Centre for Internet and Society

Your life's an open Facebook

praskrishna — 2013-07-26T04:53:11Z

The jury's out on Facebook's newly introduced Graph Search. While some argue that it's a stalker's dream come true, others say it's a great tool for social research. Shikha Kumar jumps right into the debate.

Shikha Kumar's article was published in DNA on July 21, 2013. Sunil Abraham is quoted.

Do this little exercise. Log on to Facebook and type ‘friends of friends who are single’ or ‘friends of friends who like dancing’ in the search bar on the top left hand of the screen. A long list of names with photographs of people you may have never seen in your life will pop up in front of you. Better still (or worse, depending on perspective), you can refine this search further with the drop down menu on the right hand side of the screen; you can filter the results on the basis of gender, employer, current city, hometown and so on.

Now, depending on whether you are paranoid about your privacy, or don’t give a damn (since the government is snooping on us anyway), you will either view this feature as a stalker’s dream come true or just another irritant to rant about for a day and then forget.

Whatever your reaction, Graph Search, an upgrade on Facebook’s rudimentary ‘search’, is here to stay and it holds the potential to forever change the ‘search’ behaviour of its members.

HOW DOES IT WORK?
Put simply, Graph Search is the Google search of Facebook. It indexes every little detail you have shared on Facebook — every drunken ‘like’, every status update, every unflattering photograph you are tagged in, every joke you’ve shared — so that a simple search can throw up pretty specific answers. A beta version was unveiled to a select audience in January but it went live for all English (US) users early last week.

A look at a Tumblr blog called ‘Actual Facebook Graph Searches’ gives an indication of how specific the results can get. Ranging from humorous to downright outrageous, some queries posted included ‘Single women who live nearby and who are interested in men and like Getting Drunk’ and ‘Married people who like Prostitutes.’

This is exactly why people like Adarsh Matham, a 29-year-old tech writer, cite as reason for never having been on Facebook. While he does admit the new feature can be very useful in finding jobs, dates, new friends and local businesses, he says the downsides trump the benefits. “Imagine if some pervert searches for ‘girls who like Fifty Shades of Grey in Mumbai’… It will make it easier for him to stalk them,” says Matham.

If you use your imagination, the list won’t end. Imagine what perverts at your workplace and in your apartment complex who are not ‘friends’ with you on Facebook can do with information they glean about you thanks to Graph Search.

Matham is particularly concerned with Graph Search’s misuse in India because of our social attitudes and tendency to slot people into types and judge them immediately. “One of the first things that people do when they go for a job or on a date is a Google search. Soon they will do a Graph Search too. This is a complete intrusion of one’s privacy.”

Sunil Abraham, director at the Bangalore-based Centre for Internet and Society, thinks the privacy implications are worrying because the average Indian user is not a ‘power’ user who fully exploits the site’s advanced features and is thus unclear about what personal information is public or private. “People need to be very cautious as they’re leaving behind a digital trail that is always searchable unlike on other platforms like Twitter. It’s like tattooing yourself, it’s permanent but you may not be comfortable with it in the future,” he says.

A brilliant format
Privacy concerns aside, many have warmed up to the benefits of Graph Search. Raghu Mohan, a Bangalore-based writer with YourStory.in, has used it for over six months and has only good things to say about it. “I think it’s a remarkable engineering feat. Any platform with a user data of over a billion people needs to come up with such a search facility,” says Mohan, adding that the tool has been very useful in finding work-related data.

Chetan Asher, founder and CEO of Tonic Media, a social media agency, agrees with him, saying the new feature is “very exciting” purely because of its ability to index information that was always there, but was buried somewhere. “The simple phrase-like format is brilliant… It completely changes the way you network and mine for information.”

Mohan adds that start-ups can benefit with what the feature offers. “Though not a complete marketing tool, Graph Search patterns can also provide more targeted behaviour for advertisers.” Mohan also looks at the feature as a social influencer. “If I’m looking to buy a new car, I’d rather use Graph Search to find out opinions based on my friends’ recommendations than a web search involving strangers,” he says.

From his experience, Asher says that the site doesn’t compromise the privacy settings that the user has set. But Ankit Tuteja, a 23-year-old technology expert in Delhi, would beg to differ with this. Tuteja has experimented with random searches to gauge how the feature worked with different privacy settings and found that Facebook tends to override certain security settings. “The security of your photographs are a major cause for concern,” he cautions.

For those concerned about privacy, it’s best to think carefully before ‘liking’ or uploading anything as it will remain in the digital realm forever, says Abraham. Mohan shrugs off privacy concerns as overrated. “You lost your personal life when you went online. Stalking can happen otherwise too.”

This innovation is clearly important to the company. While Asher says it is part of Facebook’s long-term plans to move beyond networking, Abraham says that faced with slow overall growth globally (except in markets like India), such innovations are just an attempt to keep its user base intact.

The more things change...
Whatever the reaction, Facebook is probably banking on the fact that after initial protests and social media debates, people will come around to accepting this intrusion into their private lives.

The American news satire website The Onion pretty much nailed this when, in a satirical piece, it ‘quoted’ Zuckerberg as saying: “Facebook will introduce a bunch of new features that everyone will hate, that will make your experience worse, you will complain about it, and then you will realize you are utterly powerless to do anything about these new features, at which point you will move on and continue to use our product every single day. Any users who strongly disagree with their policy should feel free to deactivate their accounts and reactivate them two days later.”

Admit it, you’ll probably be one of them.

For more details visit https://cis-india.org/news/dna-july-21-2013-shikha-kumar-your-life-is-an-open-facebook

Meeting of a Sub-committee on DNA Profiling Bill in Hyderabad

praskrishna — 2013-08-21T06:21:44Z

A sub-committee has been constituted as per the recommendations of the Expert Committee of DNA Profiling Bill. The sub-committee will have a meeting in Hyderabad on August 6, 2013.

The sub-committee was constituted with the following members:

Dr. Raghbir Singh, Former Secretary, Legislative Department, Ministry of Law, New Delhi
Shri. Kamal Kumar, IPS, (Retd.), Director General of Police, Hyderabad
Mr. Sunil Abraham, Executive Director, Centre for Internet and Society, Bangalore
Dr. Alka Sharma, Director, DBT
Dr. Madhusudan Reddy, Staff Scientist and Group Leader, CDFD, Hyderabad

The meeting has been scheduled for August 6, 2013, 10.30 a.m. at CDFD, Hyderabad to incorporate the ipunts/suggestions of the members of the Expert Committee appropriately in the draft Human Profiling Bill. The comments/inputs on the draft Bill have been requested from all the members of the Expert Committee. Once received, the same will be forwarded to you for further discussion in the sub-committee meeting.

The information was communicated by Dr. Alka Sharma, Director/Scientist F, Medical Biotechnology Division, R. No. 713, Department of Biotechnology, Ministry of Science & Technology, Government of India,

For more details visit https://cis-india.org/news/meeting-of-sub-committee-on-dna-profiling-bill

Report on the 5th Privacy Round Table meeting

maria — 2013-07-26T08:24:27Z

This report entails an overview of the discussions and recommendations of the fifth Privacy Round Table in Calcutta, on 13th July 2013.

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

In 2013, the Centre for Internet and Society (CIS) in collaboration with the Federation of Indian Chambers of Commerce and Industry (FICCI), and the Data Security Council of India (DSCI), is holding a series of seven multi-stakeholder round table meetings on “privacy” from April 2013 to October 2013. The CIS is undertaking this initiative as part of their work with Privacy International UK on the SAFEGUARD project.

In 2012, the CIS and DSCI were members of the Justice AP Shah Committee which created the “Report of Groups of Experts on Privacy”. The CIS has recently drafted a Privacy (Protection) Bill 2013, with the objective of contributing to privacy legislation in India. The CIS has also volunteered to champion the session/workshops on “privacy” in the meeting on Internet Governance proposed for October 2013.

At the roundtables the Report of the Group of Experts on Privacy, DSCI´s paper on “Strengthening Privacy Protection through Co-regulation” and the text of the Privacy (Protection) Bill 2013 will be discussed. The discussions and recommendations from the round table meetings will be presented at the Internet Governance meeting in October 2013.

The dates of the seven Privacy Round Table meetings are enlisted below:

New Delhi Roundtable: 13 April 2013
Bangalore Roundtable: 20 April 2013
Chennai Roundtable: 18 May 2013
Mumbai Roundtable: 15 June 2013
Kolkata Roundtable: 13 July 2013
New Delhi Roundtable: 24 August 2013
New Delhi Final Roundtable and National Meeting: 19 October 2013

Following the first four Privacy Round Tables in Delhi, Bangalore, Chennai and Mumbai, this report entails an overview of the discussions and recommendations of the fifth Privacy Round Table meeting in Kolkata, on 13th July 2013.

Presentation by Mr. Reijo Aarnio – Finnish Data Protection Ombudsman

The fifth Privacy Round Table meeting began with a presentation by Mr. Reijo Aarnio, the Finnish Data Protection Ombudsman. In particular, Mr. Aarnio initiated his presentation by distinguishing privacy and data protection and by emphasizing the need to protect both equally within a legal framework. Mr. Aarnio proceeded by highlighting that 96 percent of the Finnish community believes that data protection is necessary, especially since it is considered to play an essential role in the enhancement of the self-determination of the individual. Fuerthermore, Mr. Aarnio pointed out that the right to privacy in Finland in guaranteed under section 10 of the Finnish constitution.

The Finnish Data Protection Ombudsman argued that in order for India to gain European data protection adequacy, the implementation of a regulation for data protection in the country is a necessary prerequisite. Mr. Aarnio argued that although the draft Privacy (Protection) Bill 2013 provides a decisive step in regulating the use of data, the interception of communications and surveillance in India, it lacks in defining the data controller and the data subject, both of which should be legally specified.

In order to support his argument that India needs privacy legislation, the Ombudsman clarified the term “data protection” by stating that it relates to the following:

individual autonomy
the right to know
the right to live without undue interference
the right to be evaluated on the basis of correct and relevant information
the right to know the criteria automatic decision-making systems are based on
the right to trust data security
the right to receive assistance from independent authorities
the right to be treated in accordance with all other basic rights in a democracy
the right to have access to public documents
the freedom of speech

In addition to the above, Mr. Aarnio argued that the reason why data protection is important is because it ensures the respect for human dignity, individual autonomy and honor.

The Finnish Data Protection Ombudsman gave a brief overview of the development and history of data protection, by citing the oathe of Hippokrates, the Great Revolutions and World War II, all throughout which data protection has gained increased significance. Mr. Aarnio pointed out that as a result of the development and proliferation of technology, societies have evolved and that data protection is a major component of the contemporary Information Society. The Ombudsman stated that in the Information Society, information is money and open data and big data are products which are being commercialised and commodified. Hence, in order to ensure that human rights are not commericalised and commodified in the process, it is necessary to establish legal safeguards which can prevent potential abuse.

Article 8 of the European Charter of Fundamental Rights guarantees the protection of personal data. Mr. Aarnio argued that the Parliament is the most important data protection authority in Europe and that privacy is legally guaranteed on three levels:

Protection of personal life: The Criminal Code (chapter 24) addresses and protects freedom of speech and secrecy regulations
Communication: Protection of content and traffic data
Data Protection: The Personal Data Act creates Right to Know and to affect/impact, the right to organise one's personal life, automatic processing of personal data and maintenance of register

The Ombudsman also referred to the Directive 95/46/EC of the European Parliament of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data.

Mr. Aarnio argued that in the contemporary ecosystem of the Information Society, countries need “Privacy by Design”, which entails the description of the processing of personal data and the evaluation of its lawfulness. In particular, the purpose for the collection and processing of data should be legally defined, as well as whether such data will be shared with third parties, disclosed and/or retained. The Ombudsman argued that India needs to define its data controllers and to legally specify their roles, in order to ensure that the management of data does not result in the infringement upon the right to privacy and other human rights.

The Finnish Data Protection Ombudsman concluded his presentation by stating that data security is not only a technological matter, but also – and in some cases, mostly – a legal issue, which is why India should enact the draft Privacy (Protection) Bill 2013.

Discussion of the draft Privacy (Protection) Bill 2013

Chapter I: Definitions

The discussion of the draft Privacy (Protection) Bill 2013 commenced with a debate on whether such a Bill is necessary at all, given that section 43 of the IT Act is considered (by participants at the round table) to regulate the protection of data. It was pointed out that although section 43 of the Information Technology Act provides some rules for data protection, the Committee has stated that these rules are inadequate. In particular, India currently lacks statutory provisions dealing with data protection and rules are inadequate because they are subject to parliamentary debate, and the Parliament does not have the right to vote on rules. The Parliament does not have the right to amend rules, which means that it does not have the right to amend the rules on data protection under the IT Act. Since the rules under section 43 of the IT Act are not subject to parliamentary review, India needs a seperate privacy statutue. Hence, the round table reached a consensus on the discussion of the draft Privacy (Protection) Bill 2013.

Personal data is defined in the draft Privacy (Protection) Bill 2013 as any data which relates to a natural person, while sensitive personal data is defined as a subset of personal data, such as biometric data, medical history, sexual preference, political affiliation and criminal history. It was pointed out that race, religion and caste are not included in the Bill's definition for sensitive personal data because the Government of India refuses to acknowledge these types of information as personal data. According to the Government, the collection of such data is routine and there have been no cases when such data has been breached, which is why race, religion and caste should not be included in the definition for sensitive personal information. However, the last caste sensus took place in 1931 and since then there has been no caste sensus, because it is considered to be a sensitive issue. This contradictory fact to the government's position was pointed out during the round table meeting.

A participant argued that financial information should be included within the definition for sensitive personal data. This was countered by a participant who argued that India has the Credit Information Companies Act which covers credit information and sets out specific information for the protection of credit data by banks and relevant companies. Yet the question of whether general financial information should be included in the definition for sensitive personal data was further discussed, and many participants supported its inclusion in the definition.

The question of whether IP addresses should be included in the definition for personal data was raised. The response to this question was that IP addresses should be included in the definition since they relate to the identification of a natural person. However, the question of whether a specific IP address is considered personal data, as many individuals use the Web through the same IP address, remained unclear. Other participants raised the question of whether unborn humans and deceased persons should have privacy rights. The response to this was that in India, only the court can decide if a deceased person can have the right to privacy.

The controversy between the UID project and the protection of biometric data under the definition for sensitive personal information was discussed in the round table. In particular, it was pointed out that because the UID scheme requires the mass biometric collection in India is contradictory to the protection of such data under the Bill. As the UID scheme remains unregulated, it is unclear who will have access to the biometric data, who it will be shared with, whether it will be disclosed and retained and if so, for how long. All the questions which revolve around the implementation of the UID scheme and the use of the biometric data collected raise concerns in regards to what extent such data can realistically be protected under privacy legislation.

On this note, a participant mentioned that under EU regulation, an ID number is included in the definition for sensitive personal information and it was recommended that the same is added in India's draft Privacy (Protection) Bill 2013. Furthermore, a participant recommended that fingerprints are also included in the definition for sensitive personal data, especially in light of the NPR and UID scheme.

A participant argued that passwords should also be included in the definition for sensitive personal data, as well as private keys which are used for encryption and decryption. It was pointed out that section 69 of the IT Act requires the disclosure of encryption keys upon the request from authorities, which potentially can lead to the violation of privacy and other human rights. Hence the significance of protecting passwords and encryption keys which can safeguard data was highly emphasized and it was argued that they should definitely be included in the definition for sensitive personal data. This position was countered by a participant who argued that the Government of India should have access to private encyrption keys for national security purposes.

On the definition of sensitive personal data, it was emphasized that this term should relate to all data which can be used for discrimination, which is why it needs to be protected. It was further emphasized that it took Europe twelve years to reach a definition for personal data, which is why India still needs to look at the issue in depth and encounter all the possible violations which may potentially occur from the non-regulation of various types of data. Most participants agreed that financial information, passwords and private encryption keys should be added in the definition for sensitive personal data.

The fifth round table entailed a debate on whether political affiliation should be included in the definition for sensitive personal data. In particular, one participant argued that political parties disclose the names of their members and that in many cases they are required to do in order to show their source of income. Hence, it was argued that political affiliation should not be included in the definition for sensitive personal data, since it is not realistic to expect political parties to protect their members' privacy. This was countered by other participants who argued that anonymity in political communications is important, especially when an individual is in a minority position, which is why the term political affiliation should be included in the definition for sensitive personal data.

The discussion on the definitions in the draft Privacy (Protection) Bill 2013 concluded with comments that the definiton for surveillance is very exclusive of many types of surveillance. In particular, it was argued that the definition for surveillance does not appear to cover artificial intelligence, screen shots and various other forms of surveillance, all of which should be regulated.

Chapter II: Right to Privacy

Section 4 of the draft Privacy (Protection) Bill 2013 states that all natural persons have a right to privacy. Section 5 of the Bill includes exemptions to the right to privacy. On this note, it was pointed out that during the round table that there is no universal definition of privacy and thus it is challenging to define the term and to regulate it. Furthermore, the rapid pace at which technology is proliferating was emphasized, along with its impact on the right to privacy. For example, it was mentioned that emails were not covered by privacy legislation in the past, but this needs to be amended accordingly. The European Data Protection Directive was established in 1995 and does not regulate many privacy issues which arise through the Internet, which is why it is currently being reviewed. Similarily, it was argued that privacy legislation in India should encompass provisions for potential data breaches which may occur through the Internet and various forms of technology.

A participant argued that the draft Privacy (Protection) Bill 2013 should include provisions for data subjects, which enable them to address their rights. In particular, it was argued that data subjects should have the right to access information collected and retained about them and that they should have the right to make corrections. The reponse to this comment was that the Bill may be split into two seperate Bills, where the one would regulate data protection and the other would regulate the interception of communications and surveillance, while the data subject would be addressed extensively. Furthermore, participants raised questions of how to define the data controller and the data subjects within the Indian context.

Other questions which were raised during the round table included whether spam should be addressed by the Bill. Several participants argued that spam should not be regulated, as it is not necessarily harmful to data subjects. Other participants argued that the isse of access to data should be addressed prior to the definition of privacy. Another argument was that commerical surveillance should not be conducted within restrictions, which is why it should not be inlcuded in the exemptions to the right to privacy. It was also pointed out that residential surveillance should be allowed, as long as the cameras are pointed inwards and do not capture footage of third parties outside of a residence. On this note, it was argued that surveillance in the work place should also be exempted from the right to privacy, as that too can be considered the private property of the owner. Moreover, it was emphasized that the surveillance of specific categories of people should also be excluded from the exemptions to the right to privacy.

A participant argued that in some cases, NGOs may be collecting information for some “beneficial purpose” and that such cases should be excluded from the exemptions to the right to privacy. Other participants argued that in many cases, data needs to be collected for market research and that the Bill should regulate what applies in such cases. All such arguments were countered by a participant, who argued that Section 5 of the Bill on the exemptions to the right to privacy should be deleted, as it creates to many complications. This recommendation was backed up by the example of a husband capturing a photograph of his wife and then publishing the image without her consent.

During this discussion, a participant raised the question of to what extent the right to privacy applies to minors. This question was supported by the example of Facebook, where many minors have profiles but the extent to which this data is protected remains ambiguous. Furthermore, it was pointed out that it remains unclear whether privacy legislation can practically safeguard minors who choose to share their data online. A participant responded to these concerns by stating that Facebook is a data controller and has to comply with privacy law to protect its customers' data. It was pointed out that it does not matter if the data controller is a company or an NGO; in every case, the data controller is obliged to comply with data protection law and regulations.

Furthermore, it was pointed out that Facebook allows for minors aged 13 to create a profile, while it remains unclear how minors can enforce their privacy rights. In particular, it remains unclear how the mediated collection of minors' data can be regulated and it was recommended that this is addressed by the Bill. A participant replied to this by stating that Indian laws rule in favour of minors, but that this simultaneously remains a grey area. In particular, it was pointed out that rules under section 43 of the Information Technology (IT) Act cover Internet access by minors, but this still remains an unclear area which needs further debate and analysis.

The question which prevailed at the end of the discussion of Chapter 2 of the Bill was on the social media and minors, and on how minors' data can be protected when it is being published immediately through the social media, such as Facebook. Furthermore, it was recommended that the Bill addresses the practical operationalisation of the right to privacy within the Indian context.

Chapter III: Protection of Personal Data

The discussion of Chapter 3 of the draft Privacy (Protection) Bill 2013 on the protection of personal data commenced with a reference to the nine privacy principles of the Justice AP Shah Justice Committee. The significance of the principles of notice and consent were outlined, as it was argued that individuals should have the right to be informed about the data collected about them, as well as to have the rigt to access such data and make possible corrections.

Collection of Personal Data

The discussion on the collection of personal data (as outlined in Section 6 of Chapter 3 of the Bill) commenced with a participant arguing that a company seeking to collect personal data should always have a stated function. In particular, a company selling technological products or services should not collect biometric data, for example, unless it serves a specified function. It was pointed out that data collection should be restricted to the specified purposes. For example, a hospital should be able to collect medical data because it relates to its stated function, but an online company which provides services should not be eligible to collect such data, as it deviates from its stated function.

During the discussion, it was emphasized that individuals should have the right to be informed when their data is being collected, which data is being collected, the conditions for the disclosure of such data and everything else that revolves around the use of their data once it has been collected. However, a participant questioned whether it is practically feasible for individuals to provide consent to the collection of their data every time it is being collected, especially since the privacy policies of companies keep changing. Moreover, it was questioned whether companies can or should resume the consent of their customers once their privacy policy has changed. On this note, a participant argued that companies should be obliged to notify their customers every time their privacy policy changes and every time the purpose behind their data collection changes.

On the issue of consent for data collection, a participant argued that individuals should have the right to withdraw their consent, even after their data has been collected and in such cases, such data should be destroyed. This was countered by another participant who argued that it is not realistic to expect companies to acquire individual consent every time the purpose behind data collection changes, nor is it feasible to allow for the withdrawal of consent without probable cause.

The issue of indirect consent to the collection of personal data was raised and, in particular, several participants argued that the Bill should have provisions which would regulate circumstances where indirect consent can be obtained for the collection of personal data. Furthermore, it was emphasized that the Bill should also include a notice for all potential purposes of data collection which may arise in the future; if the purpose for data collection changes based on conditions specified, then companies should not be mandated to notify individuals. Moreover, a participant argued that the Bill should include provisions which would enable individuals to opt-in and/or opt-out from data collection.

On the issue of consent, it was further outlined that consent provides a legitimate purpose to process data and that the data subject should have the right to be informed prior to the collection of his or her data. However, it was emphasized that the draft Privacy (Protection) Bill 2013 is a very strict regulation, as consent cannot always be acquired prior to data collection, because there are many cases where this is not practically feasible. It was pointed out that in the European Data Protection Directive, it is clear that consent cannot always be acquired prior to data collection. The example of medical cases was mentioned, as patients may not always be capable to provide consent to data collection which may be necessary.

In particular, it was highlighted that the European Data Protection Directive includes provisions for the processing of personal data, as well as exceptions for when consent is not required prior to data collection. The Directive guarantees the legitimate interest of the data controller and data processing is based upon the provisions of privacy legislation. The outsourcing of data is regulated in the European Union, and it was recommended that India regulates it too. Following this comment, it was stated that the recent leaks on the NSA's surveillance raise the issue of non-consentual state collection of data and non-consentual private disclosure of data and a brief debate revolved around these issues in the round table.

On the issue of mediated data collection, the situations in which collected data is mediated by third parties was analysed. It was recommended that the law is flexible to address the various types of cases when collected data is mediated, such as when a guardian needs to handle and take decisions for data of a mentally disabled person being collected. However, it was pointed out that mediated data collection should be addressed sectorally, as a doctor, for example, would address mediated data in a different manner than a company. It was emphasized that specific cases – such a parent taking a mediated decision on the data collection of his or her child – should be enabled, whereas all other cases should be prohibited. Thus it was recommended that language to address the mediated collection of data should be included in the Bill.

A participant raised the question of whether there should be seperate laws for the private collection of data and state collection of data. It was mentioned that this is the case in Canada. Another question which was raised was what happens when state collectors hire private contractors. The UID was brought as an example of state collection of data, while private contractors have been hired and are involved in the process of data collection. This could potentially enable the collection and access of data by unauthorised third parties, to which individuals may have not given their consent to. Thus it was strongly recommended that the Bill addresses such cases and prevents unauthorised collection and access of data.

The discussion on the collection of personal data ended with an interesting test case study for privacy: should the media have the right to disclose individuals' personal data? A debate revolved around this question and participants recommended that the Bill regulates the collection, processing, sharing, disclosure and retention of personal data by the media.

Retention of Personal Data

The discussion on the retention of personal data commenced with the statement that there are various exceptions to the retention of data in India, which are outlined in various court cases. It was pointed out that data should be retained in compliance with the law, but this is problematic as, in various occasions, a verbal order by a policeman can be considered adequate, but this can potentially increase the probability for abuse. A question which was raised was whether an Act of Parliament should allow for the long term storage of data, especially when there is inadequate data to support its long-term retention. It was pointed out that in some cases there are laws which allow for the storage of data for up to ten years, without the knowledge – let alone the consent – of the individual. Thus, the issue of data retention in India remains vague and should be addressed by the draft Privacy (Protection) Bill 2013.

Questions were raised on the duration of data retention periods and on whether there should be one general data retention law or several sectoral data retention laws. The participants disagreed on whether an Act of Parliament should regulate data retention or whether data retention should be regulated by sectoral authorities. A participant recommended “privacy by design” and stated that the question of data retention should be addressed by data controllers. Other participants raised the question of purpose limitation, especially for cases when data is being re-retained after the end of its retention period. A participant recommended that requirements for the anonymisation of data once it has exceeed its retention period should be established. However, this proposal was countered by participants who argued that the pracitcal enforcement of the anonymisation of retained data is not feasible within India.

Destruction of Personal Data

The retention of personal data can be prevented once data has been destroyed. However, participants argued that various types of data are being collected through surveillance products which are controlled by private parties. In such cases, it was argued that it remains unclear how it will be verified that data has indeed being destroyed.

A participant argued that the main problem with data destruction is that even if data has been deleted, it can be retrieved up to seven times; thus the question which arises is how can individuals know if their data has been permanently destroyed, or if it is being secretly retrieved. Questions were raised on how the permanent retention of data can be prevented, especially when even deleted data can be retrieved. Hence it was recommended that information security experts cooperate with data controllers and the Privacy Commissioner, to ensure that data is permanently destroyed and/or that data is not being accessed after the end of its retention period. Such experts would ensure that data is actually being destroyed.

Another participant pointed out the difference between the wiping of data and the deletion of data. In particular, the participant argued that data is being deleted when it is being overwritten by other data, and can potentially be recovered. Wiping of data, on the other hand, involves the wiping out of data which can never be recovered. The participant recommended that the Bill explicitly states that data is wiped out in order to ensure that data is not being indirectly retained.

Processing of Personal Data

The dicsussion on the processing of personal data began with the question of national archives. In particular, participants argued that if the processing of data is strictly regulated, that would restrict access to national archives and the draft Privacy (Protection) Bill 2013 should address this issue.

Questions were raised on the non-consentual processing of personal data and on how individual consent should be acquired prior to the processing of personal data. It was pointed out that the Article 29 Working Party has published an Opinion on purpose limitation with regards to data processing and it was recommended that a similar approach is adopted in India.

Furthermore, it was stated that IT companies are processing data from the EU and the U.S., but it remains unclear how individual consent can be obtained in such cases. A debate evolved on how to bind foreign data processors to meet the data requirements of India, as a minimum prerequisite to ensure that outsourced data is not breached. In light of the Edward Snowden leaks of NSA surveillance, many questions were raised on how Indian data outsourced and stored abroad can be protected.

It was highlighted during the round table that all data processing in India requires certification, but since the enforceability of the contracts relies on individuals, this raises issues of data security. Moreover, questions were raised on how Indian companies can protect the data of their foreign data subjects. Thus, it was recommended that the processing of data is strictly regulated through the draft Privacy (Protection) Bill 2013 to ensure that outsourced data and data processed in the country is not breached.

Security of Personal Data

On the issue of data security, the participants argued that the data subject should always be informed in cases when the confidentiality of their personal data is violated. Confidentiality is usually contractually limited, whereas secrecy is not, which is why both terms are included in the draft Privacy (Protection) Bill 2013. In particular, secrecy is usually used for public information, whereas confidentiality is not.

Participants argued that the Bill should include restrictions on the media, in order to ensure that the confidentiality and integrity of their sources' data is preserved. Several participants stated that the Bill should also include provisions for whistleblowers which would provide security and confidentiality for their data. The participants of the round table engaged in a debate on whether the media should be strictly regulated in order to ensure the confidentiality of their sources' data. On the one hand, it was argued that numerous data breaches have occured as a result of the media mishandling their sources' data. On the other hand, it was stated that all duties of secrecy are subject to the public interest, which is why the media reports on them and which is why the media should not be restricted.

Disclosure of Personal Data

The discussion on the disclosure of personal data commenced with participants pointing out that the draft Privacy (Protection) Bill 2013 does not include requirements for consent prior to the disclosure of personal data, which may potentially lead to abuse. Questions were raised on the outsourcing of Indian data abroad and on the consequences of its foreign disclosure. Once data is outsourced, it remains unclear how the lawful disclosure or non-disclosure of data can be preserved, which is why it was recommended that the Bill addresses such issues.

A participant argued that there is a binding relationship between the data controller and the data subject and that disclosure should be regulated on a contractual level. Another participant raised the question of enforcement: How can regulations on the disclosure of personal data be enforced? The response to this question was that the law should focus on the data controller and that when Indian data is being outsourced abroad, the Indian data controller should ensure that the data subjects' data is not breached. However, other participants raised the question of how data can be protected when it is outsourced to countries where the rule of law is not strong and when the country is considered inadequate in terms of data protection.

With an increased transnational flow of information, questions arise on how individuals can protect their information. A participant recommended that it should be mandatory for companies to state in their contracts who they are outsourcing data to and whether such data will be disclosed to third parties. However, this proposal as countered by a participant who argued that even if this was inforced, it is still not possible to enforce the rights of an Indian data subject in a country which does not have a strong rule of law or which generally has weak legislation. A specific example was mentioned, where E.G. Infosys and Wipro Singapore have a contractual agreement and Indian data is outsourced. It was pointed out that if such data is breached, it remains unclear if the individual should address this issue to Wipro India, as well as which law should apply in this case and whether companies should be liable.

A participant suggested that the data controller discloses data without having acquired prior consent, if the Government of India requests it. However, this was countered by a participant who argued that even in such a case, the question of regulating access to data still remains. Other participants argued that the Right to Information Act has been misused and that too much information is currently being disclosed. It was recommended that the Right to Information Act is amended and that the Bill includes strict regulations for the disclosure of personal data.

Meeting Conclusion

The fifth Privacy Round Table meeting commenced with a presentation on privacy and data protection by Mr. Reijo Aarnio, the Finnish Data Protection Ombudsman, and proceeded with a discussion of the draft Privacy (Protection) Bill 2013. The participants engaged in a heated debate and provided recommendations for the definitions used in the Bill, as well as for the regulation of data protection. The recommendations for the improvement of the draft Privacy (Protection) Bill 2013 will be considered and incorporated in the final draft.

For more details visit https://cis-india.org/internet-governance/blog/report-on-the-5th-privacy-round-table

Snooping technology: Will CMS work in India?

praskrishna — 2013-07-22T07:19:02Z

The Indian government plans to spend $132 million on setting up its brand new Central Monitoring System this year.

Pierre Fitter's article was published in FirstPost on July 17, 2013. Pranesh Prakash is quoted.

Several articles have raised valid questions about privacy violations, including this one by Danish Raza. Elsewhere, Pranesh Prakash has raised important points about how CMS may actually violate several laws and at least one Supreme Court verdict.

I ask a much more basic question: will CMS work? Can it really help security agencies eavesdrop on criminals and terrorists, despite several known technical hurdles?

	Encryption In 2008, a prominent Brazilian banker and investor named Daniel Dantas was arrested and charged with money laundering and tax evasion along with a former mayor of Sao Paulo. For five months, the Brazilian National Institute of Criminology tried to read the contents of his hard drive but failed to crack it. Dantas had encrypted his data using a free program called Truecrypt. The INC sent the hard drive to the FBI in the US, which spent a whole year trying to crack it; it too failed. Dantas’s use of encryption likely helped him escape the money laundering and tax evasion charges. He was ultimately convicted of attempting to bribe a police officer.

Encryption

In 2008, a prominent Brazilian banker and investor named Daniel Dantas was arrested and charged with money laundering and tax evasion along with a former mayor of Sao Paulo. For five months, the Brazilian National Institute of Criminology tried to read the contents of his hard drive but failed to crack it. Dantas had encrypted his data using a free program called Truecrypt. The INC sent the hard drive to the FBI in the US, which spent a whole year trying to crack it; it too failed. Dantas’s use of encryption likely helped him escape the money laundering and tax evasion charges. He was ultimately convicted of attempting to bribe a police officer.

This story illustrates a fundamental loophole at the heart of CMS. A criminal, using free and easy-to-use software, can protect his data from even the most advanced surveillance tools available in law enforcement. NSA whistle blower Edward Snowden himself used encrypted email to communicate with journalists at the Guardian. In an online chat where he took questions from the public, Snowden noted that encryption was “one of the few things that you can rely on” to protect you from the eavesdropping behemoth created of the NSA.

It should hardly be surprising then, that terror groups have been encrypting their emails and data for at least the last five years. In fact Al Qaeda developed its own encryption software called ‘Mujahideen Secrets’, to encrypt emails, chat sessions and files. Version two of Mujahideen Secrets even included a tool to delete files securely so that they could not be recovered using special software if the computer was captured. Al Qaeda’s links to several terror groups operating in India has been widely reported in the past. It is not inconceivable that they have shared their encryption software with their comrades-in-arms.

Over the years it has become easier to encrypt one’s communication. YouTube tutorials train even novice users to set up email encryption within minutes. Phone calls, text messages and online chats can also be encrypted with free, easy-to-install apps.

The biggest problem with encryption is that it is virtually impossible to break the code in a time frame that’s useful for law-enforcement purposes. Without getting too technical, modern encryption relies calculating the prime factors of very, very large integers. In 2009, a group of some of the world’s best-known mathematicians and cryptographers reported that it took them four years to factor a 768-bit integer. They estimated it would take 1,000 times longer to factorise a 1024-bit integer. GPG, which is the most widely-used email encryption software, allows users up to 4096-bit encryption. Unless you have the password to the encrypted files, it would take you a very long time to crack the encryption.

Here’s an example to help you understand why encryption makes CMS redundant. Let’s say the system intercepts an encrypted email sent by a LeT handler in Karachi to a sleeper cell in Mumbai. The email contains instructions to detonate a bomb in a specific market at a specific time four days from now. Even if India’s intelligence agencies managed to link up every computer they had available to process the encryption, they would still not be able to crack it in time to learn the details and stop the attack.

What about ‘Metadata’?

It should be noted that encryption only protects the body of the email. The metadata, including the sender’s and receiver’s email addresses remain unencrypted, else the service provider would be unable to send the email to its destination. Law enforcement agencies often partner with email providers to track down the exact computer on which tell-tale emails were read.

However, this method of tracing criminals has a limitation. Programs such as TOR and Hotspot Shield disguise the IP address of a user’s PC. For example, when I use TOR, Facebook will often ask me to confirm my identity as it sees me as logging in from an unfamiliar location. TOR has thousands of servers around the world through which it bounces your data before sending it to its destination.

There is another limitation to using metadata. Due to obvious legal hurdles, CMS will only be deployed to capture communication within India. If terrorists were planning an attack from elsewhere in India’s neighbourhood (as happened with 26/11), we would have to rely on that country’s intelligence services for an alert. Good luck with that!

To make untraceable phone calls, terrorists have been known to use “burner” phones. These are pre-paid phones that are easily available in the US and other countries that do not require an ID for such mobile connections. They can be topped up using cash, which makes their prolonged using even more untraceable.

Even if CMS allowed spooks to listen to these calls, it would not be able to tell who was talking to whom. From details that emerged following the Abbottabad operation that killed Osama bin Laden, we also know that terrorists have been trained to turn off their phones and remove the battery to prevent being tracked even while not on a call.

So what is CMS good for?

If terrorist communications can easily be hidden from CMS, you have to wonder why the government is going through all the effort and expense to set up such a system. What good can come off the mass hoovering of data of ordinary citizens’?

Imagine if CMS intercepted a ‘BBM chat’ between two businessmen, who were discussing a contract that could affect the business interests of a government MP.

Imagine the government getting access to emails exchanged between a journalist and a source in the IAS who wants to expose a major corruption scandal involving a cabinet minister.

Imagine if the government had access to phone calls between two opposition politicians discussing election strategies.

What if CMS tracks a PhD candidate who is researching Naxal terror and has downloaded Naxal pamphlets? What if this researcher has been able to establish contact with Naxals for an interview. Can the government use such data to charge him with participating in a Naxal conspiracy, even if his only intention was to research their motivations? In a country where chief ministers label their critics as “Naxals” for merely raising questions, are we certain we want such unmitigated power in the government’s hands?

These are all questions well worth asking, especially since the ostensible reason for setting up the CMS—monitoring terrorists and criminals—is a fool’s errand at best.

For more details visit https://cis-india.org/news/firstpost-pierre-fitter-july-17-2013-snooping-technology

Parsing the Cyber Security Policy

chinmayi — 2013-07-22T06:37:56Z

An effective cyber-security policy must keep up with the rapid evolution of technology, and must never become obsolete. The standard-setting and review bodies will therefore need to be very nimble, says Chinmayi Arun.

Chinmayi Arun's article was published in the Hoot on July 13, 2013 and later cross-posted in the Free Speech Initiative the same day.

We often forget how vulnerable the World Wide Web leaves us. If walls of code prevent us from entering each other’s systems and networks, there are those who can easily pick their way past them or disable essential digital platforms. We are reminded of this by the doings of Anonymous, which carried out a series of attacks, including the website run by Computer Emergency Response Team India (CERT-In) which is the government agency in charge of cyber-security. Even more serious, are cyber-attacks (arguably cyber warfare) carried out by other states, using digital weapons such as Stuxnet, the digital worm. More proximate and personal are perhaps the phishing attacks, which are on the rise.

We therefore run a great risk if we leave air-traffic control, defense resources or databases containing several citizens’ personal data vulnerable. Sure, there is no doubt that efforts towards better cyber-security are needed. A cyber-security policy is meant to address this need, and to help manage threats to individuals, businesses and government agencies. We need to carefully examine the government’s efforts to handle cyber-security, how effective it is and whether its actions do not have too many negative spillovers.

The National Cyber-Security Policy, unveiled last week, is merely a statement of intention in broad terms. Much of its real impact will be ascertainable only after the language to be used in the law is available. Nevertheless, the scope of the policy remains ambiguous so far, leading to much speculation about the different ways in which it might be intrusive.

One Size Fits All?

The policy covers very different kinds of entities: government agencies, private companies or businesses, non-governmental entities and individual users. These entities may need to be handled differently depending on their nature. Therefore, while direct state action may be most appropriate to secure government agencies’ networks, it may be less appropriate in the context of purely private business.

For example, securing police records would involve the government directly purchasing or developing sufficiently secure technology. However, different private businesses and non-governmental entities may be left to manage their own security. Depending on the size of each entity, each may be differently placed to acquire sophisticated security systems. A good policy would encourage innovation by those with the capacity to do this, while ensuring that others have access to reasonably sound technology, and that they use it. Grey-areas might emerge in contexts where a private party is manages critical infrastructure.

It will also be important to distinguish between smaller and larger organisations whilst creating obligations. Unless this distinction is made at the implementation stage, start-up businesses and civil society organisations may find requirements such as earmarking a budget for cyber security implementation or appointing a Chief Information Security Officer onerous. Additionally, the policy will need to translate into a regulatory solution that provides under-resourced entities with ready solutions to enable them to make their information systems secure, while encouraging larger entities with greater purchasing power to invest in procuring the best possible solutions.

Race to the Top

Security on the Internet works only if it stays one step ahead the people trying to break in. An effective cyber-security policy must keep up with the rapid evolution of technology, and must never become obsolete. The standard-setting and review bodies will therefore need to be very nimble.

The policy contemplates working with industry and supporting academic research and development to achieve this. However the actual manner in which resources are distributed and progress is monitored may make the crucial difference between a waste of public funds and acquisition of capacity to achieve a reasonable degree of cyber security.

Additionally the flow of public funds under this policy, particularly to purchase technology, should be examined very carefully to see whether it is justified. For example, if the government chooses to fund (even by way of subsidy) a private company’s cyber-security research and development rather than an equivalent public university’s endeavour, this decision should be scrutinized to see whether it was necessary. Similarly, if extensive public funds are spent training young people as a capacity-building exercise, we should watch to see how many of these people stay in India and how many leave such that other countries end up benefiting from the Indian government’s investment in them!

Investigation of Security Threats

Although much of the policy focuses on defensive measures that can be taken against security breaches, it is intended not only to cover investigation subsequent to an attack but also to pinpoint ‘potential cyber threats’ so that proactive measures may be taken.

The policy has outlined the need for a ‘Cyber Crisis Management Plan’ to handle incidents that impact ‘critical national processes or endanger public safety and security of the nation’. This portion of the policy will need to be watched closely to ensure that the language used is very narrow and allows absolutely no scope for misinterpretation or misuse that would affect citizens’ rights in any manner.

This caution will be necessary both in view of the manner in which restraints on freedom of speech permitted in the interests of public safety have been flagrantly abused, and because of the kind of paternalistic state intrusion that might be conceived to give effect to this.

Additionally, since the policy also mentions information sharing with internal and international security, defence, law enforcement and other such agencies, it will also be important to find out the exact nature of information to be shared. Of course, how the policy will be put into place will only become clear as the terms governing its various parts emerge. But one hopes the necessary internal direct action to ensure the government agencies’ information networks are secure is already well underway.

It is also to be hoped that the government chooses to take implementation of privacy rights at least as seriously as cyber-security. If some parts of cyber security involve ensuring that user data is protected, the decision about what data needs protection will be important to this exercise.

Additionally, although the policy discusses various enabling and standard-setting measures, it does not discuss the punitive consequences of failure to take reasonable steps to safeguard individuals’ personal data online. These consequences will also presumably form a part of the privacy policy, and should be put in place as early as possible.

For more details visit https://cis-india.org/internet-governance/blog/the-hoot-july-13-2013-chinmayi-arun-parsing-the-cyber-security-policy

CII Conference on "ACT": Achieve Cyber Security Together"

kovey — 2013-07-26T08:17:40Z

The Confederation of Indian Industries (CII) organized a conference on facing cyber threats and challenges at Hotel Hilton in Chennai on July 13, 2013. Kovey Coles attended this conference and shares a summary of the event in this blog post.

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

The conference hosted by CII in the Hotel Hilton, was well attended, and featured a range of industry experts, researches and developers, and members of the Indian armed forces.

Participants focused on the importance of Indian entities reaching new, adequate levels of cyber security. It was stated early in the event that India is one of the world's most targeted areas for cyber-attacks, and its number of domestic internet users is known to be rapidly increasing in an age which many view as a new era of international information warfare. Despite this, the speakers considered India to be too far behind other countries in its understanding of cyber security. In the opening remarks, CII Chairman Santhanam implored "We need hard core techies in this field… we are not producing them." Another speaker, Savitha Kesav Jagadeesan, a practicing lawyer in Chennai, asked if India would wait until the "9/11 of cyberspace" occurrence before we establish the same level of precautionary measures online as it exists now in transportation security.

With the presence of both the government’s executive forces and the private industries, the aura circulating the conference room was that of a collective Indian defense, a secure nation only achieved through both secure governmental and industrial aspects. Similar to the previous day’s DSCI cyber security conference, many speakers discussed security issues pertinent to the financial and banking industries, and other cyber crimes which had pecuniary goals. For people seeking to avoid the array of scams and frauds online, some talks shared some of the most basic advice, like safe password practices. "Passwords are like toothbrushes," said A.S. Murthy of the CDAC, "use them often, never share them with anyone, change them often." Other talks went into the intricacies of various hacking schemes, including tab-nabbing and Designated Denial of Service (DDoS) attacks, describing their tactics and how to moderate them.

In the end, the conference had certainly informed the attendees of the goals, and the challenges, that India will face in the coming months and years. The speakers (all of them) showed how the world of cyber security was quickly evolving, and demonstrated the imperative in government and industry entities evolving their own practices and defenses in stride. The ambitions of several presentations matched the well-publicized "5 lakh cyber professionals in 5 years" plan, placing a strong emphasis in the current and future training of young students in cyber security. Ultimately, I think, the conference helped convince that cyber security is neither a futile, nor completely infallible concept. As CISCO Vice President Col. K.P.M. Das said towards the end of the evening, the most ideal form of cyber security is truly "all about trust, the ability to recover, and transparency/visibility."

For more details visit https://cis-india.org/internet-governance/blog/cii-conference-on-act

DSCI Best Practices Meet 2013

kovey — 2013-07-26T08:18:01Z

The DSCI Best Practices Meet 2013 was organized on July 12, 2013 at Hyatt Regency, Anna Salai in Chennai. Kovey Coles attended the meet and shares a summary of the happenings in this blog post.

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

Last year’s annual Best Practices Meet, sponsored by the Data Security Council of India (DSCI), was held in here in Bangalore, and featured CIS associates as panelists for an agenda focused mostly around mobility in technology. This year, the event was continued in nearby Chennai, where many of India’s top stakeholders in Cyber Security came together at the Hyatt hotel to discuss the modern cyber security landscape. Several of the key points of the day emphasized how the industry realm needed to be especially keen on Cyber Security today. Early speakers explained how many Cyber-Attacks occur as opportunistic attacks on financial institutions, and that these breaches often take months to be discovered, with the discovery usually being made by a third-party. For those reasons, it was repeatedly mentioned throughout the day that modern entities must anticipate attacks as inevitable, and prepare themselves to be able to respond and successfully bounce-back.

Several panelists of the event expanded upon the evolving challenges facing industries, and explained why service based industry continually grows more susceptible to Cyber-Attack. There were representatives from Microsoft, Flextronics, MyEasyDoc, and others, who explained how technological demands of modern consumers resulted inadvertently in weaker security. For example, with customers expecting real-time access to data rather than periodic data reports, i.e financial data reports, industries must now keep their data open, which weakens database security. Overall, the primary challenge faced by the industry was effectively summarized by Microsoft India CSO Ganapathi Subramaniam, stating that within web services, “Security and usability are inversely proportional.” Essentially, the more convenient a product, the less secure its infrastructure.

Despite discussion of the difficulties facing modern producers and consumers, there were undoubtedly highlights of optimism at the conference. A presentation by event sponsor Juniper Networks shed light on practices which combat Cyber-Attackers, including rerouting perceived Distributed Denial of Service (DDoS) attacks and finger-printing suspected hackers through a series of characteristics rather than just IP addresses (these characteristics include browser version, fonts, Add-Ons, time zone, and more). Notably, there was a call for cooperation on all fronts in combatting Cyber-crime, for public-private partnerships (PPP), and many citizens stood and spoke on the behalf of civil society’s incorporation in the process as well. One speaker, Retired Brig. Abhimanyu Ghosh admirably tore down sector divisions in the face of Cyber-Security threats, saying “We all want to secure ourselves. It is not a question of industry versus government, government versus industry. Government needs industry, and industry needs government.”

Finally, a few speakers used their opportunity at the conference to highlight issues related to rights and responsibilities of both citizens and government in internet. Nikhil Moro, a scholar at the Hindu Center for Politics and Public Policy, spoke at length about the urgent condition of laws which undermine freedom of speech and freedom of expression in India, especially within while online. His talk, which occurred near the end of the event, stirred the crowd to discussion, and helped remind the attendees of the comprehensiveness of issues which demand attention in the realm of a growing internet presence.

For more details visit https://cis-india.org/internet-governance/blog/dsci-bpm-2013-conference-notes

Interview with Mr. Reijo Aarnio - Finnish Data Protection Ombudsman

maria — 2013-07-19T13:02:14Z

Maria Xynou recently interviewed Mr. Reijo Aarnio, the Finnish Data Protection Ombudsman, at the CIS' 5th Privacy Round Table. View this interview and gain an insight on recommendations for better data protection in India!

Mr. Reijo Aarnio - the Finnish Data Protection Ombudsman - was interviewed on the following questions:

1. What activities and functions does the Finnish data commissioner's office undertake?

2. What powers does the Finnish Data commissioner's office have? In your opinion, are these sufficient? Which powers have been most useful? If there is a lack, what would you feel is needed?

3. How is the office of the Finnish data protection commissioner funded?

4. What is the organizational structure at the Office of the Finnish Data Protection Commissioner and the responsibilities of the key executives?

5. If India creates a Privacy Commissioner, what structure/framework would you suggest for the office?

6. What challenges has your office faced?

7. What is the most common type of privacy violation that your office is faced with?

8. Does your office differ from other EU data protection commissioner offices?

9. How do you think data should be regulated in India?

10. Do you support the idea of co-regulation or self-regulation?

11. How can India protect its citizens' data when it is stored in foreign servers?

For more details visit https://cis-india.org/internet-governance/blog/interview-with-finnish-data-protection-ombudsman

Can India Trust Its Government on Privacy?

pranesh — 2013-07-15T10:35:33Z

In response to criticisms of the Centralized Monitoring System, India’s new surveillance program, the government could contend that merely having the capability to engage in mass surveillance won’t mean that it will. Officials will argue that they will still abide by the law and will ensure that each instance of interception will be authorized.

Pranesh Prakash's article was published in the New York Times on July 11, 2013.

In fact, they will argue that the program, known as C.M.S., will better safeguard citizens’ privacy: it will cut out the telecommunications companies, which can be sources of privacy leaks; it will ensure that each interception request is tracked and the recorded content duly destroyed within six months as is required under the law; and it will enable quicker interception, which will save more lives. But there are a host of reasons why the citizens of India should be skeptical of those official claims.

Cutting out telecoms will not help protect citizens from electronic snooping since these companies still have the requisite infrastructure to conduct surveillance. As long as the infrastructure exists, telecom employees will misuse it. In a 2010 report, the journalist M.A. Arun noted that “alarmingly, this correspondent also came across several instances of service providers’ employees accessing personal communication of subscribers without authorization.” Some years back, K.K. Paul, a top Delhi Police officer and now the Governor of Meghalaya, drafted a memo in which he noted mobile operators’ complaints that private individuals were misusing police contacts to tap phone calls of “opponents in trade or estranged spouses.”

India does not need to have centralized interception facilities to have centralized tracking of interception requests. To prevent unauthorized access to communications content that has been intercepted, at all points of time, the files should be encrypted using public key infrastructure. Mechanisms also exist to securely allow a chain of custody to be tracked, and to ensure the timely destruction of intercepted material after six months, as required by the law. Such technological means need to be made mandatory to prevent unauthorized access, rather than centralizing all interception capabilities.

At the moment, interception orders are given by the federal Home Secretary of India and by state home secretaries without adequate consideration. Every month at the federal level 7,000 to 9,000 phone taps are authorized or re-authorized. Even if it took just three minutes to evaluate each case, it would take 15 hours each day (without any weekends or holidays) to go through 9,000 requests. The numbers in Indian states could be worse, but one can’t be certain as statistics on surveillance across India are not available. It indicates bureaucratic callousness and indifference toward following the procedure laid down in the Telegraph Act.

In a 1975 case, the Supreme Court held that an “economic emergency” may not amount to a “public emergency.” Yet we find that of the nine central government agencies empowered to conduct interception in India, according to press reports — Central Board of Direct Taxes, Intelligence Bureau, Central Bureau of Investigation, Narcotics Control Bureau, Directorate of Revenue Intelligence, Enforcement Directorate, Research & Analysis Wing, National Investigation Agency and the Defense Intelligence Agency — three are exclusively dedicated to economic offenses.

Suspicion of tax evasion cannot legally justify a wiretap, which is why the government said it had believed that Nira Radia, a corporate lobbyist, was a spy when it defended putting a wiretap on her phone in 2008 and 2009. A 2011 report by the cabinet secretary pointed out that economic offenses might not be counted as “public emergencies,” and that the Central Board of Direct Taxes should not be empowered to intercept communications. Yet the tax department continues to be on the list of agencies empowered to conduct interceptions.

India has arrived at a scary juncture, where the multiple departments of the Indian government don’t even trust each other. India’s Department of Information Technology recently complained to the National Security Advisor that the National Technical Research Organization had hacked into National Informatics Center infrastructure and extracted sensitive data connected to various ministries. The National Technical Research Organization denied it had hacked into the servers but said hundreds of e-mail accounts of top government officials were compromised in 2012, including those of “the home secretary, the naval attaché to Tehran, several Indian missions abroad, top investigators of the Central Bureau of Investigation and the armed forces,” The Mint newspaper reported. Such incidents aggravate the fear that the Indian government might not be willing and able to protect the enormous amounts of information it is about to collect through the C.M.S.

Simply put, government entities have engaged in unofficial and illegal surveillance, and the C.M.S. is not likely to change this. In a 2010 article in Outlook, the journalist Saikat Datta described how various central and state intelligence organizations across India are illegally using off-the-air interception devices. “These systems are frequently deployed in Muslim-dominated areas of cities like Delhi, Lucknow and Hyderabad,” Mr. Datta wrote. “The systems, mounted inside cars, are sent on ‘fishing expeditions,’ randomly tuning into conversations of citizens in a bid to track down terrorists.”

The National Technical Research Organization, which is not even on the list of entities authorized to conduct interception, is one of the largest surveillance organizations in India. The Mint reported last year that the organization’s surveillance devices, “contrary to norms, were deployed more often in the national capital than in border areas” and that under new standard operating procedures issued in early 2012, the organization can only intercept signals at the international borders. The organization runs multiple facilities in Mumbai, Bangalore, Delhi, Hyderabad, Lucknow and Kolkata, in which monumental amounts of Internet traffic are captured. In Mumbai, all the traffic passing through the undersea cables there is captured, Mr. Datta found.

In the western state of Gujarat, a recent investigation by Amitabh Pathak, the director general of police, revealed that in a period of less than six months, more than 90,000 requests were made for call detail records, including for the phones of senior police and civil service officers. This high a number could not possibly have been generated from criminal investigations alone. Again, these do not seem to have led to any criminal charges against any of the people whose records were obtained. The information seems to have been collected for purposes other than national security.

India is struggling to keep track of the location of its proliferating interception devices. More than 73,000 devices to intercept mobile phone calls have been imported into India since 2005. In 2011, the federal government asked various state governments, private corporations, the army and intelligence agencies to surrender these to the government, noting that usage of any such equipment for surveillance was illegal. We don’t know how many devices were actually turned in.

These kinds of violations of privacy can have very dangerous consequences. According to the former Intelligence Bureau head in the western state of Gujarat, R.B. Sreekumar, the call records of a mobile number used by Haren Pandya, the former Gujarat home minister, were used to confirm that it was he who had provided secret testimony to the Citizens’ Tribunal, which was conducting an independent investigation of the 2002 sectarian riots in the state. Mr. Pandya was murdered in 2003.

The limited efforts to make India’s intelligence agencies more accountable have gone nowhere. In 2012, the Planning Commission of India formed a group of experts under Justice A.P. Shah, a retired Chief Justice of the Delhi High Court, to look into existing projects of the government and to suggest principles to guide a privacy law in light of international experience. (Centre for Internet and Society, where I work was part of the group). However, the government has yet to introduce a bill to protect citizens’ privacy, even though the governmental and private sector violations of Indian citizens’ privacy is growing at an alarming rate.

In February, after frequent calls by privacy activists and lawyers for greater accountability and parliamentary oversight of intelligence agencies, the Centre for Public Interest Litigation filed a case in the Supreme Court. This would, one hopes, lead to reform.

Citizens must also demand that a strong Privacy Act be enacted. In 1991, the leak of a Central Bureau of Investigation report titled “Tapping of Politicians’ Phones” prompted the rights groups, People’s Union of Civil Liberties to file a writ petition, which eventually led to a Supreme Court of India ruling that recognized the right to privacy of communications for all citizens as part of the fundamental rights of freedom of speech and of life and personal liberty. However, through the 2008 amendments to the Information Technology Act, the IT Rules framed in 2011 and the telecom licenses, the government has greatly weakened the right to privacy as recognized by the Supreme Court. The damage must be undone through a strong privacy law that safeguards the privacy of Indian citizens against both the state and corporations. The law should not only provide legal procedures, but also ensure that the government should not employ technologies that erode legal procedures.

A strong privacy law should provide strong grounds on which to hold the National Security Advisor’s mass surveillance of Indians (over 12.1 billion pieces of intelligence in one month) as unlawful. The law should ensure that Parliament, and Indian citizens, are regularly provided information on the scale of surveillance across India, and the convictions resulting from that surveillance. Individuals whose communications metadata or content is monitored or intercepted should be told about it after the passage of a reasonable amount of time. After all, the data should only be gathered if it is to charge a person of committing a crime. If such charges are not being brought, the person should be told of the incursion into his or her privacy.

The privacy law should ensure that all surveillance follows the following principles: legitimacy (is the surveillance for a legitimate, democratic purpose?), necessity (is this necessary to further that purpose? does a less invasive means exist?), proportionality and harm minimization (is this the minimum level of intrusion into privacy?), specificity (is this surveillance order limited to a specific case?) transparency (is this intrusion into privacy recorded and also eventually revealed to the data subject?), purpose limitation (is the data collected only used for the stated purpose?), and independent oversight (is the surveillance reported to a legislative committee or a privacy commissioner, and are statistics kept on surveillance conducted and criminal prosecution filings?). Constitutional courts such as the Supreme Court of India or the High Courts in the Indian states should make such determinations. Citizens should have a right to civil and criminal remedies for violations of surveillance laws.

Indian citizens should also take greater care of their own privacy and safeguard the security of their communications. The solution is to minimize usage of mobile phones and to use anonymizing technologies and end-to-end encryption while communicating on the Internet. Free and open-source software like OpenPGP can make e-mails secure. Technologies like off-the-record messaging used in apps like ChatSecure and Pidgin chat conversations, TextSecure for text messages, HTTPS Everywhere and Virtual Private Networks can prevent Internet service providers from being able to snoop, and make Internet communications anonymous.

Indian government, and especially our intelligence agencies, violate Indian citizens’ privacy without legal authority on a routine basis. It is time India stops itself from sleepwalking into a surveillance state.

For more details visit https://cis-india.org/internet-governance/blog/new-york-times-july-11-2013-can-india-trust-its-government-on-piracy

How Surveillance Works in India

pranesh — 2013-07-15T10:20:45Z

When the Indian government announced it would start a Centralized Monitoring System in 2009 to monitor telecommunications in the country, the public seemed unconcerned. When the government announced that the system, also known as C.M.S., commenced in April, the news didn’t receive much attention.

This article by Pranesh Prakash was published in the New York Times on July 10, 2013.

After a colleague at the Centre for Internet and Society wrote about the program and it was lambasted by Human Rights Watch, more reporters started covering it as a privacy issue. But it was ultimately the revelations by Edward J. Snowden about American surveillance that prompted Indians to ask questions about its own government’s surveillance programs.

In India, we have a strange mix of great amounts of transparency and very little accountability when it comes to surveillance and intelligence agencies. Many senior officials are happy to anonymously brief reporters about the state of surveillance, but there is very little that is officially made public, and still less is debated in the national press and in Parliament.

This lack of accountability is seen both in the way the Big-Brother acronyms (C.M.S., Natgrid, T.C.I.S., C.C.T.N.S., etc.) have been rolled out, as well as the murky status of the intelligence agencies. No intelligence agency in India has been created under an act of Parliament with clearly established roles and limitations on powers, and hence there is no public accountability whatsoever.

The absence of accountability has meant that the government has since 2006 been working on the C.M.S., which will integrate with the Telephone Call Interception System that is also being rolled out. The cost: around 8 billion rupees ($132 million) — more than four times the initial estimate of 1.7 billion — and even more important, our privacy and personal liberty. Under their licensing terms, all Internet service providers and telecom providers are required to provide the government direct access to all communications passing through them. However, this currently happens in a decentralized fashion, and the government in most cases has to ask the telecoms for metadata, like call detail records, visited Web sites, IP address assignments, or to carry out the interception and provide the recordings to the government. Apart from this, the government uses equipment to gain access to vast quantities of raw data traversing the Internet across multiple cities, including the data going through the undersea cables that land in Mumbai.

With the C.M.S., the government will get centralized access to all communications metadata and content traversing through all telecom networks in India. This means that the government can listen to all your calls, track a mobile phone and its user’s location, read all your text messages, personal e-mails and chat conversations. It can also see all your Google searches, Web site visits, usernames and passwords if your communications aren’t encrypted.


A man surfing a Facebook page at an internet cafe in Guwahati, Assam, on Dec. 6, 2011. Image Credit: Anupam Nath/Associated Press

You might ask: Why is this a problem when the government already had the same access, albeit in a decentralized fashion? To answer that question, one has to first examine the law.

There are no laws that allow for mass surveillance in India. The two laws covering interception are the Indian Telegraph Act of 1885 and the Information Technology Act of 2000, as amended in 2008, and they restrict lawful interception to time-limited and targeted interception.The targeted interception both these laws allow ordinarily requires case-by-case authorization by either the home secretary or the secretary of the department of information technology.

Interestingly, the colonial government framed better privacy safeguards into communications interception than did the post-independence democratic Indian state. The Telegraph Act mandates that interception of communications can only be done on account of a public emergency or for public safety. If either of those two preconditions is satisfied, then the government may cite any of the following five reasons: “the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or for preventing incitement to the commission of an offense.” In 2008, the Information Technology Act copied much of the interception provision of the Telegraph Act but removed the preconditions of public emergency or public safety, and expands the power of the government to order interception for “investigation of any offense.” The IT Act thus very substantially lowers the bar for wiretapping.

Apart from these two provisions, which apply to interception, there are many laws that cover recorded metadata, all of which have far lower standards. Under the Code of Criminal Procedure, no court order is required unless the entity is seen to be a “postal or telegraph authority” — and generally e-mail providers and social networking sites are not seen as such.

Unauthorized access to communications data is not punishable per se, which is why a private detective who gained access to the cellphone records of Arun Jaitley, a Bharatiya Janata Party leader, has been charged under the weak provision on fraud, rather than invasion of privacy. While there is a provision in the Telegraph Act to punish unlawful interception, it carries a far lesser penalty (up to three years of imprisonment) than for a citizen’s failure to assist an agency that wishes to intercept or monitor or decrypt (up to seven years of imprisonment).

To put the ridiculousness of the penalty in Sections 69 and 69 B of the IT Act provision in perspective, an Intelligence Bureau officer who spills national secrets may be imprisoned up to three years. And under the Indian Penal Code, failing to provide a document one is legally bound to provide to a public servant, the punishment can be up to one month’s imprisonment. Further, a citizen who refuses to assist an authority in decryption, as one is required to under Section 69, may simply be exercising her constitutional right against self-incrimination. For these reasons and more, these provisions of the IT Act are arguably unconstitutional.

As bad as the IT Act is, legally the government has done far worse. In the licenses that the Department of Telecommunications grants Internet service providers, cellular providers and telecoms, there are provisions that require them to provide direct access to all communications data and content even without a warrant, which is not permitted by the existing laws on interception. The licenses also force cellular providers to have ‘bulk encryption’ of less than 40 bits. (Since G.S.M. network encryption systems like A5/1, A5/2, and A5/3 have a fixed encryption bit length of 64 bits, providers in India have been known use A5/0, that is, no encryption, thus meaning any person — not just the government — can use off-the-air interception techniques to listen to your calls.)

Cybercafes (but not public phone operators) are required to maintain detailed records of clients’ identity proofs, photographs and the Web sites they have visited, for a minimum period of one year. Under the rules designed as India’s data protection law (oh, the irony!), sensitive personal data has to be shared with government agencies, if required for “purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offenses.”

Along similar lines, in the rules meant to say when an Internet intermediary may be held liable for a user’s actions, there is a provision requiring the Internet company to “provide information or any such assistance to government agencies legally authorized for investigative, protective, cybersecurity activity.” (Incoherent, vague and grammatically incorrect sentences are a consistent feature of laws drafted by the Ministry of Communications and IT; one of the telecom licenses states: “The licensee should make arrangement for monitoring simultaneous calls by government security agencies,” when clearly they meant “for simultaneous monitoring of calls.”)

In a landmark 1996 judgment, the Indian Supreme Court held that telephone tapping is a serious invasion of an individual’s privacy and that the citizens’ right to privacy has to be protected from abuse by the authorities. Given this, undoubtedly governments must have explicit permission from their legislatures to engage in any kind of broadening of electronic surveillance powers. Yet, without introducing any new laws, the government has surreptitiously granted itself powers — powers that Parliament hasn’t authorized it to exercise — by sneaking such powers into provisions in contracts and in subordinate legislation.

For more details visit https://cis-india.org/internet-governance/blog/nytimes-july-10-2013-pranesh-prakash-how-surveillance-works-in-india

How the world’s largest democracy is preparing to snoop on its citizens

praskrishna — 2013-07-15T09:41:21Z

Monitoring system will allow govt to snoop on voice calls, SMSes, and access Internet data.

The article by Leslie D' Monte and Joji Thomas Philip was published in Livemint on July 3, 2013. Sunil Abraham is quoted.

Nothing will be secret or private.

Every conversation on landlines and mobile phones will be heard; some will be recorded. Every move you make on the Internet will be tracked.

Fiction?

By December, when the Nanny State goes live, it will be fact.

Once the government’s innocuously named CMS (communication monitoring system) is in place, the state will be able to snoop on your voice calls, fax messages, SMSes and MMSes, across all phone networks. It will be able to access your Internet data, and see not just what sites you visit but even build a cache of your inbox, to decrypt at leisure.

The process began more than a couple of years ago.

On 29 April 2011, India’s home ministry called for bids to set up communications monitoring systems in all state capitals. The notice, which was published on its website and went almost unnoticed, specified that the system should be able to monitor voice calls, fax messages, SMSes and MMSes, and work across terrestrial networks, GSM and CDMA (the dominant mobile telephony platforms), and the Internet.

	The tender specified that the system should be able to listen in live, and be able to analyse intercepted data. It should have the ability to record, store and playback, without interfering “with the operation of telecommunication network or make the target aware that he is being monitored”. The CMS is no longer a concept. It has undergone successful pilots and is likely to be commissioned by the year-end, according to an internal note dated 10 June from the department of telecommunications (DoT). A top government official, who did not want to be named, said the CMS centralized data centre is likely to be ready by July and commissioned by October. The official also added that the Centre for Development of Telematics (C-DoT), the government’s telecom technology arm, has “signed an agreement with the Centre for Artificial Intelligence and Robotics (CAIR) for Internet Service Provider integration”. This agreement will allow monitoring agencies to track an individual’s Internet use.

The tender specified that the system should be able to listen in live, and be able to analyse intercepted data. It should have the ability to record, store and playback, without interfering “with the operation of telecommunication network or make the target aware that he is being monitored”.

The CMS is no longer a concept. It has undergone successful pilots and is likely to be commissioned by the year-end, according to an internal note dated 10 June from the department of telecommunications (DoT).

A top government official, who did not want to be named, said the CMS centralized data centre is likely to be ready by July and commissioned by October. The official also added that the Centre for Development of Telematics (C-DoT), the government’s telecom technology arm, has “signed an agreement with the Centre for Artificial Intelligence and Robotics (CAIR) for Internet Service Provider integration”. This agreement will allow monitoring agencies to track an individual’s Internet use.

Subsequent media reports, which have cited internal government documents, peg the cost of the CMS at around Rs.400 crore, but there is hardly any official data from the government about the implementation of the CMS.

In its 2012-13 annual report, DoT said the government has decided to set up the CMS for lawful interception and monitoring by law enforcement agencies, “reducing the manual intervention at many stages as well as saving of time”.

The system, according to the report, was to be installed by C-DoT after which the Telecom Enforcement, Resource and Monitoring (TERM) cells would take over. As on 31 March, there were 34 such TERM cells in the country. The current number could not be ascertained.

How does the government justify this invasive system? Its purpose is unclear, but national security is always a handy spectre. And so what if such a system can be misused to bully, spy and curtail the freedom of individuals? Indeed, India’s track record of using existing laws doesn’t inspire confidence.

Student Shaheen Dhada was arrested (under the law) for criticizing the shutdown of Mumbai after the death of Shiv Sena supremo Bal Thackeray on her personal Facebook account. Her friend, Renu Srinivasan, who had “liked” the comment was also arrested. The two were later freed, on bail.

No known safeguards

But how does the CMS work? According to the government official cited above, the Central Bureau for Investigation (CBI), for instance, is likely to be provided interception facilities through the CMS in Delhi initially.

“CBI shall enter data related to target in the CMS system and approach the telecom services provider”, at which point the process is automated, and the provider simply sends the data to a server which forwards the requested information, he explained.

He didn’t mention any safeguards, nor have any been made public, which means that there are likely none. In a Q&A session on the popular social network Reddit on Tuesday, academic and activist Lawrence Lessig, the co-founder of Creative Commons, wrote on the subject of snooping in the US, “I’m really troubled by national security programmes. We don’t know what protections are built into the system.”

That has become the subject of much debate following the leaks by whistleblower Edward Snowden about the US National Security Agency’s surveillance programme.

Lessig pointed out that protection based on code is the only real protection from misuse, as other safeguards are dependent on people choosing not to violate reasonable expectations of privacy.

Which is the heart of the problem. From what we know, the list of agencies with access to data in India is already large: the Research and Analysis Wing, CBI, the National Investigation Agency, the Central Board of Direct Taxes, the Narcotics Control Bureau, and the Enforcement Directorate. More may be added.

For the system to be useful in any practical fashion, access will have to be given to a large number of officials in each of these agencies. And in the absence of safeguards, one must assume that all data is accessible to all officials.

To be sure, some of this information is already being tracked by Internet companies.

Ravina Kothari, a 22-year-old student at Cardiff University, said she learnt a bitter lesson “last year when I Googled my name”. “It revealed all the personal details I had put up on social media sites. My childhood school photos popped up on Google image search results. Worse, I had not put them there. My friends had tagged me in—all so scary. And I can’t do anything about it.”

She has since stopped uploading personal details such as videos, pictures or telephone numbers.

Twenty-one-year-old Shruti Lodha, studying to be a chartered accountant, feels a similar discomfort.

“I am definitely not comfortable with Google, and how every time I Google myself it reveals my identity and shows information that is on social media sites.”

In 2011, 24-year-old Max Schrems of Vienna, Austria, asked the world’s largest social networking site Facebook Inc. for a copy of every piece of information it had collected on him since he had created an account with it two years earlier.

Schrems was delivered a CD packing a 1,222-page file that included information he had deleted, but had been stored on Facebook’s servers, according to ThreatPost, a publication on information technology (IT) security run by Kaspersky Lab, a leading maker of antivirus software.

Had Schrems been a resident of India, he could not have known how much personal information Facebook had on him. Every person in the European Union (EU) has the right to access all the data that a company holds on him or her.

With the CMS, all this information, and much more, can be called up by just about anyone—the taxman, CBI officials, Assam Police (which will also monitor the network according to some reports)—and the old bogey of national security may not even be raised.

Need for a privacy law

Publicly at least, companies agree that the new monitoring systems infringe on our rights. Subho Ray, president, Internet and Mobile Association of India said, “Without any prior permission, government should not take or use any information which is considered private. The biggest challenge for us is that we do not have a privacy law in India.”

Cyber law experts and privacy lobby groups caution that the world’s largest democracy’s attempt to snoop on its citizens with the CMS, ostensibly for security reasons, could be abused in the absence of a transparent process and a privacy law.

The issue has become alarming, they add, with the US admitting to be collecting billions of pieces of information on immigrants—6.3 billion from Indian citizens alone under the Foreign Intelligence Surveillance Act, according to an 8 June report in the UK-based The Guardian newspaper.

“We don’t know much about the CMS, except that when implemented, it could be plugged directly into telecom nodes and lead to widespread tapping,” said Apar Gupta, a partner at law firm Advani and Co. specializing in IT law.

“There’s no legal sanction as of now for any type of mass surveillance, such as the one that the CMS suggests,” said Pavan Duggal, a Supreme Court lawyer and cyberlaw expert.

Gupta added that since India lacks privacy legislation, which obliges companies to maintain privacy standards when they export the data which they’ve gathered in India overseas, “this poses a problem”.

N.S. Nappinai, a Bombay high court advocate, said, “India has lived without any codified laws to protect privacy all these years and has relied primarily on Article 21 of the Constitution. Protecting privacy has just become more complicated with the humongous quantity of data being uploaded online. People seem totally unaware of the trouble they are inviting upon themselves.”

Current laws are already compromised

The lack of a privacy law makes it easier for the government to take such extreme steps. The Indian Telegraph Act and the IT Act, 2008 (amendments introduced in the IT Act, 2000), already gives the government the power to monitor, intercept and even block online conversations and websites. The addition of the CMS will greatly widen the number of sources and could simplify access to these records as well.

On 25 April 2011, the government admitted that the existing laws include provisions for interception and pointed out that the Supreme Court had, on 18 December 1996, upheld the constitutional validity of interceptions and monitoring.

While the court had added that telephone tapping infringes on the right to life and the right to freedom of speech and expression, unless permitted under special procedures, these guidelines are not usually implemented, according to activists.

The shortcomings of the existing laws already make it possible to misuse the vast amount of information that is available today. These laws were written at a time when the Internet was not a fact of life, and where the lines between public and private were not already blurred. Given that, the perspectives on privacy can be worrisome.

In a report presented to the Lok Sabha on 13 December 2011, the ministry of planning said, “Collection of information without a privacy law in place does not violate the right to privacy of the individual…There is no bar on collecting information, the only requirement to be fulfilled with respect to the protection of the privacy of an individual is that care should be taken in collection and use of information, consent of individual would be relevant, information should be kept safe and confidential.”

This proposed Right to Privacy Bill was leaked to the public, and eventually nothing came of it.

On 16 October 2012, a commission headed by justice (retired) A.P. Shah issued a report that included the study of privacy laws and related Bills from around the world. The report noted that with the “increased collection of citizen information by the government, concerns have emerged on their impact on the privacy of persons”.

Despite the report being given to the Planning Commission, the government has continued with its plans.

Early this year, a privacy lobby body, the Centre for Internet and Society (CIS) drafted the Privacy (Protection) Bill 2013, with the objective of contributing to privacy legislation in India.

CIS worked with the Federation of Indian Chambers of Commerce and Industry and the Data Security Council of India and held round table meetings around the country to bring about a privacy law.

Sunil Abraham, executive director, CIS, said, “While the government sets out to protect national interests, it’s also very important to protect the rights of individuals.”

The way ahead

Human Rights Watch, in a 7 June media release, described the CMS as “chilling, given its (India’s) reckless and irresponsible use of sedition and Internet laws”.

According to Freedom on the Net 2012, released on 24 September, India—which scored 39 points out of 100—was termed “partly-free”. But India is not alone. Around 40 countries filter the Internet in varying degrees, including democratic and non-democratic governments.

YouTube and Gmail (both owned by Google Inc.), BlackBerry, WikiLeaks, Skype (owned by Microsoft Corp.), Twitter and Facebook have all been censored, at different times, in countries such as China, Iran, Egypt and India.

European Union countries have strong privacy laws as is evident from the Schrems case.

Australia is engaged in putting similar safeguards in place. On 24 June, a Senate committee recommended that Australia’s proposed data retention scheme only be considered if it just collected metadata, avoided capture of browser histories and contained rigorous privacy controls and oversight.

Indian politicians could take a cue from such countries when balancing national interest with protecting the privacy of individuals.

Gopal Sathe in New Delhi and Zahra Khan in Mumbai contributed to this story.

For more details visit https://cis-india.org/news/livemint-leslie-d-monte-joji-thomas-philip-july-3-2013-how-the-worlds-largest-democracy-is-preparing-to-snoop-on-its-citizens

India’s Central Monitoring System: Security can’t come at cost of privacy

praskrishna — 2013-07-15T06:43:21Z

During a Google hangout session in June this year, Milind Deora, minister of state for communications and information technology, addressed concerns related to the central monitoring system (CMS).

Danish Raza's article was published in FirstPost on July 10, 2013. Sunil Abraham is quoted.

The surveillance project, described as the Indian version of PRISM, will allow the government to monitor online and telephone data of citizens. prism-milind-deora-cms-central-monitoring-system/” target=”_blank”>

The minister tried to justify the project arguing that the union government will become the sole custodian of citizen’s data which is now accessible to other parties such as telecom operators. But his justification failed to persuade experts who argue that the data is hardly safe because it is held by the government. And the limited information available about the project has raised serious concerns about its need and the consequences of government snooping on such a mass scale.

A release by the Press Information Bureau, dated November 26, 2009, is perhaps the only government document related to CMS available in public domain. It merely states that the project will strengthen the security environment in the country. “In the existing system secrecy can be easily compromised due to manual intervention at many stages while in CMS these functions will be performed on secured electronic link and there will be minimum manual intervention. Interception through CMS will be instant as compared to the existing system which takes a very long time.”

One of the primary concerns raised by experts is the sheer lack of public information on the project. So far, there is no official word from the government about which government bodies or agencies will be able to access the data; how will they use this information; what percentage of population will be under surveillance; or how long the data of a citizen will be kept in the record.

“This makes it impossible for India’s citizens to assess whether surveillance is the only, or the best, way in which the stated goal can be achieved. Also, citizens cannot gauge whether these measures are proportionate i.e. they are the most effective means to achieve this aim. The possibility of having such a debate is crucial in any democratic country,” said Dr Anja Kovacs, project director at Internet Democracy Project, Delhi based NGO working for online freedom of speech and related issues.

There is also no legal recourse for a citizen whose personal details are being misused or leaked from the central or regional database. Unlike America’s PRISM project under which surveillance orders are approved by courts, CMS does not have any judicial oversight. “This means that the larger ecosystem of checks and balances in which any surveillance should be embedded in a democratic country is lacking. There is an urgent requirement for a strong legal protection of the right to privacy; for judicial oversight of any surveillance; and for parliamentary or judicial oversight of the agencies which will do surveillance. At the moment, all three are missing.” said Kovacs.

Given the use of technology by criminals and terrorists, government surveillance per se, seems inevitable. Almost in every nation, certain chunk of population is always under the scanner of intelligence agencies. However, mass-scale tracking the data of all citizens — not just those who are deemed persons of interest — enabled by the CMS has sparked a public furor. Sunil Abraham, executive director, Centre for Internet & Society, Bangalore, compared surveillance with salt in cooking. “A tiny amount is essential but any excess is counterproductive,” he said. “Unlike target surveillance, blanket surveillance increases the probability of false positives. Wrong data analysis will put more number of innocent civilians under suspicion as, by default, their number in the central server is more than those are actually criminals.”

Such blanket surveillance techniques also pose a threat to online business. With all the data going in one central pool, a competitor or a cyber criminal rival can easily tap into private and sensitive information by hacking into the server. “As vulnerabilities will be introduced into Internet infrastructure in order to enable surveillance, it will undermine the security of online transactions,” said Abraham. He notes that the project also can undermine the confidentiality of intellectual property especially pre-grant patents and trade secrets. “Rights-holders will never be sure if their IPR is being stolen by some government in order to prop up national players.”

Every time a surveillance system is exposed or its misuse sparks a debate, governments argue that such programs are required for internal security purposes and to help abort terror attacks. Obama made the same argument after PRISM was revealed to the public. Civil rights groups, on the other hand, argue that security cannot be prioritised by large-scale invasions of privacy especially in a country like India where there is little accountability or transparency. So is there a middle ground that will satisfy both sides?

“Yes, security and privacy can coexist,” said Commander (rtd) Mukesh Saini, former national information security coordinator, government of India, “We can design a system which takes care of national security aspect and yet gains the confidence of the citizens. Secrecy period must not be more than three to four years in such projects. Thereafter who all were snooped and when and why and under whose direction/circumstances must be made public through a website after this time gap.”

Kovacs agrees and says the right kind of surveillance program would focus on the needs of the citizen and not the government. “If a contradiction seems to exist between cyber security and privacy online, this is only because we have lost sight of who is supposed to benefit from any security measures. Only if a measure contributes to citizen’s sense of security, can it really be considered a legitimate security measure.”

For more details visit https://cis-india.org/news/firstpost-danish-raza-july-10-2013-indias-central-monitoring-system-security-cant-come-at-cost-of-privacy

India's centralised snooping system facing big delays

praskrishna — 2013-07-15T06:35:05Z

Central Monitoring System lacks algorithms, database and data.

This blog post by Phil Muncaster was published in "The Register, UK" on July 9, 2013. The Centre for Internet & Society is mentioned.

After recent revelations about governments snooping on their own citizens, it's nice to know that not every such effort is going smoothly, as India’s much criticised NSA-style Centralised Monitoring System (CMS) is facing big delays after it emerged that the project is still missing the vital software which will allow analysts to search comms data.

The nation's Department of Telecommunications has now told the Center for Development of Telematics (C-DoT), which is installing the system, to speed things up, according to official documents seen by the Wall Street Journal.

The Rs.4 billion (£47.8m) CMS was originally conceived as a way of allowing the authorities to lawfully intercept voice calls and texts, emails, social media and the geographical location of individuals.

However, the Intelligence Bureau, which will be manning the system, has delayed its introduction for several reasons.

Firstly, mobile operators in only seven of the sub-continent’s 22 service areas have been connected to the CMS, leaving holes in its reach.

There’s also a major issue in that the system currently lacks the search algorithms needed to identify specific documents, meaning that as it stands operatives would have to search every email in the CMS to find the one they’re looking for.

The datacentre where intercepted data is to be stored is also apparently not yet ready, while the country’s Central Bureau of Investigation has yet to be given access to the system, causing further delays.

At a time when mass government monitoring of communications networks is a hot topic around the world thanks to Edward Snowden’s NSA revelations, rights groups have roundly slammed India’s CMS plans.

Human Rights Watch branded the scheme “chilling” in a strongly worded response, while India’s Centre for Internet and Society warned that the country currently doesn’t have privacy laws which could protect individuals from potential abuse of the system.

A Stop ICMS campaign has also been launched online in an attempt to mobilise opposition to the plans.

For more details visit https://cis-india.org/news/theregister-uk-phil-muncaster-july-9-2013-indias-centralised-snooping-system-facing-big-delays

Is CMS a Compromise of Your Security?

praskrishna — 2013-07-15T06:27:05Z

By secretly monitoring and recording all Indians through a Central Monitoring System, our government will end up making citizens and businesses less safe.

This article appeared in the Forbes India magazine of 12 July, 2013. Sunil Abraham is quoted.

Are you reading this article on your PC or smartphone? No? Do you own a smartphone? Surely a phone then?

If you also happen to live in Delhi, Haryana or Karnataka, then from April this year nearly all your electronic communication—telephony, emails, VOIP, social networking—has been sucked up under an innocuous sounding programme called the Central Monitoring System, or CMS.

There’s no way to tell if you are being watched really, because telecom service providers aren’t part of the set-up. In most cases, they may not even be aware which of their users is being monitored. Neither can you approach a government agency or court to find out more, because there’s practically very little oversight or disclosure. What the government does with the data—how it is stored, secured, accessed or deleted—we don’t know.

Unlike the US and other Western democracies where even for a large scale programme like Prism (leaked recently by 29-year-old whistleblower and now fugitive Edward Snowden), surveillance orders need to be signed by a judge. But in India most orders are signed by either the Central or state home secretary, says Sunil Abraham, executive director for Centre for Internet and Society, Bangalore. This leads to a conflict of interest as the executive branch is both undertaking law enforcement and providing oversight on its own work.

In most cases, the officials are overwhelmed with other work, and don’t have the time to apply their minds to each request. “There is supposed to be an oversight committee that reviews the decisions of home secretaries, but we don’t have any idea about that committee either,” says Abraham.

Meanwhile, government bodies like the R&AW, Central Bureau of Investigation, National Investigation Agency, Central Board of Direct Taxes, Narcotics Control Bureau and the Enforcement Directorate will have the right to look up your data. Starting next year, all mobile telephony operators will also need to track and store the geographical location from which subscribers make or receive calls.

“I see it as the rise of techno-determinism in our security apparatus. Previously, our philosophy was to avoid infringing on individual privacy, and monitor a small set of individuals directly suspected of engaging in illegal activities. Now, thanks to the Utopianism being offered up by ‘Big Data’ infrastructure, putting everybody under blanket surveillance seems like a better way to serve our security and law enforcement agendas more effectively,” says Abraham.

There is a real risk that CMS and the numerous other monitoring programmes that will subsequently connect to it will end up harming more Indians than protecting them.

The biggest risk is that these programmes will turn into lucrative ‘honey pots’ for hackers, criminals and rival countries. Why bother hacking individuals and companies if you can attack the CMS? We’ve seen private corporations and government agencies in the US, Israel and the UK getting hacked. So let’s not have any illusions that India is going to fare much better.

Another consequence is that sooner or later innocent citizens will be wrongly accused of being criminals based on mistaken data patterns. While searching for matches in any database with hundreds of millions of records, the risk of a ‘false positive’ increases disproportionately because there are exponentially more innocents than there are guilty. And in the near-Dystopian construct of the CMS, it will take months or years for such errors to be rectified.

As more Indians become aware of these programmes, they will adopt encryption and masking tools to hide their digital selves. In the process, numerous ‘unintended consequences’ of failing to differentiate law-abiding citizens from criminals will be created. What answer will a normal citizen offer to a law enforcement official who wants to know why he or she has encrypted all communications and hosted a personal server in, say, Sweden?

But arguably the biggest threat of 24x7 surveillance is to businesses. Security and trust are the foundations atop which most modern businesses are built. From your purchase of a gadget on an ecommerce site to a large conglomerate’s secret bid in a government auction to discussions within a company on future business strategies to patent applications—everything requires secrecy and security. All an unscrupulous competitor, whether it be a company or a country, has to do to go one-up on you is to attack the CMS and other central databases.

“The reason why the USA historically decided not to impose blanket surveillance wasn’t because of human rights, but to protect its businesses and intellectual property. Because while we may be able to live in a society without human rights, we cannot be in one without functional markets,” says Abraham.

He goes on to say that the recent disclosures around the various spying programmes run by the US have made the private surveillance and security industry very happy. “Each incident becomes a case-study to pit one country against another, forcing each one to cherry-pick the worst global practices in a dangerous race to the bottom. Civil society and privacy activists don’t have the resources to fight large vendors and so the only thing that will stop this is the leak of large databases, like that of 9 million Israeli biometric records a few years back.”

Recollecting the news about a family-business break-up some years ago, where two brothers agreed to split their businesses, the net result was one brother opted out of telephony services offered by the other. All of that is now moot. “There are no more shadows now. Nobody will have refuge and everybody will be exposed,” says Abraham.

For more details visit https://cis-india.org/news/forbesindia-article-real-issue-july9-2013-rohin-dharmakumar-is-cms-a-compromise-of-your-security

Moving Towards a Surveillance State

atreya — 2013-07-15T05:57:15Z

The cyberspace is a modern construct of communication and today, a large part of human activity takes place in cyberspace. It has become the universal platform where business is executed, discourse is conducted and personal information is exchanged. However, the underbelly of the internet is also seen to host activities and persons who are motivated by nefarious intent.

Note: The original tender document of the Assam Police dated 28.02.2013 along with other several other tender documents for procurement of Internet and Voice Monitoring Systems is attached as a zip folder.

As highlighted in the International Principles on the Application of Human Rights to Communications Surveillance, logistical barriers to surveillance have decreased in recent decades and the application of legal principles in new technological contexts has become unclear. It is often feared that in light of the explosion of digital communications content and information about communications, or "communications metadata," coupled with the decreasing costs of storing and mining large sets of data and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Communications surveillance in the modern environment encompasses the monitoring, interception, collection, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person's communications in the past, present or future.[*] These fears are now turning into a reality with the introduction of mass surveillance systems which penetrate into the lives of every person who uses any form of communications. There is ample evidence in the form of tenders for Internet Monitoring Systems (IMS) and Telecom Interception Systems (TCIS) put out by the Central government and various state governments that the Indian state is steadily turning into an extensive surveillance state.

While surveillance and intelligence gathering is essential for the maintenance of national security, the creation and working of a mass surveillance system as it is envisioned today may not necessarily be in absolute conformity with the existing law. A mass surveillance system like the Central Monitoring System (CMS) not only threatens to completely eradicate any vestige of the right to privacy but in the absence of a concrete set of procedural guidelines creates a tremendous risk of abuse.

Although information regarding the Central Monitoring System is quite limited on the public forum at the moment it can be gathered that a centralized system for monitoring of all communication was first proposed by the Government of India in 2009 as indicated by the press release of the Ministry of Communications & Information. Implementation of the system started subsequently as indicated by another government press release and the Center for Development of Telematics (C-DOT) was entrusted with the responsibility of implementing the system. As per the C-DOT annual report 2011-12, research, development, trials and progressive scaling up of a Central Monitoring System were conducted by the organization in the past 4 years and the requisite hardware and CMS solutions which support voice and data interception have been installed and commissioned at various Telecom Service Providers (TSP) in Delhi and Haryana as part of the pilot project. Media reports indicate that the project will be fully functional by 2014. While an extensive surveillance system is being stealthily introduced by the state, several concerns with regard to its extent of use, functioning, and real world impact have been raised owing to ambiguities and wide gaps in procedure and law. Moreover, the lack of a concrete privacy legislation coupled with the absence of public discourse indicates the lack of interest of the state over the rights of an ordinary citizen. It is under these circumstances that awareness must first be brought regarding the risks of the mass surveillance on civil liberties which in the absence of established procedures protecting the rights of the citizens of the state can result in the abuse of powers by the state or its agencies and lead to the demise of civil freedoms even in democratic states.

The architecture and working of a proposed Internet Monitoring System must be examined in an attempt to better understand the functioning, capabilities and possible impact of a Central Monitoring System on our society and lives. This can perhaps allow more open discourse and a committed effort to preserve the rights of the citizens especially the right to privacy can be made while allowing for the creation of strong procedural guidelines which will help maintain legitimate intelligence gathering and surveillance.

Internet Monitoring System: Setup and Working
Very broadly, The Internet Monitoring System enables an agency of the state to intercept and monitor all content which passes through the Internet Service Provider’s (ISP) server which includes all electronic correspondence (emails, chats or IM’s, transcribed call logs), web forms, video and audio files, and other forms of internet content. The electronic data is stored and also subject to various types of analysis. While Internet Monitoring Systems are installed locally and their function is limited to specific geographic region, the Central Monitoring System will consolidate the data acquired from the different voice and data interception systems located across the country and create a centralized architecture for interception, monitoring and analysis of communications. Although the exact specifications and functions of the central monitoring system still remain unclear and ambiguous, some parallels regarding the functioning of the CMS can be drawn from the the specifications revealed in the Assam Police tender document for the procurement of an Internet Monitoring System.

Setup
The deployment architecture of an Internet Monitoring System (IMS) contains probe servers which are installed at the Internet Service Provider’s (ISP) premises and the probes are installed at various tapping points within the entire ISP network. A collection server is also installed and hosted at the site of the ISP. The collection server is used to either collect, analyze, filter or simple aggregate the data from the ISP servers and the data is transferred to a master aggregation server located a central data center. The central data center may also contain more servers specifically for analysis and storage. This type of architecture is being referred to as a ‘high availability clustered setup’ which is supposed to provide security in case of a failure or outage.

The Assam Police Internet Monitoring System tender document specifically indicates that the deployment in the state of Assam shall require 8 taps or probes to be installed at different ISPs, out of which 6 taps/probes shall be of 10 GBPS and 2 taps are of 1 GBPS. The document however mentions that the specifications are preliminary and subject to change.

Types of data
The proposed internet monitoring system of the Assam state can provide network traffic interception and a variety of internet protocols including Hypertext Transfer Protocol (HTTP), File Transfer Protocol (FTP), Simple Mail Transfer Protocol (SMTP), Internet Message Access Protocol (IMAP) and Session Initiation Protocol (SIP), Voice over Internet Protocol (VoIP) can be intercepted and monitored. The system can also support monitoring of Internet Relay Chat and various other messaging applications (such as Google Talk, Yahoo Chat, MSN Messenger, ICQ, etc.). The system can be equipped to capture and display multiple file types like text (.doc, .pdf), zipped (.zip) and executable applications (.exe). Further, information regarding login details, login pattern, login location, DNS address, routing address can be acquired along with the IP address and other details of the user.

Web crawling capabilities can be installed on the system which can provide data from various data sources like social networking sites, web based communities, wikis, blogs and other forms of web content. Social media websites (such as Twitter, Facebook, Orkut, MySpace etc.), web pages and data on hosted applications can also be intercepted, monitored and analyzed. The system also allows capture of additional pages if updated; log periodical updates and other changes. This allows the monitoring agencies the capability of gathering internet traffic based on several parameters like Protocols, Keywords, Filters and Watch lists. Keyword matching is achieved by including phonetically similar words in various languages including local languages.

More specific functions of the IMS can include complete email extraction which will disclose the address book, inbox, sent mail folder, drafts folder, personal folders, delete folders, custom folders etc. and can also provide identification of dead drop mails. The system can also be equipped to allow country wise tracking of instant messages, chats and mails.

Regarding retention and storage of data, the tender document specifies that the system shall be technically capable of retaining the metadata of Internet traffic for at least one year and the defined traffic/payload/content is to be retained in the storage server at least for a week. However, the data may be retained for a longer period if required. The metadata and qualified data after analysis are integrated to a designated main intelligence repository for storage.

Types of Analysis
The Internet Monitoring System apart from intercepting all the data generated through the Internet Service Providers is essentially equipped for various types of data analysis. The solutions that are installed in the internet monitoring system provide the capability for real time as well as historical analysis of network traffic, network perimeter devices and internal sniffers. The kinds of analysis based on ‘slicing and dicing of data’ range from text mining, sentiment analysis, link analysis, geo-spatial analysis, statistical analysis, social network analysis, transaction analysis, locational analysis and fusion based analysis, CDR analysis, timeline analysis and histogram based analysis from various sources.

The solutions installed in the IMS can enable monitoring of specific words or phrases (in various languages) in blogs, websites, forums, media reports, social media websites, media reports, chat rooms and messaging applications, collaboration applications and deep web applications. Phone numbers, addresses, names, locations, age, gender and other such information from content including comments and such can also be monitored. Specifically with regard to social media, the user’s profile and information related to it can be extracted and a detailed ontology of all the social media profiles of the user can be created.

Based on the information, the analysis supposed to provide the capability to identify suspicious behavior based on existing and new patterns as they emerge and are continuously applied to combine incoming and existing information on people, profiles, transactions, social network, type of websites visited, time spent on websites, type of content download or view and any other type of gatherable information. The solutions on the system are also supposed to create single or multiple or parallel scenario build-ups that may occur in blogs, social media forums, chat rooms, specific web hosting server locations or URL, packet route that may be defined from time to time and such scenario build-ups can be based on parameters like sentiments, language or expressions purporting hatred or anti-national expressions, and even emotions like expression of joy, compassion and anger, which as may be defined by the agency depending on operational and intelligence requirement. Based on these parameters, automated alerts can be generated relating to structured or unstructured data (including metadata of contents), events, pattern discovery, phonetically similar words or phrases or actions from users.

Based on the data analysis, reports or dossiers can be generated and visual analysis allowing a wide variety of views can be created. Further, real time visualization showing results from real-time data can be generated which allows alerts, alert categories or discoveries to be ranked (high, medium, and low priority, high value asset, low value asset, moderate value asset, verified information, unverified information, primary evidence, secondary evidence, circumstantial evidence, etc.) based on criteria developed by the agency. The IMS solutions can also be capable of offering web-intelligence and open source intelligence and allow capabilities like simultaneous search capabilities which can be automated providing a powerful tool for exploration of the intercepted data.

Another important requirement mentioned in the tender document is the systems capability to integrate with other interception and monitoring systems for 2G, 3G/UMTS and other evolving mobile carrier technologies including fixed line and Blackberry services and encrypted IP services like Skype services.

Conclusion
It is clear that a system like IMS with its extensive interception and analysis capabilities gives complete access to an agency or authority of all information that is accessed or transmitted by a person on the internet including information which is private and confidential such as email and instant messages. Although the state has the power to issue directions for interception or monitoring of information under the Information Technology Act, 2000 and certain rules are prescribed under section 69B, they are wholly inadequate compared to the scope and extent of the Internet Monitoring System and its scale of operations. The interception and monitoring systems that are either proposed or already in place effectively bypass the existing procedures prescribed under the Information Technology Act.

The issues, concerns and risks are only compounded when it comes to the Central Monitoring System. The solutions installed in present day interception and monitoring systems give the state unprecedented powers to intercept, monitor and analyze all the data of any person who access the internet. Tools like deep packet inspection and extensive data mining solutions in the absence of concrete safeguards and when deployed through a centralized system can be misused to censor any content including legitimate discourse. Also, the perception that access to a larger amount of data or all data can help improve intelligence can also be sometimes misleading and it must be asked whether the fundamental rights of the citizens of the state can be traded away under the pretext of national security. Furthermore, it is essential for the state to weigh the costs of such a project both economically and morally and balance it with sufficient internal measures as well as adequate laws so that the democratic values are persevered and not endangered by any act of reckless force.

Reiterating what has been said earlier, while it is important for the state to improve its intelligence gathering tools and mechanisms, it must not be done at the cost of a citizen’s fundamental right. It is the duty of the democratic state to endure and maintain a fine balance between national interest and fundamental rights through timely creation of equitable laws.

[*]. http://necessaryandproportionate.net/#_edn2

For more details visit https://cis-india.org/internet-governance/blog/moving-towards-surveillance-state