Category: India

Steps towards data protection law in India

17. June 2022

At present, there is no comprehensive data protection law in India. The relevant provisions are governed by several laws, regulations and court decisions, including the Information Technology Act 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011.

Following the inclusion of privacy as a fundamental right in Article 21 of the Indian Constitution on August 24th, 2017, a Personal Data Protection Bill (PDPB) was formulated and introduced in the Lower House of the Parliament on December 11th, 2019. The PDPB was intended to constitute the first comprehensive data protection law in India.

The PDPB was pending consideration of the Parliament for a long time. On November 22nd, 2021, the Indian Joint Parliamentary Committee (JPC) responsible for reviewing the PDPB issued its report on the proposed law. Back then, the Indian Parliament was expected to table JPC’s final report and consider the bill on December 21st, 2021, ahead of the end of its legislative session on December 23rd, 2021. Once passed by both houses of the Parliament and approved by the president, the PDPB was then to be enacted as legislation.

However, as it has recently become known, new regulations may soon be introduced to replace the proposed PDPB, which was scrapped in favor of a total overhaul after data localization and data mirroring requirements raised concerns among business stakeholders. In addition, the Indian Government is expected to commence work on a new law to replace the Information Technology Act 2000, which would entail new guidelines for data governance and cybersecurity as part of a ‘Digital India Act’.

This would be a major, and long overdue, step towards a modern data protection law that takes into account both economic interests and individual rights, as well as integrates into the progressive legal development worldwide.

Final steps towards the first data protection law in India

10. December 2021

To this date, there is no comprehensive law on the protection of personal data in India. The need for such a law was already expressed in 2017, when the Constitutional Bench of the Supreme Court of India confirmed that privacy is a fundamental right enshrined in Article 21 of the Constitution. This led to the creation of an extensive Personal Data Protection Bill 2019 (PDPB), which we have already reported on several times. It is currently pending consideration of the Indian Parliament.

The PDPB aims to ensure the protection of personal data of individuals and to establish a data protection authority for this purpose. To review and, if necessary, amend the PDPB, a Joint Parliamentary Committee (JPC) has been formed on the demand of opposition members. On November 22nd, 2021, the JPC issued its report on the proposed law, which is meant to be the basis for further discussions in the Parliament.

Initially, it was expected to present the report together with the PDPB at the start of the Winter Session of the Parliament, which began on November 29th, 2021. However, most recently it has become known that the JCA was granted a last (so far the sixth) extension of time to submit its report to resolve disagreements among committee members. As a result, the Parliament is likely to table the final report and subsequently consider the proposed law along with possible clarifications on December 21st, 2021, ahead of the end of its current legislative session on December 23rd, 2021. Once passed by both houses of the Parliament and approved by the President, the PDPB is then to be enacted as legislation.

The Government of India plans one of the largest Facial Recognition Systems in the World

14. February 2020

The Indian Government released a Request for Proposal to bidder companies to procure a national Automated Facial Recognition System (AFRS). AFRS companies had time to submit their proposals until the end of January 2020. The plans for an AFRS in India are a new political development amidst the intention to pass the first national Data Protection Bill in Parliament.

The new system is supposed to integrate image databases of public authorities centrally as well as incorporate photographs from newspapers, raids, mugshots and sketches. The recordings from surveillance cameras, public or private video feeds shall then be compared to the centralised databases and help identify criminals, missing persons and dead bodies.

Human rights and privacy groups are pointing to various risks that may come with implementing nationwide AFRS in India, including violations of privacy, arbitrariness, mis-identifications, discriminatory profiling, a lack of technical safeguards, and even creating an Orwellian 1984 dystopia through mass surveillance.

However, many people in India are receiving the news about the plans of the Government with acceptance and approval. They hope that the AFRS will lead to better law enforcement and more security in their everyday lives, as India has a comparably high crime rate and only 144 police officers for every 100.000 citizens, compared to 318 per 100.000 citizens in the EU.

India updates privacy bill

12. December 2019

The new update of the Indian Personal Data Protection Bill is part of India’s broader efforts to tightly control the flow of personal data.

The bill’s latest version enpowers the government to ask companies to provide anonymized personal data, as well as other non-personal data in order to help to deliver governmental services and privacy policies. The draft defines “personal data” as information that can help to identify a person and also has characteristics, traits and any other features of a person’s identity. “Sensitive personal data” also includes financial and biometric data. According to the draft, such “sensitive” data can be transferred outside India for processing, but must be stored locally.

Furthermore, social media platforms will be required to offer a mechanism for users to prove their identities and display a verification sign publicly. Such requirements would raise a host of technical issues for companies such as Facebook and WhatsApp.

As a result, the new bill could affect the way companies process, store and transfer Indian consumers’ data. Therefore, it could cause some difficulties for top technology companies.

India publishes draft of a data protection bill

14. September 2018

After the Hon’ble Supreme Court declared in its landmark decision that privacy is a “guaranteed fundamental right”, the Sikrishna Committee drafted a Personal Data Protection Bill, 2018.

In contrast to the terms “data subjects” and “controllers” chosen in the GDPR, the Indian draft designates the individuals whose personal data is processed “data principals” and the organisations responsible for the processing “data fiduciaries”.

With the new data protection bill, data principals have a variety of rights such as rights to access, rectification or the right to be forgotten. In order to ensure data compliance, the concept of an annual data audit, which will be carried out by organisations through independent data auditors, was also introduced. In addition to data fiduciaries who are based in India, the regulations also apply to those who systematically offer goods and services to data principals in India, or those whose work involves profiling of Indian data principals.

The new data protection bill also introduces the figure of the Data Protection Officer (DPO) for India. Organisations must appoint a DPO if they are “significant data fiduciaries”, i.e. if they are involved in high-risk processing activities, or if they are not present in India but covered by the bill. Those organisations shall appoint a DPO who is based in India. In contrast to the GDPR there is however no requirement of the independence of the DPO.

For cross-border data transfers, it is required that at least one copy of personal data is stored on servers or data centres located in India. Data classified as “critical personal data” may only be processed in a server or data centre located in India.

According to the Sikrishna Committee, the draft could be seen as a template for developing countries all over the world.

Category: India · Personal Data
Tags:

Risk of identity theft for a billion people in India

5. January 2018

A billion people in India may be victims of identity theft. The Tribune newspaper uncovered a security breach in the country’s vast biometric database. The database contains personal data of almost every citizen in India. The biometric ID program called Aadhaar is a flagship policy of Prime Minister Narendra Modi against corruption.
The reporters of the newspaper were able to access names, email addresses, phone numbers and postal codes by typing in 12-digit unique identification numbers of people in the government’s database, after paying about 6,50 € ($8, 500 rupees).
The seller also sold software to print out unique identification cards, called Aadhaar cards that can be used to access various government services.
The seller had gained access to the database through former workers who were initially tasked with making the Aadhaar cards.
India’s Unique Identification Authority said in an official statement “Claims of bypassing or duping the Aadhaar enrollment system are totally unfounded. Aadhaar data is fully safe and secure and has robust, uncompromised security.” The governing Party officially tweeted that the report was fake news.

Indian government urges people to sign up to Aadhaar – the world’s largest biometric ID system – while the Supreme Court still needs to determine its legality

28. December 2017

As reported in August of this year, the Indian Supreme Court (SC) acknowledged that the right to privacy is “intrinsic to life and liberty” and is “inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.”

In the same context, the SC had announced it will be hearing petitions on Aadhaar related matters (the term – meaning “foundation” – stands for a 12 digit unique-identity number supposedly issued to all Indian residents based on their biometric and demographic data) in November.

According to a Bloomberg report, India’a Prime Minister Narendra Modi is calling for an expansion of Aadhaar, even though its constitutionality is still to be debated. The SC has set January 10th as the beginning of the final hearings.

While officials say Aadhaar is saving the government billions of dollars by better targeting beneficiaries of subsidized food and cash transfers, critics point to unfair exclusions and data leaks. The latter on the one hand also fear that the database might lead India into becoming a state of surveillance. On the other hand, they are concerned about the high risk of major leaks, such as the ones reported by a news agency in India, the PTI (Press Trust of India): “Personal details of several Aadhaar users were made public on over 200 central and state government websites.”

Meanwhile, Medianama, a source of information and analysis on Digital and Telecom businesses in India, has launched a list of already compromised leaks and encourages people to point out any similar incidents.

Category: Data Breach · General · India · Personal Data
Tags: ,

India’s Supreme Court rules that privacy is a fundamental right

29. August 2017

In the past few years, India’s government aimed to build up the world’s largest biometric database, named Aadhaar. So far, more than a billion citizens have been registered to the identity programme, whereby eye scans and fingerprints are collected. In order to make sure that all citizens registered to the Aadhaar database, the government restricted access to government services for those who are not part of the database.

Critics expressed concerns about the implications of possible future data breaches, jeopardising the privacy of more than a billion Indians. It was also feared that the Indian government could use the database for surveillance purposes.

Last week, a nine-member panel of India’s Supreme Court ruled that a right to privacy is a part of article 21 of the Constitution of India. This historic ruling could result in the abrogation of the mandatory enrolment to the Aadhaar database. Furthermore, any future laws aiming at restricting privacy, will now “have to be tested on the touchstone of article 21”. It remains to be seen whether the ruling will also have lasting effects on the civil liberties and the daily life of Indians.