Naavi.org

FDPPI, which is often referred to as the “Dada of Data Protection” in India has been publishing a quarterly journal (presently in e-form) in the name of “Data Protection Journal of India”.

The journal started in January 2021 has now seen six editions and they are available at www.dpji.in.

While we are partially proud of the achievement, we are fully aware that we have miles to go in terms of making DPJI more useful and better looking.

I request professionals and Students from educational institutions to contribute articles to DPJI.

Presently Mr M G Kodandaraman is in charge of the DPJI content management.  Those of you who would like to contribute articles to DPJI.

The next DPJI issue is scheduled for July 2022. In the forthcoming issues,  we want to  add one section exclusively on “Technology”  where we want to discuss issues of technology relevant to Privacy Professionals.

I invite all professionals  to contribute articles of relevance to the DPJI.

Additionally, if any body has a proposal to speak at FDPPI’s weekly web meetings, they are welcome to send their requests.

The requests may be sent by email to fdppi and it will be directed to the relevant persons for further follow up.

Let us make DPJI the “Voice of Data Protection Professionals in India”.

Naavi

One of the interesting and at the same time informative criticisms about the new CERT-IN guidelines came from medianama.com.

In multiple articles under the by lane of Mr Sarvesh Methi, the website has argued

1. India’s Cyber Security Directive goes against security, Tech companies argue
2. Why India should not (yet) mandate companies to adopt a specific time source
3. VPN Providers call India’s new rules worse than China, Russia
4. Why India’s New Cyber Security Directive is a bad joke

Yesterday’s Economic Times has followed through with its own in the article titled “Tech companies have a few queries on CERT-In s cyber security rules”.

It is also reported that the Information Technology Industry Council (ITI) has sent a letter to the Direcor General of IN-CERT, Dr Sajay Bahl asking for a pushback.

Further, today’s ET report “UnCERT-IN times for VPN Services Providers in India” has openly expressed that some service providers are refusing to follow the CERT-IN guidelines and face the bulldozer if need be.

The same report also states that the VPN user base is surging over the past two years and the  number users in India increased from a mere 3.28% in 2020 to 20% of the population according to an adoption tracker maintained by AtlasVPN. The total user base is estimated at 270 million according to another estimae.

Some service providers like Surfshark and NordVPN have stated that they are unlikely to be able to adhere to the directive. Some of these service providers indicate that they do not even have the means to collect the user information and keep it for 5 years as required under the guidelines. Some of them say that they are only working on the RAM based service and pride themselves on “No Log Retention” as their USP.

More than the other measures indicated in the new guidelines such as “Synchronization of Clocks”,”  Data breach Report within 6 hours”, the VPN log requirement seems to have shaken up the industry more since it directly affects the illegal activities such as the Crypto transactions, anti national activities, Phishing activities, ransomware attacks, Crime as a Service operators and virtually all Dark web activities.

Over the last few years, the Internet based attacks on the country through social media fake accounts and the operations of the Crypto Currencies to fund terrorism in the country has adversely affected the law enforcement in India. Operators like “Proton Mail” have made it virtually impossible to trace phishing e-mails and website hosts and email providers hide under  “Privacy” and refuse to part with the identity of criminals who use their services.

We have pointed out many times that the fundamental personal right of “Privacy” has no role in hiding criminal activities and any service provider who resorts to such excuse will be an “Abettor” of crime and must be punished as a facilitator of crime.

Naavi.org has at the same time advocated that “Regulated Anonymity” is the recommended system where the users can claim anonymity subject to the rights of the law enforcement to claim the information under a due process from the service provider who provides the anonymization service. This is an alternative to blocking the service which supports crime against people of India.

The entire campaign against the guidelines therefore is having the motive to keep Cyber Crimes remain undetected and hence has to be opposed.

Technical Excuses

Since some journalists still hold a fig leaf to cover their nefarious intentions of supporting Cyber crimes, several technical excuses are presented  to confuse the public.

It is accepted that the new regulations require some tweaking of the systems and involve cost. But the law enforcement cannot dilute the security to make “Crime as a service” more profitable. Hence the arguments on the basis of cost deserve to be brushed aside with the contempt it deserves.

The argument of “Latency”  and need to connect to the nearby time source instead of the NIC/NPL  “Nearness to the time source” apply to the data centers which are not in India. Guideline also permits use of accurate and standard time source other than NPL and NIC in case of entities having ICT infrasructure spanning multiple geographies.

India however prefers a copy of all sensitive data to be kept within India and hence servers need to be in India. Whether the present capacity in India is adequate or not is a matter that needs to be sorted out for which six month time has been provided even now.

(PS: Naavi has  pointed out that this law has been in existence since at least 27th October 2009 and Naavi.org has pointed out several times the need to enforce the same which the CERT IN and Government of India has failed to do so far).

Media Nama article points  out that one researcher indicates that

“There could be privacy concerns. Depending upon whether you want the government of India to know that you have a server with so and so IP”.

In case the service provider is so apprehensive and distrustful of the Indian Government that if their time server connects to an Indian server, the Government may know the IP address of the server, they need to stop doing business in India and exit. CERT IN has a mandate for Cyber Security and if any company is operating a server in India or transacting with the Indian population, it is the duty of the security agency to know the server. These objection itself can be called a  bigger joke and not the regulations.

As regards the 6 hour reporting time, these crime supporters are misleading the public. We all know that companies take on an average 270 days to detect a data breach. But what the guidelines is asking is that after the company comes to know of the breach report within 6 hours with whatever information is available and supplement it later.

Critics should note that most of the laws in US and elsewhere may state that the data breach should be reported “As soon as possible” and ASAP could mean even earlier than 6 hours.

We know that the company would like to hide the incident “as long as possible” for preventing reputation damage but hiding it longer may only expose more individuals to the adverse consequences of the breach.

It is however open to the companies to discuss with CERT IN on how do they classify “Cyber Incidents” and “Cyber Data Breaches” and what needs to be reported within 6 hours and what is to be logged for future reference.

According to the CERT In rules of 2014 

“Cyber Security Incident” means any real or suspected adverse event in relation to cyber security that violates as explicitly or implicitly applicable security policy resulting in unauthorised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorization”

“Cyber Security breaches” means unauthorized acquisition or unauthorised use by a peon as well as an entity of data or information that compromises the confidentiality, integrity or availability of information maintained in a computer resource”.

These definitions provide an opportunity to distinguish actual security compromises which needs to be reported within 6 hours and the targeted scanning information detected and blocked by the security systems. Hence the objections raised in this regard are imaginary.

As regards the volume of log records, Medianama article quotes that a company may generate 1TB of data every day and how can they share the log records in PDF format etc.  If a company has the business to generate 1TB of data per day, it would definitely have the resources to store the 1TB data for 180 days if they can invest in storage facilities. These need not be passed on to CERT IN immediately and held in whatever form it is convenient for the organization under their custody. Only when any specific information is called for by CERT IN, they need to extract the records and provide it with a Section 65B certificate in a form which can be in a digitally signed soft copy format also. During investigations, it is expected that the investigators would not make a request such as “All Logs for last five years”. At best they may ask specific device log records for about 15 days to one month. If this is required for security reasons, all of us including the tech companies need to cooperate with a sense of social responsibility rather than complaining.

Media name article also gives an excuse that there could be GDPR violation. It is not worth commenting on this since every data protection law has an exception for law enforcement purpose and GDPR cannot lord over Indian sovereignty. Further, if an organization is collecting data from India and storing it in India, it is subject to Indian DPA 2021 and not GDPR. GDPR applies to data collected from EU and companies are welcome to store it abroad.

In fact if the companies prefer to store their GDPR data in India, DPA 2021 provides an exception under Section 37 (DPA 2021/PDPB2019) to seek exemption of DPA 2021 by a notification. This could prevent any unintended GDPR violation. However if GDPR data is being used for committing crimes which are under investigation in India, no protection should be claimed.

One expert has quoted as stating that the exercising of powers by CERT IN could be considered as a “Warrantless Search”. It is a point to be noted but CERT IN is one of the entities which has been statutorily empowered under Section 70B of ITA 2000/8 and as long as the due process is followed and the information gathered is further protected appropriately, there should be no concern. If there are any Indian Courts will consider.

Afterall we know that the Supreme Court is always responsive to senior advocates and would even meet in the mid night if the situation warrants. Indian Supreme Court may perhaps be considered far more independent than Courts at least in USA and is always ready to accept any challenge of a law or even a departmental circular or even a tender notification as long as some key words such as “Privacy”, “Freedom of Speech”, “Constitutional Rights” are used in the petition.

The Supreme Court will not even insist on the case travelling through the lower courts and will accept a writ petition directly so that any company receiving a notice from CERT IN can approach the  Supreme Court immediately within the Six hour dead line. Some would say 24 hours would be a better time interval for negotiating with the advocates but considering the possibility of “Midnight  hearings ” and “Telephone Stays” that are possible in India, influential companies can perhaps manage the six hour deadline  and obtain stays on CERT IN orders.

While we hold our view that “Security” is paramount and “Right to be secured” is as much a fundamental right as other rights, we hope that the Government will be able to hold its fort against the objections from the tech companies and the media. We will not be surprised if CERT IN and MeitY develops a cold feet and this guideline will be shelved like many similar guidelines.

Naavi

(Comments welcome)

Reference Articles:

Global tech industry body seeks revision in India’s directive on cyber security breaches

Tech companies have a few queries on CERT-In’s cybersecurity rules

India Limits Internet Freedom Again; Mandates User Data Collection For VPNs-INC42

5 issues with the recent Cert-In directions and what they mea… Mnoney Control

Why India’s New Cybersecurity Directive Is A Bad Joke… Medianama.com

Reference Circulars

CERT In Rules dated 16th January 2014

Notification of 4th January 2017

Notification of April 28, 2022

Earlier Articles at Naavi.org

CERT-In Re-issues its order of 4th January 2017

Shadow DPAI required for CERT-IN

Raising objections to Government Actions has become a habit for Tech Companies

Whenever an important action is undertaken by the Government, a part of the industry and the media is always objecting. It appears as if these companies are so used to operating without regulations in India that even a small guideline makes them feel that there is a great injustice committed.

Unfortunately, our judicial system is so sympathetic to anti-Government petitions that at the drop of the hat, a stay would be granted. Hence the Government has been rendered impotent in taking any firm decision related to IT.

For example, on October 17, 2000, India notified ITA 2000. This had a section 70 where the Government was empowered to declare any computer system as a “Protected System” and impose special penalties for contravening the provisions of the guidelines under this section. Under this section the Central Government had the power to notify any system as a “Protected System” and notify how they could be accessed, who would access etc.

On 19th January 2004, the Ministry of IT set up a division within its office and called it as “CERT-IN” to monitor the implementation of the security aspects in Government networks.

From October 27, 2009, the amended ITA 2000 became effective as per the amendments of 2008. This introduced modifications to Section 70 and also introduced two new sections namely Section 70A and Section 70B.

Under Section 70, the systems to be protected were designated as “Critical Information Infrastructure” which was defined as ” the computer resource, the incapacitation or destruction of which , shall have debilitating impact on national security, economy, public health or safety”. It was a definition that could include both Government and Private Systems.

According to Section 70A, a provision was made to recognize a “Nodal Agency”  which was responsible for all measures of security including “Research” related to the protection of Critical Information Infrastructure.

According to Section 70B, the Computer Emergency Response Team (IN-CERT) was designated as the National Nodal Agency and vested the quasi judicial powers envisaged under ITA 2000/8.

Under Section 70B(4), it was prescribed that :

The Indian Computer Emergency Response Team shall serve as the national agency for performing the following functions in the area of Cyber Security,-

(a) collection, analysis and dissemination of information on cyber incidents

(b) forecast and alerts of cyber security incidents

(c) emergency measures for handling cyber security incidents

(d) Coordination of cyber incidents response activities

(e) issue guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, prevention, response and reporting of cyber incidents

(f) such other functions relating to cyber security as may be prescribed

It was clear that with this change in ITA 2000, it became a duty of the CERT IN which was only a department of MeitY to be responsible for national cyber security. The person in charge was also re-designated as “Director General” and he had the power to prosecute any service provider or intermediaries, data centers,  body corporate or any person who does not comply with his direction with a possible punishment of an imprisonment of 1 year and fine of Rs one lakh.

Though this power and responsibility came into existence from 27th October 2009, the CERT IN never assumed the changed role of IN-CERT and did not seriously grow out of its earlier departmental status.

On 16th January 2014, Government notified the “Information Technology (The Indian Computer Emergency Response Team and manner of Performing functions and duties) Rules 2013.

The rules prescribed  that any non compliance of directions shall be put up to a review committee consisting of the Secretary of MeitY, Joint Secretary, Ministry of Law and Justice, Officer of DOT, Joint Secretary of Ministry of Home and the Group Coordinator for Cyber Law in Meity, for necessary action.

It is not clear whether this committee has met in the past and whether  the powers envisaged under this notification has been properly exercised.

However, it is necessary for us to recognize that this data breach reporting requirement existed in law since 27th October 2009 with procedures available since 16th January 2014.

The industry which is today raising objections on the regulations notified on 28th April 2022 has not been aware of the developments of 2008 amendments of ITA 2000 or the rules notified in October 2009 or 2014. Further on 4th January 2017, a notification was again issued regarding the data breach notification where it was mandated that the Cyber Security incident reports have to be notified within a reasonable time.

Now the Government has again come up with a notification about the same mandatory requirements giving a further 6 months for implementation as if even the Government does not recognize that it has been its duty to collect the Cyber Security breach incident reports since 27th October 2009 and it has already issued many notifications for the same purpose.

The media is now raising excuses why the notification is difficult to implement. The website INC42.com which is known for its anti-Modi stand says that “India has limited Internet freedom again”.

The US-based technology industry body ITI, having global tech firms such as Google, Facebook, IBM and Cisco as its members, has sought a revision in the Indian government’s directive on reporting of cyber security breach incidents as if they are running the Indian Government and India cannot pass any law which is not acceptable to these Tech Companies.

Some of the Indian Companies who are ignorant of the ITA 2000 and the fact that this regulation has been in existence for 12 years without being implemented are raising their own objections such as “Increased Cost”, “Technical Difficulties” etc.

We would like to directly respond to some of the questions raised in some of the articles that have appeared in Economic Times and Indian Express in this regard and try to clarify the position.

Concern 1: ITI:  According to ITI Country manager Kumar Deep, Incident reporting is counter productive and may negatively impact Indian and Global enterprises and undermine cyber Security.

It appears that ITI considers data breach notification is detrimental to the interest of the country where as hiding the incidents is acceptable. Does ITI hold the same view regarding the data breach notification requirements in each of the states of US as well as laws such as CCPA, GDPR etc? If reporting under those laws are not detrimental to the interests of USA, how does the data breach notification to the Indian Government authority alone is detrimental to the interest of India?

Concern 2: ITI: ITI has raised concerns over the mandatory reporting of breach incidents within six hours of noticing, to enable logs of all ICT systems and maintain them within Indian jurisdiction for 180 days, the overbroad definition of reportable incidents and the requirement that companies connect to the servers of Indian government entities.

It is noted that the objection is incorrect to the extent that companies need not connect to the servers of Indian Government Entities. What has been prescribed is only to ensure that the time servers are synchronized.

Reporting the incident within 6 hours is only after the organization comes to know of the incident and does not cover the inefficiency of the companies which surveys state take more than 9 months to detect a breach.

Keeping log records is a routine activity which  may only require more domestic storage facilities and does not create any other issue. It is not necessary that these have to be shared with the Government on an ongoing basis. Only when an appropriate Government agency demands the information for any investigation, the information has to be shared. This is a law enforcement requirement which these Tech Companies are trying to avoid.

ITI should realize that the Tech Companies need to work within the laws of our country and cannot be considered as tools of terrorists and anti India elements.

Concern 3: INC 42: INC 42 suggests that VPNs should not be asked to keep the records of their subscribers and make it available to the Government if required. It has also objected to the extension of this requirement to Crypto Exchanges.

It is to be noted that the directives donot require the VPN hosting companies to share the content transmitted but only who is using their services. Allowing anonymous VPN services is the “Dark Web” operations of the Cyber Criminals and it cannot be supported by any law abiding country.

Concern 4: Money Control: According to the views from some experts, Money Control reports that the log retention capacity has to be newly created and hence would add to the cost. It also says that whether the companies are equipped to report such cases within six hours is questionable. Some experts have also raised the issue if they have to report every phishing mail received or attempted targeted scanning etc.

It is to be noted that reporting within 6 hours does not mean that the report should be complete with investigation, root cause analysis etc. What is required is the report that a data breach has happened. Under every law including GDPR or DPA 2021, it is envisaged that the report may be in phases and as and when more information is available, the report will be updated. However the first report within 6 hours ensures that the national body is aware of some thing going wrong in one company and it may help it plan a defence if similar incidents can occur in other companies.

What the companies need to do is to draft an email which records the data breach event the general description of the nature of the attack, its adverse impact etc. It is possible that IN CERT may actually help those companies who if they are not equipped to send an email within 6 hours will also not be capable of mitigating the  risk in 60 days . Afterall we are talking of companies who take 270 days to even recognize a data breach and call themselves as champions of Cyber Security.

As regards whether every targeted scanning has to be reported etc., companies need to define what is a “Data Breach” and distinguish it from “Attempted Attacks”. When the attempted attack succeeds then only a “Data Breach” gets recognized. The rest gets recorded in the log records and could be useful for future investigations. In case of Phishing, it is not the incoming phishing mails that become reportable unless they have been responded to leading to a data compromise. What is important is whether the Company’s identity has been used by fraudsters in their phishing attacks. If so appropriate measures need to be taken to bring down the fake servers delivering the phishing messages and provide disclaimers and notifications in their websites.

In summary we can state that the objections raised by some of the industry members through the media are unreasonable and needs to be ignored.

It is unfortunate that in all such cases, it is Naavi.org which has to come to the defence of the Government and the Government agency itself remains a mute spectator to the media onslaught to the extent that Courts also feel that there should be some thing wrong with the Government since it is not confident of itself.

The IN-CERT should come of age at least now and realize that it is not the old CERT-IN and I urge the Director General to come out with his own Press Conference defending the notification more strongly than what Naavi,org needs to do.

We are once again reminded of the story in Ramayana where Hanuman did not know his powers and had to be reminded by Jambavanta before Hanuman got the confidence to jump across the ocean. IN-CERT is also like the Hanuman who does not know its powers and has to reminded.

Naavi.org has already suggested that after the DPA 2021 is passed, the role of DG, IN CERT may get further marginalized. Just as the late Mr T.N. Seshan revived the self respect of the Election Commission, the current DG, In CERT has the responsibility to assert the role of the office of DG, IN-CERT and ensure that the interest of the office is protected.  I urge the Secretary of MeitY to facilitate this transition of CERT-IN to IN-CERT and make it a relevant body.

(Comments are welcome)

Naavi

Reference Articles:

Global tech industry body seeks revision in India’s directive on cyber security breaches

Tech companies have a few queries on CERT-In’s cybersecurity rules

India Limits Internet Freedom Again; Mandates User Data Collection For VPNs-INC42

5 issues with the recent Cert-In directions and what they mea… Mnoney Control

Why India’s New Cybersecurity Directive Is A Bad Joke… Medianama.com

Reference Circulars

CERT In Rules dated 16th January 2014

Notification of 4th January 2017

Notification of April 28, 2022

Earlier Articles at Naavi.org

CERT-In Re-issues its order of 4th January 2017

Shadow DPAI required for CERT-IN

We are aware of some companies including Microsoft, Adobe and also Graphic software companies like AutoCAD trying to bully computer users, threatening them with copyright violation and forcing them to buy licenses.

Some times this happens when a trial version of a software has been downloaded and used beyond the user forgets to de activate the software after the trial period. Companies deliberately allow usage of the software beyond the trial period and thereafter claim infringement of copyright.

In some instances employees of companies inadvertantly download software into company devices and the company gets exposed to the copyright infringement. This normally happens in small companies where the information security system is not strong.

We have discussed such issues in the past and even assisted some companies to ward off extortionist attempts by some dealers in the name of their companies.

Now it appears that a new cyber crime wave is commencing where the usual Credit card fraudsters make calls accusing “Your employees have downloaded our software and deleted it. We know everything. We will take legal action” .

The caller may refuse to indicate what evidence he has but keep threatening that they will take legal action.

After the initial threat calls the discussion veers round to payment of money which is the fraud part. In these cases, the allegation may not be true and the call may not be from the genuine company. The email if any may come from a proton mail which is not traceable. Possibility of some of the employees of the company engaged in the commission of this fraud is not ruled out.

It appears that this fraud is to extract whatever money is possible from out of this threat.  It can also run into a sequence of extortions if the organization is yielding and subsequently end up with ransom ware infection also.

One such case has been reported from Bangalore in the name of CorelDraw software

I request organizations to be careful in dealing with such fraudsters. If they send any emails in which clickable links are available saying that “Here is the evidence”… be circumspect and avoid clicking the hyperlinks because they may contain viruses.

Already several such cases have been reported in the following URLs.

https://www.kaanoon.com/305022/corel-draw-software

https://www.cybercrimecomplaints.in/thread/fraud-call-from-corel-india-corelindia-co-in/ 

The email received by the recipient includes the logos of Corel India and is in the name of Deepak Shetty as “Compliance Executive” of Corel Corporation with phone numbers + 91 88 600 865 71  and   + 91 22 6243 0743. 

Naavi.org has sought clarification from Corel India and would look forward to clarifications.

Naavi

The study of Neuro Rights Law for the purpose of developing Jurisprudence requires an understanding the neuro science as well as the technology that interacts with the neuro systems of humans.

So far we have tried to establish the relevance and scope of Neuro rights laws comparing it with the Privacy Laws. We have discussed how the definition of “Harm” under DPA 2021 can be extended to the impact of neuro modulation techniques and how the flexibility in DPA 2021 in defining “Critical Personal Information” can be extended to the “Neuro Data” to cover the “Neuro Rights” which are being discussed world over as part of the Human Rights.

In our journey to the center of the World of Neuro rights, today we shall explore the technologies related to the domain.

The Human nervous system consists of the Central Nervous system (which includes the Brain and the Spinal Cord), the nerve system that enables two way movement of signals from different parts of the human body to the brain and from the brain to the different parts of the body. The signal transmissions occur when the electrical potential in a neuron cell body (Soma) exceeds a threshold level (action potential) which emits a neuro signal that travels through the wire like part of the cell called the Axon reaching out to the different parts of the body. The end parts of the neuron cells called the Dendrites transfer the signals to the dendrites of the neighboring neurons through the area called “Synapses”. While the signal travels through the Axons, the signals are insulated by what is known as “Myelin sheaths”.

From the requirements of technology, what is important is that generation of neuro signals is created by an accumulation of electrical voltage in the cell and when it crosses the threshold of the action potential the signal is fired from the cell body through the axon to the axon terminals.

The objective of technology is to capture these signals and probably manipulate them in transmission. The technological devices working in this area may be called “Brain Computer Interface” or “Brain Machine Interface” (BCI or BMI). It can also be referred to as Human-Computer Interface or HCI

In the simple “Brain Mapping” technology, the objective  of a BCI is just to record the activity of the brain under different contexts of external stimuli. In a more sophisticated exercise, the technology can try to understand the source and destination of the signal within the human body and the nature of the actions intended which can be transmitted to the specific areas of the body to induce the actions.

The technology itself can be divided into “Non Invasive”, “Invasive” and “Semi Invasive” types.

The world of technology is also trying to create a “Virtual Brain” or the “Blue Brain” (An IBM Project) as a sequel to the Artificial Intelligence. The Blue brain can be a “Chip” that can be installed in the human brain in an invasive technique involving surgery and implantation of the chip below the skull. The “Blue Brain” can be supported by “Nano bots” which travel through our blood circulatory system carrying the information from different parts of the body into the Chip.

The Non Invasive technologies rely on electrodes that are fixed on the outside of the skull. Semi Invasive techniques will involve implanting of the chip inside the body below the skin but rest outside the grey matter of the brain.

The EEG or the Electroencephalograph is a recording of the brain activity from outside the skull using electrodes that collect the signals that can read on the surface. The resolution of the signals which can be graphically represented will have a low resolution. In comparison,

The Semi invasive technique where the sensor is within the skin but outside the grey matter of the brain within the body such as “Electrocorticography” (ECoG) provides better data collection. ECoG measures the electrical activity of the brain taken from beneath the skull in a similar way to noninvasive electroencephalography, but the electrodes are embedded in a thin, plastic pad that is placed directly above the cortex, beneath the dura mater.

In the invasive technology, probes may directly be mounted on the grey matter of the brain and be capable of observing the signals more closely. It may have the potential to observe the activity of a single neuron.

The terms such as EEG or ECoG etc are more relevant for the neuro scientists but have been provided here for the general understanding of the architecture of technology related to Brain Interfaces.

However the end objective of the technology in medicine is to create a therapeutic usage where the implanted chip can cure deceases such as loss of short term memory, epilepsy, sectoral damage of brain etc. It is to be accepted that there is a huge benefit to the society from such technology and though we may focus more on the negative aspects to discuss the “Rights”, it is not the intention of the author to belittle the scientific developments. Eventually, this technology can  create “Cyborgs” and the possibility of misuse of technology is to be flagged for appropriate security response.

In terms of technology, the system of BCI involves

a) Acquisition of digital signals

b) Transmission of signals from the collection device to a back end device for futehr processing

c) Pre-processing of signals, Feature extraction and classification

d) Application interface to input the extracted data into an application

e) Processing of the data and converting it into useful information to the society

As compared to the EEGs a similar technology exists in the form of MRI. The MRI technology observes the changes caused in blood-oxygenation levels and its magnetic impact. It is like observation of a derived impact where as the EEG is a more direct observation of the neuro activity. An attempt is also being made to use both EEG and MRI technologies together for a better understanding of the brain activity.

We shall stop our discussion on the technology aspects related to NMT (neuro modulation technology) at this point and give time to assimilate the concepts.

The objective of this limited presentation so far is to draw the attention of the computer technologists to the potential available in this segment. We may continue and expand this discussion later in our discussions.

Naavi

(PS: This exercise is an exploration of new thoughts in the journey to the world of Law, Science, Technology and finally the philosophy of human brain activity.   I invite comments and corrections to the above from other experts in the area.)

Earlier Articles

What are Neuro Rights?

Starting the journey to the Neuro Rights Law and Technology

The Age of Neuro Rights Dawns in India

New Dimensions of Privacy-Mental Privacy and Neuro Privacy Rights

At present “Privacy Right” is considered as a “Right to be let alone”. However, in practice, “Protection of Privacy Rights” is reduced to “Protection of Information Privacy” which is essentially, giving protection to the “Right of Choice” of an individual on how his/her personal information is collected, processed, stored, disclosed or destroyed.

Laws related to Privacy Protection therefore focus on “Data Protection” and prescribe how personal data is defined, how it should be collected, what are the limitations of processing, what are the rights given to the data subjects etc.

However, the emergence of technology which can interfere with the way human brain communicates with the organs of the body gives raise to a new harm threat that the “Right of Choice” itself may get manipulated.

Hence there is a need for new laws that protect the possibility of the integrity of the expression of  “Right of Choice”  to be protected. The Neuro Rights Protection falls in this domain. Though this is also referred to as “Mental Privacy”, since currently the “Right to be left alone” is also referred to as “Mental Privacy”, it is preferable if we refer to the new branch of study of Neuro Rights as  “Neuro Privacy”.

One definition of “Neuro Rights” presently used is that it refers to the “Legal and ethical principles of freedom and entitelment related to an individual’s cerebral or mental domain”.

Just as Neuro privacy differs from the “right of choice”, it also is different from the “Manipulation of a data subject’s choice” through advertising.

In “Advertising”, certain information is presented to a data subject which he perceives through his normal sensory organs and because of persistency of communication, starts accepting it as a possibility and converts it into an acceptance.

The normal principles of marketing and advertising  takes communication through the “AIDAS” stages involving “Awareness”, “Interest generation” “Desire Development”, “Availability of product” and “Satisfaction at post purchase level”.

In order to make Advertising and Marketing effective, it is necessary to know the nature of the communication recipient and what motivates him. An advertisement exposed to the general audience without market segmentation and development of communication content relevant to the audience would be a huge waste of resources. It is therefore necessary for advertisers to understand the market participants to whom the communication has to be targeted.

For this purpose all advertisers undertake profiling of the end recipients of an advertising and marketing effort which is frowned upon by Privacy activists. However, laws try to balance the requirements of business with the privacy concerns by specifying stronger procedures for obtaining an “Informed Consent” in the form of  “Explicit Consent”.

Businesses like Google and Meta are however often accused of misrepresenting and obtaining consent by unfair means and this becomes one of the main disputes that the data protection authority has to manage.

In the case of “Children” who are considered incapable of giving consent, profiling or targeted advertisements may be completely banned as in Indian law while “Parental Consent” is obtained in certain circumstances.

The “Neuro Privacy” addresses a different concern which is different from “Target Advertising”. Neuro Modulation Technology (NMT) involves changing the behaviour of the brain of a subject so that what he expresses as “Consent” or “Choice” is perhaps  corrupted with the NMT devices. Who has given the consent? Is it out of free will? becomes difficult to ascertain when a subject could be under the influence of a “Brain-Computer Interface”.

Hence there is a demand for recognition of a new set of rights under the family of “Neuro Rights”.  At present, Five different rights are being identified in this group namely

1. 1. “Mental Privacy” which is a right to control collection, storage, use or disclosure of “Neuro Data”. “Neuro Data” is collected from devices which we call the “Brain-Computer Interface” (BCI) or “Brain Machine Interface” (BMI). This would be a “specially  sensitive personal data” and can even be brought under the definition of “Critical data” under the Indian law
   2. “Personal Identity” meaning that technologies should be kept within boundaries so that they donot disrupt the sense of “Self”.
   3. “Free Will” which provides ultimate control to individuals over their own decision making without unknown manipulation from external Neuro technologies.
   4. “Fair Access to Mental Augmentation” meaning a fair access to useful mental enhancement neuro technologies on the basis of justice and guaranteed equality of access
   5. “Protection from Bias” meaning counter measures to combat bias for algorithms in neuro technology.

We are aware that the Indian data protection law (DPA 2021) does recognize “Harm” including “psychological manipulation which impairs the autonomy of the individual”, and also provides an option to define “Neuro data” as a special category of personal data which is considered “Critical Data”. With these two aspects, the current DPA 2021 may be interpreted adequately to protect all the above 5 rights.

However just as the Privacy activists were not able to accept judiciary reading down down Information Technology Act 2000/8 as a data protection Act, the Privacy activists may not be able to accept the DPA 2021 as also inclusive of the Neuro Rights Protection. Hence it may be necessary to bring an appropriate subordinate legislation or an amendment of the act in due course to protect the  Neuro Rights.

At present there are more than 130 countries having Privacy Laws but only one country with laws on Neuro Rights. We may therefore consider that it would take some time for the world to recognize the need for legal protection to Neuro Rights.

However when we look around and see the pace at which technology is developing and its destructive powers, it is better to be ready with a legislation before the technological developments go out of hand.

We have seen how the Crypto Currencies are threatening the very existence of a global economic system because we are not able to bring a law to regulate Crypto Currencies. Similarly Meta Verse as well as AI are likely to go out of control soon since there are no proper regulations to prevent their misuse. We should not make the same mistake in the case of Neuro Rights and remain complacent. It is better early than being late.

Hence we need to start using the DPA 2021 to provide coverage to Neuro Rights also even as the concept is further refined and brought  into a future legislation with a better clarity.

(To be Continued…)

Naavi

Earlier Articles

Starting the journey to the Neuro Rights Law and Technology

The Age of Neuro Rights Dawns in India

New Dimensions of Privacy-Mental Privacy and Neuro Privacy Rights