Centre for Internet and Society

Making Aadhaar Mandatory: Gamechanger For Governance?

praskrishna — 2016-03-24T06:50:10Z

Why a programme that both the Congress and the BJP have hailed as transformational has divided Parliament this week? The Aadhaar Bill which was passed this week aims at facilitating government benefits and subsidies to citizens said Finance Minister Arun Jaitley.

Yet it became a reason for the Rajya Sabha to raise key questions. On the panel - Chandan Mitra, Rajya Sabha MP, BJP; Ajoy Kumar, Spokesperson, Congress; Tathagat Sathapathy, Lok Sabha MP, Biju Janata Dal; Rajeev Chandrashekhar, Rajya Sabha MP; Sunil Abraham, Executive Director, Centre for Internet & Society; and Shekhar Gupta, Senior Journalist.

Video

Link to NDTV website

For more details visit https://cis-india.org/internet-governance/news/ndtv-march-20-2016-making-aadhaar-mandatory-gamechanger-for-governance

Aadhaar data of over 89 lakh MNREGA workers in Andhra Pradesh leaked online

Admin — 2018-05-05T08:43:53Z

Independent security researcher Kodali Srinivas tweeted screenshots of Aadhaar data of 89,38,138 MNREGA workers available on the Andhra Pradesh Benefit Disbursement Portal.

The article was published in New Indian Express on April 27, 2018.

Independent security researcher Kodali Srinivas, who exposed the leakage of Aadhaar and other personal data of 1.34 lakh beneficiaries on the State Housing Corporation website, on Thursday tweeted screenshots of Aadhaar data of 89,38,138 MNREGA workers availalbe on the Andhra Pradesh Benefit Disbursement Portal, which is maintained by APOnline, a joint venture between the Tata Consultancy Services (TCS) and the State government.

Hours after he blew the whistle, the website administrators began masking the data. In May 2017, Srinivas had co-authored a report for the Centre for Internet and Society, exposing how the Aadhaar data of 13.5 crore card holders was leaked online. The data was then leaked by four government portals, National Social Assistance Programme, National Rural Employment Guarantee Scheme, Chandranna Bima Scheme of the Government of Andhra Pradesh and Daily Online Payment Reports of NREGA of the Government of Andhra Pradesh.

It appears that almost a year later, nothing much has changed. Srinivas told TNIE he had sent a mail to the chief operating officer, APOnline and Universal Identification Authority of India, the National Critical Information Infrastructure Protection Centre, and CERT-In, the Centre's cyber response wing. When contacted, Balasubramanyam, Joint Secretary (NREGS) told TNIE, "I have seen it. It is Benefit Disbursement Portal... not maintained by us. We have been very careful ever since that massive leak of data last year."

Executive (operations), APOnline, S Chandramouleeswara Reddy refused comment saying that he was not the competent authority to speak on the issue. APOnline developed ICT solution for MGNREGA scheme, a framework involving Department of Posts, for disbursement of entitlements after accurate authentication of the entitlements through finger print authentication. TCS implements the ICT solution for MGNREGA in the State.

For more details visit https://cis-india.org/internet-governance/news/new-indian-express-april-26-2018-aadhaar-data-over-89-lakh-mnrega-workers-in-andhra-pradesh-leaked-online

Aadhaar Remains an Unending Security Nightmare for a Billion Indians

Admin — 2018-05-13T16:28:40Z

Yesterday was the 38th and last day of hearings in the Supreme Court case challenging the constitutional validity of India’s biometric authentication programme. After weeks of arguments from both sides, the Supreme Court has now reserved the matter for judgement.

The article by Karan Saini was published in the Wire on May 11, 2018.

Since its inception, the Aadhaar project has lurched from controversy to scandal. In the last two years, the debate has heavily centred around issues of data security, privacy and government overreach. This debate, unfortunately, like with most things Aadhaar, has been obfuscated in no small part due to the manner in which the Unique Identification Authority of India (UIDAI) reacts to critical public discussion.

As India waits for the apex court’s judgement, this is as good time as any to take stock of the security and privacy flaws underpinning the Aadhaar ecosystem.

Poor security standards

Let’s start with the lackadaisical attitude towards information security. As has become evident in the past, harvesting and collecting Aadhaar numbers – or acquiring scans and prints of valid Aadhaar cards – has become a trivial matter.

There are several government websites which implement Aadhaar authentication while at the same time lack in basic security practices such as the use of SSL to encrypt user traffic and/or the use of captchas to protect against brute-force or scraping attacks. This includes the biometric attendance website of the Director General of Foreign Trade, the website for the National Food Security Mission and the Medleapr website.

With numerous government websites being susceptible, problematic issues such as the use of open directories to store sensitive data gives us a look into how even the bare minimum – when it comes to adhering to security best practices – isn’t enforced across the gamut of websites which interface with Aadhaar.

It should not be acceptable practice to have government websites with open web directories containing PDF scans of dozens of Aadhaar cards available for just about anyone to view and/or download. Yet, over the past year and even before, many government websites have been found to either inadvertently or knowingly publish this information without much regard for the potential consequences it could have.

The UIDAI has repeatedly shown an attitude of hostility and dismissiveness when it comes to fixing security and privacy issues which are present in the Aadhaar ecosystem. It has also shown no signs of how it plans to tackle this problem.

In my personal experience as a security researcher, I have found and reported a cache of more than 40,000 scanned Aadhaar cards being available through an unsecured database managed by a private company, which relied on those scans for the purposes of verifying and maintaining records of their customers.

What’s worse is that the media reports regarding Aadhaar information being exposed may only be scratching the surface of the issue as more data may actually be susceptible to access and theft, and simply yet to be found and publicly reported. For example, data could be leaking through publicly available data stores of third-party companies interfacing with Aadhaar, or through inadequately secured API and sensitive portals without proper access controls.

Not all security incidents become a matter of public knowledge, so what we know at any given point about the illegal exposure of Aadhaar information may just be a glimpse of what is actually out there.

It should be acknowledged that the possession of these 12-digit numbers and their corresponding demographic information can open up room for potential fraud – or at the very least make it easier for criminals to carry out identity theft and SIM and banking fraud.

A detailed analysis of all publicly-reported Aadhaar-related or Aadhaar-enabled fraud over the last few years shows that the problem is not only real but deserves far more attention than what it has received so far.

Threat level infinity

Taking a step back, it’s clear that the Aadhaar project snowballed into an ecosystem that it now struggles to control.

For instance, demographic information – as is stated in the draft for the Aadhaar Act (NIDAI Bill 2010) – was originally considered confidential information, meaning no entity could request your demographic information such as name, address, phone number etc. for purposes of eKYC.

However, as the ecosystem has progressed, the implementation and usage of eKYC have also changed and grown significantly with companies like PayTM utilising eKYC for the purposes of requesting and verifying customer information. It should be considered that data which has been collected by any of these companies through Aadhaar can be accessed by them in the future for an indefinite period of time depending on their own policies regarding storage and retention of the data.

If there ever is a breach of the CIDR or a mirrored silo containing a significant amount of Aadhaar-related data, it would directly affect more than one billion people. To put this in perspective, it would easily be the single largest breach of data in terms of the sheer number of people affected and it would have far-reaching consequences for everyone affected which might be very hard to offset.

On a comparatively smaller scale – although just as serious, if not more in terms of potential implications – would be a breach of any given state’s resident data hub (SRDH) repository. In some cases, SRDHs have been known to integrate data acquired from other sources containing information regarding parameters such as caste, banking details, religion, employment status, salaries, and then linking the same to residents’ corresponding Aadhaar data.

Damage control would be costly and painstaking due to the number of people enrolled. What adds to the disastrous consequences is that one cannot just deactivate their Aadhaar or opt-out of the programme the way they would with say a compromised Facebook or Twitter account. You can always deactivate Facebook. You cannot deactivate your Aadhaar. It should be noted that even with biometrics set to ‘disabled’, Aadhaar verification transactions can be verified through OTP.

Additionally, the Aadhaar ecosystem is such that information about individuals can be accessed not just from UIDAI servers but also from other third-party databases where Aadhaar numbers are linked with their own respective datasets. Due to this aspect – multiple points of failure are introduced for possible compromise of data, especially because third-party databases are almost certainly not as secure as the CIDR.

Recently, after taking a closer look at the ecosystem of websites which incorporate the use of Aadhaar based authentication, I discovered that it was possible to extract the phone number linked to any given Aadhaar through the use of websites which poorly implemented Aadhaar text-based (OTP) authentication.

This process worked by first retrieving the last four digits of the phone number linked to an Aadhaar using any website which reveals this information (this includes DigiLocker, NFSM.gov.in and seems to be standard practice which seems to be enforced by UIDAI) and then performing an enumeration attack on the first six digits using websites which allow the user to provide both their Aadhaar number and the verified phone number linked to it.

This again highlights that while secure practices might be followed by the UIDAI, the errors in implementation and other flaws are introduced neverthelessby third parties who interface with Aadhaar, posing a risk to the privacy and security of its data.

The bank mapper rabbit hole

As of February 24, 2017, it was possible to retrieve bank linking status information directly from UIDAI’s website without any prior verification.

However, after this information was reported, the ‘uidai.gov.in’ website was updated to first require requesters to prove their identity before retrieving Aadhaar bank-linking data from the endpoint on their website.

A year later – when business technology news site ZDNet published their report regarding a flawed API on the website of a state-owned utility company (later revealed to be Indane) – part of the data revealed included bank linking status information which was identical to what was previously revealed on UIDAI’s website without proper authentication.

This suggests that both the Indane API and UIDAI website utilised the National Payments Corporation of India (NPCI) to retrieve bank-linking data – but as of now, this remains conjecture since Indane never put out a statement or gave a public comment regarding the flawed API on their website.

More importantly, what this also suggests is that the NPCI never placed any controls or security mechanisms (such as request throttling or access controls) on the lookup requests it processed for the UIDAI (and seemingly for Indane as well).

This means that while the UIDAI may have fixed their website to not reveal bank linking data without proper verification – the issue was not rectified at its core by the NPCI – allowing the same to happen a year later in Indane’s case. This practice also classifies as a case of security through obscurity, which “is the belief that a system of any sort can be secure so long as nobody outside of its implementation group is allowed to find out anything about its internal mechanisms”.

Who is on the hook?

There is a lack of needed accountability when it comes to data breaches. Have any of the organisations against whom allegations of data breach been made been investigated and acted on? Have fines been imposed on those responsible for allowing access/theft of user data? Have there been reports published by any of the affected organisations in which they investigate any alleged breaches to either provide insight regarding the breach and its impact, the scale of data accessed, logs of access and other crucial evidence or dismiss the allegations by proving that there was no intrusion which took place?

Most of the times, organisations do not even accept that a breach has taken place, let alone take responsibility for the same and strive to better protect user data in the future.

Switching to ‘PR spin mode’ should never be the answer when dealing with the data of billion-plus Indian citizens and residents. This can be observed in almost all cases where a breach or security lapse was alleged.

The UIDAI has also acquired the dubious reputation of sending legal notices and slapping cases on journalists and security researchers who seek to highlight the security and privacy problems ailing the Aadhaar infrastructure.

In March 2017, a case against Sameer Kochhar – chairman of the Skoch Group – was filed on the basis of a complaint from Yashwant Kumar of the UIDAI allegedly for “spreading rumours on the internet about vulnerability of the Aadhaar system”. Kochhar had written an article in February 2017 titled “Is a Deep State at Work to Steal Digital India?” in which a request replay attack on biometric Aadhaar authentication was demonstrated.

Two months later, The Centre for Internet and Society published a report regarding several government websites which were inadvertently leaking millions of Aadhaar card numbers. A few days after this report was published, the UIDAI sent a legal notice to the organisation, stating that the people involved with the report had to be “brought to justice”.

In January 2018, an investigative story was published by Rachna Khaira of The Tribune newspaper – in which she reported that access to an Aadhaar portal was being sold by “agents” for as cheap as Rs 500. In response to this story – the UIDAI first sought to discredit the investigative work by calling it a ‘case of misreporting’ – after which they attempted to downplay the magnitude of the report by citing that biometrics were safe and had not been breached.

Following this, the Delhi crime branch registered an FIR against the reporter and others named in the article on the basis of a complaint by a UIDAI official, with charges ranging from forgery, cheating by impersonation and unauthorised access of a computer system.

In March 2018, ZDNet published a report about Aadhaar-related data leaking from an unsecured API on a utility provider’s website. This was the result of days of testing to first confirm the existence issue and its scope. It was preempted by more than a month of attempted communication through several channels of communication – email, phone, even direct messages via Twitter – with both Indane and the UIDAI (and even the Indian Consulate in New York).

But still, when the report was published after a lack of acknowledgement/response from affected parties, the UIDAI was quick to deny the report as well as any possibility of such a thing occurring. The Aadhaar agency then released a statement in which they said they were ‘contemplating legal action’ against the publication of their report.

Data security and privacy laws won’t do much to affect the dismissive and hostile attitude the UIDAI seems to have regarding the people that investigate and report on security and privacy issues relating to Aadhaar.

Hide and seek

In general, when it comes to reports of security breaches and security incidents, many authorities in India prefer playing the blame-game. This was seen latest in response to an internal letter (ironically marked as ‘SECRET’) that was circulated on social media – which mentioned that data was stolen from the Aadhaar Seeding portal of the EPFO by hackers exploiting a known vulnerability in the Apache Struts framework.

Following this – the EPFO quickly switched to PR mode and publicly issued a statement through their official Twitter account (@socialepfo) denying the breach – saying that “There is no leak from EPFO database. We have already shut down the alleged Aadhaar seeding site run by Common Service Centres on 22.03.2018.”

Every time reports of a potential breach or leak of data circulate, Indian government agencies are quick to come out and announce that no breach has taken place. However, this is always to be taken just on the basis of their saying so, as opposed to the reports which they’re meant to be arguing (in some cases) contain verifiable evidence which is the result of arduous investigative work.

Regardless, passing around the blame and in cases completely denying security incidents is not something authorities should be doing when it concerns the data of more than a billion people.

In response to a recent story by Asia Times regarding Aadhaar enrolment software being cracked and sold, the UIDAI sought to discredit and discount the report through messages shared on their social media profiles – where they stated that the report was “baseless, false, misleading and irresponsible”.

The UIDAI should have an interest in protecting any and all data which stems from or relates to Aadhaar as it has to do with a project they are ultimately responsible for. It should not matter whether the leak occurred from a portal on EPFO’s website, an API without proper access controls on Indane’s website, a website of the Andhra Pradesh state government, through biometric request replay attacks, through sold access to admin portals and cracked software, or however else. It should ultimately be the UIDAI’s responsibility to not only be reactive about these issues when they’re brought to light but to do so in such a way which does not hinder reporters from continuing their work.

Additionally, if the UIDAI wishes to keep its systems as secure as they could be – they should proactively seek such reports about flaws or vulnerabilities in critical infrastructure pertaining to their project.

The way forward

In April 2018, the head of the Indian Computer Emergency Response Team (CERT-IN), rather defensively noted that “not a single person had reported any incident” to the organisation.

CERT-In, a part of the IT ministry, is the central agency responsible for dealing with security issues and incidents. To put it bluntly, it has not done a very great job of outreach when it comes to the people it ultimately relies on: security researchers and hackers.

In India, there is an abundance of skills and talent when it comes to IT security and this could be of immense help to organisations responsible for managing critical infrastructure – but only if they cared enough to utilise it to the fullest extent.

Ajay Bhushan Pandey, the CEO of UIDAI, promised a secure and legal bug reporting environment for the Aadhaar ecosystem sometime in 2017. However, almost a year later, there are no tangible signs of any steps being taken to ensure the same. In fact, the UIDAI would already be straying from their usual course of action if they stopped harassing people reporting on issues of security and privacy with regard to Aadhaar.

It has been suggested that the UIDAI employ a bug bounty programme – which involves rewarding hackers with monetary compensation or through means such as an addition to a ‘Security Hall of Fame’ as an incentive.

I personally believe that there is no need for a bug bounty programme in its traditional sense – meaning that UIDAI should not have to provide material incentives to attract hackers to report valid issues to them. Simply acknowledging the work of those that discover and report valid issues should more than likely be incentive enough to get talent on-board.

The US Department of Defense (DoD) employs a similar approach where they invite hackers from the world over to test their systems for security vulnerabilities/bugs and then report them in a responsible manner. What the hackers get in return is the acknowledgement of their skill and devotion to ensuring the security of DoD’s platform. Something similar needs to be set up with regard to critical information infrastructures in India so that issues can be reported by anyone who wishes to do so – without hassle and/or fear of persecution hanging over the heads of hackers.

For more details visit https://cis-india.org/internet-governance/news/the-wire-karan-saini-may-11-2018-aadhaar-remains-an-unending-security-nightmare-for-a-billion-indians

Indian Cricket Board Exposes Personal Data of Thousands of Players

Admin — 2018-05-18T05:01:50Z

The IT security researchers at Kromtech Security Center discovered a trove of personal and sensitive data belonging to around 15,000 to 20,000 Indian applicants participating in cricket seasons 2015-2018.

The blog post was published on Hack Read on May 15, 2018.

The authority responsible for protecting this data was The Board of Control for Cricket in India (BCCI) but it was left exposed to the public in two misconfigured AWS (Amazon Web Service) S3 cloud storage buckets.

According to the analysis from Kromtech researchers, the data was divided into different categories of players including those under 19 years old. The data was accessible to anyone with an Internet connection and basic knowledge of using AWS cloud storage.

The data was discovered earlier this month and included names, date of birth, place of birth, permanent addresses, email IDs, proficiency details, medical records, birth certificate number, passport number, SSC certificate number, PAN card number, mobile number, landline and phone number of the person who can be contacted in case of emergency.

Screenshot of one of the files that were exposed (Image credit: Kromtech)

At the time of publishing this article, the BCCI was informed by Kromtech researchers and both misconfigured buckets were secured. However, this is not the first time when such sensitive information was leaked online. In 2017, Bangalore-based Centre for Internet and Society (CIS) found that names, addresses, date of birth, PAN card details, Aadhaar card numbers and other relevant details of millions of Indian citizen could be found with just a simple Google search.

On the other hand, lately, AWS buckets have been making headlines for the wrong reasons. Until now, there have been tons of cases in which misconfigured AWS buckets have been found carrying highly sensitive and confidential data such as classified NSA documents or details about US Military’s social media spying campaign.

In two such cases, malicious hackers were able to compromise AWS buckets belonging to Tesla Motors and LA Times to secretly mine cryptocurrency. Therefore, if you are an AWS user make sure your cloud server is properly secured.

For more details visit https://cis-india.org/internet-governance/news/hack-read-waqas-may-15-2018-indian-cricket-board-exposes-personal-data-of-thousands-of-players

Digital Native: Cause an Effect

nishant — 2018-06-26T15:21:01Z

Aadhaar is a self-contained safe system, its interaction with other data and information systems is also equally safe and benign.

The article was published in the Indian Express on June 17, 2018.

Statistically, it has been proven, that the consumption of ice cream in the country increases significantly in the summer months. In the same months, the number of housebreak incidents also increase. It might be possible, though ridiculous, to now make an argument that eating ice cream leads to increased frequencies of housebreakings, and, hence, sale and consumption of ice cream should be regulated more rigorously. The humour in this situation arises out of the fact that we know, at a very human level, that correlation is not the same as causation.

We know that just because two things happen in temporal or spatial proximity with each other doesn’t necessarily mean they are connected or responsible in a chain of events. This is because human communication is designed to make a distinction between cause-and-effect relationship and happened-together relationship between two sets of information.

However, when it comes to computation, things turn slightly different. Within the database logics of computation, two sets of data, occurring in the same instance, are subjected to a simple scrutiny: Either one of them is linked with the other, or, one of the two is noise, and, hence, needs to be removed from the system. Computation systems are foundationally anchored on logic. Within logical systems, all the events and elements described in the system are interlinked and have a causal relationship with each other. Computational learning systems, thus, do not have the capacity to make a distinction between causal and correlative phenomena.

This is why computation systems of data mining and profiling are so much more efficient than human cognition. Not only are these systems able to compute a huge range of data, but they are also able to make unprecedented, unforeseen, unexpected, and often unimagined connections between seemingly disparate and separate information streams. I present to you this simplified notion of computer logic because it is at the heart of the biometric identity-based debates around Aadhaar right now. Recently, Ajay Bhushan Pandey, CEO, UIDAI, wrote an opinion piece that insisted that the data collective mechanisms of Aadhaar are not only safe but also benign. His opinion is backed by Bill Gates, who also famously suggested that “Aadhaar in itself” is not dangerous.

And, in many ways, Gates is right, even if Pandey’s willful mischaracterisation of Gates’s statement is not. For Gates, a computer scientist looking at the closed architecture of the Aadhaar system, it might appear, that in as much as any digital system could be safe, Aadhaar is indeed safe. In essence, Gates’s description was, that as a logical system of computational architecture, Aadhaar is safe, and the data within it, in their correlation with each other, does not form any sinister networks that we need to worry about.

However, Pandey takes this “safe in itself” argument to extend it to the applications and implementations of Aadhaar. He argues that because Aadhaar is a self-contained safe system, its interaction with other data and information systems is also equally safe and benign. In this, Pandey, either out of ignorance or willful mischaracterisation, confuses correlation with causality. He refuses to admit that Aadhaar and the biometrics within that are the central focal point around which a variety of data transactions happen which produce causal links between disconnected subjects.

Thus, the presence of a digital biometric data set might not in itself be a problem, but when it became the central verification system that connects your cellphone with your geolocation data, your presence and movement with your bank account and your income tax returns, your food and lifestyle consumption with your medical records, it starts a causal link between information which was hitherto unconnected, and, hence, considered trivial.

The alarm that the critics of Aadhaar have been raising is not about whether the data on Aadhaar is safe or not, but, how, in the hands of unregulated authorities, the correlations that Aadhaar generates and translates into causal profiles have dire consequences on the privacy and liberty of the individuals who carry the trace of Aadhaar in all facets of life. Pandey and his team of governors need to explain not the safety of Aadhaar but what happens when the verification information of Aadhaar is exploited to create non-human correlations of human lives, informing policy, penalisation and pathologisation through these processes.

For more details visit https://cis-india.org/raw/indian-express-nishant-shah-june-17-2018-digital-native-cause-an-effect

India's Latest Data Leak: People's Aadhaar Number And Bank Account Are Just One Google Search Away

Admin — 2018-07-13T15:18:46Z

Even Truecaller doesn't reveal this much.

The article by Gopal Sathe was published in Huffington Post on July 12, 2018.

Imagine being able to hack someone's personal data simply by entering their mobile phone number into a Google search. There is a website of the Andhra Pradesh government that's leaking people's phone numbers, Aadhaar numbers, father's names, passbook and bank account numbers, and the district and mandal where they live - all the link to all this information is the first result you get when you search for the phone numbers of people in the database.

The Andhra government has been leaking the personal data of more than 23,000 farmers who have received subsidies from the Andhra Pradesh Medicinal and Aromatic Plants Board, and organisation that encourages the growth of Ayurvedic medicines in the state. The subsidies are offered to farmers and tribals in the state, and all their personal data is available on an open database on an Andhra Government website.

The information is not behind any access control, and you can see all the records, click on them to get the details of anyone, or download everything as an Excel sheet. But what's perhaps worse is that simply by searching for the phone numbers of many of these farmers, we were able to find the detailed information about them. HuffPost India randomly chose a dozen farmers, and in each case, this database was the first result for their phone number on Google.

That's the most concerning part - in most cases, even when the information has leaked, it isn't readily apparent to people. You have to know the website address, or at the very least spend some time poring through dashboards. In the case of this latest leak, all you need is the person's phone number, and all their information is made visible. HuffPost India has reported this issue to the AP government, much like earlier leaks, although at the time of writing the data is still available online.

Who's held responsible?

This is just the latest in a long line of leaks from AP - in just the last few months, we've reported on a website that let you geo-locate homes on the basis of caste and religion; while another tracked all the medicines people buy, such as generic viagra, along with their phone numbers; and one that tracked pregnant women in ambulances in real time.

A government official we spoke to in AP Secretariat said that while all the departments have been digitised, an understanding of security - and privacy - is yet to come. "Even if you tell them, 'this data is not something you can publish', they disagree and say that it is needed for the beneficiaries to be able to access their own information," he explained.

Karan Saini, a security analyst and consultant who writes on issues of web security and privacy, told HuffPost that the various government departments are generally unresponsive when breaches like this are brought up.

"Lack of outreach is an issue with all of these organisations," said Saini. "NCIIPC is the only one that can even be found by someone looking at the surface. [These organisations] are hard to get a response from."

One reason for this, said Srinivas Kodali, a security researcher who has revealed a tremendous amount of leaks in the AP system, is that there is no official system of accountability in the government when it comes to data leaks.

In May 2017, the AP government passed the Andhra Pradesh Core Digital Data Authority Act, under which in section 37 it states that no legal proceeding shall lie against any officer or employee for anything which is in good faith done. What this means is that leaks and breaches are not something any official in the government can be held responsible for.

This act came out less than a month after the Centre for Internet and Society in Bengaluru published a report stating that 13 crore Aadhaar numbers were leaked - of which 2 crore were from Andhra Pradesh.

A lack of (human) resources

AP officials do acknowledge the problem. "There is a major shortage of cybersecurity professionals, and hiring them is a challenge," said V Premchand, head of the Andhra Pradesh Technology Service, who is in charge of the ongoing security work in the state. AP has seen a major security audit in May this year, and a privacy audit was announced last month.

"The work is ongoing but it is not something that can happen overnight," Premchand explained. However, others argue that the government isn't doing enough to make use of existing manpower. Unlike other countries, the Indian government does not have any real bug bounty program, where security researchers are incentivised to report weaknesses to organisations for cash rewards and recognition.

Sai Krishna Kothapalli, a student at IIT Guwahati and a security researcher, told HuffPost that the government actively discourages security experts from providing their support, rather than encouraging them.

"The US Department of Defense and others have a responsible disclosure program and a lot of people from India take part in that," he said. "Our talent is being used by them instead because the government here does not reply at all."

"India's top hackers are being employed by people outside the country, even though we have the talent here, because will you spend the time and effort to be ignored here, or report issues to a US company and make thousands of dollars instead?"

However, security audits in India are only being carried out by agencies that have been empaneled, and most of the hackers active here don't have the certification, he added. "They're too busy actually doing the work, while these big companies do audits, and leave all kinds of security issues behind."

For more details visit https://cis-india.org/internet-governance/news/huffington-post-gopal-sathe-july-12-2018-indias-latest-data-leak-is-so-basic-that-peoples-aadhaar-number-bank-account-and-fathers-name-are-just-one-google-search-away

The Centre for Internet and Society’s Comments and Recommendations to the: Indian Privacy Code, 2018

Shweta Mohandas, Elonnai Hickok, Amber Sinha and Shruti Trikanand — 2018-07-20T13:55:46Z

The debate surrounding privacy has in recent times gained momentum due to the Aadhaar judgement and the growing concerns around the use of personal data by corporations and governments.

Click to download the file here

As India moves towards greater digitization, and technology becomes even more pervasive, there is a need to ensure the privacy of the individual as well as hold the private and public sector accountable for the use of personal data. Towards enabling public discourse and furthering the development a privacy framework for India, a group of lawyers and policy analysts backed by the Internet Freedom Foundation (IFF) have put together a draft a citizen's bill encompassing a citizen centric privacy code that is based on seven guiding principles.^{^[1]} This draft builds on the Citizens Privacy Bill, 2013 that had been drafted by CIS on the basis of a series of roundtables conducted in India.^{^[2]} Privacy is one of the key areas of research at CIS and we welcome this initiative and hope that our comments make the Act a stronger embodiment of the right to privacy.

Section by Section Recommendations

Preamble

Comment: The Preamble specifies that the need for privacy has increased in the digital age, with the emergence of big data analytics.

Recommendation: It could instead be worded as ‘with the emergence of technologies such as big data analytics’, so as to recognize the impact of multiple technologies and processes including big data analytics.

Comment: The Preamble states that it is necessary for good governance that all interceptions of communication and surveillance be conducted in a systematic and transparent manner subservient to the rule of law.

Recommendation: The word ‘systematic’ is out of place, and can be interpreted incorrectly. It could instead be replaced with words such as ‘necessary’, ‘proportionate’, ‘specific’, and ‘narrow’, which would be more appropriate in this context.

Chapter 1 Preliminary

Section 2: This Section defines the terms used in the Act.

Comment: Some of the terms are incomplete and a few of the terms used in the Act have not been included in the list of definitions.

Recommendations:

The term “effective consent” needs to be defined. The term is first used in the Proviso to Section 7(2), which states “Provided that effective consent can only be said to have been obtained where...:”It is crucial that the Act defines effective consent especially when it is with respect to sensitive data.
The term “open data” needs to be defined. The term is first used in Section 5 that states the exemptions to the right to privacy. Subsection 1 clause ii states as follows “the collection, storage, processing or dissemination by a natural person of personal data for a strictly non-commercial purposes which may be classified as open data by the Privacy Commission”. Hence the term open data needs to be defined in order to ensure that there is no ambiguity in terms of what open data means.
The Act does not define “erasure”, although the term erasure does come under the definition of destroy (Section 2(1)(p)). There are some provisions that use the word erasure , hence if erasure and destruction mean different acts then the term erasure needs to be defined, otherwise in order to maintain uniformity the sections where erasure is used could be substituted with the term “destroy” as defined under this Act.
The definition of “sensitive personal data” does not include location data and identification numbers. The definition of sensitive data must include location data as the Act also deals in depth with surveillance. With respect to identification numbers, the Act needs to consider identification numbers (eg. the Aadhaar number, PAN number etc.) as sensitive information as this number is linked to a person's identity and can reveal sensitive personal data such as name, age, location, biometrics etc. Example can be taken from Section 4(1) of the GDPR^{^[3]} which identifies location data as well as identification numbers as sensitive personal data along with other identifies such as biometric data, gender race etc.
The Act defines consent as the “unambiguous indication of a data subject’s agreement” however, the definition does not indicate that there needs to be an informed consent. Hence the revised definition could read as follows “the informed and unambiguous indication of a data subject’s agreement”. It is also unclear how this definition of consent relates to ‘effective consent’. This relationship needs to be clarified.
The Act defines ‘data controller’ in Section 2(1)(l) as “ any person including appropriate government..”. In order to remove any ambiguity over the definition of the term person, the definition could specify that the term person means any natural or legal person.
The Act defines ‘data processor’ in Section (2(1)(m) as “means any person including appropriate government”. In order to remove any ambiguity over the definition of the term ‘any person’, the definition could specify that the term person means any natural or legal person.

CHAPTER II

Right to Privacy

Section 5: This section provides exemption to the rights to privacy.

Comment: Section 5(1)(ii) states that the collection, storage, processing or dissemination by a natural person of personal data for a strictly non-commercial purposes are exempted from the provisions of the right to privacy. This clause also states that this data may be classified as open data by the Privacy Commission. This section hence provides individuals the immunity from collection, storage, processing and dissemination of data of another person. However this provision fails to state what specific activities qualify as non commercial use.

Recommendation: This provision could potentially be strengthened by specifying that the use must be in the public interest. The other issue with this subsection is that it fails to define open data. If open data was to be examined using its common definition i.e “data that can be freely used, modified, and shared by anyone for any purpose”^{^[4]} then this section becomes highly problematic. As a simple interpretation would mean that any personal data that is collected, stored, processed or disseminated by a natural person can possibly become available to anyone. Beyond this, India has an existing framework governing open data. Ideally the privacy commissioner could work closely with government departments to ensure that open data practices in India are in compliance with the privacy law.

CHAPTER III

Protection of Personal Data

PART A

Notice by data controller

Section 6: This section specifies the obligations to be followed by data controllers in their communication, to maintain transparency and lays down provisions that all communications by Data Controllers need to be complied with.

Comment: There seems to be a error in the Proviso to this section. The proviso states “Provided that all communications by the Data Controllers including but not limited to the rights of Data Subjects under this part shall may be refused when the Data Controller is, unable to identify or has a well founded basis for reasonable doubts as to the identity of the Data Subject or are manifestly unfounded, excessive and repetitive, with respect to the information sought by the Data Subject ”.

Recommendation: The proviso could read as follows “The proviso states “Provided that all communications by the Data Controllers including but not limited to the rights of Data Subjects under this part may be refused when the Data Controller is…”. We suggest the use of the ‘may’ as this makes the provision less limiting to the rights of the data controller.

Additionally, it is not completely clear what ‘included but not limited to...’ would entail. This could be clarified further.

PART B

CONSENT OF DATA SUBJECTS

Section 10: This section talks about the collection of personal data.

Comment: Section 10(3) lays down the information that a person must provide before collecting the personal data of an individual.

Comment: Section 10(3)(xi) states as follows “the time and manner in which it will be destroyed, or the criteria used to Personal data collected in pursuance of a grant of consent by the data subject to whom it pertains shall, if that consent is subsequently withdrawn for any reason, be destroyed forthwith: determine that time period;”. There seems to be a problem with the sentence construction and the rather complex sentence is difficult to understand.

Recommendation: This section could be reworked in such as way that two conditions are clear, one - the time and manner in which the data will be destroyed and two the status of the data once consent is withdrawn.

Comment: Section 10(3)(xiii) states that the identity and contact details of the data controller and data processor must be provided. However it fails to state that the data controller should provide more details with regard to the process for grievance redressal. It does not provide guidance on what type of information needs to go into this notice and the process of redressal. This could lead to very broad disclosures about the existence of redress mechanisms without providing individuals an effective avenue to pursue.

Recommendation: As part of the requirement for providing the procedure for redress, data controllers could specifically be required to provide the details of the Privacy Officers, privacy commissioner, as well as provide more information on the redressal mechanisms and the process necessary to follow.

Section 11:This section lays out the provisions where collection of personal data without prior consent is possible.

Comment: Section 11 states “Personal data may be collected or received from a third party by a Data Controller the prior consent of the data subject only if it is:..”. However as the title of the section suggests the sentence could indicate the situations where it is permissible to collect personal data without prior consent from the data subject”. Hence the word “without” is missing from the sentence. Additionally the sentence could state that the personal data may be collected or received directly from an individual or from a third party as it is possible to directly collect personal data from an individual without consent.

Recommendation:The sentence could read as “Personal data may be collected or received from an individual or a third party by a Data Controller without the prior consent of the data subject only if it is:..”.

Comment: Section 11(1)(i) states that the collection of personal data without prior consent when it is “necessary for the provision of an emergency medical service or essential services”. However it does not specify the kind or severity of the medical emergency.

Recommendation: In addition to medical emergency another exception could be made for imminent threats to life.

Section 12: This section details the Special provisions in respect of data collected prior to the commencement of this Act.

Comment: This section states that all data collected, processed and stored by data controllers and data processors prior to the date on which this Act comes into force shall be destroyed within a period of two years from the date on which this Act comes into force. Unless consent is obtained afresh within two years or that the personal data has been anonymised in such a manner to make re-identification of the data subject absolutely impossible. However this process can be highly difficult and impractical in terms of it being time consuming, expensive particularly, in cases of analog collections of data. This is especially problematic in cases where the controller cannot seek consent of the data subject due to change in address or inavailability or death. This will also be problematic in cases of digitized government records.

Recommendation: We suggest three ways in which the issue of data collected prior to the Act can be handled. One way is to make a distinction on the data based on whether the data controller has specified the purpose of the collection before collecting the data. If the purpose was not defined then the data can be deleted or anonymised. Hence there is no need to collect the data afresh for all the cases. The purpose of the data can also be intimated to the data subject at a later stage and the data subject can choose if they would like the controller to store or process the data.The second way is by seeking consent afresh only for the sensitive data. Lastly, the data controller could be permitted to retain records of data, but must necessarily obtain fresh consent before using them. By not having a blanket provision of retrospective data deletion the Act can address situations where deletion is complicated or might have a potential negative impact by allowing storage, deletion, or anonymisation of data based on its purpose and kind.

Comment: Section (2)(1)(i) of the Act states that the data will not be destroyed provided that effective consent is obtained afresh within two years. However as stated earlier the Act does not define effective consent.

Recommendation: The term effective consent needs to be defined in order to bring clarity to this provision.

PART C

FURTHER LIMITATIONS ON DATA CONTROLLERS

Section 16: This section deals with the security of personal data and duty of confidentiality.

Comment: Section 16(2) states “ Any person who collects, receives, stores, processes or otherwise handles any personal data shall be subject to a duty of confidentiality and secrecy in respect of it.” Similarly Section 16(3) states “data controllers and data processors shall be subject to a duty of confidentiality and secrecy in respect of personal data in their possession or control. However apart from the duty of confidentiality and secrecy the data collectors and processors could also have a duty to maintain the security of the data.” Though it is important for confidentiality and secrecy to be maintained, ensuring security requires adequate and effective technical controls to be in place.

Recommendation: This section could also emphasise on the duty of the data controllers to ensure the security of the data. The breach notification could include details about data that is impacted by a breach or attach as well as the technical details of the infrastructure compromised.

Section 17: This section details the conditions for the transfer of personal data outside the territory of India.

Comment: Section 17 allows a transfer of personal data outside the territory of India in 3 situations- If the Central Government issues a notification deciding that the country/international organization in question can ensure an adequate level of protection, compatible with privacy principles contained in this Act; if the transfer is pursuant to an agreement which binds the recipient of the data to similar or stronger conditions in relation to handling the data; or if there are appropriate legal instruments and safeguards in place, to the satisfaction of the data controller. However, there is no clarification for what would constitute ‘adequate’ or ‘appropriate’ protection, and it does not account for situations in which the Government has not yet notified a country/organisation as ensuring adequate protection. In comparison, the GDPR, in Chapter V^{^[5]}, contains factors that must be considered when determining adequacy of protection, including relevant legislation and data protection rules, the existence of independent supervisory authorities, and international commitments or obligations of the country/organization. Additionally, the GDPR allows data transfer even in the absence of the determination of such protection in certain instances, including the use of standard data protection clauses, that have been adopted or approved by the Commission; legally binding instruments between public authorities; approved code of conduct, etc. Additionally, it allows derogations from these measures in certain situations: when the data subject expressly agrees, despite being informed of the risks; or if the transfer is necessary for conclusion of contract between data subject and controller, or controller and third party in the interest of data subject; or if the transfer is necessary for reasons of public interest, etc. No such circumstances are accounted for in Section 17.

Recommendation: Additionally, data controllers and processors could be provided with a period to allow them to align their policies towards the new legislation. Making these provisions operational as soon as the Act is commenced might put the controllers or processors guilty of involuntary breaching the provisions of the Act.

Section 19: This section states the special provisions for sensitive personal data.

Comment: Section 19(2) states that in addition to the requirements set out under sub-clause (1), the Privacy Commission shall set out additional protections in respect of:i.sensitive personal data relating to data subjects who are minors; ii.biometric and deoxyribonucleic acid data; and iii.financial and credit data.This however creates additional categories of sensitive data apart from the ones that have already been created.^{^[6]} These additional categories can result in confusion and errors.

Recommendation: Sensitive data must not be further categorised as this can lead to confusion and errors. Hence all sensitive data could be subject to the same level of protection.

Section 20: This section states the special provisions for data impact assessment.

Comment: This section states that all data impact assessment reports will be submitted periodically to the State Privacy commission. This section does not make provisions for instances of circumstances in which such records may be made public. Additionally the data impact assessment could also include a human rights impact assessment.

Recommendation: The section could also have provisions for making the records of the impact assessment or relevant parts of the assessment public. This will ensure that the data controllers / processors are subjected to a standard of accountability and transparency. Additionally as privacy is linked to human rights the data impact assessment could also include a human rights impact assessment. The Act could further clarify the process for submission to State Privacy Commissions and potential access by the Central Privacy Commission to provide clarity in process.

Section 20 requires controllers who use new technology to assess the risks to the data protection rights that occur from processing. ‘New technology’ is defined to include pre-existing technology that is used anew. Additionally, the reports are required to be sent to the State Privacy Commission periodically. However, there is no clarification on the situations in which such an assessment becomes necessary, or whether all technology must undergo such an assessment before their use. Additionally, the differentiation between different data processing activities based on whether the data processing is incidental or a part of the functioning needs to be clarified. This differentiation is necessary as there are some data processors and controllers who need the data to function; for instance an ecommerce site would require your name and address to deliver the goods, although these sites do not process the data to make decisions. This can be compared to a credit rating agency that is using the data to make decisions as to who will be given a loan based on their creditworthiness. Example can taken from the GDPR, which in Article 35, specifies instances in which a data impact assessment is necessary: where a new technology, that is likely to result in a high risk to the rights of persons, is used; where personal aspects related to natural persons are processed automatically, including profiling; where processing of special categories of data (including data revealing ethnic/racial origin, sexual orientation etc), biometric/genetic data; where data relating to criminal convictions is processed; and with data concerning the monitoring of publicly accessible areas. Additionally, there is no requirement to publish the report, or send it to the supervising authority, but the controller is required to review the processor’s operations to ensure its compliance with the assessment report.

Recommendation: The reports could be sent to a central authority, which according to this Act is the Privacy Commission, along with the State Privacy Commission. Additionally there needs to be a differentiation between the incidental and express use of data. The data processors must be given at least a period of one year after the commencement of the Act to present their impact assessment report. This period is required for the processors to align themselves with the provisions of the Act as well as conduct capacity building initiatives.

PART C

RIGHTS OF A DATA SUBJECT

Section 21: This section explains the right of the data subject with regard to accessing her data. It states that the data subject has the right to obtain from the data controller information as to whether any personal data concerning her is collected or processed. The data controller also has to not only provide access to such information but also the personal data that has been collected or processed.

Comment: This section does not provide the data subject the right to seek information about security breaches.

Recommendation: This section could state that the data subject has the right to seek information about any security breaches that might have compromised her data (through theft, loss, leaks etc.). This could also include steps taken by the data controller to address the immediate breach as well as steps to minimise the occurrence of such breaches in the future.^{^[7]}

CHAPTER IV

INTERCEPTION AND SURVEILLANCE

Section 28: This section lists out the special provisions for competent organizations.

Comment: Section 28(1) states ”all provisions of Chapter III shall apply to personal data collected, processed, stored, transferred or disclosed by competent organizations unless when done as per the provisions under this chapter ”.This does not make provisions for other categories of data such as sensitive data.

Recommendation: This section needs to include not just personal data but also sensitive data, in order to ensure that all types of data are protected under this Act.

Section 30: This section states the provisions for prior authorisation by the appropriate Surveillance and Interception Review Tribunal.

Comment: Section 30(5) states “any interception involving the infringement of the privacy of individuals who are not the subject of the intended interception, or where communications relate to medical, journalistic, parliamentary or legally privileged material may be involved, shall satisfy additional conditions including the provision of specific prior justification in writing to the Office for Surveillance Reform of the Privacy Commission as to the necessity for the interception and the safeguards providing for minimizing the material intercepted to the greatest extent possible and the destruction of all such material that is not strictly necessary to the purpose of the interception.” This section needs to state why these categories of communication are more sensitive than others. Additionally, interceptions typically target people and not topics of communication - thus medical may be part of a conversation between two construction workers and a doctor will communicate about finances.

Recommendation: The section could instead of singling out “medical, journalistic, parliamentary or legally privileged material” state that “any interception involving the infringement of the privacy of individuals who are not the subject of the intended interception may be involved, shall satisfy additional conditions including the provision of specific prior justification in writing to the Office for Surveillance Reform of the Privacy Commission.

Section 37: This section details the bar against surveillance.

Comment: Section 37(1) states that “no person shall order or carry out, or cause or assist the ordering or carrying out of, any surveillance of another person”. The section also prohibits indiscriminate monitoring, or mass surveillance, unless it is necessary and proportionate to the stated purpose. However, it is unclear whether this prohibits surveillance by a resident of their own residential property, which is allowed in Section 5, as the same could also fall within ‘indiscriminate monitoring/mass surveillance’. For instance, in the case of a camera installed in a residential property, which is outward facing, and therefore captures footage of the road/public space.

Recommendation: The Act needs to bring more clarity with regard to surveillance especially with respect to CCTV cameras that are installed in private places, but record public spaces such as public roads. The Act could have provisions that clearly define the use of CCTV cameras in order to ensure that cameras installed in private spaces are not used for carrying out mass surveillance. Further, the Act could address the use of emerging techniques and technology such as facial recognition technologies, that often rely on publicly available data.

CHAPTER V

THE PRIVACY COMMISSION

Section 53: This section details the powers and functions of the Privacy Commission.

Comment: Section 53(2)(xiv) states that the Privacy Commission shall publish periodic reports “providing description of performance, findings, conclusions or recommendations of any or all of the functions assigned to the Privacy Commission”. However this Section does not make provisions for such reporting to happen annually and to make them publicly available, as well as contain details including financial aspects of matters contained within the Act.

Recommendation: The functions could include a duty to disclose the information regarding the functioning and financial aspects of matters contained within the Act. Categories that could be included in such reports include: the number of data controllers, number of data processors, number of breaches detected and mitigated etc.

CHAPTER IX

OFFENCES AND PENALTIES

Sections 73 to 80: These sections lay out the different punishments for controlling and processing data in contravention to the provisions of this Act.

Comment: These sections, while laying out different punishments for controlling and processing data in contravention to the provisions of this Act, mets out a fine extending upto Rs. 10 crore. This is problematic as it does not base these penalties on the finer aspects of proportionality, such as offences that are not as serious as the others.

Recommendation: There could be a graded approach to the penalties based on the degree of severity of the offence.This could be in the form of name and shame, warnings and penalties that can be graded based on the degree of the offence.
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Additional thoughts: As India moves to a digital future there is a need for laws to be in place to ensure that individual's rights are not violated. By riding on the push to digitization, and emerging technologies such as AI, a strong all encompassing privacy legislation can allow India to leapfrog and use these emerging technologies for the benefit of the citizens without violating their privacy. A robust legislation can also ensure a level playing field for data driven enterprises within a framework of openness, fairness, accountability and transparency.

^{^[1]} These seven principles include: Right to Access, Right to Rectification, Right to Erasure And Destruction of Personal Data,Right to Restriction Of Processing, Right to Object, Right to Portability of Personal Data,Right to Seek Exemption from Automated Decision-Making.

^{^[2]}The Privacy (Protection) Bill 2013: A Citizen’s Draft, Bhairav Acharya, Centre for Internet & Society, https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-citizens-draft

^{^[3]}General Data Protection Regulation, available at https://gdpr-info.eu/art-4-gdpr/.

^{^[4]} Antonio Vetro, Open Data Quality Measurement Framework: Definition and Application to Open Government Data, available at https://www.sciencedirect.com/science/article/pii/S0740624X16300132

^{^[5]} General Data Protection Regulation, available at https://gdpr-info.eu/chapter-5/.

^{^[6]} Sensitive personal data under Section 2(bb) includes, biometric data; deoxyribonucleic acid data;
sexual preferences and practices;medical history and health information;political affiliation;
membership of a political, cultural, social organisations including but not limited to a trade union as defined under Section 2(h) of the Trade Union Act, 1926;ethnicity, religion, race or caste; and
financial and credit information, including financial history and transactions.

^{^[7]} Submission to the Committee of Experts on a Data Protection Framework for India, Amber Sinha, Centre for Internet & Society, available at https://cis-india.org/internet-governance/files/data-protection-submission

For more details visit https://cis-india.org/internet-governance/blog/the-centre-for-internet-and-society2019s-comments-and-recommendations-to-the-indian-privacy-code-2018

Spreading unhappiness equally around

sunil — 2018-07-31T14:49:52Z

The section of civil society opposed to Aadhaar is unhappy because the UIDAI and all other state agencies that wish to can process data non-consensually.

The article was published in Business Standard on July 31, 2018.

There is a joke in policy-making circles — you know you have reached a good compromise if all the relevant stakeholders are equally unhappy. By that measure, the B N Srikrishna committee has done a commendable job since there are many with complaints.

Some in the private sector are unhappy because their demonisation of the European Union’s General Data Protection Regulation (GDPR) has failed. The committee’s draft data protection Bill is closely modelled upon the GDPR in terms of rights, principles, design of the regulator and the design of the regulatory tools like impact assessments. With 4 per cent of global turnover as maximum fine, there is a clear signal that privacy infringements by transnational corporations will be reigned in by the regulator. Getting a law that has copied many elements of the European regulation is good news for us because the GDPR is recognised by leading human rights organisations as the global gold standard. But the bad news for us is that the Bill also has unnecessarily broad data localisation mandates for the private sector.

Some in the fintech sector are unhappy because the committee rejected the suggestion that privacy be regulated as a property right. This is a positive from the human rights perspective, especially because this approach has been rejected across the globe, including the European Union. Property rights are inappropriate because a natural law framing of the enclosure of the commons into private property through labour does not translate to personal data. Also in comparison to patents — or “intellectual property” — the scale of possible discreet property holdings in personal information is several orders higher, posing unimaginable complexity for regulation, possibly creating a gridlock economy.

The section of civil society opposed to Aadhaar is unhappy because the UIDAI and all other state agencies that wish to can process data non-consensually. A similar loophole exists in the GDPR. Remember the definition of processing includes “operations such as collection, recording, organisation, structuring, storage, adaptation, alteration, retrieval, use, alignment or combination, indexing, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction”. This means the UIDAI can collect data from you without your consent and does not have to establish consent for the data it has collected in the past. There is a “necessary” test which is supposed to constrain data collection. But for the last 10 odd years, the UIDAI has deemed it “necessary” to collect biometrics to give the poor subsidised grain. Will those forms of disproportionate non-consensual data collection continue? Most probably because the report recommends that the UIDAI continue to play the role of the regulator with heightened powers. Which is like trusting the fox with
the henhouse.

Employees should be unhappy because the Bill has an expansive ground under which employers can nonconsensually harvest their data. The Bill allows for non-consensual processing of any data “necessary” for recruitment, termination, providing any benefit or service, verifying the attendance or any other activity related to the assessment of the performance”. This is permitted when consent is not an appropriate basis or would involve disproportionate effort on the part of the employer. This is basically a surveillance provision for employers. Either this ground should be removed like in the GDPR or a “proportionate” test should also be introduced otherwise disproportionate mechanisms like spyware on work computers will be installed by employees without providing notice.

Some free speech activists are unhappy because the law contains a “right to be forgotten” provision. They are concerned that this will be used by the rich and powerful to censor mainstream and alternative media. On the face of the “right to be forgotten” in the GDPR is a much more expansive “right to erasure”, whilst the Bill only provides for a more limited "right to restrict or prevent continuing disclosure”. However, the GDPR has a clear exception for “archiving purposes in the public interest, scientific or historical research purposes or statistical purposes”. The Bill like the GDPR does identify the two competing human rights imperatives — freedom of expression and the right to information. However, by missing the “public interest” test it does not sufficiently social power asymmetries.

Privacy and security researchers are unhappy because re-identification has been made an offence without a public interest or research exception. It is indeed a positive that the committee has made re-identification a criminal offence. This is because the de-identification standards notified by the regulator would always be catching up with the latest mathematical development. However, in order to protect the very research that the regulator needs to protect the rights of individuals, the Bill should have granted the formal and non-formal academic community immunity from liability and criminal prosecution.

Lastly but also most importantly, human rights activists are unhappy because the committee again like the GDPR did not include sufficiently specific surveillance law fixes. The European Union has historically handled this separately in the ePrivacy Regulation. Maybe that is the approach we must also follow or maybe this was a missed opportunity. Overall, the B N Srikrishna committee must be commended for producing a good data protection Bill. The task before us is to make it great and to have it enacted by Parliament at the earliest.

For more details visit https://cis-india.org/internet-governance/blog/business-standard-july-31-2018-sunil-abraham-spreading-unhappiness-equally-around

Aadhaar Number vs the Social Security Number

elonnai — 2015-07-24T01:24:00Z

This blog calls out the differences between the Aadhaar Number and the Social Security Number

In response to news items that reported the Government of India running pilot projects to enroll children at the time of birth for Aadhaar numbers - an idea that government officials in the news items claimed was along the lines of the social security number - this note seeks to point out the ways in which the Aadhaar number and the social security number are different.[1]

Governance

SSN is governed by Federal legislation: The issuance, collection, and use of the SSN is governed by a number of Federal and State legislation with the most pertinent being the Social Security Act 1935[2] - which provides legal backing for the number, and the Privacy Act 1974 which regulates the collection, access, and sharing of the SSN by Federal Executive agencies.[3]

Aadhaar was constituted under the Planning Commission: The UIDAI was constituted as an attached office under the Planning Commission in 2009.[4] A Unique Identification Authority Bill has been drafted, but has not been enacted.[5] Though portions of the Information Technology Act 2008 apply to the UID scheme, section 43A and associated Rules (India's data protection standards) do not clearly apply to the UIDAI as the provision has jurisdiction only over body corporate.

Purpose

SSN was created as a number record keeping scheme for government services: The Social Security Act provides for the creation of a record keeping scheme - the SSN. Originally, the SSN was used as a means to track an individuals earnings in the Social Security system.[6] In 1943 via an executive order, the number was adopted across Federal agencies. Eventually the number has evolved from being a record keeping scheme into a means of identity. In 1977 it was clarified by the Carter administration that the number could act as a means to validate the status of an individual (for example if he or she could legally work in the country) but that it was not to serve as a national identity document.[7] Today the SSN serves as a number for tracking individuals in the social security system and as one (among other) form of identification for different services and businesses. Alone, the SSN card does not serve proof of identity, citizenship, and it cannot be used to transact with and does not have the ability to store information. [8]

Aadhaar was created as a biometric based authenticator and a single unique proof of identity: The Aadhaar number was established as a single proof of identity and address for any resident in India that can be used to authenticate the identity of an individual in transactions with organizations that have adopted the number. The scheme as been promoted as a tool for reducing fraud in the public distribution system and enabling the government to better deliver public benefits.[9]

Applicability

SSN is for citizens and non-citizens authorized to work: The social security number is primarily for citizens of the United States of America. In certain cases, non citizens who have been authorized by the Department of Homeland Security to work in the US may obtain a Social Security number.[10]

Aadhaar is for residents: The aadhaar number is available to any resident of India.[11]

Storage, Access, and Disclosure

SSN and applications are stored in the Numident: The numident is a centralized database containing the individuals original SNN and application and any re-application for the same. All information stored in the Numident is protected under the Privacy Act. Individuals may request records of their own personal information stored in the Numident. With the exception of the Department of Homeland Security and U.S Citizenship and Immigration Services, third parties may only request access to Numident records with the consent of the concerned individual.[12] Federal agencies and private entities that collect the SSN for a specific service store the number at the organizational level. The Privacy Act and various state level legislation regulates the disclosure, access, and sharing of the SSN number collected by agencies and organizations.

Aadhaar and data generated at multiple sources is stored in the CIDR and processed in the data warehouse: According to the report "Analytics, Empowering Operations", "At UIDAI, data generated at multiple sources would typically come to the CIDR (Central ID Repository), UIDAIs Data centre, through an online mechanism. There could be certain exceptional sources, like Contact centre or Resident consumer surveys, that will not feed into the Data center directly. Data is then processed in the Data Warehouse using Business Intelligence tools and converted into forms that can be accessed and shared easily." Examples of data that is stored in the CIDR include enrollments, letter delivery, authentication, processing, resident survey, training, and data from contact centres.[13] It is unclear if organizations that authenticate individuals via the Adhaar number store the number at the organizational level. Biometrics are listed as a form of sensitive personal information in the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) 2011, thus if any body corporate collects biometrics with the Aadhaar number - the storage, access, and disclosure of this information would be protected as per the Rules, but the Aadhaar number is not explicitly protected. [14]

Use by public and private entities

Public and private entities can request SSN: Public and private entities can request the SSN to track individuals in a system or as a form of identifying an individual. Any private business is allowed to request and use the SSN as long as the use does not violate federal or state law. Legally, an individual is only required to provide their SSN to a business if they are engaging in a transaction that requires notification to the Internal Revenue Service or the individual is initiating a transaction that is subject to federal Customer Identification Program rules.[15] Thus, an individual can refuse to provide their SSN, but a private business can also refuse to provide a service.[16]

Any public authority requesting the SSN must provide a disclosure notice to the individual explaining if the provision of SSN is required or optional. According to the Privacy Act of 1974, no individual can be denied a government service or benefit for not providing the SSN unless Federal law specifically requires the number for a particular service.[17] Thus, there are a number of Federal legislation in the U.S that specifically require the SSN. For example, the Social Security Independence and Program Improvements Act 1994 allows for the use of the SSN for jury selection and allows for cross matching of SSNs and Employer Identification Numbers for investigation into violation of Federal Laws. [18]

Public and private entities can request Aadhaar: The Aadhaar number can be adopted by any public or private entity as a single means of identifying an individual. The UIDAI has stated that the Aadhaar number is not mandatory,[19] and the Supreme Court of India has clarified that services cannot be denied on the grounds that an individual does not have an Aadhaar number.[20]

Verification

The SSN can be verified only in certain circumstances: The SSA will only respond to requests for SSN verification in certain circumstances:

Before issuing a replacement SSN, posting a wage item to the Master Earnings File, or establishing a claims record - the SSA will verify that the name and the number match as per their records.
When legally permitted, the SSA verification system will verify SSNs for government agencies.
When legally permitted the SSA verification system will verify a workers SSN for pre-registered and approved private employers.
If an individual has provided his/her consent, the SSA will verify a SSN request from a third party.

For verification the SSN number must be submitted with an accompanying name to be matched to and additional information such as date of birth, fathers name, mothers name etc. When verifying submitted SSN's, the system will respond with either confirmation that the information matches or that it does not match. It is important to note that because SSN is verified only in certain circumstances, it is not guaranteed that the person providing an SSN number is the person whom the number was assigned.[21]

The Aadhaar number can be verified in any transaction: If an organization, department, or platform has adopted the Aadhaar number as a form of authentication, they can send requests for verification to the UIDAI. The UIDAI will respond with a yes or no answer. When using their Aadhaar number as a form of authentication individuals can submit their number and demographic information or their number and biometrics for verification.[22]

Lost or stolen

SSN can be replaced: If an individual loses his/her SSN card lost or their number is fraudulently used, they can apply for a replacement SSN card or a new SNN number. [23]

Aadhaar number can be replaced: If an individual has lost their Aadhaar number, there is a process that they can follow to have their number re-sent to them. If the number cannot be located by the UIDAI , the individual has the option of re-enrolling for a new Aadhaar number.[24] The UIDAI has built the scheme with the understanding the biometrics are a unique identifier that cannot be lost or stolen, and thus have not created a system to address the possibility of stolen or fraudulent use of biometrics.

Implementation

Legislation and formal roll out: The SSN program was brought into existence via the Social Security Act and officially rolled out while eventually being adopted across Federal Departments.

Bill and pilot studies: The UID scheme has been envisioned as being brought into existence via the Unique Identification Authority Bill 2010 which has not been passed. Thus far, the project has been implemented in pilot phases across States and platforms.

Enrollment

Social Security Administration: The Social Security Agency is the soul body in the US that receives and processes applications for SSN and issues SSN numbers. [25]

UIDAI, registrars, and enrolling agencies: The UIDAI is the soul body that issues Aadhaar numbers. Registrars (contracted bodies under the UIDAI_ - and enrolling agencies (contracted bodies under Registrars) are responsible for receiving and processing enrollments into the UID scheme.

Required supporting documents

SSN requires proof of age, identity, and citizenship: To obtain a SSN you must be able to provide proof of your age, your identity, and US citizenship. The application form requires the following information:

Name to be shown on the card
Full name at birth, if different
Other names used
Mailing address
Citizenship or alien status
Sex
Race/ethnic description (SSA does not receive this information under EAB)
Date of birth
Place of birth
Mother's name at birth
Mother's SSN (SSA collects this information for the Internal Revenue Service (IRS) on an original application for a child under age 18. SSA does not retain these data.)
Fathers' name
Father's SSN (SSA collects this information for IRS on an original application for a child under age 18. SSA does not retain these data).
Whether applicant ever filed for an SSN before
Prior SSNs assigned
Name on most recent Social Security card
Different date of birth if used on an earlier SSN application.
Date application completed
Phone number
Signature
Applicant's relationship to the number holder.[26]

Aadhaar requires proof of age, address, birth, and residence and biometric information: The application form requires the following information:

Name
Date of birth
Gender
Address
Parent/guardian details
Email
Mobile number
Indication of consenting or not consenting to the sharing of information provided to the UIDAI with Public services including welfare services
Indication of if the individual wants the UIDAI to facilitate the opening of a bank account linked to the Aadhaar number and permits the sharing of information for this purpose
If the individual has no objection to linking their present bank account to the Aadhaar number and the relevant bank details
Signature[27]

[1] Sahil Makkar, "PM's idea to track kids from birth hits practical hurdles", Business Standard. April 11^th 2015. Available at: http://www.business-standard.com/article/current-affairs/pm-s-idea-to-track-kids-from-birth-hits-practical-hurdles-115041100828_1.html

[2] The Social Security Act of 1935. Available at: http://www.ssa.gov/history/35act.html

[3] The United States Department of Justice, "Overview of the Privacy Act of 1974". Available at: http://www.justice.gov/opcl/social-security-number-usage

[4] Government of India Planning Commission "Notification". Available at: https://uidai.gov.in/images/notification_28_jan_2009.pdf

[5] The National Identification Authority of India Bill 2010. Available at: http://www.prsindia.org/uploads/media/UID/The%20National%20Identification%20Authority%20of%20India%20Bill,%202010.pdf

[6] History of SSA 1993 - 2000. Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[7] Social Security Number Chronology. Available at: http://www.ssa.gov/history/ssn/ssnchron.html

[8] History of SSA 1993 - 2000, Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[9] UID FAQ: Aadhaar Features, Eligibility. Available at: https://resident.uidai.net.in/faqs

[10] Social Security Numbers for Noncitizens. Available at: http://www.ssa.gov/pubs/EN-05-10096.pdf

[11] Aapka Aadhaar. Available at: https://uidai.gov.in/aapka-aadhaar.html

[12] Program Operations Manual System. Available at: https://secure.ssa.gov/poms.nsf/lnx/0203325025

[13] UIDAI Analytics -Empowering Operations - the UIDAI Experience. Available at: https://uidai.gov.in/images/commdoc/other_doc/uid_doc_30012012.pdf

[14] Information Technology (Reasonable security practices and procedures and sensitive personal data or information rules 2011) available at: http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511(1).pdf

[15] IdentityHawk, "Who can lawfully request my social security number?" Available at: http://www.identityhawk.com/Who-Can-Lawfully-Request-My-Social-Security-Number

[16] SSA FAQ " Can I refuse to give my social security number to a private business?" Available at: https://faq.ssa.gov/link/portal/34011/34019/Article/3791/Can-I-refuse-to-give-my-Social-Security-number-to-a-private-business

[17] The United States Department of Justice, "Overview of the Privacy Act of 1974". Available at: http://www.justice.gov/opcl/social-security-number-usage

[18] Social Security Number Chronology. Available at: http://www.ssa.gov/history/ssn/ssnchron.html

[19] Aapka Aadhaar. Available at: https://uidai.gov.in/what-is-aadhaar.html

[20] Business Standard, "Aadhaar not mandatory to claim any state benefit, says Supreme Court" March 17^th, 2015. Available at: http://www.business-standard.com/article/current-affairs/aadhaar-not-mandatory-to-claim-any-state-benefit-says-supreme-court-115031600698_1.html

[21] Social Security History 1993 - 2000, Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[22] Aapka Aadhaar. Available at: https://uidai.gov.in/auth.html

[23] SSA. New or Replacement Social Security Number Card. Available at: http://www.ssa.gov/ssnumber/

[24] UIDAI, Lost EID/UID Process. Available at: https://uidai.gov.in/images/mou/eiduid_process_ver5_2_27052013.pdf

[25] Social Security. Availabl at: http://www.ssa.gov/

[26] Social Security Administration, Application for a Social Security. Available at: http://www.ssa.gov/forms/ss-5.pdf

[27] Aadhaar enrollment/correction form. Available at: http://hstes.in/pdf/2013_pdf/Genral%20Notification/Aadhaar-Enrolment-Form_English.pdf

For more details visit https://cis-india.org/internet-governance/blog/aadhaar-vs-social-security-number

(Updated) Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information

Amber Sinha and Srinivas Kodali — 2019-03-13T00:29:01Z

Since its inception in 2009, the Aadhaar project has been shrouded in controversy due to various questions raised about privacy, technological issues, welfare exclusion, and security concerns. In this study, we document numerous instances of publicly available Aadhaar Numbers along with other personally identifiable information (PII) of individuals on government websites. This report highlights four government projects run by various government departments that have made sensitive personal financial information and Aadhaar numbers public on the project websites.

Read the updated report: Download (pdf)

Read the first statement of clarification (May 16, 2017): Download (pdf)

Read the second statement of clarification (November 05, 2018): Link to page (html)

We are grateful to Yesha Paul and VG Shreeram for research support.

In the last month, there have been various reports pointing out instances of the public disclosure of Aadhaar number through various databases, accessible easily on Twitter under the hashtag #AadhaarLeaks. Most of these public disclosures reported contain personally identifiable information of beneficiaries or subjects of the non UIDAI databases containing Aadhaar numbers of individuals along with other personal identifiers. All of these public disclosures are symptomatic of a significant and potentially irreversible privacy harm, however we wanted to point out another large fallout of such events, those that create a ripe opportunity for financial fraud. For this purpose, we identified benefits disbursement schemes which would require its databases to store financial information about its subjects. During our research, we encountered numerous instances of publicly available Aadhaar Numbers along with other PII of individuals on government websites. In this paper, we highlight four government projects run by various government departments with publicly available financial data and Aadhaar numbers. Our research is focussed largely on the data published by or pertaining to where Aadhaar data is linked with banking information. We chose major government programmes using Aadhaar for payments and banking transactions. We found sensitive and personal data and information very easily accessible on these portals.

For more details visit https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof-a-documentation-of-public-availability-of-aadhaar-numbers-with-sensitive-personal-financial-information-1

What privacy? 13 crore Aadhaar numbers accessible on government portals

praskrishna — 2017-05-03T14:39:46Z

At least 13 crore Aadhaar numbers and 10 crore bank account numbers are readily accessible on government portals, a report claims.

The blog post by Anusha Ravi was published in Oneindia on May 2, 2017.

The centre for internet and society, in its report, has claimed that Aadhaar numbers with sensitive personal financial information were publicly available on four government portals built to oversee welfare schemes. The report said that the government portals made it easy to access sensitive details, despite it being illegal. "It is extremely irresponsible on the part of the UIDAI [Unique Identification Authority of India], the sole governing body for this massive project, to turn a blind eye to the lack of standards prescribed for how other bodies shall deal with such data, such cases of massive public disclosures of this data, and the myriad ways in which it may be used for mischief," said Amber Sinha and Srinivas Kodali, the authors of the report.

Apart from accessing a person's details, the portals made it possible for anyone to get data on beneficiaries of welfare schemes. In many cases, it included bank account numbers of beneficiaries. The report suggests that close to 23 crore Aadhaar number could have been leaked if most of the government portals connected to direct benefit transfers used the 'same negligent standards for storing data as the ones examined'. "The document shows that the breaches are an indicator of potentially irreversible privacy harm and the data could be used for financial fraud," the authors said in the report. The report was documented after authors studied the National Social Assistance Programme, National Rural Employment Guarantee Scheme, Andhra Pradesh government's Chandranna Bima Scheme and Andhra Pradesh's Daily Online Payment Reports of NREGA.

The report said that sensitive personal identity information such as Aadhaar number, caste, religion, address, photographs and financial information were easily available with a few clicks and suggested how poorly conceived these initiatives were. The report highlights that it was illegal to make personal data public and also refers to # #AadhaarLeaks, a campaign on twitter aimed at exposing the loopholes in the Aadhaar system.

For more details visit https://cis-india.org/internet-governance/news/one-india-may-2-2017-anusha-ravi-what-privacy-13-crore-aadhaar-numbers-accessible-on-governmental-portals

13 crore Aadhaar numbers on four government websites compromised: Report

praskrishna — 2017-05-03T15:19:52Z

The lack of information security practices in key government websites which hosts Personally Identifiable Information (PII) has left citizens of the country more vulnerable to identity theft and financial fraud, a research paper has argued.

The article by Akram Mohammed was published by the New Indian Express on May 2, 2017.

A paper by Amber Sinha and Srinivas Kodali of Centre for Internet and Society analysed four government websites and found that more than 13 crore Aadhaar numbers with related PII were available on the websites, exposing lax security features.

The paper published under Creative Commons is titled ‘Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information’ and was released on Monday.

Sinha and Kodali looked at databases on four government portals -- National Social Assistance Programme, National Rural Employment Guarantee Scheme, Chandranna Bima Scheme, Govt. of Andhra Pradesh and Daily Online Payment Reports website of NREGA, Govt. of Andhra Pradesh.

“We chose major government programmes that use Aadhaar for payments and banking transactions. We found sensitive and personal data and information accessible on these portals,” the report said.

Leaked through portals

“Based on the numbers available on the websites, estimated number of Aadhaar numbers leaked through these 4 portals could be around 130-135 million and the number of bank account numbers leaked at around 100 million.

While these numbers are only from two major government programmes of pensions and rural employment schemes, other major schemes, that have also used Aadhaar for DBT, could have leaked PII similarly due to lack of information security practices,” it said.

They fear that data of over 23 crore beneficiaries under DBT of LPG subsidies could be leaked also. Identity theft and financial fraud “risks increase multifold in India...,” they said.

Aadhaar payments unsafe

In case a financial fraud takes place through Aadhaar enabled Payment System (AePS), the consumer may not be able to assert his claims for compensation due to the terms and conditions around liabilities.

“These terms force the consumer to take liabilities onto oneself than the payment provider..... Regulations and standards around Aadhaar are at a very early and nascent stage causing (an) increase in financial risk for both consumers and banks to venture into AePS,” they added. The authors also pulled up UIDAI for their inability in providing strong legislation against such leaks.

Leaky govt portals

National Social Assistance Programme

PII available - Access to Aadhaar no., name, bank account number, account frozen status 94,32,605 bank accounts linked with Aadhaar

14,98,919 post office accounts linked with Aadhaar numbers.

Though total Aadhaar number is 1,56,42,083, not all are linked to bank accounts

NREGA

PII Details available: Job card no., Aadhaar number, bank/postal account number, no. of days worked, registration no., account frozen status

78,74,315 post office accounts of individual workers seeded with Aadhaar numbers,

8,24,22,161 bank accounts of individual workers with Aadhaar numbers.

10,96,41,502 total number of Aadhaar numbers stored by portal

Other websites

Chandranna Bima Scheme, Govt. of Andhra Pradesh

Daily Online Payment Reports website of NREGA, Govt. of Andhra Pradesh

For more details visit https://cis-india.org/internet-governance/news/new-indian-express-may-2-2017-akram-mohammed-13-crore-aadhaar-numbers-on-four-government-websites-compromised

Around 13 crore Aadhaar numbers easily available on government portals, says report

praskrishna — 2017-05-03T15:29:12Z

A report by The Centre for Internet and Society claimed that around 13 crore Aadhaar numbers and 10 crore bank account numbers were easily accessible on four government portals built to oversee welfare schemes. The document, released on Monday, pointed out that though it is illegal to reveal Aadhaar numbers, the government portals examined made it easy for anyone to access them, as well as other data about beneficiaries of welfare schemes including in many cases their bank account numbers.

This was published by Scroll.in on May 2, 2017.

The report suggests that the Aadhaar numbers leaked could actually be closer to 23 crore, if most of the government portals connected to direct benefit transfers used the same negligent standards for storing data as the ones examined. “It is extremely irresponsible on the part of the UIDAI [Unique Identification Authority of India], the sole governing body for this massive project, to turn a blind eye to the lack of standards prescribed for how other bodies shall deal with such data, such cases of massive public disclosures of this data, and the myriad ways in which it may used for mischief,” the authors of the report said.

The document also pointed out that the breaches are an indicator of “potentially irreversible privacy harm” and said the data could be used for financial fraud. The report authored by Amber Sinha and Srinivas Kodali studied the National Social Assistance Programme, National Rural Employment Guarantee Scheme, Andhra Pradesh government’s Chandranna Bima Scheme and Andhra Pradesh’s Daily Online Payment Reports of NREGA.

While the report said the Aadhaar initiative as a concept may be praiseworthy, the absence of adequate security could prove disastrous. “Sensitive personal identity information such as Aadhaar number, caste, religion, address, photographs and financial information are only a few clicks away and suggest how poorly conceived these initiatives are,” the report said.

The Centre had, on April 25, cautioned states against leaking Aadhaar information, after it emerged that a number of government websites were making it easy for people to access individuals’ Aadhaar numbers. The Unique Identification Authority of India also filed First Information Reports against eight private websites for collecting Aadhaar-related data from citizens in an unauthorised manner on April 19, but no such action appears to have been taken against government websites so far.

According to government data, the UIDAI has issued 112 crore Aadhaar numbers so far and has maintained that its biometrics database is tamper-proof, although it is up to various other authorities to maintain the secrecy of Aadhaar data collected or kept by them.

On April 21, the Supreme Court had questioned the Centre for making the Aadhaar card mandatory for a number of central schemes despite its repeated orders that the unique identification programme cannot be made mandatory. The government has nevertheless been expanding the scope of the Unique Identity project over the past few months by introducing it for initiatives such as the midday meal scheme of school lunches for children, and, most recently, requiring Aadhaar to file income tax returns.

In March, an Aadhaar enrolment agency had been de-registered for leaking the personal data of cricketer Mahendra Singh Dhoni.

For more details visit https://cis-india.org/internet-governance/news/scroll-may-2-2017-around-13-crore-aadhaar-numbers-easily-available-on-government-portals-says-report

Aadhaar Case: Beyond Privacy, An Issue of Bodily Integrity

Amber Sinha and Aradhya Sethia — 2017-05-03T16:02:02Z

The insertion of Section 139AA in the Income Tax Act has been challenged and is being heard by a two-judge bench of the Supreme Court.

The article was published in the Quint on May 1, 2017.

The Finance Act, 2017, among its various sweeping changes, also inserted a new provision into the Section 139AA of the IT ACT, which makes Aadhaar numbers mandatory for:

(a) applying for PAN and

(b) filing income tax returns

In case one does not have an Aadhaar number, she or he is required to submit the enrolment ID of one’s Aadhaar application. The overall effect of this provision is that it makes Aadhaar mandatory for filing tax returns and applying for a PAN. The SC hearings began on 26 April. In order to properly appreciate the tough task at hand for the counsel for the petitioners, it is important to do a quick recap of the history of the Aadhaar case.

Case Over Constitutional Validity

Back in August 2015, the Supreme Court had referred the question of the constitutional validity of the fundamental right to privacy to a larger bench.

This development came after the Union government pointed out that the judgements in MP Sharma vs Satish Chandra and Kharak Singh vs State of UP (decided by eight and six judge benches respectively) rejected a constitutional right to privacy.

The reference to a larger bench has since delayed the entire Aadhaar case, while an alarming number of government schemes have made Aadhaar mandatory in the meantime.

Since then, the Supreme Court has not entertained any arguments related to privacy in the court proceedings on Aadhaar pending the resolution of this issue by a constitutional bench, which is yet to to be set up. The petitioners have had to navigate this significant handicap in the current proceedings as well.

Ongoing Hearing in Aadhaar Case

At the beginning of Advocate Shyam Divan’s arguments on behalf of the petitioners, the Attorney General objected to the petitioners making any argument related to the right to privacy. Anticipating this objection, Divan assured the court, right at the outset that they “will not argue on privacy issue at all”.

In the course of his arguments, Divan referred to at least three rights which may otherwise have been argued as facets of the right to privacy – personal autonomy, informational self-determination and bodily integrity. However, in this hearing those rights were strategically not couched as dimensions of privacy.

Divan consistently maintained that these rights emanate from Article 21 and Article 19 of the Constitutions and are different from the right to privacy.

Many Layers of the Right to Privacy

If one follows the courtroom exchanges in the original Aadhaar matter (not the one being argued now), the debates around the privacy implications of Aadhaar have focussed on simplistic balancing exercises of “security vs privacy” and “efficient governance vs privacy”.

These observations depict the right to privacy as a monolithic concept, i.e. a single right which has a unity of harm it captures within itself. In other words, all privacy harms are considered to be on the same footing. "Privacy harms" here mean the undesirable effects of the violation of the right to privacy.

This monolithic conception was clearly reflected in the Supreme Court’s decision to refer the constitutionality of “right to privacy” to a larger bench.

In MP Sharma vs Satish Chandra, the Supreme Court had rejected certain dimensions of what is generally understood as the right to privacy in a specific context (and hence dealing with a specific kind of privacy harm). A monolithic conception of the right to privacy would mean that MP Sharma should be applicable to all kinds of privacy claims.

Prof Daniel Solove, a privacy law expert, in his landmark paper “Taxonomy of Privacy” argues that the right to privacy captures multiple kinds of harms within itself. The right to privacy is not a monolithic concept, but a plural concept; there is no one right to privacy, but multiple hues of right to privacy.

Sidestepping ‘Privacy’ in the Current Case

The plural conception of the right to privacy not only makes our privacy jurisprudence more nuanced and comprehensive, but also guides us to analyse differential privacy harms according to the standards appropriate for them.

Therefore, the refusal of the Supreme Court in MP Sharma to recognise a specific construction of privacy read into a specific constitutional provision should not have precluded the bench, even one smaller in number, from treating other conceptions of privacy into the same or other constitutional provisions.

As a lawyer, Divan was severely compromised from being unable to argue the right to privacy, which in my opinion, cuts at the heart of the constitutional issues with the Aadhaar project.

He refrained from couching any of his arguments on bodily integrity, informational self-determination, and personal autonomy as privacy arguments. What the approach reveals is that far from being a monolithic notion, the harms that privacy, as we understand it, addresses, are capable of being broken into multiple and distinct rights.

Moving Beyond Article 21

Divan further argues that coercing someone to give personal information is compelled speech and hence, violative of Article 19(1)(a) (the rights to free speech and expression). Once again, the harm described here – compelling someone to part with personal data – is conventionally a privacy harm.

However, it is important to note here that a privacy harm may also be a speech harm. Therefore, Article 21 is not the sole repository of these rights. They may also be located under other articles. The practical consequence of these rights being located under multiple constitutional provisions could be added protection of these rights.

For instance, if it can be shown that compelling an individual to part with personal data results into violation of Article 19(1)(a), the State will have to show which ground laid down under Article 19(2) does the specific restriction fall under.

This might be more challenging as opposed to the vague standard of “compelling state interest” test which has been the constitutional test for privacy violations under Article 21.

Changing the Definition of Right to Privacy

The arguments presented by Divan, if accepted by the Supreme Court, could represent a two-pronged shift in the landscape of the values popularly understood under the right to privacy in India:

1) first, the idea of the rights of bodily integrity, informational self-determination, and personal autonomy as part of a plural concept (whether arising from the right to privacy or another right) that encompasses several harms within it, and

2) second that some of these rights may be read into other Articles in the Constitution.

Under the circumstances, Mr Divan’s performance was nothing short of heroic. Whether they pass muster and impact the course of this long drawn legal battle remains to be seen.

(Amber Sinha is a lawyer and works as a researcher at the Centre for Internet and Society. Aradhya Sethia is a final year law student at the National Law School of India University, Bangalore. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

For more details visit https://cis-india.org/internet-governance/blog/the-quint-amber-sinha-and-aradhya-sethia-may-1-2017-aadhaar-case-beyond-privacy-an-issue-of-bodily-integrity

En Inde, le biométrique version très grand public

praskrishna — 2017-05-03T16:27:23Z

Initiée en 2010, l’Aadhaar est désormais la plus grande base de données d’empreintes et d’iris au monde. Carte d’identité destinée aux 1,25 milliard d’Indiens, elle sert aussi de moyen de paiement. Mais la sécurité du système et son utilisation à des fins de surveillance posent question.

The article was published by Liberation on April 27, 2017. Sunil Abraham was quoted.

Le front barré d’un signe religieux hindou rouge, Vivek Kumar se tient droit derrière le comptoir de son étroite papeterie située dans une allée obscure d’un quartier populaire du sud-est de New Delhi. Sous le regard bienveillant d’une idole de Ganesh - le dieu qui efface les obstacles -, le commerçant à la fine moustache et à la chemise bleu-gris au col Nehru réalise des photocopies, fournit des tampons ou des stylos à des dizaines de chalands.

Gaurav, un vendeur de légumes de la halle d’à côté, entre acheter du crédit de communication mobile. Au moment de payer, il sort son portefeuille, mais pas pour chercher de la monnaie. Il y prend sa carte d’identité Aadhaar et fournit ses douze chiffres au commerçant. Qui les entre dans un smartphone, sélectionne la banque de Gaurav et indique le montant de l’achat. Le client n’a plus qu’à poser son pouce sur un lecteur biométrique relié au combiné, connecté à Internet. Une lumière rouge s’allume et un son retentit : la transaction est bien passée.

Depuis mars, 32 banques indiennes fournissent ce service novateur de paiement par empreinte digitale. Appelé Aadhaar Pay, il utilise les informations biométriques, à savoir les dix empreintes digitales et celle de l’iris, recueillies par le gouvernement depuis septembre 2010 pour créer la première carte d’identité du pays. Toute personne résidant en Inde depuis plus de six mois, y compris les étrangers, peut s’inscrire et l’obtenir gratuitement.

«Renverser le système»

L’Aadhaar («la fondation» en hindi) représente aujourd’hui la plus grande base de données biométriques au monde, avec 1,13 milliard de personnes enregistrées sur 1,25 milliard, soit 99 % de la population adulte indienne.

L’objectif initial était double : identifier la population - 10% des Indiens n’avaient jusqu’ici aucun papier, et donc aucun droit - et se servir de ces moyens biométriques pour sécuriser l’attribution de nombreuses subventions alimentaires ou énergétiques, dont le détournement coûte plusieurs milliards d’euros chaque année à l’Etat fédéral.

A partir de 2014, la nouvelle majorité nationaliste hindoue du BJP a étendu les usages de l’Aadhaar pour transformer cet outil de reconnaissance en un vrai «passe-partout» de la vie quotidienne indienne : depuis l’ouverture d’une ligne téléphonique à la déclaration de ses impôts, en passant surtout par la création d’un compte en banque, le numéro Aadhaar sera à présent requis. Dans ce dernier cas, l’Aadhaar permet en prime d’utiliser le paiement bancaire par biométrie pour réduire le recours au liquide, qui représente encore plus de 90 % des transactions dans le pays.

Le Premier ministre, Narendra Modi, a fait de cette inclusion financière l’un de ses principaux chevaux de bataille : en 2014, son gouvernement a lancé un énorme programme qui a permis la création de 213 millions de comptes bancaires en deux ans - aujourd’hui, quasiment tous les foyers en possèdent au moins un. Il a continué dans cette voie énergique en démonétisant, en novembre, les principales coupures. But de la manœuvre : convaincre les Indiens de se défaire, au moins temporairement, de leur dépendance aux billets marqués de la tête de Gandhi.

«Le liquide est gratuit, donc il est difficile de pousser les gens à utiliser d’autres moyens de paiement, explique Ragavan Venkatesan, responsable des paiements numériques à la banque IDFC, pionnière dans l’utilisation de l’Aadhaar Pay. Nous avons donc renversé le système pour que le commerçant soit incité à utiliser les moyens numériques.» L’établissement financier a d’abord développé le «microdistributeur de billets» : une tablette que le vendeur peut utiliser pour créer des comptes, recevoir des petits dépôts ou fournir du liquide aux clients au nom de la banque, contre une commission. Comme l’Aadhaar Pay, cette tablette se connecte au lecteur biométrique - fourni par l’entreprise française Safran - pour l’identification et l’authentification. Dans les deux cas, et à la différence des paiements par carte, ni le marchand ni le client ne paient pour l’utilisation de ce réseau. «Le mode traditionnel de paiement par carte va progressivement disparaître», prédit Ragavan Venkatesan.

Défi

Pour l’instant, le système n’en est toutefois qu’à ses débuts. Environ 70 banques - une minorité du réseau indien - sont reliées à l’Aadhaar Pay, et lors de nos visites dans différents magasins de New Delhi, une transaction a été bloquée pendant dix minutes à cause d’un problème de serveur. La connectivité est d’ailleurs un défi dans un pays dont la population est en majorité rurale : le système nécessite au minimum le réseau 2G, dont sont dépourvus environ 8 % des villages, selon le ministère des Télécommunications.

Mais c’est la protection du système qui est surtout en question : «La biométrie réduit fortement le niveau de sécurité, car c’est facile de voler ces données et de les utiliser sans votre accord, explique Sunil Abraham, directeur du Centre pour l’Internet et la société de Bangalore. Il existe maintenant des appareils photo de haute résolution qui permettent de capturer et de répliquer les empreintes ou l’iris», affirme ce spécialiste en cybersécurité.

Le problème tient au caractère irrévocable de ces données biométriques. A la différence d’une carte bancaire qu’on peut annuler et remplacer, on ne peut changer d’empreinte ou d’iris. L’Autorité indienne d’identification unique (UIDAI), qui gère l’Aadhaar, prévoit bien que l’on puisse bloquer l’utilisation de ses propres données biométriques sur demande, ce qui offre une solution de sécurisation temporaire. «Si un fraudeur essaie de les utiliser, on peut le repérer [grâce au réseau internet, ndlr] et l’arrêter», défend Ragavan Venkatesan, de la banque IDFC.

Mais cela risque de ne pas suffire en cas de recel de ces informations : la police vient d’interpeller un groupe de trafiquants qui étaient en possession des données bancaires de 10 millions d’Indiens, récupérées à travers des employés et sous-traitants, données qu’ils revendaient par paquets. Une femme âgée s’était déjà fait dérober 146 000 roupies (un peu plus de 2 000 euros) à cause de cette fraude.

Outil idéal

Le directeur de l’UIDAI assure qu’aucune fuite ni vol de données n’ont été rapportés à ce jour depuis leurs serveurs - ce qui ne garantit pas que cette confidentialité sera respectée par tous les autres acteurs qui y ont accès. En février, un chercheur en cybersécurité a alerté la police sur le fait que 500 000 numéros Aadhaar ainsi que les détails personnels de leurs propriétaires - exclusivement des mineurs - avaient été publiés en ligne. La loi sur l’Aadhaar punit de trois ans de prison le vol ou le recel de ces données. Ce texte adopté l’année dernière - soit six ans après le début de la collecte - empêche également leur utilisation à d’autres fins que l’authentification pour l’attribution de subventions et de services. Et l’UIDAI ne peut y accéder pleinement qu’en cas de risque pour la sécurité nationale, et selon une procédure spéciale.

Reste qu’il n’existe pas d’autorité, comme la Cnil en France, chargée de veiller de manière indépendante à ce que ces lignes rouges ne soient pas franchies par un Etat à la recherche de nouveaux moyens de renseignement. Car les experts s’accordent sur ce point : le biométrique est un outil idéal pour surveiller une population.

En 2010, le gouvernement britannique avait d’ailleurs mis fin à son projet de carte d’identité biométrique, estimant que le taux d’erreurs dans l’authentification était trop élevé et le risque d’atteinte aux libertés trop important. Les Indiens, souvent subjugués par les nouvelles technologies pour résoudre leurs problèmes sociaux, ne semblent pas prêts de revenir en arrière. Surtout si cela peut en plus servir à mieux ficher un pays menacé par un terrorisme régional et local.

For more details visit https://cis-india.org/internet-governance/news/en-inde-le-biometrique-version-tres-grand-public