P.S: This series of articles is an attempt to place some issues before the Government of India which promises to bring a new Data Protection Law that is futuristic, comprehensive and Perfect.
We have so far discussed the definitions of “Privacy” and “Data” in the previous two articles. In this article let us discuss the definition of different entities and their roles.
In GDPR, important roles for the data handlers are Data Controller Data Processor, c) Recipient and Joint Data Controller,
On the other hand, PDPB 2018/2019 defined the roles as “Data Fiduciary”, “Data Processor” and “Consent Manager”.
In the NDPAI, it is suggested that the Data Fiduciary should be considered as “Data Manager”. The reason why we are suggesting this change is that the “Role of Data Fiduciary” as a “Trustee ship” for the entity which is determining the purpose and means of personal data processing is a good measure. But this “Trusteeship” responsibility is not very practical and it is difficult to expect the commercially minded “Data Controllers” to faithfully discharge the responsibility as a “Trustee”. The Conflict of interest is too strong for the concept to work efficiently.
At the same time, “Data Controller” reduces the importance of the Data Subject/Data Principal as if he is enslaved by the Data Controller. It is therefore necessary to identify a more balanced role to the entity which is today referred to as the Data Controller or Data Fiduciary.
I therefore suggest that the role of the entity which determines the purpose and scope of personal data processing as the “Data Manager”. This retains the superior position of the Data Principal who appoints the “Data Manager” for a specific task.
Also the GDPR defines “Means of Processing” and “Purpose of Processing” as the criteria for identifying the “Controller” status. This needs a re-look. “Collection” and “Purpose” could be two better parameters to fix the responsibility of an entity as a “Controller”. “Collection” is a key criteria because it is only a “Collector of Personal Data” who is having a relationship with the data subject and can obtain a proper consent where required. It is not feasible for a “Controller” appointing another entity as a “Processor” to collect the personal data.
Secondly, once the “Controller” specifies the “Purpose” and hands over the personal data to a processor, the “Means of Processing” can be left to the processor to determine. In many practical instances, we find that Cloud Service providers offer many services for processing personal data under proprietary technology. They would like to offer their service with a commitment on the required output but would be reluctant to pass on the technology secrets on which they may have intellectual property rights. Presently, all such processors need to be treated as “Joint Data Controllers” only and not “Data Processors”.
A “Data Processing Contract” specifies the purpose for which the data has to be processed and also specifies the “Security” requirements. Security would automatically include the provision that the data cannot be used for any “Unauthorized purpose”. Hence with a control on “Purpose” and “Security” under a contractual obligation, the processor can be provided the freedom to preserve his intellectual property rights.
Under these considerations the definition of a “Data Manager” which replaces the term “Data Fiduciary” would be
Data Manager in the context of personal data is any person who collects personal data and determines the purpose of processing.
Data Processor in the context of personal data is any person who processes the personal data received from a Data Manager strictly in accordance with the specified purpose for which the personal data was collected from the data subjects.
The associated definition would be that of a “Person”. The term person may be used both as an “Individual” who could be a data subject and a Data Manager or Data Processor”.
The definition of a “Person” could be
A “Person” in the context of personal data means
a) the individual whose personal data is collected by a Data Manager for an agreed purpose.
b) the entity of any description which processes the personal data as a data manager or a data processor and includes an individual, corporate entity, partnership firm, society, association of persons, a Government department or any other juridical entity recognized under law.
The role of a “Consent manager” is recognized in PDPB 2019 and not in GDPR. It is an excellent proposition and in the context of the Indian environment where the data principals are less educated, and also have to grapple with language issues in understanding the consent requests and would benefit by the assistance that a “Consent Manager” can provide. “Consent manager” always is the “Collector of the personal data” and hence under the above definition of a “Data Manager” the “Consent Manager” is also a Data Manager. However, the “Consent Manager” is a specialized Data Manager since the only purpose for which he collects personal data is to act on behalf of the data subject for providing consent to other Data Managers and to exercise the rights of the Data Principal.
His role therefore is more as a “Privacy Protection Advisor” of the Data Principal. This role can be created by a “Power of Attorney” document without the need for this provision in the law. However, in order to ensure responsibility and accountability, to this important function, it is better for the law to declare this role under the term “Privacy Protection Advisor” instead of “Consent manager”. This will avoid the clash of the term with a similar term used under the “Account Aggregator” concept of the RBI besides addressing the function of exercising of Rights on behalf of the data principal.
Considering the needs of the Indian society, it is suggested that the Act should encourage both corporate entities and individuals to take on the license as “Privacy Protection Advisors” (PPA) under a suitable accreditation system regulated by the data protection authority. In this system, the PPA s could be called Category I, Category II or Category III advisors where the lowest category of advisors would be the professionals with necessary knowledge and commitment where as Category II could be firms of Category III advisors and Category I would be independent Corporate entities with a specified capital base and larger responsibilities to technically safeguard the data principals.
The Category III advisors would be like the Chartered Accountants or or advocates who act individually within their respective professional responsibilities and Category II advisors would be like the CA firm or Lawyer firm where individual professionals who are Category III advisors can work together as a loose association.
This will enable development of professionals who can not only act as Privacy Protection Advisors for individuals but also as “Data Auditors” and would require to fulfill some accreditation criteria of the regulator.
Under this premise, the Consent Manager could be defined as follows.
Consent Manager is any person or association of persons or a company or any other juridical entity under any law and capable of being able to sue or be sued upon, which is authorized by the Data Protection Authority and may offer services as advisors to assist the individual data principals for providing informed consent to the data managers and to provide assistance for exercising their rights guaranteed under the Act.
Joint Data Manager
Joint Data Manager in the context of personal data means any combination of two or more data managers who have agreed to share the responsibilities jointly and severally under this Act.
The GDPR defines a role as a “Recipient” who is neither a Data Controller or Data Processor. However, in the GDPR, since “Storing” of personal data is also considered as “Processing”, every recipient of identified personal data will automatically be a “Data Processor” or a “Data Controller”.
In the definition of a “Data Processor” which we used yesterday (article 8) we did not specifically include “Data Storing” as a “Processing activity”.
We defined “Processing” as follows.
“Processing” will be defined as any alteration of a binary sequence of data elements and includes data aggregation, data modification, data deletion, data disclosure, data publishing etc.
In this definition, we captured only such processes that alter the data as “Processing”.
In GDPR and PDPB 2019, “Storing” is also considered as “Processing”. However, considering that there are many service providers who only store data some times the containers of data in safe custody without any access to the data, it may be better to carve out “Storage of Data” as a separate activity not amounting to “processing”.
We therefore suggest that under the “Roles”, we can define a “Data Storage Agent” as a separate entity with a definition as follows.
Data Storage Agent
A Data Storage Agent in the context of personal or non personal data management means any person who is entrusted with the custody of data for the purpose of safe custody only whether in a data container or otherwise and does not have right to access and will however be responsible for secure storage.
…Discussions will continue…. Comments and suggestions are welcome.
P.S: These discussions are presently for a debate and is a work in progress awaiting more inputs for further refinement. It is understood that the Government may already have a draft and may completely ignore all these recommendations. However, it is considered that these suggestions will assist in the development of “Jurisprudence” in the field of Data Governance in India and hence these discussions will continue until the Government releases its own version for further debate. Other professionals who are interested in participating in this exercise and particularly the Research and Academic organizations are invited to participate. Since this exercise is too complex to institutionalize, it is being presented at this stage as only the thoughts of Naavi. Views expressed here may be considered as personal views of Naavi and not that of FDPPI or any other organization that Naavi may be associated with.