Workshop on New version of PDPB 2019 by Cyber Law College

Cyber Law College has conducted several training programs on PDPB 2019 in the last 2 years. Some of them are under the FDPPI Certificate program and some or programs conducted by Cyber Law College.

For all the paid programs, Cyber Law College had given an assurance that when the new modified version of the Bill is presented in the Parliament, a free bridging program would be conducted.

It is expected that during the first week of December, 2021, the new version of the PDPB 2019 would be presented in the Parliament and copy of the bill would be available.

Keeping up the promise Cyber Law College would be conducting a series of half day workshops in the second half of December to enable all the attendees of paid programs for PDPB 2019 and Module I of the FDPPI’s certified program and the DPO training Program of FDPPI to undergo the training.

The exact date and time would be announced later.

This offer would run upto January 15 2022.

All those who are interested in availing this offer may kindly register themselves by sending an e-mail to clc4india@gmail.com indicating the program they have attended.

Naavi

 

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A Dangerous nexus between Cricket, Bollywood and Bitcoin may develop..Should nip it in the bud

The Crypto war is expected to escalate further since it is the war between Black money and the Indian Government and it cannot subside easily without a fight.

The Crypto supporters are now attacking the Indian stock markets and drawing it down to indicate to the Government that there will be adverse consequences if Crypto ban is implemented.

At the same time an article in Economic Times today indicates that the IPL franchisees are also unhappy that their proposed link to the Crypto companies is sought to be derailed.

We already know that the Bollywood is deeply under the control of the drug mafia which require Bitcoins and Crypto currencies in circulation. Now the Cricket franchisees are all set to corrupt the cricketers by paying them off with bitcoins. This will be most useful in match fixing since money trail cannot be found and proved in a Court of law.

It would be dangerous if Bitcoin becomes the bind between drug trade in Bollywood and the match fixing and betting in Cricket. Sooner the law is passed, better it is for things to cool down.

This is the time for the Government to fasten its seatbelts and wait out for this attack to dissipate.

Stock markets will bounce back. Genuine investors have little to fear since there is likely to be a 90 day window for them to sell off their holdings. If the Indian market is weak, they can sell Bitcoins in the foreign market. They only have to account for the profits which all genuine investors can do. If people have invested their black money, no body can help them. Perhaps the tax authorities may only collect some penalty and not prosecute the genuine investors. Those who might have invested tens of crores of black money may have to face the music and they need no sympathy.

Naavi

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The Crypto Rupee

The proposed “The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021” (Crypto Bill-2021) is expected to “Prohibit” private crypto currencies and also enable issue of a RBI controlled Crypto currency.

Knowing the power of corruption, we need to wait until the final act is notified to understand the real nature of the regulation. There could be several “loopholes” specifically introduced to protect the fraudulent intentions of the Crypto operators.

Just as we can have a law to regulate drug abuse saying that “LSD use is banned but can be used under prescription of a medical practitioner” which is sufficient for the drug industry to proliferate, it is possible to create “Exceptions” that effectively negate the “Prohibition”.

We hope that the Government has no such malicious intentions of cheating the honest citizens by a clever manipulation of the provisions in the Bill.

Leaving behind this doubt, let us now look forward to the developments that we may see in implementing the regulation as all honest citizens now understand.

Naavi


There are two important parts to the Bill. One is the “Prohibition of all Private Crypto Currencies” and the second is “Legal Empowerment of an official central bank controlled “Crypto INR” (CINR).

Listening to some TV debates yesterday, I understand that there is some confusion about what is a “Private Crypto Currency”.  What we need to understand is that “Private Crypto Currency” (PCC) refers to all the Bitcoin, Etherium, Dogecoin , etc where the block chain is controlled by a form of syndicate which is largely anonymous. Such currencies are completely out of control of any sovereign Government and the value is not backed by any sovereign guarantee. The value of such currency is only dependent on the public sentiment and the perceived shortage occurring because  of the scarcity factor.

PCC s also  includes Initial Coin offerings like  Libra where there may be an identifiable “Promoter”. It also includes the currencies like Linden used in “Secondlife.com” or similar other entities and internet games. These may carry some form of assurance from the owner of the website promoting the currency but not any form of sovereign guarantee. For example, the Lindens we may acquire in Secondlife.com may be convertible into dollars but if for some reason the exchange rate is unrealistically modified or exchange is suspended, it becomes a change of rules in the game and a contractual default.

“Non Private Crypto Currencies” refer to Crypto Currencies issued by sovereign Governments with sovereign backing. CINR would therefore be a sovereign Crypto Rupee backed by the Central Bank of India . Similarly CUSD would be a Crypto US Dollar and CEURO would be the Crypto Euro and CAUSD would be Crypto Australian dollar, CGBP the Crypto Great Britain Pound, etc.

All these “Non Private Crypto Currencies” may also be referred to as “Sovereign Crypto Currencies” or SCCs as distinguished from PCCs.

We understand that one of the objectives of the new Bill will be to enable the issue of an official crypto currency which in some circles are referred to as CBOD (Central Bank controlled official digital currency). We however prefer to call it a CINR since the term “Digital Currency” does not reflect the crypto nature and could be applied to any form of virtual currency including the dematerialized bank balance.

There is no Need for a new law for CINR

The first point that we need to note is that there is no need for a new law to enable RBI to issue a CINR. Currently RBI has the exclusive power to issue a “Currency”.

In terms of Section 22 of the Reserve Bank of India Act (1934),  Reserve Bank has the sole right to issue banknotes in India. Section 25 states that the design, form and material of bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by the Central Board of RBI.

Section 22 of RBI act states:

(1) The Bank shall have the sole right to issue bank notes in India, and may, for a period which shall be fixed by the Central Government on the recommendation of the Central Board, issue currency notes of the Government of India supplied to it by the Central Government, and the provisions of this Act applicable to bank notes shall, unless a contrary intention appears, apply to all currency notes of the Government of India issued either by the Central Government] or by the Bank in like manner as if such currency notes were bank notes, and references in this Act to bank
notes shall be construed accordingly.

(2) On and from the date on which this Chapter comes into force the Central Government shall not issue any currency notes.

Section 25 of RBI Act states:

The design, form and material of bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by Central Board. 

Under Section 26 of the RBI Act,

“…every bank note shall be legal tender at any place in 4[India] in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government…. “

RBI Act also prescribes criminal punishments including imprisonment upto 3 years and fine.

Hence the sole right to issue any instrument which is used or intended to be used or advertised to be used as a “Legal Tender” is the sole right of the RBI.

If by calling Bitcoin as a “Currency”, the industry is mis-representing the public, the persons responsible can be punished under the RBI Act as well as IPC (For cheating).

The very name “Crypto Currency” indicates the nature of Bitcoin and other crypto currencies as meant to be  used as a “Currency” or a “Legal Tender” as an exchange of value. Hence it is not possible to consider a “Crypto Currency” as a “Crypto Asset not being a currency”.

Had the Crypto community maintained a consistent promotion since 2013 that “Bitcoin is a Crypto asset and not a currency” as was suggested by the undersigned, they would have been morally in a better state of mind today to defend that “Bitcoin” is a separate “Class of assets”. They chose to exploit the benefit of the tag as a “Currency” and hence have to face the liability arising therefrom.

Hence without a sovereign backing any instrument which can be directly or indirectly called a “Crypto Currency” is an offence under RBI Act 1934 with or without the new Bill.

Similarly, since Information Technology Act 2000 (ITA 2000) recognizes under Section 4 that

” Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference”

The digitally printed electronic document including a CINR is recognized as if it is a digital form of a Bank Note.

However, under Section 1(4) of ITA 2000, certain types of documents are exempt from ITA 2000 and such document includes

“A Negotiable Instrument (Other than a cheque) as defined in  Section 13 of the Negotiable Instruments Act 1881 (26 of 1881)”

According to Section 31 of the RBI Act

No person in India other than the Bank, or, as expressly authorized by this Act the Central Government shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for the payment of money payable to bearer on demand, or borrow, owe or take up any sum or sums of money on the bills, hundis or notes payable to bearer on demand of any such person: Provided that cheques or drafts, including hundis, payable to bearer on demand or otherwise may be drawn on a person’s account with a banker, shroff or agent. 

And

Notwithstanding anything contained in the Negotiable In­struments Act, 1881, (26 of 1881) no person in India other than the Bank or, as expressly authorised by this Act, the Central Government shall make or issue any promissory note expressed to be payable to the bearer of the instrument.”

In view of the above provisions, a digital currency is not recognized under ITA 2000.

However, if the notification of Schedule 2 of ITA 2000 can be suitably amended (notification has to be placed before the Parliament subsequently for approval), it is possible that para (1) of the Schedule 2 of ITA 2000 can be amended to include digital currency as a recognized instrument.

Once this amendment to the notification is carried out, RBI will be free to issue the “Digital Currency” in any form. Crypto INR will therefore be a “Digital Bank Note” within the powers of RBI to issue and manage.

The security features and the procedures for issue, regulation of certification and even demonetization is entirely within the powers of RBI without the new Bill.

Crypto INR Structure

CINR is an electronic document which recognizes a certain value say equivalent to Rupee one. It contains some material information such as that it is issued by RBI with a certain serial number.

This information can be encrypted and endorsed by a set of “Private RBI Nodes” each of which represent official authority to issue and keep a record. While the printed Bank note is signed by the RBI Governor, the Crypto Bank note can be digitally signed by the Governor and further confirmed as an issue transaction by a few of the officials from the Note Issue department.

The issue process can be built on this small private block chain. There is no need for a public block chain and a public mining activity.

The CINR is unlikely to assume the imaginary values like the Bitcoin since the supply may be unlimited and there is no hiding from tax entities. At best it may carry a premium of convenience.

The RBI will save on the cost of “Printing of Notes” and the difficulty of protecting fake currency of high quality from enemy countries.

There is also a possibility that the flow of CINR can be tracked on how the currency moves in its life time.

This could be a privacy issue but can be handled separately with anonymization.

Further, it should be possible for the CINR to be equipped with a de-monetization switch so that if and when it is necessary to demonetize the CINR, it could be done at the central server avoiding all the difficulties we encountered in the physical currency demonetization.

The last issue that we need to take note that the security of the system now moves from the Currency printing press to the Central server that hosts the CINR block chain. Since the block chain ledger has an inherent duplication and secured by the highest level of encryption and decentralized location, it should be possible to secure the CINR block chain effectively.

The New Bill

Though it would have been possible to introduce CINR with the use of RBI Act read along with ITA 2000 and a modified Schedule 2 of ITA 2000, the Government has chosen to pass a separate law. This will perhaps provide greater clarity to those who never  understood ITA 2000 in the last 21 years and were blind to many of its provisions. Also some of the procedures regarding security and management of CINR can now be part of this new Act and will have a statutory force like the provisions on Bank note procedures in the RBI Act.

(Comments are welcome)

Reference Articles
India Today

We need to ban Bitcoins. But do we need a Digital Rupee?.. Naavi.org, February 2, 2021

E Rupee is a re-invention of Naavi’s DVIIS…Naavi.org, August 11, 2021

Black Money Control…. ZeMo-INR as an instrument of implementation. January 20, 2014

Bitcoin is Digital Black Money…Why?… Naavi.org, June 15, 2018

Bitcoin Regulation…. What the Government needs to do… May 24, 2017

Open Letter to Madam Nirmala Sitharaman…. Say No to experimentation…. It will be misused…  March 6, 2021

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Modi is set to become a global hero as the war on Bitcoin about to end

One of the major wars that Mr Narendra Modi has been fighting is the war against corruption. The demonetization was one such effort which flushed out the enormous amount of fake currency that Pakistan had pumped in. However either due to the fact that the amount of fake currency in circulation was incredibly high or the Indian Banking system was so corrupt that black money was easily exchanged through compromised Bank staff particularly in the cooperative sector, the demonetization exercise was not considered a success it perhaps was. In a way it dented the enthusiasm of Mr Modi also in tackling the black money menace.

One of the reasons why the black money in India persisted was that though holding of black money in the form of Cash was curbed to some extent in the demonetization drive, the presence of “Crypto Currencies” like the “Bitcoin” made it easy for black wealth to shift from cash and Swiss Bank form to Bitcoins and other private crypto currencies. It can be surmised that this digital black money was used to sustain the farmers agitations from Canadian sources and other anti India NGO and political  activities.  Despite the clear writing on the wall that Bitcoins were being used to subvert the country, the Modi Government did not respond due to the fear of the consequences that followed the physical demonetization.

Naavi.org has been fighting a parallel war on Bitcoins through scores of articles urging the Government to ban Private Crypto Coins. The war has been waged since 2013. Initially when I addressed the Bitcoin forum in Bangalore in their first conference, I highlighted the legal status of Bitcoin as an electronic document and held its validity as an electronic document. But I was trying to convince the Indian Bitcoin community to agree for a regulation to prevent use of Bitcoin as an anonymous currency. But the Bitcoin foundation refused to make any changes in projecting Bitcoin as a “Currency” which was illegal per-se and its promotions went from strength to strength to spread the mis-information that “Absence of a bar on the use of Bitcoins” is a “Legal approval of the Bitcoin”. The exchange owners continued to advertise and attract gullible investors and also distributed free bitcoins to regulators and industry captains to ensure that any opposition was neutralized.

One of the most unfortunate developments in the history of Bitcoins in India is the way the Supreme Court gave a thrust to the Bitcoin exchanges by scrapping the RBI circular. The judgment would be considered as one of the most innovative judgements for the students of Jurisprudence on how a judgement can say….”RBI has the powers to ban trading of Bitcoins by its licensees but the circular in question is disproportionately harsh”. I urge all students of law to go through this unique judgement 

Modi Government when Mr Ravishankar Prasad was the Minister of Law and IT was so paranoid about the Supreme Court’s views on its functioning that the Supreme Court judgement froze both the RBI and the Government regarding any regulation of Bitcoins. This was taken note of by the industry and slowly the companies which had closed their offices in India and moved to Singapore started returning to India. The recent IPL in Dubai was used for intense advertising and Bitcoins proliferated like wild fire.

We had in the meantime pleaded, requested and even teased and criticized the inaction on the part of the Government  including Mrs Nirmala Sitharaman, Mr Amit Shah, Mr Narendra Modi. We had pointed out that if there is a major loss to investors, investors would only blame the Modi Government and not the fraudsters.

Logically it was pointed out that any form of regularization of Bitcoins would cause the legit economic system to collapse, inflation to raise and the Cyber Crimes to increase.

It must be admitted that finally, I had personally lost hope and concluded that the “Power of Corruption” was stronger than “Narendra Modi” and the Government has reconciled to accepting the presence of digital black money. Passing of the Bill banning Private Crypto Currencies would prove that I was wrong and I am happy to be proved wrong in this respect.

We must remember that banning Bitcoins and other crypto currencies will make cyber criminals to pass their crime proceeds through  Banks which will help us track the crimes better. This should therefore reduce the Cyber Crime incidents of financial nature in due course.

We also need to recognize that “Banning” is also “Regulation” and is well within the rights of the Government. I am sure that the Bill after its passage will be challenged in the Supreme Court once again.

I sincerely hope the Supreme Court does not strike down the law and become the torchbearer of digital black money in India.

Finally, credit should be given to an accused in Karnataka namely “Sriki” who was arrested on a charge of drug trafficking with the use of Bitcoins, went on reeling the names of  politicians of all parties and started stating that he had given a share to X, Y Z etc. They were not verifiable either as true or false. It was Sriki’s word against that of the politicians. The pressure ultimately reached the Chief Minister of Karnataka and could have cost BJP the Chief Minister. Even if an enquiry had been instituted and the CM resigned pending enquiry, it would have dented the image of  BJP . This finally woke up Mr Modi to shed his Manmohan like procrastination and make progress on the listing of the Bill in the next session.

I am sure that the corruption syndicate will not give up their fight and will now change their goal post asking for a new “Standing Committee” or JPC so that the passing of the bill can be postponed further.

Will Mr Modi and his Government walk the talk… and get the bill passed?.

Let us keep our fingers crossed and pray that wisdom dawns on the Government and gives it enough courage to take the “Banning of Crypto Currencies Bill” to its logical end.

I will rejoice only when the war is won and the surrender agreement is signed.

But for those who are pointing out that Bitcoin has been recognized by many other countries, I would like to point out that if Mr Modi takes the lead, he will become a hero in convincing the entire global community to ban Crypto currencies which are a serious threat to the legit currencies of the sovereign countries. This will provide economic leadership status to India and has to be pursued vigorously.

(PS: My apologies to many of my friends who have already invested in Bitcoins)

Naavi

Earlier articles: 

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Digital Lending-Working Group Report for public Comments

RBI has released the copy of the Working group report on Digital Lending for public comments.

The report is available here

Comments may be sent through email before December 31, 2021 to : digitallendingwg@rbi.org.in 

The committee was chaired by Mr Jayant Kumar Dash and comprised of M/s Ajay Kumar Choudhary, P Vasudevan, Vikram Mehta, Rahul Sasi and Manoranjan Mishra as members.

The gist of the recommendations are as follows:

The following are a gist of the key recommendations:

  1. Subjecting the Digital Lending Apps to a verification process by a nodal agency to be setup in consultation with stakeholders.
  2. Setting up of a Self-Regulatory Organisation (SRO) covering the participants in the digital lending ecosystem.
  3. A separate legislation to prevent illegal digital lending activities.
  4. Development of certain baseline technology standards and compliance with those standards as a pre-condition for offering digital lending solutions.
  5. Disbursement of loans directly into the bank accounts of borrowers; disbursement and servicing of loans only through bank accounts of the digital lenders.
  6. Data collection with prior and explicit consent of borrowers with verifiable audit trails.
  7. All data to be stored in servers located in India.
  8. Algorithmic features used in digital lending to be documented to ensure necessary transparency.
  9. Each digital lender to provide a key fact statement in a standardised format including the Annual Percentage Rate.
  10. Use of unsolicited commercial communications for digital loans to be governed by a Code of Conduct to be put in place by the proposed SRO.
  11. Maintenance of a ‘negative list’ of Lending Service Providers by the proposed SRO.
  12. Standardised code of conduct for recovery to be framed by the proposed SRO in consultation with RBI.

Naavi

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7 members of JPC submit dissent note on PDPB

An interesting phase in the history of data protection law in India has started with the presentation of the new version of PDPB2021 by the JPC to the Speaker. It will become public once the bill is formally presented. Until then we need to work on the comments  appearing in the press.

Some of the reports appearing in the press are here

1.JPC retains exemption clasue, adopts personal data bill: thehindu.com

2.Data Protection Bill: Panel calls for strict rules for firms, leeways for Government

3. Explained: The Joint Parliamentary Committee’s suggestion on Data Protection Bill

The report suggests that one of the members namely Mr Manish Tiwari has dissented the bill in its entirety and said that it is “Ultra vires the fundamental right to privacy as laid down by the 9 judge bench of the Supreme Court of India in Puttaswamy (2017) judgement”.

The TMC members Derek O’Brien and Mahua Moitra  have said that the Bill does not provide adequate safeguards to protect the  right to privacy and gives an overboard exemption to the Government under Clause 35″.

Another Congress member Mr Gaurav Gogoi said that the bill pays little attention to “harms arising from surveillance”

According to one of the reports,

  1. The proposed change  to delete the turn over based penalty structure appears to have been dropped.
  2. The data breach notification  would be required both for Personal and Non Personal data within 72 hours
  3. Companies need to ensure fairness of algorithm or method used for processing personal data
  4. The DPO needs to be from senior management
  5. Companies will need to mandatorily disclose to data principals if their information is passed to third party.
  6. If the Government agency has to pass on the information for the purposes of state use, there is no need for mandatory disclosure
  7. Government departments to carry out in-house inquiry to fix blame in case of breach instead of head of department being responsible
  8. Government should quality penalties for companies violating provisions of law.
  9. The law will be implemented in a phased manner over a period of 2 years.

It appears that the recommendation that Social media companies should mandatorily verify users to keep their status as intermediaries (Ed: i.e. to claim exemption from liability from Section 79 of ITA 2000), will be retained.

The JPC appears to have also indicated that copies of sensitive and critical personal data that has already been  with foreign entities and stored abroad has to be brought into India in a time bound manner.

The copy of the report and the dissent statements are already with select media houses. They are likely to be in public space after 29th November 2021 when the Bill will be formally tabled in the Parliament.

We look forward to the copy of the bill to understand the changes.

The big relief is that an important step towards the passing of the  Act has been taken. From the dissent  notes it is clear that once the bill is passed, there will be a challenge mounted in the Supreme Court and the battle will go on.

Naavi

Reference

Congress MP Jairam Ramesh submits dissent note-Indian Express

Congress MPs file Dissent notes over JPC Report-Wire.com

 

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