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Building a Responsible Cyber Society…Since 1998

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)


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.


(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.


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.


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.


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

Part I

 Part II

Part III

(This is a continuation of the previous article)

2. One of the questions that arose during the discussions was on the “Data Breach Notification requirements” under the proposed act.

There was one concern of the industry that “Data Breach” reporting to the data subjects should not be mandated and even if required it should not be as immediate as notification to some industry authority etc.

This is a standard response from industry whenever data breach notification is suggested in any data protection act. Industry wants to protect its reputation by sweeping the data breach notification under the carpet. While most industry players would jump at Aadhaar leakage when reported, they would not like a breach in a Bank coming out in the open. Hence the demand that they should be exempted from notification of data breach to their customers.

Some industry players also brought out the issue of a need for time to determine whether a “Suspected data breach” is actually a “Data breach”, whether a “Data breach” is not exactly a data breach but only a “Denial of Service attack” etc and argued that industry should not be forced to report a data breach before it is confirmed.

However the industry agrees that most data breaches need to be confirmed with an audit  and many times the recognition of data breach itself takes months and after the recognition, the completion of the internal audit takes several more months. If therefore the industry demand in this respect is to be accepted, then data breach will never become public for more than an year.

Industry is however not averse to sharing some potential breach information with an industry organisation because they know that the industry organziation can be manipulated and hide the information of the data breach. For example, many wannacry attacks on ATMs of Banks were never reported by Banks and public never came to know of them. Even a major cyber attack on a Bank after the Swift system hacking in Bangladesh, was pushed under the carpet. Given an option even the UIDAI would like not to publicise the data breach reports on UIDAI because it hurts the reputation of the system.

The strong opposition to data breach notification to the data subjects itself indicates that it is a very effective deterrent that industry would not ignore. Hence it is absolutely essential that this data breach notification must be incorporated in the law as a mandate. The time limit in other international regulations is around 30 to 60 days and it would be necessary to make a provision for “Public Notification”  before 30 days.

In case there is difficulty in confirming the data breach because of the need for an audit etc.,  the notice can say that the investigation is under progress and the notice is a “Provisional Notice”.

Some persons also raised the issue of “Cost of Data breach notification” to the data subjects. The notification can be made

a) Through advertisement

b) Through notice in the website of the Data Controller

c) Through a notification in the Data Protection Authority website

c) Through e-mail

In order to further reduce the cost of “Advertisement”, a suggestion was made that  to the effect that Data Protection Authority can create a broadcast platform.  A mention can however be made that such services are already available at www.cyber-notice.com along with Section 65B certification. Industry is yet to recognize the potential of the service and perhaps a need for mandatory data breach notification would make the industry realize the need for such services. 

(Will be continued)


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

Part I

 Part II

Part III

During the discussion on the Data Protection white paper in Bangalore on 13th instant by three members of the Expert Committee led by the Chairman Justice B.N.Srikrishna, several interesting issues came up for discussion. While it is difficult to recall all the points discussed, I am trying to capture some of the interesting points raised along with my comments here.

The comments made here are not that of the expert committee members and should not be construed as views either accepted or rejected by the committee at this point of time. Justice Srikrishna was however a great listener and tried to probe the persons raising questions to understand the issue as much as possible. The ministry representatives have made suitable notes and they are likely to be discussed by the committee later and taken into account before a bill is recommended.

  1. One of the suggestions made was that the law should be people oriented and principle based.

Comment: In India, we still does not have a law on Privacy protection. Except for the fact that we know Supreme Court considers Privacy as a fundamental right of a person under Article 21 of our constitution under “Right to life and personal liberty”, we donot have a definition of what is “Privacy”.

The first question that the Indian Data Protection Act (IDPA) has to address therefore is whether we have one section in which we define what is Privacy. i.e. Do we incorporate a clause in the definitions, stating “Privacy means…..”.

The problem however is that the nine member bench of the Supreme Court itself did not take up the responsibility of defining what is “Privacy” and some of the judges in their respective individual orders (not forming part of the final signed collective operative order under the judgement of 24th August 2017 which we refer to today as the Puttawamy Privacy judgement) made different comments stating different aspects of our life as elements of “Privacy”.

This law therefore cannot take upon itself the responsibility of defining what is “Privacy”.

Currently, Information Technology Act 2000 (ITA 2000) has a definition of “Personal Information” and “Sensitive Personal Information” and has prescriptions of how it has to be protected by Body corporates,(under Section 43A) , how it has to be collected and protected by intermediaries (Section 79 of ITA 2000), what compensation may be available for wrongful loss arising therefrom (Section 43,66, 72A), how long the data has to be preserved (Section 67C), how the data can be intercepted and collected by Government agencies for national security reasons (Sections 69,79A, ,70B) etc,. All these are essential ingredients of a Data Protection Act in respect of “Data in electronic form”.

Will IDPA also address these issues?.. If so, will it be overlapping with ITA 2000/8 provisions? is one of the decisions that the committee needs to arrive at.

The IDPA as is being envisaged is addressing to what is referred to in the Puttaswamy judgement as “Information Privacy”. This definition is dependent on the definition of “Privacy” and a judgmental decision on “Which information addresses to Privacy”. For example, will an IMEI number be considered as “Personal Information”? if so, is it simply “Personal information” (PI) or is it “Sensitive personal Information” (SPI)? . Is an IP address a PI?, Is E Mail address a PI?. except for “Biometric” or “Password” there may not be a consensus of what is to be included or excluded from the definition of PI and where the line of demarcation has to be drawn between PI and SPI and whether the classification has to be even further refined as PI-Level I, PI-Level 11, SPI-Level I, SPI Level II etc needs to be decided.

In such an uncertain environment, the law cannot be “Prescriptive” at all. It has to be necessarily “Principle based”.

Now, if ITA 2000/8 already has a “Principle based”- “Due diligence” and “Reasonable Security Practice” already defined, what does the new IDPA do in repeating the same things in a different statute?

In this context, a question arises whether it is a good idea to simply make amendments to ITA 2008 to meet the objectives of the proposed IDPA.

If required, a new chapter can be added to ITA 2008 called “Chapter on Data Protection” and incorporate the requirements of registration of data controller etc., which are not adequately covered in ITA 2000/8.

 (Will be continued)


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

Part I

 Part II

Part III

As the Government of India conducting nationwide public consultation programs on the Data Protection Law proposed to be drafted on the basis of the Justice Srikrishna Committee, I would like to place before the ministry, some of my key ideas.

Big Idea 1: Data Trusts

The global regime of data protection including the EU GDPR recognizes the role of

  1. a Data Protection Authority for the nation,
  2. Data Controllers who collect data from the subject and/or determine how the personal data is to be used,
  3. Data Processors who process personal data on the instructions of the Data Controller
  4. Data Protection officers at the industry level as compliance officers.

I propose a new category of agency called “Data Trust” which operates between the Data Subject and the Data Collector and works as an escrow agent for the personal data of the individual. It will be a specialised institution which

  1. has the necessary wherewithal to secure the data entrusted to it by the public
  2. has the ability to classify the personal data entrusted to it by the public into different data category packages such as “Basic”, “Basic-identity”,”Sensitive identity”, “Confidential” \or such other categories as they may chose to logically group
  3. has the ability to decode the consent forms and privacy notices of data collectors and grade the data controllers
  4. has the ability to determine which category of data is required to be supplied to which category of data controller
  5. has the ability to process a realtime request from the data subject to supply appropriate data to the data collector during a service registration process
  6. is registered with the Data protection authority
  7. is subject to being reviewed both by the strength of their performance and an audit by the authority
  8. is able to keep an arms length relationship with the Data collectors
  9. is able to monetize the data for the benefit of the data subject
  10. is able to issue a pseudonomization Id to its members which can be used instead of the real information when personal data is to be provided to data collectors.

The creation of this intermediary would be a unique suggestion that will make Indian law different from the rest of the world and meet the requirements of our country where there are a large number of less literate persons operating mobiles.

Big Idea 2: Jurisdictional Umbrella

Since Data Protection is a global concept and just as India is imposing responsibilities under Indian law, many of the Indian processors are already under obligation to international data protection agencies including GDPR authorities where huge penalties are likely to be imposed on the Indian companies through contractual obligations.

Indian law therefore has to also decide on the jurisdiction of the proposed law and how it will handle the disputes arising between Indian processors (or controllers) with the GDPR counterparts.

It is proposed that Indian law is made primarily applicable to the Indian Citizens for the protection of their rights on personal information privacy.

Impact of this law on non citizens arising due to the collection of their personal data during their activities which come under the Indian legal jurisdiction is not an obligation of the country but could be accepted in the interest of projecting India as a country that can be trusted for data protection for cross border transactions.

However, when it comes to enforcement of the rights of any foreign agency including private citizens as well as GDPR authorities or even the Contractual beneficiaries aborad, on any Indian Citizen or Indian Data Controller or Data Processor, it should be mandatory that the dispute is resolved only with the involvement of the Indian Data Protection Authority.

Indian Data Protection Authority shall be the sole adjudicating authority for all disputes in which an Indian Citizen or an Indian Corporate or an Indian Government agency is a party.

Big Idea 3: Reciprocal Enforcement Rights

Recognition of any data protection law of any country outside India shall be only on a reciprocal basis where equal rights are available from the other country which may include

a) Enforcement of the privacy rights of an Indian Citizen or a Company in the foreign jurisdiction

b) Enforcement of penalty of any description on an Indian Citizen or a Company vis a vis similar rights for the Indian companies or individuals on the foreign citizens and companies.

I urge the Ministry to incorporate the above three ideas into the proposed law in appropriate terms.