Centre for Internet and Society

Narendra Modi’s personal app sparks India data privacy row

Admin — 2018-03-28T16:17:32Z

PM’s NaMo app sends user data to third party in US, says researcher.

Sunil Abraham was quoted in the article published by Financial Times on March 28, 2018.

“People are outraged that there is a peephole,” says Sunil Abraham, executive director of the Bangalore-based Centre for Internet and Society, a non-profit research organisation. “They are not outraged that anyone has looked into the peephole — because there is no evidence of that yet.”

For Mr Abraham, however, the controversy demonstrates that “Indian political parties have a voracious appetite for political data. If unchecked by law or public outrage, they will continue to hoover up as much data as they can from our devices.”

“Privacy is definitely a political issue,” says Mr. Abraham. “Political parties are reacting not because they will get into trouble under the law. They are reacting because they areafraid their supporters may not like it.”

For more details visit https://cis-india.org/internet-governance/news/financial-times-march-28-2018-narendra-modi-personal-app-sparks-india-data-privacy-row

Your mobile apps have the permission to spy on you

Admin — 2018-04-03T15:48:47Z

The top applications on the Android Play store in India seek permission like access to your camera, microphone, modify contacts and download files without notifications depending on the use of the app.

The article was published in the Economic Times on March 30, 2018. Pranesh Prakash was quoted.

“What we need is, not just knowing what permissions are being sought, but why they need such permissions,” said Pranesh Prakash, policy director of the Centre for Internet and Society.

Companies such as TrueCaller say that app developers should only be permitted to collect data that they can demonstrate as proportionate and “necessary for the stated purpose of their service”.

An Uber spokesperson said they provide users with an option to turn off certain permissions like location and phone contacts within the privacy settings on app along with explanations on what data they collect and the reason behind it. Others declined comment.

For more details visit https://cis-india.org/internet-governance/news/economic-times-march-30-2018-your-mobile-apps-have-the-permission-to-spy-on-you

It Took Just 355 Indians to Mine the Data of 5.6 Lakh Facebook Users. Here's How

Admin — 2018-04-07T15:33:46Z

Data privacy in India is still a nascent subject. Experts say cheap data has led to unprecedented Facebook penetration. Often, it is seen that those who open an account are not aware of the privacy concerns.

The blog post by Subhajit Sengupta was published in CNN-News 18 on April 7, 2018. Sunil Abraham was quoted.

Over 5.6 lakh Indian Facebook profiles have allegedly been compromised and their data leaked to the controversial data analytics firm Cambridge Analytica. As per the company, only 335 people in India installed the App yet they managed to penetrate over half a million profiles.

So, how does this work?

Once a user downloaded the quiz app called “thisisyourdigitallife”, Global Science Research Limited got access to the entire treasure trove of data. There are two mechanisms which are used for this.

First, the Application Program Interface (API) of Facebook called ‘Social Graph’ allows any app to harvest the entire contact list and everything else that could be seen on a users’ friend’s profile. This would take place even for private profiles, says Sunil Abraham, Executive Director of Bangalore based research organization ‘Centre for Internet and Society’.

The second way is when users have a public profile. The algorithm seeks out public profiles from the friend list and would go on multiplying from one public profile to another without any of the users even coming to know what is happening. This is like the ‘True Caller’ application, for it to get your number, you don’t need to download the software. If anyone has the app and your number, then it gets automatically logged there.

Facebook says "Cambridge Analytica’s acquisition of Facebook data through the app developed by Dr Aleksandr Kogan and his company Global Science Research Limited (GSR) happened without our authorisation and was an explicit violation of our Platform policies."

GSR continued to access this data from all the Facebook profiles throughout the entire lifespan of the app on the Facebook platform, which was roughly two years between 2013 and 2015. This means, even if a user is careful enough to not download the application but his/her profile’s privacy settings are weak, the algorithm would infiltrate the data bank.

Amit Dubey, a Cyber Security Expert goes into the details of what the app did, “The app called 'thisisyourdigitallife', which was created for research work by Aleksandr Kogan, was eventually used for psychometric profiling of users and then manipulating their political biases. The app was offered to users on the pretext to take a personality test and it agreed to have their data collected for academic use only. But the app has exploited a security vulnerability of Facebook application.”

Facebook “platform policy” allowed only collection of friends’ data to improve user experience in the app and barred it from being sold or used for advertising.

But this kind of data scrapping is not just limited to Cambridge Analytica. The Social Media Algorithm is often abused in the world of data scavenging and analytics. Even law enforcement agencies have often used similar means to locate possible miscreants.

According to Shesh Sarangdhar, Chief Executive Officer in Seclabs & Systems Pvt Ltd, similar data scrapping helped them unearth the terror module behind one of the attacks at an airbase last year. Shesh said that through Social Media Algorithm they would often narrow down on unknown terror modules. What his team did was to connect to the profile the whereabouts of multiple known nods converging. That is how the mastermind was located.

Data privacy in India is still a nascent subject. Experts say cheap data has led to unprecedented Facebook penetration.

Often, it is seen that those who open an account are not aware of the privacy concerns. But as Sunil Abraham puts it, Caveat emptor or ‘Let the Buyers Beware’ does not even apply here. It is not possible for anyone to go through the entire privacy policy.

“So it is not even right to ask if the consumer can protect his/her own interest. Thus, the state should proactively regulate the industry,” said Abraham.

Facebook has brought in a number of changes to its privacy settings. It now allows you to remove third-party apps in bulk. This welcome change has come after sustained pressure on the tech giant from users and a number of regulatory bodies across the world.

For more details visit https://cis-india.org/internet-governance/news/news-18-subhajit-sengupta-how-just-355-indians-put-data-of-5-6-lakh-facebook-users-at-risk

Does the Safe-Harbor Program Adequately Address Third Parties Online?

rebecca — 2011-08-02T07:19:34Z

While many citizens outside of the US and EU benefit from the data privacy provisions the Safe Harbor Program, it remains unclear how successfully the program can govern privacy practices when third-parties continue to gain more rights over personal data. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem.

To date, the EU-US Safe Harbor Program leads in governing the complex and multi-directional flows of personal information online. As commerce began to thrive in the online context, the European Union was faced with the challenge of ensuring that personal information exchanged through online services were granted levels of protect on par with provisions set out in EU privacy law. This was important, notably as the piecemeal and sectoral approach to privacy legislation in the United states was deemed incompatible with the EU approach. While the Safe Harbor program did not aim to protect the privacy of citizens outside of the European Union per say, the program has in practice set minimum standards for online data privacy due to the international success of American online services.

While many citizens outside of the US and EU benefit from the Safe Harbor Program, it remains unclear how successful the program will be in an online ecosystem where third-parties are being granted increasingly more rights over the data they receive from first parties. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem. First, I will argue that the safe harbor program does not do enough to ensure that participants are held reasonably responsible third party privacy practices. Second, I will argue that the information asymmetries created between first party sites, citizens, and governance bodies vis-à-vis third parties obscures the application of the Safe Harbor Model.

The EU-US Safe-Harbor Agreement

In 1995, and based on earlier OECD guidelines, the EU Data Directive on the “protection of individuals with regard to the processing of personal data and the free movement of such data” was passed [1]. The original purpose of the EU Privacy Directive was not only to increase privacy protection within the European Union, but to also promote trade liberalization and a single integrated market in the EU. After the Data Directive was passed, each member state of the EU incorporated the principles of the directive into national laws accordingly.

While the Directive was successful in harmonizing data privacy in the European Union, it also embodied extraterritorial provisions, giving in reach beyond the EU. Article 25 of the Directive states that the EU commission may ban data transfers to third countries that do not ensure “an adequate level of protect’ of data privacy rights [2]. Also, Article 26 of the Directive, expanding on Article 25, states that personal data cannot be transferred to a country that “does not ensure an adequate level of protection” if the data controller does not enter into a contract that adduces adequate privacy safeguards [3].

In light of the increased occurrence of cross-border information flows, the Data Directive itself was not effective enough to ensure that privacy principles were enforced outside of the EU. Articles 25 and 26 of the Directive had essentially deemed all cross-border data-flows to the US in contravention of EU privacy law. Therefor, the EU-US Safe-Harbor was established by the EU Council and the US Department of Commerce as a way of mending the variant levels of privacy protection set out in these jurisdictions, while also promoting online commerce.

Social Networking Sites and the Safe-Harbor Principles

The case of social networking sites exemplifies the ease with which data is transferred, processed, and stored between jurisdictionas. While many of the top social networking sites are registered American entities, they continue to attract users not only from the EU, but also internationally. In agreement to the EU law, many social networking sites, including LinkedIn, Facebook, Myspace, and Bebo, now adhere to the principles of the program. The enforcement of the Safe Harbor takes place in the United States in accordance with U.S. law and relies, to a great degree, on enforcement by the private sector. TRUSTe, an independent certification program and dispute mechanism, has become the most popular governance mechanism for the safe harbor program among social networking sites.

Drawing broadly on the principles embodied within the EU Data Directive and the OECD Guidelines, the seven principles of the Safe-Harbor were developed. These principles include Notice, Choice, Onward Transfer, Access and Accuracy, Security, Data Integrity and Enforcement. The principle of “Notice” sets out that organizations must inform individuals about the purposes for which it collects and uses information about them, how to contact the organization with any inquiries or complaints, the types of third parties to which it disclosures the information, and the choices and means the organization offers individuals for limiting its use and disclosure.

“Choice” ensures that individuals have the opportunity to choose to opt out whether their personal information is disclosed to a third party, and to ensure that information is not used for purposes incompatible with the purposes for which it was originally collected. The “Onward Transfer” principle ensures that third parties receiving information subscribes to the Safe Harbor principles, is subject to the Directive, or enters into a written agreement which requires that the third party provide at least the same level of privacy protection as is requires by the relevant principles.

The principles of “Security” and “Data Integrity” seek to ensure that reasonable precautions are taken to protect the loss or misuse of data, and that information is not used in a manner which is incompatible with the purposes for it is has been collected—minimizing the risk that personal information would be misused or abused. Individuals are also granted the right, through the access principle, to view the personal information about them that an organization holds, and to ensure that it is up-to-date and accurate. The “Enforcement” principle works to ensure that an effective mechanism for assuring compliance with the principles, and that there are consequences for the organization when the principles are not followed.

The principles of the program are rather quite clear and enforceable in the first party context, despite some prevailing ambiguities. The privacy policies of most social networking services have become increasingly clear and straightforward since their inception. Facebook, for example, has revamped its privacy regime several times, and gives explicit notice to users how their information is being used. The privacy policy also explains the relationship between third parties and your personal information—including how it may be used by advertisers, search engines, and fellow members.

With respect to third party advertisers, principles of “choice” are clearly granted by most social networking services. For example, the Network Advertising Initiative, a self-regulatory initiative of the online advertising industry, clearly lists its member websites and allows individuals to opt out of any targeted advertising conducted by its members. In Facebook’s description of “cookies” in their privacy policy, a direct link to NAI’s opt out features is given, allowing individuals to make somewhat informed choices about their participation in such programs. This point is, of course, in light of the fact that most users do not read or understand the privacy policies provided by social networking sites [4]. It is also important to note that Google—a major player in the online advertising business, does not grant users of Buzz and Orkut the same “opt-out” options as sites such as Facebook and Bebo.

Under the auspices of the US Federal Trade Commission, the Safe Harbor Program has also successfully investigated and settled several privacy-related breaches which have taken place on social networking sites. Of the most famous cases is Lane et al. v. Facebook et al., which was a class action suit brought against Facebook’s Beacon Advertising program. The US Federal Trade Commission was quick to insight an investigation of the program after many privacy groups and individuals became critical of its questionable advertising practices. The Beacon program was designed to allow Facebook users to share information with their friends about actions taken on affiliated, third party sites. This had included, for example, the movie rentals a user had made through the Blockbuster website.

The Plaintiffs filed a suit, alleging that Facebook and its affiliates did not give users adequate notice and choice about Beacon and the collection and use of users’ personal information. The Beacon program was ultimately found to be in breach of US law, including the Video Privacy Protection Act, which bans the disclosure of personally identifiable rental information. Facebook has announced the settlement of the lawsuit, not bringing individual settlements, but a marked end to the program and the development of a 9.5 million dollar Facebook Privacy Fund dedicated to privacy and data-related issues. Other privacy related investigations of social networking sites launched by the FTC under the Safe Harbor Program include Facebook’s privacy changes in late 2009, and the Google’s recently released Buzz application.

Despite the headway the Safe Harbor is making, many privacy related questions remain ambiguous with respect to the responsibilities social networking sites through the program. For example, Bebo reserves the right to supplement a social profile with addition information collected from publicly available information and information from other companies. Bebo’s does adhere to the “notice principle”—as it makes know to users how their information will be used through their privacy policy. However, it remains unclear if appropriate disclosures are given by Bebo as required by Safe Harbor Framework, notably as the sources of “publicly available information” as a concept remains broad and obscured in the privacy policy. It is also unclear whether or not Bebo users are able to, under the “Choice” principle, refuse to having their profiles from being supplemented by other information sources. Also, under the “access principle”, do individuals have the right to review all information held about them as “Bebo users”? The right to review information held by a social networking site is an important one that should be upheld. This is most notable as supplementary information from outside social networking services is employed to profile individual users in ways which may work to categorize individuals in undesirable ways.

The Third Party Problem

Cooperation between social networking sites and the Safe Harbor has improved, and most of these sites now have privacy policies which explicitly address the principles of the Program. It should also be noted that public interest groups, such as Epic, the Center for Digital Democracy, and The Electronic Frontier Foundation, have played a key role in ensuring that data privacy breaches are brought to the attention of the FTC under the program. While the program has somewhat adequately addressed the privacy practices of first party participants, the number of third parties on social networking sites calls into question the comprehensiveness and effectiveness of the Safe Harbor program. Facebook itself as a first party site may adhere to the Safe Harbor Program. However, its growing number third party platform members may not always adhere to best practices in the field, nor can Facebook or the Safe Harbor Program guarantee that they do so.

The Safe Harbor Program does require that all participants take certain security measures when transferring data to a third party. Third parties must either subscribe to the safe harbor principles, or be subject to the EU Data Directive. Alternatively, an organization can may also enter into a written agreement with a third party requiring that they provide at least the same level of privacy protection as is required by program principles. Therefore, third parties of participating program sites are, de facto, bound by the safe harbor principles by the way of entering into agreement with a first party participant of the program. This is the approach taken by most social networking sites and their third parties.

It is important to note, however, that third parties are not governed directly by the regulatory bodies, such as the FTC. The safe harbor website also explicitly notes that the program does not apply to third parties. Therefore, as per these provisions, Facebook must adhere to the principles of the program, while its third party platform members (such as social gaming companies), only must do so indirectly as per a separate contract with Facebook. The effectiveness of this indirect mode of governing of third party privacy practices is questionable for numerous reasons.

Firstly, while Facebook does take steps to ensure that third parties use information from Facebook in a manner which is consistent to the safe harbor principles, the company explicitly waives any guarantee that third parties will “follow their rules”. Prior to allowing third parties to access any information about users, Facebook requires third parties to agree to terms that limit their use of information, and also use technical measures to ensure that they only obtain authorized information. Facebook also warns users to “always review the policies of third party applications and websites to make sure you are comfortable with the ways in which they use information”. Not only are users required to read the privacy policies of every third party application, but are also expected to report applications which may be in violation of privacy principles. In this sense, Facebook not only waives responsibility for third party privacy breaches, but also places further regulatory onus upon the user.

As the program guidelines express, the safe harbor relies to a great degree on enforcement by the private sector. However, it is likely that a self-regulatory framework may lead the industry into a state of regulatory malaise. Under the safe harbor program, Facebook must ensure that the privacy practices of third parties are adequate. However, at the same time, the company may simultaneously waiver their responsibility for third party compliance with safe harbor principles. Therefore, it remains questionable as to where responsibility for third parties exactly lies. When third parties are not directly answerable to the governing bodies of safe harbor program, and when first parties can to waive responsibility for their practices, from where does the incentive to effectively regulate third parties to come from?

While Facbeook may in fact take reasonable legal and technical measures to ensure third party compliance, the room for potential dissonance between speech and deed is worrisome. Facebook is required to ensure that third parties provide “at least the same level of privacy protection” as they do. However, in practice, this has yet to become the case. A quick survey of twelve of the most popular Platform Applications in the gaming category showed that third parties are not granting their users the “same level of privacy protection”[5]. For example, section 9.2.3 of Facebooks “Rights and Responsibilities” for Developers/Operators of applications/sites states that they must “have a privacy policy or otherwise make it clear to users what user data you are going to use and how you will use, display, or share that data”.

However, out of the 12 gaming applications surveyed, four companies failed to make privacy policies available to users before they granted the application access to the personal information, including that of their friends [6]. After searching for the privacy policies on the websites of each of the four social gaming companies, two completely failed to post privacy policies on their central websites. This practice is in direct breach of the contract made between these companies and Facebook, as mentioned above. In addition to many applications failing to clearly post privacy policies, many of provisions set out in these policies were questionable vis-à-vis safe harbor principles.

For example Zynga, makes of popular games Mafia Wars and Farmville, reserve the right to “maintain copies of your content indefinitely”. This practice remains contrary to Safe Harbor principles which states that information should not be kept for longer than required to run a service. Electronic Arts also maintains similar provisions for data retention in its privacy policy. Such practices are rather worrisome also in light of the fact that both companies also reserve the right to collect information on users from other sources to supplement profiles held. This includes (but is not limited to) newspapers and Internet sources such as blogs, instant messaging services, and other games. It is also notable to mention that only one of the twelve social gaming companies surveyed directly participates in the safe harbor program.

In addition to the difficulties of ensuring that safe harbor principles are adhered to by third parties, the information asymmetries which exist between first party sites, citizens, and governance bodies vis-à-vis third parties complicate this model. Foremost, it is clear that Facebook, despite its resources, cannot keep tabs on the practices of all of their applications. This puts into question if industry self-regulation can really guarantee that privacy is respected by third parties in this context. Furthermore, the lack of knowledge or understanding held by citizens about how third parties user their information is particularly problematic when a system relies so heavily on users to report suspected privacy breaches. The same is likely to be true for governments, too. As one legal scholar, promoting a more laisse-fair approach to third party regulation, notes—multiple and invisible third party relationships presents challenges to traditional forms of legal regulation [7].

In an “open “social ecosystem, the sheer volume of data flows between users of social networking sites and third party players appears to have become increasingly difficult to effectively regulate. While the safe harbor program has been successful in establishing best practices and minimum standards for data privacy, it is also clear that governance bodies, and public interest groups, have focused most attention on large industry players such as Facebook. This has left smaller third party players on social networking sites in the shadows of any substantive regulatory concern. If one this has become clear, it is the fact that governments may no longer be able to effectively govern the flows of data in the burgeoning context of “open data”.

As I have demonstrated, it remains questionable whether or not Facebook can regulate third parties data collection practices effectively. Imposing more stringent responsibilities on safe harbor participants could be a positive step. It is reasonable to assume that it would be undue to impose liability on social networking sites for the data breaches of third parties. However, it is not unreasonable to require sites like Facebook go beyond setting “minimum standards” for data privacy, towards taking a more active enforcement, if even through TRUSTe or another regulatory body. If the safe harbor is to be effective, it cannot allow program participants to simply wave the liability for third party privacy practices. The indemnity granted to third parties on social networking sites may deem the safe harbor program more effective in sustaining the non-liability of third parties, rather than protecting the data privacy of citizens.

[1] Official Directive 95/46/EC

[2] 95/46/EC

[3] Ibid

[4] See Acquisit, A. a. (n.d.). Imagined Communities: Awareness, Information Sharing, and Privacy on Facebook. PET 2006

[5] Of the Privacy Policy browsed include, Zynga, Rock You!, Crowdstar, Mind Jolt, Electronic Arts, Pop Cap Games, Slash Key, Playdom, Meteor Games, Broken Bulb Studios, Wooga, and American Global Network.

[6] By adding an application, users are also sharing with third parties the information of their friends if they do not specifically opt out of this practice.

[7]See Milina, S. (2003). Let the Market Do its Job: Advocating an Integrated Laissez-Faire Approach to Online Profiling. Cardozo Arts and Entertainment Law Journal .

For more details visit https://cis-india.org/internet-governance/blog/does-the-safe-harbor-program-adequately-address-third-parties-online

No UID Campaign in New Delhi - A Report

praskrishna — 2012-06-20T03:51:45Z

The Unique Identification (UID) Bill is not pro-citizen. The scheme is deeply undemocratic, expensive and fraught with unforseen consequences. A public meeting on UID was held at the Constitution Club, Rafi Marg in New Delhi on 25 August, 2010. The said Bill came under scrutiny at the meeting which was organised by civil society groups from Mumbai, Bangalore and Delhi campaigning under the banner of "No UID". The speakers brought to light many concerns, unanswered questions and problems of the UID scheme.

Since 2009, when the UID Bill was presented to the general public by Nandan Nilekani, the project has been characterized as a landmark initiative that will transform India, bring in good governance, and provide relief and basic services for the poor. The scheme is rapidly being put in place; the draft Bill has been put before the Parliament of India and the resident numbers and data have been collected.

The UID proposes to take the finger prints and iris scans of every resident of India for authentication of each individual. J. T. D'Souza, an expert in free software technology exposed the flaws of the entire technical aspect of the UID project. He presented the risks and loopholes that technology such as iris and fingerprint scanners pose, and the risks in using a biometric system as a form of identification system. Contrary to the claim of the UID authority, that a scheme based on biometrics is foolproof, he explained how fingerprints are not unchanging, both fingerprints and iris scans can be easily spoofed (with a budget of only $10), and there are many ways in which the technology can break, be inconsistent, or be inaccurate.

From a human rights perspective the lack of democracy in the entire project was stressed. Usha Ramanathan reiterated the fact that no white paper was issued, the Bill has not gone through the Parliament and yet citizens’ data is being collected, citizens were given only a two week period to comment on the Bill, and in practice the UID number will not be voluntary for individuals.

The UID authority has posited the scheme as bringing benefits to the poor, plugging leakages in the Public Distribution System and the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), as well as enabling inclusive growth by providing each citizen with a verifiable and portable identity. These claims were debunked. An identity number will not fix the waste of grain that takes place every day, the portability of the number raises new problems of accessibility and distribution of resources, and the MGNREGS system is already working to be financially inclusive with a majority of its members already having a bank account.

In response to hearing the presentations of the speakers and the comments by the audience, senior Member of Parliament of the Revolutionary Socialist Party of India (RSP), Abani Roy called for the launching of a massive campaign to resist this expensive and dangerous project through which several companies will gain massive contracts from the public exchequer.

The campaigners for No UID plans to hold further meetings across the country and lobby Parliamentarians in the coming months.

For more information contact: Mathew Thomas (Bangalore) mathew111983@gmaill.com, Elonnai Hickok (Bangalore) elonnai@cis-india.org , Sajan Venniyoor (Delhi): +91-9818453483 - Bobby Kunhu (Delhi): +91-9654510398

For more details visit https://cis-india.org/internet-governance/blog/no-uid-campaign

Privacy Concerns in Whole Body Imaging: A Few Questions

elonnai — 2012-03-21T10:09:02Z

Security versus Privacy...it is a question that the world is facing today when it comes to using the Whole Body Imaging technology to screen a traveller visually in airports and other places. By giving real life examples from different parts of the world Elonnai Hickok points out that even if the Government of India eventually decides to advocate the tight security measures with some restrictions then such measures need to balanced against concerns raised for personal freedom. She further argues that privacy is not just data protection but something which must be viewed holistically and contextually when assessing new policies.

What is Whole Body Imaging?

Whole Body Imaging is an umbrella term that includes various technologies that can produce images of the body without the cover of clothing. The purpose of WBI technology is to screen travellers visually in order to detect weapons, explosives and other threat items more thoroughly, without the cover of clothing. Examples include: Ultrasonic Imaging Technology, Superconducting Quantum Interference Device, T-ray Technology, Millimeter Wave Technology, MM-wave Technology, and X-ray Scanning Systems. The two main types of scanners used for security screening are: Millimeter Wave and Backscatter machines. The Millimeter Wave machines send radio waves over a person and produce a three-dimensional image by measuring the energy reflected back. Backscatter machines use low-level x-rays to create a two-dimensional image of the body. The machines show what a physical pat-down would potentially reveal as well, but what a metal detector would not find – for example, they will detect items such as chemical explosives and non-metallic weapons.

How are These Technologies Being Used - Two News Items to Ponder:

News Item One

In 2009-2010 a Nigerian attempted to blow up a Detroit-bound aircraft in the United States. In response to this attempt, in addition to the heightened security concerns in light of 9/11, the United States has pushed for the greater use of full-body scanners among other initiatives. The hope is that the scanners will bring a heightened level of security and stop potential attacks from occurring in the future.

Also, in response to the attempted attack on the U.S, the Mumbai Terrorist attacks, and many other incidents, India has likewise considered the implementation of full-body scanners in airports. According to an article published on 2 January 2010 in The Times of India, soon after the incident in the United States, the Indian Intelligence Bureau submitted a comprehensive airport review that spoke about the need for full-body scanners. On 6 July 2010, the Times of India issued a story on how full-body scanners will not be used at the two Dubai airports. The story went on to explain in detail how the airports in Dubai have decided against the use of full-body scanners as a security measure, because they ‘contradict’ Islam, and because the government respects the privacy of individuals and their personal freedom. The head of the Dubai police department was quoted as saying “The scanners will be replaced with other inspection systems that reserve travelers' privacy.” At airports that utilize the scanners, not everyone is required to go through a full-body scanner at the security checkpoint (I myself have never been in one), but instead the authority will randomly select persons to be scanned. An individual has the option to opt out of the scan, but if they choose to do so, they must undergo a thorough body pat-down search. During the scan, the officer zoomed over parts of the image for a better look, if any portion of the image appears suspicious. Once a scan is completed, the passenger waits while the scan is sent to and reviewed by another officer elsewhere. The officers are connected by wireless headsets. If no problems are found, the image is supposed to be erased. If a problem is found, the officer tells the checkpoint agent where the problem is, and the image is retained until the issue is resolved, and then it is erased. The wireless transmission of the image by a computer to another officer for analysis is a built-in safeguard, because the agent who sees the image never sees the passenger and the officer who sees the passenger never sees the image.

Despite this, the machines are controversial because they generate images of a passengers' entire body, which raises concerns as to the possible privacy violations that could occur. Besides the physical invasion that the scanners pose, privacy concerns have centered on the fact that the actual implementation of the procedures for retention and deletion of images is unclear. For instance, in Florida, images from a scanner at a courthouse were found to have been leaked and circulated. In 2008, the US Department of Homeland Security did a report on the privacy of whole-body imaging and its compliance with the Fair Information Practice Principles. Among other safeguards, the report concluded that the image does not provide enough details for personal identification, the image is not retained, and the machine could in fact work to protect the privacy of an individual by sparing the person the indignity of a pat-down.

News Item Two

In October this year, Fox News came out with a story that told how the use of x-ray scanners, similar to the ones used in airports, are now being placed in vans that can see into the inside of the vehicles around them. The vans are used to detect car bombs, drugs, radioactivity and people hiding. The vans have been used at major crowd events like the Super Bowl. According to the Department of Homeland Security, the vans have led to the seizure of 89,000 pounds of narcotics and $4 million worth of currency. In vans the technology used is the backscatter x-ray machine. The cars are more controversial than the scanners at airports, because it is not possible to obtain consent from the target vehicle, and a person in a car does not have the option to opt out for a thorough car search. Furthermore, images are not sent to another authority to be analyzed, but are instead analyzed by the authority in the car. Reactions to the vans have been mixed. Some worry about the invasion to privacy that the vans pose, the lack of consent that an individual gives to having his car scanned, and the fact that these scans are conducted without a warrant. Others believe that the security the vans can provide far outweighs the threats to privacy. In airports, if evidence is found against a person, it is clear that airport authorities have the right to stop the individual and proceed further. This right is given by an individual‘s having chosen to do business at the airport, but a person who is traveling on a public street or highway has not chosen to do business there. It is much more difficult to conclude that by driving on a road an individual has agreed to the possible scanning of his/her car.

Questions at the Heart of the WBI Debate:

Whole Body Imaging raises both simple and difficult questions about the dilemma of security vs. privacy, and privacy as a right vs. privacy as protection. If privacy is seen as a constitutional right, as it is in the European Union under the Convention on Human Rights, then Whole Body Imaging raises questions about the human body — its legal and moral status, its value, its meaning, and the dignity that is supposed to be upheld by the virtue of an individual’s privacy being a right. If Whole Body Imaging threatens the dignity of an individual, is it correct to permit the procedure at airports and allow vans with x-ray machines to roam the streets? This question segues into a deeper question about security over privacy. The security appeal of WBI technology is its pro-active ability to provide intelligence information about potential threats before anything actually happens. Does the security that these machines bring trump the right to privacy that they could be violating? Isn’t this particularly true given that airport scanning is of only a randomly-selected portion of travelers? Is the loss of privacy that occurs proportional to the need and the means met? What is the purpose of security in these contexts? All privacy legislation must work to strike a balance between security and privacy. Typically, in terms of governments and security, restrictions are placed on the amount of unregulated monitoring that governments can do through judicial oversight. Warrantless monitoring is typically permitted only in the case of declared national emergencies. Should WBI technology be subject to the same restrictions as, say, wiretapping? or would this defeat the purpose of the technology, given that the purpose is to prevent an event that could lead into a declared national emergency. Furthermore, how can legislation and policy, which has traditionally been crafted to be reactive in nature, adequately respond to the pro-active nature of the technology and its attempt to stop a crime before it happens?

How Have Other Countries Responded to Whole Body Imaging and How Should India Respond?

Countries around the world have responded differently to the use of whole body imaging. In the EU, full-body scanners are used only in the UK, and their use there is being protested, with the Human Rights Charter being used to argue that full-body imaging lowers human dignity and violates a person’s right to privacy. In EU countries such as Germany, there has been a strong backlash against full-body image scanners by calling them ‘Naked Scanners’. Nonetheless, according to an ABC report, in 2009 the Netherlands announced that scanners would be used for all flights heading from Amsterdam's airport to the United States.

In the US, where scanners are being used, EPIC is suing the TSA on the grounds that the TSA should have enacted formal regulations to govern their use. It argues that the body scanners violate the Fourth Amendment, which prohibits unreasonable searches and seizures. Canada has purchased 44 new imaging scanners but has suggested using image algorithms to protect the individuals’ privacy even further. A Nigerian leader also pledged to use full-body scanners.

Though India has not implemented the use of WBI technology, it has considered doing so twice, in 2008 and again in 2010. Legally, India would have to wrestle with the same questions of security vs. privacy that the world is facing. From the government’s demand for the Blackberry encryption keys and the loose clauses in the ITA and Telegraph Act that permit wiretapping and monitoring by the government, it would appear that the Government of India would advocate the tight security measures with few restrictions, and would welcome the potential that monitoring has to stop terror from occurring. But this would have to be balanced against the concerns raised by the police officers’ observation in the Times of India that the use of scanners, was “against Islam, and an invasion of personal freedom.” It is not clear which value would be given priority.

The variation in responses and the uneven uptake of the technology around the world shows how controversial the debate between security and privacy is, and how culture, context, and perception of privacy all contribute to an individual’s, a nation’s, and a country’s willingness or unwillingness to embrace new technology. The nature of the debate shows that privacy is not an issue only of data protection, that it is much more than just a sum of numbers. Instead, privacy is something that must be viewed holistically and contextually, and that must be a factor when assessing new policies.

For more details visit https://cis-india.org/internet-governance/blog/privacy-concerns-in-whole-body-imaging-a-few-questions

Privacy and Security Can Co-exist

sunil — 2012-03-21T09:05:57Z

The blanket surveillance the Centre seeks is not going to make India more secure, writes Sunil Abraham in this article published in Mail Today on June 21, 2011.

TODAY, the national discourse around the “ right to privacy” posits privacy as antithetical to security.

Nothing can be farther from the truth. Privacy is a necessary but not sufficient condition for security. A bank safe is safe only because the keys are held by a trusted few. No one else can access these keys or has the ability to duplicate them. The 2008 amendment of the IT Act and their associated rules notified April 2011 propose to eliminate whatever little privacy Indian netizens have had so far. Already as per the Internet Service Provider ( ISP) licence, citizens using encryption above 40- bit were expected to deposit the complete decryption key with the Ministry of Communications and Information Technology. This is as intelligent as citizens of a neighbourhood making duplicates of the keys to their homes and handing them over at the local police station.

Surveillance

Surveillance in any society is like salt in cooking — essential in small quantities but completely counter- productive even slightly in excess. Blanket surveillance makes privacy extinct, it compromises anonymity, essential ingredients for democratic governance, free media, arts and culture, and, most importantly, commerce and enterprise. The Telegraph Act only allowed for blanket surveillance as the rarest of the rare exception. The IT Act, on the other hand, mandates multitiered blanket surveillance of all lawabiding citizens and enterprises.

When your mother visits the local cybercafe to conduct an e- commerce transaction, at the very minimum there are two levels of blanket surveillance. According to the cyber- cafe rules, all her transaction logs will be captured and stored by the operator for a period of one year. This gentleman would also have access to her ID document and photograph. The ISPs would also store her logs for two years to be in compliance with the ISP licence ( even though none of them publish a data- retention policy). Some e- commerce website, to avoid liability, will under the Intermediary Due Diligence rules also retain logs.

Data retention at the cyber- cafe, by the ISP and also by the application service provider does not necessarily make Indian cyberspace more secure. On the contrary, redundant storage of sensitive personal information only opens up multiple points of failure and leaks — in the age of Nira Radia and Amar Singh no sensible bank would accept such intrusion into their core business processes.

Surveillance capabilities are not a necessary feature of information systems.

They have to be engineered into these systems. Once these features exist they could potentially serve both the legally authorised official and undesirable elements.

Terrorists, cyber- warriors and criminals will all find systems with surveillance capabilities easier to compromise.

In other words, surveillance compromises security at the level of system design. There were no Internet or phone lines in the Bin Laden compound — he was depending on a store and forward arrangement based on USB drives. Do we really think that registration of all USB drives, monitoring of their usage and the provision of back doors to these USBs via a master key would have led the investigators to him earlier?

Myth

Increase in security levels is not directly proportional to an increase in levels of surveillance gear. This is only a myth perpetuated by vendors of surveillance software and hardware via the business press. You wouldn't ask the vendors of Xray machines how many you should purchase for an airport, would you? An airport airport with 2,000 X- ray machines is not more secure than one with 20. But in the age of UID and NATGRID, this myth has been the best route for reaching salestargets using tax- payers’ money.

Surveillance must be intelligent, informed by evidence and guided by a scientific method. Has the ban on public WiFi and the current ID requirements at cyber- cafes led to the arrest of terrorists or criminals in India? Where is the evidence that more resource hungry blanket surveillance is going to provide a return on the investment? Unnecessary surveillance is counter- productive and distracts the security agenda with irrelevance.

Finally, there is the question of perception management. Perceptions of security do not only depend on reality but on personal and popular sentiment. There are two possible configurations for information systems — one, where the fundamental organising principle is trust and second, where the principle is suspicion.

Systems based on suspicion usually give rise to criminal and corrupt behaviour.

Perception

If the state were to repeatedly accuse its law- abiding citizens of being terrorists and criminals it might end up provoking them into living up to these unfortunate expectations. If citizens realise that every moment of their digital lives is being monitored by multiple private and government bodies, they will begin to use anonymisation and encryption technology round the clock even when it is not really necessary. Ordinary citizens will be forced to visit the darker and nastier corners of the Internet just to download encryption tools and other privacy enabling software. Like prohibition this will only result in further insecurity and break- down of the rule of law.

The writer is executive director of the Bangalore- based Centre for Internet and Society.

Read the original published in Mail Today here

For more details visit https://cis-india.org/internet-governance/blog/privacy-and-security

American Bar Association Online Privacy Conference: A Report

elonnai — 2012-03-21T10:08:36Z

On 10 November 2010, I attended an American Bar Association online conference on 'Regulating Privacy Across Borders in the Digital Age: An Emerging Global Consensus or Vive la Difference'. The panalists addressed many important global privacy challenges and spoke about the changes the EU directive is looking to take.

Introduction

On 10 November, I attended an American Bar Association online conference on “Regulating Privacy Across Borders in the Digital Age: An Emerging Global Consensus or Vive la Difference.” The panel was made up of:

Lisa Sotto, a private practitioner in the US
Billy Hawkes, Commissioner of Data Protection, Ireland
Bojana Bellamy, Director of Data Privacy, London, UK
Hugh Stevenson, Deputy Director of the Federal Trade Commission, US
Jennifer Stoddart, Privacy Commissioner, Canada.

The panelists shared their insight into many issues, including the challenges that cloud computing, behavioural advertising, and cross-border data transfer pose to privacy. The panel also spoke on the need to address concerns of enforcement, data breach, accountability, and harmonization of data protection policies. The conference was very informative, and brought up many points that, as India moves forward with a privacy legislation, should be considered and given thought about.

Technology Concerns: Cloud Computing, Behavioural Advertising, and Cross- border Data Transfer

When speaking about the concerns of cloud computing, behavioural advertising, and cross-border data transfer – the panel was in agreement that privacy policies need to move beyond paper to practice. They questioned whether broad national law can actually address the privacy concerns associated with these issues, or whether internal, specific policies are more effective at protecting data being outsourced to the cloud, passed through the Internet, and sent across borders. Specifically addressing cloud computing internal policies have the potential to be more effective, because data in the cloud is essentially nowhere; it does not reside in one jurisdiction, and thus it is difficult to establish which countries’ laws apply to the data. Additionally, if there is a breach in data, the onus at the end of the day falls on the company that was in possession of the data the data breach. Though internal policies could also be used to address behavioural advertising, the lack of consumer awareness limits how effective a self-regulating program can be. Hugh Stevenson suggested another possibility - creating a system analogous to the “do not call registry” for websites – something like “do not track.” This would allow consumers to opt out of being tracked by cookies etc. on a websites, and force websites to be transparent about their collection and retention of data. Another solution discussed that could work to move policies beyond paper to practice, was the emerging trend of “privacy by design". “Privacy by design” is a mechanism applied by technology manufacturing and technology providing companies where companies will assess privacy risks before they offer a service, or before a product goes onto the market. This might mean a software company or service provider will need a seal before selling their products that indicates the product or service meets a certain privacy standard. If enforced effectively, the system of a seal could be especially effective, because it creates a visual indicator of privacy - allowing consumers to easily and quickly recognize what products are more privacy risky than others, and easily find reliable and secure data processors. The ability of the privacy seal to be applied to all services and sectors, would be particularly useful in a sectoral system like the US, where companies that collect data, but are not apart of the regulated sectors (financial, health, etc) do not come within the purview of the privacy protecting laws.

Privacy Seals Globally? Privacy Seals in India?

If this system of a privacy seal becomes widely used, it will be interesting to see the effect that it has on the international community, and subsequently – the Indian consumer. Even though India does not have a privacy legislation, nor a heightened concern over personal privacy, the Indian consumer does consume American-developed software, phones, computers and other technologies. Perhaps as a “privacy seal” begins to be seen on foreign products used in India, it will create pressure on domestic manufacturers and service providers to meet similar standards with their products. Furthermore, perhaps foreign countries will not want to engage in trade with a company if that company does not use the “privacy seal". Similar pressure is being placed on Chinese-made technologies. For example, the reputation that Chinese phones have of being dangerous and cheap has led some countries, like Australia, to place bans on the phones coming into their borders. Essentially a privacy seal could provide sufficient economic incentives and pressures on companies globally to ensure that their products and practices adequately protect consumer privacy.

Accountability:

In addition to internal policies and seals as ways to push privacy protection beyond theory and into practice, the panel heavily emphasized the need for accountability. Accountability, according to Bojana Bellamy – the EU Data Privacy Director, is increasingly necessary because data is constantly being sent and processed in multiple countries and places across the globe. How to create a greater level of accountability amongst organizations has been a subject of much discussion. Currently the EU is looking at adding an“accountability principle” to the directive. The directive is defining accountability as: showing how responsibility is exercised and making this verifiable -or in simpler terms – compliance with principles in the data protection field. The accountability principle that is being proposed would be comprised of two requirements. One requirement would obligate the data controllers to implement appropriate and effective measures that made sure the principles and obligations of the Directive were being put into effect by organizations. The second would be to require that data controllers demonstrate that these measures have been taken. In practice, this would translate into scalable programs such as the requirement of a privacy impact assessment,monitoring,sanctions, and internal and external audits The legal architecture of the accountability mechanism would be two-tiered. One tier would consist of the basic statutory requirement that would be binding for all data controllers; the second would include voluntary accountability systems. This would also mean that the data controllers would need to strengthen their internal arrangements. Further accountability measures considered by the Directive working party include: Establishment of internal procedures prior to the creation of new personal data processing operations, setting up written and binding data protection policies to be considered and applied to new data processing operations, mapping of procedures to endure proper identification of all data processing operations and maintenance of an inventory of data processing operations, appointment of data protection officer, offering adequate data protection, training, and education to staff members.

Data Breaches:

The panel next discussed data breaches. From the example of the UK, where in 2007 the government lost 24 million records from the Child Benefit Database – clearly date breaches are a continual, often very serious problem. Few people though, realize the extent to which data breaches happen (on their own personal data) and the actual consequences of the breaches, because countries do not have a well defined data breach policies set in place. There are a handful of European countries, like France and Germany, and some American states, like California, that have included data breach requirements into their laws. Also, Despite this, there are no broad statutes for data breach notification in the US or the EU. Also in 2009 the E-Privacy Directive, which applies to ISPs, telecommunication networks, and other electronic communications services, made it mandatory for certain data breaches to be reported.. Whether data breach notification should be made a requirement through legislation is a question many countries are facing. Some countries, like Canada, rely on self-regulation for enforcement of data breaches. Jennifer Stoddart, the data commissioner from Canada, spoke about how self regulation in Canada works. One of the mechanisms that makes self-regulation so effective is the media. If a data breach occurs, through bad press, the media causes the social and monetary costs to increase, so that companies will want to prevent data breaches. The privacy commission of Canada works to help companies remedy the breaches when they occur, but focuses mainly on working with companies to prevent a breach from taking place at all. Challenges and question that self regulation face are:

Will companies work to be less transparent and avoid notification despite the severity of the breach, because of the repercussions?

How will the balance between over-reporting breaches with under-reporting breaches be maintained?
Even if there is a social incentive to provide notification of breach, is it adequate enough to ensure that the notification is comprehensive and that proactive steps are taken by the organization to prevent further breach?
If bad media is the main form of penalty for companies – is this enough penalty, and is it able to take into consideration the context of each privacy breach?

These questions along with the growing number of breaches that are occurring have pushed the EU and other countries to consider integrating data breach statutes into broad legislation.

E-Privacy Directive Breach Notification:

Under the E-Privacy Directive the definition of a personal data breach is “breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted or otherwise processed in connection with provision of a publicly available electronic communications service in the Community.” Currently the system in the EU is broken down into a two tiered system – a breach notification by the organization to the data controller is the first level. This level includes breaches that have occurred, but do not necessarily harm an individual. The second tier is if the breach impacts the subscriber or individual, than the individual must be notified of the nature of the breach, and recommendations made of measures to mitigate the possible adverse effects of the breach. If the breach is so large that individual notice is impractical, notice of the breach must be posted in the media. Failure to notify or incorrect notification results in sanctions. In the UK, data breach notification must include:

1. The type of information and compromised number of records

2. The circumstances of the loss, release, or corruption

3. Actions taken to minimize or mitigate the effect on individuals involved including whether they have been informed

4. details of how the breach is being investigated,

5. whether any other regulatory bodies have been informed and, if so, their responses

6. remedial actions taken to prevent future occurrences and any other information that may assist the ICO in making an assessment.

Accountability, breach notification: What material should India think about for a legal privacy structure?

Lawrence Friedman once explained that legal systems are living organisms – Bills are constantly being amended, passed, and retracted in order to make the legal structure that governs a society reflect the ethos of that society. Thus, when conceptualizing a new piece of legal legislation it is important to look at what purpose that legislation is going to serve, and if that purpose reflects the ideas, values, attitudes, and expectations that a society has. India is a nation that has enacted statutes and regulations for responding to cultural and economic changes against a backdrop of widely-dispersed population groups with deeply-engrained traditions of government and management. This has led to incongruities, for example, there are strong requirements for government transparency, but at the same time there is a common perception that bribery is necessary to prompt official action. There are laws to protect certain rights, but the average person who takes action will never be afforded redress. Thus, India faces both similar and different challenges that the EU and Western countries are face in concern with privacy. One of the greatest privacy challenges in India today, despite having adopted technology, habits, and practices that put privacy at risk, is the common perception that India does not have any privacy issues. Because it is believed that privacy is not at risk, there is a lack of awareness and understanding as to how to prevent privacy violations. Though the breach notification and accountability components that were discussed in the meeting are very detail-oriented mechanisms, they raise a fundamental question about legal architecture and context. When forming a privacy legislation, a few broad questions that India needs to consider are:

· Does it want a broad legislation, one that could limit business and trade (unless potential trading partners demand such legislation), or sector-based legislations, which risk being too tailored and difficult to harmonize?

· If India wants a broad privacy framework how will this be set up?

· What will be the tools used for civil education?

· How will enforcement take place ?

· Is self regulated accountability or statuary accountability better?

· Will there be a privacy tribunal?

· How will data be categorized?

· Will breaches be notified?

· Will standardized privacy policies be created?

As Hugh Stevenson, the commissioner from the FTC, described - one of the greatest benefits of breach notification was the awareness of privacy that it has brought. As individuals are notified that their information has been compromised, they are becoming more aware of how technologies work and how their information is processed, and what risks are involved and what protective measures they should take. Looking at the prospect of enhanced awareness from making data breach notification mandatory, it seems that it can only be a positive step for India to take towards raising awareness and understanding of privacy. The notification of breach could be required to specifically include a description of why the breach took place, and the steps that individuals could take to further protect their data. A concern that has been voiced - is whether a comprehensive legislation could be implemented? And should India be looking to enact such a comprehensive and detailed legislation when there is no existing privacy legislation to build off of, and no deep culture of privacy? To these concerns I can only speculate that there is always a balance between being overly ambitious in a legislation, and too conservative. It seems that enforcement will in fact always be a challenge in India, and that part of policy-making needs to address this challenge, rather than avoid it.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-aba-conference

Consumer Privacy - How to Enforce an Effective Protective Regime?

elonnai — 2012-03-21T10:06:04Z

In a typical sense, when people think of themselves as consumers, they just think about what they purchase, how they purchase and how they use their purchase. But while doing this exercise we are always exchanging personally identifiable information, and thus our privacy is always at risk. In this blog post, Elonnai Hickok and Prashant Iyengar through a series of questions look through the whole concept of consumer privacy at the national and international levels. By placing a special emphasis on Indian context, this post details the potential avenues of consumer privacy in India and states the important elements that should be kept in mind when trying to find at an effective protective regime for consumer privacy.

Who is a consumer?

According to the Consumer Protection Act,1986, a consumer is a broad label for any person who buys any goods or services for consideration with the intent of using them for a non-commercial purpose. In the typical sense, when people think of themselves being a consumer, they might think about what they purchase through a physical exchange of money for goods or services, ranging from things as simple as fruit or grain to home appliances to cable television, either in a store or through an online exchange where you enter in your credit card information and receive your purchase. Certain services that consumers use may, by their very nature, put an extraordinary amount of sensitive personal information into the hands of vendors. Typical examples include hospitals, banks and telecommunications.

What is Consumer Privacy and how may it be breached?

Consumer privacy is concerned with the manner in which information disclosed by a consumer to a vendor is collected and used. Specific issues include: behavioral advertising, spyware, identity management, and data security/breach, Increasingly, data that is collected from consumers is stored in databanks. This is then used for both legitimate purposes (such as marketing, research etc) and illegitimate extraneous purposes (as when this data is sold in bulk to third parties). Additionally, the privacy of consumers may be compromised by actions of third parties that are facilitated by the negligence of the vendors (as for instance hacking into databases). The following international examples illustrate the kinds of privacy threats that the collection of data from consumers may pose[1]

Example 1) Toysmart – an online company- collected personal information from its users, promising to keep it private. In 2000, Toysmart entered bankruptcy and in an attempt to avoid losing everything tried to sell its database despite its strict privacy policy. This example illustrates how vendors may attempt to monetize the personal information of customers exceeding the terms of the contract entered into with them.

Example 2) In 2006 it was found that AOL's research site had a stored file that contained information collected from more than 600,000 users between March to May of 2006. Though the file did not indicate each user by name, it was eventually found that there was enough information to correlate specific individuals to their user number. The example of AOL’s demonstrates the danger of online privacy breaches through either oversight or negligence of the vendor in adopting adequate security measures.

Example 3) Similar to the previous example ChoicePoint – an all-purpose information broker, whose database contains information about nearly every adult American citizen, had its system hacked. The thieves had access to the names, addresses and social security.

How is consumer privacy protected- internationally ?

Broad guidelines: The OECD Privacy Guidelines

Though not a law, the OECD Guidelines drafted in 1980 provide a useful set of ‘fair information practices’ within which privacy of consumers may be evaluated. Briefly, the eight principles declared were: 1) Collection limitation principle (there should be limits to the collection of data), 2) data quality principle (data should be accurate and relevant to the purpose collected), 3) purpose specification principle, 4) use limitation principle, 5) security safeguards principle, 6) openness principle (there should be openness about data policies and changes thereof), 7) individual participation principle (enabling the individual to find out if data is being held about him and to obtain a copy of the data and make corrections) and 8) accountability principle [2].

The EU Data Protection Directive (Directive 95/46/EC)

This is a broad directive adopted by the European Union designed to protect the privacy of all personal data of EU citizens collected and used for commercial purposes, specifically as it relates to processing, using, or exchanging such data. The Directive establishes a broad regulatory framework which sets limits on the collection and use of personal data, and requires each Member State to set up an independent national body responsible for the protection of data. The Directive prohibits the transfer of protected personal information outside the EU unless the receiving country applies similar legal protections. The basic guidelines of the Directive are [3]:

Notice: Data subjects must be notified of the: identity of the collector of their personal information, the uses for which the information is being collected, how the data subjects may exercise any available choices regarding the use or disclosure of personal information, where and to whom information may be transferred, and how data subjects may access their personal information.

Consent: “Unambiguous consent” of a data subject is required before any personal information may be processed. Special categories such as race, religion, political of philosophical beliefs, health, union membership, sex life, and criminal history have additional processing requirements.

Consistency: Controllers and processors may only use information in accordance with the terms of the notice given.

Access: Controllers must give data subjects access to personal information.

Security:Organizations must provide adequate security, using both technical and other means to protect the confidentiality and integrity of the data.

Onward transfer: Personal information may not be transferred to a third party unless that third party has signed a contract with the individual or organization which binds them to use the information consistently with the notice given to the data subjects.

Enforcement: Each EU country has established a Data Protection Authority that has the power to investigate complaints, levy fines, initiate criminal actions, and demand changes in businesses information handling practices.

Specific Sectoral Legislation and privacy policies

The US takes a sectoral approach to protecting consumer privacy. Legislation that protects consumer privacy includes: Gramm-Leach Bliley Act, Health Insurance Portability and Accountability Act, and the Children's Online Privacy Protection Act. Also, the CAN-SPAM Act bans the sending of commercial electronic messages that contain false information. The most comprehensive act for the consumer in the U.S is the Fair Credit Report Act, which was passed in 1970. Enforcement of the Act is vested in the Federal Trade Commission. The FCRA applies to how consumers information is collected and used, and applies to insurance, employment, and other non-credit consumer transactions. Under the FCRA the information that is protected is broadly defined as 1. Consumer Report- any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer' s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumers eligibility for credit, insurance, and employment purposes.

Furthermore the FCRA:

(a) provides the right for consumers to ensure the accuracy of their data.

(b) includes “right to know” provisions to enable consumers to know all information in their files

(c ) grants consumer dispute rights

(d) requires opt-out options [ibid 4]

Consumer Privacy in India

Broadly, there are four potential avenues for the protection of consumer privacy in India.

1. Individual organizations may voluntarily commit to protect the information of their clients through “Privacy Policies” These become a component of the contractual commitments between the service providers and customers and are enforced through ordinary civil litigation.

2. Certain professions and industries have codes of privacy that they must statutorily abide by. This is true of such professions as the medical profession and the legal profession in India and the entire banking industry and the telecom industry. Rigorous privacy norms are set for each of these industries by their respective apex governing bodies. Penalties for breach include derecognition and monetary penalties.

3. Consumer privacy may be enforced by the specialized Consumer Dispute Tribunals under the Consumer Protection Act in India.

4. The newly amended Information Technology Act imposes an obligation on anyone controlling data to indemnify against losses caused by the leakage/improper use of that data.

Each of these mechanisms is discussed in some details below:

Privacy Policies:

Several Indian companies have publicly stated privacy policies that they display on their website. We have profiled the privacy policies of two such companies as a sample.

Airtel: Defines personal information, informs users how their information will be used, describes which third parties will have access to your information, provides the ability to opt-out of commercial SMSs, provides an email address for privacy concerns.

Rediff: Provides email for customer support, states what personal information is collected from you, what information is collected from you by cookies, what information is collected about you and stored, who will collect the information about you, how the information will be used to advertise to you and tailor to your preferences, states the rights that advertisers have to your information, disclaimer of responsibility for any other websites linked to the page, states that the information released in a chat room is considered public information, defines third party usage, defines security measures taken, lays out what choices the consumer has regarding collection and distribution of their information, contains opt-out clauses, defines personal information, defines cookies, explains that consumers have the ability to correct inaccurate information, requires youth consent [5].

Examples of Indian organizations without a privacy policy on websites: Canara bank, Andhra Bank, Indian railways, Air-India, BSNL, State Bank of India.

Note: The International Guide to Privacy suggests the following be included in privacy policies: description of the personal information collected by the website and third party, description of how the information is used and list of parties with whom it may be shared, a list of the options available regarding the collection, use, sharing and distribution of the information, a description of how inaccuracies can be corrected, a list of the websites that are linked to the organization’s site and a disclaimer that the organization is not responsible for the privacy practices of other sites, a description of how the information is safeguarded (both physically and electronically) against loss, misuse, and alteration, consent for use of personal information [6].

Professional/Industrial Regulations

As mentioned above, several professional bodies have privacy guidelines which their members must abide by.

Advocates

Rules of Professional Conduct have been framed under the Advocates Act and establishes a code of conduct to be followed by lawyers in order to protect the confidence, information, and data of a client. It is important to note that the obligation of confidentiality continues even after the client relationship is terminated. The Evidence Act further buttresses the confidentiality of clients by making information passed between lawyer and client subject to a special privilege [7].

Medical Practitioners

Similarly, in 2002, the Medical Council of India notified the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations which contain ethical injunctions backed by disciplinary action in cases of breaches. Several of these relate to privacy, for instance : Every physician is required to maintain medical records pertaining to indoor patients for a period of 3 years from the date of commencement of the treatment [8].

Article 2.2: Requires physicians to maintain Confidences concerning individual or domestic life entrusted by patients to a physician. Defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. The rule also requires the physician, controversially to evaluate “whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed”. In such an instance, the rules advice the physician to “act as he would wish another to act toward one of his own family in like circumstances.”

Article 7.14: Enjoins the registered medical practitioner not to disclose the secrets of a patient that have been learnt in the exercise of his / her profession except –

1. in a court of law under orders of the Presiding Judge;

2. in circumstances where there is a serious and identified risk to a specific

person and / or community; and

3. notifiable diseases.

Article 7.17: Forbids a medical practitioner from publishing photographs or case reports of patients without their permission, in any medical or other journal in a manner by which their identity could be made out. If the identity is not to be disclosed, however, the consent is not needed.

Important Case Law

In one of the most important cases to have come up on the issue of privacy, a person sued a hospital for having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off. In Mr. X vs Hospital Z, the Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest. The supreme court while affirming the duty of confidentiality owed to patients, ruled that the right to privacy was not absolute and was “subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.”[9] This case raises certain questions which might be worthwhile to consider:

1. Are there other ways in which the situation could have been handled – such as through proper counselling. Furthermore, it is important to establish what the role of a hospital is, and where their primary interest lies in protecting their patient and their patients data, and take into consideration the importance of consent in handling and disclosing personal information.

2. The argument that there is no absolute for privacy raises questions of who is determining the limits for disclosure of the man's HIV status. If his fiancé should be informed of his results, should his workplace , community, church? Do they face the same risks as his fiancé? Who is to be the judge of this risk?

Banking and Telecom Industry

The Banking and Telecom industry each have regulatory authorities which have periodically issued guidelines seeking to protect the privacy of customers. Thus, for instance, RBI's Customer Service statement obliges bankers to maintain secrecy, and not to divulge any information to third parties. Likewise, the TRAI has issued regulations on unsolicited commercial communications and has initiated steps to monitor confidentiality measures taken by telecom operators. More details are provided in the accompanying briefs that exclusively deal with the banking and telecom industries.

Consumer Protection Act 1986:

The Consumer Protection Act which was enacted with the objective to provide for better protection of the interests of the consumer has emerged as a major source of relief to those who have suffered violations of their privacy {10}.

Important Case Laws

In Rajindre Nagar Post Office vs. Sh Ashok Kriplani a post master was accused of not delivering a registered letter, opening it, and then returning it in a torn condition. It was determined that the tearing of the letter without delivery to addressee was a grave “deficiency in service” on the part of the appellant. It was ruled that the right of privacy of the respondent was infringed upon by the postman. Under the Consumer Protection Act 1986, compensation of Rs. 1000 was awarded as to the mental agony, harassment, and loss arising from the charge of deficiency in service. The importance of this case lies in the willingness of the courts to treat breach of privacy as a “deficiency of service”[11].

In January 2007, the Delhi State Consumer Disputes Redressal Commission imposed a fine of Rs. 75 lakh on a group of defendants including Airtel, ICICI and the American Express Bank for making unsolicited calls, messages and telemarketing. Although this decision was reversed on appeal by the Delhi High Court it confirms a trend of Consumer Dispute Redressal Commissions willing to take up cudgels on behalf of consumers for violations of their privacy.

Information Technology Act 2000 (Amended 2008)

In 2008, the Information Technology Act was amended to include an extremely salutary relief to people when a breach of privacy is occasioned by the leakage of data from computerised databases maintained by corporates. Thus, the newly inserted Section 43A states that if a “body corporate” is possessing, dealing, or handling any “sensitive personal data or information” in a computer resource which it owns, controls, or operates, and is negligent in implementing and maintaining “reasonable security practices and procedures” and thereby causes wrongful loss or wrongful gain to any person, this body corporate will become liable to pay damages as compensation to the affected person.

The Section further stipulates that the Central Government would come up with the reasonable security practices and procedures and would also define what constituted ‘personal sensitive information’.

Likewise, the newly introduced Section 72A declares that if “any person including an intermediary” secures access to any personal information about another person while providing services under the terms of lawful contract, and if he, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain, discloses such information without the consent of the person concerned, or in breach of a lawful contract, he is liable to be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to five lakh rupees, or with both [12].

Conclusion

In conclusion it is important to consider many elements when looking at an effective protective regime for consumer privacy :
1. Is a comprehensive data protection of a sectoral approach more suited to the needs of India?

2. Does India want to become compliant with international standards for data protection ?

3. How will privacy policies be enforced and how will organizations be held accountable for protection of client privacy under the legislation ?

4. Will consumers be notified if their information is breached? If so – what will be included in the breach notification?

5. How can a legislation ensure that consumers are aware of their privacy rights?

6. How can a privacy legislation address the need for different levels of protection for different types of data?

Bibliography:

1. Examples drawn from: Oussayef, karim. Selective Privacy: Facilitating Market Based Solutions to Data Breaches by Standardizing Internet Privacy Policies. 14 B U Journal Sci and Tech Law. 105 2008.

2. Organisation for Economic Co-operatioin and Development, OECD Guidelines for the Security of Information Systems and Networks: Towards a Culture of Security , July 25, 2002

3. Directive 95/46/EC of European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processting of personal data and on the ree movement of data

4. Westby Jody, International Guide to Privacy. American Bar Association. 2004 pg.34-4

5http://www.rediff.com/w3c/policy.html

6. Westby Jody, International Guide to Privacy. American Bar Association. 2004 pg. 161-164

7. The Advocates Act 1961http://www.sharmalawco.in/Downloads/THE%20ADVOCATES%20ACT%201961.pdf

8 Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations. Published in Part III, Section 4 of the Gazette of India, dated 6th April, 2002http://www.mciindia.org/rules-and-regulation/Code%20of%20Medical%20Ethics%20Regulations.pdf.

9. (1998) 8 SCC 296:http://indiankanoon.org/doc/382721/

10. Indian Consumer Protection Act 1986http://www.legalhelpindia.com/consumer-protection-act.html.

11.http://164.100.72.12/ncdrcrep/judgement/80Post%20Master%20Vs%20Ashok%20Kriplani%20(JDK)%2023.03.2009.htm

12. Information Technology Act 2000: Amended 2008http://www.mit.gov.in/content/information-technology-act.

For more details visit https://cis-india.org/internet-governance/blog/privacy/consumer-privacy

Public Statement to Final Draft of UID Bill

elonnai — 2012-03-22T05:48:00Z

The final draft of the UID Bill that will be submitted to the Lok Sabha was made public on 8 November 2010. If the Bill is approved by Parliament, it will become a legal legislation in India. The following note contains Civil Society's response to the final draft of the Bill.

On 8 November 2010, the UID Authority issued the final draft of the UID Bill that will be submitted to the Lok Sabha for review and approval. Earlier this year in June 2010 the Authority issued a draft UID Bill to the public for comment and review. Civil Society responded with a detailed summary and high summary of points that amended the draft or were missing in the draft Bill. We are disappointed that none of the concerns raised by Civil Society, including those listed below, were addressed.

Architecture

The centralized architecture of the UID project is unnecessary. A federated and decentralized structure to the UID project would achieve the same goal of providing identity, authentication, and delivery of benefits.

Scope

The scope of the Bill is overboard. Though the main purpose of the Bill is to facilitate the delivery of benefits to residents, the loose language and intermixing of terms creates a threat that data will be collected and used beyond delivery of benefits

Voluntary and not Mandatory

The Bill should prohibit the denial of goods, services, entitlements, and benefits for lack of a UID number- provided that an individual furnishes equivalent ID, thus ensuring that the Aadhaar number is truly voluntary.

Inadequate Privacy Safeguards

The Bill inadequately elaborates on the principles of privacy relating to identity and transaction data. The protections needed should be self-contained within the Bill. Thus, the UID Bill itself should be clear and concise about data collection, transfer, retention, security, and dissemination.

Unwarranted Data Retention

The Bill does not provide adequate privacy protection for transaction data. In particular section 32(2) empowers the Authority to determine the duration that data is to be retained for.

Lack of accountability for all Actors

The Bill holds only the Authority accountable for violations. Rather the Bill needs to hold enrolling agencies, registrars, and other service providers accountable. Furthermore, the Bill does not provide adequate regulations or accountability for the data that are outsourced.

Lack of Exceptions

The Bill does not detail the circumstances and categories of people who will be excused or accommodated with respect to the issuing of Aadhaar numbers or authentication of transactions.

Lack of Anonymity

The Bill does not provide adequate specificity as to the situations in which anonymity will be preserved and/or an Aadhaar number should not be requested.

Inadequacy of Penalties

The penalties provided in the Bill are inadequate, because they do not cover several types of misuse.

Unaffordability of Fees

It is incompatible with the Bill’s stated purpose of inclusion to require an individual to pay to be authenticated.

Lack of Rollback and Ombudsman Office

The Bill does not provide adequate redress for system/transaction errors and fraud.

Inappropriate Structure and Governance

The Bill does not provide appropriate judicial and parliamentary oversight.

Upon comparison of the draft Bill and the final Bill, CIS finds the following changes the most significant:

Definition of Resident

Section 2 (q): “resident” means an individual usually residing in a village or rural area or town or ward or demarcated area (demarcated by the Registrar General of Citizen Registration) within ward in a town or urban area”

Comment: This section clarifies the definition of ‘resident’ from the draft Bill, which defined resident as an “individual usually residing within the territory of India”. By specifying that individuals in demarcated areas will not receive UID numbers, the definition of resident is brought into line with the scope of the Bill as laid out in the preamble. We see this change as a positive revision.

Prohibition of Dissemination of Information

Section 30 (3): “Notwithstanding anything contained in any other law and save as otherwise provided in this Act, the Authority or any of its officer or other employee or any agency who maintains the Central Identities Data Repository shall not, whether during his service as such or thereafter, reveal any information stored in the Central Identities Data Repository to any person”

Comment: This section prohibits the dissemination of any information that is stored in the Central Identities Data Repository. This prohibition extends to anyone or any entity that handles information, and supersedes other laws that might permit dissemination of information. We see this change as a positive revision.

Disclosure of Information in the Case of a National Security

Section 33 (b):“Any disclosure of information (including identity information) made in the interests of national security in pursuance of a direction to that effect issued by an officer or officers not below the rank of Joint Secretary or equivalent in the Central Government specifically authorised in this behalf by an order of the Central Government”

Comment: This section is a minor improvement on the previous draft since it requires specific authorization from the Central Government (rather than from a Minister in charge). Unfortunately, however, it retains the undesirable language of "national security" from the previous draft which, as we had previously pointed out, is not currently clearly defined under Indian law. An alternative phrase that we recommend instead is the Constitutional vocabulary of "public emergency" which already has a considerable volume of judicial reasoning that has elaborated what it means. Eg. in Hukam Chand v. Union of India (AIR 1976 SC 789) it was held that a public emergency "is one which raises problems concerning the interest of public safety", the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order, or the prevention of incitement to the commission of an offence."

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-publicstatement-UID

UID Meeting in Bangalore – A Report

praskrishna — 2011-01-04T08:14:52Z

On 23 November 2010 a public meeting was held for the UID in Bangalore. The speakers included B.K Chandrashekar, former Chairman of the Karnataka Legislature Council, Mr. Vidyashankar, Principal Secretary to Government of e-commerce, Sunil Abraham, Executive Director of Centre for Internet and Society, Jude D’Souza, Technology Specialist and Mathew Thomas, Retired Army Officer.

Mr. Chandrashekar opened the public talk by giving a summary of the UID scheme, and sharing his own personal apprehensions to the project. Voicing his concerns as to the scale and architecture of the project, the collection of biometrics from individuals, and the fact that other countries have abandoned similar projects – he raised many points that evoked thought from the audience.

In his presentation, Jude D’Souza explained how the technology (iris scanners and fingerprint readers) that is used in the UID project can be easily spoofed. Through demonstration he proved how fingerprints can be replicated and subsequently authenticated with the use of simply a wax model. He also raised the point that high resolution cameras are now able to capture an individual’s fingerprint and iris at that point the captured image can be transferred and duplicated, and subsequently used for authentication. The point emphasized by D’Souza was that the technology being used by the UID is not as fool proof as is being claimed, and yet nowhere in the Bill or project is this concern being addressed. Redress for possible transaction errors is not provided for in the Bill, and it is not clear if a problem does arise what steps an individual should take.

Sunil Abraham spoke on the legality of the UID project. Emphasizing the point that civil society does not oppose the project in itself, but that civil society is concerned with the weaknesses that exist in the proposed legislation. He noted problems such as an overly broad scope, privacy concerns, and lack of adequate forms of redress. Mr. Abraham also contrasted the UID project with the identity work that has been done in Estonia, and raised the question as to whether a centralized is entirely necessary as opposed to a decentralized system of identity.
Mathew Thomas, through the use of many examples drove home two main questions.

Why is a project that is based on biometrics with a centralized structure necessary?
Can the project realistically meet its proposed objectives of bringing benefits to the poor?

Using the UK’s failed centralized identity scheme, which is similar to the UID scheme, he made the argument that India has the opportunity to learn from the mistakes of others, and this opportunity should not be overlooked or passed by. Mr. Thomas also pointed out that a proper cost benefit analysis is lacking for the project, as well as proper test trials of the technology and scheme.

Mr. Vidyashankar presented on the progress of the UID in Karnataka and answered questions concerning the project. In particular he focused on explaining the collection of information for Know Your Resident (KYR), and Know Your Resident+ (KYR+). KYR information includes: an individual’s name, address, date of birth, gender, relation details, phone number (optional), email (optional), and financial information. KYR+ includes: Physically Handicapped, EPIC Card No, Pan No., Bank Details, LPG Gas Connection, Supply Card, MNREGA Job Card, RSBY Card No, Pension ID, National Population Register No, Property Tax, Electricity Consumer No., Water Connection No., and BPL Data. The purpose of collecting the extra data for KYR+ is to prevent the exploitations of subsidies. By having on record who is eligible for what benefit, the over collection of benefits will be stopped. Vidyashankar also addressed privacy concerns, assuring the audience that information is encrypted at the time of collection and secured for privacy measures.

The reaction from the audience was one of apprehension, and in some cases anger. Individuals questioned the achievability of the objectives of the project, and expressed concerns that their tax money was being wasted. The overall sentiment in the room was that the UID project and Bill will be passed through Parliament but that in the long run, it will not benefit the everyday Indian citizen.

In a later interview Mr. Vidyashankar kindly clarified different details of the project that were still unclear. For example, if an individual needs to update the information in their profile – like their address - they are able to by visiting the closest centre , authenticating themselves, and requesting that the information be changed. He also clarified that registrars and enrollers are monitored as they are registering and authenticating individuals. He also clarified that numbers issued today and in the pilot projects will be valid after the Bill is passed through parliament. At the close of the interview he again assured me that the UID project does account for individual’s privacy, and is able to adequately protect collected data on due to the use of level five encryption. Despite Mr. Vidyanshankar’s assurances, it does not seem logical that the UID project is privacy safe, if a Privacy Legislation is being created specifically to protect the data that the UID will be collecting. It is concerning that the UID project is being carried forward without adequate built in safeguards, and even more concerning that it will the Bill could be passed through parliament and become a living law without the much needed privacy safeguards in place.

Note: Recently a final draft of the UID Bill that will be submitted to the Lok Sabha was released to the public. Civil Society has responded with comments and concerns for the UID Bill, which can be found on the CIS website.

VIDEOS

For more details visit https://cis-india.org/internet-governance/blog/privacy/uid-meeting-november

UID & Privacy - A Call for Papers

elonnai — 2012-03-21T10:03:44Z

Privacy India is inviting individuals to author short papers focused on Unique Identity (UID) and Privacy. Selected candidates will have their papers published on the CIS website, and their transportation and accommodation provided for the “Privacy Matters” conference being held in Kolkata on 22 January 2010.

Topic

Privacy and the UID

Submission Deadline

By 15 January 2010 to admin@privacyindia.org

Word Length

3,000-5,000 words

Topic Summary

The Aadhaar scheme, or Unique Identity (UID) scheme is a plan to provide citizens identity cards that are tied to their unique biometric data – such as their fingerprints or retinal scans. Although the most frequently cited justification for this project is to ensure the secure delivery of relief to beneficiaries of government aid schemes, it is clear that the uses to which it will be put exceed this narrow mandate.

As India embarks on one of its most ambitious techno-administrative projects to date, there is surprisingly little clarity or introspection into the implications of having such a concentrated identity locked into a single card. In particular it appears that the grave threats to privacy the scheme poses have not received due attention. Although the final draft UID Bill circulated by the UIDAI in October 2010 contains some provisions that reference privacy, there seems to be a tacit assumption that privacy is an expendable or at least a less-desirable privilege that can be attended to fully once the scheme is in fully in place.

We invite individuals to author short inter-disciplinary papers that engage various topics on the theme of Privacy and the UID, including but not limited to the following:

Comparative studies on privacy and national identity card schemes in other countries

Privacy and the UID Bill

How will a project such as the UID change the relationship between the state, the individual, and the market?

Selected candidates will have their papers published on the CIS website, and their transportation and accommodation provided for the “Privacy Matters” conference being held in Kolkata on January 22nd 2010.

Who We Are

Privacy India was set up with the collaboration of the Centre for Internet and Society (CIS) and Society in Action Group (SAG), under the auspices of the international organization ‘Privacy International’. Privacy International is a non-profit group that provides assistance to civil society groups, governments, international and regional bodies, the media and the public in a number of countries (see www.privacyinternational.org). Privacy India's objective is to raise awareness, spark civil action and promoting democratic dialogue around privacy challenges and violations in India. In furtherance of this goal we aim to draft and promote an over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy_callforpapers

The Privacy Rights of Whistleblowers

elonnai — 2012-03-22T05:47:16Z

The recent disclosures from Wikileaks have shown that the right to information, whistle-blowing, and privacy are interconnected. This note looks at the different ways in which the three are related, as well as looking at the benefits and drawbacks to Wikileaks in terms of privacy.

Introduction

In a recent interview, the Canadian Privacy Commissioner was quoted as saying “Information and the manipulation of information is the key to power. Those who can control the information can influence society enormously.” History and present-day society have both proven the truth in this statement. It is one among many reasons that the right to information is important to uphold. In India, and in other countries, there are statutes – in India, the Right To Information Act – that entitles the public to request and receive information that pertains to public bodies and their conduct, information that is publicly available because it is intrinsically related to the public interest. An entirely separate but equally critical way in which the public is kept informed is through whistle-blowing. Traditionally, whistle-blowing is any disclosure made in the name of public interest. Recent events such as the Ratan Tata case and the leaks of US diplomatic cables have brought to light the relationship between the public’s right to information, the rights of whistleblowers, and the rights of individuals to privacy. These recent cases have shown that the right to information, whistle-blowing, and the right to privacy are interconnected, because privacy can provide individuals with the means to sustain autonomy against potentially overwhelming forces of government and persons who might have mixed motivations. The right to information and whistle-blowing are means by which the government is held accountable to the public if they violate the law or the public trust. The Wikileaks case and the Ratan Tata case raise important questions about when those two interests need to give way to private interests. One of the key questions that Wikileaks raises is: if whistleblowing is supposed to be disclosure in the public interest -- i.e., to protect the public – should disclosure of personal information be permissible only if a person can demonstrate that he/she is trying to remedy or avoid actual wrongdoing rather than simply publishing information that is "interesting to the public?"

What is a Whistleblower and how does a Whistleblower Benefit from Wikileaks?

Whistleblowing is the modern counterpart to “informers” – people who reveal others’ wrongdoing. Much whistleblowing occurs by going "up the chain" in a person's own department or agency or company. If the person is reporting wrongdoing and the person ultimately goes to the authorities about illegal activity, the individual reporting the leak can sometimes get immunity for his or her own actions, can sometimes collect part of the penalties, and can under certain statutes in some countries even bring suit if the company retaliates against him -- for example, by firing him. In this way traditional whistleblowing places the responsibility for legal and ethical conduct on employees who are better situated to see wrongdoing than outsiders would be. In many countries, a person may present information of a whistleblowing nature to a judicial body. The judicial body then determines the validity of the information, the degree of public interest involved, and the proper form of redress to be taken. The judicial body offers legal protection to the whistleblower. Another method of whistleblowing is to leak information to the press. Once information is in the public domain – at least if there is freedom of press -- the information can no longer be covered up. Neither the right to free press, nor the right to protection as a whistleblower is universal. The current critique of the Indian Whistle Blowing Bill is that the right to protection will not be ensured. A Times of India article issued in September 2010 pointed out that the Whistle Blowing Act’s biggest weakness is that the Bill’s Central Vigilance Commission is designated to play both the role as competent authority to deal with complaints file by whistleblowers and as the tribunal to protect whistleblowers. Structuring the power to allow one body to fulfil both functions runs the risk of bias and could breed distrust that would cause people to avoid the system altogether. The article complained that the Bill has no teeth, and that even if the Commission believes that the whistleblowing is valid, it is able only to give advice rather than actually to prosecute individuals. The article recites extreme instances in which individuals have blown the whistle and paid for it with their lives. For example: in 2005 a manager of the Indian Oil Corporation was killed after exposing a scheme in adulterated petrol, and in 2010 an RTI activist was killed after exposing land scams in Mahrashtra. In these situations, Wikileaks is an interesting and powerful tool for individuals who either do not want to leak their information to a judicial body or are not protected if they do so in their own country. Leaking information to Wikileaks is in one sense analogous to leaking information to the press, but it is not precisely the same because it is not a news media outlet, but instead is a way for a person to post information on a mass media outlet. It should be noted, however, that informants who leak to Wikileaks are not afforded the same immunity that individuals who leak to authorities are granted. When an individual shares documents or information with Wikileaks, the site in turn acts as a platform to publish the information on the web and with the press. Being an independent entity that is neither tied down to a certain territory, government, or entity – Wikileaks has the pull of non-bias. But the strength of Wikileaks is also its weakness. When 250,000 diplomatic cables were posted, there was no one who understood the context of the content to monitor to ensure that everything was appropriate to post. As a result, the information was transmitted to an audience who normally would not be entitled to it. By doing so, the leaked information placed individual diplomats in precarious positions that could potentially put them in harm’s way and unnecessarily damage their reputations, as well as putting the reputation of the United States on the line.

Privacy and Whistleblowing

As a result the United States is looking to press charges against Julian Assange, founder of Wikileaks, for espionage. The way in which Wikileaks leaked information and the nature of the leak has brought privacy into the picture. When looking at the act of whistleblowing through the lens of privacy, there are obvious privacy concerns for the whistleblower, for the person or entity whose information has been leaked, and for possible third parties involved. Paul Chadwick, the Victorian Privacy Commissioner, pointed out that for the whistleblower the main privacy concerns include the individual’s identity, safety, and reputation. For the alleged wrongdoer the privacy concerns include: identity, safety, employment, and liberty (where sanctions may include imprisonment). For third parties, reputation and safety can both be jeopardized by disclosures by whistleblowers. The Wikileaks leaks squarely present the question whether intent should be brought into the analysis of privacy and whistleblowers. If a whistleblower is disclosing with the intent protect the public, the protections afforded to this person should weigh differently against the privacy interests of alleged wrongdoers and third parties than for someone who is simply defining the public interest as “interesting to the public,” or, worse, as seen in the false leak by Pakistan against India, is looking to leak information to disrupt public interest. Even though Wikileaks works to protect the anonymity of individuals who leak information, it is not bound by any law to protect the privacy of individuals involved in the leak. The concept behind Wikileaks is important. By interacting with government information, it has the ability to bring accountability and transparency to governments, but the only regulation over Wikileaks is internal (and thus inherently subjective). Wikileaks needs to change its structure to take into account leaks shared without the intent of protecting the public interest and even then needs to monitor to prevent leaks that could place individuals in precarious situations or damage reputations with no validating information.

Sources:

http://www.ctv.ca/generic/generated/static/business/article1833688.html

Chadwick, Paul. Whistleblowing, Transparency, and Privacy: Aspects of the relationship between Victoria’s Whistleblowers Protection Act and the Information Privacy Act.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-wikilileaks-whistleblowers

An Open Letter to the Finance Committee: SCOSTA Standards

elonnai — 2013-12-20T03:58:09Z

The UID Bill has been placed to the Finance Committee for review and approval. Through a series of open letters to the Finance Committee, civil society is asking the committee to take into consideration and change certain aspects of the Bill and the project. The below note compares the SCOSTA standard with the Aadhaar biometric standard, and explains why we believe the SCOSTA standard should replace the Aadhaar biometric standard for the authentication process in the UID scheme.

Introduction

This note is intended to demonstrate how the Aadhaar biometric standard is weaker than the SCOSTA standard. Through a comparison of the SCOSTA standard-based smart card and the Aadhaar biometric-based identification number, it will show how the SCOSTA standard is a more secure, structurally sound, and cost effective approach to authentication of identity for India. Though we recognize that Aadhaar biometrics are useful for the de-duplication and identification of individuals, we believe that the SCOSTA standard is more appropriate for the authentication of individuals. Thus, we ask that the Aadhaar biometric based authentication process be replaced with a SCOSTA standard based authentication process.

A background of the two standards

The SCOSTA standard is used in smart cards and was developed by the National Informatics Centre in India. It is:

1. Compliant with the international standard ISO-7816 for smart cards.

2. Based on a public/private key and pin authentication factor

3. Authentication factor refers to an individuals keys, pass-phrases, and pin.

The biometric standard authenticates the identity of an individual based on his or her physical fingerprints and iris scans (in the case of the UID). The standard:

1. Verifies if the individual exists within a known population by comparing the biometric data to those of other individuals stored in a secured centralized database.

2. Based on a symmetric authentication factor

A comparison of the two standards

Standard	SCOSTA - MNIC smart card	Aadhaar Biometric - UID number
Architecture	Decentralized SCOSTA standards require a pair and key combination with a pin, and thus can be structured in a decentralized manner	Centralized Aadhaar biometric standards require symmetric authentication factors, and thus must be structured in a centralized manner
Standards for Technology	Open standard Creates security through transparency	Closed standard Creates security though obscurity
Points of failure	Multiple points of failure The SCOSTA standard has multiple points of failure, because of decentralized structure, thus if one data base is compromised all data is not lost.	Single point of failure The Aadhaar Biometric standard has one single point of failure, because of centralized structure, thus if the data base is compromised all data is lost
Impact on local industry	Encourages Open standards allow local industry to compete in manufacturing technology	Discourages Closed standards allow foreign players to monopolize the manufacturing of technology
Cost analysis	Cost effective Increased competition keeps prices low	Cost ineffective Decreased competition keeps prices high
Revocation	Revocable If the key pair and pin are stolen, a new set of passwords can be issued	Permanent If the biometrics of an individual are stolen, they cannot be re-issued
Possibility of fraudulent authentication	Lower A thief must steal your smart card and your secret pin to commit fraud	Higher A thief only needs to collect your fingerprints using a glass tumbler to commit fraud
Viability of Technology	Proven effective for large populations	Not proven effective for large populations

For more details visit https://cis-india.org/internet-governance/blog/privacy/letter-to-finance-committee

Privacy Matters — Conference Report

praskrishna — 2011-01-27T10:22:55Z

A one-day conference on Privacy Matters was held on Sunday, 23 January 2011 at the National University of Juridical Sciences (NUJS) Law School in Kolkata. This was the first of a series of eleven conferences on ‘privacy’ that Privacy India is scheduled to host in different Indian cities from January to June this year. Members of Parliament, Sri Manoj Bhattacharya from the Revolutionary Socialist Party (RSP) and Sri Nilotpal Basu from the Communist Party of India (Marxist) CPI (M) spoke in the conference. Students, the civil society and lawyers also participated in it.

Introduction

The conference was held to discuss elements of the privacy legislation that has been proposed to the Parliament of India, and the UID Bill and project. The conference focused on the tensions between privacy and society that exist in India today, and acted as a space for opinion sharing and discussion. Privacy India which was formed under the auspices of Privacy International, a UK based organization that works to protect the right of privacy around the world, the Centre for Internet and Society (CIS), an NGO based in Bangalore, and Society in Action Group (SAG), an NGO based in Delhi joined hands to host this event.

Rajan Gandhi, founder of SAG opened the conference with an explanation of the mandate of Privacy India, the objective of which is of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. One of Privacy India's goals is to build consensus towards the promulgation of comprehensive privacy legislation in India through consultations with the public, legislators and the legal and academic community.

Keynote

The keynote speech was delivered by Dr. Sudhir Krishnaswamy professor of law and governance. Dr. Krishnaswamy began by outlining the present situation of privacy in India. The right to privacy has been read into Sections 19 and 21 of the Constitution of India through case law, which has defined privacy — among other things — as the right to personal autonomy, the right against unreasonable search and seizure, and as a fundamental right that is critical to the person, but does not supersede public or national interest. Dr. Krishnaswamy also raised many intriguing questions including: what does privacy mean to India — is it linked to a person’s dignity and their honour? Or is it purely concerned with misappropriation of information, and further is privacy in India an issue of the individual or an issue of the family and the community? He also described the philosophical groundings of privacy as being in the right to dignity, the right to autonomy, and the misappropriation of information.

Privacy Challenges

The conference was spread into three sessions. In the first session Prashant Iyengar, head researcher of the project at Privacy India, spoke about the challenges that India specifically is facing in shaping a privacy legislation including: the need to balance the right to information/transparency and privacy, the need to create a definition of privacy that does not exclude lower classes and is not a negative right, but instead a positive right, and the problem of ubiquitous surveillance that is happening in society today. Elonnai Hickok, policy analyst at Privacy India, spoke specifically on wire tapping, and the Nira Radia tapes. In her presentation she first outlined other countries definitions of privacy which include: the right to be left alone, the protection from unauthorized searches, and the right to control information about oneself through consent. Using the case study of Nira Radia and Ratan Tata she spoke about the rising concern of wire tapping in the country as being indicative of a social change and relationship of the state and government. Elonnai also raised questions concerning whether privacy should be made inversely proportional to public figures, and if public interest will always supersede the private right of individuals.

UID and Privacy

The second session of the conference focused on the UID Bill and privacy. Presentations from NUJS student Amba Kak and Sai Vinod raised concerns about the UID project and privacy. Their presentation also compared and contrasted identity schemes of other countries with the UID. A few similarities that they found amongst all scheme were: the collection of data, the processing of data, and the storing of data. Deva Prasad from the National Law School of Bangalore presented on constitutional elements of the UID scheme ranging from loopholes in the Bill to connections that can be made when the UID Bill is placed in the larger picture. Sri Manoj Bhattacharya (MP) from RSP voiced his concerns of the UID, and emphasized that by giving an individual a number which acts as their fundamental identity which they use to function in society, the government in fact is eroding an individual’s actual identity, and that is an invasion of privacy. Sri Nilotpal Basu (MP) from CPI (M) spoke out strongly against the UID, voicing that his greatest concern with the UID is that it will be a way for corporate bodies to target individuals as consumers, and that privacy legislation could be used as a way for corporate bodies to hide from the public eye.

Conclusion

In the concluding session the floor was opened up to the public for questions and opinion sharing. Many participants shared what they believed needed to be included in privacy legislation, and what issues a privacy legislation needs to address. A few of these include: privacy rights and the media, privacy and the right to information, the privacy rights of minorities, and the privacy rights of the government. Also types of regulatory models for privacy were discussed. For instance, should privacy in India be represented and protected through a data protection law, or should privacy be seen as a fundamental right to privacy? Should privacy be represented through a broad framework, or through sector specific statutes? What should the redressal and enforcement mechanisms look like?

As seen from the presentations and the comments at the conference one thing which is clear is that privacy is an issue that concerns every person in India. Over the next six months Privacy India will be conducting ten more conferences in different Indian cities to engage the public in dialogues of privacy and raise awareness around the issues of privacy. The next workshop will be held on 5 February 2011 in Bangalore.

Download the conference summary here

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary