As the Monsoon Session of the Parliament commences, we have prepared our first legislative brief on digital rights to highlight some of the focus areas within the larger issues of data protection and digital rights that call for the extensive deliberation in the houses of the Parliament.
The Monsoon Session of the Seventeenth Session of the Parliament commenced on July 19, 2021 and is poised to conclude on August 13, 2021. The Parliament is expected to take up 38 bills that are pending before it including 9 for consideration and passing while 17 others are due for presentation. One of the key highlights of this session of the Parliament is the plausible ubiquity of issues related to digital rights in several of its debates.
Ironically, the first day of the Parliamentary session coincided with a massive controversy regarding alleged government sponsored surveillance of mobile phones of over 300 Indian journalists, politicians, human rights defenders and civilians through the military spyware, Pegasus, licensed by the Israeli firm, NSO Group. This incident reiterates the importance of legislative safeguards to our rights of privacy and digital security. As our dependence on the internet grows, so does our need for robust legislative frameworks that duly protect our personal data and other forms of cyber threats like doxxing, harassment, frauds, misinformation and surveillance.
Thus, we have decided to create a Legislative Brief on digital rights. The aim of this brief is to help legislators help understand the contours of debates about various topics related to digital rights and provide them with key insights into these issues. We also hope to inform larger policy conversations on these subjects. Here, we provide a short summary of our brief.
The number of broadband internet subscribers witnessed substantial increases: the number of broadband subscribers grew by 12.33% compared to February 2021 to 765.09 million. This was a result of a 12.20% increase in wireless broadband subscribers and a 16.73% increase in wireline subscribers.
The total number of internet subscribers (broadband + narrowband) also increased to 795.18 million by the end of December 2020, a growth of 2.41% compared to September 2020. Total internet penetration (number of subscribers per 100 population) increased by 2.13% to 58.51 over the same period, with urban and rural internet penetration rates rising to 103.98 (2.20% growth) and 34.6 (1.79%).
While the data does show that on the whole access to digital infrastructure is increasing, as we have written earlier, a significant digital divide still remains. These figures highlight the rural-urban divide in terms of access to the internet, with the number of rural subscribers, despite making up a significant majority of the population, being only 63% of the number of urban subscribers. Rural internet density is also at around 33.27% of urban internet density. Clearly, large strides must still be made to reduce rural-urban differentials in internet access.
It may be reasonable to hope that in the upcoming sessions of the 17th Lok Sabha, pertinent questions around privacy will be raised. Within the larger scope of privacy issues, the largest category of the questions asked so far in the 17th Lok Sabha were related to data privacy concerns at 58 and 19 questions about the data legislation policies were raised. An astonishingly low number of questions (a meagre 5 questions) were about surveillance and snooping, while questions on Aadhaar data breaches were even lesser (only 3).
Between 2009 and 2021, the most number of questions were related to data privacy at 280 in Lok Sabha and 150 in the Rajya Sabha. While the Lok Sabha dealt with more questions on surveillance and snooping at 96, the Rajya Sabha merely had 17 questions on this issue. On the contrary, whereas Rajya Sabha relatively had more questions on Aadhaar breaches at 29, the Lok Sabha had entertained 43 questions related to it. A significant number of questions about the data protection legislation were raised in the Lok Sabha at 70 while in the Rajya Sabha 26 related questions were raised.
With respect to the party wise distribution of questions concerning privacy and data protection in Lok Sabha, the majority party, Bharatiya Janata Party had raised the most number of questions during the 17th Lok Sabha at 39, followed by the Indian National Congress which raised 16 questions on this topic. This was followed by regional parties like Shiv Sena, NCP, DMK, AITC among others, raising between 1 to 10 privacy related questions.
During the Monsoon Session, 5 of the Department related Parliamentary Standing Committees have discussed issues that pertain to digital rights.
1.The Standing Committee on Information and Technology : Entrusted with the task of supporting the Ministry of Electronics and Information Technology, Ministry of Communications and Ministry of Information and Broadcasting, this committee dealt with issues related to India’s preparedness for 5G, safeguarding citizens rights and prevention of misuse of social media/online news media platforms , ethical standards in media coverage , the Cinematograph (Amendment) Bill, 2019 , review of functioning of Central Board of Film Certification (CBFC), Citizens’ data security and privacy, safeguarding citizens’ rights and prevention of misuse of social/online platforms and to hear the views of the representatives of Facebook, Twitter and Google.
2. The Standing Committee on Home Affairs: This Committee specifically addressed the rising incidence of cybercrime against women and children.
3. The Standing Committee on Finance: This committee focused on the subjects related to the digital economy. It conducted a meeting with representatives from the Department of Revenue and Economic Affairs and Department for Promotion of Industry and Internal Trade to discuss how to finance the “innovation ecosystem” of India.
4. The Standing Committee on Food, Consumer Affairs and Public Distribution : This Committee largely channelled its focus on the issue of digitisation of public distribution systems, specifically the Integrated Management of Public Distribution System and the One Ration, One Nation Scheme.
5. The Standing Committee on Science and Technology, Environment, Forests and Climate Change: This Committee presented before the Rajya Sabha a report on the "The DNA Technology (Use and Application) Regulation Bill, 2019". The report analysed some of the key issues with the bill. However, it failed to address the inherent issues with the bill with regards to the absence of personal data protection legislation, the threat of profiling and surveillance as well as privacy concerns.
Budgetary allocations for selected items (Rs. cr)
Back in early February, we had analysed the 2021-2022 Union Budget. As we had noted earlier, on one hand, the budget proposed several praiseworthy allocations, but on the other, several key schemes witnessed low allocations.:
- The Ministry of Electronics and Information Technology: The Ministry witnessed a huge boost in allocations, with Rs. 9,720.7 crore being allocated to it in the Budget. This is mostly due to an increase in the allocation to the Digital India Program, which received Rs 6,806.3 crore. This itself stems from an increased focus on domestic manufacturing, as shown by the increased allocation of Rs. 2,631.3 crore towards the Promotion of Electronics and IT HW Manufacturing. However, the allocations for Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMGDISHA) have significantly decreased, with only Rs. 300 crore being allocated in the Budget Estimates for 2021-21.
- The Department of Telecommunications: The Department was allocated Rs 58,737 crore in the Budget, a substantial increase of 43% over the 2020-21 Revised Estimates. This is largely due to a large increase in support to Public Sector Undertakings. Both BSNL and MTNL were provided with capital infusions for providing 4G services and grants-in-aid for the payment of GST, with the PSUs receiving Rs. 16,656 crore and 7,428 crore respectively. The Universal Services Obligation Fund (USOF) also witnessed a considerable increase in allocation: the net allocation increased to 9,000 crore, a 25% increase over the 2020-21 Revised Estimates. However, here it must be noted that a significant corpus of Rs. 58,083.86 crore (49.45% of the aggregate collection of funds) remains available for utilisation.
- The Ministry of Information and Broadcasting: The Ministry witnessed a relatively modest (compared to other bodies in consideration) boost in allocations, with budgetary allocations going from Rs. 3,650.3 crore in the Revised Estimates of 2020-2021 to Rs. 4,071.2 crore in the Budget Estimates of 2021-2022. The growth in allocations originates from a robust 28% increase in Central Establishment Expenditure and a huge increase of 82% in funds allocated to Central schemes.
Issues to be taken up during session
The importance of digital rights have grown leaps and bounds in recent times. As such it is anticipated that the parliament will deliberate upon some of the most important concerns related to digital rights. This pans across proposed legislation, rules as well as real time issues.
- The Personal Data Protection Bill, 2019: The report of the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 which is posited as India’s overarching legislation governing data protection practices, was slated to be released during the current session of the Parliament. However, on Jul 22, 2021, this was postponed to the Winter Session of the Parliament.
- The DNA Technology (Use and Application) Regulation Bill, 2019: One of the most crucial issues to be taken up by the Parliament during the Monsoon Session is the DNA Technology ( Use and Application) Regulation Bill, 2019. Centred around the use of DNA technology in the justice delivery system, this bill raises concerns about privacy and surveillance norms and it is imperative that it is considered thoroughly and holistically before being passed.
- The Cinematograph Act, 1952: The Cinematograph (Amendment) Bill is scheduled to be tabled in the ongoing session of the Parliament. This Bill revolves around proposed amendments like subcategories of certification for films, stringent penal provisions for the menace of privacy as well as the changes to the power of the Central Board of Film Certification.
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Arguably the most pressing issue of the larger digital rights debates is the new IT Rules, 2021. They have been notified and is expected to be tabled over the course of the current session of the Parliament. The Rules have been mired in controversy ever since they were notified. In its current form, they not only lack any clear rationale but also go beyond the scope of the parent statute. Further, they suffer from imprecise language, impose arbitrary obligations of content regulation, traceability and decryption upon intermediaries which in turn jeopardise the freedom of speech and expression as well as the Right to Privacy of the users. IFF has written to concerned authorities regarding raising a statutory motion in the Parliament in order to duly amend the Rules.
- The “Pegasus spyware” attack and citizens’ data security and privacy: The most sensational topic in the larger ambit of ‘digital rights’ in recent times has to be the leaked database containing phone numbers of over 300 prominent Indians, allegedly using the ‘Pegasus spyware”. This is a huge blow to the principles of privacy and freedom of speech and expression of the citizens as well as raises doubts about the surveillance practices of the governments. The Parliament must probe into the current data breach and formulate adequate steps to prevent any such leaks in the future. The Standing Committee on Information and Technology has summoned a meeting to discuss this specific issue on July 28. 2021.
Issues for consideration
Since 2020, at least 16 consultations about digital technologies and digital rights have been undertaken by the Parliament. The topics under these consultations included data protection legislation, internet access, net neutrality enforcement, and digital infrastructure among others.
Further, it is of paramount importance to deliberate upon the broad themes listed below :
- Legislative Framework for Privacy: India is finally on the brink of receiving its first legislation which is formulated to be a comprehensive law on the protection of personal data. However, despite several rounds of consultations, in its current form the bill is wrought with concerns ranging from the collection of data without consent to weakened user rights to government overreach and surveillance.
- Covid and Technology: Right from the unilateral dependence on the web or mobile applications like CoWin for registrations for vaccination, or the Arogya Setu for undertaking long distance travel to the ubiquity of Aadhar card for accessing almost every essential health service, the enmeshing of technology for access to Covid related services have proven to be ill-timed and a hindrance for a large section of the citizens.
- Free speech and platform governance : In the last quarter of the year, we saw more stringent legislation regarding platform governance which not only governed social media intermediaries but also extended its applicability to OTT streaming platforms and “digital news media”. Simultaneously, incidents of state censorship of online speech have quadrupled. This calls to question both the efficacy as well as the proportionality of such measures.
- Internet access, internet shutdown, and net neutrality: Increasing incidents of internet shutdowns in India necessitates that due attention is focused on safeguarding the fundamental rights of the citizens. According to Access Now’s Report on Internet Shutdowns in 2020, out of 155 internet shutdowns reported across the globe, India shut down the internet 109 times. The enforcement of Net Neutrality is yet another disconcerting facet of India’s digital policies.
- Surveillance and facial recognition technology: In India, the threats of misuse of private information remain rather compelling. Not only the discretion to authorise surveillance lies solely with the executive, the judiciary too has not explicitly countered the use of surveillance technology by admitting evidences procured through such means as long as it is consented to and is relevant to the case; all this while there is no quantifiable proof of accuracy of the evidences derived out of surveillance.
- Digital technologies, social justice, and public welfare: The Internet has emerged as a medium to exercise the fundamental rights provided by the Constitution of India. Among the other debatable issues, the imposition of future digitalisation in Indian agriculture i.e. the Agristack has emergent ramifications on the data of the farmers. The other issues related to digital technologies and social justice that needs the Parliament’s attention include the DNA Technology (Use and Application) Regulation Bill, 2019, the National Digital Health Mission’s Health Data Management Policy and the Draft Code on Social Security, 2020, which makes Aadhaar based registration mandatory for receiving benefits.
This is IFF’s first attempt at drafting a Legislative Brief. The drafting of this brief was informed and indeed inspired by our conversations with various stakeholders and civil society organisations. We ask legislators and politicians, as well as the citizens of India, to provide us with inputs and feedback about how we can improve this brief here.
- IFF’s Legislative Brief on Digital Rights - Monsoon Session 2021 (link)