Guestpost: Do we care about privacy?

India’s privacy policy cannot be formulated only in the privacy of the corridors of power.

Ranjeet Rane, Research Assistant with Takshashila Institution’s Cyber Security Team, argues for an urgent debate between the government and citizens on privacy rights and limitations in India, given the recently implemented Centralized Monitoring System

While Mr. Edward Joseph Snowden gets to spend a year in Russia thanks to political asylum granted to him by the Russian president, the world is still recovering from the aftermath of the diplomatic quagmire his revelations of the U.S. Mass Surveillance Project brought in its wake.  To some, Mr. Snowden is a hero who exposed the machinations of Big Brother.  Regardless, the irony in Mr. Snowden’s choice of Russia as the staging ground for his apparent war against clandestine surveillance should not be lost on us.

If one looks beyond the news articles on clandestine surveillance,  it would be fair to say that the Snowden incident has now made it necessary to initiate a debate on balancing the concerns of privacy and security in India.  Indeed, the need for such is debate is even more pressing given the recent announcement of the Government of India to implement a Centralized Monitoring System (CMS) for the “lawful interception and monitoring” of electronic communication channels in the country comes at a time when the contours of a Privacy law are ill-defined in the country.

The Takshashila Institution’s discussion paper on the CMS highlights important concerns about the nature of privacy in the country. These concerns have found voice in recent news reports as well.

In the absence of laws that provide for the safeguarding of privacy and regulating data retention, ordinary citizens lack clarity on how their personal information is collected, stored, used and shared. Such practices are contradictory to the various interpretations of Article 19 & Article 21 of the Indian Constitution by the Supreme Court that indirectly uphold the Right to Privacy.

At present, lawful interception is vaguely defined within various Sections of the colonial-era Telegraph Act 1885. Among the more recent laws, Sections 69 & 69B of the Information Technology Act 2008 further expand the mandate for lawful interception, which may be exercised “when [the authorized officers] are satisfied that it is necessary or expedient” to do so in the interest of:

  1. The sovereignty or integrity of India;

  2. defense of India;

  3. security of the State;

  4. friendly relations with foreign States;

  5. public order;

  6. preventing incitement to the commission of any cognizable offence relating to above; or

  7. for investigation of any offence.

The directions under Section 69 can be issued by officers both at the central and state level, directions under Section 69B can only be issued by the Secretary of the Department of Information Technology under the Union Ministry of Communications and Information Technology. The analogous wording in the section coupled with the lack of exact definitions makes the nature of the powers of the Intercepting Officers synonymous with “discretionary.”

As for Data Retention, Section 67C of the Information Technology Act requires ‘intermediaries’ to maintain and preserve information. The nature of this information and the duration for the same was to be specified in a separate set of Rules to be issued by the Central Government. Apart from the Cyber Café Rules 2011 no such rules have been framed.  These Rules have led to a vast database of photo-copies of “ID proof” documents getting collected with cyber cafes across the country. Incidents of such documents been used for acquiring mobile SIM cards have also been highlighted by news reports.

It is clear from the examples above that there is complete lack of accountability and responsibility when it comes to the government controlling private data of the citizens. If the Government of India plans to implement the CMS or is already using Lawful Intercept and Monitoring (LIM) systems, then there is an urgent need for public discourse on this issue.

While current controls and accountability around lawful interception of personal data are not assuring, the ‘voluntary’ collection of citizen data through UID programs require further security provisions and clarity on how such data collected will be stored, which agencies will have access to it and with whom it will be shared. While a one-size-fits-all rule cannot be applied for data collected through interception systems or data voluntarily provided by citizens to avail various government benefits, it doesn’t take away the need to address the issues of privacy associated with both the categories.

Indeed, concerns of privacy cannot be wished away merely by citing vague threats to national security.  National security, can of course, trump concerns of privacy in extraordinary circumstances, but these ought to be the exception rather than the rule.  The status quo will only add to the rapidly escalating trust-deficit between the Government and its citizens.  While the draft of the Right to Privacy Bill has been making the rounds for quite some time, it hasn’t yet been opened for public consultation.

Policies on privacy cannot be formulated only in the privacy of the corridors of power.  Ultimately, it is imperative that the Government involve and consider the views of a much wider spectrum of stakeholders while formulating legislation on the basic rights of 1.2 billion people to own, control and share information about themselves.

 

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Urdunama: Alvida, Manmohan Singh

So, having been the source of a well-directed plant that led to commotion and friction between India and Pakistan in New York, Hamid Mir in a column in today’s Jang entitled “Alvida, Manmohan Singh” argues that the end is nigh where Manmohan Singh’s tenure as PM is concerned and that Pakistan is better off waiting for India’s general elections to conclude before pursuing dialog on bilateral issues.  Excerpts follow:

Nawaz Sharif’s attempts at bringing to attention the Kashmir issue in New York angered Manmohan Singh who then used his meeting with U.S. president Barack Obama to spread propaganda against Pakistan and level accusations against us during his UNGA address.

But Manmohan Singh forgets that the attack on the Samjhauta Express occurred during his own tenure and that there has yet to be any sentencing, despite the fact that a retired colonel of the Indian army was identified as being involved in the incident.  Indeed, during Dr. Singh’s tenure, a covert unit under the command of Gen. VK Singh was planning to spread terror in Pakistan.

There is no doubt that non-state actors from Pakistan have targeted India; however, these non-state actors have been targeting Pakistan far more than they have India over the last few years.  Such non-state actors are also present in India.  But India ignores its internal actors and blames Pakistan instead.

Nawaz Sharif was clear in his conversations with Manmohan Singh that Pakistan desires peace, but let India not mistake this desire as a sign of weakness.  Nawaz Sharif’s inclusion of Kashmir in his address to the UNGA angered Manmohan Singh enough to complain to Barack Obama.  Perhaps Manmohan Singh was under the illusion that Barack Obama had a remote through which he could control Nawaz Sharif’s speech and compel him to not bring up the Kashmir issue at the UNGA.

Ultimately, Nawaz Sharif did meet with Manmohan Singh, but this was a meeting to bid farewell.  Manmohan Singh’s tenure as PM will end in a few months.  He will retire and perhaps write a memoir recollecting his inconclusive negotiations with Gen. Musharraf.  Pakistan and Nawaz Sharif, however, should pursue plans for rapprochement with a new leadership after the elections in India.  [روزنامہ جنگ]

What does this all mean for India?  As a result of the meeting between Dr. Singh and Nawaz Sharif, the DGMOs of India and Pakistan are set to meet to discuss plans to restore the sanctity of the LoC.  However, Pakistan apparently doesn’t see any incentive to restore the ceasefire until it is able to negotiate with an Indian leadership post the general elections in May 2014.

Translation for India: expect a hot border for the next several months.  The LoC ceasefire is not likely to be restored any time soon.

 

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Storytelling in New York

Will the real Hamid Mir please stand up?

The great thaw in Indo-Pakistan ties that some hoped for in New York is degenerating rapidly into a farce.  When the new civilian administration came to power in Pakistan, it appeared eager to improve relations with India.  Mian Nawaz Sharif said his agenda for peace with India in his previous tenure was derailed by Gen. Musharraf.

Then in August, five Indian soldiers were killed by Pakistani troops, who ventured across the LoC into J&K  to carry out the attack. Mr. Sharif offered to meet Prime Minister Singh at the sidelines of the United Nations General Assembly in New York. Initially cool to the offer given an increasing number of LoC violations, the PM eventually agreed to a meeting.

In his speech at the UNGA, Mr. Sharif said he hoped for a “new beginning” with India.  He then ushered in this new beginning by raking up the Kashmir issue, warning that the “suffering of people cannot be brushed under the carpet, because of power politics.” With the atmosphere vitiated, Dr. Singh responded in his own speech by asserting that Jammu & Kashmir was an integral part of India and that “there can never, ever, be a compromise with the unity and territorial integrity of India.”

While Pakistan and India were busy reverting to predictable and boring positions in the Big Apple, drama was unfolding in Pakistan.  Hamid Mir, journalist and CEO of Geo Television, appeared via phone on a Pakistani show called “Aapas ki Baat” to update viewers on his meeting with Nawaz Sharif this morning.

Mr. Mir put it across that Mr. Sharif was unhappy with the Indian PM’s speech and discussions about Pakistan with U.S. president Barack Obama.  Nawaz Sharif, Mr. Mir said, told NDTV Group Editor Barkha Dutt that Dr. Singh was behaving not like a prime minister but like a “dehati aurat.” On Twitter today, Ms. Dutt refuted and provided context to Mr. Mir’s distorted version of events.

Mr. Mir hosts a show called “Aman ki Asha” on Geo TV, which aims to, among other things, improve relations between India and Pakistan.  But as a columnist in the Pakistani Urdu newspaper, Jang, Mr. Mir is far more open to towing the line of the Pakistani establishment on India, including issues pertaining to Kashmir and popular, but imagined conspiracy theories on India’s involvement in everything that happens in Pakistan.

Just this past week, Mr. Mir authored a piece in the Jang about claims and counterclaims between the UPA and Gen. VK Singh with regard to Pakistan.  The column titled “Yeh koi nayi baat nahi” (This is nothing new) is replete with fantastic conspiracy theories that suggest Indian involvement in the 1996 bombing of Imran Khan’s Shaukat Khanum cancer hospital.  Excerpts follow:

The prime minister (Benazir Bhutto) called for a meeting with the chief minister of Punjab and the IG and directed them to find those responsible for the Shaukat Khanum Hospital blast as quickly as possible.  Within a few days, the police arrested a young man named Ishaq Mirasi from a village along the border.  Ishaq Mirasi was also wanted in connection with the bombing of Lahore Airport’s old terminal.

The arrest notwithstanding, I was skeptical as to the connection between this poor villager and the Shaukat Khanum Hospital….I ended up conducting a detailed interview of Ishaq Mirasi in prison.  Ishaq told me that he was involved in petty smuggling.  On one such occasion while crossing the border into India, he was arrested by Indian army personnel.

An Indian army officer asked him whether he would prefer a long prison sentence in India or was instead willing to work (for the Indian army).  When Ishaq chose the latter, he was given training in bomb making and sent back to Pakistan.  After completing his mission, he would cross the border into India and provide Pakistani English-language newspapers covering the blasts as evidence to receive his payment…

…Interior Minister Nasirullah Babar told me India was trying to recruit the poor and unemployed in Lahore, Karachi, Quetta and Peshawar and was financing sectarian organizations to promote discord between the Sunnis and Shias.

[On Gen VK Singh's comments]… This is nothing new. It is possible that the military intelligence unit targeting Pakistan has been disbanded  But R&AW’s covert intelligence units continue their operations against Pakistan.

Instead of putting on an act of friendship, Nawaz Sharif and Manmohan Singh (if they meet in New York) ought to discuss how India and Pakistan can put an end to conspiring against each other    [روزنامہ جنگ]

Civilian leaders in Pakistan have met Dr. Singh in the past without there being extra-circular activities from the Pakistani military establishment.  Former Pakistan prime minister Yousuf Raza Gilani, whose Pakistan Peoples Party enjoyed anything but cordial relations with the army, met Dr. Singh in Sharm el-Sheikh and later on in Mohali during the India-Pakistan cricket World Cup semi-final.

But Mr. Sharif’s attempts at outreach seem to coincide with violations along the LoC, an attack this week on a police station and army camp in Jammu & Kashmir, and now apparently targeted information operations with a view to scuttle talks between Dr. Singh and Mr. Sharif in New York.  The question that needs to be asked then is what was Mr. Sharif willing to offer or discuss with the Indian PM that has so ruffled the feathers of the Pakistani military-jihadi complex.

As for Hamid Mir, it would be sadly ironical for the host of a show called “Aman ki Asha” to be responsible for putting paid to Mr. Sharif’s attempts at improving ties with India. It behooves Mr. Mir to respond.

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Winning the small nuclear battles

Dr. Singh and Mr. Obama must move forward on nuclear trade when they meet this week.

Some newspapers and political parties would have us believe that the PM is in New York with the express intention of selling India’s soul to America.

They contend that India’s Nuclear Liability Act (NLA), which allows for costs to be imposed on the supplier in the event of a nuclear disaster in India, is about to be sold down the river by the PM in order to remove impediments to the participation of U.S. firms in civil nuclear trade with India.  There was furor when it emerged that the Attorney General had issued an opinion indicating that the Nuclear Power Corporation (NPCIL) had the right to waive the liability provision, if provided for in a contract.

Outraged opposition parties and left-leaning media outlets argued that India was bypassing its own law to please the U.S.  A few observations on the subject:

The language in the NLA appears to be fairly clear on the applicability of supplier liability.  Clause 17 reads:

The operator of the nuclear installation, after paying the compensation for nuclear
damage in accordance with section 6, shall have a right of recourse where-

(a)    such right is expressly provided for in a contract in writing;
(b)    the nuclear incident has resulted as a consequence of an act of supplier or his
employee, which includes supply of equipment or material with patent or latent defects
or sub-standard services;
(c)    the nuclear incident has resulted from the act of commission or omission of
an individual done with the intent to cause nuclear damage.  [THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010]

We’ll leave matters relating to the legal interpretation of the language in the Act to the experts on the subject, but if our admittedly untrained legal interpretation is correct, clause 17(a) does allow for supplier-side liability if “expressly provided for” in a contract between the operator (in most cases, GoI) and the supplier.

If this is indeed true, then the question of “bypassing” Indian law simply doesn’t arise.  The law itself does not make supplier-side liability mandatory.  Further, it the begs question of what the opposition — which was out screaming blue murder this past month — was doing when the bill was being debated in 2010.  Even assuming their very busy schedule of staging walkouts in Parliament got in the way of them expressing an opinion when the bill was being debated, what have they been doing the past two years since its enactment?

The NLA in its current state is simply incompatible with the IAEA Convention on Supplementary Compensation (CSC), which India undertook a commitment to accede to.  Contingent on these incompatibilities, India has signed the CSC but not ratified it, as ratification would require a change in our liability laws.  It is strange then that we appear so eager to be brought into the mainstream of the global framework for civil nuclear commerce and yet not want to be bound by its rules.

The issues pertaining to supplier-side liability are not U.S.-specific.  The truth is that no one is willing to do business with India given the costs imposed by the NLA on suppliers.  The Russians have refused to bring Kudankulam 3 and 4 under the ambit of the NLA.  The French company Areva has also made it clear that it will not be able to move forward, given the language in the NLA. The Canadians have expressed reservations.  Potential Indian suppliers themselves appear to be uneasy with supplier-side liability with FICCI warning that the NLA “threatens to completely undo the government’s efforts to accelerate nuclear power generation…”

The AG’s interpretation that the operator had the ability to contractually invoke or exclude supplier-side liability actually dates back to October 2012, when his legal opinion was provided during negotiations on Kudamkulam with the Russians.  There was not so much as a whimper in the left-leaning media then, but apparently now this interpretation causes a “dilution” in our liability laws to allow the prime minister to carry as a “gift” to the U.S.

The Cold War ended two decades ago, folks.  There is no benefit in India pretending to be more soviet than the Soviet Union in 2013.

Many in India are yet to appreciate the impact the NLA has had on the general mood towards India in DC.  This was about more than just nuclear commerce.  Presidents of the U.S. do not make phone calls to their Chinese counterparts asking them to drop their opposition to a third country’s bid for an NSG waiver merely at the prospect of being able to sell few nuclear reactors.  India would have most likely remained a nuclear paraih were it not for the efforts of the Bush administration.

Since obtaining an NSG waiver, the UPA has bungled like only it can.  Debates on nuclear liability were emotive rather than pragmatic, drawing wrong lessons from the Bhopal tragedy.  While the NLA automatically precluded the possibility of the participation of U.S. companies in civil nuclear commerce with India, companies in Russia and France, which were initially underwritten by their governments, were able to enter into exploratory discussions with India.  With Russia and France no longer willing to abide by the NLA, the prime minister arrives in the U.S. attempting to salvage a relationship and an economy.

Realistically, neither the U.S. nor India have each other on their list of top priorities at the moment. The Obama administration is faced with a precarious situation in Syria and is battling opposition on healthcare reform and budget disputes.  Meanwhile, with India heading to polls in May 2014, the UPA is effectively in a holding pattern with very little political capital at its disposal for brave new ideas.

Under the circumstances, if a pre-early works agreement can indeed be concluded between NPCIL and Westinghouse, it might help arrest the doom and gloom and allow both sides to reevaluate positions sometime next year.  This is about as much as we can hope for when Dr. Singh and Mr. Obama meet on Friday.

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