Centre for Internet and Society

Stand up for Digital Rights

elonnai — 2016-06-13T15:30:12Z

The Centre for Internet & Society (CIS) invites you to a discussion on a set of recommendations for Ethical Tech, a report on human rights and private online intermediaries which describes key areas where such actors have responsibilities. The event will be held at CIS office in Bangalore on June 15, 2016 from 5 p.m. to 7 p.m.

The discussion intends to launch a report on human rights and private online intermediaries, which describes key areas where such actors have responsibilities and provides a detailed set of recommendations for Ethical Tech. This work is the culmination of a year long research project led by the Centre for Law and Democracy (CLD), in collaboration with the Arabic Network for Human Rights Information (ANHRI), the Centre for Internet and Society (CIS), Open Net Korea, the Center for Studies on Freedom of Expression and Access to Information at the University of Palermo (CELE) and researchers with the University of Ottawa and the Munk School of Global Affairs at the University of Toronto. The key themes for discussion would include:

General Human Rights Responsibilities and Private Online Intermediaries
Expanding Access
Net Neutrality
Content Moderation
Privacy
Transparency and Informed Consent
Responding to State Interferences

We look forward to meeting you and making this forum for knowledge exchange a success.

For more details visit https://cis-india.org/internet-governance/events/stand-up-for-digital-rights

GNI-Industry Dialogue Learning Session: Human Rights Impact Assessments and Due Diligence in the ICT sector

elonnai — 2016-04-06T15:42:41Z

Elonnai Hickok attended the meeting organized by Global Network Initiative on March 11, 2016 in Washington D.C.

The GNI welcomed its new observers from the Telecommunications Industry Dialogue by holding a learning session in conjunction with the GNI Board Meeting on March 10. This learning session aimed to increase understanding between the GNI and the ID by examining some of the common challenges that face ICT companies in the area of human rights due diligence and highlighting good practices. A second objective was to help the GNI develop a learning program and materials that will be useful for its members and draw on their expertise. Finally, this learning session informed the review of the GNI Implementation Guidelines that will take place during 2016.

The session took place according to the Chatham House Rule. Each short presentation was followed by a space for questions and answers.

Human Rights Impact Assessments in the ICT sector – Michael Samway
The Human Rights Due Diligence Process at Nokia – Laura Okkonen
Yahoo’s approach to Human Rights Impact Assessments– Nicole Karlebach and Katie Shay
Orange’s challenges and approach to doing business in Africa – Yves Nissim
Microsoft’s human rights impacts and the warrant case – Steve Crown and Bernard Shen
TeliaSonera’s approach to withdrawing from Eurasia – Patrik Hiselius
Considerations for company due diligence on the ground – Kathleen Reen and Babette Ngene, Internews

For discussion:

What are some of the common challenges facing current GNI member companies and ID member companies?
What do we consider to be good practices that are applicable to all?
What lessons can be applied to the review of the GNI Implementation Guidelines that will take place during 2016?

For more details visit https://cis-india.org/internet-governance/news/gni-industry-dialogue-learning-session-human-rights-impact-assessments-and-due-diligence-in-the-ict-sector

Policy Brief: Oversight Mechanisms for Surveillance

elonnai — 2015-11-24T06:09:01Z

Download the PDF

Introduction

Across jurisdictions, the need for effective and relevant oversight mechanisms (coupled with legislative safeguards) for state surveillance has been highlighted by civil society, academia, citizens and other key stakeholders.[1] A key part of oversight of state surveillance is accountability of intelligence agencies. This has been recognized at the international level. Indeed, the Organization for Economic Co-operation and Development, The United Nations, the Organization for Security and Cooperation in Europe, the Parliamentary Assembly of the Council of Europe, and the Inter-Parliamentary Union have all recognized that intelligence agencies need to be subject to democratic accountability.[2] Since 2013, the need for oversight has received particular attention in light of the information disclosed through the 'Snowden Revelations'. [3] Some countries such as the US, Canada, and the UK have regulatory mechanisms for the oversight of state surveillance and the intelligence community, while many other countries – India included - have piecemeal oversight mechanisms in place. The existence of regulatory mechanisms for state surveillance does not necessarily equate to effective oversight – and piecemeal mechanisms – depending on how they are implemented, could be more effective than comprehensive mechanisms. This policy brief seeks to explore the purpose of oversight mechanisms for state surveillance, different forms of mechanisms, and what makes a mechanism effective and comprehensive. The brief also reviews different oversight mechanisms from the US, UK, and Canada and provides recommendations for ways in which India can strengthen its present oversight mechanisms for state surveillance and the intelligence community.

What is the purpose and what are the different components of an oversight mechanism for State Surveillance?

The International Principles on the Application of Human Rights to Communication Surveillance, developed through a global consultation with civil society groups, industry, and international experts recommends that public oversight mechanisms for state surveillance should be established to ensure transparency and accountability of Communications Surveillance. To achieve this, mechanisms should have the authority to:

Access all potentially relevant information about State actions, including, where appropriate, access to secret or classified information;
Assess whether the State is making legitimate use of its lawful capabilities;
Evaluate whether the State has been comprehensively and accurately publishing information about the use and scope of Communications Surveillance techniques and powers in accordance with its Transparency obligations publish periodic reports and other information relevant to Communications Surveillance;
Make public determinations as to the lawfulness of those actions, including the extent to which they comply with these Principles[4]

What can inform oversight mechanisms for state surveillance?

The development of effective oversight mechanisms for state surveillance can be informed by a number of factors including:

Rapidly changing technology – how can mechanisms adapt, account for, and evaluate perpetually changing intelligence capabilities?
Expanding surveillance powers – how can mechanisms evaluate and rationalize the use of expanding agency powers?
Tensions around secrecy, national interest, and individual rights – how can mechanisms respect, recognize, and uphold multiple competing interests and needs including an agency's need for secrecy, the government's need to protect national security, and the citizens need to have their constitutional and fundamental rights upheld?
The structure, purpose, and goals of specific intelligence agencies and circumstances– how can mechanisms be sensitive and attuned to the structure, purpose, and functions of differing intelligence agencies and circumstances?

These factors lead to further questions around:

The purpose of an oversight mechanism: Is an oversight mechanism meant to ensure effectiveness of an agency? Perform general reviews of agency performance? Supervise the actions of an agency? Hold an agency accountable for misconduct?
The structure of an oversight mechanism: Is it internal? External? A combination of both? How many oversight mechanisms that agencies should be held accountable to?
The functions of an oversight mechanism: Is an oversight mechanism meant to inspect? Evaluate? Investigate? Report?
The powers of an oversight mechanism: The extent of access that an oversight mechanism needs and should have to the internal workings of security agencies and law enforcement to carry out due diligence? The extent of legal backing that an oversight mechanism should have to hold agencies legally accountable.

What oversight mechanisms for State Surveillance exist in India?

In India the oversight 'ecosystem' for state surveillance is comprised of:

Review committee: Under the Indian Telegraph Act 1885 and the Rules issued thereunder (Rule 419A), a Central Review Committee that consists of the Cabinet Secretary, Secretary of Legal Affairs to the Government of India, Secretary of Department of Telecommunications to the Government of India is responsible for meeting on a bi-monthly basis and reviewing the legality of interception directions. The review committee has the power to revoke the directions and order the destruction of intercepted material.[5] This review committee is also responsible for evaluating interception, monitoring, and decryption orders issued under section 69 of the Information Technology Act 2000.[6] and orders for the monitoring and collection of traffic data under section 69B of the Information Technology Act 2000.[7]
Authorizing Authorities: The Secretary in the Ministry of Home Affairs of the Central Government is responsible for authorizing requests for the interception, monitoring, and decryption of communications issued by central agencies.[8] The Secretary in charge of the Home Department is responsible for authorizing requests for the interception, monitoring, and decryption of communications from state level agencies and law enforcement.[9] The Secretary to the Government of India in the Department of Information Technology under the Ministry of Communications and Information Technology is responsible for authorizing requests for the monitoring and collection of traffic data.[10] Any officer not below the rank of Joint Secretary to the Government of India, who has been authorised by the Union Home Secretary or the State Home Secretary in this behalf, may authorize the interception of communications in case of an emergency.[11] A Commissioner of Police, District Superintendent of Police or Magistrate may issue requests for stored data to any postal or telegraph authority.[12]
Administrative authorities: India does not have an oversight mechanism for intelligence agencies, but agencies do report to different authorities. For example: The Intelligence Bureau reports to the Home Minister, the Research and Anaylsis Wing is under the Cabinet Secretariat and reports to the Prime Minister, the Joint Intelligence Committee (JIC), National Technical Research Organisation (NTRO) and Aviation Research Centre (ARC) report to the National Security Adviser; and the National Security Council Secretariat under the NSA which serves the National Security Council.[13]

It is important to note that though India has a Right to Information Act, but most of the security agencies are exempt from the purview of the Act[14] as is disclosure of any information that falls under the purview of the Official Secrets Act 1923.[15] [Note: There is no point in listing out all the exceptions given in section 8 and other sections as well. I think the point is sufficiently made when we say that security agencies are exempt from the purview of the Act.] The Official Secrets Act does not provide a definition of an 'official secret' and instead protects information: pertaining to national Security, defence of the country, affecting friendly relations with foreign states, etc.[16] Information in India is designated as classified in accordance to the Manual of Departmental Security Instruction which is circulated by the Ministry of Home Affairs. According to the Public Records Rules 1997, “classified records" means the files relating to the public records classified as top-secret, confidential and restricted in accordance with the procedure laid down in the Manual of Departmental Security Instruction circulated by the Ministry of Home affairs from time to time;”[17] Bi-annually officers evaluate and de-classify classified information and share the same with the national archives.[18] In response to questions raised in the Lok Sabha on the 5th of May 2015 regarding if the Official Secrets Act, 1923 will be reviewed, the number of classified files stored with the Government under the Act, and if the Government has any plans to declassify some of the files – the Ministry of Home Affairs clarified that a committee consisting of Secretaries of the Ministry of Home Affairs, the Department of Personnel and Training, and the Department of Legal Affairs has been established to examine the provisions of the Official Secrets Act, 1923 particularly in light of the Right to Information Act, 2005. The Ministry of Home Affairs also clarified that the classification and declassification of files is done by each Government Department as per the Manual of Departmental Security Instructions, 1994 and thus there is no 'central database of the total number of classified files'.[19]

How can India's oversight mechanism for state surveillance be clarified?

Though these mechanisms establish a basic framework for an oversight mechanism for state surveillance in India, there are aspects of this framework that could be clarified and there are ways in which the framework could be strengthened.

Aspects of the present review committee that could be clarified:

Powers of the review committee: Beyond having the authority to declare that orders for interception, monitoring, decryption, and collection of traffic data are not within the scope of the law and order for destruction of any collected information – what powers does the review committee have? Does the committee have the power to compel agencies to produce additional or supporting evidence? Does the committee have the power to compel information from the authorizing authority?
Obligations of the review committee: The review committee is required to 'record its findings' as to whether the interception orders issued are in accordance with the law. Is there a standard set of questions/information that must be addressed by the committee when reviewing an order? Does the committee only review the content of the order or do they also review the implementation of the order? Beyond recording its findings, are there any additional reporting obligations that the review committee must fulfill?
Accountability of the review committee: Does the review committee answer to a higher authority? Do they have to submit their findings to other branches of the government – such as Parliament? Is there a mechanism to ensure that the review committee does indeed meet every two months and review all orders issued under the relevant sections of the Indian Telegraph Act 1885 and the Information Technology Act 2008?

Proposed oversight mechanisms in India

Oversight mechanisms can help with avoiding breaches of national security by ensuring efficiency and effectiveness in the functioning of security agencies. The need for the oversight of state surveillance is not new in India. In 1999 the Union Government constituted a Committee with the mandate of reviewing the events leading up to Pakistani aggression in Kargil and to recommend measures towards ensuring national security. Though the Kargil Committee was addressing surveillance from the perspective of gathering information on external forces, there are parellels in the lessons learned for state surveillance. Among other findings, in their Report the Committee found a number of limitations in the system for collection, reporting, collation, and assessment of intelligence. The Committee also found that there was a lack of oversight for the intelligence community in India – resulting in no mechanisms for tasking the agencies, monitoring their performance and overall functioning, and evaluating the quality of the work.

The Committee also noted that such a mechanism is a standard feature in jurisdictions across the world. The Committee emphasized this need from an economic perspective – that without oversight – the Government and the nation has no way of evaluating whether or not they are receiving value for their money. The Committee recommended a review of the intelligence system with the objective of solving such deficiencies.[20]

In 2000 a Group of Ministers was established to review the security and intelligence apparatus of the country. In their report issued to the Prime Minister, the Group of Ministers recommended the establishment of an Intelligence Coordination Group for the purpose of providing oversight of intelligence agencies at the Central level. Specifically the Intelligence Coordination Group would be responsible for:

Allocation of resources to the intelligence agencies
Consideration of annual reviews on the quality of inputs
Approve the annual tasking for intelligence collection
Oversee the functions of intelligence agencies
Examine national estimates and forecasts[21]

Past critiques of the Indian surveillance regime have included the fact that intelligence agencies do not come under the purview of any overseeing mechanism including Parliament, the Right to Information Act 2005, or the General Comptroller of India.

In 2011, Manish Tewari, who at the time was a Member of Parliament from Ludhiana, introduced the Private Member's Bill - “The Intelligence Services (Powers and Regulation) Bill” proposed stand alone statutory regulation of intelligence agencies. In doing so it sought to establish an oversight mechanism for intelligence agencies within and outside of India. The Bill was never introduced into Parliament.[22] Broadly, the Bill sought to establish: a National Intelligence and Security Oversight Committee which would oversee the functionings of intelligence agencies and would submit an annual report to the Prime Minister, a National Intelligence Tribunal for the purpose of investigating complaints against intelligence agencies, an Intelligence Ombudsman for overseeing and ensuring the efficient functioning of agencies, and a legislative framework regulating intelligence agencies.[23]

Proposed policy in India has also explored the possibility of coupling surveillance regulation and oversight with private regulation and oversight. In 2011 the Right to Privacy Bill was drafted by the Department of Personnel and Training. The Bill proposed to establish a “Central Communication Interception Review Committee” for the purposes of reviewing orders for interception issued under the Telegraph Act. The Bill also sought to establish an authorization process for surveillance undertaken by following a person, through CCTV's, or other electronic means.[24] In contrast, the 2012 Report of the Group of Experts on Privacy, which provided recommendations for a privacy framework for India, recommended that the Privacy Commissioner should exercise broad oversight functions with respect to interception/access, audio & video recordings, the use of personal identifiers, and the use of bodily or genetic material.[25]

A 2012 report by the Institute for Defence Studies and Analyses titled “A Case for Intelligence Reforms in India” highlights at least four 'gaps' in intelligence that have resulted in breaches of national security including: zero intelligence, inadequate intelligence, inaccurate intelligence, and excessive intelligence – particularly in light of additional technical inputs and open source inputs.[26] In some cases, an oversight mechanism could help in remediating some of these gaps. Returning to the 2012 IDSA Report, the Report recommends the following steps towards an oversight mechanism for Indian intelligence:

Establishing an Intelligence Coordination Group (ICG) that will exercise oversight functions for the intelligence community at the Central level. This could include overseeing functions of the agencies, quality of work, and finances.
Enacting legislation defining the mandates, functions, and duties of intelligence agencies.
Holding intelligence agencies accountable to the Comptroller & Auditor General to ensure financial accountability.
Establishing a Minister for National Security & Intelligence for exercising administrative authority over intelligence agencies.
Establishing a Parliamentary Accountability Committee for oversight of intelligence agencies through parliament.
Defining the extent to which intelligence agencies can be held accountable to reply to requests pertaining to violations of privacy and other human rights issued under the Right to Information Act.

Highlighting the importance of accountable surveillance frameworks, in 2015 the external affairs ministry director general of India Santosh Jha stated at the UN General Assembly that the global community needs to "to create frameworks so that Internet surveillance practices motivated by security concerns are conducted within a truly transparent and accountable framework.”[27]

In what ways can India's mechanisms for state surveillance be strengthened?

Building upon the recommendations from the Kargil Committee, the Report from the Group of Ministers, the Report of the Group of Experts on Privacy, the Draft Privacy Bill 2011, and the IDSA report, ways in which the framework for oversight of state surveillance in India could be strengthened include:

Oversight to enhance public understanding, debate, accountability, and democratic governance: State surveillance is unique in that it is enabled with the objective of protecting a nations security. Yet, to do so it requires citizens of a nation to trust the actions taken by intelligence agencies and to allow for possible access into their personal lives and possible activities that might infringe on their constitutional rights (such as freedom of expression) for a larger outcome of security. Because of this, oversight mechanisms for state surveillance must balance securing national security while submitting itself to some form of accountability to the public.
Independence of oversight mechanisms: Given the Indian context, it is particularly important that an oversight mechanism for surveillance powers and the intelligence community is capable of addressing and being independent from political interference. Indeed, the majority of cases regarding illegal interceptions that have reached the public sphere pertain to the surveillance of political figures and political turf wars.[28] Furthermore, though the current Review Committee established in the Indian Telegraph Act does not have a member from the Ministry of Home Affairs (the Ministry responsible for authorizing interception requests), it is unclear how independent this committee is from the authorizing Ministry. To ensure non-biased oversight, it is important that oversight mechanisms are independent.
Legislative regulation of intelligence agencies: Currently, intelligence agencies are provided surveillance powers through the Information Technology Act and the Telegraph Act, but beyond the National Intelligence Agency Act which establishes the National Intelligence Agency, there is no legal mechanism creating, regulating and overseeing intelligence agencies using these powers. In the 'surveillance ecosystem' this creates a policy vacuum, where an agency is enabled through law with a surveillance power and provided a procedure to follow, but is not held legally accountable for the effective, ethical, and legal use of the power. To ensure legal accountability of the use of surveillance techniques, it is important that intelligence are created through legislation that includes oversight provisions.
Comprehensive oversight of all intrusive measures: Currently the Review Committee established under the Telegraph Act is responsible for the evaluation of orders for the interception, monitoring, decryption, and collection of traffic data. The Review Committee is not responsible for reviewing the implementation or effectiveness of such orders and is not responsible for reviewing orders for access to stored information or other forms of electronic surveillance. This situation is a result of 1. Present oversight mechanisms not having comprehensive mandates 2. Different laws in India enabling different levels of access and not providing a harmonized oversight mechanism and 3.Indian law not formally addressing and regulating emerging surveillance technologies and techniques. To ensure effectiveness, it is important for oversight mechanisms to be comprehensive in mandate and scope.
Establishment of a tribunal or redress mechanism: India currently does not have a specified means for individuals to seek redress for unlawful surveillance or surveillance that they feel has violated their rights. Thus, individuals must take any complaint to the courts. The downsides of such a system include the fact that the judiciary might not be able to make determinations regarding the violation, the court system in India is overwhelmed and thus due process is slow, and given the sensitive nature of the topic – courts might not have the ability to immediately access relevant documentation. To ensure redress, it is important that a tribunal or a redress mechanism with appropriate powers is established to address complaints or violations pertaining to surveillance.
Annual reporting by security agencies, law enforcement, and service providers: Information regarding orders for surveillance and the implementation of the same is not disclosed by the government or by service providers in India.[29] Indeed, service providers by law are required to maintain the confidentiality of orders for the interception, monitoring, or decryption of communications and monitoring or collection of traffic data. At the minimum, an oversight mechanism should receive annual reports from security agencies, law enforcement, and service providers with respect to the surveillance undertaken. Edited versions of these Reports could be shared with Parliament and the public.
Consistent and mandatory reviews of relevant legislation: Though committees have been established to review various legislation and policy pertaining to state surveillance, the time frame for these reviews is not clearly defined by law. These reviews should take place on a consistent and publicly stated time frame. Furthermore, legislation enabling surveillance in India do not require review and assessment for relevance, adequacy, necessity, and proportionality after a certain period of time. Mandating that legislation regulating surveillance is subject to review on a consistent is important in ensuring that the provisions are relevant, proportionate, adequate, and necessary.
Transparency of classification and declassification process and centralization of de-classified records: Currently, the Ministry of Home Affairs establishes the process that government departments must follow for classifying and de-classifying information. This process is not publicly available and de-classified information is stored only with the respective department. For transparency purposes, it is important that the process for classification of records be made public and the practice of classification of information take place in exceptional cases. Furthermore, de-classified records should be stored centrally and made easily accessible to the public.
Executive and administrative orders regarding establishing of agencies and surveillance projects should be in the public domain: Intelligence agencies and surveillance projects in India are typically enabled through executive orders. For example, NATGRID was established via an executive order, but this order is not publicly available. As a form of transparency and accountability to the public, it is important that if executive orders establish an agency or a surveillance project, these are made available to the public to the extent possible.
Oversight of surveillance should incorporate privacy and cyber/national security: Increasingly issues of surveillance, privacy, and cyber security are interlinked. Any move to establish an oversight mechanism for surveillance and the intelligence committee must incorporate and take into consideration privacy and cyber security. This could mean that an oversight mechanism for surveillance in India works closely with CERT-IN and a potential privacy commissioner or that the oversight mechanism contains internal expertise in these areas to ensure that they are adequately considered.
Oversight by design: Just like the concept of privacy by design promotes the ideal that principles of privacy are built into devices, processes, services, organizations, and regulation from the outset – oversight mechanisms for state surveillance should also be built in from the outset of surveillance projects and enabling legislation. In the past, this has not been the practice in India– the National Intelligence Grid was an intelligence system that sought to link twenty one databases together – making such information easily and readily accessible to security agencies – but the oversight of such a system was never defined.[30] Similarly, the Centralized Monitoring System was conceptualized to automate and internalize the process of intercepting communications by allowing security agencies to intercept communications directly and bypass the service provider.[31] Despite amending the Telecom Licenses to provide for the technical components of this project, oversight of the project or of security agencies directly accessing information has yet to be defined.[32]

Examples of oversight mechanisms for State Surveillance: US, UK, Canada and United States

United States

In the United States the oversight 'ecosystem' for state surveillance is made up of:

The Foreign Intelligence Surveillance Court

The U.S Foreign Intelligence Surveillance Court (FISA) is the predominant oversight mechanism for state surveillance and oversees and authorizes the actions of the Federal Bureau of Investigation and the National Security Agency.[33] The court was established by the enactment of the Foreign Intelligence Surveillance Act 1978 and is governed by Rules of Procedure, the current Rules being formulated in 2010.[34] The Court is empowered to ensure compliance with the orders that it issues and the government is obligated to inform the Court if orders are breached.[35] FISA allows for individuals who receive an order from the Court to challenge the same,[36] and public filings are available on the Court's website.[37] Additionally, organizations, including the American Civil Liberties Union[38] and the Electronic Frontier Foundation, have filed motions with the Court for release of records. [39] Similarly, Google has approached the Court for the ability to publish aggregate information regarding FISA orders that the company recieves.[40]

Government Accountability Office

The U.S Government Accountability Office (GAO) is an independent office that works for Congress and conducts audits, investigates, provides recommendations, and issues legal decisions and opinions with regard to federal government spending of taxpayer's money by the government and associated agencies including the Defence Department, the FBI, and Homeland Security.[41] The head of the GAO is the Comptroller General of the United States and is appointed by the President. The GAO will initiate an investigation if requested by congressional committees or subcommittees or if required under public law or committee reports. The GOA has reviewed topics relating to Homeland Security, Information Security, Justice and Law Enforcement, National Defense, and Telecommunications.[42] For example, in June 2015 the GOA completed an investigation and report on 'Foreign Terrorist Organization Process and U.S Agency Enforcement Actions” [43] and an investigation on “Cyber Security: Recent Data Breaches Illustrate Need for Strong Controls across Federal Agencies”.[44]

Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence

The U.S. Senate Select Committee on Intelligence is a standing committee of the U.S Senate with the mandate to review intelligence activities and programs and ensure that these are inline with the Constitution and other relevant laws. The Committee is also responsible for submitting to Senate appropriate proposals for legislation, and for reporting to Senate on intelligence activities and programs.[45] The House Permanent Select Committee holds similar jurisdiction. The House Permanent Select Committee is committed to secrecy and cannot disclose classified information excepted authorized to do so. Such an obligation does not exist for the Senate Select Committee on Intelligence and the committee can disclose classified information publicly on its own.[46]

Privacy and Civil Liberties Oversight Board (PCLOB)

The Privacy and Civil Liberties Oversight Board was established by the Implementing Recommendations of the 9/11 Commission Act of 2007 and is located within the executive branch.[47] The objective of the PCLOB is to ensure that the Federal Government's actions to combat terrorism are balanced against privacy and civil liberties. Towards this, the Board has the mandate to review and analyse ant-terrorism measures the executive takes and ensure that such actions are balanced with privacy and civil liberties, and to ensure that privacy and civil liberties are liberties are adequately considered in the development and implementation of anti-terrorism laws, regulations and policies.[48] The Board is responsible for developing principles to guide why, whether, when, and how the United States conducts surveillance for authorized purposes. Additionally, officers of eight federal agencies must submit reports to the PCLOB regarding the reviews that they have undertaken, the number and content of the complaints, and a summary of how each complaint was handled. In order to fulfill its mandate, the Board is authorized to access all relevant records, reports, audits, reviews, documents, papers, recommendations, and classified information. The Board may also interview and take statements from necessary personnel. The Board may request the Attorney General to subpoena on the Board's behalf individuals outside of the executive branch.[49]

To the extent possible, the Reports of the Board are made public. Examples of recommendations that the Board has made in the 2015 Report include: End the NSA”s bulk telephone records program, add additional privacy safeguards to the bulk telephone records program, enable the FISC to hear independent views on novel and significant matters, expand opportunities for appellate review of FISC decisions, take advantage of existing opportunities for outside legal and technical input in FISC matters, publicly release new and past FISC and DISCR decisions that involve novel legal, technical, or compliance questions, publicly report on the operation of the FISC Special Advocate Program, Permit Companies to Disclose Information about their receipt of FISA production orders and disclose more detailed statistics on surveillance, inform the PCLOB of FISA activities and provide relevant congressional reports and FISC decisions, begin to develop principles for transparency, disclose the scope of surveillance authorities affecting US Citizens.[50]

The Wiretap Report

The Wiretap Report is an annual compilation of information provided by federal and state officials regarding applications for interception orders of wire, oral, or electronic communications, data address offenses under investigation, types and locations of interception devices, and costs and duration of authorized intercepts.[51] When submitting information for the report a judge will include the name and jurisdiction of the prosecuting official who applied for the order, the criminal offense under investigation, the type of intercept device used, the physical location of the device, and the duration of the intercept. Prosecutors provide information related to the cost of the intercept, the number of days the intercept device was in operation, the number of persons whose communications were intercepted, the number of intercepts, and the number of incriminating intercepts recorded. Results of the interception orders such as arrest, trials, convictions, and the number of motions to suppress evidence are also noted in the prosecutor reports. The Report is submitted to Congress and is legally required under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The report is issued by the Administrative Office of the United States Courts.[52]

United Kingdom

The Intelligence and Security Committee (ISC) of Parliament

The Intelligence Security Committee was established by the Intelligence Services Act 1994. Members are appointed by the Prime Minster and the Committee reports directly to the same. Additionally, the Committee submits annual reports to Parliament. Towards this, the Committee can take evidence from cabinet ministers, senior officials, and from the public.[53] The most recent report of the Committee is the 2015 “Report on Privacy and Security”.[54] Members of the Committee are subject to the Official Secrets Act 1989 and have access to classified material when carrying out investigations.[55]

Joint Intelligence Committee (JIC)

This Joint Intelligence Committee is located in the Cabinet office and is broadly responsible for overseeing national intelligence organizations and providing advice to the Cabinet on issues related to security, defense, and foreign affairs. The JIC is overseen by the Intelligence and Security Committee.[56]

The Interception of Communications Commissioner

The Interception of Communications Commissioner is appointed by the Prime Minster under the Regulation of Investigatory Powers Act 2000 for the purpose of reviewing surveillance conducted by intelligence agencies, police forces, and other public authorities. Specifically, the Commissioner inspects the interception of communications, the acquisition and disclosure of communications data, the interception of communications in prisons, and the unintentional electronic interception.[57] The Commissioner submits an annual report to the Prime Minister. The Reports of the Commissioner are publicly available.[58]

The Intelligence Services Commissioner

The Intelligence Services Commissioner is an independent body appointed by the Prime Minister that is legally empowered through the Regulation of Investigatory Powers Act (RIPA) 2000. The Commissioner provides independent oversight on the use of surveillance by UK intelligence services.[59] Specifically, the Commissioner is responsible for reviewing authorized interception orders and the actions and performance of the intelligence services.[60] The Commissioner is also responsible for providing assistance to the Investigatory Powers Tribunal, submitting annual reports to the Prime Minister on the discharge of its functions, and advising the Home Office on the need of extending the Terrorism Prevention and Investigation Measures regime.[61] Towards these the Commissioner conducts in-depth audits on the orders for interception to ensure that the surveillance is within the scope of the law, that the surveillance was necessary for a legally established reason, that the surveillance was proportionate, that the information accessed was justified by the privacy invaded, and that the surveillance authorized by the appropriate official. The Commissioner also conducts 'site visits' to ensure that orders are being implemented as per the law.[62] As a note, the Intelligence Services Commissioner does not undertake any subject that is related to the Interception of Communications Commissioner. The Commissioner has access to any information that he feels is necessary to carry out his investigations. The Reports of the Intelligence Service Commissioner are publicly available.[63]

Investigatory Powers Tribunal

The Investigatory Powers Tribunal is a court which investigates complaints of unlawful surveillance by public authorities or intelligence/law enforcement agencies.[64] The Tribunal was established under the Regulation of Investigatory Powers Act 2000 and has a range of oversight functions to ensure that public authorities act and agencies are in compliance with the Human Rights Act 1998.[65] The Tribunal specifically is an avenue of redress for anyone who believes that they have been a victim of unlawful surveillance under RIPA or wider human rights infringements under the Human Rights Act 1998. The Tribunal can provide seven possible outcomes for any application including 'found in favor of complainant, no determination in favour of complainant, frivolous or vexatious, out of time, out of jurisdiction, withdrawn, or no valid complaint.[66] The Tribunal has the authority to receive and consider evidence in any form, even if inadmissible in an ordinary court.[67] Where possible, cases are available on the Tribunal's website. Decisions by the Tribunal cannot be appealed, but can be challenged in the European Court of Human Rights.[68]

Canada

In Canada the oversight 'ecosystem' for state surveillance includes:

Security Intelligence Review Committee

The Security Intelligence Review Committee is an independent body that is accountable to the Parliament of Canada and reports on the Canadian Security Intelligence Service.[69] Members of the Security Intelligence Review Committee are appointed by the Prime Minister of Canada. The committee conducts reviews on a pro-active basis and investigates complaints. Committee members have access to classified information to conduct reviews. The Committee submits an annual report to Parliament and an edited version is publicly available. The 2014 Report was titled “Lifting the Shroud of Secrecy”[70] and includes reviews of the CSIS's activities, reports on complaints and subsequent investigations, and provides recommendations.

Office of the Communications Security Establishment Commissioner

The Communications Security Commissioner conducts independent reviews of Communications Security Establishment (CSE) activities to evaluate if they are within the scope of Canadian law.[71] The Commissioner submits a report to Parliament on an annual basis and has a number of powers including the power to subpoena documents and personnel.[72] If the Commissioner believes that the CSE has not complied with the law – it must report this to the Attorney General of Canada and to the Minister of National Defence. The Commissioner may also receive information from persons bound to secrecy if they deem it to be in the public interest to disclose such information.[73] The Commissioner is also responsible for verifying that the CSE does not surveil Canadians and for promoting measures to protect the privacy of Canadians.[74] When conducting a review, the Commissioner has the ability to examine records, receive briefings, interview relevant personnel, assess the veracity of information, listen to intercepted voice recordings, observe CSE operators and analysts to verify their work, examine CSI electronic tools, systems and databases to ensure compliance with the law.[75]

Office of the Privacy Commissioner

The Office of the Privacy Commissioner of Canada (OPC) oversees the implementation of and compliance with the Privacy Act and the Personal information and Electronic Documents Act.[76]

The OPC is an independent body that has the authority to investigate complaints regarding the handling of personal information by government and private companies, but can only comment on the activities of security and intelligence agencies. For example, in 2014 the OPC issued the report “Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber Surveillance”[77] The OPC can also provide testimony to Parliament and other government bodies.[78] For example, the OPC has made appearances before the Senate Standing Committee of National Security and Defense on Bill C-51.[79] The OPC cannot conduct joint audits or investigations with other bodies.[80]

Annual Interception Reports

Under the Criminal Code of Canada, regional governments must issue annual interception reports. The reports must include number of individuals affected by interceptions, average duration of the interception, type of crimes investigated, numbers of cases brought to court, and number of individuals notified that interception had taken place.[81]

Conclusion

The presence of multiple and robust oversight mechanisms for state surveillance does not necessarily correlate to effective oversight. The oversight mechanisms in the UK, Canada, and the U.S have been criticised. For example, Canada . For example, the Canadian regime has been characterized as becoming weaker it has removed one of its key over sight mechanisms – the Inspector General of the Canadian Security Intelligence Service which was responsible for certifying that the Service was in compliance with law.[82]

Other weaknesses in the Canadian regime that have been highlighted include the fact that different oversight bodies do not have the authority to share information with each other, and transparency reports do not include many new forms of surveillance.[83] Oversight mechanisms in the U.S on the other hand have been criticized as being opaque[84] or as lacking the needed political support to be effective.[85] The UK oversight mechanism has been criticized for not having judicial authorization of surveillance requests, have opaque laws, and for not having a strong right of redress for affected individuals.[86] These critiques demonstrate that there are a number of factors that must come together for an oversight mechanism to be effective. Public transparency and accountability to decision making bodies such as Parliament or Congress can ensure effectiveness of oversight mechanisms, and are steps towards providing the public with means to debate in an informed manner issues related to state surveillance and allows different bodies within the government the ability to hold the state accountable for its actions.

.[1]. For example, “Public Oversight” is one of the thirteen Necessary and Proportionate principles on state communications surveillance developed by civil society and academia globally, that should be incorporated by states into communication surveillance regimes. The principles can be accessed here: https://en.necessaryandproportionate.org/

[2]. Hans Born and Ian Leigh, “Making Intelligence Accountable. Legal Standards and Best Practice for Oversight of Intelligence Agencies.” Pg. 13. 2005. Available at: http://www.prsindia.org/theprsblog/wp-content/uploads/2010/07/making-intelligence.pdf. Last accessed: August 6, 2015.

[3]. For example, this point was made in the context of the UK. For more information see: Nick Clegg, 'Edward Snowden's revelations made it clear: security oversight must be fit for the internet age,”. The Guardian. March 3rd 2014. Available at: http://www.theguardian.com/commentisfree/2014/mar/03/nick-clegg-snowden-security-oversight-internet-age. Accessed: July 27, 2015.

[4]. International Principles on the Application of Human Rights to Communications Surveillance. Available at: https://en.necessaryandproportionate.org/

[5]. Sub Rules (16) and (17) of Rule 419A, Indian Telegraph Rules, 1951. Available at:http://www.dot.gov.in/sites/default/files/march2007.pdf Note: This review committee is responsible for overseeing interception orders issued under the Indian Telegraph Act and the Information Technology Act.

[6]. Information Technology Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules 2009. Definition q. Available at: http://dispur.nic.in/itact/it-procedure-interception-monitoring-decryption-rules-2009.pdf

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[8]. This authority is responsible for authorizing interception requests issued under the Indian Telegraph Act and the Information Technology Act. Section 2, Indian Telegraph Act 1885 and Section 4, Information Technology Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009

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For more details visit https://cis-india.org/internet-governance/blog/policy-brief-oversight-mechanisms-for-surveillance

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

Big Data and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011

elonnai — 2015-08-11T07:01:12Z

Experts and regulators across jurisdictions are examining the impact of Big Data practices on traditional data protection standards and principles. This will be a useful and pertinent exercise for India to undertake as the government and the private and public sectors begin to incorporate and rely on the use of Big Data in decision making processes and organizational operations.This blog provides an initial evaluation of how Big Data could impact India's current data protection standards.

Experts and regulators across the globe are examining the impact of Big Data practices on traditional data protection standards and principles. This will be a useful and pertinent exercise for India to undertake as the government and the private and public sectors begin to incorporate and rely on the use of Big Data in decision making processes and organizational operations.

Below is an initial evaluation of how Big Data could impact India's current data protection standards.

India currently does not have comprehensive privacy legislation - but the Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules 2011 formed under section 43A of the Information Technology Act 2000[1] define a data protection framework for the processing of digital data by Body Corporate. Big Data practices will impact a number of the provisions found in the Rules:

Scope of Rules: Currently the Rules apply to Body Corporate and digital data. As per the IT Act, Body Corporate is defined as "Any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities."

The present scope of the Rules excludes from its purview a number of actors that do or could have access to Big Data or use Big Data practices. The Rules would not apply to government bodies or individuals collecting and using Big Data. Yet, with technologies such as IoT and the rise of Smart Cities across India – a range of government, public, and private organizations and actors could have access to Big Data.

Definition of personal and sensitive personal data: Rule 2(i) defines personal information as "information that relates to a natural person which either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person."

Rule 3 defines sensitive personal information as:

Password,
Financial information,
Physical/physiological/mental health condition,
Sexual orientation,
Medical records and history,
Biometric information

The present definition of personal data hinges on the factor of identification (data that is capable of identifying a person). Yet this definition does not encompass information that is associated to an already identified individual - such as habits, location, or activity.

The definition of personal data also addresses only the identification of 'such person' and does not address data that is related to a particular person but that also reveals identifying information about another person - either directly - or when combined with other data points.

By listing specific categories of sensitive personal information, the Rules do not account for additional types of sensitive personal information that might be generated or correlated through the use of Big Data analytics.

Importantly, the definitions of sensitive personal information or personal information do not address how personal or sensitive personal information - when anonymized or aggregated – should be treated.

Consent: Rule 5(1) requires that Body Corporate must, prior to collection, obtain consent in writing through letter or fax or email from the provider of sensitive personal data regarding the use of that data.

In a context where services are delivered with little or no human interaction, data is collected through sensors, data is collected on a real time and regular basis, and data is used and re-used for multiple and differing purposes - it is not practical, and often not possible, for consent to be obtained through writing, letter, fax, or email for each instance of data collection and for each use.

Notice of Collection: Rule 5(3) requires Body Corporate to provide the individual with a notice during collection of information that details the fact that information is being collected, the purpose for which the information is being collected, the intended recipients of the information, the name and address of the agency that is collecting the information and the agency that will retain the information. Furthermore body corporate should not retain information for longer than is required to meet lawful purposes.

Though this provision acts as an important element of transparency, in the context of Big Data, communicating the purpose for which data is collected, the intended recipients of the information, the name and address of the agency that is collecting the information and the agency that will retain the information could prove to be difficult to communicate as they are likely to encompass numerous agencies and change depending upon the analysis being done.

Access and correction: Rule 5(6) provides individuals with the ability to access sensitive personal information held by the body corporate and correct any inaccurate information.

This provision would be difficult to implement effectively in the context of Big Data as vast amounts of data are being generated and collected on an ongoing and real time basis and often without the knowledge of the individual.

Purpose Limitation: Rule 5(5) requires that body corporate should use information only of the purpose which it has been collected.

In the context of Big Data this provision would overlook the re-use of data that is inherent in such practices.

Security: Rule 8 states that any Body Corporate or person on its behalf will be understood to have complied with reasonable security practices and procedures if they have implemented such practices and have in place codes that address managerial, technical, operational and physical security control measures. These codes could follow the IS/ISO/IEC 27001 standard or another government approved and audited standard.

This provision importantly requires that data controllers collecting and processing data have in place strong security practices. In the context of Big Data – the security of devices that might be generating or collecting data and algorithms processing and analysing data is critical. Once generated, it might be challenging to ensure the data is being transferred to or being analysed by organisations that comply with such security practices as listed.

Data Breach : Rule 8 requires that if a data breach occurs, Body Corporate would have to be able to demonstrate that they have implemented their documented information security codes.

Though this provision holds a company accountable for the implementation of security practices, it does not address how a company should be held accountable for a large scale data breach as in the context of Big Data the scope and impact of a data breach is on a much larger scale.

Opt in and out and ability to withdraw consent : Rule 5(7) requires Body Corporate or any person on its behalf, prior to the collection of information - including sensitive personal information - must give the individual the option of not providing information and must give the individual the option of withdrawing consent. Such withdrawal must be sent in writing to the body corporate.

The feasibility of such a provision in the context of Big Data is unclear, especially in light of the fact that Big Data practices draw upon large amounts of data, generated often in real time, and from a variety of sources.

Disclosure of Information: Rule 6 maintains that disclosure of sensitive personal data can only take place with permission from the provider of such information or as agreed to through a lawful contract.

This provision addresses disclosure and does not take into account the “sharing” of information that is enabled through networked devices, as well as the increasing practice of companies to share anonymized or aggregated data.

Privacy Policy : Rule 4 requires that body corporate have in place a privacy policy on their website that provides clear and accessible statements of its practices and policies, type of personal or sensitive personal information that is being collected, purpose of the collection, usage of the information, disclosure of the information, and the reasonable security practices and procedures that have been put in place to secure the information.

In the context of Big Data where data from a variety of sources is being collected, used, and re-used it is important for policies to 'follow data' and appear in a contextualized manner. The current requirement of having Body Corporate post a single overarching privacy policy on its website could prove to be inadequate.

Remedy : Section 43A of the Act holds that if a body corporate is negligent in implementing and maintain reasonable security practices and procedures which results in wrongful loss or wrongful gain to any person, the body corporate can be held liable to pay compensation to the affected person.

This provision will provide limited remedy for an affected individual in the context of Big Data. Though important to help prevent data breaches resulting from negligent data practices, implementation of reasonable security practices and procedures cannot be the only hinging point for determining liability of a Body Corporate for violations and many of the harms possible through Big Data are not in the form of wrongful loss or wrongful gain to another person. Indeed many harms possible through Big Data are non-economic in nature – including physical invasion of privacy, and discriminatory practices that can arise from decisions based on Big Data analytics. Nor does the provision address the potential for future damage that can result from a 'Big Data data breach'.

The safeguards noted in the above section are not the only legal provisions that speak to privacy in India. There are over fifty sectoral legislation that have provisions addressing privacy - for example provisions addressing confidentiality of health and banking information. The government of India is also in the process of drafting a privacy legislation. In 2012 the Report of the Group of Experts on Privacy provided recommendations for a privacy framework in India. The Report envisioned a framework of co-regulation - with sector level self regulatory organization developing privacy codes (that are not lower than the defined national privacy principles) and that are enforced by a privacy commissioner.[2] Perhaps this method would be optimal for the regulation of Big Data- allowing for the needed flexibility and specificity in standards and device development. Though the Report notes that individuals can seek remedy from the court and the Privacy Commissioner can issue fines for a violation, the development of privacy legislation in India has yet to clearly integrate the importance of due process and remedy. With the onset of Big Data - this will become more important than ever.

Conclusion

The use and generation of Big Data in India is growing. Plans such as free wifi zones in cities[3], city wide CCTV networks with facial recognition capabilities[4], and the implementation of an identity/authentication platform for public and private services[5], are indicators towards a move of data generation that is networked and centralized, and where the line between public and private is blurred through the vast amount of data that is collected.

In such developments and innovations what is privacy and what role does privacy play? Is it the archaic inhibitor - limiting the sharing and use of data for new and innovative purposes? Will it be defined purely by legislative norms or through device/platform design as well? Is it a notion that makes consumers think twice about using a product or service or is it a practice that enables consumer and citizen uptake and trust and allows for the growth and adoption of these services?

How privacy will be regulated and how it will be perceived is still evolving across jurisdictions, technologies, and cultures - but it is clear that privacy is not being and cannot be overlooked. Governments across the world are reforming and considering current and future privacy regulation targeted towards life in a quantified society. As the Indian government begins to roll out initiatives that create a "Digital India" indeed a "quantified India", taking privacy into consideration could facilitate the uptake, expansion, and success of these practices and services. As the Indian government pursues the opportunities possible through Big Data it will be useful to review existing privacy protections and deliberate on if, and in what form, future protections for privacy and other rights will be needed.

[1]Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules 2011). Available at: http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511(1).pdf

[2]Group of Experts on Privacy. (2012). Report of the Group of Experts on Privacy. New Delhi: Planning Commission, Government of India. Retrieved May 20, 2015, from http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

[3] NDTV. “Free Public Wi-Fi Facility in Delhi to Have Daily Data Limit. NDTV, May 25^th 2015, Available at: http://gadgets.ndtv.com/internet/news/free-public-wi-fi-facility-in-delhi-to-have-daily-data-limit-695857. Accessed: July 2^nd 2015.

[4]FindBiometrics Global Identity Management. “Surat Police Get NEC Facial Recognition CCTV System”. July 21^st 2015. Available at: http://findbiometrics.com/surat-police-nec-facial-recognition-27214/

[5]UIDAI Official Website. Available at: https://uidai.gov.in/

For more details visit https://cis-india.org/internet-governance/blog/big-data-and-information-technology-rules-2011

Comparison of the Human DNA Profiling Bill 2012 with: CIS recommendations, Sub-Committee Recommendations, Expert Committee Recommendations, and the Human DNA Profiling Bill 2015

elonnai — 2015-08-10T03:20:59Z

This blog a comparison of 1. The Human DNA Profiling Bill 2012 vs. the Human DNA Profiling Bill 2015, 2. CIS's main recommendations vs. the 2015 Bill 3. The Sub-Committee Recommendations vs. the 2015 Bill 4. The Expert Committee Recommendations vs. the 2015 Bill.

In 2013 the Expert Committee to discuss the draft Human DNA Profiling Bill was constituted by the Department of Biotechnology. The Expert Committee had constituted a Sub-Committee to modify the draft Bill in the light of invited comments/inputs from the members of the Committee

These changes were then deliberated upon by the Expert Committee. The Record Notes and Meeting Minutes of the Expert Committee and Sub-Committee can be found here. The Centre for Internet and Society was a member of the Expert Committee and sat on the Sub-Committee. In addition to input in meetings, CIS submitted a number of recommendations to the Committee. The Committee has drafted a 2015 version of the Bill and the same is to be introduced to Parliament.

Below is a comparison of 1. The 2012 Bill vs. the 2015 Bill, 2. CIS's main recommendations vs. the 2015 Bill 3. The Sub-Committee Recommendations vs. the 2015 Bill 4. The Expert Committee Recommendations vs. the 2015 Bill.

Introduction

CIS Recommendation: Recognition that DNA evidence is not infallible.
Sub-Committee Recommendation: N/A
Expert Committee Recommendation: N/A
2015 Bill: No change from 2012 Bill
CIS Recommendation:

Chapter I : Preliminary

Inclusion of an 'Objects Clause' that makes clear that (i) the principles of notice, confidentiality, collection limitation, personal autonomy, purpose limitation and data minimization must be adhered to at all times; (ii) DNA profiles merely estimate the identity of persons, they do not conclusively establish unique identity; (iii) all individuals have a right to privacy that must be continuously weighed against efforts to collect and retain DNA; (iv) centralized databases are inherently dangerous because of the volume of information that is at risk; (v) forensic DNA profiling is intended to have probative value; therefore, if there is any doubt regarding a DNA profile, it should not be received in evidence by a court; (vi) once adduced, the evidence created by a DNA profile is only corroborative and must be treated on par with other biometric evidence such as fingerprint measurements.

Sub Committee Recommendation: The Bill will not regulate DNA research. The current draft will only regulate use of DNA for civil and criminal purposes.

Expert Committee Recommendation: The Bill will not regulate DNA research. The current draft will only regulate use of DNA for civil and criminal purposes.
2015 Bill: No Change from the 2012 Bill

Chapter II : Definitions

CIS Recommendation:

Removal of 2(1)(a) “analytical procedure”
Removal of 2(1)(b) “audit”
Removal of 2(1)(d) “calibration”
Re-drafting of 2(1)(h) “DNA Data Bank”
Re-naming of 2(1)(i) “DNA Data Bank Manager” to “National DNA Data Bank Manager”
Re-drafting of 2(1)(j) “DNA laboratory”
Re-drafting of 2(1)(l) “DNA Profile”
Re-drafting of 2(1)(o) “forensic material”
Removal of 2(1)(q) “intimate body sample”
Removal of 2(1)(v) “non-intimate body sample”
Removal of 2(1)(r) “intimate forensic procedure”
Removal of 2(1)(w) “non-intimate forensic procedure”
Removal of 2(1)(s) “known samples”
Re-drafting of 2(1)(y) “offender”
Removal of 2(1)(zb) “proficiency testing”
Re-drafting of 2(1)(zi) “suspect”

Sub-Committee Recommendation: N/A
Expert Committee Recommendation: N/A
2015 Bill: No change from the 2012 Bill.

Chapter III : DNA Profiling Board

CIS Recommendation:

The board should be made up of no more than five members. The Board must contain at least one ex-Judge or senior lawyer since the Board will perform the legal function of licensing and must obey the tenets of administrative law. To further multi-stakeholder interests, the Board should have an equal representation from civil society – both institutional (e.g NHRC and the State Human Rights Commissions) and non-institutional (well-regarded and experienced civil society persons). The Board should also have privacy advocates. CIS also recommended that the functions of the board be limited to: licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority. CIS also recommended a 'duty to consult' with affected or impacted individuals, interested individuals, and the public at large.

Sub-Committee Recommendation:

Reduce the DNA Profiling Board (Section 4) from 16 members to 11 members and include civil society representation on the Board.
Include either clause 4(f) or (g) i.e. Chief Forensic Scientist, Directorate of Forensic Science, Ministry of Home Affairs, Government of India - ex-officio Member or Director of a Central Forensic Science Laboratory to be nominated by Ministry of Home Affairs, Government of India- ex-officio Member;
Change clause 4(i) i.e., to replace Chairman, National Bioethics Committee of Department of Biotechnology, Government of India- ex-officio Member with Chairman, National Human Rights Commissions or his nominee.
Delete Members mentioned in clause 4(l) i.e. Two molecular biologists to be nominated by the Secretary, Department of Biotechnology, Ministry of Science and Technology, Government of India- Members;
DPB Members with potential conflict of interest in matters under consideration should recuse themselves in deliberations in respect of such matters (Section 7), and they should be liable to be removed from the Board in case they are found to have not disclosed the nature of such interest.
With regards to the establishment of the DNA Profiling Board (clause 3) the committee clarified that the DNA Board needs to be a body corporate
The functions of the Board should be redrafted with fewer functions, and these should be listed in descending order of priority to sharpen this function – namely regulate process, regulate the labs, regulate databanks.

Expert Committee Recommendation:

Accepted sub-committee recommendation to reduce the Board from 16 to 11 members and the detailed changes.
Accepted sub-committee recommendation to include civil society on the Board.
Accepted sub-committee recommendation to reduce the functions of the Board.

2015 Bill:

Addition in 2015 Bill of Section 4 (b) – “Chairman, National Human Rights Commission or his nominee – ex-officio Member” (2015 Bill) Note: This change represents incorporation of CIS's recommendation, sub-committee recommendation, and expert committee recommendation.
Changing of Section 4 (h) from: “Director of a State Forensic Science Laboratory to be nominated by Ministry of Home Affairs, Government of India- ex-officio Member” (2012 Bill) to “Director cum – Chief Forensic Scientist, Directorate of Forensic Science Services, Ministry of Home Affairs, Government of India -ex-officio Member”(2015 Bill) Note: This change represents partial incorporation of the sub-committee recommendation and expert committee recommendation.
Changing of Section 4 (j) from: “Director, National Accreditation Board for Testing and Calibration of Laboratories, New Delhi- ex-officio Member”; (2012 Bill) to “Director of a State Forensic Science Lab to be nominated by MHA ex-officio member” (2015 Bill)
Addition of section 11(4) and 11(5) “(4) The Board shall, in carrying out its functions and activities, consult with all persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity. (5) The Board shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation.” Note: This change represents partial incorporation of CIS's recommendation and Expert Committee recommendation.

Chapter IV : Approval of DNA Laboratories

CIS Recommendation: N/A
Sub-Committee Recommendation:

Add in section 16 1(d), the words “including audit reports”
Include in section 16(1)(c) that if labs do not file their audit report on an annual basis, the lab will lose approval. If the lab loses their approval - all the materials will be shifted to another lab and the data subject will be informed.

Expert Committee Recommendation: N/A
2015 Bill: No change from the 2012 Bill.

Chapter V : Standards, Quality Control and Quality Assurance

CIS Recommendation: N/A
Sub-Committee Recommendation:

Section 19(2) DNA laboratory to be headed by person possessing a doctorate in a subject germane to molecular biology.
Clauses 20 and 30 should be merged into Clause 20 to read as:

“(1). The staff of every DNA laboratory shall possess such qualifications and experience commensurate with the job requirements as may be specified by the regulations.

(2). Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations.

(3). Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations.

Accordingly, change the Title: “Qualification, Recruitment and Training of DNA lab personnel.”

Require DNA labs to have in place an evidence control system (Clause 22) Note: This existed in the DNA 2012 Bill
Amend Clause 23(1) to read as ““Every DNA laboratory shall possess and shall follow a validation process as may be specified by the regulations.”
Paraphrase Clause 27 as, “Every DNA laboratory shall have audits conducted annually in accordance with the standards as may be specified by the regulations.” It was agreed that the audits of the DNA Laboratory (clause 27) do not need to be external. Note: This existed in the DNA 2012 Bill.
Bring sections 28-31 on infrastructure and training brought into Chapter V and thus new title of the chapter reads as “Standards, Quality Control and Quality Assurance Obligations of DNA Laboratory and Infrastructure and Training”.

Expert Committee Recommendation: N/A
2015 Bill

Changing of Section 20 (2) from “(2) Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations made by the Board. (2012) to Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations; (2015)” and Addition in 2015 Bill of Section 20 (3) - “Head of every DNA laboratory shall ensure that laboratory personnel keep abreast of developments within the field of DNA profiling and maintain such records on the relevant qualifications, training, skills and experience of the technical personnel employed in the laboratory as may be specified by the regulations” (2015) Note: This is as per the Sub-Committee's recommendation.
Amending of Clause 23(1) to read as ““Every DNA laboratory shall possess and shall follow a validation process as may be specified by the regulations.” Note: This is as per the Sub-Committee's recommendation.
Changing of section 30 from:“Every DNA laboratory shall employ such qualified technical personnel as may be specified by the regulations made by the Board and technical personnel shall undergo regular training in DNA related subjects in such institutions and at such intervals as may be specified by the regulations made by the Board.” (2012) to “Every DNA laboratory shall have installed appropriate security system and system for safety of personnel as may be specified by the regulations.”

Sections 28-31 on infrastructure and training brought into Chapter V and thus new title of the chapter reads as “Standards, Quality Control and Quality Assurance Obligations of DNA Laboratory and Infrastructure and Training”. Note: This is as per the Sub-Committee's recommendation.
CIS Recommendation:

Chapter VI : DNA Data Bank

Removal of section 32(6) which requires the names of individuals to be connected to their profiles and recommended that DNA profiles once developed, should be anonymized and retained separate from the names of their owners.
Section 34(2) to be limited to containing only an offenders' index and a crime scene index
Removal of section 36 which allows for international dicslosures of DNA profiles of Indians.

Sub-Committee Recommendation:

Amend Clause 32(1) to reads as: “The Central Government shall, by notification, establish a National DNA Data Bank”.
Anonymize the volunteer's database.

Expert Committee Recommendation: N/A
2015 Bill: No change from 2012 Bill.

Chapter VII : Confidentiality of and access to DNA profiles, samples, and records

CIS Recommendation:

Re-drafting section 39 and 40 to specify that DNA can only be used for forensic purposes and specify the manner in which DNA profiles may be received in evidence.
Removal of section 40
Removal of section 43
Re-dreaft section 45 as it sets out a post-conviction right related to criminal procedure and evidence. This would fundamentally alter the nature of India’s criminal justice system, which currently does not contain specific provisions for post-conviction testing rights. However, courts may re-try cases in certain narrow cases when fresh evidence is brought forth that has a nexus to the evidence upon which the person was convicted and if it can be proved that the fresh evidence was not earlier adduced due to bias. Any other fresh evidence that may be uncovered cannot prompt a new trial. Clause 45 is implicated by Article 20(2) of the Constitution of India and by 6 section 300 of the CrPC. The principle of autrefois acquit that informs section 300 of the CrPC specifically deals with exceptions to the rule against double jeopardy that permit re-trials. [See, for instance, Sangeeta Mahendrabhai Patel (2012) 7 SCC 721.]

Sub-Committee Recommendation:

Amend Clause 40 (f) to read as “-------to the concerned parties to the said civil dispute or civil matter, with the concurrence of the court and to the concerned judicial officer or authority”.Incorporated, but is now located at section 39
Include in Chapter VIII additional Sections: Clause 42A: “A person whose DNA profile has been created shall be given a copy of the DNA profile upon request”. Clause 42B: A person whose DNA profile has been created and stored shall be given information as to who has accessed his DNA profile or DNA information.

Expert Committee: N/A
2015 Bill:

Addition of the phrase in section 39 “with the concurrence of the court”, thus the new clause reads as: “-------to the concerned parties to the said civil dispute or civil matter, with the concurrence of the court” and to the concerned judicial officer or authority”. Note: This as per the recommendations of the Sub-Committee.

Chapter VIII : Finance, Accounts, and Audit

CIS Recommendation: N/A
Sub-Committee Recommendation: N/A
Expert Committee Recommendation: N/A
2015 Bill: No change from the 2012 Bill

Chapter IX : Offences and Penalties

CIS Recommendation:

The law prohibits the delegation of “essential legislative functions” [In re Delhi Laws, 1951]. The creation of criminal offences must be conducted by a statute that is enacted by Parliament, and when offences are created via delegated legislation, such as Rules, the quantum of punishment must be pre-set by the parent statute.
Since the listing of offences for DNA profiling will directly affect the fundamental right of personal liberty, it is an undeniable fact that the identification of these offences should be subject to a democratic process of the legislature rather than be determined by the whims of the executive.

Sub-Committee Recommendation:

Ensure a minimal jail term for any offence under the Act from DNA Data Banks without authorization is a period of one month (chapter 10 (53)) Note: This already existed in the 2012 Bill.
Add to Section 56 the phrase “… or otherwise willfully neglects any other duty cast upon him under the provisions of this Act, shall be punishable …”.

Expert Committee: N/A
2015 Bill: No change from 2012 Bill
CIS Recommendation: N/A
Sub-Committee Recommendation: N/A
Expert Committee Recommendation: N/A
2015 Bill: No change from 2012 Bill

Chapter X : Miscellaneous

Schedule

CIS Recommendation

The creation of a list of offenses under which upon arrest under which DNA samples may lawfully be collected from the arrested person without his consent including:

Any offence under the Indian Penal Code, 1860 if it is listed as a cognizable offence in Part I of the First Schedule of the Code of Criminal Procedure, 1973; [Alternatively, all cognizable offences under the Indian Penal Code may be listed here]
Every offence punishable under the Immoral Traffic (Prevention) Act, 1956;
Any cognizable offence under the Indian Penal Code, 1860 that is committed by a registered medical practitioner and is not saved under section 3 of the Medical Termination of Pregnancy Act, 1971; [Note that the ITP Act does not itself create or list any offences, it only saves doctors from prosecution from IPC offences if certain conditions are met]
Every offence punishable under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994;
The offence listed under sub-section (1) of section 31 of the Protection of Women from Domestic Violence Act, 2005;
Every offence punishable under the Protection of Civil Rights Act, 1955;
Every offence punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Sub-Committee Recommendation: N/A
Expert Committee Recommendation: Incorporation of CIS's recommendation to the schedule regarding instances of when DNA samples can be collected without consent.
2015 Bill:

Addition in 2015 of “Part II: List of specified offences - Any offence under the Indian Penal Code, 1860 if it is listed as a cognizable offence in Part I of the First Schedule of the Code of Criminal Procedure, 1973” (2015). Note: This represents partial incorporation of CIS's recommendation.
Expansion of sources of samples for DNA profiling from - “(1) Scene of occurrence or crime (2) Tissue and skeleton remains (3) Clothing and other objects (4) Already preserved body fluids and other samples” (2012) to “1. Scene of occurrence, or scene of crime 2. Tissue and skeleton remains 3. Clothing and other objects 4. Already preserved body fluids and other samples 5. Medical Examination 6. Autopsy examination 7. Exhumation” (2015)” and Deletion of “Manner of collection of samples for DNA: (1) Medical Examination (2) Autopsy examination (3) Exhumation “ (2012)

For more details visit https://cis-india.org/internet-governance/blog/comparison-of-the-human-dna-profiling-bill-2012-with-cis-recommendations-sub-committee-recommendations-expert-committee-recommendations-and-the-human-dna-profiling-bill-2015

Aadhaar Number vs the Social Security Number

elonnai — 2015-07-24T01:24:00Z

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

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

Governance

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

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

Purpose

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

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

Applicability

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

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

Storage, Access, and Disclosure

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

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

Use by public and private entities

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

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

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

Verification

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

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

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

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

Lost or stolen

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

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

Implementation

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

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

Enrollment

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

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

Required supporting documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Dissent Note to the Expert Committee for DNA Profiling

elonnai — 2016-07-21T11:01:44Z

The Centre for Internet and Society has participated in the Expert Committee for DNA Profiling constituted by the Department of Biotechnology in 2012 for the purpose of deliberating on and finalizing the draft Human DNA Profiling Bill and appreciates this opportunity. CIS respectively dissents from the January 2015 draft of the Bill.

Click for DNA Bill Functions, DNA List of Offences, and CIS Note on DNA Bill. A modified version was published by Citizen Matters Bangalore on July 28.

Based on the final draft of the Human DNA Profiling Bill that was circulated on the 13th of January 2015 by the committee, the Centre for Internet and Society is issuing this note of dissent on the following grounds:

The Centre for Internet and Society has made a number of submissions to the committee regarding different aspects of the Bill including recommendations for the functions of the board, offences for which DNA can be collected, and a general note on the Bill. Though the Centre for Internet and Society recognizes that the present form of the Bill contains stronger language regarding human rights and privacy, we do not find these to be adequate and believe that the core concerns or recommendations submitted to the committee by CIS have not been incorporated into the Bill.

The Centre for Internet and Society has foundational objections to the collection of DNA profiles for non-forensic purposes. In the current form the DNA Bill provides for collection of DNA for the following non forensic purposes:

Section 31(4) provides for the maintenance of indices in the DNA Bank and includes a missing person’s index, an unknown deceased person’s index, a volunteers’ index, and such other DNA indices as may be specified by regulation.
Section 38 defines the permitted uses of DNA profiles and DNA samples including: identifying victims of accidents or disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases listed in Part I of the Schedule or for other purposes as may be specified by regulation.
Section 39 defines the permitted instances of when DNA profiles or DNA samples may be made available and include: for the creation and maintenance of a population statistics Data Bank that is to be used, as prescribed, for the purposes of identification research, protocol development or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.
Part I of the schedule lists laws, disputes, and offences for which DNA profiles and DNA samples can be used. These include, among others, the Motor Vehicles Act, 1988, parental disputes, issues relating to pedigree, issues relating to assisted reproductive technologies, issues relating to transplantation of human organs, issues relating to immigration and emigration, issues relating to establishment of individual identity, any other civil matter as may be specified by the regulations, medical negligence, unidentified human remains, identification of abandoned or disputed children.

While rejecting non-forensic use entirely, we have specific substantive and procedural objections to the provisions relating to forensic profiling in the present version of the Bill. These include:

Over delegation of powers to the board: The DNA Board currently has vast powers as delegated by Section 12 including:
“authorizing procedures for communication of DNA profiles for civil proceedings and for crime investigation by law enforcement and other agencies, establishing procedure for cooperation in criminal investigation between various investigation agencies within the country and with international agencies, specifying by regulations the list of applicable instances of human DNA profiling and the sources and manner of collection of samples in addition to the lists contained in the Schedule, undertaking any other activity which in the opinion of the Board advances the purposes of this Act.”

Section 65 gives the Board the power to make regulations for a number purposes including: “other purposes in addition to identification of victims of accidents, disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases lists in Part I of the Schedule for which records or samples may be used under section 38, other laws, if any, to be included under item (viii) of para B of Part I of the Schedule, other civil matters, if any, to be included under item (vii) of para C of Part I of the Schedule, and authorization of other persons, if any, for collection of non intimate body samples and for performance of non-intimate forensic procedures, under Part III of the Schedule.

Ideally these powers would lie with the legislative or judicial branch. Furthermore, the Bill establishes no mechanism for accountability or oversight over the functioning of the Board and section 68 specifically states that “no civil court shall have jurisdiction to entertain any suit or proceeding in respect to any matter which the Board is empowered by or under this Act to determine.”

The above represents only a few instances of the overly broad powers that have been given to the Board. Indeed, the Bill gives the Board the power to make regulations for 37 different aspects relating to the collection, storage, use, sharing, analysis, and deletion of DNA samples and DNA profiles. As a result, the Bill establishes a Board that controls the entire ecosystem of DNA collection, analysis, and use in India without strong external oversight or accountability.
Key terms undefined: Section 31 (5) states that the “indices maintained in every DNA Data Bank will include information of data based on DNA analysis prepared by a DNA laboratory duly approved by the Board under section 1 of the Act, and of records relating thereto, in accordance with the standards as may be specified by the regulations.”

The term’ DNA analysis’ is not defined in the Act, yet it is a critical term as any information based on such an analysis and associated records can be included in the DNA Database.
Low standards for sharing of information: Section 34 empowers the DNA Data Bank Manager to compare a received DNA profile with the profiles stored in the databank and for the purposes of any investigation or criminal prosecution, communicate the information regarding the received DNA profile to any court, tribunal, law enforcement agencies, or DNA laboratory which the DNA Data Bank Manager considers is concerned with it.

The decision to share compared profiles and with whom should be made by an independent third party authority, rather than the DNA Bank Manager. Furthermore, this provision isvague and although the intention seems to be that the DNA profiles should be matched and the results communicated only in certain cases, the generic wording could take into its ambit every instance of receipt of a DNA profile. For eg. the regulations envisaged under section 31(4)(g) may prescribe for a DNA Data Bank for medical purposes, but section 34 as it is currently worded may include DNA profiles of patients to be compared and their information released to various agencies by the Data Bank Manager as an unintentional consequence.
Missing privacy safeguards: Though the Bill refers to security and privacy procedures that labs are to follow, these have been left to be developed and implemented by the DNA Board. Thus, except for bare minimum standards and penalties addressing the access, sharing, and use of data – the Bill contains no privacy safeguards.

In our interactions with the committee we have asked that the Bill be brought in line with the nine national privacy principles established by the Report of the Group of Experts on Privacy submitted to the Planning Commission in 2012. This has not been done.

For more details visit https://cis-india.org/internet-governance/blog/dna-dissent

GSMA Research Outputs

elonnai — 2015-04-06T14:18:18Z

This is a collection of research under our GSMA project that we have undertaken in collaboration with Privacy International. The research has sought to understand different legal and regulatory aspects of security and surveillance in India and consists of blog entries and reports. Any feedback or comment is welcome.

Indian Law and the Necessary Proportionate Principles

The presentation shows that there are no comprehensive provisions for the principles of legitimate aim, competent judicial authority, proportionality, transparency, etc. whereas these are partially present for the principles of legality, necessity, adequacy, public oversight, safeguards for international cooperation, etc. The presentation also looks at the Indian intelligence agencies and shows us that there are nine agencies authorized to intercept communications along with at least eleven additional agencies. It further dwelves into the establishment and structure of Indian intelligence agencies and whom they report to, the sharing of information internationally as well as nationally. It shows us that India has MLAT agreements with 36 countries and request to CBI can be initiated informally or formally through court order. It then lists out the various regulatory and important bodies responsible for national security. Some cases of unlawful interception / leaks have been discussed along with examples of arrests based on digital evidence. The various government schemes, the telecommunication companies in India, telecom licenses requirements, government developed security and surveillance solutions, private security companies, security expos, export, import and selling of security and surveillance equipment, and the way forward are also discussed.

Click to download the PDF

Security, Surveillance and Data Sharing Schemes and Bodies in India

Following the 2008 Mumbai terrorist attacks, India had implemented a wide range of data sharing and surveillance schemes. Though developed under different governments the purpose of these schemes has been to increase public safety and security by tackling crime and terrorism. As such, two data sharing schemes have been proposed - the National Intelligence Grid (NATGRID) and the Crime and Criminal Tracking Network & Systems (CCTNS), as well as several surveillance systems, such as the Lawful Intercept and Monitoring (LIM) system, the Network Traffic Analysis system (NETRA), state Internet Monitoring Systems and the Central Monitoring System (CMS). This chapter details the various schemes and provides policy recommendations for their improvement, with regards to the protection of the right to privacy and other human rights.

Click to download the PDF

Export and Import of Security Technologies in India: QA

The write-up examines in question-answer format the standards regulating the export of technologies that can be used for surveillance purposes, the department and legislation that governs exports and imports of security technologies in India, the procedure for obtaining an export licence for the export of SCOMET items, what is ITC (HS) and why is it important, and examples of ITC codes for technologies that can facilitate security or surveillance. The research finds answers to all these queries.

Click to download the PDF

Regulation of CCTV’s in India

In light of the increasing use and installation of CCTV’s in cities across India, and the role that CCTVs play in the Home Ministry's plans for implementing "Mega Policing Cities", this blog seeks to review various attempts to regulate the use of CCTV's in India, review international best practices, and provide preliminary recommendations for the regulation of CCTV's in India.

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Mutual Legal Assistance Treaties (MLATs) and Cross Border Sharing of Information in India

It is unclear the exact process that intelligence agencies in India share information with other agencies internationally. India is a member of Interpol and the Central Bureau of Investigation, which is a Federal/Central investigating agency functioning under the Central Government, Department of Personnel & Training is designated as the National Central Bureau of India.

Click to download the PDF

Composition of Service Providers in India

Telecom, at present, is one of the fastest-growing industries in India. As of January 2014, according to the Telecom Regulatory Authority of India (TRAI) there are 922 million wireless and over the wire subscribers in India, and 56.90 million broadband subscribers including wired, wireless and wimax subscribers. India’s overall wireless teledensity was quoted as having 893.31million subscribers, with a 0.79% (7.02 million) monthly addition.

Click to download the PDF

The Surveillance and Security Industry in India - An Analysis of Indian Security Expos

The ‘Spy Files’, a series of documents released by whistleblower website WikiLeaks over the last few years, exposed the tremendous growth of the private surveillance industry across the world – a multi-billion dollar industry thriving on increasing governmental and private capabilities for mass surveillance of individuals. These documents showed how mass surveillance is increasingly made possible through new technologies developed by private players, often exploiting the framework of nascent but burgeoning information and communication technologies like the internet and communication satellites.

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An Analysis of News Items and Cases on Surveillance and Digital Evidence in India

In a technologically advanced era, with preponderance of electronic communications in both professional and social interactions and the ability to store such information in digital form, digital evidence has gained significance in civil as well as criminal litigation in India. In order to match the pace with the progressive technology, the Indian Courts have embarked on placing more and more reliance on the digital evidence and a portion of such digital evidence is obtained through electronic surveillance.

Click to download the PDF

Policy Recommendations for Surveillance Law in India and an Analysis of Legal Provisions on Surveillance in India and the Necessary & Proportionate Principles

The Government of India has created a legal framework which supports the carrying out of surveillance by authorities through its various laws and license agreements for service providers. The Centre for Internet and Society (CIS) acknowledges that lawful, warranted, targeted surveillance can potentially be a useful tool in aiding law enforcement agencies in tackling crime and terrorism. However, current Indian laws and license agreements appear to overextend the Government's surveillance capabilities in certain cases, while inadequately safeguarding individuals' right to privacy and data protection.

Click to download the PDF

The Surveillance Industry in India

India has the world's second largest population, an expanding middle class and undoubtedly a huge market which attracts international investors. Some of the world's largest corporations have offices in India, such as Google Incorporated and BlackBerry Limited. In the Information Age, the market revolves around data and companies which produce technologies capable of mining such data are on the rise. Simultaneously, companies selling surveillance technologies appear to be on the peak too, especially since the global War on Terror requires law enforcement agencies around the world to be equipped with the latest surveillance gear.

Click to download the PDF

State of Cyber Security and Surveillance in India: A Review of the Legal Landscape

The issue of cyber security and surveillance, especially unauthorised surveillance, though traditionally unprioritised, has recently gained much traction due to the increasing number of news reports regarding various instances of unauthorised surveillance and cyber crimes. In the case of unauthorised surveillance, more than the frequency of the instances, it is their sheer magnitude that has shocked civil society and especially civil rights groups. In the background of this ever increasing concern regarding surveillance as well as increasing concerns regarding cyber security due to the increased pervasiveness of technology in our society, this paper tries to discuss the legal and regulatory landscape regarding surveillance as well as cyber security.

Click to download the PDF

For more details visit https://cis-india.org/internet-governance/blog/gsma-research-outputs

Security, Governments and Data: Technology and Policy

elonnai — 2015-04-04T05:59:19Z

On January 8, 2015, the Centre for Internet and Society, in collaboration with the Observer research foundation, hosted the day long conference "Security, Governments, and Data: Technology and Policy" The conference discussed a range of topics including internet governance, surveillance, privacy, and cyber security.

The full report written and compiled by Lovisha Aggarwal and Nehaa Chaudhari and edited by Elonnai Hickok can be accessed here.

The conference was focused on the technologies, policies, and practices around cyber security and surveillance. The conference reached out to a number of key stakeholders including civil society, industry, law enforcement, government, and academia and explored the present scenario in India to reflect on ways forward. The conference was a part of CIS’s work around privacy and surveillance, supported by Privacy International.

Welcome Address

The welcome address opened with a reference to a document circulated by CIS in 2014 which contained hypothetical scenarios of potential threats to Indian cyber security. This document highlighted the complexity of cyber security and the challenges that governments face in defending their digital borders. When talking about cyber security it is important that certain principles are upheld and security is not pursued only for the sake of security. This approach allows for security to be designed and to support other rights such as the right of access, the right to freedom of expression, and the right to privacy. Indeed, the generation, use, and protection of communications data by the private sector and the government are a predominant theme across the globe today. This cannot be truer for India, as India hosts the third largest population on the internet in the world.

During the welcome, a brief introduction to the Centre for Internet and Society was given. It was noted that CIS is a 6.5 half year old organization that is comprised of lawyers, mathematicians, sociologists, and computer scientists and works across multiple focus areas including accessibility, internet governance, telecom, openness, and access to knowledge. CIS began researching privacy and surveillance in 2010, and has recently begun to expand their research into cyber security. The purpose of this is to understand the relationship between privacy, surveillance, and security and is the beginning of a learning process for CIS. In 2013 CIS undertook a process to attempt to evolve a legal regime to intelligently and adequately deal with privacy in India. Industry specific requirements are key in the Indian context and this process was meant to try and evolve a consensus on what a privacy law in India should look like by bringing together key stakeholders for roundtables. CIS is now in the final stages of preparing individual legal proposals that will be sent to the Government – to hopefully have an informed Privacy Law in India. This event represents CIS’s first attempt to have a simultaneous dialogue on surveillance, cyber security, and privacy. As part of this event and research CIS is trying to understand the technology and market involved in surveillance and cyber security as these are important factors in the development of policy and law.

For more details visit https://cis-india.org/internet-governance/blog/security-governments-datat-technology-and-policy

Export and Import of Security Technologies in India: Q&A

elonnai — 2015-03-14T02:41:05Z

For more details visit https://cis-india.org/internet-governance/blog/export-and-import-of-security-technologies-in-india.pdf

Indian Law and the Necessary Proportionate Principles

elonnai — 2015-03-14T02:15:32Z

For more details visit https://cis-india.org/internet-governance/blog/indian-law-and-necessary-proportionate-principles.pdf

The Centre for Internet and Society joins Worldwide Campaign to Discover Depth of GCHQ's Illegal Spying

elonnai — 2015-03-01T06:13:03Z

The Centre for Internet and Society has joined an international campaign to allow anyone in the world to request whether Britain’s intelligence agency GCHQ has illegally spied on them.

The platform and campaign has been developed in response to a recent court ruling that GCHQ unlawfully obtained millions of private communications from the NSA up until December 2014. This decision allows not only British citizens, but anyone in the world, to ask GCHQ if the individual’s records were unlawfully shared by the NSA.

Individuals who wish to take part in this process can sign up here: https://www.privacyinternational.org/illegalspying

Privacy International intends to collate the inquiries from around the world and submit them to the UK Investigatory Powers Tribunal. Those who have been found to have been illegally spied on can then seek the deletion of their records, including emails, phone records, and internet communications. Given the mass surveillance capabilities of the NSA and GCHQ, and that the agencies “share by default” the information they collect, an unlimited number of people could have been affected by the unlawful spying.

The Investigatory Powers Tribunal, the UK court solely responsible for overseeing intelligence agencies, ruled on 6 February that intelligence sharing between the United States and the United Kingdom was unlawful prior to December 2014, because the rules governing the UK’s access to the NSA’s PRISM and UPSTREAM programmes were secret. It was only due to revelations made during the course of this case, which relied almost entirely on documents disclosed by Edward Snowden, that the intelligence sharing relationship became subject to public scrutiny.

The decision was the first time in the Tribunal’s history that it had ruled against the actions of the intelligence and security services.

According to the Centre for Internet and Society – this is a great example of transparency and the ability for individuals to access information held by the government. It is also an important step towards government accountability with respect to state surveillance.

Eric King, Deputy Director of Privacy International, said:

“We have known for some time that the NSA and GCHQ have been engaged in mass surveillance, but never before could anyone explicitly find out if their phone calls, emails, or location histories were unlawfully shared between the US and UK. The public have a right to know if they were illegally spied on, and GCHQ must come clean on whose records they hold that they should never have had in the first place.

There are few chances that people have to directly challenge the seemingly unrestrained surveillance state, but individuals now have a historic opportunity finally hold GCHQ accountable for their unlawful actions.”

Brief on “Did GCHQ Spy on You Illegally?”

Privacy International on Monday February 16th 2015 launched a campaign and platform allowing people to ask the UK’s surveillance court, the Investigatory Powers Tribunal, if GCHQ spied on people illegally. This comes on the heels of our recent legal victory in the IPT, who found that all intelligence sharing from the NSA to GCHQ prior to December 2014 was unlawful.

As on February 17th night, we had over 10,000 signatures, and at the end of today we expect to have more updated figures.

While this has been successful thus far, we need your help!

We need the support of other organisations to truly make this work, and we want your organisation to join as a partner. Being a partner in this can look a few different ways: you can send out emails to your organisation's members, tweet out the links to the platform, or send out a press release to your media contacts telling them you joined the effort.

We hope you can join, and below we try to address some questions we've been getting about the campaign. There's also an additional FAQ more specifically addressing the campaign itself.

What is PI doing?

Simply put: Giving people the chance to remedy illegal government activity and hold intelligence agencies accountable. When someone submits their information through this platform, they are allowing us to go to the IPT on their behalf to find out if they were illegally spied on by GCHQ.

People could have gone directly to the IPT to ask, but that process is difficult to engage in. We wanted to create a simple, low-barrier way to give people the chance to find out if they were victims of illegal spying.

Why are you doing this?

This action is not just about satisfying curiosity. Sure, lots of us are interested in knowing whether our emails have been caught in the NSA and GCHQ’s dragnet surveillance operations, and hopefully through this platform we’ll be able to find out. But, this campaign is about much more than that.

It is about making GCHQ understand the very personal and individual implications of mass surveillance. And it is about ending the feeling of powerlessness that many of us have felt since discovering, thanks to Edward Snowden, the reality of the almost total surveillance that we’re under.

We have never done a public campaign like this, but we felt that this ruling was too important to pass up. People have a right to know if they were illegally spied on, and if so, request that their records are deleted. We want to help them assert those rights, and we think you can help too.

Why should my organisation join?

We don't get many victories in this space, but we have a rare opportunity to give people the chance to do something! Not just sign a petition, but directly hold intelligence agencies accountable and challenge proven illegal government activity.

Numbers are important too, not just important to brag about. The greater number of people who sign up actually increases our likelihood of success. That's because when we submit people's details to the IPT, one of the possible outcomes could be that the court tests a sample to see if/where illegality occurred.

The more people who sign up, the greater chance there is we can prove that people were illegally spied on. If that's the case, we could request that GCHQ delete ALL the records they obtained from NSA prior to December to 2014.

To do that, we need as many people to join. We are not merely interested in building a list, this is not a stunt, and we have no interest in poaching your members. It's simple – more people means greater chance of success.

Also, this is going to be a long fight on our front. We are going to be dealing with this campaign for the next few months if not few years. As each turn comes along the way, we are going to need your help to keep pressure up and keep people involved. Nothing good comes easy!

Is it only for British citizens?

No. This literally affects everyone who has ever used a phone or computer prior to December 2014, which is pretty much every single person.

So, anyone around the world is eligible to join this petition! No matter where you are, you’re entitled under British law to bring a claim in the courts to find out whether you were illegally spied on. Given the degree of intelligence collection by the NSA and its close relationship with the British intelligence services, it’s entirely possible that your communications have been scooped up and unlawful handed over to the UK.

So, what can you do?

Four actions you can do:

Declare your organisation’s support for the campaign! Email mike@privacyinternational.org and we'll add your name to the partner section on the petition page.
Tweet the link for the petition to your followers: www.privacyinternational.org/illegalspying using the hashtag #DidGCHQSpyOnYou
Email your supporters and members and encourage them to join the campaign - if you need further information you can point them to the FAQ on our website or included in this pack: https://www.privacyinternational.org/?q=node/495
Tweet at or contact notable people in your city or country - we’ve been tweeting Members of Parliament, influential journalists, movie stars, whomever!

FAQ on action

URL: https://privacyinternational.org/?q=node/495

Who is able to join?

EVERYONE! The implications of our recent legal victory against GCHQ in the Investigatory Powers Tribunal means that all intelligence sharing from the NSA to GCHQ was unlawful. Because people located all over the world are affected by illegal intelligence sharing, not only British citizens, but anyone in the world, can ask if their records collected by the NSA were unlawfully shared with GCHQ.

Why are we doing this?

Intelligence agencies' culture of secrecy have allowed them, for too long, to avoid public accountability. Whether it’s secret hearings in closed court rooms or committees equipped only with rubber stamps, intelligence agencies like GCHQ have never been forced to answer to the public for their actions.

We think you have a right to know whether you have been caught up in GCHQ and NSA's illegal intelligence sharing. If so, you have a right to demand that data be deleted. Privacy International wants to help you assert those rights.

Wait what? Why do I have to give GCHQ my data?

We know it sounds absurd but it's the only way! The Tribunal can't act by itself, so it needs people to come forward to file complaints. We've kept information needed to a minimum, but the IPT requires more than your name to attempt to find your communications in GCHQ’s massive databases. If they do locate your data, you can ask them to delete it. Hopefully, if enough people sign up, we can show just how widespread Five Eyes mass surveillance and intelligence sharing is, and get the reform we all need!

Will this tell me if GCHQ are currently spying on me?

No. This campaign will only tell you if NSA shared your communications with GCHQ before December 2014. It won't tell you if GCHQ shared communications with NSA. It also won't tell you if GCHQ intercepted your communications by themselves. Should Privacy International be successful in our appeal to the European Court of Human Rights maybe this will change, but for now, this is limited to just whether NSA shared your communications with GCHQ before December 2014.

What will happen once I have entered my details?

After you hit submit, you'll receive an email asking you to confirm your participation. Make sure you click that link, otherwise your submission won't go through. While these few details are all we need from you now, we may need more information from you in the future. By entering your details, you authorise Privacy International and their legal team to pass your information to GCHQ and the Investigatory Powers Tribunal in order to seek a declaration that your rights under Article 8 and Article 10 of the UK Human Rights Act have been violated and to request your records be deleted.

How will I know my communications were illegal shared with GCHQ?

If the IPT find that your communications were illegally shared with GCHQ, they have to tell you. The Investigatory Powers Tribunal has a statutory obligation to investigate any complaint made against GCHQ. When they receive a complaint, if they think they have all the information required to make a determination, then they will do so, and inform you of the outcome. If not, the IPT can demand more information, a meeting or inspection of files held by GCHQ.

Do I get anything if I have been spied on?

Yes. If the IPT is able to establish that you have been illegally spied on, they have to tell you. You will receive a declaration that your privacy rights have been violated and you can request that any information unlawfully obtained be deleted.

WiIl GCHQ hold onto my details when they are handed over to them?

No. GCHQ are only allowed to keep your details for the purposes of establishing whether or not they spied on you illegally and for the duration of the investigation by the IPT.

How soon will I receive an answer to whether I was caught up in NSA and GCHQ's illegal spying?

It might be a while. This is the first time that such a large group action has been mounted against GCHQ so count on it being many months, and likely years before this action is completed. Nothing worth doing is easy!

Is this for all of NSA and GCHQ's programmes?

This legal campaign deals with information collected by the NSA and shared with GCHQ before December 2014, specifically PRISM and UPSTREAM. It doesn't deal with GCHQ initiated interception, but if we're successful with our appeal with the European Court of Human Rights, maybe that could change!

Is my email address and phone number enough for GCHQ to find all records?

No. Unfortunately, we imagine many of GCHQ's databases are unindexed or indexed by a "selector" which could be an IP address, a cookie, a hardware address or almost anything else. For people who want the most comprehensive records searched, much more personal information would have to be provided. Currently we are asking for only your email address and phone number to enable the greatest number of people access to this campaign. If you want to provide more detailed information and a range of selectors to GCHQ, consider submitting your own individual complaint here. We hope to have a detailed guide on how to do so in the next few days.

What are Privacy International going to do with this data?

By entering your details you are authorising Privacy International to pass your information to GCHQ and the Investigatory Powers Tribunal in order to seek a declaration that your privacy rights have been violated. We will provide you with updates on the case and won't use the information for any other purpose. We will only share it with our lawyers, GCHQ and the Investigatory Powers Tribunal.

For more details visit https://cis-india.org/internet-governance/blog/cis-joins-worldwide-campaign-to-discover-depth-of-gchq-illegal-spying

Security and Surveillance – Optimizing Security while Safeguarding Human Rights

elonnai — 2015-02-13T02:41:46Z

The Centre for Internet and Society (CIS) on December 19, 2014 held a talk on “Security and Surveillance – Optimizing Security while Safeguarding Human Rights.

The talk focused on a project that is being undertaken by CIS in collaboration with Privacy International, UK. Initiated in 2014, the project seeks to study the regulatory side of surveillance and related technologies in the Indian context. The main objective of the project is to initiate dialogue on surveillance and security in India, government regulation, and the processes that go into the same. The talk saw enthusiastic participation from civil society members, policy advisors on technology, and engineering students.

During the event it was highlighted that requirements of judicial authorization, transparency and proportionality are currently lacking in the legal regime for surveillance in India and at the same time India has a strong system of ‘security’ that service providers must adhere to – which works towards enhancing cyber security in the country.

Discussions played out with regard to how most of the nine intelligence agencies that are authorized to intercept information in India are outside the ambit of parliamentary oversight, the RTI and the CAG, making them virtually unaccountable to the Indian public.

Another conversation focused on the sharing of information between various intelligence agencies within the country, and the fact that this area is virtually unregulated. The discussion then steered to cyber-security in general, emerging technologies used by the Government of India for surveillance, cooperative agreements for surveillance technologies that India has with other countries, the export and import of such technologies from India, and most importantly, the role of service providers in the surveillance debate, and the regulations they are subject to.

A common theme seemed to be emerging from the discussion was that the agencies responsible for regulating information interception and surveillance in the country are shockingly unaccountable to the Indian public. As an active civil society member noted today - “There is no oversight/monitoring of the agencies themselves, so there’s no way anyone would even know of how many instances of surveillance or unauthorized interception have actually occurred.”

The talk successfully concluded with inputs from members of the audience, and a broad consensus on the fact that the Government of India would have to adhere to stronger regulatory standards, harmonized surveillance standards, stronger export and import certification standards, etc., in order to make surveillance in India more transparent and accountable. As was stated at the talk, “We don’t have a problem with the concept of surveillance per se, - it has more to do with its problematic implementation”.

For more details visit https://cis-india.org/internet-governance/blog/security-and-surveillance-optimizing-security-while-safeguarding-human-rights

A Study of the Privacy Policies of Indian Service Providers and the 43A Rules

elonnai — 2015-01-13T02:37:31Z

Written by Prachi Arya and Kartik Chawla
Edited by: Vipul Kharbanda, Elonnai Hickok, Anandini Rathore, and Mukta Batra

Click to download the PDF

Contents
Executive Summary
Introduction
Objective, Methodology, and Scope of the Study
Objective of Research
Methodology
Scope
Criteria for selection of companies being studied
Overview of Company Privacy Policy and Survey Results
Vodafone
Tata Teleservices Limited
Airtel
Aircel
Atria Convergence Technologies
Observations
International Best Practices
Australia
European Union
Recommendations
Annexure 1
Annexure 2

Executive Summary

India has one of the largest telecom subscriber base in the world, currently estimated at 898 Million users.^{^[1]} With over 164.8 Million people accessing the internet ^{^[2]} in the subcontinent as well, technology has concurrently improved to facilitate such access on mobile devices. In fact, the high penetration rate of the internet in the market can be largely attributed to mobile phones, via which over 80% of the Indian population access the medium.^{^[3]}

While this is a positive change, concerns now loom over the expansive access that service providers have to the information of their subscribers. For the subscriber, a company's commitment to protect user information is most clearly defined via a privacy policy. Data protection in India is broadly governed by Rules notified under Section 43A of the Information Technology Act 2000.^{^[4]} Amongst other things, the Rules define requirements and safeguards that every Body Corporate is legally required to incorporate into a privacy policy.

The objective of this research is to understand what standards of protection service providers in India are committing to via organizational privacy policies. Furthermore, the research seeks to understand if the standards committed to via organizational privacy policies align with the safeguards mandated in the 43A Rules. Towards this, the research reviews the publicly available privacy policies from seven different service providers - Airtel, Aircel, Vodafone, MTNL, BSNL, ACT, and Tata Teleservices.

The research finds that only Airtel, Vodafone, and Tata Teleservices fully incorporate the safeguards defined in the 43A Rules. Aircel, and ACT incorporate a number of such safeguards though not all. On the other hand BSNL minimally incorporates the safeguards, while MTNL does not provide a privacy policy that is publicly available.

Introduction

The Indian Telecom Services Performance Indicators report by the Telecom Regulatory Authority of India (TRAI) ^{^[5]} pegs the total number of internet subscribers in India at 164.81 million and the total number of telecom subscribers at 898.02 million, as of March 2013. As mobile phones are adopted more widely, by both rural and urban populations, there is an amalgamation of telecommunications and internet users. Thus, in India, seven out of eight internet users gain access through mobiles phones. ^{^[6]}

Though this rapid evolution of technology allows greater ease of access to digital communication, it also has led to an increase in the amount of personal information that is shared on the internet. Subsequently, a number of privacy concerns have been raised with respect to how service providers handle and protect and customer data as companies rely on this data not only to provide products and services, but also as a profitable commodity in and of itself. Individuals are thus forced to confront the possible violation of their personal information, which is collected as a quid pro quo by service providers for access to their services and products. In this context, protection of personal information, or data protection, is a core principle of the right to privacy.

In India, the right to privacy has been developed in a piecemeal manner through judicial intervention, and is recognized, to a limited extent, as falling under the larger ambit of the fundamental rights enshrined under Part III of the Constitution of India, specifically those under Article 21. ^{^[7]} In contrast, historically in India there has been limited legislative interest expressed by the Government and the citizens towards establishing a statutory and comprehensive privacy regime. Following this trend, the Information Technology Act, 2000 (IT Act), as amended in 2008, provided for a limited data protection regime.

However, this changed in 2010 when, concerned about India's robust growth in the fields of IT industry and outsourcing business, an 'adequacy assessment' was commissioned by the European Union (EU), at the behest of India, which found that India did not have adequate personal data protection regime. ^{^[8]} The main Indian legislation on the personal data security is the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (Rules), enacted under Section 43A of the IT Act, which extends the civil remedy by way of compensation in case wrongful loss or gain under Section 43A to cases where such loss or gain results from inadequate security practices and procedures while dealing with sensitive personal data or information. In 2012, the Justice AP Shah group of Experts was set up to review and comment on Privacy,^{^[9]} for the purpose of making recommendations which the government may consider while formulating the proposed framework for the Privacy Act.

Objective, Methodology, and Scope of the Study

Objective of Research

This research aims to analyse the Privacy Policies of the selected Telecommunications (TSP) and Internet Service Providers (ISP) (collectively referred to as 'service providers' for the purposes of this research) in the context of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules ('Rules') in order to gain perspective on the extent to which the privacy policies of different types of service providers in India, align with the Rules. Lastly, this research seeks to provide broad recommendations about changes that could be incorporated to harmonize the respective policies and to bring them in line with the aforementioned Rules.

Methodology

The Privacy Policies^{^[10]} of seven identified service providers are sought to be compared vis-a-vis - the requirements under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, (Rules) as notified by way of section 87(2) (ob) read with section 43A of the Information Technology Act, 2000.

Specifically, the Privacy Policies of each of the selected companies are compared against a template that is based on of the essential principles of the Rules respectively, and consists of a series of yes or no questions which are answered on the basis of the respective Privacy Policy. These responses are meant to fulfil the first aim of this research, i.e., provide a perspective into the extent to which these companies follow the Rules and the Principles, and thus the extent to which they respect the privacy of their customers. See Annex 1 for the survey template and the interpretation of the 43A Rules for the development of the survey.

Scope

Criteria for selection of companies being studied

For the purpose of the study the companies selected are limited to service providers - including Telecommunication Service Providers and Internet Service Providers. Four broad categories of companies have been selected, namely (i) State Owned Companies, (ii) Multinational Companies, (iii) Joint Venture companies where one party is an Indian company and the other party is a foreign based company and (iv) Domestic companies which have a localized user base. The companies have been selected on this basis of categorization to better understand if the quality of their respective privacy policies is determined by their market reach and user base.

The privacy policies of the following service providers have been analyzed:

1. State Owned Companies^{^[11]}

a. BSNL^{^[12]}: Bharat Sanchar Nigam Limited, better known as BSNL, is a state-owned telecommunications company that was incorporated by the Indian government in the year 2000, taking over the functions of Central Government departments of Telecommunications Services (DTS) and Telecom Operations (DTO). It provides, inter alia, landline, mobile, and broadband services, and is India's oldest and largest communication services provider. ^{^[13]} It had a monopoly in India except for Mumbai and New Delhi till 1992.

b. MTNL^{^[14]}: Mahanagar Telephone Nigam Limited is a state-owned telecommunications company which provides its services in Mumbai and New-Delhi in India, and Mauritius in Africa. It was set up by the Indian Government in the year 1986, and just like BSNL, it had a monopoly in the sector till 1992, when it was opened up to other competitors by the Indian government. It provides, inter alia, Telephone, Mobile, 3G, and Broadband services. ^{^[15]}

2. Multinational Companies

a. Bharti Airtel Ltd:^{^[16]} Bharti Airtel, more commonly referred to as Airtel, is the largest provider of mobile telephony and the second largest provider of fixed telephony in India. Its origins lie in the Bharti Group founded by Sunil Bharti Mittal in 1983, and the Bharti Telecom Group which was incorporated in 1986. It is a multinational company, providing services in South Asia, Africa, and the Channel Islands. Among other services, it offers fixed line, cellular, and broadband services. ^{^[17]} The company also owns a submarine cable landing station in Chennai, connecting Chennai and Singapore.[18]

b. Vodafone^{^[19]}: Vodafone is a British multinational telecom company. Its origins lie in the establishment of Racal Telecom in 1982 which then became Racal Vodafone in 1984, which was a joint venture between Racal, Vodafone and Hambros Technology Trust. Racal Telecom was demerged from Racal Electronics in 1991, and became the Vodafone group. ^{^[20]} The Vodafone group started its operations in India with its predecessor Hutchison Telecom, which was a joint venture of Hutchison Whampoa and the Max Group, acquiring the cellular license for Mumbai in 1994^{^[21]}, and it bought out Essar's share in the same in the year 2007.^{^[22]} As of today, it has the second largest subscriber base in India. After Airtel, ^{^[23]} Vodafone is the largest provider of telecommunications and mobile internet services in India.^{^[24]}

3. Joint Ventures

a. Tata Teleservices^{^[25]} - Incorporated in 1996, Tata Teleservices Limited is an Indian telecommunications and broadband company, the origins of which lie in the Tata Group. A twenty-six percent equity stake was acquired by the Japanese company NTT Docomo in Tata Docomo, a subsidiary of Tata Teleservices, in 2008. ^{^[26]} Tata Teleservices provides services under three brand names, Tata DoCoMo, Virgin Mobile, and T24 Mobile. As a whole, these brands under the head of Tata Teleservices provide cellular and mobile internet services, with the exception of the Tata Sky teleservices brand, which is a joint venture between and Tata Group and Sky. ^{^[27]}

b. Aircel^{^[28]}: Aircel is an Indian mobile headquarter, which was started in Tamil Nadu in the year 1999, and has now expanded to Tamil Nadu, Assam, North-east India and Chennai. It was acquired by Maxis Communication Berhard in the year 2006, and is currently a joint venture with Sindya Securities & Investments Pvt. Ltd. ^{^[29]} Aircel provides telecommunications and mobile internet services in the aforementioned regions.

4. India based Companies/Domestic Companies -

a. Atria Convergence Technologies (ACT)^{^[30]}: Atria Convergence Technologies Pvt. Ltd is an Indian cable television and broadband services company. Funded by the India Value Fund Advisor (IVFA), it is centered in Bangalore, but also provides services in Karnataka, Andhra Pradesh, and Madhya Pradesh.

Overview of Company Privacy Policy and Survey Results

This section lays out the ways in which each company's privacy policy aligns with the Rules found under section 43A of the Information Technology Act. The section is organized based on company and provides both a table with the survey questions and yes/no/partial ratings and summaries of each policy. The rationale and supporting documentation for each determination can be found in Annexure 2.

VODAFONE[31]: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	Yes
Whether the privacy policy is mentioned or included in the terms and conditions of publicly available documents of the body corporate that collect personal information?	No
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	Partially
Whether the privacy policy explicitly specifies the type of SPD/I being collected?	Partially
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	No
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	No
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	Yes
Whether the privacy policy provides the contact information of the grievance officer	Yes
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Yes
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties	Yes
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Yes
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	Yes

Vodafone

Vodafone's privacy policy partially incorporates the safeguards found in the Rules under 43A.

Vodafone's privacy policy is accessible online, however, it does not include a copy of its policy with a customer application form. The policy merely lists the type of information collected with no categorization as to SPD/I. The information collected includes contact information, location based information, browsing activity and persistent cookies.

There is no provision for consent or choice within the policy. Disclosure of personal information to third parties extends to Vodafone's group companies, companies that provide services to Vodafone, credit reference agencies and directories.

The policy mentions an email address for grievance redressal. In addition, the policy does not lay down any mechanism for correcting personal information that is held with Vodafone.

Vodafone has a non-exhaustive list of purposes of information usage, though these primarily relate to subscriber services, personnel training, and legal or regulatory requirements.

With regard to security practices, Vodafone follows the ISO 27001 Certification as per its 2012 Sustainability Report, however this goes unmentioned under its privacy policy

Tata Teleservices Limited[32]: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	Yes
Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?	No
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	Yes
Whether the privacy policy explicitly specifies the type of SPD/I being collected?	Yes
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	No
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	No
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	No
Whether the privacy policy provides the contact information of the grievance officer?	No
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Yes
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties	Yes
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Yes
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	Yes

Tata Teleservices Limited

Tata Teleservices Limited's Privacy Policy fully incorporates the safeguards found in the Rules under 43A.

The Tata Teleservices Limited privacy policy is accessible on their website, though when applying for a subscription, the terms and conditions do not include the privacy policy. The privacy policy is easy to understand although there are several elements of the 2011 Rules that are unaddressed.

The policy does not make any distinction regarding sensitive personal data or information. As per the policy, TTL collects contact and billing information, information about the equipment the subscriber is using, and information and website usage from its customers.

The purposes of information collection are broadly for managing customer services and providing customized advertising. Information is also collected for security issues, illegal acts and acts that are violative of TTL's policy. TTL's directory services use a customer's name, address and phone number, however a customer may ask for his/her information to not be published on payment of a fee.

As per the policy, the disclosure of information to third parties is limited to purposes such as identity verification, bill payments, prevention of identity theft and the performance of TTL's services. Third parties are meant to follow the guidelines of TTL's privacy policy in the protection of its user information. The consent of subscribers is only required when third parties may use personal information for marketing purposes. Consent is precluded under the previous conditions. Disclosure of information to governmental agencies and credit bureaus is for complying with legally authorised requests such as subpoenas, court orders and the enforcement of certain rights or claims. The policy provides for a grievance officer and in addition, TTL, has a separate Appellate Authority to deal with consumer complaints.

TTL does not follow any particular security standard for the protection of subscriber information, however, it establishes other measures such as limited access to employees, and encryption and other security controls. Although TTL Maharashtra follows the ISO 27001 ISMS Certification, TTL does not seem to follow a security standard for data protection for other regions of its operations.

Airtel[33]: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	Yes
Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?	Yes
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	Yes
Whether the privacy policy explicitly specifies the type of SPD/I being collected?	Yes
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	Yes
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	Yes
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	Yes
Whether the privacy policy provides the name and contact information of the grievance officer?	Yes
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Yes
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties?	Yes
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Yes
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	Yes

Airtel

Airtel's Privacy Policy fully incorporates the safeguards found in the Rules under 43A.

Airtel's privacy policy incorporates a number of the requirements stipulated in the Rules. Airtel's privacy policy is easily accessible on its website and is clear and easy to understand. The policy defines sensitive personal information, and states that information collected will be used for specified regulatory and business purposes, though it adds that it may be used for other purposes as well. The policy does allow for the withdrawal of consent for providing information, in which case, certain services may be withheld. In addition, Airtel has provided for a grievance officer and abides by the IS/ISO/IEC 27001 security standards. While Airtel allows for the disclosure of information including sensitive personal information to third parties, its policy states that such third parties will follow reasonable security practices in this regard. Concerning disclosure to the government, Airtel shares user information only when it is legally authorised by a government agency. Airtel's policy also provides for an opt-out provision. Such choice remains after subscription of Airtel's services as well. However, withdrawal of consent gives Airtel the right to withdraw its services as well. In terms of disclosure, sharing of user information with third parties is regulated by its Airtel's guidelines on the secrecy of information.

While Airtel lists the purposes for information collection, it states that such collection may not be limited to these purposes alone. In addition, the policy states that user's personal information will be deleted, although it does not state when this will happen. Thus, the policy could be more transparent and specific on matters of regarding the purpose of collection of information as well as deletion of information.

Aircel[34]: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	yes
Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?	no
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	Partially
Whether the privacy policy explicitly specifies the type of SPD/I being collected?	Partially
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	Yes
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	Yes
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	Yes
Whether the privacy policy provides the contact information of the grievance officer?	Yes
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Partially
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties	Partially
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Partially
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	Yes

Aircel

Aircel's Privacy Policy partially complies with the safeguards in the Rules under 43A.

Aircel's privacy policy is accessible online through its website, though it is not included under the terms and conditions of its customer application. The privacy policy lists the kinds of information that is collected from subscribers, including relevant contact details, call records, browsing history, cookies, web beacons, server log files and location details. The policy does not demarcate information into SPD/I or personal information. Aircel provides subscribers with the right to withdraw consent from the provision of information before and after subscribing, while reserving the right to withdraw its services in this regard. The policy provides the name and contact details of a grievance officer.

In the privacy policy, the stated purposes for use of subscriber information is limited to customer services, credit requirements, market analyses, legal and regulatory requirements, and directory services by Aircel or an authorised third party.

In the policy, the provision on disclosure to governmental agencies is vague and does not mention the circumstances under which personal information would be disclosed to law enforcement. The policy provides for correction of information of a subscriber in case of error and deletion after the purpose of the information is served but does not specify when. Although Aircel follows the ISO 27001 standard, it does not mention this under its policy. It does however, provide for accountability in cases of breach or privacy.

Atria Convergence Technologies[35]: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	Yes
Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?	information not available
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	Partially
Whether the privacy policy explicitly specifies the type of SPD/I being collected?	Partially
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	No
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	No
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	No
Whether the privacy policy provides the contact information of the grievance officer?	No
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Yes
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties	Yes
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Partially
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	No

Atria Convergence Technologies

Though Atria Convergence Technologies provides a privacy policy on its website, it does not broadly incorporate the safeguards in the Rules under 43A. ACT's privacy policy is easily accessible online and is easy to understand as well. The information collected from subscribers is limited to contact details along with information on whether a subscriber has transacted with any of ACT's business partners. Though the privacy policies refers to disclosing information for the purpose of assisting with investigating, preventing, or take action on illegal behaviour - there is no specific provision concerning disclosure to government and regulatory agencies. The policy does not provide information on any security practices and procedures followed. Provisions for withdrawal of consent or correction of personal information are absent from the policy as well.

BSNL: 43A Rules Survey
Criteria	Yes/No
Clear and Accessible statements of its practices and policies
Whether the privacy policy is accessible through the main website of the body corporate?	No
Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?	No
Whether the privacy policy can be comprehended by persons without legal knowledge?	Yes
Collection of personal or sensitive personal data/information
Type
Whether the privacy policy mentions all categories of personal information including SPD/I being collected?	No
Whether the privacy policy explicitly states that it is collecting SPD/I?	No
Option
Whether the Privacy Policy specifies that the user has the option to not provide information?	No
Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?	No
Grievance Officer
Whether the privacy policy mentions the existence of a grievance officer?	Yes
Whether the privacy policy provides the contact information of the grievance officer?	Yes
Purpose of Collection and usage of information
Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?	Partially
Disclosure of Information
Whether contractual provisions exist in the privacy policy or ToS addressing the disclosure of personal information with third parties	Yes
Whether personal information is disclosed to government agencies/LEA/IA only when legally mandated?	Yes
Reasonable Security practices and procedures
Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure personal information?	No

BSNL

BSNL's Privacy Policy broadly does not incorporate the safeguards in the Rules under 43A .

BSNL's privacy is accessible online, though not on the website, and is easy to understand. The policy does not however, categorize SPD/I but defines personal information vaguely as information that helps BSNL identify its customers. As per its policy, subscriber information is used for subscriber services such as identification, assistance etc., credit-worthiness and marketing communications. The policy does not contain any provision on consent and with respect to marketing communications and a customer implicitly agrees to third party usage of personal information. Third parties under the policy are those that provide services on behalf of BSNL, which extend mailing and billing services and market research services.

As per its policy, BSNL may disclose personal information on the basis of legal requirements to credit organisations, BSNL's consultants, government agencies.

With respect to access and correction, BSNL reserves the right to modify its privacy policy without notice to its customers. What is presumably a grievance officer email address has been provided for queries and corrections on personal information, however no further contact details are given.

MTNL

MTNL does not provide a publicly available Privacy Policy.

Observations

This section highlights key trends observed across the privacy policies studied in this research by contrasting the applicable Rule against the applicable provision in the policy.

1. Access and Location of Privacy Policy

Applicable Rule and Principle: According to Rule 4 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, a Body Corporate must provide a privacy policy on their website. Under Rule 5, all bodies corporate have to convey the purpose(s) for which SPD/I are collected prior to the collection and they can, under certain circumstances, move forward with the collection regardless of consent. While this does not entirely violate the Notice Principle of the National Privacy Principles, it does not meet the rather higher standards of the Principle, which recommends that notice must be provided prior to any form of collection of personal information. In addition, the Rules do not contain provisions regulating bodies corporate, regarding changes to their privacy policies.^{^[36]}

Observation : In the survey, it was found that the location and accessibility of a service provider's privacy policy varied. For example:

a. Privacy Policy on main website: Airtel, Aircel, and Vodafone provide a privacy policy that is accessible through the main website of each respective company.

b. Privacy Policy not on website : MTNL does not provide a Privacy Policy on the main website of each of its respective branches across India.

c. Privacy Policy not accessible through main website : TTL and BSNL have a Privacy Policy, but it is not accessible through the main website. For example, The Privacy Policy found on TTL's website is only accessible through the "terms and services" link on the homepage. Similarly, the BSNL privacy policy can only be found through its portal website. ^{^[37]}

d. Privacy Policy not included in Customer Application form : Almost all of the Service Providers do not include/refer to their Privacy Policy in the Customer Application Form, and some do not display their privacy policy or a link to it on its website's homepage. For example, Airtel is the only Service Provider that refers to their privacy policy in the Customer Application Form for an Airtel service.

e. Collection of personal information before Privacy Policy: In some cases it appears that service providers collect private information before the privacy policy is made accessible to the user. For example, before the homepage of ACT's website is shown, a smaller window appears with a form asking for personal information such as name, mobile and email Id. Although the submission of this information is not mandatory, there is no link provided to the privacy policy at this level of collection of information.

2. Sharing of information with Government

Applicable Rule and Principle: Rule 6, specifically the proviso to Rule 6, and the Disclosure of Information Principle respectively govern the disclosure of information to third parties. Yet, while the proviso to Rule 6 directly concerns the power of the government to access information with or without consent for investigative purposes, the Disclosure of Information Principle only says that disclosure for law enforcement purposes should be in accordance with the laws currently in force.

Observation : Though all service providers did include statements addressing the potential of sharing information with law enforcement or governmental agencies, how this was communicated varied. For example:

a.) Listing circumstances for disclosure to law enforcement : The Privacy Policy of ACT states "We believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person". ^{^[38]} The Privacy Policy of Airtel on the other hand states "Government Agencies: We may also share your personal information with Government agencies or other authorized law enforcement agencies (LEAs) mandated under law to obtain such information for the purpose of verification of identity or for prevention, detection, investigation including but not limited to cyber incidents, prosecution, and punishment of offences." ^{^[39]} Lastly, TTL states " To investigate, prevent or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person" or "To notify or respond to a responsible governmental entity if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires or justifies disclosure without delay". ^{^[40]}

b.) Listing authorities to whom information will be disclosed to : The privacy policy of Aircel states "There may be times when we need to disclose your personal information to third parties. If we do this, we will only disclose your information to: …8. Persons to whom we may be required to pass your information by reason of legal, governmental or regulatory authority including law enforcement agencies and emergency services".^{^[41]} Similarly, Vodafone states "There may be times when we need to disclose your personal information to third parties. If we do this, we will only disclose your information to persons to whom we may be required to pass your information by reason of legal, governmental or regulatory authority including law enforcement agencies and emergency services and any person or organisation as authorised by laws and regulations applicable in India." ^{^[42]} While BSNL states "Apart from the above, BSNL may divulge your personal information to: Government bodies, Regulatory Authorities, and other organizations in accordance with the law or as authorised by law…".^{^[43]}

3. Readability of Privacy Policies

Applicable Rule and Principle : In subsection (i) of Rule 4 body corporate must provide a privacy policy that is "clear and accessible". Similarly, the Notice Principle requires that the data controller give a " simple-to-understand notice of its information practices to all individuals, in clear and concise language".

Observation : It was found that, particularly with respect to clauses on the collection and disclosure of information, most Privacy Policies use:

a. Vague terminology: For example, in the Privacy Policy of ACT, it states as a purpose of collection "conduct research" while for the collection and disclosure of information it states ,"The Company may combine information about you that we have, with information we obtain from business partners or other companies. The Company shall have the right to pass on the same to its business associates, franchisees without referring the same to you." ^{^[44]} Similarly, with regards to the collection of information, Vodafone's Privacy Policy states that it may collect "any other information collected in relation to your use of our products and services". ^{^[45]}

b. Undefined terminology: On disclosure of information TTL's privacy policy states disclosure is "Subject to applicable legal restrictions, such as those that exist for Customer Proprietary Network Information (CPNI)" ^{^[46]} Confusingly, although TTL defines CPNI it does not mention what legal restriction it is referring to, and CPNI is in fact an American term and similar legal restrictions could not be found in India.

4. Information about security practices

Applicable Rule and Principle: The parameter for 'reasonable security practices and procedures' has been detailed comprehensively under Rule 8 of the Rules. The same is also covered in detail under the Openness Principle read with Security Principle. While the Security Principle recommends that the data controller protect the information they collect through reasonable security safeguards, the Openness Principle recommends that information regarding these should be made available to all individuals in clear and plain language.

Observation : With the exception of Airtel, no service provider has comprehensively followed the legal requirements for the purpose of their privacy policy. Thus, while most service providers do mention security practices, many do not provide specific or comprehensive details about their security practices and procedures for data protection, and instead assure users that 'reasonable security' procedures are in place. For example:

a. Comprehensive information about security practices in privacy policy: Airtel and Aircel have provided comprehensive information about their security practices in the companies Privacy Policy.

b. Information about security practice, but not in privacy policy: Vodafone has specified its security standards only in its latest 'Sustainability Report' available on its website. In the case of TTL, the specific security standard it follows is available only for its Maharashtra branch (TTLM) through its annual report.

c. Broad reference to security practices: Many service providers broadly reference security practices, but do not provide specifics. For example, TTL states only "we have implemented appropriate security controls to protect Personal Information when stored or transmitted by TTL." ^{^[47]}

d. No information about security practices: Some service providers do not mention any details about their security practices and procedures, or whether they even follow any security practices and procedures or not. An example of this would be ACT, which does not mention any security practices or procedures in its Policy.

5. Grievance mechanisms

Applicable Rule and Principle: Rule 5 of the Rules mandates that applicable bodies corporate must designate a 'Grievance Officer' for redressing grievances of users regarding processing of their personal information, and the same is also recommended by the Ninth Principle, i.e., Accountability.

Observation : It was found that adherence with this requirement varied depending on service provider. For example:

a. No Grievance Officer: ACT and MTNL do not provide details of a grievance officer on their websites.

b. Grievance Officer, but no process details: Airtel, TTL, and Vodafone provide details of the Grievance Officer, but no further information about the grievance process is provided.

c. Grievance Officer and details of process: Aircel provides details of the grievance officer and grievance process.

As a note: All service providers with the exception of ACT have a general grievance redressal mechanism in place as documented on TRAI's website. ^{^[48]} It is unclear whether these mechanisms are functional, and furthermore it is also unclear if these mechanisms can be used for complaints under the IT Act or the Rules, or complaints on the basis of the Principles. It should be further noted that the multiplicity of grievance redressal officers is a cause for concern, as it may lead to confusion.

6. Consent Mechanism

Applicable Rule and Principle : Rules 5 and 6 of the Rules^{^[49]} on Collection and Disclosure of information, respectively, require applicable bodies corporate to obtain consent/permission before collecting and disclosing personal information. The Choice and Consent Principle of the National Privacy Principles, as enumerated in the A.P. Shah Report, deals exclusively with choice and consent. ^{^[50]} Withdrawal of consent is an important facet of the choice and consent principle as evidenced by the Rules^{^[51]} and the National Privacy Principles ^{^[52]}.

Observation: Methods of obtaining consent and for what consent was obtained for varied across service providers. For example:

a. Obtaining consent: Some service providers give data subjects with the choice of submitting their personal information (with some exceptions such as for legal requirements) and obtaining their consent for its collection and processing. For example, the policies of Airtel, Aircel, and TTL are the only ones which provide information on the mechanisms used to obtain consent. ACT provides for targeted advertisements based on the personal information of the user. The viewing or interaction of the user of such targeted advertisements is however, considered an affirmation to this third party source, that the user is the targeted criteria. Thus, there appears to be lack of consent in this regard.

b. No Consent or choice offered: Some service providers do not mention consent. For example, Vodafone, and BSNL do not make any mention of choice or consent in their respective privacy policies.

c. Consent for limited circumstances: Some service providers only provide consent in limited circumstances. For example, ACT mentions consent only in relation to targeted advertising. However, this information is potentially misleading, as discussed earlier in the survey.

There is also a certain degree of assumption in all the policies regarding consent, as noted in the survey. Thus, if you employ the services of the company in question, you are implicitly agreeing to their terms even if you have not actually been notified of them. And the vague terminology used by most of the policies leaves quite a lot of wiggle room for the companies in question, allowing them to thereby collect more information than the data subject has been notified of without obtaining his or her consent.

7. Transparency mechanism :

Applicable Rule and Principle: The Openness Principle specifically recommends transparency in all activities of the data controller. ^{^[53]} The Rules provide a limited transparency mechanism under Rule 8 which require bodies corporate to document their security practices and procedures and Rule 4 which requires them to provide such information via a privacy policy. As a note, these fall short of the level of 'transparency' espoused by the Openness Principle of the National Privacy Principles.

Observation: All service providers fail in implementing adequate mechanisms for transparency.

8. Scope :

Applicable Rule and Principle : Though the Openness Principle does not directly speak of the scope of the policies in question, it implies that policies regarding all data collection or processing should be made publically available. The same is also necessary under Rule 4, which mandates that any body corporate which " collects, receives, possess, stores, deals or handle information of provider of information, shall provide a privacy policy for handling of or dealing in personal information including sensitive personal data or information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract. "

Observation : Though most of the companies mention the scope of their Privacy Policy and include the information collected through the websites, WAP Services, and use of the company's products and services, some companies do not do so. For instance, the scope of the policy is given rather vaguely in the Airtel's Policy, and the scope of ACT's policy is restricted to the information collected during the usage of their products and services, and not their website. BSNL's privacy policy is worrisome as it seems to restrict its scope to the information collected through the website only, but does not at the same time state that it does not apply to other methods of data collection and processing.

International Best Practices

Canada

The privacy regulation regime in Canada is a mixture of the federal regulations and the provincial regulations. Of the former, the Privacy Act is applicable to the public sector, while the Personal Information Protection and Electronic Documents Act ('PIPEDA') applies to the private sector. There are also federal level sectoral regulations, of which the Telecommunications Act is relevant here. The PIPEDA covers the activities of all businesses and federally regulated industries regarding their collection, use, disclosure, safeguarding and provision of access to their customers' personal information. Further, in 2009, the Canadian Radio-television and Telecommunications Commission ('CRTC'), by virtue of the 'Telecom Regulatory Policy CRTC 2009-657' ^{^[54]} made ISPs subject to privacy standards higher than the standards given under the PIPEDA, while at the same time allowing them to use Internet Traffic Management Practices ('ITMPs'). ^{^[55]}

The 2009 policy is progressive as it balances the economic needs of Internet Traffic Management Providers vis-à-vis the privacy concerns of consumers. The need to identify ITMP's is integral in the protection of online privacy, as ITMP's most commonly employ methods such as deep packet inspection which can be used to burrow into personal information of consumers as well.

Recognising that this may not be the current practice, but a possibility in the future, the policy makes certain guidelines for ITMPs. It permits ITMP's that block bad traffic such as spam and malicious software. Nearly all other ITMPs however, require the prior notice of 30 days or more before initialising the ITMP.^{^[56]}

ITMP's are to be used only for the defined need of the ISP and not beyond this, and must not be used for behavioural advertising. Secondary ISPs in their contracts with Primary ISPs must agree to the same duties of the latter, that is the personal information entrusted to them is meant for its purpose alone and is not to be disclosed further.

Australia

The central privacy regulation in Australia is the Privacy Act, 1988. The Act defines two sets of privacy principles, the Information Privacy Principles which apply to the public sector, and the National Privacy Principles which apply to the private sector.^{^[57]} These principles govern the following: collection,^{^[58]} use and disclosure,^{^[59]} data quality,^{^[60]} security,^{^[61]} openness,^{^[62]} access and correction,^{^[63]} identifiers,^{^[64]} anonymity,^{^[65]} trans-border data flows,^{^[66]} and sensitive information. ^{^[67]}

The Telecommunications Act, 1997, is also relevant here, as it also governs the use or disclosure of information by telecommunication services providers, ^{^[68]} but such information is only protected by the Telecommunications Act if it comes to a person's knowledge or possession in certain circumstances. An example of this is Section 276 of the same, which providers that the information protected by that section will be protected only if the person collecting the information is a current or former carrier, carriages service provider or telecommunications contractor, in connection with the person's business as such a carrier, provider or contractor; or if the person is an employee of a carrier, carriage service provider, telecommunications contractor, because the person is employed by the carrier or provider in connection with its business as such a carrier, provider or contractor.

European Union

The most important source of law in the European Union ('EU') regarding Data Privacy in general is the Data Protection Directive ('Directive'). ^{^[69]} The Directive has a broad ambit, covering all forms of personal data collection and processing, and mandating that such collection or processing follow the Data Protection Principles it sets out.^{^[70]} The Directive differentiates between Personal Data and Sensitive Personal Data, ^{^[71]} with the collection and processing of the latter being subject to more stringent rules. The telecommunications service providers and internet service providers are included in the definition of 'Controller' as set out in the Directive, and are hence subject to the regulations enforced by the member states of the EU under the same. ^{^[72]} The Directive will soon be superseded by the General Data Protection directive, which is scheduled to come into force in late 2014, with a two-year transition period after that. ^{^[73]}

In addition to the above, ISPs are also subject to the Directive on Privacy and Electronic Communications^{^[74]} and the Data Retention Directive. ^{^[75]} The Directive on Privacy and Electronic Communications ('E-Privacy Directive') sets out rules regarding processing security, confidentiality of communications, data retention, unsolicited communications, cookies, and a system of penalties set up by the member states under the title of 'Control'. The E-Privacy Directive supplements the original Data Privacy Directive, and replaces a 1997 Telecommunications Privacy directive. The Data Retention Directive does not directly concern the collection and processing of data by a service provider, but only concerns itself with the retention of collected data. It was an amendment to the E-Privacy Directive, which required the member states to store the telecommunications data of their citizens for six to twenty-four months, and give police and security agencies access to details such as IP addresses and time of use of e-mails.

The established practices considered above have the following principles, relevant to the study at hand, in common:

1. Notice

2. Collection Limitation

3. Use Limitation

4. Access and Corrections

5. Security

6. Data Quality and Accuracy

7. Consent

8. Transparency

And the following principles are common between two of the three regimes discussed above:

1. The PIPEDA and the Privacy Act both mention rules regarding Disclosure of collecting information, but the Data Protection Directive does not directly govern disclosure of collected information.

2. The Principles of Accountability is covered by the Data Protection Directive and the PIPEDA, but is not directly dealt with by the Privacy Act

3. The PIPEDA and the Data Protection Directive directly mention the principle of Enforcement, but it is not directly covered by the Privacy Act.

Recommendations

Broadly, service providers across India could take cognizance of the following recommendations to ensure alignment with the Rules found under section 43A and to maximize the amount of protection afforded to customer data.

1. Access and location of privacy policy: Service providers should ensure that the privacy policy is easily accessible through the main page of the company's website. Furthermore, the Privacy Policy should be accessible to users prior to the collection of personal information. All 'User Agreement' forms should include a written Privacy Policy or a reference to the Privacy Policy on the service provider's website.

2. Scope of privacy policy: The privacy policy should address all practices and services offered by the service provider. If a service requires a different or additional privacy policy, a link to the same should be included in the privacy policy on the main website of the service provider.

3. Defining consent: The Privacy Policy should clearly define what constitutes 'consent'. If the form of consent changes for different types of service, this should be clearly indicated.

4. Clear language: The language in the Privacy Policy should be clear and specific, leaving no doubt or ambiguity with regards to the provisions.

5. Transparent security practices: The Privacy Policy should include comprehensive information about a company's security practices should be included in the Privacy Policy. Information pertaining to audits of these procedures should be made public.

6. Defined and specified third parties: The Privacy Policy should define 'third party' as it pertains to the company's practices and specify which third parties information will be shared with.

7. Comprehensive grievance mechanism: The Privacy Policy should include relevant details for users to easily use established grievance mechanisms. This includes contact details of the grievance officers, procedure of submitting a grievance, expected response of the grievance officer (recognition of the grievance, time period for resolution etc.), and method of appealing decision of the grievance officer.

8. Specify laws governing disclosure to governmental agencies and law enforcement: The Privacy Policy should specify under what laws and service providers are required disclose personal information to.

9. Inclusion of data retention practices: The Privacy Policy should include provisions defining the retention practices of the company.

Annexure 1

Explanation and Interpretation of Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

Section 43A under the Information Technology Act 2000 addresses the protection of sensitive personal data or information and the implementation of an information security management system, and the Rules framed under section 43A attempt establish a holistic data security regime for the private sector.

The following section is a description of the requirements found under section 43A and subsequent Rules with respect to information that must be included in the privacy policy of a 'body corporate' and procedures that must be followed by 'body corporate' with respect to the publishing and notice of a privacy policy. This section also includes an explanation of how each relevant provision has been interpreted for the purpose of this research.

Relevant provisions that pertain to the privacy policy of body corporate

Rule 3: This section defines the term 'Sensitive Personal Data or Information', setting out the six types of information that are considered 'sensitive personal data' including:

i. Password - Defined under the Rules as "a secret word or phrase or code or passphrase or secret key, or encryption or decryption keys that one uses to gain admittance or access to information"^{^[76]}.

ii. Financial information - "such as Bank account or credit card or debit card or other payment instrument details" ^{^[77]}

iii. Physical, physiological and mental health condition

iv. Sexual orientation

v. Medical records and history

vi. Biometric information

The two other broad categories of Sensitive Personal Data or Information that are included in the Rule are - any related details provided to the body corporate, and any information received by the body corporate in relation to the categories listed above. ^{^[78]}

The proviso to this section excludes any information available in the public domain or which may be provided under the Right to Information Act, 2005 from the ambit of SPD/I.

Under the Rules, Sensitive Personal Data is considered to be a subset of Personal Information - which has been defined by Section 2 (1) (i) as " any information that relates to a natural person, which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person "^{^[79]}

Interpretation: While the Rules are clearly limited to personal and sensitive personal data or information, the use of these terms throughout the Rules is not consistent. For example, some provisions under the Rules ambiguously use the term 'information' in place of the terms 'personal information' and/or 'sensitive personal information'.^{^[80]} While 'information' has been defined non-exhaustively as any 'data, message, text, images, sound, voice, codes, computer programs, software and databases or micro film or computer generated microfiche' in the Act, this definition appears to be overbroad and cannot be applied in that form for the purpose of provisions on privacy policy. ^{^[81]} Hence, 'information', when used in the Rules, is construed to mean 'personal information' including 'sensitive personal information' for the purpose of this survey.

As per Rule 3, information in the public domain isn't classified as sensitive personal data. This exception may require a relook considering that 'providers' of information' may not want their data to be disclosed beyond its initial disclosure, or in certain cases, they may not even know of its existence in the public domain. Since the notice of collection, purpose and use of information is limited to SPD alone under Rule 5, information in the public domain should be seen together with whether the provider of information has provided the latter directly or to service provider that requires the information. If the source is the information provider directly, it need not be classified as SPD.

On a positive note, the addition of the term "in combination with other information available or likely to be available", gives recognition to the phenomenon of convergence of data. Parts of information that seem of negligible importance, when combined, provide a fuller personal profile of an individual, the recognition of this, in effect, gives a far wider scope to personal information under the Rules.

In the specific context of Privacy Policies, the Rules do not stipulate whether the mandated privacy policy has to explicitly mention SPD/I that is collected or used.{This is mentioned under Rule 4(ii) and (iii)} Since Rules do require that a privacy policy must be clear, it is construed that the privacy policy should explicitly recognize the type of PI and SPD/I being collected by the company.

Rule 4: This rule mandates that a "body corporate that collects, receives possess, stores, deals or handles information of the provider of information". For the purposes of this research, this entity will be referred to as a 'data controller'. According to Rule 4, every data controller must provide a privacy policy on its website for handling of or dealing in personal information including sensitive personal information.

The following details have to be included in the privacy policy -

"(i) Clear and easily accessible statements of its practices and policies;

(ii) Type of personal or sensitive personal data or information collected under rule 3;

(iii) Purpose of collection and usage of such information;

(iv) Disclosure of information including sensitive personal data or information as provided in rule 6;

(v) Reasonable security practices and procedures as provided under rule 8."^{^[82]}

Interpretation : The Rules do not provide an adequate understanding of the terms 'clear' and 'accessible', and the terms 'practices' and 'policies' are not defined. For the purpose of this research, 'practices' will be construed to mean the privacy policy of the company. It is deemed to be clear and accessible if it is available either directly or through a link on the main website of the body corporate. To meet the standards set by this Rule, the policy or policies should disclose information about the company's services, products and websites, whenever personal information is collected.

Rule 5: This Rule establishes limits for collection of information. It states that prior informed consent has to be obtained by means of letter, fax or email from the user regarding the purpose of usage for the sensitive personal information sought to be collected. It limits the purpose for collection of SPD/I to collection for a lawful purpose connected with a function or activity of the body corporate or any person on its behalf and only if it is considered necessary for that purpose. Thus, the information collected can only be used for the stated purpose for which it has been collected. ^{^[83]}

Further, Rule 5 (3) provides that consent has to be obtained and knowledge provided to a person from whom personal information is being directly collected - which for service providers - is understood to be through the customer application form. This rule will be deemed to have been complied with when the following information is provided -

a. The fact that the information is being collected.

b. The purpose of such collection.

c. Intended recipients of the collected information.

d. Names and addresses of the agency or agencies collecting and retaining information.

Moreover, it provides that the user has to be given the option of not providing information prior to its collection. In case the user chooses this option or subsequently withdraws consent the body corporate has the option to withhold its services.

This section also provides under Section 5 (2) (a) that the type of information that this Rule concerns itself with can only be collected for a lawful purpose connected with a function or activity of the body corporate or any person on its behalf and if it is considered necessary for that purpose.

It also requires that a Grievance Officer be instated to redress the grievance " expeditiously but within one month from the date of receipt of grievance." The Grievance Redressal process has been discussed in more detail later.

Interpretation: Even though Rule 5 incorporates various major data protection principles and mandates the establishment of a Grievance Redressal Mechanism, neither Rule 5 nor Rule 4 (3) makes a reference to the other. [Rule 4(3) uses the term "such information", and the fact that it follows Rule 4(2) which clearly refers to personal information as well as SPD/I, means that Rule 4(3) also refers to the same]

Prima facie , the scope of Rule 5 is limited to collection of SPD/I. However, Rule 4 (3) ostensibly covers the broad ambit of 'information' which includes SPD/I. Construing these two provisions together using the 'Harmonious Construction' principle ^{^[84]}, Rule 5 could be interpreted to cover personal information for privacy policies under Rule 4.

In addition, Rule 5(3) doesn't expand on the reasonable steps to be taken for intimating the information provider on the extent of disclosure and purpose of collection. This appears as a rather large loophole considering the wide interpretation that can be given to 'reasonable' practices of service providers.

Rule 6: This rule lays down the conditions and procedure for disclosure of information.^{^[85]} Under it, the following conditions apply before any disclosure of information by the 'body corporate' to any third party -

a. The body corporate is required to obtain prior permission from the provider of the information, or

b. Permission to disclose has to be agreed on in the contract between the company and the data subject, or

c. Disclosure is necessary for the compliance of a legal obligation.

An exception is made in case the disclosure is made to an authorized and legally mandated Government agency upon request for the purposes of verification of identity, for prevention, detection, and investigation of incidents, specifically including cyber incidents, prosecution, and punishment of offences, in which case no consent from the data subject will be required. Thus, the company does not need user consent to disclose information to authorized law enforcement or intelligence agencies when presented with an authorized request.

Interpretation :

The guidelines for disclosure limit themselves to SPD under Rule 6 leaving a vacuum with respect to information that doesn't fall within the definition of SPD/I. However, Rule 4 (iv)'s applies to 'information including SPD'. Reading the two together, in accordance with the 'Harmonious Construction' principle, the scope of SPD/I in Rule 6 is construed to extend to the same personal information and SPD/I as is covered by Rule 4 (iv), for the limited purpose of the privacy policies under Rule 4.

Rule 7 : This Rule requires that when the data controller transfers SPD/I to another body corporate or person, such a third party must adhere to the same standards of data protection that the body corporate collecting the information in the first instance follows.

Interpretation : Although the privacy policy is not required to provide details of the transfer of information, the fourth sub-section of Rule 4, which concerns itself with the obligation of the body corporate to provide a policy for privacy including information about the disclosure of information to its consumers, incorporates this Rule as it deals with disclosure of information to third parties. Thus, the Policy of the body corporate must include details of the way the data is handled or dealt by the third party, which is shared by the body corporate in question.

Rule 8: This Rule details the criteria for reasonable security practices and procedures.^{^[86]} It provides that not only must the body corporate have implemented standard security practices and procedures, but it should also have documented the information security program and policies containing appropriate "managerial, technical, operational and physical security control measures". The Rule specifically uses the example of IS/ISO/IEC 27001 as an international standard that would fulfill the requirements under this provision. The security standards or codes of best practices adopted by the company are required to be certified/audited by a Government approved independent auditor annually and after modification or alteration of the existing practice and procedure. Sub-section (1) of the Rule also gives the body corporate the option of creating its own security procedures and practices for dealing with managerial, technical, operational, and physical security control, and have comprehensive documentation of their information security programme and information security policies. These norms should be as strict as the type of information collected and processed requires. In the event of a breach, the body corporate can be called to demonstrate that these norms were suitably implemented by it.

Interpretation : It is unclear whether the empanelled IT security auditing organizations recognized by CERT-In discussed later are qualified for the purpose of this Rule, but from publicly available information the Data Security Council of India and CERT-In's empanelled Security Auditors seem to be the agencies given this task^{^[87]}. With regards to the Privacy Policy or Policies of a company, it is only necessary that the company include as many details as possible regarding the steps taken to ensure the security and confidentiality of the collected information in the Privacy Policy and Policies, and notify them to the consumer.

Other Relevant Policies:

Empanelled Information Technology Security Auditors - CERT-In has created a panel of 'IT Security Auditors' for auditing networks & applications of various organizations of the Government, critical infrastructure organizations and private organizations including bodies corporate.^{^[88]} The empanelled IT security auditing organization is required to, inter alia, conduct a " Review of Auditee's existing IT Security Policy and controls for their adequacy as per the best practices vis-à-vis the IT Security frameworks outlined in standards such as COBIT, COSO, ITIL, BS7799 / ISO17799, ISO27001, ISO15150, etc." ^{^[89]} and conduct and document various assessments and tests. Some typical reviews and tests that include privacy reviews are - Information Security Testing, Internet Technology Security Testing and Wireless Security Testing.^{^[90]} For this purpose CERT-In maintains a list of IT Security Auditing Organizations^{^[91]}.

Criteria for analysis of company policies based on the 43A Rules

1. Clear and Accessible statements of its practices and policies^{^[92]} -

i. Whether the privacy policy is accessible through the main website of the body corporate?

ii. Whether the privacy policy is mentioned or included in the terms and conditions of all document of the body corporate that collects personal information?

iii. Whether the privacy policy can be comprehended by persons without legal knowledge?

2. Type and acknowledgment of personal or sensitive personal data/information collected ^{^[93]}-

i. Whether the privacy policy explicitly states that personal and sensitive personal information will be collected.

ii. Whether the privacy policy mentions all categories of personal information including SPD/I being collected?

3. Option to not provide information and withdrawal of consent^{^[94]} -

i. Whether the Privacy Policy specifies that the user has the option to not provide information?

ii. Whether the Privacy Policy specifies that the user has the option to subsequently withdraw consent?

4. Existence of Grievance Officer -

i. Whether the privacy policy mentions the existence of a grievance officer?

ii. Whether the privacy policy provides details of the grievance redressal mechanism?

iii. Whether the privacy policy provides the names and contact information of the grievance officer?

5. Purpose of Collection and usage of information -

i. Whether the privacy policy enumerates the purpose(s) for which information is collected exhaustively?

6. Disclosure of Information -

i. Whether personal information is shared with third parties (except authorized government agencies/LEA/IA) only with user consent?

ii. Whether the policy specifies that personal information is disclosed to Government agencies/LEA/IA only when legally mandated as per the circumstances laid out in 43A?

7. Reasonable Security practices and procedures -

i. Whether the privacy policy provides adequate details of the reasonable security practices and procedures followed by the body corporate to secure information?

Annexure 2

Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules) 2011 and Company SURVEY

1. Bharti Airtel Ltd.

1. Clear and Accessible statements of its practices and policies: Yes

a. Rationale: Airtel's Privacy Policy^{^[95]} is available through the main page of the website and it is mentioned in the Airtel Terms and Conditions and is applicable for Airtel's websites as well as its services and products, such as its telecommunications services. It was determined that the policy can be comprehended by individuals without legal knowledge.

2. Type and acknowledgement of personal or sensitive personal data/information collected: Yes

b. Rationale: Airtel's Privacy Policy indicates that sensitive personal and personal information will be collected, defines sensitive personal information^{^[96]}, and specifies specific types of personal^{^[97]} and sensitive personal information ^{^[98]} that will be collected.

3. Option to not provide data or information and subsequent withdrawal of consent: Yes

c. Rationale: The Airtel Privacy Policy states that individuals have the right to choose not to provide consent or information and have the right to withdraw consent. The policy notes that if consent/information is not provided, Airtel reserves the right to not provide or to withdraw the services.^{^[99]}

4. Existence of Grievance Officer: Yes

a. Rationale: Airtel provides for the contact details of nodal officers^{^[100]} and appellate authorities ^{^[101]} on its website. Additionally the website provides for the 'Office of the Ombudsperson'^{^[102]}, which is an independent forum for employees and external stakeholders^{^[103]} of the company to raise concerns and complaints about improper practices which are in breach of the Bharti Code of Conduct. Additionally, details of the Airtel Grievance Redressal Officers can also be found in the TRAI website.^{^[104]}

5. Comprehensive disclosure of purpose of collection and usage of information: Partial

Rationale: Airtel's Privacy Policy indicates eight purposes^{^[105]} that information will be collected and used for, but notes that the use and collection is not limited to the defined purposes.

6. Disclosure of Information^{^[106]}: Yes

a. Rationale: Airtel has a dedicated section explaining the company's practices around the disclosure and sharing of collected information, including ways in which consent will be collected for the sharing of personal information^{^[107]}, how collected personal information may be collected internally ^{^[108]}, the disclosure of information to third parties and that the third party will be held accountable for protecting the information through contract^{^[109]}, the possible transfer of personal information and its purposes^{^[110]}, and the circumstances under which information will be disclosed to governmental agencies (which reflect the circumstances defined by the Rules.) ^{^[111]}

7. Existence of reasonable security practices and procedures ^{^[112]} : Yes

a. Rationale: Airtel's privacy policy has a dedicated section that explains the company's security practices and procedures in place. The policy notes that Airtel's practices and procedures are IS/ISO/IEC 27001 compliant ^{^[113]}, that access is restricted to a need to know basis and that employees are bound by codes of confidentiality^{^[114]}, and that Airtel works to ensure that third parties also have strong security procedures in place.^{^[115]} The policy also provides details on the retention^{^[116]} and destruction ^{^[117]} procedures for personal information, and notes that reasonable steps are taken to protect against hacking and virus attacks.^{^[118]}

1. Tata Telecommunication Services (DoCoMo and Virgin Mobile)

1. Clear and Accessible statements of its practices and policies : Partial

a. Rationale: Though Tata DoCoMo has a comprehensive Data Privacy Policy ^{^[119]} that is applicable to Tata Teleservices Limited's ("TTL") products and services and the TTL website, it is not accessible to the user through the main website. In the Frequently Asked Questions Section of TTL, it is clarified under what circumstances information that you provide is not covered by the TTL privacy policy. ^{^[120]}

2. Type of personal or sensitive personal data/information collected: Partial

a. Rational: TTL defines personal information^{^[121]} but only provides general examples of types of personal information^{^[122]} (and not sensitive personal) collected, rather than a comprehensive list. The definitions and examples of information collected are clarified in the FAQs and the Privacy Policy, rather than in the Privacy Policy alone. As a strength, the Privacy Policy clarifies the ways in which TTL will collect information from the user - including the fact that they receive information from third parties like credit agencies. ^{^[123]}

3. Option to not provide information and withdrawal of consent: N/A

a. Rationale: The TTL Privacy Policy does not address the right of the individual to provide consent/information and to withdraw information/consent.

4. Existence of Grievance Officer: Yes

a. Rationale: TTL has various methods to lodge complaints and provides for an appellate authority. ^{^[124]} Additionally, details of the Grievance Redressal Officers are provided via the TRAI website.^{^[125]}

5. Purpose of Collection and usage of information: Yes

a. Rationale: In its' Privacy Policy, TTL describes the way in which collected information is used. ^{^[126]} The TTL FAQs further clarify the use of cookies by the company, the use of provided information for advertising purposes, ^{^[127]} and the use of aggregate and anonymized data.^{^[128]}

6. Disclosure of Information: Yes

a. Rationale: In the Privacy Policy and the FAQs page, TTL is transparent about the circumstances on which they will share/disclose personal information with third parties^{^[129]}, with law enforcement/governmental agencies^{^[130]}, and with other TTL companies. ^{^[131]} Interestingly, the TTL FAQ's clarify to the customer that their personal information might be processed in different jurisdictions, and thus would be accessible by law enforcement in that jurisdiction. ^{^[132]}

7. Reasonable Security practices and procedures: Partial

a. Rationale: TTL's Privacy Policy broadly references that security practices are in place to protect user information, but the policy does not make reference to a specific security standard, or provide detail as to what these practices and procedures are. ^{^[133]} Although TTL's Privacy Policy does not make mention of any specific security standard, Tata Teleservices (Maharashtra) Limited claims to have been awarded with ISO 27001 ISMS (Information Security Management Systems) Certification in May 2011, and completed its first Surveillance Audit in June 2012^{^[134]}. Information on IT security standards adopted by other circles could not be found on the internet.

2. Vodafone

1. Clear and Accessible statements of its practices and policies: Yes

Rationale: Vodafone's Privacy Policy^{^[135]} is easily accessible from its website from a link at the bottom, directly from the home page and from all other pages of the website. ^{^[136]}

2. Collection of personal or sensitive personal data/information: No

Rationale: Type -

a. Personal Information - The amount of details given by the Privacy Policy with regards to the personal information being collected is insufficient, as it does not include a number of relevant facts, and uses is vague language - such as 'amongst other things', implying that information other than that which is notified is being collected.^{^[137]}

b. Sensitive Personal Data or Information - The Privacy Policy does not mention the categories or types of SPD/I, as defined under Rule 3, being collected by the service provider explicitly, only gives a general overview of the information that is collected.

3. Option to not provide information and withdrawal of consent: No

a. Rationale: The privacy policy does not mention the consent of data subject anywhere, nor does it mention his or her right to withdraw it at any point of time. It also does not mention whether or not the provision of services by Vodafone is contingent on the provision of such information.

4. Existence of Grievance Officer: Yes

a. Rationale: The Privacy Policy explicitly mentions and gives the email address of a grievance redressal officer, though further details about the other offices are given in a separate section of the website.^{^[138]}

5. Purpose of Collection and usage of information: Partial

a. Rationale:

The Privacy Policy gives an exhaustive list of purposes for which the collected information can be used by Vodafone, ^{^[139]} but at the same time the framing of the opening sentence and the usage of the term 'may include' could imply that it can be used for other purposes as well.

6. Disclosure of Information: Yes

a. Rationale:

The Privacy Policy mentions that Vodafone might share the collected information with certain third parties and the terms and conditions which would apply to such a third party.^{^[140]} The phrasing does not imply that there are other conditions that have not been mentioned in the policy, under which the information would be shared with a third party. At the same time, the Privacy Policy does not explicitly say that the third party will necessarily follow the privacy and data security procedures and rules laid down in the Privacy Policy.

7. Reasonable Security practices and procedures: Yes

a. Rationale:

The Privacy Policy mentions in reasonably clear detail the security practices and procedures followed by Vodafone, and also mentions the circumstances in which the data subject should take care to protect his or her own information, wherein Vodafone will not be liable. ^{^[141]} Although Vodafone India's Privacy Policy does not specify what their IT Security standard is, its 2012/2013 Sustainability Report available through its international website ^{^[142]} states that it follows industry practices in line with the ISO 27001 standard and its core data centre in India follows this standard^{^[143]}.

3. Aircel

1. Clear and Accessible statements of its practices and policies: Yes

Rationale:

The Privacy Policy is accessible from every page of the Aircel website, with a link at the bottom of each page after the specific circle has been chosen. It is reasonably free of legalese and is intelligible.^{^[144]}

2. Type of personal or sensitive personal data/information collected: Partial

Rationale: Type -

a. Personal Information

In the Privacy Policy, the repeated usage of the term 'may' creates some doubt about the actual extent of the data collected, and leaves the Privacy Policy quite unclear in this regard. At the same time, the Privacy Policy does include a fairly comprehensive list of personal information that could be collected. ^{^[145]} The wording in the Privacy Policy thus requires further clarification and specification in order to make a determination on whether or not it provides complete details on the personal information that will be collected.

a. Sensitive Personal Data or Information

The Privacy Policy does not mention SPDI explicitly, which adds to the lack of concrete details as noted earlier.

3. Option to not provide information and withdrawal of consent - Yes

Rationale : The Privacy Policy mentions that users do have the right to refuse to provide or the withdrawal of consent to collect personal information. In such cases, Aircel can respectively refuse or discontinue the provision of its services. ^{^[146]}

4. Existence of Grievance Officer: Yes

a. Rationale:

Though not directly mentioned in the Privacy Policy, a separate, easily noticeable link at the bottom of each webpage links to the Customer Grievance section. There are different officers in charge of each node, called the Nodal Officers. ^{^[147]}

5. Purpose of Collection and usage of information: Partial

a. Rationale: The usage of the term 'may' in the section of the Privacy Policy regarding the purpose of collection and usage of information again leaves it ambiguous in this regard, implying that it can just as easily be used for purposes that have not been notified to the data subject.^{^[148]}

6. Disclosure of Information: Yes

a. Rationale: Though the Privacy Policy does not specify all the circumstances under which Aircel would share the collected information with a third party, it specifies the terms and conditions that would apply in the cases that it does. ^{^[149]}

7. Reasonable Security practices and procedures: Yes

a. Rationale:

The Policy gives a reasonable amount of detail about the steps taken by Aircel to ensure the security of the information collected by it, but leaves certain holes uncovered.^{^[150]}

4. Atria Convergence Technologies Private Limited (ACT)

1. Clear and Accessible statements of its practices and policies: Yes

a. Rationale: The Policy is intelligible, and is easily accessible from all the webpages of the company's website from a link at the bottom of all pages.^{^[151]}

2. Type of personal or sensitive personal data/information collected: Partial

a. Rationale:

Type -

a. Personal Information - Yes -

The Policy mentions the different types of Personal Information which will be collected by ACT if the customer registers with the Company. ^{^[152]}

a. Sensitive Personal Data or Information -

The categories of SPD/I collected by ACT are not specifically mentioned in the policy, though they are mentioned as part of the general declarations.

3. Option to not provide information and withdrawal of consent: No

a. Rationale: The option of the data subject not providing or withdrawing consent has not been mentioned in the Policy.

4. Existence of Grievance Officer: No

a. Rationale: No Grievance Officer has been mentioned in the Privacy Policy or on the ACT website, nor has any other grievance redressal process been specified.^{^[153]}

5. Purpose of Collection and usage of information: Yes

a. Rationale: The Policy mentions the various ways ACT might use the information it collects, though the use of the term 'general' is a cause for concern.^{^[154]} The list of purposes for collection given in the Privacy Policy is a very general list.

6. Disclosure of Information: Yes

a. Rationale: The Policy mentions the circumstances in which ACT might share the collected information with a third party, and also mentions that such parties will either be subject to confidentiality agreements, or that the data subject will be notified before his or her information becomes subject to a different privacy policy. It also mentions the exception to above, that being when the information is shared for investigative purposes.^{^[155]} At the same time, the intended recipients of the information are not mentioned, and the name and address of agency/agencies collecting and retaining information is not mentioned.

7. Reasonable Security practices and procedures: No

a. Rationale: - The security practices and procedures followed by ACT to protect the information of its customers are not mentioned in the Policy, which is a critical weak point, keeping in mind the requirements of the Rules. ^{^[156]}

[1] . Telecom Regulatory Authority of India, Press Release 143/2012,(< http://www.trai.gov.in/WriteReadData/PressRealease/Document/PR-TSD-May12.pdf >)

[2] . The Indian Telecom Service Performance Indicators, January-March 2013, Telecom Regulatory Authority of India,. (< http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/Indicator%20Reports%20-01082013.pdf >)

[3] . 'India is now world's third largest Internet user after U.S., China', (The Hindu, 24 August 2013) < http://www.thehindu.com/sci-tech/technology/internet/india-is-now-worlds-third-largest-internet-user-after-us-china/article5053115.ece >

[4] . In addition, the Unified Access License Framework which allows for a single license for multiple services such as telecom, the internet and television, provides certain security guidelines. As per the model UIL Agreements, privacy of communications is to be maintained and network security practices and audits are mandated along with penalties for contravention in addition to what is prescribed under the Information Technology Act,2000. For internet services, the Agreement stipulates the keeping an Internet Protocol Detail Record (IPDR) and copies of packets from customer premises equipment (CPE). Accessed at < http://www.dot.gov.in/sites/default/files/Unified%20Licence.pdf>

[5] . See >> http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/Indicator%20Reports%20-01082013.pdf >>

[6] . 'India is now world's third largest Internet user after U.S., China', (The Hindu, 24 August 2013) < http://www.thehindu.com/sci-tech/technology/internet/india-is-now-worlds-third-largest-internet-user-after-us-china/article5053115.ece > Accessed..

[7] . Starting with Kharak Singh v. State of UP 1963 AIR SC 1295, the right to privacy has been further confirmed and commented on in other cases, like Govind v.State of M.P (1975) 2 SCC 148: 1975 SCC (Cri) 468. A full history of the development of the Right to Privacy can be found in B.D. Agarwala, Right to Privacy: A Case-By-Case Development, (1996) 3 SCC (Jour) 9, available at http://www.ebc-india.com/lawyer/articles/96v3a2.htm.

[8] . White Paper on EU Adequacy Assessment of India, 3, ("Based on an overall

analysis against the identifiable principles under Article 25, the 2010 Report concludes that India does not at present provide adequate protection to personal data in relation to any sector or to the whole of its private sector or to the whole of its public sector. ") available at < https://www.dsci.in/sites/default/files/WhitePaper%20EU_Adequacy%20Assessment%20of%20India.pdf >

[9] . Planning Commission, Report of the Group of Experts on Privacy, 2012, (< http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf>)

[10] . Though a company's Privacy Policy was the main document analysed for this research, when applicable a company's Terms of Service wavas also reviewed.

[11] . BSNL and MTNL are government companies as defined under section 617, Indian Companies Act, 1956, incorporated under the Indian Companies Act, 1956. Under section 43 A (i) of the Act, a 'body corporate' has been broadly defined as "any company…sole proprietorship or other association of individuals engaged in commercial or professional activities". Therefore, for the purpose of this survey, BSNL and MTNL are recognized as bodies corporate.

[12] . Documents Reviewed: http://portal.bsnl.in/portal/privacypolicy.html

[13] . A full list of its services are available here: < http://bsnl.co.in/opencms/bsnl/BSNL/services/>

[14] . The MTNL website does not provide access to a privacy policy

[15] . A full list of its services are available here <<http://mtnldelhi.in>>

[16] . Documents Reviewed: http://www.airtel.in/forme/privacy-policy , http://www.airtel.in/applications/xm/FixedLineNodalOfficer.jsp, http://www.airtel.in/applications/xm/BroadbandInternet_AppellateAuth.jsp , http://www.airtel.in/about-bharti/about-bharti-airtel/ombuds-office

[17] . A full list of services provided by Bharti Airtel is available here: <www.airtel.in>

[18] . http://submarinenetworks.com/stations/asia/india/chennai-bharti

[19] . Documents Reviewed: http://www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement.html https://www.vodafone.in/pages/privacy_policy.aspx?cid=ker , http://www.vodafone.com/content/sustainability/operating_responsibly/privacy_and_security.html

[20] . See < http://historyofbusiness.blogspot.in/2013/11/history-of-vodafone.html. >

[21] . Vodafone International Holdings v Union of India, WP 1325/2010, Bombay High Court

[22] . 'Vodafone to Buy Additional Essar India Stake for $5 Billion',(Bloomberg, March 31, 2011) < http://www.bloomberg.com/news/2011-03-31/essar-exercises-option-to-sell-5-billion-stake-in-vodafone-essar-venture.html >Accessed 26 May 2014

[23] . See <https://www.vodafone.in/pages/aboutus.aspx?cid=ker.>

[24] . Vodafone, supra note 13.

[25] . Documents Reviewed:http://www.tatadocomo.com/downloads/data-privacy-policy.pdf, http://www.tatateleservices.com/t-customercare.aspx, http://www.tatateleservices.com/download/aboutus/ttml/TTML-Annual-Report-2012-13.pdf

[26] . 'Japan's Docomo acquires 26% stake in Tata Tele'(The Hindu Business Line, November 13 2008) < http://www.thehindubusinessline.in/bline/2008/11/13/stories/2008111352410100.htm .>

[27] . Further details are available at: < http://www.tatateleservices.com/t-aboutus-ttsl-organization.aspx>

[28] . Documents Reviewed

http://www.aircel.com/AircelWar/appmanager/aircel/karnataka?_nfpb=true&_pageLabel=P26400194591312373872061 , http://www.aircel.com/AircelWar/appmanager/aircel/karnataka?_nfpb=true&_pageLabel=customercare_consumergrievance_page , http://www.aircel.com/AircelWar/ShowProperty/UCMRepository/Contribution%20Folders/Global/PDF/Manual_Customer_Grievan.pdf

[29] . See < http://www.aircel.com/AircelWar/appmanager/aircel/ap?_nfpb=true&_pageLabel=aboutus_book. >

[30] . Documents Reviewed: http://www.acttv.in/index.php/privacy-policy

[31] . https://www.vodafone.in/pages/privacy_policy.aspx?cid=ker

[32] . http://www.tatadocomo.com/downloads/data-privacy-policy.pdf

[33] . http://www.airtel.in/forme/privacy-policy

[34] .http://www.aircel.com/AircelWar/appmanager/aircel/karnataka?_nfpb=true&_pageLabel=P26400194591312373872061

[35] . http://www.acttv.in/index.php/privacy-policy

[36] . In 2012, the Minister of State for Communications & Information Technology informed the Rajya Sabha that " (a)ny change in the privacy policy is not within the purview of amended Information Technology Act, 2000",, while discussing changes to Google's privacy policy. Even though the Minister noted that the EU has reported its dissatisfaction with the changed policy, finding that the policy " makes it impossible to understand which purposes, personal data, recipients or access rights are relevant to the use of a specific service ", he argued that the Act and Rules therein merely stipulate the publication of a privacy policy which provide " information to the end users as to how their personal information is collected, for which it is collected, processed and secure". Further, when asked how changes to privacy policy affect end users the Minister shifted the responsibility on end users, stating that " (t)he end users… need to fully understand the privacy policy of Google, the consequences of sharing their personal information and their privacy rights before they start using online services ".( < http://rsdebate.nic.in/bitstream/123456789/609109/2/PQ_225_30032012_U1929_p129_p130.pdf#search=%22google%22 >).

[37] . Available at http://portal.bsnl.in/portal/privacypolicy.htm, the privacy policy was found through a search engine and not through a link from the website. An RTI request was submitted to BSNL for a copy of its privacy policy as applicable to all its products, services and websites. BSNL responded by submitting a copy of this privacy policy even though the text of the policy does not clarify the scope.

[38] . See, <http://www.acttv.in/index.php/privacy-policy>

[39] . See <http://www.airtel.in/forme/privacy-policy>

[40] . See <www.tataindicom.com/Download/data-privacy-policy.pdf>

[41] . See <<www.aircel.com/AircelWar/appmanager/aircel/delhi?_nfpb=true&_pageLabel=P26400194591312373872061>>

[42] . See <https://www.vodafone.in/pages/privacy_policy.aspx?cid=kar>

[43] . See<< http://portal.bsnl.in/portal/privacypolicy.htm>>

[44] . See <http://www.acttv.in/index.php/privacy-policy>

[45] . See <https://www.vodafone.in/pages/privacy_policy.aspx?cid=kar>

[46] . See <http://www.tataindicom.com/Download/data-privacy-policy.pdf>

[47] . Ibid

[48] . The complaint center details are available here: < http://www.tccms.gov.in/Queries.aspx?cid=1>

[49] . Rules 5 and 6

[50] . Principle 2, Principle 3, Personal Information Protection and Electronic Documents Act 2000. Available at: << http://laws-lois.justice.gc.ca/eng/acts/P-8.6/index.html>>

[51] . Rule 5(7),

[52] . Principle 2

[53] . P. 21

[54] . Telecom Regulatory Policy CRTC 2009-657, Review of the Internet traffic management practices of Internet service providers << www.crtc.gc.ca/eng/archive/2009/2009-657.htm>>

[55] . Alex Cameron,CRTC Imposes Super-PIPEDA Privacy Protections for Personal Information Collected by ISPs, Privacy and Information Protection Bulletin, Fasken Martineau, << http://www.fasken.com/files/Publication/4317fd62-0827-4d1d-b836-5b932b3b21db/Presentation/PublicationAttachment/bafbf01e-365c-47f8-86a5-5cf7d7e43787/Bulletin_-_November_2009_-_Cameron.pdf . >> Accessed 21 May 2014

[56] . Bram D. Abramson, Grant Buchanan, Hank Intven, CRTC Shapes Canadian "Net Neutrality" Rules, McCarthy Tetrault. < http://www.mccarthy.ca/article_detail.aspx?id=4720 > Accessed 21 May 2014

[57] . The Privacy Act, 1988, Part III, available at << http://www.comlaw.gov.au/Series/C2004A03712.>>

[58] . Id, note 28, Schedule 3, 1.

[59] . Id, schedule 3, 2.

[60] . Id, schedule 3, 3.

[61] . Id, schedule 3, 4.

[62] . Id, schedule 3, 5.

[63] . Id, schedule 3, 6.

[64] . Id, schedule 3, 7.

[65] . Id, schedule 3, 8.

[66] . Id, schedule 3, 9.

[67] . Id, schedule 3, 10.

[68] . Telecommunications Act, Part 13 (Information or a document protected under Part 13 could relate to many forms of communications, including fixed and mobile telephone services, internet browsing, email and voice over internet telephone services. For telephone-based communications, this would include subscriber information, the telephone numbers of the parties involved, the time of the call and its duration. In relation to internet-based applications, the information protected under Part 13 would include the Internet Protocol (IP) address used for the session, and the start and finish time of each session.)

[69] . Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML.

[70] . Id, article 3.

[71] . Id, article 8.

[72] . Id, article 2, (d). (" (d) 'controller' shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law; ")

[73] . European Commission-IP-12/46, 25 January 2012, < http://europa.eu/rapid/press-release_IP-12-46_en.htm?locale=en.>

[74] . Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

[75] . Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC.

[76] . Rule 2 (h)

[77] . Rule 3 (ii)

[78] . Rule 3 (vii) and (viii)

[79] . Rule 2 (i)

[80] . Rule 4(iii), (iv)

[81] . Section 2(v) of the Act defines 'information'

[82] . Rule 4 (1).

[83] . Rule 5 (5)

[84] . Defined by Venkatarama Aiyar, J as: "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both" in Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, p. 268: G. P. Singh, Principles of Statutory Interpretation, 1th ed. 2010, Lexisnexis Butterworths Wadhwa Nagpur. The principle was applied to interpret statutory Rules in A. N. Sehgal v. Raje Ram Sheoram, AIR 1991 SC 1406.

[85] . Rule 6

[86] . Rule 8

[87] . 52^nd Report, Standing Committee on Information Technology, 24, available at < http://164.100.47.134/lsscommittee/Information%20Technology/15_Information_Technology_52.pdf. >

[88] . Panel Of Information Security Auditing Organisations, CERT-IN < http://www.cert-in.org.in/PDF/background.pdf>

[89] . Section 1, Guidelines for applying to CERT-In for Empanelment of IT Security Audition Organisation, < http://www.cert-in.org.in/PDF/InfoSecAuditorsEmpGuidelines.pdf>

[90] . Section 2.0, Guidelines for auditee organizations, Version 2.0, IT Security

Auditing Assignment, http://www.cert-in.org.in/PDF/guideline_auditee.pdf

[91] . See <http://www.cert-in.org.in/PDF/Empanel_org.pdf>

[92] . Rule 4

[93] . Rule 4

[94] . Rule 5 (7)

[95] . See << http://www.airtel.in/forme/privacy-policy>>

[96] . 'Information that can be used by itself to uniquely identify, contact or locate a person, or can be used with information available from other sources to uniquely identify an individual. For the purpose of this policy, sensitive personal data or information has been considered as a part of personal information.' Accessed at << http://www.airtel.in/forme/privacy-policy/collection+of+personal+info?contentIDR=53535f55-b787-4cb8-b399-d11d97f80c26&useDefaultText=0&useDefaultDesc=0 >>

[97] . Subscriber's name, father's name, mother's name, spouse's name, date of birth, current and previous addresses, telephone number, mobile phone number, email address, occupation and information contained in the documents used as proof of identity and proof of address. Information related to your utilization of our services which may include your call details, your browsing history on our website, location details and additional information provided by you while using our services. We may keep a log of the activities performed by you on our network and websites by using various internet techniques such as web cookies, web beacons, server log files, etc.

[98] . Password, Financial information -details of Bank account, credit card, debit card, or other payment instrument detail s, Physical, physiological and mental health condition.

[99] . Airtel states that if a customer does not provide information or consent for usage of personal information or subsequently withdraws consent, Airtel reserves the right to not provide the services or to withdraw the services for which the said information was sought, Avaliable at: < http://www.airtel.in/forme/privacy-policy/collection+of+personal+info?contentIDR=53535f55-b787-4cb8-b399-d11d97f80c26&useDefaultText=0&useDefaultDesc=0 >

[100] . See <www.airtel.in/applications/xm/FixedLineNodalOfficer.jsp>

[101] . See << http://www.airtel.in/applications/xm/BroadbandInternet_AppellateAuth.jsp >

[102] . See << http://www.airtel.in/about-bharti/about-bharti-airtel/ombuds-office>>

[103] . Stakeholders are defined as: employee, associate, strategic partner, vendor

[104] . See << http://www.trai.gov.in/WriteReadData/ConsumerGroup/Document/2013072331247805566Bharti_Airtel_CC_AA-23072013.pdf >>

[105] . Verification of customer's identity; Complete transactions effectively and bill for products and service; Respond to customer requests for service or assistance; Perform market analysis, market research, business and operational analysis; Provide, maintain and improve Airtel products and services; Anticipate and resolve issues and concerns with Airtel products and services; Promote and market Airtel products and services which it may consider of interest and benefit to customers; and, Ensure adherence to legal and regulatory requirements for prevention and detection of frauds and crimes.

[106] . See << http://www.airtel.in/forme/privacy-policy/disclosure+and+transfer?contentIDR=745792ad-d6af-4684-85d4-d85773e77356&useDefaultText=0&useDefaultDesc=0 >>

[107] . "Airtel may obtain a customer's consent for sharing personal information in several ways, such as in writing, online, through "click-through" agreements; orally, including through interactive voice response; or when a customer's consent is part of the terms and conditions pursuant to which Airtel provides a service."

[108] . Airtel and its employees may utilize some or all available personal information for internal assessments, measures, operations and related activities…"

[109] . Airtel may at its discretion employ, contract or include third parties external to itself for strategic, tactical and operational purposes. Such agencies though external to Airtel, will always be entities which are covered by contractual agreements. These agreements in turn include Airtel's guidelines to the management, treatment and secrecy of personal information

[110] . Airtel may transfer subscriber's personal information or other information collected, stored, processed by it to any other entity or organization located in India or outside India only in case it is necessary for providing services to a subscriber or if the subscriber has consented (at the time of collection of information) to the same. This may also include sharing of aggregated information with them in order for them to understand Airtel's environment and consequently, provide the subscriber with better services. While sharing personal information with third parties, adequate measures shall be taken to ensure that reasonable security practices are followed at the third party."

[111] . Airtel may share subscribers' personal information with Government agencies or other authorized law enforcement agencies (LEAs) mandated under law to obtain such information for the purpose of verification of identity or for prevention, detection, investigation including but not limited to cyber incidents, prosecution, and punishment of offences.

[112] . See<< http://www.airtel.in/forme/privacy-policy/security+practices+and+procedures?contentIDR=9346516c-c1a1-4bd7-bce0-6945236dceaa&useDefaultText=0&useDefaultDesc=0 >>

[113] . Airtel adopts reasonable security practices and procedures, in line with international standard IS/ISO/IEC 27001, to include, technical, operational, managerial and physical security controls in order to protect a customer's personal information from unauthorized access, or disclosure while it is under our control.

[114] . Airtel's security practices and procedures limit access to personal information on need-only basis. Further, its employees are bound by Code of Conduct and Confidentiality Policies which obligate them to protect the confidentiality of personal information.

[115] . Airtel takes adequate steps to ensure that its third parties adopt reasonable level of security practices and procedures to ensure security of personal information.

[116] . Airtel may retain a subscriber's personal information for as long as required to provide him/her with services or if otherwise required under any law.

[117] . When Airtel disposes of its customers' personal information, it uses reasonable procedures to erase it or render it unreadable (for example, shredding documents and wiping electronic media)."

[118] . Airtel maintains the security of its internet connections, however for reasons outside of its control, security risks may still arise. Any personal information transmitted to Airtel or from its online products or services will therefore be at a customer's own risk. It observes reasonable security measures to protect a customer's personal information against hacking and virus dissemination.

[119] . See <<http://www.tatadocomo.com/downloads/data-privacy-policy.pdf

[120] . Information that customers provide to non-TTL companies is not covered by TTL's Policy. For example: When customers download applications or make an online purchase from a non-TTL company while using TTL's Internet or wireless services, the information collected by the non-TTL company is not subject to this Policy. When you navigate to a non-TTL company from TTL websites or applications (by clicking on a link or an advertisement, for example), information collected by the non-TTL company is governed by its privacy policy and not TTL's Privacy Policy. If one uses public forums - such as social networking services, Internet bulletin boards, chat rooms, or blogs on TTL or non-TTL websites, any Personal Information disclosed publicly can be read, collected, or used by others. Once one chooses to reveal Personal Information on such a site, the information is publicly available, and TTL cannot prevent distribution and use of that information by other parties. Information on a wireless Customer 's location, usage and numbers dialed, which is roaming on the network of a non-TTL company will be subject to the privacy policy of the non-TTL company, and not TTL's Policy.

[121] . "Personal Information" is any information that relates to a natural person which, either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person.

[122] . Personal Information - Some general examples -TTL may collect Confidential Data in different forms such as Personal and other Information based on a customer's use of its products and services. Some examples include, Contact Information that allows us to communicate with you -- including your name, address, telephone number, and e-mail address; Billing information-- including payment data, credit history, credit card number, security codes, and service history.Equipment, Performance, TTL Website Usage, Viewing and other Technical Information about use of TTL's network, services, products or websites.

Technical & Usage Information is clarified in the FAQ's as information related to the services provided, use of TTL's network, services, products or websites. Examples of the Technical & Usage Information collected include: Equipment Information that identifies the equipment used on TTL's network, such as equipment type, IDs, serial numbers, settings, configuration, and software. Performance Information about the operation of the equipment, services and applications used on TTL's network, such as IP addresses, URLs, data transmission rates and latencies, location information, security characteristics, and information about the amount of bandwidth and other network resources used in connection with uploading, downloading or streaming data to and from the Internet. TTL Website Usage Information about the use of TTL websites, including the pages visited, the length of time spent, the links or advertisements followed and the search terms entered on TTL sites, and the websites visited immediately before and immediately after visiting one of TTL's sites.TTL also may collect similar information about a customer's use of its applications on wireless devices. Viewing Information about the programs watched and recorded and similar choices under Value added TTL services and products.

[123] . Ways in which TTL collects information: On the purchase or interaction about a TTL product or service provided; Automatically collected when one visits TTL's websites or use its products and services; Other sources, such as credit agencies.

[124] . See <http://www.tatateleservices.com/t-customercare.aspx>

[125] .See< http://www.trai.gov.in/WriteReadData/ConsumerGroup/Document/2013072341218463621Tata_CC_AA_1-23072013.pdf >

[126] . To provide the best customer experience possible; Provide the services a customer purchases, respond to customer questions; Communicate with customers regarding service updates, offers, and promotions; Deliver customized content and advertising that may be of interest to customers; Address network integrity and security issues; Investigate, prevent or take action regarding illegal activities, violations of TTL's Terms of Service or Acceptable Use Policies

[127] . Site functionality -Cookies and other tracking tools are used to help TTL analyze, manage and improve websites and storing customer preferences. Advertising TTL and its advertising partners, including Yahoo! and other advertising networks, use anonymous information gathered through cookies and other similar technologies, as well as other information TTL or its advertising networks may have, to help tailor the ads a customer sees on its sites.

[128] . TTL collects some Information on an anonymous basis. TTL also may anonymize the Personal Information it collects about customers. It may obtain aggregate data by combining anonymous data that meet certain criteria into groups.

[129] . In Other Circumstances: TTL may provide Personal Information to non-TTL companies or other third parties for purposes such as: To assist with identity verification, and to prevent fraud and identity theft; Enforcing its agreements and property rights; Obtaining payment for products and services that appear on customers' TTL billing statements, including the transfer or sale of delinquent accounts to third parties for collection; and to comply to legal and regulatory requirements. TTL shares customer Personal Information only with non-TTL companies that perform services on its behalf, and only as necessary for them to perform those services. TTL requires those non-TTL companies to protect any Personal Information they may receive in a manner consistent with this policy. TTL does not provide Personal Information to non-TTL companies for the marketing of their own products and services without a customer's consent. TTL may share aggregate or anonymous Information in various formats with trusted non-TTL entities, and may work with those entities to do research and provide products and services.

[130] . TTL provides Personal Information to non-TTL companies or other third parties (for example, to government agencies, credit bureaus and collection agencies) without consent for certain purposes, such as: To comply with court orders, subpoenas, lawful discovery requests and other legal or regulatory requirements, and to enforce our legal rights or defend against legal claims, To obtain payment for products and services that appear on customer TTL billing statements, including the transfer or sale of delinquent accounts to third parties for collection; To enforce its agreements, and protect our rights or property; To assist with identity verification, and to prevent fraud and identity theft; To prevent unlawful use of TTL's services and to assist in repairing network outages; To provide information regarding the caller's location to a public safety entity when a call is made to police/investigation agencies, and to notify the public of wide-spread emergencies; To notify or respond to a responsible governmental entity if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires or justifies disclosure without delay; To display name and telephone number on a Caller ID device;

[131] . Subject to applicable legal restrictions, such as those that exist for Customer Proprietary Network Information (CPNI), the TTL companies may share your Personal Information with each other to make sure your experience is as seamless as possible, and you have the benefit of what TTL has to offer.

[132] . Customers and Users should be aware that TTL affiliates and non-TTL companies that perform services on behalf of TTL may be located outside the country where customers access TTL's services. As a result, when customer Personal Information is shared with or processed by such entities, it may be accessible to government authorities according to the laws of those jurisdictions.

[133] . TTL has implemented appropriate security controls to protect Personal Information when stored or transmitted by TTL. It has established electronic and administrative safeguards designed to secure the information it collects, to prevent unauthorized access to or disclosure of that information and to ensure it is used appropriately. Some examples of those safeguards include: All TTL employees are subject to the internal Code of Business Conduct. The TTL Code requires all employees to follow the laws, rules, regulations, court and/or commission orders that apply to TTL's business such as legal requirements and company policies on the privacy of communications and the security and privacy of Customer records. Employees who fail to meet the standards embodied in the Code of Business Conduct are subject to disciplinary action, up to and including dismissal. TTL has implemented technology and security features and strict policy guidelines to safeguard the privacy of customer Personal Information. TTL has implemented encryption or other appropriate security controls to protect Personal Information when stored or transmitted by it; TTL limits access to Personal Information to those employees, contractors, and agents who need access to such information to operate, develop, or improve its services and products; TTL requires caller/online authentication before providing Account Information so that only the customer or someone who knows the customer's account Information will be able to access or change the information.

[134] . See << http://www.tatateleservices.com/download/aboutus/ttml/TTML-Annual-Report-2012-13.pdf >>

[135] . See << https://www.vodafone.in/pages/privacy_policy.aspx?cid=ker >>

[136] . "We have created this Privacy Policy to help you understand how we collect, use and protect your information when you visit our web and WAP sites and use our products and services."

[137] . Vodafone may hold information relating to customers that have been provided (such as on an application or registration form) or that it may has obtained from another source (such as its suppliers or from marketing organisations and credit agencies).

This information may include, amongst other things, a customer's name, address, telephone numbers, information on how a customer uses Vodafone's products and services (such as the type, date, time, location and duration of calls or messages, the numbers called and how much a customer spends, and information on his/her browsing activity when visiting one of Vodafone's group companies' websites), the location of a customer's mobile phone from time to time, lifestyle information and any other information collected in relation to his/her use of Vodafone's products and services ("information").

It may use cookies and other interactive techniques such as web beacons to collect non-personal information about how a customer interacts with its website, and web-related products and services.

It may use a persistent cookie to record details such as a unique user identity and general registration details on your PC. Vodafone states that most browser technology (such as Internet Explorer, Netscape etc) allows one to choose whether to accept cookies or not - a customer can either refuse all cookies or set their browser to alert them each time that a website tries to set a cookie.

[138] . In case of any concerns the privacy officer can be contacted at privacyofficer@vodafone.com. Additionally details of the Grievance Redressal Officers is provided via the TRAI website. (TRAI website: http://www.trai.gov.in/WriteReadData/ConsumerGroup/Document/2013072341567851124Vodafone_CC_AA-23072013.pdf _

[139] . The information that Vodafone collects from customers is held in accordance with applicable laws and regulations in India. It may be used by us for a number of purposes connected with its business operations and functions, which include:

2.1 Processing customer orders or applications;

2.2 Carrying out credit checking and scoring (unless Vodafone have agreed otherwise);

2.3 Providing the customer with products and/or services requested (including the presentation or elimination of calling or connected line identification) or administering his/her account;

2.4 Billing

2.5 Settling accounts with those who provide related services to Vodafone;

2.6 Dealing with requests, enquiries or complaints and other customer care related activities; and all other general administrative and business purposes;

2.7 Carrying out market and product analysis and marketing Vodafone and its group companies' products and services generally;

2.8 Contacting a customer (including by post, email, fax, short text message (SMS), pager or telephone) about Vodafone and its group companies' products and services and the products and services of carefully selected third parties which it think may be of interest to customers (unless a customer asks us in writing not to). Electronic marketing messages may not include a marketing facility.

2.9 Registering customer details and allocating or offering rewards, discounts or other benefits and fulfilling any requests that a customer may have in respect of our and our group companies' schemes.

2.10 inclusion in any telephone or similar directory or directory enquiry service provided or operated by us or by a third party (subject to any objection or preference a customer may have indicated to us in writing);

2.11 carrying out any activity in connection with a legal, governmental or regulatory requirement on Vodafone or in connection with legal proceedings, crime or fraud prevention, detection or prosecution;

2.12 carrying out activities connected with the running of Vodafone's business such as personnel training, quality control, network monitoring, testing and maintenance of computer and other systems and in connection with the transfer of any part of Vodafone's business with respect to a customer or a potential customer.

[140] . In the need for disclosure to third parties, the personal information will only be disclosed to the third parties below:

3.1 Vodafone's group companies who may in India use and disclose your information for the same purposes as us;

3.2 those who provide to Vodafone or its group companies products or services that support the services that we provide, such as our dealers and suppliers;

3.3 credit reference agencies (unless Vodafone has agreed otherwise) who may share your information with other organisations and who may keep a record of the searches Vodafone makes against a customer's name;

3.4 if someone else pays a customer's bill, such as a customer's employer, that person;

3.5 those providing telephone and similar directories or directory enquiry services

3.6 anyone Vodafone transfers business to in respect of which a person is a customer or a potential customer;

3.7 anyone who assists Vodafone in protecting the operation of the Vodafone India networks and systems, including the use of monitoring and detection in order to identify potential threats, such as hacking and virus dissemination and other security vulnerabilities;

3.8 persons to whom Vodafone may be required to pass customer information by reason of legal, governmental or regulatory authority including law enforcement agencies and emergency services;

3.9 any person or organisation as authorised by laws and regulations applicable in India.

If a customer has opted in to receiving marketing material from Vodafone, it may also provide customer's personal information to carefully selected third parties who we reasonably believe provide products or services that may be of interest to customers and who have contracted with Vodafone India to keep the information confidential, or who are subject to obligations to protect your personal information.

To opt-out of receiving Vodafone marketing materials,customers can send a 'Do Not Disturb' message to Vodafone. If a customer wishes to use Vodafone products or services abroad, his/her information may be transferred outside India to that country. Vodafone's websites and those of its group companies may also be based on servers located outside of India.

[141] . Vodafone takes reasonable steps to ensure that the personal information it collects, uses or discloses is accurate, complete, up-to-date and stored in a secure environment protected from unauthorized access, modification or disclosure.

Vodafone makes every effort to maintain the security of our internet connections; however for reasons outside of our control, security risks may still arise. Any personal information transmitted to it or from its online products or services will be at a customer's own risk, however, it will use its best efforts to ensure that any such information remains secure. Vodafone cannot protect any information that a customer makes available to the general public - for example, on message boards or in chat rooms.

Vodafone may use cookies and other interactive techniques such as web beacons to collect non-personal information about how a customer interacts.

[142] . See <http://www.vodafone.com>

[143] . See < http://www.vodafone.com/content/sustainability/operating_responsibly/privacy_and_security.html >

[144] . http://www.aircel.com/AircelWar/appmanager/aircel/karnataka?_nfpb=true&_pageLabel=P26400194591312373872061 (Scope - This Privacy Policy has been created to help customer's understand how Aircel collects, uses and protects customer information when one visits its web and WAP sites and use its products and services.)

[145] . This information may include, amongst other things, customer's name, father's name, mother's name, spouse's name, date of birth, address, telephone numbers, mobile phone number, email address, occupation and information contained in the documents used as proof of identity and proof of address. Aircel may also hold information related to utilization of its services. This may include customer call records, browsing history while surfing Aircel's website, location details and additional information provided by customer while using our services.

Aircel may keep a log of the activities performed by a customer on its websites by using various internet techniques such as web cookies, web beacons, server log files, etc.

Aircel may use cookies and other interactive techniques such as web beacons to collect non-personal information about how customers interact with Aircel's website, and web-related products and services

Aircel may use a persistent cookie to record details such as a unique user identity and general registration details on customer's Personal Computers.

[146] . In case a customer does not provide information or consent for usage of personal information or later on withdraw consent for usage of the personal information so collected, Aircel reserves the right to discontinue the services for which the said information was sought.

[147] . In case of any feedback or concern regarding protection of personal information, customers can contact Aircel's Circle Care ID. Alternatively, one may also direct your privacy-related feedback or concerns to the Circle Nodal Officer. (e.g. - Delhi Circle Nodal details are as mentioned below):

1. Name: Moushumi De

Contact Number: 9716199209

E-mail: nodalofficer.delhi@aircel.co.in

Further it provides for a general customer grievance redressal mechanism

Additionally details of the Grievance Redressal Officers is provided via the TRAI website.

To resolve all concerns, Aircel has established a 2-tier complaint handling mechanism. Level I: Our Customer Touch Points As an Aircel customer you have the convenience to contact at Customer Interface Points via email, post or telephone. Level II - Appellate AuthorityDespite the best efforts put by Aircel's executive, if a customer is still not satisfied with the resolution provided then he/she may submit his/her concern to the Appellate Authority of the circle. Comments - However this information contradicts the mechanism provided under Aircel's Manual of Practice for handling Consumer Complaints which provides for a 3-tier complaint handling mechanism.

[According to the DoT - The earlier three-tier complaint redressal mechanism - Call center, Nodal Center and Appellate Authority, has been replaced by a two-tier one by doing away with the level of Nodal Officer. This is because the Complaint Centres are essentially registration and response centres and do not deal with the resolution of complaints. They only facilitate registration of consumer complaint and the level at which a problem is resolved within a company depends upon the complexity of the issue involved.]

[148] . It may be used by us for a number of purposes connected with our business operations and functions, which include:

1. Processing customer orders or applications.

2. Carrying out credit checking and scoring (unless agreed otherwise).

3. Providing customers with products and/or services requested (including the presentation or elimination of calling or connected line identification) or administering a customer's account.

4. Billing (unless there exists another agreed method).

5. Settling accounts with those who provide related services to Aircel.

6. Dealing with requests, enquiries or complaints and other customer care related activities; and all other general administrative and business purposes.

7. Carrying out market and product analysis and marketing our and our group companies' products and services generally.

8. Contacting customers (including by post, email, fax, short text message (SMS), pager or telephone) about Aircel and its group companies' products and services and the products and services of carefully selected third parties which it think may be of interest to a customer (unless a customer says 'no' in writing). Electronic messages need not have an unsubscribe facility.

9. Registering customer details and allocating or offering rewards, discounts or other benefits and fulfilling any requests that customers may have in respect of Aircel and its group companies' loyalty or reward programmes and other similar schemes.

10. Inclusion in any telephone or similar directory or directory enquiry service provided or operated by Aircel or by a third party (subject to any objection or preference a customer may have indicated in writing).

11. Carrying out any activity in connection with a legal, governmental or regulatory requirement on Aircel or in connection with legal proceedings, crime or fraud prevention, detection or prosecution.

12. Carrying out activities connected with the running of business such as personnel training, quality control, network monitoring, testing and maintenance of computer and other systems and in connection with the transfer of any part of Aircel's business with respect to a customer or potential customer. Aircel may use cookies and other interactive techniques such as web beacons to collect non-personal information about how customers interact with our website, and web-related products and services, to:

● Understand what a customer likes and uses about Aircel's website.

● Provide a more enjoyable, customised service and experience

Aircel may use a persistent cookie to record details such as a unique user identity and general registration details on your Personal Computer.

[149] . Where Aircel needs to disclose your information to third parties, such third parties will be:

1. Group companies who may use and disclose your information for the same purposes as us.

2. Those who provide to Aircel or its group companies products or services that support the services that we provide, such as our dealers and suppliers.

3. Credit reference agencies (unless we have agreed otherwise) who may share your information with other organisations and who may keep a record of the searches Aircel make against your name.

4. If someone else pays a customer's bill, such as an employer.

5. Those providing telephone and similar directories or directory enquiry services.

6. Anyone Aircel transfers its business to in respect of which you are a customer or a potential customer.

7. Anyone who assists Aircel in protecting the operation of the Aircel networks and systems, including the use of monitoring and detection in order to identify potential threats, such as hacking and virus dissemination and other security vulnerabilities.

8. Persons to whom Aircel may be required to pass customer information by reason of legal, governmental or regulatory authority including law enforcement agencies and emergency services. If a customer has opted in to receiving marketing material from Aircel, it may also provide personal information to carefully selected third parties who it reasonably believes to provide products or services that may be of interest to customers and who have contracted with Aircel to keep the information confidential, or who are subject to obligations to protect customer personal information.

[150] . We adopt reasonable security practices and procedures to include, technical, operational, managerial and physical security control measures in order to protect your personal information from unauthorized access, or disclosure while it is under our control.Our security practices and procedures limit access to personal information on need to know basis. Further, our employees, to the extent they may have limited access to your personal information on need to know basis, are bound by Code of Conduct and Confidentiality Policies which obligate them to protect the confidentiality of personal informationWe take adequate steps to ensure that our third parties adopt reasonable level of security practices and procedures to ensure security of personal information

We may retain your personal information for as long as required to provide you with services or if otherwise required under any law. We, however assure you that Aircel does not disclose your personal information to unaffiliated third parties (parties outside Aircel corporate network and its Strategic and Business Partners) which could lead to invasion of your privacy

When we dispose off your personal information, we use reasonable procedures to erase it or render it unreadable (for example, shredding documents and wiping electronic media).

We will take reasonable steps to ensure that the personal information we collect, use or disclose is accurate, complete, up-to-date and stored in a secure environment protected from unauthorised access, modification or disclosure. We use a variety of security technologies and procedures to help protect your personal information from unauthorized access, use, or disclosure. For example, we store the personal information you provide on computer systems with limited access, which are located in controlled facilities. When we transmit highly confidential information (such as a credit card number or password) over the Internet, we protect it through the use of encryption, such as the Secure Socket Layer (SSL) protocol. If a password is used to help protect your accounts and personal information, it is your responsibility to keep your password confidential. Do not share this information with anyone. If you are sharing a computer with anyone you should always log out before leaving a site or service to protect access to your information from subsequent users.

We make every effort to maintain the security of our internet connections; however for reasons outside of our control, security risks may still arise. Any personal information transmitted to us or from our online products or services will therefore be your own risk, however we will use our best efforts to ensure that any such information remains secure.

[151] . http://www.acttv.in/index.php/privacy-policy

[152] . "When you register, we ask for information such as your name, email address, birth date, gender, zip code, occupation, industry, and personal interests.

The Company collects information about your transactions with us and with some of our business partners, including information about your use of products and services that we offer."

[153] . Not provided for on the TRAI website as ACT is not a telecom.

[154] . The Company can use information for the following general purposes: to customize the advertising and content you see, fulfill your requests for products and services, improve our services, contact you, conduct research, and provide anonymous reporting for internal and external clients.

The Company collects personal information when you register with the Company, when you use the Company products or services, when you visit the Company pages or the pages of certain partners of the Company. The Company may combine information about you that we have, with information we obtain from business partners or other companies. The Company shall have the right to pass on the same to its business associates, franchisees without referring the same to you.

[155] . Aircel provide the information to trusted partners who work on behalf of or with the Company under confidentiality agreements. These companies may use customer personal information to help the Company communicate about offers from the Company and marketing partners.

Aircel believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of the Company's terms of use, or as otherwise required by law.

Aircel transfer information about a customer if the Company is acquired by or merged with another company under a different management. In this event, the Company will notify a customer before information about a customer is transferred and becomes subject to a different privacy policy.

The Company plans to display targeted advertisements based on personal information. Advertisers (including ad serving companies) may assume that people who interact with, view, or click on targeted ads meet the targeting criteria - for example, women ages 18-24 from a particular geographic area.

The Company will not provide any personal information to the advertiser when customers interact with or view a targeted ad. However, by interacting with or viewing an ad a customer consents to the possibility that the advertiser will make the assumption that he/she meets the targeting criteria used to display the ad.

[156] . Rule 8.

For more details visit https://cis-india.org/internet-governance/blog/a-study-of-the-privacy-policies-of-indian-service-providers-and-the-43a-rules