The United Nations Ad-hoc Committee for Development of an International Cybercrime Convention: Overview and Key Observations from Fourth Substantive Session (Part II)

Sukanya Thapliyal

Introduction 

In Part I of this two-part blog series, we provided our readers a brief overview and observations from the discussions pertaining to the second reading of the provisions on criminalisation of offences under the proposed convention during the Fourth Session of the Ad-hoc Committee. In Part II of the series, we will be laying down our reflections and learnings from the discussions that were held in regard to: (i) General Provisions; and (ii) Provisions on Procedural Measures and Legal Enforcement. We also attempt to familiarise the reader with the emerging points of convergence and divergence of opinions among different Member States and implications for the future negotiation process.

1. General Provisions 

Chapter 1 of the Consolidated Negotiating Document (CND) includes five articles: statement and purposes (article 1), use of terms (article 2), scope and application (article 3), the protection of sovereignty (article 4), and protection of human rights (article 5). In the first round of discussions on General Provisions, the Member Countries, the European Union, in its capacity as observer, and the observers for non-member States provided their preliminary views on different provisions so as to allow the Secretariat to identify provisions that enjoy broad support and others where participants held divergent views. 

Round 1 Discussions

1. Points of Agreement  (Advanced to Second Round of Discussions)

A majority of the participants held positive views on the provisions enlisted under the General Provisions. They sought to strengthen several of these provisions. For example: developing countries including Iran, Jamaica (on behalf of the Caribbean Community), South Africa, and Egypt were in favour of a more elaborate and strongly worded provision on technical assistance. Similarly, several countries including, European Union, Japan, USA, Switzerland, New Zealand, Canada, and others sought (i) strong safeguards for protection of human rights and other fundamental freedoms and (ii) mainstreaming of gender perspective and (iii) consideration of persons and groups vulnerable to cybercrime. 

2. Points of Disagreement  (Subject to Co-facilitated Informal Negotiations)

The discussion witnessed divergences in relation to Article 2 (Use of Terms) of the CND. Countries including India and Russia were in favour of usage of the term “ICT” over “cybercrime” as the former is wider in nature and has been used in UN General Assembly-Resolution 74/247 that established the mandate for the Ad-Hoc Committee. On the other hand, countries including the USA, Japan, Israel, and others were in favour of “cybercrime” for being more widely understood and recognised under the domestic legal framework of various countries and already employed under several international legal instruments. The chair, therefore, took up the decision to pursue the deliberation on the said provision in the co- facilitated informal consultations under the able leadership of Mr H.E. Mr. Rapulane Sydney Molekane, Ambassador and Permanent Representative of South Africa to the United Nations, Vienna, and Mr. Eric Do Val Lacerda Sogocio, Counsellor, Permanent Mission of Brazil to the United Nations, Vienna, and Vice-Chair of the Ad Hoc Committee.

3. Co-Facilitated Informal Consultations 

The co-facilitated informal consultations witnessed detailed deliberations on the use of terminologies to be defined under the draft Convention. The deliberations represented initial exchange of views without prejudice to the future informal discussion. They shall continue ahead of, during and beyond the 5th session to allow for a common understanding on key terms in order to facilitate consensus on several provisions throughout the text of the future convention.

Round 2 Discussions

Further, in the second round of discussion on provisions that enjoy wider support, the participants brainstormed on the final language of the provisions. Several Member Countries proposed terms/ phrases and even provisions that they considered more reflective of their needs and preferences. For instance: Member Countries including Russia, Tajikistan and India proposed the usage of “detect, prevent, suppress and investigate cybercrime/ use of ICTs for criminal use” in place of “prevent and combat cybercrime/ use of ICTs for criminal use.” In addition, India also proposed the usage of “the collection and sharing of electronic and digital information/evidence” in place of “collection of electronic evidence”. Further, countries including Malaysia, Honduras and Singapore proposed for “proper balance between the interests of law enforcement and the respect for fundamental human rights” to the provision detailing the Statement of Purpose for the Convention. Similar proposals were made on provisions relating to protection of sovereignty, respect for human rights and scope of the application respectively.

The discussions relating to General Provision at the Ad-Hoc Committee process do not suffer from irreconcilable differences.  Member Countries have showcased a growing sense of convergence on provisions relating to protection of human rights and other fundamental freedoms. There is also a broad support for mainstreaming the gender perspective within the convention. The Member Countries, however, have outstanding work in relation to definitions and use of terms under the proposed convention. 

II. Provisions on Procedural Measures and Legal Enforcement 

Chapter 3 of the CND laid out provisions for – a] investigation and prosecution of offences, b] collection and sharing of information and electronic evidence, c] conditions and safeguards highlighting the need for and importance of the protection of human rights and liberties, insertion of principles of proportionality, necessity and legality and d] the protection of privacy and personal data for the purposes of the convention. The chapter included 16 articles divided into the following six clusters:

1. Cluster 1: provisions on jurisdiction, scope of procedural measures and conditions and safeguards
2. Cluster 2: procedural measures for expedited preservation of stored data; expedited preservation and disclosure of traffic data, production order, search and seizure, real-time collection of traffic data, interception of content, among others.
3. Cluster 3: procedural measures relating to freezing, seizure and confiscation of assets, establishment of criminal records, protection of witnesses and victims, and compensation for damage suffered.

Round 1 Discussions 

1. Points of Agreement (Advanced to Second Round of Discussions)

In the first round of discussions, the Member Parties unanimously recognised the importance of the provisions on procedural measures and legal enforcement and their role in laying the solid foundation for the practical international cooperation and implementation of this convention. The first round of discussions witnessed a broad agreement on the majority of the provisions under Cluster 1, 2 and 3 of CND. 

Furthermore, several Member Parties, Observer States including the European Union, India, Japan, UK, Norway, Canada, Australia, Kenya, and Israel affirmed their support on the inclusion and further strengthening of Article 42 that lays out Conditions and Safeguards that ensure adequate protection of human rights and liberties, including rights and fundamental freedoms arising from obligations under applicable international human rights law. 

Several Participant Countries also highlighted the close correlation between Article 42 and Article 41 (Scope of Procedural Measures) as being inextricably linked to one another and stated that strong procedural measures must be accompanied by robust human rights safeguards. The participant Member Countries and Observer States were broadly in agreement on inclusion of Article 43 (Expedited Preservation of Stored Computer Data), Article 44 (Expedited Preservation and Partial Disclosure of Traffic Data), Article 45 (Production Order), Article 46 (Search and Seizure) and Cluster 3 provisions (Article 50-55) of the CND. 

2. Points of Disagreement (Subject to Co-facilitated Informal Negotiations)

There was disagreement on the inclusion of Article 40 (jurisdiction), Article 47 (Real Time Collection of Traffic Data), Article 48 (Interception of Content Data) and Article 49 (Admission of electronic/digital evidence) respectively. Member Countries and Observer States and other participants including Switzerland, Japan, USA, European Union, Australia, Norway, UK, Canada raised concerns on Article 40 that allowed for extraterritorial jurisdiction of State and jurisdiction over computer data/ digital or electronic information irrespective of place of storage, screening or processing. As per the participant countries and observer states, such a provision is not in consonance with the traditional understanding of jurisdiction and may not be in alignment with Article 4 (Protection of Sovereignty) enlisted in the CND. 

Further, Member States and Observer States including EU, UK, Japan, Australia, and Norway also raised concerns on inclusion of Article 47 and 48 as these significantly interfere with human rights and are considered to be extremely sensitive in nature.  Singapore, in particular, opposed the inclusion of these provisions and stated that its inclusion has a limited utility and is likely to deter states from signing the final convention. India along with USA, Malaysia, Jamaica on the behalf of Caribbean Community (CARICOM) were in favour of inclusion of these provisions. India, in particular, also requested for the definitional clarity on terms such as “traffic data”. Besides, the participant member countries and observer states were disputed on inclusion of Article 49 and stated that the convention on cybercrime is not appropriate to include issues pertaining to admissibility of electronic evidence and is to be dealt under State’s domestic law and judicial rulings. 

3. Co-Facilitated Informal Sessions 

The chair accordingly delegated the discussion on Article 40, 47, 48 and 49 for the co-facilitated informal negotiation process to be undertaken under the leadership of Mrs. Andrea Martin-Swaby (Jamaica) and Mr. Syed Noureddin Bin Syed Hassim (Singapore).

The co-facilitated informal negotiation process underwent detailed discussions amongst participant Member States, Observer States and multi-stakeholders. The co-facilitators informed the Chair of the various developments that took place during the informal negotiation and that the co-facilitators would conduct intersessional bilateral meetings with delegations and convene additional informal negotiations of the Committee at the 5th Session scheduled in April 2023.

Round 2 Discussions 

Subsequently, in the second round of discussions, several newer contributions were made in the context of provisions laying out Conditions and Safeguards. There was also a proposal for additional provision relating to Retention of Traffic Data and Metadata, and Retention of Electronic Information in CND. Further, additional provisions on Cooperation between national authorities and service providers were also proposed and introduced in the CND for further deliberation. 

The CND and deliberations at the Fourth Session of the Ad-Hoc Committee process crystallised a number of interesting submissions and proposals made by the Member Countries over past sessions. The CND enlisted provisions aimed to redress current challenges faced by the legal enforcement agencies by providing appropriate authority allowing for expedited preservation of Stored Computer Data, expedited preservation and partial disclosure of traffic data, search and seizure, real time collection of traffic data, interception of content data, among others. 

The process, however, also witnessed disagreement on provisions relating to the understanding of jurisdiction, cooperation between national investigating and prosecuting authorities and service providers – as evident from the developments that took place in previous sessions. It is likely that the Secretariat and Member Countries will be continuing these deliberations to build consensus over conflicting issues. 

The Way Forward The proceedings at the Ad-Hoc Committee process have arrived at a critical juncture wherein Member Countries have begun text-based negotiations spearheaded by the Chair and Secretariat. The Ad-Hoc Committee will organise the Fifth Session from 11 to 21 April 2023 in Vienna as an immediate next step. The session will conduct text-based negotiations based on CND on the preamble, the provisions on international cooperation, preventive measures, technical assistance, and the mechanism of implementation, and the final provisions of a comprehensive international convention on countering the use of information and communications technologies for criminal purposes. The upcoming sessions would be crucial in determining whether and how Member Countries would draw consensus and build toward an effective cybercrime convention that caters to the needs and expectations of the wide variety of countries participating in the UN process.

Reflections on Second Substantive Session of UN OEWG on ICT Security (Part 2): Threats, Cyber Norms and International Law

Ananya Moncourt & Sidharth Deb

“Aspects of Cyber Conflict (pt. 3)” by Linda Graf is licensed under CC BY 4.0

Introduction

Part 1 of this three part series on the second substantive session of the United Nations’ (UN) Open-Ended Working Group (OEWG) on ICT security (2021-25) analysed key organisational developments regarding multistakeholder participation. The post contextualised the OEWG’s institutional mandate, analysed the impact of the Russia-Ukraine conflict on discussions, traced differing State positions, and critiqued the overall inclusiveness of final modalities on stakeholder participation at the OEWG.

This post (and subsequently Part 3) analyses substantial discussions at the session held between March 28 and April 01, 2022. These discussions were organised according to the OEWG’s mandate outlined in UN General Assembly (GA) Resolution 75/240. Accordingly, Part 2’s analysis covers:

• existing and potential threats to “information security”.
• rules, norms and principles of responsible State behaviour i.e. cyber norms.
• international law’s applicability to States’ use of ICTs.

Both posts examine differing State interventions, and India’s interventions under each theme. The combined analysis of Parts 2 and 3 provides evidence that UN cybersecurity processes struggle with an inherent tension. This relates to the dichotomy between the OEWG’s mandate, which is based on confidence building, cooperation, collective resilience, common understanding and mutual accountability; as against the geopolitical rivalries which shape multilateralism. Specifically, it demonstrates the role of lawfare within these processes.

Existing and Potential Threats

Discussions reflected the wide heterogeneities of States’ perceptions of threats in cyberspace. The US, UK, EU, Estonia, France, Germany, Canada, Singapore, Netherlands and Japan prioritise securing critical infrastructure and ICT supply chains. Submarine cables, communication networks, rail systems, the public core of the internet, healthcare infrastructure and information assets, humanitarian databases, and oil and gas pipelines were cited as contemporary targets. Ransomware and social engineering were highlighted as prominent malicious cyber techniques.

In contrast, Russia, China and allies like Syria, Cuba and Iran urged the OEWG to address threats which conform to their understanding of “information security”. Premised on information sovereignty and domestic regime stability, prior proposals like the International Code of Conduct for Information Security offers a template in understanding their objectives. These States advocate regulating large-scale disinformation, terrorism, recruitment, hate speech and propaganda occurring over private digital platforms like social media. Cuba described such ICTs as tools for interventionism and destabilisation which interfere in States’ internal affairs. Iran and Venezuela cautioned States against using globally integral ICT systems as conduits for illegitimate geopolitical goals, which compromise other States’ cyber sovereignty—a recurring theme of these States’ engagement at the session.

Netherlands and Germany described threats against democratic and/or electoral processes as threats to critical infrastructure. Similarly, France described disinformation as a risk to security and stability in cyberspace. This is important to track since partial intersections with the Sino-Russian understanding of information security could increase future prospects of information flows regulation at the OEWG.

Developing States like Brazil, Venezuela and Pakistan characterised the digital/ICT divide between States as a major threat to cyberspace stability. Thus, capacity building, multistakeholder involvement and international cooperation — at CERT, policymaking and law enforcement levels — were introduced early as key elements of international cybersecurity. UK and Russia supported this agenda. France, China and Ecuador identified the development of cyber offensive capabilities as an international threat since they legitimise cyberspace as a theatre of military operations.

India’s participation in this area treads a middle ground. ICT supply chain security across infrastructure, products and services; and the protection of “critical information infrastructures” (CIIs) integral to economies and “social harmony” were stated priorities. Notably, the definition of CIIs under the Information Technology Act does not cite social harmony. India cited ransomware, misinformation, data security breaches and “… mismatches in cyber capabilities between Member States” as contemporary threats. To mitigate these threats, India advocated for improved information sharing and cooperation at technical, policy and government levels across Member States.

Cyber Norms

States disagreed on whether prior GGE and OEWG consensus reports serve as a minimum baseline for future cyber norms discussions. The Sino-Russian camp which includes Iraq, Nicaragua, Pakistan, Belarus, Cuba and others argued that cyber norms are an insufficient fix, and instead proposed a new legally binding instrument on international cybersecurity. China proposed a Global Initiative on Data Security as a blueprint for such a framework. Calls for treaties/conventions could trigger reintroduction of prior proposals on information security by these States.

The US, UK, Australia, Japan, France, Germany, Netherlands and allied States, and developing countries like Brazil, Argentina, Costa Rica, South Africa and Kenya argued that, instead of revisiting first principles, the current OEWG’s focus should be the implementation of earlier agreed cyber norms. Self-assessment of States’ implementation of the cyber norms framework was considered an international first step. The United Nations Institute for Disarmament Research (UNIDIR) in partnership with Australia, Canada, Mexico and others, launched a new national survey tool to gauge countries’ trajectories in implementation. Since cyber norms are voluntary, the survey serves as a soft mechanism of accountability, a platform which democratises best practices, and a directory of national points-of-contact (PoCs) wherein States can connect and collaborate.

States also raised substantive areas for discussions on new norms or clarifications on existing ones. Netherlands, US, UK and Estonia called for protections safeguarding the public core of the internet, since it comprises the technical backbone infrastructure in cyberspace which facilitates freedom of expression, peaceful assembly and access to online information. “Due diligence”— which requires States to not allow their territory to be used for internationally wrongful acts—was another substantive area of interest.

ICT supply chain integrity and attribution generated substantial interest. Given the close scrutiny on domestic companies, under this theme China recommended new rules and standards on international supply chain security. If analysed through lawfare this proposal perhaps aims to minimise targeted State measures against Chinese ICT suppliers in both telecom and digital markets.

The US pressed for deliberations on “attribution” and specifically public attribution of State-sponsored malicious cyber activities. China cautioned against hasty public attributions since it may cause escalation and inter-State confrontation. China argued that attributions on cyber incidents require complete and sufficient technical evidence. The sole emphasis on technical evidence (which ignores surrounding evidence and factors) could be strategic since it creates a challenging threshold for attribution. As a result it could counter-intuitively end up obfuscating the source of malicious activities in cyberspace.

Discussions on “critical infrastructure” protection also raised important interventions. Singapore stated that critical infrastructure security should protect electoral and democratic integrity. China argued for an international definition of “critical infrastructure” consistent with sovereignty. Over time such representations could further legitimise greater information controls and embed the Sino-Russian conception of information security within global processes.

India focused on supply chain integrity, critical infrastructure protection and greater institutional and policy cooperation. They advocated close cooperation in matters involving criminal and terrorist use of ICTs. There were also brief references to democratisation of cyber capabilities across Member States and the role of cloud computing infrastructure in future inter-State conflicts. This served as a prelude to India’s interventions under international law.

International Law

Familiar geopolitical fragmentations shaped discussions. Russia, China, Cuba, Belarus, Iran, and Syria called for a binding international instrument which regulates State behaviour in cyberspace. Belarus argued that extant international legal norms and the UN Charter lack meaningful applicability to modern cyber threat landscapes. Russia and Syria called for clarity on what areas and issues fall within the sphere of international cybersecurity. Viewed through the lens of lawfare, it appears that such proposals aim to integrate their conceptions of information security within OEWG discussions.

EU, Estonia, Australia and France argued this would undermine prior international processes and the cyber norms framework. The US, UK, Australia, Canada, Brazil, France, Japan, Germany and Korea instead focused on developing a common understanding on international law’s applicability to cyberspace, including the UN Charter. They pushed for dialogue on international humanitarian law, international human rights law, prohibition on the use of force, and the right to self-defence against armed attacks. Similar to previous failed negotiations at the 5^th GGE, these issues continue to remain contentious areas. For instance, Cuba argued against the applicability of the right to self-defence since no cybersecurity incident can qualify as an “armed attack”.

Sovereignty, sovereign equality and non-interference in States’ internal affairs were prominent issues. Other substantive areas included attribution (technical, legal and political), critical infrastructure protection and the peaceful settlement of disputes. To enable common understanding and potential consensus on international law, the US, Singapore and Switzerland advocated the OEWG follow a similar approach to the 6^th UN GGE. Specifically, they suggested developing a voluntary compendium of national positions on the applicability of international law in cyberspace.

India addressed issues relating to sovereignty, non-intervention in internal affairs, prohibition of the use of force, attribution, and dispute settlement. It discussed the need to assign international responsibility on States for cyber operations emerging from one State and which have extra-territorial effects. They argued for States enjoying the sovereignty to pass domestic laws/policies towards securing their ICT environments. India advocated imposing upon States an obligation to take reasonable steps to stop ICT-based internationally wrongful acts domestically. Finally, it highlighted that international law must adapt to the role of cloud computing hosting data/malicious activities in cross-border settings.

Conclusion | Previewing Part 3

In Part 2 of this series on the second substantive session of the OEWG on ICT Security (2021-25) we have analysed States’ interventions on matters relating to existing and potential threats to information security; the future role of cyber norms for responsible State behaviour in cyberspace; and the applicability of international law within cyberspace. In Part 3 we assess discussions relating to confidence building measures, capacity building and regular institutional dialogue. While this post reveals the geopolitical tensions which influence international cybersecurity discussions, the next post focuses extensively on the international cooperation, trust building, technical and institutional collaboration, and developmental aspects of these processes.

Understanding CERT-In’s Cybersecurity Directions, 2022

Sukanya Thapliyal

“Cyber Specialists” by Khahn Tran is licensed under CC BY 4.0

INTRODUCTION

The Indian Government is set to initiate a widely discussed cybersecurity regulation later this month. On April 28, 2022, India’s national agency for computer incident response, also known as the Indian Computer Emergency Response Team (CERT-In), released Directions relating to information security practices, the procedure, prevention, response, and reporting of cyber incidents for Safe & Trusted Internet. These Directions were introduced under section 70B(6) of India’s Information Technology Act, 2000 (IT Act). This provision allows CERT-In to call for information and issue Directions to carry out its obligations relating to:
1. facilitating the collection, analysis and dissemination of information related to cyber incidents,
2. releasing forecasts and alerts, and
3. taking emergency measures.

According to the IT Act, the new Directions are mandatory in nature, and non-compliance attracts criminal penalties which includes imprisonment of up to one year. The notification states that the Directions will become effective 60 days from the days of issuance i.e. on June 28, 2022. The Directions were later followed by a separate Frequently Asked Questions (FAQ) document, released as a response to stakeholder queries and concerns.

These Directions have been introduced in response to increasing instances of cyber security incidents which undermine national security, public order, essential government functions, economic development, and security threats against individuals operating through cyberspace. Further, recognizing that the private sector is a crucial component of the digital ecosystem, the Directions also push for closer cooperation between private organisations and government enforcement agencies. Consequently, the Directions have identified sharing of information for analysis, investigation, and coordination concerning the cyber security incidents as one of its prime objectives.

POLICY SIGNIFICANCE OF DIRECTIONS

Presently, Indian cybersecurity policy lacks a definite form. The National Cyber Security Policy (NCSP) was released in 2013 serves as an “umbrella framework for defining and guiding the actions related to security of cyberspace”. However, the policy has seen very limited implementation and has been mired in a multi-year reform which awaits completion. The new cybersecurity strategy is still in the works, and there is no single agency to oversee all relevant entities and hold them accountable.

Cybersecurity policymaking and governance are progressing through different government departments at national and state levels in silos and in a piecemeal manner. Several cybersecurity experts have also identified the lack of adequate technical skills and resource constraints as a significant challenge for government bodies. The Indian cybersecurity policy landscape needs to address these existing and emerging threats and challenges by instilling appropriate security standards, efficient implementation of modern technologies, framing of effective and laws and security policies, and adapting multi-stakeholder approaches within cybersecurity governance.

Industry associations and lobby groups such as US Chamber of Commerce (USCC), US-India Business Council (USIBC), The Software Alliance (BSA), and Information Technology Industry Council (ITI) have responded to the Directions with criticism. These organisations have stated that these Directions, in present format, would negatively impact Indian and global enterprises and undermine cybersecurity. Moreover, the Directions were released without any public consultations and therefore, lack necessary stakeholder inputs from across industry, civil society, academia and technologists.

The new CERT-In Directions mandate covered entities (service providers, intermediaries, data centers, body corporate and governmental organisations) to comply with prescriptive requirements that include time synchronisation of ICT clocks, excessive data retention requirements, 6 hr reporting requirement of cyber incidents, among others. The next section critically evaluates salient features of the Directions.

SALIENT FEATURES OF THE DIRECTIONS

Time Synchronisation: Clause (i) of the Directions mandates service providers, intermediaries, data centers, body corporate and governmental organisations to connect to the Network Time Protocol (NTP) Server of National Informatics Centre (NIC) or National Physical Laboratory (NPL) or with NTP servers traceable to these NTP servers, for synchronisation of all their ICT systems clocks. For organisations whose operations span multiple jurisdictions, the Directions allow relaxation by allowing them to use alternative servers. However, the time source of concerned servers should be the same as that of NPL or NIC. Several experts have raised that the requirement as extremely cumbersome, resource-intensive, and not in conformity with industry best practices. As per the established practice, companies often base their decision regarding NTP servers on practicability (lower latency) and technical efficiency. The experts have raised concerns over the technical and resource constraints with NIC and NPL servers in managing traffic volumes, and thus questioning the practical viability of the provision. .

Six-hour Reporting Requirement: Clause (ii) requires covered entities to mandatorily report cyber incidents within six hours of noticing such incidents or being notified about such incidents. The said Direction imposes a stricter requirement than what has been prescribed under Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013 (CERT-In Rules) that allows the covered entities to report the reportable cyber incident within “a reasonable time of occurrence or noticing the incident to have scope for timely action”. The six hour reporting requirement is also stricter than the established norms in other jurisdictions, including the USA, EU, UK, and Australia. Such reporting requirements normally range from 24 hours to 72 hours, depending upon the affected sector, type of cyber intrusion, and attack severity. The CERT-In Directions make no such distinctions in its reporting requirement. Further, the reportable cyber security incidents under Annexure 1 feature an expanded list of cyber incidents (compared to what are mentioned in the CERT-In Rules). These reportable cyber incidents are defined very broadly and range from unauthorised access to systems, identity theft, spoofing and phishing attacks to data branches and data theft. Considering that an average business entity with digital presence engages in multiple digital activities and there is no segregation on the basis of scale or severity of incident, the Direction may be impractical to achieve, and may create operational/compliance challenges for many smaller business entities covered under the Directions. Government agencies often require business entities to comply with incident/breach reporting requirements to understand macro cybersecurity trends, cross-cutting issues, and sectoral weaknesses. Therefore, governments must design cyber incident reporting requirements tailormade to sectors, severity, risk and scale of impact. Not making these distinctions can make reporting exercise resource-intensive and futile for both affected entities and government enforcement agencies.

Maintenance of logs for 180 days for all ICT systems within India: Clause (iv) mandates covered entities to maintain logs of all the ICT systems for a period of 180 days and to store the same within Indian jurisdiction. Such details may be provided to CERT-In while reporting a cyber incident or otherwise when directed. Several experts have raised concerns over a lack of clarity regarding scope of the provision. The term “all ICT systems” in its present form could include a huge trove of log information that may extend up to 1 Terabyte a day. It further requires the entities to retain log information for 180 days as opposed to the current industry practice (30 days). This Direction is not in line with the purpose limitation and the data minimisation principles recognized widely in several other jurisdictions including EU’s General Data Protection Regulation (GDPR) and does not provide adequate safeguard against indiscriminate data collection that may negatively impact the end users. Further, many experts have pointed out that the concerned Direction lacks transparency and is detrimental to the privacy of the users. As the log information often carries personally indefinable information (PII), the provision may conflict with users informational privacy rights. CERT-In’s Directions are not sufficiently clear on the safeguard measures to balance legal enforcement objectives with the fundamental rights.

Strict data retention requirements for VPN and Cloud Service Providers: Clause (v) requires “Data Centres, Virtual Private Server (VPS) providers, Cloud Service providers, and Virtual Private Network Service (VPN Service) providers” to register accurate and detailed information regarding subscribers or customers hiring the services for a period of 5 years or longer after any cancellation or withdrawal of the registration. Such information shall include the name, address, and contact details of subscribers/ customers hiring the services, their ownership pattern, the period of hire of such services, and e-mail ID, IP address, and time stamp used at the time of registration. Clause (vi) directs virtual asset service providers, virtual asset exchange providers, and custodian wallet providers to maintain all KYC records and details of all financial transactions for a five year period. These Directions are resource-intensive and would substantially increase the compliance cost for many companies. It is also important to note that bulk data retention for a longer time period also creates greater vulnerabilities and attack surfaces of private/sensitive/commercial ICT use. As India is still to enact its data protection law, and the Directions are silent on fundamental rights safeguards, it has also led to serious privacy concerns. Further, some entities covered under this direction, including VPS or VPN providers, are privacy and security advancing services that operate on a strict no-log policy. VPN services provide a secure channel for storing and sharing information by individuals and businesses. VPNs are readily used by the business and individuals to protect themselves on unsecured, public Wifi networks, prevent website tracking, protect themselves from malicious websites, against government surveillance, and for transferring sensitive and confidential information. While VPNs have come under fire for being used by cybercriminals and other malicious actors, a blanket requirement for maintaining logs and excessive data retention requirement goes against the very nature of the service and may render these services pointless (and even insecure) for many users. The Frequently Asked Questions (FAQs), released following the CERT-In Directions have absolved the Enterprise/Corporate VPNs from the said requirement. However, the Directions still stand for VPN Service providers that provide “Internet proxy like services” to general Internet subscribers/users. As a result, some of the largest VPN service providers including NordVPN, and PureVPN have indicated the possibility of pulling their servers out of India and quitting their operations in India.

In a separate provision [Clause (iii)], CERT-In has also directed the service providers, intermediaries, data centers, body corporate, and government organisations to designate a point of contact to interface with CERT-In. The Directions have also asked the covered entities to provide information or any other assistance that CERT-In may require as part of cyber security mitigation actions and enhanced cyber security situational awareness.

CONCLUSION

Our ever-growing dependence on digital technology and its proceeds has exposed us to several vulnerabilities. Therefore, the State plays a vital role in intervening through concrete and suitable policies, institutions and digital infrastructures to protect against future cyber threats and attacks. However, the task is too vast to be handled by the governments alone and requires active participation by the private sector, civil society, and academia. While the government has a broader perspective of potential threats through law enforcement and intelligence organisations and perceives cybersecurity concerns from a national security lens, the commercial and fundamental rights dimensions of cybersecurity would benefit from inputs from the wider stakeholder community across the cybersecurity ecosystem.

Although in recent years, India has shown some inclination of embracing multi-stakeholder governance within cybersecurity policymaking, the CERT-In Directions point in the opposite direction. Several of the directions mentioned by the CERT-In, such as the six-hour reporting requirement, excessive data retention requirements, synchronisation of ICT clocks indicate that the government appear to adopt a “command and control” approach which may not be the most beneficial way of approaching cybersecurity issues. Further, the Directions have also failed to address the core issue of capacity constraints, lack of skilled specialists and lack of awareness which could be achieved by establishing a more collaborative approach by partnering with the private sector, civil society and academia to achieve the shared goal of cybersecurity. The multi stakeholder approaches to policy making have stood the test of time and have been successfully applied in a range of policy space including climate change, health, food security, sustainable economic development, among others. In cybersecurity too, the need for effective cross-stakeholder collaboration is now recognised as a key to solving difficult and challenging policy issues and produce credible and workable solutions. The government, therefore, needs to affix institutions and policies that fully recognize the need and advantages of taking up multi stakeholder approaches without compromising accountability systems that give due consideration to security threats and safeguard citizen rights.

Analysing India’s Bilateral MOUs In the Field of Information and Communication Technologies (ICTs)

Sukanya Thapliyal

Introduction

As per the latest figures released by the International Telecommunication Union (ITU), post-COVID-19, the world witnessed a sharp rise in the number of internet users from 4.1 billion people (54% of the world population) in 2019 to 4.9 billion people (63% of the world population) in 2021. However, the same report states that some 2.9 billion people remain offline, 96%  of whom live in developing countries. These stark differences emanate from several barriers faced by the residents of the developing countries and include lack of access because of unaffordability of ICT services, lack of strong technological and industrial bases, inadequate R&D facilities, and deficient ICT operating skills. 

Countries are increasingly exploring different ways to partner with other countries through multilateral, bilateral, and other legal arrangements. The countries often forge bilateral cooperation with other countries through signing Memorandum of Understanding(MOUs), Memorandum of Cooperation (MOCs) and creating Joint Working Groups, and Joint Declarations of Intent, among others. These are informal legal instruments as compared to typical treaties or international agreements, and promote international cooperation in strategic interest areas. India has a detailed Standard Operating Procedure (SOP) with respect to MOUs/agreements with foreign countries. The SOP lays down the Indian legal practice on treaty formation and detailed guidelines in respect to the different international agreements that may be signed by the countries. 

India has executed several MOUs, MOCs, Joint Declaration of Intent, and Working Groups to identify common interests, priorities, policy dialogue, and the necessary tools for ICT collaboration. These include a broad range of areas,  including the development of IT software,  telecom software, IT-enabled services, E-commerce services & information security, electronic governance, IT and electronics hardware, Human Resource Development for IT education, IT-enabled education, Research and Development, strengthening the cooperation between private and public sector, collaboration in the field of emerging technologies, capacity building and technical assistance in the ICT sector. 

Aims and Objectives

This mapping exercise lists the numerous bilateral MOUs, Joint Declarations and other agreements signed between India and partner countries to locate the nature and extent of international collaborative efforts in the ICT sector. Furthermore, this mapping exercise aims to understand India’s strategic interests and priority areas in the sector and evaluate India’s unique positioning in South-South Cooperation. The said mapping exercise remains a work in progress and shall be updated at periodic intervals. 

Methodology

The mapping exercise includes an assessment of 36 MOUs and 5 other agreements subdivided into four categories: Fixed Term/ Renewed ICT MOUs (13), Open-Ended ICT MOUs (4), ICT MOUs with Pending Renewal/ Extension and Expired MOUs (19), and Joint Declaration and Proposals concerning ICT Sector (5). The relevant details of  such MOUs are derived from publicly available information provided by the Ministry of Electronics and Information Society (MeitY), Department of Telecommunication (DoT), Ministry of Communications (MOC) and the Indian Treaties Database by Ministry of External Affairs (MEA). The current analysis attempts to bring out the different MOUs, MOCs, and Joint Declarations of Intent executed by Indian authorities (MeitY, MOC and MEA), their duration of operation and the areas covered under the scope of such collaboration.   

Conclusion/Observations/Remarks:

Some of our key observations from the mapping exercise are as follows: 

• India has entered into MOUs/ Joint Declaration of Intent and other agreements with both developed and developing countries. These include Bangladesh, Bulgaria, Estonia, Israel, Japan, South Korea, Singapore, United Kingdom, among others. 
• Within India’s ICT cooperation and collaboration landscape, we have identified the following as priority areas: 

Building capacity of CERTs and law enforcement agencies	1. Cybersecurity technology cooperation relevant to CERT activities. 2. Exchange of information on prevalent cybersecurity policies and best practices. 3. CERT-to-CERT Cooperation. 4. Exchange of experiences regarding technical infrastructure of CERT.
Technical assistance and capacity building	1. Human resource development including  training of Govt. officials in e-governance. 2. Institutional cooperation among the academic and training institutions. 3. Strengthening collaboration in areas such as e-government, m-governance, smart infrastructure, e-health, among others.
Sharing of technology, standardization and certification	1. Cooperation in software development, rural telecommunication, manufacturing of telecom manufacturing and sharing of know-how technologies. 2. Cooperation in exchanging and developing technology. 3. Standardisation, testing and certification.
B2B cooperation and economic advancement	1. Enhancing B2B cooperation in cyber security. 2.Enable and strengthen industrial, technological and commercial cooperation between industry and research establishments. 3.Exploring third country markets. 4. Favourable environment for the business entities through various measures to facilitate trade and investment.

Key Priority Areas for India in ICT Sector

Mapping MOUs signed by India in the field of Information and Communication Technologies (ICT), created using https://www.mapchart.net/world.html

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Second Substantive Session of UN OEWG on International Cybersecurity (Part 1): Analysing Developments on Stakeholder Participation

Ananya Moncourt & Sidharth Deb

“Cyber Attacks” by Christian Colen Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)

Introduction

On April 1st 2022, the United Nations General Assembly’s (UNGA’s) First Committee on Disarmament and International Security concluded the week-long second substantive session of the second Open-Ended Working Group (OEWG) on the security of and in the use of information and communication technologies (ICTs). This process is the UN’s second OEWG involving all 193 UN Member States on matters relating to international cybersecurity. There have also been six prior UN Group of Government Experts (GGEs) on similar issues.

This post is the first of a three-part series which analyses key developments at the OEWG’s second substantive session in the period between March 28 and April 01, 2022. This piece outlines discussions on a key issue – multistakeholder engagement within the OEWG process.

Readers can view it as a follow up to CCG’s two-part blog series from December 2021 which analysed major international cybersecurity discussions (including the international normative framework) at the UN and India’s participation in these processes. Part 1 begins by providing an overview of the scope of the OEWG’s institutional mandate, the geopolitical background in which the second substantive session was held, and analyses key organisational developments relating to the modalities of multistakeholder participation at the OEWG. It reveals geopolitical differences and where appropriate, spotlights India’s interventions on such issues.

Institutional Mandate

The second OEWG was established by UNGA Resolution 75/240 adopted on December 31, 2020. The resolution describes ICTs as “dual-use technologies” which can be used for both “… legitimate and malicious purposes”. This language within the resolution is curious since this would mean that dual-use technologies are capable of being used in lawful and unlawful scenarios. This is a departure from how “dual-use technologies” are traditionally defined as technologies which have both civilian and military applications and use cases.

Keeping this in mind, the resolution presciently expresses concern that some States are building up military ICT capabilities and that they could play active roles in future conflicts between States. Given their potential threat to national security, Resolution 75/240 establishes a new OEWG for the period between 2021 and 2025 which must act on a consensus basis. The second OEWG is expected to build on the aforementioned prior work of the GGEs and the first OEWG. The OEWG has been assigned a broad substantive mandate which includes:

1. Identifying existing and potential threats in the sphere of information security;
2. further developing the internationally agreed voluntary rules, norms and principles of responsible State behaviour in cyberspace. This entails identifying mechanisms for implementation and, if necessary, introducing and/or elaborating additional cyber norms;
3. developing an understanding of the manner in which international law applies to States’ use of ICTs;
4. capacity building and confidence-building measures on matters relating to international cybersecurity;
5. establishing mechanisms of regular institutional dialogue under the UN.

Resolution 75/240 specifies that aside from a final consensus report, the  OEWG must submit annual progress reports before the UNGA. Relevant to this post, the Resolution also grants the OEWG with the power to interact with non-governmental stakeholders. The OEWG’s Organisational Session in June 2021, States agreed to a total of eleven substantive sessions, the first of which was held in the period of December 13 to December 17, 2021.

Geopolitical Background to Second Substantive Session

At the second substantive session in the last week of March 2022 discussions were hindered by ongoing geopolitical tensions arising out of the international armed conflict owing to the Russian invasion of Ukraine. Cyberspace has played a strategic role within the conflict and has spanned several cyber incidents and operations. This includes strategic information campaigns and online influence operations. Moreover, the conflict has observed strategic incidents and operations which targeted government websites and extended to strategic measures critical information infrastructures across both public and private sectors. Key incidents prior to the session include a prominent attack on a satellite broadband network which affected internet availability for users across different parts of Europe.

The tensions have extended even to technical internet governance bodies like ICANN where for instance, Ukraine made unsuccessful requests to prevent Russian websites/domains from accessing the global internet. And as has been widely reported, the conflict has led to sanctions against Russian financial operators from executing cross-border transactions via globally interoperable ICT systems like the SWIFT network.

Such geopolitical realities mean that the OEWG’s progress which is rooted in consensus was adversely affected. Let us now consider a central organisational issue for the OEWG i.e. modalities of stakeholder participation.

Modalities of Stakeholder Participation

The value of rooting multistakeholderism into internet, ICT and cybersecurity governance is well documented. Most ICT systems are owned, controlled, used and/or managed by non-governmental stakeholders across the private sector and civil society. Field expertise is also largely situated outside of governments. However, under the UNGA First Committee, cybersecurity processes like the GGEs and the first OEWG have operated using state-centric, even exclusive, approaches.

UNGA Resolution 75/240 attempts to buck this trend and grants the OEWG the authority to interact with interested/relevant stakeholders from private sector, civil society and academia. For context, the first OEWG was the first cybersecurity discussion at the UN to involve some limited informal consultations between States and other stakeholders. The final substantive report, dated March 2021, even describes rich discussions and proposals from the multistakeholder community.

Despite this being an improvement upon the GGE model, experts contended that the first OEWG lacked direct or structured multistakeholder involvement. The first OEWG’s dialogue was described as ad-hoc, inconsistent and isolated. Similarly, consultation opportunities at the OEWG were largely limited to an exclusive class of accredited organisations at the UN’s Economic and Social Council (ECOSOC). Stakeholders expressed concern that a repeat of this approach would exclude discipline related field experts, private operators, and other relevant stakeholders. In lieu of this, certain States, regional organisations, non-governmental stakeholders, and individual experts have shared written inputs to the OEWG’s Chair calling for the adoption of modalities which facilitate transparent, structured and formal stakeholder involvement. The proposal put forth the additional option for non-accredited organisations to indirectly engage by sharing their views with the OEWG. To further inclusivity the proposal suggested that stakeholders be allowed to participate in both formal and informal consultations through a hybrid physical/virtual format.

Unfortunately, this issue was not resolved at either the OEWG’s Organisational Session in June 2021, nor its First Substantive Session in December 2021. At these discussions Member States like the EU, Canada, France, Australia, Brazil, Germany, the Netherlands, UK, USA and New Zealand advocated broader, structured, transparent and formal involvement of stakeholders. The transparency component was a point of emphasis for these jurisdictions. This proposal focused on making it widely known, the grounds on which certain States objected against the inclusion of stakeholders within the OEWG. In opposition, the Sino-Russian bloc including Cuba, Iran, Pakistan and Syria opposed extended multistakeholder participation since they believe the OEWG should preserve its government-led character. Russia has proposed formal multistakeholder involvement be restricted to granting consultative status to ECOSOC accredited institutions. These States insisted that informal consultations and written inputs are sufficient means of incorporating wider stakeholder views.

Although in favour of multistakeholder involvement, India’s interventions advocated that the OEWG follow the same modalities as the first OEWG which as described earlier has been criticised on grounds of inclusivity.

Developments on Modalities at Second Substantive Session

As the issue carried forward into the second substantive session, geopolitical tensions have escalated as a result of the Russia-Ukraine conflict. Statements by Australia, Canada, USA, UK, EU, France, Germany and others called upon Russia to stop using cyberattacks and disinformation campaigns. States from this bloc proposed that the OEWG’s programme of work not move forward without an agreement on stakeholder modalities. Iran contended that such a decision would undermine the legitimacy of the OEWG process. Other allies like China, Russia and Cuba argued that stakeholder participation should not come at the cost of substantial discussions. These countries cited Resolution 75/240 as not mandatorily requiring the OEWG to include stakeholders. However, the NATO and other allies of the US argued that delays to their inclusion would undercut stakeholders’ ability to meaningfully participate in the process.

Certain countries like France, Indonesia, Russia and Egypt supported an Indian proposal as a temporary workaround. India refined its earlier proposal and suggested that the OEWG continue the first OEWG’s system of informal consultations for the duration of one year while the issue of stakeholder participation was referred back to the UNGA for a final deliberation. No consensus was reached and consequently the Chair decided to suspend the issue of modalities and switched to issue-specific conversations via informal mode of discussion.

Conclusion: Final Modalities Yield Mixed Results

Three weeks after the conclusion of the second substantive session, the OEWG Chair shared a letter dated April 22, 2022 which declared consensus on the modalities of stakeholder participation at the second OEWG. These modalities will be formally adopted at the OEWG’s third substantive session in July 2022. They state that interested ECOSOC accredited NGOs can participate at the OEWG. Other interested stakeholders/organisations which are relevant to the OEWG’s mandate can apply for accreditation. They can formally participate provided Member States do not object. However, on the transparency front there appears to be a compromise. States must only share general reasons for their objection on a voluntary basis. The Chair will only share this received information with other Member States upon request. This prima facie means a stakeholder will not know why there was an objection against its participation in the OEWG process.

The actual stakeholder involvement will be carried out through two prongs. First, like the first OEWG the Chair will organise informal inter-sessional consultations between States and stakeholders. Second, accredited stakeholders can attend formal meetings of the OEWG, submit written inputs and make oral statements during a dedicated stakeholder session.

The modalities do not clarify if accredited stakeholders can participate virtually. This gap in communication is important since many stakeholders from developing/emerging countries often have limited resources and/or capacities to send contingents to these processes. While this development represents clear strides in terms of inclusivity from prior UN cybersecurity processes, as structured, the modalities could inadvertently exclude stakeholders from smaller countries who have an interest in maintaining a safe, secure and accessible cyberspace.

It remains to be seen if the international community will allocate resources in ensuring all interested stakeholders are present and active at these discussions. Moving forward, Parts 2 and 3 of this series focuses on key discussions which took place in informal mode at the Second Substantive Session of the OEWG. They describe how States (including India) view the substantial issues outlined in the OEWG’s institutional mandate. Part 3 concludes by charting out what to expect in the OEWG’s forthcoming draft of its first annual progress report for the UNGA.

The United Nations Ad-hoc Committee for Development of an International Cybercrime Convention: Overview and Key Observations from First Substantive Session

Sukanya Thapliyal

Image by United Nation Photo. Licensed via CC BY-NC-ND 2.0

Earlier this month, the Centre for Communication Governance at National Law University Delhi had the opportunity to participate as a stakeholder in the proceedings of the United Nations Ad-hoc Committee, which has been tasked to elaborate a comprehensive international convention on countering the use of information and communications technologies (ICTs) for criminal purposes (“the Ad Hoc Committee”). 

In this blog, we present a brief overview and our observations from the discussions during the first substantive session of the Ad-hoc Committee. Furthermore, we also attempt to familiarise the reader with the emerging points of convergence and divergence of opinions among different Member States and implications for the future negotiation process. 

1. Background 

The open-ended Ad-hoc Committee is an intergovernmental committee of experts representative of all regions and was established by the UN General Assembly-Resolution 74/247 under the Third Committee of the UN General Assembly. The committee was originally proposed by the Russian Federation and 17 co-sponsors in 2019. The UN Ad-hoc Committee is mandated to provide a draft of the convention to the General Assembly at its seventy-eighth session in 2023 (UNGA Resolution 75/282). 

Presently, the Budapest Convention, also known as Convention on Cybercrime is the most comprehensive and widely accepted legal instrument on cybercrime which was adopted by the Council of Europe (COE) and came into force in July, 2004. However, the work of the Ad-hoc Committee is significant and can pave the way for the first universal and legally binding instrument on cybercrime issues. The Committee enjoys widespread representation from State and Non-State stakeholders (participation from the non-governmental organizations, civil society, academia and private organizations) and other UN bodies, including the United Nations Office on Drugs and Crime (UNODC), serving as the secretariat for the process. 

The Ad-hoc Committee, over the next two years, is set to have six sessions towards developing this cybercrime convention. The convention is expected to foster coordination and cooperation among state actors to combat cybercrime while giving due regard to the peculiar socio-economic conditions prevailing in the developing and least-developed countries. 

The first substantive session of the Ad-hoc Committee was scheduled for 28 February-11 March 2022 to chart out a clear road map to guide subsequent sessions. In addition, the session also provided opportunity to the Member States to explore the possibility of reaching a consensus on the objective and scope of the Convention, which could provide a general framework for future negotiation without constituting a pre-condition for future stages. 

2. Discussions at the First Ad-hoc committee

The first session of the Ad-hoc Committee witnessed extensive discussions in sessions on general debate, objective and scope of the convention, exchange of preliminary views on key elements of the convention. In addition, a fruitful engagement took place in the sessions dedicated to arriving at a consensus on the structure of the convention (A/AC.291/L.4/Add.4). Member states also reached consensus on  discussion and decision-making on the mode of work of the Ad Hoc Committee during subsequent sessions and intersessional periods (A/AC.291/L.4/Add.6). As the negotiations commenced days after the Russia-Ukraine conflict began, the negotiations proceeded in a tense environment where several Member States expressed their concerns and-inability to negotiate in “good faith” in the light of the current state of play and condemned Russia for the military and cyber operations directed at Ukraine.

A. Scope of the convention: From “Cyber-Enabled” to “Cyber-Dependent” Crimes 

There was complete agreement on the growing importance of ICT technologies, the threat created by cybercriminals, and the need for a collective response within a sound international framework. However, countries highlighted different challenges that range from ‘pure cybercrimes’ or cyber dependent crimes to a broader set of crimes (cyber-enabled crimes) that includes misuse of ICT technologies and digital platforms by terrorist groups, deepfakes, disinformation, misinformation, false narrative, among others. 

While there was a broad consensus on including cyber dependent crimes, there was significant disagreement on whether cyber-enabled crimes should be addressed under the said convention. This divergence was evident throughout the first session with the EU, the US, the UK, New Zealand, Australia, Liechtenstein, Japan, Singapore and Brazil advocating to limit the operation of such a convention only up to cyber dependent crimes (such as ransomware attacks, denial of services attack, illegal system interference, among others). The member states maintained that the said convention should exclude vague and broadly defined crimes that may dilute legal certainty and disproportionately affect the freedom of speech and expression. Furthermore, that the convention should include only those cyber enabled crimes whose scale scope and speed increases substantially with the use of ICT technologies (cyber-fraud, cyber-theft, child sexual abuse, gender-based crime). 

On the other hand, the Russian Federation, China, India, Egypt, South Africa, Venezuela, Turkey, Egypt expressed that the convention should include both cyber dependent and cyber enabled crimes under such a convention. Emphasizing the upward trend in the occurrence of cyber enabled crimes, the member states stated that the cybercrime including cyber fraud, copyright infringement, misuse of ICTs by terrorists, hate speech must be included under the said convention.

There was overall agreement that cybersecurity, and internet governance issues are subject to other UN multilateral  fora such as UN Group of Governmental Experts (UNGGE) and UN Open Ended Working Group (OEWG) and must not be addressed under the proposed convention. 

B. Human-Rights

The process witnessed significant discussion on the protection and promotion of human rights and fundamental freedoms as an integral part of the proposed convention. While there was a broad agreement on the inclusion of human rights obligations, Member States varied in their approaches to incorporating human rights obligations. Countries such as the EU, USA, Australia, New Zealand, UK, Canada, Singapore, Mexico and others advocated for the centrality of human rights obligations within the proposed convention (with particular reference to the right to speech and expression, privacy, freedom of association and data protection). These countries also emphasized the need for adequate safeguards to protect human rights (legality, proportionality and necessity) in the provisions dealing with the criminalization of offenses, procedural rules and preventative measures under the proposed convention. 

India and Malaysia were principally in agreement with the inclusion of human rights obligations but pointed out that human rights considerations must be balanced by provisions required for maintaining law and order. Furthermore, countries such as Iran, China and Russia emphasized that the proposed convention should be conceptualized strictly as a technical treaty and not a human rights convention.

C. Issues pertaining to the conflict in jurisdiction and legal enforcement

The Ad-hoc Committee’s first session saw interesting proposals on improving the long-standing issues emanating from conflict of jurisdictions that often create challenges for law enforcement agencies in effectively investigating and prosecuting cybercrimes. In its numerous submissions, India highlighted the gaps and limitations in the existing international instruments and the need for better legal frameworks for cooperation, beyond Mutual Legal Assistance Treaties (MLATs). Such arrangements aim to assist law enforcement agencies in receiving metadata/ subscriber information to establish attribution and to overcome severe delays in accessing non-personal data. Member states, including Egypt, China supported India’s position in this regard. 

Mexico, Egypt, Jamaica (on behalf of CARICOM), Brazil, Indonesia, Iran, Malaysia also highlighted the need for the exchange of information, and greater international cooperation in the investigation, evidence sharing and prosecution of cybercrimes. These countries also highlighted the need for mutual legal assistance, 24*7 contact points, data preservation, data sharing and statistics on cybercrime and modus operandi of the cybercriminals, e-evidence, electronic forensics and joint investigations. 

Member states including the EU, Luxembourg, UK supported international cooperation in investigations and judicial proceedings, and obtaining electronic evidence. These countries also highlighted that issues relating to jurisdiction should be modeled on the existing international and regional conventions such as the UN Convention against Corruption (UNCAC), UN Convention against Transnational Organized Crimes (UNCTOC), and the Budapest Convention.

D. Technical Assistance and Capacity Building

There was unanimity among the member states to incorporate provisions on capacity building and technical assistance to cater to the peculiar socio-economic conditions of the developing and least-developed countries. However, notable inputs/ suggestions came from Venezuela, Egypt, Jamaica on behalf of CARICOM, India and  Iran. Venezuela highlighted the need for technology transfer, lack of financing and lack of sufficient safeguards for developing and least-developed countries. The countries outlined technology transfer, financial assistance, sharing of best practices, training of personnel, and raising awareness as different channels for capacity building and technical assistance for developing and least-developed countries. 

E. Obligations for the Private Sector 

The proposal for instituting obligations  on non-state actors , including the private sector (with particular reference to digital platforms and service providers), witnessed strong opposing views by member countries. Countries including India, China, Egypt and Russia backed the proposal on including a strong obligation on the private sectors as they play an essential role in the ICT sector. In one of its submissions, India explained  the increasing involvement of multinational companies  in providing vital services in different countries. Therefore, in its view, such private actors must be held accountable and should promptly cooperate  with law enforcement and judicial authorities in these countries to fight cybercrime. Iran, China and Russia further emphasized the need for criminal liability of legal persons, including service providers and other private organizations. In contrast, member states, including the EU, Japan and USA, were strictly against incorporating any obligations on the private sector. 

F. Other Issues

There was a broad consensus including EU, UK, Japan, Mexico, USA, Switzerland and others  on not reinventing the wheel but building on the work done under the UNCAC, UNCTOC, and the Budapest Convention. However, countries, including Egypt and Russian Federation, were skeptical over the explicit mention of the regional conventions, such as the Budapest Convention and its impact on the Member States, who are not a party to such a convention. 

The proposals for inclusion of a provision on asset recovery, and return of the proceeds of the crime elicited a lukewarm response by Egypt, Iran, Brazil, Russia, China, Canada, Switzerland, USA Jamaica on behalf of CARICOM countries, but appears likely to gain traction in forthcoming sessions.

3. Way Forward

Member countries are expected to submit their written contributions on criminalisation, general provisions, procedural measures, and law enforcement in the forthcoming month. These written submissions are likely to bring in more clarity about the expectations and key demands of the different member states. 

The upcoming sessions will also indicate how the demands put forth by developing, and least developing countries during the recently concluded first session are taken up in the negotiation process. Furthermore, it is yet to be seen whether these countries would chart out a path for themselves or get subsumed in the west and east binaries as seen in other multilateral fora dedicated to clarifying the rules governing cyberspace. 

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Note: 

*The full recordings of the first session of the Ad-hoc Committee to elaborate international convention on countering the use of information and communications (ICTs) technologies for criminal purposes is available online and can be accessed on UN Web TV.

**The reader may also access more information on the first session of the Ad-hoc Committee here, here and here.

Building a Feminist Critique of Cybersecurity: Centering experiences of those at the margins

Tavishi

“Secure Home (pt. 2)” by Ren Wang is licensed under CC BY 4.0

Introduction

Our everyday lives are increasingly being mediated by technology. Social networks are shaping our interpersonal communications, algorithms are driving our decisions and behaviours, and smart devices are modulating our home and workplace environment. Haraway postulated this rising penetration of technology in practically all aspects of life through the image of “cyborg bodies” entangled in its discourses and effects to the point where “who makes and who is made in the interaction between human and machine” is impossible to decipher. With the ever-increasing dependence of our everyday lives on technology, the internet directly interpellates subjects while also engaging with other social discourses that contribute to subject formation. As technology becomes fundamental in shaping not only our everyday lives but also our subjectivities, the question of security in cyberspace becomes increasingly personal. 

Although cybersecurity has been recognized as a global concern, there is no agreement on how it should be conceptualized.  The question of “who or what is to be protected” lies at the heart of these debates.  A growing body of literature moves beyond the protection of “cyberspace and the underlying ICT infrastructure”, and defines cyber security as the protection of those “who function in the cyberspace, i.e. individuals, organisations, and nations”. In practice, however, it is seen that the sovereignty of the state is considered as the dominant objective of cyber security and powerful actors like states, military and corporates drive the discourse at the risk of invisibilizing the ordinary user.

A feminist approach to cybersecurity must place humans at its centre. It must also recognize that our experiences in the online world are shaped by our identity and the power structures prevalent in society. Consequently, cybersecurity threats are perceived and experienced differently by minorities, women, non-binary people who are also routinely absent or underrepresented in such discussions. This blog argues that women’s experiences, particularly those at the margins, must be at the centre of how cybersecurity is conceptualized in technical design and legislation. The piece begins by examining questions of representation and its implications. It further probes how gender-blind design and the underlying assumptions of public/private dichotomy lead to gendered threats like technology-facilitated intimate partner violence being excluded from or trivialised in cybersecurity discussions. Finally, it looks at the case of intimate image abuse and examines the framework of bodily integrity as a key tool to centre womens’ experiences in cybersecurity. 

Women in Cybersecurity

Only 25% of the global cyber security workforce identify as women. The work culture of incident response teams which are predominantly staffed by men helps in reinforcing the association of technical expertise to masculinity. Feminist theory not only advocates for greater representation of women in cybersecurity design, defence and response but also questions the basis of how the epistemic authority is allocated. At the heart of a feminist approach to cybersecurity lies the question, “Who is considered the bearer of knowledge?”. Since, in both technology and law, technocratic expertise is the primary epistemic authority, experiences of ordinary citizens are invisibilized and often considered problems that need to be solved by experts through behavioural change or legislation from the top. It is this top-down approach to cybersecurity that is challenged by the feminist standpoint epistemology, where the subjective experience of those at the margins is the key source of knowledge.  

Another important aspect of feminist research is the centrality of political action and the dismantling of the separation between theory and practice. Thus, a feminist approach towards cybersecurity will actively engage with ordinary users, especially those who are marginalised through multiple axes of oppression, in building knowledge, understanding threats and bringing about change through political action and solidarity. Oxford Internet Institute’s Reconfigure Network consisting of a group of feminist cybersecurity practitioners and researchers is a step in this direction. Under this project, ordinary citizens, through a series of community workshops, engage in defining threats based on their understanding and experiences. 

The public/private binary

A gender-blind approach towards cybersecurity doesn’t take into account how threats are experienced differently by people depending on their social positions. This is because, contrary to popular belief, technical deliberation is not objective and value-neutral. The design, construction and regulation of technology are embedded with socio-political values. Often gendered threats faced by women and individuals of marginalised gender and sexual identities are overlooked or trivialized in design considerations. A common example of this is systems using personal information questions as backups to passwords, e.g. the name of your first pet or middle name of your parent. This assumes that the “bad actor” will always be a stranger and not an intimate partner/former partner. Similarly, Slupska has shown how threat modelling of major smart home systems does not take into account intimate partner violence(IPV). The owner of the device is never seen as a security threat to other users of the device in any use case. This is attributed to the public/private binary, where the home is constructed as a safe place in spite of the rising cases of gender-based violence facilitated by smart home devices. 

Feminist scholars have long critiqued the public/private binary which relegates the ambit of gendered violence to the domain of the private. Technology-facilitated sexual violence like intimate image abuse (commonly referred to as “revenge porn”) are often constructed as concerns of individual privacy instead of cybersecurity. Even the expectations for users are gendered; women are expected to maintain complete control of their digital footprint and activate privacy settings on social networks to protect themselves. Any failure to do so results in victim-blaming, thereby shifting the onus of ensuring cybersecurity completely onto the individual victims.

This is also evident in the language of “revenge porn” which reduces the scope of the crime and its severity by invoking narratives of relationship feuds and disgruntled partners. These issues have traditionally been placed in the domain of the private and emotional, which is constructed as inferior and less serious to the public domain of rational security. It can also become a limiting factor in legislative reforms as it considers the “intent to harm or harass” the victim a necessity to prove the crime. Not only does this narrow conception fail to take into consideration the economy surrounding the distribution of such imagery, but it also makes proving of intent to harass challenging. 

Centering Women’s experiences & Bodily Integrity in a digitally mediated world

Consequently, it is argued that “revenge pornography” be seen as a part of the “continuum of image-based sexual abuse”. This is based on Kelly’s seminal work on the continuum of sexual violence which challenges the “legal-analytical categorization” of sexual offences which often don’t focus on women’s experiences and also lead to a hierarchy of sexual offences. There is a range of abusive practices like revenge porn, sextortion, upskirting, voyeurism, deep fake pornography etc. that come under the umbrella of image-based sexual abuse.

Franks has advocated for the violation of privacy to be the fundamental harm that needs to be criminalised in these legislations under the rubric of non-consensual pornography. However, scholars have advocated going beyond models that look at intimate image abuse as merely content/information privacy violations to the framework of bodily integrity in terms of self-determination and inviolability. By circulating intimate images non–consensually, the victim’s right to self-determination is curbed. Centering womens’ experiences of bodily harm is captured in Durham’s essay, 

“Although virtual worlds offer a putative escape from the constraints of the corporeal, bodies still haunt the mediascape, and the experiential connections between symbolized and real world bodies must be acknowledged as central to feminism’s liberatory goals.”

Since the body is the site where gender is inscribed, bodily integrity provides a framework to understand what values and protections society attributes to different bodies. It is thus essential to note how the bodies of trans-persons, Dalits, Bahujan, Adivasis and minorities are most vulnerable as they are seen as sites to exert power.

It is also important to understand that online images of the body are not mere representations but act as digital prostheses embodying our subjectivity. That is to say; today we experience the world and our beingness through “an assemblage of organic body, conventional prostheses and digital prostheses”. This is fundamental to understanding the continuity of experience between the offline and online world which can prevent us from discounting the severity of intimate image abuse and the impact it has on the overall lives of the victims. Many victims experience a feeling of violation through unintended exposure that they liken to sexual assault and rape. Further, this framework can prevent a narrow definition of online intimate image abuse which excludes images that do not traditionally classify as “intimate”.  Thus, repeated instances of non-consensually sourced images of Muslim women put up for auction on apps should be recognized as targeted sexual harassment and intimate image abuse in addition to being a hate crime. Further, Deep fake nudes, which are not actual representations of the body but nonetheless impact the online subjectivity of an individual can be recognized as an important emergent form of intimate image abuse. 

Bodily integrity, thus, provides a framework through which womens’ diverse experiences can be placed at the centre of understanding and responding to a cybersecurity threat. Approaches like these can pave the way for centering the safety and well-being of human beings, especially those who have been historically marginalised, in cybersecurity debates and discussions. This can prevent us from replicating the same power hierarchies and patterns of exploitation in this new world of augmented subjectivity where technology is ubiquitous.

Works Cited

Bowles N, ‘Thermostats, Locks and Lights: Digital Tools of Domestic Abuse’ The New York Times (23 June 2018) <https://www.nytimes.com/2018/06/23/technology/smart-home-devices-domestic-abuse.html> accessed 13 February 2022

Deibert RJ, ‘Toward a Human-Centric Approach to Cybersecurity’ (2018) 32 Ethics & International Affairs 411

Desai A, ‘Trans Rights Activist Misgendered, Trolled After Starting Online Fundraiser’ (The Wire) <https://thewire.in/lgbtqia/trans-rights-activist-misgendered-trolled-after-starting-online-fundraiser> accessed 13 February 2022

Durham MG, ‘Body Matters’ (2011) 11 Feminist Media Studies 53 <https://doi.org/10.1080/14680777.2011.537027> accessed 9 February 2022

Flanagan M, Howe DC and Nissenbaum H, ‘Embodying Values in Technology: Theory and Practice’ (2008) 322 Information technology and moral philosophy

Franks MA, ‘How to Defeat “Revenge Porn”: First, Recognize It’s About Privacy, Not Revenge’ (HuffPost, 22 June 2015) <https://www.huffpost.com/entry/how-to-defeat-revenge-porn_b_7624900> accessed 10 February 2022

Franks MA, ‘Revenge Porn Reform: A View from the Front Lines’ (2017) 69 Florida Law Review 1251 <https://heinonline.org/HOL/P?h=hein.journals/uflr69&i=1289> accessed 8 February 2022

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Critiquing the Definition of Cyber Security under India’s Information Technology Act

Archit Lohani

“Security Measures” by Afsal CMK is licensed under CC BY 4.0

Introduction

As boundary-less cyberspace becomes increasingly pervasive, cyber threats continue to pose serious challenges to all nations’ economic security and digital development. For example, sophisticated attacks such as the WannaCry ransomware attack in 2017 rendered more than two million computers useless with estimated damages of up to four billion dollars. As cyber security threats continue to proliferate and evolve at an unprecedented rate, incidents of doxing, distributed denial of service (DDoS), and phishing attacks are on the rise and are being offered as services for hire. The task at hand is intensified due to the sheer number of cyber incidents in India. A closer look suggests that the challenge is exacerbated due to an outdated framework and lack of basic safeguards.

This post will examine one such framework, namely the definition of cybersecurity under the Information Technology Act, 2000 (IT Act).

Under Section 2(1)(nb) of the IT Act:

“cyber security” means protecting information, equipment, devices computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or destruction;

This post contends that the Indian definitional approach adopts a predominantly technical view of cyber security and restricts effective measures to ensure cyber-resilience between governmental authorities, industry, non-governmental organisations, and academia. This piece also juxtaposes the definition against key elements from global standards under foreign legislations and industry practices.

What is Cyber security under the IT Act?

The current definition of cyber security was adopted under the Information Technology (Amendment) Act, 2009. This amendment act was hurriedly adopted in the aftermath of the Mumbai 26/11 terrorist attacks of 2008.  The definition was codified to facilitate protective functions under Sections 69B and 70B of the IT Act. Section 69B enables monitoring and collection of traffic data to enhance cyber security, prevent intrusion and spread of contaminants. Section 70B institutionalised Computer Emergency Response Team (CERT-In), to identify, forecast, issue alerts and guidelines, coordinate cyber incident response, etc. and further the state’s cyber security imperatives. Subsequently, the evolution of various institutions that perform key functions to detect, deter, protect and adapt cybersecurity measures has accelerated. However, this post argues that the current definition fails to incorporate elements necessary to contemporise and ensure effective implementation of cyber security policy.

Critique of the IT Act definition

It is clear that deterrence has failed as the volume of incidents does not appear to abate, making cyber-resilience a realistic objective that nations should strive for. The definition under the IT Act is an old articulation of protecting the referent objects of security- “information, equipment, devices computer, computer resource, communication device and information” against specific events that aim to cause harm these objects through “unauthorised access, use, disclosure, disruption, modification or destruction”.

There are a few issues with this dated articulation of cybersecurity. First, it suffers from the problem of restrictive listing as to what is being protected (aforementioned referent objects). Second, by limiting the referent objects and events within the definition it becomes prescriptive. Third, the definition does not capture the multiple, interwoven dimensions and inherent complexity of cybersecurity which includes interactions between humans and systems. Fourth, due to limited enlisting of events, similar protection is not afforded from accidental events and natural hazards to cyberspace-enabled systems (including cyber-physical systems and industrial control systems). Fifth, the definition is missing key elements – (1) It does not include technological solutions aspect of cyber security such as in the International Telecommunication Union (2009) definition that acknowledges “technologies that can be used to protect the cyber environment” and; (2) fails to incorporate the strategies, processes, and methods that will be undertaken. With key elements missing from the definition, it falls behind contemporary standards, which are addressed in the following section.

To put things in perspective, global conceptualisations of cybersecurity are undergoing a major overhaul to accommodate the increased complexity, pace, scale and interdependencies across the cyberspace and information and communication technologies (ICT) environments. In comparison, the definition under the IT Act has remained unchanged.

Although wider conceptualisations have been reflected through international and national engagements such as the National Cyber Security Policy (NCSP). For example, within the mission statement the policy document recognises technological solution elements; and interactions between humans and ICTs in cyberspace as one key rationale behind the cyber security policy.

However, differing conceptualisations across policy and legislative instruments can lead to confusion and introduce implementational challenges within cybersecurity regulation. For example, the 2013 CERT-In Rules rely on the IT Act’s definition of cyber security and define cyber security incidents and cyber security breaches. Further emphasising the narrow and technically dominant discourse which relate to the confidentiality, integrity, and availability triad.

The following section examines a few other definitions to illustrate the shortcomings highlighted above.

Key elements of Cyber security

Despite a plethora of definitions, there is no universal agreement on the conceptualisation of cybersecurity globally. This has manifested into the long-drawn deliberations at various international fora.

Cybersecurity aims to counter and tackle a constantly evolving threat landscape. Although it is difficult to build consensus on a singular definition, a few key features can be agreed upon. For example, the definition must address interdisciplinarity inherent to cyber security, its dynamic nature and the multi-level complex ecosystem cyber security exists in. A multidisciplinary definition can aid authorities and organizations in having visibility and insight as to how new technologies can affect their risk exposure. It will further ensure that such risks are suitably mitigated. To effectuate cyber-resilience, stakeholders have to navigate governance, policy, operational, technical and legal challenges.

An inclusive definition can ensure a better collective response and bring multiple stakeholders to the table. To institutionalise greater emphasis on resilience an inclusive definition can foster cooperation between various stakeholders rather than a punitive approach that focuses on liability and criminality. An inclusive definition can enable a bottom-up approach in countering cyber security threats and systemic incidents across sectors. It can also further CERT-In’s information-sharing objectives through collaboration between stakeholders under section 70B of the IT Act.

When it comes to the regulation of technologies that embody socio-political values, contrary to popular belief that technical deliberations are objective and value-neutral, such discourse (in this case, the definition) suffers from the dominance of technical perspectives. For example, the definition of cybersecurity under the National Institute of Standards and Technology (NIST) framework is, “the ability to protect or defend the use of cyberspace from cyber-attacks” directs the reader to the definitions of cyberspace and cyberattack to extensively cover its various elements. However, the said definitions also has a predominantly technical lens.

Alternatively, definitions of cyber security would benefit from inclusive conceptions that factor in human engagements with systems, acknowledge interrelated dimensions and inherent complexities of cybersecurity, which involves dynamic interactions between all inter-connected stakeholders. An effective cybersecurity strategy entails a judicious mix of people, policies and technology, as well as a robust public-private partnership.

Cybersecurity is a broad term and often has highly variable subjective definitions. This hinders the formulation of appropriately responsive policy and legislative actions. As a benchmark, we borrow the Dan Purse et al. definition of cybersecurity– “the organisation and collection of resources, processes, and structures used to protect cyberspace and cyberspace-enabled systems from occurrences that misalign de jure from de facto property rights.” The benefit of this articulation is that it necessitates a deeper understanding of the harms and consequences of cyber security threats and their impact. However, this definition cannot be adopted within the Indian legal framework as (a) property rights are not recognised as fundamental rights and (b) this narrows its application to a harms and consequences standard.

Most importantly, the authors identify five common elements to form a holistic and effective approach towards defining cybersecurity. The following elements are from a literature review of 9 cybersecurity definitions are:

• technological solutions
• events
• strategies, processes, and methods
• human engagement; and
• referent objects.

These elements highlight the complexity of the process and involve interaction between humans and systems for protecting the digital assets and themselves from various known and unknown risks. Simply put, any unauthorized access, use, disclosure, disruption, modification or destruction results in at least, a loss of functional control over the affected computer device or resource to the detriment of the person and/or legal entity in whom lawful ownership of the computer device or resource is vested. The definition codified under the IT Act only partly captures the complexity of ‘cyber security’ and its implications.

Conclusion

Economic interest is a core objective that necessitates cyber-resilience. Recognising the economic consequences of such attacks rather than protecting limited resources such as computer systems acknowledges the complex approaches to cybersecurity. Currently, the definition of cybersecurity is dominated by technical perspectives, and disregards other disciplines that should be ideally acting in concert to address complex challenges. Cyber-resilience can be operationalised through a renewed definition; divergent approaches within India to tackle cybersecurity challenges will act as a strategic barrier to economic growth, data flow, investments, and most importantly effective security. It will also divert resources away from more effective strategies and capacity investments. Finally, the Indian approach should evolve and stem from the threat perception, the socio-technical character of the term, and aim to bring cybersecurity stakeholders together.

Cybersecurity and Trade: Understanding Linkages for the Global South

Sukanya Thapliyal^*

1. BACKGROUND: 

Cybersecurity concerns are increasingly creeping into the international trade arena. Emerging technologies such as Big Data, Artificial Intelligence (AI), Internet of things (IoT), among others, have led to the digitalisation of the economy and society and has transformed our day-to-day lives. In addition, the COVID-19 pandemic has further accelerated the digitalisation process. As a result, countries, businesses and individuals worldwide are embracing this shift and are becoming increasingly reliant on digital technologies. The digital economy has significantly contributed to the increase in services trade, reduced trade costs, and increased participation of micro, small and medium enterprises (MSMEs) within international trade. The shift towards the digital economy has also empowered enterprises in amassing and analysing massive amounts of data. This helps businesses or organisations improve their operations and develop better products and services for existing and prospective consumers. 

However, ensuing interconnectivity and reliance on digital technologies exposes society/economies to several risks. These include threats of cyberattacks such as ransomware, political espionage, economic espionage, identity theft, and intellectual property theft.  These threats impact national defence authorities, critical infrastructures, commercial enterprises, and enforcement agencies alike. Such threats can emerge from both State and Non-State actors. However, countries vary greatly in their ability to understand and address these challenges. A recent study by Kaspersky Labs has identified Asia-Pacific Countries (APAC) as among the most prominent targets of cyberattacks owing to their rapidly increasing usage of digital technologies coupled with lack of awareness regarding cybersecurity, and limited resources deployed towards mitigation. India features among the top five countries most prone to cyberattacks along with China and Pakistan.

This piece seeks to map the dominant discourse on Cyber Security and International Trade. First, it examines the current World Trade Organization (WTO) framework and selects certain Free Trade Agreements (FTAs) to understand how cybersecurity concerns are presently understood only as related to national security or potential non-tariff barriers (NTB). Rooted in the fact that cybersecurity is inextricably linked to the technical capacity of a Member State to identify vulnerabilities, it argues that there is an urgent need to repurpose cybersecurity as an issue within the capacity building and technology transfer discussions.

image by geralt. Licensed via CC0.

2. CYBERSECURITY ISSUES UNDER WORLD TRADE ORGANIZATION (WTO)

Despite rising cybersecurity concerns, international trade rules have minimal engagement in this area. Prominent international trade organisations (such as WTO) and other legal instruments like Free Trade Agreements (FTAs) have primarily focused on setting rules for digital commerce and have addressed cybersecurity as an incidental and secondary issue.  Within WTO’s existing framework, cybersecurity issues do not fall within a single set of rules.¹ Depending on the context and subject of the dispute, several WTO Agreements, including General Agreement on Tariffs and Trade in Goods (GATT), General Agreement on Trade in Services (GATS), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and WTO Agreement on Technical Barriers to Trade (TBT Agreement), can have some bearing on the result of the dispute. As a result, the emerging cybersecurity issues can only be understood and interpreted on a case-by-case basis.² 

Currently, countries impose cybersecurity measures that range from complete prohibition on the trade of goods or services, tariff and non-tariff barriers, imposition of certification requirements and imposition of domestic standards, among others. Although none of these cybersecurity measures has been challenged at the WTO’s Dispute Settlement System so far, concerns were raised against China’s imposition of cybersecurity measures on ICT products and services by the European Union, USA, Canada, Japan and Australia in 2017. In another instance, China raised concern over Australia banning Chinese companies from supplying equipment for a 5G mobile  network on the grounds of national security. 

Propelled by similar developments, where Member States imposed different types of cybersecurity measures (prohibition on trade in technology goods, imposition of certification requirements and domestic standards), the discourse on cybersecurity and trade primarily focused on the cybersecurity measures as potential non-tariff barriers. As WTO primarily focuses on strengthening economic cooperation and reducing or eliminating trade barriers (tariff and non-tariff), the primary discourse has been centered only around these concerns. Numerous studies have identified the need to distinguish between genuine domestic cybersecurity policy measures taken by the Member States from those that are merely disguised protectionism or purely political in nature. 

Scholars also highlighted that Member States might justify such actions based on national security exceptions articulated under the GATT (Article XXI), GATS (Article XIV bis), TRIPS (Article 73) and other WTO Agreements. The national security exception, as broadly understood, allows Member States to take measures as they consider necessary for the protection of their essential security interests. This is problematic from several perspectives. 

The security exception was long touted as a self-judging provision and outside the purview of judicial review of the Dispute Settlement Body (DSB). This understanding was substantially modified in the context of GATT’s security exception in Russia – Traffic in Transit by the WTO Panel Report in 2019. The Panel opined that Article XXI (b) is not totally self-judging and that the term “essential security interests” are restricted to specific scenarios related to military facilities, nuclear facilities and measures taken in time of “war” or “other emergency in international relations”. Further, the Panel also emphasised that such a measure must be invoked in “good faith”. While Russia – Traffic in Transit Panel Report does provide a straightforward interpretation of the scope of the provision, several scholars, including Sarah Alturki and Neha Mishra have examined the security exceptions laid down under GATT and GATS as problematic in addressing cybersecurity measures. They maintained that the existing security exceptions under the WTO framework provisions are dated and were not conceived to cover cyber conflicts. Although the DSB may undertake to read such provisions in an evolutionary manner, the ambiguous nature of cyber-threats coupled with the lack of international consensus on cybersecurity governance makes it extremely challenging to resolve cybersecurity-related disputes. 

3. CYBERSECURITY PROVISIONS UNDER FREE TRADE AGREEMENTS (FTAs)

Besides security exceptions under the WTO framework, some Free Trade Agreements, in their digital trade/e-commerce chapters, have dedicated provisions concerning inter-State cooperation in cybersecurity. For instance, Article 14.16 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) recognises the importance of capacity building and collaborating mechanisms to identify and mitigate malicious intrusions or dissemination of malicious code that affect the electronic networks of countries which are Party to the Agreement. Article 12.13 of the Regional Comprehensive Economic Partnership (RCEP) features an identical provision. Further, Article 19.15 of the United States-Mexico-Canada Agreement (USMCA) features an expanded version of this condition. The provision obligates the Member States to share information and best practices and employ risk-based approaches that rely on consensus-based standards to detect, respond to, and recover from cybersecurity events.

To contain the misuse of cybersecurity measures that can harm free trade and economic cooperation among participating countries, several FTAs have included a provision to deter such behavior. Such provisions include the prohibition on disclosure of source code³, prohibition on the requirement to locate computing facilities in a specific jurisdiction⁴ and provisions mandating cross-border transfer of information by electronic means⁵. The measures relating to prohibition on disclosure of source code, restriction on mandating location of the computing facilities and others often find themselves in the cross-fire of a host of concerns emanating from economic development, transparency and cybersecurity. 

It is also important to note that these provisions also target policies restraining the free flow of cross-border data (data-localisation policies) prevalent in a number of countries including India, China, Vietnam, among others. 

4.  OTHER POSSIBLE FRONTIERS FOR CYBERSECURITY AND INTERNATIONAL TRADE IN RESPECT OF GLOBAL SOUTH 

Beyond the above mentioned concerns, cybersecurity is also a question of technical competence and resources available for several developing and least-developed countries. Several studies and reports, including the recent Kaspersky projections for 2022, indicate a wide gap in countries’ ability to detect, assess and effectively respond to cyber-attacks. There has been a steep rise in the adoption of digital tools often outpacing the establishment of necessary state institutions, legal regulations and capacity to manage new challenges.  Digital solutions are seen as the gateway to economic growth and social development. These developments should not be seen in isolation from cybersecurity capacity building. The unbridled adoption of digital solutions without being secured can have far reaching implications for the economy and can lead to poor infrastructures and hollow digital development for countries in the global south. 

As mentioned above, the current provisions, under the FTAs and discussions at the WTO surrounding cybersecurity concerns for international trade, extend only up to sharing information and best-practices. Such glaring vulnerabilities can only be addressed through development assistance that includes technology transfers and offering cybersecurity capacity building and requires active cooperation from the developed countries. The discussions around digital development must be embedded in digital security. Developing countries, including India, should leverage their positions in economic forums and constructively channel the discussions around tech-transfer and technology facilitation mechanisms (TFM) on cybersecurity, as they have done in the past in the context of drug development and climate change. Existing tools for developing and least-developed countries incorporated under Article 66 and 67 of the TRIPS Agreement are insufficient, have seen weak implementation, and are unlikely to bridge this gap. As India is assuming the G20 presidency on December 1, 2022, it can lead the path for such momentous changes and offer the global south perspective the world needs.

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*The author is grateful for the comments and contributions by Ms Garima Prakash, Deputy Manager, NASSCOM.

References:

1. It is important to note that the WTO Agreements dates back to 1994 did not treat cyber issues specifically, but their rules nevertheless have application to cyber-related policies. See: Kathleen Claussen, ‘Economic cybersecurity law’ in Routledge Handbook of International Cybersecurity, pp.341-353 (Routledge, 1, 2020). See also: Dongchul Kwak, “No More Strategical Neutrality on Technological Neutrality: Technological Neutrality as a Bridge Between the Analogue Trading Regime and Digital Trade” World Trade Review (2021), 1–15.
2. Post-2017, around 70 WTO Member States spearheaded by the USA and other developed countries have initiated “exploratory work together towards future WTO negotiations on trade-related aspects of electronic commerce.”  India and South Africa are not part of this initiative. Nevertheless, the result of these discussions shall have some bearing on the future of cybersecurity and trade.
3.  Article 19.16 of USMCA (Similar provisions are incorporated under other trade agreements including CPTPP and RCEP).
4. Article 19.12 of USMCA. (Similar provisions are incorporated under other trade agreements including CPTPP and RCEP).
5. Article 19.11 of USMCA. (Similar provisions are incorporated under other trade agreements including CPTPP and RCEP).

Technology & National Security Reflection Series Paper 13: Flipping the Narrative on Data Localisation and National Security

Romit Kohli*

About the Author: The author is a fifth year student of the B.A. LL.B. (Hons.) programme at the National Law University, Delhi.

Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. This post was written in Summer, 2021. Therefore, it does not reflect recent policy developments in the field of data governance and data protection such as the December 2021 publication of the Joint Parliamentary Committee Report and its proposed Data Protection Bill, 2021.

I. Introduction

Countries all over the world are seeking to preserve and strengthen their cyber-sovereignty in various ways. One popular mechanism for the same is labelled with the nebulous phrase ‘data localisation’. Data localisation refers to requirements imposed by countries which necessitate the physical storage of data within their own national boundaries. However, the degree of data localisation varies across jurisdictions. At one end of the spectrum, we have ‘controlled localisation’ that favours the free-flow of data across borders, subject to only mild restrictions.  A prominent example of controlled localisation is the European Union’s (“EU”) General Data Protection Regulation (GDPR). At the other end of the spectrum, we have jurisdictions like China which impose much stricter localisation requirements on businesses operating within their national boundaries.

In India data localisation has become a significant policy issue over the last few years. Various government documents have urged lawmakers to introduce a robust framework for data localisation in India. The seminal policy document in this regard is the Justice BN Srikrishna Committee report, which provided the basis for the Personal Data Protection Bill of 2019.This bill proposed a framework which would result in a significant economy-wide shift in India’s data localisation practices. At the same time, various government departments have sought to implement sector-specific data localisation requirements with different levels of success.

This blog post argues that far from being a facilitator of national security, data localisation measures may present newer threats to national security in their implementation. We seek to establish this in three steps. First, we analyse the link between India’s national security concerns and the associated objectives of data localisation. This analysis demonstrates that the mainstream narrative regarding the link between national security and data localisation is inherently flawed. Thereafter, we discuss the impact of data localisation on the economic growth objective, arguing that India’s localisation mandate fails to consider certain unintended consequences of data localisation which restrict the growth of the Indian economy. Lastly, the article argues how this adverse impact on economic growth poses a threat to India’s national security, which requires us to adopt a  more holistic outlook of what constitutes national security. 

Image by World Bank Photo Collection’s Photostream. Copyrighted under CC BY 2.0.

II. The Mainstream Narrative

The Srikrishna Committee report underscores national security concerns as a basis for two distinct policy objectives supporting the introduction of data localisation measures. First, the report refers to the need for law enforcement agencies to have access to data which is held and controlled by data fiduciaries, stating that such access is essential for ‘… effectively [securing] national security and public safety…’ since it facilitates the detection of crime and the process of evidence gathering in general (Emphasis Added). However, experts argue that such an approach is ‘… unlikely to help India achieve objectives that actually require access to data’. Instead, the government’s objectives would be better-served by resorting to light-touch localisation requirements, such as mandating the storage of local copies of data in India while still allowing the data to be processed globally. They propose complementing these domestic measures with negotiations towards bilateral and multilateral frameworks for cross-border access to data.

Second, the report states that the prevention of foreign surveillance is ‘critical to India’s national security interests’ due to the lack of democratic oversight that can be exercised over such a process (Emphasis Added). However, we believe that data localisation fails as an effective policy measure to address this problem because notwithstanding the requirements imposed by data localisation policies, foreign governments can access locally stored data through extra-territorial means, including the use of malware and gaining the assistance of domestic entities. What is required,, is a more nuanced and well-thought-out solution which leverages the power of sophisticated data security tools. 

The above analysis demonstrates that the objectives linked to national security in India’s data localisation policy can be better served through other means. Accordingly, the mainstream narrative which seeks to paint data localisation as a method of preserving national security in the sense of cyber or data security is flawed. 

III. The (Unintended) Impact on the Indian Economy

The Srikrishna Committee Report ostensibly refers to the ‘… positive impact of server localisation on creation of digital infrastructure and digital industry’. Although there is no disputing the impact of the digital economy on the growth of various industries generally, the report ignores the fact that such growth has been fuelled by the free flow of cross-border data. Further, the Srikrishna Committee Report fails to consider the costs imposed by mandatory data localisation requirements on businesses which will be forced to forgo the liberty of storing their data in the most cost-effective way possible. These costs will be shifted onto unsuspecting Indian consumers. 

The results of three seminal studies help illustrate the potential impact of data localisation on the Indian economy. The first study, which aimed at quantifying the loss that data localisation might cause to the economy, found that mandatory localisation requirements would reduce India’s GDP by almost 1% and that ‘… any gains stemming from data localisation are too small to outweigh losses in terms of welfare and output in the general economy’. A second study examined the impact of data localisation on individual businesses and found that due to a lack of data centres in India, such requirements would impose a 30-60% increase in operating costs on such businesses, who would be forced to store their data on local servers. The last study analysed the sector-specific impact of localisation, quantifying the loss in total factor productivity at approximately 1.35% for the communications sector, 0.5% for the business services sector, and 0.2% for the financial sector. More recent articles have also examined the prejudicial impact of data localisation on Indian start-ups, the Indian IT sector, the cyber vulnerability of small and medium enterprises, and India’s Ease of Doing Business ranking. 

At this point, it also becomes important to address a common argument relied upon by proponents of data localisation, which is the fact that localisation boosts local employment, particularly for the computer hardware and software industries. Although attractive on a prima facie level, this argument has been rebutted by researchers on two grounds. First, while localisation might lead to the creation of more data centres in India, the majority of the capital goods needed for such creation will nonetheless be imported from foreign suppliers. Second, while the construction of these centres might generate employment for construction workers at a preliminary stage, their actual functioning will fail to generate substantial employment due to the nature of skilled work involved. 

The primary lesson to be drawn from this analysis is that data localisation will adversely impact the growth of the Indian economy—a lesson that seems to have been ignored by the Srikrishna Committee report. Further, when discussing the impact of data localisation on economic growth in India, the report makes no reference to national security. We believe that this compartmentalisation of economic growth and national security as unrelated notions reflects an inherently myopic view of the latter. 

IV. Towards a Novel Narrative

National security is a relative concept—it means different things to different people in different jurisdictions and socio-economic contexts. At the same time, a noticeable trend vis-à-vis this relative concept is that various countries have started incorporating the non-traditional factor of economic growth in their conceptions of national security. This is because the economy and national security are inextricably linked, with several interconnections and feedback loops. 

Although the Indian government has made no explicit declaration in this regard, academic commentary has sought to characterise India’s economic slowdown as a national security concern in the past. We believe that this characterisation is accurate since India is a relatively low-income country and therefore, its national security strategy will necessarily depend upon the state of its economy. Further, although there have been objections surrounding a dismal defence-to-GDP ratio in India, it is believed that these objections are based on ‘trivial arithmetic’. This is because the more appropriate way of remedying the current situation is by concentrating policy efforts on increasing India’s GDP and accelerating economic growth, rather than lamenting low spends on defence. 

This goal, however, requires an upgradation of India’s national security architecture. While the nuances of this reform fall outside the precise scope of this blog post, any comprehensive reform will necessarily require a change in how Indian policymakers view the notion of national security. These policymakers must realise that economic growth underpins our national security concerns and consequently, it is a factor which must not be neglected.

This notion of national security must be used by Indian policymakers to examine the economic viability of introducing any new law, including the localisation mandate. When seen through this broader lens, it becomes clear that the adverse economic impact of data localisation policies will harm India’s national security by inter alia increasing the costs of doing business in India, reducing the GDP, and prejudicing the interests of Indian start-ups and the booming Indian IT sector. 

V. Conclusion

This blog post has attempted to present the link between data localisation and national security in a different light. This has been done by bringing the oft-ignored consequences of data localisation on the Indian economy to the forefront of academic debate. At the center of the article’s analysis lies an appeal to Indian policymakers to examine the notion of national security through a wider lens and consequently rethink their flawed approach of addressing national security concerns through a localisation mandate. This, in turn, will ensure sustained economic growth and provide India with the technological advantage it necessarily requires for preserving its national interests.  

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*Views expressed in the blog are personal and should not be attributed to the institution.