On 26th May 2022, the Ministry of Electronics and Information Technology (MeitY), released the Draft National Data Governance Framework Policy (NDG Policy) for feedback and public comments. CCG submitted its comments on the NDG Policy, highlighting its feedback and key concerns with the proposed Data Governance Framework. The comments were authored by Joanne D’Cunha and Bilal Mohamed, and reviewed and edited by Jhalak M. Kakkar and Shashank Mohan.
The draft National Data Governance Framework Policy is a successor to the draft ‘India Data Accessibility and Use’ Policy, which was circulated in February 2022 for public comments and feedback. Among other objectives, the NDG policy aims to “enhance access, quality, and use of data to enable a data-led governance” and “catalyze AI and Data led research and start-up ecosystem”.
CCG’s comments to the MeitY are divided into five parts –
In Part I, of the comments we foreground our concerns by emphasising the need for comprehensive data protection legislation to safeguard citizens from potential privacy risks before implementing a policy around non-personal data governance.
In Part II, we focus on the NDG Policy’s objectives, scope, and key terminologies. We highlight that the NDG Policy lacks in sufficiently defining key terms and phrases such as non personal data, anonymisation, data usage rights, Open Data Portal, Chief Data Officers (CDOs), datasets ecosystem, and ownership of data. Having clear definitions will bring in much needed clarity and help stakeholders appreciate the objectives and implications of the policy. This also improves engagement from the stakeholders including the government in the policy consultation process. This also enhances engagement from the stakeholders, including the various government departments, in the policy consultation process. We also highlight that the policy does not illustrate how it will intersect and interact with other proposed data governance frameworks such as the Data Protection Bill 2021 and the Non Personal Data Governance Framework. We express our concerns around the NDG Policy’s objective of cataloguing datasets for increased processing and sharing of data matching with the aim to deploy AI more efficiently. It relies on creating a repository of data to further analytics, and AI and data led research. However, it does not take into consideration that increasing access to data might not be as beneficial if computational powers of the relevant technologies are inadequate. Therefore, it may be more useful if greater focus is placed on developing computing abilities as opposed to increasing the quantum of data used.
In Part III, we focus on the privacy risks, highlighting concerns around the development and formulation of anonymisation standards given the threat of re-identification from the linkage of different datasets. This, we argue, can pose significant risks to individual privacy, especially in the absence of a data protection legislation that can provide safeguards and recognise individual rights over personal data. In addition to individual privacy harms, we also point to the potential for collective harms from using aggregated data. To this end, we suggest the creation of frameworks that can keep up with the increased risks of reidentification posed by new and emerging technologies.
Part IV of our comments explores the institutional framework and regulatory structure of the proposed India Data Management Office. The proposed IDMO is responsible for framing, managing, reviewing, and revising the NDG Policy. Key concerns on the IDMO’s functioning pertain to the exclusion of technical experts and representatives of civil society and industry in the IDMO. There is also ambiguity on the technical expertise required for Chief Digital Officers of the Digital Management Units of government departments and ministries, and the implementation of the redressal mechanism. In this section, we also highlight the need for a framework within the Policy to define how user charges will be determined for data access. This is particularly relevant to ensure that access to datasets is not skewed and is available to all for the public good.
You can read our full submission to the ministry here.
The Personal Data Protection Bill, 2019 (PDP Bill/ Bill) was introduced in the Lok Sabha on December 11, 2019 , and was immediately referred to a joint committee of the Parliament. The joint committee published a press communique on February 4, 2020 inviting comments on the Bill from the public.
The Bill is the successor to the Draft Personal Data Protection Bill 2018 (Draft Bill 2018), recommended by a government appointed expert committee chaired by Justice B.N. Srikrishna. In August 2018, shortly after the recommendations and publication of the draft Bill, the Ministry of Electronics and Information Technology (MeitY) invited comments on the Draft Bill 2018 from the public. (Our comments are available here.)
In this post we undertake a preliminary examination of:
The scope and applicability of the PDP Bill
The application of general data protection principles
The rights afforded to data subjects
The exemptions provided to the application of the law
In future posts in the series we will examine the Bill and look at the:
The restrictions on cross border transfer of personal data
The structure and functions of the regulatory authority
The enforcement mechanism and the penalties under the PDP Bill
Scope and Applicability
The Bill identifies four different categories of data. These are personal data, sensitive personal data, critical personal data and non-personal data
Personal data is defined as “data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling”. (emphasis added)
The addition of inferred data in the definition realm of personal data is an interesting reflection of the way the conversation around data protection has evolved in the past few months, and requires further analysis.
Sensitive personal data is defined as data that may reveal, be related to or constitute a number of different categories of personal data, including financial data, health data, official identifiers, sex life, sexual orientation, genetic data, transgender status, intersex status, caste or tribe, and religious and political affiliations / beliefs. In addition, under clause 15 of the Bill the Central Government can notify other categories of personal data as sensitive personal data in consultation with the Data Protection Authority and the relevant sectoral regulator.
Similar to the 2018 Bill, the current bill does not define critical personal data and clause 33 provides the Central Government the power to notify what is included under critical personal data. However, in its report accompanying the 2018 Bill, the Srikrishna committee had referred to some examples of critical personal data that relate to critical state interest like Aadhaar number, genetic data, biometric data, health data, etc.
The Bill retains the terminology introduced in the 2018 Draft Bill, referring to data controllers as ‘data fiduciaries’ and data subjects ‘data principals’. The new terminology was introduced with the purpose of reflecting the fiduciary nature of the relationship between the data controllers and subjects. However, whether the use of the specific terminology has more impact on the protection and enforcement of the rights of the data subjects still needs to be seen.
Application of PDP Bill 2019
The Bill is applicable to (i) the processing of any personal data, which has been collected, disclosed, shared or otherwise processed in India; (ii) the processing of personal data by the Indian government, any Indian company, citizen, or person/ body of persons incorporated or created under Indian law; and (iii) the processing of personal data in relation to any individuals in India, by any persons outside of India.
The scope of the 2019 Bill, is largely similar in this context to that of the 2018 Draft Bill. However, one key difference is seen in relation to anonymised data. While the 2018 Draft Bill completely exempted anonymised data from its scope, the 2019 Bill does not apply to anonymised data, except under clause 91 which gives the government powers to mandate the use and processing of non-personal data or anonymised personal data under policies to promote the digital economy. There are a few concerns that arise in context of this change in treatment of anonymised personal data. First, there are concerns on the concept of anonymisation of personal data itself. While the Bill provides that the Data Protection Authority (DPA) will specify appropriate standards of irreversibility for the process of anonymisation, it is not clear that a truly irreversible form of anonymisation is possible at all. In this case, we need more clarity on what safeguards will be applicable for the use of anonymised personal data.
Second, is the Bill’s focus on the promotion of the digital economy. We have previously discussed some of the concerns regarding focus on the promotion of digital economy in a rights based legislation inour comments to the Draft Bill 2018.
These issues continue to be of concern, and are perhaps heightened with the introduction of a specific provision on the subject in the 2019 Bill (especially without adequate clarity on what services or policy making efforts in this direction, are to be informed by the use of anonymised personal data). Many of these issues are also still under discussion by thecommittee of experts set up to deliberate on data governance framework (non-personal data). The mandate of this committee includes the study of various issues relating to non-personal data, and to make specific suggestions for consideration of the central government on regulation of non-personal data.
The formation of the non-personal data committee was in pursuance of a recommendation by the Justice Srikrishna Committee to frame a legal framework for the protection of community data, where the community is identifiable. The mandate of the expert committee will overlap with the application of clause 91(2) of the Bill.
Data Fiduciaries, Social Media Intermediaries and Consent Managers
As discussed above the Bill categorises data controllers as data fiduciaries and significant data fiduciaries. Any person that determines the purpose and means of processing of personal data, (including the State, companies, juristic entities or individuals) is considered a data fiduciary. Some data fiduciaries may be notified as ‘significant data fiduciaries’, on the basis of factors such as the volume and sensitivity of personal data processed, the risks of harm etc. Significant data fiduciaries are held to higher standards of data protection. Under clauses 27-30, significant data fiduciaries are required to carry out data protection impact assessments, maintain accurate records, audit policy and the conduct of its processing of personal data and appoint a data protection officer.
Social Media Intermediaries
The Bill introduces a distinct category of intermediaries called social media intermediaries. Under clause 26(4) a social media intermediary is ‘an intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services’. Intermediaries that primarily enable commercial or business-oriented transactions, provide access to the Internet, or provide storage services are not to be considered social media intermediaries.
Social media intermediaries may be notified to be significant data fiduciaries, if they have a minimum number of users, and their actions have or are likely to have a significant impact on electoral democracy, security of the State, public order or the sovereignty and integrity of India.
Under clause 28 social media intermediaries that have been notified as a significant data fiduciaries will be required to provide for voluntary verification of users to be accompanied with a demonstrable and visible mark of verification.
The Bill also introduces the idea of a ‘consent manager’ i.e. a (third party) data fiduciary which provides for management of consent through an ‘accessible, transparent and interoperable platform’. The Bill does not contain any details on how consent management will be operationalised, and only states that these details will be specified by regulations under the Bill.
Data Protection Principles and Obligations of Data Fiduciaries
Consent and grounds for processing
The Bill recognises consent as well as a number of other grounds for the processing of personal data.
Clause 11 provides that personal data shall only be processed if consent is provided by the data principal at the commencement of processing. This provision, similar to the consent provision in the 2018 Draft Bill, draws from various principles including those under the Indian Contract Act, 1872 to inform the concept of valid consent under the PDP Bill. The clause requires that the consent should be free, informed, specific, clear and capable of being withdrawn.
Moreover, explicit consent is required for the processing of sensitive personal data. The current Bill appears to be silent on issues such as incremental consent which were highlighted in our comments in the context of the Draft Bill 2018.
The Bill provides for additional grounds for processing of personal data, consisting of very broad (and much criticised) provisions for the State to collect personal data without obtaining consent. In addition, personal data may be processed without consent if required in the context of employment of an individual, as well as a number of other ‘reasonable purposes’. Some of the reasonable purposes, which were listed in the Draft Bill 2018 as well, have also been a cause for concern given that they appear to serve mostly commercial purposes, without regard for the potential impact on the privacy of the data principal.
In a notable change from the Draft Bill 2018, the PDP Bill, appears to be silent on whether these other grounds for processing will be applicable in relation to sensitive personal data (with the exception of processing in the context of employment which is explicitly barred).
The Bill also incorporates a number of traditional data protection principles in the chapter outlining the obligations of data fiduciaries. Personal data can only be processed for a specific, clear and lawful purpose. Processing must be undertaken in a fair and reasonable manner and must ensure the privacy of the data principal – a clear mandatory requirement, as opposed to a ‘duty’ owed by the data fiduciary to the data principal in the Draft Bill 2018 (this change appears to be in line with recommendations made in multiple comments to the Draft Bill 2018 by various academics, including our own).
Purpose and collection limitation principles are mandated, along with a detailed description of the kind of notice to be provided to the data principal, either at the time of collection, or as soon as possible if the data is obtained from a third party. The data fiduciary is also required to ensure that data quality is maintained.
A few changes in the application of data protection principles, as compared to the Draft Bill 2018, can be seen in the data retention and accountability provisions.
On data retention, clause 9 of the Bill provides that personal data shall not be retained beyond the period ‘necessary’ for the purpose of data processing, and must be deleted after such processing, ostensibly a higher standard as compared to ‘reasonably necessary’ in the Draft Bill 2018. Personal data may only be retained for a longer period if explicit consent of the data principal is obtained, or if retention is required to comply with law. In the face of the many difficulties in ensuring meaningful consent in today’s digital world, this may not be a win for the data principal.
Clause 10 on accountability continues to provide that the data fiduciary will be responsible for compliance in relation to any processing undertaken by the data fiduciary or on its behalf. However, the data fiduciary is no longer required to demonstrate such compliance.
Rights of Data Principals
Chapter V of the PDP Bill 2019 outlines the Rights of Data Principals, including the rights to access, confirmation, correction, erasure, data portability and the right to be forgotten.
Right to Access and Confirmation
The PDP Bill 2019 makes some amendments to the right to confirmation and access, included in clause 17 of the bill. The right has been expanded in scope by the inclusion of sub-clause (3). Clause 17(3) requires data fiduciaries to provide data principals information about the identities of any other data fiduciaries with whom their personal data has been shared, along with details about the kind of data that has been shared.
This allows the data principal to exert greater control over their personal data and its use. The rights to confirmation and access are important rights that inform and enable a data principal to exercise other rights under the data protection law. As recognized in the Srikrishna Committee Report, these are ‘gateway rights’, which must be given a broad scope.
Right to Erasure
The right to correction (Clause 18) has been expanded to include the right to erasure. This allows data principals to request erasure of personal data which is not necessary for processing. While data fiduciaries may be allowed to refuse correction or erasure, they would be required to produce a justification in writing for doing so, and if there is a continued dispute, indicate alongside the personal data that such data is disputed.
The addition of a right to erasure, is an expansion of rights from the 2018 Bill. While the right to be forgotten only restricts or discontinues disclosure of personal data, the right to erasure goes a step ahead and empowers the data principal to demand complete removal of data from the system of the data fiduciary.
Many of the concerns expressed in the context of the Draft Bill 2018, in terms of the procedural conditions for the exercise of the rights of data principals, as well as the right to data portability specifically, continue to persist in the PDP Bill 2019.
Exceptions and Exemptions
While the PDP Bill ostensibly enables individuals to exercise their right to privacy against the State and the private sector, there are several exemptions available, which raise several concerns.
The Bill grants broad exceptions to the State. In some cases, it is in the context of specific obligations such as the requirement for individuals’ consent. In other cases, State action is almost entirely exempted from obligations under the law. Some of these exemptions from data protection obligations are available to the private sector as well, on grounds like journalistic purposes, research purposes and in the interests of innovation.
The most concerning of these provisions, are the exemptions granted to intelligence and law enforcement agencies under the Bill. The Draft Bill 2018, also provided exemptions to intelligence and law enforcement agencies, so far as the privacy invasive actions of these agencies were permitted under law, and met procedural standards, as well as legal standards of necessity and proportionality. We have previously discussed some of the concerns with this approach here.
The exemptions provided to these agencies under the PDP Bill, seem to exacerbate these issues.
Under the Bill, the Central Government can exempt an agency of the government from the application of this Act by passing an order with reasons recorded in writing if it is of the opinion that the exemption is necessary or expedient in the interest of sovereignty and integrity, security of the state, friendly relations with foreign states, public order; or for preventing incitement to the commission of any cognizable offence relating to the aforementioned grounds. Not only have the grounds on which government agencies can be exempted been worded in an expansive manner, the procedure of granting these exemptions also is bereft of any safeguards.
The executive functioning in India suffers from problems of opacity and unfettered discretion at times, which requires a robust system of checks and balances to avoid abuse. The Indian Telegraph Act, 1885 (Telegraph Act) and the Information Technology Act, 2000 (IT Act) enable government surveillance of communications made over telephones and the internet. For drawing comparison here, we primarily refer to the Telegraph Act as it allows the government to intercept phone calls on similar grounds as mentioned in clause 35 of the Bill by an order in writing. However, the Telegraph Act limits the use of this power to two scenarios – occurrence of a public emergency or in the interest of public safety. The government cannot intercept communications made over telephones in the absence of these two preconditions. The Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997) introduced guidelines to check abuse of surveillance powers under the Telegraph Act which were later incorporated in Rule 419A of the Indian Telegraph Rules, 1951. A prominent safeguard included in Rule 419A requires that surveillance and monitoring orders be issued only after considering ‘other reasonable means’ for acquiring the required information. The court had further limited the scope of interpretation of ‘public emergency’ and ‘public safety’ to mean “the prevalence of a sudden condition or state of affairs affecting the people at large and calling for immediate action”, and “the state or condition of freedom from danger or risk at large” respectively. In spite of the introduction of these safeguards, the procedure of intercepting telephone communications under the Telegraph Act is criticised for lack of transparency and improper implementation. For instance, a 2014 report revealed that around 7500 – 9000 phone interception orders were issued by the Central Government every month. The application of procedural safeguards, in each case would have been physically impossible given the sheer numbers. Thus, legislative and judicial oversight becomes a necessity in such cases.
The constitutionality of India’s surveillance apparatus inclduing section 69 of the IT Act which allows for surveillance on broader grounds on the basis of necessity and expediency and not ‘public emergency’ and ‘public safety’, has been challenged before the Supreme Court and is currently pending. Clause 35 of the Bill also mentions necessity and expediency as prerequisites for the government to exercise its power to grant exemption, which appear to be vague and open-ended as they are not defined. The test of necessity, implies resorting to the least intrusive method of encroachment up on privacy to achieve the legitimate state aim. This test is typically one among several factors applied in deciding on whether a particular intrusion on a right is tenable or not, under human rights law. In his concurring opinion in Puttaswamy (I) J. Kaul had included ‘necessity’ in the proportionality test. (However, this test is not otherwise well developed in Indian jurisprudence). Expediency, on the other hand, is not a specific legal basis used for determining the validity of an intrusion on human rights. It has also not been referred to in Puttaswamy (I) as a basis of assessing a privacy violation. The use of the term ‘expediency’ in the Bill is deeply worrying as it seems to bring down the threshold for allowing surveillance which is a regressive step in the context of cases like PUCL and Puttaswamy (I). A valid law along with the principles of proportionality and necessity are essential to put in place an effective system of checks and balances on the powers of the executive to provide exemptions. It seems unlikely that the clause will pass the test of proportionality (sanction of law, legitimate aim, proportionate to the need of interference, and procedural guarantees against abuse) as laid down by the Supreme Court in Puttaswamy (I).
The Srikrishna Committee report had recommended that surveillance should not only be conducted under law (and not executive order), but also be subject to oversight, and transparency requirements. The Committee had argued that the tests of lawfulness, necessity and proportionality provided for under clauses 42 and 43 (of the Draft Bill 2018) were sufficient to meet the standards set out under the Puttaswamy judgment. Since the PDP Bill completely does away with all these safeguards and leaves the decision to executive discretion, the law is unconstitutional. After the Bill was introduced in the Lok Sabha, J. Srikrishna had criticised it for granting expansive exemptions in the absence of judicial oversight. He warned that the consequences could be disastrous from the point of view of safeguarding the right to privacy and could turn the country into an “Orwellian State”. He has also opined on the need for a separate legislation to govern the terms under which the government can resort to surveillance.
Clause 36 of the Bill deals with exemption of some provisions for certain processing of personal data. It combines four different clauses on exemption which were listed in the Draft Bill 2018 (clauses 43, 44, 46 and 47). These include processing of personal data in the interests of prevention, detection, investigation and prosecution of contraventions of law; for the purpose of legal proceedings; personal or domestic purposes; and journalistic purposes. The Draft Bill 2018 had detailed provisions on the need for a law passed by Parliament or the State Legislature which is necessary and proportionate, for processing of personal data in the interests of prevention, detection, investigation and prosecution of contraventions of law. Clause 36 of the Bill does not enumerate the need for a law to process personal data under these exemptions. We hadargued that these exemptions granted by the Draft Bill 2018 (clauses 43, 44, 46 and 47) were wide, vague and needed clarifications, but the exemptions under clause 36 of the Bill are even more ambiguous as they merely enlist the exemptions without any specificities or procedural safeguards in place.
In the Draft Bill 2018, the Authority could not give exemption from the obligation of fair and reasonable processing, measures of security safeguards and data protection impact assessment for research, archiving or statistical purposes As per the current Bill, the Authority can provide exemption from any of the provisions of the Act for research, archiving or statistical purposes.
The last addition to this chapter of exemptions is that of creating a sandbox for encouraging innovation. This newly added clause 40 is aimed at encouraging innovation in artificial intelligence, machine-learning or any other emerging technology in public interest. The details of what the sandbox entails other than exemption from some of the obligations of Chapter II might need further clarity. Additionally, to be considered an eligible applicant, a data fiduciary has to necessarily obtain certification of its privacy by design policy from the DPA, as mentioned in clause 40(4) read with clause 22.
Though well appreciated for its intent, this provision requires clarification on grounds of selection and details of what the sandbox might entail.
 At the time of introduction of the PDP Bill 2019, the Minister for Law and Justice of India, Mr. Ravi Shankar Prasad suggested that over 2000 inputs were received on the Draft Bill 2018, based on which changes have been made in the PDP Bill 2019. However, these comments and inputs have not been published by MeitY, and only a handful of comments have been published, by the stakeholders submitting these comments themselves.
After months of speculation, the Committee of Experts on data protection (“Committee”), led by Justice B N Sri Krishna, has submitted its recommendations and a draft data protection bill to the Ministry of Electronics and Information Technology (“MEITY”) today. As we sit down for some not-so-light weekend reading to understand what our digital futures could look like if the committee’s recommendations are adopted, this series puts together a quick summary of the Personal Data Protection Bill, 2018 (“Bill”).
Scope and definitions
The Committee appears to have moved forward with the idea of a comprehensive, cross-sectoral data protection legislation that was advocated in its white paper published late last year. The Bill is meant to apply to (i) the processing of any personal data, which has been collected, disclosed, shared or otherwise processed in India; and (ii) the processing of personal data by the Indian government, any Indian company, citizen, or person / body of persons incorporated or created under Indian law. It also applies to any persons outside of India that engage in processing personal data of individuals in India. It does not apply to the processing of anonymised data.
The Bill continues to use the 2-level approach in defining the type of information that the law applies to. However, the definitions of personal data and sensitive personal data have been expanded upon significantly when compared to the definitions in our current data protection law.
Personal data includes “data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, or any combination of such features, or any combination of such features with any other information”. The move towards relying on ‘identifiability’, when read together with definitions of terms such as ‘anonymisation’, which focuses on irreversibility of anonymisation, is welcome, given that section 2 clearly states that the law will not apply in relation to anonymised data. However, the ability of data processors / the authority to identify whether an anonymisation process is irreversible in practice will need to be examined, before the authority sets out the criteria for such ‘anonymisation’.
Sensitive personal data on the other hand continues to be defined in the form of a list of different categories, albeit a much more expansive list, that now includes information such as / about official identifiers, sex life, genetic data, transgender status, intersex status, caste or tribe, and religious and political affiliations / beliefs.
Interestingly, the Committee has moved away from the use of other traditional data protection language such as data subject and data controller – instead arguing that the relationship between an individual and a person / organisation processing their data is better characterised as a fiduciary relationship. Justice Sri Krishna emphasised this issue during the press conference organised at the time of submission of the report, noting that personal data is not to be considered property.
Collection and Processing
The Bill elaborates on the notice and consent mechanisms to be adopted by ‘data fiduciaries’, and accounts for both data that is directly collected from the data principal, and data that is obtained via a third party. Notice must be given at the time of collection of personal data, and where data is not collected directly, as soon as possible. Consent must be obtained before processing.
The Committee’s earlier white paper, and the report accompanying the Bill have both discussed the pitfalls in a data protection framework that relies so heavily on consent – noting that consent is often not informed or meaningful. The report however also notes that it may not be feasible to do away with consent altogether, and tries to address this issue by way of adopting higher standards for consent, and purpose limitation. The Bill also provides that consent is to be only one of the grounds for processing of personal data. However, this seems to result in some catch-all provisions allowing processing for ‘reasonable purposes’. While it appears that these reasonable purposes may need to be pre-determined by the data protection authority, the impact of this section will need to be examined in greater detail. The other such wide provision in this context seems to allow the State to process data – another provision that will need more examination.
Sensitive personal data
Higher standards have been proposed for the processing of sensitive personal data, as well as personal / sensitive personal data of children. The emphasis on the effect of processing of certain types of data, keeping in mind factors such as the harm caused to a ‘discernible class of persons’, or even the provision of counselling or child protection services in these sections is welcome. However, there remains a wide provision allowing for the State to process sensitive personal data (of adults), which could be cause for concern.
Rights of data principals
The Bill also proposes 4 sets of rights for data principals: the right to confirmation and access, the right to correction, the right to data portability, and the right to be forgotten. There appears to be no right to erasure of data, apart from a general obligation on the data fiduciary to delete data once the purpose for collection / processing of data has been met. The Bill proposes certain procedural requirements to be met by the data principal exercising these rights – an issue which some have already pointed out may be cause for concern.
Transparency and accountability
The Bill requires all data fiduciaries to adopt privacy by design, transparency and security measures.
Each data fiduciary is required to appoint a data protection officer, conduct data protection impact assessments before the adoption of certain types of processing, maintain records of data processing, and conduct regular data protection audits. These obligations are applicable to those notified as ‘significant data fiduciaries’, depending on criteria such as the volume and sensitivity of personal data processed, the risk of harm, the use of new technology, and the turnover of the data fiduciary.
The requirements for data protection impact assessments is interesting – an impact assessment must be conducted before a fiduciary undertakes any processing involving new technologies, or large scale profiling or use of sensitive personal data such as genetic or biometric data (or any other data processing which carries a risk of significant harm to data principals). If the data protection authority thinks that such processing may cause harm (based on the assessment), they may direct the fiduciary to cease such processing, or impose conditions on the processing. The language here implies that these requirements could be applicable to processing by the State / private actors, where new technology is used in relation to Aadhaar, among other things. However, as mentioned above, this will be subject to the data fiduciary in question being notified as a ‘significant data fiduciary’.
In a welcome move, the Bill also provides a process for notification in the case of a breach of personal data by data fiduciaries. However, this requirement is limited to notifying the data protection authority, which then decides whether there is a need to notify the data principal involved. It is unfortunate that the Committee has chosen to limit the rights of data principals in this regard, making them rely instead on the authority to even be notified of a breach that could potentially harm them.
Cross border transfer of data
In what has already become a controversial move, the Bill proposes that at least one copy of all personal data under the law, should be stored on a server or data centre located in India. In addition, the central government (not the data protection authority) may notify additional categories of data that are ‘critical’ and should be stored only in India.
Barring exceptions in the case of health / emergency services, and transfers to specific international organisations, all transfer of personal data outside India will be subject to the approval of the data protection authority, and in most cases, consent of the data principal.
This approval may be in the form of approval of standard contractual clauses applicable to the transfer, or a blanket approval of transfers to a particular country / sector within a country.
This provision is ostensibly in the interest of the data principals, and works towards ensuring a minimum standard of data protection. The protection of the data principal under this provision, like many other provisions, including those relating to data breach notifications to the data principal, will be subject to the proper functioning of the data protection authority. In the past, we have seen that simple steps such as notification of security standards under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, have not been undertaken for years.
In the next post in this series, we will discuss the functions of the authority, and other provisions in the Bill, including the exemptions granted, and penalties and remedies provided for.