checked and modified;

(e) the security practices, privacy policies and other policies, if any, to which it will be subject;

(f) the conditions and manner of its disclosure; and

(g) the procedure for recourse in case of any grievance in relation to it.

(3) Consent to the collection of personal data under this section may be obtained from the data subject in any manner or medium but shall not be obtained as a result of a threat, duress or coercion:

Provided that the data subject may, at any time after his consent to the collection of personal data has been obtained, withdraw the consent for any reason whatsoever and all personal data collected following the original grant of consent shall be destroyed forthwith:

Provided that the person who collected the personal data in respect of which consent is subsequently withdrawn may, if the personal data is necessary for the delivery of any good or the provision of any service, not deliver that good or deny that service to the data subject who withdrew his grant of consent.

7. Collection of personal data without prior consent. – Personal data may be collected without the prior consent of the data subject if it is –

(a) necessary for the provision of an emergency medical service to the data subject;

(b) required for the establishment of the identity of the data subject and the collection is authorised by a law in this regard;

(d) necessary to prevent, investigate or prosecute a cognisable offence.

8. Regulation of storage of personal data. – (1) No person shall store any personal data for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose is achieved or ceases to exist for any reason, for any period following such achievement or cessation.

(2) Save as provided in sub-section (3), any personal data collected or received in relation to the achievement of a purpose shall, if that purpose is achieved or ceases to exist for any reason, be destroyed forthwith.

(3) Notwithstanding anything contained in this section, any personal data may be stored for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose has been achieved or ceases to exist for any reason, for any period following such achievement or cessation, if –

(a) the data subject grants his consent to such storage prior to the purpose for which it was collected or received being achieved or ceasing to exist;

(b) it is adduced for an evidentiary purpose in a legal proceeding; or

Provided that only that amount of personal data that is necessary to achieve the purpose of storage under this sub-section shall be stored and any personal data that is not required to be stored for such purpose shall be destroyed forthwith:

Provided further that any personal data stored under this sub-section shall, to the extent possible, be anonymised.

9. Regulation of processing of personal data. – (1) No person shall process any personal data that is not necessary for the achievement of the purpose for which it was collected or received.

(2) Save as provided in sub-section (3), no personal data shall be processed for any purpose other than the purpose for which it was collected or received.

(3) Notwithstanding anything contained in this section, any personal data may be processed for a purpose other than the purpose for which it was collected or received if –

(a) the data subject grants his consent to the processing and only that amount of personal data that is necessary to achieve the other purpose is processed;

(b) it is necessary to perform a contractual duty to the data subject;

(d) it necessary to prevent, investigate or prosecute a cognisable offence.

10. Transfer of personal data for processing. – (1) Subject to the provisions of this section, personal data that has been collected in conformity with this Act may be transferred by a data controller to a data processor, whether located in India or otherwise, if the transfer is pursuant to an agreement that explicitly binds the data processor to same or stronger measures in respect of the storage, processing, destruction, disclosure and other handling of the personal data as are contained in this Act.

(2) No data processor shall process any personal data transferred under this section except to achieve the purpose for which it was collected.

(3) A data controller that transfers personal data under this section shall remain liable to the data subject for the actions of the data processor.

11. Security of personal data and duty of confidentiality. – (1) No person shall collect, receive, store, process or otherwise handle any personal data without implementing measures, including, but not restricted to, technological, physical and administrative measures, adequate to secure its confidentiality, secrecy, integrity and safety, including from theft, loss, damage or destruction.

(2) Data controllers and data processors shall be subject to a duty of confidentiality and secrecy in respect of personal data in their possession or control.

(3) Without prejudice to the provisions of this section, a data controller or data processor shall, if the confidentiality, secrecy, integrity or safety of personal data in its possession or control is violated by theft, loss, damage or destruction, or as a result of any disclosure contrary to the provisions of this Act, or for any other reason whatsoever, notify the data subject, in such form and manner as may be prescribed, forthwith.

12. Regulation of disclosure of personal data. – Subject to section 10, section 13 and section 14, no person shall disclose, or otherwise cause any other person to receive, the content or nature of any personal data that has been collected in conformity with this Act.

13. Disclosure of personal data with prior informed consent. – (1) Subject to sub-section (2), a data controller or data processor seeking to disclose personal data under this section shall, prior to its disclosure, obtain the consent of the data subject.

(2) Prior to a disclosure of personal data under this section, the data controller or data processor, as the case may be, seeking to disclose the personal data, shall inform the data subject of the following details in respect of his personal data, namely: –

(a) when it will be disclosed;

(b) the purpose of its disclosure;

(d) the procedure for recourse in case of any grievance in relation to it.

14. Disclosure of personal data without prior consent. – (1) Subject to sub-section (2), personal data may be disclosed without the prior consent of the data subject if it is necessary –

(a) to prevent a reasonable threat to national security, defence or public order; or

(b) to prevent, investigate or prosecute a cognisable offence.

(2) No data controller or data processor shall disclose any personal data unless it has received an order in writing from a police officer not below the rank of [___] in such form and manner as may be prescribed:

Provided that an order for the disclosure of personal data made under this sub-section shall not require the disclosure of any personal data that is not necessary to achieve the purpose for which the disclosure is sought:

Provided further that the data subject shall be notified, in such form and manner as may be prescribed, of the disclosure of his personal data, including details of its content and nature, and the identity of the police officer who ordered its disclosure, forthwith.

15. Quality and accuracy of personal data. – (1) Each data controller and data processor shall, to the extent possible, ensure that the personal data in its possession or control, is accurate and, where necessary, is kept up to date.

(2) No data controller or data processor shall deny a data subject whose personal data is in its possession or control the opportunity to review his personal data and, where necessary, rectify anything that is inaccurate or not up to date.

(3) A data subject may, if he finds personal data in the possession or control of a data controller or data processor that is not necessary to achieve the purpose for which it was collected, received or stored, demand its destruction, and the data controller shall destroy, or cause the destruction of, the personal data forthwith.

16. Special provisions for sensitive personal data. – Notwithstanding anything contained in this Act and the provisions of any other law for the time being in force –

(a) no person shall store sensitive personal data for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose has been achieved or ceases to exist for any reason, for any period following such achievement or cessation;

(b) no person shall process sensitive personal data for a purpose other than the purpose for which it was collected or received;

(c) no person shall disclose sensitive personal data to another person, or otherwise cause any other person to come into the possession or control of, the content or nature of any sensitive personal data, including any other details in respect thereof.

CHAPTER IV

The Data Protection Authority

17. Constitution of the Data Protection Authority. – (1) The Central Government shall, by notification, constitute, with effect from such date as may be specified therein, a body to be called the Data Protection Authority consisting of a Chairperson and not more than four other Members, to exercise the jurisdiction and powers and discharge the functions and duties conferred or imposed upon it by or under this Act.

(2) The Chairperson shall be a person who has been a Judge of the Supreme Court:

Provided that the appointment of the Chairperson shall be made only after consultation with the Chief Justice of India.

(3) Each Member shall be a person of ability, integrity and standing who has a special knowledge of, and professional experience of not less than ten years in privacy law and policy.

18. Term of office, conditions of service, etc. of Chairperson and Members. – (1) Before appointing any person as the Chairperson or Member, the Central Government shall satisfy itself that the person does not, and will not, have any such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member.

(2) The Chairperson and every Member shall hold office for such period, not exceeding five years, as may be specified in the order of his appointment, but shall be eligible for reappointment:

Provided that no person shall hold office as the Chairperson or Member after he has attained the age of sixty-seven years.

(3) Notwithstanding anything contained in sub-section (2), the Chairperson or any Member may –

(a) by writing under his hand resign his office at any time;

(b) be removed from office in accordance with the provisions of section 19 of this Act.

(4) A vacancy caused by the resignation or removal of the Chairperson or Member under sub-section (3) shall be filled by fresh appointment.

(5) In the event of the occurrence of a vacancy in the office of the Chairperson, such one of the Members as the Central Government may, by notification, authorise in this behalf, shall act as the Chairperson till the date on which a new Chairperson, appointed in accordance with the provisions of this Act, to fill such vacancy, enters upon his office.

(6) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, such one of the Members as the Chairperson may authorise in writing in this behalf shall discharge the functions of the Chairperson, till the date on which the Chairperson resumes his duties.

(7) The salaries and allowances payable to and the other terms and conditions of service of the Chairperson and Members shall be such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson and any member shall be varied to his disadvantage after his appointment.

19. Removal of Chairperson and Members from office in certain circumstances. – The Central Government may remove from office the Chairperson or any Member, who –

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted for an offence which in the opinion of the President involves moral turpitude; or

(f) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Chairperson or Member, or

(g) has so abused his position as to render his continuance in offence prejudicial to the public interest.

20. Functions of the Data Protection Authority. – (1) The Chairperson may inquire, suo moto or on a petition presented to it by any person or by someone acting on his behalf, in respect of any matter connected with the collection, storage, processing, disclosure or other handling of any personal data and give such directions or pass such orders as are necessary for reasons to be recorded in writing.

(2) Without prejudice to the generality of the foregoing provision, the Data Protection Authority shall perform all or any of the following functions, namely –

(a) review the safeguards provided by or under this Act and other law for the time being in force for the protection of personal data and recommend measures for their effective implementation;

(b) review any measures taken by any entity for the protection of personal data and take such further action is it deems fit;

(c) review any action, policy or procedure of any entity to ensure compliance with this Act and any rules made hereunder;

(d) formulate, in consultation with experts, norms for the effective protection of personal data;

(e) promote awareness and knowledge of personal data protection through any means necessary;

(f) undertake and promote research in the field of protection of personal data;

(g) encourage the efforts of non-governmental organisations and institutions working in the field of personal data protection;

(h) publish periodic reports concerning the incidence of collection, processing, storage, disclosure and other handling of personal data;

(i) such other functions as it may consider necessary for the protection of personal data.

(3) Subject to the provisions of any rules prescribed in this behalf by the Central Government, the Data Protection Authority shall have the power to review any decision, judgement, decree or order made by it.

(4) In the exercise of its functions under this Act, the Data Protection Authority shall give such directions or pass such orders as are necessary for reasons to be recorded in writing.

(5) The Data Protection Authority may, in its own name, sue or be sued.

21. Secretary, officers and other employees of the Data Protection Authority. – (1) The Central Government shall appoint a Secretary to the Data Protection Authority to exercise and perform, under the control of the Chairperson such powers and duties as may be prescribed or as may be specified by the Chairperson.

(2) The Central Government may provide the Data Protection Authority with such other officers and employees as may be necessary for the efficient performance of the functions of the Data Protection Authority.

(3) The salaries and allowances payable to and the conditions of service of the Secretary and other officers and employees of the Data Protection Authority shall be such as may be prescribed.

22. Salaries, etc. be defrayed out of the Consolidated Fund of India. – The salaries and allowances payable to the Chairperson and Members and the administrative expenses, including salaries, allowances and pension, payable to or in respect of the officers and other employees of the of the Data Protection Authority shall be defrayed out of the Consolidated Fund of India.

23. Vacancies, etc. not to invalidate proceedings of the Data Protection Authority. – No act or proceeding of the Data Protection Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the Data Protection Authority or any defect in the appointment of a person acting as the Chairperson or Member.

24. Chairperson, Members and employees of the Data Protection Authority to be public servants. – The Chairperson and Members and other employees of the Data Protection Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

25. Location of the office of the Data Protection Authority. – The offices of the Data Protection Authority shall be in [___] or any other location as directed by the Chairperson in consultation with the Central Government.

26. Procedure to be followed by the Data Protection Authority. – (1) Subject to the provisions of this Act, the Data Protection Authority shall have powers to regulate –

(a) the procedure and conduct of its business;

(b) the delegation to one or more Members of such powers or functions as the Chairperson may specify.

(2) In particular and without prejudice to the generality of the foregoing provisions, the powers of the Data Protection Authority shall include the power to determine the extent to which persons interested or claiming to be interested in the subject-matter of any proceeding before it may be allowed to be present or to be heard, either by themselves or by their representatives or to cross-examine witnesses or otherwise take part in the proceedings:

Provided that any such procedure as may be prescribed or followed shall be guided by the principles of natural justice.

27. Power relating to inquiries. – (1) The Data Protection Authority shall, for the purposes of any inquiry or for any other purpose under this Act, have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying suits in respect of the following matters, namely –

(a) the summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) the discovery and production of any document or other material object producible as evidence;

(d) the requisitioning of any public record from any court or office;

(e) the issuing of any commission for the examination of witnesses; and,

(f) any other matter which may be prescribed.

(2) The Data Protection Authority shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Data Protection Authority, may be useful for, or relevant to, the subject matter of an inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code, 1860 (45 of 1860).

(3) The Data Protection Authority or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Data Protection Authority may enter any building or place where the Data Protection Authority has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable.

(4) The Data Protection Authority shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code, 1860 (45 of 1860) is committed in the view or presence of the Data Protection Authority, the Data Protection Authority may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

28. Decisions of the Data Protection Authority. – (1) The decisions of the Data Protection Authority shall be binding.

(2) In its decisions, the Data Protection Authority has the power to –

(a) require an entity to take such steps as may be necessary to secure compliance with the provisions of this Act;

(b) require an entity to compensate any person for any loss or detriment suffered;

29. Proceedings before the Data Protection Authority to be judicial proceedings. – The Data Protection Authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Data Protection Authority shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860).

CHAPTER V

Regulation by Data Controllers and Data Processors

30. Co-regulation by Data Controllers and the Data Protection Authority. – (1) The Data Protection Authority may, in consultation with data controllers, formulate codes of conduct for the collection, storage, processing, disclosure or other handling of any personal data.

(2) No code of conduct formulated under sub-section (1) shall be binding on a data controller unless –

(a) it has received the written approval of the Data Protection Authority; and

(b) it has received the approval, by signature of a director or authorised signatory, of the data controller.

31. Co-regulation without prejudice to other remedies. – Any code of conduct formulated under this chapter shall be without prejudice to the jurisdiction, powers and functions of the Data Protection Authority.

32. Self-regulation by data controllers. – (1) The Data Protection Authority may encourage data controllers and data processors to formulate professional codes of conduct to establish rules for the collection, storage, processing, disclosure or other handling of any personal data.

(2) No code of conduct formulated under sub-section (1) shall be effective unless it is registered, in such form and manner as may be prescribed, by the Data Protection Authority.

(3) The Data Protection Authority shall, for reasons to be recorded in writing, not register any code of conduct formulated under sub-section (1) that is not adequate to protect personal data.

CHAPTER IV

Surveillance and Interception of Communications

33. Surveillance and interception of communication to be warranted. – Notwithstanding anything contained in any other law for the time being in force, no –

(i) surveillance shall be carried out, and no person shall order any surveillance of another person;

(ii) communication shall be intercepted, and no person shall order the interception of any communication of another person; save in execution of a warrant issued under section 36, or an order made under section 38, of this Act.

34. Application for issuance of warrant. – (1) Any authorised officer seeking to carry out any surveillance or intercept any communication of another person shall prefer an application for issuance of a warrant to the Magistrate.

(2) The application for issuance of the warrant shall be in the form and manner prescribed in the Schedule and shall state the purpose for which the warrant is sought.

(3) The application for issuance of the warrant shall be accompanied by –

(i) a report by the authorised officer of the suspicious conduct of the person in respect of whom the warrant is sought, and all supporting material thereof;

(ii) an affidavit of the authorised officer, or a declaration under his hand and seal, that the contents of the report and application are true to the best of his knowledge, information and belief, and that the warrant shall be executed only for the purpose stated in the application and shall not be misused or abused in any manner including to interfere in the privacy of any person;

(iii) details of all warrants previously issued in respect of the person in respect of whom the warrant is sought, if any.

35. Considerations prior to the issuance of warrant. – (1) No warrant shall issue unless the requirements of section 34 and this section have been met.

(2) The Magistrate shall consider the application made under section 34 and shall satisfy himself that the information contained therein sets out –

(i) a reasonable threat to national security, defence or public order; or

(ii) a cognisable offence, the prevention, investigation or prosecution of which is necessary in the public interest.

(3) The Magistrate shall satisfy himself that all other lawful means to acquire the information that is sought by the execution of the warrant have been exhausted.

(4) The Magistrate shall verify the identity of the authorised officer and shall satisfy himself that the application for issuance of the warrant is authentic.

36. Issue of warrant. – (1) Subject to section 34 and section 35, the Magistrate may issue a warrant for surveillance or interception of communication, or both of them.

(2) The Magistrate may issue the warrant in Chambers.

37. Magistrate may reject application for issuance of warrant. – If the Magistrate is not satisfied that the requirements of section 34 and section 35 have been met, he may, for reasons to be recorded in writing, –

(i) refuse to issue the warrant and dispose of the application;

(ii) return the application to the authorised officer without disposing of it;

(iii) pass any order that he thinks fit.

38. Order by Home Secretary in emergent circumstances. – (1) Notwithstanding anything contained in section 35, if the Home Secretary of the appropriate government is satisfied that a grave threat to national security, defence or public order exists, he may, for reasons to be recorded in writing, order any surveillance or interception of communication.

(2) An authorised officer seeking an order for surveillance or interception of communication under this section shall prefer an application to the Home Secretary in the form and manner prescribed in the Schedule and accompanied by the documents required under sub-section (3) of section 34.

(3) No order for surveillance or interception of communication made by the Home Secretary under this section shall be valid upon the expiry of a period of seven days from the date of the order.

(4) Before the expiry of a period of seven days from the date of an order for surveillance or interception of communication made under this section, the authorised officer who applied for the order shall place the application before the Magistrate for confirmation.

39. Duration of warrant or order. – (1) The warrant or order for surveillance or interception of communication shall specify the period of its validity and, upon its expiry, all surveillance and interception of communication, as the case may be, carried out in relation to that warrant or order shall cease forthwith:

Provided that no warrant or order shall be valid upon the expiry of a period of sixty days from the date of its issue.

(2) A warrant issued under section 36, or an order issued under section 38, for surveillance or interception of communication, or both of them, may be renewed by a Magistrate if he is satisfied that the requirements of sub-section (2) of section 35 continue to exist.

40. Duty to inform the person concerned. – Subject to sub-section (2), before the expiry of a period of sixty days from the conclusion of any surveillance or interception of communication carried out under this Act, the authorised officer who carried out the surveillance or interception of communication shall, in writing in such form and manner as may be prescribed, notify, with reference to the warrant of the Magistrate, and, if applicable, the order of the Home Secretary, each person in respect of whom the warrant or order was issued, of the fact of such surveillance or interception and duration thereof.

(2) The Magistrate may, on an application made by an authorised officer in such form and manner as may be prescribed, if he is satisfied that the notification under sub-section (1) would –

(a) present a reasonable threat to national security, defence or public order, or

(b) adversely affect the prevention, investigation or prosecution of a cognisable offence,

for reasons to be recorded in writing addressed to the authorised officer, order that the person in respect of whom the warrant or order of surveillance or interception of communication was issued, not be notified of the fact of such interception or the duration thereof:

41. Security and duty of confidentiality and secrecy. – (1) No person shall carry out any surveillance or intercept any communication of another person without implementing measures, including, but not restricted to, technological, physical and administrative measures, to secure the confidentiality and secrecy of all information obtained as a result of the surveillance or interception of communication, as the case may be, including from theft, loss or unauthorised disclosure.

(2) Any person who carries out any surveillance or interception of any communication, or who obtains any information, including personal data, as a result of surveillance or interception of communication, shall be subject to a duty of confidentiality and secrecy in respect of it.

(3) Every competent organisation shall, before the expiry of a period of one hundred days from the enactment of this Act, designate as many officers as it deems fit as Privacy Officers who shall be administratively responsible for all interceptions of communications carried out by that competent organisation.

42. Disclosure of information. – (1) Save as provided in this section, no person shall disclose to any other person, or otherwise cause any other person to come into the knowledge or possession of, the content or nature of any information, including personal data, obtained as a result of any surveillance or interception carried out under this Act.

(2) Notwithstanding anything contained in this section, if the disclosure of any information, including personal data, obtained as a result of any surveillance or interception of any communication is necessary to –

(a) prevent a reasonable threat to national security, defence or public order, or

(b) prevent, investigate or prosecute a cognisable offence,

an authorised officer may disclose the information, including personal data, to any authorised officer of any other competent organisation.

CHAPTER VI

Offences and penalties

43. Punishment for offences related to personal data. – (1) Whoever, except in conformity with the provisions of this Act, collects, receives, stores, processes or otherwise handles any personal data shall be punishable with imprisonment for a term which may extend to [___] years and may also be liable to fine which may extend to [___] rupees.

(2) Whoever attempts to commit any offence under sub section (1) shall be punishable with the punishment provided for such offence under that sub-section.

(3) Whoever, except in conformity with the provisions of this Act, collects, receives, stores, processes or otherwise handles any sensitive personal data shall be punishable with imprisonment for a term which may extend to [increased for sensitive personal data] years and and may also be liable to fine which may extend to [___] rupees.

(4) Whoever attempts to commit any offence under sub section (3) shall be punishable with the punishment provided for such offence under that sub-section.

44. Abetment and repeat offenders. – (1) Whoever abets any offence punishable under this Act shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence.

(2) Whoever, having been convicted of an offence under any provision of this Act is again convicted of an offence under the same provision, shall be punishable, for the second and for each subsequent offence, with double the penalty provided for that offence.

45. Offences by companies. – (1) Where an offence under this Act has been committed by a company, every person who, at the time of the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.

46. Cognisance. – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences under section 43, section 44 and section 45 shall be cognisable and non-bailable.

47. General penalty. – Whoever, in any case in which a penalty is not expressly provided by this Act, fails to comply with any notice or order issued under any provisions thereof, or otherwise contravenes any of the provisions of this Act, shall be punishable with fine which may extend to [___] rupees, and, in the case of a continuing failure or contravention, with an additional fine which may extend to [___] rupees for every day after the first during which he has persisted in such failure or contravention.

48. Punishment to be without prejudice to any other action. – The award of punishment for an offence under this Act shall be without prejudice to any other action which has been or which may be taken under this Act with respect to such contravention.

CHAPTER VII

Miscellaneous

49. Power to make rules. – (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for –

[__]

(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

50. Bar of jurisdiction. – (1) On and from the appointed day, no court or authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court and a High Court exercising powers under Article 32, Article 226 and Article 227 of the Constitution) in relation to matters specified in this Act.

(2) No order passed under this Act shall be appealable except as provided therein and no civil court shall have jurisdiction in respect of any matter which the Data Protection Authority is empowered by, or under, this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

51. Protection of action taken in good faith. – No suit or other legal proceeding shall lie against the Central Government, State Government, Data Protection Authority, Chairperson, Member or any person acting under the direction either of the Central Government, State Government, Data Protection Authority, Chairperson or Member in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made thereunder.

52. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of a period of three years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

53. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

For more details visit https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-updated-third-draft

Privacy Round Table, New Delhi (October 2013)

praskrishna — 2013-09-28T02:52:26Z

The Centre for Internet and Society (CIS), Federation of Indian Chambers of Commerce and Industry (FICCI), and DSCI cordially invite you to a "Privacy Round Table" at the FICCI Federation House in Tansen Marg on October 19, 2013.

Click the below links to:

Download the event brochure
Download the latest version of the Draft Privacy Bill

Jacob Kohnstamm, Data Protection Authority, Netherlands and Chairman of the Article 29 Working Party, Chantel Bernier, Assistant Privacy Commissioner, Canada, and Christopher Graham, Information Commissioner, UK will make presentations:

Agenda

Time	Detail
10:00 10:30	Introduction and summary of previous Roundtables
10:30 11:00	“Data Protection in the European Union” Mr. Jacob Kohnstamm, Data Protection Authority, Netherlands and Chairman of the Article 29 Working Party
11:00 11:15	Tea
11:15 12:15	Regulatory Frameworks and Jurisdiction a. Co-Regulation vs. Self Regulation vs. Statutory Regulation b. Applicability of regulatory framework to domestic processing vs. multiple/international jurisdictions
12:15 12:45	“An Overview of the Canadian Privacy Regime” Ms. Chantal Bernier, Assistant Privacy Commissioner, Canada
12:15 13:30	The Privacy Commissioner a. Composition of the Office of the Privacy Commissioner (officers, funding, organizational structure) b. Powers of the Privacy Commissioner (investigation, audit, privacy impact assessment etc) c. Functions of the Office of the Privacy Commissioner
13:30 14:30	Lunch
14:30 15:30	Rights of the individual and exceptions to the right to privacy a. Rights of the individual including: notice, access, deletion etc. b. Exceptions to the right to privacy: national security, public order, public interest, prevention and detection of crime etc.
15:30 16:00	“An overview of the Privacy Regime in the UK” Mr. Christopher Graham, Information Commissioner, UK
16:00 16:15	Tea
16:15 17:00	Defining and protecting personal data and personal sensitive data a. Definitions and distinctions between personal data vs personal sensitive data b. Levels of protection for personal data vs. personal sensitive data c. Penalty and remedy for breach of personal data vs. personal sensitive data
17:00 18:00	Penalty and Redress a. Forms and extent of penalty: fine, public notice, shut down of services etc. b. Forms of redress for the individual c. Enforcement of penalty and redress

The Speakers

Jacob Kohnstamm	Before his appointment as Chairman of the Dutch Data Protection Authority in 2004, Jacob Kohnstamm was active in Dutch politics as member of the Lower House of the Dutch Parliament, as State Secretary for Internal Affairs and as member of the Senate of the Dutch Parliament (between 1981 and 2004). Before that, he worked as a lawyer in Amsterdam. Since February 2010, Jacob Kohnstamm is Chairman of the Art. 29 Working Party of European Data Protection Authorities. Since November 2011, Jacob Kohnstamm is also Chairman of the Executive Committee of the International Conference of Data Protection and Privacy Commissioners.
Chantal Bernier	Chantal Bernier was appointed Assistant Privacy Commissioner of Canada in December 2008. Ms. Bernier started her career in the federal government as a lawyer in the Department of Justice, Canada. She went on to hold a directorship at the Privy Council Office before being appointed Assistant Deputy Minister at Indian and Northern Affairs Canada, and later on at Public Safety Canada. She holds a Bachelor of Civil Law from the University of Sherbrooke and a Masters in Public International Law from the London School of Economics and Political Science.
Christopher Graham	Christopher Graham became UK Information Commissioner in June 2009, with responsibility for overseeing the Freedom of Information Act and Data Protection Act regimes — upholding information rights in the public interest, promoting openness by public bodies and data privacy for individuals. He is the Vice Chair of the Article 29 Working Party of the European Data Protection Authorities. Christopher was the director general of the Advertising Standards Authority (ASA) from April 2000 to June 2009. From 2003-5, he was chairman of the European Advertising Standards Alliance (EASA), the federation of advertising self-regulatory bodies across the EU Single Market. Prior to joining the ASA, Christopher was for three years Secretary of the BBC. Christopher first joined the broadcaster as a news trainee in 1973. He was a Current Affairs Producer for BBC Radio and TV before becoming Managing Editor of News Programmes for TV and Radio.

Confirmations and RSVP

Please send your email confirmations for attending the Delhi Privacy Round Table on October 19, 2013, to Elonnai Hickok (elonnai@cis-india.org)

For more details visit https://cis-india.org/internet-governance/events/privacy-round-table-delhi-october-19-2013

Indian biometric ID plan faces court hurdle

praskrishna — 2013-10-03T10:58:31Z

Supreme Court in India rules -- for now -- against plan to make biometric ID mandatory for receiving services.

This article by John Ribeiro was published in Computer World on September 25, 2013. Pranesh Prakash is quoted.

A controversial biometric project in India, which could require people to produce their biometric IDs to collect government subsidies, has received a significant setback from the country's Supreme Court.

The court ruled this week in an interim order that people cannot be required to have the controversial Aadhaar identification to collect state subsidies, even as the Unique Identification Authority of India (UIDAI), the government agency that manages the project, has been trying to promote the Aadhaar number as proof of identity for a variety of services including banking.

The UIDAI has said that the scheme is voluntary, but some states and agencies have attempted to link the identification to the implementation of programs such as cash subsidies for cooking gas that benefit even the middle and richer classes.

"I signed up for Aadhaar only to ensure that I continue to get a gas cylinder at reasonable rates," said an executive in Bangalore who had queued up a few months ago for an Aadhaar number. The state of Maharashtra, for example, aims to be the first state in the country to roll out Aadhaar-linked subsidy transfers to LPG (liquified petroleum gas) consumers across all the districts in the state.

Pending a final order, the court ruled that "....no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory...."

UIDAI Chairman Nandan Nilekani did not immediately agree to discuss the court order.

The Aadhaar project is the result of an executive order, and is not backed by a law passed by India's Parliament, so its legality can be in question, said Pavan Duggal, a cyberlaw expert who practices before India's Supreme Court. The project could be in violation of the country's Information Technology Act and rules which cover collection, handling and processing of sensitive personal data, he added.

Aadhaar, though said to be voluntary, could also be in violation of fundamental rights of the Indian constitution relating to right to life and privacy, as a perception is being created that the ID will be required for subsidies and benefits, Duggal added.

The government should have considered getting an enabling law passed by Parliament for the data collection as also a strong privacy law to prevent misuse of Aadhaar related data and collation of multiple databases using Aadhaar, because of the privacy issues involved and its implications on fundamental rights, said Pranesh Prakash, Policy Director at the Centre for Internet and Society in Bangalore.

The biometric project, which collects 10 fingerprints, iris scan and other information such as name, date of birth and address, has been criticized by a number of privacy groups who worry that the data could at some point be misused by the government. There is also a risk that such large databases could be hacked, putting at risk information of people. It is not clear what are the measures taken by UIDAI to protect the authenticity and correctness of the biometric information, and prevent access by foreign powers, Duggal said.

The Aadhaar number now allows different agencies including private organizations to collect and exchange data between them, which may be useful to marketers, for example, Prakash said. Previously, it wasn't practical as the agencies would have difficulty ensuring that the information was about the same person, he added.

The Supreme Court has also ruled that illegal immigrants should not be enrolled under the Aadhaar program, which is meant to facilitate subsidized services to Indian citizens. The Aadhaar, which does not collect citizenship information, is likely to be misused by illegal migrants, activists have said.

One of the many challenges facing the Aadhaar program is that village-level politicians and influence peddlers cook up data to enroll under subsidy schemes people who are not eligible for benefits, or people who are nonexistent. The traditional paper ration card scheme and voter rolls are usually stuffed with nonexistent people or people who do not typically qualify for benefits.

Aadhaar was expected to remove these discrepancies by more accurate collection of data on people who enrolled under the scheme. But a number of users have complained that the Aadhaar cards they have received have errors in their names, addresses and other details. One newspaper reported that an Aadhaar applicant received a card that had the face of a dog in place of his photograph.

UIDAI aims to provide 600 million Aadhaar numbers to residents by 2014.

For more details visit https://cis-india.org/news/computerworld-september-25-2013-john-ribeiro-indian-biometric-id-plan-faces-court-hurdle

CIS and International Coalition Calls upon Governments to Protect Privacy

elonnai — 2013-09-25T07:21:09Z

The Centre for Internet and Society (CIS) along with the International Coalition has called upon governments across the globe to protect privacy.

On September 20 in Geneva, CIS joined a huge international coalition in calling upon countries across the globe, including India to assess whether national surveillance laws and activities are in line with their international human rights obligations.

The Centre for Internet and Society has endorsed a set of international principles against unchecked surveillance. The 13 Principles set out for the first time an evaluative framework for assessing surveillance practices in the context of international human rights obligations.

A group of civil society organizations officially presented the 13 Principles this past Friday in Geneva at a side event attended by Navi Pillay, the United Nations High Commissioner for Human Rights and the United Nations Special Rapporteur on Freedom of Expression and Opinion, Frank LaRue, during the 24th session of the Human Rights Council. The side event was hosted by the Permanent Missions of Austria, Germany, Liechtenstein, Norway, Switzerland and Hungary.

Elonnai Hickok, Programme Manager at the Centre for Internet and Society has noted that "the 13 Principles are an important first step towards informing governments, corporates, and individuals across jurisdictions, including India, about needed safeguards for surveillance practices and related policies to ensure that they are necessary and proportionate."

Navi Pillay, the United Nations High Commissioner for Human Rights, speaking at the Human Rights Council stated in her opening statement on September 9:

"Laws and policies must be adopted to address the potential for dramatic intrusion on individuals’ privacy which have been made possible by modern communications technology."

Navi Pillay, the United Nations High Commissioner for Human Rights, speaking at the event, said that:

"technological advancements have been powerful tools for democracy by giving access to all to participate in society, but increasing use of data mining by intelligence agencies blurs lines between legitimate surveillance and arbitrary mass surveillance."

Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression and Opinion made clear the case for a direct relationship between state surveillance, privacy and freedom of expression in this latest report to the Human Rights Council:

"The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. … An infringement upon one right can be both the cause and consequence of an infringement upon the other."

Speaking at the event, the UN Special Rapporteur remarked that:

"previously surveillance was carried out on targeted basis but the Internet has changed the context by providing the possibility for carrying out mass surveillance. This is the danger."

Representatives of the Centre for Internet and Society, Privacy International, the Electronic Frontier Foundation,Access,Human Rights Watch,Reporters Without Borders, Association for Progressive Communications, and theCenter for Democracy and Technology all are taking part in the event.

Find out more about the Principles at https://NecessaryandProportionate.org

Contacts

NGOs currently in Geneva for the 24^th Human Rights Council:

Access
Fabiola Carrion: fabiola@accessnow.org

Association for Progressive Communication
Shawna Finnegan: shawna@apc.org

Center for Democracy and Technology
Matthew Shears: mshears@cdt.org

Electronic Frontier Foundation
Katitza Rodriguez: katitza@eff.org - @txitua

Human Rights Watch
Cynthia Wong: wongc@hrw.org

Privacy International
Carly Nyst: carly@privacy.org

Reporters Without Borders
Lucie Morillon: lucie.morillon@rsf.org
Hélène Sackstein: helsack@gmail.com

Signatories

Argentina
Ramiro Alvarez: rugarte@adc.org.ar
Asociación por los Derechos Civiles

Argentina
Beatriz Busaniche: bea@vialibre.org.ar
Fundación Via Libre

Colombia
Carolina Botero: carobotero@gmail.com
Fundación Karisma

Egypt
Ahmed Ezzat: ahmed.ezzat@afteegypt.org
Afteegypt

Honduras
Hedme Sierra-Castro: hedme.sc@gmail.com
ACI-Participa

India
Elonnai Hickok: elonnai@cis-india.org
Center for Internet and Society

Korea
Prof. Park: kyungsinpark@korea.ac.kr
Open Net Korea

Macedonia
Bardhyl Jashari: info@metamorphosis.org.mk
Metamorphosis Foundation for Internet and Society

Mauritania, Senegal, Tanzania
Abadacar Diop: jonction_jonction@yahoo.fr
Jonction

Portugal
Andreia Martins: andreia@coolpolitics.pt
ASSOCIAÇÃO COOLPOLITICS

Peru
Miguel Morachimo: morachimo@gmail.com
Hiperderecho

Russia
Andrei Soldatov: soldatov@agentura.ru
Agentura.ru

Serbia
Djordje Krivokapic: krivokapic@gmail.com
SHARE Foundation

Western Balkans
Valentina Pellizer: valentina.pellizzer@oneworldsee.org
Oneworldsee

Brasil
Marcelo Saldanha: instituto@bemestarbrasil.org.br
IBEBrasil

For more details visit https://cis-india.org/internet-governance/blog/cis-and-international-coalition-calls-upon-governments-to-protect-privacy

Three Years Later, IPaidABribe.com Pays Off

praskrishna — 2013-09-25T06:05:05Z

After reporting a bribe on IPaidABribe.com, one Bangalore student has had the satisfaction of seeing action taken against a corrupt public official.

This article by Jessica McKenzie was published in TechPresident on September 23, 2013. Sunil Abraham is quoted.

The student, Shubham Kahndelwal, was asked to give a bribe before getting a receipt for registering for an identity card called the AADHAAR card. He at first refused, but then gave in. In response, the official gave him a receipt for his father's registration (which he had submitted along with his own) but not his. He told I Paid A Bribe that he “never knew a simple complaint could make such a difference.”

Kahndelwal elaborated:

I was in Chennai when the incident happened and after that I was furious and was searching all over to look for a complaint mechanism, when I stumbled upon IPaidaBribe.com. It is a great day and event for me and for me to share with my friends.

IPaidABribe.com was launched in August 2010 by the Bangalore-based nonprofit Janaagraha, which focuses on civic engagement and improving governance.

When first launched, there were concerns over privacy issues and protecting the users who submit complaints. On the other hand, in an interview this May with techPresident's David Eaves, Sunil Abraham, the founder of the Center for Internet & Society, pointed out that in order to make a difference, I Paid A Bribe would somehow have to close the loop.

Abraham went on:

some of the things that go on with anonymous reporting cannot happen, and to close the loop it almost needs to become a paralegal infrastructure. It has to talk to law enforcement and people have to be arrested, prosecuted and put away.

That is apparently what happened in this case. The official in question has been blacklisted and had disciplinary action taken against him.

To put the success in perspective, however, the bribe requested was Rs 2000 (US$31.95) and the bribe ultimately given was only Rs 350 (US$5.59).

Abraham also pointed out to Eaves that the real problem in India is “high ticket bribes...at the top of the pyramid.”

So while complaints from people like Kahndelwal are what keep the feeds at IPaidABribe.com constantly refreshing, they're mere drops in the bucket when compared to the millions of dollars moving in scandals like the 2G spectrum scam.

Personal Democracy Media is grateful to the Omidyar Network and the UN Foundation for their generous support of techPresident's WeGov section.

For more details visit https://cis-india.org/news/tech-president-september-23-2013-jessica-mckenzie

Public Law and Jurisprudential Issues of Privacy: A Talk at CIS

praskrishna — 2013-12-30T12:39:23Z

On Friday, September 27, 2013, Abhayraj Naik will give a talk on public law and jurisprudential issues related to privacy. CIS will host the talk at its office in Bangalore from 4.30 p.m. to 6.00 p.m.

Abhayraj Naik

Abhayraj Naik is a graduate of the National Law School of India University, Bangalore, and the Yale Law School. He previously taught public law at the Jindal Global Law School of the OP Jindal Global University where he also co-directed the Centre for Public Law & Jurisprudence from September 2009 to July 2012.

Abhay is actively associated with the Environment Support Group, Bangalore (http://www.esgindia.org), and has also been associated with the Meiklejohn Civil Liberties Institute, Berkeley, USA; Universities Allied for Essential Medicines, USA; Culture Move, Bangalore and other national and international advocacy, activism and research groups for several years now.

Abhay's research interests include legal theory, philosophy, criminal justice reform, urban governance, ecology, and technology policy. His current research projects include interdisciplinary studies of urban street vending, information privacy, fiduciary duties, forgiveness, biopiracy, and criminal justice reform.

He enjoys cycling, travel, poetry, music, and radical educational and ecological activism.

Abhay currently teaches at the Azim Premji University in Bangalore.

VIDEO

For more details visit https://cis-india.org/internet-governance/events/public-law-and-jurisprudential-issues-of-privacy-talk-at-cis

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

bhairav — 2013-09-25T10:30:10Z

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

Preliminary

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

Surveillance and Privacy

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

Right to Privacy in India

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

Issues Pertaining to the CMS

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

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

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

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

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

The National Privacy Roundtable Meetings

bhairav — 2014-03-21T10:03:44Z

The Centre for Internet & Society ("CIS"), the Federation of Indian Chambers of Commerce and Industry ("FICCI"), the Data Security Council of India ("DSCI") and Privacy International are, in partnership, conducting a series of national privacy roundtable meetings across India from April to October 2013. The roundtable meetings are designed to discuss possible frameworks to privacy in India.

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

Background: The Roundtable Meetings and Organisers

CIS is a Bangalore-based non-profit think-tank and research organisation with interests in, amongst other fields, the law, policy and practice of free speech and privacy in India. FICCI is a non-governmental, non-profit association of approximately 250,000 Indian bodies corporate. It is the oldest and largest organisation of businesses in India and represents a national corporate consensus on policy issues. DSCI is an initiative of the National Association of Software and Service Companies, a non-profit trade association of Indian information technology ("IT") and business process outsourcing ("BPO") concerns, which promotes data protection in India. Privacy International is a London-based non-profit organisation that defends and promotes the right to privacy across the world.

Privacy in the Common Law and in India

Because privacy is a multi-faceted concept, it has rarely been singly regulated. A taxonomy of privacy yields many types of individual and social activity to be differently regulated based on the degree of harm that may be caused by intrusions into these activities.[1]

The nature of the activity is significant; activities that are implicated by the state are attended by public law concerns and those conducted by private persons inter se demand market-based regulation. Hence, because the principles underlying warranted police surveillance differ from those prompting consensual collections of personal data for commercial purposes, legal governance of these different fields must proceed differently. For this and other reasons, the legal conception of privacy — as opposed to its cultural construction – has historically been diverse and disparate.

Traditionally, specific legislations have dealt separately with individual aspects of privacy in tort law, constitutional law, criminal procedure and commercial data protection, amongst other fields. The common law does not admit an enforceable right to privacy.[2] In the absence of a specific tort of privacy, various equitable remedies, administrative laws and lesser torts have been relied upon to protect the privacy of claimants.[3]

The question of whether privacy is a constitutional right has been the subject of limited judicial debate in India. The early cases of Kharak Singh (1964)[4] and Gobind (1975)[5] considered privacy in terms of physical surveillance by the police in and around the homes of suspects and, in the latter case, the Supreme Court of India found that some of the Fundamental Rights “could be described as contributing to the right to privacy” which was nevertheless subject to a compelling public interest. This inference held the field until 1994 when, in the Rajagopal case (1994),[6] the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty guaranteed by Article 21 of the Constitution of India. However, Rajagopal dealt specifically with a book, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the PUCL case (1996)[7] and, while finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards.[8] A more robust statement of the right to privacy was made recently by the Delhi High Court in the Naz Foundation case (2011)[9] that de-criminalised consensual homosexual acts; however, this judgment is now in appeal.

Attempts to Create a Statutory Regime

The silence of the common law leaves the field of privacy in India open to occupation by statute. With the recent and rapid growth of the Indian IT and BPO industry, concerns regarding the protection of personal data to secure privacy have arisen. In May 2010, the European Union ("EU") commissioned an assessment of the adequacy of Indian data protection laws to evaluate the continued flow of personal data of European data subjects into India for processing. That assessment made adverse findings on the adequacy and preparedness of Indian data protection laws to safeguard personal data.[10]

Conducted amidst negotiations for a free trade agreement between India and the EU, the failed assessment potentially impeded the growth of India’s outsourcing industry that is heavily reliant on European and North American business.

Consequently, the Department of Electronics and Information Technology of the Ministry of Communications and Information Technology, Government of India, issued subordinate legislation under the rule-making power of the Information Technology Act, 2000 ("IT Act"), to give effect to section 43A of that statute. These rules – the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 ("Personal Data Rules")[11] — were subsequently reviewed by the Committee on Subordinate Legislation of the 15^th Lok Sabha.[12] The Committee found that the Personal Data Rules contained clauses that were ambiguous, invasive of privacy and potentially illegal.[13]

In 2011, a draft privacy legislation called the ‘Right to Privacy Bill, 2011’, which was drafted within the Department of Personnel and Training ("DoPT") of the Ministry of Personnel, Public Grievances and Pensions, Government of India, was made available on the internet along with several file notings ("First DoPT Bill"). The First DoPT Bill contained provisions for the regulation of personal data, interception of communications, visual surveillance and direct marketing. The First DoPT Bill was referred to a Committee of Secretaries chaired by the Cabinet Secretary which, on 27 May 2011, recommended several changes including re-drafts of the chapters relating to interception of communications and surveillance.

Aware of the need for personal data protection laws to enable economic growth, the Planning Commission constituted a Group of Experts under the chairmanship of Justice Ajit P. Shah, a retired Chief Justice of the Delhi High Court who delivered the judgment in the Naz Foundation case, to study foreign privacy laws, analyse existing Indian legal provisions and make specific proposals for incorporation into future Indian law. The Justice Shah Group of Experts submitted its Report to the Planning Commission on 16 October 2012 wherein it proposed the adoption of nine National Privacy Principles.[14] These are the principles of notice, choice and consent, collection limitation, purpose limitation, disclosure of information, security, openness, and accountability. The Report recommended the application of these principles in laws relating to interception of communications, video and audio recordings, use of personal identifiers, bodily and genetic material, and personal data.

Criminal Procedure and Special Laws Relating to Privacy

While the Kharak Singh and Gobind cases first brought the questions of permissibility and limits of police surveillance to the Supreme Court, the power to collect information and personal data of a person is firmly embedded in Indian criminal law and procedure. Surveillance is an essential condition of the nation-state; the inherent logic of its foundation requires the nation-state to perpetuate itself by interdicting threats to its peaceful existence. Surveillance is a method by which the nation-state’s agencies interdict those threats. The challenge for democratic countries such as India is to find the optimal balance between police powers of surveillance and the essential freedoms of its citizens, including the right to privacy.

The regime governing the interception of communications is contained in section 5(2) of the Indian Telegraph Act, 1885 ("Telegraph Act") read with rule 419A of the Indian Telegraph Rules, 1951 ("Telegraph Rules"). The Telegraph Rules were amended in 2007[15] to give effect to, amongst other things, the procedural safeguards laid down by the Supreme Court in the PUCL case. However, India’s federal scheme permits States to also legislate in this regard. Hence, in addition to the general law on interceptions contained in the Telegraph Act and Telegraph Rules, some States have also empowered their police forces with interception functions in certain cases.[16] Ironically, even though some of these State laws invoke heightened public order concerns to justify their invasions of privacy, they establish procedural safeguards based on the principle of probable cause that surpasses the Telegraph Rules.

In addition, further subordinate legislation issued to fulfil the provisions of sections 69(2) and 69B(3) of the IT Act permit the interception and monitoring of electronic communications — including emails — to collect traffic data and to intercept, monitor, and decrypt electronic communications.[17]

The proposed Privacy (Protection) Bill, 2013 and Roundtable Meetings

In this background, the proposed Privacy (Protection) Bill, 2013 seeks to protect privacy by regulating (i) the manner in which personal data is collected, processed, stored, transferred and destroyed — both by private persons for commercial gain and by the state for the purpose of governance; (ii) the conditions upon which, and procedure for, interceptions of communications — both voice and data communications, including both data-in-motion and data-at-rest — may be conducted and the authorities permitted to exercise those powers; and, (iii) the manner in which forms of surveillance not amounting to interceptions of communications — including the collection of intelligence from humans, signals, geospatial sources, measurements and signatures, and financial sources — may be conducted.

Previous roundtable meetings to seek comments and opinion on the proposed Privacy (Protection) Bill, 2013 took place at:

New Delhi: April 13, 2013 (http://bit.ly/17REl0W) with 45 participants;
Bangalore: April 20, 2013 (http://bit.ly/162t8rU) with 45 participants;
Chennai: May 18, 2013 (http://bit.ly/12ICGYD) with 25 participants.
Mumbai, June 15, 2013 (http://bit.ly/12fJSvZ) with 20 participants;
Kolkata: July 13, 2013 (http://bit.ly/11dgINZ) with 25 participants; and
New Delhi: August 24, 2013 (http://bit.ly/195cWIf) with 40 participants.

The roundtable meetings were multi-stakeholder events with participation from industry representatives, lawyers, journalists, civil society organizations and Government representatives. On an average, 75 per cent of the participants represented industry concerns, 15 per cent represented civil society and 10 per cent represented regulatory authorities. The model followed at the roundtable meetings allowed for equal participation from all participants.

[1]. See generally, Dan Solove, “A Taxonomy of Privacy” University of Pennsylvania Law Review (Vol. 154, No. 3, January 2006).

[2]. Wainwright v. Home Office [2003] UKHL 53.

[3]. See A v. B plc [2003] QB 195; Wainwright v. Home Office [2001] EWCA Civ 2081; R (Ellis) v. Chief Constable of Essex Police [2003] EWHC 1321 (Admin).

[4]. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.

[5]. Gobind v. State of Madhya Pradesh AIR 1975 SC 1378.

[6]. R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264.

[7]. People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 30.

[8]. A Division Bench of the Supreme Court of India comprising Kuldip Singh and Saghir Ahmad, JJ, found that the procedure set out in section 5(2) of the Indian Telegraph Act, 1885 and rule 419 of the Indian Telegraph Rules, 1951 did not meet the “just, fair and reasonable” test laid down in Maneka Gandhi v. Union of India AIR 1978 SC 597 requisite for the deprivation of the right to personal liberty, from whence the Division Bench found a right to privacy emanated, guaranteed under Article 21 of the Constitution of India. Therefore, Kuldip Singh, J, imposed nine additional procedural safeguards that are listed in paragraph 35 of the judgment.

[9]. Naz Foundation v. Government of NCT Delhi (2009) 160 DLT 277.

[10]. The 2010 data adequacy assessment of Indian data protection laws was conducted by Professor Graham Greenleaf. His account of the process and his summary of Indian law can found at Graham Greenleaf, "Promises and Illusions of Data Protection in Indian Law" International Data Privacy Law (47-69, Vol. 1, No. 1, March 2011).

[11]. The Rules were brought into effect vide Notification GSR 313(E) on 11 April 2011. CIS submitted comments on the Rules that can be found here – http://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011.

[12]. The Committee on Subordinate Legislation, a parliamentary ‘watchdog’ committee, is mandated by rules 317-322 of the Rules of Procedure and Conduct of Business in the Lok Sabha (14^th edn., New Delhi: Lok Sabha Secretariat, 2010) to examine the validity of subordinate legislation.

[13]. See the 31^st Report of the Committee on Subordinate Legislation that was presented on 21 March 2013.

[14]. See paragraphs 7.14-7.17 on pages 69-72 of the Report of the Group of Experts on Privacy, 16 October 2012, Planning Commission, Government of India.

[15]. See, the Indian Telegraph (Amendment) Rules, 2007, which were brought into effect vide Notification GSR 193(E) of the Department of Telecommunications of the Ministry of Communications and Information Technology, Government of India, dated 1 March 2007.

[16]. See, inter alia, section 14 of the Maharashtra Control of Organised Crime Act, 1999; section 14 of the Andhra Pradesh Control of Organised Crime Act, 2001; and, section 14 of the Karnataka Control of Organised Crime Act, 2000.

[17]. See, the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data and Information) Rules, 2009 vide GSR 782 (E) dated 27 October 2009; and, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 vide GSR 780 (E) dated 27 October 2009.

For more details visit https://cis-india.org/internet-governance/blog/national-privacy-roundtable-meetings

Privacy and Surveillance in India

praskrishna — 2013-09-13T09:49:25Z

Sunil Abraham, Executive Director from the Centre for Internet and Society will give a talk on privacy and surveillance in India at this event organised by the Centre for Culture, Media and Governance, Jamia Millia Islamia on September 18, 2013. The talk will be held at Network Governance Lab, CCMG, Jamia Millia Islamia in New Delhi at 11.30 a.m.

Click to read the brochure

Abstract

The talk will cover the development of privacy policy in India over the last 3 years, particularly in relation to projects such as NATGRID, CMS and UID. Special attention will be paid to the Justice A.P. Shah committee report, the last leak of the privacy bill from the DoPT and also the citizen draft of the privacy bill developed by the Centre for Internet and Society. International experiences such as Snowden's disclosures and the development of communication surveillance principles developed by EFF and others will be compared and contrasted with the Indian context.

About the Speaker

Sunil is the executive director of the Centre for Internet and Society (CIS), Bangalore. CIS is a 4 year old policy and academic research organisation that focuses on accessibility by the disabled, intellectual property rights policy reform, openness [Free/Open Source Software, Open Standards, Open Content, Open Access and Open Educational Resources], internet governance, telecom, digital natives and digital humanities.

He is also the founder of Mahiti, a social enterprise aiming to reduce the cost and complexity of information and communication technology for the voluntary sector by using free software. Sunil continues to serve on the board of Mahiti. He is an Ashoka fellow and was elected for a Sarai FLOSS Fellowship. For three years, Sunil also managed the International Open Source Network, a project of United Nations Development Programme's Asia-Pacific Development Information Programme, serving 42 countries in the Asia-Pacific region.

Sunil currently serves on the advisory boards of Open Society Foundations - Information Programme, Mahiti, Samvada and International Centre for Free/Open Source Software.

For more details visit https://cis-india.org/news/jamia-millia-islamia-new-delhi-september-18-2013-privacy-and-surveillance-in-india

Centre for Internet and Society

Concerns Regarding DNA Law

Background

Primary Issues

Purpose of DNA Profiling

Procedural Integrity

Conditions of Collection

Retention of DNA

DNA Laboratories

The India Privacy Monitor Map

Re: The Human DNA Profiling Bill, 2012

Privacy Meet

An Analysis of the Cases Filed under Section 46 of the Information Technology Act, 2000 for Adjudication in the State of Maharashtra

Background

Excursus

The Cases related to Privacy

A Privacy Meeting with the Federal Trade Commission in New Delhi

Privacy (Protection) Bill, 2013: Updated Third Draft

Privacy Round Table, New Delhi (October 2013)

Agenda

The Speakers

Jacob Kohnstamm

Chantal Bernier

Christopher Graham

Confirmations and RSVP

Indian biometric ID plan faces court hurdle

CIS and International Coalition Calls upon Governments to Protect Privacy

Contacts

Three Years Later, IPaidABribe.com Pays Off

Public Law and Jurisprudential Issues of Privacy: A Talk at CIS

Abhayraj Naik

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

The National Privacy Roundtable Meetings

Background: The Roundtable Meetings and Organisers

Privacy in the Common Law and in India

Attempts to Create a Statutory Regime

Criminal Procedure and Special Laws Relating to Privacy

The proposed Privacy (Protection) Bill, 2013 and Roundtable Meetings

Privacy and Surveillance in India

Abstract

About the Speaker