TRAI presents a three-pronged rationale for government intervention in this: Information Asymmetry, Bounded Rationality and Data Monopoly.
Last week, the Ministry of Electronics and Information Technology (MeitY), Government of India constituted a 10-member committee of experts, with members from government, academia and industry to study and identify key data protection issues, recommend methods for addressing them and suggest a draft Data Protection Bill.
Yesterday, the Telecom Regulatory Authority of India (TRAI) released a consultation paper on "Privacy, Security and Ownership of the Data in the Telecom Sector".
In the press release announcing the consultation, TRAI expresses the view that the users should be empowered in respect of ownership and control of his/her personal data and to ensure this, all the players in the ecosystem are bound to follow certain safeguards while collecting, storing and using the data pertaining to their subscribers.
In light of this, TRAI suo-motu decided to issue a consultation paper with the aim of identifying the key issues pertaining to data protection in relation to the delivery of digital services. This includes the provision of telecom and Internet services by telecom and Internet service providers (TSPs), as well the other devices, networks and applications that connect with users through the services offered by TSPs and collect and control user data in that process.
TRAI presents a three-pronged rationale for government intervention in this: Information Asymmetry between the consumer and the data user, on account of the under-estimation by consumers about the value of their personal data and ignorance about the scale and use of the data being collected and its use and the ability of data collectors to unilaterally change their privacy policies; Bounded Rationality, which often leads consumers to underestimate the long term consequences of their actions, while consenting to share their personal information in the course of availing specific products or services; and Data Monopoly of the service providers, who generate and hold the data,the advantage of which they can use to get into adjacencies (and thus extend their monopoly). The government or its authorised agency may take steps to make this data portable, under the control of the user, thus enabling the creation of newer services.
The consultation paper takes as its starting point, a report submitted in October 2012, by a Group of Experts headed by (Retd.) Justice A. P. Shah, Former Chief Justice, Delhi High Court on the subject of data privacy. The report presented a number of recommendations for the role of Data Controller, which refers to any organisation that determines the purposes and means of processing the personal information of users.
Twelve questions are posed in the paper:
Are the data protection requirements currently applicable to all the players in the eco-system in India sufficient to protect the interests of telecom subscribers? What are the additional measures, if any, that need to be considered in this regard?
In light of recent advances in technology, what changes, if any, are recommended to the definition of personal data? Should the User’s consent be taken before sharing his/her personal data for commercial purposes? What are the measures that should be considered in order to empower users to own and take control of his/her personal data? In particular, what are the new capabilities that must be granted to consumers over the use of their Personal data?
What should be the Rights and Responsibilities of the Data Controllers? Can the Rights of Data Controller supersede the Rights of an Individual over his/her Personal Data? Suggest a mechanism for regulating and governing the Data Controllers.
Given the fears related to abuse of this data, is it advisable to create a technology enabled architecture to audit the use of personal data, and associated consent? Will an audit-based mechanism provide sufficient visibility for the government or its authorised authority to prevent harm? Can the industry create a sufficiently capable workforce of auditors who can take on these responsibilities?
What, if any, are the measures that must be taken to encourage the creation of new data based businesses consistent with the overall framework of data protection?
Should government or its authorized authority setup a data sandbox, which allows the regulated companies to create anonymised data sets which can be used for the development of newer services?
How can the government or its authorized authority setup a technology solution that can assist it in monitoring the ecosystem for compliance? What are the attributes of such a solution that allow the regulations to keep pace with a changing technology ecosystem?
What are the measures that should be considered in order to strengthen and preserve the safety and security of telecommunications infrastructure and the digital ecosystem as a whole?
What are the key issues of data protection pertaining to the collection and use of data by various other stakeholders in the digital ecosystem, including content and application service providers, device manufacturers, operating systems, browsers, etc? What mechanisms need to be put in place in order to address these issues?
Is there a need for bringing about greater parity in the data protection norms applicable to TSPs and other communication service providers offering comparable services (such as Internet based voice and messaging services). What are the various options that may be considered in this regard?
What should be the legitimate exceptions to the data protection requirements imposed on TSPs and other providers in the digital ecosystem and how should these be designed? In particular, what are the checks and balances that need to be considered in the context of lawful surveillance and law enforcement requirements?
What are the measures that can be considered in order to address the potential issues arising from cross border flow of information and jurisdictional challenges in the digital ecosystem?
Written comments on the consultation paper are invited from the stakeholders by September 8, 2017. Counter comments, if any, may be submitted by 22 September, 2017. Both the comments and counter comments will be posted on TRAl's website.
The full text of the consultation can be accessed here.
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