Centre for Internet and Society

Aadhaar-enabled smartphones will ease money transfer

praskrishna — 2016-08-10T13:33:54Z

With its plans to make smartphones Aadhaar-enabled, the government hopes to provide users a means to do self-authentication and let businesses and banks verify the identity of their clients through their smartphones, a move that could potentially lead the way to a cashless society.

The article by Neha Alawadhi and Gulveen Aulakh was published in the Economic Times on August 10, 2016. Sunil Abraham was quoted.

"Iris and fingerprint sensors are now becoming a standard feature in smartphones anyway, and this requirement will only take a minor tweak to the operating system. Once enabled, people will be able to use phones to do self-authentication and KYC (know your customer)," Nandan Nikelani, former chairman of the Unique Identification Authority of India, told ET, welcoming the government's plan to make smartphones Aadhaar-enabled.

ET was the first to report that on July 27 a meeting between UIDAI, which administers Aadhaar, and senior executives of smartphone-makers discussed ways to allow smartphone handsets let citizens authenticate their fingerprints and iris on the phone to get services. The most immediate use for the Aadhaar-enabled smartphones is the Unified Payment Interface (UPI), the new payment system that allows money transfer between any two parties using mobile phones and a virtual payment address.

"The two-factor authentication in UPI is now being done with mobile phone as one factor, and MPIN as the second factor. But once you have Aadhaar authentication on the phone, then the second factor can be biometric authentication through Aadhaar," said Nilekani. Over time, the idea is to open Aadhaar authentication to third party apps, said another person familiar with the ongoing discussions, who did not wish to be named.

In effect, biometric and iris scan authentication could become one of the permissions a user grants to different third party apps, such as access to camera, contacts, phone book and so on. Handset makers have raised concerns about some security issues on using iris scan for Aadhar authentication. Also, companies such as Apple that have very closed ecosystems, would not be easy to get on board, several people told ET.

"The primary challenge lies in safe storing of the iris scan between the time it is captured by the camera and then sent to UIDAI server seeking authentication," said an industry insider, who is aware of the discussions, requesting anonymity. The proposal for smartphone makers includes a "hardware secure zone" where biometric data will be encrypted and sent out. It will not leave the electronic secure zone without encryption, and every phone doing Aadhaar authentication will be registered in the UID system.

"Unfortunately, from the biometric sensor the data goes to the hardware secure zone via the operating system. Therefore, the biometric data can be intercepted by the operating system before it is sent to the hardware secure zone," said Sunil Abraham, executive director at Bengaluru-based research organisation, the Centre for Internet and Society.

"The reluctance to make changes at the vendor level are mainly coming from a desire for control of biometric data for strategic and commercial purposes. Privacy and security are bogus reasons," Nilekani said, adding that both ends - the handset and the Aadhaar database -- will use the highest level of encryption.

Samsung India, which in May launched the Galaxy Tab Iris, a device that uses Aadhaar authentication, said it has taken care that its user's biometric data does not fall into the wrong hands. "We ensure that biometric data is encrypted as per UIDAI specifications in device itself for Galaxy Tab Iris," Sukesh Jain, vice president, Samsung India Electronics, told ET in an email response.

For more details visit https://cis-india.org/internet-governance/news/economic-times-august-10-2016-neha-alawadhi-gulveen-aulakh-aadhaar-enabled-smartphones-will-ease-money-transfer

Analysis of the Report of the Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security and Implications for India

Elonnai Hickok and Vipul Kharbanda — 2016-08-11T09:58:59Z

This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.

The United Nations Group of Experts on ICT issued their report on Developments in the Field of Information and Telecommunications in the Context of International Security in June, 2015. This paper analyses the report of the Group of Experts and and India’s compliance with its recommendations based on existing laws and policies. CIS believes that the report of the Group of Experts provides important minimum standards that countries could adhere to in light of challenges to international security posed by ICT developments. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Experts and similar international forums are useful and important forums for India to actively engage with.

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1. Introduction

2. Analysis of the Recommendations

2a. Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security

2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences

2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs; of the Recommendations

2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect

2e. States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression

2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public

2g. States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions

2h. States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty

2i. States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions

2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure

2k. States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity

3. Conclusion

1. Introduction

Cyberspace[1] touches every aspect of our lives, has enormous benefits, but is also accompanied by a number of risks. The international community at large has realized that cyberspace can be made stable and secure only through international cooperation. Traditionally, though there are a number of bilateral agreements and forms of cooperation the foundation of this cooperation has been the international law and the principles of the Charter of the United Nations.

To this end, on December 27, 2013 the United Nations General Assembly adopted Resolution No. 68/243 requesting the" Secretary General, with the assistance of a group of governmental experts,…… to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them, including norms, rules or principles of responsible behaviour of States and confidence-building measures, the issues of the use of information and communications technologies in conflicts and how international law applies to the use of information and communications technologies by States……. and to submit to the General Assembly at its seventieth session a report on the results of the study. "In pursuance of this resolution the Secretary General established a Group of Experts on Developments in the Field of Information and Telecommunications in the Context of International Security; the report was agreed upon by the Group of Experts in June, 2015. On 23 December 2015, the UN General Assembly unanimously adopted resolution 70/237[2] which welcomed the outcome of the Group of Experts and requested the Secretary-General to establish a new GGE that would report to the General Assembly in 2017.

The report developed by governmental experts from 20 States addresses existing and emerging threats from uses of ICTs, by States and non-State actors alike. These threats have the potential to jeopardize international peace and security. The experts gave recommendations which have built on consensus reports issued in 2010 and 2013, and offer ideas on norm-setting, confidence-building, capacity-building and the application of international law for the use of ICTs by States. Among other recommendations, the Report lays down recommendations for States for voluntary, non-binding norms, rules or principles of responsible behaviour to promote an open, secure, stable, accessible and peaceful ICT environment.

As larger international dialogues around cross border sharing of information and cooperation for cyber security purposes take place between the US and EU, it is critical that India begin to participate in these discussions.[3] It is also necessary to take cognizance of the importance of implementing internal practices and policies that are recognized and set strong standards at the international level.

This paper marks the beginning of a series of questions we will be asking and processes we will be analysing with the aim of understanding the role of international cooperation for cyber security and the interplay between privacy and security. The report analyses the existing norms in India in the backdrop of the recommendations in the Report of Experts to discover how interoperable Indian law and policy is vis-à-vis the recommendations made in this report as well as making recommendations towards ways India can enhance national policies, practices, and approaches to enable greater collaboration at the international level with respect to issues concerning ICTs and security.

2. Analysis of the Recommendations

The Group of Experts took into account existing and emerging threats, risks and vulnerabilities, in the field of ICT and offered the following recommendations for consideration by States for voluntary, non-binding norms, rules or principles of responsible behaviour.

2a. Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security

1. India has been working with a number of countries such as Belarus, Canada, China, Egypt, and France on a number of ICT-related isues thereby increasing international cooperation in the ICT sector, such as:

(i) setting up the India-Belarus Digital Learning Centre (DLC-ICT) to promote

development of ICT in Belarus;

(ii) sending an official business delegation to Canada to attend the 2^ndJoint Working Group meeting in ICTE;

(iii) holding Joint Working Groups on ICT with China.[4]

As can be seen from this, most of the cooperation with other countries is currently government to government (or government institution to government institution) cooperation. However, it must be noted that the entire digital revolution, including ICT necessarily involves ICT companies, and thus the role of the private sector in participating in these negotiations as well as the responsibilities of private sector ICT companies in cross border cooperation. Furthermore, the above examples are a few of the many agreements, Memoranda of Understanding (MOU), and negotiations that India has with other countries on cross border cooperation. It is important that, to the extent possible, these negotiations and transparent and easily publicly available.

2. The primary legislation governing ICT in India is the Information Technology Act, 2000 ("IT Act") which was passed to provide legal recognition for the transactions carried out by means of electronic data interchange and other means of electronic communication. The IT Act contains a number of provisions that declare illegal activities that threatenICT infrastructure, data, and individuals as illegal and provide for penalties for the same. These activities are:

Section 43 - Penalty and Compensation for damage to computer, computer system, etc.: If any person without permission: (i) accesses a computer, computer system or network; (ii) downloads, copies or extracts any data from such computer, computer system or network; (iii) introduces any computer contaminant or computer virus into, destroys, deletes or alters any information on, damages or disrupts any computer, computer system or network; (iv) denies or causes the denial of access to any computer, computer system or network by any means; (v) helps any person to access a computer, computer system or network in contravention of the Act; (vi) charges the services availed of by a person to the account of another person through manipulation; or (vii) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation to the person so affected.

Section 66 - Computer Related Offences: If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to Rs. 5,00,000/- or with both.

Section 66B - Punishment for dishonestly receiving stolen computer resource or communication device: Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to Rs. 1,00,000/- or with both.

Section 66C - Punishment for identity theft: Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

Section 66D - Punishment for cheating by personation by using computer resource: Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to Rs. 1,00,000/-.

Section 66E - Punishment for violation of privacy: Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding Rs. 2,00,000 or with both.

Section 66F - Punishment for cyber terrorism: (1) Whoever,- (A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by -

Denying or cause the denial of access to computer resource; or
Attempting to penetrate a computer resource; or
Introducing or causing to introduce any computer contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure, or

(B) knowingly or intentionally penetrates a computer resource and by by doing so obtains access to information that is restricted for reasons of the security of the State or foreign relations; or any restricted information with reasons to believe that such information may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.

(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life.

Section 67 - Publishing of information which is obscene in electronic form: Whoever publishes or transmits in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons, shall be punished on first conviction with a maximum imprisonment upto 2 years and a maximum fine upto Rs. 5,00,000 and for a second or subsequent conviction with a maximum imprisonment upto 5 years and also a maximum with fine upto Rs. 10,00,000.

Section 67A - Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form: Whoever publishes or transmits in the electronic form any material which contains sexually explicit act or conduct shall be punished on 1st conviction with a maximum imprisonment for 5 years and a maximum fine of upto Rs. 10,00,000 and for a 2nd or subsequent conviction with a maximum imprisonment of 7 years and a maximum fine upto Rs. 10,00,000.

Section 67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form: Whoever,- (a) publishes or transmits material in any electronic form which depicts children engaged in sexually explicit act or conduct; or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or (d) facilitates abusing children online; or (e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with a maximum imprisonment upto 5 years and a maximum fine upto Rs. 10,00,000 and in the event of a 2nd or subsequent conviction with a maximum imprisonment upto 7 years and also a maximum fine upto Rs. 10,00,000.[5]

Section 72 - Breach of confidentiality and privacy: Any person who, in pursuance of any of the powers conferred under this Act, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses the same to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rs. 1,00,000 or with both.

Section 72-A - Punishment for Disclosure of information in breach of lawful contract: Any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to Rs. 5,00,000 or with both.

3. The broad language and wide terminology used IT Act seems to cover most of the cyber crimes faced in India as of now, though the technical abilities to prevent the crimes still leave a lot to be desired. The prevention of cyber crime is not the domain of the IT Act and is rather the responsibility of the law enforcement authorities (note: there is no specific authority created under the IT Act, the Act is enforced by the police and other law enforcement authorities). That said, it may be a useful exercise to briefly compare these provisions with the crimes mentioned in the Convention on Cybercrime, 2001 (Budapest Convention), an international treaty that seeks to addresses threats in cyber space by promoting the harmonization of national laws and cooperation across jurisdictions, to examine if there are any that are not covered by the IT Act. A comparison of the principles in Budapest Convention and the IT Act is below:

S. No.	Article of the Budapest Convention	Provisions of the IT Act which cover the same
1	Article 2 - Illegal Access	Section 43(a) read with Section 66
2	Article 3 - Illegal Interception	Section 69 of the IT Act read with section 45 as well as Section 24 of the Telegraph Act, 1885
3	Article 4 - Data interference	Sections 43(d) and 43(f) read with section 66
4	Article 5 - System interference	Sections 43(d), (e) and (f) read with section 66
5	Article 6 - Misuse of devices	Not specifically covered
6	Article 7 - Computer related forgery	Computer related forgery is not specifically covered, but it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes
7	Article 8 - Computer related fraud	While not specifically covered by the IT Act, it is possible that when such a case comes to light, the provisions of Section 43 read with section 66 as well as provisions of the Indian Penal Code, 1860 would be pressed into service to cover such crimes
8	Article 9 - Offences relating to child pornography	Section 67B

As can be seen from the above discussion, most of the criminal acts elucidated in the Budapest Convention are covered under the IT Act except for the provision on misuse of devices, which requires the production, dealing, trading, etc. in devices whose sole objective is to violate the provisions of the IT Act, though it is possible that provisions of the Indian Penal Code, 1860 dealing with conspiracy and aiding and abetment may be pressed into service to cover such incidents.

4. Further, there are a number of laws which deal with critical infrastructure in India, however since these are mostly sectoral laws dealing with specific infrastructure sectors, the one most relevant to ICT is the Telegraph Act, 1885, which makes it illegal to interfere with or damage critical telegraph infrastructure. The specific penal provisions are listed below:

Section 23 - Intrusion into signal-room, trespass in telegraph office or obstruction: If any person - (a) without permission of competent authority, enters the signal room of a telegraph office of the Government, or of a person licensed under this Act, or (b) enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or (c) refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or (d) wilfully obstructs or impedes any such officer or servant in the performance of his duty, he shall be punished with fine which may extend to Rs. 500.

Section 24 - Unlawfully attempting to learn the contents of messages: If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act, he may (in addition to the fine with which he is punishable under section 23) be punished with imprisonment for a term which may extend to one year.

Section 25 - Intentionally damaging or tampering with telegraphs: If any person, intending - (a) to prevent or obstruct the transmission or delivery of any message, or (b) to intercept or to acquaint himself with the contents of any message, or (c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine or with both.

Section 25A - Injury to or interference with a telegraph line or post: If, in any case not provided for by section 25, any person deals with any property and thereby wilfully or negligently damages any telegraph line or post duly placed on such property in accordance with the provisions of this Act, he shall be liable to pay the telegraph authority such expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000:

5. The telecom service providers in India have to sign a license agreement with the Department of Telecommunications for the right to provide telecom services in various parts of India. The telecom regulatory regime in India has gone through a lot of turmoil and evolution and currently any service provider wanting to provide telecom services is issued a Unified License (UL) and has to abide by the terms of the UL. Whilst most of the prohibited activities under the UL refer to specific terms under the UL itself such as non payment of fees and not fulfilling obligations under the UL, section 38 provides for certain specific prohibited activities which may be relevant for the ICT sector. These prohibited activities include:

(i) Carrying objectionable, obscene, unauthorized or any other content, messages or communications infringing copyright and intellectual property right etc., which may be prohibited by the laws of India;

(ii) Provide tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through his equipment and network, to the authorised government agencies;

(iii) Ensuring that the Telecommunication infrastructure or installation thereof, carried out by it, should not become a safety or health hazard and is not in contravention of any statute, rule, regulation or public policy;

(iv) not permit any telecom service provider whose license has been revoked to use its services. Where such services are already provided, i.e. connectivity already exists, the license is required to immediately sever connectivity immediately.

2b. In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution in the ICT environment and the nature and extent of the consequences

The Department of Electronics and Information Technology (DEITY) has released the XIIth Five Year Plan on the information technology sector and the report of the Sub-Group on Cyber Security in the plan recognizes that cyber security threats emanate from a wide variety of sources and manifest themselves in disruptive activities that target individuals, businesses, national infrastructure and Governments alike. [6] The primary objectives of the plan for securing the country's cyber space are preventing cyber attacks, reducing national vulnerability to cyber attacks, and minimizing damage and recovery time from cyber attacks. The plan takes into account a number of focus areas to achieve its stated objectives, which are described briefly below:

Enabling Legal Framework - Setting up think tanks in Public-Private mode to identify gaps in the existing policy and frameworks and take action to address them including addressing the privacy concerns of online users.
Security Policy, Compliance and Assurance - Enhancement of IT product security assurance mechanism (Common Criteria security test/evaluation, ISO 15408 & Crypto Module Validation Program), establishing a mechanism for national cyber security index leading to national risk management framework.
Security Resarch&Development (R&D) - Creation of Centres of Excellence in identified areas of advanced Cyber Security R&D and Centre for Technology Transfer to facilitate transition of R&D prototypes to production, supporting R&D projects in thrust areas.
Security Incident - Early Warning and Response - Comprehensive threat assessment and attack mitigation by means of net traffic analysis and deployment of honey pots, development of vulnerability database.
Security awareness, skill development and training - Launching formal security education, skill building and awareness programs.
Collaboration - Establishing a collaborative platform/ think-tank for cyber security policy inputs, discussion and deliberations, operationalisation of security cooperation arrangements with overseas CERTs and industry, and seeking legal cooperation of international agencies on cyber crimes and cyber security.

2c. States should not knowingly allow their territory to be used for internationally wrongful acts using ICTs

As mentioned in response to (a) above, the primary legislation in India that deals with information technology and hence ICT as well is the Information Technology Act, 2000. The IT Act contains a number of penal provisions which make it illegal to indulge in a number of practices such as hacking, online fraud, etc. which have been recognised internationally as wrongful acts using ICT ( Please refer to answer under section (a) above for details of the penal provisions). Further section 1(2) of the IT Act provides that it also applies to any offence or contravention hereunder committed outside India by any person. This means that the IT Act also covers internationally wrongful acts using ICTs.

2d. States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect

There are a number of ways in which states can share information by using widely accepted formal processes precisely for this purpose. Some of the most common methods of international exchange used by India are given below.

MLATs

Although the exact process by which intelligence agencies in India share information with other agencies internationally is unclear, 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 and is designated as the National Central Bureau of India. A very useful tool in the effort to establish cross-border cooperation is Mutual Legal Assistance Treaties (MLATs). MLATs are extremely important for law enforcement agencies, governments and the private sector, since they act as formal mechanisms for access to data which falls under different jurisdictions. India currently has MLATs with the following 39 countries [7]

Although MLATs are considered to be a useful mechanism to ensure international cooperation, there are certain criticisms of the MLAT mechanism, such as:

The Lack of Clear Time Tables: Although MLATs do provide for broad time frames, they do not provide for more specific time tables and usually do not have any provision for an expedited process, for eg. it is believed that for requests to the U.S., processing can take from six weeks (for requests with minimal issues complying with U.S. legal standards) to 10 months.[8] Such a long time frame is clearly a burden on the investigation process and has been criticised for being ineffectual as they may not provide information fast enough;
Variation in Legal Standards: The legal standards for requesting information, for eg. the circumstances under which information can be requested or what information can be requested, differ from jurisdiction to jurisdiction. These differences are often not understood by requesting nations thus causing problems in accessing information;[9]
Inefficient Legal Process: The legal process to carry out requests through the MLAT process is often considered too cumbersome and inefficient.
Non-incorporation of Technological Challenges: MLATs have not been updated to meet the challenges brought about by technology, especially with the advent of networked infrastructure and ICT which raise issues of attribution and cross-jurisdictional access to information. [10]

Extradition

Extradition generally refers to the surrender of an alleged or convicted criminal by one State to another. More precisely, it may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial ~~and punishment~~ or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State. Extradition plays an important role in the international battle against crime and owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. India currently has extradition treaties with 37 countries and extradition arrangements with an additional 8 countries.[11]

Letters Rogatory

A Letter Rogatory is a formal communication in writing sent by the Court in which an action is pending to a foreign court or Judge requesting that the testimony of a witness residing within the jurisdiction of that foreign court be formally taken under its direction and transmitted to the issuing court making the request for use in a pending legal contest or action. This request entirely depends upon the comity of courts towards each other and usages of the court of another nation.

Apart from the above methods, India also regularly signs Bilateral MoUs with various countries on law enforcement and information sharing specially in cases related to terrorism. India also regularly helps and gets helps from Interpol, the International Criminal Police Organisation for purposes of investigation, arrests and sharing of information.[12]

Other than these formal methods states sometimes share information on an informal basis, where the parties help each other purely on the basis of goodwill, or sometimes even coercion. A recent example of informal cooperation between the security agencies of India and Nepal, although not in the realm of cyber space, was the arrest of YasinBhatkal, leader of the banned organisation Indian Mujahideen (IM) where the Indian security agencies allegedly sought informal help from their Neapaelese counterparts to arrest a person who was wantedhad long been wanted by the Indian security agencies for a long time. [13]

In the current environment of growing ICT and increased cross-border information sharing between individuals, the role of private companies who carry this information has become much more pronounced. This changed dynamic raises new problems, especially because manyin light of thesefact that a number of these companies do not have a physical presence in all the countries where they offer services over the internet. This leads to problems for states in terms of law enforcement, speciallyespecially if they want information from these companies who do not have an incentive or desire to provide itagainst their will. These circumstances lead to a number of prickly situations where states are often frustrated in using legal and formal means and often resort to informal pressure to get the companies to agree to data localization requests, encryption/decryption standards and keys, back doors, and other requests. etc., Tthe most famous of these in the Indian context being the disagreement/ heated exchange between the Indian government and Canada based Blackberry Limited (formerly Research in Motion) for data requests on their Blackberry enterprise platform.

2e. States, in ensuring the secure use of ICTs, should respect Human Rights Council resolutions 20/8 and 26/13 on the promotion, protection and enjoyment of human rights on the Internet, as well as General Assembly resolutions 68/167 and 69/166 on the right to privacy in the digital age, to guarantee full respect for human rights, including the right to freedom of expression

Right to Privacy

The right to privacy has been recognised as a constitutionally protected fundamental right in India through judicial interpretation of the right to life which is specifically guaranteed under the Constitution of India. Since the right to privacy was read into the constitution by judicial pronouncements, it could be said that the right to privacy in India is a creature of the courts at least in the Indian context. For this reason it may be useful to list out some of the major cases which deal with the right to privacy in India:

i. Kharak Singh v. Union of India¸[14] (1962)

a. For the first time, the courts recognized the right to privacy as a fundamental right, although in a minority opinion.

b. The decision lLocated the right to privacy under both the right to personal liberty as well as freedom of movement.

ii. Govind v. State of M.P.,[15] (1975)

a. Adopted the minority opinion of Kharak Singh as the opinion of the Supreme Court and held that the right to privacy is a fundamental right.

b. An individual deDerivesd the right to privacy from both the right to life and personal liberty as well as freedom of speech and movement.

c. The right to privacy was said to encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.

d. The court established that the rRight to privacy can be violated in the following circumstances (i) important countervailing interest which is superior, (ii) compelling state interest test, and (iii) compelling public interest.

iii. R. Rajagopal v. Union of India,[16] (1994)

a. Recognised that the rRight to privacy is a part of the right to personal liberty guaranteed under the constitution.

b. Recognizeds that the right to privacy can be both a tort (actionable claim) as well as a fundamental right.

c. Established that aA citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and nobody can publish anything regarding the same unless (i) he consents or voluntarily thrusts himself into controversy, (ii) the publication is made using material which is in public records (except for cases of rape, kidnapping and abduction), or (iii) he is a public servant and the matter relates to their discharge of official duties.

iv. People's Union for Civil Liberties v. Union of India,[17] (1996)

a. Extended the right to privacy to include communications privacy..

b. Laid down guidelines which form the backbone for checks and balances in interception provisions.

v. District Registrar and Collector, Hyderabad and another v. Canara Bank and another, [18] (2004)

a. Refers to personal liberty, freedom of expression and freedom of movement as the fundamental rights which give rise to the right to privacy.

b. The rRight to privacy deals with persons and not places.

c. Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders and (3) judicial orders.

vi. Selvi and others v. State of Karnataka and others,[19] (2010)

a. The Court acknowledged the distinction between bodily/physical privacy and mental privacy

b. Subjecting a person to techniques such as narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test without consent violates the subject's mental privacy
Although the judgements in the above cases (except for the case of People's Union for Civil Liberties v. Union of India) were pronounced given in a non telecomnot delivered in a telecommunications context, however the ease with which these principles were applied in the case of People's Union for Civil Liberties v. Union of India, suggests that these principles, where applicable, would be applied even in the context of ICT and are not limited to only the non-digital world.
It must however be noted that dueDue to some incongruities in the interpretation of the earlier judgments, the Supreme Court has recently referred the matter regarding the existence and scope of the right to privacy in India to a larger bench so as to bring clarity regarding the exact scope of the right to privacy in Indian law. The very concept that the Constitution of India guarantees a right to privacy was challenged due to an "unresolved contradiction" in judicial pronouncements. This "unresolved contradiction" arose because in the cases of M.P. Sharma & Others v. Satish Chandra & Others,[20] and Kharak Singh v. State of U.P. & Others, [21](decided byEigheighttandsixSixJudges respectively) the majority judgment of the Supreme Court had categorically denied the existence of a right to privacy under the Indian Constitution.

However somehow the later case of Gobind v. State of M.P. and another,[22] (which was decided by a two Judge Bench of the Supreme Court) relied upon the opinion given by the minority of two judges in Kharak Singh to hold that a right to privacy does exist and is guaranteed as a fundamental right under the Constitution of India without addressing the fact that this was a minority opinion and that the majority opinion had denied the existeance of the right to privacy. Thereafter a large number of cases have held the right to privacy to be a fundamental right, the most important of which are R. Rajagopal& Another v. State of Tamil Nadu & Others,[23] (popularly known as Auto Shanker's case) and People's Union for Civil Liberties (PUCL) v. Union of India & Another.[24] However, as was noticed by the Supreme Court in its August 11, 2015 order, all these judgments were decided by two or three Judges only which could not have overturned the judgments given by larger benches.[25] It was to resolve this judicial incongruity that the Supreme Court referred this issue to a larger bench to decide on the existence and scope of the right to privacy in India.

Freedom of Expression

Freedom of expression is one of the most important fundamental rights guaranteed under the constitution and has been vehemently protected by the judiciary on a number of occasions whenever it has been threatened. With the advent of social media, the entire dynamics of the freedom of speech and expression have changed in that it is now possible for every individual, with an internet connection and a Facebook/Twitter/Whatsapp account to reach millions of people without spending any extra money. This ability to reach a much larger and wider audience also led to greater friction between people holding different opinions. As the ease of the internet removed the otherwise filtering effects of geography and made it easier for people to communicate with each other, the advent of social media made it easier for them to communicate with a larger number of people at the same time. This ability to communicate within a group also gave rise to "debates" which often turngot ugly, highlighting giving way to concerns of how easy it is to harass people on social media.
This concern over of harassment led a number of people to call for greater censorship of social media and it was perhaps this concern which gave rise to the biggest challenge to the freedom of speech and expression in the online world, in the form of section 66A of the Information Technology Act, 2000 which made it an offense to send information which was "grossly offensive" (s.66A(a)) or caused "annoyance" or "inconvenience" while being known to be false (s.66A(c)). This section was used widely seen by Oonline activists, including the Centre for Internet and Society, widely considered this section as a tool for the government to silence those who criticised it. In fact, statistics compiled by the National Crime Records Bureau from 2014 revealed that 2,402 people, including 29 women, were arrested in 4,192 cases under section 66A which accounted for nearly 60% of all arrests under the IT Act, and 40% of arrests for cyber crimes in 2014. [26]
The section was finally struck down by the Supreme Court in 2015 in the case of Shreya Singhalv. Union of India, [27] on the ground of being too vague. This decision was seen as a huge victory for the campaign for freedom of speech and expression in the virtual world since this section was frequently used by the state (or rather government in power) to muzzle free speech against the incumbent government or political leaders. The offending section 66A made it an offence to send any information that was "grossly offensive or has menacing character" or "which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by makinguse of such computer resource or a communication device,". These terms quoted above were held by the Court to be too vague and wide and falling foul of the limited restrictions constitutionally imposed on the freedom of expression. The Supreme Court therefore, and were therefore struck down section 66A by the Supreme Court.

2f. A State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public

The researchers of this report could not locate any norms in India which address this issue. To the best of their knowledge, India does not support any ICT activity that intentionally damages critical infrastructure or impairs the use and operation of critical infrastructure.

2g. States should take appropriate measures to protect their critical infrastructure from ICT threats, taking into account General Assembly resolution 58/199 on the creation of a global culture of cybersecurity and the protection of critical information infrastructures, and other relevant resolutions

1. Section 70 of the IT Act gives the government the authority to declare any computer system which directly affects any critical information infrastructure to be a protected system. The term "critical information infrastructure" (CII) is defined in the IT Act "the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety." Once the government declares any computer resource as a protected system it gets the authority to prescribe information security practices for such as system as well as identify the persons who are authorised to access such systems. Any person who accesses a protected system in contravention of the provision of Section 70 of the IT Act shall be liable to be imprisoned for a maximum period of 10 years and also pay a fine. Further, section 70A of the IT Act gives the government the power to name a national nodal agency in respect of CII and also prescribe the manner for such agency to perform its duties. In pursuance of the powers under sections 70A the government has designated the National Critical Information Infrastructure Protection Centre (NCIIPC) situated in the JNU campus as the nodal agency [28]. This agency is a part of and under the administrative control of the National Technical Research Organisation (NTRO) [29].

2. The functions and manner of performing such functions by the NCIIPC has been prescribed in the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.[30] According to these Rules the functions of the NCIIPC include, inter alia, (i) the protecting and giving advice to reduce the vulnerabilities of CII against cyber terrorism, cyber warfare and other threats; (ii) identification of all critical infrastructure elements so that they can be notified by the government; (iii) providing strategic leadership and coherence across the government to respond to cyber security threats against CII; (iv) coordinating, sharing, monitoring, analysing and forecasting national level threats to CII for policy guidance, expertiese sharing and situational awareness for early warning alerts; (v) assisting in the development of appropriate plans, adoption of standards, sharing best practices and refinining procurement processes for CII; (vi) undertaking and funding research and development to innovate future technologies and collaborate with PSUs, academia and international partners for protection of CII; (vii) organising training and awareness programmes and development of audit and certification agencies for protection of CII; (viii) developing and executing national and international cooperation strategies for protection of CII; (ix) issuing guidelines, advisories and vulnerability notes relating to CII and practices, procedures, prevention and responses in consultation with CERT-In and other organisations; (x) exchanging information with CERT-In, especially in relation to cyber incidents; and (xi) calling for information and giving directions to critical sectors or persons having a critical impact on CII, in the event of any threat to CII.[31]

3. The NCIIPC had in the year 2013 released (non publicly) Guidelines for the Protection of National Critical Information Infrastructure [32] (CII Guidelines) which presented 40forty controls and respective guiding principles for the protection of CII. It is expected that these controls and guiding principles will help critical sectors to draw a CII protection roadmap to achieve safe, secure and resilient CII for India. The 'Guidelines for forty Critical Controls' is considered by the NCIIPC to be a significant milestone in its efforts for the protection of nation's critical information assets. These fort controls can be found in Section 6 (Best Practices, Controls and Guidelines) of the CII Guidelines. It must be noted that the CII Guidelines were drafted after taking inputs from a number of stakeholders such as the national Stock Exchange, the Airports Authority of India, National Thermal Power Corporation, Reserve Bank of India, Indian Railways, Telecom Regulatory Authority of India, Bharat Sanchar Nigam Limited, etc. This exercise of taking inputs from different stakeholders as well as developing a standard of as many as 40forty aspects of security seems to suggest that the NCIIPC is taking steps in the right direction.

4. The Recommendations on Telecommunication Infrastructure Policy issued by the Telecom Regulatory Authority of India in April, 2011 are silent on the issue of security of critical information infrastructure.s. However, the National Policy on Information Technology, 2012 (NPIT) does address the issue of security of cyber space by saying that the government should make efforts to do the following:

"9.1 To undertake policy, promotion and enabling actions for compliance to international security best practices and conformity assessment (product, process, technology & people) and incentives for compliance.

9.2 To promote indigenous development of suitable security techniques & technology through frontier technology research, solution oriented research, proof of concept, pilot development etc. and deployment of secure IT products/processes

9.3 To create a culture of cyber security for responsible user behavior & actions including building capacities and awareness campaigns.

9.4 To create, establish and operate an 'Information Security Assurance Framework'."

5. The Department of Information and Technology has formed the Computer Emergency Response Term of India (CERT-In) to enhance the security of India's Communications and Information Infrastructure through proactive action and effective collaboration. The Information Security Policy on Protection of Critical Infrastructure released by the CERT-In considers information recorded, processed or stored in electronic medium as a valuable asset and is geared towards protection of such "valuable asset". The policy recognises the importance of critical information infrastructure network and says that any disruption of the operation of such networks is likely to have devastating effects. The policy prescribes that personnel with program delivery responsibilities should also recognise the importance of security of information resources and their management. Thus Ddue to this recognition of the growing networked nature of government as well as critical organisations and the need to have a proper vulnerability analysis as well as effective management of information security risks, the Department of Technology prescribes the following information security policy:

"In order to reduce the risk of cyber attacks and improve upon the security posture of critical information infrastructure, Government and critical sector organizations are required to do the following on priority:

Identify a member of senior management, as Chief Information Security Officer (CISO), knowledgeable in the nature of information security & related issues and designate him/her as a 'Point of contact', responsible for coordinating security policy compliance efforts and to regularly interact with the Indian Computer Emergency Response Team (CERT-In), Department of Information Technology (DIT), which is the nodal agency for coordinating all actions pertaining to cyber security;
Prepare information security plan and implement the security control measures as per ISI/ISO/IEC 27001: 2005 and other guidelines/standards, as appropriate;
Carry out periodic IT security risk assessments and determine acceptable level of risks, consistent with criticality of business/functional requirements, likely impact on business/ functions and achievement of organisational goals/objectives;
Periodically test and evaluate the adequacy and effectiveness of technical security control measures implemented for IT systems and networks. Especially, Test and evaluation may become necessary after each significant change to the IT applications/systems/networks and can include, as appropriate the following:

➢ Penetration Testing (both announced as well as unannounced)

➢ Vulnerability Assessment

➢ Application Security Testing

➢ Web Security Testing

Carry out Audit of Information infrastructure on an annual basis and when there is major upgradation/change in the Information Technology Infrastructure, by an independent IT Security Auditing organization;..........

Report to CERT-In the cyber security incidents, as and when they occur and the status of cyber security, periodically."

6. The Department of Electronics and Information Technology (DEITY) released the National Policy on Electronics in 2012 which contained the government's take on the electronics industry in India. Section 5 of the said policy talks about cCyber sSecurity and states that to create a complete secure cyber eco-system in the country, careful and due attention is required for creation of well-d defined technology and systems, use of appropriate technology and more importantly development of appropriate products and& solutions. The priorities for action should be suitable design and development of indigenous appropriate products through frontier technology/product oriented research, testing and& validation of security of products meeting the protection profile requirements needed to secure the ICT infrastructure and cyber space of the country.

7. In addition the CERT-In has issued an Information Security Management Implementation Guide for Government Organisations. [33] CERT-In has also prescribed progressive steps for implementation of Information Security Management System in Government & Critical Sectors as per ISO 27001. The steps prescribed are as follows:

Identification of a Point-of-Contact (POC) / Chief Information Security Officer (CISO) for coordinating information security policy implementation efforts and communication with CERT-In
Information Security Awareness Programme
Determination of general Risk environment of the organization (low / medium / hHigh) depending on the nature of web and& networking environment, criticality of business functions and impact of information security incidents on the organization, business activities, assets / resources and individuals
Status appraisal and gap analysis against ISO 27001 based best information security practices
Risk assessment covering evaluation of threat perception and technical and &operational vulnerabilities
Comprehensive risk mitigation plan including selection of appropriate information security controls as per ISO 27001 based best information security practices
Documentation of agreed information security control measures in the form of information security policy manual, procedure manual and work instructions
Implementation of information security control measures (Managerial, Technical and& operational)
Testing & evaluation of technical information security control measures for their adequacy & effectiveness and audit of IT applications/systems/networks by an independent information security auditing organization (penetration testing, vulnerability assessment, application security testing, web security testing, LAN audits, etc)
Information Security Management assessment and certification against ISO 27001 standard, preferably by an independent & accredited organization

8. The Unified License for providing various telecommunication services also discusses contains certain terms which talk about how to engagedeal with telecommunication infrastructure in light of national security, which include the following recommendations:

Providing necessary facilities to the Government to counteract espionage, subversive act, sabotage or any other unlawful activity;
Giving full access to its network and equipment to the authorised persons for technical scrutiny and inspection;
Obtaininggettting security clearance for all foreign nationals deployed on for installation, operation and maintenance of the network;
Being completely responsible for the security of its network and having organizational policy on security and security management of its network including Network forensics, Network Hardening, Network penetration test, Risk assessment;
Auditing its network or getting the network audited from security point of view once in a financial year from a network audit and certification agency;
Inducting only those network elements into its telecommunications network, which have been got tested according tos per relevant contemporary Indian or International Security Standards;
Including all contemporary security related features (including communication security) as prescribed under relevant security standards while procuring the equipment and implementing all such contemporary features into the network;
Keeping requisite records of operations in the network;
Monitoring of all intrusions, attacks and frauds on his technical facilities and provide reports on the same to the Licensor.

Further statutory restrictions on tampering critical infrastructure are already contained in the Telegraph Act and have been discussed above, though the penalties provided may need to be increased if they are to act as a deterrent in this age where the stakes are much higher.

2h. States should respond to appropriate requests for assistance by another State whose critical infrastructure is subject to malicious ICT acts. States should also respond to appropriate requests to mitigate malicious ICT activity aimed at the critical infrastructure of another State emanating from their territory, taking into account due regard for sovereignty

There is yet to be a publicly acknowledged request from a foreign government asking the Indian government to take steps to prevent malicious ICT acts originating from its territory.

2i. States should take reasonable steps to ensure the integrity of the supply chain so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions;

Section 4 of the National Electronics Policy, 2012 talks about "Developing and Mandating Standards" and says that in order to curb the inflow of sub-standard and unsafe electronic products the government should mandate technical and safety standards which conform to international standards and do the following:

Develop Indian standards to meet specific Indian conditions including climatic, power supply, and handling and other conditions etc., by suitably reviewing existing standards.

Mandate technical standards in the interest of public health and safety.

Set up an institutional mechanism within Department of Information Technology for mandating compliance to standards for electronics products.

Develop a National Policy Framework for enforcement and use of Standards and Quality Management Processes.

Strengthen the lab infrastructure for testing of electronic products and encouraging development of conformity assessment infrastructure by private participation.

Create awareness amongst consumers against sub-standard and spurious electronic products.

Build capacity within the Government and public sector for developing and mandating standards.

Actively participate in the international development of standards in the Electronic System Design and Manufacturing sector.

2j. States should encourage responsible reporting of ICT vulnerabilities and share associated information on available remedies to such vulnerabilities to limit and possibly eliminate potential threats to ICTs and ICT-dependent infrastructure

Under section 70B of the IT Act, India has established a Computer Emergency Response Team (CERT-In) to serve as the national agency for incident responses. The functions mandated to be performed by CERT-In as per the IT Act are:

Collection, analysis and dissemination of information on cyber incidents;
Forecasting and alerts of cyber security incidents;
Emergency measures for handling cyber security incidents;
Coordination of cyber incidents response activities;
Issuing ofe guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, prevention, response and reporting of cyber incidents;
Such other functions relating to cyber security as may be prescribed.

CERT-In also publishes information regarding various cyber threats on its websites so as to keep internet users aware of the latest threats in the online world. Such information can be accessed both on the main page of the CERT-In website or under the Advisories section on the website. [34]

2k. States should not conduct or knowingly support activity to harm the information systems of the authorized emergency response teams (sometimes known as computer emergency response teams or cyber security incident response teams) of another State. A State should not use authorized emergency response teams to engage in malicious international activity.

There are no official or public reports of India using its CERT-In to harm the information systems of another state, although it is highly unlikely that any state would publicly acknowledge such activities even if it was indulging in them.

3. Conclusion

As can be seen from the discussion above, the statutory, regulatory and policy regime in India does seem to address most of the cyber security norms in some manner or the other, but these efforts almost always fall short of meeting some of the norms. While the Information Technology Act along with the Rules thereunder, as being the umbrella legislation for digital transactions in India, does address some of the issues mentioned above, it does not address some of the problems that arise out of a greater reliance on the internet such as spamming, trolling, and, online harassment, etc. Although some of these acts may be addressed by regular legislation by applying them in the online world however this does not always take into account the unique features and complexities of committing these acts/crimes in the online world.

In the area of exchange of information between states, India has entered into a number of MLATs and extradition treaties, and frequently issues Letters of Rogatory. Yet however these mechanisms may not be adequate to address the needs of crime prevention of crimes in the age of ICT, as crime prevention it often requires exchange of information inon r a real time basis which is not possible with the bureaucratic procedures involved in the MLAT process. There also needsd to be stronger standards which are applicable to ICT equipment, including imported equipment especially in light of the fact that security concerns related to Chinese ICT equipment that from China have been raised quite frequently in the past. There also needs to be a better system of reporting ICT vulnerabilities to CERT-In or other authorized agencies so that mitigation measure can be implemented in time.

It should be noted that the work of the Group of Experts is not complete since the General Assembly has asked the Secretary General to form a new Group of Experts which would report back to the Secretary General in 2017. It is imperative that the Government of India realise the importance of the work being done by the Group of Experts and take measures to ensure that a representative from India is included in or atleast the comments and concerns of India are included and addressed by the Group of Experts. Meanwhile, India can begin by strengthening domestic privacy safeguards, improving transparency and efficiency of relevant policies and processes, and looking towards solutions that respect rights and strengthen security. Brutent force solutions such as demands for back doors, unfair and unreasonable encryption regulation, and data localization requirements will not help propel India forward in international discussions, dialogues, or agreements on cross-border sharing of information. Though the recommendations from the Group of Experts are welcome, beyond a preliminary mention of privacy and freedom of expression, the rights of individuals - and the ways in which these can be protected, various components that go into supporting those rights including redress, transparency, and due process measures - was inadequately addressed.

[1] The terms "cyberspace" has been defined in the Oxford English Dictionary as the notional environment in which communication over computer networks occurs. Although the scope of this paper is not to discuss the meaning of this term, it was felt that a simple definition of the term would be useful to better define the parameters of the discussion.

[2] https://s3.amazonaws.com/unoda-web/wp-content/uploads/2016/01/A-RES-70-237-Information-Security.pdf

[3] https://www.justsecurity.org/29203/british-searches-america-tremendous-opportunity/

[4] http://deity.gov.in/content/country-wise-status

[5] Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes

Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years.

[6] http://deity.gov.in/sites/upload_files/dit/files/Plan_Report_on_Cyber_Security.pdf

[7] List of the countries is available at http://cbi.nic.in/interpol/mlats.php

[8] https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society

[9] Peter Swire& Justin D. Hemmings, "Re-Engineering the Mutual Legal Assistance Treaty Process", http://www.heinz.cmu.edu/~acquisti/SHB2015/Swire.docx, cf. https://www.lawfareblog.com/mlat-reform-some-thoughts-civil-society .

[10] MLATS and International Cooperation for Law Enforcement Purposes, available at http://cis-india.org/internet-governance/blog/presentation-on-mlats.pdf

[11] The full list of the countries with which India has agreed an MLAT is available at http://cbi.nic.in/interpol/extradition.php

[12] http://cbi.nic.in/interpol/assist.php

[13] http://www.firstpost.com/india/how-the-police-tracked-and-arrested-im-founder-yasin-bhatkal-1071755.html

[14] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641

[15] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014

[16] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212

[17] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=14584

[18] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=26571

[19] http://dspace.judis.nic.in/bitstream/123456789/26592/1/36303.pdf

[20] AIR 1954 SC 300. In para 18 of the Judgment it was held: "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction."

[21] AIR 1963 SC 1295. In para 20 of the judgment it was held: "… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III."

[22] (1975) 2 SCC 148.

[23] (1994) 6 SCC 632.

[24] (1997) 1 SCC 301.

[25] http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril

[26] http://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act

[27] http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf

[28] http://deity.gov.in/sites/upload_files/dit/files/S_O_18(E).pdf

[29]

[30] http://deity.gov.in/sites/upload_files/dit/files/GSR_19(E).pdf

[31] Rule 4 of the Information Technology (National Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2013.

[32] Since these Guidelines were not publicly released they are not available on any government website. In this paper we have relied on a version available on a private website at http://perry4law.org/cecsrdi/wp-content/uploads/2013/12/Guidelines-For-Protection-Of-National-Critical-Information-Infrastructure.pdf

[33] Available at http://www.cert-in.org.in/

[34] http://www.cert-in.org.in/

List of Acronyms

ICTs – Information Communication Technologies
GGE – Group of Experts
EU – European Union
DLC-ICT – India-Belarus Digital Learning Center
IT Act – Information Technology Act, 2000
UL - Unified License
DEITY – Department of Electronics and Information Technology
IT – Information Technology
ISO – International Organization for Standardisation
CERT – Computer Emergency Response Team
CERT-In - Computer Emergency Response Team, India
MLAT – Mutual Legal Assistance Treaty
CII – Critical Information Infrastructure
NCIIPC - National Critical Information Infrastructure Protection Centre
NTRO - National Technical Research Organisation
NPIT - National Policy on Information Technology
CISO - Chief Information Security Officer

For more details visit https://cis-india.org/internet-governance/blog/analysis-report-experts-information-telecommunications-security-implications-india

And now, Aadhaar-enabled smartphones for easy verification and money transfer

praskrishna — 2016-08-12T02:50:58Z

As reported earlier, the Indian government has planned to make Aadhaar-enabled smartphones , with which users would be able to self-authenticate and let businesses and banks verify the identity of their clients. This would also help in the government's aim of a cashless society.

The article was published in Business Insider on August 10, 2016. Sunil Abraham was quoted.

While applauding this plan Nandan Nikelani, former chairman of UIDAI told ET that, "Iris and fingerprint sensors are now becoming a standard feature in smartphones anyway, and this requirement will only take a minor tweak to the operating system. Once enabled, people will be able to use phones to do self-authentication and KYC (know your customer)."

In July, senior executives of UIDAI and smartphone companies met to discuss ways to allow smartphones let citizens authenticate their fingerprints and iris on the phone, so that they could avail government services from the comfort of their homes.

The most immediate use for these smartphones would be the Unified Payment Interface (UPI), a new payment system which would allow money transfer between any two parties by simply using their mobile phones and a virtual payment address.

"The two-factor authentication in UPI is now being done with mobile phone as one factor, and MPIN as the second factor. But once you have Aadhaar authentication on the phone, then the second factor can be biometric authentication through Aadhaar," said Nilekani.

With time, Aadhaar authentication will also be made open to third party apps, said another person familiar with the ongoing discussions on the condition of anonymity.

This would let users allow apps to access their biometric and iris scans, just like they grant access to other features like camera, contacts, SMS etc. However, from their end, handset makers have raised security concerns about using iris scan for Aadhar authentication.

"The primary challenge lies in safe storing of the iris scan between the time it is captured by the camera and then sent to UIDAI server seeking authentication," said an industry insider.

For this, the he proposal includes a "hardware secure zone" which would encrypt biometric data before sending it out. However, even this isn't a foolproof idea.

"Unfortunately, from the biometric sensor the data goes to the hardware secure zone via the operating system. Therefore, the biometric data can be intercepted by the operating system before it is sent to the hardware secure zone," said Sunil Abraham, executive director at Bengaluru-based research organisation, the Centre for Internet and Society.

To this, Nilekani said, "the reluctance to make changes at the vendor level is mainly coming from a desire for control of biometric data for strategic and commercial purposes. Privacy and security are bogus reasons." He added that both ends, the handset and the Aadhaar database, will be using the highest level of encryption.

For more details visit https://cis-india.org/internet-governance/news/business-insider-august-10-2016-and-now-aadhaar-enabled-smartphones-for-easy-verification-and-money-transfer

UIDAI and Welfare Services: Exclusion and Countermeasures (Bangalore, August 27)

sumandro — 2016-08-22T13:25:03Z

The Centre for Internet and Society (CIS) invites you to a one day workshop, on Saturday, August 27, 2016, to discuss, raise awareness of, and devise countermeasures to exclusion due to implementation of UID-based verification for and distribution of welfare services. We look forward to making this a forum for knowledge exchange and a learning opportunity for our friends and colleagues.

Invitation

Download (PDF)

Venue

Institution of Agricultural Technologists, No. 15, Queen’s Road, Bangalore, 560 052.

Location on Google Map: https://www.google.com/maps/place/Institution+of+Agricultural+Technologists/.

Agenda

10:00-10:30 Tea and Coffee

10:30-11:00 Introductions and Updates from Delhi Workshop

11:00-12:45 Reconfiguration of Welfare Governance by UIDAI

12:45-14:00 Lunch

14:00-15:00 Updates on Ongoing Cases against UIDAI

15:00-15:15 Tea and Coffee

15:15-16:45 Open Discussion on Countering Welfare Exclusion

16:45-17:00 Tea and Coffee

For more details visit https://cis-india.org/internet-governance/events/uidai-and-welfare-services-exclusion-and-countermeasures-aug-27

Policy Brief on the Report of the UN Group of Governmental Experts on ICT

Elonnai Hickok and Vipul Kharbanda — 2016-08-23T15:37:05Z

In light of the complex challenges and threats posed to, and by, the field of information telecommunications in cyberspace, in 1998 the draft resolution in the First Committee of the UN General Assembly was introduced and adopted without a vote (A/RES/53/70) ]. Since then, the Secretary General to the General Assembly has invited annual reports on the issue.

The most recent report, Developments in the Field of Information and Telecommunications in the Context of International Security, was published in June 2015. The 2015 Report touches upon a number of issues, including international cooperation, norms and principles for responsible state behavior, confidence building measures cross border exchange of information, and capacity building measures.

Annual reports will continue to be accepted by the General Assembly, and the 2016/2017 Group of Governmental Experts will have it's first meeting in August 2016. India was a member of the Group of Governmental Experts in 2013.

The Centre for Internet and Society (CIS) has written an article analyzing India’s alignment with the recommendations of the report of the Group of Governmental Experts. This policy brief attempts to articulate the major policy actions that may be considered by India to further incorporate and implement the principles enunciated in the Report.

CIS believes that the report of the Group of Governmental Experts provides important minimum standards that countries could adhere to in light of challenges to international security posed by ICT developments. Given the global nature of these challenges and the need for nations to holistically address such challenges from a human rights and security perspective, CIS believes that the Group of Governmental Experts and similar international forums are useful and important forums for India to continue to actively engage with.

Below are our specific recommendations:

(a) Consistent with the purposes of the United Nations, including to maintain international peace and security, States should cooperate in developing and applying measures to increase stability and security in the use of ICTs and to prevent ICT practices that are acknowledged to be harmful or that may pose threats to international peace and security;

India has entered into treaties on ICT issues with countries such as Belarus, Canada, China, Egypt, and France. Additionally, India’s IT Act addresses a number of the cyber crimes listed in the Budapest Convention. However, India is not yet a signatory to the Convention. This leaves scope for India to consider further forums and means of international cooperation to better realise this principle.

India has been invited to accede to the Budapest Convention in the past but for various tactical and political reasons has not yet agreed to do so. Although whether to accede to an International Convention or not is usually a well discussed and thought out policy decision of the diplomatic core of a country, the mutual assistance framework, however flawed it may be, would offer a better opportunity for India for international cooperation for increasing the stability and security of ICTs and prevent harmful ICT practices as envisaged in the Report of the Group of Governmental Experts.

(b) In case of ICT incidents, States should consider all relevant information, including the larger context of the event, the challenges of attribution [of cybercrime] in the ICT environment and the nature and extent of the consequences;

While the Department of Electronics and Information Technology (DEITY) as well as the Computer Emergency Response Team, India (CERT-In) have a number of policies which talk about maintaining security and means of addressing threats in the ICT environment, most ICT incidents, crimes or illegal activities using ICT, unless they involve large or government institutions, are handled by the regular police establishment of the country. The lack of capacity, both in terms of infrastructure and skill, of the regular police to adequately address most cyber crimes is an area that needs to be strengthened. The need for cyber security capacity building in India was highlighted in 2015 by the Standing Committee on Information Technology. It would be useful for dedicated cyber crime departments to be established in all districts. This would be a step in the right direction to provide the requisite capacity and resources to deal with the various technical issues such as attribution, jurisdiction, etc. arising out of ICT incidents.

(d) States should consider how best to cooperate to exchange information, assist each other, prosecute terrorist and criminal use of ICTs and implement other cooperative measures to address such threats. States may need to consider whether new measures need to be developed in this respect;

Owing to the growing irrelevance of physical and political borders in the age of globally networked devices, one of the most important issues arising out of ICTs and cyber crimes is the need for greater and more efficient exchange of information between nations. It has been widely accepted that sharing of information on a regular and sustained basis between nation states would be a very important tool. Limitations in the traditional mechanisms (MLATs, Letters Rogatory, etc.) such as the delay in accessing the information as well as denial of access due to differences in legal standards, present hurdles to the efficacy of law enforcement agencies only emphasize the urgency of developing a new mechanism of international information sharing that would be able to deal with ICT incidents, while at the same time protecting the freedoms and privacy rights of the citizens of the world. Exploration and participation in dialogues and solutions that are evolving at the international level around cross border sharing of information is key.

(i) States should take reasonable steps to ensure the integrity of the supply chain [of ICT equipment] so that end users can have confidence in the security of ICT products. States should seek to prevent the proliferation of malicious ICT tools and techniques and the use of harmful hidden functions;

While the National Electronics Policy of 2012 states that the government should mandate technical and safety standards in order to curb the inflow of sub-standard and unsafe electronic products, the government is yet to mandate any broad standards in the Indian market for ICT equipment. Considering the enormous security implications of compromised ICT this is an area where the government should prioritize and must act immediately. Mandating standards may require the establishment of a monitoring or enforcement mechanism to ensure that the standards are being implemented. This should be done with the aim of ensuring security while not hindering innovation or the flow of business. To achieve such a balance, research and discussion is needed within the government to formulate a mechanism which would ensure the safety and quality of ICT tools while at the same time ensuring that industry is not hindered.

Conclusion

The suggestions given above are some of the major lessons from the analysis of the UN Report on ICT which CIS believe the government of India could adopt and pursue to strengthen its enlightenment with the recommendations of the Report. It is also imperative that the Government of India continues to realise the importance of the work being done by the Group of Governmental Experts and take measures to ensure that a representative from India is included in future Groups. Meanwhile, India can take positive steps by strengthening domestic privacy safeguards, improving transparency and efficiency of relevant policies and processes, and looking towards solutions that respect rights and strengthen security.

For more details visit https://cis-india.org/internet-governance/blog/policy-brief-on-the-report-of-the-un-group-of-governmental-experts-on-ict

Extending Aadhaar to more areas is a hare-brained idea, it should be dropped

praskrishna — 2016-08-24T03:05:01Z

News reports that the mandatory use of Aadhaar could be extended to a host of new areas are extremely disturbing. According to these reports, the Unique Identification Authority of India (UIDAI) has identified 20 new areas for which Aadhaar can be made mandatory. This includes registration of companies and NGOs, insurance, competitive examinations and property and vehicle registration.

The article by Seetha was published in First Post on August 23, 2016. CIS article by Pranesh Prakash and Amber Sinha was quoted.

If this happens, then it confirms the worst suspicions of all those who are opposed to Aadhaar – and this spans ideological divides – that it can be used to seriously compromise individual privacy.

A villager scanning fingerprint for Aadhaar. Reuters file photo

The defenders of Aadhaar – mainly the previous and current governments, the UIDAI and Nandan Nilekani, the father of the Aadhaar – have always argued that these concerns are exaggerated. They have pointed out that Aadhaar does not take any details that are not already in the public domain – name, date of birth and permanent address – and that the biometric data is not shared with any of the authorities that seek verification by Aadhaar. That data remains with the UIDAI and it only confirms that a person with a particular Aadhaar number is who he claims he is.

But Aadhaar’s opponents have argued that the extensive use of Aadhaar allows disparate bits of information to be linked and this could become a genuine concern if this hare-brained idea gets official approval.

Now, there is certainly no doubt that Aadhaar is, in the absence of anything better, the best technological tool for establishing identity. It is not entirely fool-proof – there are issues relating to the fingerprints of manual labourers and iris scan of aged people or those with cataract – a solution needs to be found for this. According to this report by the Centre for Internet and Society, there was fingerprint authentication failure in 290 of 790 ration card holders in Andhra Pradesh who did not lift rations, and there was an ID mismatch in 93 instances. These problems notwithstanding, there is no denying that Aadhaar has helped in significantly containing (perhaps not entirely eliminating) the problem of identity theft for diversion of government doles and other benefits.

So making Aadhaar compulsory for such cases is perfectly justifiable. Indeed, the Act giving legal status to Aadhaar is called Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Mandatory quoting of Aadhaar can even be justified in the cases where duplication or falsification of identity can be used by criminals or those who fall foul of the law. Passports, for example, can be brought under the ambit of Aadhaar. Or even driving licences. A person whose licence has been suspended for repeated traffic violations should not be allowed to get another one under the same name or an assumed name.

But why should it be mandatory for bank accounts, if an individual is not interested in getting government doles? The quoting of Aadhaar for property transactions also does not make sense. If the idea is to prevent fraudulent transactions, it will not be foolproof. A person intending to sell an already sold property or one he does not own can do so even with an Aadhaar number, since people are allowed to own more than one piece of property. What will prevent this from happening is compulsory registration and digitisation of records as well as mandatory property titling; there has been little progress on both.

When filing of income tax returns is not possible without a PAN, there is little rationale for making Aadhaar mandatory for filing returns and even for PAN. It is not clear how quoting of Aadhaar is going to help in ensuring that fly-by-night companies and NGOs do not get established.

The insistence of Aadhaar on purchase of vehicles, landline and mobile phone connections and demat accounts is seriously violative of individual privacy and has enormous potential for misuse. The Act does give the government unbridled power to access data in the name of national security. This itself is worrying, since it can allow security agencies to go an random fishing expeditions to access personal financial transactions. Making it mandatory for even buying cars and phone connections (even though it is not illegal to own more than one vehicle or telephone connection) makes it even riskier – private agencies get access to one’s Aadhaar number. Forget security agencies, even unscrupulous private persons can track an individual’s personal activities, especially financial transactions.

As it is, investigating agencies want to tap Aadhaar and biometric data at the drop of a hat. The UIDAI had to approach the Supreme Court in 2014 against a Goa High Court order ordering it to share biometric details of everyone enrolled in the state for solving a gang rape case. Even after the Supreme Court ruled in favour of UIDAI, a Kerala special investigation team wanted it to share biometric details to solve another rape case. If Aadhaar now becomes mandatory for a host of financial and other transactions, the points of potential privacy breaches only increase.

The move to extend the mandatory use of Aadhaar has to be stopped in its tracks. The mandatory use should be limited to delivery of government welfare benefits and doles (after ensuring that glitches are eliminated) and security-related services like passports. For everything else, it should be purely voluntary. There can be no compromise on this.

For more details visit https://cis-india.org/internet-governance/news/first-post-august-23-2016-seetha-extending-aadhaar-to-more-areas-is-a-hare-brained-idea-it-should-be-dropped

Report on Understanding Aadhaar and its New Challenges

Japreet Grewal, Vanya Rakesh, Sumandro Chattapadhyay, and Elonnai Hickock — 2019-03-16T04:42:52Z

The Trans-disciplinary Research Cluster on Sustainability Studies at Jawaharlal Nehru University collaborated with the Centre for Internet and Society, and other individuals and organisations to organise a two day workshop on “Understanding Aadhaar and its New Challenges” at the Centre for Studies in Science Policy, JNU on May 26 and 27, 2016. The objective of the workshop was to bring together experts from various fields, who have been rigorously following the developments in the Unique Identification (UID) Project and align their perspectives and develop a shared understanding of the status of the UID Project and its impact. Through this exercise, it was also sought to develop a plan of action to address the welfare exclusion issues that have arisen due to implementation of the UID Project.

Report: Download (PDF)

This Report is a compilation of the observations made by participants at the workshop relating to myriad issues under the UID Project and various strategies that could be pursued to address these issues. In this Report we have classified the observations and discussions into following themes:

1. Brief Background of the UID Project

2. Legal Status of the UIDAI Project

Procedural issues with passage of the Act
Status of related litigation

3. National Identity Projects in Other Jurisdictions

Pakistan
United Kingdom
Estonia
France
Argentina

4. Technologies of Identification and Authentication

Use of Biometric Information for Identification and Authentication
Architectures of Identification
Security Infrastructure of CIDR

5. Aadhaar for Welfare?

Social Welfare: Modes of Access and Exclusion
Financial Inclusion and Direct Benefits Transfer

6. Surveillance and UIDAI

7. Strategies for Future Action

Annexure A Workshop Agenda

Annexure B Workshop Participants

1. Brief Background of the UID Project

In the year 2009, the UIDAI was established and the UID project was conceived by the Planning Commission under the UPA government to provide unique identification for each resident in India and to be used for delivery of welfare government services in an efficient and transparent manner, along with using it as a tool to monitor government schemes. The objective of the scheme has been to issue a unique identification number by the Unique Identification Authority of India, which can be authenticated and verified online. It was conceptualized and implemented as a platform to facilitate identification and avoid fake identity issues and delivery of government benefits based on the demographic and biometric data available with the Authority.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Act”) was passed as a money bill on March 16, 2016 and was notified in the gazette March 25, 2016 upon receiving the assent of the President. However, the enforceability date has not been mentioned due to which the bill has not come into force.

The Act provides that the Aadhaar number can be used to validate a person’s identity, but it cannot be used as a proof of citizenship. Also, the government can make it mandatory for a person to authenticate her/his identity using Aadhaar number before receiving any government subsidy, benefit, or service. At the time of enrolment, the enrolling agency is required to provide notice to the individual regarding how the information will be used, the type of entities the information will be shared with and their right to access their information. Consent of an individual would be obtained for using his/her identity information during enrolment as well as authentication, and would be informed of the nature of information that may be shared. The Act clearly lays that the identity information of a resident shall not be sued for any purpose other than specified at the time of authentication and disclosure of information can be made only pursuant to an order of a court not inferior to that of a District Judge and/or disclosure made in the interest of national security.

2. Legal Status of the UIDAI Project

In this section, we have summarised the discussions on the procedural issues with the passage of the Act. The participants had criticised the passage of the Act as a money bill in the Parliament. The participants also assessed the litigation pending in the Supreme Court of India that would be affected by this law. These discussions took place in the session titled, ‘Current Status of Aadhaar’ and have been summarised below.

Procedural Issues with Passage of the Act

The participants contested the introduction of the Act in the form of a money bill. The rationale behind this was explained at the session and is briefly explained here. Article 110 (1) of the Constitution of India defines a money bill as one containing provisions only regarding the matters enumerated or any matters incidental to the following: a) imposition, regulation and abolition of any tax, b) borrowing or other financial obligations of the Government of India, c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, d) appropriation of money out of CFI, e) expenditure charged on the CFI or f) receipt or custody or audit of money into CFI or public account of India. The Act makes references to benefits, subsidies and services which are funded by the Consolidated Fund of India (CFI), however the main objectives of the Act is to create a right to obtain a unique identification number and provide for a statutory mechanism to regulate this process. The Act only establishes an identification mechanism which facilitates distribution of benefits and subsidies funded by the CFI and this identification mechanism (Aadhaar number) does not give it the character of a money bill. Further, money bills can be introduced only in the Lok Sabha, and the Rajya Sabha cannot make amendments to such bills passed by the Lok Sabha. The Rajya Sabha can suggest amendments, but it is the Lok Sabha’s choice to accept or reject them. This leaves the Rajya Sabha with no effective role to play in the passage of the bill.

The participants also briefly examined the writ petition that has been filed by former Union minister Jairam Ramesh challenging the constitutionality and legality of the treatment of this Act as a money bill which has raised the question of judiciary’s power to review the decisions of the speaker. Article 122 of the Constitution of India provides that this power of judicial review can be exercised to look into procedural irregularities. The question remains whether the Supreme Court will rule that it can determine the constitutionality of the decision made by the speaker relating to the manner in which the Act was introduced in the Lok Sabha. A few participants mentioned that similar circumstances had arisen in the case of Mohd. Saeed Siddiqui v. State of U.P. [1].

where the Supreme Court refused to interfere with the decision of the Uttar Pradesh legislative assembly speaker certifying an amendment bill to increase the tenure of the Lokayukta as a money bill, despite the fact that the bill amended the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975, which was passed as an ordinary bill by both houses. The Court in this case held that the decision of the speaker was final and that the proceedings of the legislature being important legislative privilege could not be inquired into by courts. The Court added, “the question whether a bill is a money bill or not can be raised only in the state legislative assembly by a member thereof when the bill is pending in the state legislature and before it becomes an Act.”

However, it is necessary to carve a distinction between Rajya Sabha and State Legislature. Unlike the State Legislature, constitution of Rajya Sabha is not optional therefore significance of the two bodies in the parliamentary process cannot be considered the same. Participants also made another significant observation about a similar bill on the UID project (National Identification Authority of India (NIDAI) Bill) that was introduced before by the UPA government in 2010 and was deemed unacceptable by the standing committee on finance, headed by Yashwant Sinha. This bill was subsequently withdrawn.

Status of Related Litigation

A panellist in this session briefly summarised all the litigation that was related to or would be affected by the Act. The panellist also highlighted several Supreme Court orders in the case of KS Puttuswamy v. Union of India [2] which limited the use of Aadhaar. We have reproduced the presentation below.

KS Puttuswamy v. Union of India - This petition was filed in 2012 with primary concern about providing Aadhaar numbers to illegal immigrants in India. It was contended that this could not be done without a law establishing the UIDAI and amendment to the Citizenship laws. The petitioner raised concerns about privacy and fallibility of biometrics.
Sudhir Vombatkere & Bezwada Wilson [3] - This petition was filed in 2013 on grounds of infringement of right to privacy guaranteed under Article 21 of the Constitution of India and the security threat on account of data convergence.
Aruna Roy & Nikhil Dey [4] - This petition was filed in 2013 on the grounds of large scale exclusion of people from access to basic welfare services caused by UID. After their petition, no. of intervention applications were filed. These were the following:
Col. Mathew Thomas [5] - This petition was filed on the grounds of threat to national security posed by the UID project particularly in relation to arrangements for data sharing with foreign companies (with links to foreign intelligence agencies).
Nagrik Chetna Manch [6] - This petition was filed in 2013 and led by Dr. Anupam Saraph on the grounds that the UID project was detrimental to financial service regulation and financial inclusion.
S. Raju [7] - This petition was filed on the grounds that the UID project had implications on the federal structure of the State and was detrimental to financial inclusion.
Beghar Foundation - This petition was filed in 2013 in the Delhi High Court on the grounds invasion of privacy and exclusion specifically in relation to the homeless. It subsequently joined the petition filed by Aruna Roy and Nikhil Dey as an intervener.
Vickram Crishna – This petition was originally filed in the Bombay High Court in 2013 on the grounds of surveillance and invasion of privacy. It was later transferred to the Supreme Court.
Somasekhar – This petition was filed on the grounds of procedural unreasonableness of the UID project and also exclusion & privacy. The petitioner later intervened in the petition filed by Aruna Roy and Nikhil Dey in 2013.
Rajeev Chandrashekhar– This petition was filed on the ground of lack of legal sanction for the UID project. He later intervened in the petition filed by Aruna Roy and Nikhil Dey in 2013. His position has changed now.
Further, a petition was filed by Mr. Jairam Ramesh initially challenging the passage of the Act as a money bill but subsequently, it has been amended to include issues of violation of right to privacy and exclusion of the poor and has advocated for five amendments that were suggested to the Aadhaar Bill by the Rajya Sabha.

Relevant Orders of the Supreme Court

There are six orders of the Supreme Court which are noteworthy.

Order of Sept. 23, 2013 - The Supreme court directed that: 1) no person shall suffer for not having an aadhaar number despite the fact that a circular by an authority makes it mandatory; 2) it should be checked if a person applying for aadhaar number voluntarily is entitled to it under the law; and 3) precaution should be taken that it is not be issued to illegal immigrants.
Order of 26th November, 2013 – Applications were filed by UIDAI, Ministry of Petroleum & Natural Gas, Govt of India, Indian Oil Corporation, BPCL and HPCL for modifying the September 23rd order and sought permission from the Supreme Court to make aadhaar number mandatory. The Supreme Court held that the order of September 23rd would continue to be effective.
Order of 24th March, 2014 – This order was passed by the Supreme Court in a special leave petition filed in the case of UIDAI v CBI [8] wherein UIDAI was asked to UIDAI to share biometric information of all residents of a particular place in Goa to facilitate a criminal investigation involving charges of rape and sexual assault. The Supreme Court restrained UIDAI from transferring any biometric information of an individual without to any other agency without his consent in writing. The Supreme Court also directed all the authorities to modify their forms/circulars/likes so as to not make aadhaar number mandatory.
Order of 16th March, 2015 - The SC took notice of widespread violations of the order passed on September 23rd, 2013 and directed the Centre and the states to adhere to these orders to not make aadhaar compulsory.
Orders of August 11, 2015 – In the first order, the Central Government was directed to publicise the fact that aadhaar was voluntary. The Supreme Court further held that provision of benefits due to a citizen of India would not be made conditional upon obtaining an aadhaar number and restricted the use of aadhaar to the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene and the LPG Distribution Scheme. The Supreme Court also held that information of an individual that was collected in order to issue an aadhaar number would not be used for any purpose except when directed by the Court for criminal investigations. Separately, the status of fundamental right to privacy was contested and accordingly the Supreme Court directed that the issue be taken up before the Chief Justice of India.
Orders of October 16, 2015 – The Union of India, the states of Gujarat, Maharashtra, Himachal Pradesh and Rajasthan, and authorities including SEBI, TRAI, CBDT, IRDA , RBI applied for a hearing before the Constitution Bench for modification of the order passed by the Supreme Court on August 11 and allow use of aadhaar number schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana (PMJDY) and Employees' Providend Fund Organisation (EPFO). The Bench allowed the use of aadhaar number for these schemes but stressed upon the need to keep aadhaar scheme voluntary until the matter was finally decided.

Status of these orders
The participants discussed the possible impact of the law on the operation of these orders. A participant pointed out that matters in the Supreme Court had not become infructuous because fundamental issues that were being heard in the Supreme Court had not been resolved by the passage of the Act. Several participants believed that the aforementioned orders were effective because the law had not come into force. Therefore, aadhaar number could only be used for purposes specified by the Supreme Court and it could not be made mandatory. Participants also highlighted that when the Act was implemented, it would not nullify the orders of the Supreme Court unless Union of India asked the Supreme Court for it specifically and the Supreme Court sanctioned that.

3. National Identity Projects in Other Jurisdictions

A panellist had provided a brief overview of similar programs on identification that have been launched in other jurisdictions including Pakistan, United Kingdom, France, Estonia and Argentina in the recent past in the session titled ‘Aadhaar - International Dimensions’. This presentation mainly sought to assess the incentives that drove the governments in these jurisdictions to formulate these projects, mandatory nature of their adoption and their popularity. The Report has reproduced the presentation here.

Pakistan

The Second Amendment to the Constitution of Pakistan in 2000 established the National Database and Regulation Authority in the country, which regulates government databases and statistically manages the sensitive registration database of the citizens of Pakistan. It is also responsible for issuing national identity cards to the citizens of Pakistan. Although the card is not legally compulsory for a Pakistani citizen, it is mandatory for:

Voting
Obtaining a passport
Purchasing vehicles and land
Obtaining a driver licence
Purchasing a plane or train ticket
Obtaining a mobile phone SIM card
Obtaining electricity, gas, and water
Securing admission to college and other post-graduate institutes
Conducting major financial transactions

Therefore, it is pretty much necessary for basic civic life in the country. In 2012, NADRA introduced the Smart National Identity Card, an electronic identity card, which implements 36 security features. The following information can be found on the card and subsequently the central database: Legal Name, Gender (male, female, or transgender), Father's name (Husband's name for married females), Identification Mark, Date of Birth, National Identity Card Number, Family Tree ID Number, Current Address, Permanent Address, Date of Issue, Date of Expiry, Signature, Photo, and Fingerprint (Thumbprint). NADRA also records the applicant's religion, but this is not noted on the card itself. (This system has not been removed yet and is still operational in Pakistan.)

United Kingdom

The Identity Cards Act was introduced in the wake of the terrorist attacks on 11th September, 2001, amidst rising concerns about identity theft and the misuse of public services. The card was to be used to obtain social security services, but the ability to properly identify a person to their true identity was central to the proposal, with wider implications for prevention of crime and terrorism. The cards were linked to a central database (the National Identity Register), which would store information about all of the holders of the cards. The concerns raised by human rights lawyers, activists, security professionals and IT experts, as well as politicians were not to do with the cards as much as with the NIR. The Act specified 50 categories of information that the NIR could hold, including up to 10 fingerprints, digitised facial scan and iris scan, current and past UK and overseas places of residence of all residents of the UK throughout their lives. The central database was purported to be a prime target for cyber attacks, and was also said to be a violation of the right to privacy of UK citizens. The Act was passed by the Labour Government in 2006, and repealed by the Conservative-Liberal Democrat Coalition Government as part of their measures to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.”

Estonia

The Estonian i-card is a smart card issued to Estonian citizens by the Police and Border Guard Board. All Estonian citizens and permanent residents are legally obliged to possess this card from the age of 15. The card stores data such as the user's full name, gender, national identification number, and cryptographic keys and public key certificates. The cryptographic signature in the card is legally equivalent to a manual signature, since 15 December 2000. The following are a few examples of what the card is used for:

As a national ID card for legal travel within the EU for Estonian citizens
As the national health insurance card
As proof of identification when logging into bank accounts from a home computer
For digital signatures
For i-voting
For accessing government databases to check one’s medical records, file taxes, etc.
For picking up e-Prescriptions
(This system is also operational in the country and has not been removed)

France

The biometric ID card was to include a compulsory chip containing personal information, such as fingerprints, a photograph, home address, height, and eye colour. A second, optional chip was to be implemented for online authentication and electronic signatures, to be used for e-government services and e-commerce. The law was passed with the purpose of combating “identity fraud”. It was referred to the Constitutional Council by more than 200 members of the French Parliament, who challenged the compatibility of the bill with the citizens’ fundamental rights, including the right to privacy and the presumption of innocence. The Council struck down the law, citing the issue of proportionality. “Regarding the nature of the recorded data, the range of the treatment, the technical characteristics and conditions of the consultation, the provisions of article 5 touch the right to privacy in a way that cannot be considered as proportional to the meant purpose”.

Argentina

Documento Nacional de Identidad or DNI (which means National Identity Document) is the main identity document for Argentine citizens, as well as temporary or permanent resident aliens. It is issued at a person's birth, and updated at 8 and 14 years of age simultaneously in one format: a card (DNI tarjeta); it's valid if identification is required, and is required for voting. The front side of the card states the name, sex, nationality, specimen issue, date of birth, date of issue, date of expiry, and transaction number along with the DNI number and portrait and signature of the card's bearer. The back side of the card shows the address of the card's bearer along with their right thumb fingerprint. The front side of the DNI also shows a barcode while the back shows machine-readable information. The DNI is a valid travel document for entering Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela. (System still operational in the country)

4. Technologies of Identification and Authentication

The panel in the session titled ‘Aadhaar: Science, Technology, and Security’ explained the technical aspects of use of biometrics and privacy concerns, technology architecture for identification and inadequacy of infrastructure for information security. In this section, we have summarised the presentation and the ensuing discussions on these issues.

Use of Biometric Information for Identification and Authentication

The panelists explained with examples that identification and authentication were different things. Identity provides an answer to the question “who are you?” while authentication is a challenge-response process that provides a proof of the claim of identity. Common examples of identity are User ID (Login ID), cryptographic public keys and ATM or Smart cards while common authenticators are passwords (including OTPs), PINs and cryptographic private keys. Identity is public information but an authenticator must be private and known only to the user. Authentication must necessarily be a conscious process and active participation by the user is a must. It should also always be possible to revoke an authenticator. After providing this understanding of the two processes the panellist then explained if biometric information could be used for identification or authentication under the UID Project. Biometric information is clearly public information and it is questionable if it can be revoked. Therefore it should never be used for authentication, but only for identity verification. There is a possibility of authentication by fingerprints under the UID Project, without conscious participation of the user. One could trace the fingerprints of an individual from any place the individual has been in contact with. Therefore, authentication must certainly be done by other means. The panellist pointed out that there were five kinds of authentication under the UID Project, out of which two-factor authentication and one time password were considered suitable but use of biometric information and demographic information was extremely threatening and must be withdrawn.

Architectures of Identification

The panelists explained the architecture of the UID Project that has been designed for identification purposes, highlighted its limitations and suggested alternatives. His explanations are reproduced below.

Under the UID Project, there is a centralised means of identification i.e. the aadhaar number and biometric information stored in one place, Central Identification Data Repository (CIDR). It is better to have multiple means of identification than one (as contemplated under the UID Project) for preservation of our civil liberties. The question is what the available alternatives are. Web of trust is a way for operationalizing distributed identification but the challenge is how one brings people from all social levels to participate in it. There is a need for registrars who will sign keys and public databases for this purpose.

The aadhaar number functions as a common index and facilitates correlation of data across Government databases. While this is tremendously attractive it raises several privacy concerns as more and more information relating to an individual is available to others and is likely to be abused.

The aadhaar number is available in human readable form. This raises the risk of identification without consent and unauthorised profiling. It cannot be revoked. Potential for damage in case of identity theft increases manifold.

Under the UID Project, for the purpose of information security, Authentication User Agencies (“AUA”) are required to use local identifiers instead of aadhaar numbers but they are also required to map these local identifiers to the aadhaar numbers. Aadhaar numbers are not cryptographically secured; in fact they are publicly available. Hence this exercise for securing information is useless. An alternative would be to issue different identifiers for different domains and cryptographically embed a “master identifier” (in this case, equivalent of aadhaar number) into each local identifier.

All field devices (for example POS machines) should be registered and must communicate directly with UIDAI. In fact, UIDAI must verify the authenticity (tamper proof) of the field device during run time and a UIDAI approved authenticity certificate must be issued for field devices. This certificate must be made available to users on demand. Further, the security and privacy frameworks within which AUAs work must be appropriately defined by legal and technical means.

Security Infrastructure of CIDR

The panelists also enumerated the security features of the UID Project and highlighted the flaws in these features. These have been summarised below.

The security and privacy infrastructure of UIDAI has the following main features:

2048 bit PKI encryption of biometric data in transit
End-to-end encryption from enrolment/POS to CIDR
HMAC based tamper detection of PID blocks
Registration and authentication of AUAs
Within CIDR only a SHA 1 Hash of Aadhaar number is stored
Audit trails are stored SHA 1 encrypted. Tamper detection?
Only hashes of passwords and PINs are stored. (biometric data stored in original form though!)
Authentication requests have unique session keys and HMAC
Resident data stored using 100 way sharding (vertical partitioning). First two digits of Aadhaar number as shard keys
All enrolment and update requests link to partitioned databases using Ref IDs (coded indices)
All accesses through a hardware security module
All analytics carried out on anonymised data

The panellists pointed out the concerns about information security on account of design flaws, lack of procedural safeguards, openness of the system and too much trust imposed on multiple players. All symmetric and private keys and hashes are stored somewhere within UIDAI. This indicates that trust is implicitly assumed which is a glaring design flaw. There is no well-defined approval procedure for data inspection, whether it is for the purpose of investigation or for data analytics. There is a likelihood of system hacks, insider leaks, and tampering of authentication records and audit trails. The ensuing discussions highlighted that the UIDAI had admitted to these security risks. The enrolment agencies and the enrolment devices cannot be trusted. AUAs cannot be trusted with biometric and demographic data; neither can they be trusted with sensitive user data of private nature. There is a need for an independent third party auditor for distributed key management, auditing and approving UIDAI programs, including those for data inspection and analytics, whitebox cryptographic compilation of critical parts of the UIDAI programs, issue of cryptographic keys to UIDAI programs for functional encryption, challenge-response for run-time authentication and certification of UIDAI programs. The panellist recommended that there was a need to to put a suitable legal framework to execute this.

The participants also discussed that information infrastructure must not be made of proprietary software (possibility for backdoors for US) and there must be a third party audit with a non-negotiable clause for public audit.

5. Aadhaar for Welfare?

The Report has summarised the discussions that took place in the sessions on ‘Direct Benefits Transfers’ and ‘Aadhaar: Broad Issues - II’ where the panellists critically analysed the claims of benefits and inclusion of Aadhaar made by the government in light of the ground realities in states where Aadhaar has been adopted for social welfare schemes.

Social Welfare: Modes of Access and Exclusion

Under the Act, a person may be required to authenticate or give proof of the aadhaar number in order to receive subsidy from the government (Section 7). A person is required to punch their fingerprints on POS machines in order to receive their entitlement under the social welfare schemes such as LPG and PDS. It was pointed out in the discussions that various states including Rajasthan and Delhi had witnessed fingerprint errors while doling out benefits at ration shops under the PDS scheme. People have failed to receive their entitled benefits because of these fingerprint errors thus resulting in exclusion of beneficiaries [9]. A panellist pointed out that in Rajasthan, dysfunctional biometrics had led to further corruption in ration shops. Ration shop owners often lied to the beneficiaries about functioning of the biometric machines (POS Machines) and kept the ration for sale in the market therefore making a lot of money at the expense of uninformed beneficiaries and depriving them of their entitlements.

Another participant organisation also pointed out similar circumstances in the ration shops in Patparganj and New Delhi constituencies. Here, the dealers had maintained the records of beneficiaries who had been categorized as follows: beneficiaries whose biometrics did not match, beneficiaries whose biometrics matched and entitlements were provided, beneficiaries who never visited the ration shop. It had been observed that there were no entries in the category of beneficiaries whose biometrics did not match however, the beneficiaries had a different story to tell. They complained that their biometrics did not match despite trying several times and there was no mechanism for a manual override. Consequently, they had not been able to receive any entitlements for months. The discussions also pointed out that the food authorities had placed complete reliance on authenticity of the POS machines and claim that this system would weed out families who were not entitled to the benefits. The MIS was also running technical glitches as a result there was a problem with registering information about these transactions hence, no records had been created with the State authority about these problems. A participant also discussed the plight of 30,000 widows in Delhi, who were entitled to pension and used to collect their entitlement from post offices, faced exclusion due to transition problems under the Jan Dhan Yojana (after the Jandhan was launched the money was transferred to their bank accounts in order to resolve the problem of misappropriation of money at the hands of post office officials). These widows were asked to open bank accounts to receive their entitlements and those who did not open these accounts and did not inform the post office were considered bogus.

In the discussions, the participants also noted that this unreliability of fingerprints as a means of authentication of an individual’s identity was highlighted at the meeting of Empowered Group of Ministers in 2011 by J Dsouza, a biometrics scientist. He used his wife’s fingerprints to demonstrate that fingerprints may change overtime and in such an event, one would not be able to use the POS machine anymore as the machine would continue to identify the impressions collected initially.

The participants who had been working in the field had contributed to the discussions by busting the myth that the UID Project helped to identify who was poor and resolve the problem of exclusion due to leakages in the social welfare programs. These discussions have been summarised below.

It is important to understand that the UID Project is merely an identification and authentication system. It only helps in verifying if an individual is entitled to benefits under a social security scheme. It does not ensure plugging of leakages and reducing corruption in social security schemes as has been claimed by the Government. The reduction in leakage of PDS, for instance, should be attributed to digitization and not UID. The Government claims, that it has saved INR 15000 crore in provision of LPG on identification of 3.34 crore inactive accounts on account of the UID Project. This is untrue because the accounts were weeded by using mechanisms completely unrelated to the UID Project. Consequently, the savings on account of UID are only of INR 120 crore and not 15000 crore.
The UID Project has resulted in exclusion of people either because they do not have an aadhaar number, or they have a wrong identification, or there are errors of classification or wilful misclassification. About 99.7% people who were given aadhaar numbers already had an identification document. In fact, during enrolment a person is required to produce one of 14 identification documents listed under the law in order to get an aadhaar number which makes it very difficult for a person with no identity to become entitled to a social welfare scheme.

A participant condemned the Government’s claim that the UID Project had helped in removing fake, bogus and duplicate cards and said that these terms could not be used synonymously and the authorities had no clarity about the difference between the meanings of these terms. The UID Project had only helped in removal of duplicate cards but had not helped in combating the use of fake and bogus cards.

Financial Inclusion and Direct Benefits Transfer

The participants also engaged in the discussions about the impact of the UID project on financial inclusion in India in the sessions titled ‘Aadhaar: Broad Issues - I & II’. We have summarised these discussions below.

The UID Project seeks to directly transfer money to a bank account in order to combat corruption. The discussions highlighted that this was nothing but introducing a neo liberal thrust in social policy and that it was not feasible for various reasons. First, 95% of rural India did not have functioning banks and banks are quite far away. Second, in order to combat this dearth of banks the idea of business correspondents, who handled banking transactions and helped in opening of bank accounts, had been introduced which had created various problems. The Reserve Bank of India reported that there was dearth of business correspondents as there was very little incentive to become one; their salary is merely INR 4000. Third, there were concerns about how an aadhaar number was considered a valid document for Know Your Customer (KYC) checks. There was a requirement for scrutiny and auditing of documents submitted during the time of enrolment which, in the present scheme of things, could not be verified. Fourth, there were no restrictions on number of bank accounts that could be opened with a single aadhaar number which gave rise to a possibility of opening multiple and shell accounts on a single aadhaar number. Therefore, records only showed transactions when money was transferred from an aadhaar number to another aadhaar number as opposed to an account-to-account transfer. The discussion relied on NPCI data which shows which bank an aadhaar number is associated with but does not show if a transaction by an aadhaar number is overwritten by another bank account belonging to the same aadhaar number.

6. Surveillance and UIDAI

The participants had discussed the possibility of an alternative purpose for enrolling Aadhaar in the session titled ‘Privacy, Surveillance, and Ethical Dimensions of Aadhaar’. The discussion traced the history of this project to gain insight on this issue. We have summarised below the key take aways from this discussion.

There are claims that the main objective of launching the UID Project is not to facilitate implementation of social security schemes but to collect personal (financial and non-financial) information of the citizens and residents of the country to build a data monopoly. For this purpose, PDS was chosen as a suitable social security scheme as it has the largest coverage. Several participants suggested that numerous reports authored by FICCI, KPMG and ASSOCHAM contained proposals for establishing a national identity authority which threw some light on the commercial intentions behind information collection under the UID Project.

It was also pointed out that there was documented proof that information collected under the UID Project might have been shared with foreign companies. There are suggestions about links established between proponents of the UID Project and companies backed by CIA or the French Government which run security projects and deal in data sharing in several jurisdictions.

7. Strategies for Future Action

The participants laid down a list of measures that must be taken to take the discussions forward. We have enumerated these recommendations below.

Prepare and compile an anthology of articles as an output of this workshop.
Prepare position papers on specific issues related to the UID Project
Prepare pamphlets/brochures on issues with the UID Project for public consumption
Prepare counter-advertisements for Aadhaar
Publish existing empirical evidence on the flaws in Aadhaar.
Set up an online portal dedicated to providing updates on the UID Project and allows discussions on specific issues related to Aadhaar.
Use Social Media to reach out to the public. Regularly track and comment on social media pages of relevant departments of the government.
Create groups dedicated to research and advocacy of specific aspects of the UID Project.
Create a Coordination Committee preferably based in Delhi which would be responsible for regularly holding meetings and for preparing a coordinated plan of action. Employ permanent to staff to run the Committee.
Organise an advocacy campaign against use of Aadhaar in collaboration with other organisations and build public domain acceptance.
The campaign must specifically focus on the unfettered scope of UID and expanse, misrepresentation of the success of Aadhaar by highlighting real savings, technological flaws, status of pilot programs and increasing corruption on account of the UID Project
Prepare a statement of public concern regarding the UID Project and collect signatures from eminent persons including academics, technical experts, civil society groups and members of parliament.
Organise events and discussions on issues relating to Aadhaar and invite members og government departments to speak and discuss the issues.
Write to Members of Parliament and Members of Legislative Assemblies raising questions on their or their parties’ support for Aadhaar and silence on the problems created by the UID Project.
Organise public hearings in states like Rajasthan to observe and document ground realities of the UID Project and share these outcomes with the state government and media.
Plan a national social audit and public hearing on the working of UID Project in the country.
File Contempt Petitions in the Supreme Court and High Courts against mandatory use of Aadhaar number for services not allowed by the Supreme Court.
Reach out to and engage with various foreign citizens and organisations that have been fighting on similar issues. The organisations and individuals who could be approached would include EPIC, Electronic Frontier foundation, David Moss, UK, Roger Clarke, Australia, Prof. Ian Angel, Snowden, Assange and Chomsky.
Work towards increasing awareness about the UID Project and gaining support from the student and research community, student organisations, trade unions, and other associations and networks in the unorganised sector.

Annexure A – Workshop Agenda

May 26, 2016

9:00-9:30	Registration
9:30-10:00	Prof. Dinesh Abrol - Welcome Self-introduction and expectations of participants Dr. Usha Ramanathan - Overview of the Workshop
10:00-11:00	Session 1: Current Status of Aadhaar Dr. Usha Ramanathan, Legal Researcher, New Delhi - What the 2016 Law Says, and How it Came into Being S. Prasanna, Advocate, New Delhi - Status and Force of Supreme Court Orders on Aadhaar Discussion
11:00-11:30	Tea Break
11:30-13:30	Session 2: Direct Benefits Transfers Prof. Reetika Khera, Indian Institute of Technology, Delhi - Welfare Needs Aadhaar like a Fish Needs a Bicycle Prof. R. Ramakumar, Tata Institute of Social Sciences, Mumbai - Aadhaar and the Social Sector: A critical analysis of the claims of benefits and inclusion Ashok Rao, Delhi Science Forum - Cash Transfers Study Discussion
13:30-14:30	Lunch
14:30-16:00	Session 3: Aadhaar: Science, Technology, and Security Prof. Subashis Banerjee, Dept of Computer Science & Engineering, IIT, Delhi - Privacy and Security Issues Related to the Aadhaar Act Pukhraj Singh, Former National Cyber Security Manager, Aadhaar, New Delhi - Aadhaar: Security and Surveillance Dimensions Discussion
16:00-16:30	Tea Break
16:30-17:30	Session 4: Aadhaar - International Dimensions Joshita Pai, Center for Communication Governance, National Law University, Delhi - Biometrics and Mandatory IDs in Other Parts of the World Dr. Gopal Krishna, Citizens Forum for Civil Liberties - International Dimensions of Aadhaar Discussion
17:30-18:00	High Tea

May 27, 2016

9:30-11:00	Session 5: Privacy, Surveillance and Ethical Dimensions of Aadhaar Prabir Purkayastha, Free Software Movement of India, New Delhi - Surveillance Capitalism and the Commodification of Personal Data Arjun Jayakumar, SFLC - Surveillance Projects Amalgamated Col Mathew Thomas, Bengaluru - The Deceit of Aadhaar Discussion
11:00-11:30	Tea Break
11:30-13:00	Session 6: Aadhaar - Broad Issues I Prof. G Nagarjuna, Homi Bhabha Center for Science Education, Tata Institute of Fundamental Research, Mumbai - How to prevent linked data in the context of Aadhaar Dr. Anupam Saraph, Pune - Aadhaar and Moneylaundering Discussion
13:00-14:00	Lunch
14:00-15:30	Session 7: Aadhaar - Broad Issues II Prof. MS Sriram, Visiting Faculty, Indian Institute of Management, Bangalore - Financial lnclusion Nikhil Dey, MKSS, Rajasthan - Field witness: Technology on the Ground Prof. Himanshu, Centre for Economic Studies & Planning, JNU - UID Process and Financial Inclusion Discussion
15:30-16:00	Session 8: Conclusion
16:00-18:00	Informal Meetings

Annexure B – Workshop Participants

Anjali Bhardwaj, Satark Nagrik Sangathan

Dr. Anupam Saraph

Arjun Jayakumar, Software Freedom Law Centre

Ashok Rao, Delhi Science Forum

Prof. Chinmayi Arun, National Law University, Delhi

Prof. Dinesh Abrol, Jawaharlal Nehru University

Prof. G Nagarjuna, Homi Bhabha Center for Science Education, Tata Institute of Fundamental Research, Mumbai

Dr. Gopal Krishna, Citizens Forum for Civil Liberties

Prof. Himanshu, Jawaharlal Nehru University

Japreet Grewal, the Centre for Internet and Society

Joshita Pai, National Law University, Delhi

Malini Chakravarty, Centre for Budget and Governance Accountability

Col. Mathew Thomas

Prof. MS Sriram, Indian Institute of Management, Bangalore

Nikhil Dey, Mazdoor Kisan Shakti Sangathan

Prabir Purkayastha, Knowledge Commons and Free Software Movement of India

Pukhraj Singh, Bhujang

Rajiv Mishra, Jawaharlal Nehru University

Prof. R Ramakumar, Tata Institute of Social Sciences, Mumbai

Dr. Reetika Khera, Indian Institute of Technology, Delhi

Dr. Ritajyoti Bandyopadhyay, Indian Institute of Science Education and Research, Mohali

S. Prasanna, Advocate

Sanjay Kumar, Science Journalist

Sharath, Software Freedom Law Centre

Shivangi Narayan, Jawaharlal Nehru University

Prof. Subhashis Banerjee, Indian Institute of Technology, Delhi

Sumandro Chattapadhyay, the Centre for Internet and Society

Dr. Usha Ramanathan, Legal Researcher

Note: This list is only indicative, and not exhaustive.

[1] Civil Appeal No. 4853 of 2014

[2] WP(C) 494/2012

[3] . WP(C) 829/2013

[4] WP(C) 833/2013

[5] WP (C) 37/2015; (Earlier intervened in the Aruna Roy petition in 2013)

[6] WP (C) 932/2015

[7] Transferred from Madras HC 2013.

[8] SLP (Crl) 2524/2014 filed against the order of the Goa Bench of the Bombay HC in CRLWP 10/2014 wherein the High Court had directed UIDAI to share biometric information held by them of all residents of a particular place in Goa to help with a criminal investigation in a case involving charges of rape and sexual assault.

[9] See :http://scroll.in/article/806243/rajasthan-presses-on-with-aadhaar-after-fingerprint-readers-fail-well-buy-iris-scanners

For more details visit https://cis-india.org/internet-governance/blog/report-on-understanding-aadhaar-and-its-new-challenges

Is Facebook tracking your virtual footprints?

praskrishna — 2011-11-24T03:02:00Z

Social media experts claim number of cases of privacy violations against the site has increased in past few months; Facebook rubbishes the allegations. This article by Sheetal Sukhija was published in MidDay on 22 November 2011.

If you thought your online footprints would be erased by merely clicking on the 'delete web history' option and no one would ever know about your virtual movements, think again.

For, some popular social networking sites have been accused of tracking their users' movements on the Internet even when they log out from the sites.

According to reports in the international media, Facebook, the virtual face of around 80 crore people across the globe, is battling a series of legal cases for alleged violating users' privacy worldwide.

While the social media giant has categorically said that they have not misused any user data, internet experts have dubbed the website 'the big brother of new media'.

"Many users claim that when they log onto their accounts, Facebook automatically installs a cookie onto a user's browser, which keeps tracking their movement on the internet.

We believe that Facebook might be using this just to boost their marketing and not to sell this data to any third party," said Sunil Abraham, Executive Director, Centre For Internet and Society.

Experts also believe that using such strategies have now made Facebook the world leader when it comes to credible demographic information.

"Facebook has achieved the status of possessing the most accurate demographic information. It is a credible source to understand consumer habits of a single unique user and even user groups. However, using such information is surely a violation of privacy," he added.

Former member of NASSCOM, Pratap Reddy, believes that often people ignore the 'fine print' or the agreement page while creating an account on a social networking site or elsewhere on the net. "When users sign up on these social networking websites, they often ignore the fine print.

When legal cases come up, companies often defend their stance by saying that their agreement page (or privacy policy page) mentioned all such things and make up a leeway for themselves," argued Reddy.

He added, "This is surely a violation, but there is also a positive side to this. Such websites are only trying to facilitate users better, based on their past web history. This helps them put you onto people/issues/topics that you have previously searched - like a mediator," added Reddy.

All about marketing?
Experts argued that this is not for the first time a website is being sued for such an act. In the past, Google, Adobe, Microsoft, Yahoo and other online advertising agencies too have been criticised for using such controversial tracking cookie technology.

According to reports, users from across the world have been taking legal recourse after pointing out that Facebook used cookie technology to track their virtual movements even after they have logged out of the social networking site.

Australian blogger Nik Cubrilovic is the latest user to join the growing list of people suing the website for violating federal wiretap laws, reported a UK-based tabloid.

The other side
Defending their stance, Facebook argued in its official statement that they are not tracking users across the web.

Facebook's official stance: Facebook does not track users across the web. Instead, we use cookies on social plugins to personalise content, to help maintain and improve what we do, or for safety and security.

No information we receive when you see a social plugins is used to target ads, we delete or anonymise this information within 90 days, and we never sell your information.

Specific to logged out cookies, they are used for safety and protection. They are used for identifying spammers and phishers, detecting when somebody unauthorised is trying to access your account, helping you get back into your account if you get hacked, disabling registration for a under-age users who try to re-register with a different birth date, powering account security features such as 2nd factor login approvals and notification and identifying shared computers to discourage the use of 'keep me logged in'.

Security tips
Internet security software experts suggest that installing strong anti-virus software would be the first step towards protecting your privacy.

Installing an anti-virus software
Every such software has a social network control option that prompts users when any unsolicited cookie is installed. By using this option, a user holds the right to refuse such installations.

Read the original article published in MidDay here

For more details visit https://cis-india.org/news/facebook-tracking-footprints

An Interview with Dr. Ann Cavoukian, Information and Privacy Commissioner, Ontario, Canada

elonnai — 2011-12-03T01:26:04Z

Elonnai Hickok interviewed Dr. Ann Cavoukian, Information and Privacy Commissioner, Ontario, Canada. The full interview is reproduced below.

When Canada weighed a broad privacy legislation against sectoral legislation, was the decision close? What were the most decisive factors?

Canada’s legislative privacy regime consists of both broad and sectoral privacy legislation.

Broadly, the use of personal information in Canadian commercial activities is regulated by federal legislation under the Personal Information Protection and Electronic Documents Act (PIPEDA), or by provincial legislation that is “substantially similar” to PIPEDA, or by provincial legislation that is “substantially similar” to PIPEDA.

Sectorally, a prime example is the protection of personal health information under Ontario's Personal Health Information Protection Act, 2004 (PHIPA).

Regarding the decisive factors surrounding Parliament's passing of a broad private sector privacy statute, you may know that oversight of PIPEDA falls within the jurisdiction of the Office of the Privacy Commissioner of Canada (OPC). Accordingly, you may wish to focus your contact with the OPC regarding your question. In addition, Industry Canada may have some helpful resources regarding the federal government’s decision to enact PIPEDA.
Do you see the different perceptions and cultural understandings of privacy as something to be addressed through legislation? If not, do you think it should be addressed at all? How?

In an era marked by the widespread use of new information technologies, globalization, and the international flow of personal information, the establishment of global privacy standards is required to effectively protect personal privacy. Fortunately, an international community of data protection commissioners is hard at work contributing to the establishment of a set of global privacy principles. At the annual International Data Protection Commissioners Conference in 2005, Dr. Ann Cavoukian, Information and Privacy Commissioner of Ontario, chaired a Working Group of Data Protection Commissioners that led to the Creation of a Global Privacy Standard. Such a principled but flexible approach can also be seen, for example, in the landmark Privacy by Design (PbD) resolution adopted unanimously, in 2010, by the international Privacy Authorities and Regulators at the International Conference of Data Protection and Privacy Commissioners in Jerusalem.[1]

The resolution recognizes PbD as an “essential component of fundamental privacy protection” – an International Standard, and urges its adoption in regulations and legislation around the world. Governments that employ this internationally recognized standard will be able to both protect privacy and address local and national priorities.[2]
How does the Canadian model implement self-regulation of privacy standards? How is that balanced against legal enforcement of privacy legislation?

In Canada, as elsewhere, private sector privacy regulation recognizes the dual purposes of protecting the individual's right to privacy, on the one hand, and recognizing the commercial need for access to personal information, on the other.[3]

PIPEDA furthers these two purposes by tying a set of flexible, technology-neutral privacy principles to a statutory framework of rules governing the collection, use, and disclosure of personal information.

In particular, Part I of PIPEDA provides the overarching statutory framework, while Schedule I, which was borrowed from the Canadian Standards Association’s Model Code for the Protection of Personal Information, provides flexible, technology-neutral privacy principles. To accomplish the dual purposes that animate PIPEDA and its Schedule, Canada’s Federal Court of Appeal has directed that the interpretation and application of this regulatory framework should be guided by "flexibility, common sense and pragmatism."[4]

Such an approach allows organizations to address their own goals and priorities within a privacy protective framework. Moreover, by incorporating the flexible principles of PbD, organizations can "go beyond mere legal compliance with notice, choice, access, security and enforcement requirements." Instead, they can be empowered to design their own responsive approaches to risk management and privacy-related innovation, within the context of the relevant regulatory framework. This approach allows organizations to develop doubly-enabling, positive-sum solutions that are win/win in nature and appropriate given the size and nature of the organization, the personal information it manages, and the range of risks, opportunities, and solutions available.
Does Canada favor private forms of redress or agency/state enforcement to prevent and remedy privacy violations? In what circumstances is one more effective than the other?

Canadian privacy legislation includes both state enforcement and private forms of redress; neither is necessarily favoured.

For example, under PHIPA, the Attorney General may impose fines of up to $50,000 for individuals and $250,000 for corporations who are found to be in breach of PHIPA. Further, our office has broad powers of investigation and can directly order a custodian to comply with its obligations. An individual affected by a Commissioner’s final PHIPA order may commence a proceeding in the Ontario Superior Court for damages for actual harm suffered.

Another example is under PIPEDA where contravention can result in fines of up to $100,000 depending upon the type and severity of the matter. Further, the federal privacy Commissioner has powers to investigate and report findings with respect to privacy complaints. Following the release of the Commissioner’s report, a complainant may apply to the Federal Court to seek remedies that include damages and an order requiring an organization to correct its practices.

Generally, fines and other penalties imposed on individuals and corporations by the government are effective in deterring certain actions and protecting the public from a variety of harmful practices. On the other hand, a private right of action may be effective when a particular individual is harmed by an individual or corporation and is seeking damages to compensate or redress that particular harm.
What types of privacy violations are the most common? How have these been addressed?

The most common types of privacy violations are inadvertent disclosures or privacy breaches of personal information, including personal health information. In particular, these violations usually stem from the improper retention, transfer and disclosure of personal information.

Privacy breaches are addressed in a variety of ways, depending on the type and amount of information disclosed. For example, under PHIPA, if health information is stolen, lost, or accessed by unauthorized persons, the health information custodian must notify the affected individual at the first reasonable opportunity and should take immediate steps to contain the breach. Further, the Commissioner may order the health information custodian to take corrective action such as requiring the custodian to implement a certain procedure when handling personal health information or conduct privacy training.
What forms of privacy education has Canada pursued? What audiences have been targeted? Which efforts have been the most successful and why?

Canadian institutions and organizations have pursued a wide variety of privacy education initiatives including programs that award professional designations (e.g. IAPP, CAPAPA, University of Toronto Identity, Privacy and Security Initiative, University of Alberta Program).

Our Office has led a wide variety of educational initiatives to spread the word about privacy protection and freedom of information under our Ontario legislation. We have focused on a variety of audiences from the general public to individuals who deal with privacy and access to information issues as part of their daily professional role.

Initiatives include frequent contact between our Information Officers and the public, and dozens of marketing materials geared to providing guidance (e.g. “Circle of Care: Sharing of Personal Health Information for Health-Care purposes”, “What to do When Faced With a Privacy Breach: Guidelines for the Health Sector”). Our Office has developed Educational Resource Guides (Grade 5, Grade 10, Grades 11/12), which have been added to the formal Ontario curriculum to help teachers educate about privacy protection. Commissioner Cavoukian participates in extensive presentations and speeches at numerous conferences and events. As well, representatives from our Office reach out into the community to educate about our offerings and role (hospitals, conference, community events etc.). In addition, to educate Ontarians about privacy protection, the IPC also allots significant resources to many marketing initiatives including a quarterly e-newsletter, video production, and social media outreach. Most recently, we circulated an online tool kit (available via USB as well), to assist new Freedom of Information and Protection of Privacy Co-ordinators in the public sector. Most of our resources are available in English and French.

Without a doubt, the IPC’s most successful educational effort thus far is in the area of PbD, now an international standard. This Ontario-made solution was created by Commissioner Cavoukian who has led the IPC in partnering with global stalwarts such as IBM, Intel, and Nokia to advance Privacy by Design, and to foster innovation in many fields, including biometrics, the Smart Grid and even Targeted Advertising. Privacy by Design knows no boundaries and makes sense for everyone — especially businesses. Not only is it cheaper to build in privacy before a breach occurs, it is also a compelling way to win the trust of clients and build a successful brand.
What [have] proven to be [the main] challenges or obstacles to protecting privacy in Canada?

The most common obstacle to protecting privacy is that key stakeholders hold on to misconceptions about privacy.
Misconception #1 – Privacy is dead or obsolete.
Misconception #2 – Privacy stops us from performing our job.
Misconception #3 – With the massive growth of online social media, you cannot have both widespread connectivity and privacy.

Not only do these misconceptions contradict each other, they are both dead wrong!

Privacy is alive and well and more relevant than ever. Consider, for example, that the same technologies that serve to threaten privacy may also be enlisted to support it. Properly understood, privacy is becoming increasingly critical to achieving success in the new economy. In this environment, PbD offers a principled, flexible, and technology-neutral vehicle for engaging with privacy issues, and for resolving them in ways that support multiple outcomes in a full functionality, positive-sum, win-win scenario.

It does so by ensuring that privacy is built in right up front, directly into the design specifications and architecture of new systems and processes.

PbD seeks to accommodate all legitimate interests and objectives in a positive-sum “win-win” manner, not through a dated, zero-sum approach, where unnecessary trade-offs are made. PbD avoids the pretense of false dichotomies or unnecessary trade-offs, such as privacy vs. security, demonstrating that it is possible to have both. For more on PbD, go to www.privacybydesign.ca

Dr. Ann Cavoukian, Ph.D., Information and Privacy Commissioner, Ontario, Canada

Dr. Ann Cavoukian is recognized as one of the leading privacy experts in the world. Noted for her seminal work on Privacy Enhancing Technologies (PETs) in 1995, her concept of Privacy by Design seeks to proactively embed privacy into the design specifications of information technology and accountable business practices, thereby achieving the strongest protection possible. In October, 2010, regulators from around the world gathered at the annual assembly of International Data Protection and Privacy Commissioners in Jerusalem, Israel, and unanimously passed a landmark Resolution recognizing Privacy by Design as an essential component of fundamental privacy protection. This was followed by the U.S. Federal Trade Commission’s inclusion of Privacy by Design as one of its three recommended practices for protecting online privacy – a major validation of its significance.

An avowed believer in the role that technology can play in the protection of privacy, Dr. Cavoukian’s leadership has seen her office develop a number of tools and procedures to ensure that privacy is strongly protected, not only in Canada, but around the world. She has been involved in numerous international committees focused on privacy, security, technology and business, and endeavours to focus on strengthening consumer confidence and trust in emerging technology applications.

Dr. Cavoukian serves as the Chair of the Identity, Privacy and Security Institute at the University of Toronto, Canada. She is also a member of several Boards including, the European Biometrics Forum, Future of Privacy Forum, RIM Council, and has been conferred a Distinguished Fellow of the Ponemon Institute. Dr. Cavoukian was honoured with the prestigious Kristian Beckman Award in 2011 for her pioneering work on Privacy by Design and privacy protection in modern international environments. In the same year, Dr. Cavoukian was also named by Intelligent Utility Magazine as one of the Top 11 Movers and Shakers for the Global Smart Grid industry, received the SC Canada Privacy Professional of the Year Award and was honoured by the University of Alberta Information Access and Protection of Privacy Program for her positive contribution to the field of privacy. Most recently in November 2011, Dr. Cavoukian was ranked by Women of Influence Inc. as one of the top 25 Women of Influence recognizing her contribution to the Canadian and global economy. This award follows her recognition in 2007 by the Women’s Executive Network as one of the Top 100 Most Powerful Women in Canada.

Notes

[1].Information and Privacy Commissioner/Ontario, Landmark Resolution passed to preserve the Future of Privacy, http://www.ipc.on.ca/images/Resources/2010-10-29-Resolution-e_1.pdf
[2].For a discussion of how governments might employ an PbD approach to privacy regulation, see Commissioner Cavoukian’s White Paper, Privacy by Design in Law, Policy, and Practice available at:
http://www.ipc.on.ca/english/Resources/Discussion-Papers/Discussion-Papers-Summary/?id=1095
[3].See the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (Can.), http://www.canlii.org/en/ca/laws/stat/sc-2000-c-5/latest/sc-2000-c-5.html.
[4].Englander v. Telus Communications Inc., 2004 FCA 387, Locus Para. 38-46.

For more details visit https://cis-india.org/internet-governance/interview-with-anne-cavoukian

New Standard Operating Procedures for Lawful Interception and Monitoring

divij — 2014-03-20T05:13:13Z

Government issues new guidelines to TSP’s to assist Lawful Interception and Monitoring.

Even as the Central Government prepares the Central Monitoring System for the unrestricted monitoring of all personal communication, the Department of Telecom has issued new guidelines for Telecom Service Providers to assist in responding to requests for interception and monitoring of communications from security agencies.

These guidelines do not appear to be publicly accessible, but according to news items, under the “Standard Operating Procedures for Lawful Interception and Monitoring of Telecom Service Providers”, the TSP’s must now provide for lawful interception and monitoring requests for voice calls, Short message Service (SMS), General Packet Radio Service (GPRS) and Value Added Service (VAS) including Multi Message Service (MMS), data and voice in 3G/4G/Long Term Evolution (LTE) including video call or Voice Over Internet protocol (VoIP). This move comes just days after the Home Ministry suggested that the Department of Telecom either change the rules under their Telecom Policies such as the Unified Access Service Licence (UASL) to include VoIP monitoring, or, drastically, block all VoIP services on the internet, which would include several communication applications including Skype and GTalk. (See the article published by Economic Times).

The guidelines will supposedly also provide for some basic safeguards to ensure that non-authorized interception does not take place, such as ensuring that the interception is only to be provided by the Chief Nodal Officer of a TSP and only upon the issue of an order by the Home Secretary at the Central or State Government. Furthermore, these requests must only be in written, in untampered and sealed envelopes with no overwriting, etc. and bearing the order number issued by the concerned Secretary, with the date of the order. However, in exigent circumstances the order may be provided by email, provided that the physical copy is sent within two days of the order, else the interception order must be terminated. Inquiry processes are detailed under the new SOP’s which can verify whether the request was in original and addressed to the Nodal Officer and from which designated security agency it was issued, and can also verify the issue of an acknowledgment of compliance of the order by the TSP within two days of its receipt. The new guidelines also clarify the issue of interception of roaming subscribers by the State Government where the subscriber is registered. According to the guidelines, an order by the government of the state where such a caller has registered is sufficient and does not need vetting by the Home Secretary at the centre.

Notwithstanding the additional “safeguards” against unlawful or unauthorized interception, the message to take away from these guidelines is the Government’s continued efforts to expand its surveillance regime to comprehensively monitor every action and every communication at its whim. These requests for monitoring, undertaken by “security agencies” which include taxation agencies and the SEBI, are flawed not merely because of the possibility of “unauthorized” interception, rather because the legal basis of the interception is vague, broad and widely susceptible to misuse, as the recent “snoopgate” allegations against the Gujarat government have shown. (See the article published by the Hindu).

The current regime, based on a wide interpretation of Section 5(2) of the Indian Telegraph Act and the telecom policies of the Department of Telecom, do not have adequate safeguards for preventing misuse by those in power – such as the requirement of reasonable suspicion or a warrant. Without a sound legal basis for interception, which protects the privacy rights of individuals, any additional safeguards are more or less moot, since the real threat of intrusive surveillance and infringing of basic privacy exists regardless of whether it is done under the seal of the Home Secretary or not.

Resources

For more details visit https://cis-india.org/internet-governance/blog/new-standard-operating-procedures-for-lawful-interception-and-monitoring

Report of the Group of Experts on Privacy vs. The Leaked 2014 Privacy Bill

elonnai — 2014-04-14T06:10:20Z

Following our previous post comparing the leaked 2014 Privacy Bill with the leaked 2011 Privacy Bill, this post will compare the recommendations provided in the Report of the Group of Experts on Privacy by the Justice AP Shah Committee to the text of the leaked 2014 Privacy Bill. Below is an analysis of recommendations from the Report that are incorporated in the text of the Bill, and recommendations in the Report that are not incorporated in the text of the Bill.

Recommendations in the Report of the Group of Experts on Privacy that are Incorporated in the 2014 Privacy Bill

Constitutional Right to Privacy

The Report of the Group of Experts on Privacy recommends that any privacy legislation for India specify the constitutional basis of a right to privacy. The 2014 Privacy Bill has done this, locating the Right to Privacy in Article 21 of the Constitution of India.

Nine National Privacy Principles

The Report of the Group of Experts on Privacy recommends that nine National Privacy Principles be adopted and applied to harmonize existing legislation and practices. The 2014 Privacy Bill also adopts nine National Privacy Principles. Though these principles differ slightly from the National Privacy Principles recommended in the Report, they are broadly the same, and importantly will apply to all existing and evolving practices, regulations and legislations of the Government that have or will have an impact on the privacy of any individual. Presently, the 2014 Privacy Bill locates the nine National Privacy Principles in an Annex to the Bill, but also incorporates the principles in more detail in sections relating to personal data. An analysis of the principles as compared in the Report and the Bill is below:

Notice: The principle of notice as recommended by the Report of the Group of Experts on Privacy differs from the principle of notice in the 2014 Privacy Bill. According to the notice principle in the Report, a data controller shall give sample to understand notice of its information practices to all individuals, in clear and concise language, before any personal information is collected from them. Such notices should include: (during collection) What personal information is being collected; Purposes for which personal information is being collected; Uses of collected personal information; Whether or not personal information may be disclosed to third persons; Security safeguards established by the data controller in relation to the personal information; Processes available to data subjects to access and correct their own personal information; Contact details of the privacy officers and SRO ombudsmen for filing complaints. (Other Notices) Data breaches must be notified to affected individuals and the commissioner when applicable. Individuals must be notified of any legal access to their personal information after the purposes of the access have been met. Individuals must be notified of changes in the data controller’s privacy policy. Any other information deemed necessary by the appropriate authority in the interest of the privacy of data subjects.

In contrast, the 2014 Privacy Bill requires that all the data controllers provide adequate and appropriate notice of their information practices in a form that is easily understood by all intended recipients. In addition to this principle as listed in an annex, the Bill requires that on initial collection data controllers provide notice of what personal data is being collected and the legitimate purpose for which the personal data is being collected. If the purpose for which the personal data changes, data controllers must provide data subjects with a further notice that would include the use to which the personal data shall be put, whether or not the personal data will be disclosed to at third person and, if so, the identity of such person if the personal data being collected is intended to be transferred outside India and the reasons for doing so; how such transfer helps in achieving the legitimate purpose; and whether the country to which such data is transferred has suitable legislation to provide for adequate protection and privacy of the data; the security and safeguards established by the data controller in relation to the personal data; the processes available to a data subject to access and correct his personal data; the recourse open to a data subject, if he has any complaints in respect of collection or processing of the personal data and the procedure relating thereto; the name, address and contact particulars of the data controller and all persons who will be processing the personal data on behalf of the data controller. Additionally, if a breach of data takes place data controllers must inform the affected data subject that lost or stolen; accessed or acquired by any person not authorized to do so; damaged, deleted or destroyed; processed, re-identified or disclosed in an unauthorized manner.

Though the 2014 Privacy Bill requires a more comprehensive notice to be issued if the purpose for the use of personal data changes, it does not specify (as recommended by the Group of Experts on Privacy) that notice of changes to a data controller’s privacy policy be issued.

Choice and Consent: The principle of choice and consent in the 2014 Privacy Bill is similar to the principle in the Report of the Group of Experts on privacy in that it requires that all data subjects be provided with a choice to provide or not to provide personal data and that data subject will have the option of withdrawing consent at any time. Though not a part of the specific principle on ‘choice and consent’ listed in the annex the 2014 Privacy Bill also contains provisions that address mandatory collection of information which require, as recommended by the Report of the Group of Experts, that the information is anonymoized. Furthermore, the 2014 Privacy Bill provides individuals an opt-in or opt-out choice with respect to the provision of personal data.

Different from as recommended in the principle in the Report of the Group of Experts on Privacy, the 2014 Privacy Bill does not specify that in exception cases when it is not possible to provide a service with choice and consent, then choice and consent will not be required.

Collection Limitation: The principle of collection limitation as recommended in the Report of the Group of Experts on Privacy and the principle of collection limitation in the Annex of the 2014 Privacy Bill are similar in that both require that only data that is necessary to achieve an identified purpose be collected. As recommended in the Report of the Group of Experts on Privacy, the 2014 Privacy Bill also requires that notice be provided prior to collection and content taken.

Purpose Limitation: Though the principle of Purpose Limitation are similar in the Report of the Group of Experts on Privacy and the 2014 Privacy Bill as they both require personal data to be used only for the purposes for which it was collected and that the data must be destroyed after the purposes have been served, the 2014 Privacy Bill does not specify that information collected by a data controller must be adequate and relevant for the purposes for which they are processed. The 2014 Privacy Bill also incorporates elements from the principle of Purpose Limitation as defined by the Report of the Group of Experts in other parts of the Bill. For example, the 2014 Bill requires that notice be provided to the individual if there is a change in purpose for the use of the personal information, and designates a section on retention of personal data.

Access and Correction: The principle of Access and Correction in the 2014 Privacy Bill reflects the principle of Access and Correction in the Report of the Group of Experts (though not verbatim). Importantly, the 2014 Privacy Bill incorporates the recommendation from the Report of the Group of Experts on Privacy that prohibits access to personal data if it will affect the privacy rights of another individual.

Disclosure of Information: The principle of ‘Disclosure of Information’ in the Privacy Bill 2014 is similar to the principle of ‘Disclosure of Information’ as recommended in the Report of the Group of Experts on Privacy (though not verbatim). As recommended this principle requires that personal data be disclosed to third parties only if informed consent has been taken from the individual and the third party is bound the adhere to all relevant and applicable privacy principles.

Security: The principle of security in the 2014 Privacy Bill reflects the principle of Security recommended in the Report of the Group of Experts on Privacy and requires that personal data be secured through reasonable security safeguards against unauthorized access, destruction, use, modification, de-anonymization or unauthorized disclosure.

Openness: The principle of Openness in the 2014 Privacy Protection Bill is similar to the principle of Openness recommended in the Report of the Group of Experts on Privacy in that it requires data controllers to make available to all individuals in an intelligible form, using clear and plain language, the practices, procedures, and policies, and systems that are in place to ensure compliance with the privacy principles. The principle in the 2014 Privacy Bill differs from the recommendation in the Report of the Group of Experts on Privacy in that it does not require data controllers to take necessary steps to implement practices, policies, and procedures in a manner proportional to the scale, scope, and sensitivity to the data they collect.

Accountability: The principle of Accountability in the 2014 Privacy Bill is similar to the principle of Accountability as recommended in the Report of the Group of Experts as both require that the data controller is accountable for compliance with the national Privacy Principles.

Application to interception and access, video and audio recording, personal identifiers, bodily and genetic material: The Privacy Bill 2014 incorporates the recommendations from the Report of the Group of Experts on Privacy and specifies the way in which the National Privacy Principles will apply to the interception and access of communications, video and audio recording, and personal identifiers. But the 2014 Privacy Bill does not specify the application of the National Privacy Principles to bodily and genetic material (though this information is included in the definition of sensitive personal information).

With respect to the installation and operation of video recording equipment in a public space, the 2014 Privacy Bill requires that video recording equipment may only be used in accordance with a prescribed procedure and for a legitimate purpose that is proportionate to the objective for which it was installed. Furthermore, individuals cannot use video recording equipment for the purpose of identifying an individual, monitoring his personal particulars, or revealing in public his personal information. The provisions in the Bill that speak to storage, processing, retention, security, and disclosure of personal data apply to the installation and use of video recording equipment. As a note the 2014 Privacy Bill carves out an exception for law enforcement and government intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.

With respect to the application of the National Privacy Principles to the interception of communications, the 2014 Privacy Bill lays down a regime for the interception of communications and specifies that the principles of notice, choice, consent, access and correction, and openness will apply to the interception of communications when authorised.

With respect to Personal Identifiers, the 2014 Privacy Bill notes that the principles of notice, choice, and consent will not apply to the collection of personal identifiers by the government. Additionally, the government will not be obliged to use any personal identifier only for the limited purpose for which the personal identifier was collected, provided that the use is in conformance with the other National Privacy Principles.

Additional Protection for Sensitive Personal Data

The Report of the Group of Experts on Privacy broadly recommends that sensitive personal data be afforded additional protection and existing definitions of sensitive personal data should be harmonised. The 2014 Privacy Bill incorporates these recommendations by defining sensitive personal data as data relating to physical and mental health including medical history, biometric, bodily or genetic information; criminal convictions; password, banking credit and financial data; narco analysis or polygraph test data, sexual orientation. The 2014 Privacy Bill also requires authorization from the Data Protection Authority for the collection and processing of sensitive personal data and defines circumstances of when this authorization would not be required including: collection or processing of such data is authorized by any other law for the time being in force; such data has already been made public as a result of steps taken by the data subject; collection and processing of such data is made in connection with any legal proceedings by an order of the competent court; such data relating to physical or mental health or medical history of an individual is collected and processed by a medical professional, if such collection and processing is necessary for medical care and health of that individual; such data relating to biometrics, bodily or genetic material, physical or mental health, prior criminal convictions or financial credit history is processed by the employer of an individual for the purpose of and in connection with the employment of that individual; such data relating to physical or mental health or medical history is collected an processed by an insurance company, if such processing is necessary for the purpose of and in connection with the insurance policy of that individual; such data relating to criminal conviction, biometrics and genetic is processed and collected by law enforcement agencies; such data regarding credit, banking and financial details of an individual is processed by a specific user under the Credit Information Companies (Regulation) Act, 2005; such data is processed by schools or other education institutions in connection with imparting of education to an individual; such data is collected or processed by the government Intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India, the authority has, by a general or specified order permitted the processing of such data for specific purpose and is limited to the extent of such permission. The 2014 Privacy Bill also prohibits additional transactions from being performed using sensitive personal information unless free consent was obtained for such transaction.

Privacy Officers

The Report of the Group of Experts on Privacy recommends that Privacy Officers be established at the organizational level for overseeing the processing of personal data and compliance with the Act. This recommendation has been incorporated in the 2014 Privacy Bill, which establishes Privacy Officers at the organizational level.

Co-regulatory Framework

The Report of the Group of Experts on Privacy recommends that a system of co-regulation be established, where industry levels self regulatory organizations develop privacy norms, which are in turn approved and enforced by the Privacy Commissioner. The 2014 Privacy Bill puts in place a similar co-regulatory framework where industry level self regulatory organizations can develop norms which will be turned into regulations and enforced by the Data Protection Authority. If a sector does not develop norms, the Data Protection Authority can develop norms for the specific sector.

Recommendations in the Report that are not in the Bill

Scope

The Report of the Group of Experts on Privacy recommends that the scope of any privacy framework extends to all individuals, all data processed in India, and all data originating from India. The 2014 Privacy Bill differs from these recommendations by extending the right to privacy to all residents of India, while remaining silent on whether or not the scope of the legislation extends to all data processed in India and all data originating in India. Despite this, the 2014 Bill does specify that any organization that processes or deals with data of an Indian resident, but does not have a place of business within India, must establish a ‘representative resident’ in India who will be responsible for compliance with the Act.

Exceptions

The Report of the Group of Experts recommends the following as exceptions to the right to privacy:

National security
Public order
Disclosure in the public interest
Prevention, detection, investigation, and prosecution of criminal offenses
Protection of the individual and rights and freedoms of others

The Report further clarifies that any exception must be qualified and measured against the principles of proportionality, legality, and necessary in a democratic state.

The Privacy Bill 2014 reflects only the exception of “protection of the individual rights and freedoms of others”. The exceptions as defined in the 2014 Bill are:

Sovereignty, integrity or security of India or
Strategic, scientific or economic interest of India; or
Preventing incitement to the commission of any offence; or
Prevention of public disorder; or
The investigation of any crime; or
Protection of rights and freedoms others; or
Friendly relations with foreign states; or
Any other legitimate purpose mentioned in this Act.

Instead of qualifying these exceptions with the principles of proportionality, legality, and necessary in a democratic state – as recommended in the Report of Group of Experts on Privacy, the 2014 Privacy Bill qualifies that any restriction must be adequate and not excessive to the objectives it aims to achieve.

Constitution of Infringement of Privacy

The Report of the Group of Experts on Privacy specifies that the publication of personal data for artistic and journalistic purposes in the public interest, disclosure under the Right to Information Act, 2005, and the use of personal data for household purposes should not constitute an infringement of privacy. In contrast the 2014 Privacy Bill specifies that the processing of personal data by an individual purely for his personal or household use, the disclosure of information under the provisions of the Right to information Act, 2005, and any other action specifically exempted under the Act will not constitute an infringement of privacy.

The Data Protection Authority

The Report of the Group of Experts on Privacy recommends the establishment of Privacy Commissioners (and places emphasis on Privacy Commissioner rather than Data Protection Authority) at the Central and Regional level. The Privacy Commissioner should be of a rank no lower than a retired Supreme Court Judge at the Central level and a retired High Court Judge at the regional level. The privacy commissioner should have the power to receive and investigate class action complaints and investigative powers of the commissioner should include the power to examine and call for documents, examine witnesses, and take a case to court if necessary. The Commissioner should be able to investigate data controllers on receiving complaints or suo moto, and can order privacy impact assessments. Organizations should not be able to appeal fines levied by the Privacy Commissioner, but individuals can appeal a decision of the Privacy Commissioner to the court. The Commissioner should also have broad oversight with respect to interception/access, audio & video recordings, use of personal identifiers, and the use of bodily or genetic material. The Privacy Commissioner will also have the responsibility of approving codes of conduct developed by the industry level SRO’s.

Differing from the recommendations in the Report of the Group of Experts on Privacy, the 2014 Privacy Bill establishes a Data Protection Authority (as opposed to a Privacy Commissioner) at the Central level. Instead of creating regional Data Protection Authorities, the 2014 Privacy Bill allows for the Central Government to decide where other offices of the Data Protection Authority will be located. Furthermore, the 2014 Privacy Bill does not specify a qualification for the Data Protection Authority and instead establishes a selection committee to choose and appoint a Data Protection Authority. This committee is comprised of a Cabinet Secretary, Secretary to the Department of Personnel and Training, Secretary to the Department of Electronics and Information Technology, and two experts of eminence from relevant fields that will be nominated by the Central Government.

The 2014 Privacy Bill does not specify that fines ordered by the Data Protection Authority will be binding for organizations, but does allow individuals to appeal decisions of the Data Protection Authority to the Appellate Tribunal. Differing from the recommendations in the Report of the Group of Experts on Privacy, the 2014 Privacy Bill gives the Data Protection Authority the power to call upon any data controller at any time to furnish in writing information or explanation relating to its affairs, and receive and investigate complaints about alleged violations of privacy of individuals in respect of matters covered under this Act, conduct investigations and issue appropriate orders or directions to the parties concerned. Furthermore, the 2014 Privacy Bill does not specify that the Data Protection Authority will carry out privacy impact assessments, but the Authority can conduct audits of any or all personal data controlled by a data controller, can investigate data breaches, investigate in complaint received, and adjudicate on a dispute arising between data controllers or data subjects and data controllers. Unlike the recommendations in the Report of the Group of Experts on Privacy, it does not seem that the Data Protection Authority will play an overseeing role with respect to interception, the use of video recording equipment, personal identifiers, and the use of bodily and genetic material.

Tribunal and System of Complaints

Differing from the recommendation in the Report of the Group of Experts on Privacy, which specified that a Tribunal should not be established as under the Information Technology Act as there is the risk that the institutions will not have the capacity to rule on a broad right to privacy, the 2014 Privacy Bill does establish a Tribunal under the Information Technology Act. The Report of the Group of Experts on Privacy also recommended that complaints be taken to the district level, high level, and Supreme Court – whereas the 2014 Privacy Bill allows individuals to appeal decisions from the Tribunal only to a High Court. Similar to the recommendations of the Report of the Group of Experts, the 2014 Privacy Bill has in place Alternative Dispute Resolution mechanisms at the level of the industry self regulatory organization. The 2014 Privacy Bill also specifies that individuals can seek civil remedies and leaves the issuance of compensation for privacy harm to be from a Court. Unlike the recommendations in the Report of the Group of Experts on Privacy, the 2014 Privacy Bill does not specify that the Data Protection Authority will be able to take a case to the court.

Penalties and Offenses

The Report of the Group of Experts on Privacy did not provide specific recommendations for types of offences and penalties, but did suggest that offenses similar to those spelled out in the UK Data Protection Act and Australian Privacy Act be adopted – namely non-compliance with the privacy principles, unlawful collection, processing, sharing/disclosure, access, and use of personal data, and obstruction of the privacy commissioner. The 2014 Privacy Bill does create offenses for the unlawful collection, processing, sharing/disclosure, access, and use of personal data, but does not create offenses for obstruction of the privacy commissioner or broad non-compliance with the privacy principles.

Conclusion

The Centre for Internet and Society welcomes the similarities between the recommendations in the Report of the Group of Experts on Privacy and the leaked 2014 Privacy Bill, but would recommend that on areas where there are differences, particularly in the scope of the Privacy Bill and the powers and functions of the Data Protection Authority, the 2014 Bill be brought in line with the recommendations from the Report of the Group of Experts on Privacy.

In the upcoming post, we will be comparing the text of the leaked 2014 Privacy Bill to international best practices and standards.

References

For more details visit https://cis-india.org/internet-governance/blog/report-of-group-of-experts-on-privacy-vs-leaked-2014-privacy-bill

Very Big Brother

sunil — 2014-04-14T11:39:09Z

The Centre for Internet and Society, the organization I work for, currently serves on a committee established by the Government of India's Department of Biotechnology, Ministry of Science and Technology in January 2013. The committee has been charged with preparing a report on the draft Human DNA Profiling Bill.

The article was originally published in GeneWatch (January - April 2014) issue.

Why should an organization that focuses on the Internet be invited to such a committee? There are some obvious reasons related to data protection and big data. CIS had previously served on the Justice AP Shah committee that was tasked by the Planning Commission to make recommendations on the draft Privacy Bill in 2012. There are also some less obvious connections, such as academic research into cyborgs wherein the distinction between human and machine/technology is blurred; where an insulin pump makes one realize that the Internet of Things could include the Internet of Body Parts. But for this note I will focus on biometrics - quantifiable data related to individual human characteristics - and their gate-keeping function on the Internet.

The bouquet of biometric options available to technologists is steadily expanding - fingerprint, palm print, face recognition, DNA, iris, retina, scent, typing rhythm, gait, and voice. Biometrics could be used as authentication or identification to ensure security and privacy. However, biometrics are different from other types of authentication and identification factors in three important ways that have implications for human rights in information societies and the Internet.

Firstly, biometrics allow for non-consensual authentication and identification. Newer, more advanced and more expensive biometric technologies usually violate human rights more extensively and intensively than older, more rudimentary and inexpensive biometrics. For example, it is possible to remotely harvest iris information when a person is wide awake without even being aware that their identification or authentication factors have been compromised. It isn't difficult to imagine ways to harvest someone's fingerprints and palm prints without their knowledge, and you cannot prevent a security camera from capturing your gait. You could use specialized software like Tor to surf the World Wide Web anonymously and cover your digital tracks, but it is much harder to leave no trail of DNA material in the real world.

Secondly, biometrics rely on probabilistic matching rather than discrete matching - unlike, for example, a password that you use on a social media platform. In the 2007 draft of India's current Human DNA Profiling Bill, the preamble said "the Deoxyribose Nucleic Acid (DNA) analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead, without any doubt." This extract from the bill was quoted in an ongoing court case to use tampered chain of custody for DNA as the means to seek exoneration of the accused. And the scientists on the committee insist that the DNA Data Bank Manager "...shall communicate, for the purposes of the investigation or prosecution in a criminal offence, the following information to a court, tribunal, law enforcement agency ... as to whether the DNA profile received is already contained in the Data Bank" - in other words, a "yes" or "no" answer. This is indeed odd for those who come from the world of Internet policy - especially when one DNA lab worker confidentially shared that after a DNA profile was generated the "standard operating procedure" included checking it against the DNA profile of the lab worker to ensure that there was no contamination during the process of generating the profile. This would not be necessary for older forms of biometrics such as the process of developing a photograph. In other words, chain of custody issues with every generation of biometric technology are getting more and more complex. In the developing world, the disillusioned want to believe that "technology is the solution." The fallibility of technology must determine its evidentiary status.

Finally, biometrics are only machine-scrutable. This means machines and not human beings will determine whether you are guilty or innocent; whether you should get subsidized medicine, grain, or fuel; whether you can connect to the Internet via mobile phone, cybercafe or broadband. DNA evidence is not directly observable by judges and therefore the technology and equipment have to be made increasingly transparent so that ordinary citizens as well as the scientific community can audit their effectiveness. In 2009, the Second District Court of Appeal and Circuit Court in Florida upheld a 2005 ruling requiring CMI Inc, the manufacturer of Intoxilyzer 5000, to release source code, failing which evidence from the breathalyzer would be rendered inadmissible in more than 100 drunk driving cases. If the transparency of machines is important when prosecuting misdemeanors then surely this is something we must advocate for when culpability for serious crimes is determined through DNA evidence and other types of biometric technologies. This could be accomplished by the triad of mandates for free/open source software, open standards and open hardware. This is not necessary for all DNA technology and equipment that is used in the market, but only for a small sub-set of these technologies that impinge on our rights as human beings via law enforcement and the judicial system.

It has been nine years since India started the process of drafting this bill. We hope that the delays will only result in a robust law that upholds human rights, justice and scientific progress.

Sunil Abraham is Executive Director of the Centre for Internet and Society, based in Bangalore, India.

For more details visit https://cis-india.org/internet-governance/blog/council-for-responsible-genetics-april-2014-sunil-abraham-very-big-brother

Banking Policy Guide

Kartik Chawla — 2015-01-22T14:54:57Z

To gain a practical perspective on the existing banking practices and policies in India in this project, an empirical study of five separate and diverse banks has been conducted. The forms, policy documents, and other relevant and available documents of these banks have been analysed in this project.

These documents were obtained from the websites of the respective banks, and wherever they were lacking, from the branches of the banks themselves. Attempts were made to obtain any information required for the project that was not available on the website or in the forms from the officers of the respective banks.

The State Banks of India (hereinafter ‘SBI’), Central Bank of India (hereinafter ‘CBI’), ICICI Bank (hereinafter ‘ICICI’), IndusInd Bank (hereinafter ‘IndusInd’) and Standard Chartered Bank (hereinafter ‘SCB’) are the banks chosen for this project. As mentioned, these banks have been chosen to ensure a diverse sample pool. SBI is an Indian public multinational bank, CBI is an Indian public bank and it is not multinational, ICICI is an Indian private and multinational bank, IndusInd is an Indian private bank which isn’t multinational, and SCB is a British bank operating in India.

The forms and other documents of each of the banks have been compared against a template of twenty nine questions created from the nine principles given in Justice A.P. Shah Group of Experts’ Report on Privacy.

The two services provided by these banks that have been analysed are Opening an Account and Taking out a Personal Loan. This comparison has been done keeping in mind the obligations of the banks under the Master Circular and the KYC Norms detailed in it, Code of Conduct, and the Rules under Section 43A of the IT Act. Attempts have been made to clarify the basis of the response as much as possible. An analysis of the obligations of the banks is present below, along with an explanation of the relevance of various parts of the two services that are analysed.

Click to download:

For more details visit https://cis-india.org/internet-governance/blog/banking-policy-guide

6th Biannual Surveillance and Society Conference

praskrishna — 2014-05-05T04:57:59Z

Malavika Jayaram is a speaker at the conference organized by Eticas Research and Consulting at the University of Barcelona and CCCB from April 24 to 26, 2014.

Malavika will present on the UID and biometrics at the session on “Surveillance: Ambiguities and Uncertainties". Malavika's talk title is "Biometrics in beta: experimenting on a nation (while normalising surveillance for 1.2 billion people)" and is being held on April 26. See the full event details on this page.

In the developing world, privacy is often portrayed as a luxury, as something alien to local culture and of interest only to the elite. This ignores the probability of the most marginalized sections of a society being disproportionately impacted by privacy intrusive technologies. The hype about ‘big data’, ‘open data’, ‘data for development’, ‘ICT4D’ and other buzzwords often ignores the fact that the global south is particularly vulnerable to data collection and processing. Literacy issues (lingual and technical), a massive digital divide, desperate socioeconomic conditions and the lack of a robust data protection law render ideas of consent or tradeoffs all but meaningless.

Techno-utopian welfare schemes present technology as progressive, neutral and frictionless – a seductive and compelling narrative in a region wracked by inequalities, corruption, lack of transparency and structural violence. This vision underpins the world’s largest biometric ID project, which has already registered the irises and fingerprints of 540 million people without even being completed. Yet the assumption that bodies can be rendered into infallible verifiers, as repositories of unchanging truth, ignores embedded biases and normative baselines within such technologies. Welfare projects are further complicated when they are architected as public-private partnerships: the collusion of governmental and corporate agendas in creating massive databases and profiles, in a manner that transforms the citizen-state relationship in profound ways, has sweeping implications for choice, autonomy, anonymity and ultimately, democracy. This is true even when the systems function as intended, without mechanical failure, data breaches, or other consequences of trading privacy for convenience, welfare and security.

I would like to discuss the risks of using technologies such as biometrics to solve socioeconomic problems, and their potential for excluding the very demographics that they seek to include. I intend to locate my presentation in the context of India’s growing surveillance state, which deliberately intends to use the unique identification number to link disparate databases. I propose to describe the new Centralised Monitoring System, the relative legal vacuum in which data is mined and harvested, and the shaky constitutional foundations on which many of these new regimes stand. In so doing, I will effectively have provided a tour of India’s Rogue’s Gallery of recent incursions into the zone of privacy, free speech, informational self-determination and dignity. I hope also to redress in some small measure the largely western focus of academic and policy debates in this field, despite the risks of developing countries seeking to commoditize and export identity schemes, normalize censorship or opportunistically benefit from the west no longer having the moral ground to resist third country surveillance practices.

For more details visit https://cis-india.org/news/ssn-2014-sixth-biannual-surveillance-and-society-conference

No party's got a clear stand, Aadhaar's fate hangs in balance

praskrishna — 2014-05-05T06:01:08Z

A non-UPA government for sure will review the multi-crore UID programme, but none of the parties have yet talked about scrapping it.

The article by Pratap Vikram Singh was published in GovernanceNow.com on April 13, 2014. Sunil Abraham is quoted.

Since inception, Aadhaar’s foundation has been shaky. The Unique Identification Authority of India (UIDAI) has been functioning on an executive fiat, without parliamentary ratification. When the government first came up with a bill on the UID programme, it was rejected by the parliamentary standing committee, which questioned the purpose of the programme.

Aadhaar’s acceptability as proof of residence and its issuance to the illegal immigrants too has courted controversy. The opposition and the ministry of home affairs have repeatedly flagged the issue. Recently, the supreme court (SC) instructed the government to withdraw all orders mandating Aadhaar number for service delivery. In September last year too the apex court had ruled that no one should be denied a service for want of Aadhaar.

While the Congress hasn’t changed its position on Aadhaar and wishes to continue with Aadhaar-linked benefits transfer, the BJP hasn’t mentioned it even once in its 52-page manifesto. On April 8, Narendra Modi, BJP’s prime ministerial candidate, in an election rally near Bangalore was quoted as saying, “I asked several questions on the Aadhaar project. I asked them questions relating to illegal migrants and national security. They (the government) did not have any answer.”

Rajendra Pratap Gupta, member of BJP’s core committee on manifesto, told Governance Now: “If we come to power we will review this in totality. There is scepticism around the whole project and even the SC has ruled against mandating it.” He called Aadhaar one of the ‘biggest scams’ of the UPA. “We have found people owning multiple Aadhaar cards. It (Aadhaar) is not a very secure system,” he added.

On the other hand, Aam Aadmi Party doesn’t oppose the idea of Aadhaar, though it is critical of its linkage to delivering food and other subsidies. Atishi Marlena, the party’s manifesto committee chief, said, “In principle, we don’t oppose the Aadhaar programme. If it’s about providing an identification proof to the poor who don’t have other documents, we certainly welcome it. But Aadhaar’s linkage with benefits-transfer needs to be questioned. Who gets what and who doesn’t should be determined by gram sabhas and mohalla sabhas. It should be done via people participation.”

The CPI(M), in its manifesto, called for halting the project unless it gets parliamentary approval. It also underlined the need for a privacy and data protection law prior to the rollout of the UID programme. “The moment Aadhaar is linked with service delivery, the scope for exclusion widens. You need to have universal coverage of Aadhaar and banking before you roll out the benefits transfer programme,” CPI(M) Rajya Sabha member Tapan Sen said.

In its manifesto, the party has talked about ‘constituting an independent high-level expert panel for an appraisal of the technology of biometrics used in the project’.

Sunil Abraham of the Centre for Internet and Society said, “The centralised online authentication automatically raises issues of privacy infringement. The authentication, in a decentralised fashion, with help of smart cards, is less intrusive, as the logs are stored in a local fashion and not centralised as in the case of Aadhaar. It will be a welcome move if the next government selects resident ID (smart) card, issued by the home ministry, as proof for identification and service delivery.”

For more details visit https://cis-india.org/news/governance-now-april-13-2014-pratap-vikram-singh-no-party-has-got-clear-stand-aadhaar-fate-hangs-in-balance