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  • Author: Anirudh Burman
  • Publication Date: 03-2020
  • Content Type: Working Paper
  • Institution: Carnegie Endowment for International Peace
  • Abstract: How should a legal framework for data protection balance the imperatives of protecting privacy and ensuring innovation and productivity growth? This paper examines the proposed data protection legislation in India from the perspective of whether it maintains this balance. In December 2019, the government introduced the Personal Data Protection Bill, 2019, in parliament, which would create the first cross-sectoral legal framework for data protection in India.1 This paper argues that the bill does not correctly address privacy-related harms in the data economy in India. Instead, the bill proposes a preventive framework that oversupplies government intervention and strengthens the state. This could lead to a significant increase in compliance costs for businesses across the economy and to a troubling dilution of privacy vis-à-vis the state. The paper argues that while the protection of privacy is an important objective, privacy also serves as a means to protecting other ends, such as free speech and sexual autonomy. A framework for protecting personal data has to be designed on a more precise understanding of the role of privacy in society and of the harms that emanate from violations of individual privacy.
  • Topic: Science and Technology, Law, Privacy, Data
  • Political Geography: South Asia, India
  • Author: Smriti Parsheera, Prateek Jha
  • Publication Date: 11-2020
  • Content Type: Working Paper
  • Institution: Carnegie Endowment for International Peace
  • Abstract: Access to cross-border data is an integral piece of the law enforcement puzzle. India is well placed to lead the discussions on international data agreements subject to undertaking necessary surveillance reforms. Access to cross-border data for the state’s law-and-order-related functions is an integral piece of the law enforcement puzzle. State agencies’ ability to access data for such purposes is, however, shaped not only by domestic laws and practices but also by the laws of other countries and the state’s international commitments. In the case of India, the use of international cooperation mechanisms to balance efficient data access with protections for citizens’ privacy remains a relatively underexplored facet of its digital strategy. With its growing digital market, economic relevance for large global businesses, and strategic relationships with countries like the United States and those in the European Union (EU), India is well placed to not merely participate in but rather to lead the discussions on international data agreements on behalf of the developing world. This paper evaluates India’s present mechanisms for data access by law enforcement authorities and existing arrangements for cross-border data access. It also analyzes the emerging global movement toward direct data access arrangements. Such arrangements authorize agencies in one jurisdiction to make direct data requests to service providers based in another jurisdiction. The Clarifying Lawful Overseas Use of Data (CLOUD) Act in the United States is an example of a legislative instrument that allows the United States to enter into executive agreements of this nature. Similar discussions are also underway in Europe under the European Commission’s e-evidence proposal involving its twenty-seven member countries and among the sixty-five states that are party to the Budapest Convention on Cyber Crimes. To date, India has not taken any concrete steps to evaluate the pros and cons of such arrangements. Neither has it paid serious regard to the critical and interconnected issue of reforming its domestic framework on lawful data access to ensure adherence with the fundamental right to privacy.
  • Topic: Science and Technology, Law Enforcement, Borders, Data
  • Political Geography: South Asia, India