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Category: Right to Privacy

Facial Recognition and Data Protection: A Comparative Analysis of laws in India and the EU (Part I)

Posted on April 3, 2021April 3, 2021 by Tech Law Forum NALSAR

[This two-part post has been authored by Riddhi Bang and Prerna Sengupta, second year students at NALSAR University of Law, Hyderabad. Part II can be found here]

With the wave of machine learning and technological development, a new system that has arrived is the Facial Recognition Technology (FRT). From invention to accessibility, this technology has grown in the past few years. Facial recognition comes under the aegis of biometric data which includes distinctive physical characteristics or personal traits of a person that can be used to verify the individual. FRT primarily works through pattern recognition technology which detects and extracts patterns from data and matches it with patterns stored in a database by creating a biometric ‘template’. This technology is being increasingly deployed, especially by law enforcement agencies and thus raises major privacy concerns. This technology also attracts controversy due to potential data leaks and various inaccuracies. In fact, in 2020, a UK Court of Appeal ruled that facial recognition technology employed by law enforcement agencies, such as the police, was a violation of human rights because there was “too broad a discretion” given to police officers in implementing the technology. It is argued that despite the multifarious purposes that this technology purports to serve, its use must be regulated.

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Facial Recognition and Data Protection: A Comparative Analysis of laws in India and the EU (Part II)

Posted on April 2, 2021April 3, 2021 by Tech Law Forum NALSAR

[This two-part post has been authored by Riddhi Bang and Prerna Sengupta, second year students at NALSAR University of Law, Hyderabad. Part I can be found here]

Procuring Data from Private Entities

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A Surveillance Story

Posted on January 16, 2021February 26, 2021 by Tech Law Forum NALSAR

[This post has been authored by Ada Shaharbanu and Reuel Davis Wilson.]

Our familiarity with surveillance generally brings to mind the methods adopted in the 20th century. Common among these are the tapping of telephone lines, stakeouts and the interception of postal services. However, it becomes difficult to keep a track of the multiplicity of ways in which surveillance is presently conducted. Advanced technology has barely allowed us to familiarize ourselves with one thing before the next comes along.

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Data Protection in EdTech Start-ups: An Analysis

Posted on January 8, 2021February 18, 2021 by Tech Law Forum NALSAR

[This post is authored by Oshi Priya, a third-year student at the National Law University of Study and Research in Law, Ranchi.]

Education technology (EdTech) is the means to facilitate e-learning through the combination of software and computer hardware along with educational theory. Though still in its early stages of development, it’s a $700 million industry today in India and is headed for 8-10 times the growth in the next 5 years. Some of the popular EdTech companies in India include Unacademy, BYJU’S, and Toppr, etc.

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Metadata by TLF: Issue 15

Posted on July 20, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

PIL filed seeking identities of content moderation officers

Former RSS ideologue K N Govindacharya filed a public-interest litigation in the High Court of Delhi to prompt Google, Twitter and Facebook to disclose identities of designated content moderation officers on the basis of the Information Technology Rules. In response, Google submitted that the officers worked with government authorities to remove illegal content. Govindacharya claimed that without disclosure of the officers’ identities, no mechanisms to enforce obligations could not be adequately instituted. However, Google responded by stating that revealing the identities of officers would jeopardize their capacity to work efficiently with the government, as they would be exposed to public scrutiny and criticism.

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The Conundrum of Compelled Decryption Vis-À-Vis Self-Incrimination

Posted on July 20, 2020November 1, 2020 by Tech Law Forum @ NALSAR

[This post has been authored by Shivang Tandon, a fourth year student at Faculty of Law, Banaras Hindu University.]

The ‘self-incrimination’ doctrine is an indispensable part of the criminal law jurisprudence of a civilized nation. Article 20(3) of the Indian Constitution and the Fifth Amendment of the Constitution of the United States provide protection against self-incrimination.

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How Facial Recognition Systems Threaten the Right to Privacy

Posted on June 27, 2020November 1, 2020 by Tech Law Forum @ NALSAR

[This post has been authored by Prajakta Pradhan, a 1st year student at Dr. Ram Manhar Lohiya National Law University (RMLNLU), Lucknow.]

Facial recognition involves the use of face mapping techniques to identify an individual’s facial features and compares it with available databanks. The facial recognition market is expected to grow to $7.7 billion in 2022 from $4 billion in 2017. The reason for this stellar growth is the varied application of facial recognition technology in both private and public sectors, with governments of many countries using facial recognition for law enforcement and surveillance.

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Metadata by TLF: Issue 9

Posted on May 9, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

Zoom sued by shareholder for ‘overstating’ security claims

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Standardizing the Data Economy

Posted on October 17, 2019December 13, 2019 by Tech Law Forum @ NALSAR

This piece has been authored by Namratha Murugeshan, a final year student at NALSAR University of Law and member of the Tech Law Forum.

In 2006, Clive Humby, a British mathematician said with incredible foresight that “data is the new oil”. Fast forward to 2019, we see how data has singularly been responsible for big-tech companies getting closer to and surpassing the trillion-dollar net worth mark. The ‘big 4’ tech companies, Google, Apple, Facebook and Amazon have incredibly large reserves of data both in terms of data collection (owing to the sheer number of users each company retains) and in terms of access to data that is collected through this usage. With an increasing number of applications and avenues for data to be used, the requirement of standardizing the data economy manifests itself strongly with more countries recognizing the need to have specific laws concerning data.

What is standardization?

Standards may be defined as technical rules and regulations that ensure the smooth working of an economy. They are required to increase compatibility and interoperability as they set up the framework within which agents must work. With every new technology that is invented the question arises as to how it fits with existing technologies. This question is addressed by standardization. By determining the requirements to be met for safety, quality, interoperability etc., standards establish the molds in which the newer technologies must fit in. Standardization is one of the key reasons for the success of industrialization. Associations of standardization have helped economies function by assuring consumers that the products being purchased meet a certain level of quality. The ISO (International Standards Organization), BIS (Bureau of Indian Standards), SCC (Standards Council of Canada), BSI (British Standards Institute) are examples of highly visible organisations that stamp their seal of approval on products that meet the publicly set level of requirements as per their regulations. There are further standard-setting associations that specifically look into the regulation of safety and usability of certain products, such as food safety, electronics, automobiles etc. These standards are deliberated upon in detail and are based on a discussion with sectoral players, users, the government and other interested parties. Given that they are generally arrived at based on a consensus, the parties involved are in a position to benefit by working within the system.

Standards for the data economy

Currently, the data economy functions without much regulation. Apart from laws on data protection and a few other regulations concerning storage, data itself remains an under-regulated commodity. While multiple jurisdictions are recognizing the need to have laws concerning data usage, collection and storage, it is safe to say that the legal world still needs to catch-up.

In this scenario, standardization provides a useful solution as it seeks to ensure compliance by emphasizing mutual benefit, as opposed to laws which would penalize non-adherence. A market player in the data economy is bound to benefit from standardization as they have readily accessible information regarding the compliance standards for the technology they are creating. By standardizing methods for collection, use, storage and sharing of data the market becomes more open because of increased availability of information, which benefits the players by removing entry barriers. Additionally, a standard-mark pertaining to data collection and usage gives consumers the assurance that the data being shared be used in a safe and quality-tested manner, thereby increasing their trust in the same. Demand and supply tend to match as there is information symmetry in the form of known standards between the supplier and consumer of data.

As per Rational Choice theory an agent in the economy who has access to adequate information (such as an understanding of costs and benefits, existence of alternatives) and who acts on the basis of self-interest, would pick that choice available to them that maximizes their gains. Given this understanding, an agent in the data economy would have higher benefits if there is increased standardization as the same would create avenues to access and usage in the market that is currently heading towards an oligopoly.

How can the data economy be standardized?

The internet has revolutionized the manner in which we share data. It has phenomenally increased the amount of data available on the platform. Anyone who has access to the internet can deploy any sort of data on to the same – be it an app, a website, visual media etc. With internet access coming to be seen as an almost essential commodity, its users and the number of devices connected to the Internet will continue to grow. Big Data remained a buzzword for a good part of this decade (2010’s), and with Big Data getting even bigger, transparency is often compromised as a result. Users are generally unaware of how the data collected from them is stored, used or who has access to it. Although, sometimes terms and conditions concerning certain data and its collection specify these things, it is overlooked more often than not, with the result that users remain in the dark.

There are 3 main areas where standardization would help the data economy –

  1. Data Collection
  2. Data Access
  3. Data Analysis

 

  1. Data Collection – Standardizing the process of data collection has a supply and demand side benefit. On the supply side, the collection of data across various platforms such as social media, personal use devices, networking devices etc., would be streamlined based on the purpose for which they are being harvested. Simpler language of terms and condition, broad specifications of data collection would help the user make an informed choice about whether they want to allow data collection. Thereby, this would seeking permissions from the user by way of categorizing data collection and making the same known to the user. On the demand side, this streamlined data collection would help with accumulating high-quality data as required for specific usage by those collecting it. This would also make for effective compliance with as is required by a significant number of data protection laws across the globe. Purpose limitation is a two-element principle. It says that data must be collected from a user for “explicit, specified and legitimate” purposes only and that data should be processed and used only in a manner that is compatible with the purpose it is collected for. This helps purpose limitation because once data providers are aware of how their data is going to be used, they can make a legitimate claim to check the usage of it by data collectors and seek stricter compliance requirements.

 

  1. Data Access – Standardizing data access would go a long way in breaking down the oligopoly of the 4 big tech companies over data by creating mechanisms for access to the same. As of now, there is no simple method for data sharing across databases and amongst industry players. With monetization of data rising with increasing fervor, access and exchange will be crucial to ensure that the data economy does not stagnate or have exceedingly high barriers to entry. Further, by setting standards for the access to data the stakeholders will be able to participate in discussions regarding the architecture of data access.

 

  1. Data Analytics – This is the domain that remains in the exclusive control of big tech companies. While an increasing number of entities are adopting data analytics, big tech companies have access to enormous amounts of data that has given them a head start. Deep Blue, Alexa, Siri are examples of the outcome of data analytics by IBM, Amazon and Apple respectively. Data analytics is the categorization and processing of data collected and involves putting to use the data resource to achieve the goal of creating newer technologies to cater to the needs of people. Data analytics requires investment that is often significantly beyond the reach of the general population. However, data analytics is extremely important to ensure that the data economy survives. By consistently searching for the next big thing in data analytics, we have seen the advent of Big Data, Artificial Intelligence and Machine Learning (a subset of AI) so far, indicating that investments in data collection and processing pay-off. Further, data analytics has a larger implication on how we tend to work and what aspects of our life we let technology take over. The search for smarter technologies and algorithms will ensure that the data economy thrives and consequently have an impact on the market economy. Standardization of this infrastructure would ensure fairer access norms and usage of collected data.

With the increasing application of processed information to solve our everyday problems, the data economy is currently booming; however, large parts of this economy are controlled by a limited number of players. Standardization in this field would ensure that we move towards increased competition instead of a data oligopoly, ensuring increased competition that will ultimately lead to the faster and healthier growth of the data economy.

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Metadata by TLF: Issue 6

Posted on October 10, 2019December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our Editors put together handpicked stories from the world of tech law! You can find other issues here.

Delhi HC orders social media platforms to take down sexual harassment allegations against artist

The Delhi High Court ordered Facebook, Google and Instagram to remove search result, posts and any content containing allegations of sexual harassment against artist Subodh Gupta. These include blocking/removal of social media posts, articles and Google Search result links. The allegations were made about a year ago, by an unknown co-worker of Gupta on an anonymous Instagram account ‘Herdsceneand’. These allegations were also posted on Facebook and circulated by news reporting agencies. An aggrieved Subodh Gupta then filed a civil defamation suit, stating these allegations to be false and malicious. Noting the seriousness of the allegations, the Court passed an ex-parte order asking the Instagram account holder, Instagram, Facebook and Google to take down this content. The Court has now directed Facebook to produce the identity of the person behind the account ‘Herdsceneand’ in a sealed cover. 

Further Reading:

  1. Trisha Jalan, Right to be Forgotten: Delhi HC orders Google, Facebook to remove sexual harassment allegations against Subodh Gupta from search results, Medianama (1 October 2019).
  2. Akshita Saxen, Delhi HC Orders Facebook, Google To Take Down Posts Alleging Sexual Harassment by Artist Subodh Gupta [Read Order], LiveLaw.in (30 September 2019).
  3. Aditi Singh, Delhi HC now directs Facebook to reveal identity of person behind anonymous sexual harassment allegations against Subodh Gupta,  Bar & Bench (10 October 2019).
  4. The Wire Staff, Subodh Gupta Files Rs. 5-Crore Defamation Suit Against Anonymous Instagram Account, The Wire (1 October 2019)
  5. Dhananjay Mahapatra, ‘MeToo’ can’t become a ‘sullying you too’ campaign: Delhi HC, Times of India (17 May 2019).
  6. Devika Agarwal, What Does ‘Right to be Forgotten’ Mean in the Context of the #MeToo Campaign, Firstpost (19 June 2019).

Petition filed in Kerala High Court seeking a ban on ‘Telegram’

A student from National Law School of India, Bengaluru filed a petition in the Kerala high court seeking a ban on the mobile application – Telegram. The reason cited for this petition is that the app has no  checks and balances in place. There is no government regulation, no office in place and the lack of encryption keys ensures that the person sending the message can not be traced back. It was only in June this year that telegram refused to hand over the chat details of the ISIS module to the National Investigation Agency.  As compared to apps such as Watsapp, Telegram has a greater degree of secrecy. One of the features Telegram boasts of is the ‘secret chat’ version which notifies users if someone has taken a screenshot, disables the user from forwarding of messages etc. Further, there are fewer limits on the number of people who can join a channel and this makes moderation on the dissemination of information even more difficult. It is for this reason that telegram is dubbed as the ‘app of choice’ for many terrorists. It is also claimed that the app is used for transmitting vulgar and obscene content including child pornography. Several countries such as Russia and Indonesia have banned this app due to safety concerns. 

Further Reading:

  1. Soumya Tiwari, Petition in Kerala High Court seeks ban on Telegram, cites terrorism and child porn, Medianama (7 October 2019).
  2. Brenna Smith, Why India Should Worry About the Telegram App, Human Rights Centre (17 February 2019).
  3. Benjamin M., Why Are So Many Countries Banning Telegram?, Dogtown Media (11 May 2019).
  4. Vlad Savov, Russia’s Telegram ban is a big convoluted mess, The Verge (17 April 2018).
  5. Megha Mandavia, Kerala High Court seeks Centre’s views on plea to ban Telegram app, The Economic Times (4 October 2019). 
  6. Livelaw News Network, Telegram Promotes Child Pornography, Terrorism’ : Plea In Kerala HC Seeks Ban On Messaging App, Livelaw.in (2 October 2019).

ECJ rules that Facebook can be ordered to take down content globally

In a significant ruling, the European Court of Justice ruled that Facebook can be ordered to take down posts globally, and not just in the country that makes the request. It extends the reach of the EU’s internet-related laws beyond its own borders, and the decision cannot be appealed further. The ruling stemmed from a case involving defamatory comments posted on the platform about an Austrian politician, following which she demanded that Facebook erase the original comments worldwide and not just from the Austrian version worldwide. The decision raises the question of jurisdiction of EU laws, especially at a time when countries are outside the bloc are passing their own laws regulating the matter.

Further Reading:

  1. Adam Satariano, Facebook Can Be Forced to Delete Content Worldwide, E.U.’s Top Court Rules, The New York Times (3 October 2019).
  2. Chris Fox, Facebook can be ordered to remove posts worldwide, BBC News (3 October 2019).
  3. Makena Kelly, Facebook can be forced to remove content internationally, top EU court rules, The Verge (3 October 2019).
  4. Facebook must delete defamatory content worldwide if asked, DW (3 October 2019).

USA and Japan sign Digital Trade Agreement

The Digital Trade Agreement was signed by USA and Japan on October 7, 2019. The Agreement is an articulation of both the nations’ stance against data localization. The trade agreement cemented a cross-border data flow. Additionally, it allowed for open access to government data through Article 20. Articles 12 and 13 ensures no restrictions of electronic data across borders. Further, Article 7 ensures that there are no customs on digital products which are electronically transmitted. Neither country’s parties can be forced to share the source code while sharing the software during sale, distribution, etc. The first formal articulation of the free flow of digital information was seen in the Data Free Flow with Trust (DFFT), which was a key feature of the Osaka Declaration on Digital Economy. The agreement is in furtherance of the Trump administration’s to cement America’s standing as being tech-friendly, at a time when most other countries are introducing reforms to curb the practices of internet giants like Google and Facebook, and protect the rights of the consumers. American rules, such as Section 230 of the Communications Decency Act shields companies from any lawsuits related to content moderation. America, presently appears to hope that their permissive and liberal laws will become the framework for international laws. 

Further Reading:

  1.     Aditi Agarwal, USA, Japan sign Digital Trade Agreement, stand against data localisation, Medianama (9 October 2019).
  2.     U.S.-Japan Digital Trade Agreement Text, Office of the United States Trade Representative (7 October 2019).
  3.   Paul Wiseman, US signs limited deal with Japan on ag, digital trade,Washington Post (8 October 2019).
  4.   FACT SHEET U.S.-Japan Digital Trade Agreement, Office of the United States Trade Representative (7 October 2019).
  5. David McCabe and Ana Swanson, U.S. Using Trade Deals to Shield Tech Giants From Foreign Regulators, The New York Times (7 October 2019).

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Recent Posts

  • Mapping the rise of the surveillance state amid the COVID-19 crisis
  • Facial Recognition and Data Protection: A Comparative Analysis of laws in India and the EU (Part I)
  • Facial Recognition and Data Protection: A Comparative Analysis of laws in India and the EU (Part II)
  • The Internet and Marginalised Genders: A Comment in view of the Intermediary Guidelines, 2021
  • Metadata by TLF: Issue 20
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