Centre for Internet and Society

Workshop on 'Privacy after Big Data' (Delhi, November 12)

sumandro — 2016-11-12T10:14:52Z

The Centre for Internet and Society (CIS) and the Sarai programme, CSDS, invite you to a workshop on 'Privacy after Big Data: What Changes? What should Change?' on Saturday, November 12. This workshop aims to build a dialogue around some of the key government-led big data initiatives in India and elsewhere that are contributing significant new challenges and concerns to the ongoing debates on the right to privacy. It is an open event. Please register to participate.

Invitation note and agenda: Download (PDF)

Venue and RSVP

Venue: Centre for the Study of Developing Societies 29, Rajpur Road, Civil Lines, Delhi 110054.

Location on Google Maps: https://www.google.com/maps/place/CSDS/@28.677775,77.2162523,17z/.

Registration: Complete this form.

Concept Note

In this age of big data, discussions about privacy are intertwined with the use of technology and the data deluge. Though big data possesses enormous value for driving innovation and contributing to productivity and efficiency, privacy concerns have gained significance in the dialogue around regulated use of data and the means by which individual privacy might be compromised through means such as surveillance, or protected. The tremendous opportunities big data creates in varied sectors ranges from financial technology, governance, education, health, welfare schemes, smart cities to name a few.

With the UID (“Aadhaar”) project re-animating the Right to Privacy debate in India, and the financial technology ecosystem growing rapidly, striking a balance between benefits of big data and privacy concerns is a critical policy question that demands public dialogue and research to inform an evidence based decision.

Also, with the advent of potential big data initiatives like the ambitious Smart Cities Mission under the Digital India Scheme, which would rely on harvesting large data sets and the use of analytics in city subsystems to make public utilities and services efficient, the tasks of ensuring data security on one hand and protecting individual privacy on the other become harder.

As key privacy principles are at loggerheads with big data activities, it is important to consider privacy as an embedded component in the processes, systems and projects, rather than being considered as an afterthought. These examples highlight the current state of discourse around data protection and privacy in India and the shapes they are likely to take in near future.

This workshop aims to build a dialogue around some of the key government-led big data initiatives in India and elsewhere that are contributing significant new challenges and concerns to the ongoing debates on the right to privacy.

Agenda

09:00-09:30 Tea and Coffee

09:30-10:00 Introduction

Mr. Amber Sinha and Mr. Sandeep Mertia
This session will introduce the topic of the workshop in the context of the ongoing works at CIS and Sarai.

10:00-11:00 From Privacy Bill(s) to ‘Habeas Data’

Dr. Usha Ramanathan and Mr. Vipul Kharbanda
This session will present a brief history of the privacy bill(s) in India and end with reflections on ‘habeas data’ as a lens for thinking and actualising privacy after big data.

11:00-11:30 Tea and Coffee

11:30-12:30 Digital ID, Data Protection, and Exclusion

Ms. Amelia Andersdotter and Mr. Srikanth Lakshmanan
This session will discuss national centralised digital ID systems, often operating at a cross-functional scale, and highlight its implications for discussions on data protection, welfare governance, and exclusion from public and private services.

12:30-13:30 Digital Money and Financial Inclusion

Dr. Anupam Saraph and Ms. Astha Kapoor
This session will focus on the rise of digital banking and online payments as core instruments of financial inclusion in India, especially in the context of the Jan Dhan Yojana and UPI, and reflect on the concerns around privacy and financial data.

13:30-14:30 Lunch

14:30-15:30 Big Data and Mass Surveillance

Dr. Anja Kovacs and Mr. Matthew Rice
This session will reflect on the rise of mass communication surveillance across the world, and the evolving challenges of regulating il/legal surveillance by government agencies.

15:30-16:15 Privacy is (a) Right

Mr. Apar Gupta and Ms. Kritika Bhardwaj
This brief session is to share initial ideas and strategies for articulating and actualising a constitutional right to privacy in India.

16:15-16:30 Tea and Coffee

16:30-17:30 Round Table

An open discussion session to conclude the workshop.

Speakers

Mr. Amber Sinha

Amber works on issues surrounding privacy, big data, and cyber security. He is interested in the impact of emerging technologies like artificial intelligence and learning algorithms on existing legal frameworks, and how they need to evolve in response. Amber studied humanities and law at National Law School of India University, Bangalore.

E-mail: amber at cis-india dot org.

Twitter: @ambersinha07.

Ms. Amelia Andersdotter

Amelia Andersdotter has been a Member of the European Parliament. She works on practical implications of data protection laws and consumer information security in Sweden, and digital rights in the Europe in general. Presently she is residing in Bangalore, where she is a visiting scholar with Centre for Internet and Society. She holds a BSc in Mathematics.

URL: https://dataskydd.net.

Twitter: @teirdes.

Dr. Anja Kovacs

Dr. Anja Kovacs directs the Internet Democracy Project in Delhi, India, which works for an Internet that supports free speech, democracy and social justice in India and beyond. Anja’s research and advocacy focuses especially on questions regarding freedom of expression, cybersecurity and the architecture of Internet governance. She has been a member of the of the Investment Committee of the Digital Defenders Partnership and of the Steering Committee of Best Bits, a global network of civil society members. She has also worked as an international consultant on Internet issues, including for the Independent Commission on Multilateralism, the United Nations Development Programme Asia Pacific and the UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue, as well as having been a Fellow at the Centre for Internet and Society in Bangalore, India.

Internet Democracy Project: https://internetdemocracy.in.

Twitter: @anjakovacs.

Dr. Anupam Saraph

Anupam Saraph has extensively researched India's UID number that has been widely regarded as the game changer in development programs. It has come to be linked with both public and private databases and become the requirement for access to entitlements, benefits, services and rights. Dr. Saraph, who has the design of at least two identification programs to his credit has researched the UID’s functional creep since its inception.

He has been dissecting the myths of what the UID is or is not. He has also tracked the consequences of its linkages on databases that protect national security, sovereignty, democratic status and the entire banking and money system in India. He has also highlighted the implications of its use for targeted delivery of cash subsidies from the Consolidated Fund of India. He has written and lectured widely about the devastating impact of the UID number on development programs, national security and the governability of India.

As a Professor of Systems, Governance and Decision Sciences, Environmental Systems and Business he mentors students and teaches systems, information systems, environmental systems and sustainable development at universities in Europe, Asia and the Americas. He has worked with the Rensselaer Polytechnic Institute, Rijksuniversitiet Groningen, RIVM, University of Edinburgh, Resource Use Institute, Systems Research Institute among others. Dr. Saraph has had the unique distinction of being India’s only person who has held the only office of a City CIO in India, in a PPP arrangement with government, industry and himself. He has also been the first e-governance Advisor to a State government. Dr. Saraph has held CxO and ministerial level positions and serves as an independent director on the boards of Public and Private Sector companies and NGOs. He is also the President of the Nagrik Chetna Manch, an NGO charged with the mission to bring accountability in governance.

Dr. Saraph is also actively engaged in civil society where he participates in several environmental, resource and nature conservation initiatives, has authored draft legislations for river and natural resource conservation, right to good governance and has contributed to governance, election and democratic reforms. Dr. Saraph is a regular columnist in newspapers and writes on issues of governance, future design, technology and education from a systems perspective.

As a future designer and recognized as a global expert on complex systems he helps individuals and organisations understand and design the future of their worlds. Together they address the toughest challenges, accomplish missions and achieve business goals. He also supports building capacity to address the challenges of today as well as to build future designs through teams and effective leadership. Since the eighties Dr. Saraph has modeled complex systems of cities, countries, regions and even the planet. His models have been awarded internationally and even placed in 10-year permanent exhibitions.

Dr Saraph works with business and government executives, civil society leaders, politicians, generals, civil servants, police, trade unionists, community activists, United Nations and ASEAN officials, judges, writers, media, architects, designers, technologists, scientists, entrepreneurs, board members and business leaders of small, mid and large single and trans-national companies, religious leaders and artists across a dozen countries and various industry sectors to help them and their organisations succeed in their missions. He advises the World Economic Forum through its Global Agenda Council for Complex Systems and the Club of Rome, Indian National Association as a founder life member.

Dr Saraph holds a PhD in designing sustainable systems from the faculty of Mathematics and Natural Sciences of the Rijksuniversiteit Groningen, the Netherlands.

Website: http://anupam.saraph.in.

Twitter: @anupamsaraph.

Mr. Apar Gupta

Apar Gupta practices law in Delhi. He is also one of the co-founders of the Internet Freedom Foundation. His work and writing on public interest issues can be accessed at his personal website www.apargupta.com.

Twitter: @aparatbar.

Ms. Astha Kapoor

Astha Kapoor is a public policy strategy consultant working on financial inclusion and digital payments. Currently, she is working with MicroSave. Her tasks involve a focus on government to people (G2P) payments - and her work spans strategy, advisory and evaluation with the DBT Mission, Office of the Chief Economic Advisor, NITI Aayog and ministries pertaining to food, fuel and fertilizer. She recently designed a pilot to digitize uptake of fertilizers in Krishna district, and evaluated the newly introduced coupon system in the Public Distribution System in Bengaluru.

Twitter: @kapoorastha.

Ms. Kritika Bhardwaj

Kritika Bhardwaj works as a Programme Officer at the Centre for Communication Governance (CCG), National Law University, Delhi. Her main areas of research are privacy and data protection. At CCG, she has written about the privacy implications of several contemporary issues such as Aadhaar (India's unique identification project), cloud computing and the right to be forgotten. A lawyer by training, Kritika has a keen interest in information law and human rights law.

Centre for Communication Governance, NLU Delhi: http://ccgdelhi.org.

Twitter: @Kritika12.

Mr. Matthew Rice

Matthew Rice is an Advocacy Officer at Privacy International working across the organisation engaging with international partners and strengthening their capacity on communications surveillance issues. He has previously worked at Privacy International as a consultant building the Surveillance Industry Index, the largest publicly available database on the private surveillance sector ever assembled. Matthew graduated from University of Aberdeen with an LLB (Hons.) and also has an MA in Human Rights from University College London.

Privacy International: https://privacyinternational.org.

Twitter: @mattr3.

Mr. Sandeep Mertia

Sandeep Mertia is a Research Associate at The Sarai Programme, Centre for the Study of Developing Societies, Delhi. He is an ICT engineer by training with research interests in Science & Technology Studies, Software Studies and Anthropology. He is conducting an ethnographic study of emerging modes of data-driven knowledge production in the social sector.

Sarai: http://sarai.net.

Twitter: @SandeepMertia.

Academia: https://daiict.academia.edu/SandeepMertia.

Mr. Srikanth Lakshmanan

Srikanth is a software professional with interests in Internet, follower of Internet policy discussions, volunteers for multiple online campaigns related to Internet. He is also fascinated by FOSS, opendata, localization, Wikipedia, maps, public transit, civic tech and occasionally contributes to them.

Site: http://www.srik.me.

Twitter: @logic.

Mr. Vipul Kharbanda

Vipul Kharbanda is a consultant with the Center for Internet and Society, Bangalore. After finishing his BA.LLB.(Hons.) from National Law School of India University in Bangalore, he worked for India’s largest corporate law firm for two and a half years in their Mumbai office for two years working primarily on the financing of various infrastructure projects such as Power Plants, Roads, Airports, etc. Since quitting his corporate law job, Vipul has been working as the Associate Editor in a legal publishing house which has been publishing legal books and journals for the last 90 years in India. He has also been involved with the Center for Internet and Society as a Consultant working primarily on issues related to privacy and surveillance.

For more details visit https://cis-india.org/internet-governance/events/privacy-after-big-data-delhi-nov-12-2016

If the DIDP Did Its Job

asvatha — 2016-11-07T12:57:18Z

Over the course of two years, the Centre for Internet and Society sent 28 requests to ICANN under its Documentary Information Disclosure Policy (DIDP). A part of ICANN’s accountability initiatives, DIDP is “intended to ensure that information contained in documents concerning ICANN's operational activities, and within ICANN's possession, custody, or control, is made available to the public unless there is a compelling reason for confidentiality.”

Through the DIDP, any member of the public can request information contained in documents from ICANN. We’ve written about the process here, here and here. As a civil society group that does research on internet governance related topics, CIS had a variety of questions for ICANN. The 28 DIDP requests we have sent cover a range of subjects: from revenue and financial information, to ICANN’s relationships with its contracted parties, its contractual compliance audits, harassment policies and the diversity of participants in its public forum. We have blogged about each DIDP request where we have summarized ICANN’s responses.

Here are the DIDP requests we sent in:

Dec 2014	Jan/Feb 2015	Aug/Sept 2015	Nov 2015	Apr/May 2016
ICANN meeting expenditure	Revenue from gTLD auction	Implementation of NETmundial principles	IANA transition postponement	Board Governance Committee Reports
Granular revenue statements	Globalisation Advisory Groups	Raw data - Granular income data	Presumptive renewal of registries	Diversity Analysis
ICANN cyber attacks	Organogram	Compliance audits - registries	ICANN-RIR relationship	Compliance audits
Implementation of NETmundial outcome document	Involvement in NETmundial Initiative	Compliance audits - registrars		Harassment policy
Complaints to ICANN ombudsman	RIR contract fees	Registrar abuse contact		DIDP statistics *
		Verisign Contractual violations		gTLD applicant support program
		Contractual auditors		Root Zone Maintenance agreements
		Internal website

ICANN’s responses were analyzed and rated between 0-4 based on the amount of information disclosed. The reasons given for the lack of full disclosure were also studied.

DIDP response rating
0	No relevant information disclosed
1	Very little information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.
2	Partial information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.
3	Adequate information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.
4	All information disclosed

ICANN has defined a set of preconditions under which they are not obligated to answer a request. These preconditions are generously used by ICANN to justify their lack of a comprehensive answer. The wording of the policy also allows ICANN to dodge answering a request if it doesn’t have the relevant documents already in its possession. The responses were also classified by the number of times a particular DIDP condition for non-disclosure was invoked. We will see why these weaken ICANN’s accountability initiatives.

Of the 28 DIDP requests, only 14% were answered fully, without the use of the DIDP conditions of non-disclosure. Seven out of 28 or 40% of the DIDPs received a 0-rated answer which reflects extremely poorly on the DIDP mechanism itself. Of the 7 responses that received 0-rating, 4 were related to complaints and contractual compliance. We had asked for details on the complaints received by the ombudsman, details on contractual violations by Verisign and abuse contacts maintained by registrars for filing complaints. We received no relevant information.

We have earlier written about the extensive and broad nature of the 12 conditions of non-disclosure that ICANN uses. These conditions were used in 24 responses out of 28. ICANN was able to dodge from fully answering 85% of the DIDP requests that they got from CIS. This is alarming especially for an organization that claims to be fully transparent and accountable. The conditions for non-disclosure have been listed in this document and can be referred to while reading the following graph.

On reading the conditions for non-disclosure, it seems like ICANN can refuse to answer any DIDP request if it so wished. These exclusions are numerous, vaguely worded and contain among them a broad range of information that should legitimately be in the public domain: Correspondence, internal information, information related to ICANN’s relationship with governments, information derived from deliberations among ICANN constituents, information provided to ICANN by private parties and the kicker - information that would be too burdensome for ICANN to collect and disseminate.

As we can see from the graph, the most used condition under which ICANN can refuse to answer a DIDP request is F. Predictably, this is the most vaguely worded DIDP condition of the lot: “Confidential business information and/or internal policies and procedures.” It is up to ICANN to decide what information is confidential with no justification needed or provided for it. ICANN has used this condition 11 times in responding to our 28 requests.

It is also necessary to pay attention to condition L which allow ICANN to reject “Information requests: (i) which are not reasonable; (ii) which are excessive or overly burdensome; (iii) complying with which is not feasible; or (iv) are made with an abusive or vexatious purpose or by a vexatious or querulous individual.” This is perhaps the weakest point in the entire list due its subjective nature. Firstly, on whose standards must this information request be reasonable? If the point of a transparency mechanism is to make sure that information sought by the public is disseminated, should they be allowed to obfuscate information because it is too burdensome to collect? Even if this is fair given the time constraints of the DIDP mechanism, it must not be used as liberally as has been happening. The last sub point is perhaps the most subjective. If a staff member dislikes a particular requestor, this point would justify their refusal to answer a request regardless of its validity. This hardly seems fair or transparent. This condition has been used 9 times in our 28 requests.

Besides the DIDP non-disclosure conditions, ICANN also has an excuse built into the definition of DIDP. Since it is not obliged to create or summarize documents under the DIDP process, it can simply claim to not have the specific document we request and thus negate its responsibility to our request. This is what ICANN did with one of our requests for raw financial data. For our research, we required raw data from ICANN specifically with regard to its expenditure on staff and board members for their travel and attendance at meetings. As an organization that is answerable to multiple stakeholders including governments and the public, it is justified to expect that they have financial records of such items in a systematic manner. However, we were surprised to learn that ICANN does not in fact have these stored in a manner that they can send as attachments or publish. Instead they directed us to the audited financial reports which did little for our research. However, in response to our later request for granular data on revenue from domain names, ICANN explained that while they do not have such a document in their possession, they would create one. This distinction between the two requests seems arbitrary to us since we consider both to be important to public.

Nevertheless, there were some interesting outcomes from our experience filing DIDPs. We learnt that there has been no substantive work done to inculcate the NETmundial principles at ICANN, that ICANN has no idea which regional internet registry contributes the most to its budget, and that it does not store (or is not willing to reveal) any raw financial data. These outcomes do not contribute to a sense of confidence in the organization.

ICANN has an opportunity to reform this particular transparency mechanism at its Workstream 2 discussions. ICANN must make use of this opportunity to listen and work with people who have used the DIDP process in order to make it useful, effective and efficient. To that effect, we have some recommendations from our experience with the DIDP process.

That ICANN does not currently possess a particular document is not an excuse if it has the ability to create one. In its response to our questions on the IANA transition, ICANN indicated that it does not have the necessary documents as the multi stakeholder body that it set up is the one conducting the transition. This is somewhat justified. However, in response to our request for financial details, ICANN must not be able to give the excuse that it does not have a document in its possession. It and it alone has the ability to create the document and in response to a request from the public, it should.

ICANN must also revamp its conditions for non-disclosure and make it tighter. It must reduce the number of exclusions to its disclosure policy and make sure that the exclusion is not done arbitrarily. Specifically with respect to condition F, ICANN must clarify how information was classified as confidential and why that is different from everything else on the list of conditions.

Further, ICANN should not be able to use condition L to outright reject a DIDP request. Instead, there must be a way for the requester and ICANN to come to terms about the request. This could happen by an extension of the 1 month deadline, financial compensation by requester for any expenditure on ICANN’s part to answer the request or by a compromise between the requester and ICANN on the terms of the request. The sub point about requests made “by a vexatious or querulous individual” must be removed from condition L or at least be separated from the condition so that it is clear why the request for disclosure was denied.

ICANN should also set up a redressal mechanism specific to DIDP. While ICANN has the Reconsideration Requests process to rectify any wrongdoing on the part of staff or board members, this is not adequate to identify whether a DIDP was rejected on justifiable grounds. A separate mechanism that deals only with DIDP requests and wrongful use of the non-disclosure conditions would be helpful. According to the icann bylaws, in addition to Requests for Reconsideration, ICANN has also established an independent third party review of allegations against the board and/or staff members. A similar mechanism solely for reviewing whether ICANN’s refusal to answer a DIDP request is justified would be extremely useful.

A strong transparency mechanism must make sure that its objective are to provide answers, not to find ways to justify its lack of answers. With this in mind, we hope that the revamp of transparency mechanisms after workstream 2 discussions leads to a better DIDP process than we are used to.

For more details visit https://cis-india.org/internet-governance/blog/if-the-didp-did-its-job

How Workstream 2 Plans to Improve ICANN's Transparency

Asvatha Babu — 2016-11-11T10:05:04Z

The Centre for Internet and Society has worked extensively on ICANN’s transparency policies. We are perhaps the single largest users of the Documentary Information Disclosure Policy. Our goal in doing so is not to be a thorn in ICANN’s side, but to try and ensure that ICANN, the organisation, as well as the ICANN community have access to the data required to carry out the task of regulating the global domain name system.

The transparency subgroup of ICANN’s Workstream 2 dialogue attempts to see how they could effectively improve the transparency and accountability of the organization. The main document under scrutiny at the moment is the draft Transparency Report published a few days before the 57th ICANN meeting in Hyderabad.

The report begins with an acknowledgement of the value of taking tips from the Right to Information policies of other institutions and governments. My colleague Padmini Baruah had earlier written a blog post comparing the exclusion policy of ICANN’s DIDP and the Indian Government’s RTI where she found that “the net cast by the DIDP exclusions policy is more vast than even than that of a democratic state’s transparency law.”[1] The WS2 report not only discusses the DIDP process, but also discusses ICANN’s proactive disclosures (with regard to lobbying etc) and whistleblower policies. This article focuses solely on the first.

As our earlier blog posts have mentioned, CIS sent in 28 DIDP requests over the last two years. Our experience with DIDP has been less than satisfactory and we are pleased that DIDP reform was an important part of the discussions of this subgroup. The report proposes some concrete structural changes to the DIDP process but skirts around some of the more controversial ones.

The recommendation to make the process of submitting requests clearer is a good one. There are currently no instructions on the follow-up process or what ICANN requires of the requestors. The report also recommends capping any extension to the original 30-day limit to an additional 30 days. While this is good, we further recommend that ICANN stay in touch with the requestor in order to help them to the best of its ability. The correspondence should ideally not be limited to a notification that they require an extension. Any clarifications on the part of the requestor must be resolved by ICANN. We commend the report for pointing out that the status quo – where there is no outside limit for extension of time beyond the mandated 30 days – is problematic as it allows the ICANN staff to give lesser priority to responding to DIDP requests. We strongly suggest that extensions of time on responding to DIDP requests be restricted to a maximum of 7 days after the passing of the 30-day period, after which liability should be strictly imposed on ICANN in the form of an individual fine, analogous to India’s RTI policy.[2]

One of the major areas of focus for this report and for our earlier analysis was the problematic nature of the exclusions to the DIDP. I had written that the conditions were "numerous, vaguely worded and contain among them a broad range of information that should legitimately be in the public domain.”[3] This is echoed by the report which calls for a deletion of two clauses that we found most used in denying our requests for information.

The report also calls into question the subjective nature of the last condition which states that ICANN can deny information if they find requests “not reasonable, excessive or overly burdensome, not feasible, abusive or vexatious or made by a vexatious or querulous individual.” As seen from our blog posts, we are of the firm belief that such a subjective condition has no place in a robust information disclosure policy. Requiring the Ombudsman’s consent to invoke it is a good first step. In addition to that, we strongly encourage that objective guidelines which specify when a requestor is considered “vexatious” be drawn up and made public.

The most disappointing aspect of this report is that it does not delve into details about having an independent party dedicated to reviewing the DIDP process to address grievances. We believe that this must not be left to the Ombudsman who cannot devote all their time to this process. We are of the opinion that an independent party would also be able to more effectively oversee the tracking and periodic review of the DIDP mechanism.

In conclusion, we believe that this report is a good start but does not comprehensively answer all of our issues with the DIDP process as it is. We look forward to more engagement with the Transparency subgroup to close all loopholes within the DIDP process.

[1] Padmini Baruah, Peering behind the veil of ICANN’s DIDP, (September 21, 2015), available at http://cis-india.org/internet-governance/blog/peering-behind-the-veil-of-icann2019s-didp (Last visited on November 9, 2016).

[2] Section 20(1), Right to Information Act, 2005.

[3] Asvatha Babu, If the DIDP Did Its Job, (November 3, 2016), available at http://cis-india.org/internet-governance/blog/if-the-didp-did-its-job (Last Visited on November 9, 2016).

For more details visit https://cis-india.org/internet-governance/blog/how-workstream-2-plans-to-improve-icanns-transparency

Privacy after Big Data: Compilation of Early Research

Saumyaa Naidu — 2016-11-12T01:37:03Z

Download the Compilation (PDF)

Privacy after Big Data

Evolving data science, technologies, techniques, and practices, including big data, are enabling shifts in how the public and private sectors carry out their functions and responsibilities, deliver services, and facilitate innovative production and service models to emerge. For example, in the public sector, the Indian government has considered replacing the traditional poverty line with targeted subsidies based on individual household income and assets. The my.gov.in platform is aimed to enable participation of the connected citizens, to pull in online public opinion in a structured manner on key governance topics in the country. The 100 Smart Cities Mission looks forwards to leverage big data analytics and techniques to deliver services and govern citizens within city sub-systems. In the private sector, emerging financial technology companies are developing credit scoring models using big, small, social, and fragmented data so that people with no formal credit history can be offered loans. These models promote efficiency and reduction in cost through personalization and are powered by a wide variety of data sources including mobile data, social media data, web usage data, and passively collected data from usages of IoT or connected devices.

These data technologies and solutions are enabling business models that are based on the ideals of ‘less’: cash-less, presence-less, and paper-less. This push towards an economy premised upon a foundational digital ID in a prevailing condition of absent legal frameworks leads to substantive loss of anonymity and privacy of individual citizens and consumers vis-a-vis both the state and the private sector. Indeed, the present use of these techniques run contrary to the notion of the ‘sunlight effect’ - making the individual fully transparent (often without their knowledge) to the state and private sector, while the algorithms and means of reaching a decision are opaque and inaccessible to the individual.

These techniques, characterized by the volume of data processed, the variety of sources data is processed from, and the ability to both contextualize - learning new insights from disconnected data points - and de-contextualize - finding correlation rather than causation - have also increased the value of all forms of data. In some ways, big data has made data exist on an equal playing field as far as monetisation and joining up are concerned. Meta data can be just as valuable to an entity as content data. As data science techniques evolve to find new ways of collecting, processing, and analyzing data - the benefits of the same are clear and tangible, while the harms are less clear, but significantly present.

Is it possible for an algorithm to discriminate? Will incorrect decisions be made based on data collected? Will populations be excluded from necessary services if they do not engage with certain models or do emerging models overlook certain populations? Can such tools be used to surveil individuals at a level of granularity that was formerly not possible and before a crime occurs? Can such tools be used to violate rights – for example target certain types of speech or groups online? And importantly, when these practices are opaque to the individual, how can one seek appropriate and effective remedy.

Traditionally, data protection standards have defined and established protections for certain categories of data. Yet, data science techniques have evolved beyond data protection principles. It is now infinitely harder to obtain informed consent from an individual when data that is collected can be used for multiple purposes by multiple bodies. Providing notice for every use is also more difficult – as is fulfilling requirements of data minimization. Some say privacy is dead in the era of big data. Others say privacy needs to be re-conceptualized, while others say protecting privacy now, more than ever, requires a ‘regulatory sandbox’ that brings together technical design, markets, legislative reforms, self regulation, and innovative regulatory frameworks. It also demands an expanding of the narrative around privacy – one that has largely been focused on harms such as misuse of data or unauthorized collection – to include discrimination, marginalization, and competition harms.

In this compilation we have put together a series of articles that we have developed as we explore the impacts – positive and negative – of big data. This includes looking at India’s data protection regime in the context of big data, reviewing literature on the benefits of harms of big data, studying emerging predictive policing techniques that rely on big data, and analyzing closely the impact of big data on specific privacy principles such as consent. This is a growing body of research that we are exploring and is relevant to multiple areas of our work including privacy and surveillance. Feedback and comments on the compilation are welcome and appreciated.

Elonnai Hickok
Director - Internet Governance

For more details visit https://cis-india.org/internet-governance/blog/privacy-after-big-data-compilation-of-early-research

Google, Facebook will not place ads on sites distributing fake news

praskrishna — 2016-11-15T13:59:40Z

Google plans to update its AdSense program policies to prevent placement of its ads on sites distributing fake news.

The article by John Riberio originally published by IDG News Service was mirrored on CIO on November 14, 2016. Pranesh Prakash was quoted.

Facebook also said Monday it had updated the policy for its Audience Network, which places ads on websites and mobile apps, to explicitly clarify that it applies to fake news.

“In accordance with the Audience Network Policy, we do not integrate or display ads in apps or sites containing content that is illegal, misleading or deceptive, which includes fake news,” Facebook said in a statement. The company said its team will continue to closely vet all prospective publishers and monitor existing ones to ensure compliance.

False news stories have become a sore point after the U.S. presidential elections with critics blaming internet companies like Twitter and Facebook for having had an influence on the outcome of the elections as a result of the fake content.

The controversy also reflects concerns about the growing power of social networks to influence people and events, as well as help people to communicate and organize. Facebook promotes democracy by letting candidates communicate directly with people, Facebook CEO Mark Zuckerberg said recently in an interview.

Google had its own embarrassing moments on Sunday with a false story that claimed that President-elect Donald Trump had won the popular vote in the U.S. presidential elections figuring atop some Google search results. Trump’s Democratic rival Hillary Clinton is leading in the popular vote.

“We've been working on an update to our publisher policies and will start prohibiting Google ads from being placed on misrepresentative content, just as we disallow misrepresentation in our ads policies,” Google said Monday in a statement. “Moving forward, we will restrict ad serving on pages that misrepresent, misstate, or conceal information about the publisher, the publisher's content, or the primary purpose of the web property.”

Google evidently expects that the threat of a cut in revenue from ads will dissuade sites from publishing fake content.

Zuckerberg has described as “crazy” the criticism that fake news on Facebook's news feed had influenced the vote in favor of Trump. “Of all the content on Facebook, more than 99% of what people see is authentic. Only a very small amount is fake news and hoaxes,” Zuckerberg said in a post over the weekend. The hoaxes are not limited to one partisan view, or even to politics, he added.

Identifying the "truth" is complicated, as while some hoaxes can be clearly identified, a greater amount of content, including from mainstream sources, often gets the basic idea right but some details wrong or omitted, or expresses a view that some people will disagree with and flag as incorrect even when it is factual, Zuckerberg wrote.

There are concerns that the monitoring of sites for fake news and the penalties could give internet companies more power. "We have to be wary of Facebook and Google being allowed to decide what's 'fake' and what's 'true' news. That only increases their power," said Pranesh Prakash, policy director at the Centre for Internet & Society in Bangalore.

For more details visit https://cis-india.org/internet-governance/news/cio-november-14-2016-john-riberio-google-facebook-will-not-place-ads-on-sites-distributing-fake-news

Conference on the Digitalization of the Indian Legal System

Leilah Elmokadem — 2016-11-16T15:34:36Z

On Legal Services Day, November 9, 2016, LegalDesk.com collaborated with iSPIRT to host a conference on the “Digitalization of the Indian Legal System”. The event invited prominent speakers to present their organizations’ work and to participate in a panel discussion followed by a Q&A period for the audience.

The co-founder of DAKSH Society of India, Kishore Mandyam, opened the event with a thought-provoking presentation on the efficiency levels of the current legal system and the kinds of progress that can be brought about by technological reforms. Members of LegalDesk.com then presented their ideas and then introduced their newest white paper on Legal Digitalization, providing a brief overview of the study and summarizing the most relevant sections. The panel discussion then proceeded, moderated by Sanjay Khan Nagra, a policy expert at iSPIRT Foundation. He facilitated an insightful and conducive discussion around the advantages, disadvantages, risks and incentives of digitalizing the Indian legal system. On the discussion panel was Kishore Mandyam from DAKSH Society and Prabhuling K Navadgi, the Additional Solicitor General of India.

The objectives to the conference, as per its website, were to: (1) examine the current legal framework and the possibility of amendments in laws to facilitate digitalization of the system, (2) asses the potential of India Stack in digitalizing the legal system, (3) to identify statutes which require amendment, (4) identify the hurdles and roadblocks in the path towards digital reform of the legal ecosystem, and (5) suggest amendments to the act and potential areas of improvement. With those objectives in mind, this blog post intends to provide a brief overview of the main narratives shared in the conference and to identify some of the loopholes and unanswered questions that I was left with by the end.

Improved efficiency is the dominant narrative used to advocate for the digitalization of the Indian legal system. According to LegalDesk.com, the current Indian legal system relies mostly on paperwork, resulting in thousands of courts and over a million advocates accumulating lackhs of ongoing cases and an enormous pile of pending cases, mostly due to insufficient information. It is stated that the traditional methods of legal documentation, paperwork and court work must change through awareness, technology and pursuance by the government, as it needs to be implemented throughout the country. The key idea here is that digital transactions are faster and simplify the process of storing information. The ultimate desired outcome here, then, is increased efficiency and transparency.

One must question, however, if this narrative may be overly generous with the credit it gives to technology. IT systems, like many other manmade structures, are always bound to glitch and crash. It would be useful, then, to question whether the legal system is a department that can afford the complications that inevitably accompany a digital transformation. If portals or servers fail at critical times (i.e. when a person needs to confirm their trial date, submit a document before a deadline, or any other pressing procedures), the consequences may in fact outweigh the convenience brought about by overall digitalization. This is not to imply that the legal system cannot or should not undergo a digital transformation. Rather, it is to pose the question of whether the government will dedicate sufficient funds and expertise towards developing a resilient and reliable IT system for the courts. The conference was strongly centered on the concept that technology is always the way forward. This is a positive idea but one must pay special attention to the complications that may arise with the digitalization of a system that must function in a particularly time-sensitive manner – and to ensure that these complications can be managed efficiently and effectively should they arise. This then, requires more than a mere push for digitalization. Introducing new technological platforms is a positive step towards digitalization. However, there is a need for a detailed, government-authorized plan on how the judicial system will efficiently and smoothly undergo this digital transformation in a sustainable and resilient manner.

A presenter from LegalDesk.com mentioned Estonia’s model of complete digital governance as an example of successful digitalization: “If a small country like Estonia can do it, why can’t we?” While it is useful to draw examples and lessons from other countries, it is also crucial to recognize the contextual differences between countries. The presenter’s point was that Estonia is small in both size and population and has just recently gained independence in 1991—and has nonetheless been able to undergo technological reform and completely digitalize governance systems. India’s case is extremely different as one can logically argue that digital inclusion is more difficult to accomplish for large, spatially dispersed populations. Furthermore, the socioeconomic disparities in India, particularly in income and literacy, contribute to an immense digital divide that Estonia did not, to any comparable extent, face in order to digitalize governance over 1.3 million individuals. This is not to suggest that India cannot become a world leader in digital governance, or become comparable to Estonia. Rather, this is to highlight the importance of recognizing historical, political and sociocultural differences between countries when comparing governance models and digitalization processes. There is a need to indigenize digital reform strategies and platforms in India to cater to its unique context and vast diversity. This can be done by focusing on issues such as the language of digital governance, ensuring sufficient distribution of access to public digital platforms, and prioritizing the inclusion of all socioeconomic classes. I would argue that digitalization could come at a greater cost than benefit if it perpetuates the exclusion of the underprivileged members of society, especially from a system as critical as the judiciary. These topics were alarmingly overlooked in the conference.

The topic of privacy was also quite overlooked in the conference. As a step towards digital transformation, LegalDesk.com presented the new eNotary technology, which would be implemented by utilizing a combination of Adhaar based authentication, eSign, digilocker systems such as India Stack and video/audio recorded interviews. With the eNotary system, attestation, authentication and verification of legal instruments can be done remotely. This is expected to make paperwork easier, faster and more secure, as individuals would log into digital platforms using their Adhaar numbers to perform their judiciary procedures. A member of the audience asked about privacy concerns associated with digitalizing the legal records or property ownership information of individuals. Kishore Mandyam, from DAKSH, answered confidently with a statement that privacy is not a pressing issue here. He asserted that privacy concerns are a western construct that we have adopted in urban parts of India but that is not a concern for the majority of locals. It is clear, however, from examples such as the United States’ predictive policing practices, that accumulating data regarding the legal affiliations of individuals can result in discriminatory practices if this data does not remain strictly confidential to protect the privacy rights of citizens. This is not to mention the other forms of discrimination that can arise from the accumulation of such data, such as the targeting of certain demographics by corporate marketing and credit scoring practices that rely on trends in big data. To keep citizens’ legal records and affairs out of these databases, a digital legal system must be securely encrypted and protected by rigid privacy policies. India may have a varying context that leads to different privacy concerns with regards to a digital legal system. In any case, special attention must be given to privacy and security rights of individuals as their Adhaar numbers become attached to all their online personal data, including their legal records and judicial affairs.

For more details visit https://cis-india.org/internet-governance/blog/conference-on-the-digitalization-of-the-indian-legal-system

How The U.K. Got A Better Deal From Facebook Than India Did

praskrishna — 2016-11-18T01:56:49Z

The U.K.’s Information Commissioner’s Office (ICO) and India’s Karmanya Sareen shared a similar concern – how messenger application WhatsApp’s decision to share user data with parent Facebook is a violation of the promise of privacy.

The blog post by Payaswini Upadhyay was published in Bloomberg Quint on November 17, 2016. Sunil Abraham was quoted.

Last week, Facebook agreed to address the concerns of the ICO; in India, it didn’t have to.

WhatsApp: New Privacy Policy

In August 2016, WhatsApp issued a revised privacy policy that allowed it to share user information with parent company Facebook. Any user who didn’t want her information to be shared with Facebook had a 30-day period to opt out of the policy. Opting out meant that a user’s account information would not be shared with Facebook to improve ads and product experiences. But, there was a caveat.

The Facebook family of companies will still receive and use this information for other purposes such as improving infrastructure and delivery systems, understanding how our services or theirs are used, securing systems, and fighting spam, abuse, or infringement activities.
WhatsApp Support Team statement on its website

Facebook’s Commitment To ICO

The ICO decided to delve deeper into what Facebook intended to do with the WhatsApp user data. Elizabeth Denham, Information Commissioner, ICO stated in her blog that users haven’t been given enough information about what Facebook plans to do with the information, and WhatsApp hasn’t got valid consent from users to share the information.

I also believe users should be given ongoing control over how their information is used, not just a 30-day window.
Elizabeth Denham, Information Commissioner, ICO

Denham further elaborated ICO’s stand - that it’s important users have control over their personal information, even if services don’t charge them a fee.

We’ve set out the law clearly to Facebook, and we’re pleased that they’ve agreed to pause using data from U.K. WhatsApp users for advertisements or product improvement purposes.
Elizabeth Denham, Information Commissioner, ICO

The ICO has now asked Facebook and WhatsApp to sign an undertaking committing to better explaining to users how their data will be used, and to giving users ongoing control over that information. Additionally, the ICO also wants WhatsApp to give users an unambiguous choice before Facebook starts using that information and for them to be given the opportunity to change that decision at any point in the future. Facebook and WhatsApp are yet to agree to this, Denham stated.

If Facebook starts using the data without valid consent, it may face enforcement action from my office.
Elizabeth Denham, Information Commissioner, ICO

In the U.K., protections in the European Data Protection Directive have been incorporated into local law via the Data Protection Act 1998. The ICO is both the privacy regulator and the transparency (right to information) regulator, Sunil Abraham, executive director at the Centre for Internet and Society pointed out. The regulator can issue enforcement notices and also fine errant actors in the market place, he said.

This is a regulator with expertise, experience and teeth. Come May 25, 2018, the General Data Protection Regulation will come into force and this will give more comprehensive powers to the regulator to investigate and remedy cases like this. The regulator will take each principle from the Directive or Regulation and examine Facebook’s actions comprehensively before deciding on a response.
Sunil Abraham, Executive Director, Centre for Internet and Society

For example, if the regulator determines that the principle of choice and consent has not been complied with, it can force Facebook to reverse its decisions and provide greater transparency and clearer choices, Abraham added.

Karmanya Sareen’s Grievance

Back home in India, just two months ago, Karmanya Sareen, a WhatsApp user, argued before the Delhi High Court against the company’s new privacy policy. The argument was that WhatsApp’s August 2016 notice to its users about the proposed change in the privacy policy violated the fundamental rights of users under Article 21 of the Constitution. Article 21 promises protection of life and personal liberty.

Proposed change in the privacy policy of WhatsApp would result in altering/changing the most valuable, basic and essential feature of WhatsApp i.e. the complete protection provided to the privacy of details and data of its users.
Karmanya Sareen vs Union of India

The Delhi High Court struck down the Article 21 argument saying that the Supreme Court was still deliberating over including right to privacy as a fundamental right. It also pointed to WhatsApp’s 2012 Privacy Policy that allowed the company to transfer user information in case of an acquisition or merger with a third party. The 2012 policy also allowed WhatsApp to change the terms periodically.

Consequently, the Delhi High Court held that it is not open to the users now to contend that WhatsApp should be compelled to continue the same terms of service. However, the court gave WhatsApp two directions to protect users.

WhatsApp to delete from its servers and not share with Facebook or its group companies any information belonging to users who delete their account.

Users who continue to be on WhatsApp, their existing information up to September 25, 2016 cannot be shared with Facebook or any of its group companies.

Did The Delhi High Court Go Easy On Facebook And WhatsApp?

Apar Gupta, an advocate specializing in information technology, points out that the directions given by the Delhi High Court to WhatsApp did not contemplate any additional protection to a user than what was already provided by WhatsApp.

The Delhi Court essentially reproduced WhatsApp’s privacy policy. It did not compel or provide any additional safeguard.
Apar Gupta, Lawyer

Apar attributes this to the absence of a regulatory framework.

The lack of substantive safeguard and enforcement framework in India led to the Delhi High Court upholding WhatsApp’s new privacy policy.
Apar Gupta, Lawyer

Abraham added that the court did not examine the privacy policy from the perspective of data protection principles as would have been the case in EU or any other jurisdictions with a proper data protection law.

The court too admitted this in its order that there existed a regulatory vacuum in India and asked TRAI to look into the matter. Facebook did not respond to BloombergQuint’s query on whether it would implement its U.K. commitments in India as well.

For more details visit https://cis-india.org/internet-governance/news/bloomberg-quint-november-17-2016-payaswini-upadhyay-how-the-uk-got-a-better-deal-from-facebook-than-india-did

Letter for Civil Society Involvement in WCIT

Center for Democracy & Technology — 2012-05-24T06:55:30Z

This page features a letter from academics and civil society groups from around the world to International Telecommunication Union Secretary-General Dr. Hamadoun Touré regarding the lack of opportunity for civil society participation in the World Conference on International Telecommunications (WCIT) process.

This letter was published by the Center for Democracy & Technology.

A PDF of the letter is available here. ONG Derechos Digitales has provided a Spanish translation of the letter. For more background on the WCIT, see our policy post, Civil Society Must Have Voice as ITU Debates the Internet, and our ITU resource page.

Civil society organizations and academics are invited to join this call to address deficiencies in the WCIT process. For more information, contact signon@cdt.org.

17 May 2012

To Secretary-General Dr. Hamadoun Touré, the Council Working Group to Prepare for the WCIT-12, and ITU Member States:

The undersigned human rights advocates, academics, freedom of expression groups, and civil society organizations write to express our desire to participate in the preparatory process undertaken for the World Conference on International Telecommunications (WCIT). The current preparatory process lacks the transparency, openness of process, and inclusiveness of all relevant stakeholders that are imperative under commitments made at the World Summit on Information Society (WSIS). We ask that the Secretary-General, the Council Working Group, and Member States work to resolve these process deficiencies in several concrete ways.

The continued success of the information society depends on the full, equal, and meaningful participation of civil society stakeholders (along side the private sector, the academic and technical community, and governments) in the management of information and communications technology, including both technical and public policy issues. Indeed, WSIS outcome documents recognize the need for a multi-stakeholder approach in technical management and policy decision-making for ICTs. The Tunis Agenda for the Information Society urges international organizations “to ensure that all stakeholders, particularly from developing countries, have the opportunity to participate in policy decision-making … and to promote and facilitate such participation.” And such participation depends on transparency and openness of process at every stage of substantive and procedural dialogue.

Yet there has been scant participation by civil society in the Council Working Group’s preparatory process for the WCIT so far, even as media reports indicate that some Member States have proposed amending the International Telecommunication Regulations to address issues that could impact the exercise of human rights in the digital age, including freedom of expression, access to information, and privacy rights. Under the current process, civil society participation is severely limited by restrictions on sharing of preparatory documents, high barriers for ITU membership (including cost), and lack of mechanisms for remote participation in preparatory meetings.

As an important step towards fulfilling WSIS commitments for building a more inclusive information society, the undersigned request that the Secretary-General, the Council Working Group, and Member States:

Remove restrictions on the sharing of WCIT documents and release all preparatory materials, including the Council Working Group’s final report, consolidated reports from all preparatory activity, and proposed revisions to the International Telecommunication Regulations;
Open the preparatory process to meaningful participation by civil society in its own right and without cost at Council Working Group meetings and the WCIT itself, providing formal speaking opportunities and according civil society views an equal weight as those of other stakeholders. Facilitate remote participation to the extent possible; and
For Member States, open public processes at the national level to solicit input on proposed amendments to the International Telecommunication Regulations from all relevant stakeholders, including civil society, and release individual proposals for public debate.

We welcome Secretary-General Touré’s commitment to creating a more inclusive information society and ensuring equitable access to ICT around the world. Collectively and individually, the undersigned human rights advocates, academics, freedom of expression groups, and civil society organizations work to fulfill this vision through a range of national and global institutions and we call for the same opportunity to engage at the WCIT, consistent with WSIS commitments. We urge you to ensure the outcomes of the WCIT and its preparatory process truly represent the common interests of all who have a stake in the future of our information society.

Sincerely,
Access
Article 19
Association for Progressive Communications (APC)
Eduardo Bertoni, Centro de Estudios en Libertad de Expresión y Acceso a la
Información (CELE), Universidad de Palermo, Argentina
Bytes for All, Pakistan
Canadian Internet Policy & Public Interest Clinic (CIPPIC)
Center for Democracy & Technology
Center for Technology and Society (CTS/FGV), Brazil
Centre for Internet & Society (CIS), India
Consumers International
Digitale Gesellschaft e.V.
Egyptian Initiative for Personal Rights
Electronic Frontier Foundation
European Digital Rights
Freedom House
Global Partners & Associates
Global Voices Advocacy
Human Rights in China
Human Rights Watch
Internet Democracy Project, India
Internet Governance Project (IGP)
Kictanet, Kenya
Rebecca MacKinnon
MobileActive Corp
New America Foundation’s Open Technology Institute
ONG Derechos Digitales, Chile
Open Rights Group
Panoptykon Foundation, Poland
Public Knowledge
Reporters sans frontières / Reporters Without Borders
World Press Freedom Committee

Ageia Densi, Argentina
Bolo Bhi, Pakistan
Index on Censorship
IP Justice
Julia Group, Sweden
Net Users' Rights Protection Association, Belgium

For more details visit https://cis-india.org/letter-for-civil-society-involvement

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

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

Good Intentions, Recalcitrant Text – II: What India’s ITU Proposal May Mean for Internet Governance

geetha — 2014-11-03T07:07:16Z

The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.

Disclaimer and update (2 November 2014): India's Draft Resolution was discussed during the meeting of the Ad Hoc Working Group on Internet-related Resolutions at the ITU Plenipot on the evening of November 1, 2014 (KST). After the discussion, India revised the text of the resolution, seeking to address concerns raised by ITU member states. The revised resolution may be found here. However, this blog post was written with reference to the original text of India's Draft Resolution.

***

As I mentioned in my last post, India’s Draft Resolution on ‘ITU’s Role in Realising Secure Information Society’ raises security and equity concerns. The Draft Resolution has 3 security concerns: (i) security weaknesses in the network architecture that permit “camouflaging the identity of the originator of the communication” and make “tracing of communication difficult”; (ii) non-systematic, non-contiguous allocation of naming, numbering and addressing resources on the Internet, which makes it difficult to identify both the users and what states the IP addresses are located in; (iii) non-local routing and address resolution relating to traffic originating and terminating in the same country. Op. §§1, 3-7 seek to address these. It also identifies the present system of allocation of naming, numbering and addressing resources as inequitable, unfair, unjust and undemocratic (Op. §2 of the Draft Resolution offers a solution). I discussed some human rights implications of India’s Draft Resolution in my last post.

In this post, I explore the implications of the Draft Resolution for Internet governance and multi-stakeholder approaches (most notably, an equal footing model).[1] Given the uncertainties around defining multi-stakeholderism for Internet governance, this is rather ambitious. So I will try to point to concerns with certain textual interpretations of the Draft Resolution, map that against the positions India’s representatives have taken on Internet governance in the past, and the motivations/concerns that underlie the tabling of the Draft Resolution. This Resolution may not be the best way to allay India's concerns, for there are technical and rights implications. But the concerns it raises are worth discussion and knowledge, and at forums where concerns are heard, acknowledged and discussed collectively. The text of the Draft Resolution and its attendant implications are not, then, the sole subjects of this post.

The Draft Resolution and Internet governance:

The text of the Draft Resolution is problematic. Many of its clauses may be seen as taking positions against multi-stakeholder approaches to Internet governance. Introducing such a resolution at the ITU may itself bring back memories of the controversies surrounding Resolution 3 of the World Conference on International Telecommunications (WCIT), 2012.[2] In 3 ways, the text of the Draft Resolution has indications for multi-stakeholder approaches.

First, the Draft Resolution frames issues primarily from the perspective security. In its preamble, the Draft Resolution makes several references to security threats posed by and on the Internet. For instance, it points to the ability of the network to “camouflage the identity of the originator of the communication” (Pream. §(e) [recognizing]), as well as national security concerns in the present-day system of routing Internet traffic through multiple countries (Pream. §§(f) and (g), [recognizing]). The apparent difficulty in tracing IP addresses, due to their random allocation, is another concern (Pream. §(h), [recognizing]). Among the “significant public policy issues” identified in telecom/ICT management, “security and safety of the Telecom/ICTs” is specifically noted (Pream. §(i) [considering]). In the Context note to the Draft Resolution and in several places in the Preamble, there are references to ITU Resolution 130 (‘Strengthening the role of ITU in building confidence and security in the use of information and communication technologies’) and ITU’s Cyber-security Agenda. Given the (legitimate or otherwise) disproportionate involvement of governments and not other stakeholders in matters of cyber-security, the framing of issues from a security perspective may lend itself to worries for multi-stakeholderism. Specifically, the Draft Resolution notes: “ensuring security of ICT networks is sovereign right of Member States” (Pream. §(b) [recognizing]).

Second, the Draft Resolution emphasizes the sovereign right of states to regulate and control telecom/ICT. It says, for instance, “it is the sovereign right of each state to regulate its telecommunication” (Pream. §(b) [considering]). With regard to the Internet, the Context note to the Draft Resolution (page 1) considers the Internet to be synonymous with telecom/ICTs: “the Telecom/ICTs, which in common lexicon is used interchangeably many times as Internet…”. Public telecom networks managed by telecom service providers, interconnected with other networks, are necessary for “proper functioning of a telecom network resources namely, among others, naming, numbering and addressing” (Pream. §(k) [considering]). It is worth noting that the sovereign authority of states over Internet public policy issues is settled text from §35 of the Tunis Agenda, though expressing it as synonymous with telecom may lead to possibilities of licensing and registration, which Bulgaria, for instance, does not do.

Third, the Draft Resolution identifies issues of equity and fairness in the allocation of Internet resources such as naming, numbering and addressing (Pream. §(g) [consdering], Op. §2). It states that to correct this inequity, “facilitation and collaboration among international, inter-governmental organizations and individual member states to ensure planning, implementation, monitoring and cooperation in its policies” is required (Pream. §(g) [considering]). In operative paragaphs, our Draft Resolution calls for collaboration with “all the concerned stakeholders including International and intergovernmental organizations to develop policies for allocation, assignment and management of IP resources including naming, numbering and addressing which is systematic, equitable, fair, just, democratic and transparent” (Op. §2). One may pay attention to the oversight over implementation and the necessity of inter-governmental involvement in planning and monitoring as problematic to iterations of multi-stakeholderism.

These concerns are valid and legitimate, and it is desirable that the text of the resolution be altered to address them. The text should also be altered to address the human rights concerns I point out in my previous post. But human rights enforcement or implementation is within the domain of states, though civil society may be a careful watchdog. The Draft Resolution's text, most certainly, will face certain oppositions: for instance, that it is outside the scope and mandate of the ITU. That the ITU does not deal with content regulation – and this issue touches upon content – will be mentioned. That Internet governance is already being discussed and performed in multiple other multi-stakeholder fora, such as ICANN, the NRO and RIRs, IGF and WSIS, will be emphasized. That the Draft Resolution implicates national security concerns will be mentioned as well. But as an aside, on national security: under international law, states always mention their prerogative over national security, and so as a matter of international custom, national security is outside the scope of agreements unless expressly surrendered.

At the same time, debates around the role of ITU in Internet governance are not new, and those familiar will remember the ITU’s views right before the creation of ICANN (also see Mueller, Ruling the Root 145-48 (2002)), Resolution 3 of the WCIT, and the constant tug-of-war since then. The new Secretary-General of the ITU, Mr. Houlin Zhao, wrote a note in October 2004, before the Tunis phase of the WSIS, justifying ITU’s involvement in Internet governance, advocating that IPv6 address blocks be allocated to countries. Mr. Zhao describes, with specific examples, ITU's role in the development and widespread growth of the Internet. He takes the examples of standards developed within the ITU and ITU's policy role in liberalisation and spread of telecommunications (such as Articles 4 & 9 of the 1988 ITRs).

Mr. Zhao’s concrete proposals are rendered inapplicable by the creation of the NRO and RIRs, and the growth and entrenchment of ICANN. But it may be argued that his principled justifications for ITU involvement remain. It is these that India hopes to highlight, I was told, along with the inequities in resource allocation (IPv4 was spoken of), and the disproportionate weight some states enjoy in Internet governance. Her concerns are, I am told, also shared by some other states. Given that the text exhibits a less-than-friendly approach to multi-stakeholderism, India's previous positions on the issue are of interest. While this would not correct the snags in the Draft Resolution's text, allaying these concerns may be ideal to craft an inclusive and transparent multi-stakeholder model for Internet governance.

India and Multi-stakeholderism in Internet Governance:

India’s position on multi-stakeholder models for Internet governance is a matter of some obscurity. Statements at various forums exhibit a certain disagreement – or at the least, lack of engagement – among India’s ministries on our position on multi-stakeholder approaches, particularly the Ministry of External Affairs (MEA), the Department of Telecommunications (DOT) and the Department of Electronics and Information Technology (DeitY), both within the Ministry of Communications and Information Technology (MCIT). While both the MEA and DOT have been cautious supporters of a diluted form of multi-stakeholderism (they have repeatedly emphasized §35 of the Tunis Agenda), DeitY has been more open in entertaining multi-stakeholder approaches for Internet governance.

At the 66^th session of UN General Assembly, Mr. Dushyant Singh, Member of India’s Parliament from the Bharatiya Janata Party, presented our proposal for a Committee on Internet-related Policies. The proposal sought the establishment of a UN committee comprising 50 member-states, with advisory groups including the private sector and civil society, to deal with Internet-related matters.[3] Though India was not opposed to multi-stakeholder advisories in its CIRP proposal, it was less than inviting in this regard.

At NETmundial (April 2014), the Indian government’s contribution document highlighted §35 of the Tunis Agenda, which delineates ‘roles and responsibilities’ of ‘respective stakeholders’ – i.e., governments (with whom reside “sovereign policy authority”), the private sector (technical and economic development of the Internet) and civil society (grassroots participation). At NETmundial, Mr. Vinay Kwatra of the MEA echoed this, also noting the lack of consensus on what multi-stakeholderism means for Internet governance (page 64).

Admittedly, this is a legitimate concern. Internet governance at various fora does not seem to have a clear answer on what multi-stakeholderism means. The debate was/is alive, for instance, at NETmundial 2014, the ICANN-convened IANA transition process, the World Economic Forum’s new NETmundial Initiative, and in the many calls and suggestions (pages 38-46) made over the years on strengthening the IGF (see also, Malcolm, Multi-stakeholder Governance and the IGF (2008), chapter 6). It is hardly surprising then, that India and other states raise this as a concern.

With regard to multi-stakeholderism, the DeitY in India has been the outlier. Speaking at the 2014 IGF in Istanbul, Mr. R.S. Sharma, Secretary (DeitY), expressed “no doubt that Internet Governance mechanism require the involvement of all the stakeholders, since the evolution of Internet has been a product of many different diverse groups working together in a loosely coordinated manner”, advocating strengthening of the IGF and pointing to India’s proposed India-IGF as an example of multi-stakeholderism at home. Most interestingly, Mr. Sharma did not focus on international Internet-related policies being the “sovereign policy authority of states”. Also in the transcripts of the four meetings of the Working Group on Enhanced Cooperation under the Committee for Science, Technology and Development (CSTD), I have been unable to find outright rejections of multi-stakeholder approaches, though India has not advocated multi-stakeholderism unequivocally either.

But this – the emphasis on “sovereign policy authority of states” in Internet governance – has been a consistent position for India, especially the MEA and DOT. Here at the ITU PP-14 as well, members of the Indian delegation also emphasized states’ sovereign monopoly over policy matters. “Why not take this to the ITU”, I was asked, as “many governments are uncomfortable” with the way Internet governance is being conducted at other fora. There are grave concerns, I was told, about the possibility of excessive control some governments have over both user and government data of other states (government-speak, of course, for the Snowden revelations).

These are, of course, concerns similar to those of authoritarian governments, or those reluctant to open up to multi-stakeholderism and looking for excuses to retain/increase government control. But it is equally possible that these concerns need not be limited only to such states. Perhaps for developing countries as well, these are real concerns. In conversation with members of the Indian delegation at the ITU Plenipot, I was able to discern 3 broad concerns. First, the definition of multi-stakeholderism in Internet governance. India has not shown herself comfortable with an all-out endorsement of multi-stakeholderism. This is troubling. Civil society and the private sector in India will attest to the difficulties in engaging with our government at all levels. For instance, seeking a place on India's delegation for the Plenipot proved a disheartening exercise for some members of India's civil society.

But there are also conflicting indications. India is in the process of instituting an India-IGF, and CIS' Executive Director, Sunil Abraham, is on the MAG. India expressed agreement, at least in informal conversation, to opening up ITU documents to the public on grounds of public interest. The Law Commission of India recently conducted a multi-stakeholder consultation on media laws in India, and Telecom Regulatory Authority of India (TRAI) regularly conducts consultations, though the private sector is more active there. What is lacking in India, however, is a set of clear procedures and processes for multi-stakeholder engagement, particularly on Internet issues. Clear, public, accessible, foreseeable and predictable set of rules or processes on participation from civil society, private sector and academia would make a world of difference to multi-stakeholderism within India. But this lack should not blind states or other stakeholders to the genuineness of privacy/security or equity concerns - for instance, of the protection of our information from mass surveillance or the feasibility and actual participation of developing countries at many Internet governance fora.

Second, members of the delegation expressed concern over inequalities in the allocation of naming, numbering and addressing resources. While I am uncertain how IPv6 allocation falls within this concern, the inequalities of IPv4 allocations are well documented. To gather a sense of this, it would be useful to read chapter 5 of Professor DeNardis’ Protocol Politics, and to glance at Figure 5.7 (page 173). Africa controls, for instance, a mere 1% of all available IPv4 addresses, while North America and Europe control about 63%. A study on engagement from the Asia-Pacific in Internet standards organisations shows, for instance, greater participation from Western countries and from some states like Japan.[4] India and other states from Asia and Africa have lesser participation. Even at ICANN, with efforts to increase participation, meaningful engagement is still from a majority of Western countries. Perhaps states and other stakeholders on the other side of the table can address these concerns through clear, inclusive, non-discriminatory commitments and implementation.

Third, India emphasized how the Draft Resolution does not propose that ITU be involved in content management or resources control, but only seeks to systematize allocation by asking the ITU Secretary General to collaborate and coordinate with other Internet governance organisations to create a set of principles for fair, equitable, transparent and democratic - as well as secure - allocation of resources. ITU Resolution 101 already instructs the Secretary General to collaborate with relevant Internet governance organisations, and the Draft Resolution merely seeks to spell out his tasks. However, as I pointed out in my previous post, the text of the Draft Resolution is at odds with this intention of India's. By dint of its drafting, it gravely implicates human rights, as well as touching upon resource allocation oversight ("needs to be adhere to" in Op. §2). To reflect the above stated intention, the Draft Resolution would need to be redrafted.

Finally, the text of the Draft Resolution exhibits, unfortunately, a certain disregard for existing network architecture and efficiency within the Internet, and to the principles of a free, open and inter-operable and unified Internet, when it seeks to develop a network architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing. An argument may, of course, be made in favour of efficiency and costs, including reduced latency. But it is clear that this has the potential to increase domestic surveillance capabilities and government censorship of content. In any case, traffic localization (if not local address resolution) can be achieved without ITU coordination: through Internet Exchange Points, and through more efficient and better-negotiated peering and transit arrangements (pages 14-17). Internationally coordinated rules for localized traffic routing is not necessary; you just need to have a more efficient Internet Exchange Point. How to get more ISPs to interconnect through India’s National Internet Exchange (NIXI) is one of the very questions that India’s Telecom Regulatory Authority has taken up in its recent consultation on expanding broadband access (page 49). So it is possible that India's concerns could be addressed without ITU involvement, though I am unsure of its impact on the global Internet.

The Draft Resolution will be discussed at the ITU Plenipot today. The discussion will allow India and sympathetic countries to raise several of their concerns relating to the present system of Internet governance, and the direction of its progress. I will report on these discussions upon their completion.

A Note on Limitations:

The aim of this post is to clarify. I would caution against its being the last word on anything, much less India’s positions on Internet governance. An issue as important as this needs far greater access to and confirmation from India’s government – and a more in-depth understanding of the politics – than I do, at the moment.

At the same time, India has not been a model for civil society engagement, as illustratively, the Narmada Bachao Andolan and/or P. Sainath’s evaluation of government policies in Everybody Loves a Good Drought reveal. It has been harder to effectively engage with India’s government than in many states in North America, Latin America and Europe. But I believe the complex dynamics of that is not unique to India. The NSA and GCHQ revelations (as an example of governmental trust deficit of unmatched proportions) have shown that where governments want to keep everyone out and oblivious, they do it well.

I am not in favour of a purely multilateral approach to Internet governance. But at the same time, I share concerns over definition and the evolution of processes as well, as I am sure others in civil society also do. Particularly on the issue of Internet governance and multi-stakeholderism, evidence reveals inconsistency among India’s various ministries. Until this is addressed by our government (hopefully in consultation with all concerned stakeholders), an open mind would probably be the best thing we - including states - could keep.

Acknowledgements: I would like to thank Sunil Abraham, Pranesh Prakash, Rishabh Dara, Arun Sukumar, Anja Kovacs and Parminder Jeet Singh for the freedom to bounce ideas, feedback and the many discussions about multi-stakeholder approaches and Internet governance. I also wish to acknowledge Samir Saran’s article in CFR, which offers an interesting perspective on India’s Draft Resolution.

[1] For this post, I will use ‘multi-stakeholder approaches’ as an umbrella term, but would urge readers to keep in mind the many uncertainties and disagreements about defining multi-stakeholderism for Internet governance. These disagreements exist among and within all stakeholders, including government and civil society. In addition to various iterations of the ‘equal footing model’, the model proposed in §35 of the Tunis Agenda is also multi-stakeholder, albeit in a different – and for many in civil society, less desirable – sense.

[2] For those unacquainted with WCIT, see Mueller, ITU Phobia: Why WCIT was derailed, Internet Governance Blog (18 December 2012), http://www.internetgovernance.org/2012/12/18/itu-phobia-why-wcit-was-derailed/; Kleinwächter, WCIT and Internet governance: Harmless resolution or Trojan horse?, CircleID Blog (17 December 2012), http://www.circleid.com/posts/20121217_wcit_and_internet_governance_harmless_resolution_or_trojan_horse/.

[3] For a commentary, see Mueller, A United Nations Committee for Internet-related Policies? A Fair Assessment, Internet Governance Blog (29 October 2011), http://www.internetgovernance.org/2011/10/29/a-united-nations-committee-for-internet-related-policies-a-fair-assessment/.

[4] Contreras, Divergent Patterns of Engagement in Internet Standardization: Japan, Korea and China. I am unable to find this paper online. Please email me for information.

For more details visit https://cis-india.org/internet-governance/blog/good-intentions-recalcitrant-text-2013-ii-what-india2019s-itu-proposal-may-mean-for-internet-governance

India's Statement at ITU Plenipotentiary Conference, 2014

geetha — 2014-11-04T05:50:06Z

India's Draft Resolution at the ITU Plenipot, which we have previously blogged about, was not passed following discussions at the Ad Hoc Working Group on Internet-related Resolutions. Subsequently, India made a statement at the Working Group of the Plenary, emphasizing the importance of the issues and welcoming further discussions. The statement was delivered by Mr. Ram Narain, DDG-IR, Department of Telecommunications and Head of India's Delegation at PP-14. The full text of the statement is provided below.

"Chairman of Working Group Plenary, Mr Musab Abdulla, Head of Delegations, delegates, ladies and gentlemen, good morning/afternoon to you all. I was indeed impressed with the camaraderie with which discussions were held inspite of the fact that delegates discussing the issues have different cultures, languages, nuances, impressions and sometime interests.

"Governance of packet-switched data telecom Networks based on Internet Protocol (IP), popularly known as Internet, has become an important and contentious issue due to several reasons known to all of us. We put up a draft resolution to address some of these key issues pertaining to IP based networks. When we put up the proposal, I had thought that the proposal would contribute in diminishing some of the differences. These issues and their probable solutions are given in our draft resolution, document 98, about which we were ready to take constructive inputs.

"Information is power these days. The wise Lord Acton said about hundred and fifty years ago that Power tends to corrupt and absolute power corrupts absolutely. The countries in modern times have become great on the principles of equality, liberty and justice. As and when these principles were compromised great powers lost their hold. Broadband penetration and connectivity has been the important running theme of this conference. We believe this, like great empires, can only be built on the principles of fairness, justice, and equality. No Telecom Network whether IP based or otherwise can function without naming and numbering, which is the lifeline of a network. Their availability in a fair, just and equitable manner, therefore, is an important public policy issue and need to be dealt that way. We believe that respecting the principle of sovereignty of information through network functionality and global norms will go a long way in increasing the trust and confidence in use of ICT.

"There are number of existing Internet related resolutions, but they only touch the issue in general and, therefore, without focus concrete action does not happen. Our Resolution was with a view to deal with the issues in a focused manner. Some countries supported our draft resolution, while some other were not able to support it. Some stated since the proposal is a comprehensive one, dealing with number of important issues, more time is needed for them to develop a view on it. Due to the number of proposals with Ad Hoc Group lined up before our draft resolution, there was no time left for detailed discussion on the proposal. Therefore, India agreed not to press the resolution for discussion due to paucity of time, with an understanding that for these issues of concerns for many Member States, contributions can be made in various fora dealing with development of IP based networks and future networks, including ITU. India would like that discussion should take place on these issues and look forward to these discussions. We would request that this Statement is included in the records of Plenipotentiary-14 meeting.

"We would like to thank for the cooperation extended by various Member States, particularly USA, for appreciating our concerns and all those who shared our concerns and supported the draft resolution. I would also like to thank Mr. Fabio Bigi, Chairman of Ad Hoc Working Group for giving patient hearing to all us and tolerating all our idiosyncrasies and still arriving at consensus. This is because of his wisdom, which comes with experience.

Thank you all."

For more details visit https://cis-india.org/internet-governance/blog/indias-statement-at-itu-plenipotentiary-conference-2014

Training for Internet Governance Activists

praskrishna — 2014-11-07T00:38:55Z

Geetha Hariharan attended a training session for Internet rights activists in Cambridge, organised by Global Partners Digital, UK on September 23 and 24, 2014.

Day 1. Final session was on privacy, surveillance and data protection by Mike Rispoli and Alexandrine Pirlot de Corbion from PI. Got caught up in the discussion, so no notes from that. Of interest is session on communication by Mike - a nine-step process he's outlined (in bold at the very end), and the problem tree and stakeholder mapping approach that Alex spoke of.

Day 2. Great session on the ITU and on lobbying by lobbyist Matthew McDermott of Access Partners. The ITU is a complex beast with activity at multiple levels and different levels of effectiveness at different levels. From conversations, I gathered that any effective strategy for any policy change in Internet governance at the ITU will involve lobbying national governments, and then at sub-regional, regional and global levels.

Day 3. Tim Maurer's session on cyber security. Issues of terminology and politicisation discussed. Also info on in what forums cyber security debate is taking place. The Netherlands is hosting the Global Conference on Cyber Space in April 2015.

Resources

Unedited notes from the meeting can be downloaded here (Zip File, 739 Kb)

For more details visit https://cis-india.org/internet-governance/news/training-for-internet-governance-activists

October 2014 Bulletin

praskrishna — 2014-11-23T16:40:23Z

Welcome to the tenth issue of the newsletter (October 2014).

We at the Centre for Internet & Society (CIS) welcome you to the tenth issue of the newsletter (October 2014). Archives of our newsletters can be accessed at: http://cis-india.org/about/newsletters

Highlights

CIS sent its comments and recommendations on the Rights of Persons with Disabilities Bill, 2014. It was submitted to the Parliamentary Standing Committee in October 2014.
CIS has published the Central Guidelines and Schemes.
CIS was one of the signatories of a letter sent to the Prime Minister of India Shri Narendra Modi sharing its concerns on India's position on intellectual property, particularly in the context of bilateral relations between the United States of America and India. The letter was sent on October 22, 2014.

In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Shashank Singh analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

Subhashish Panigrahi wrote an op-ed in the Samaja (Odia daily) on the hurdles that the Odia language has been facing and the potential aspects of the language including it being used massively on the Internet, Wikipedia and other media platforms.

International Telecommunications Union is hosting its Plenipotentiary Conference this year in South Korea. India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan analyses this.

Vipul Kharbanda analyses the possible implications of the public interest litigation that has been placed before the Supreme Court petitioning for the establishment of a DNA database in respect to unidentified bodies in his latest blog entry.
In a blog post published in Lila Interactions P.P.Sneha explores the possibilities of redefining the idea of access through the channels of education and learning.

►Job

Programme Officer (Access to Knowledge - Institutional Partnerships): CIS is seeking applications for the post of Programme Officer for its Access to Knowledge (A2K) Programme. The position will be based in its Bangalore office. Programme Officer will collaboratively work with the A2K Team and would report to the Programme Director, Access to Knowledge at CIS.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The updated draft is being reviewed by the Office of the Chief Commissioner for Persons with Disabilities. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

Monthly Update

October 2014 Report (Suman Dogra; October 31, 2014).

►Other

Submission

Comments to the Rights of Persons with Disabilities Bill , 2014 (Nirmita Narasimhan and Anandhi Viswanathan; October 30, 2014).

Blog Entries

Central Guidelines and Schemes (Anandhi Viswanathan, October 14, 2014).
The Legal Framework for Enforcement of Rights of Persons with Disabilities (CLPR; October 14, 2014).

Media Coverage

Communication technology opens 'doors' for everyone, not only people with disabilities (John D. Kemp and Brandon M. Macsata, The Hill, October 13, 2014).

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

Blog Entries

Letter to the Prime Minister on Indo-US Bilateral Relations on Intellectual Property (Nehaa Chaudhari; October 22, 2014).
Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response (Shashank Singh; October 29, 2014).

►Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Blog Entries

ଓଡ଼ିଆ ଭାଷା ବିକାଶରେ ପ୍ରତିବନ୍ଧକ ଓ ସମ୍ଭାବନା (Subhashish Panigrahi, Samaja; October 13, 2014).
Bharat Majhi Writings Now Available Under a Creative Commons License (Subhashish Panigrahi; October 14, 2014).
More Than 40 Million People Await the Launch of Odia Wikisource (Subhashish Panigrahi, Global Voices and Wikimedia Blog; October 21, 2014).
Odia Littérateur Ramakrushna Nanda's 4 Books Now Available Under a Creative Commons License (Subhashish Panigrahi; October 22, 2014).
Open Access Platform to Save the Odia Indian Language (Subhashish Panigrahi, Opensource.com; October 22, 2014).
Odia Wikisource Goes Live! (Subhashish Panigrahi; October 26, 2014).
Samskrita Vaibhavam (Sanskrit Wiki Outreach Program) (Shubha and Sayant Mahato; October 30, 2014).
Tulu Wikipedia Workshop cum Editathon at Udupi (Dr. U.B.Pavanaja, October 31, 2014). The event was covered by V4News.com and Mangalore Today.
Converting from nonUnicode (Nudi, Baraha, ...) font encoding to Unicode Kannada (Dr. U.B.Pavanaja; October 31, 2014).

Events Co-organized

Sangeet Baithak: A Hindustani Music Resource Donation Event in Mumbai (Organized by CIS-A2K and Khayal Trust; Shivaji Park, Dadar, Mumbai; October 7, 2014).
Indian Women in Science Wiki edit-a-thon (Organized by IndoBioScience and CIS-A2K; Centre for Ecological Sciences, Indian Institute of Science, Bangalore; October 11, 2014).
Ada Lovelace Edit-a-thon 2014 (Organized by IndoBioScience and CIS-A2K; Urban Solace; October 14, 2014).

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Enliven the Tulu Viki Fidia first and then add Tulu to the 8th Schedule : Dr.UG Pavanaja, Bangalore Rep. in Udupi (V4News.com; October 15, 2014).
Wikipedia can establish Tulu in a wider way (Mangalore Today; October 17, 2014).
Pushing women scientists (Renuka Phadnis; Hindu; October 19, 2014).
Wiki Media Foundation keen on developing Urdu Wikipedia (Nisar Ahmed Syed; October 22, 2014).
Wiki Media Foundation keen on developing Urdu Wikipedia (Siasat Daily; October 24, 2014).

Participation in Event

Barcamp Bangalore (Organized by SAP Labs; Bangalore; October 12, 2014). Dr. U.B.Pavanaja and Rahmanuddin Shaik took part in the event.

Internet Governance

►Privacy

As part of our Surveillance and Freedom: Global Understandings and Rights Development (SAFEGUARD) project with Privacy International we are engaged in enhancing respect for the right to privacy in developing countries. We have produced the following outputs during the month although these may not be part of the SAFEGUARD project:

Blog Entries

The Gujarat High Court Judgment on the Snoopgate Issue (Vipul Kharbanda; October 27, 2014).
DNA Database for Missing Persons and Unidentified Dead Bodies (Vipul Kharbanda; October 31, 2014).

Upcoming Event

CPDP 2015 : The eighth international conference on computers, privacy and data protection will be held in Brussels from January 21 to 23, 2015. CIS is a moral supporter of CPDP.

Participation in Events

Training for Internet Governance Activists (Organized by Global Partners Digital, UK; Cambridge; September 23 - 24, 2014). Geetha Hariharan attended the event. The event was held in September and the details published in October.
The India Conference on Cyber Security and Cyber Governance (Organized by FICCI and CYFY; October 15 - 17, 2014; New Delhi). CIS was a knowledge partner. Sunil Abraham was a panelist in the session "Privacy is Dead".
Expert Consultation on Cyber Security, Justice and Governance (Organized by Hague Institute for Global Justice, Observer Research Foundation and STIMSON; October 18, 2014). Sunil Abraham was a speaker in the session "Internet Access, Freedom Online, and Development in the Global South".

►Free Speech

Good Intentions, Recalcitrant Text - I: Why India's Proposal at the ITU is Troubling for Internet Freedoms (Geeta Hariharan; October 28, 2014).
Good Intentions, Recalcitrant Text - II: What India's ITU Proposal May Mean for Internet Governance (Geeta Hariharan; November 1, 2014).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Is India the next frontier for Facebook? (Rama Lakshmi; Washington Post; October 9, 2014).
If MNCs make early inroads, they will keep market share: Sunil Abraham, CIS (J.Anand; Financial Express; October 23, 2014).

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

Blog Entry

Rethinking Conditions of Access (P.P.Sneha, Lilainteractions; October 15, 2014).

About CIS

The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of 'The Centre for Internet and Society' and mail it to us at No. 194, 2nd 'C' Cross, Domlur, 2nd Stage, Bengaluru - 5600 71.

► Request for Collaboration:

We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, atsunil@cis-india.org or Nishant Shah, Director - Research, at nishant@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/october-2014-bulletin

White Paper on RTI and Privacy V1.2

vipul — 2014-11-09T02:53:51Z

This white paper explores the relationship between privacy and transparency in the context of the right to information in India. Analysing pertinent case law and legislation - the paper highlights how the courts and the law in India address questions of transparency vs. privacy.

Introduction

Although the right to information is not specifically spelt out in the Constitution of India, 1950, it has been read into Articles 14 (right to equality), 19(1)(a) (freedom of speech and expression) and 21 (right to life) through cases such as Bennet Coleman v. Union of India,[1] Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd.,[2] etc. The same Articles of the Constitution were also interpreted in Kharak Singh v.State of U.P.,[3] Govind v. State of M.P., [4] and a number of other cases, to include within their scope a right to privacy. At the very outset it appears that a right to receive information -though achieving greater transparency in public life - could impinge on the right to privacy of certain people. The presumed tension between the right to privacy and the right to information has been widely recognized and a framework towards balancing the two rights, has been widely discussed across jurisdictions. In India, nowhere is this conflict and the attempt to balance it more evident than under the Right to Information Act, 2005 (the "RTI Act").

Supporting the constitutional right to information enjoyed by the citizens, is the statutorily recognized right to information granted under the RTI Act. Any potential infringement of the right to privacy by the provisions of the RTI Act are sought to be balanced by section 8 which provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual. This exception states that there is no obligation to disclose information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the larger public interest justifies the disclosure of such information. [5] The Act further goes on to say that where any information relating to or supplied by a third party and treated by that party as confidential, is to be disclosed, the Central Public Information Officer or State Public Information Officer has to give written notice to that party within five days of receiving such a request inviting such third party (within ten days) to make its case as to whether such information should or should not be disclosed.[6]

A plain reading of section 11 suggests that for the section to apply the following three conditions have to be satisfied, i.e. (i) if the PIO is considering disclosing the information (ii) the information relates to the third party or was given to a Public Authority by the third party in confidence; and (iii) the third party treated the information to be a confidential. It has been held that in order to satisfy the third part of the test stated above, the third party has to be consulted and therefore a notice has to be sent to the third party. Even if the third party claims confidentiality, the proviso to the section provides that the information cannot be withheld if the public interest in the disclosure outweighs the possible harm or injury that may be caused to the third party, except in cases of trade or commercial secrets.[7] The Courts have also held that section 11 should be read keeping in mind the exceptions contained in section 8 (discussed in detail later) and the exceptions contained therein. [8]

This principle of non disclosure of private information can be found across a number of common law jurisdictions. The United Kingdom's Freedom of Information Act, 2000 exempts the disclosure of information where it would violate the data protection principles contained in the Data Protection Act, 1998 or constitute an actionable breach of confidence.[9] The Australian Freedom of Information Act, 1982 categorizes documents involving unreasonable disclosure of personal information as conditionally exempt i.e. allows for their disclosure unless such disclosure would be contrary to public interest.[10] The Canadian Access to Information Act also has a provision which allows the authorities to refuse to disclose personal information except in accordance with the provisions of the Canadian Privacy Act. [11]

An overview of the RTI Act, especially sections 6 to 8 seems to give the impression that the legislature has tried to balance and harmonize conflicting public and private rights and interests by building sufficient safeguards and exceptions to the general principles of disclosure under the Act. [12] This is why it is generally suggested that section 8, when applied, should be given a strict interpretation as it is a fetter on not only a statutory right granted under the RTI Act but also a pre-existing constitutional right. [13] Logical as this argument may seem and appropriate in some circumstances, it does present a problem when dealing with the privacy exception contained in section 8(1)(j). That is because the right to privacy envisaged in this section is also a pre-existing constitutional right which has been traced to the same provisions of the Constitution from which the constitutional right of freedom of information emanates.[14] Therefore there is an ambiguity regarding the treatment and priority given to the privacy exception vs. the disclosure mandate in the RTI Act, as it requires the balancing of not only two competing statutory rights but also two constitutional rights.

The Privacy Exception

As discussed earlier, the purpose of the RTI Act is to increase transparency and ensure that people have access to as much public information as possible. Such a right is critical in a democratic country as it allows for accountability of the State and allows individuals to seek out information and make informed decisions. However, it seems from the language of the RTI Act that at the time of its drafting the legislature did realize that there would be a conflict between the endeavor to provide information and the right to privacy of individuals over the information kept with public authorities, which is why a privacy exception was carved into section 8(1)(j) of the Right to Information Act. The Act does not only protect the privacy of the third party who's information is at risk of being disclosed, but also the privacy of the applicant. In fact it has now been held that a private respondent need not give his/her ID or address as long as the information provided by him/her is sufficient to contact him/her.[15]

It is interesting to note that although the RTI Act gives every citizen a right to information, it does not limit this right with a stipulation as to how the information shall be used by the applicant or the reason for which the applicant wants such information. [16] This lack of a purpose limitation in the Act may have privacy implications as non sensitive personal information could be sought from different sources and processed by any person so as to convert such non-sensitive or anonymous information into identifiable information which could directly impact the privacy of individuals.

The exception in S. 8(1)(j) prohibits the disclosure of personal information for two reasons (i) its disclosure does not relate to any public activity or interest or (ii) it would be an unwarranted invasion into privacy. The above two conditions however get trumped if a larger public interest is satisfied by the disclosure of such information.

One interesting thing about the exception contained in section 8(1)(j) is that this exception itself has an exception to it in the form of a proviso. The proviso says that any information which cannot be denied to the central or state legislature shall not be denied to any person. Since the proviso has been placed at the end of sub-section 8(1) which is also the end of clause 8(1)(j), one might be tempted to ask whether this proviso applies only to the privacy exception i.e. clause 8(1)(j) or to the entire sub-section 8(1) (which includes other exceptions such as national interest, etc.). This issue was put to rest by the Bombay High Court when it held that since the proviso has been put only after clause 8(1)(j) and not before each and every clause, it would not apply to the entire sub-section 8(1) but only to clause 8(1)(j), thus ensuring that the exceptions to disclosure other than the right to privacy are not restricted by this proviso.[17]

Scope of Proviso to section 8(1)(j)
Though the courts have agreed that the proviso is applicable only to section 8(1)(j), the import of the proviso to section 8(1)(j) is a little more ambiguous and there are conflicting decisions by different High Courts on this point. Whereas the Bombay High Court has laid emphasis on the letter of the proviso and derived strength from the objects and overall scheme of the Act to water down the provisions of section 8(1)(j), [18] the Delhi High Court has disagreed with such an approach which gives "undue, even overwhelming deference" to Parliamentary privilege in seeking information. Such an approach would render the protection under section 8(1)j) meaningless, and the basic safeguard bereft of content.[19] In the words of the Delhi High Court:

" The proviso has to be only as confined to what it enacts, to the class of information that Parliament can ordinarily seek; if it were held that all information relating to all public servants, even private information, can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court. "

The interpretation given by the Delhi High Court thus ensures that section 8(1)(j) still has some effect, as otherwise the privacy exception would have gotten steamrolled by parliamentary privilege and all sorts of information such as Income Tax Returns, etc. of both private and public individuals would have been liable to disclosure under the RTI Act.

Unfortunately, the RTI Act does not describe the terms "personal information" or "larger public interest" used in section 8(1)(j), which leaves some amount of ambiguity in interpreting the privacy exception to the RTI Act. Therefore the only option for anyone to understand these terms in greater depth is to discuss and analyse the case laws developed by the Hon'ble Supreme Court and the High Courts which have tried to throw some light on this issue.

We shall discuss some of these landmark judgments to understand the interpretations given to these terms and then move on to specific instances where (applying these principles) information has been disclosed or denied.

Personal Information
The RTI Act defines the term information but does not define the term "personal information". Therefore one has to rely on judicial pronouncements to understand the term a more clearly. Looking at the common understanding and dictionary meaning of "personal" as well as the definition of "information" contained in the RTI Act it could be said that personal information would be information, information that pertains to a person and as such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest. At the same time, such personal information may, or may not, be private to the person. [20]

The Delhi High Court has tried to draw a distinction between the term "private information" which encompasses the personal intimacies of the home, the family, marriage, motherhood, procreation, child rearing and of the like nature and "personal information" which would be any information that pertains to an individual. This would logically imply that all private information would be part of personal information but not the other way round. [21] The term 'personal information' has in other cases, been variously described as "identity particulars of public servants, i.e. details such as their dates of birth, personal identification numbers",[22] and as including tax returns, medical records etc.[23] It is worth noting that just because the term used is "personal information" does not mean that the information always has to relate to an actual person, but may even be a juristic entity such as a trust or corporation, etc.[24]

Larger Public Interest
The term larger public interest has not been discussed or defined in the RTI Act, however the Courts have developed some tests to determine if in a given situation, personal information should be disclosed in the larger public interest.

Whenever a Public Information Officer is asked for personal information about any person, it has to balance the competing claims of the privacy of the third party on the one hand and claim of public interest on the other and determine whether the public interest in such a disclosure satisfies violating a person's privacy. The expression "public interest" is not capable of a precise definition and does not have a rigid meaning. It is therefore an elastic term and takes its colors from the statute in which it occurs, the concept varying with the time and the state of the society and its needs. This seems to be the reason why the legislature and even the Courts have shied away from a precise definition of "public interest". However, the term public interest does not mean something that is merely interesting or satisfies the curiosity or love of information or amusement; but something in which a class of the community have some interest by which their rights or liabilities are affected.[25]

There have been suggestions that the use of the word "larger" before the term "public interest" denotes that the public interest involved should serve a large section of the society and not just a small section of it, i.e. if the information has a bearing on the economy, the moral values in the society; the environment; national safety, or the like, the same would qualify as "larger public interest".[26] However this is not a very well supported theory and the usage of the term "larger public interest" cannot be given such a narrow meaning, for example what if the disclosure of the information could save the lives of only 10 people or even just 5 children? Would the information not be released just because it violates one person's right to privacy and there is not a significant number of lives at stake? This does not seem to be what all the cases on the right to privacy, right from Kharak Singh[27] all the way to Naz Foundation, [28] seem to suggest. Infact, in the very same judgment where the above interpretation has been suggested, the Court undermines this argument by giving the example of a person with a previous crime of sexual assault being employed in an orphanage and says that the interest of the small group of children in the orphanage would outweigh the privacy concerns of the individual thus requiring disclosure of all information regarding the employee's past.

In light of the above understanding of section 8(1)(j), there seem to be two different tests that have been proposed by the Courts, which seem to connote the same principle although in different words:

1. The test laid down by Union Public Service Commission v. R.K. Jain:

(i) The information sought must relate to „Personal information‟ as understood above of a third party. Therefore, if the information sought does not qualify as personal information, the exemption would not apply;

(ii) Such personal information should relate to a third person, i.e., a person other than the information seeker or the public authority; AND

(iii) (a) The information sought should not have a relation to any public activity qua such third person, or to public interest. If the information sought relates to public activity of the third party, i.e. to his activities falling within the public domain, the exemption would not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (b) The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure. [29]

2. The other test was laid down in Vijay Prakash v. Union of India, but in the specific circumstances of disclosure of personal information relating to a public official:

(i) whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization;

(ii) whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case; and

(iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources. [30]

Constitutional Restrictions
Since there is not extensive academic discussion on the meaning of the term "larger public interest" or "public interest" as provided in section 8(1)(j), one is forced to turn to other sources to get a better idea of these terms. One such source is constitutional law, since the right to privacy, as contained in section 8(1)(j) has its origins in Articles 14,[31] 19(1)(a) [32] and 21[33] of the Constitution of India. The constitutional right to privacy in India is also not an absolute right and various cases have carved out a number of exceptions to privacy, a perusal of which may give some indication as to what may be considered as 'larger public interest', these restrictions are:

a) Reasonable restrictions can be imposed on the right to privacy in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; ^{^[34]}

b) Reasonable restrictions can be imposed upon the right to privacy either in the interests of the general public or for the protection of the interests of any Scheduled Tribe;^{^[35]}

c) The right to privacy can be restricted by procedure established by law which procedure would have to satisfy the test laid down in the Maneka Gandhi case.^{^[36]}

d) The right can be restricted if there is an important countervailing interest which is superior; ^{^[37]}

e) It can be restricted if there is a compelling state interest to be served by doing so; ^{^[38]}

f) It can be restricted in case there is a compelling public interest to be served by doing so; ^{^[39]}

g) The Rajagopal tests - This case lays down three exceptions to the rule that a person's private information cannot be published, viz. i) person voluntarily thrusts himself into controversy or voluntarily raises or invites a controversy, ii) if publication is based on public records other than for sexual assault, kidnap and abduction, iii) there is no right to privacy for public officials with respect to their acts and conduct relevant to the discharge of their official duties. It must be noted that although the Court talks about public records, it does not use the term 'public domain' and thus it is possible that even if a document has been leaked in the public domain and is freely available, if it is not a matter of public record, the right to privacy can still be claimed in regard to it.^{^[40]}

Section 8(1)(j) in Practice

The discussion in the previous chapter regarding the interpretation of section 8(1)(j), though (hopefully) helpful still seems a little abstract without specific instances and illustrations to drive home the point. In this chapter we shall endeavor to briefly discuss some specific cases regarding information disclosure where the issue of violation of privacy of a third party was raised.

Private Information of Public Officials
Some of the most common problems regarding section 8(1)(j) come up when discussing information (personal or otherwise) regarding public officers. The issue comes up because an argument can be made that certain information such as income tax details, financial details, medical records, etc. of public officials should be disclosed since it has a bearing on their public activities and disclosure of such information in case of crooked officers would serve the interests of transparency and cleaner government (hence serving a larger public interest). Although section 8(1)(j) does not make any distinction between a private person and a public servant, a distinction in the way their personal information is treated does appear in reality due to the inherent nature of a public servant. Infact it has sometimes been argued that public servants must waive the right to privacy in favour of transparency.[41] However this argument has been repeatedly rejected by the Courts, [42] just because a person assumes public office does not mean that he/she would automatically lose their right to privacy in favour of transparency.

If personal information regarding a public servant is asked for, then a distinction must be made between the information that is inherently personal to the person and that which has a connection with his/her public functions. The information exempted under section 8(1)(j) is personal information which is so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of the third party.[43] In short, the Courts have concluded that there can be no blanket rule regarding what information can and cannot be disclosed when it comes to a public servant, and the disclosure (or lack of it) would depend upon the circumstances of each case.

Although the earlier thinking of the CIC as well as various High Courts of the country was that information regarding disciplinary proceedings and service records of public officials is to be treated as public information in order to boost transparency,[44] however this line of thinking took almost a U-turn in 2012 after the decision of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commissioner,[45] and now the prevailing principle is that such information is personal information and should not be disclosed unless a larger public interest is would be served by the disclosure.

It would also be helpful to look at a list of the type of information regarding public servants which has been disclosed in the past, gleaned from various cases, to get a better understanding of the prevailing trends in such cases:

(i) Details of postings of public servants at various points of time, since this was not considered as personal information; [46]

(ii) Copies of posting/ transfer orders of public servants, since it was not considered personal information; [47]

(iii) Information regarding transfers of colleagues cannot be exempted from disclosure, since disclosure would not cause any unwarranted invasion of privacy and non disclosure would defeat the object of the RTI Act;[48]

(iv) Information regarding the criteria adopted and the marks allotted to various academic qualifications, experience and interview in selection process for government posts by the state Public Service Commission;[49]

(v) Information regarding marks obtained in written test, interview, annual confidential reports of the applicant as well as the marks in the written test and interview of the last candidate selected, since this information was not considered as personal information; [50]

(vi) Information relating to the appointment and educational certificates of teachers in an educational institution (which satisfies the requirements of being a public authority) was disclosed since this was considered as relevant to them performing their functions. [51]

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. To understand this better below is a brief list of the type of information that has been considered by the Courts as personal information which is liable to be exempt from disclosure under section 8(1)(j):

(i) (a) Salary details, (b) show cause notice, memo and censure, (c) return of assets and liabilities, (d) details of investment and other related details, (e) details of gifts accepted, (f) complete enquiry proceedings, (g) details of income tax returns;[52]

(ii) All memos issued, show cause notices and orders of censure/punishment etc. are personal information. Cannot be revealed unless a larger public interest justifies such disclosure;[53]

(iii) Disciplinary information of an employee is personal information and is exempt under section 8(1)(j); [54]

(iv) Medical records cannot be disclosed due to section 8(1)(j) as they come under "personal information", unless a larger public interest can be shown meriting such disclosure;[55]

(v) Copy of personnel records and service book (containing Annual Confidential Reports, etc.) of a public servant is personal information and cannot be disclosed due to section 8(1)(j);[56]

(vi) Information regarding sexual disorder, DNA test between an officer and his surrogate mother, name of his biological father and step father, name of his mother and surrogate step mother and such other aspects were denied by the Courts as such information was considered beyond the perception of decency and was an invasion into another man's privacy.[57]

It is not just the issue of disclosure of personal details of public officials that raises complicated questions regarding the right to information, but the opposite is equally true, i.e. what about seemingly "public" details of private individuals. A very complicated question arose with regard to information relating to the passport details of private individuals.

Passport Information of Private Individuals
The disclosure of passport details of private individuals is complicated because for a long time there was some confusion because of the treatment to be given to passport details, i.e. would its disclosure cause an invasion of privacy since it contains personally identifying information, specially because photocopies of the passport are regularly given for various purposes such as travelling, getting a new phone connection, etc. The Central Information Commission used a somewhat convoluted logic that since a person providing information relating to his residence and identity while applying for a passport was engaging in a public activity therefore such information relates to a public activity and should be disclosed. This view was rejected by the Delhi High Court in the case of Union of India v. Hardev Singh,[58] and the view taken inHardev Singh was later endorsed and relied upon in Union of India v. Rajesh Bhatia, [59] while hearing a number of petitions to decide what details of a third party's passport should be disclosed and what should be exempt from disclosure.

A list of the Courts conclusions is given below:

Information that can be revealed:

(i) Name of passport holder;

(ii) Whether a visa was issued to a third party or not;

(iii) Details of the passport including dates of first issue, subsequent renewals, dates of application for renewals, numbers of the new passports and date of expiry;

(iv) Nature of documents submitted as proof;

(v) Name of police station from where verification for passport was done;

(vi) Whether any report was called for from the jurisdictional police;

(vii) Whether passport was renewed through an agent or through a foreign embassy;

(viii) Whether it was renewed in India or any foreign country;

(ix) Whether tatkal facility was availed by the passport holder;

Information that cannot be revealed:

(i) Contents of the documents submitted with the passport application;

(ii) Marital status and name and address of husband;

(iii) Whether person's name figures as mother/guardian in the passport of any minor;

(iv) Copy of passport application form;

(v) Residential address of passport holder;

(vi) Details of cases filed/pending against passport holder;

(vii) Copy of old passport;

(viii) Report of the police and CID for issuing the passport;

(ix) Copy of the Verification Certificate, if any such Verification Certificate was relied upon for the issue of the passport.

Other Instances

Apart from the above two broad categories of information that has been the subject of intense judicial discussion, certain other situations have also arisen where the Courts have had to decide the issue of disclosure under section 8(1)(j), a brief summary of such situations is given below:

(i) names and details of people who received money as donations from the President out of public funds was considered as information which has a definite link to public activities and was therefore liable to be disclosed;[60]

(ii) information regarding the religion practiced by a person, who is alleged to be a public figure, collected by the Census authorities was not disclosed since it was held that the quest to obtain the information about the religion professed or not professed by a citizen cannot be in any event; [61]

(iii) information regarding all FIRs against a person was not protected under section 8(1)(j) since it was already a matter of public record and Court record and could not be said to be an invasion of the person's privacy;[62]

(iv) information regarding the income tax returns of a public charitable trust was held not to be exempt under section 8(1)(j), since the trust involved was a public charitable trust functioning under a Scheme formulated by the District Court and registered under the Bombay Public Trust Act as such due to its character and activities its tax returns would be in relation to public interest or activities.[63]

Conclusion

A discussion of the provisions of section 8 and 11 of the RTI Act as well as the case laws under it reveals that the legislature was aware of the dangers posed to the privacy of individuals from such a powerful transparency law. However, it did not want the exceptions carved out to protect the privacy of individuals to nullify the objects of the RTI Act and therefore drafted the legislation to incorporate the principle that although the RTI Act should not be used to violate the privacy of individuals, such an exception will not be applicable if a larger public interest is to be served by the disclosure. This principle is in line with other common law jurisdictions such as the U.K, Austalia, Canada, etc. which have similar exceptions based on privacy or confidentiality.

However it is disappointing to note that the legislature has only left the legislation at the stage of the principle which has left the language of the exception very wide and open to varied interpretations. It is understandable that the legislature would try to keep specifics out of the scope of the section to make it future proof. It is obvious that it would be impossible for the legislature or the courts to imagine every single circumstance that could arise where the right to information and the right to privacy would be at loggerheads. However, such wide and ambiguous drafting has led to cases where the Courts and the Central Information Commission have taken opposing views, with the views of the Court obviously prevailing in the end. This was illustrated by the issue of disclosure of passport details of private individuals with a large number of CIC cases taking different views till the High Court of Delhi gave categorical findings on the issue in the Hardev Singh and Rajesh Bhatia cases. Similar was the issue of service details of public officials since before the decision of the Supreme Court in the case of Girish Ramchandra Deshpande in 2012 the prevailing thinking of the CIC was that details of disciplinary proceedings against public officials are not covered by section 8(1)(j), however this thinking has now taken a U-turn as the Supreme Court's understanding of the right to privacy has taken stronger roots and such information is now outside the scope of the RTI Act, unless a larger public interest in the disclosure can be shown.

The ambiguity that arises in application when trying to balance the right to privacy against the right to information is a drawback in incorporating only a principle and leaving the language ambiguous in any legislation. This paper does not advocate that the legislature try to list out all the instances of this problem that are possibly imaginable, this would be too time consuming and may even be counterproductive. However, it is possible for the legislature to adopt an accepted practice of legislative drafting and list certain instances where there is an obvious balancing required between the two rights and put them as "Illustrations" to the section. This device has been utilised to great effect by some of the most fundamental legislations in India such as the Contract Act, 1872 and the Indian Penal Code, 1860. An alternative to this approach could be to utilize the approach taken in the Australian Freedom of Information Act, where the Act itself gives certain factors which should be considered to determine whether access to a particular document would be in the public interest or not.

List of References

Primary Sources

1. Australia Freedom of Information Act, 1982.

2. Bennet Coleman v. Union of India, AIR 1973 SC 106.

3. Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

4. Calcutta High Court, WP (W) No. 33290 of 2013, dated 20-11-2013.

5. Canadian Access to Information Act.

6. Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667

7. Constitution of India, 1950.

8. Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

9. Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

10. Jamia Millia Islamia v. Sh. Ikramuddin, Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

11. Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

12. Kharak Singh v. State of U.P., AIR 1963 SC 129.

13. Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978.

14. Naz Foundation Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

15. P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

16. Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82.

17. President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

18. Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

19. R. Rajagopal v. Union of India, Supreme Court of India, dated 7-10-1994.

20. Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

21. Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

22. Right to Information Act, 2005

23. Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

24. Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

25. Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

26. Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

27. Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd., (1995) 5 SCC 139.

28. U.K. Freedom of Information Act, 2000.

29. UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

30. Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151

31. Union of India v. Hardev Singh WP(C) 3444 of 2012 dated 23-08-2013.

32. Union of India v. Rajesh Bhatia WP(C) 2232/2012 dated 17-09-2013.

33. Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

34. Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

Secondary Sources

1. "Country Report for U.K.", Privacy International, available at https://www.privacyinternational.org/reports/united-kingdom.

2. "Country Report for Australia", Privacy International, available at https://www.privacyinternational.org/reports/australia.

3. "Country Report for Canada", Privacy International, available at https://www.privacyinternational.org/reports/canada.

[1] AIR 1973 SC 106. This case held that the freedom of the press embodies in itself the right of the people to read.

[2] (1995) 5 SCC 139.

[3] AIR 1963 SC 129.

[4] Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[5] Section 8(1) in its entirety states as follows:

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

[6] Section 11 of the RTI Act.

[7] The Registrar General v. A. Kanagaraj, (Madras High Court, 14 June 2013, available at http://www.indiankanoon.org/doc/36226888/.

[8] Arvind Kejriwal v. Central Public Information Officer, (Delhi High Court, 30 September 2011, available at http://www.indiankanoon.org/doc/1923225/.

[9] Sections 40 and 41 of the U.K. Freedom of Information Act, 2000.

[10] Section 11A read with section 47-F of the Australia Freedom of Information Act, 1982.

[11] Section 19 of the Canadian Access to Information Act.

[12] Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

[13] Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

[14] Articles 14, 19(1)(a) and 21 of the Constitution of India, 1950.

[15] Calcutta High Court, WP(W) No. 33290 of 2013, dated 20-11-2013.

[16] Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

[17] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

[18] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom), para 14. Where the Court held that since the medical records of a convict cannot be denied to Parliament or State legislature therefore they cannot be exempted from disclosure under the Act.

[19] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[20] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[21] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[22] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[23] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[24] Jamia Millia Islamia v. Sh. Ikramuddin , Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

[25] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[26] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[27] AIR 1963 SC 129.

[28] Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

[29] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012. This ruling was overturned by a Division Bench of the High Court relying upon a subsequent Supreme Court ruling, however, it could be argued that the Division Bench did not per se disagree with the discussion and the principles laid down in this case, but only the way they were applied.

[30] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[31] Right to equality.

[32] Freedom of speech and expression.

[33] Right to life.

[34] Article 19(2) of the Constitution of India, 1950.

[35] Article 19(5) of the Constitution of India, 1950.

[36] Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978. The test laid down in this case is universally considered to be that the procedure established by law which restricts the fundamental right should be just, fair and reasonable.

[37] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[38] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[39] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975. However the Court later used phrases such as "reasonable restriction in public interest" and "reasonable restriction upon it for compelling interest of State" interchangeably which seems to suggest that the terms "compelling public interest" and "compelling state interest" used by the Court are being used synonymously and the Court does not draw any distinction between them. It is also important to note that the wider phrase "countervailing interest is shown to be superior" seems to suggest that it is possible, atleast in theory, to have other interests apart from public interest or state interest also which could trump the right to privacy.

[40] R. Rajagopal v. Union of India , Supreme Court of India, dated 7-10-1994. These tests have been listed as one group since they are all applicable in the specific context of publication of private information.

[41] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[42] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010. Also see Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[43] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667. This case also held that information cannot be denied on the ground that it would be too voluminous.

[44] Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151; Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012

[45] 2012 (119) AIC 105 (SC).

[46] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[47] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[48] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667.

[49] Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

[50] UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

[51] Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

[52] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[53] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[54] R.K. Jain v. Union Public Service Commission, Delhi High Court, LPA No. 618 of 2012, dated 12-11-2012.

[55] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[56] Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

[57] Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82. It must be mentioned that this case was not exactly under the procedure prescribed under the RTI Act but was a public interest litigation although the courts relied upon the provisions of the RTI Act.

[58] WP(C) 3444 of 2012 dated 23-08-2013.

[59] WP(C) 2232/2012 dated 17-09-2013.

[60] President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

[61] P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

[62] Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

[63] Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

For more details visit https://cis-india.org/internet-governance/blog/white-paper-on-rti-and-privacy-v-1.2