Naavi.org

The recent issue of a draft encryption policy caused acute embarrassment to the Government of India and had to be withdrawn almost instantly because of the immediate opposition it raised.  Commenting on its withdrawal,  we had suggested that an enquiry should be ordered on how such a shoddy policy document was released to the public and whether it was done to embarrass the Minister.

We now understand that an enquiry has indeed been ordered to identify the individual responsible for the release of the shoddy draft and to give him an “orientation” on how to communicate on such issues.

In the meantime, the report also quotes S.D.Saxena, former finance director of BSNL that the document was prepared by a team of officials and bureaucrat.

I suspect that this is an attempt to defuse the blame and protect a mole who could be a mischievous person wanting to discredit the present IT minister and probably even Mr Modi who was about to embark on his US trip. There is distinctly a reason to suspect Conspiracy by a team of officials owing loyalty elsewhere. This is what the enquiry needs to find out, namely the political orientation of the person who was responsible.

One reason why I suspect that everything is not normal in this case is the way the notifications are presented including the latest withdrawal note

The copies of these three notes are available  here.

1. Encryption policy
2. Clarification
3. Withdrawal

All three notes are supposed to be official documents from the Government of India. But they have not been issued on a letter head or a typed mast-head in the name of the department. There is no signature in any of these notes. (Obviously there is no digital signature on the electronic copy as well”. If the policy was attributed to a “High level Expert Committee”, then the secretary of the committee or its chairman should have signed the document. The posting on the deity website and the presence of a contact email ID in the draft policy are the only indications that this is an official communication.

This is not the way we know the Government functions. The policy must have been drafted and forwarded to the IT Secretary who should have approved it. At least a Director of the department ought to have owned up the note and signed. The clarification and the withdrawal note appear to be simply photocopy of a chit of paper on which some typewritten notes are scribbled.

The fact that unsigned documents are being released on official websites itself is highly objectionable. Tomorrow any hacker can post such documents on the Government websites and further embarrass the Government.

Hence the responsibility should be fixed in the department not only for the content of the note but also on the manner in which a global communication was released through an unauthenticated letter.

I wish that the issue should not be closed just by finding a scapegoat at a lower level bureaucrat but identify the real mole who could be behind a conspiracy and who may not after all be a junior scientist.

The enquiry should therefore be conducted by a trusted team of appropriate officials from outside the DeitY and cover the entire department.

Naavi

The International Association of Privacy Professionals (IAPP) and the Indian Bar Association (IBA) organized a conference in Bangalore on 23rd September 2015 and discussed several aspects related to Privacy in the emerging Digital India. Eminent speakers from the industry participated and interesting and useful information was exchanged.

The undersigned was part of a panel which discussed the theme “Privacy in Doldrums-Adapting to the Information Age”. The panel was moderated by Mr V.Rajesh Kumar of Infosys and consisted of the following members apart from Naavi.

Indranil Choudhary, Founder & CEO, Lexplosion Solutions, N.S.Nappinai, Advocate & Founder Technology law Fortum, Kavita Babu, Senior Attorney, Microsoft India and Suchanto Chatterji, Advocate & Cross Border Transaction Advisory, 5E Legal.

The panel was presented with several issues and Naavi’s views on the same are presented here for general information and academic debate. Some of these views were expressed during the panel discussion while some were answered by other members on the pane.l.

The views expressed here are Naavi’s personal views and not of the panel as a whole.

Naavi

1.Is Adhaar a well-conceived initiative?

How can we bring more trust within its implementation?

How to bring accountability and transparency within its overall working?

Aadhar was conceived as a National ID program where the data about an individual along with his biometrics would be stored on a database and users would be able to query on individual parameters based on a biometric input and get a “Yes” or “No” answer. The scheme envisaged collection of data by authorized agents in a control environment and did not envisage transmission of the adhar linked information across the network.

There have been many issues in the registration process where information was compromised, aadhar numbers were issued to fake persons etc. Apart from these, presently, Aadhar is being used in a manner different from what it was conceived. UIDAI is sending a Aadhar letter with a perforation for cutting out a portion and making it into a “Card”. Also eadhaar is being issued online containing all the information except the biometric data. Many users are using aadhar for KYC purpose.

In view of the fact that e-aadhar information can be downloaded easily , we may consider that the aadhar information has already been compromised. We can do little about it. The problem therefore is not in how the scheme was conceived. But in how it is being used now.

We know that in India we donot have protection of Privacy as a a concept that Human Right Activists believe is a need of a democratic society. We  try to provide indirect support to Privacy Right Concept through “Data Protection or Data Privacy”.
We try to protect the privacy of an individual in physical space by controlling the data available in the cyber space. Hence the link between the data and the identity of the person becomes the key to “Privacy”.

Aadhar being an identity instrument, it has an impact on Privacy since the aadhar data is  identifyable to a living person in physical society. Hence protecting aadhar information from being accessed without appropriate control is necessary for Privacy protection. This however is not being done effectively at present.

What we can do however is that all intermediary users such as Banks should be mandated to use the biometric as the end point verification instead of the photograph.  Also downloading of the entire aadhar particulars should not be allowed except to the aadhar holder and with the biometric.

This may not protect the privacy of Personal Information but may prevent identity theft possibilities to some extent.

2. How can we balance freedom of expression (Section 66A) guaranteed under the Indian Constitution with the growing thrust from government to sneak into every dataset created, shared and deleted?

 Section 66A in my opinion did not address “Freedom of Expression”. It only addressed one to one communication through SMS and E Mail and was wrongly applied to cases of Facebook and Twitter posting. It was unfortunate that Supreme Court scrapped it since along with it offences such as phishing, spamming, Cyber Stalking, Cyber Bullying etc were also dropped.

Freedom of Expression is related to Right to Privacy.   As between Right to Privacy and Freedom of Expression, Freedom of Expression has a higher value as protector of Democracy. However the real conflict is between Right to Privacy and the Need for Security. We need to balance between these two.

3. What are the current gaps that exist in the IT Act and IT Rules? 

IT Act addresses protection of Personal data and Sensitive Personal data and treats the contract between the data supplier and the data processor as the basis of control. The IT rules generally follow the internationally accepted principles of Privacy protection though implementation is still at a low level. Companies tend to focus more on compliance of  Best practices such as ISO standards rather than liability preventing ITA 2008 compliance.

4. Can privacy right become a means to achieve the balance between expression and encryption? What about anonymity? 

It is not a question of “Can”. We should conceive the system in such a manner that Privacy and Security co-exist.

If we pitch Privacy Right directly against Need for National Security, Privacy will always lose out since individual right is always subordinate to community right. Hence if we want Privacy, we need to learn how we can build a system where the Privacy and Security coexist.

I have therefore been advocating the concept of “Regulated Anonymity” where “Anonymity” is provided to an individual as a protection to his privacy but will be regulated through a system which will ensure that national security will not be compromised.

This requires “Trusted Intermediaries” to hold the anonymizer data and a system to monitor the “Due Process” through which the identity may be revealed in times of necessity.

The system can ensure that the “Trusted Intermediaries” can be a combination of multiple entries so that no single person has access to the de-identification data.

The “Due Process Committee” needs to have public-private participation so that if this committee is convinced of national security needs then the identification of a person can be revealed.

What this system requires is therefore

a) Licensed Anonymizers
b) A Due Process Committee with right constitution
c) Data Distribution system which spreads control across multiple countries.

Now a word about this “Encryption Policy” or a draft which was put up for public comments. It has been withdrawn and is therefore only an issue for academic debate.

What the published draft policy indicated was that the departmental officials did not understand Section84A requirements. The section only wanted modes and methods of encryption to be indicated. CCA had already defined the modes and methods for asymmetric cryptosystem and if the “Notification” was at all necessary, it could have confined to stating that the algorithms to be used in any symmetric systems shall not be weaker than …..

There was no need to state that it should not be stronger than ….. and people should preserve plain text copy etc….. ITA 2008 already provides powers under Sec 69 to demand decrypted copy and ensure compliance. It could have reiterated this aspect and left it to the market players to use their own means to archive data for compliance of Section 69.

What may be more relevant is to take a second look at the procedures prescribed under Section 69 and refine it.

The MCIT has forgotten that there is a Cyber Regulatory Advisory Committee which has to mandatorily pass such modifications to ITA 2008 and could have cushioned the PR impact of this bad decision.

Hope they learn their lessons now.

5. Every business wants to create personalized experiences for their customers by ‘targeting’ and stalking them throughout their browsing sessions. May be its an acceptable way of doing business in many countries. What about the profiling that results due to such invasive data collection? There are many identifiers collected when Internet sessions are stalked. What can be done to tame the overzealous ambitions of such data brokers? Can self-regulation within Indian legal system be achieved? 

The pull of business profit is too strong and policy cannot swim against this tide. The Big Data Industry is conceptualized on obtaining as much data as possible whether identified or otherwise and try to identify them in the back end and convert it into value propositions.

Privacy is a lost cause in this business dominated world. More than for security reasons privacy gets compromised for such profit considerations.

Solution is to tighten the screws on data breach and also protect the Netizens for identity theft consequences through a mandatory Cyber Insurance scheme.

6. Right to Privacy may soon become a court pronounced fundamental right. Till then, and even after that, will there ever be a statutory Right to Privacy? Technology is taking giant leaps forward while laws are crawling behind. Doesn’t this impede our efforts towards preparedness against a foreseeable cyber warfare? What will Digital India stand upon? 

As I already said, Privacy cannot win the fight against National Security because we exist as individuals in a democratic society only if the society is healthy. In this matter, Privacy Right is different from Freedom of Expression right. Freedom of Expression is required to protect democracy. Privacy right abrogation may also be required for preserving democracy.

7. Our efforts towards gaining ‘adequacy’ of data protection law under the EU standards have been minimal. While the world waits for and anticipates a tougher GDPR, is India ready to showcase itself as a ‘safe’ country? While other Asian countries have already taken positive steps in this direction, what would India need to gain acceptance globally? 

India is a country where if personal information is not protected as agreed to under a contractual agreement, the CEO of the data recipient company may go to jail for 3 years under Section 72A of ITA 2008. If out of the negligence of the recipient company security of PI or SPI is breached, there is financial compensation unlimited and 3 year jail under section 66.

Right to erasure is inbuilt in information security principles subject to the exception of law enforcement needs and data retention needs under Section 67C and 65 of ITA 2008.

We therefore have the necessary legal foundation to be a safe county.

What we lack is implementation and communication. If we all strive for ITA 2008 compliance more than what we do for ISO 27001 compliance, or PCI DSS Compliance, data in India would be safer.

8. Though the EU BCR and APEC CBPR have many things in common, will there be an even ‘better than good’ solution to the varying data protection rules and regulations? Can ‘Corporate Privacy Rules’ be standardized to make it easier for MNCs to apply single set of policies across different jurisdictions? What are the challenges? 

Probably industry bodies may work towards standards which work for their specific industry based on ITA 2008. If a company is exposed to data security compliance requirements from other countries, the standards  already implemented under iTA 2008 can be mapped to the other specific requirements.

Information Security auditors are some times required to conduct a “Software Source Code audit” to find out if the software is reliable and does not have any malicious codes embedded there in which may violate the privacy of the user or commit any other frauds.

While such audits are normally  conducted with the permission of the software supplier, many software vendors donot permit such audits since according to them it may compromise the intellectual property rights associated with the software. The software vendor may claim that the code is “Proprietary” and is subject to protection of copyright.

While some users may obtain and rely on the appropriate warranties and indemnities from the vendor and use the software in good faith, their faith has now been shaken by the Volkswagen fraud that has revealed that even reputed companies may resort to organized cheating if there are opportunities presented to them in the form of  “Copyright protected software codes”.

The unsavory incident in which the Company manipulated the software element (More details on the modus operandi available here) to cheat “Emission Tests” has made it necessary for all software users and regulators to distrust the vendors of proprietary software and look for some means to conduct software code audits in the interest of its own security, even when the vendor does not permit it .

However there is one catch here. If a company wants to conduct a software source code audit despite the vendor not permitting it in the end user agreement, there could be not only violation of the contractual terms to contend with but also possible violation of the copyright Act.  Contractual violation is easier to handle since there may be a protective clause in the same contract which may entitle the user to protect his own Privacy Rights. But violation of Copyright law is a sensitive issue and needs a deeper look.

Proprietary software is protected by copyright laws and any attempt to unravel  the code could be treated as an offence under the Amended Indian Copyright Act or DMCA . The owners of such software zealously protect the secrecy of the code and may invoke these provisions if necessary. At the same time this right to secrecy may be used for incorporating back doors to extract data from the user end without his consent as well as to commit frauds like what Volkswagen did. In a software scenario, this may make the end user liable to some of its clients also. We can recall that some time back there was a report of some software manufacturer incorporating a bitcoin mining code in the software to produce bitcoins for the benefit of the software vendor at the expense of the user’s resources.

While Volkswagen type of frauds are punishable offences in India as “introduction of computer contaminants”, copyright is still a sacred cow and the last amendments to copyright act  protect  “Digital Rights Management” along with the right to introduce measures to prevent circumvention.

Under Section 65A of the amended Copyright Act,

“Any person who circumvents an effective technological measure applied for the purpose of protecting an of the rights conferred by this Act with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable for fine.”

Any attempt to unravel the source code would also attract Section 65B which says

“Any person who knowingly, (i) removes or alters any rights management information without authority …… shall be punishable with imprisonment which may extend to two years and shall also be liable for fine.”

Hence an attempt to peek into the raw source code contained in an executable software may attract the penal provisions of the Copyright Act.

Though there are exemptions of this provisions for certain reasons such as “National Security”, which includes “Doing anything referred to therein for a purpose not expressly prohibited by this Act”,  it is  not clear if the exemptions cover the unpacking of the code for the purpose of identifying whether or not it contains any “Computer Contaminant” as defined under Section 43 of ITA 2000/8 which would also be a cognizable offence under Section 66 of ITA 2000/8.

However, a logic can be claimed that if there is any prima facie reason to suspect that the software is violating any provisions of law, then “For reasons of preventing commission of any cognizable offence”, a software source code audit/research can be done without attracting any adverse effect of the copyright Act.

It is possible that any software contract may provide a condition that the “Software shall not violate any provisions of ITA 2000/8”. If therefore there is a suspicion that there could be a possibility of such violation, we are actually having a legitimate reason for conducting a software source code audit.

It may however be necessary that the Company may have to build up some evidence to “Prove the Suspicion” before proceeding with such audits and also ensure that the audit is only to secure its interest and not to copy the proprietary information contained within the code.

Now that it is public knowledge that even a reputed auto manufacturer of the status of Volkswagen can incorporate “Trojans” and “Computer Contaminants” in proprietary software, users of any proprietary software have an immediate reason to check if the proprietary software they are using are bound by proper contracts of indemnity and right to conduct a source code audit.

If there is a reason to believe that any malicious code in the software could violate their own privacy or may impose legal liabilities on itself, the company can consider conducting software source code audit and defend against any challenge that can be launched under the Copyright Act. It is however necessary to document the reasons in a “Pre-Audit Study” and appropriate measures to ensure that the information is not misused either by itself or its employees in future.

If a company does not want to be that aggressive, it is necessary to identify the Volkswagen fraud as an indication of a “Threat” and as a compliance measure it may be worthwhile to get additional written assurances from the proprietary software vendors that the software does not contain any “Computer Contaminants as defined under Section 43 of ITA 2000”.

Naavi

In a strange corporate offence committed by Volkswagen, 11 million cars are set to be recalled and the Company is set to face a penalty of around $37500 per car for failing the emission norms. The CEO obviously has resigned. Company shares are down by over 40% and the entire Stock markets across Europe and even India has dipped causing heavy losses to millions of investors. The Company is reported to have set aside US $6.5 billion for recall of cars but may fall well short of meeting the total liability estimated to be over $18 billion.

Unless some compromise is worked out, the company may go into liquidation inflicting losses to many lenders and equity investors.

It is interesting to analyse the cause of this catastrophic incident and whether it fits into a definition of a Cyber Crime. (Based on news paer reports)

The issue involves a software that the Company has installed in the Car. This software recognizes when the Car is put through an “Emission Test”. If it recognizes the emission test, it tweaks the emissions so that it falls within the permitted levels. In other times, the emission levels are at normal levels which is said to be 40 times beyond the permitted limits.

It is stated that if the Company has to bring down the emission levels to acceptable levels, there could be a need for more investment and it may also reduce the mileage. So the Company thought of this innovative method by which it could save on manufacturing cost, keep the mileage at required levels and also cheat the emission testing process. A truly innovative strategy in which the entire Company must have been involved.

However this is nothing but cheating of the customers and the regulatory requirements. Since it is done with the malicious intention of increasing the profit of the Company, it is a “Fraud” by definition. Since a “Software” is used in commission of the crime, we can term this as a Cyber Crime. In fact, the behaviour of this software is like a typical Trojan set for a “Man in the Middle Attack” under some specific conditions.

The nature of the offence is a little complicated and while it may contravene the emission regulations and also be a fraudulent misrepresentation to the customers, it would be interesting to debate if it is a Cyber Crime under the Indian laws.

The behaviour of the software that detects an emission test and modifies the normal behaviour of the vehicle so that the testing computer gets a “manipulated data” qualifies it to be called a “Computer Contaminant” under section 43 (c) of ITA 2008 since the owner of the vehicle is not aware of this deceptive behaviour and has not authorized it. . The modification of data is also an offence under Section 43(i) separately. Being a contravention of Section 43, it is also an offence under Section 66 involving criminal prosecution. With Section 85, the CEO and other officials in charge of the business as well as the Directors will also be criminally liable.

Related Articles:

abc.net

The Telegraph

home.bt.com

It is regrettable that a reputed company like Volkswagen should have indulged in such an unethical practice which is also a Cyber Crime. If the case is pursued to its logical end, it is not only the CEO but also several of the Board members and other executives who may find themselves cooling their heels in prison.

This should be a wakeup call to Indian Auto manufacturers like Maruti who are also incorporating several electronic circuitry into the management of the car and each such component would be like a “Computer”. They can be hacked by outsiders or mis used by the company itself if it does not realize the impact of the relatively less known law called Information Technology Act 2000/8.

Naavi

According to latest information,  the Government has completely withdrawn the draft Encryption policy announced last week and put up for public comments.

A new policy may be drafted and released in due course.

Hopefully, this time it will consult the right persons before the policy is publicized.

Naavi

P.S: It would be interesting to know who owns the responsibility for the badly drafted policy which was under gestation for nearly six years from the day ITA 2008 was notified on 27th October 2009. (Observe that the policy is not on a letterhead and not signed. The addendum is just a note on a piece of paper again unsigned), It has given an opportunity for certain opposition political parties to score brownie points. Was it the hidden agenda?…. Otherwise it is difficult to imagine if such policy documents can be written by an IAS cadre officer.

The honourable minister Mr R S Prasad needs to conduct an enquiry since this is not the first time the Minister has been painted in bad light because of thoughtless policy announcements. There is a possibility that some body in the department is working at cross purposes with the Minister. If this is not properly addressed now, there will be many more occasions in future where the Minister will have to take the blame for inefficient departmental work. 

Naavi

@17.30

After criticism that emanated over the week end on the draft National Encryption Policy that the Government released last week, Government has quickly made some clarifications.

The original policy is available here

We had provided our comments and suggestions on the draft policy in our earlier post.

We had requested the Government to exempt the individuals from the responsibilities of being bound by this encryption policy and enforce it only through the intermediaries. Others have highlighted the fact that “need to preserve encrypted information for 90 days” is an additional security risk and privacy invasion.

Keeping the upcoming US visit of Mr Modi and possible repercussions if the privacy issue is left un-attended, Government has moved fast to issue a “Clarification”.

The clarification reads as follows:

PROPOSED ADDENDUM TO THE DRAFT ENCRYPTION POLICY

By way of clarification, the following categories of encryption products are being exempted from the purview of the draft national encryption policy:

1. The mass use encryption products, which are currently being used in web applications, social media sites, and social media applications such as WhatsApp,Facebook,Twitter etc.

2. SSL/TLS encryption products being used in Internet-banking and payment gateways as directed by the Reserve Bank of India

3. SSL/TLS encryption products being used for e-commerce and password based transactions.

(Copy of the clarification text issued. It is unsigned and has not on a letterhead, just like the policy itself)

It is unfortunate that clarification became necessary so soon after the issue of the draft NEP policy. At the same time it should be appreciated that releasing the draft policy for public comments and reacting to it quickly was good. Atleast we can say that the department has been responsive.

Some in the media are however misrepresenting the clarification and stating that “E Banking is exempted from Encryption Policy”. 

This is however not the correct interpretation. E Banking is already been under the guidance of RBI and the G Gopalakrishna Working group has already given elaborate guidelines on E Banking security. Additionally there is an industry level information security standard already in place. The clarification only means that the security need not be limited to what is mentioned in the encryption policy and could be different.

The same interpretation holds for other sensitive departments of the Government which are exempt from this policy. They (such as the Military and Police) need to keep the information encrypted at levels better than what is suggested in this policy.

It should also be remembered that this is only a policy guideline which is subordinate to the law contained in Information Technology Act 2008. It cannot be ultra vires the Act.

The ITA 2008 already has a provision under Section 69 that the Government (through CCA) has the power to demand decryption of any communication. There is no need for this policy to demand decrypted message from WhatsApp or other message systems.

Under Section 67C, there is a provision for data retention norms being set. Government may set here any time limit for retention of data by any intermediary.

Further, any information that becomes “Potential Data related to a cognizable offence” becomes an “Evidence”  and has to be retained for an indefinite period, failure of which can become a contravention of Section 65 of ITA 2008.

These sections 67C and 65 carry 3 years imprisonment and Section 69 carries 7 year imprisonment if the IT user/intermediary does not comply.

For some data to be treated as “Potential Evidence”, notice from law enforcement is not mandatory. Knowledge that the data may hold evidentiary value is sufficient. A notice will however seal the status of some data changing its status to “Potential Evidence” which need to be preserved.

This is part of the ITA 2008 compliance that every IT user need to follow at present and this would continue.

Hence, media should not proliferate the incorrect view that “E Banking” and “E Commerce” is exempt from the encryption policy and inter alia the need to retain data particularly what is suspected to be an “Evidence”.

In the past media by its ignorance created a situation where Section 66A was wrongly painted as unconstitutional and even the Supreme Court Judges were rendered blind to reality and scrapped the section just to correct a false perception. In the last few days, we have also pointed out how Karnataka Government, in its ignorance of Cyber Law has passed a Bill which is ultra vires the ITA 2008 and how the Adjudicator of Karnataka in the past has created an untenable legal situation out of his ignorance of ITA 2008. Now the media highlighting “E Banking exempted from Encryption Policy” will be another mis-perception that would be circulating and will gain acceptance by uninformed.

We need to ensure that this mistake does not happen.

The Government when it issues the final policy should therefore clarify that E Banking and E Commerce are expected to use encryption systems commensurate to what can be considered as “Reasonable Security Policy” under ITA 2008. This will be another Suggestion that we would like to make to the department on the policy.

Naavi