Naavi.org

(This is a reproduction of the Article that appeared in India Legal Magazine on April 18,2020)

 The spread of fake news through social media has been a cause of concern for quite some time. It was highlighted in the past during elections and now continues as Covid-19 threatens humanity.

Whenever an election nears, social media is used for campaigns promoting the electoral prospects of candidates. This is a legitimate advertising and promotion activity and cannot be faulted or curbed. Unfortunately, unscrupulous candidates and their campaign managers have focused more on projecting negative information of their opponents rather than positives of their own partymen. The matter has assumed greater importance today with the growth of fake messages which can cause untold damage to society and therefore, have to be curbed ruthlessly. In the past, attempts to curb them failed because whenever legislative controls were brought in to punish fake campaigns, politics would creep in. This would lead to both the supporters and opponents of a candidate being reluctant to identify and prevent fake messages. The attempt to do so was questioned as an assault on free speech and courts were dragged into the controversy.

The last time that the government tried to bring in some measures to prevent fake messages, it demanded that messaging platforms such as WhatsApp identify their origin. WhatsApp, however, refused to do so and stated that any such exercise would compromise its end-to-end encryption system. As a result, intermediary guidelines under Section 79 of the IT Act could not be amended when it was first presented in December 2018. It was a pre-election period and the government as usual did not press the change.

Experts had said that this contention of WhatsApp was wrong and it was technically feasible for it to identify the originating device of a forwarded message without compromising privacy and the confidentiality of the messages. They said that when a message was forwarded several times, it was feasible to ensure that a meta data was attached to the header so that at each stage of forwarding, the device could identity it and the date and time of forwarding are added to the message before it goes into encryption. This was not different from a block chain mechanism where the message with the header information keeps evolving and each such evolved message continues to be encrypted so that privacy and security are not compromised.

WhatsApp’s justification that it was technically unable to agree to the law enforcement requirement was unconvincing and dishonest. However, it yielded a little ground when it agreed to limit the sharing of a message at one point of time to only five recipients so that if a message had to be sent to 50 people, then the sender had to do so in 10 different attempts. This was an attempt to give the impression that it was assisting the government in combating the menace of fake messages without going all the way. WhatsApp also took action against some software developers who had developed applications for mass forwarding of messages through it so that the dispersion of fake messages could be slowed down. This was more to protect their IP than to prevent fake messaging.

When the Personal Data Protection Bill of 2019 was drafted, the government once again made an attempt to take control of fake messaging by introducing a mandatory requirement that social media intermediaries provide an option to users to get their messages displayed with a “Verified Tag”.

However, with the advent of Covid-19, the problem of fake information became more acute as people spread wrong information about its reach, the damage it can cause, likely remedies, etc. This time there was no political backing for the fake messages and hence, there was an apolitical response from WhatsApp with a new voluntary, technical measure meant to slow down their spread. The new system will identify the number of times a message is forwarded and after the first five forwards, this will be restricted to just one at a time. The message will also display an extra arrow to indicate that forwarding is in the restrictive stage. This, however, does not eliminate the message if it is fake. It will only delay the process of forwarding.

By initiating this restriction, WhatsApp has said that it is able to monitor whether a message is forwarded five times or more. This proves that its earlier contention to the government that it cannot identify the origin of a message is false.

Technically, if WhatsApp can count whether a message has been forwarded by one or more persons, then it will be able to identify the message and also from where the forward has come. All WhatsApp messages pass through its server before they land on the destination phone as it has to be re-sent if that phone is not connected at the time the message was first sent. Hence, it is considered infeasible that the WhatsApp server cannot see the sender’s device by whatever ID it may recognise it.

Legally, the government had the power to demand the assistance of WhatsApp not only for identifying the origin of a message but perhaps even for decryption. Section 69 of the Information Technology Act, 2000 gave the powers of interception, monitoring or decryption to a designated official of the government under a specific procedure. Such a procedure is already in place and though a notification to amend the rules issued in December 2018 was stalled, the availability of the power was never in doubt. Further, Section 69 also provided that if the service provider or any other person failed to assist the designated authority, the company and its executives could be imprisoned for up to seven years.

In several rounds of discussion between the Ministry of Electronics and Information Technology, WhatsApp and other social media representatives since December 2018, it must have dawned on these agencies that they stand on weak legal ground in resisting the moves of the government to curb fake news. But now, with the need to prevent fake news to protect the community from a pandemic and with no political support, whatever little courage these companies had in resisting the government earlier must have crumbled. Hence, they have come out with a voluntary offer of restricting the forwarding to a single destination.

With WhatsApp dropping its earlier resistance, it is up to the government to push it once again to institute a mechanism where a header is inserted for every message to identify the origin and each forward. WhatsApp can also initiate measures to monitor such meta data so that there is proactive identification of any forwards to identified groups and they are filtered. Filtering of messages on the basis of intended forwarding would help law enforcement authorities to identify suspect groups who are working against the interest of the public and they can be blocked from receiving messages.

There will, no doubt, be a charge that this would amount to censorship. But if the procedure laid out is stringent and its use is restricted to exceptional cases with hard evidence to back it, the filtering of fake and malicious messages and subsequent legal action can be undertaken by the police better than is possible now.

As regards end-to-end encryption which WhatsApp claims to be impregnable and beyond its capability to de­crypt, the existence of malware such as Pegasus proves that breaking into a mobile device and reading WhatsApp messages is feasible. Hence, end-to-end encryption is not a fool proof system.

End-to-end encryption of a messaging service like WhatsApp is different from that of a voice message like Blackberry or Apple. Retrieving a voice message without the permission of the owner of a device by the law enforcement agency or a hacker requires not only access to the device but also enabling of the storing of the voice files.

In the case of messaging applications, storage and subsequent retrieval is an inherent character of the service and therefore, technically, reduces one process compared to recording of a voice conversation and listening to the recorded files.

WhatsApp restricting the number of forwards, therefore, strengthens the hands of the government. The company can no longer use technical excuses when it is ordered by law enforcement to reveal the identity of the devices originating and forwarding fake messages. This will now also possibly extend to decryption of end-to-end encryption.

Naavi

(This is in continuation of the earlier article)

The circular issued by INS r(Indian Newspaper Society) the posting of some publications in certain WhatsApp groups by over zealous members has the following advise.

1. Take legal action against offenders, especially against WhatsApp and Telegram admins who’re offending and trigger legal notices (WhatsApp group admins are liable for anything illegal that happens in their groups)

2.Additionally, also for any legal action taken, publish  few news stories to talk about the huge fines and lawsuits initiated  against offenders to deter others from doing it.

I would like to draw the attention of the INS secretariat to the following.

Media often accuses the Government and the Police when they take action against the journalists  with the advise “Don’t Shoot the Messenger”. It is common for investigative journalists to adopt bribing and other illegal means to obtain a story which these publications gladly publish. Has INS ever sent any advisory to the publications that their journalists should not adopt such practices or use ethical means of publishing articles without taking bribes?

Suddenly INS has decided to shoot the WhatsApp admins instead of the individual member who has infringed. The threat itself is illegal and violates the principle of “Free Speech” by creating a “Chilling Effect” as discussed by Supreme Court in the Shreya Singhal case.

INS secretariat must learn the law that WhatsApp Admin is only a manager and not an “Editor”. The messages donot get moderated and get posted directly because the person posting the message sends a message to WhatsApp group server and the server distributes it to the group. The “group” only represents a mailing list maintained by the WhatsApp server and the admin has no control other than removing a member.

Further message in the group represents only what is meant for the members and not for public. News papers are shared by family members and in libraries it is shared by many others. Will INS go after the librarians also? If not on what grounds do you discriminate against the WhatsApp admin? Your suggested action is therefore discriminatory and against public policy. If properly pursued INS registration may have to be suspended and cancelled for acting against public policy.

INS secretariat may kindly read the following article where I have explained the WhatsApp aspects in some what more detail.

“police target WhatsApp admins and FaceBook posters once again”

Police, Prosecutors and Judiciary: Please Don’t Create Fake Laws out of your misinterpretation

It is wrong to say that WhatsApp group admins are responsible for all that happens in the group.

If in a news paper an illegal advertisement appears, will you put the Editor in jail?.

In Information Technology Act there is some thing called “Due Diligence” and the WhatsApp admin’s due diligence has certain responsibilities. As soon as a prima facie illegal activity takes place, the Admin has to advise the member to withdraw the post since the post can be withdrawn only by the member who has posted. The only punitive action the Admin can take is to remove the member which is like sacking a reporter for one fake report. Many WhatsApp admins do it when the message is sensitive.

Please let me know whether you advise your news papers to sack the reporters if any of the reporters send a wrong report? If not why treat WhatsApp admins differently?

Secondly, the advise to harass the WhatsApp admins for the infringement with huge fines and further defaming them with publicity because the publication is in charge of its own publication is not a proper advise. It is a conspiracy to threaten members of public and violate the copyright law which may provide for reasonable compensation in case of violation as determined by a Court.

First of all in any Copyright infringement, one has to see whether the person infringing made any unfair gain by the infringement and whether there was any notice of copyright etc. The Courts will consider what is a reasonable penalty. Civil claim has to have some relationship to the loss suffered by the victim and wrongful gain made by the offender. Arbitrarily claiming a large amount is not provided in law.

If Newspapers are losing customers because they have become irrelevant in the age of TV and Social media, dont’ suggest them to recover their losses by suing the WhatsApp admins. The WhatsApp admins of groups where the kind of infringement have taken place will be not worth even a few thousands of rupees for claiming compensation. The publication will not get even the lawyer’s fee for notice in return. The publication can however bribe a policeman and try to harass the WhatsApp admin and both the Police , the publication and INS would be liable for human right violations.

INS as a society of responsible publications should show some maturity before issuing such circulars.

As a remedy, INS should withdraw the part of the circular which targets the WhatsApp./Telegram admins and apologize to the community. You are well within your rights to advise the publications to institute security measures to prevent downloading which many publications do. If you had not done so so far, it shows your incompetence. If your members donot want to spend money on hosting a secure website, you cannot advise them to go after WhatsApp admins.

I look forward to a positive action from your end.

Naavi

(This is in continuation of the earlier post)

I have received a copy of a communication supposed to have been sent by the Secretary General of the INS (Indian Newspaper  Society) to the publications as an advisory which is reproduced below:

I refer to an article today in Financial Express titled “Personal Data Protection Bll: Will it disrupt our data eco system?

This article discusses the importance of the early passage of PDPB 2019 and at the same time highlights the possibility of the act impairing the digital economy of the country by referring to the difficulty arising out of the wide scope of the definition of personal data.

There are no two opinions that the Act when it comes will cause disruption in the industry and the Government departments who have no clue on Privacy Management now will be the worst hit.  The private sector will be in a far better position since the professionals in the private sector are aware of Privacy protection because of their exposure to GDPR and other laws.  This could be one of the reasons why Government departments may have to be given a slightly longer time frame for implementation than the private sector though it would raise a hue and cry of discrimination in the industry circles.

The concerns expressed in the article are

1. The wide scope of definition of personal data deviates the core proclaimed purpose of the legislation which is protecting the privacy of individuals.
2. Curtailing the expansion of digital technology driven activities in the false pretext of privacy could lead to a decline in the growth trajectory. There is no legitimate need to regulate the creation and use of every data set or processing of data.
3. Restricting data storage is thus of no use.
4. Giving notice to everyone is  not possible and does not ensure better rights to data subjects.
5. The economic impact of this legislation should be deeply examined and reconciled before moving ahead with it.

The article is well written and the views are well articulated. However, we need to present our views on the concerns expressed above.

It is clear from the last concern above that the author has advocated possible deferment of the passing of the law. It is strange that two years back all advocates were shouting that Indian Government does not want to enact a Privacy protection law because the Government does not want to bind itself to a discipline in the usage of personal data of its citizens etc. They all forced Supreme Court to come with a hurriedly conceived judgement on Privacy and the Aadhaar related decision in which the Supreme Court declared that Privacy was a fundamental right of a citizen of India protected under Article 21 of the Constitution. The Court also extracted an assurance from the Government that they will soon introduce a robust law for the purpose of privacy protection.

The Government went ahead, constituted the Srikrishna committee and came up with the first draft of PDPA 2018 as presented by the committee to the Parliament. When it was sent for public comments, elections intervened and a new version had to be introduced as PDPB 2019.

But now the same people who wanted the legislation earlier has realized that the law would bring in greater hurdles to the business than the Government itself and are now using all their skills not to let the Government go ahead with the passage of the Bill. There are frequent articles in news papers providing suggestions which in the end only mean that another version of the Privacy Protection Bill has to be worked out by the Government. This game has been going on for several years now and several draft bills have been earlier presented to the Parliament in the earlier regimes only to be kept pending in JPCs until the Parliaments end their term. We hope this Government will be different and finally come up with the passage of the Act or face a serious contempt charge from the Supreme Court.

We need to therefore consider how we can move ahead with the current version of the bill with minor modifications. Fortunately the Bill has enough flexibility to ensure that regulations from DPA can address most of the concerns and it is not necessary for all concerns to be addressed only in the Act.

The author (FE article) has spoken about the consent mechanism and considered it impractical to obtain the consent from every data principal. However, by the very definition of “Privacy” being an ability to exercise “Choice”, there will be no “Privacy Protection” without giving a choice to the data principal to determine how the data may be processed. PDPB takes into account several practical instances in which consent may not be necessary both for the Government and the private sector. Hence the concern is addressed.

The author of the article has also objected to the data storage limitation principal. However since the permission is linked to the purpose of processing and the data storage can be extended if the purpose demands or the legitimate interest of the data fiduciary requires extension, the concern has been adequately addressed.

The concern that the Act tries to regulate every bit of data that is created and this would hamper the industry has to be seen in the context of what is “Data” and what is “Personal Data”.

Personal data is part of the data and hence if we want to regulate Personal data as the Supreme Court wants, there is no way you cannot regulate the non personal data in some form. Personal data and Non personal data are like two sides of the same coin

Hence PDPA while regulating Personal data has to also say what it does  leave out as Non Personal data since Personal data is carved out of total data.

Regulating personal data therefore hinges on what data we carve out of the total as “Personal Data” so that the regulations can be applied there in.

Hence the definition of “Personal Data” is the most critical  part of the regulation and if we can agree on the definition, most of the disagreements that different segments of the industry have on the Act will perhaps reduce or even evaporate totally.

Currently, PDPA defines Personal data as

 “personal data” means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling;

Under GDPR,

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

The two definitions have a small difference intended or otherwise. The GDPR definition refers to the “identifiers” and gives examples such as “Name”, location data, online identifier etc. The author of the FE article makes a reference to the European Court of Justice and even adds the “Answer sheet in an examination” as an identifier.

The PDPA does not name the identifiers but it is natural for people to extend the GDPR identifiers as also identifiers for PDPA to differentiate between Personal data and non personal data.

We need to deeply think here when does a data which is in the hands of a data fiduciary become “Personal Data”. No data is born “Personal” it acquires the status during the life cycle which starts from raw data  and journeys through the state of  non personal data, to personal data to sensitive personal data until it is destroyed or converted into other states such as de-identified data or anonymized data.

So, if there is a data

01110110 01101001 01101010 01100001 01111001 01100001 01110011 01101000 01100001 01101110 01101011 01100001 01110010

it is simply data and neither personal or non personal.

If a viewer sees this through an ASCII converter, his computer would display a conversion of this data into

vijayashankar

Now in this context is the first set of binaries “Personal data”? It perhaps became so because some body decided to convert it. Is it not similar to identifying a de-identified data?

The law is not clear about this.

Now having converted the binary stream into a text read as “vijayashankar”, does this amount to personal data? Does this identify a living natural person? What makes one think that vijayashankar is a name of a person? why can’t it be the name of a place?

In the absence of further clarification, will “vijayashankar” be called personal data?.. The law is not clear.

If we adopt the logic expressed in the FE article and what is also prevailing world wide, the name is an identifier, IP address is an identifier, email address is an identifier etc. But who says some thing is a name or email address?. If I name my company as Naavi@Naavi.org and register it, then is it the name of the company or the email address of naavi and who is naavi, is he an object, or person etc, are the things which make the information unable to be identified as a personal information.

Hence we must accept a definition where no information is personal or otherwise per-se. It becomes personal in relation to the conversion of the binary data into a human experienceable form and in the eyes of the beholder, it represents a person.

This is the concept which Naavi’s theory of data adopts as the “Definition Hypothesis” of data.

Does PDPA accept this principle? or fall into the check list approach of the other world to give a list of 18 parameters (as in HIPAA) or any other number of parameters that we can imply in GDPR?

As of now the definition in PDPA remains unclear. Hence “vijayashankar” or “naavi” or “naavi@naavi.org” as independent data elements are not automatically “Personal Data”. But if the “beholder” knows that there is one natural person who responds when you call out “vijayashankar” or “naavi” or send an email to naavi@naavi.org, because of such knowledge, the data becomes personal data in his custody.

The same data in the custody of somebody else who has no clue to what is “vijayashankar”, it is a non personal data.

The definition of personal data should therefore incorporate the “User of the Data” who may be a Data Fiduciary in this context and his knowledge to identify any set of characters as personal data or otherwise.

I am not sure how  if this should be done by amendment of the definition of the personal data or we should leave it to the DPA to clarify.

As a suggestion, I would recommend consideration of a revised definition of “Personal Data” to ensure that this definitional uncertainty is removed.

‘personal data’ in the context of its use by a data fiduciary and the knowledge of the data fiduciary, means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

In such a definition no single stream of binary data is called “Personal” unless it is associated with one or more other binary streams which together indicate that the data set is an identifiable personal information. Hence vijayashankar, email:naavi@naavi.org would together be called personal data while individually, vijayashankar or naavi@naavi.org cannot be called personal data.

Comments of experts are invited.

Naavi

During the COVID lock down, many subscribers of news papers have stopped the news paper subscription and there is no doubt that the subscription revenue must have gone down. Though in the past, newspapers relied more on the advertising revenue than the subscription to the extent that the front page of national news papers were often the paid ads themselves, the news papers may be worried about the possibility of a permanent discontinuing of the news paper reading habit by the public, post lifting of the lock down.

In the meantime as a cost cutting measure most news papers have drastically reduced the number of pages in the publication and saving on the print costs.

While the few of us who are still supporting the publications by continuing the subscriptions, understand the economic pressure, the rumour that is floating around about INS (Indian Newspaper Society) intending to take action against WhatsApp admins for forwarding the e-copies of publications to their members under the Copyright Act raises concern.

If the rumour is true, it shows the meanness of INS and deserves to be condemned.

If any WhatsApp admins have been sharing the news papers to their members, it is out of respect for these publications and to ensure that the members keep in touch with the publications so that the relationship between the publication and the subscriber/reader is not completely cut off. This should increase the possibility of the person re-engaging himself with the publication after the lock down is lifted.

If however, the INS takes any action against WhatsApp admins, there could be a boycott of news paper subscriptions and the print publications will be forced to close down.

Today the TV media and the internet media disseminates news faster and better and if INS does not understand the vulnerability of the print publications and ignore the minor aberrations of Copyright that they may be seeing in these news paper shares, it will on its own dig up the grave for print publications.

If the rumour is not true, INS has to come out with a statement showing its magnanimity in accepting the current special conditions in which some WhatsApp admins might have tried to share the news within their private member community (not in public domain) for the benefit of the members   of its family and at the same time helping the brand afloat.

If INS wants to protect the member’s  rights under Copyright Act, the consumers may demand that with the reduction of print pages, the publications have to reduce their price immediately failing which they should be  open to challenge under unfair trade practices.

In the meantime I advise the WhatsApp admins….

• Stop distributing the whole copies of publications. Your service will not be appreciated and could be violating Copyright law.
• Instead you can discuss specific articles with or without link to a context specific articles on the news paper.
• In the past there have been some international publications which have taken objection even to hyperlinking (Deep linking) to articles within the news papers and it is better you avoid confrontation with such money hungry sharks.
• Most of these news papers are any way not committed to the principles of journalism and are paid by some political party or the other or some business group.
• Ideally, pick up news from the social media and blogs, filter them for reliability and distribute it to your member
• Avoid confrontation with the news papers. They have copyright lawyers supporting them.
• Afterall you are not paid for promoting the brand of the news paper and there is no reason why you should take the risk.

My renewal of subscription is due and I will be considering discontinuing one English and One Kannada news paper to which I subscribe now unless I see a satisfactory response from INS.

Looking forward to a suitable press release from INS in this regard. I am copying this through email to the INS.

Naavi

P.S: In the past there used to be an early morning program in which TV channels used to read out main news from print publications. It is time WhatsApp groups distribute responsibilities to members to read out one news paper item so that collectively the information can be shared.

The COVID 19 lock down has delayed the meetings of the JPC on PDPB 2019 giving room to speculation whether the Government of India is developing cold feet on the passage of the bill which would make it more accountable for some of its activities such as the use of the Arogya Setu app.

We are aware that the MeitY has been in discussion with many business organizations, most of whom are MNCs now exploiting the weak Indian data system who donot want the law which could bring them into a greater legislative bind. From what has been seen in the case of submissions of NASSCOM and AFISMA/SIFMA, there is a lobby that is working on dilution of the Bill. Already the Government has given up on the Data Sovereignty concept by agreeing to allow free transfer of non sensitive personal data across the borders and conditional transfer of event he sensitive personal information despite the adverse impact of this move on law enforcement. Now if we take the recommendations of NASSCOM and ASIFMA seriously, the Government may have to re-draft the Bill again which means another round of public consultation and further delay.

It would be a tragedy if the JPC is used as an excuse to delay or permanently avoid the passage of the bill in its present form.

It may be noted in the AFISMA submission that there is a direct challenge to the sovereignty principle by suggesting that if the MNCs are already in compliance with GDPR, there should be no need for compliance of PDPA as if to suggest that the foreign laws still reign supreme in the Indian jurisdiction.

In the recent Kerala Government controversy against the US company Sprinklr, the so called GDPR compliant Sprinklr did not  bat an eye lid before accepting the sensitive personal data of Indian citizens and processing it in USA knowing fully well that this was not ethical if GDPR was a best practice standard. They did not bother to advise the Kerala Government whose babus may not be aware of “Privacy Protection” and were under the pressure of the Corona crisis that the information can be easily de-identified and pseudonymized before it was transferred to Sprinklr. They did not even bother to bring to the specific notice of the Kerala Government the fact that the Jurisdiction clause of the standard terms of service provided by Sprinklr required the Kerala Government to seek remedy in a New York Court.

Sprinklr was therefore irresponsible as a “Data Fiduciary” and only tried to take commercial advantage of the situation either deliberately or because they were ignorant of the principles of Data Protection under GDPR or even their liabilities under Section 79 and 43A of the Information Technology Act 2000/8

It is such organizations in the Financial sector that the ASIFMA is trying to represent and argue for dilution of PDPA.

The JPC should therefore ignore such submissions and start finalizing the Act. If they still want to have meetings with experts, they should go for a Virtual Conference for which Zoom as modified may itself be sufficient or any other video conferencing tool which they consider as more secure.

I request the JPC to therefore to proceed with their discussions so that before the lifting of the lock down in the next 14 days, the final draft of the Bill is ready.

Naavi