Centre for Internet and Society

A Review of the Policy Debate around Big Data and Internet of Things

elonnai — 2015-08-17T08:36:18Z

This blog post seeks to review and understand how regulators and experts across jurisdictions are reacting to Big Data and Internet of Things (IoT) from a policy perspective.

Defining and Connecting Big Data and Internet of Things

The Internet of Things is a term that refers to networked objects and systems that can connect to the internet and can transmit and receive data. Characteristics of IoT include the gathering of information through sensors, the automation of functions, and analysis of collected data.[1] For IoT devices, because of the velocity at which data is generated, the volume of data that is generated, and the variety of data generated by different sources [2] - IoT devices can be understood as generating Big Data and/or relying on Big Data analytics. In this way IoT devices and Big Data are intrinsically interconnected.

General Implications of Big Data and Internet of Things

Big Data paradigms are being adopted across countries, governments, and business sectors because of the potential insights and change that it can bring. From improving an organizations business model, facilitating urban development, allowing for targeted and individualized services, and enabling the prediction of certain events or actions - the application of Big Data has been recognized as having the potential to bring about dramatic and large scale changes.

At the same time, experts have identified risks to the individual that can be associated with the generation, analysis, and use of Big Data. In May 2014, the White House of the United States completed a ninety day study of how big data will change everyday life. The Report highlights the potential of Big Data as well as identifying a number of concerns associated with Big Data. For example: the selling of personal data, identification or re-identification of individuals, profiling of individuals, creation and exacerbation of information asymmetries, unfair, discriminating, biased, and incorrect decisions based on Big Data analytics, and lack of or misinformed user consent.[3] Errors in Big Data analytics that experts have identified include statistical fallacies, human bias, translation errors, and data errors.[4] Experts have also discussed fundamental changes that Big Data can bring about. For example, Danah Boyd and Kate Crawford in the article "Critical Questions for Big Data: Provocations for a cultural, technological, and scholarly phenomenon" propose that Big Data can change the definition of knowledge and shape the reality it measures.[5] Similarly, a BSC/Oxford Internet Institute conference report titled " The Societal Impact of the Internet of Things" points out that often users of Big Data assume that information and conclusions based on digital data is reliable and in turn replace other forms of information with digital data.[6]

Concerns that have been voiced by the Article 29 Working Party and others specifically about IoT devices have included insufficient security features built into devices such as encryption, the reliance of the devices on wireless communications, data loss from infection by malware or hacking, unauthorized access and use of personal data, function creep resulting from multiple IoT devices being used together, and unlawful surveillance.[7]

Regulation of Big Data and Internet of Things

The regulation of Big Data and IoT is currently being debated in contexts such as the US and the EU. Academics, civil society, and regulators are exploring questions around the adequacy of present regulation and overseeing frameworks to address changes brought about Big Data, and if not - what forms of or changes in regulation are needed? For example, Kate Crawford and Jason Shultz in the article "Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms"stress the importance of bringing in 'data due process rights' i.e ensuring fairness in the analytics of Big Data and how personal information is used.[8] While Solon Barocas and Andrew Selbst in the article "Big Data's Disparate Impact" explore if present anti-discrimination legislation and jurisprudence in the US is adequate to protect against discrimination arising from Big Data practices - specifically data mining.[9]

The Impact of Big Data and IoT on Data Protection Principles

In the context of data protection, various government bodies, including the Article 29 Data Protection Working Party set up under the Directive 95/46/EC of the European Parliament, the Council of Europe, the European Commission, and the Federal Trade Commission, as well as experts and academics in the field, have called out at least ten different data protection principles and concepts that Big Data impacts:

Collection Limitation: As a result of the generation of Big Data as enabled by networked devices, increased capabilities to analyze Big Data, and the prevalent use of networked systems - the principle of collection limitation is changing.[10]
Consent: As a result of the use of data from a wide variety of sources and the re-use of data which is inherent in Big Data practices - notions of informed consent (initial and secondary) are changing.[11]
Data Minimization: As a result of Big Data practices inherently utilizing all data possible - the principle of data minimization is changing/obsolete.[12]
Notice: As a result of Big Data practices relying on vast amounts of data from numerous sources and the re-use of that data - the principle of notice is changing.[13]
Purpose Limitation: As a result of Big Data practices re-using data for multiple purposes - the principle of purpose limitation is changing/obsolete.[14]
Necessity: As a result of Big Data practices re-using data, the new use or re-analysis of data may not be pertinent to the purpose that was initially specified- thus the principle of necessity is changing.[15]
Access and Correction: As a result of Big Data being generated (and sometimes published) at scale and in real time - the principle of user access and correction is changing.[16]
Opt In and Opt Out Choices: Particularly in the context of smart cities and IoT which collect data on a real time basis, often without the knowledge of the individual, and for the provision of a service - it may not be easy or possible for individuals to opt in or out of the collection of their data.[17]
PI: As a result of Big Data analytics using and analyzing a wide variety of data, new or unexpected forms of personal data may be generated - thus challenging and evolving beyond traditional or specified definitions of personal information.[18]
Data Controller: In the context of IoT, given the multitude of actors that can collect, use and process data generated by networked devices, the traditional understanding of what and who is a data controller is changing.[19]

Possible Technical and Policy Solutions

In a Report titled "Internet of Things: Privacy & Security in a Connected World" by the Federal Trade Commission in the United States it was noted that though IoT changes the application and understanding of certain privacy principles, it does not necessarily make them obsolete.[20] Indeed many possible solutions that have been suggested to address the challenges posed by IoT and Big Data are technical interventions at the device level rather than fundamental policy changes. For example it has been proposed that IoT devices can be programmed to:

Automatically delete data after a specified period of time [21] (addressing concerns of data retention)
Ensure that personal data is not fed into centralized databases on an automatic basis [22] (addressing concerns of transfer and sharing without consent, function creep, and data breach)
Offer consumers combined choices for consent rather than requiring a one time blanket consent at the time of initiating a service or taking fresh consent for every change that takes place while a consumer is using a service. [23] (addressing concerns of informed and meaningful consent)
Categorize and tag data with accepted uses and programme automated processes to flag when data is misused. [24] (addressing concerns of misuse of data)
Apply 'sticky policies' - policies that are attached to data and define appropriate uses of the data as it 'changes hands' [25] (addressing concerns of user control of data)
Allow for features to only be turned on with consent from the user [26] (addressing concerns of informed consent and collection without the consent or knowledge of the user)
Automatically convert raw personal data to aggregated data [27] (addressing concerns of misuse of personal data and function creep)
Offer users the option to delete or turn off sensors [28] (addressing concerns of user choice, control, and consent)

Such solutions place the designers and manufacturers of IoT devices in a critical role. Yet some, such as Kate Crawford and Jason Shultz are not entirely optimistic about the possibility of effective technological solutions - noting in the context of automated decision making that it is difficult to build in privacy protections as it is unclear when an algorithm will predict personal information about an individual.[29]

Experts have also suggested that more emphasis should be placed on the principles and practices of:

Transparency,
Access and correction,
Use/misuse
Breach notification
Remedy
Ability to withdraw consent

Others have recommended that certain privacy principles need to be adapted to the Big Data/IoT context. For example, the Article 29 Working Party has clarified that in the context of IoT, consent mechanisms need to include the types of data collected, the frequency of data collection, as well as conditions for data collection.[30] While the Federal Trade Commission has warned that adopting a pure "use" based model has its limitations as it requires a clear (and potentially changing) definition of what use is acceptable and what use is not acceptable, and it does not address concerns around the collection of sensitive personal information.[31] In addition to the above, the European Commission has stressed that the right of deletion, the right to be forgotten, and data portability also need to be foundations of IoT systems and devices.[32]

Possible Regulatory Frameworks

To the question - are current regulatory frameworks adequate and is additional legislation needed, the FTC has recommended that though a specific IoT legislation may not be necessary, a horizontal privacy legislation would be useful as sectoral legislation does not always account for the use, sharing, and reuse of data across sectors. The FTC also highlighted the usefulness of privacy impact assessments and self regulatory steps to ensure privacy.[33] The European Commission on the other hand has concluded that to ensure enforcement of any standard or protocol - hard legal instruments are necessary.[34] As mentioned earlier, Kate Crawford and Jason Shultz have argued that privacy regulation needs to move away from principles on collection, specific use, disclosure, notice etc. and focus on elements of due process around the use of Big Data - as they say "procedural data due process". Such due process should be based on values instead of defined procedures and should include at the minimum notice, hearing before an independent arbitrator, and the right to review. Crawford and Shultz more broadly note that there are conceptual differences between privacy law and big data that pose as serious challenges i.e privacy law is based on causality while big data is a tool of correlation. This difference raises questions about how effective regulation that identifies certain types of information and then seeks to control the use, collection, and disclosure of such information will be in the context of Big Data – something that is varied and dynamic. According to Crawford and Shultz many regulatory frameworks will struggle with this difference – including the FTC's Fair Information Privacy Principles and the EU regulation including the EU's right to be forgotten.[35] The European Data Protection Supervisor on the other hand looks at Big Data as spanning the policy areas of data protection, competition, and consumer protection – particularly in the context of 'free' services. The Supervisor argues that these three areas need to come together to develop ways in which the challenges of Big Data can be addressed. For example, remedy could take the form of data portability – ensuring users the ability to move their data to other service providers empowering individuals and promoting competitive market structures or adopting a 'compare and forget' approach to data retention of customer data. The Supervisor also stresses the need to promote and treat privacy as a competitive advantage, thus placing importance on consumer choice, consent, and transparency.[36] The European Data Protection reform has been under discussion and it is predicted to be enacted by the end of 2015. The reform will apply across European States and all companies operating in Europe. The reform proposes heavier penalties for data breaches, seeks to provide users with more control of their data.[37] Additionally, Europe is considering bringing digital platforms under the Network and Information Security Directive – thus treating companies like Google and Facebook as well as cloud providers and service providers as a critical sector. Such a move would require companies to adopt stronger security practices and report breaches to authorities.[38]

Conclusion

A review of the different opinions and reactions from experts and policy makers demonstrates the ways in which Big Data and IoT are changing traditional forms of protection that governments and societies have developed to protect personal data as it increases in value and importance. While some policy makers believe that big data needs strong legislative regulation and others believe that softer forms of regulation such as self or co-regulation are more appropriate, what is clear is that Big Data is either creating a regulatory dilemma– with policy makers searching for ways to control the unpredictable nature of big data through policy and technology through the merging of policy areas, the honing of existing policy mechanisms, or the broadening of existing policy mechanisms - while others are ignoring the change that Big Data brings with it and are forging ahead with its use.

Answering the 'how do we regulate Big Data” question requires re-conceptualization of data ownership and realities. Governments need to first recognize the criticality of their data and the data of their citizens/residents, as well as the contribution to a country's economy and security that this data plays. With the technologies available now, and in the pipeline, data can be used or misused in ways that will have vast repercussions for individuals, society, and a nation. All data, but especially data directly or indirectly related to citizens and residents of a country, needs to be looked upon as owned by the citizens and the nation. In this way, data should be seen as a part of critical national infrastructure of a nation, and accorded the security, protections, and legal backing thereof to prevent the misuse of the resource by the private or public sectors, local or foreign governments. This could allow for local data warehousing and bring physical and access security of data warehouses on par with other critical national infrastructure. Recognizing data as a critical resource answers in part the concern that experts have raised – that Big Data practices make it impossible for data to be categorized as personal and thus afforded specified forms of protection due to the unpredictable nature of big data. Instead – all data is now recognized as critical.

In addition to being able to generate personal data from anonymized or non-identifiable data, big data also challenges traditional divisions of public vs. private data. Indeed Big Data analytics can take many public data points and derive a private conclusion. The use of Big Data analytics on public data also raises questions of consent. For example, though a license plate is public information – should a company be allowed to harvest license plate numbers, combine this with location, and sell this information to different interested actors? This is currently happening in the United States.[39] Lastly, Big Data raises questions of ownership. A solution to the uncertainty of public vs. private data and associated consent and ownership could be the creation a National Data Archive with such data. The archive could function with representation from the government, public and private companies, and civil society on the board. In such a framework, for example, companies like Airtel would provide mobile services, but the CDRs and customer data collected by the company would belong to the National Data Archive and be available to Airtel and all other companies within a certain scope for use. This 'open data' approach could enable innovation through the use of data but within the ambit of national security and concerns of citizens – a framework that could instill trust in consumers and citizens. Only when backed with strong security requirements, enforcement mechanisms and a proactive, responsive and responsible framework can governments begin to think about ways in which Big Data can be harnessed.

[1] BCS - The Chartered Institute for IT. (2013). The Societal Impact of the Internet of Things. Retrieved May 17, 2015, from http://www.bcs.org/upload/pdf/societal-impact-report-feb13.pdf

[2] Sicular, S. (2013, March 27). Gartner’s Big Data Definition Consists of Three Parts, Not to Be Confused with Three “V”s. Retrieved May 20, 2015, from http://www.forbes.com/sites/gartnergroup/2013/03/27/gartners-big-data-definition-consists-of-three-parts-not-to-be-confused-with-three-vs/

[3] Executive Office of the President. “Big Data: Seizing Opportunities, Preserving Values”. May 2014. Available at: https://www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_5.1.14_final_print.pdf. Accessed: July 2^nd 2015.

[4] Moses, B., Lyria, & Chan, J. (2014). Using Big Data for Legal and Law Enforcement Decisions: Testing the New Tools (SSRN Scholarly Paper No. ID 2513564). Rochester, NY: Social Science Research Network. Retrieved from http://papers.ssrn.com/abstract=2513564

[5] Danah Boyd, Kate Crawford. CRITICAL QUESTIONS FOR BIG DATA. Information, Communication & Society Vol. 15, Iss. 5, 2012. Available at: http://www.tandfonline.com/doi/full/10.1080/1369118X.2012.678878. Accessed: July 2^nd 2015.

[6] The Chartered Institute for IT, Oxford Internet Institute, University of Oxford. “The Societal Impact of the Internet of Things” February 2013. Available at: http://www.bcs.org/upload/pdf/societal-impact-report-feb13.pdf. Accessed: July 2^nd 2015.

[7] ARTICLE 29 Data Protection Working Party. (2014). Opinion 8/2014 on the on Recent Developments on the Internet of Things. European Commission. Retrieved May 20, 2015, from http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf

[8] Crawford, K., & Schultz, J. (2013). Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms (SSRN Scholarly Paper No. ID 2325784). Rochester, NY: Social Science Research Network. Retrieved from http://papers.ssrn.com/abstract=2325784

[9] Barocas, S., & Selbst, A. D. (2015). Big Data’s Disparate Impact (SSRN Scholarly Paper No. ID 2477899). Rochester, NY: Social Science Research Network. Retrieved from http://papers.ssrn.com/abstract=2477899

[10] Barocas, S., & Selbst, A. D. (2015). Big Data’s Disparate Impact (SSRN Scholarly Paper No. ID 2477899). Rochester, NY: Social Science Research Network. Retrieved from http://papers.ssrn.com/abstract=2477899

[11] Article 29 Data Protection Working Party. “Opinion 8/2014 on the on Recent Developments on the Internet of Things”. September 16^th 2014. Available at: h ttp://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[12] Tene, O., & Polonetsky, J. (2013). Big Data for All: Privacy and User Control in the Age of Analytics. Northwestern Journal of Technology and Intellectual Property, 11(5), 239.

[13] Omer Tene and Jules Polonetsky, Big Data for All: Privacy and User Control in the Age of Analytics, 11 Nw. J. Tech. & Intell. Prop. 239 (2013).

[14] Article 29 Data Protection Working Party. “Opinion 8/2014 on the on Recent Developments on the Internet of Things”. September 16^th 2014. Available at: h ttp://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[15] Information Commissioner's Office. (2014). Big Data and Data Protection. Infomation Commissioner's Office. Retrieved May 20, 2015, from https://ico.org.uk/media/for-organisations/documents/1541/big-data-and-data-protection.pdf

[16] Article 29 Data Protection Working Party. “Opinion 8/2014 on the on Recent Developments on the Internet of Things”. September 16^th 2014. Available at: h ttp://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[17] The Chartered Institute for IT and Oxford Internet Institute, University of Oxford. “The Societal Impact of the Internet of Things”. February 14^th 2013. Available at: http://www.bcs.org/upload/pdf/societal-impact-report-feb13.pdf. Accessed: July 2^nd 2015.

[18] Kate Crawford and Jason Shultz, “Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms”. Boston College Law Review, Volume 55, Issue 1, Article 4. January 1st 2014. Available at: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3351&context=bclr. Accessed: July 2nd 2015.

[19] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2nd 2015.

[20] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commision. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[21] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commision. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[22] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commision. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[23] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commision. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[24] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commision. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[25] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[26] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[27] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[28] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[29] Kate Crawford and Jason Shultz, “Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms”. Boston College Law Review, Volume 55, Issue 1, Article 4. January 1st 2014. Available at: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3351&context=bclr. Accessed: July 2nd 2015.

[30] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[31] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commission. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[32] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[33] Federal Trade Commission. (2015). Internet of Things: Privacy & Security in a Connected World. Federal Trade Commission. Retrieved May 20, 2015, from https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf

[34] Article 29 Data Protection Working Party “Opinion 8/2014 on the on Recent Developments on the Internet of Things” September 16^th 2014. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf. Accessed: July 2^nd 2015.

[35] Kate Crawford and Jason Shultz, “Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms”. Boston College Law Review, Volume 55, Issue 1, Article 4. January 1^st 2014. Available at: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3351&context=bclr. Accessed: July 2^nd 2015.

[36] European Data Protection Supervisor. Preliminary Opinion of the European Data Protection Supervisor, Privacy and competitiveness in the age of big data: the interplay between data protection, competition law and consumer protection in the Digital Economy. March 2014. Available at: https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2014/14-03-26_competitition_law_big_data_EN.pdf

[37] SC Magazine. Harmonised EU data protection and fines by the end of the year. June 25^th 2015. Available at: http://www.scmagazineuk.com/harmonised-eu-data-protection-and-fines-by-the-end-of-the-year/article/422740/. Accessed: August 8^th 2015.

[38] Tom Jowitt, “Digital Platforms to be Included in EU Cybersecurity Law”. TechWeek Europe. August 7^th 2015. Available at: http://www.techweekeurope.co.uk/e-regulation/digital-platforms-eu-cybersecuity-law-174415

[39] Adam Tanner. Data Brokers are now Selling Your Car's Location for $10 Online. July 10^th 2013. Available at: http://www.forbes.com/sites/adamtanner/2013/07/10/data-broker-offers-new-service-showing-where-they-have-spotted-your-car/

For more details visit https://cis-india.org/internet-governance/blog/review-of-policy-debate-around-big-data-and-internet-of-things

A judicial overreach into matters of regulation

gurshabad — 2019-08-28T01:28:52Z

A PIL on Aadhaar sheds light on some problematic trends

The article by Gurshabad Grover was published in the Hindu on August 27, 2019.

The Madras High Court has been hearing a PIL petition since 2018 that initially asked the court to declare the linking of Aadhaar with a government identity proof as mandatory for registering email and social media accounts. The petitioners, victims of online bullying, went to the court because they found that law enforcement agencies were inefficient at investigating cybercrimes, especially when it came to gathering information about pseudonymous accounts on major online platforms. This case brings out some of the most odious trends in policymaking in India.

The first issue is how the courts, as Anuj Bhuwania has argued in the book Courting the People, have continually expanded the scope of issues considered in PILs. In this case, it is absolutely clear that the court is not pondering about any question of law. In what could be considered as abrogation of the separation of powers provision in the Constitution, the Madras High Court started to deliberate on a policy question with a wide-ranging impact: Should Aadhaar be linked with social media accounts?

After ruling out this possibility, it went on to consider a question that is even further out of its purview: Should platforms like WhatsApp that provide encrypted services allow forms of “traceability” to enable finding the originator of content? In essence, the court is now trying to regulate one particular platform on a very specific technical question, ignoring legal frameworks entirely. It is worrying that the judiciary is finding itself increasingly at ease with deliberations on policy and regulatory measures, and its recent actions remind us that the powers of the court also deserve critical questioning.

Government’s support

Second, not only are governments failing to assert their own powers of regulation in response to the courts’ actions, they are on the contrary encouraging such PILs. The Attorney General, K.K. Venugopal, who is representing the State of Tamil Nadu in the case, could have argued for the case’s dismissal by referring to the fact that the Ministry of Electronics and Information Technology has already published draft regulations that aim to introduce “traceability” and to increase obligations on social media platforms. Instead, he has largely urged the court to pass regulatory orders.

Third, ‘Aadhaar linking’ is becoming increasingly a refrain whenever any matter even loosely related to identification or investigation of crime is brought up. While the Madras High Court has ruled out such linking for social media platforms, other High Courts are still hearing petitions to formulate such rules. The processes that law enforcement agencies use to get information from platforms based in foreign jurisdictions rely on international agreements. Linking Aadhaar with social media accounts will have no bearing on these processes. Hence, the proposed ‘solution’ misses the problem entirely, and comes with its own threats of infringing privacy.

Problems of investigation

That said, investigating cybercrime is a serious problem for law enforcement agencies. However, the proceedings before the court indicate that the cause of the issues have not been correctly identified. While legal provisions that allow agencies to seek information from online platforms already exist in the Code of Criminal Procedure and the Information Technology Act, getting this information from platforms based in foreign jurisdictions can be a long and cumbersome process. For instance, the hurdles posed by the mutual legal assistance treaty between India and the U.S. effectively mean that it might take months to receive a response to information requests sent to U.S.-based platforms, if a response is received at all.

To make cybercrime investigation easier, the Indian government has various options. India should push for fairer executive agreements possible under instruments like the United States’ CLOUD Act, for which we need to first bring our surveillance laws in line with international human rights standards through reforms such as judicial oversight. India could use the threat of data localisation as a leverage to negotiate bilateral agreements with other countries to ensure that agencies have recourse to quicker procedures. As a first step, however, Indian courts must wash their hands of such questions. For its part, the Centre must engage in consultative policymaking around these important issues, rather than support ad-hoc regulation through court orders in PILs.

(Disclosure: The CIS is a recipient of research grants from Facebook.)

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-august-27-2019-a-judicial-overreach-into-matters-of-regulation

A Guide to Personal Data Protection Bill, 2019 Compliance - Privacy Policy

shweta — 2021-09-17T14:37:52Z

For more details visit https://cis-india.org/internet-governance/guide-to-personal-data-protection-bill.pdf

A Guide to Navigating Your Digital Rights

Anamika Kundu, Radhika, Shruti Trikanad, Torsha Sarkar — 2024-07-01T08:18:17Z

The Digital Rights Guide gives practical guidance on the laws and procedures that affect internet freedoms. It covers the following topics:

Internet Shutdowns
Content Takedown
Surveillance
Device Seizure

The Digital Rights Guide can be viewed here.

For more details visit https://cis-india.org/internet-governance/blog/digital-rights-guide-1

A Critique of Consent in Information Privacy

Amber Sinha and Scott Mason — 2016-01-18T02:20:10Z

The idea of informed consent in privacy law is supposed to ensure the autonomy of an individual in any exercise which involves sharing of the individual's personal information. Consent is usually taken through a document, a privacy notice, signed or otherwise agreed to by the participant.

Notice and Consent as cornerstone of privacy law
The privacy notice, which is the primary subject of this article, conveys all pertinent information, including risks and benefits to the participant, and in the possession of such knowledge, they can make an informed choice about whether to participate or not.

Most modern laws and data privacy principles seek to focus on individual control. In this context, the definition by the late Alan Westin, former Professor of Public Law & Government Emeritus, Columbia University, which characterises privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to other," ^{^[1]} is most apt. The idea of privacy as control is what finds articulation in data protection policies across jurisdictions beginning from the Fair Information Practice Principles (FIPP) from the United States. ^{^[2]} Paul Schwarz, the Jefferson E. Peyser Professor at UC Berkeley School of Law and a Director of the Berkeley Center for Law and Technology, called the FIPP the building blocks of modern information privacy law. ^{^[3]} These principles trace their history to a report called 'Records, Computers and Rights of Citizens'^{^[4]} prepared by an Advisory Committee appointed by the US Department of Health, Education and Welfare in 1973 in response to the increasing automation in data systems containing information about individuals. The Committee's mandate was to "explore the impact of computers on record keeping about individuals and, in addition, to inquire into, and make recommendations regarding, the use of the Social Security number."^{^[5]} The most important legacy of this report was the articulation of five principles which would not only play a significant role in the privacy laws in US but also inform data protection law in most privacy regimes internationally^{^[6]} like the OECD Privacy Guidelines, the EU Data Protection Principles, the FTC Privacy Principles, APEC Framework or the nine National Privacy Principles articulated by the Justice A P Shah Committee Report which are reflected in the Privacy Bill, 2014 in India. Fred Cate, the C. Ben Dutton Professor of Law at the Indiana University Maurer School of Law, effectively summarises the import of all of these privacy regimes as follows:

"All of these data protection instruments reflect the same approach: tell individuals what data you wish to collect or use, give them a choice, grant them access, secure those data with appropriate technologies and procedures, and be subject to third-party enforcement if you fail to comply with these requirements or individuals' expressed preferences"^{^[7]}

This makes the individual empowered and allows them to weigh their own interests in exercising their consent. The allure of this paradigm is that in one elegant stroke, it seeks to "ensure that consent is informed and free and thereby also to implement an acceptable tradeoff between privacy and competing concerns."^{^[8]} This system was originally intended to be only one of the multiple ways in data processing would be governed, along with other substantive principles such as data quality, however, it soon became the dominant and often the only mechanism.^{^[9]} In recent years however, the emergence of Big Data and the nascent development of the Internet of Things has led many commentators to begin questioning the workability of consent as a principle of privacy. ^{^[10]} In this article we will look closely at the some of issues with the concept of informed consent, and how these notions have become more acute in recent years. Following an analysis of these issues, we will conclude by arguing that today consent, as the cornerstone of privacy law, may in fact be thought of as counter-productive and that a rethinking of a principle based approach to privacy may be necessary.

Problems with Consent

To a certain extent, there are some cognitive problems that have always existed with the issue of informed consent such as long and difficult to understand privacy notices,^{^[11]} although, in recent past with these problems have become much more aggravated. Fred Cate points out that FIPPs at their inception were broad principles which included both substantive and procedural aspects. However, as they were translated into national laws, the emphasis remained on the procedural aspect of notice and consent. From the idea of individual or societal welfare as the goals of privacy, the focus had shifted to individual control.^{^[12]} With data collection occurring with every use of online services, and complex data sets being created, it is humanly impossible to exercise rational decision-making about the choice to allow someone to use our personal data. The thrust of Big Data technologies is that the value of data resides not in its primary purposes but in its numerous secondary purposes where data is re-used many times over. ^{^[13]} In that sense, the very idea of Big Data conflicts with the data minimization principle.^{^[14]} The idea is to retain as much data as possible for secondary uses. Since, these secondary uses are, by their nature, unanticipated, its runs counter to the the very idea of the purpose limitation principle. ^{^[15]} The notice and consent requirement has simply led to a proliferation of long and complex privacy notices which are seldom read and even more rarely understood. We will articulate some issues with privacy notices which have always existed, and have only become more exacerbated in the context of Big Data and the Internet of Things.

1. Failure to read/access privacy notices

The notice and consent principle relies on the ability of the individual to make an informed choice after reading the privacy notice. The purpose of a privacy notice is to act as a public announcement of the internal practices on collection, processing, retention and sharing of information and make the user aware of the same.^{^[16]} However, in order to do so the individual must first be able to access the privacy notices in an intelligible format and read them. Privacy notices come in various forms, ranging from documents posted as privacy policies on a website, to click through notices in a mobile app, to signs posted in public spaces informing about the presence of CCTV cameras. ^{^[17]}

In order for the principle of notice and consent to work, the privacy notices need to be made available in a language understood by the user. As per estimates, about 840 million people (11% of the world population) can speak or understand English. However, most privacy notices online are not available in the local language in different regions.^{^[18]} Further, with the ubiquity of smartphones and advent of Internet of Things, constrained interfaces on mobile screens and wearables make the privacy notices extremely difficult to read. It must be remembered that privacy notices often run into several pages, and smaller screens effectively ensure that most users do not read through them. Further, connected wearable devices often have "little or no interfaces that readily permit choices." ^{^[19]} As more and more devices are connected, this problem will only get more pronounced. Imagine in a world where refrigerators act as the intermediary disclosing information to your doctor or supermarket, at what point does the data subject step in and exercise consent.^{^[20]}

Another aspect that needs to be understood is that unlike earlier when data collectors were far and few in between, the user could theoretically make a rational choice taking into account the purpose of data collection. However, in the world of Big Data, consent often needs to be provided while the user is trying to access services. In that context click through privacy notices such as those required to access online application, are treated simply as an impediment that must be crossed in order to get access to services. The fact that the consent need to be given in real time almost always results in disregarding what the privacy notices say.^{^[21]}

Finally, some scholars have argued that while individual control over data may be appealing in theory, it merely gives an illusion of enhanced privacy but not the reality of meaningful choice.^{^[22]} Research demonstrates that the presence of the term 'privacy policy' leads people to the false assumption that if a company has a privacy policy in place, it automatically means presence of substantive and responsible limits on how data is handled.^{^[23]} Joseph Turow, the Robert Lewis Shayon Professor of Communication at the Annenberg School for Communication, and his team for example has demonstrated how "[w]hen consumers see the term 'privacy policy,' they believe that their personal information will be protected in specific ways; in particular, they assume that a website that advertises a privacy policy will not share their personal information."^{^[24]} In reality, however, privacy policies are more likely to serve as liability disclaimers for companies than any kind of guarantee of privacy for consumers. Most people tend to ignore privacy policies.^{^[25]} Cass Sunstein states that our cognitive capacity to make choices and take decisions is limited. When faced with an overwhelming number of choices to make, most of us do not read privacy notices and resort to default options.[26] The requirement to make choices, sometimes several times in a day, imposes significant burden on the consumers as well the business seeking such consent. ^{^[27]}

2. Failure to understand privacy notices

FTC chairperson Edith Ramirez stated: "In my mind, the question is not whether consumers should be given a say over unexpected uses of their data; rather, the question is how to provide simplified notice and choice."^{^[28]} Privacy notices often come in the form of long legal documents much to the detriment of the readers' ability to understand them. These policies are "long, complicated, full of jargon and change frequently."^{^[29]} Kent walker list five problems that privacy notices typically suffer from - a) overkill - long and repetitive text in small print, b) irrelevance - describing situations of little concern to most consumers, c) opacity - broad terms the reflect the truth that is impossible to track and control all the information collected and stored, d) non-comparability - simplification required to achieve comparability will lead to compromising accuracy, and e) inflexibility - failure to keep pace with new business models.^{^[30]} Erik Sherman did a review of twenty three corporate privacy notices and mapped them against three indices which give approximate level of education necessary to understand text on a first read. His results show that most of policies can only be understood on the first read by people of a grade level of 15 or above. ^{^[31]} FTC Chairperson Timothy Muris summed up the problem with long privacy notices when he said, "Acres of trees died to produce a blizzard of barely comprehensible privacy notices." ^{^[32]}

Margaret Jane Radin, the former Henry King Ransom Professor of Law Emerita at the University of Michigan, provides a good definition of free consent. It "involves a knowing understanding of what one is doing in a context in which it is actually

possible for or to do otherwise, and an affirmative action in doing something, rather

than a merely passive acquiescence in accepting something."^{^[33]} There have been various proposals advocating a more succinct and simpler standard for privacy notices,^{^[34]} or multi-layered notices^{^[35]} or representing the information in the form of a table. ^{^[36]} However, studies show only an insignificant improvement in the understanding by consumers when privacy policies are represented in graphic formats like tables and labels. ^{^[37]} It has also been pointed out that it is impossible to convey complex data policies in simple and clear language.^{^[38]}

3. Failure to anticipate/comprehend the consequences of consent

Today's infinitely complex and labyrinthine data ecosystem is beyond the comprehension of most ordinary users. Despite a growing willingness to share information online, most have no understanding of what happens to their data once they have uploaded it - Where it goes? Whom it is held by? Under what conditions? For what purpose? Or how might it be used, aggregated, hacked, or leaked in the future? For the most part, the above operations are "invisible, managed at distant centers, from behind the scenes, by unmanned powers."^{^[39]}

The perceived opportunities and benefits of Big Data have led to an acceptance of the indiscriminate collection of as much data as possible as well as the retention of that data for unspecified future analysis. For many advocates, such practices are absolutely essential if Big Data is to deliver on its promises.. Experts have argued that key privacy principles particularly those of collection limitation, data minimization and purpose limitation should not be applied to Big Data processing.^{^[40]} As mentioned above, in the case of Big Data, the value of the data collected comes often not from its primary purpose but from its secondary uses. Deriving value from datasets involves amalgamating diverse datasets and executing speculative and exploratory kinds of analysis in order to discover hidden insights and correlations that might have previously gone unnoticed.^{^[41]} As such organizations are today routinely reprocessing data collected from individuals for purposes not directly related to the services they provide to the customer. These secondary uses of data are becoming increasingly valuable sources of revenue for companies as the value of data in and of itself continues to rise. ^{^[42]}

Purpose Limitation

The principle of purpose limitation has served as a key component of data protection for decades. Purposes given for the processing of users' data should be given at the time of collection and consent and should be "specified, explicit and legitimate". In practice however, reasons given typically include phrases such as, 'for marketing purposes' or 'to improve the user experience' that are vague and open to interpretation. ^{^[43]}

Some commentators whilst conceding the fact that purpose limitation in the era of Big Data may not be possible have instead attempted to emphasise the notion of 'compatible use' requirements. In the view of Working Party on the protection of individuals with regard to the processing of person data, for example, use of data for a purpose other than that originally stated at the point of collection should be subject to a case-by-case review of whether not further processing for different purpose is justifiable - i.e., compatible with the original purpose. Such a review may take into account for example, the context in which the data was originally collected, the nature or sensitivity of the data involved, and the existence of relevant safeguards to insure fair processing of the data and prevent undue harm to the data subject.^{^[44]}

On the other hand, Big Data advocates have argued that an assessment of legitimate interest rather than compatibility with the initial purpose is far better suited to Big Data processing.^{^[45]} They argue that today the notion of purpose limitation has become outdated. Whereas previously data was collected largely as a by-product of the purpose for which it was being collected. If for example, we opted to use a service the information we provided was for the most part necessary to enable the provision of that service. Today however, the utility of data is no longer restricted to the primary purpose for which it is collected but can be used to provide all kinds of secondary services and resources, reduce waste, increase efficiency and improve decision-making.^{^[46]} These kinds of positive externalities, Big Data advocates insist, are only made possible by the reprocessing of data.

Unfortunately for the notion of consent the nature of these secondary purposes are rarely evident at the time of collection. Instead the true value of the data can often only be revealed when it is amalgamated with other diverse datasets and subjected to various forms of analysis to help reveal hidden and non-obvious correlations and insights.^{^[47]} The uncertain and speculative value of data therefore means that it is impossible to provide "specific, explicit, and legitimate" details about how a given data set will be used or how it might be aggregated in future. Without this crucial information data subjects have no basis upon which they can make an informed decision about whether or not to provide consent. Robert Sloan and Richard Warner argue that it is impossible for a privacy notice to contain enough information to enable free consent. They argue that current data collection practices are highly complex and that these practices involve collection of information at one stage for one purpose and then retain, analyze, and distribute it for a variety of other purposes in unpredictable ways. ^{^[48]} Helen Nissenbaum points to the ever changing nature of data flow and the cognitive challenges it poses. "Even if, for a given moment, a

snapshot of the information flows could be grasped, the realm is in constant flux, with new firms entering the picture, new analytics, and new back end contracts forged: in other words, we are dealing with a recursive capacity that is indefinitely extensible." ^{^[49]}

Scale and Aggregation

Today the quantity of data being generated is expanding at an exponential rate. From smartphones and televisions, trains and airplanes, sensor-equipped buildings and even the infrastructures of our cities, data now streams constantly from almost every sector and function of daily life, 'creating countless new digital puddles, lakes, tributaries and oceans of information'.^{^[50]} In 2011 it was estimated that the quantity of data produced globally would surpass 1.8 zettabytes , by 2013 that had grown to 4 zettabytes , and with the nascent development of the Internet of Things gathering pace, these trends are set to continue. ^{^[51]} Big Data by its very nature requires the collection and processing of very large and very diverse data sets. Unlike other forms scientific research and analysis which utilize various sampling techniques to identify and target the types of data most useful to the research questions, Big Data instead seeks to gather as much data as possible, in order to achieve full resolution of the phenomenon being studied, a task made much easier in recent years as a result of the proliferation of internet enabled devices and the growth of the Internet of Things. This goal of attaining comprehensive coverage exists in tension however with the key privacy principles of collection limitation and data minimization which seek to limit both the quantity and variety of data collected about an individual to the absolute minimum. ^{^[52]}

The dilution of the purpose limitation principle entails that even those who understand privacy notices and are capable of making rational choices about it, cannot conceptualize how their data will be aggregated and possibly used or re-used. Seemingly innocuous bits of data revealed at different stages could be combined to reveal sensitive information about the individual. Daniel Solove, the John Marshall Harlan Research Professor of Law at the George Washington University Law School, in his book, "The Digital Person", calls it the aggregation effect. He argues that the ingenuity of the data mining techniques and the insights and predictions that could be made by it render any cost-benefit analysis that an individual could make ineffectual. ^{^[53]}

4. Failure to opt-out

The traditional choice against the collection of personal data that users have had access to, at least in theory, is the option to 'opt-out' of certain services. This draws from the free market theory that individuals exercise their free will when they use services and always have the option of opting out, thus, arguing against regulation but relying on the collective wisdom of the market to weed out harms. The notion that the provision of data should be a matter of personal choice on the part of the individual and that the individual can, if they chose decide to 'opt-out' of data collection, for example by ceasing use of a particular service, is an important component of privacy and data protection frameworks. The proliferation of internet-enabled devices, their integration into the built environment and the real-time nature of data collection and analysis however are beginning to undermine this concept. For many critics of Big Data, the ubiquity of data collection points as well as the compulsory provision of data as a prerequisite for the access and use of many key online services, is making opting-out of data collection not only impractical but in some cases impossible. ^{^[54]}

Whilst sceptics may object that individuals are still free to stop using services that require data. As online connectivity becomes increasingly important to participation in modern life, the choice to withdraw completely is becoming less of a genuine choice. ^{^[55]} Information flows not only from the individuals it is about but also from what other people say about them. Financial transactions made online or via debit/credit cards can be analysed to derive further information about the individual. If opting-out makes you look anti-social, criminal, or unethical, the claims that we are exercising free will seems murky and leads one to wonder whether we are dealing with coercive technologies.

Another issue with the consent and opt-out paradigm is the binary nature of the choice. This binary nature of consent makes a mockery of the notion that consent can function as an effective tool of personal data management. What it effectively means is that one can either agree with the long privacy notices, or choose to abandon the desired service. "This binary choice is not what the privacy architects envisioned four decades ago when they imagined empowered individuals making informed decisions about the processing of their personal data. In practice, it certainly is not the optimal mechanism to ensure that either information privacy or the free flow of information is being protected." ^{^[56]}

Conclusion: 'Notice and Consent' is counter-productive

There continues to be an unwillingness amongst many privacy advocates to concede that the concept of consent is fundamentally broken, as Simon Davies, a privacy advocate based in London, comments 'to do so could be seen as giving ground to the data vultures', and risks further weakening an already dangerously fragile privacy framework.^{^[57]} Nevertheless, as we begin to transition into an era of ubiquitous data collection, evidence is becoming stronger that consent is not simply ineffective, but may in some instances might be counter-productive to the goals of privacy and data protection.

As already noted, the notion that privacy agreements produce anything like truly informed consent has long since been discredited; given this fact, one may ask for whose benefit such agreements are created? One may justifiably argue that far from being for the benefit and protection of users, privacy agreement may in fact be fundamentally to the benefit of data brokers, who having gained the consent of users can act with near impunity in their use of the data collected. Thus, an overly narrow focus on the necessity of consent at the point of collection, risks diverting our attention from the arguably more important issue of how our data is stored, analysed and distributed by data brokers following its collection. ^{^[58]}

Furthermore, given the often complicated and cumbersome processes involved in gathering consent from users, some have raised concerns that the mechanisms put in place to garner consent could themselves morph into surveillance mechanisms. Davies, for example cites the case of the EU Cookie Directive, which required websites to gain consent for the collection of cookies. Davies observes how, 'a proper audit and compliance element in the system could require the processing of even more data than the original unregulated web traffic. Even if it was possible for consumers to use some kind of gateway intermediary to manage the consent requests, the resulting data collection would be overwhelming''. Thus in many instances there exists a fundamental tension between the requirement placed on companies to gather consent and the equally important principle of data minimization. ^{^[59]}

Given the above issues with notice and informed consent in the context of information privacy, and the fact that it is counterproductive to the larger goals of privacy law, it is important to revisit the principle or rights based approach to data protection, and consider a paradigm shift where one moves to a risk based approach that takes into account the actual threats of sharing data rather than relying on what has proved to be an ineffectual system of individual control. We will be dealing with some of these issues in a follow up to this article.

^{^[1]} Alan Westin, Privacy and Freedom, Atheneum, New York, 2015.

^{^[2]} FTC Fair Information Practice Principles (FIPP) available at https://www.it.cornell.edu/policies/infoprivacy/principles.cfm.

^{^[3]} Paul M. Schwartz, "Privacy and Democracy in Cyberspace," 52 Vanderbilt Law Review 1607, 1614 (1999).

^{^[4]} US Secretary's Advisory Committee on Automated Personal Data Systems, Records, Computers and the Rights of Citizens, available at http://www.justice.gov/opcl/docs/rec-com-rights.pdf

^{^[5]} https://epic.org/privacy/ppsc1977report/c13.htm .

^{^[6]} Marc Rotenberg, "Fair Information Practices and the Architecture of Privacy: What Larry Doesn't Get," available at https://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/rotenberg-fair-info-practices.pdf

^{^[7]} Fred Cate, The Failure of Information Practice Principles, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1156972

^{^[8]} Robert Sloan and Richard Warner, Beyong Notice and Choice: Privacy, Norms and Consent, 2014, available at https://www.suffolk.edu/documents/jhtl_publications/SloanWarner.pdf

^{^[9]} Fred Cate, Viktor Schoenberger, Notice and Consent in a world of Big Data, available at http://idpl.oxfordjournals.org/content/3/2/67.abstract

^{^[10]} Daniel Solove, Privacy self-management and consent dilemma, 2013 available at http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2093&context=faculty_publications

^{^[11]} Ben Campbell, Informed consent in developing countries: Myth or Reality, available at https://www.dartmouth.edu/~ethics/docs/Campbell_informedconsent.pdf ;

^{^[12]} Supra Note 7.

^{^[13]} Viktor Mayer Schoenberger and Kenneth Cukier, Big Data: A Revolution that will transform how we live, work and think" John Murray, London, 2013 at 153.

^{^[14]} The Data Minimization principle requires organizations to limit the collection of personal data to the minimum extent necessary to obtain their legitimate purpose and to delete data no longer required.

^{^[15]} Omer Tene and Jules Polonetsky, "Big Data for All: Privacy and User Control in the Age of Analytics," SSRN Scholarly Paper, available at http://papers.ssrn.com/abstract=2149364

^{^[16]} Florian Schaub, R. Balebako et al, "A Design Space for effective privacy notices" available at https://www.usenix.org/system/files/conference/soups2015/soups15-paper-schaub.pdf

^{^[17]} Daniel Solove, The Digital Person: Technology and Privacy in the Information Age, NYU Press, 2006.

^{^[18]} http://www.ethnologue.com/statistics/size

^{^[19]} Opening Remarks of FTC Chairperson Edith Ramirez Privacy and the IoT: Navigating Policy Issues International Consumer Electronics Show Las Vegas, Nevada January 6, 2015 available at https://www.ftc.gov/system/files/documents/public_statements/617191/150106cesspeech.pdf

^{^[20]} http://www.privacysurgeon.org/blog/incision/why-the-idea-of-consent-for-data-processing-is-becoming-meaningless-and-dangerous/

^{^[21]} Supra Note 10.

^{^[22]} Supra Note 7.

^{^[23]} Chris Jay Hoofnagle & Jennifer King, Research Report: What Californians Understand

About Privacy Online, available at http://ssrn.com/abstract=1262130

^{^[24]} Joseph Turrow, Michael Hennesy, Nora Draper, The Tradeoff Fallacy, available at https://www.asc.upenn.edu/sites/default/files/TradeoffFallacy_1.pdf

^{^[25]} Saul Hansell, "Compressed Data: The Big Yahoo Privacy Storm That Wasn't," New York Times, May 13, 2002 available at http://www.nytimes.com/2002/05/13/business/compressed-data-the-big-yahoo-privacy-storm-that-wasn-t.html?_r=0

[26] Cass Sunstein, Choosing not to choose: Understanding the Value of Choice, Oxford University Press, 2015.

^{^[27]} For example, Acxiom, processes more than 50 trillion data transactions a year. http://www.nytimes.com/2012/06/17/technology/acxiom-the-quiet-giant-of-consumer-database-marketing.html?pagewanted=all&_r=0

^{^[28]} Opening Remarks of FTC Chairperson Edith Ramirez Privacy and the IoT: Navigating Policy Issues International Consumer Electronics Show Las Vegas, Nevada January 6, 2015 available at https://www.ftc.gov/system/files/documents/public_statements/617191/150106cesspeech.pdf

^{^[29]} L. F. Cranor. Necessary but not sufficient: Standardized mechanisms for privacy notice and choice. Journal on Telecommunications and High Technology Law, 10:273, 2012, available at http://jthtl.org/content/articles/V10I2/JTHTLv10i2_Cranor.PDF

^{^[30]} Kent Walker, The Costs of Privacy, 2001 available at https://www.questia.com/library/journal/1G1-84436409/the-costs-of-privacy

^{^[31]} Erik Sherman, "Privacy Policies are great - for Phds", CBS News, available at http://www.cbsnews.com/news/privacy-policies-are-great-for-phds/

^{^[32]} Timothy J. Muris, Protecting Consumers' Privacy: 2002 and Beyond, available at http://www.ftc.gov/speeches/muris/privisp1002.htm

^{^[33]} Margaret Jane Radin, Humans, Computers, and Binding Commitment, 1999 available at http://www.repository.law.indiana.edu/ilj/vol75/iss4/1/

^{^[34]} Annie I. Anton et al., Financial Privacy Policies and the Need for Standardization, 2004 available at https://ssl.lu.usi.ch/entityws/Allegati/pdf_pub1430.pdf; Florian Schaub, R. Balebako et al, "A Design Space for effective privacy notices" available at https://www.usenix.org/system/files/conference/soups2015/soups15-paper-schaub.pdf

^{^[35]} The Center for Information Policy Leadership, Hunton & Williams LLP, "Ten Steps To Develop A Multi-Layered Privacy Notice" available at https://www.informationpolicycentre.com/files/Uploads/Documents/Centre/Ten_Steps_whitepaper.pdf

^{^[36]} Allen Levy and Manoj Hastak, Consumer Comprehension of Financial Privacy Notices, Interagency Notice Project, available at https://www.sec.gov/comments/s7-09-07/s70907-21-levy.pdf

^{^[37]} Patrick Gage Kelly et al., Standardizing Privacy Notices: An Online Study of the Nutrition Label Approach available at https://www.ftc.gov/sites/default/files/documents/public_comments/privacy-roundtables-comment-project-no.p095416-544506-00037/544506-00037.pdf

^{^[38]} Howard Latin, "Good" Warnings, Bad Products, and Cognitive Limitations, 41 UCLA Law Review available at https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=41+UCLA+L.+Rev.+1193&key=1c15e064a97759f3f03fb51db62a79a5

^{^[39]} Jonathan Obar, Big Data and the Phantom Public: Walter Lippmann and the fallacy of data privacy self management, Big Data and Society, 2015, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239188

^{^[40]} Viktor Mayer Schoenberger and Kenneth Cukier, Big Data: A Revolution that will transform how we live, work and think" John Murray, London, 2013.

^{^[41]} Supra Note 15.

^{^[42]} Supra Note 40.

^{^[43]} Article 29 Working Party, (2013) Opinion 03/2013 on Purpose Limitation, Article 29, available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2013/wp203_en.pdf

^{^[44]} Ibid.

^{^[45]} It remains unclear however whose interest would be accounted, existing EU legislation would allow commercial/data broker/third party interests to trump those of the user, effectively allowing re-processing of personal data irrespective of whether that processing would be in the interest of the user.

^{^[46]} Supra Note 40.

^{^[47]} Supra Note 10.

^{^[48]} Robert Sloan and Richard Warner, Beyong Notice and Choice: Privacy, Norms and Consent, 2014, available at https://www.suffolk.edu/documents/jhtl_publications/SloanWarner.pdf

^{^[49]} Helen Nissenbaum, A Contextual Approach to Privacy Online, available at http://www.amacad.org/publications/daedalus/11_fall_nissenbaum.pdf

^{^[50]} D Bollier, The Promise and Peril of Big Data. The Aspen Institute, 2010, available at: http://www.aspeninstitute.org/sites/default/files/content/docs/pubs/The_Promise_and_Peril_of_Big_Data.pdf

^{^[51]} Meeker, M. & Yu, L. Internet Trends, Kleiner Perkins Caulfield Byers, (2013), http://www.slideshare.net/kleinerperkins/kpcb-internet-trends-2013 .

^{^[52]} Supra Note 40.

^{^[53]} Supra Note 17.

^{^[54]} Janet Vertasi, My Experiment Opting Out of Big Data Made Me Look Like a Criminal, 2014, available at http://time.com/83200/privacy-internet-big-data-opt-out/

^{^[55]} Ibid.

^{^[56]} http://www.techpolicy.com/NoticeConsent-inWorldBigData.aspx

^{^[57]} Simon Davies, Why the idea of consent for data processing is becoming meaningless and dangerous, available at http://www.privacysurgeon.org/blog/incision/why-the-idea-of-consent-for-data-processing-is-becoming-meaningless-and-dangerous/

^{^[58]} Supra Note 10.

^{^[59]} Simon Davies, Why the idea of consent for data processing is becoming meaningless and dangerous, available at http://www.privacysurgeon.org/blog/incision/why-the-idea-of-consent-for-data-processing-is-becoming-meaningless-and-dangerous/

For more details visit https://cis-india.org/internet-governance/blog/a-critique-of-consent-in-information-privacy

A Critical Look at the Visual Representation of Cybersecurity

Paromita Bathija, Padmini Ray Murray, and Saumyaa Naidu — 2019-08-21T08:00:11Z

The Centre for Internet and Society and design collective Design Beku came together on the 15th of November for a workshop on Illustrations and Visual Representations of Cybersecurity. Images in the public sphere such as visuals in the media, Wikipedia commons, and stock images - play a vital role in the public’s perception of cybercrime and cybersecurity.

Edited by Karan Saini / Illustrations by - Paul Anthony George, and Roshan Shakeel

Download the file here

The existing imagery comprises of largely stereotypical images of silhouettes of men in hoodies, binary codes, locks, shields; all in dark tones of blue and green. The workshop aimed at identifying the concerns with these existing images and ideating on creating visuals that capture the nuanced concepts within cybersecurity as well as to contextualise them for the Global South. It began with a discussion on the various concepts within cybersecurity including disinformation, surveillance in the name of security, security researchers, regulation of big technology companies, gender and cybersecurity, etc. This was followed by a mapping of different visual elements in the existing cybersecurity imagery to infer the biases in them. Further, an ideation session was conducted to create alternate visualisations that counter these biases. A detailed report of the workshop can be read here.

The participants began by discussing the concerning impacts of present visualisations – there is a lack of representation and context of the global south. Misrepresentation of cybersecurity leads people to be susceptible to disinformation, treats cybercrime as an abstract concept that does not have a direct impact, and oversimplifies the problem and its solutions. The ecosystem in which this imagery exists also presented a larger issue. A majority of the images are created as clickbait alongside media articles. Media houses thus benefit from the oversimplification and mystification of cybersecurity in such images.

Through the mapping of existing images present online, several concerns were identified. The vague elements and unclear representation add to the mystification of cybersecurity as a concept. In present depictions, the use of technological devices and objects, leads to the lack of a human element, distancing the threat from any real impact to people using these devices. The metaphor of a physical threat is often used to depict cybersecurity using elements such as a lock and key. Recurring use of these elements gives a false idea of what is being secured or breached and how. Representations rely on tropes regarding the identity of hackers, and fail to capture the vulnerability of the system. The imagery gives the impression that systems which are breached are immensely secure to begin with and are compromised only as a result of sophisticated attacks carried out by malicious actors. The identity of hackers is commonly associated with cyber attacks and breaches, and the existing imagery reinforces this. Visuals showing a masked man or a silhouette of a man in dark background are the usual markers of a malicious hacker in conventional cybersecurity imagery. While there is a lack of representation of women in stock cybersecurity images, another trope found was that of a cheerful woman coder. There were also images of faceless women with laptops^{^[1]}. The reductive nature of these images point to deeper concerns around gender representation in cybersecurity.

The participants examined what the implications of such visual representation would be, and why there is a need to change the imagery. How can visual depictions be more representative? Can they avoid subscribing to a homogenised idea of an Indian context – specific without being reductive? Can better depiction broaden understanding of cybercrime and emphasize the proximity of those threats? With technology, concepts are often understood through metaphors – how data is explained impacts how people perceive it. Visual imagery can play a critical role in demystifying concepts when done well; illustrations can change the discourse. They must begin to incorporate intersecting aspects of gender, privacy, susceptibility of vulnerable populations, generational and cultural gaps, as well as manifestations of the described crimes to make technological laypersons more aware of the threat.

Potential new imagery would need to address aspects such as disinformation, the importance of privacy and who has a right to it, change representation of hackers, depict the cybersecurity community, explain specific concepts to both – the general user and to the people part of cybersecurity efforts in the country, the implications of cybercrime on vulnerable populations, and more in an attempt to deconstruct and disseminate what cybersecurity looks like today.

The ideation session involved rethinking specific concepts such as disinformation, and ethical hacking to create alternate imagery. For instance, disinformation was visually imagined as a distortion of an already distorted message being perceived by the viewer. In order to bring attention to the impact of devices, a phone was thought of as a central object to which different concepts of cybersecurity can be connected.

‘Fake News Cascade’ by Paul Anthony George

‘Fake News’ by Paul Anthony George

‘Disinformation/ Fake News’ by Roshan Shakeel; The sketch is about questioning the validity of what we see online, and that every message we see is constructed in some form or the other by someone else.

‘Disinformation/ Fake News’ by Roshan Shakeel; The sketch visualizes how the source of information ('the original') gets distorted after a certain point.

For ethical hacking, a visualisation depicting a day in the life of an ethical hacker was thought of to normalize hacking and to focus on their contribution in security research.

‘A Day in the Life of an Indian Hacker’ by Paul Anthony George

'Surveillance in the Name of Security' by Roshan Shakeel

Resources on ethical hacking (HackerOne)^[2] and hacker culture (2600.com)^[3] were also consulted as part of the exercise to gather references on the work done by hackers. This allowed a deeper understanding of how the hacker community depicts itself. Check Point Research^[4] and Kerala Police Cyberdome^[5] were also examined for further insight into cybersecurity. With regard to gender representation, sources that use visual techniques to communicate concerns and advocacy campaigns were also referred to. The Gendering Surveillance^[6] initiative by the Internet Democracy project^[7], which looks at how surveillance harms and restricts women, also offered insights on the use of illustrations supporting the case studies. Another reference was the "Visualising Women's Rights in the Arab World"^[8] project by the Tactical Technology Collective^[9]. The project aims to “strengthen the use of visual techniques by women's rights advocates in the Arab world, and to build a network of women with these skills”.^[10]

More visual explainers and animations^{^[11]} from the Tactical Technology Collective were noted for their broader engagement with digital security and privacy. A video by the Internet Democracy Project that explains the Internet through rangoli^{^[12]}, was observed specifically for setting the concept in Indian context through the use of aesthetics.

The workshop concluded with a discussion of potential visual iterations – imagery of cybersecurity that is not technology-oriented but focussed on the behavioural implications of access to such technology, illustrated public service announcements enhancing the profile of cybersecurity researchers or the everyday hacker. The impact of the discussion itself can indicate the relevance of such an effort. Artists and designers can be encouraged to create a body of imagery that shifts discourse and perception, to begin visualising for advocacy, demystify and stop the abstraction of cybercrime that can lead to a false sense of security, incorporate unique aspects of the debate within the Indian context, and generate new dialogue and understanding of cybersecurity. A potential step forward from this workshop would be to engage with the design community at large along with the domain experts to create more effective imagery for cybersecurity.

^{^[1]} https://www.hackerone.com/

^{^[2]} https://2600.com/

^{^[3]} https://research.checkpoint.com/about-us/

^{^[4]} http://www.cyberdome.kerala.gov.in/

^{^[5]} https://genderingsurveillance.internetdemocracy.in/

^{^[6]} https://internetdemocracy.in/

^{^[7]} https://visualrights.tacticaltech.org/index.html

^{^[8]} https://tacticaltech.org/

^{^[9]} https://visualrights.tacticaltech.org/content/about-website.html

^{^[10]} https://tacticaltech.org/projects/survival-in-the-digital-age-ono-robot-2012/

^{^[11]} https://internetdemocracy.in/2018/08/dots-and-connections/

^{^[12]} https://www.independent.co.uk/life-style/gadgets-and-tech/features/women-in-tech-its-time-to-drop-the-old-stereotypes-7608794.html

For more details visit https://cis-india.org/internet-governance/blog/paromita-bathija-padmini-ray-murray-and-saumyaa-naidu

A Compilation of Research on the Gig Economy

Aayush Rathi, Ambika Tandon, Sumandro Chattapadhyay — 2020-05-19T08:20:20Z

Over the past year, researchers at CIS have been studying gig economies and gig workers in India. Their work has involved consultative discussions with domestic workers, food delivery workers, taxi drivers, trade union leaders, and government representatives to document the state of gig work in India, and highlight the concerns of gig workers. The imposition of a severe lockdown in India in response to the outbreak of COVID-19 has left gig workers in precarious positions. Without the privilege of social distancing, these workers are having to contend with a drastic reduction in income, while also placing themselves at heightened health risks.

On gig economy during the COVID-19 pandemic

Supported by Feminist Internet Research Network led by the Association for Progressive Communications (APC) and funded by the International Development Research Centre (IDRC)

Along with Tandem Research, we spoke to leaders of four unions that represent gig workers across the country about the risks and vulnerabilities that they are having to contend with in the face of the COVID-19 crisis. Zothan Mawii (Tandem Research), Ambika Tandon, and Aayush Rathi share key reflections in this essay published on The Wire. (link).
Based on the discussion, a charter of recommendations was prepared with contributions from participants, and was shared with public and private stakeholders. (link)

On domestic workers in the platform economy

Supported by Feminist Internet Research Network led by the Association for Progressive Communications (APC) and funded by the International Development Research Centre (IDRC)

We discussed our ongoing research on the platformisation of domestic work in India with domestic workers, union members, and representatives from the Karnataka Labour Department in November 2019. Tasneem Mewa documented the rich discussion from this consultation. (link)

CIS worked with members of the Domestic Workers Rights Union to conduct field research on the lives and challenges of domestic workers in the platform economy. The following essays published on GenderIT capture their experiences of doing this research:

Parijatha G.P. writes about a “gated society management app,” MyGate, and the experiences of surveillance of migrant workers in Bengaluru. (link)
Radha Keerthna writes about the similarity in the conditions of domestic workers in the traditional and platform economy, particularly the precarity and invisibility of labour. (link)
Sumathi, a union leader, reflects on and her experience as an activist-researcher interacting with domestic gig workers through the course of our study. (link)
Zeenathunissa shares the difficulty of speaking to domestic workers in the gig economy, especially when workers undergo constant surveillance by employers and companies. (link)

On economic, algorithmic, and affective vulnerabilities of gig workers

Supported by Azim Premji University

CIS commissioned a set of four field studies of platform workers delivering food and driving taxis for platform companies in Mumbai and New Delhi. The researchers involved wrote a series of essays that were published by Platypus blog of CASTAC:

Anushree Gupta explores women’s presence as workers as well as passengers/customers in the ride hailing platform economy in Mumbai and related concerns of safety and risk mitigation. (link)
Sarah Zia highlights how algorithmic management of work and revenue targets of gig workers impact their everyday lives and plans for the future. (link)
Kinship networks are a critical source of safety and security for workers in the gig economy. Simiran Lalvani writes about the network among transportation workers in Mumbai, also reflecting on implications for those who are excluded. (link)
Noopur Raval and Rajendra Jadhav describe the unregulated and exploitative temporal structures of gig work, and how work-time of gig workers get configured by customer-facing promises of platform companies. (link)
The four researchers, led by Noopur Raval (co-PI for the project, held a roundtable discussion to reflect on methods, challenges, inter-subjectivities and possible future directions for research on the gig economy and its workers. (link)

The consultants - Noopur Raval, Anushree Gupta, Rajendra Jadhav, Sarah Zia and Simiran Lalvani - involved in this project on mapping digital labour in India’s platform economies (in Mumbai and New Delhi) gathered in Bengaluru on July 19, 2019 to share their preliminary field insights along with reflections on what it meant to do such studies, how they went about studying gig-work, and challenges that arose in their work. Watch the livestream from this discussion here.

For more details visit https://cis-india.org/raw/a-compilation-of-research-on-the-gig-economy

A Comparison of Indian Legislation to Draft International Principles on Surveillance of Communications

elonnai — 2013-07-12T15:40:51Z

This blog post is a comparison of the relevant Indian legislations allowing governmental access to communications and the Draft International Principles on Surveillance of Communications. The principles, first drafted in October 2012 and developed subsequently seeks to establish an international standard for surveillance of communications in the context of human rights.

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

The Centre for Internet and Society is contributing feedback to the drafting of the principles. The principles are still in draft form and the most recent version along with the preamble to the principles can be accessed at: http://necessaryandproportionate.net/

The Principles:

1. Principle - Legality: Any limitation to the right to privacy must be prescribed by law. Neither the Executive nor the Judiciary may adopt or implement a measure that interferes with the right to privacy without a previous act by the Legislature that results from a comprehensive and participatory process. Given the rate of technological change, laws enabling limitations on the right to privacy should be subject to periodic review by means of a participatory legislative or regulatory process.

Indian Legislation: In India there are two predominant legislations with subsequent Rules and Licenses that allow for access to communications by law enforcement and the government. Though the basic power of interception of communications are prescribed by law, the Rules and Licenses build off of these powers and create procedural requirements, and requirements for assistance.

The Indian Telegraph Act, 1885

The Indian Telegraph Amendment Rules 2007: These Rules are grounded in section 419A of the Indian Telegraph Act and establish procedures and safeguards for the interception of communications.
License Agreement for Provision of Unified Access Services After Migration from CMTS (UASL): This license is grounded in the Telegraph Act, and details what types of assistance service providers must provide to law enforcement and the government.
License Agreement for Provision of Internet Services: This license is grounded in the Telegraph Act, and details what types of assistance service providers must provide to law enforcement and the government.
The Information Technology Act, 2000
- Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules 2009: These Rules were notified in 2009 and allow authorized governmental agencies to intercept, monitor, and decrypt information generated, transmitted, received, or stored in any computer resource.
- Procedure and safeguard for Monitoring and Collecting Traffic Data or Information Rules 2009: These Rules were notified in 2009 and allow authorized agencies to monitor and collect traffic data or information that is generated, transmitted, received or stored in any computer resource.

2. Principle - Legitimate Purpose: Laws should only allow access to communications or communications metadata by authorized public authorities for investigative purposes and in pursuit of a legitimate purpose, consistent with a free and democratic society.

Indian Legislation: In relevant Indian legislation there are no specific provisions requiring that access by law enforcement must be for a legitimate purpose and consistent with a free and democratic society. Instead, Indian legislation defines and lays out specific circumstances for which access would be allowed.

Below are the circumstances for which access is allowed by each Act, Rule, and License:

The TA Rules 2007: Interception is allowed in the following circumstances:

On the occurrence of any public emergency

In the interest of the public safety

In the interests of the sovereignty and integrity of India

The security of the state

Friendly relations with foreign states

Public order

Preventing incitement to the commission of an offence

ITA Interception and Monitoring Rules: Interception, monitoring, and decryption of communications is allowed in the following circumstances:

In the interest of the sovereignty or integrity of India,
Defense of India
Security of the state
Friendly relations with foreign states
Public order
Preventing incitement to the commission of any cognizable offence relating to the above
For investigation of any offence

ITA Monitoring of Traffic Data Rules: Monitoring of traffic data and collection of information is allowed for the following purposes related to cyber security:

Forecasting of imminent cyber incidents
Monitoring network application with traffic data or information on computer resources
Identification and determination of viruses or computer contaminant
Tracking cyber security breaches or cyber security incidents
Tracking computer resource breaching cyber security or spreading virus’s or computer contaminants
Identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach cyber security.
Undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource.
Accessing stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force.
Any other matter relating to cyber security.

UASL License: Assistance must be provided to the government for the following reasons and times:

Reasons defined in the Telegraph Act. (Section 41.20 (xix))
National Security. (Section 41.20 (xvii))
To counteract espionage, subversive act, sabotage, or any other unlawful activity. (Section 41.1)
Trace nuisance, obnoxious or malicious calls, messages or communications transported through his/her equipment. (Section 40.4)
In the interests of security. (Section 41.7)
For security reasons. (Section 41.20 (iii))

ISP License: Assistance must be provided to the government for the following reasons and times:

To counteract espionage, subversive act, sabotage, or any other unlawful activity. (Section 34.1)
In the interests of security. (Section 34.4)
For security reasons. (Section 34.28 (iii))
Reasons defined in the Telegraph Act. (Section 35.2)

3. Principle - Necessity: Laws allowing access to communications or communications metadata by authorized public authorities should limit such access to that which is strictly and demonstrably necessary, in the sense that an overwhelmingly positive justification exists, and justifiable in a democratic society in order for the authority to pursue its legitimate purposes, and which the authority would otherwise be unable to pursue. The onus of establishing this justification, in judicial as well as in legislative processes, is on the government.

Indian Legislation: Relevant Indian legislation do not contain provisions mandating that access to communications must be demonstrably necessary, and do not give details of the criteria that authorizing authorities should use to determine if a request is a valid or not. Relevant Indian legislation does require that all directions contain reasons for the direction. Additionally, excluding the ITA Procedure and safeguard for Monitoring and Collecting Traffic Data or Information Rules, relevant Indian legislation requires that all other means for acquiring the information must be taken into consideration before a direction for access can be granted.

Below are summaries of the relevant provisions:

TA Rules 2007: Any order for interception issued by the competent authority must contain reasons for the direction (Section 2). While issuing orders for direction, all other means for acquiring the information must be taken into consideration, and directions can only be issued if it is not possible to acquire the information by any other reasonable means (Section 3).
ITA Interception and Monitoring Rules: Any direction issued by the competent authority must contain reasons for such direction (Section 7). The competent authority must consider the possibility of acquiring the necessary information by other means and the direction can be issued only when it is not possible to acquire the information any other reasonable means (Section 8).
ITA Traffic Monitoring Rules: Any direction issued by the competent authority must contain reasons for the direction (Section 3(3)).
UASL & ISP License: As laid out in the Telegraph Act and subsequent Rules.

4. Principle - Adequacy: Public authorities should restrain themselves from adopting or implementing any measure of intrusion allowing access to communications or communications metadata that is not appropriate for fulfillment of the legitimate purpose that justified establishing that measure.

Indian Legislation: In relevant Indian legislation there are provisions that require direction for access to be specific, but there are no provisions that specifically prohibit government agencies from collecting and accessing information that is not appropriate for fulfillment of the stated purpose of the direction.

5. Principle - Competent Authority: Authorities capable of making determinations relating to communications or communications metadata must be competent and must act with independence and have adequate resources in exercising the functions assigned to them.

Indian Legislation: In relevant Indian legislation it is required that directions for access to be authorized by "competent authorities". The most common authority for authorizing orders for access is the Secretary to the Government of India in the Ministry of Home Affairs, but authorization can also come from other officials depending on the circumstance. The fact that authorization for access to communications content is not from a judge has been a contested topic, as in many countries a judicial order is the minimum requirement for access to communication content. It is unclear from the legislation if adequate resources are assigned to the competent authorities.

Below are summaries of relevant provisions:

The TA Rules 2007: Under the Telegraph Act the authorizing authorities are:

The Secretary to the Government of India in the Ministry of Home Affairs at the Central Level
The Secretary to the State Government in charge of the Home Department in the case of the State Government.
In unavoidable circumstances an order for interception may only be made by an officer not below the rank of a Joint Secretary to the Government of India who has been authorized by the Union Home Secretary or the State Secretary.
In remote areas or for operational reasons where obtaining prior directions for interception is not feasible the head or the second senior most officer of the authorized security agency at the Central level and the officers authorized in this behalf and not below the rank of Inspector of General Police. (Section 1(2)).
ITA Interception and Monitoring Rules: Under the ITA Rules related to the interception, monitoring, and decryption of communications, the competent authorities for authorizing directions are:
- The Secretary in the Ministry of Home Affairs in case of the Central Government.
- The Secretary in charge of the Home Department, in case of a State Government or Union Territory.
- In unavoidable circumstances any officer not below the rank of the Joint Secretary to the Government of India who has been authorized by the competent authority.
- In remote areas or for operational reasons where obtaining prior directions is not feasible, the head or the second senior most officer of the security and law enforcement agency at the Central level or the officer authorized and not below the rank of the inspector General of Police or an officer of equivalent rank at the State or Union territory level. (Section 3).
ITA Monitoring and Collecting Traffic Data Rules: Under the ITA Rules related to the monitoring and collecting of traffic data, the competent authorities who can issue and authorize directions are:
- The Secretary to the Government of Indian in the Department of Information Technology under the Ministry of Communications and Information Technology. (Section 2(d)).
- An employee of an intermediary may complete the following if it is in relation to the services that he is providing including: accessing stored information from computer resource for the purpose of implementing information security practices in the computer resource, determining any security breaches, computer contaminant or computer virus, undertaking forensic of the concerned computer resource as a part of investigation or internal audit. Accessing or analyzing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened or is suspected of having contravened or being likely to contravene any provisions of the Act that is likely to have an adverse impact on the services provided by the intermediary. (Section 9 (2)).
UASL & ISP License: As laid out in the Telegraph Act and subsequent Rules.

6. Principle - Proportionality: Public authorities should only order the preservation and access to specifically identified, targeted communications or communications metadata on a case-by-case basis, under a specified legal basis. Competent authorities must ensure that all formal requirements are fulfilled and must determine the validity of each specific attempt to access or receive communications or communications metadata, and that each attempt is proportionate in relation to the specific purposes of the case at hand. Communications and communications metadata are inherently sensitive and their acquisition should be regarded as highly intrusive. As such, requests should at a minimum establish a) that there is a very high degree of probability that a serious crime has been or will be committed; b) and that evidence of such a crime would be found by accessing the communications or communications metadata sought; c) other less invasive investigative techniques have been exhausted; and d) that a plan to ensure that the information collected will be only that information reasonably related to the crime and that any excess information collected will be promptly destroyed or returned. Neither the scope of information types, the number or type of persons whose information is sought, the amount of data sought, the retention of that data held by the authorities, nor the level of secrecy afforded to the request should go beyond what is demonstrably necessary to achieve a specific investigation.

Indian Legislation: In relevant Indian legislation there are no comprehensive provisions that ensure proportionality of the surveillance of communications but there are provisions that contribute to ensuring proportionality. These include provisions requiring: time frames for how long law enforcement can retain accessed and collected material, directions to be issued only after there are no other means for acquiring the information, requests to contain reasons for the order, the duration for which an order can remain in force to be limited, and requests to be for specified purpose based on a particular set of premises. All of these provisions are found in the Telegraph Rules issued in 2007 and the ITA Procedures and Safeguards for Interception, Monitoring, and Decryption of Information Rules. None of these requirements are found in the UASL or ISP licenses, and many are missing from the ITA Safeguards for Monitoring and Collecting Traffic Data or Information Rules.

Though the above are steps to ensuring proportionality, Indian legislation does not provide details of how the proportionality of requests would be measured as recommended by the principle. For example, it is not required that requests for access demonstrate that evidence of the crime would be found by accessing the communications or communications metadata sought, and that information only related directly to the crime will be collected. Furthermore, Indian legislation does not place restrictions on the amount of data sought, nor the level of secrecy afforded to the request.

Below is a summary of the relevant provisions:

TA Rules 2007:

Service providers shall destroy record pertaining to directions for interception of message within two months of discontinuing the interception. (Section 19).
Directions for interception should only be issued only when it is not possible to acquire the information by any other reasonable means. (Section 3).
The interception must be of a message or class of message from and too one particular person that is specified or described in the order or one particular set of premises specified or described in the order. (Section 4).
The direction for interception will remain in force for a period of 60 days, or 180 days if the directions are renewed. (Section 6).
ITA Interception and Monitoring Rules:
- Any direction issued by the competent authority must contain reasons for such direction. (Section 7).
- The competent authority must consider all other possibilities of acquiring the information by other means, and the direction can only be issued when it is not possible to acquire the information by any other reasonable means. (Section 8).
- The direction of interception, monitoring, or decryption of any information generated, transmitted, received, or stored in any computer resource etc., as may be specified or described in the direction. (Section 9).
- The directions for interception, monitoring, or decryption will remain in force for a period of 60 days, or 180 days if the directions are renewed. (Section 10).
ITA Traffic and Monitoring Rules:
- Any direction issued by the competent authority must contain reasons for such direction. (Section 3(3)).
- Every record including electronic records pertaining to such directions for monitoring or collection of traffic data shall be destroyed after the expiry of nine months by the designated officer. Except when the information is needed for an ongoing investigation, the person in charge of a computer resource shall destroy records within a period of six months of discontinuing the monitoring. (Section 8).

7. Principle - Due process: Due process requires that governments must respect and guarantee an individual’s human rights, that any interference with such rights must be authorized in law, and that the lawful procedure that governs how the government can interfere with those rights is properly enumerated and available to the general public.(9) While criminal investigations and other considerations of public security and safety may warrant limited access to information by public authorities, the granting of such access must be subject to guarantees of procedural fairness. Every request for access should be subject to prior authorization by a competent authority, except when there is imminent risk of danger to human life.(10)

Indian Legislation: In the relevant Indian legislation the only guarantee for due process is that every request for access must be subject to prior authorization by a competent authority.

TA Rules 2007:

All orders for interception must be issued by the Secretary to the Government of India in the Ministry of Home Affairs.
ITA Interception and Monitoring Rules:
- All orders for interception must be issued by the Secretary to the Government of India in the Ministry of Home Affairs.
ITA Monitoring of Traffic Rules:
- The Secretary to the Government of India in the Department of Information Technology under the Ministry of Communications and Information Technology is the competent authority for authorizing orders.

8. Principle - User notification: Notwithstanding the notification and transparency requirements that governments should bear, service providers should notify a user that a public authority has requested his or her communications or communications metadata with enough time and information about the request so that a user may challenge the request. In specific cases where the public authority wishes to delay the notification of the affected user or in an emergency situation where sufficient time may not be reasonable, the authority should be obliged to demonstrate that such notification would jeopardize the course of investigation to the competent judicial authority reviewing the request. In such cases, it is the responsibility of the public authority to notify the individual affected and the service provider as soon as the risk is lifted or after the conclusion of the investigation, whichever is sooner.

Indian Legislation: In relevant Indian legislation there are no provisions that require the government or service providers to notify the user that a public authority has requested his or her communication data.

9. Principle - Transparency about use of government surveillance: The access capabilities of public authorities and the process for access should be prescribed by law and should be transparent to the public. The government and service providers should provide the maximum possible transparency about the access by public authorities without imperiling ongoing investigations and with enough information so that individuals have sufficient knowledge to fully comprehend the scope and nature of the law, and when relevant, challenge it. Service providers must also publish the procedure they apply to deal with data requests from public authorities.

Indian Legislation: In relevant Indian legislation there are no requirements that access capabilities of the government and the process for access must be transparent to the public. Nor are service providers required to publish the procedure applied to handle data requests from public authorities.

10. Principle - Oversight: An independent oversight mechanism should be established to ensure transparency of lawful access requests. This mechanism should have the authority to access information about public authorities' actions, including, where appropriate, access to secret or classified information, to assess whether public authorities are making legitimate use of their lawful capabilities, and to publish regular reports and data relevant to lawful access. This is in addition to any oversight already provided through another branch of government such as parliament or a judicial authority. This mechanism must provide – at minimum – aggregate information on the number of requests, the number of requests that were rejected, and a specification of the number of requests per service provider and per type of crime. (11)

Indian Legislation: In relevant Indian legislation there are requirements for a review committee to be established. The review committee must meet on a bi-monthly basis and review directions to ensure that they are in accordance with the prescribed law. Currently, it is unclear from the legislation if the review committees have the authority to access information about public authorities’ actions, and currently the review committee does not publish aggregate information about the number of requests, the number of requests that were rejected, and a specification of the number of requests per service provider and per type of crime. These standards are recommended by the principle.

The relevant provisions are summarized below:

TA Rules 2007:

A review committee will be constituted by a state government that consists of a chief secretary, secretary of law, secretary to the state government. The review committee shall meet at least once in two months. If the committee finds that directions are not in accordance with the mandated provisions, then the committee can order the destruction of the directions. (Section 17). Any order issued by the competent authority must contain reasons for such directions and a copy be forwarded to the concerned review committee within a period of seven working days. (Section 2).
ITA Interception and Monitoring Rules:
- Any direction issued by the competent authority must be forwarded to the review committee within a period of seven working days from issuing. The review committee is the same as constituted under rule 419A of the Indian Telegraph Rules, 1951. The review committee must meet bi-monthly and determine whether directions are in accordance with the ITA Act. If the review committee finds that the directions are not in accordance with the Act, it may issue an order for the destruction of the copies of accessed information and set aside the directions. (Section 22).
ITA Traffic Monitoring Rules:
- Any direction issued by the competent authority must be forwarded to the review committee within a period of seven working days from issuing. The review committee is the same as constituted under rule 419A of the Indian Telegraph Rules, 1951. The review committee must meet bi-monthly and determine whether directions are in accordance with the ITA Act. If the review committee finds that the directions are not in accordance with the Act, it may issue an order for the destruction of the copies of accessed information and set aside the directions. (Section 7).

11. Principles - Integrity of communications and systems: It is the responsibility of service providers to transmit and store communications and communications metadata securely and to a degree that is minimally necessary for operation. It is essential that new communications technologies incorporate security and privacy in the design phases. In order, in part, to ensure the integrity of the service providers’ systems, and in recognition of the fact that compromising security for government purposes almost always compromises security more generally, governments shall not compel service providers to build surveillance or monitoring capability into their systems. Nor shall governments require that these systems be designed to collect or retain particular information purely for law enforcement or surveillance purposes. Moreover, a priori data retention or collection should never be required of service providers and orders for communications and communications metadata preservation must be decided on a case-by-case basis. Finally, present capabilities should be subject to audit by an independent public oversight body.

Indian Legislation: In relevant Indian legislation there are a number of security measures that must be put in place but these are predominantly actions that must be taken by service providers, and do not pertain to intelligence agencies. Furthermore, many provisions found in the ITA Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules, and the ISP and UASL licenses include requirements for service providers to provide monitoring facilities and technical assistance, require information to be retained specifically for law enforcement purposes, and require service providers to comply with a-priori data retention mandates. In the ISP and UASL license, service providers are audited and inspected to ensure compliance with requirements listed in the license, but it unclear from the legislation if the access capabilities of government or governmental agencies are audited by an independent public oversight body. This standard is recommended by the principle.

Relevant provisions are summarized below:

TA Rules 2007: The service provider must put in place internal checks to ensure that unauthorized interception of messages does not take place. (Section 14) Service providers are also responsible for actions of their employees. In the case of unauthorized interception or a breach in security, service providers can be held liable for up to three years in prison, fines, and revocation of the service providers licenses depending on the nature and scale of the violation. (Section 20, 20A 21, 23).

ITA Interception and Monitoring Rules: The intermediary or person in charge of the computer resources must put in place adequate and effective internal checks to ensure that unauthorized interception of communications does not take place and extreme secrecy is maintained and utmost care and precaution taken in the matter of interception or monitoring or decryption of information as it affects privacy of citizens and also that it is handled only by the designated officers of the intermediary. (Section 20).

ITA Traffic Monitoring Rules: The intermediary or person in charge of the computer resources must put in place adequate and effective internal checks to ensure that unauthorized interception of communications does not take place and extreme secrecy is maintained and utmost care and precaution taken in the matter of interception or monitoring or decryption of information as it affects privacy of citizens and also that it is handled only by the designated officers of the intermediary. (Section 5&6).

UASL License: The intermediary or service provider is responsible for ensuring the protection of privacy of communication and to ensure that unauthorized interception of messages does not take place. (Section 39.1, Section 39.2, Section 41.4).

ISP License: The ISP has the responsibility of ensuring that unauthorized interception of messages does not take place. (Section 32.1) The ISP must take all necessary steps to safeguard the privacy and confidentiality of an information about a third party and its business and will do its best endeavor to ensure that no information, except what is necessary is divulged, and no employee of the ISP seeks information other than is necessary for the purpose of providing service to the third party. (Section 32.2) The ISP must also take necessary steps to ensure that any person acting on its behalf observe confidentiality of customer information. (Section 32.3).

Provisions requiring the provision of facilities, assistance, and retention:

ITA Interception and Monitoring Rules:

The intermediary must provide all facilities, co-operation for interception, monitoring, and decryption of information mentioned in the direction (Section 13(2)).
If a decryption direction or copy is handed to the decryption key holder to whom the decryption direction is addressed by the nodal officer, the decryption key holder must disclose the decryption key or provide the decryption assistance. (Section 17).

ITA Monitoring of Traffic Rules:

The intermediary must extend all facilities, co-operation and assistance in installation, removal and testing of equipment and also enable online access to the computer resource for monitoring and collecting traffic data or information. (Section 4(7)).

UASL License:

The service provider cannot employ bulk encryption equipment in its network, and any encryption equipment connected to the licensee’s network for specific requirements must have prior evaluation an approval of the licensor. (Section 39.1).
The service provider must provide all tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through the equipment and network to authorized officers of the government for purposes of national security.(Section 40.4).
Suitable monitoring equipment as may be prescribed for each type of system used will be provided by the service provider for monitoring as and when required by the licensor. (Section 41.7).
The designated person of the Central/State Government as conveyed to the Licensor from time to time in addition to the licensor or its nominee shall have the right to monitor the telecommunication traffic in every MSC/Exchange/MGC/MG. The service provider must make arrangements for the monitoring of simultaneous calls by Government security agencies. In case the security agencies intend to locate the equipment at the service provider’s premises for facilitating monitoring, the service provider should extend all support in this regard including space and entry of the authorized security personnel. The interface requirements as well as features and facilities as defined by the licensor should be implemented by the service provider for both data and speech. Presently, the service provider should ensure suitable redundancy in the complete chain of monitoring equipment for trouble free operations of monitoring of at least 210 simultaneous calls for seven security agencies. (Section 41.10).
The service provider must also make the following records available: called/calling party mobile/PSTN numbers, Time/date and duration of interception, location of target subscribers, telephone numbers if any call-forwarding feature has been invoked by the target subscriber, data records for even failed attempts, and call data record of roaming subscribers. (Section 41.10).
The service provider shall provide the facility to carry out surveillance of Mobile Terminal activity within a specified area. (Section 41.11).
The complete list of subscribers must be made available by the service provider on their website to authorized intelligence agencies. This list must be updated on a regular basis. Hard copies of the list must also be made available to security agencies when requested. (Section 41.14). The database of subscribers must also be made available to the licensor or its representatives. (Section 41.16).
The service provider must maintain all commercial records with regard to the communications exchanged on the network. All records must be archived for at least one year. (Section 41.17).
Calling Line Identification must be provided and the network should also support Malicious Call Identification. (Section 41.18).
Information about bulk connections must be forwarded to the VTM Cell of DoT, DDG (Security) DoT, and any other officer authorized by the Licensor from time to time as well as Security Agencies on a monthly basis (Section 41.19).
Subscribers having CLIR should be listed in a password protected website with their complete address and details so that authorized Government agencies can view or download for detection and investigation of misuse. (Section 41.19(iv)).
The service provider must provide traceable identities of their subscribers. If the subscriber is roaming from another foreign company, the Indian Company must try to obtain traceable identities from the foreign company as part of its roaming agreement. (41.20 (ix)).
On request by the licensor or any other agency authorized by the licensor, the licensee must be able to provide the geographical location (BTS location) of any subscriber at any point of time. (41.20 (x))
Suitable technical devices should be made available at the Indian end to designated security agency/licensor in which a mirror image of the remote access information is available on line for monitoring purposes. (41.20 (xiv)).
A complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of six months and provided on request to the licensor. (Section 41.20 (xv)).
For monitoring traffic, the service provider should provide access of their network and other facilities as well as to books of accounts to the security agencies. (Section 41.20 (xx)).

ISP License:

The ISP must ensure that Bulk Encryption is not deployed by ISPs. Individuals/groups /organizations can use encryption up to 40 bit key length without obtaining permission from the licensor. If encryption equipments higher than this limit are deployed, individuals/groups/organizations must obtain prior written permission from the licensor and deposit the decryption key. (Section 2.2(vii)).
The ISP must furnish to the licensor/TRAI on demand documents, accounts, estimates, returns, reports, or other information. (Section 9.1).
The ISP will provide tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through his equipment and network when such information is necessary for investigations or detection of crimes and in the interest of national security. (Section 33.4).
The ISP will provide the necessary facilities for continuous monitoring of the system, as required by the licensor or its authorized representatives. (Section 30.1).
The ISP shall provide necessary facilities depending upon the specific situation at the relevant time to the Government to counteract espionage, subversive acts, sabotage or any other unlawful activity. (Section 34.1).
In the interests of security, suitable monitoring equipment as may be prescribed for each type of system used, which will be provided by the licensee. (Section 34.4).
The designated person of the Central/State Government or its nominee will have the right to monitor the telecommunication traffic. The ISP will make arrangements for monitoring simultaneous calls by Government security agencies. (Section 34.6).
The ISP must install infrastructure in the service area with respect to: Internet telephony services offered by the ISP for processing, routing, directing, managing, authenticating the internet telephony calls including the generation of Call Details Record (CDR), called IP address, called numbers, date , duration, time and charges of internet telephony calls. (Section 34.7).
ISPs must maintain a log of all users connected and the service that they are using (mail, telnet, http etc.). The ISPs must log every outward login or telnet through their computers. These logs as well as copies of all the packets originating from the Customer Premises Equipment of the ISP must be made available in real time to the Telecom Authority. (Section 34.8).
The ISP should provide the facility to carry out surveillance of Mobile Terminal activity within a specified area. (Section 34.9).
The complete list of subscribers must be made available by the ISP on their website so that intelligence agencies can obtain the subscriber list at any time. (Section 34.12).
The list of Internet leased line customers and sub-costumers must be placed on a password protected website with the following information: Name of customer, IP address allotted, bandwidth provided, address of installation, date of installation, contact person with phone number and email. This information should be accessible to authorized Government agencies. (Section 34.13).
Monitoring of high UDP traffic value and to check for cases where upstream UDP traffic is similar to downstream UDP traffic and monitor such customer monthly with physical verification and personal identity. (Section 34.15).
The licensor will have access to the database relating to the subscribers of the ISP. The ISP must make available at any instant the details of the subscribers using the service. (Section 34.22).
The ISP must maintain all commercial records with regard to the communications exchanged on the network for at least one year and will be destroyed unless directed otherwise. (Section 34.23).
Every international gateway with a route/switch having a capacity of 2Mbps must be equipped with a monitoring Centre at the cost of the ISP. The cost of meeting the requirements of the security agencies, the cost of maintenance of the monitoring equipment and infrastructure must be borne by the ISP. (Section 34.27 (a(i)).
Office space of 10 by 10 feet with adequate power supply and air-conditioning must be provided by the ISP free of cost. (Section 34.27 (a(ii)) One local exclusive telephone must be made available by the ISP at the monitoring centre at the cost of the ISP. (Section 34.27 (a(iii)).
Each route/switch of the ISP should be connected by the LAN operating at the same speed as the router/switch; the monitoring equipment will be connected to this network. (Section 34.27 (a(v)).
The ISP must provide traceable identity of their subscribers. In the case of roaming subscribers the ISP must try to obtain the traceable identity of roaming subscribers from the foreign company. (Section 34.27 (ix)).
On request of the licensor or any other authorized agency, the ISP must be able to provide the geographical location of any subscriber (BTS location of wireless subscriber) at a given point of time. (Section 34.27 (x)).
Suitable technical devices should be made available to designated security agencies in which a mirror image of the remote access information is available on line for monitoring purposes. (Section 34.27 (xiv)).
A complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of six months and provided on request. (Section 34.27 (xv)).
ISPs must provide access of their network and other facilities, as well as books to security agencies. (Section 34.27 (xx)).

12. Principle - Safeguards for international cooperation: In response to changes in the flows of information and the technologies and services that are now used to communicate, governments may have to work across borders to fight crime. Mutual legal assistance treaties (MLATs) should ensure that, where the laws of more than one state could apply to communications and communications metadata, the higher/highest of the available standards should be applied to the data. Mutual legal assistance processes and how they are used should also be clearly documented and open to the public. The processes should distinguish between when law enforcement agencies can collaborate for purposes of intelligence as opposed to sharing actual evidence. Moreover, governments cannot use international cooperation as a means to surveil people in ways that would be unlawful under their own laws. States must verify that the data collected or supplied, and the mode of analysis under MLAT, is in fact limited to what is permitted. In the absence of an MLAT, service providers should not respond to requests of the government of a particular country requesting information of users if the requests do not include the same safeguards as providers would require from domestic authorities, and the safeguards do not match these principles.

Indian Legislation: India currently has signed 32 MLAT treaties with other countries, each with its own provisions and conditions relating to access to information. The provisions of the Information Technology Act 2000 apply to any contravention of the Act that is committed outside of India, thus the Rules related to interception, monitoring, decryption etc. would apply to any contravention of the Act outside of India. The provisions of the Indian Telegraph Act only apply to communications within India, but the licenses do specify when information held by service providers cannot be transferred across borders.

Below is a summary of the relevant provisions:

ITA 2000: The Act will extend to the whole of India, and applies to any offence or contravention committed outside India by any person. (Section 1(2))

UASL License: The service provider cannot transfer any accounting information relating to the subscriber or user information to any person or place outside of India (this does not restrict a statutorily required disclosure of financial nature. (section (41.20 (viii))

ISP License: For security reasons, domestic traffic of such entities as identified by the licensor will not be hauled or route to any place outside of India. (Section 34.28 (iii)) ISPs shall also not transfer accounting information relating to the subscriber or user information to any person or place outside of India (this does not restrict a statutorily required disclosure of financial nature) (Section 34.28 (viii))

13. Principle - Safeguards against illegitimate access: To protect individuals against unwarranted attempts to access communications and communications metadata, governments should ensure that those authorities and organizations who initiate, or are complicit in, unnecessary, disproportionate or extra-legal interception or access are subject to sufficient and significant dissuasive penalties, including protection and rewards for whistleblowers, and that individuals affected by such activities are able to access avenues for redress. Any information obtained in a manner that is inconsistent with these principles is inadmissible as evidence in any proceeding, as is any evidence derivative of such information.

Indian Legislation: Though relevant Indian legislation does provide penalty for unauthorized interception or access, the penalty applies only to service providers, and does not hold governmental agencies responsible. Currently there are no avenues of redress for the individual, and there are no protections or rewards for whistleblowers. Both of these safeguards are recommended by the principle.

The relevant provisions are summarized below:

TA Rules 2007: The Telegraph Act: The service provider must put in place internal checks to ensure that unauthorized interception of messages does not take place. (Section 14) Service providers are also responsible for actions of their employees. In the case of unauthorized interception or a breach in security on the part of the service provider, service providers can be held liable with penalty of imprisonment from 1 to 3 years and or a fine of rs.500 – 1000 depending on the exact violation. (Section 20, 20A, 23, and 24 Indian Telegraph Act).

ITA Interception and Monitoring Rules: The intermediary must be responsible for the actions of their employees and in the case of violation pertaining to the maintenance of secrecy and confidentiality of intercepted material or unauthorized interception, monitoring, or decrypting of information – the intermediary will be held liable under the relevant provisions of the laws in force. (Section 21).

ITA Traffic Monitoring Rules: The intermediary must be responsible for the actions of their employees and in the case of violation pertaining to the maintenance of secrecy and confidentiality of intercepted material or unauthorized interception, monitoring, or decrypting of information – the intermediary will be held liable under the relevant provisions of the laws in force. (Section 6).

UASL License:

In order to maintain privacy of voice and data, monitoring must be done in accordance with the 2007 Rules established under the Indian Telegraph Act, 1885. (Section 41.20 (xix)).
Any damage arising from the failure of the service provider to provider tracing assistance to the government for purposes of national security is payable by the service provider. (Section 40.4).

ISP License:

In order to maintain the privacy of voice and data, monitoring can only be carried out after authorization by the Union Home Secretary or Home Secretaries of the State/Union Territories. (Section 34.28 (xix)).
The ISP indemnifies the licensor against all actions brought against the licensor for breach of privacy or unauthorized interruption of data transmitted by the subscribers. (Section 8.4).
Any damages that occur from non-compliance on the part of the ISP must be paid by the ISP. (Section 33.4).

14. Principle - Cost of surveillance: The financial cost of providing access to user data should be borne by the public authority undertaking the investigation. Financial constraints place an institutional check on the overuse of orders, but the payments should not exceed the service provider’s actual costs for reviewing and responding to orders, as such would provide a perverse financial incentive in opposition to user’s rights.

Indian Legislation: In India, the ISP and the UASL licenses specifically state that the cost of providing facilities must be borne by the service provider. Though the ITA Interception and Monitoring Rules do require intermediaries to provide facilities, it is not clear from the Rules where the burden of the cost will fall. Currently, there are no requirements that the cost of access to user data should be borne by the public authority undertaking the investigation. This standard is recommended by the principle.

Below are summaries of relevant provisions:

UASL License:

Any damage arising from the failure of the service provider to provider tracing assistance to the government for purposes of national security is payable by the service provider. (Section 40.4).
Suitable monitoring equipment as may be prescribed for each type of system used will be provided by the service provider for monitoring as and when required by the licensor. (Section 41.7).
The hardware and software required for the monitoring of calls must be engineered, provided/installed, and maintained by the service provider at the service providers cost. However the respective Government instrumentality must bear the cost of the user end hardware and leased line circuits from the MSC/Exchange/MGC/MG to the monitoring centers to be located as per their choice in their premises. (Section 41.10).
The service provider must ensure that the necessary provision (hardware/software) is available in their equipment for doing the Lawful Interception and monitoring from a centralized location. (Section 41.20 (xvi)).
ISP License:
- Any damages that occur from non-compliance on the part of the ISP must be paid by the ISP. (Section 33.4).
- The hardware at the ISP end and the software required for monitoring of calls must be engineered, provided/installed, and maintained by the ISP. (Section 34.7).
- Every international gateway with a route/switch having a capacity of 2Mbps must be equipped with a monitoring Centre at the cost of the ISP. The cost of meeting the requirements of the security agencies, the cost of maintenance of the monitoring equipment and infrastructure must be borne by the ISP. (Section 34.27 (a(i)).
- Office space of 10 by 10 feet with adequate power supply and air-conditioning must be provided by the ISP free of cost. (Section 34.27 (a(ii)) One local exclusive telephone must be made available by the ISP at the monitoring centre at the cost of the ISP. (Section 34.27 (a(iii)).

For more details visit https://cis-india.org/internet-governance/blog/comparison-of-indian-legislation-and-draft-principles-on-surveillance-of-communications

A collation and analysis of government requests for user data and content removal from non-Indian intermediaries

Admin — 2019-10-31T16:31:02Z

For more details visit https://cis-india.org/internet-governance/files/A%20collation%20and%20analysis%20of%20government%20requests%20for%20user%20data%20%20and%20content%20removal%20from%20non-Indian%20intermediaries%20.pdf

कैसे होती है इंटरनेट पर आपकी जासूसी

praskrishna — 2013-07-02T16:06:48Z

भारत में बैठे आप कब, कहां, क्या लिख रहे हैं, किससे फोन पर क्या बात कर रहे हैं, अमेरिका में बैठे अधिकारी सब देख-सुन रहे हैं. कभी सोचा है कि कैसे हो रहा है यह सब? क्या आपकी कंप्यूटर स्क्रीन उनके कंप्यूटर पर भी खुली है?

This article was published in DW on June 15, 2013. Sunil Abraham is quoted.

अमेरिकी खुफिया एजेंसियों के बड़ी इंटरनेट कंपनियों के जरिए जासूसी करने के मामले ने दुनिया भर में हलचल मचा दी है. भारत में भी नागरिक इस बात से चिंतित हैं कि ना सिर्फ अमेरिकी नागरिकों पर बल्कि भारत में रहने वाले लोगों के हर पल की खबर भी अमेरिका के हाथों में है. कैसे हो सकता है यह सब, क्या यह किसी डाक की तरह है जिसे शक होने पर अधिकारी कभी भी हाथ से खोल सकते हैं? जी नहीं, उससे भी ज्यादा.

(आपका फोन कोई और तो नहीं सुन रहा)

कैसे होती है इंटरनेट जासूसी

भारत में सेंटर फॉर इंटरनेट एंड सोसाइटी के कार्यकारी निदेशक सुनील अब्राहम ने डॉयचे वेले को बताया कि फेसबुक, गूगल और माइक्रोसॉफ्ट जैसी बड़ी कंपनियों के पास आपकी अलग अलग जानकारी होती है. समूची जानकारी को कंपनी का हर सदस्य नहीं देख सकता है. उनके पास आपकी नियमित जानकारी ही है. वे आपके मेसेज नहीं खोल सकते हैं. लेकिन जब खुफिया एजेंसी के पास आपके कंप्यूटर पर चल रहे माइक्रोसॉफ्ट प्रोसेसर से लेकर आपके गूगल, फेसबुक और दूसरे अहम अकाउंट की जानकारी होती है तो उनके पास सब कुछ होता है. वे जब चाहें आपके कंप्यूटर से खुद अपने कंप्यूटर को जोड़ कर आपकी हर हरकत का पता कर सकते हैं.

हालांकि अमेरिकी कांग्रेस द्वारा पारित कानून के अनुसार केवल जिस व्यक्ति पर शक है, उसके अकाउंट से जुड़ी जानकारी के लिए खुफिया एजेंसी को पहले अदालत से अनुमति लेनी होती है जिसके आधार पर उन्हें इंटरनेट कंपनियां सर्वर तक की पहुंच देती हैं. लेकिन अब्राहम ने बताया कि एजेंसी ने ऐसा करने के बजाए कंपनियों के साथ मिलकर एक पीछे का रास्ता निकाला है जिसके तहत उनके पास सभी के अकाउंट का ब्योरा आ गया.

भारतीयों पर भी जासूसी

अब्राहम ने बताया कि भारत में इस्तेमाल हो रहे सभी बड़े सॉफ्टवेयर और फेसबुक और गूगल जैसी सोशल नेटवर्किंग साइटें अमेरिका में रजिस्टर्ड हैं. यानि यहां जो कुछ भी हो रहा है वह सब अमेरिकी सर्वर

	से हो कर गुजर रहा है. ऐसे में उनके लिए भारत में बैठे किसी व्यक्ति के अकाउंट को खोलना और पढ़ना जरा भी मुश्किल नहीं है. जबकि भारत अमेरिकी नागरिकों के साथ ऐसा नहीं कर सकता है. इस तरह कोई भी भारतीय अकाउंट अमेरिका की नजर से छुपा नहीं है. भारत सरकार के लिए जरूरी यह भी है कि उसके बड़े अधिकारियों, सैन्य अधिकारियों और सरकारी विभागों की जानकारी के साथ ऐसा कुछ ना हो सके. भारत के विदेश मंत्रालय ने इस मामले पर आपत्ति जताते हुए अमेरिका को ऐसा करने से रोकने का दावा किया है. यह अमेरिका के हाथों भारतीयों की निजता का हनन है. अब्राहम कहते हैं कि इस बारे में दोनों सरकारों के बीच बातचीत के बाद ही नतीजे सामने आएंगे. हालांकि भारत सरकार ऐसा पूरी तरह रोक पाएगी इस पर संदेह ही है.

से हो कर गुजर रहा है. ऐसे में उनके लिए भारत में बैठे किसी व्यक्ति के अकाउंट को खोलना और पढ़ना जरा भी मुश्किल नहीं है. जबकि भारत अमेरिकी नागरिकों के साथ ऐसा नहीं कर सकता है. इस तरह कोई भी भारतीय अकाउंट अमेरिका की नजर से छुपा नहीं है.

भारत सरकार के लिए जरूरी यह भी है कि उसके बड़े अधिकारियों, सैन्य अधिकारियों और सरकारी विभागों की जानकारी के साथ ऐसा कुछ ना हो सके. भारत के विदेश मंत्रालय ने इस मामले पर आपत्ति जताते हुए अमेरिका को ऐसा करने से रोकने का दावा किया है. यह अमेरिका के हाथों भारतीयों की निजता का हनन है. अब्राहम कहते हैं कि इस बारे में दोनों सरकारों के बीच बातचीत के बाद ही नतीजे सामने आएंगे. हालांकि भारत सरकार ऐसा पूरी तरह रोक पाएगी इस पर संदेह ही है.

(किसने खोला राज)

सभी देश कर रहे हैं जासूसी

सुनील अब्राहम ने बताया कि थोड़ी बहुत इंटरनेट जासूसी सभी देशों की सरकार करती है. यह देश की सुरक्षा के लिए अहम भी है. लेकिन यह कम से कम स्तर तक ही होनी चाहिए. उनका मानना है कि वर्तमान हालात के दौरान हर देश ज्यादा से ज्यादा जानकारी का भूखा होता जा रहा है. ऐसे में निजता का क्या अर्थ है वह भी मिटता जा रहा है. लेकिन ऐसे में भी अमेरिका का भारतीयों पर जासूसी करना सही नहीं है.

इसके लिए जरूरी यह है कि भारत सरकार अपने नागरिकों को इंटरनेट पर अपनी निजता बनाए रखने के तरीकों से अवगत कराए. लेकिन यह इसलिए संभव नहीं हो सकता है, क्योंकि फिर लोगों के बारे में जरूरत पड़ने पर खुद भारत सरकार जासूसी नहीं कर पाएगी.

अब्राहम ने बताया कि ऐसी स्थिति में आईक्लाउड और एयर एंड्रॉयड जैसे सॉफ्टवेयर का इस्तेमाल भी सुरक्षित नहीं है. वह और उनके जैसे दूसरे इंटरनेट एक्सपर्ट और कार्यकर्ता लोगों से अपील करते आए हैं कि वे इन सॉफ्टवेयर का इस्तेमाल अपनी निजी जानकारी को संचित करने के लिए ना करें.

सुनील अब्राहम ने कहा कि यह तो बस शुरुआत है. ऐसा नहीं है कि ये मामले यहीं थम जाएंगे. आगे आने वाले समय में हम इस तरह की जासूसी और जानकारी लीक हो जाने की और बातें सुनें तो हैरान नहीं होना चाहिए. हमारे पास अभी तक ऐसा सिस्टम नहीं है जो निजता को पूरी तरह सुरक्षित रखने के लिए आश्वस्त कर सके.

रिपोर्ट: समरा फातिमा
संपादन: महेश झा

For more details visit https://cis-india.org/news/dw-june-15-report-on-internet-surveillance

2019 International Asia Conference

Admin — 2019-02-19T00:23:43Z

ITECHLAW organized the 2019 edition of International Asia Conference at JW Marriott hotel in Bangalore on January 31, 2019 and February 1, 2019. Sunil Abraham was a panelist in the session "Policy Making for the Emerging Tech in India".

The rush of emerging technologies of Machine Learning, Internet of Things (IoT) and Virtual Reality (VR) is revolutionising the landscape in which humans exist. Innovators of the generation are ambitious, and their contributions have significantly impacted on various fields like healthcare, media and entertainment, agriculture, and other service models. As these technology advancements are driving new business and service models, there is a need for stakeholders and governments to ensure security and stability of the market without stifling innovations, stigmatising incentives or creating obstacles. Rapid spreading technology applications are resulting in drastic changes in today’s regulatory model, posing the difficult challenges for regulators. In India, the expeditiously developing start-up ecosystem and online consumer base, has stirred the regulators.

Intermediary liability, surveillance, data and privacy, digital taxation, data governance and sovereignty are the dominating debatable topics in India. The debates are not only between regulators and stakeholders, but consumers also joining in it. As the competition between Indian and Foreign Technology intensifies in the turf, the debate on tech-policy is considerably being mentioned in run-up of political parties to the general elections as well. Over the past one year, the country has witnessed some landmark judgments and contentious government proposals related to data and privacy, implications of which have affected over-the-top (“OTT”) services, online media, social media, e-commerce platforms, IoT services etc. The Indian regulatory framework on tech-policy is becoming stricter due to a very disruptive phase last year. The tech-giants like Facebook, Google, Twitter, and Amazon are themselves realising their enormous market influence. After the episodes of lynching, hate speeches etc., they are participating in policy-making efforts related to fake news and digital malfeasance. In this process legal industry is making considerable lobbying efforts for corporations to work with government to curb the menace of digital malpractice and make the internet safer.

As the legal industry is participating in the process of creating an innovators-friendly regulatory regime, they are also striving to understand the disruptive technologies and adopt them for their own convenience. However, legal firms must understand that the technology cannot do their job for clients but can only upgrade the business model for them. The traditional law firm business model is not in sync with legal buyers. Effective deployment of technology will ameliorate the factor of its approachability to its clients.

With the growing technology-based start-ups in India, it is going to be a hub for investments by big corporations. In order to keep attracting the investors there is a need for government to remove the potential hindrances that may make investors double-think. The government should prepare a level-playing field in the market by making citizens aware of the standard tech-policies and fostering the innovators-friendly regulatory regime.

For more info see the website

For more details visit https://cis-india.org/internet-governance/news/2019-international-asia-conference

‘Future of Work’ in India’s IT/IT-eS Sector pdf

pranav — 2020-04-28T09:52:19Z

For more details visit https://cis-india.org/internet-governance/2018future-of-work2019-in-india2019s-it-it-es-sector-pdf

2012: Privacy Highlights in India

elonnai — 2013-02-12T12:39:05Z

In this blog post, Elonnai Hickok summarizes the top privacy moments of 2012 in India. In doing so she lists out the major ones like the Report of Group of Experts on Privacy, the RIM Standoff, the Nira Radia controversy, the Centralized Monitoring System, Unmanned Aerial Vehicles, NATGRID, CCTNS, the growth of CCTVs, the leaked DNA Profiling Bill, and the UID project.

The Report of Group of Experts on Privacy: In October 2012 the "Report of Group of Experts on Privacy" was published by a governmental committee chaired by Justice A.P. Shah. The report contains recommendations for comprehensive privacy legislation, including defining nine privacy principles, establishing a regulatory framework consisting of privacy commissioners at the regional and central level, and self regulatory organizations, and analyzing the present challenges to privacy in India.[1]

Before the report was published, two draft privacy bills had been leaked to the public, and a concept paper drafted in 2010. The report received mixed reviews from the media, including questions about the relationship between the Right to Information and the Right to Privacy. Before the publishing of the Report, Prime Minister Manmohan Singh recognized that disclosures under the RTI Act could, in some instances, violate individual privacy. In a statement to the public, the Prime Minister stated "citizens’ right to know should definitely be circumscribed if disclosure of information encroaches upon someone's personal privacy. But where to draw the line is a complicated question".[2]

Three months before the report was published, the EU had publicly stated that current data protection provisions in India are not sufficient enough, and that India is not considered to be 'data secure'.[3] If the recommendations in the report are turned into legislation, among other things, individuals in India will have a right to privacy and a right to redress for violations of privacy.

Governmental Interception: In early 2013 it was revealed that the Ministry of Home Affairs ordered interception of 10,000 phones and 1300 email ids during October 2012 to December 2012.[4] Continuing its efforts to access all communications, in May 2012, the Government of India gave service providers a month to develop a method for intercepting calls using VoIP services.[5] In February 2012 the Telecom Department proposed a new set of security guidelines that would allow for real time interception of communications and the tracking of the location of users. Among other things, the proposal establishes telecom security assurance and testing labs for the purpose of testing and certifying telecom equipment.[6] Additionally, in October of 2012, Bharti Airtel refused to wiretap telephones for RAW. The Department of Telecommunications eventually ordered Bharti Airtel to comply with the order, which they did.[7] The events around interception in 2012 show that the Indian government is still trying to gain access to as much information as possible. The constant push for real time access by the government is concerning, as many safeguards are missing from the Indian interception regime such as, penalty to security agencies for unauthorized interception and avenues of redress for the individual.

The RIM Standoff: Since 2008, the Indian government has been negotiating with RIM access to BlackBerry communications. Over the years, a number of solutions have been proposed by RIM and the GoI, yet a final agreement was never reached. Continuing the negotiations, In October 2012, RIM agreed to set up a server in Mumbai, which would allow security agencies to access Blackberry Messenger services.[8] Blackberry also provided a solution that would allow access to Blackberry Internet Services.[9] Following this, the Government of India mandated that Telecom Service Providers must incorporate the Blackberry interception solution, or risk being forced to shut their service by December 31, 2012. In compliance with this order, many service providers have set time frames for incorporation of the interception solution including and installed the necessary software.[10] It is important to note that the lawful access solutions provided do not extend to the Blackberry Enterprise Server.[11] Though it seems that the BlackBerry controversy might be resolved, the solution does not appear to be a long term solution, as BES communications are still not accessible, and the solution is not universal for all international providers. Thus, the Indian government will have to negotiate individually with each provider and service that they currently cannot access communications of.

The Nira Radia Controversy: Continuing the Nira Radia controversy, which began in 2008-2009, in September 2012 the Supreme Court ordered the Income Tax Department to transcribe the 5,831 recorded conversations that were originally intercepted by the department. In January this year, the Supreme Court of India ordered that a "random check" be run through the Radia Tapes to check for instances of possible criminality.[12] This case has become an important moment for privacy in India, as it intersects the dilemma between the right to privacy and public interest. Since 2010, Ratan Tata has been claiming that his right to privacy was violated by the publishing of the leaked tapes.[13] The Supreme Court’s final decision will be important for drawing another contour of how the right to privacy is shaped in India.

The Centralized Monitoring System: In 2012 the Telecom Ministry set aside Rs. 400 crore for the Central Monitoring System, which is projected to be finished by August 2014.[14] The project, which first began in 2007, is envisioned to allow security agencies to bypass service providers and intercept communications on their own. The system is designed to have regional databases and a central database which will be accessible to law enforcement and security agencies. Privacy concerns related to the project include how the system will incorporate current legal regulations for interception in India, as a system that bypasses service providers essentially means that every communication can be read by law enforcement. Furthermore, it is not clear exactly who, and on what conditions will officials be allowed and authorized to access and use the system. The exact capabilities of the system have also not been identified. For example, will the CMS be able to intercept VoIP calls, will it be able to decrypt messages, and will it employ techniques such as Deep Packet Inspection.

Unmanned Aerial Vehicles (UAVs): Since the late 90’s the Defense Research Development Organisation (DRDO) has been developing UAV’s for military purposes, and before this, India was acquiring UAV’s from Israel.[15] Since that time there has been an increase in domestic companies and institutes developing UAVs, and an increase in the procurement of the technology by state police for generic reasons purposes as crowd control, traffic management, and security. For example, in August of 2012 the city of Mumbai used the UAV "Netra", as part of their security protocol during the Raj Thackeray rally to capture and send real time images back to the police. Netra is manufactured by the company Idea Forge.[16] The Mumbai police also used the Netra in September 2012 after the Azad Maidan riots, and again on New Year’s Eve to monitor and track crime such as sexual harassment.[17] Similarly, Chennai city police are looking to procure from Anna University a UAV developed by the Madras Institute of Technology. The UAV will be used to assist in traffic monitoring and control.[18] The increased procurement and use of UAV’s by state police is concerning as there is no clear legal regulation over the deployment of the vehicles. Thus, they have shifted from being used as a tool by the military, and are being used for monitoring traffic, crowd monitoring, etc. Furthermore, the process for authorization for use of the vehicles is not clear, and it is not clear how the captured information is protected and handled. Though UAV’s are clearly a useful tool for the military, for military purposes, the permitted use of them by other actors should be defined and regulated. The use of UAV’s for generic purposes could place individual privacy at risk, because of the amount of information and the level of detail that the vehicles are able to capture without the knowledge of the individual.

The National Intelligence Grid (NATGRID): Plans for the NATGRID project, which was first piloted after the Mumbai attacks, has been continuing forward through 2012 and is envisioned to be operational sometime in 2013. During 2012, a detailed project report was submitted for the project, and in June the government approved Rs. 1,100 crore for purchase of technological equipment.[19] NATGRID is a project that envisions networking 21 databases for purposes of crime investigation including tax, health, and travel information. The information will be accessible to 11 security agencies and law enforcement agencies. Though it has been clarified that NATGRID will ensure that privacy is protected, the design of NATGRID is one that could create potential risks – as it brings together large amounts of personal data for easy access by security agencies. In doing so it could potentially eliminate the steps security agencies must take currently to access information – such as submitting a request and obtaining permission for access. Furthermore, it is unclear how current legal protections such as secrecy clauses in banking legislation will be incorporated and upheld by the NATGRID system. Other questions that the project raises include – though currently there are only eleven agencies listed that will have access to NATGRID – will this list expand? Without a policy in place how will this standard and other standards be enforced?

The Crime and Criminal Tracking Network & System (CCTNS): Though the CCTNS project has been in the works since 2009, a call for companies to develop the technology for the system was taken in early 2012, and pilot projects were launched later that year. The CCTNS is being headed by the National Crime Records Bureau, and will allow for the sharing of crime related information on a national level, in real time. In 2012, the system was allocated 2,000 crores by the government, and currently 2,000 police stations and other offices have been connected under the system.[20]

For example, police in Chhattisgarh,[21] Uttarakhand[22] and Odisha have all been connected to the CCTNS system.[23] Though it will be beneficial for the police to have access to a networked system, it has not been made clear yet what type of security system the project will adopt to ensure that the information is not compromised or accessed without authorization. It has also not been clarified what information will be placed on the database, and will all records be accessible to any individual accessing the system. Because the project is still in pilot stages it is hard to tell if it could put individual privacy at risk. Hopefully, before the project is realized in its full, many of the details will be clarified.

The Growth of CCTVs: Throughout 2012 the use of CCTV’s has continued to grow across India. For example, the Maharashtra government has undertaken a "CCTV surveillance project" in which it is in the process of taking bids for.[24] The state of Karnataka is also planning on installing CCTV cameras in Bangalore and other major cities to help detect incidents of crime.[25] While the Delhi Transport Department is contemplating installing CCTVs in buses,[26] and the Indian Rail Authorities have also decided to install CCTVs throughout stations to increase security.[27] There still does not exist regulation of the use of CCTV cameras, thus it is unclear who can operate a CCTV camera, which departments of the government can mandate for the installation of CCTVs, if public notice must be given that a CCTV camera is in use, and who can access the footage from a CCTV.

Study on Privacy Perceptions: In a study that came out in December 2012 by Ponnurangam K, among other things, it was found that 75 per cent of participants never read the privacy policy on a website – including social networking sites, participants also thought that there was a privacy legislation in place in India, and that individuals in India are most concerned about financial privacy.[28]

The National Counter Terrorism Centre (NCTC): The NCTC was originally created in response to the Mumbai terror attacks, under the Unlawful Prevention Act, 1967. The NCTC was meant to be realized in 2012, but in March, plans for the Centre were put on hold, because of the controversial nature of the project.[29] The Centre was meant to bring Indian intelligence agencies under one umbrella, and analyze and store information related to terrorism. The proposed body has been highly controversial, as states object to the powers given to the Centre and see it as intruding on their powers and jurisdiction. If passed, the NCTC will have the powers of arrest, search and seizure, and the ability to access information from other intelligence agencies.[30]

The Leaked DNA Profiling Bill: In 2012, a version of the DNA Profiling Bill, originally drafted in 2007, was leaked to the public. The Bill is being piloted by the department of biotechnology, and seeks to establish DNA databases at the regional and central level for forensic purposes, yet the Bill does not establish strong protections for the privacy of DNA samples taken and important technical standards for ensuring that DNA samples are not misused or tampered with.[31] What will happen to the Bill in 2013 is yet to be seen, but hopefully it will not be passed without the appropriate safeguards incorporated into its provisions.

The Unique Identification Project and the National Population Registrar: Throughout 2012, the UID has continued to carry out enrollments across the country, and sign MoU's with private sector companies for the adoption of the UID platform. Parallel to the UID project, the NPR project is also being implemented. The NPR seeks to provide every citizen of India with an identity that will be stored in an identity database maintained by the Registrar General and Census Commissioner of India.[32] According to the NPR scheme, individuals who had already enrolled with the UID and given their biometrics would not need to re-submit their biometrics with the NPR. Yet, this has not been the case, and instead individuals are now being required to provide their biometrics for enrollment with the UID and the NPR.[33]

Privacy has been raised as a concern of the UID since the start of the project. For both the UID and the NPR now the transaction record will be stored by agencies, and whether it will be possible to track individuals across databases using their NPR or UID identity?

[1]. The Report of Group of Experts on Privacy. See http://bit.ly/VqzKtr

[2]. Tikku, A., "RTI doesn’t trample upon privacy, says expert panel", Hindustan Times, October 29, 2012, available at http://bit.ly/TNAzRF, last accessed on January 8, 2013.

[3]. Sen, A. India protests European Union study of data laws. Economic Times. July 9, 2012, available at http://bit.ly/Y9ahHs, last accessed on January 8, 2013.

[4]. Harismran, J., Thomas, J. "Home Ministry ordered 10k wire taps in last 90 days, order tapping of 1300 email Ids", The Economic Times, January 3, 2013, available at http://bit.ly/TKk7yN, last accessed on January 7th 2013.

[5].The Economic Times, "Provide solution to intercept VoIP within a month: Govt", May 6, 2012, available at http://bit.ly/VQDQ4k, last accessed on January 7, 2013.

[6]. The Economic Times, "New policy for real time interception to security agencies", February 1, 2012, available at http://bit.ly/11DrlvB, last accessed on January 7, 2013.

[7]. The Economic Times, "RAW irked as Airtel keeps its request for phone tapping on hold", October 21, 2012, available at http://bit.ly/12IujhF, last accessed on January 7, 2013.

[8]. Reyes, D., "RIM installs BlackBerry server in Mumbai", CrackBerry, February 23, 2012, available at http://bit.ly/yBQsSo

[9]. Economic Times, "DoT makes telecom operators fall in line on Blackberry issue", December 30, 2012, available at http://bit.ly/1169ufn

[10]. Economic Times, "MTNL, BSNL fail to give dates for Blackberry interception", October 29, 2012, available at http://bit.ly/1169ufp, last accessed on January 7, 2012.

[11]. The Economic Times, "Telecom companies agreed to provide real-time intercept facilities for BlackBerry smartphones", December 31, 2012, available at http://bit.ly/Y9gjYt, last accessed on January 7, 2012.

[12]. Mahapatra, D., "SC to examine Radia tapes for criminality", Times of India, January 9, 2013, available at http://bit.ly/VD7eWX

[13]. Times of India, "Ratan Tata softens stand on Radia tapes", August 23, 2012, available at http://bit.ly/158CZxl, last accessed on January 7, 2013.

[14]. The Economic Times, "Govt. to place phone tapping system worth Rs. 400 cr by 2014", March 21, 2012, available at http://bit.ly/V2P9q6, last accessed on January 7, 2013.

[15]. Monsonis, G., "UAVs gaining currency with Indian Armed Forces", Indian Defence Review, October 30, 2012, available at http://bit.ly/KVYyIr, last accessed on January 7, 2013.

[16]. Mumbai Mirror, "Raj Thackeray’s mega rally: Unmanned Aerial Vehicle kept an eye on Azed Maidan", Economic Times, August 22, 2012, available at http://bit.ly/PYTGAG, last accessed on January 7, 2013.

[17].Ali, A. & Narayan. V., "Netra cameras to keep a close watch , over New Year’s Eve hotspots", Times of India, December 31, 2012, available at http://bit.ly/Z7orxt, last accessed on January 7, 2013.

[18]. Venugopal, V., "It flies, it swoops, it records and monitors", The Hindu, December 20, 2012, available at http://bit.ly/V89sLo, last accessed January 7, 2013.

[19]. The Economic Times, "Cabinet Committee on Security approves Rs. 1,100 crore for NATGRID", June 14, 2012.

[20]. Mohan, V., "Centre launches pilot project to track criminals", The Times of India, January 5, 2013, available at http://bit.ly/UPk2fh

[21]. The Pioneer, "Civil Lines Police Station gets connected with CCTNS", January 2012, available at http://bit.ly/VRXKGJ

[22]. CIOL Bureau, "CCTNS to be made public through internet: Dehradun DGP", January 4, 2012, available at http://bit.ly/X4JISx, last accessed on January 7, 2013.

[23]. The Hindu, "Odisha to launch CCTNS on January 12", January 7, 2013, available at http://bit.ly/Vd9Ay1, last accessed on January 7, 2013.

[24]. Padmakshan, M., "Maharashtra plans to invite new bids for CCTV surveillance project", September 18, 2012, available at http://bit.ly/VRYrQm, last accessed on January 7, 2013.

[25]. Ashoka, R., "Karnataka to install CCTV cameras in Bangalore, major cities", Economic Times. July 26, 2012, available at http://bit.ly/11Dxt6Z, last accessed on January 7, 2013.

[26]. Economic Times, "Buses to come with CCTV cameras for safety of women: Delhi government", December 17, 2012, available at http://bit.ly/158Gtjo, last accessed on January 7, 2013.

[27]. Economic Times, "Railways to step by security apparatus at stations", February 15, 2012, available at http://bit.ly/11DxSX8, last accessed on January 7, 2013.

[28]. Times of India, "Most Indians ignorant about privacy issues on Facebook, Twitter: Study", December 10, 2012, available at http://bit.ly/X4KVt1, last accessed on January 7, 2013.

[29]. Kumar, H., "Does India Need a National Counter Terrorism Center?", The New York Times, India Ink, February 28, 2012, available at http://nyti.ms/A5VU5P

[30]. Times of India. CM to attend National Counter- Terrorism Centre Meet in Delhi. May 4, 2012, available at http://bit.ly/12IDoH9, last accessed on January 8, 2012.

[31]. Hickok, E., "Rethinking DNA Profiling in India", Economic Political Weekly, October 27, 2012, available at http://bit.ly/TUrH7j, last accessed on January 7, 2013.

[32]. Department of Information Technology, "National Population Register", available at http://bit.ly/12rzyOh

[33]. Pandit, A., "NPR must even if you have Aadhar number", Times of India, October 31, 2012, available at http://bit.ly/Y9oXGq, last accessed on January 8, 2013.

For more details visit https://cis-india.org/internet-governance/privacy-highlights-in-india

“Politics by other means”: Fostering positive contestation and charting ‘red lines’ through global governance in cyberspace

basu — 2019-10-21T15:40:38Z

The past year has been a busy one for the fermentation of global governance efforts in cyberspace with multiple actors-states, industry, and civil society spearheading a variety of initiatives. Given the multiplicity of actors, ideologies, and vested interests at play in this ecosystem, any governance initiative will be, by default, political, and desirably so.

Arindrajit Basu's essay for this year's Digital Debates: The CyFy Journal was published jointly by Global Policy and ORF. It was written in response to a framing essay by Dennis Broeders under the governance theme. The article was edited by Gurshabad Grover. Arindrajit also acknowledges the contributions of the editorial team at ORF: Trisha, Akhil and Meher.

There is no silver bullet that will magically result in universally acknowledged rules of the road. Instead, through consistent probing and prodding, the global community must create inclusive processes to galvanize consensus to ensure that individuals across the world can repose trust and confidence in their use of global digital infrastructure.^[2] This includes both ‘red lines’ applicable to clearly prohibited acts of cyberspace and softer norms for responsible state behaviour in cyberspace, that arise from an application of the tenets of International Law to cyberspace.

Infrastructure is political

Networked infrastructures typically originate when a series of technological systems with varying technical standards converge, or when a technological system achieves dominance over other self-contained technologies.^[3] Through this process of convergence, networked infrastructures must adapt to a variety of differing political conditions, legal regulations and governance practices.^[4] Internet infrastructure was never self-contained technology, but an amalgamation of systems, protocols, standards and hardware along with the standards bodies, private actors and states that define it.^[5] The architecture has always been deeply socio-technical^[6] and any attempt to severe the technology from the politics of internet governance would be a fool’s errand.

Politics catalyzed the development of the technological infrastructure that lead to the creation of the internet. During the heyday of nuclear brinkmanship between the USA and USSR, Paul Baran, an engineer with the US Department of Defense think tank RAND Corporation was tasked with building a means of communication that could continue running even if some parts were to be knocked out by a nuclear war.^[7]

As Baran’s ‘Bomb proof network’ morphed into the US Department of Defense funded ARPANET, it was initially apparent that it was not meant for either mass or commercial use, but instead saw its nurturing in the US as a tool of strategic defense.^[8]

This enabled the US to retain a disproportionate -- and till the 1990s, relatively uncontested -- influence on internet governance. As the internet rapidly expanded across the globe, various actors found that single state control over an invaluable global resource was unjust.^[9] Others (9which included US Senator Ted Cruz), argued that the internet would be safer in the hands of the United States than an international forum whose processes could be reduced to stalemate as a result of politicized conflict between democratic and non-democratic states who seek to use online spaces as an instrument of suppression.^[10] The ICANN and IANA transitions were therefore not rooted in technical considerations but much-needed geopolitical pressure from states and actors who felt ‘disregarded’^[11] in the governance of the internet. An inclusive multi-stakeholder process fueled by inclusive geopolitical contestation is far more effective in the long run and has the potential of respecting the rights of ‘disregarded’ communities all across the globe far more than a unilateral process that ignores any voices of opposition.

It is now clear that despite its continued outsized influence, the United States is no longer the only major state player in global cyber governance. China has propelled itself as a major political and economic challenger to the United States across several regimes^[12], including in the cyber domain. China’s export of the ‘information sovereignty’^[13] doctrine at various cyber norms proliferation fora, including at the United Nations-Group of Governmental Experts (GGE), and regional forums like the Shanghai Co-operation (SCO), is an example of its desire to impose its ideological clout on global conceptions of the internet.

As a rising power, China’s aspirations in global internet governance are not limited to ideology. China is at an ‘innovation imperative’, where it needs to develop new technologies to retain its status and fuel long-term growth.^[14] This locks it into direct economic, and therefore strategic competition with the United States that seeks to retain control over the same supply chains and continues to assert its economic and military superiority.

China has dominated the 5G space in an unprecedented way, and has been a product of a concerted ‘whole of government’ effort.^[15] Beijing charted out an industrial policy that enabled the deployment of 5G networks as a key national priority.^[16] China has also successfully weaponized global technical standard-setting efforts to promote its geo-economic interests.^[17] Reeling from the failure of its domestic 3G standard that was ignored globally, China realised the importance of the ‘first-movers’ advantage’ in setting standards for companies and businesses.^[18] Through an aggressive strategic push at a number of international bodies such as the International Telecommunications Union, China’s diplomatic pivot has allowed it to push standards established domestically with little external input, thereby giving Chinese companies the upper hand globally.^[19]

Politics continues to frame the technical solutions that enable cybersecurity.19 Following Snowden’s revelations, some stakeholders in the global community have shaped their politics to frame the problem as one of protecting individuals’ data from governments and private companies looking to extract and exploit it. The technical solutions developed in this frame are encryption standards and privacy enhancing technologies. However, intelligence agencies continue to frame the problem differently: they see it as an issue of collecting and aggregating data in order to identify malicious actors and threat vectors. The technical solutions they devise are increased surveillance and data analysis -- problems the first framing intended to solve. The techno-political gap, both in academic scholarship and global norms proliferation efforts continues to jeopardize attempts at framing cybersecurity governance.^[20] Instead of artificially depoliticizing technology, it is imperative that we ferment political contestation in a manner that holistically promulgates the perception that internet infrastructure can be trusted and utilised by individuals and communities around the world.

Fostering ‘red lines’ and diffusing ‘unpeace’ in cyberspace

‘Unpeace’ in cyberspace continues to ferment through ‘below the threshold’ operations that do not amount to the ‘use of force’ as per Article 2(4), or an ‘armed attack’ triggering the right of self-defense under Article 51 of the United Nations Charter. This makes the application of jus ad bellum (‘right to war’) inapplicable to most cyber operations.^[21] However, the application of ‘jus in bello’ (law that governs the way in which warfare is conducted) or International Humanitarian Law (IHL) does not require armed force to be of a specific intensity but seeks to protect civilians and prevent unnecessary suffering. Therefore the principles of IHL that have evolved in The Geneva Conventions should be used as red lines that limit collateral damage as a result of cyber operations.^[22] No state should conduct cyber operations that intend to harm civilians, and should us all means at its disposal to avoid this harm to civilians. It should act in line with the principles of necessity^[23] and proportionality.^[24]

Cultivating ‘red lines’ is easier said than done. The debate around the applicability of IHL to cyberspace was one of the reasons for the breakdown of the fifth UN-GGE in 2017.^[25] States have also been reluctant to state their positions on the rules developed by the International Group of Experts (IGE) in the Tallinn Manual.^[26] This is due to two main reasons. First, not endorsing the rules may allow them to retain operational advantages in cyberspace where they continue engaging in cyber operations without censure. Second, even those states who wish to apply and adhere to the rules hesitate to do so in the absence of effective processes that censure states that do not comply with the rules.

Both these issues stem from the difficulties in attributing a cyber attack to a state as cyber attacks are multi-stage, multi-step and multi-jurisdictional, which makes the attacker several degrees removed from the victim.^[27] Technical challenges to attribution, however should not take away from international efforts that adopt an integrated and multi-disciplinary approach to attribution which must be seen as a political process working in conjunction with robust technical efforts.^[28] The Cyber Peace Institute, which was set up earlier in September 2019, and adopts an ecosystem approach to studying cyber attacks, thereby improving global attribution standards may institutionally serve this function.^[29] As attribution processes become clearer and hold greater political weight, an increasing number of states are likely to show their cards and abandon their policy of silence and ambiguity -- a process that has already commenced with a handful of states releasing clear statements on the applicability of international law in cyberspace.^[30]

Below the threshold operations are likely to continue. However, the process of contestation should result in the international community drawing out norms that ensure that public trust and confidence in the security of global digital infrastructure is not eroded. This would include norms such as protecting electoral infrastructure or a prohibition on coercing private corporations to aid intelligence agencies in extraterritorial surveillance29 The development of these norms will take time and repeated prodding. However, given the entangled and interdependent nature of the global digital economy, protracted effort may result in universal consensus in some time.

The Future of Cyber Diplomacy

The recently rejuvenated UN driven norms formulation processes are examples of this protracted effort. Both the Group of Governmental Experts (GGE) and Open-Ended Working Group (OEWG) processes are pushing states towards publicly declaring their positions on multiple questions of cyber governance, which will only further certainty and predictability in this space. The GGE requires all member states to clearly chart out their position on the applicability of various questions of International Law, which will be included as an Annex to the final report and is definitely a step in the right direction.

There are multiple lessons from parliamentary diplomacy culminating in past global governance regimes that negotiators in these processes can borrow from.^[31] As in the past, the tenets of international law can influence collective expectations and serve as a facilitative mechanism for chalking out bargaining points, and driving the negotiations within an inclusive, efficient and understandable framework.^[32]

Both processes will be politicized as before with states seeking to use these as fora for furthering national interests. However, this is not necessarily a bad thing. Protracted contestation is preferable to unilateralism where a select group of states decides the future of cyber governance. The inclusive, public format of the OEWG running in parallel to the closed-door deliberations at the GGE enables concerted dialogue to continue. Most countries had voted for the resolutions setting up both these processes and while the end-game is unknown, it appears that states remain interested in cultivating cyber norms.

Of course, the USA and its NATO allies had voted against the resolution setting up the OEWG and Russia, China and the SCO allies had voted against the resolution resurrecting the GGE. However, given the economic interests of all states in a relatively stable cyberspace, it is clear that both these blocks desire global consensus on some rules of the road for responsible behaviour in cyberspace. This means that both processes may arrive at certain similar outcomes. These outcomes might over time evolve into norms or even crystallise into rules of customary international law if they are representative of the interests of a large number of states.

However, sole reliance on state-centric mechanisms to achieve a stable governance regime may be misplaced. As seen with Dupont’s contribution to the Montreal Protocol that banned the global use of Chloro-Fluoro-Carbons (CFCs)^[33] or the International Committee of the Red Cross’s concerted efforts in rallying states to sign the Additional Protocols to the Geneva Conventions^[34], norm-entrepreneurship and the mantle of leadership in norm-entrepreneurship need not be limited to state actors. Non-state actors often have the gifts of flexibility and strategic neutrality that make them a better fit for this role than states. Microsoft’s leadership and its ascent to this leadership mantle in the cyber governance space must therefore be taken heed off. The key role it played in charting out the CyberSecurity Tech Accords, Paris Call for Trust and Security in Cyberspace and its most recent initiative, the Cyber Peace Institute, must be commended. However, the success of its entrepreneurship relies on how well it can work both with multilateral mechanisms under the aegis of the United Nations and multi-stakeholder fora such as the Global Commission on Stability in Cyberspace. This will lead to a cohesive set of rules that adequately govern the conduct of both state and non-state actors in cyberspace.

It is unfortunate, however, that most governance efforts in cyberspace are driven by the United States or China or their allies. For example, only UK^[35], France^[36], Germany,^[37] Estonia^[38],Cuba^[39] (backed by China and Russia), and the USA^[40] have all engaged in public posturing advocating their ideological position on the applicability of International Law in cyberspace in varying degrees of detail with other countries largely remaining silent. Other emerging economies need to get into the game to make the process more representative and equitable.

More recently, India has begun to take a leadership role in the global debate on cross-border data transfers, spurred largely by their domestic political and policy ecosystem championing ‘digital nationalism.’ At the G20 summit in Osaka in July this year, India, alongside the BRICS grouping emphasized the development dimensions of data for emerging economies and pushed the notion of ‘data sovereignty’-broadly understood as the sovereign right of nations to govern data within their territories/jurisdiction in the national interest and for the welfare of its people.^[41] Resisting calls from Western allies including the United States to get on board Japan’s initiative promoting the free flow of data across borders, Vijay Gokhale also mentioned that discussions on data flows must not take place at plurilateral forums outside the World Trade Organization as this would prevent inclusive discussions.^[42]This form of posturing should be sustained by emerging economies like India and extended to the security domain as well through which the hegemony that a few powerful actors retain over the contours of cyber governance can be reduced.

To paraphrase Clausewitz, technological governance is the conduct of politics by other means. Internet infrastructure has become so deeply intertwined with the political ethos of most countries that it has become the latest front for geopolitical contestation among state and non-state actors alike. Politicizing cyber governance prevents a deracinated approach to the process that ignores simmering inequalities, power asymmetries and tensions that a limited technical lens prevents us from viewing.

The question is, not if but how cyber governance will be politicized. Will it be a politics of inclusion that protects the rights of the disregarded and adequately represents their voices in line with the requirements of International Law, or will it be a politics of convenience through which states and non-state actors utilise cyber governance for reaping strategic dividends? The global cyber policy ecosystem must continue the battle to ensure that the former remains essential.

Endnotes

^[1] Arindrajit Basu and Elonnai Hickok (2018) “Cyberspace and External Affairs: A memorandum for India”, 8-13.

^[2] In its draft definition of cyber stability, The Global Commission on the Stability of Cyberspace has adopted a bottom up user centric definition of Cyber Stability where individuals can be confident in the stability of cyberspace as opposed to an objective top-down determination of cybersecurity metrics.

^[3] PN Edwards, GC Bowker Jackson SJ, R Williams 2009. Introduction: an agenda for infrastructure studies. J. Assoc. Inf. Syst.10(5):364–74

^[4] Brian Larkin, “ The Politics and Poetics of Infrastructure” Annual Rev. Anthropol 2013,42:327-43

^[5] Ibid.

^[6] Kieron O’Hara and Wendy Hall, “Four Internets: The Geopolitics of Digital Governance” CIGI Report No.208, December 2018.

^[7] Cade Metz, “Paul Baran, the link between nuclear war and the internet” Wired, 4th Sept. 2012.

^[8] Kal Raustila (2016) “Governing the Internet” American Journal of International Law 110:3,491

^[9] Samantha Bradshaw, Laura DeNardis, Fen Osler Hampson, Eric Jardine & Mark Raymond, The Emergence of Contention in Global Internet Governance 3 (Global Comm’n on Internet Governance, Paper Series No. 17, July 2015).

^[10] Klint Finley, "The Internet Finally Belongs to Everyone”, Wired, March 18th, 2016.

^[11] Richard Stewart (2014), Remedying Disregard in Global Regulatory Governance: Accountability, Participation and Responsiveness” AJIL 108:2

^[12] Tarun Chhabra, Rush Doshi, Ryan Hass and Emilie Kimball, “Global China: Domains of strategic competition and domestic drivers” Brookings Institution, September 2019.

^[13] According to this view, a state can manage and define its ‘network frontiers; through domestic legislation or state policy and patrol information at it state borders in any way it deems fit. Yuan Yi,. “网络空间的国界在哪 ” [Where Are the National Borders of cyberspace]? 学习时报.May 19, 2016.

^[14] Anthea Roberts, Henrique Choer Moraes and Victor Ferguson (2019), “Toward a Geoeconomic Order in International Trade and Investment” (May 16, 2019).

^[15] Eurasia Group (2018), “The Geopolitics of 5G”

^[16] Ibid.( In 2013, the Ministry of Industry and Information Technology (MIIT), the National Development and Reform Commission (NDRC) and the Ministry of Science and technology (MOST) established the IMT-2020 5G Promotion Group to push for a government all-industry alliance on 5G.)

^[17] Bjorn Fagersten&Tim Ruhlig (2019), "China’s standard power and it’s geopolitical implications for Europe” Swedish Institute for International Affairs.

^[18] Alan Beattie, “Technology: how the US, EU and China compete to set industry standards” Financial Times, Jul 14th, 2019

^[19] Laura Fitchner, Walter Pieters.,&Andre Herdero Texeira(2016). Cybersecurity as a Politikum: Implications of Security Discourses for Infrastructures. In Proceedings of the 2016 New Security Paradigms Workshop (36-48). New York: Association for Computing Machinery (ACM)

^[20] Michael Crosston,” Phreak the Speak: The Flawed Communications within cyber intelligentsia” in Jan-Frederik Kremer and Benedikt Muller,”Cyberspace and International Relations: Theory, Prospects and Challenges (2013, Springer) 253.

^[21] “Fundamental Principles of International Humanitarian Law".

^[22] Veronique Christory “Cyber warfare: IHL provides an additional layer of protection” 10 Sept. 2019.

^[23] See (The “principle of military necessity” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict, the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.

^[24] See Proportionality; The principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”

^[25] Declaration by Miguel Rodriguez, Representative of Cuba, At the final session of group of governmental experts on developments in the field of information and telecommunications in the context of international security (June 23 2017).

^[26] Dan Efrony and Yuval Shany (2018), “ A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice” AJIL 112:4

^[27] David Clark and Susan Landau. “Untangling Attribution.” Harvard National Security Journal (Harvard University) 2 (2011

^[28] Davis, John S., Benjamin Adam Boudreaux, Jonathan William Welburn, Jair Aguirre, Cordaye Ogletree, Geoffrey McGovern and Michael S. Chase. Stateless Attribution: Toward International Accountability in Cyberspace. Santa Monica, CA: RAND Corporation, (2017). At

^[29] See “CyberPeace Institute to Support Victims Harmed by Escalating Conflicts in Cyberspace”.

^[30] Dan Efrony and Yuval Shany (2018), “ A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice” AJIL 112:4

^[31] Arindrajit Basu and Elonnai Hickok (2018), “Conceptualizing an International Security architecture for cyberspace”.

^[32] Monica Hakimi (2017), “The Work of International Law,” Harvard International Law Journal 58:1.

^[33] James Maxwell and Forrest Briscoe (2007),” There’s money in the air: The CFC Ban and Dupont’s Regulatory Strategy” Business Strategy and the Environment 6, 276-286.

^[34] Francis Buignon (2004). “The International Committee of the Red Cross and the development of international humanitarian law.” Chi. J. Int’l L.5: 19137

^[35] Jeremy Wright, “Cyber and International Law in the 21st Century” Govt. UK.

^[36] Michael Schmitt, “France’s Major Statement on International Law and Cyber: An Assessment” Just Security, September 16th, 2019.

^[37] Nele Achten, "Germany’s Position on International Law in Cyberspace”, Lawfare, Oct 2, 2018,

^[38] Michael Schmitt, “Estonia Speaks out on Key Rules for Cyberspace” Just Security, June 10, 2019.

^[39] https://www.justsecurity.org/wp-content/uploads/2017/06/Cuban-Expert-Declaration.pdf

^[40] https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stabilityin-Cyberspace-Berkeley-Nov-2016.pdf

^[41] Justin Sherman and Arindrajit Basu, "Fostering Strategic Convergence in US-India Tech Relations: 5G and Beyond”, The Diplomat, July 03, 2019.

^[42] Aditi Agrawal, "India and Tech Policy at the G20 Summit”, Medianama, Jul 1, 2019.

For more details visit https://cis-india.org/internet-governance/blog/arindrajit-basu-orfonline-october-21-2019-politics-by-other-means-fostering-positive-contestation-and-charting-red-lines-through-global-governance-in-cyberspace

“OTTs Eating Into Our Revenue”: Telcos in India

geetha — 2014-09-10T05:36:37Z

On August 5, 2014, the Telecom Regulatory Authority of India organised a seminar on a regulatory framework for Over-The-Top services. This is a lay discussion of the Seminar and its focus on matters crucial to telecom, the Internet and the existing regulatory framework.

On Tuesday, the Telecom Regulatory Authority of India (TRAI) held a seminar to initiate discussion on potential regulation of “over the top” services (OTTs) in India. TRAI organized the seminar to “understand perspectives of all stakeholders involved”, following grievances of telcos that OTTs are eating into their revenues and free-riding on their networks. In fact, a letter from the Cellular Operators Association of India (COAI) to TRAI outlines these concerns excellently. The letter, which I had the opportunity to see in print, objects that telcos take the trouble of laying and maintaining networks, while rapidly mushrooming OTTs eat into their revenue. Whatsapp, Skype and alternatives to paid text-and-call find particular mention in the COAI’s letter, and the COAI President Vikram Tiwathia was vociferous in his iteration of operators’ concerns. With VOIP and other OTTs replacing telco services, telcos are rapidly losing large parts of their revenue, he said.

I don’t mean to brush their concerns aside, of course. However, there is a need to consider in depth certain questions with statistical, regulatory and principled exploration. As Dr. Rajat Kathuria of ICRIER said at the Seminar’s first session, we need to evaluate whether there’s a need for regulation in the first place. This includes exploring whether the answer lies in deregulation, as Suhaan Mukerji of PLR Chambers and Subho Ray of IAMAI emphasized separately. Our solution, as Mr. Ray said, should not be to chain the free OTTs just because we are in chains ourselves. Unchaining telcos from their stringent licensing and other regulations may be more appropriate.

The Seminar was attended by telcos, OTTs, civil society and other stakeholders, and the frank exchange of views at the PHD Chamber of Commerce was heartening. While telcos in the room were broadly open to OTT innovation upon their networks (Mr. T.V. Ramachandran of Vodafone was particularly vocal on this), there exists a broadly reactionary loss-of-footing and apprehension over their current and projected revenue loss. Mr. C.S. Rao of Reliance was spot on when he said that telcos are afraid that what’s worked for them so far may not work in the future.

We’ve seen examples of such fear of incumbent operators before. In the early 1990s, the invention and spread of the Internet displaced appliancized, bundled models of telco services, and telcos were similarly unwelcoming. Indeed, AT&T went to court to fight the introduction of the Carterfone. In India, the falling demand for VAS today, and OTT-response to consumer demand, fosters such fear.

But accounting for OTTs’ lack of consumer servicing or responsibility for monetization models, what was of chief concern at the TRAI Seminar was the predominant focus on revenue. Telco profitability and their incentives for investment are important. Increasing supply side costs, with the government seeking to maximize revenue from spectrum allocation and demands of lower consumer prices, might be throttling current telco business models. We’d need to analyse data usage charges and projected mobile broadband penetration, in comparison with voice penetration, to be clear about the extent of such strangulation. But if the answer to failing telco business lies in further regulation and potential strangling of innovation, that’s a concern.

That’s in two ways. First, it isn’t merely the NetFlix or Google or Apple that populate the app economy. Raman Chima (ironically of Google) offered the example of Slideshare in Okhla, Delhi as one of the many successful Indian micro-multinationals. There are many others across India. Second, India’s current telecom regulatory model is unfit for a data/Internet content model. There’s a need, Suhaan Mukerji and Mahesh Uppal of ComFirst pointed out, to rethink our strict telecom licensing regime. We should begin to think, at least, of a vertically integrated layered model of telecom regulation that regulates on the basis of function.

These layers are integral to Internet architecture: network, transport, application. OTTs lie at the application layer, while telcos operate at the network and transport layers. It may be inefficient to utilize failures at one layer to regulate or share revenue of companies at other layers – that would stunt competition and innovation. A reconfigured licensing regime, permitting telcos to innovate more (someone at the Seminar said security clearances take years, while OTTs need no such clearance) might be more efficient and beneficial for all stakeholders involved – not least the disempowered individual consumers.

That’s my sense of the Seminar. Profitability and incentives are crucial. But they are crucial insofar as they benefit consumers – with access, choice, freedom of speech, security and privacy. Revenue sharing or partnership models, which were mentioned far too many times by multiple speakers without sufficient justification or elaboration, may not be ideal for any of us in the long term. But these are issues we – and TRAI – should consider while debating a regulatory framework.

Underlying infrastructure has an impact on our fundamental freedoms such as speech – the Supreme Court’s decisions in Sakal Papers and Express Newspapers makes that clear. Fast-paced innovation and the boundary-less benefits of a single, interoperable Internet have pushed us to favour security against freedoms. But every model we consider today – ad-based monetization, big data analytics – have implications that the NSA’s mass, cross-border surveillance has highlighted. Since TRAI is rethinking our regulatory framework for telecom and the Internet – and I envisage this going into a constructive consultation in the near future – these issues must inform its analysis and conclusions.

For more, read Nikhil Pahwa’s report over at MediaNama.

For more details visit https://cis-india.org/telecom/blog/otts-eating-into-our-revenue-telcos-in-india