TRAI Consultation Paper on Privacy

TRAI has released a consultation paper on Privacy for comments from Stake holders. A Copy of the Consultation paper is available here: 

Comments from stake holders have been invited by 8th September 2017 and counter comments can be submitted by 22nd September 2017.

Comments and counter comments can be sent by e-mail to or

“Privacy” is a complicated subject which is presently under discussion in different fora including the Supreme Court. “Protecting Privacy” is a democratic principle and addressed as a part of the Human Rights commitment of the society. Privacy Protection is presently recognized in India through various Supreme Court Judgements as a derivative of the Rights under Article 21. (Refer here). As a constitutional right a Citizen may be able to seek remedy from the Government but when seeking remedy from others there is a need for statutory provision that defines what is the extent of the Right, how to evaluate damage and how the compensation can be provided etc.

At the same time, when “Privacy Information” is available in the form of “Data in electronic form”, other legislation such as ITA 2000/8 have provided remedies in different forms. Many times, industry recognizes “Data Protection” as synonymous with “Privacy Protection”.

We shall leave for now the larger debate of whether Privacy protection is equivalent to protection of the data related to Privacy of a person or it is a reasonable approximation.

We know that at present a “Data Protection Act” is being drafted and it may define the scope of data protection and its relation to Privacy. Supreme Court may simply recognize “Privacy” as a “Fundamental Right” subject to “Reasonable Restrictions” and leave it to the legislature and executive to define what is “Reasonable”. The ball will be back in the Court of the legislature and Executive to take this forward.

In this direction, we can appreciate that TRAI is trying to pre-empt a discussion on what the “Data Protection Act” can do through the issue of the Consultation Paper. If the Supreme Court leaves it to the legislature and the legislature through the Data Protection Act agrees for a “Sectoral Data Protection Officer for Telecom Industry”, then TRAI’s present efforts will give it a head start for defining the policies and procedures for data protection by the “Telecom Sector Data Protection Officer”.

Government of India has already proposed a “CERT for Telecom” and this CERT_TEL has to define what constitute a “Breach” that needs to be monitored by the CERT-TEL. The definition of the “Breach” in this context is linked to the expectations of “Data Protection” requirements which this consultation paper tries to address.

Hence TRAI appears to be thinking ahead and preparing itself to draft the guidelines for its CERT-TEL besides assisting the Data Protection Act to be drafted with sufficient scope for TRAI to retain its hold on the industry.

Keeping all this complications in mind, it is not easy to comment on the consultation paper without a good debate. I wish different groups of experts discuss the consultation paper and come up with their own views.

As always, it is better to start with a template for discussion and hence would like to place its preliminary views on the consultation paper for public view here and request members of the public to either submit their comments directly to TRAI or atleast send their comments here and enable me to consolidate and submit.

My Preliminary Views are therefore presented here in below:


Q.1        Are the data protection requirements currently applicable to all the players in the eco-system in India sufficient to protect the interests of telecom subscribers? What are the additional measures, if any, that need to be considered in this regard?

Current data protection requirements from the consumer perspective are addressed by ITA 2000/8. The Telco is an “Intermediary” subject to Section 79 of ITA 2000/8 in some instances of data flow. In some other instances of data flow such as the subscriber information, Telco is a Body Corporate which collects and uses the data for its own purpose and is therefore subject to Section 43A of ITA 2000/8. Under Sec 72A, (as well as Sec 79) Telco is also liable for contractual breaches and Sec 72A applies to all  “Personal Information” though under Section 43A, the liabilities are limited to Sensitive personal Information only.

The requirements of law enforcement for interception are also addressed adequately both under the Telegraph Act and ITA 2000/8 (Sec 69,69A,69B,70B) of the ITA 2000/8.

These provisions if properly implemented are good enough to provide protection of the data from the privacy perspective of an individual availing a service from the Telco.

The problem however is that the law regarding data protection is not properly implemented and there is no proper deterrence for violation.

Under ITA 2000/8 any contravention has to be handled by means of a complaint by the affected party to the “Adjudicator” or the “Police”. Police are overburdened and will accept complaints only if a serious criminal offence has taken place. Adjudicators are largely not keen to take up complaints suo-moto and complaints can be filed only of the telecom subscriber can prove a financial damage.

We therefore need to strengthen the “Grievance Redressal mechanism”  under the ITA 2000/8. Though this is mandatory under Section 79 of ITA 2000/8, no TELCO is presently compliant with ITA 2000/8 and hence there is no proper grievance redressal mechanism in place. Presently the TELCO grievance redressal is only focused on the billing disputes and most of the time, TELCOs get away by cheating the customers with false billing and the grievance redressal mechanism becomes a sham.

TRAI has failed to respond to customer complaints even when it is brought to their attention since it does not have its own mechanism to handle subscriber complaints against TELCOs.

We therefore need the following action:

  1. TELCOs need to introduce online dispute resolution mechanism and appointment of a suitable Ombudsman (could be at least one for each state) to address the grievances.
  2. TRAI should respond to subscriber complaints by raising an automatic Customer Complaint Ticket on line and keeping it open until the TELCO resolves it.

Q: 2:  In light of recent advances in technology, what changes, if any, are recommended to the definition of personal data? Should the User’s consent be taken before sharing his/her personal data for commercial purposes? What are the measures that should be considered in order to empower users to own and take control of his/her personal data? In particular, what are the new capabilities that must be granted to consumers over the use of their Personal data?

There are three kinds of data that a subscriber interaction with the TELCO generates and the policies may have to be different for each of these kinds of data.

The three kinds of data are

  1. Data supplied by the subscriber at the time of creation of an account
  2. Data generated for billing and usage purpose by the TELCO
  3. Data that accumulates about the usage habits of the subscriber which automatically flows through the network of the TELCO and can be either stored or discarded at the discretion of the TELCO.

(a) Data supplied by the subscriber at the time of creation of an account

Data supplied by the subscriber at the time of creation of the account  includes data  like the name, address, family particulars, age profile, income profile, asset ownership, PAN number etc which are part of the application form for seeking the TELCO’s service on which “Consent” can be obtained.

If the TELCO obtains biometric data, it becomes “Sensitive Personal Information” and a mere “Consent” from an unsuspecting and un-informed customer is not to be considered as adequate. The biometric devices used for e-KYC through Aadhar will be the biggest threat to the Privacy of the subscribers and a key point of data breach.

TRAI therefore has to ensure that the devices are properly audited and accredited before they are used.

Though most of the time TELCOs abuse the consent obtained in the application form, the mechanism for getting the consent is in place and it is for the TRAI and the grievance redressal mechanism to address the violations.

(b) Data generated for billing and usage purpose by the TELCO

However, during the course of the service, data such as the CDR and Tower Data emerge. This is data on which “Joint Ownership” can be claimed.

However, for the TELCO, the CDR is only relevant for billing purpose and nothing more. Tower data is relevant only for technical purpose and would be of use even in a de-identified form.

But for the subscriber, these are “Sensitive Personal Data” which can provide critical information which can infringe on the subscriber’s privacy rights. It is however open to TRAI to treat is as such.

At present CDR or Tower Data is not classified by ITA 2000/8 as “Sensitive Personal Data”. But they are to be treated as such.

The Law enforcement has a specific requirement for access to the CDR and Tower data from the point of view of law enforcement both as intelligence measure before any crime occurs and after a crime occurs.

From the point of view of national security, law enforcement must have access to such data when required and procedural enablement for the same has to be provided.

Some times Law Enforcement may need to even block communication and TELCOs need to implement such orders or emergent basis.

However, in such cases the issues of Human Rights, Freedom of Expression etc are normally raised.

We therefore need to establish a mechanism to enable Law enforcement to block communication without adversely affecting critical services.

I have suggested that in times of network blockade, an emergent network needs to be set up to carry critical communications just as “Ambulance Service operates in a Curfew situation”. I have called this as “Digital Data Ambulance” system and this should specially take care of Financial and Health related communication when the network is otherwise blocked.

Required technical enablement has to be provided for this purpose by TELCOs and necessary procedure for the subscribers to invoke such services need to be established.

(c) Data that accumulates about the usage habits

The third category of data that accumulates during the interaction between the subscriber and the TELCO is the information about “Data Usage” such as the websites visited, Advertisement links clicked etc.

This information has a commercial value and is often the target of Data mining in the “Big Data” scenario.

The TELCOs have little use of this for their main business of providing service and even if they do, they donot need identified data and can make use of de-identified data.

However if the TELCOs factor in the value of this data as part of their legitimate revenue they need to recognize that they need to provide appropriate notice to the customers and take their consent.

If TELCOs donot take the consent of the customers but monitor their browsing and usage habits particularly with use of some software tools as Airtel was once accused of doing (and could be doing even now), it would amount to a violation of ITA 2000/8 under Section 66 and 69A.

TELCOs therefore need to introduce a system according to which, by default such information can be de-identified so that they can be used for most data analytics requirements at the higher level and seek specific consent from the customer for use of “Identified usage habits”.

Such consents have to be incentivized by some return favour to the consenting customers which is distinguishable from other customers. The nature of incentives can be left to the TELCOs to structure but there has to be some incentive for the customers to share marketable information that is entirely their own creation.

Q.3        What should be the Rights and Responsibilities of the Data Controllers? Can the Rights of Data Controller supersede the Rights of an Individual over his/her Personal Data? Suggest a mechanism for regulating and governing the Data Controllers.

My response to the earlier questions also defines the rights and responsibilities of the data controller. If they follow the principles of Privacy which Section 79 of ITA 2000 captures such as Disclosure, Consent, Responsible Use, Security, etc. it should suffice.

However, the problem is that a TELCO operates with thousands of sub-contractors and employees distributed across the country and also uses couriers as agents all of which introduced additional elements of risk for data misuse.

The mechanism for monitoring the TELCO’s Privacy and Information Security implementation  particularly at the dealer/street level offices level is currently inadequate and this has to be strengthened.

The TELCO is liable for the inadequate security at all levels and TRAI has to impose penalties on TELCOs whenever deficiencies are observed at the lower levels. Obviously the grievance redressal mechanism has to address this since TRAI may not be able to conduct its own audits in this regard.

The responsibility should however be placed on the TELCOs to periodically inspect and audit the dealers and other offices and submit a confirmation to TRAI and in the event of any breaches observed later, the audits can be questioned and penalized.

Q: 4 Given the fears related to abuse of this data, is it advisable to create a technology enabled architecture to audit the use of personal data, and associated consent? Will an audit-based mechanism provide sufficient visibility for the government or its authorized authority to prevent harm? Can the industry create a sufficiently capable workforce of auditors who can take on these responsibilities?

 If properly structured a technology enabled architecture to audit use of personal data and associated consent can be effective. There is always a possibility of manual supervision over riding the automated audits on a sampling basis to ensure a high degree of compliance.

The development of the architecture should be done in such a manner that available manpower of skilled auditors can be used for over riding supervision of exceptional observations collated by the automated systems.

An innovatively structured system can achieve the objective though at present nothing more can be said in this regard.

Q: 5:  What,  if  any,  are  the  measures  that  must  be  taken  to encourage the creation of new data based businesses consistent with the overall framework of data protection?

Presently TELCOs have a business interest that introduces a conflict with the Privacy related responsibilities. Any effort of TRAI to improve the Privacy Protection will be resisted since there is a perceived cost escalation.

Hence there could be a specialized intermediary that takes care of e-KYC for multiple TELCOs along with the “Privacy Disclosure on behalf of TELCOs” and “Obtention of Consent”. Such agencies can be called “TELCO Enrolment Agencies” such as the “Certifying Authorities of a Digital Certificate System”. They should be licensed directly by TRAI after suitable checks and according to some norms to be developed. They can provide “Certificate of TELCO Enrolment” which can be used by multiple TELCOs. The cost will be absorbed in higher efficiency and avoidance of duplication.

Presently customers hold accounts with multiple TELCOs and undergo multiple KYC verifications. Whenever they port the numbers, there is a repetition of KYC. The KYC process is done by inexperienced sub contractors who donot know the importance of KYC and this gives room for fake customers. On the other hand a few specialized “Enrollment Certification Agencies” can serve all TELCOs more efficiently.

The Government has already created a “Digi Locker” service and enabled many service providers to be created for maintaining of the “Digi Locker” service. This can also be used either directly by the TELCOs or by the Enrollment Certification agencies to further make the system more efficient and economical.

Obviously the scheme cannot be discussed in detail here but if the concept is accepted, further details can be worked out.

Similarly agencies can be licensed for information security audits of dealers who may report their findings to the TELCOs under copy to TRAI for follow up.

Q:6       Should government or its authorized authority setup a data sandbox, which allows the regulated companies to create anonymized data sets which can be used for the development of newer services?

Yes.. This requirement of segregating data as “Identified” and “de-identified” has already been covered earlier. It is an essential requirement.

Q:7 How can the government or its authorized authority setup a technology solution that can assist it in monitoring the ecosystem for compliance? What are the attributes of such a solution that allow the regulations to keep pace with a changing technology ecosystem?

It is necessary for certain basic policy level agreement to be drawn up before we can address the question of “How” the technology solution can be developed.

We need to ensure that we donot end up with too many regulatory bodies that will introduce more complications.

TRAI should be the apex regulatory authority for all TELECOM companies and rest of the regulation can be done by licensed operators such as what has been suggested above for enrollment certification.

Q:8 What are the measures that should be considered in order to strengthen and preserve the safety and security of telecommunications infrastructure and the digital ecosystem as a whole?

 There are established techno legal processes used for information security. At higher levels this is fortified by a proper management of the people involved. These can be used for securing TELCO networks also. The actual measures will however be dynamic and case specific.

Q: 9 What are the key issues of data protection pertaining to the collection and use of data by various other stakeholders in the digital ecosystem, including content and application service providers, device manufacturers, operating systems, browsers, etc? What mechanisms need to be put in place in order to address these issues?

Content and Application service providers use TELCOs as their sub contractors and the mutual legal liabilities are settled out of the contractual liabilities and provisions of ITA 2000/8.

Except proper awareness creation and dispute resolution mechanism, there need not be major issues in meeting the requirements of protection of the public from misuse of content and applications.

Q: 10 Is there a need for bringing about greater parity in the data protection norms applicable to TSPs and other communication service providers offering comparable services (such as Internet based voice and messaging services). What are the various options that may be considered in this regard?

 The distinction between different types of communication providers is no longer relevant since the entire system runs on data network. All services today are digital and any attempt to segregate them for commercial purpose is futile and can be avoided.

Q: 11 What   should   be   the   legitimate   exceptions   to   the   data protection requirements imposed on TSPs and other providers in the digital ecosystem and how should these be designed? In particular, what are the checks and balances that need to be considered in the context of lawful surveillance and law enforcement requirements?

There need not be any exceptions other than what is done in the law enforcement and consent based contexts.

There has to be procedures in place along with an implementation mechanism and sanction policy for misuse. Drafting such policies is not difficult but they are often abused without proper deterrence. The regulatory agency such as TRAI has the control which it needs to fortify with the will.

“Regulated Anonymity” (Check details here) which is one of the suggestions I have made in different contexts to ensure that de-identification is controlled by a committee which is trusted by the data subjects. Some variant of this thought needs to be used for ensuring that law enforcement does not violate the norms of Privacy protection developed for a larger purpose.

However, law enforcement rights in the interest of security has to be preserved at all costs.

Q.12        What are the measures that can be considered in order to address the potential issues arising from cross border flow of information and jurisdictional challenges in the digital ecosystem?

 The cross border flows of information cannot be prevented in the context of globalization of data management as well as the reasons of cost optimization.

The Government needs to separately address the issue of incentivizing the creation of data centers in India for global usage (not necessarily for Indian usage).

This requires not only financial and technological incentives but also legal incentives such as creating “Special Data Protection Zones” where data protection laws of a different  country are allowed to be applied with immunity from application of local laws. This concept has also been discussed by the undersigned separately in a different context and can be shared if required.


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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