Naavi.org

(Continued from the previous article)

P.S: This series of articles is an attempt to place some issues before the Government of India which promises to bring a new Data Protection Law that is futuristic, comprehensive and Perfect. 

In the earlier articles in this series, we have discussed the requirements of the New Data Protection Act regarding the basic objectives, regulatory structure and the Chapterization all of which gives a framework of the desired legislation.

In this article we shall discuss some definitional aspects.

We are presently discussing the possibility of one Mega Act which will replace both ITA 2000 and PDPB 2019 though the Government may ultimately chose to keep the two laws separate. We shall go ahead with the concept of the “Unified Act” for the time being and if necessary it can be bifurcated later on the basis of the different chapters we may create.

The first important definition to be addressed is the “Definition of Privacy” which needs to be protected.

The second but most critical definition of the Act is the definition of “Data” since it is central to all our discussions. The definition has to be further expanded to “Sensitive personal data”, “Critical personal data”, “Neuro data”, “Non Personal-Corporate Data”, “Non Personal Sovereign Data”, “Non Personal Community data”, “Shared Personal Data” etc.

Definition of Privacy

The first definition of Privacy is the one which is required for protection of what Supreme Court has declared as the “Fundamental Right” under Article 21 of the Constitution.

We presently have some understanding of what kind of privacy is protected by data protection laws such as GDPR which is “Information Privacy”. The current definition of “Information Privacy” as used popularly is “Privacy 1.0” where as a need has come to look at two further levels of definition which can be defined as “Privacy 2.0” and “Privacy 3.0”. We may or may not use this software type definition 1.0, 2.0 and 3.0 but we may have to find other names that can be used in the Act. But let us first try to understand the differentiation that can be brought between these three types of Privacy.

Privacy 1.0 means the fundamental right guaranteed under the Indian Constitution under Article 21 as part of the “Right to Life”. We had earlier discussed this subject in our article “The Privacy Judgement… Conclusion.. Need for Definition of Privacy“.  We know that the Puttaswamy judgement did not include the definition of “Privacy” in its final order though it was discussed by the judges in their individual descriptive “Orbiter dicta”.

Privacy can be discussed as “Physical Privacy”, “Mental Privacy”, “Neuro Privacy” and “Information/Data Privacy”.

The requirement of the NDPAI can be served by defining “Privacy” as “Information Privacy” only and proceeding to discuss how “Autonomy and Freedom of Choice” can be imparted to an individual in directing others about how his personal information may be collected, processed and disposed.

We must appreciate that “Right of Privacy” is the “Right of Choice” of an individual to determine how he prefers to share his personal data with others. The difficulty is however capturing the “Right of Choice”  and also managing the changes in the “Choice” of a person over time and managing the difference in the “Choices” of one individual and the other.

Let us therefore determine the first definition of Privacy  as follows:

Privacy:

“Privacy is a fundamental right under the Constitution of India as an independent right under the Right to life and liberty that guarantees an individual that shall not be infringed except under due process of law as defined in this Act and  includes the following.

(a) “Physical Privacy” means the choice of an individual to determine to what extent the individual may chose to share his physical space with others.

(b) “Mental Privacy” means the choice of an individual to determine to what extent the individual may chose to share his mind space with others

(c) “Neuro Privacy” means the choice of an individual to determine to what extent the individual may share his neuro space with others

(d) “Information Privacy” means the expression in electronic form of the choice of an individual to determine to what extent the individual may share data about the individual with others.

Explanation:

“Sharing” in the context above means “making the information available to another human being in such form that it can be experienced by the receiver through any of the senses of seeing, hearing, touching, smelling or tasting of a human in such a manner that the identity  of the individual to whom the data belongs may become recognizable to the receiver with ordinary efforts”.

P.S: In the above definition, infringement of privacy is recognized only when the personal data becomes accessible by another human being. If the personal data is accessible only by a device and not by any human being, the data is not considered as “Shared”. When “Data” is processed by an algorithm without being accessed by any human being, if any human cannot access identified personal data by any reasonable efforts (similar to anonymisation), it is not considered as “infringement”.

This definition which recognizes visibility to humans only as infringement is the concept of Privacy 2.0. The inclusion of neuro privacy is the concept of Privacy 3.0. Both these are included in the above definition. Privacy 1.0 is the current definition used in GDPR where visibility of personal data by a device is also considered as potential data disclosure. Of

We shall discuss the definition of “Data” in the following article. In the meantime, I invite comments on the above.

Naavi

P.S: These discussions are presently for a debate and is a work in progress awaiting more inputs for further refinement. It is understood that the Government may already have a draft and may completely ignore all these recommendations. However, it is considered that these suggestions will assist in the development of “Jurisprudence” in the field of Data Governance in India and hence these discussions will continue until the Government releases its own version for further debate. Other professionals who are interested in participating in this exercise and particularly the Research and Academic organizations are invited to participate. Since this exercise is too complex to institutionalize, it is being presented at this stage as only the thoughts of Naavi.  Views expressed here may be considered as personal views of Naavi and not that of FDPPI or any other organization that Naavi may be associated with.

Next article

Naavi

(Continued from the previous article)

P.S: This series of articles is an attempt to place some issues before the Government of India which promises to bring a new Data Protection Law that is futuristic, comprehensive and Perfect. 

Naavi.org had been advising the the Privacy Activists who were opposing the PDPB 2019 that  it would be wise to accept the version of the Bill that the Government is ready to accept and later on work for improvements through amendments. We know that CCPA went through such immediate amendment and a similar approach could have been taken in India also with the experience of a simple legislation for an year or two. Unfortunately, the Privacy Activists conspired with the Tech companies and mounted an unreasonably harsh and false propaganda against the Bill which was not feasible for the Government to accept. It must be remembered that Government would have been the worst affected if the law had been passed as it was designed earlier since there would have been many cases that would have been mounted on the Government for personal data breach under various schemes just as the Arogya Setu app was once targeted. The attention of the Government would have been drawn to defending the cases including the charge that the law was ultra-vires the constitution and should be scrapped. The Supreme Court would have looked at the complaint seriously and would have made the life of the Government miserable.

Now, by withdrawing the Bill the Privacy Activists have lost and the Government has cleverly gained an edge. The Government now has some understanding of the agenda of the Privacy activists cum Andolan Jeevies and can plan the next version better.

I am reminded of a cricket scene where the intelligent bowler stops before delivering the ball to know what is the mindset of the batsmen, whether he would come forward, move to the off side, or move to the leg side, try a reverse sweep etc., and plans his next delivery. Similarly, the Government now has some idea of the vulnerable areas of the legislation where it will be attacked by the Privacy Activists Cum Andolan Jeevies and plan the next version accordingly.

The discussion on the Shape of things to come will factor in such possibilities since we need to facilitate a legislation in a balanced approach rather than hoping that we will find a “Perfect Legislation” that will be acceptable to all. Even if the Government presents a diamond, the andolan jeevies in India are in such a mindset that they will call it only “Compressed Carbon” and will not accept its value.

We can refer to the article in Indian Express titled ” Govt withdraws data protection bill to bring revamped, refreshed regualtion” dated August 4, 2022 to respond to some of the objections raised in support of the withdrawal and how they can be addressed in the next version.

The first concern to be addressed is for the Bill to be in line with the Supreme COurt judgement of 2017 particularly since Justice D N Chandrachud would be the CJI in the next term when the new version may be challenged in the Supreme Court.

The second concern is the “Certification of hardware” against malware recommended by the JPC.

Third concern is the Local Data Storage requirements which has been the main objection of the Tech industry.

In a similar article on August 6th  the data export restrictions were again cited as the main objection of the tech companies. In this article the possibilities of “Trusted Geographies” being identified was indicated. This is nothing different from the “Adequacy” status of the GDPR unless the Government comes up with some innovative way of establishing a “Data Union”, a concept which  we shall explore in greater detail. This was part of our recommendations to the JPC and will be elaborated later.

Another point of discussion is to drop the criteria of sensitivity for cross border data transfer and retain it only for penalties.

We need to discuss each of these points in greater detail and let us start with the first aspect which  is how to ensure that the legislation is in tune with the Supreme Court judgement.

One of the comments of the Aadhaar judgement that we should take note of is as follows:

“…it is held that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21”

This is relevant for the definition of the Right to Privacy that needs to be protected and also for the definition of “Personal Information”. In particular, whether “Meta Data” is data about a “Person” is a point of debate.

The first point to be addressed is

“Whether this law should also be the basic “Right to Privacy Protection Act” or restrict itself to “Protection of Personal Data in Electronic form Act”.

Right to Privacy as is understood is “Right to be let alone”. In the Kharak Singh case, it was discussed in the context of “Home as a castle” where “Physical Privacy” is recognized as a “Right”.

In the context of digitization of personal data, the “right to be left alone” can be disturbed by an SMS message or a WhatsApp message or an e-mail from the Internet space. Just as a person sitting at home may feel his privacy disturbed by the loud speaker in the neighbourhood blaring Aazaan, a person sitting quietly at home may feel his privacy disturbed by the messages on the mobile. Unlike the “Aazaan” issue, the “Message issue” is completely in the electronic domain and hence can be addressed through a “Data Protection Law” without the need to protect privacy in the non-electronic space.

“Non Electronic Space” is not limited to the paper world but also extends to the “Oral speech” as explained in the Aazaan example.

Infringement of Privacy through speech or paper documents is different from the infringement through electronic means.

It would be preferable that the Data Protection Law restricts itself to the Data Space and does not attempt to become a “Privacy Act” by itself. In other words it can be a  “Information Privacy Protection Act” only and not a “Privacy Protection Act”.

Also, “Privacy” as a mental state of an individual cannot be captured by a Data Fiduciary except as expressed by the individual himself. Hence the dependency on “Consent” for processing of “Personal Data” is critical and cannot be over ridden by an in-determinable responsibility of the data fiduciary to understand what is in the mind of the data principal and design his data protection measures accordingly. This could be an unreasonable expectation that may be beyond the prescription of law.

This thought makes a significant change to the approach of the law as it means that the concept of “Data Fiduciary” should be pushed back to that of a “Personal Data Manager” which is closer to the concept of “Data Controller” in GDPR. Dropping the “Fiduciary” duty of the Data Controller will weaken the “Protection of Privacy” but it would be more transparent to drop what cannot be legislated just to appear the law to be like an election manifesto of promises that cannot be kept.

Hence the scope of the Act should be limited to “Protection of Personal Information in Electronic Form” and nothing else. It should leave out the personal data in paper form or personal data infringement in oral form both of which should be in the domain of the IPC or a different “Right to Privacy Protection Act”.

Alternatively, the envisaged law could be divided into “Chapters” and one chapter may apply to “Protection of Right to Privacy in Non-Digital Space” and the other on “Protection of Right to Privacy in Digital Space”.  Other chapters (if one comprehensive law is to be framed) will include the “Security of personal and non personal data”, “Governance of personal data” and “Governance of Non personal data”.

The chapter on “Governance of Non Personal data” will include the recommendations of the Kris Gopalakrishna committee. Chapter on “Governance of Personal Data” will include the “Personal data collection, processing and disposal requirements as well as the special rights of data principals, the minor’s data etc”. It will also include the cross border restrictions.

Essentially the part of current data protection law with respect to “Security”, “Code of Practice” and  “Compliance” can be added in the chapter on “Security of Personal and Non Personal Data”. This chapter will also include information security aspects included in ITA 2000 such as the digital signatures, the CERT IN powers, the ITA 2000 compliance requirements etc. (These have been included in our Data Protection Compliance Standard of India already as a compliance requirement).

The telegraph act to the extent of “Digitized communication” automatically falls under the “information security” area and if parts of the Telecom Governance is to be bundled then it should appear in the “Governance of Non Personal data Chapter”.

The Crypto currency regulations are regulations related to Electronic document and can be covered under the Chapter on “Data Valuation and Monetization” which could be a separate chapter that can be referenced both by the Governance of Personal Data and Governance of Non Personal Data.

Along with these Chapters, a “Chapter on Preliminary” issues would be required where the definitions, scope etc could be added. This is also an  opportunity to extend this “Information Privacy Protection Law” to cover the “Neuro Rights” so that India leaps ahead of other countries in recognizing the need for “Neuro Rights Protection” as an extended concept of “Privacy Protection through protection of the individual choice including protection of manipulation of the individual choice”.

With these discussions, we are arriving at a “Chapterisation” of the New Data Protection Act at the top level leaving sub chapters for further focussed provisions.

The mapping of the chapters therefore looks as under.

Chapter I:

Preliminary (includes basic definitions, applicability related definitions, the Chapter structure, repealing of other laws, segregation of personal data, non personal data, Sovereign  Data, Corporate data, community data, Joint data, Transaction data, Neuro data etc,  limitations of application to non digital data   etc)

Chapter II:

Privacy Protection in Non Digital Data Environment

Chapter III:

Governance Framework for Personal Data

Chapter IV:

Governance framework for Non Personal Data

Chapter V:

Protection Framework for Personal Data

Chapter VI:

Protection Framework for Non Personal Data

Chapter VII:

Data Valuation Framework

Chapter VIII:

Residual Miscellaneous aspects if any

P.S: These discussions are presently for a debate and is a work in progress awaiting more inputs for further refinement. It is understood that the Government may already have a draft and may completely ignore all these recommendations. However, it is considered that these suggestions will assist in the development of “Jurisprudence” in the field of Data Governance in India and hence these discussions will continue until the Government releases its own version for further debate. Other professionals who are interested in participating in this exercise and particularly the Research and Academic organizations are invited to participate. Since this exercise is too complex to institutionalize, it is being presented at this stage as only the thoughts of Naavi.  Views expressed here may be considered as personal views of Naavi and not that of FDPPI or any other organization that Naavi may be associated with.

Next article

Naavi

PayU is a significant player in the online payment settlement system in India. It was one of the earliest payment gateways and took over significant market share from CCAVENUE. However, of late some thing has happened to this Company.  It is not responding to customer queries the way a payment gateway should do.

Last time when I observed a similar development in an online web service company, it was NEt4India and eventually it went  bankrupt sinking the money of lakhs of its customers.

The regulators of India namely CERT IN and RBI could not identify the problem of Net4India and the National Company Law Tribunal did not understand the business of Net4India and allowed it to be liquidated without valuing its digital assets of over Rs 100 crores. (check for articles on this topic on naavi.org)

Now I am afraid that similar  problem may be in the making  in PayU.

I am giving below a series of twitter messages exchanged with PayUCare regarding a complaint of payments withheld by the company. It could be for renewal of KYC in the beginning but if it was only that simple, it should have been resolved by now.

Unfortunately the correspondence indicates that there is no follow up on the complaint and the internal systems must have failed and one department is not able to communicate to other.

There is also no other communication channel between the customer and the company where responses may be expected.

It is clear that the Twitter complaints are being responded to by a bot which is supposed to be driven by AI but it is an AI with no intelligence.

In this context it is only Twitter PayUCare which is atleast returning some acknowledgements. Otherwise there is no e-mail or phone on which the company can be contacted.  There is a so called “relationship manager” on e-mail who simply forwards the mail to his “team”.

A typical response from the relationship manager is captured below.

I leave it to the technology specialists to defend these types of Bots which are more an irritant and instruments of diversion of customer complaints than instruments of resolution of grievances. I am not sure if  even the e-mail is bot generated.

But, I want to highlight the failure of CERT-IN and RBI in maintaining a trustworthy regulatory framework for payments.

Under ITA 2000/8 it is mandatory for PayU to have a grievance redressal system and publish the name of the  grievance redressal officer along with his contact details.

This is a requirement under section 79 of ITA 2000. We expect CERT IN to raise this issue with Pay U. (My complaint  with CERT IN has already been made).

Further Reserve Bank of India also has a responsibility to ensure that all these Fintech Intermediaries follow certain basic principles of customer care including providing a proper contact point.

Normally these disputes are supposed to be resolved privately but I am placing this for open debate  because the company has not left any option to contact them, escalate the grievance to a higher level. Even the regulators are not alert to their responsibilities and I am sure that RBI is considering more licenses to PayU for expanding its footprint in the Indian FINTECH industry.

Let me see if this post opens the eyes of the company and the regulators. I hope my speculation that like Net4India, PayU is on a path to withdraw from Indian business does not turn out to be true.

Naavi

At last, on16th August 2022, the pending payment was received.

Naavi

Naavi.org has published scores of articles since 2013, explaining every negative aspect of Bitcoin and Crypto currencies and why it has to be banned. We have requested, urged, nudged and criticised every body in the Government including late Arun Jaitely, Nirmala Sitharaman, Amit Shah, Narendra Modi etc, besides the bureaucrats and even the Supreme Court for having not taken steps to ban Crypto currencies in the country. We have even chided and teased media including Arnab Goswami for ignoring this issue.

The lowest point in this battle was when the Supreme Court came up with what was termed as a “Strange” or “Fraudulent” judgement supporting Crypto  and striking down an RBI circular.

Finally we had resigned to the fate that “Corruption” has won over even Narendra Modi. It even appeared that the Ministry of Finance and Ministry of IT are coming together to promote Bitcoin when the JPC on Personal Data Protection Bill came up with a recommendation from no where that SWIFT should be replaced by Ripple .

Check out for different articles on Bitcoin in this site in this link

https://www.naavi.org/wp/?s=bitcoin

https://www.naavi.org/wp/?s=crypto

Just when everything appeared lost, Enforcement Directorate has come to the rescue of the country and suddenly there appears to be a realization in the Government of Modi and Nirmala Sitharaman that Crypto Currency is the “Currency of Criminals” and an instrument of money laundering.

Even Mr Arnab Goswami has taken note of the “Money laundering” in WazirX and has taken interest in speaking about the “Crypto Scam”.

Thanks to Enforcement Directorate which is investigating the Rs 1000 crore money laundering in the Chinese loan app fraud, now the media (at least Republic) has started saying “Crypto is a Scam”.

Now it will be increasingly difficult for Nirmala Sitharaman to continue her support to Crypto and find excuses.

Crypto Currencies are an epitome of all that is evil in the Digital World. It is the sustaining force for the “Dark Web”, the Cyber Crime funding and terror funding. It is the currency which all corrupt politicians have thrived on to accumulate their black wealth.

The FaceBook (Meta) with its crypto currency “Libra” and the emerging NFTs pose further challenges to the financial markets and we cannot still be confident that the Government will come up with a complete ban on Crypto currencies which is the need of the hour.

It appears that Arnab Goswami has become the last frontier to cross for Crypto Currencies which has even tamed Narendra Modi.

We need to keep our fingers crossed whether ED and Arnab together will succeed where Modi has failed and be able to defeat the Crypto Currencies or will be over powered by the power of global corruption and crime.

Naavi

In a significant move that has indirect relation to a discussion on “Privacy”, Government of India (Central Board of Indirect Taxes and Customs-CBIC), on 8th August 2022, Ministry of Finance notification no: GSR 621(E), has notified “Passenger’s Name Record Information Regulations 2022”

The salient points of the Regulations are as under:

• The Regulations require the operator of Aircrafts (i.e airlines) to transmit specified information electronically to the designated Customs System. Passengers are not required to individually submit any information to Customs, neither do they need to furnish any additional information to the Airlines on account of these regulations. Airlines are already collecting this information under the aegis of the Chicago Convention on International Civil Aviation.
• The data exchange between the Airlines and the Customs Systems is through the PNRGOV EDIFACT message format. This is a standard electronic message format endorsed jointly by the World Customs Organisation (WCO), International Civil Aviation Organisation (ICAO) and the International Air Transport Association (IATA) and is widely used internationally.
• Although some data elements included in the Regulations are available from other sources, the objective of these regulations is to obtain this data in advance of departure or arrival of the passengers for analytics by the Customs Risk Management System.
• The information collected is subject to strict information privacy and data protection and there are adequate legal and administrative safeguards built in. Processing of the information to reveal ethnicity, race, religious or philosophical beliefs, health etc. is strictly prohibited. Hardware and software necessary for data protection has already been envisaged. The information received is used for further processing only by a senior officer of the rank of Principal Additional Director General/Additional Director General.
• In normal course, the data collected is stored only for five years after which it is disposed of by depersonalisation or anonymisation. The Regulations provide for an extensive and independent system audit and security audit to prevent misuse of the information.

These regulations are meant to enhance detection, interdiction and investigative capabilities of Customs Authorities using non-intrusive techniques for combating offences related to smuggling of contraband such as narcotics, psychotropic substances, gold, arms & ammunition etc. that directly impact national security. This mechanism is being widely used by border management agencies of approximately 60 different countries.

This should help prevent the flight of criminals both of financial crimes and terror acts and hence is part of the National Security obligations.

In the context of the NPDAI the New Data Protection Act, this reflects an exception to be recognized under the National Security obligations. In our draft being built in the series of articles under the series “Shape of Things to Come-NPDAI x” we have provided the “National Security” as a duty of the Government under the Preamble and this notification goes with it.

Naavi