Centre for Internet and Society

Electoral Databases – Privacy and Security Concerns

snehashish — 2014-01-16T11:07:21Z

In this blogpost, Snehashish Ghosh analyzes privacy and security concerns which have surfaced with the digitization, centralization and standardization of the electoral database and argues that even though the law provides the scope for protection of electoral databases, the State has not taken any steps to ensure its safety.

The recent move by the Election Commission of India (ECI) to tie-up with Google for providing electoral look-up services for citizens and electoral information services has faced heavy criticism on the grounds of data security and privacy.[i] After due consideration, the ECI has decided to drop the plan.[ii]

The plan to partner with Google has led to much apprehension regarding Google gaining access to the database of 790 million voters including, personal information such as age, place of birth and residence. It could have also gained access to cell phone numbers and email addresses had the voter chosen to enroll via the online portal on the ECI website. Although, the plan has been cancelled, it does not necessarily mean that the largest database of citizens of India is safe from any kind of security breach or abuse. In fact, the personal information of each voter in a constituency can be accessed by anyone through the ECI website and the publication of electoral rolls is mandated by the law.

Publication of Electoral Rolls
The electoral roll essentially contains the name of the voter, name of the relationship (son of/wife of, etc.), age, sex, address and the photo identity card number. The main objective of creation and maintenance of electoral rolls and the issue of Electoral Photo Identity Card (EPIC) was to ensure a free and fair election where the voter would have been able to cast his own vote as per his own choice. In other words, the main purpose of the exercise was to curtail bogus voting. This is achieved by cross referencing the EPIC with the electoral roll.

The process of creation and maintenance of electoral rolls is governed by the Registration of Electors Rules, 1960. Rule 22 requires the registration officer to publish the roll with list of amendments at his office for inspection and public information. Furthermore, ECI may direct the registration officer to send two copies of the electoral roll to every political party for which a symbol has exclusively been reserved by the ECI. It can be safely concluded that the electoral roll of a constituency is a public document[iii] given that the roll is published and can be circulated on the direction of the ECI.

With the computational turn, in 1998 the ECI took the decision to digitize the electoral databases. Furthermore, printed electoral rolls and compact discs containing the rolls are available for sale to general public.[iv] In addition to that, the electoral rolls for the entire country are available on the ECI website.[v] However, the current database is not uniform and standardized, and entries in some constituencies are available only in the local language. The ECI has taken steps to make the database uniform, standardized and centralized.[vi]

Security Concerns
The Registration of Electoral Rules, 1960 is an archaic piece of delegated legislation which is still in force and casts a statutory duty on the ECI to publish the electoral rolls. The publication of electoral rolls is not a threat to security when it is distributed in hard copies and the availability of electoral rolls is limited. The security risks emerge only after the digitization of electoral database, which allows for uniformity, standardization and centralization of the database which in turn makes it vulnerable and subject to abuse. The law has failed to evolve with the change in technology.

In a recent article, Bill Davidow analyzes "the dark side of Moore’s Law" and argues that with the growth processing power there has been a growth in surveillance capabilities and on this note the article is titled, “With Great Computing Power Comes Great Surveillance”[vii] Drawing from Davidow’s argument, with the exponential growth in computing power, search has become convenient, faster and cheap. A uniform, standardized and centralized database bearing the personal information of 790 million voters can be searched and categorized in accordance with the search terms. The personal information of the voters can be used for good, but it can be equally abused if it falls into the wrong hands. Big data analysis or the computing power makes it easier to target voters, as bits and pieces of personal information give a bigger picture of an individual, a community, etc. This can be considered intrusive on individual’s privacy since the personal information of every voter is made available in the public domain

For example, the availability of a centralized, searchable database of voters along with their age would allow the appropriate authorities to identify wards or constituencies, which has a high population of voters above the age of 65. This would help the authority to set up polling booths at closer location with special amenities. However, the same database can be used to search for density of members of a particular community in a ward or constituency based on the name, age, sex of the voters. This information can be used to disrupt elections, target vulnerable communities during an election and rig elections.

Current IT Laws does not mandate the protection of the electoral database
A centralized electoral database of the entire country can be considered as a critical information infrastructure (CII) given the impact it may have on the election which is the cornerstone of any democracy. Under Section 70 of the Information Technology Act, 2000 (IT Act) CII means “the computer resource, incapacitation or destruction of which, shall have debilitating impact on national security, economy.”[viii] However, the appropriate Government has not notified the electoral database as a protected system[ix]. Therefore, information security practices and procedures for a protected system are not applicable to the electoral database.

The Information Technology Rules (IT Rules) are also not applicable to electoral databases, per se. Since, ECI is not a body corporate, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011 (hereinafter Reasonable Security Practices Rules) do not apply to electoral databases. Ignoring that Reasonable Security Practices Rules only apply to a body corporate, the electoral database does fall within the ambit of definition of “personal information”[x] and should arguably be made subject to the Rules.

The intent of the ECI for hosting the entire country’s electoral database online inter alia is to provide electronic service delivery to the citizens. It seeks to provide “electoral look up services for citizens ... for better electoral information services.”[xi] However, the Information Technology (Electronic Service Delivery) Rules, 2011 are not applicable to the electoral database given that it is not notified by the appropriate Government as a service to be delivered electronically. Hence, the encryption and security standards for electronic service delivery are not applicable to electoral rolls.

The IT Act and the IT Rules provide a reasonable scope for the appropriate Government to include electoral databases within the ambit of protected system and electronic service delivery. However, the appropriate government has not taken any steps to notify electoral database as protected system or a mode of electronic service delivery under the existing laws.

Conclusion
Publication of electoral rolls is a necessary part of an election process. It ensures free and fair election and promotes transparency and accountability. But unfettered access to electronic electoral databases may have an adverse effect and would endanger the very goal it seeks to achieve because the electronic database may pose threat to privacy of the voters and also lead to security breach. It may be argued that the ECI is mandated by the law to publish the electoral database and hence, it is beyond the operation of the IT Act. But Section 81 of the IT Act has an overriding effect on any law inconsistent, therewith. The appropriate Government should take necessary steps under the IT Act and notify electoral databases as a protected system.

It is recommended that the Electors Registration Rules, 1960 should be amended, taking into account the advancement in technology. Therefore, the Rules should aim at restricting the unfettered electronic access to the electoral database and also introduce purposive limitation on the use of the electoral database. It should also be noted that more adequate and robust data protection and privacy laws should be put in place, which would regulate the collection, use, storage and processing of databases which are critical to national security.

[i] Pratap Vikram Singh, Post-uproar, EC’s Google tie-up plan may go for a toss, Governance Now, January 7, 2014 available at http://www.governancenow.com/news/regular-story/post-uproar-ecs-google-tie-plan-may-go-toss

[ii] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

[iii] Section 74, Indian Evidence Act, 1872

[iv] eci.nic.in/eci_main1/the_function.aspx

[v] http://eci.nic.in/eci_main1/Linkto_erollpdf.aspx

[vi] “At present, in most States and UTs the Electoral Database is kept at the district level. In some cases it is kept even with the vendors. In most States/UTs it is maintained in MS Access, while in some cases it is on a primitive technology like FoxPro and in some other cases on advanced RDBMS like Oracle or Sql Server. The database is not kept in bilingual form in some of the States/UTs, despite instructions of the Commission. In most cases Unicode fonts are not used. The database structure not being uniform in the country, makes it almost impossible for the different databases to talk to each other” – Election Commission of India, Revision of Electoral Rolls with reference to 01-01-2010 as the qualifying date – Integration and Standardization of the database- reg., No. 23/2009-ERS, January 6, 2010 available at eci.nic.in/eci_main/eroll&epic/ins06012010.pdf

[vii] http://www.theatlantic.com/technology/archive/2014/01/with-great-computing-power-comes-great-surveillance/282933/

[viii] Section 70, Information Technology Act, 2000

[ix] Computer resource which directly or indirectly affects the facility of Critical Information Infrastructure

[x] Rule 2(1)(i), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

[xi] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

For more details visit https://cis-india.org/internet-governance/blog/electoral-databases-2013-privacy-and-security-concerns

The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill

pranesh — 2011-10-03T05:37:27Z

Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.

Special 301 Report: Unbalanced Hypocrisy

The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:

[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.

More the report changes, the more it stays the same. Despite having wider consultations than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.

India and the 2010 Special 301 Report

The Special 301 report for 2010 contains the following assessment of India:

India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year.

This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.

On Copyrights

The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely how India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again proven to be wrong:
Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, states:

Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.

Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid and others, who argue that lax enforcement has enabled access to knowledge and promotion of innovation. In a panel on 'Access to Knowledge' at the Internet Governance Forum, Lea Shaver, Jeremy Malcolm and others who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).
The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.
The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.

On Patents

Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.

The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An American judgment even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.

Miscellanea

The harms of counterfeit medicine, as we have noted earlier, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.

Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.

Conclusion

Michael Geist, professor at University of Ottowa astutely notes:

Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain. In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.

His comments apply equally well for India as well.

IIPA's Recommendation for the Special 301 Report

Thankfully, this year IIPA's recommendations have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:

The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.

Breaking that into two bit:

Open Source

Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. HP and IBM have been huge supporters of open source software. Even Microsoft has an open source software division. [Intel][intel], SAP, Cisco, Dell, Sybase, Entrust, Intuit, Synopsys, Apple, Borland, Cadence, Autodesk, and Siemens are all members of BSA which support open source software / produce at least some open source software. And all BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to look at FOSS very seriously and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.

Domestic Software

As this insightful article by Nate Anderson in Ars Technica notes:

Open source is bad enough, but a "buy Indian" law? That would be an outrage and surely something the US government would not itself engage in as recently as last year. Err, right?

Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.

WCT, WPPT, Camcording, and Statutory Damages

The IIPA submission also wish that India would:

Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;
Adopt an optical disc law;
Enact Copyright Law amendments consistent with the WCT and WPPT;
Adopt an anti-camcording criminal provision.

Quick counters:

Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case called the damage award "monstrous and shocking" and said that veered into "the realm of gross injustice."
The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.
India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.
Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.

Further conclusions

Shamnad Basheer, an IP professor at NUJS, offer the following as a response:

"Dear USA,

India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest! More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.

Yours sincerely,

India."

Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.

For more details visit https://cis-india.org/a2k/blogs/2010-special-301

Does the Safe-Harbor Program Adequately Address Third Parties Online?

rebecca — 2011-08-02T07:19:34Z

While many citizens outside of the US and EU benefit from the data privacy provisions the Safe Harbor Program, it remains unclear how successfully the program can govern privacy practices when third-parties continue to gain more rights over personal data. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem.

To date, the EU-US Safe Harbor Program leads in governing the complex and multi-directional flows of personal information online. As commerce began to thrive in the online context, the European Union was faced with the challenge of ensuring that personal information exchanged through online services were granted levels of protect on par with provisions set out in EU privacy law. This was important, notably as the piecemeal and sectoral approach to privacy legislation in the United states was deemed incompatible with the EU approach. While the Safe Harbor program did not aim to protect the privacy of citizens outside of the European Union per say, the program has in practice set minimum standards for online data privacy due to the international success of American online services.

While many citizens outside of the US and EU benefit from the Safe Harbor Program, it remains unclear how successful the program will be in an online ecosystem where third-parties are being granted increasingly more rights over the data they receive from first parties. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem. First, I will argue that the safe harbor program does not do enough to ensure that participants are held reasonably responsible third party privacy practices. Second, I will argue that the information asymmetries created between first party sites, citizens, and governance bodies vis-à-vis third parties obscures the application of the Safe Harbor Model.

The EU-US Safe-Harbor Agreement

In 1995, and based on earlier OECD guidelines, the EU Data Directive on the “protection of individuals with regard to the processing of personal data and the free movement of such data” was passed [1]. The original purpose of the EU Privacy Directive was not only to increase privacy protection within the European Union, but to also promote trade liberalization and a single integrated market in the EU. After the Data Directive was passed, each member state of the EU incorporated the principles of the directive into national laws accordingly.

While the Directive was successful in harmonizing data privacy in the European Union, it also embodied extraterritorial provisions, giving in reach beyond the EU. Article 25 of the Directive states that the EU commission may ban data transfers to third countries that do not ensure “an adequate level of protect’ of data privacy rights [2]. Also, Article 26 of the Directive, expanding on Article 25, states that personal data cannot be transferred to a country that “does not ensure an adequate level of protection” if the data controller does not enter into a contract that adduces adequate privacy safeguards [3].

In light of the increased occurrence of cross-border information flows, the Data Directive itself was not effective enough to ensure that privacy principles were enforced outside of the EU. Articles 25 and 26 of the Directive had essentially deemed all cross-border data-flows to the US in contravention of EU privacy law. Therefor, the EU-US Safe-Harbor was established by the EU Council and the US Department of Commerce as a way of mending the variant levels of privacy protection set out in these jurisdictions, while also promoting online commerce.

Social Networking Sites and the Safe-Harbor Principles

The case of social networking sites exemplifies the ease with which data is transferred, processed, and stored between jurisdictionas. While many of the top social networking sites are registered American entities, they continue to attract users not only from the EU, but also internationally. In agreement to the EU law, many social networking sites, including LinkedIn, Facebook, Myspace, and Bebo, now adhere to the principles of the program. The enforcement of the Safe Harbor takes place in the United States in accordance with U.S. law and relies, to a great degree, on enforcement by the private sector. TRUSTe, an independent certification program and dispute mechanism, has become the most popular governance mechanism for the safe harbor program among social networking sites.

Drawing broadly on the principles embodied within the EU Data Directive and the OECD Guidelines, the seven principles of the Safe-Harbor were developed. These principles include Notice, Choice, Onward Transfer, Access and Accuracy, Security, Data Integrity and Enforcement. The principle of “Notice” sets out that organizations must inform individuals about the purposes for which it collects and uses information about them, how to contact the organization with any inquiries or complaints, the types of third parties to which it disclosures the information, and the choices and means the organization offers individuals for limiting its use and disclosure.

“Choice” ensures that individuals have the opportunity to choose to opt out whether their personal information is disclosed to a third party, and to ensure that information is not used for purposes incompatible with the purposes for which it was originally collected. The “Onward Transfer” principle ensures that third parties receiving information subscribes to the Safe Harbor principles, is subject to the Directive, or enters into a written agreement which requires that the third party provide at least the same level of privacy protection as is requires by the relevant principles.

The principles of “Security” and “Data Integrity” seek to ensure that reasonable precautions are taken to protect the loss or misuse of data, and that information is not used in a manner which is incompatible with the purposes for it is has been collected—minimizing the risk that personal information would be misused or abused. Individuals are also granted the right, through the access principle, to view the personal information about them that an organization holds, and to ensure that it is up-to-date and accurate. The “Enforcement” principle works to ensure that an effective mechanism for assuring compliance with the principles, and that there are consequences for the organization when the principles are not followed.

The principles of the program are rather quite clear and enforceable in the first party context, despite some prevailing ambiguities. The privacy policies of most social networking services have become increasingly clear and straightforward since their inception. Facebook, for example, has revamped its privacy regime several times, and gives explicit notice to users how their information is being used. The privacy policy also explains the relationship between third parties and your personal information—including how it may be used by advertisers, search engines, and fellow members.

With respect to third party advertisers, principles of “choice” are clearly granted by most social networking services. For example, the Network Advertising Initiative, a self-regulatory initiative of the online advertising industry, clearly lists its member websites and allows individuals to opt out of any targeted advertising conducted by its members. In Facebook’s description of “cookies” in their privacy policy, a direct link to NAI’s opt out features is given, allowing individuals to make somewhat informed choices about their participation in such programs. This point is, of course, in light of the fact that most users do not read or understand the privacy policies provided by social networking sites [4]. It is also important to note that Google—a major player in the online advertising business, does not grant users of Buzz and Orkut the same “opt-out” options as sites such as Facebook and Bebo.

Under the auspices of the US Federal Trade Commission, the Safe Harbor Program has also successfully investigated and settled several privacy-related breaches which have taken place on social networking sites. Of the most famous cases is Lane et al. v. Facebook et al., which was a class action suit brought against Facebook’s Beacon Advertising program. The US Federal Trade Commission was quick to insight an investigation of the program after many privacy groups and individuals became critical of its questionable advertising practices. The Beacon program was designed to allow Facebook users to share information with their friends about actions taken on affiliated, third party sites. This had included, for example, the movie rentals a user had made through the Blockbuster website.

The Plaintiffs filed a suit, alleging that Facebook and its affiliates did not give users adequate notice and choice about Beacon and the collection and use of users’ personal information. The Beacon program was ultimately found to be in breach of US law, including the Video Privacy Protection Act, which bans the disclosure of personally identifiable rental information. Facebook has announced the settlement of the lawsuit, not bringing individual settlements, but a marked end to the program and the development of a 9.5 million dollar Facebook Privacy Fund dedicated to privacy and data-related issues. Other privacy related investigations of social networking sites launched by the FTC under the Safe Harbor Program include Facebook’s privacy changes in late 2009, and the Google’s recently released Buzz application.

Despite the headway the Safe Harbor is making, many privacy related questions remain ambiguous with respect to the responsibilities social networking sites through the program. For example, Bebo reserves the right to supplement a social profile with addition information collected from publicly available information and information from other companies. Bebo’s does adhere to the “notice principle”—as it makes know to users how their information will be used through their privacy policy. However, it remains unclear if appropriate disclosures are given by Bebo as required by Safe Harbor Framework, notably as the sources of “publicly available information” as a concept remains broad and obscured in the privacy policy. It is also unclear whether or not Bebo users are able to, under the “Choice” principle, refuse to having their profiles from being supplemented by other information sources. Also, under the “access principle”, do individuals have the right to review all information held about them as “Bebo users”? The right to review information held by a social networking site is an important one that should be upheld. This is most notable as supplementary information from outside social networking services is employed to profile individual users in ways which may work to categorize individuals in undesirable ways.

The Third Party Problem

Cooperation between social networking sites and the Safe Harbor has improved, and most of these sites now have privacy policies which explicitly address the principles of the Program. It should also be noted that public interest groups, such as Epic, the Center for Digital Democracy, and The Electronic Frontier Foundation, have played a key role in ensuring that data privacy breaches are brought to the attention of the FTC under the program. While the program has somewhat adequately addressed the privacy practices of first party participants, the number of third parties on social networking sites calls into question the comprehensiveness and effectiveness of the Safe Harbor program. Facebook itself as a first party site may adhere to the Safe Harbor Program. However, its growing number third party platform members may not always adhere to best practices in the field, nor can Facebook or the Safe Harbor Program guarantee that they do so.

The Safe Harbor Program does require that all participants take certain security measures when transferring data to a third party. Third parties must either subscribe to the safe harbor principles, or be subject to the EU Data Directive. Alternatively, an organization can may also enter into a written agreement with a third party requiring that they provide at least the same level of privacy protection as is required by program principles. Therefore, third parties of participating program sites are, de facto, bound by the safe harbor principles by the way of entering into agreement with a first party participant of the program. This is the approach taken by most social networking sites and their third parties.

It is important to note, however, that third parties are not governed directly by the regulatory bodies, such as the FTC. The safe harbor website also explicitly notes that the program does not apply to third parties. Therefore, as per these provisions, Facebook must adhere to the principles of the program, while its third party platform members (such as social gaming companies), only must do so indirectly as per a separate contract with Facebook. The effectiveness of this indirect mode of governing of third party privacy practices is questionable for numerous reasons.

Firstly, while Facebook does take steps to ensure that third parties use information from Facebook in a manner which is consistent to the safe harbor principles, the company explicitly waives any guarantee that third parties will “follow their rules”. Prior to allowing third parties to access any information about users, Facebook requires third parties to agree to terms that limit their use of information, and also use technical measures to ensure that they only obtain authorized information. Facebook also warns users to “always review the policies of third party applications and websites to make sure you are comfortable with the ways in which they use information”. Not only are users required to read the privacy policies of every third party application, but are also expected to report applications which may be in violation of privacy principles. In this sense, Facebook not only waives responsibility for third party privacy breaches, but also places further regulatory onus upon the user.

As the program guidelines express, the safe harbor relies to a great degree on enforcement by the private sector. However, it is likely that a self-regulatory framework may lead the industry into a state of regulatory malaise. Under the safe harbor program, Facebook must ensure that the privacy practices of third parties are adequate. However, at the same time, the company may simultaneously waiver their responsibility for third party compliance with safe harbor principles. Therefore, it remains questionable as to where responsibility for third parties exactly lies. When third parties are not directly answerable to the governing bodies of safe harbor program, and when first parties can to waive responsibility for their practices, from where does the incentive to effectively regulate third parties to come from?

While Facbeook may in fact take reasonable legal and technical measures to ensure third party compliance, the room for potential dissonance between speech and deed is worrisome. Facebook is required to ensure that third parties provide “at least the same level of privacy protection” as they do. However, in practice, this has yet to become the case. A quick survey of twelve of the most popular Platform Applications in the gaming category showed that third parties are not granting their users the “same level of privacy protection”[5]. For example, section 9.2.3 of Facebooks “Rights and Responsibilities” for Developers/Operators of applications/sites states that they must “have a privacy policy or otherwise make it clear to users what user data you are going to use and how you will use, display, or share that data”.

However, out of the 12 gaming applications surveyed, four companies failed to make privacy policies available to users before they granted the application access to the personal information, including that of their friends [6]. After searching for the privacy policies on the websites of each of the four social gaming companies, two completely failed to post privacy policies on their central websites. This practice is in direct breach of the contract made between these companies and Facebook, as mentioned above. In addition to many applications failing to clearly post privacy policies, many of provisions set out in these policies were questionable vis-à-vis safe harbor principles.

For example Zynga, makes of popular games Mafia Wars and Farmville, reserve the right to “maintain copies of your content indefinitely”. This practice remains contrary to Safe Harbor principles which states that information should not be kept for longer than required to run a service. Electronic Arts also maintains similar provisions for data retention in its privacy policy. Such practices are rather worrisome also in light of the fact that both companies also reserve the right to collect information on users from other sources to supplement profiles held. This includes (but is not limited to) newspapers and Internet sources such as blogs, instant messaging services, and other games. It is also notable to mention that only one of the twelve social gaming companies surveyed directly participates in the safe harbor program.

In addition to the difficulties of ensuring that safe harbor principles are adhered to by third parties, the information asymmetries which exist between first party sites, citizens, and governance bodies vis-à-vis third parties complicate this model. Foremost, it is clear that Facebook, despite its resources, cannot keep tabs on the practices of all of their applications. This puts into question if industry self-regulation can really guarantee that privacy is respected by third parties in this context. Furthermore, the lack of knowledge or understanding held by citizens about how third parties user their information is particularly problematic when a system relies so heavily on users to report suspected privacy breaches. The same is likely to be true for governments, too. As one legal scholar, promoting a more laisse-fair approach to third party regulation, notes—multiple and invisible third party relationships presents challenges to traditional forms of legal regulation [7].

In an “open “social ecosystem, the sheer volume of data flows between users of social networking sites and third party players appears to have become increasingly difficult to effectively regulate. While the safe harbor program has been successful in establishing best practices and minimum standards for data privacy, it is also clear that governance bodies, and public interest groups, have focused most attention on large industry players such as Facebook. This has left smaller third party players on social networking sites in the shadows of any substantive regulatory concern. If one this has become clear, it is the fact that governments may no longer be able to effectively govern the flows of data in the burgeoning context of “open data”.

As I have demonstrated, it remains questionable whether or not Facebook can regulate third parties data collection practices effectively. Imposing more stringent responsibilities on safe harbor participants could be a positive step. It is reasonable to assume that it would be undue to impose liability on social networking sites for the data breaches of third parties. However, it is not unreasonable to require sites like Facebook go beyond setting “minimum standards” for data privacy, towards taking a more active enforcement, if even through TRUSTe or another regulatory body. If the safe harbor is to be effective, it cannot allow program participants to simply wave the liability for third party privacy practices. The indemnity granted to third parties on social networking sites may deem the safe harbor program more effective in sustaining the non-liability of third parties, rather than protecting the data privacy of citizens.

[1] Official Directive 95/46/EC

[2] 95/46/EC

[3] Ibid

[4] See Acquisit, A. a. (n.d.). Imagined Communities: Awareness, Information Sharing, and Privacy on Facebook. PET 2006

[5] Of the Privacy Policy browsed include, Zynga, Rock You!, Crowdstar, Mind Jolt, Electronic Arts, Pop Cap Games, Slash Key, Playdom, Meteor Games, Broken Bulb Studios, Wooga, and American Global Network.

[6] By adding an application, users are also sharing with third parties the information of their friends if they do not specifically opt out of this practice.

[7]See Milina, S. (2003). Let the Market Do its Job: Advocating an Integrated Laissez-Faire Approach to Online Profiling. Cardozo Arts and Entertainment Law Journal .

For more details visit https://cis-india.org/internet-governance/blog/does-the-safe-harbor-program-adequately-address-third-parties-online

IT Act and Commerce

pranesh — 2011-08-02T07:41:45Z

This is a guest post by Rahul Matthan, partner in the law firm Trilegal, and widely regarded as one of the leading experts on information technology law in India. In this post, Mr. Matthan looks at the provisions in the amended Information Technology Act of interest to commerce, namely electronic signatures and data protection.

This post analyses the amendments brought about to the Information Technology Act, 2000 (“IT Act 2000”) through the recent 2008 amendments (“IT Act 2008”).

Definitions

The IT Act 2008 has introduced a few additional definitions to the list of definitions originally included in the IT Act 2000. These definitions have either amplified the existing provisions or been introduced in order to address new issues required to be defined in the context of the newly introduced provisions in the statute. Some of the significant definitions have been discussed below:

Computer Network

The definition of “computer network” has been amended to specifically include the wireless interconnection of computers. While wireless technology did fall within the scope of the IT Act under the rather generic head of “other communication media”, the Amendment Act clarifies the scope of the IT Act by expressly including the term “wireless”.

Communication Devices

The IT Amendment Bill, 2006, had provided an explanation for “communication devices” under Section 66A. This definition has been moved into the definition section and now applies across all sections of the IT Act 2008. “Communication devices” is defined to mean “a cell phone, personal digital assistance (PDA) device or combination of both or any device used to communicate, send or transmit any text, video, audio or image”.

There has been case law even under the IT Act that has held mobile phones to fall within the ambit of the IT Act, as a result of which all the provisions of the Act that apply to computers are equally applicable to mobile phones. This amendment only makes that position more explicit.

Electronic Signatures

One of the major criticisms of the IT Act 2000 was the fact that it was not a technology neutral legislation. This was specifically so in relation to the provisions in the IT Act 2000 relating to the use of digital signatures for the purpose of authentication of electronic records. The statute made specific reference to the use of asymmetric cryptosystem technologies in the context of digital signatures, and, in effect, any authentication method that did not use this technology was not recognised under the IT Act 2000.

The IT Act 2008 has attempted to make this more technology neutral. In doing so, the attempt has been to bring the law in line with the United Nations Commission on International Trade Law Model Law on Electronic Signatures (“Model Law”).

Replacement of Digital Signatures

The first significant change in the IT Act 2008 is the replacement of the term “digital signatures” with “electronic signatures” in almost all the provisions in the IT Act 2000. In some provisions, reference continues to be made to digital signatures, but the net effect of the amendments is to treat digital signatures as a subset (or an example of one type) of electronic signatures.

Electronic signatures have been defined as the authentication of an electronic record using the authentication techniques specified in the 2nd Schedule to the Act, provided they are reliable.

The reliability criterion has been introduced, very much along the lines of the Model Law. However, the contents of the 2nd Schedule are yet to be stipulated, which means that despite the existence of a reliability standard, the only authentication method available at this point in time is the digital signature regime.

Dual Requirement

One significant implication of this amendment is the introduction of a dual requirement – to meet the reliability standard as well as to be included in the 2nd Schedule. However, structuring the authentication procedures in this manner offsets the objective tests of neutrality borrowed from the Model Law, since an authentication method may meet the reliability test but will not be deemed to be legally enforceable unless it is notified in the 2nd Schedule.

Additionally, there will be grounds for challenging electronic signatures that are notified to the 2nd Schedule, if it can be shown that the signature so notified is not reliable under the terms of the reliability criteria. This can act as an impediment to the recognition of electronic signatures by notification.

Emphasis on Digital Signatures

Another concern is the treatment of digital signatures in the post amendment statute. The IT Act 2008 continues to retain all the provisions relating to digital signatures within the main body of the statute. The term “digital signature” has not been uniformly substituted with “electronic signature” throughout the statute. In certain provisions this leads to a certain amount of absurdity, such as in those relating to representations made as to the issuance, suspension or revocation of digital signature certificates; due to the lack of uniformity, these principles now apply only to digital signatures and not to all types of electronic signatures.

It would have been preferable if the provisions relating to digital signatures had been moved in their entirety to the 2nd Schedule. Then, digital signatures would have become just another class of electronic signatures listed in the Schedule. By omitting to do this, the authors ensure that digital signature-specific provisions remaining in the main body of the statute challenge the technology neutrality of the statute.

Certifying Authorities

The IT Act 2008 has made the certifying authority the repository of all electronic signatures issued under the statute. Given that there are, at present, multiple certifying authorities, this provision is impractical. Instead, the statute should have either referred to the Controller of Certifying Authorities or should have been worded to state that each certifying authority would be the repository for all electronic signature certificates issued by it.

Impact on Other Statutes

Since the enactment of the IT Act 2000, amendments have been carried out in other statutes, relying on the concept of digital signatures. For instance, the Negotiable Instruments Act, 1881, makes the use of a digital signature essential for an electronic cheque.1 While the IT Act 2008 has expanded the scope of the available authentication measures, by introducing the technologically neutral concept of electronic signatures, corresponding amendments in other statutes like the Negotiable Instruments Act, 1881, will need to be carried out, so that they are not limited in their application to digital signatures.

Data Protection

Prior to the passing of the IT Act 2008, the concept of 'data protection' was not recognised in India. The amendments have now introduced some amount of legal protection for data stored in the electronic medium. This chapter analyses the changes sought to be introduced and their impact on data protection law in India.

Data under the IT Act 2000

The only provision under the IT Act 2000, which dealt with unauthorised access and damage to data, was Section 43. Under that section, penalties were prescribed in respect of any person who downloads copies or extracts data from a computer system, introduces computer contaminants or computer viruses into a computer system or damages any data residing in a computer system.

Data under the IT Act 2008

Under the IT Act 2008, far-reaching changes have been made in relation to data. Two sections have been inserted specifically for that purpose – Sections 43-A and 72-A, one dealing with the civil and the other with the criminal remedies in relation to the breach of data related obligations.

The Civil Remedies for Data Protection

The newly introduced Section 43-A reads as follows:

Compensation for failure to protect data - Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation, to the person so affected.

Explanation - For the purposes of this section:

(i) “Body Corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities;

(ii) “Reasonable Security Practices and Procedures” means security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit; and

(iii) “Sensitive Personal Data or Information” means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.

While at first this provision appears to address several long standing concerns relating to data protection in India, there are several insidious flaws that could affect the development of a data protection jurisprudence in the country.

Non-Electronic Data

In the first instance, there is no mention, under this provision, of non-electronic data. Most international data protection statutes recognise and protect data stored in any electronic medium or a relevant filing system (including, for instance, a salesperson's diary). The newly introduced provisions of the IT Act 2008 do not provide any protection for data stored in a non-electronic medium.

It could be argued that given the legislative focus of this statute (it has been called the Information Technology Act with a reason), it would be inappropriate to include within this statute protection for forms of data that do not relate to the digital or electronic medium. While that argument is valid to many who look to the new provisions introduced in the IT Act 2008 as the answer to the data protection concerns that the country has been facing all these years, their enthusiasm must be tempered as these new provisions merely provide solutions for electronic data.

Classification of Data

Most international data protection statutes distinguish between different levels of personal data – specifying difference levels of protection for personal information and sensitive personal information. Depending on whether the data can be classified as one or the other, they have different levels of protection, as loss, unauthorised access or disclosure of sensitive personal information is considered to have a deeper impact on the data subject.

The new provisions of the IT Act 2008 make no such distinction. Section 43-A applies to all “sensitive personal data or information” but does not specify how personal data not deemed to be sensitive is to be treated. In essence, personal information and sensitive personal information do not appear to be differentially treated in the context of data protection.

Consequences

Under most international data protection statutes, the person in “control” of the data is liable for the consequences of disclosure, loss or unauthorised access to such information. This ensures that liability is restricted to those who actually have the ability to control the manner in which the data is treated.

However, under the new provisions of the IT Act 2008, the mere possession of information and its subsequent misuse would render any person who possesses this data liable to damages. While there is likely to be a debate on what constitutes possession and how this differs from control, there can be little doubt that by referring to “possession” in addition to “operation” and “control”, the IT Act 2008 appears to have widened the net considerably.

Negligence in Implementing Security Practices

Section 43-A specifically places liability on a body corporate only if such body corporate has been negligent in implementing its security practices and procedures in relation to the data possessed, controlled or handled by it. The choice of language here is significant. The statute specifically refers to the term “negligence” in relation to the security practices and procedures as opposed to stipulating a clear, pass-fail type obligation to conform.

There is a significant difference between the terms “negligence to implement” and “failure to implement”. The former can only result in a breach if the body corporate that was required to follow reasonable security practices with regard to the data in its possession or control does not perform the required action and it can be proved that a reasonable man in the same circumstances would have performed the required action. If a body corporate is to be made liable under the provisions of this Section, it is not enough to demonstrate that security procedures were not followed; it has to be proved in addition that the body corporate was negligent.

Wrongful Loss and Gain

The Section appears to have been constructed on the basis that a breach has occurred in the event that any “wrongful gain” or “wrongful loss” was suffered. These terms have not been defined either under statutes or through any judicial precedents in the civil context. However, these terms do have a definition under criminal law in India. The Indian Penal Code, 1860 (“IPC”), defines “Wrongful Gain” to mean gain, by unlawful means, of property to which the person gaining is not legally entitled; and “Wrongful Loss” to mean the loss by unlawful means of property to which the person losing it is legally entitled.

There does not appear to be any greater significance in the use of these terms even though they are typically found in criminal statutes. Therefore, apart from the slight ambiguity as to purpose, their use in the IT Act does not appear to have any great significance.

Limitation on Liability

The provisions of Section 43 originally had the total liability for a breach capped at Rs. 5,00,00,000 (five crore rupees). The original text of Section 43-A had the same limitation of liability in respect of its data protection provisions. Before the bill was passed into law, this limitation was removed and now a breach of Section 43-A is not subject to any limitation of liabilities.

Reasonable Security Practices and Procedures

Section 43-A makes a reference to “reasonable security practices and procedures” and stipulates that a breach has been caused only if such practices and procedures have not been followed. There are three methods by which reasonable security practices and procedures can be established:

By agreement;
By law; and
By prescription by the Central Government.

As there is no law in India which sets out an appropriate definition for the term and since it will be some time before which the Central Government comes out with necessary regulations, it would appear that the only option available is for the parties to arrive at an agreement as to how the sensitive personal data and information exchanged under their contract is to be handled.

As a corollary, till such time as the government establishes the necessary rules in relation to these security practices and procedures, if a body corporate does not enter into an agreement with the person providing the information as to the reasonable security practices and procedures that would apply, the body corporate cannot be brought within the purview of this section for any loss or damage to data.

The Criminal Remedies for Unlawful Disclosure of Information

In addition to the civil remedies spelled out in such detail in Section 43-A, the newly introduced provisions of Section 72-A of the IT Act 2008 could be used to impose criminal sanctions against any person who discloses information in breach of a contract for services. While not exactly a data protection provision in the same way that Section 43-A is, there are enough similarities in purpose to achieve the same result.

Section 72-A reads:

Punishment for Disclosure of information in breach of lawful contract - Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to Rupees five lakh, or with both.

In substance, this provision appears to be focused on providing criminal remedies in the context of breach of confidentiality obligations under service contracts; given that the section specifically refers to the disclosure of personal information obtained under that service contract, it is fair to classify this as a provision that addresses data protection issues.

Personal Information

The IT Act 2008 does not define “personal information”. Equally, there are no judicial precedents that provide any clarity on the term. The Right to Information Act, 2005 does provide a definition for “personal information”, but that definition is inappropriate in the context of the IT Act 2008. In the absence of a useable definition for the term “personal information”, it becomes difficult to assess the scope and ambit of the provision and in particular to understand the extent to which it is enforceable.

"Willful"

The section would only apply to persons who willfully disclose personal information and cause wrongful loss or gain. Hence, in order to make a person liable it has to be proved that the person disclosing the personal information did so with an intention to cause wrongful loss or gain. It would be a valid defense to claim that any loss caused was unintentional.

Service Contracts

The section appears to be particular about the fact that it only applies in the context of personal information obtained under a contract for services. This appears to rule out confidential information (that is not of a personal nature) that has been received under any other form of agreement (including, for example, a technology license agreement). The section is clearly intended to protect against the misuse of personal information and cannot be adapted to provide a wider level of protection against all breaches of confidential information. That said, employers now have a much stronger weapon against employees who leave with the personal records of other fellow employees.

Consent

This section also clearly applies only to those disclosures of personal information with the intent to cause wrongful loss or gain which have taken place without the consent of the person whose personal information is being disclosed. What remains to be seen is how the law will deal with situations where a general consent for disclosures has been obtained at the time of recruitment.

Such clauses are made effective around the world by including opt in and opt out clauses, to allow the employee to either expressly agree to the disclosure of his personal information or to specifically exclude himself from the ambit of any such disclosures.

Media of Material

This section, unlike several other provisions of the IT Act 2008, deals with all manner of materials without requiring them to be digital. However, while disclosure of information stored in the non-electronic medium has been recognised, in the absence of a clear definition of personal information, it is difficult to ascertain the application and enforcement of this section.

What’s Missing

In order to be a truly effective data protection statute, the IT Act 2008 must include provisions relating to the collection, circumstances of collection, control, utilisation and proper disposal of data. At present the statute is silent about these aspects. In many ways, the statute addresses the particular concerns of companies or corporate entities looking for protection in relation to data outsourced to any other corporate entity for processing. Within these specific parameters the statute works well. However it does little to protect the average citizen of the country from the theft of personal data. Until we have statutory recognition of these issues, we will not be able to say that we have an effective data protection law in India.

For more details visit https://cis-india.org/internet-governance/blog/it-act-and-commerce