Centre for Internet and Society

Bolstering right to remain private

praskrishna — 2012-10-29T09:00:13Z

The Justice AP Shah panel has done to well to lay down an enforceable roadmap that can strengthen privacy laws in the country. It’s now for the legislature to take the issue to a logical conclusion.

Apar Gupta's column was published in the Pioneer on October 29, 2012.

A haveli courtyard is an apt metaphor for the complexity which is involved in drafting a law on privacy. Though the courtyard gives an appearance of openness, it is limited by the walls, doors and windows which surround it. The architecture represents a mediated understanding of the options which are available to the resident in sharing and limiting information to family and strangers. A somewhat similar project is in the works with the Union Government taking steps towards the enactment of a privacy law.

Privacy law as it is understood at present is usually limited to the odd writ petition filed against the Government by a private individual seeking enforcement of a fundamental right to privacy. Recently, such adjudication has been limited to high-profile individuals, and where there is wide voyeuristic interest. For instance, two recent petitioners include industrialist Ratan Tata and former Samajwadi Party leader Amar Singh. Here, it is important to stress that with the state gathering more and more data about individuals through the Unique Identification Authority of India scheme, there is a need to democratise the right by making legal provisions for its enforcement. In making such provisions a balance has to be maintained, where information which serves public interest or gathered through informed consent is not encumbered in the name of protecting individual privacy.

To find this balance, the Government late last year tasked a Committee of Experts chaired by Justice AP Shah to prepare a report on the Privacy Bill. Readers would recall that Justice Shah had authored a judgement which read down Section 377 of the Indian Penal Code, decriminalising homosexual activity. A closer reading of the judgement shows the reliance placed by the court on the privacy right and to reach its determination. With such credentials, the Justice Shah Committee has exceeded the high expectations placed on it, presenting a fair and balanced approach towards a privacy law in India.

At the very outset the report clearly marks its objectives, from which it then commences to study judicial precedent on privacy as well as the experience of foreign jurisdictions. On the basis of this study, it has evolved nine privacy principles which encompass within it distinct aspects of individual privacy. Such a nuanced approach to privacy is certainly welcome given that privacy as a right is often subjective, varying drastically in its appreciation as per civil society, private industry and even Government itself.

Beyond the specific aspects of the privacy right, the report extends the right both to Government as well as private industry. This is a sign of the times, best put by Pranesh Prakash, policy director, Centre for Internet and Society, when he says that citizens reveal more data about themselves to social networking websites than they would to the Government under torture!

Another significant aspect is the proposed co-regulatory regime which the report suggests. And, experience has taught us that a right without an effective remedy to enforce it counts for a little more than a black letter on paper. In this respect, the report proposes a sectoral regulator which has supervision over State level privacy commissioners. In addition to this, the report also proposes a system of self-regulation where industry-specific standards may be proposed and then sanctioned by the privacy commissioners. However, contrary to the present approach of tribunalisation, the report suggests that recourse to civil courts for aggrieved persons should always be kept open.

Though the origins of the privacy rights may be antiquated, widespread consensus suggests that the modern practice and substance of privacy law owes its beginning to an article published in the fourth volume of the Harvard Law Review. The article, authored by Louis Brandeis and Samuel Warren drawing a physical justification for what seemed like a novelty back then, stated that the law regarded a man’s house as his castle.

Sadly, the right has not seen a proper development in India, mainly due to the absence of an overarching legislation as well as a lack of understanding of its proper contours. At least in this respect, the report marks a significant development in the drafting of a comprehensive privacy legislation in India. A haveli, a house or a castle — the Justice Shah panel has provided a useful blueprint to the legislature to build an effective and balanced statute to safeguard individual privacy.

(The writer is a partner in a Delhi-based law firm and visiting faculty at the National Law University, Delhi)

For more details visit https://cis-india.org/news/daily-pioneer-columnists-oct-29-2012-apar-gupta-bolstering-right-to-remain-private

Bloggers' Rights Subordinated to Rights of Expression: Cyber Law Expert

elonnai — 2012-03-21T09:35:06Z

Vijayashankar, an eminent cyber law expert answers Elonnai Hickok’s questions on bloggers' rights, freedom of expression and privacy in this e-mail interview conducted on May 19, 2011.

A set of rules relating to regulation of the Internet (mentioned in section 79 of the ITAA, 2008) was released in April 2011. In light of the rules framed under the IT Act, and as part of our research on privacy and Internet users, we have been looking into questions surrounding bloggers’ rights, freedom of expression, and privacy.

The new rules require among other things that intermediaries take down any content that could be considered disparaging. In practice, these rules will act to limit the ability of individuals to express their opinions on the Internet — especially for the bloggers. Though these requirements seem to only impact the freedom of expression of bloggers, a blogger’s privacy rights, especially in relation to the protection of their identity, are also pulled into question. Other issues surrounding bloggers’ rights and privacy include: if bloggers are identified as journalists, then whether they should be afforded the same protections and privileges, e.g., should bloggers have the right to free political speech and should intermediaries have freedom from liability for hosting speech or others’ comments? Are bloggers allowed to publish material that is under copyright on their website?

On May 19, 2011, through e-mail, I had the opportunity to interview Vijayashankar, an expert in cyber law, on issues regarding the rights of bloggers freedom of expression, and privacy. Vijayashankar has authored multiple books on cyber law, taught in many universities, and is an active leader of the Netizen movement in India. Below is a summary of the questions I posed to Vijayashankar and his responses.

I began the interview by trying to understand bloggers’ rights and how they are defined. Often the term 'bloggers' rights is used casually, but it is important to understand the different roles that a blogger plays in order to understand what his/her rights are, how they could be violated, and how they could be protected. Vijayashankar explained that a blog is comprised of two parties: a blogger and an intermediary – which is the application host. Bloggers have many different roles: authors, editors, or publishers of content, and thus, a blogger’s rights should be defined within these contexts. As authors, bloggers write their own article/blog or adds comments to others’ blogs. As such, they should have the freedom to express their thoughts and opinions and determine a level of privacy with which to maintain them, without regulation or censorship from a third party. Though the freedom of expression and privacy should be basic rights for blog authors, bloggers must also be held accountable and responsible for the content that they choose to make public by posting on accessible web pages.

The need for a blogger to be held responsible and accountable is similar to the limitation on speech that informs defamation law, and it means that a blogger cannot be entirely anonymous – at least not once a blog is public and is challenged. Thus, accountability must limit the right to be entirely private and anonymous. Though a blogger should be held accountable, the international implications give rise to thorny issues of jurisdiction and accountability under unforeseen laws: all of which raises the question whether, instead of local jurisdictions seeking to enforce their laws against potentially out-of-the-jurisdiction bloggers, an international third party should be entrusted with the responsibility of holding bloggers accountable and responsible – whether that takes the form of an organization like the WTO or WIPO or looks more like specially trained international arbitrators.

This challenge arises because bloggers live in different jurisdictions where different rules apply, but their opinions cross multiple borders and boundaries. This raises questions such as: Which jurisdictional law should the blogger be accountable to? Should a blogger be held responsible for actions that are considered violations in a jurisdiction in which a blog is read, even if those actions are not violations in the jurisdiction in which it is written? And if a blogger is to be held responsible, who should hold him responsible – the country where the action is considered a violation or his own country – and where does a private party have a cause of action? According to Vijayashankar, blogger’s rights’ are always subordinated to the rights of expression guaranteed to the blogger in his country where he is a citizen.

Furthermore, the rights of a blogger have to be seen in the context of who has the "cause of action" against blog writing, i.e., which party involved has the right to complain. If an individual is a victim of a blog, and that individual is a citizen of another country and is guaranteed certain rights, the blogger's rights cannot override the rights of the victim in his own country. Hence, the victim has the right to invoke law enforcement in his country, and the law enforcement agencies do have a right to seek information from the blogger. If, however, a citizen brings a private civil action against a blogger, the discovery limitations are much more severe across boundaries, and the blogger’s national policy on responding to discovery from other countries will determine the extent to which information from the blogger will be made available. To the extent that the impact of a blogger’s expression reaches across boundaries, his actions should be considered similar to a situation where a citizen of one country does certain things which affect the rights enjoyed by a citizen of another country. It does not seem right that a blogger can say something offensive in one jurisdiction and be held liable, but a different blogger can say the same thing from another jurisdiction and be protected. On the one hand, since the Internet as a medium broadcasts across geographical boundaries, it is the responsibility of the individual countries to erect their "cyber boundaries" if they do not want the broadcast to reach their citizens. On the other, individuals should be able to invoke international laws to seek consistent application of standards about what is actionable and what information is discoverable in support of an action. This suggests that an international tribunal might be the best solution.

Other questions to think about when exploring the idea of a trusted third party holding online bloggers accountable include: who would form the third party, what legal authority/power would they have, would this group also be in charge of reviewing a country’s "cyber boundaries" in addition to holding online bloggers accountable? and how would it avoid being influenced by any one government or by other stakeholders?

Next I asked him for examples of common privacy violations that happen to online users. A few he said included identity theft in the form of phishing, which leads to financial frauds, and is one of the most dangerous consequences of privacy breach. Other examples included manipulation of online profiles in social networking sites to cause annoyance, defamation, and coercion; cyber squatting with content which can be misleading; posting of obscene pictures with or without morphing of victim’s photographs to other obscene photographs/pictures; and SPAM – particularly through mobile phones – are all serious forms of privacy violations.

My third question focused on privacy violations and bloggers. How could a blogger’s rights be compromised, especially with a focus on privacy? For bloggers, is privacy important simply to protect their identity and content, or are there other implications for privacy and bloggers? In our research we have looked into ways in which practices such as data retention by ISPs, government/law enforcements’ access to web content including private conversations, and poorly established user control over privacy settings on websites can violate online users’ privacy. According to Vijayashankar, a blogger is mainly concerned about privacy in the context of protecting his identity. It is important for bloggers to protect their identity because the content they create could be considered controversial or illegal in different regions. Thus, it is critical for bloggers to have the right to blog anonymously. An exception to this right is that if the blog is so offensive then the law enforcement agency can take action. In some countries individuals also can sue bloggers. To help protect bloggers from unreasonable and ungrounded searches, Vijayashankar suggested that a mechanism be created by which international and domestic law enforcement agencies can request 'sensitive' information. This mechanism would work to filter and evaluate requests for information without bias, and according to a country’s law own domestic law.

I then asked him what legal protections he felt bloggers needed. He said that he believes that it is important that bloggers and online users’ right to anonymity, protection of identity and freedom of expression (political and non-political) are protected from excessive regulations. An interesting point that he raised was about the protection of bloggers from international requests for information. According to –him — bloggers can be protected only to the extent to which their rights are protected in their own country. If a request for information comes to a law enforcement agency of a country of which the blogger is a citizen, information may need to be released unless an “asylum” has been granted.

An example of the situation Vijayashankar is referring to is that if a blogger in India writes content that is found to be controversial by the U.S Government; the U.S Government then has a right to request and access that information, unless the Indian Government provides protection over the citizen and the information and refuses to release it. Though right to information requests tend to be governmental, this rule changes if it is a citizen requesting information. Very rarely can a citizen of one country request information about a blogger from another country and gain access. The question of international discovery over Internet material is one that has many angles that need to be taken into consideration – a few being: what the content on the blog contained; was the content against an individual or a government; who is requesting the information — a citizen or the government, and whom are they requesting the information from? For example, in the US Supreme Court case, Calder vs. Jones 465 U.S. 783 (1984), information about a woman, Shirley Jones, was published in another state, but the court ruled that the wrongful action was directed to her where she was.

A large part of the debate over bloggers’ rights is centered on governments’ need to monitor online activity. Developments such as the new rules to the IT Act, the Indian Government’s request for blackberry’s encryption keys, and the news about the government wiretapping citizens’ phones show that the Government of India is demanding access to see and regulate content created by online users in India. When asked about bloggers’ rights and government access to content, Vijayashankar stressed that there has to be a mechanism to check the requests from government agencies, and any such mechanism should have popular representation. He went on to explain that presently an order for the blocking of a blog or for private information is made by a government agency or a court. Unfortunately, government agencies may be responsive to certain interests. Likewise, decisions of conventional courts can be inconsistent. Therefore, it is important that a mechanism that reflects the common person’s input is put in place. This could either be a stand-alone private body, such as Netizen Protection Agency, acting as one more layer of protection, or the government body itself could build in adequate public representation. Courts would need to recognize such bodies and seek their opinion as an input to any dispute. This is an innovative option, but one that is a radical departure from the view of a court as an impartial tribunal that is supposed to weigh every matter independently on its merits.

Lastly, I asked if a privacy legislation could address the issue at hand i.e., could a privacy legislation work to protect bloggers’ rights by providing them identity protection and protection of their content and in general what should be included in a comprehensive privacy legislation? Though India already addresses bloggers’ rights through the Information Technology Act, it could be possible that privacy legislation could establish a third party group to work to protect bloggers’ rights and hold both governments and bloggers’ accountable. When asked what should be included in a comprehensive privacy legislation, Vijayashankar suggested that it should recognize that privacy rights of individuals are part of the larger interests of the society, and a comprehensive legislation should work to take all the stakeholders into consideration.

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

Bit by byte protecting her privacy

Admin — 2018-07-29T01:46:38Z

The Srikrishna committee draft law on data protection is days away. Here’s a bucket list of issues that will matter

The article by Mihir Dalal and Anirban Sen was published in Livemint on July 26, 2018. Amber Sinha was quoted.

In an era dominated by “free” platforms such as Google, Facebook and Amazon, among others, data privacy had largely been considered an academic matter. However, in the past one year that notion has changed forever, bringing data privacy to the fore, as one of the defining issues of the internet, both in India and abroad.

Last August, the Supreme Court ruled that privacy was a fundamental right under the Constitution of India. Concomitantly, the debate over Aadhaar and its potential misuse picked up steam on the back of reports about data breaches in the biometric ID system though these reports were denied by the Unique Identification Authority of India, which built Aadhaar. (The apex Court will deliver its verdict on petitions that have challenged the constitutional validity of Aadhaar and its legal framework)

Globally, Facebook came under severe criticism after it was revealed that the social media giant had compromised user data in the run up to the US elections. Finally, in May, Europe introduced its landmark data privacy law, General Data Protection Regulation (GDPR), which has put users in control of their data through various measures.

The stage is now set for the much-delayed draft law on data protection, which is expected to be submitted soon by the 10-member panel headed by former Supreme Court justice B.N. Srikrishna.

The committee, which had been set up last July, has attracted criticism from some quarters. Earlier this month, more than 150 lawyers, activists and journalists, among others, wrote to the Srikrishna committee, complaining about the lack of transparency in its process, the lack of diversity in the views held by members of the committee, besides other issues. In an earlier letter in November last, activists, lawyers and others had alleged that too many members of the committee held pro-Aadhaar views. Some experts believe that the mandate of the committee was flawed to begin with. “Given that personal information is omnipresent in so many different sectors, it is better to have a light touch legislation that deals mostly with key principles of data privacy and empowers a data commissioner to frame more detailed regulations,” said Stephen Mathias, partner, Kochhar and Co.

Last week, the Telecom Regulatory Authority of India (Trai) released a set of recommendations on data privacy that favour giving users control of their data and personal information, while severely restricting the ways in which telecom and internet companies can use customer data. Here are the major issues to watch out for in the draft data protection law.

Users vs. collectors

This broad umbrella includes mandatory consent of users for data collection, data portability, the right to be forgotten and the right to erasure. Last week, Trai gave its recommendations on some of these issues in what were considered pro-privacy and progressive suggestions. Those recommendations tracked GDPR measures. The Srikrishna committee is also expected to suggest pro-privacy measures, though the details will be all-important. The committee is also expected to define what is ‘sensitive’ or ‘critical’ data. “In India, government agencies, private entities and others collect various forms of data on individuals,” said Chetan Nagendra, partner, AZB Partners. “The committee will have to clarify what category of data is allowed to be collected and whether this should this be standardized across different entities. It will also have to standardize rules on how long is it okay to store such user-collected data.”

The flip side of user rights is the role of data repositories that collect and process user data. The committee will be required to clarify what data firms and government agencies can gather on users and what will be their responsibilities toward the usage of that data. This includes the principle of privacy by design, that is, companies must ensure by default that their platforms are designed to protect rather than exploit user data and privacy.

IndusLaw partner Namita Viswanath said that in terms of data repositories, there was a need to distinguish between a data controller and a data processor. A data controller is the user-facing platform that gathers data, whereas a data processor is often a third-party firm that provides infrastructure for the platform. “Responsibilities of user personal data should be shared between a data controller and processor. The nature and extent of liability should depend on the nature of data, the party responsible for handling data and the measures adopted, but ultimately, the data controller should most responsibility,” Viswanath said.

Regulation vs. Self-control

Given that data is such a broad-ranging topic, the Srikrishna committee will be expected to recommend who should have oversight of data-related matters. Will there be a new data protection authority? If so, what will be its scope, given that regulators, such as the RBI, Sebi and Trai, will all be affected by a privacy framework in their respective areas? And what will be the punitive measures and fines for offenders on data matters?

Some experts said the government should appoint a data protection authority. As the recent travails at Facebook show, relying solely on self-regulation of internet platforms, is a disastrous policy. But it’s unlikely that the entire burden of regulation will fall on one authority.

“Logistical problems are likely, especially in the early days, with having a top-down regulatory approach,” said Kriti Trehan, partner, Panag and Babu. “The process of training, requirement of funding and access to skilled human resources will necessitate organisational and administrative inputs. With this in mind, I believe that a co-regulatory framework for data protection will be efficient. With this approach, established parameters may guide escalation in specific instances.”

Data localisation

In April, the RBI had issued norms on the storage of payments system data, which requires digital payment providers to store data in India. That has sparked another debate over the possible stance of the Srikrishna committee. Many start-ups and firms use data servers located in overseas locations because of several reasons, including economies of scale and tax planning. “Data protection should not be confused with data access,” said Kartik Maheshwari, leader, Nishith Desai Associates. “For instance, if a firm is storing user data abroad, that should be fine as long as it is secure and access in India is provided, whenever required. Storing data locally is not necessarily the best solution from the perspective of data security as better infrastructure may be available abroad. However, the government may, in exceptional cases of sensitivity, legitimately require local storage of very narrowly defined streams of data.”

Surveillance is key

The law will also need to clearly define the contours of the contentious issue of surveillance and how to ensure that India does not end up replicating the policies in place in countries such as China, which are notorious for mass surveillance practices. Surveillance that has been legally sanctioned is part of the exceptions to regular privacy practices. The committee will have to define the parameters of these exceptions. In the case of surveillance, some experts, including Amber Sinha of Centre for Internet and Society, said that while it needs to be allowed in specific instances such as issues related to national security, a judicial system needs to be in place to protect the rights of the parties that are being put under surveillance. This, in many ways, is the heart of a very important matter.

The Aadhaar factor

The most hot-button of all issues for the committee is, of course, Aadhaar. Former UIDAI chairman Nandan Nilekani told Mint this week that “if something needs to be modified in the Aadhaar law, it will be done” by the Srikrishna committee. The changes that the committee will suggest to the Aadhaar law will go a long way in determining whether its draft law is truly pro-privacy.

For more details visit https://cis-india.org/internet-governance/news/livemint-july-26-2018-mihir-dalal-and-anirban-sen-byte-by-byte-protecting-her-privacy

BIS LITD 17 Privacy Panel meeting

praskrishna — 2017-07-07T01:31:35Z

Udbhav Tiwari represented CIS at this meeting organized by National Law School of India University in Bangalore on June 21, 2017.

The bare-bones structure for what as discussed at the meeting can be found in the trailing email below. The standard itself is still in the drafting stage, which makes it confidential. I will share it on this thread once it hits the public draft stage, which should happen by September 2017. (approx)

For more details visit https://cis-india.org/internet-governance/news/bis-litd-17-privacy-panel-meeting

BIS LITD 17 meeting

Admin — 2019-07-21T13:58:29Z

On July 3, 2019, Gurshabad Grover attended the sixteenth meeting of the Information Systems Security and Biometrics Section Committee (LITD17) at the Bureau of Indian Standards (BIS) in New Delhi.

In a previous meeting, a panel was formed to review two biometric standards: ISO/ IEC 24745 'Security Techniques - Biometric Information Protection' (2011), and ISO/IEC 19792 'Security techniques - Security evaluation of biometrics' (2009). Elonnai Hickok, Karan Saini and Gurshabad Grover had reviewed the documents and sent comments to BIS in December 2018 and January 2019 respectively. The Centre for Internet & Society (CIS) had also shared a document that compared the security guidelines in the standards to the provisions of the draft data protection bill.

The committee discussed whether the aforementioned standards should be adopted as Indian standards by BIS. A decision will be taken on the matter after future discussions that CIS will participate in.

Members updated the committee on their participation at the ISO/IEC. Iupdated the committee on the progress of the study period on the impact of machine learning on privacy, which I am a co-rapporteur for in the identity management and privacy group working group at ISO/IEC IT Security Techniques committee. We also planned our participation at the next ISO/IEC SC 27 meeting, which is in October.

For more details visit https://cis-india.org/internet-governance/news/bis-litd-17-meeting

Biometrics: An ‘Angootha Chaap’ nation?

Mukta Batra — 2014-09-19T06:12:17Z

This blog post throws light on the inconsistencies in biometric collection under the UID and NPR Schemes.

Introduction

Fingerprints and iris scans. The Unique Identification (UID) Number aims to serve as a proof of identity that can be easily verified and linked to subsidies and to bank accounts. Four years into its implementation, the UID Scheme seems to have the vote of confidence of the public. More than 65 Crore Indians have been granted UID Numbers,[1] and only a few have been concerned enough to seek clarity through Right to Information Requests to the UIDAI about the finances and legal authority backing the scheme.[2] Parallel to the UID scheme, the National Population Register scheme is also under way, with enrolment in some areas, such as Srinagar, Shimla and Panchkula, having reached 100% of the estimated population.[3]

The NPR scheme is an offshoot of the census. It began in census cycle 2010-11, pursuant to the amendment of the Citizenship Act in 2004, under which national identity cards are to be issued. The desired outcome of the NPR scheme is an NPR card with a chip embedded with three bits of information built into a card: (i) biometric information, (ii) demographic information and (iii) UID Number.

Both the UID and NPR schemes aspire to be conduits that subsidies, utilities, and other benefits are routed through. While the UID and NPR schemes are distinct in terms of their legal sanctity, purpose and form, the harmonization of these two schemes is one of the UIDAI’s functions.

There are substantial overlaps in the information collected and the purpose they serve leading to the argument that having two schemes is redundant. The compatibility of the two schemes was questioned and it was initially thought that a merger would be unreasonable. While there has been speculation that the UID scheme may terminate, or that it would be taken over by the Home Ministry, it has been reported that the new government has directed expedited enrolments through the UID scheme. [4]

Both schemes are incomplete and suffer from vagaries, including, but not limited to: their legality, safeguards against misuse of the data, the implementation of the schemes – including the collection and storage of biometric information and their convergence or divergence.

This blog will focus on understanding the process of collecting biometric data in each scheme – calling out similarities and differences – as well as areas in which data collected under one scheme is incompatible with the other scheme. It will look at existing and missing safeguards in the collection of biometrics, overlap in the collection of biometrics by the two schemes, and existing practice in the collection of biometrics. In doing so the blog will highlight the lack of privacy safeguards for the biometric information and conclude that since the policies for data collection and use policy are unclear, the data subjects do not know how their data is being collected, used, and shared between the UID and the NPR schemes.

Unreliability of Biometric Data

Biometric data has been qualified as being unreliable.[5] It cannot always be successfully used to identify a person, especially in India, where manual labour degrades the fingerprint[6] and nutritional deficiencies mar the iris. Even experts working with the UIDAI[7] admit that fingerprints are not always good indicators of identity. If the very identification of a person fails, which is what the UID seeks to do, then the purpose of the UID is defeated.

Biometric Data Collection under the UID Scheme

In the current structure of the scheme, collected biometric information is stored by, and vests with the UIDAI for an undefined period. The data if used only for identification and authentication purposes, as originally intended, could very well fail to serve its intended purpose. But amassing the personal data of the entire country is lucrative, particularly to the service providers who collect the information and are mandated with the task to manually collect the data before it is fed into the UID system and encrypted. Most of the service providers that collect information, including biometric data, for the UID are engaged in information services such as IT or online marketing service providers.[8]

The below chart delineates the process followed for the collection of biometrics under the UID Scheme:

Under the NIAI Bill, all data collected or authenticated by the UIDAI, until the Bill is enacted and the National Identification Authority of India is created, vests with the UIDAI. In practice this means that the UIDAI owns the biometric data of the data-subject, without clear safeguards against misuse of the data.

In the UID scheme, the collection of biometrics at the time of enrollment by the UIDAI is severely flawed for a number of reasons:

1. Lack of clear legal authority and procedure for collection of biometrics: The only legal authority the UIDAI has to collect biometric information is via the notification of its constitution. Even then, the powers of the UIDAI are vague and broad. Importantly, the notification tells us nothing of how biometric data is to be collected and how it is to be used. These standards have only been developed by the UIDAI in an ad-hoc manner when the need arises or after a problem is spotted. The lack of purpose-specification is in violation of the law[9] and prevents the data subject from giving informed consent to data collection. This is discussed at a later stage.

2. The collection of Biometrics is regulated through only a Bill, which delegates the development of safeguards to Rules: The National Identification Authority of India (NIAI) Bill[10] confers the National Information Authority of India (NOT THE UIDAI) with the power to pass rules to collect biometric data and to prescribe standards for collection.[11] This is a rule-making power, which is conferred under a Bill. Neither has the Bill been enacted, nor have rules for the collection of biometrics been framed and notified.

3. Collection of biometric data only with implied consent: Though collection of biometrics is mentioned in the enrolment form, explicit consent for the collection of biometrics is not collected and only implied consent may be inferred. The last line in the enrollment form is titled ‘CONSENT’ and is a declaration that all data, including biometric information, is true.[12]

4. Collection of biometric data outsourced to third party: Collection of biometric information in the UID scheme is outsourced to third parties through tenders. For instance, Accenture has been declared a biometric service provider under a contract with the UID.[13] The third party may be a company, firm, educational institution or an accreditation agency. The eligibility criteria are quite straightforward, they relate to the entity’s structure and previous experiences with small projects.[14] Since the ability to protect privacy of the data subject is entirely absent from the eligibility criteria, a successful bidder may not have adequate procedure in place or sufficient experience in managing confidential data, to ensure the privacy of the data subject. By outsourcing the data collection, the UIDAI has arguably delegated a function it never had the legal authority to perform. Thus, the agency of the data collection is equally defective. To heighten the irregularity, these contract agents can sub-contract the job of physical data collection.[15] This means that the data operator and the ground supervisors, who come into direct contact with the raw data, including biometric data, are not appointed by the government, or the UIDAI, but by a private agency, who is further removed from the chain. The data operator scans the documents submitted for verification and has physical access to the document.[16]

5. Biometric data is admittedly vulnerable to sale and leakage: In an ongoing case in the Supreme Court of India, the national Capital Territory of Delhi has, in its counter-affidavit, admitted that data collected under the UID is vulnerable to sale and leakage.[17] To quote from the counter-affidavit ‘..in any exercise of gathering identities whether it is by census authority… or through the present process… there is always a possibility of leakage. Enumerators can scan and keep copies of all the forms and sell them for a price.- this (sic) it can never be said that the data gathered… is safe.’[18] Anyone who has registered for either UID is therefore a candidate for identity theft or unsolicited commercial information. This is also true for the NPR, as census data is the basis for the NPR.

Data collection under the NPR Scheme

The declaration of courts that it is unnecessary to link the UID number for public utilities and the admission by Delhi in the case that a data subject cannot be compelled to provide biometrics or to obtain a UID Number under the Aadhaar scheme[19] are steps forward in ensuring the voluntariness of UID. However, the UID Number is mandatory by implication. It is a pre-requisite for registration under the National Population Register, which is compulsory, pursuant to S. 14-A of the Citizenship Act. The below diagram delineates the collection of biometric information under the NPR scheme:

DATA FLOW PROCESS

Flaws in the collection of biometric data under the NPR scheme

Compulsion: Registration in the NPR is legally mandated and individuals who fail to do so can face penalty. As a note, arguably, the compulsion to register for the NPR is untenable, as the Rules prescribe penalty, whereas the Act does not. [20] A word of caution is appropriate here. The penalty under the Rules stands till it is deleted by the legislature or declared void by courts and one may be held liable for refusing to register for the NPR, though the above argument may be a good defense.
Duplicity: Duplicity is a problem under the NPR Scheme. Biometric data is collected twice before the NPR exercise is completed. Even if one has registered under the UID scheme, they have to give their biometric information again under the NPR scheme. The first instance of collection of biometric information is for the UID number and the second, under the NPR scheme. The latter is necessary even if the data has already been collected for the UID number. Since the parties collecting biometric information for NPR are empanelled by the UIDAI and the eligibility is the same, the data is subject to the same or similar threats of data leakage that may arise when registering for the UID. The multi-level data collection only amplifies the admitted vulnerability of data as unauthorized actors can unlawfully access the data at any stage. This, coupled with the fact that UIDAI has to harmonize the NPR and UID schemes, and that the data comes to the UIDAI for de-duplication, means that the NPR data could be used by the UIDAI, but it may not result in a UID Number. There is no data that disproves this potential. This is a matter of concern, as one who wishes not to register for a UID number, in protection of their privacy, is at peril for their data falls into the hands of the UIDAI.
Biometric data collectors under the NPR scheme empanelled by the UIDAI: The service providers collecting biometric data under the NPR are selected through bids and need to be empanelled with the UIDAI.[21] Most enrolment agencies that are empanelled with the UIDAI are either IT or online marketing companies[22], making the fear of targeted marketing even more likely.
Public display and verification: Under the NPR scheme, the biometric and demographic information and UID number of registrants is publicly displayed in their local area for verification.[23] However, it is a violation of privacy to have sensitive personal data, such as biometrics put up publicly. Not only will the demographic information be readily accessible, nothing will prohibit the creation of a mailing list or collection of data for either data theft or for sending unsolicited commercial communication. The publicly available information is the kind of information that can be used for verification (Know Your Customer) and to authorize financial transactions. Since the personal information is displayed in the data subject’s local area, it is arguably a more invasive violation of privacy, since the members of the local area can make complex connections between the data subject and the data.
Smart Card: The desired outcome of the NPR scheme is an NPR card. This card is to contain a chip, which is embedded with information such as the UID Number, biometrics and the demographic information. It is still unclear as to whether this information will be machine-readable. If so, this information may be just a swipe away. However, this cannot be confirmed without information on the level encryption and how the data will be stored on the chip.

‘Privacy safeguards available under the UID and NPR schemes are ad-hoc and incomplete

The safeguards under both the UID and NPR schemes are quite similar, since the UIDAI and its empanelled biometric service providers are involved in collecting biometric information for both the UID and the NPR.

Pilot studies for the UID scheme, including the use of biometrics, were not conducted in advance to implementation. In line with this, the enactment of a legislation governing the UID and the implementation of policies with respect to data handling and use will be made as and when the need arises. The development of safeguards in relation to the NPR will also be ad-hoc.

Also, the data standards for one will potentially influence that of the other scheme. For instance, the change in privacy standards for handling biometrics under the UID may affect the empanelment of biometric service providers. This will automatically affect the data security level the NPR can seek to achieve.

Being developed ad-hoc and after the fact, there is a risk that these regulations may unreasonably curtail the rights of data subjects.

The existing Indian laws on data protection and privacy are not comprehensive. Certain laws protect privacy only in specific situations. For instance, the IT Act and related rules protect privacy in relation to digital information.

Any body that collects sensitive personal data such as biometric data, or any other data for processing and storage has a legal mandate under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal data or Information) Rules, 2011 to make certain disclosures BEFORE OR WHILE THE DATA IS COLLECTED. This includes, inter-alia, disclosures of (i) the purpose of information collection, (ii) the intended recipients of the information and (iii) name and addresses of the collector and of the party retaining the data.[24]

Under the Rules, the data collector has a duty to give the data subject an option to withhold personal sensitive information.[25] A conversation with a data subject shows that this safeguard has not been upheld. The subject also conveyed a lack of knowledge of who the collection agency was. This is a problem of lack of accountability, as the data path cannot be traced and the party responsible for misuse or breach of security cannot be held liable.

Conclusion

The data collection under the NPR and UID schemes shows several vulnerabilities. Apart from the vulnerabilities with biometric information, there is a real risk of misuse of the data and documents submitted for enrolment under these schemes. Since the data collectors are primarily online marketing or IT service providers, there is likelihood that they will use this data for marketing.

We can only hope that in time, data subjects will be able to withdraw their personal data from the UID database and surrender their UID number. We can only wait and watch to see whether (i) the UID Number is a legal prerequisite for the NPR Card and (ii) whether the compulsion to register for NPR is done away with.

[1] https://portal.uidai.gov.in/uidwebportal/dashboard.do accesed: 21 August, 2014

[2] As of January 2013, only 25 RTI requests were made to the UIDAI http://uidai.gov.in/rti/rti-requests.html accessed: 21 August, 2014

[3] DIT-NPR Management Information System accessed: 22 August, 2014 http://nprmis.nic.in/NPRR33_DlyDigitPrgGraph.aspx

[4] Cloud Still Hangs Over Aadhaar’s Future, Business Standard, accessed 28 August, 2014. http://www.business-standard.com/article/current-affairs/cloud-still-hangs-over-aadhaar-s-future-114081401131_1.html

[5] Frost & Sullivan, Best Practices Guide to Biometrics, accessed: 13 August, 2014 http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD8QFjAE&url=http%3A%2F%2Fwww.frost.com%2Fprod%2Fservlet%2Fcpo%2F240303611&ei=6VbsU4m8HcK58gWx64DYDQ&usg=AFQjCNGqan81fX6qtG0S4VV6oh_B5R_QYg&sig2=cOOPm1JJ79AcJq2Gfq1_3Q&bvm=bv.73231344,d.dGc

[6] Malavika Jayaram, “India’s Identity Crisis”, Internet Monitor 2013, reflections of a digital world, accessed: 13 August, 2014 http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2366840_code727672.pdf?abstractid=2366840&mirid=1

[7]M. Vatsa, et.al, “Analyzing Fingerprints of Indian Population Using Image Quality: A UIDAI Case Study” , accessed: 13 August, 2014 https://research.iiitd.edu.in/groups/iab/ICPR2010-Fingerprint.pdf

[8] Prakash Chandra Sao, The Unique ID Project in India: An Exploratory Study, accessed: 21 August, 2014 http://subversions.tiss.edu/the-unique-id-project-in-india-an-exploratory-study/

[9] R. 5(3) of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal data or Information) Rules, 2011, accessed: 20 August, 2013 http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511(1).pdf

[10] National Identification Authority of India Bill, 2010 (Bill No. LXXV of 2010), accessed: 26 August,2014 http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/national%20ident.pdf

[11] Clause 23 of the NIAI Bill, 2010

[12]The UID Enrollment form, accessed: 26 August, 2014 http://uidai.gov.in/images/uid_download/enrolment_form.pdf

[13] Documents filed and relied on in Puttuswamy v Union of India

[14] Request for empanelment, accessed: 28 August, 2014. http://uidai.gov.in/images/tenders/rfe_for_concurrent_evaluation_of_processoperation_at_enrolment_centers_13082014.pdf

[15] This information is available from the documents filed and relied on in Puttuswamy v Union Of India, which is being heard in the Supreme Court of India

[16] An anonymous registrant observes that the data was scanned behind a screen and was not visible from the registered counter. The registrant is concerned that, in addition to collection of information for the UID, photocopies or digital copies could be taken for other uses and the registrant would not know.

[17] Counter Affidavit filed in the Supreme Court of India on behalf on New Delhi in K. Puttuswamy v Union of India

It is also admitted that the census is equally vulnerable. The information collected through census is used for the NPR exercise.

[18] Para. 48 in the Counter Affidavit filed by NCR Delhi.

[19] Affidavit in K. Puttuswamy v Union of India.

See also: FAQs: Enrollment Agencies, accessed 22 August, 2014 http://uidai.gov.in/faq.html?catid=37

[20] Usha Ramanathan, A Tale of Two Turfs, The Statesman, accessed: 20 August, 2014 http://www.thestatesman.net/news/10497-a-tale-of-two-turfs-npr-and-uid.html?page=3

[21] RFQ for Engaging MSP for Biometric Enrolment for the Creation of NPR, accessed: 26 August, 2014 http://ditnpr.nic.in/pdf/120102_RFQBiometricUrban_rebidding-Draft.pdf

[22] Prakash Chandra Sao, The Unique ID Project in India: An Exploratory Study, accessed: 21 August, 2014 http://subversions.tiss.edu/the-unique-id-project-in-india-an-exploratory-study/

[23] http://censusindia.gov.in/2011-Common/IntroductionToNpr.html, accessed: 26 August, 2014

[24] R. 5(3) of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal data or Information) Rules, 2011, accessed: 20 August, 2013 http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511(1).pdf

[25] R. 5(7) of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal data or Information) Rules, 2011.

For more details visit https://cis-india.org/internet-governance/blog/biometrics-an-angootha-chaap-nation

Biometrics or bust? India's Identity Crisis

praskrishna — 2013-07-01T09:49:48Z

Malavika Jayaram is speaking at an event organized by the Oxford Internet Institute on July 2, 2013. The talk will be held at Oxford Internet Institute, University of Oxford, 1 St Giles Oxford OX1 3JS.

This info was published on the Oxford Internet Institute website.

India's mammoth biometric ID project, which has registered around 270 million people and is yet to be fully realized, is already the worldís largest such endeavor. It is marketed as a potential game-changer both domestically (where it is touted as a silver bullet to solve most problems) and internationally (where countries wait and watch this experiment before importing it into their own jurisdictions). Alongside all the hype about the scale of the scheme, its potential for transforming the delivery of services and the scope for private participation in traditionally state-controlled functions, there are fears of function creep, of subversion to create new types of fraud and corruption, of increased profiling and targeting, and of a citizenry becoming transparent to its government in an unprecedented way, all in the name of ambiguous benefits and the rhetoric of inclusion.

The government praises the ease and efficiency of centralized databases, the promise of technology (including the myth of biometrics uniquely and unambiguously identifying people in a foolproof way) and the construction of the identified self. However, there is growing awareness of the dangers of joined-up databases resulting in exclusion rather than inclusion, and persecution rather than democratization.

The scheme is technically voluntary, but with the provision of benefits, goods and services being increasingly linked to the scheme, it will soon become impossible to function in India without a biometric ID. If every facet of everyday life is linked to this single number, it renders all claims of voluntariness meaningless. The lack of information self-determination in a biometrically mediated universe has important ramifications for anonymity, free speech and the maintenance of an essential private sphere.

In this talk, Malavika will provide an overview of the scheme as well as the debate around privacy and autonomy that it has triggered, framed against the backdrop of a larger civil liberties crisis. She will also describe Indiaís efforts to craft new privacy and data protection legislation.

For more details visit https://cis-india.org/news/biometrics-or-bust-indias-identity-crisis

Biometrics or Bust? Implications of the UID for Participation and Inclusion

praskrishna — 2014-01-06T08:56:51Z

Malavika Jayaram will give a talk on biometrics and the implications of UID for participation and inclusion at the office of the Centre for Internet and Society in Bangalore on January 10, 2014 at 6.00 p.m.

Abstract

Privacy is often portrayed as a luxury, as the intellectual preoccupation of nerdy privileged liberals, and an issue of salience only to the elite. This ignores the reality of the most marginalized sections of a society being disproportionately impacted by privacy intrusive technologies. The collusion of public and private agendas towards implementing large welfare projects is generally seen as progressive and neutral, yet the consequences of even well-intentioned efforts that trade privacy for convenience, welfare, security or a host of other compelling goals is troubling. The use of biometric technologies further complicates matters: the assumption that bodies can be rendered into infallible verifiers, as repositories of unchanging truth, is not without its catalogue of failures. This talk will examine the notion of biometric representations as a kind of capital, the possibility that failures are endemic to their functioning, and the implications of systemic errors on equality, participation and democracy.

Malavika Jayaram

Malavika is a Fellow at the Berkman Center for Internet and Society at Harvard University, focusing on privacy, identity and free expression. She is also a Fellow at the Centre for Internet and Society, Bangalore, and the author of the India chapter for the Data Protection & Privacy volume in the Getting the Deal Done series.  Malavika is one of 10 Indian lawyers in The International Who's Who of Internet e-Commerce & Data Protection Lawyers directory. In August 2013, she was voted one of India’s leading lawyers and one of only 8 women to be featured in the “40 under 45” survey conducted by Law Business Research, London. In a different life, she spent 8 years in London, practicing law with global firm Allen & Overy in the Communications, Media & Technology group, and as VP and Technology Counsel at Citigroup. During 2012-2013, she was a Visiting Scholar at the Annenberg School for Communication, University of Pennsylvania. She is working on completing her PhD at the National Law School.

For more details visit https://cis-india.org/events/biometrics-or-bust-implications-of-uid-for-participation-and-inclusion

Bill to create bank for DNA profiling of accused coming

praskrishna — 2012-10-22T09:15:43Z

Access to data only for victim’s or suspect’s relatives.

This article by Aarthi Dhar was published in the Hindu on October 21, 2012.

A Bill to create a DNA data centre to profile people accused of serious crimes and unknown deceased is in the works. The proposal was originally mooted in 2007 but was dropped to factor in ethical, moral and legal issues on the sensitive matter.

Crafted by the Department of Biotechnology, it allows Deoxyribose Nucleic Acid (DNA) profiling for cases of culpable homicide, murder, death by negligence, miscarriage, dowry deaths, causing death of new born child, sexual assault, unnatural offences, outraging the modesty of a woman, co-habitation with a woman by deceit, adultery, enticing a married woman with criminal intent, among others.

Protecting privacy

Addressing issues related to protecting privacy of individuals, the draft Bill envisages that access to the information in the National DNA Data Bank will be restricted to those related to the victim or suspect; any individual undergoing a sentence of imprisonment or death sentence can apply to the court which convicted him, for an order of DNA testing of specific evidence under specific conditions.

The Human DNA Profiling Bill seeks to establish a DNA Profiling Board that will lay down the standards for laboratories, collection of human body substances and custody trail from collection to reporting. It also has a provision for setting up a National DNA Data Bank.

The DNA analysis of body substances that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and to establish the biological relationship, if any, between two individuals.

The “forensic material” from which the DNA sample can be lifted is biological material from the body and represents intimate body samples. They include blood, semen, or any other tissue fluid.

DNA Profiling Board

As envisaged in the Bill, the DNA Profiling Board at the national level, with similar structures at the State level, will be headed by a renowned molecular biologist with the other members being from police, legal, biological and related fields.

It will deliberate and advise on all ethical and human rights issues emanating out of DNA profiling in consonance with the United Nations vis-à-vis the rights and privacy of citizens, civil liberties and issues having ethical and other social implications.

The Board will make recommendations on the use and dissemination of DNA information, ensure the accuracy, security and confidentiality of DNA and guidelines destruction of obsolete, expunged or inaccurate information.

Jail, fine for data misuse

It will also will lay down standards and procedures for establishment and functioning of DNA laboratories and Data Banks and prepare guidelines for storage of biological substances and their destruction. Any misuse of DNA data will attract imprisonment up to three years and monetary fine.

The working draft of the Bill has been sent to the Centre for Internet and Society for analysis and comments. The Citizens Forum for Civil Liberties has already opposed the proposed legislation and sought pre-emptive intervention to stop “dangerous” erosion of privacy by DNA profiling of citizens.

In a representation submitted to the National Human Rights Commission, the Forum has said DNA profiling is “undesirable, particularly as forensic DNA developments are intertwined with significant changes in legislation and contentious issues of privacy, civil liberty and social justice.”

The Forum has sought “immediate intervention to safeguard citizens’ privacy and their civil liberties, which face an unprecedented onslaught from the provisions of the DNA Profiling Bill and other related surveillance measures being bulldozed by unregulated and ungovernable technology.”

For more details visit https://cis-india.org/news/the-hindu-aarti-dhar-october-21-2012-bill-to-create-bank-for-dna-profiling-of-accused-coming

Biggest blast on Aadhaar leak so far: govt sites leaked data of 13 crore people

praskrishna — 2017-05-03T14:35:23Z

In yet another shocking report of personal data breach in India, it has emerged that Aadhaar data of 13 crore people was put out on websites of four major government projects in the country. The leaked data include bank account details of over one crore people linked to Aadhar numbers under the direct benefit scheme. Over eight crore people lost their private data on the national job guarantee scheme website alone.

The article by Jikku Varghese Jacob was published by Manorama on May 2, 2017.

The shocking details have surfaced in a report released by the Center for Internet Society (CIS) which deals with the publication of Aadhaar data and their security. It appears to be the biggest blast on Aadhaar data leak yet. The report says these pieces of information were available on Internet since last November. Once detected, the CIS officials had initiated steps to remove them.

The CIS report cites two central government portals and websites from Andhra Pradesh as violators. Following are the websites that published the data:

National Social Assistance Programme (under the Ministry of Rural Development).
The national portal of the job guarantee scheme.
Daily online payment reports (Government of Andhra Pradesh)
Chandranna Bheema project (Government of Andhra Pradesh)

Private data of 1,59,42,083 people were leaked on the social assistance scheme site. The two Andhra Pradesh sites breached the privacy of three crore people.

Information leaked on most of the sites could be downloaded as Excel sheet. It is estimated that data on 23 crore people is linked to Aadhaar under the direct benefit scheme.

The CIS fears that if other government sites have also handled such data without care there could have occurred a massive data base breach. The CIS put in months of effort before finalizing this report.

It was recently found that Aadhaar data on 35 lakh people in Kerala was found disclosed on the state's Sevana Pension website. In Jharkhand, 14 lakh people had their privacy violated when their Aadhaar information was put out on a government website.

Such leaks of Aadhaar data is a crime that can fetch up to three years of imprisonment. Complaints have arisen that government departments did not bother to comply with an IT ministry directive last month to remove the Aadhaar data from websites.

Experts point out that criminals can misuse personal data on Aadhaar and bank account. The data could be used to obtain SIM cards and carry out transactions online.

Aadhaar, the world's largest bio-metric enrolment in India, will enrol 1.2 billion people in a 12-digit unique number for each person to be issued to each resident in the country. The number with its biometric information – photograph, fingerprints and iris scan – of each individual is easily verifiable in an online.

For more details visit https://cis-india.org/internet-governance/news/manorama-may-2-2017-jikku-varghese-jacob-biggest-blast-on-aadhaar-leak-so-far-govt-sites-leaked-data-of-13-crore-people

BigDog is Watching You! The Sci-fi Future of Animal and Insect Drones

maria — 2013-07-12T15:38:33Z

Do you think robotic aeroplanes monitoring us are scary enough? Wait until you read about DARPA´s new innovative and subtle way to keep us all under the microscope! This blog post presents a new reality of drones which is depicted in none other than animal and insect-like robots, equipped with cameras and other surveillance technologies.

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

Just when we thought we had seen it all, the US Defence Advanced Research Projects Agency (DARPA) funded another controversial surveillance project which makes even the most bizarre sci-fi movie seem like a pleasant fairy-tale in comparison to what we are facing: animal and insect drones.

Up until recently, unmanned aerial vehicles (UAVs), otherwise called drones, depicted the scary reality of surveillance, as robotic pilot-less planes have been swarming the skies, while monitoring large amounts of data without people´s knowledge or consent. Today, DARPA has come up with more subtle forms of surveillance: animal and insect drones. Clearly animal and insect-like drones have a much better camouflage than aeroplanes, especially since they are able to go to places and obtain data that mainstream UAVs can not.

India´s ´DARPA´, the Defence Research and Development Organisation (DRDO), has been creating UAVs over the last ten years, while the Indian Army first acquired UAVs from Israel in the late 1990s. Yet the use of all UAVs in India is still poorly regulated! Drones in the U.S. are regulated by the Federal Aviation Administration (FAA), whilst the European Aviation Safety Agency (EASA) regulates drones in the European Union. In India, the Ministry of Civil Aviation regulates drones, whilst the government is moving ahead with plans to replace the Directorate General of Civil Aviation (DGCA) with a Civil Aviation Authority. However, current Indian aviation laws are vague in regards to data acquired, shared and retained, thus not only posing a threat to individual´s right to privacy and other human rights, but also enabling the creation of a secret surveillance state.

The DRDO appears to be following DARPA´s footsteps in terms of surveillance technologies and the questions which arise are: will animal and insect drones be employed in India in the future? If so, how will they be regulated?

BigDog/LS3

Apparently having UAVs flying above us and monitoring territories and populations without our knowledge or consent was not enough. DARPA is currently funding the BigDog project, which is none other than a drone dog, a four-legged robot equipped with a camera and capable of surveillance in disguise. DARPA and Boston Dynamics are working on the latest version of BigDog, called the Legged Squad Support System (LS3), which can carry 400 pounds of gear for more than 20 miles without refuelling. Not only can the LS3 walk and run on all types of surfaces, including ice and snow, but it also has ´vision sensors´ which enable it to autonomously maneuver around obstacles and follow soldiers in the battle field. The LS3 is expected to respond to soldiers' voice commands, such as 'come', 'stop' and 'sit', as well as serve as a battery charger for electronic devices.

BigDog/LS3 is undoubtedly an impressive technological advancement in terms of aiding squads with surveillance, strategic management and a mobile auxiliary power source, as well as by carrying gear. Over the last century most technological developments have manifested through the military and have later been integrated in societies. Many questions arise around the BigDog/LS3 and its potential future use by governments for non-military purposes. Although UAVs were initially used for strictly military purposes, they are currently also being used by governments on an international level for civil purposes, such as to monitor climate change and extinct animals, as well as to surveille populations. Is it a matter of time before BigDog is used by governments for ´civil purposes´ too? Will robotic dogs swarm cities in the future to provide ´security´?

Like any other surveillance technology, the LS3 should be legally regulated and current lack of regulation could create a potential for abuse. Is authorisation required to use a LS3? If so, who has the legal right to authorise its use? Under what conditions can authorisation be granted and for how long? What kind of data can legally be obtained and under what conditions? Who has the legal authority to access such data? Can data be retained and if so, for how long and under what conditions? Do individuals have the right to be informed about the data withheld about them? Just because it´s a ´dog´ should not imply its non-regulation. This four-legged robot has extremely intrusive surveillance capabilities which may breach the right to privacy and other human rights when left unregulated.

Humming Bird Drone


Source: HighTech Edge

TIME magazine recognised DARPA for its Hummingbird nano air vehicle (NAV) and named the drone bird one of the 50 best inventions of 2011. True, it is rather impressive to create a robot which looks like a bird, behaves like a bird, but serves as a secret spy.

During the presentation of the humming bird drone, Regina Dugan, former Director of DARPA, stated:

"Since we took to the sky, we have wanted to fly faster and farther. And to do so, we've had to believe in impossible things and we've had to refuse to fear failure."

Although believing in 'impossible things' is usually a prerequisite to innovation, the potential implications on human rights of every innovation and their probability of occurring should be examined. Given the fact that drones already exist and that they are used for both military and non-military purposes, the probability is that the hummingbird drone will be used for civil purposes in the future. The value of data in contemporary information societies, as well as government's obsession with surveillance for ´national security´ purposes back up the probability that drone birds will not be restricted to battlefields.

So should innovation be encouraged for innovation’s sake, regardless of potential infringement of human rights? This question could open up a never-ending debate with supporters arguing that it´s not technology itself which is harmful, but its use or misuse. However the current reality of drones is this: UAVs and NAVs are poorly regulated (if regulated at all in many countries) and their potential for abuse is enormous, given that ´what happens to our data happens to ourselves....who controls our data controls our lives.´ If UAVs are used to surveille populations, why would drone birds not be used for the same purpose? In fact, they have an awesome camouflage and are potentially capable of acquiring much more data than any UAV! Given the surveillance benefits, governments would appear irrational not to use them.

MeshWorms and Remote-Controlled Insects


Source: NY Daily News

Think insects are creepy? Now we can have a real reason to be afraid of them. Clearly robotic planes, dogs and birds are not enough.

DARPA´s MeshWorm project entails the creation of earthworm-like robots that crawl along surfaces by contracting segments of their bodies. The MeshWorm can squeeze through tight spaces and mold its shape to rough terrain, as well as absorb heavy blows. This robotic worm will be used for military purposes, while future use for ´civil purposes´ remains a probability.

Robots, however, are not only the case. Actual insects are being wirelessly controlled, such as beetles with implanted electrodes and a radio receiver on their back. The giant flower beetle´s size enables it to carry a small camera and a heat sensor, which constitutes it as a reliable mean for surveillance.

Other drone insects look and fly like ladybugs and dragonflies. Researchers at the Wright State University in Dayton, Ohio, have been working on a butterfly drone since 2008. Former software engineer Alan Lovejoy has argued that the US is developing mosquito drones. Such a device could potentially be equipped with a camera and a microphone, it could use its needle to abstract a DNA sample with the pain of a mosquito bite and it could also inject a micro RFID tracking device under peoples´ skin. All such micro-drones could potentially be used for both military and civil purposes and could violate individuals´ right to privacy and other civil liberties.

Security vs. Privacy: The wrong debate

09/11 was not only a pioneering date for the U.S., but also for India and most countries in the world. The War on Terror unleashed a global wave of surveillance to supposedly enable the detection and prevention of crime and terrorism. Governments on an international level have been arguing over the last decade that the use of surveillance technologies is a prerequisite to safety. However, security expert, Bruce Schneier, argues that the trade-off of privacy for security is a false dichotomy.

Everyone can potentially be a suspect within a surveillance state. Analyses of Big Data can not only profile individuals and populations, but also identify ‘branches of communication’ around every individual. In short, if you know someone who may be considered a suspect by intelligence agencies, you may also be a suspect. The mainstream argument “I have nothing to hide, I am not a terrorist’ is none other than a psychological coping mechanism when dealing with surveillance. The reality of security indicates that when an individual’s data is being intercepted, the probability is that those who control that data can also control that individual’s life. Schneier has argued that privacy and security are not on the opposite side of a seesaw, but on the contrary, the one is a prerequisite of the other. Governments should not expect us to give up our privacy in exchange for security, as loss of privacy indicates loss of individuality and essentially, loss of freedom. We can not be safe when we trade-off our personal data, because privacy is what protects us from abuse from those in power. Thus the entire War on Terror appears to waged through a type of phishing, as the promise of ´security´ may be bait to acquire our personal data.

Since the 2008 Mumbai terrorist attacks, India has had more reasons to produce, buy and use surveillance technologies, including drones. Last New Year´s Eve, the Mumbai police used UAVs to monitor hotspots, supposedly to help track down revellers who sexually harass women. The Chennai police recently procured three UAVs from Anna University to assist them in keeping an eye on the city´s vehicle flow. Raj Thackeray´s rally marked the biggest surveillance exercise ever launched for a single event, which included UAVs. The Chandigarh police are the first Indian police force to use the ´Golden Hawk´ - a UAV which will keep a ´bird´s eye on criminal activities´. This new type of drone was manufactured by the Aeronautical Development Establishment (one of DRDO's premier laboratories based in Bangalore) and as of 2011 is being used by Indian law enforcement agencies.

Although there is no evidence that India currently has any animal or insect drones, it could be a probability in the forthcoming years. Since India is currently using many UAVs either way, why would animal and/or insect drones be excluded? What would prevent India from potentially using such drones in the future for ´civil purposes´? More importantly, how are ´civil purposes´ defined? Who defines ´civil purposes´and under what criteria? Would the term change and if so, under what circumstances? The term ´civil purposes´ varies from country to country and is defined by many political, social, economic and cultural factors, thus potentially enabling extensive surveillance and abuse of human rights.

Drones can potentially be as intrusive as other communications surveillance technologies, depending on the type of technology they´re equipped with, their location and the purpose of their use. As they can potentially violate individuals´ right to privacy, freedom of expression, freedom of movement and many other human rights, they should be strictly regulated. In Europe UAVs are regulated based upon their weight, as unmanned aircraft with an operating mass of less than 150kg are exempt by the EASA Regulation and its Implementation Rules. This should not be the case in India, as drones lighter than 150kg can potentially be more intrusive than other heavier drones, especially in the case of bird and insect drones.

Laws which explicitly regulate the use of all types of drones (UAVs, NAVs and micro-drones) and which legally define the term ´civil purposes´ in regards to human rights should be enacted in India. Some thoughts on the authorisation of drones include the following: A Special Committee on the Use of All Drones (SCUAD) could be established, which would be comprised of members of the jury, as well as by other legal and security experts of India. Such a committee would be the sole legal entity responsible for issuing authorisation for the use of drones, and every authorisation would have to comply with the constitutional and statutory provisions of human rights. Another committee, the Supervisory Committee on the Authorisation of the Use of Drones (lets call this ´SCAUD´), could also be established, which would also be comprised by (other) members of the jury, as well as by (other) legal and security experts of India. This second committee would supervise the first and it would ensure that SCUAD provides authorisations in compliance with the laws, once the necessity and utility of the use of drones has been adequately proven.

It´s not about ´privacy vs. security´. Nor is it about ´privacy or security´. In every democratic state, it should be about ´privacy and security´, since the one cannot exist without the other. Although the creation of animal and insect drones is undoubtedly technologically impressive, do we really want to live in a world where even animal-like robots can be used to spy on us? Should we be spied on at all? How much privacy do we give up and how much security do we gain in return through drones? If drones provided the ´promised security´, then India and all other countries equipped with these technologies should be extremely safe and crime-free; however, that is not the case.

In order to ensure that the use of drones does not infringe upon the right to privacy and other human rights, strict regulations are a minimal prerequisite. As long as people do not require that the use of these spying technologies are strictly regulated, very little can be done to prevent a scary sci-fi future. That´s why this blog has been written.

For more details visit https://cis-india.org/internet-governance/blog/big-dog-is-watching-you

Big Tech’s privacy promise to consumers could be good news — and also bad news

Rajat Kathuria and Isha Suri — 2023-01-18T23:25:28Z

Rajat Kathuria, Isha Suri write: Its use as a tool for market development must balance consumer protection, innovation, and competition.

In February, Facebook, rebranded as Meta, stated that its revenue in 2022 is anticipated to reduce by $10 billion due to steps undertaken by Apple to enhance user privacy on its mobile operating system. More specifically, Meta attributed this loss to a new AppTrackingTransparency feature that requires apps to request permission from users before tracking them across other apps and websites or sharing their information with and from third parties. Through this change, Apple effectively shut the door on “permissionless” internet tracking and has given consumers more control over how their data is used. Meta alleged that this would hurt small businesses benefiting from access to targeted advertising services and charged Apple with abusing its market power by using its app store to disadvantage competitors under the garb of enhancing user privacy.

Access the full article published in the Indian Express on April 13, 2022

For more details visit https://cis-india.org/internet-governance/blog/indian-express-rajat-kathuria-isha-suri-big-tech-consumers-privacy-policy

Big Democracy: Big Surveillance - A talk by Maria Xynou

maria — 2013-12-12T10:23:21Z

Next Tuesday, Maria Xynou will be presenting her latest research on surveillance in India. Come and engage in a discussion on India's controversial surveillance schemes, surveillance industry and much much more!

And so we've heard a lot about the Edward Snowden leaks and about the NSA's controversial mass surveillance projects. But what's happening in India?

It turns out that the world's largest democracy has some of the most controversial surveillance schemes in the world! Some of India's laws, schemes, projects and technologies are unbeatable when it comes to mass surveillance, censorship and control. While India may be a developing country with issues ranging from poverty to corruption, it nonetheless appears to be at the forefront of surveillance on an international level.

Join us at the Centre for Internet and Society (CIS) on 3rd December 2013 to hear about India's surveillance laws, schemes and technologies and to engage in a discussion on the potential implications. All that is required is an open mind, critical thought and a will to challenge that which has not been challenged!

We look forward to seeing you all and to hearing your thoughts, ideas and opinions!

VIDEO

For more details visit https://cis-india.org/internet-governance/events/big-democracy-big-surveillance-a-talk-by-maria-xynou

Big Data in India: Benefits, Harms, and Human Rights - Workshop Report

Vidushi Marda, Akash Deep Singh and Geethanjali Jujjavarapu — 2016-11-18T12:58:19Z

The Centre for Internet and Society held a one-day workshop on “Big Data in India: Benefits, Harms and Human Rights” at India Habitat Centre, New Delhi on the 1st of October, 2016. This report is a compilation of the the issues discussed, ideas exchanged and challenges recognized during the workshop. The objective of the workshop was to discuss aspects of big data technologies in terms of harms, opportunities and human rights. The discussion was designed around an extensive study of current and potential future uses of big data for governance in India, that CIS has undertaken over the last year with support from the MacArthur Foundation.

Contents

Big Data: Definitions and Global South Perspectives

Aadhaar as Big Data

Seeding

Aadhaar and Data Security

Aadhaar’s Relational Arrangement with Big Data Scheme

The Myths surrounding Aadhaar

IndiaStack and FinTech Apps

Problems with UID

Big Data: Definitions and Global South Perspectives

“Big Data” has been defined by multiple scholars till date. The first consideration at the workshop was to discuss various definitions of big data, and also to understand what could be considered Big Data in terms of governance, especially in the absence of academic consensus. One of the most basic ways to define it, as given by the National Institute of Standards and Technology, USA, is to take it to be the data that is beyond the computational capacity of current systems. This definition has been accepted by the UIDAI of India. Another participant pointed out that Big Data is not only indicative of size, but rather the nature of data which is unstructured, and continuously flowing. The Gartner definition of Big Data relies on the three Vs i.e. Volume (size), Velocity (infinite number of ways in which data is being continuously collected) and Variety (the number of ways in which data can be collected in rows and columns).

The presentation also looked at ways in which Big Data is different from traditional data. It was pointed out that it can accommodate diverse unstructured datasets, and it is ‘relational’ i.e. it needs the presence of common field(s) across datasets which allows these fields to be conjoined. For e.g., the UID in India is being linked to many different datasets, and they don’t constitute Big Data separately, but do so together. An increasingly popular definition is to define data as “Big Data” based on what can be achieved through it. It has been described by authors as the ability to harness new kinds of insight which can inform decision making. It was pointed out that CIS does not subscribe to any particular definition, and is still in the process of coming up with a comprehensive definition of Big Data.

Further, discussion touched upon the approach to Big Data in the Global South. It was pointed out that most discussions about Big Data in the Global South are about the kind of value that it can have, the ways in which it can change our society. The Global North, on the other hand, has moved on to discussing the ethics and privacy issues associated with Big Data.

After this, the presentation focussed on case studies surrounding key Central Government initiatives and projects like Aadhaar, Predictive Policing, and Financial Technology (FinTech).

Aadhaar as Big Data

In presenting CIS’ case study on Aadhaar, it was pointed out that initially, Aadhaar, with its enrollment dataset was by itself being seen as Big Data. However, upon careful consideration in light of definitions discussed above, it can be seen as something that enables Big Data. The different e-governance projects within Digital India, along with Aadhaar, constitute Big Data. The case study discussed the Big Data implications of Aadhaar, and in particular looked at a ‘cradle to grave’ identity mapping through various e-government projects and the datafication of various transaction generated data.

Seeding

Any digital identity like Aadhaar typically has three features: 1. Identification i.e. a number or card used to identify yourself; 2. Authentication, which is based on your number or card and any other digital attributes that you might have; 3. Authorisation: As bearers of the digital identity, we can authorise the service providers to take some steps on our behalf. The case study discussed ‘seeding’ which enables the Big Data aspects of Digital India. In the process of seeding, different government databases can be seeded with the UID number using a platform called Ginger. Due to this, other databases can be connected to UIDAI, and through it, data from other databases can be queried by using your Aadhaar identity itself. This is an example of relationality, where fractured data is being brought together. At the moment, it is not clear whether this access by UIDAI means that an actual physical copy of such data from various sources will be transferred to UIDAI’s servers or if they will just access it through internet, but the data remains on the host government agency’s server. An example of even private parties becoming a part of this infrastructure was raised by a participant when it was pointed out that Reliance Jio is now asking for fingerprints. This can then be connected to the relational infrastructure being created by UIDAI. The discussion then focused on how such a structure will function, where it was mentioned that as of now, it cannot be said with certainty that UIDAI will be the agency managing this relational infrastructure in the long run, even though it is the one building it.

Aadhaar and Data Security

This case study also dealt with the sheer lack of data protection legislation in India except for S.43A of the IT Act. The section does not provide adequate protection as the constitutionality of the rules and regulations under S.43A is ambivalent. More importantly, it only refers to private bodies. Hence, any seeding which is being done by the government is outside the scope of data protection legislation. Thus, at the moment, no legal framework covers the processes and the structures being used for datasets. Due to the inapplicability of S.43A to public bodies, questions were raised as to the existence of a comprehensive data protection policy for government institutions. Participants answered the question in the negative. They pointed out that if any government department starts collecting data, they develop their own privacy policy. There are no set guidelines for such policies and they do not address concerns related to consent, data minimisation and purpose limitation at all. Questions were also raised about the access and control over Big Data with government institutions. A tentative answer from a participant was that such data will remain under the control of the domain specific government ministry or department, for e.g. MNREGA data with the Ministry of Rural Development, because the focus is not on data centralisation but rather on data linking. As long as such fractured data is linked and there is an agency that is responsible to link them, this data can be brought together. Such data is primarily for government agencies. But the government is opening up certain aspects of the data present with it for public consumption for research and entrepreneurial purposes.The UIDAI provides you access to your own data after paying a minimal fee. The procedure for such access is still developing.

Aadhaar’s Relational Arrangement with Big Data Scheme

The various Digital India schemes brought in by the government were elucidated during the workshop. It was pointed out that these schemes extend to myriad aspects of a citizen’s daily life and cover all the essential public services like health, education etc. This makes Aadhaar imperative even though the Supreme Court has observed that it is not mandatory for every citizen to have a unique identity number. The benefits of such identity mapping and the ecosystem being generated by it was also enumerated during the discourse. But the complete absence of any data ethics or data confidentiality principles make us unaware of the costs at which these benefits are being conferred on us. Apart from surveillance concerns, the knowledge gap being created between the citizens and the government was also flagged. Three main benefits touted to be provided by Aadhaar were then analysed. The first is the efficient delivery of services. This appears to be an overblown claim as the Aadhaar specific digitisation and automation does not affect the way in which employment will be provided to citizens through MNREGA or how wage payment delays will be overcome. These are administrative problems that Aadhaar and associated technologies cannot solve. The second is convenience to the citizens. The fallacies in this assertion were also brought out and identified. Before the Aadhaar scheme was rolled in, ration cards were issued based on certain exclusion and inclusion criteria.. The exclusion and inclusion criteria remain the same while another hurdle in the form of Aadhaar has been created. As India is still lacking in supporting infrastructure such as electricity, server connectivity among other things, Aadhaar is acting as a barrier rather than making it convenient for citizens to enroll in such schemes.The third benefit is fraud management. Here, a participant pointed out that this benefit was due to digitisation in the form of GPS chips in food delivery trucks and electronic payment and not the relational nature of Aadhaar. Aadhaar is only concerned with the linking up or relational part. About deduplication, it was pointed out how various government agencies have tackled it quite successfully by using technology different from biometrics which is unreliable at the best of times.

The Myths surrounding Aadhaar

The discussion also reflected on the fact that Aadhaar is often considered to be a panacea that subsumes all kinds of technologies to tackle leakages. However, this does not take into account the fact that leakages happen in many ways. A system should have been built to tackle those specific kinds of leakages, but the focus is solely on Aadhaar as the cure for all. Notably, participants who have been a part of the government pointed out how this myth is misleading and should instead be seen as the first step towards a more digitally enhanced country which is combining different technologies through one medium.

IndiaStack and FinTech Apps

What is India Stack?

The focus then shifted to another extremely important Big Data project, India Stack, being conceptualised and developed by a team of private developers called iStack, for the NPCI. It builds on the UID project, Jan Dhan Yojana and mobile services trinity to propagate and develop a cashless, presence-less, paperless and granular consent layer based on UID infrastructure to digitise India.

A participant pointed out that the idea of India Stack is to use UID as a platform and keep stacking things on it, such that more and more applications are developed. This in turn will help us to move from being a ‘data poor’ country to a ‘data rich’ one. The economic benefits of this data though as evidenced from the TAGUP report - a report about the creation of National Information Utilities to manage the data that is present with the government - is for the corporations and not the common man. The TAGUP report openly talks about privatisation of data.

Problems with India Stack

The granular consent layer of India Stack hasn’t been developed yet but they have proposed to base it on MIT Media Lab’s OpenPDS system. The idea being that, on the basis of the choices made by the concerned person, access to a person’s personal information may be granted to an agency like a bank. What is more revolutionary is that India Stack might even revoke this access if the concerned person expresses a wish to do so or the surrounding circumstances signal to India Stack that it will be prudent to do so. It should be pointed out that the the technology required for OpenPDS is extremely complex and is not available in India. Moreover, it’s not clear how this system would work. Apart from this, even the paperless layer has its faults and has been criticised by many since its inception, because an actual government signed and stamped paper has been the basis of a claim.. In the paperless system, you are provided a Digilocker in which all your papers are stored electronically, on the basis of your UID number. However, it was brought to light that this doesn’t take into account those who either do not want a Digilocker or UID number or cases where they do not have access to their digital records. How in such cases will people make claims?

A Digital Post-Dated Cheque: It’s Ramifications

A key change that FinTech apps and the surrounding ecosystem want to make is to create a digital post-dated cheque so as to allow individuals to get loans from their mobiles especially in remote areas. This will potentially cut out the need to construct new banks, thus reducing the capital expenditure , while at the same time allowing the credit services to grow. The direct transfer of money between UID numbers without the involvement of banks is a step to further help this ecosystem grow. Once an individual consents to such a system, however, automatic transfer of money from one’s bank accounts will be affected, regardless of the reason for payment. This is different from auto debt deductions done by banks presently, as in the present system banks have other forms of collateral as well. The automatic deduction now is only affected if these other forms are defaulted upon. There is no knowledge as to whether this consent will be reversible or irreversible. As Jan Dhan Yojana accounts are zero balance accounts, the account holder will be bled dry. The implication of schemes such as “Loan in under 8 minutes” were also discussed. The advantage of such schemes is that transaction costs are reduced.The financial institution can thus grant loans for the minimum amount without any additional enquiries. It was pointed out that this new system is based on living on future income much like the US housing bubble crash. Interestingly, in Public Distribution Systems, biometrics are insisted upon even though it disrupts the system. This can be seen as a part of the larger infrastructure to ensure that digital post-dated cheques become a success.

The Role of FinTech Apps

FinTech ‘apps’ are being presented with the aim of propagating financial inclusion. The Technology Advisory Group for Unique Projects report stated that as managing such information sources is a big task, just like electricity utilities, a National Information Utilities (NIU) should be set up for data sources. These NIUs as per the report will follow a fee based model where they will be charging for their services for government schemes. The report identified two key NIUs namely the National Payments Corporation of India (NPCI) and the Goods and Services Tax Network (GSTN). The key usage that FinTech applications will serve is credit scoring. The traditional credit scoring data sources only comprised a thin file of records for an individual, but the data that FinTech apps collect - a person’s UID number, mobile number. and bank account number all linked up, allow for a far more comprehensive credit rating. Government departments are willing to share this data with FinTech apps as they are getting analysis in return. Thus, by using UID and the varied data sources that have been linked together by UID, a ‘thick file’ is now being created by FinTech apps. Banking apps have not yet gone down the route of FinTech apps to utilise Big Data for credit scoring purposes.

The two main problems with such apps is that there is no uniform way of credit scoring. This distorts the rate at which a person has to pay interest. The consent layer adds another layer of complication as refusal to share mobile data with a FinTech app may lead to the app declaring one to be a risky investment thus, subjecting that individual to a higher rate of interest .

Regulation of FinTech Apps and the UID Infrastructure

India Stack and the applications that are being built on it, generate a lot of transaction metadata that is very intimate in nature. The privacy aspects of the UID legislation doesn't cover such data. The granular consent layer which has been touted to cover this still has to come into existence. Also, Big Data is based on sharing and linking of data. Here, privacy concerns and Big Data objectives clash. Big Data by its very nature challenges privacy principles like data minimisation and purpose limitation.The need for regulation to cover the various new apps and infrastructure which are being developed was pointed out.

Problems with UID

It has been observed that any problem present with Aadhaar is usually labelled as a teething problem, it’s claimed that it will be solved in the next 10 years. But, this begs the question - why is the system online right now?

Aadhaar is essentially a new data condition and a new exclusion or inclusion criteria. Data exclusion modalities as observed in Rajasthan after the introduction of biometric Point of Service (POS) machines at ration shops was found to be 45% of the population availing PDS services. This number also includes those who were excluded from the database by being included in the wrong dataset. There is no information present to tell us how many actual duplicates and how many genuine ration card holders were weeded out/excluded by POS.

It was also mentioned that any attempt to question Aadhaar is considered to be an attempt to go back to the manual system and this binary thinking needs to change. Big Data has the potential to benefit people, as has been evidenced by the scholarship and pension portals. However, Big Data’s problems arise in systems like PDS, where there is centralised exclusion at the level of the cloud. Moreover, the quantity problem present in the PDS and MNREGA systems persists. There is still the possibility of getting lesser grains and salary even with analysis of biometrics, hence proving that there are better technologies to tackle these problems. Presently, the accountability mechanisms are being weakened as the poor don’t know where to go to for redressal. Moreover, the mechanisms to check whether the people excluded are duplicates or not is not there. At the time of UID enrollment, out of 90 crores, 9 crore were rejected. There was no feedback or follow-up mechanism to figure out why are people being rejected. It was just assumed that they might have been duplicates.

Another problem is the rolling out of software without checking for inefficiencies or problems at a beta testing phase. The control of developers over this software, is so massive that it can be changed so easily without any accountability.. The decision making components of the software are all proprietary like in the the de-duplication algorithm being used by the UIDAI. Thus, this leads to a loss of accountability because the system itself is in flux, none of it is present in public domain and there are no means to analyse it in a transparent fashion..

These schemes are also being pushed through due to database politics. On a field study of NPR of citizens, another Big Data scheme, it was found that you are assumed to be an alien if you did not have the documents to prove that you are a citizen. Hence, unless you fulfill certain conditions of a database, you are excluded and are not eligible for the benefits that being on the database afford you.

Why is the private sector pushing for UIDAI and the surrounding ecosystem?

Financial institutions stand to gain from encouraging the UID as it encourages the credit culture and reduces transaction costs.. Another advantage for the private sector is perhaps the more obvious one, that is allows for efficient marketing of products and services..

The above mentioned fears and challenges were actually observed on the ground and the same was shown through the medium of a case study in West Bengal on the smart meters being installed there by the state electricity utility. While the data coming in from these smart meters is being used to ensure that a more efficient system is developed,it is also being used as a surrogate for income mapping on the basis of electricity bills being paid. This helps companies profile neighbourhoods. The technical officer who first receives that data has complete control over it and he can easily misuse the data. This case study again shows that instruments like Aadhaar and India Stack are limited in their application and aren’t the panacea that they are portrayed to be.

A participant pointed out that in the light of the above discussions, the aim appears to be to get all kinds of data, through any source, and once you have gotten the UID, you link all of this data to the UID number, and then use it in all the corporate schemes that are being started. Most of the problems associated with Big Data are being described as teething problems. The India Stack and FinTech scheme is coming in when we already know about the problems being faced by UID. The same problems will be faced by India Stack as well.

Can you opt out of the Aadhaar system and the surrounding ecosystem?

The discussion then turned towards whether there can be voluntary opting out from Aadhaar. It was pointed out that the government has stated that you cannot opt out of Aadhaar. Further, the privacy principles in the UIDAI bill are ambiguously worded where individuals only have recourse for basic things like correction of your personal information. The enforcement mechanism present in the UIDAI Act is also severely deficient. There is no notification procedure if a data breach occurs. . The appellate body ‘Cyber Appellate Tribunal’ has not been set up in three years.

CCTNS: Big Data and its Predictive Uses

What is Predictive Policing?

The next big Big Data case study was on the Crime and Criminal Tracking Network & Systems (CCTNS). Originally it was supposed to be a digitisation and interconnection scheme where police records would be digitised and police stations across the length and breadth of the country would be interconnected. But, in the last few years some police departments of states like Chandigarh, Delhi and Jharkhand have mooted the idea of moving on to predictive policing techniques. It envisages the use of existing statistical and actuarial techniques along with many other tropes of data to do so. It works in four ways: 1. By predicting the place and time where crimes might occur; 2. To predict potential future offenders; 3. To create profiles of past crimes in order to predict future crimes; 4. Predicting groups of individuals who are likely to be victims of future crimes.

How is Predictive Policing done?

To achieve this, the following process is followed: 1. Data collection from various sources which includes structured data like FIRs and unstructured data like call detail records, neighbourhood data, crime seasonal patterns etc. 2. Analysis by using theories like the near repeat theory, regression models on the basis of risk factors etc. 3. Intervention

Flaws in Predictive Policing and questions of bias

An obvious weak point in the system is that if the initial data going into the system is wrong or biased, the analysis will also be wrong. Efforts are being made to detect such biases. An important way to do so will be by building data collection practices into the system that protect its accuracy. The historical data being entered into the system is carrying on the prejudices inherited from the British Raj and biases based on religion, caste, socio-economic background etc.

One participant brought about the issue of data digitization in police stations, and the impact of this haphazard, unreliable data on a Big Data system. This coupled with paucity of data is bound to lead to arbitrary results. An effective example was that of black neighbourhoods in the USA. These are considered problematic and thus they are policed more, leading to a higher crime rate as they are arrested for doing things that white people in an affluent neighbourhood get away with. This in turn further perpetuates the crime rate and it becomes a self-fulfilling prophecy. In India, such a phenomenon might easily develop in the case of migrants, de-notified tribes, Muslims etc. A counter-view on bias and discrimination was offered here. One participant pointed out that problems with haphazard or poor quality of data is not a colossal issue as private companies are willing to fill this void and are actually doing so in exchange for access to this raw data. It was also pointed out how bias by itself is being used as an all encompassing term. There are multiplicities of biases and while analysing the data, care should be taken to keep it in mind that one person’s bias and analysis might and usually does differ from another. Even after a computer has analysed the data, the data still falls into human hands for implementation.

The issue of such databases being used to target particular communities on the basis of religion, race, caste, ethnicity among other parameters was raised. Questions about control and analysis of data were also discussed, i.e. whether it will be top-down with data analysis being done in state capitals or will this analysis be done at village and thana levels as well too. It was discussed as topointed out how this could play a major role in the success and possible persecutory treatment of citizens, as the policemen at both these levels will have different perceptions of what the data is saying. . It was further pointed out, that at the moment, there’s no clarity on the mode of implementation of Big Data policing systems. Police in the USA have been seen to rely on Big Data so much that they have been seen to become ‘data myopic’. For those who are on the bad side of Big Data, in the Indian context, laws like preventive detention can be heavily misused.There’s a very high chance that predictive policing due to the inherent biases in the system and the prejudices and inefficiency of the legal system will further suppress the already targeted sections of the society. A counterpoint was raised and it was suggested that contrary to our fears, CCTNS might lead to changes in our understanding and help us to overcome longstanding biases.

Open Knowledge Architecture as a solution to Big Data biases?

The conference then mulled over the use of ‘Open Knowledge’ architecture to see whether it can provide the solution to rid Big Data of its biases and inaccuracies if enough eyes are there. It was pointed out that Open Knowledge itself can’t provide foolproof protection against these biases as the people who make up the eyes themselves are predominantly male belonging to the affluent sections of the society and they themselves suffer from these biases.

Who exactly is Big Data supposed to serve?

The discussion also looked at questions such as who is this data for? Janata Information System (JIS), is a concept developed by MKSS where the data collected and generated by the government is taken to be for the common citizens. For e.g. MNREGA data should be used to serve the purposes of the labourers. The raw data as is available at the moment, usually cannot be used by the common man as it is so vast and full of information that is not useful for them at all. It was pointed out that while using Big Data for policy planning purposes, the actual string of information that turned out to be needed was very little but the task of unravelling this data for civil society purposes is humongous. By presenting the data in the right manner, the individual can be empowered. The importance of data presentation was also flagged. It was agreed upon that the content of the data should be for the labourer and not a MNC, as the MNC has the capability to utilise the raw data on it’s own regardless.

Concerns about Big Data usage

Participants pointed out that privacy concerns are usually brushed under the table due to a belief that the law is sufficient or that the privacy battle has already been lost.
In the absence of knowledge of domain and context, Big Data analysis is quite limited. Big Data’s accuracy and potential to solve problems needs to be factually backed.
The narrative of Big Data often rests on the assumption that descriptive statistics take over inferential statistics, thus eliminating the need for domain specific knowledge. It is claimed that the data is so big that it will describe everything that we need to know.
Big Data is creating a shift from a deductive model of scientific rigour to an inductive one. In response to this, a participant offered the idea that troves of good data allow us to make informed questions on the basis of which the deductive model will be formed. A hybrid approach combining both deductive and inductive might serve us best.
The need to collect the right data in the correct format, in the right place was also expressed.

Potential Research Questions & Participants’ Areas of Research

Following this discussion, participants brainstormed to come up with potential areas of research and research questions. They have been captured below:

Big Data, Aadhaar and India Stack:

Has Aadhaar been able to tackle illegal ways of claiming services or are local negotiations and other methods still prevalent?
Is the consent layer of India Stack being developed in a way that provides an opportunity to the UID user to give informed consent? The OpenPDS and its counterpart in the EU i.e. the My Data Structure were designed for countries with strong privacy laws. Importantly, they were meant for information shared on social media and not for an individual’s health or credit history. India is using it in a completely different sphere without strong data protection laws. What were the granular consent layer structures present in the West designed for and what were they supposed to protect?
The question of ownership of data needs to be studied especially in context of a globalised world where MNCs are collecting copious amounts of data of Indian citizens. What is the interaction of private parties in this regard?

Big Data and Predictive Policing:

How are inequalities being created through the Big Data systems? Lessons should be taken from the Western experience with the advent of predictive policing and other big data techniques - they tend to lead to perpetuation of the current biases which are already ingrained in the system.
It was also pointed out how while studying these topics and anything related to technology generally, we become aware of a divide that is present between the computational sciences and social sciences. This divide needs to be erased if Big Data or any kind of data is to be used efficiently. There should be a cross-pollination between different groups of academics. An example of this can be seen to be the ‘computational social sciences departments’ that have been coming up in the last 3-4 years.
Why are so many interim promises made by Big Data failing? A study of this phenomenon needs to be done from a social science perspective. This will allow one to look at it from a different angle.

Studying Big Data:

What is the historical context of the terms of reference being used for Big Data? The current Big Data debate in India is based on parameters set by the West. For better understanding of Big Data, it was suggested that P.C. Mahalanobis’ experience while conducting the Indian census, (which was the Big Data of that time) can be looked at to get a historical perspective on Big Data. This comparison might allow us to discover questions that are important in the Indian context. It was also suggested that rather than using ‘Big Data’ as a catchphrase to describe these new technological innovations, we need to be more discerning.
What are the ideological aspects that must be considered while studying Big Data? What does the dialectical promise of technology mean? It was contended that every time there is a shift in technology, the zeitgeist of that period is extremely excited and there are claims that it will solve everything. There’s a need to study this dialectical promise and the social promise surrounding it.
Apart from the legitimate fears that Big Data might lead to exclusion, what are the possibilities in which it improve inclusion too?
The diminishing barrier between the public and private self, which is a tangent to the larger public-private debate was mentioned.
How does one distinguish between technology failure and process failure while studying Big Data?

Big Data: A Friend?

In the concluding session, the fact that the Big Data moment cannot be wished away was acknowledged. The use of analytics and predictive modelling by the private sector is now commonplace and India has made a move towards a database state through UID and Digital India. The need for a nuanced debate, that does away with the false equivalence of being either a Big Data enthusiast or a luddite is crucial.

A participant offered two approaches to solving a Big Data problem. The first was the Big Data due process framework which states that if a decision has been taken that impacts the rights of a citizen, it needs to be cross examined. The efficacy and practicality of such an approach is still not clear. The second, slightly paternalistic in nature, was the approach where Big Data problems would be solved at the data science level itself. This is much like the affirmative algorithmic approach which says that if in a particular dataset, the data for the minority community is not available then it should be artificially introduced in the dataset. It was also suggested that carefully calibrated free market competition can be used to regulate Big Data. For e.g. a private personal wallet company that charges higher, but does not share your data at all can be an example of such competition.

Another important observation was the need to understand Big Data in a Global South context and account for unique challenges that arise. While the convenience of Big Data is promising, its actual manifestation depends on externalities like connectivity, accurate and adequate data etc that must be studied in the Global South.

While the promises of Big Data are encouraging, it is also important to examine its impacts and its interaction with people's rights. Regulatory solutions to mitigate the harms of big data while also reaping its benefits need to evolve.

For more details visit https://cis-india.org/internet-governance/big-data-in-india-benefits-harms-and-human-rights-a-report

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

elonnai — 2015-08-11T07:01:12Z

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

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

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

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

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

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

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

Rule 3 defines sensitive personal information as:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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