Section 65B and its relation to the Theory of Soul and Body, rebirth and past life memory

Posted on January 19, 2018 by Vijayashankar Na

I recently received a query about whether there is any case law which supports my view that even when a original memory card or CD is presented to the Court, a section 65B certificate is required.

I would like to elaborate on this query and submit my views.

Case Law and its limitations in an emerging area of technology

I understand that most practicing advocates consider that  “Law Becomes a Law only when a Judge says so”. Hence the arguments in most cases except when it reaches the higher courts, is always on the case laws and not on interpretation of the law.

The Judicial interpretations are important in assigning meaning to the words contained in the written law but it can always be re-interpreted. A lower court’s interpretation can be re-interpreted by a higher court and a smaller bench interpretation can be re-interpreted by a larger bench.

Hence when we base our legal view only on the strength of some case law, we are on a temporary time period when a particular judgement is considered as a precedent.

True Experts on the other hand will/should ignore interpretations based solely on case law and will/should always argue with a fundamental interpretation with relation to the legislative intent and what is necessary to meet the objectives of the legislation.

Yes, this would be an “opinion” of a ” Deemed Expert” who may be not anybody who is  “Certified by any government or judicial authority” or by passing an “Examination” in a University. But nevertheless, it cannot be ignored as our experience in the past under Sec 65B interpretation has proved.

It takes years for the Courts at higher levels to consider a legal issue, mull it over under different circumstances and contexts, hearing arguments of all hue and description and arrive at a near consensus view on a matter of legal interpretation of a law text, when it can be considered as a “Case Law”. In the meantime we should not curb our creative interpretation of the law and fail to challenge the decisions of the Court even if it comes from the highest Court.

In the domain of Information Technology Act 2000 as amended to the current date, which includes the Section 65B of Indian Evidence Act , I have always followed this principle that we need to dig up the truth from the current law until it is changed and all of us including the Courts at the highest level are in the process of understanding the law and interpreting them.

Some may consider it as not respecting the tradition where the arguments of practicing advocates start and end with

” In so and so vs so and so, the honourable Supreme Court said so and so and there rests my case, my lord”.

Fortunately, not being a practicing advocate gives me the creative freedom to think differently and let the Judges accept my view if they can hear me out fully and with an open mind. No disrespect is meant here for any judicial authority nor any arrogance is intended.

It is a belief that “God sees the Truth but waits”.

I consider that Cyber Jurisprudence in Information Technology Law and Section 65B is still developing and hence what I say is an input which needs to be considered as a “School of Thought”. I may differ in certain respects with other seemingly logical views of other practicing advocates more vocal than me and more active in the Judicial Academies or Legal seminars. But I would not budge from my considered view.

My Considered view in respect of

“whether a Section 65B certification is required for an electronic document when a original memory card or hard disk is presented before the Court”

is an emphatic yes. 

In such cases, the Court has to invite a person of its choice and ask him to view the electronic document and produce a Section 65B copy for the Court to appreciate.

Indian Philosophy shows us the way

The key to appreciate the above point is that an “Electronic Document that is a piece of evidence is not the memory card per se but the stream of binary data, the zeros and ones that are some where inside the memory card in the form of electric charge positive or negative”.

The memory card is the container or a box that contains the zeros and ones that when viewed in a special looking glass called a computer with appropriate hardware and software, provides some human experience such as a text, a sound or a video.

The process of conversion of the stream of zeros and ones which is the “Original” evidence into a readable document or a hearable sound or a viewable video is dependent on a hardware-software combination such as a card reader, computer, operating system, monitor, speaker, audio processor, video processor, besides the header information that precedes the binary representation of the evidentiary content.

Only when all these function properly in tandem the stream of zeros and ones become a humanly appreciable electronic document which the Judge considers as “Evidence”.

Therefore, while the original evidence such as a memory card can be presented as a physical artefact that is an “evidence” and also admitted as an artefact, the question of who will view the binary content contained there in and say that it contains a letter written by X to Y or a photograph or an audio etc., remains to be sorted out.

If the Judge himself views the electronic document which is dependent on the system used, software used etc, then he becomes the person responsible under Section 65B to state that the computer which rendered the binary stream contained in the memory card rendered in a particular manner and will do so in future also in similar circumstances.

We can then say that the onus of providing the Section 65B certificate shifts from the person producing the memory card to the Court itself.

The fact that an electronic document residing in Yahoo Group server could be accepted as evidence based on a certificate produced locally by a private person like me was established in the Suhas Katti case in 2004 itself. There was no need for the “hard disk of yahoo group” to be produced in the Court. I suppose this is a universally accepted fact as of now that where there is a Section 65B certificate of a computer output, there is no need for the production of the original electronic document.

In the Basheer case one part that I did not agree with was a reference to the CD in which the offending speech or song was contained as a “Original”. This term has to be correctly defined.

The terminology that should have been used here was the “First Container of the stream of electronic data elements that constitute the evidence in question” instead of the “Original CD”.

We should refrain from confusing between the “Stream of zeros and ones” which are “Binary impulses recorded for future reference and interpretation” in some form, and the container in which these are held together for the time being.

Imagine the situation where a laser computer screen is created in front of your eyes in free space where you see the information that you normally see on a computer monitor. The words are now floating in the air and there is no surface on which they seem to reside. But no such surface actually exists. This clearly establishes the fact that “binary stream” can exist and actually does exist independent of the “Container”.

Another easy way to understand this is in the concept of the “Soul” and the “Body” in Indian philosophy. Does soul exist independent of the body?.. Indian philosophy agrees that Soul exists independent of the body and that when a person dies, the soul leaves the body and ultimately finds another body in which its past life memories are in tact and if there is a right environment, the erased and reformatted memory of the soul in the past life can be rendered in the new body.  (Hypnotic age regression). The soul perhaps exists in this transitory state until it merges itself with the “Paramatma” which we call “Attaining Moksha” in some forms of philosophy.

Without going deeper into philosophy, we should conclude that

a) “Electronic Document means a stream of binary data arranged in such a manner that under appropriate rendition of the stream through a computer device, it produces the human experience of a readable document or an audio or a video.”

b) A memory card or a hard disk is a device which  holds the stream of binary data and makes it available to be used as a hardware which becomes part of the larger computer system that renders the human experience of a stream of binary data.

In an earlier article, I have referred to the Trisha Defamation Case in Chennai AMM Court where I was invited by the Magistrate in a similar circumstance when the CD was already in his hands and there was no need for an external party to certify it in ordinary prudence.

I appreciate the vision of the magistrate D. Arul Raj who correctly interpreted the law that he should not take the responsibility of writing in the judgement,

“I viewed the contents of the CD which contained so and so information… which contravenes such and such law…etc”.

He decided that he requires a third party to certify it and provide him a Section 65B certificate. In this case, I was the person called upon to do so.

Unfortunately This did not go into a judgement (as I understand) since the complainant later withdrew the complaint.

In my opinion, Cyber Jurisprudence does develop not only from the Judgements, but also from the views that emanate from the experts.

Remember that after Afsan Guru judgement in 2005,  many were quoting that I was not correct in maintaining that Section 65B certificate was mandatory for admissibility. But it took 9 more years of erroneous reading of the law to be upturned by the Basheer judgement in 2014.

In between I continued to hold my view and also argued with experts particularly in the National Police Academy who were listening to me on the one hand and also looking at the Afsan Guru judgement and spotted the discrepancy. Most other experts had not even observed this discrepancy and hence not raised the issue in any forum for a larger debate until the Basheer judgement reflected what I was saying all along.

Similarly, any of the views that I have expressed here may not be today the popular view or a view that is necessarily supported by a judgement. But I am confident that judgements will eventually follow what I have stated here.

May be there will be occasions when I will revise my view or the law itself may change. But presently my view is that

“Even when the original binary stream is presented in the container to the Court, the container has to be opened and the binary stream has to be interpreted with the assistance of hardware and software and hence it is necessary for the Judge to take the assistance of a Section 65B Certifier reliable to it. Such a certifier can be a Section 79A certified agency if available or other persons on whom the Court reposes confidence.”

Naavi

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Uphold the “Right to Know” against “Right to Privacy” in the new Data Protection Law

Posted on January 17, 2018 by Vijayashankar Na

As we enter the final stages of public consultation on the drafting of the new Data Protection Act of India following the release of the White Paper by the Justice Srikrishna Committee, one aspect of the law that needs attention is the “Right to Know” of an individual which often conflicts with the” Right to Privacy” of another individual.

Right To Know is a different concept

“Right to Know”  is a concept that GDPR also has ignored and there is an opportunity for India to introduce this concept into the discussions of Privacy.

Let me explain with an example why this concept is different from other known concepts including “Right to Information”.

When some body calls us on a phone, the first question we would like to know is “Who is calling?”. If the other person says, sorry, I value my privacy and would not like to reveal my identity or I would like to talk  under a pseudonomous name, the question arises as to whether this is a valid Privacy argument or not.

Similarly, when I receive an e-mail from some body who says he is Jignesh420@gmail.com, I have the right to know whether he is really somebody I know or not. I donot trust the display name since I know that Google does not do a KYC before allocating the user name. I therefore donot know if the e-mail is a “Spam”, is an attempt to “Impersonate” or is an attempt to commit a fraud on me. If I want to know more about the person, I need to know his IP address.

However, Google in its misdirected concept of Privacy hides the IP address with a proxy address from Google which cannot be deciphered without the intervention of law and takes too much of time and effort and often bribing of the law enforcement personnel just to send a notice to Gmail administration.

I therefore ask a question to the law makers,

Do I not have a right to know the true IP address of the person who has sent me an e-mail?

If Privacy activists want the IP address to be hidden in the email while it is in transit, I demand that Google should introduce a procedure by which every recipient of an e-mail should be able to raise a one click query to know the IP address from which an E-Mail has been sent to him and Google should automatically provide the information.

Similarly, any ISP should also provide the last mile resolution of the IP address to any person who can prove that he has been in receipt of a communication from such IP address.

This is what I consider as the “Right to Know” and it extends to the Facebook and Twitter accounts as well as social media such as the Whats App.

If “Right to Know” is upheld as a Right of an individual, it does not conflict with the right to privacy of an individual except that such right stops at the door steps of the rights of the receiver of a communication. On the other hand it provides a new right to the recipient of an electronic communication just like the “Right to Speech” co-exists with the Right of Privacy in law.

This “Right to Know the IP address” extends to other instances such as

a) Right to Know the identity of a Domain Name Registrant

b) Right to know the identity of the owner of a Telephone number or Mobile Number from which the recipient has received at least one call or is reasonably suspected to have been used for the commission of an offence.

…. and may be for other instances as well to be  defined just like the multiple parameters we may use for classifying “Sensitive Personal Information” under the law.

Aadhaar has recently introduced a link on its site to provide information on Aadhaar usage history of a person which is a great measure towards transparency. But the information provided is on the basis of a transaction code that cannot make any sense to the Aadhaar user. It has to provide the name of the entity that made the query either directly on the website itself or through a link for which there can be a second OTP authentication. This falls under the “Right to Know”.

The procedure for extracting the information in the above cases must be simple and nothing more than

a) Identification of the person who is making the request with something like the digital signature or Aadhaar

b) Statement of the suspected contravention of law or proof of being a recipient of an attempted communication

c) A commitment not to misuse the information for any purpose other than the stated purpose with an undertaking to be liable for consequences of misuse

I request Justice Srikrishna Committee to consider this suggestion and incorporate it into its recommendations.

(Comments Invited)

Naavi

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Is Aadhaar controversy behind the Judicial uprising?

Posted on January 16, 2018 by Vijayashankar Na

The 4 judges who held an unprecedented press conference which many agreed has tarnished the image of Judiciary in India stated that their “Irreconcilable disagreement with the CJI” was based on the allocation of cases to different benches which was arbitrary and overlooked the “Seniority” of the judges. Since the judges have appealed to the nation to “Protect Democracy”, I as a citizen need to make out some points.

The Justice Loya death case appears to be the most disturbing case as far as the advocates such as Indira Jaisingh and Dushyant Dave are concerned and since Justice Gogoi seems to agree, we can accept that the four judges want this case to be heard before them and not under some other “Junior” judge.

It is another issue why these judges want this case only before them and donot trust the other judge. One interpretation of this is that by admitting the case, they could have embarrassed Mr Amit Shah to say that there is potentially a “Murder” charge being investigated by the Court which could consider him as a “Suspect” and when the CJI frustrated this plan, they lost their cool and held the press conference.

Additionally, it appears that the other most sensitive case now before the Supreme Court is the Aadhaar case where the “Constitutional Validity” of the system is in question. The intention of the Supreme Court was some what evident when during an earlier hearing, the Government brought an argument that “Privacy is not a fundamental right”, it jumped to constitute a 9 member bench under the previous CJI Justice Kehar and quickly brought out a 547 page judgement for a single line order “Privacy is a fundamental right under article 21 of the Indian constitution”. This defeated the argument of the Government and strengthened the argument for scrapping aadhaar. if done, the opposition can use it for embarrassing the Government much more than the GST issue.

Besides the opposition wanted to preserve their “Benami” properties which Modi was threatening to identify by making it mandatory to link property registration with Aadhaar. I feel this was more critical than the Justice Loya’s case.

The opposition felt that if the bench hearing Aadhaar can be managed by pliable jduges, they could get Aadhaar scrapped and it would be the biggest coup before 2019 elections.
Unfortunately, it appears that Justice Dipak Mishra is again frustrating them by denying an opportunity for these judges to be on the bench which can scrap Aadhaar. CJI perhaps feels that these judges may have a conflict of interest with their relationship with Mr D Raja, Mrs Indira Jaisingh, Mr Dushyant Dave etc., as regards the Aadhaar case and hence cannot be on the bench hearing any case in which there would be a strong anti-Government sentiment.

We must appreciate the vision of the CJI in this regard.

If these judges with conflict are not involved in the Aadhaar case, it would be better since the case can be decided purely on merits and not on preconceived notions of the senior judges.

Aadhaar is therefore the key to what appears to be an unprecedented move of the 4 senior judges to take on the CJI to the extent that media already started talking of his possible impeachment. They are now disappointed that the coup attempt has failed at least for the time being.

In one of the online surveys 69% respondents held them wrong and in a way “Impeached them in public perception”. This is the people’s verdict they wanted during the press conference and they should respect it.

I anticipate that out of the four at least one of them may decide to resign to uphold the principles that he wanted to demonstrate by the uprising to protect democracy. Will it be Mr Chelameshwar? or some body else?… we need to wait and observe.

Naavi

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Aadhaar Adds another security layer to frustrate “Benami” s.

Posted on January 15, 2018 by Vijayashankar Na

It appears that UIDAI is in race with the Supreme Court to ensure that the Court does not take any decision to question the use of Aadhaar as it is presently planned.

Aadhar has evoked a mixed response from the public. All those who consider that we need to root out corruption are happy with the Government linking Aadhaar as a unique ID to many of the services which involves payment out of the Government funds. They are of course worried about the security of their money in the Bank if Aadhaar can be misused. Their objection will continue on the AEPS systems where biometric of the Aadhaar gets collected by thousands of merchant establishments and can be misused.

But those who had a stake in benami accounts and corruption have been perturbed with the linking of Aadhaar to  PAN and Bank accounts. Government is now talking of linking Aadhaar to property registrations and this is the last straw that will break the back of corrupt people who had grown stronger and stronger during the UPA regime and were slipping away from the clutches of law. There is no doubt there are many Government servants also in this group as well as the businessmen and politicians. I will not be surprised if there are some Judges also in this group.

Along with these people there are another set of people who are not corrupt and may not have any black money but are naturally opposed to any negligent IT implementation where there are security loopholes. So far UIDAI has been fighting these security specialists out of its own ego and created a lot of enemies. Some of these are advocates of “Anonymity” who have a false sense of pride in hiding themselves from regulators and work in the darkweb in the Bitcoin economy and for them any “Identity” is an anathema. They therefore oppose Aadhaar as a matter of principle as it represents the height of “Identified online transactions”.

On the other hand, there are a large number of illegal migrants and beneficiaries of Government schemes, in fake employment with the Government, holding fake ration cards, fake SIM cards etc who obviously want their anonymous life to be protected so that they can continue their illegal activities and terrorist pursuits. The politicians who are opposed to Mr Modi and all the pseudo intellectuals including those advocates who are fuelling the Judges revolt in the country and supporting the “Bharat Tukde Karo Brigade” use all disgruntled persons with anti Aadhaar agenda with the help of Journalists who have their own axe to grind.

Some of the political opponents had hoped that Supreme Court may scrap Aadhaar under Privacy violation charges and had been preparing for the same in the last several months. They thought that with the assistance of some technical experts, they can show case the security weaknesses of Aadhaar and get it scrapped.

The Prashant Bhushans, Dushyant Daves, Kamini Jaiswals, Indira Jaisighs, D.Rajas, Rahul Gandhis etc are all there to ensure that the Supreme Court can be influenced by managing friendly benches in the Court. They were first frustrated by the CJI who is not playing ball in distributing cases as per the wishes of the political opponents of BJP.

Now, UIDAI itself seems to have wken up from its slumber and making some vital moves on improving the security of the system.

First such move of UIDAI was to harden the security with the Virtual Aadhaar ID. Leaving aside the argument that this should have come earlier, the security specialists have lost an important battle because of this change that UIDAI has proposed. Now they have to wait for implementation failures before the next round of security related vulnerabilities can be raised.

The other category of complaints were from politicians and NGOs who were complaining that people are dying because of Aadhaar authentication failures. There were many such complaints brought out in the Bangalore consultation of the Data Protection Bill. Here the complaint has been that many poor people have been denied of the rations because their Aadhaar was not available. Some of these instances may be real but the problems are not because of Aadhaar. It is because of other factors including lack of awareness and lack of effort on the part of the subjects. NGO s who are now complaining should devote time in assisting these poor people rather than creating statistics of who dies because of non availability of ration.

The Face Identity now introduced by Aadhaar would address this issue and say that  those who could not get their finger prints accepted, can now provide face recognition.

The concept is having potential and we should see how the implementation goes.

It is possible that teething troubles may come up for both the schemes namely the Virtual Aadhaar ID and the Face recognition and they will again be highlighted by Aadhaar baiters as reasons why Aadhaar should be discontinued. But the problem for them is that in the immediate proceedings before Supreme Court, the Government will be able to put up a strong defense which may be enough to atleast prevent any catastrophic decision from the Court.

I would however like UIDAI to consider this as a reprieve for the time being and ensure that in the breathing time now available, they try to address other problems before any major disaster occurs.

I suggest some of the following specific things to be done in this regard.

  1. Introduce a good Bug Bounty Program that rewards security professionals who can spot vulnerabilities and reward them handsomely. This will create an army of friendly security professionals who will be on the side of the UIDAI rather than on the other side.
  2. The Bug bounty program should be extended for disclosing the vulnerabilities even at the AUA/KUA and Merchant level so that the entire Aadhaar ecosystem is part of the Bug bounty program and not only the CIDR. This will also be good to protect the ego of UIDAI since they may otherwise find it difficult to admit that there could be vulnerabilities even in the systems under their control.
  3. The face recognition system which becomes available can be also used with other innovative systems of integration with the Virtual Aadhaar ID, multiple biometric records and OTP to develop a combined security algorithm that not only is difficult to break in the future but also creates a cover for the data already lost. UIDAI needs to shed its complacency and work towards improving the security to ensure the survival of the system for their own good and for the good of the society. How this can be done is outside the scope of this discussion.

The net impact of the recent measures of UIDAI is that Supreme Court cannot blindly take the argument of the of the anti-aadhaar lobby and jump to conclusions. They will have to atleast make an attempt to consult other experts to find a credible argument to oppose the new system. This will take time and hence there is a new lease of life for Aadhaar for the time being.

Beyond this, we need a bench where four out of five judges would be friends of left parties and activist advocates to convince them that Aahdaar should be scrapped. Hopefully such an opportunity will not arise.

I am not also convinced that the opposition to Aadhaar is firmly grounded in the “Privacy Debate”.

The argument is that linking of “Aadhaar” to PAN or other activities on a “mandatory” basis is a violation of the fundamental right under Article 21 of the constitution. The linking of Aadhaar to another identity such as PAN by itself cannot be considered as “Disclosure of Privacy Information” which is also “Unatuthorized”.

The IT authorities may in their IT returns take a “Consent” (If they are not doing so far, they can do so now) to make the information available to Government agencies for purposes of Governance and efficient tax collection.

No Citizen should be considered as having a “fundamental right to hide” and refuse to allow the Unique and Universal ID called Aadhaar to be used  for tracking other activities that are directly or indirectly relevant to the proper Governance of the nation.

All arguments now are that “Government is incapable of information security and therefore the linking of Aadhaar is indirectly a failure of the Privacy protection”. This argument has been substantially weakened after the current moves.

At best, more assurances from the Government may be called for to provide confidence to the public. There can be better checks and balances at the intermediary Aadhaar end to check misuse and make the intermediaries solely liable for security failures.

This liability of the intermediaries is already available since they provide services to the public under a contractual consent and if these are not fulfilled, they are answerable under ITA 2000/8 and/or the proposed new Data Protection Act besides the penalties under UIDAI act.

In view of the above, Aadhaar may get over the crisis for the time being.

Just as Hardik Pandya in future will not forget to ground his bat while running, UIDAI should not forget to  ground the bat within the information security precincts.

Naavi

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Privacy law cannot be only a tool for hiding oneself

Posted on January 15, 2018 by Vijayashankar Na

We often say that “One person’s right to extend the arm ends at the tip of the nose of the next person”. This is a well known cliche but often forgotten by those who are over enthusiastic on “Privacy” including the judges of the Supreme Court.

We are now in the midst of the drafting of the new Data Protection Law and there is all forms of demand on how the Privacy has to be protected.

There is one school of thought that “Privacy” has to be protected not only in terms of Information but also otherwise. In the GDPR there was mention of information processed “by automatic means” or “Semi automatic means” as the scope of the act. Now the Indian Data Protection Act (IDPA)for which the B N Srikrishna Committee published a white paper is finalizing the recommendation on the scope of the act. Should it be applicable only to “Electronic Information” or should it extend to “Paper and Voice” is one question that the committee has been posed.

We must shout out aloud at this point of time that the erudite 9 member Supreme Court which hurriedly passed a 547 page judgement just to declare “Privacy is a fundamental Right” abdicated its responsibility to define what is Privacy.  How can we then force the law to define “Privacy”? and to extend it beyond the “Electronic form” in which “Data Protection” is being discussed by the committee?.

It is therefore essential to accept the limitation that this new proposed law (IDPA) will have to restrict itself as a “Data Protection Act” and not as a “Privacy Protection Act”. Since Data is already protected in the ITA 2000/8, we can say that IDPA will now be a “Privacy Data Protection Act” meaning that it will only address information related to Privacy.

Since Privacy is not defined, any attempt to protect information about the vague entity called Privacy will also be reasonably vague. Hence the scope will have to use such words as

“Information such as Name, Address, Mobile Number, E Mail Address, Financial Information, Heath Information, Biometric information etc..”

Presently we leave the definition as any information that is capable of identifying or associating with a living individual. Nothing much can be done beyond this definition of Personal Information. If some software or person is clever enough to see some information and identify a living person through it through his clairvoyance, we cannot factor it into the definition beyond use of such words as

“Personally identifiable information includes any information which along with other information in the hands of the person could be used by any prudent person with ordinary capabilities to identify the true identity of the owner of the data”.

It can also state…

” Personally identifiable information does not include de-identified/anonymized information  or pseudonomized information which means that the identity apparently associated with the data cannot be reasonably used to identify the real identity of the data owner by a person of ordinary prudence with the information already in his hands?”

While “De-identified” data will go out of the legislation, there is a view by some that any attempt to “Re-identify” a de-identified data should be made a criminal offence.

While privacy activists can make a good case for sending the person who causes re-identification to the gallows if allowed, one must understand that it is the duty of the “Law Enforcement” on a day to day basis to read available information and try to identify criminals both present and potential. Many scientific data analytics including genetics try to identify the “Tendencies” to be a criminal. May be this is not a perfected science. But today scientists and law enforcement people browsing through CCTV footage and trying to identify people with face recognition features etc or identifying Car number plates to file a traffic violation case, can all be accused of “Identifying a De-identified data” and punished  if the law to be made does not take the possibility into consideration.

Further all the Data Analytics companies will be made “Illegal Activities” ab-initio. All Start ups in this filed have to close down.

If therefore “Re-identification” of “De-identified data” is made an offence, then we will be creating a new data protection regime in which the proposition that  “Data is New Oil” will be killed. Perhaps economists can estimate by how much percentage points the GDP of India will decline if this is made into a law.

The Google Glass technology is meant to view a person and immediately check the tags in Face book and Google to give you a flash back of the person you are now shaking hands with. Is it not “Re-identification” of the “Not identified”?. The entire industry of Artificial intelligence including the “Automated Car” , “Smart City Energy Management” etc uses plenty of data analytics which includes identification of the un-identified with the use of available data. Gait recognition is the new terrorist control measure that intelligence agencies use. Profiling of employees through their non verbal communication is a new science under development. Analysing social media information and developing a credit rating is another area of scientific research.

Should we kill all these innovations because some criminal wants to have the right to hide as part of right to privacy?

All those Privacy activists who strongly support Privacy to the extent of making the work of law enforcement impossible should think for a while on whether we have any need to protect the honest from the dishonest who want to hide.

I have recently quoted two instances in which I see how Privacy laws are protecting the criminals more than the honest and challenge the Privacy activists to prove me wrong.

First, I get an e-mail from a  Gmail ID which is either a fraudulent mail or a defamatory mail or a threatening mail. I am the recipient of the mail but the sender hides his identity with the help of Google by anonymization of the IP address.  The recipient of the e-mail which is me, have no right to ask Google to tell me who has sent me the e-mail hiding behind a self created pseudonomized ID.  If I want to know the identity of the person, I need to first approach the Police, get my complaint registered which may require payment of a bribe in most cases,  make them send a CrPc notice, wait for Google to send the IP resolution, thereafter send a similar request to the local ISP and finally get the address of the person who sent me the offending e-mail. All this takes so much time that by the time I get the information the criminal is no longer traceable.

This criminal friendly situation has been created because Google considers that the Privacy of the sender of the e-mail is more important than the Privacy of the receiver of the e-mail. This is a gross misuse of the concept of Privacy.

The same defense extends to all those who register fake websites and carry out phishing attacks. Their registration details are protected under what is termed as a “Right to Privacy”.

This practice of Privacy being used as a shield to protect criminals must be stopped.

Hence apart from the IDPA not criminalizing re-identification, a punishable offence, the law should not curtain the hands of the law enforcement by enabling Privacy to be used as a shield either by Google or any other web operator.

What should be punishable is the misuse of the re-identified data and posing unreasonable hurdles on re-identification when a genuine stake holder such as a receiver of an e-mail or a visitor of a website demand for the information. The Data controller can ask for an undertaking from the recipient not to misuse the information such as the IP address or telephone number and also have a process by which such demands are logged in with the Data Protection Authority to take further action when required.

But a refusal to divulge the information that protects the criminal should be itself made a crime.

I therefore request that in the IDPA, a provision is made where by a recipient of an E-Mail or a phone call or a visitor to a public website or a Twitter or Facebook is entitled to demand the identity of the sender of the communication with an undertaking not to misuse the information and be accountable for any punishment thereof and escrowing such request and declaration with the Data Protection authority.

Naavi

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Public Consultation on Data Protection Law….some points of discussion-3

Posted on January 15, 2018 by Vijayashankar Na

(This is a continuation of the previous article)

3.  A lot of discussion centered around the issue of “Consent” and “Informed Consent”. The issues were about the need for and effect of consents as an instrument of Privacy protection. There were also suggestions that consents should be applicable by processors also, consents should be standardized and simplified etc. The fact that India consists of illiterate users with multiple language use also was highlighted. The difficulties of handling “Employee Records” when the companies want to change the processors was also raised.

Comments:

It is true that “Consent” has been the main instrument with which Privacy protection is being handled worldwide. The focus has been that there has to be a proper Privacy Notice, there has to be an “Informed Consent”, the opt-out  should be the default option etc.

Consent Fatigue

At the same time the issue of “Consent fatigue” where by users are required to go through multiple consent forms several times during the day which makes them click on consents as a routine manner is unavoidable. If we continue to deal with “Consents” then we need to find a way to address the “Consent fatigue” issue.

Though the “Click Wrap Consents” donot have a strict legal validity in India, they still constitute a means of finalizing “Contracts” online which would be considered as “Implied Contracts”. Implied contracts have the short coming of being “Voidable” in respect of onerous fine print clauses and would not help either the consumer or the service provider at times of crisis.

In India, at present Section 43A of ITA 2008 provides “Contractual Consent” as the prime method of defining “Reasonable Security”. Hence when an employer obtains a valid contract with the employee at the time of employment which includes the right to process personal information, it can be considered as a “Consent” that can enable the employer to over ride the privacy obligations. Companies with multi national employees also are subject to the same law through many corporate seem to fear international regulations and consider their local rights as non existing.

The system of “Consent” cannot be changed. It will continue. However efforts to make it better in terms of making the user understand the nuances before he clicks the acceptance button and highlighting the onerous clauses to make them effective even in a deemed, standard form , implied contract should continue.

One of the suggestions made was to have a few standard form of consents which are colour coded so that the user knows exactly whether he is giving consent to a “Green Clause” with less amount of personal information being made available to “Red clause” with more information disclosure and risk were suggested.

These suggestions are also dependent on classification of data which includes special form of data which are derived from the data supplied by the data subject and converted into a more value added form. There are data such as “Psychometric data” or “Genetic data” which could be derived with effort from the Data collector. Assigning rights on them and restricting data aggregation and use of value  created out of aggregation is a challenge.

Some suggested that we need to even recognize “Community Data” and protect them.

Ease of Doing Business

It is essential for us to understand that in designing the new law, we cannot go overboard with all minute concerns real and imaginary. We need to look at creating a law that is possible to be understood and implemented. “Compliance” should be facilitated so that industry does not look at this as a “Hurdle” and the “Ease of Doing business in India” does not deteriorate.

Value Addition to Data

Also the possibility of the Data collector doing an analysis and creating additional processed data which is more valuable cannot be completely taken out of the rights of the processor. Even if the basic data belongs to the data subject, the derived data has an element of value addition by the Data collector which needs to be rewarded.

Some examples of such derived data pointed out by the participants included “Energy Consumption Data” and “Psychometric data” which may be extreme cases of artificial intelligence usage which are more for fiction writers of the future rather than the law makers of today. If “Data Analytics” is a key area of business in future, then it is possible that data can be used in multitude ways by technologists and law can only be set in generic terms to cover the “Identifiability” of data as a parameter of regulation.

The classification of “Identified” and “Identifiable with available data” and “Identifiable with further data that may be derived or available through instances such as mergers and acquisitions etc” need to be addressed. However, the level to which Artificial Intelaigence can go in future is not known to us today and hence some loss of privacy has to be factored into the legislation today. This can be introduced in the form of differential penalties when data is breached depending on the level of security that the Data controller demonstrates as having been used before the data was lost.

Data Trust as an intermediary

Considering these difficulties, there were multiple suggestions which came back to the central point of what we have suggested earlier as a “Data Trust”. These intermediaries can be instruments of effective collection and use of consents. They can also monitor the Data controllers and impose discipline in the industry. The concept has already been discussed earlier and hence it is not repeated here. But if it is accepted, there would be an instrument of managing “Data” as a “Property of the data subject” which is licensed to the Data Controller through the Data Trust. The Data Controller who makes revenue out of the data has to bear the cost of this infrastructure by sharing some of his spoils with the Data Trusts so that the consumer does not end up incurring higher direct costs. But the Consumer may be able to get better data security in respect of his Privacy information.

Many participants discussed the concept of “Co-regulation” where the Data controllers would participate in the last mile control of data security. The law may also end up not being too prescriptive and leave it for the Data Controllers and Processors to “Secure” and in case of failure, “Pay a penalty”.

Recognizing the importance of monitoring the activity of the Data controllers, some suggested that there should be public accountability and auditability of data controllers etc. Most of these are impractical and  from the security point of view are not recommended also. The processing infrastructure in most cases cannot be publicised and hence the only recourse is to get proper warranties and punish negligence adequately to ensure that Data Controllers maintain the security of data.

In such a regime, it is preferable that instead of regulating hundreds of Data Controllers, if we have  fewer “Data Trusts” it would be better from the point of view of management and regulation. Thus, the concept of Data Trusts present multiple advantages that need to be recognized by the law makers… is our suggestion.

Privacy Vs Law Enforcement Requirements

Naavi also pointed out that in many instances, Privacy Protection is used as a protection against law enforcement detection. Hence there is a pressure on law makers to include stringent prescriptions and not yield to any exemptions to be given to law enforcement. This is not ideal according to us. Privacy Protection is as much for honest citizens who consider law enforcement as their protectors and hence law should take this into consideration.

Data Tagging

In suggesting protection for data when it moves from one data controller to a data processor and subsequently to many sub contractors, a discussion ensued on whether it is possible for data to be tagged in such a manner that it can be traced wherever it moves so that it can be erased when necessary and updated when required. Many participants felt that this is technologically feasible and must be implemented through law.  However, the undersigned is of the opinion that “Personal Data” collected by a Data collector does not always remain as a single document that can be tagged when it is moved further. The collected data contains many data elements and sub data elements which may be split, distributed and re assembled elsewhere in a different context. Hence putting a traceable and auditable tag on personal information is not technically feasible and hence cannot be mandated. Instead mandating the legal responsibility to protect through sub contractor’s contracts is the only feasible option which can be put into the law either in the main law or through sectoral laws or regulations. This is already being done as a standard industry practice.

Cyber Security obligations

Repeated requests were made to mandate “Cyber Security” as part of the data protection laws. It would be introduced  as an obligation of the Data Collector (or the Data Trust) and certainly there is no case for a prescriptive information security policy being part of the main legislation. This is part of HIPAA legislated in 1996 and is relevant for sectoral laws and not for the umbrella law.

Foreign Data Subject

Discussions were had on “Data of Non Nationals” whether it should be covered or not. This is an important issue which should be part of the scope definition. When the personal data of any body including a non national comes into the hands of an Indian Data Controller or Data Collector there will be a contractual agreement between the data subject and the data collector. This should define the data protection obligations and should provide primacy to the Indian law by default. In our opinion any demand that such individuals directly dealing with Indian data collectors refusing to abide by Indian law is forcing the Indian data collectors to follow an alien law instead of the local law. This is not recommended for acceptance.

In the event of a foreign data subject coming through a foreign data collector/Controller who entrusts the data for processing to an Indian data processor, the obligations need to be set into a Business Associate/Sub Contractor contract and other things should be subordinate to the contractual obligation. This is the law in India under Section 4#A of ITA 2000 and must be respected.

Certification

One aspect that did not come up for full discussion was whether there would be any certification bodies that would certify the Data Protection in different agencies like the standards certifying bodies.

It is known that most data breaches have occurred in bodies that have been certified under PCI DSS or ISO 27001 etc. The presence of such certificates make the management complacent and reduce their vigilance. Instead the responsibility should remain with the management and they may be permitted to use any standards to achieve the objectives of securing the privacy data. It should be the choice of individual organizations to chose any standards external or internal, resort to certification or otherwise. The Data Protection Authority may however have their own standards for auditing and they may use any auditing firm including PWC as they so desire as long as the assessment is on the basis of the law as defined and not on other considerations.

Privacy After Death

A point was raised by the undersigned on whether Privacy Right should persist after death. Though not discussed in the general forum, it was pointed out by the undersigned that “Privacy” as a “Right to Life and Liberty” has no meaning after the death and Privacy of an X individual cannot be enforced as a right of Y. If a person has a deemed Privacy issue, it should be handled as a “Defamation” or “Attempted Defamation” issue rather than the Privacy issue. Hence the protection obligations should cease after the death of the individual.

Naavi’s Detailed Comments

A copy of the written response to the questionnaire from Naavi was submitted to the Committee. It  has incorporate the points mentioned here. The final version which may be submitted before 31st January 2018 will also be posted on naavi.org whether they are considered by the committee or not.

Post Script:

We close the recollection of the Public consultation exercise at Bangalore on 13th January 2018 in Bangalore here. We might not have recollected all aspects of the discussion. Omission f any is not intentional. I invite other participants to add their comments if any.

We shall continue to submit our own thoughts on the subject here in the coming days as well.

Naavi

Links to all the three parts of this report of the consultation are available here

Part I

 Part II

Part III

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