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Category: Technology

Building safe consumer data infrastructure in India: Account Aggregators in the financial sector (Part II)

Posted on December 30, 2019November 1, 2020 by Tech Law Forum @ NALSAR

TLF is proud to bring you a two-part guest post authored by Ms. Malavika Raghavan, Head, Future of Finance Initiative and Ms. Anubhutie Singh, Policy Analyst, Future of Finance Initiative at Dvara Research. This is the second part of a two-part series that undertakes an analysis of the technical standards and specifications present across publicly available documents on Account Aggregators. Previously, the authors looked at the motivations for building AAs and some consumer protection concerns that emerge in the Indian context.

Account Aggregators (AA) appear to be an exciting new infrastructure, for those who want to enable greater data sharing in the Indian financial sector. The key data being shared will extensive personal information about individuals like us – detailing our most intimate and sensitive financial transactions and potentially non-financial data too. This places individuals at the heart of these technical systems. Should the systems be breached, misused or otherwise exposed to unauthorised access the immediate casualty will be the privacy of the people whose information is compromised. Of course, this will also have an impact on data quality across the financial sector.

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Chance or Skill: Fantasy Sports Leagues and Gambling

Posted on December 3, 2019December 13, 2019 by Tech Law Forum @ NALSAR

This piece has been authored by Karthik Subramaniam, a second year student at NALSAR University of Law. It discusses the debate surrounding Fantasy Gaming Leagues and gambling.

Spectator sports have been popular since time immemorial. fantasy sports leagues across the world have gained huge fan bases and manage to rake in massive revenues. The National Football League (NFL), the premier American Football tournament in the United States managed to generate revenue of around 13,680 million USD in 2017, which surpasses the GDP of almost 64 countries. Many individuals see these leagues as geese that lay golden eggs, thereby, motivating them to get involved.

Sports Fantasy leagues are games in which participants accumulate points based on the statistical accomplishments of the athletes they have selected to their teams based on a draft. One of the earliest published accounts of a fantasy sports involved Oakland businessman Wilfred “Bill” Winkenbach who devised fantasy golf in the latter part of the 1950s in the United States.With sports leagues such as the National Football League (NFL), the National Basketball Association (NBA), Major League Soccer (MLS), Major League Baseball (MLB) and the National Hockey League (NHL) present in North America, Fantasy Sports Leagues boasted almost 56.8 Million players in 2015. With people spending an estimated 11 Billion USD on online fantasy leagues in 2013, the need for regulations in the area becomes all the more important. The spending of so much money on a game where the pay-outs are highly uncertain draws a very fine line between such spending and the illegal act of gambling.

The Unlawful Internet Gambling Enforcement Act of 2006(UIGEA) is a legislation in the United States that regulates online gambling and ensures the protection of individuals operating in this rapidly booming field. The UIGEA prohibits gambling businesses from knowingly accepting payments in connection with the participation of another person in a bet or wager that involves the use of the Internet and that is unlawful under any federal or state law. The presence of this legislation has made gambling over the internet illegal. In fact, betting on sports is illegal in all American states apart from Nevada. The reason fantasy football and other such fantasy sports fall outside the ambit of being a gamble or wager is due to the UIGEA. The legislation says that games of “skill” played for a certain reward (money in most cases) can be permitted to continue online, while games that involve an element of “chance” cannot. UIGEA includes a specific exemption for fantasy sports from being considered as gambling, provided that they meet three essential requirements: 1) The value of the prize involved is entirely independent of the number of players involved, 2) the outcome is based on the relative knowledge and skill of the participants and determined by statistical results, and 3) the outcome cannot be determined by the score of the game or based solely on one individual player’s performance in a single real sporting event. These specific exceptions were carved out to accommodate the slowly growing (in 2005) industry of online fantasy gaming. In a letter dated Feb. 1, 2006, the top lawyers from the NFL, NBA, NHL and MLB asked members of Congress to co-sponsor UIGEA, which included the fantasy carve-out. The legality of the same has allowed many states to impose taxes on fantasy gaming, allowing them to join in on the money bandwagon as well.

The Indian standpoint on this is based on the differentiation between games involving chance, and games involving skill as well, as laid out in the American context.

The Fantasy Sports League sector in India has been gaining steam for a while. Recently, in April 2019, Dream11, a Mumbai-based fantasy gaming start-up became India’s first gaming unicorn. The online gaming revenue is expected to increase from around 2,000 crores in 2014 to around 11,900 crores in 2023. The sector has undergone a massive change over the last few years with people rapidly gaining interest.

The current Indian legislations that deal with gaming in India are the Public Gambling Act, 1867(PGA) and the Prize Competitions Act, 1955(PCA). The 1867 Act, being a pre-Independence legislation offers a colonial approach to gambling, which put forward a largely anti-gambling rhetoric.[1] While this legislation looks at predominantly criminalising gambling in most cases, it also tries to distinguish between betting on a “game of chance” and staking on a “game of skill” to provide a safe harbour to activities such as wagering on horse races which were extremely popular amongst the British. While the application of this legislation was limited to the erstwhile British presidencies, the adoption of the principle espoused by the statute in most state legislations illustrates a similar mind-set showcased by Indian states.

Very much like the UIGEA, the Indian position with respect to declaring online-fantasy games as legal lies on the emphasis given on “games of skill”. While the PGA does not clearly mention specific games that constitute as games of “mere skill”, Indian courts have by and large adopted the “dominant factor test” or “predominance test” which requires the court to analyses the case and verify if chance or skill “is the dominating factor in determining the result of the game”.[2] Courts have recognised that no game is a game of pure skill alone and almost all games involve an element, albeit infinitesimal, of chance.

Based on the above, Sports Fantasy games have been exempt from the provisions of the PGA and have been declared as a legitimate business activity protected under Article 19(1)(g) of the Constitution of India. With a high potential for growth in the Indian market, foreign entities have been looking at exploring possibilities in the country. The classification of games into those involving “skill” and those involving “chance”, in India has been very vague, and often left up to the interpretation of courts. In an era of growing acceptance and evolution there is a requirement of an effective legislation specifically classifying activities as illegal gambling, separating it from those involving preponderance of skill.

[1]Vivek Benegal, Gambling Experiences, Problems and Policy in India: A Historical Analysis, in 108, =&0=&, December 2013, 2062-2067.

[2]Dr. K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153; State of Andhra Pradesh v. K. Satyanarayana, AIR 1968 SC 825.

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Algorithms: Can They Collude?

Posted on November 19, 2019December 13, 2019 by Tech Law Forum @ NALSAR

This piece has been authored by Lokesh Vyas, a fourth year law student at Institute of Law, Nirma University, Ahmedabad. Here, he gives a lucid explanation of issues posed by the increasing use of algorithms. 

The Cloak of Algorithms

Unlike the traditional market, the digital economy does not have any geographical limits. Thus, there is fierce competition among all the players. However, due to the unequal availability of resources, it is becoming increasingly difficult for new aspirants to join the market. The use of pricing algorithms, presently adversely  affects the present landscape of online retail.

An algorithm is an established computational procedure that takes a set of values, as input and produces another set of values as output. A catena of algorithms is used in the market to create artificial transparency.[1] These algorithms are called pricing algorithms because competitors in the market use them to set prices after gauging market behavior and competitors. They help competitors to outlive others through optimum pricing. Such a scenario creates artificial algorithmic transparency in the market. However, with an increase in such algorithms in the market, it becomes easy to predict the change in the market. An increase in the accuracy of such predictions, not only strengthens the dominance of certain competitors but also eliminates small competitors altogether, hindering consumer welfare.

Unilateral decision making, the right to make intelligent decisions is a fundamental right of any business, since they aim at maximizing profit. The exercise of such a right effectuates conscious parallelism which is a legitimate and obvious factor in any market. However, the artificial transparency that continues to exist due to algorithms enables competitors to control the market.

Further, the increasing transparency in the market creates interdependency among the competitors, thereby incentivizing collusion. Algorithms create a god’s eye view, enabling competitors to monitor activities in the market in real time. Market players are less likely to deviate because of the instantaneous fear of retaliation.

Hence, the algorithms become a cloak to escape liabilities under competition law. Such tacit collusion has not been considered not barred by the law.

Challenges

The primary question is, does traditional competition law accommodate the recent trends in the market such as pricing algorithms and if so, how? The challenge before competition law authorities is to detect whether tacit collusion exists among competitors, and whether it negatively impacts consumer welfare.

Additionally, questions about communication and liability arise. The absence of explicit communication is a major issue when considering collusion, because in order to prove collusion, there must be an existence of communication. Algorithms have enabled companies to escape the necessity of explicit communication.

Another issue associated with such algorithms is that of liability, because there is no human intervention which facilitates such tacit collusion. Thus, it becomes difficult for authorities to ascertain the liability of the final wrongdoer. The three possible assertions with respect to liability are; the liability of the person who invents such algorithms; the liability of the person who deploys them; the liability of the person who gains from such algorithms.[2]

None of the above acts are explicitly prohibited by law unless a mala fide intention [intentional cartelization] to cause harm is proved. Competition law only outlaws bilateral or multilateral decision making by the competitors because it implies the existence of cartelization. By contrast, the adoption of pricing algorithms through undertakings merely enables them to attain dynamic pricing. The issue arises when competitors maximize their profit by colluding with each other, by entering into automatized virtual agreements. As per the current debate on algorithmic collusion, algorithms are used to facilitate an existing price agreement between the competitors. They simply act as intermediaries, as an extension of the human will. Alternatively, the algorithms are designed to result in a tacitly collusive result. Here, unilaterally designed algorithms learn to tacitly understand each other due to limited market characteristics. Presently, two scenarios emerge when considering algorithms that could cause collusion.

The first is the ‘messenger scenario’, since here algorithms acts as an instrument of collusion, including the implementation of agreed price adjustments as well as the monitoring of such agreements. An example of this is the US Department of Justice and UK Competition and Markets Authority’s proceedings regarding the distribution of posters through the Amazon Marketplace. Here, the companies involved initially agreed via e-mail that they would not underbid each other. After an attempt at the manual adjustment of prices had proved too complex, both companies used (different) repricing software. Pertinently, this software made it possible to monitor competitors’ prices and dynamically adjust one’s own prices according to those of competitors. The software was set so that the products were offered at the same price as long as no third (uninvolved) dealer with a lower price was active on the market.

In the second scenario, a collusive market comes about because the behavior of companies is canonically harmonized by using similar algorithms or by using algorithms which adapt to change in the others. Such agreements do not come under the general definition agreement, however there exists a tacit ‘meeting of mind’ among the competitors. Hence, the traditional definition of a contract under competition law needs to revisited in order to include such collusion. Notably, the definitions of an anti-competitive agreement under Section 3 of the Competition Act, 2002, Section 1 of the Sherman Antitrust Act, 1890, and Article 101 of the Treaty on the Functioning of the European Union do not cover mere ‘meeting of mind’ which exists due to such virtual agreements.

The use of algorithms in the market cannot be curbed altogether, since it would tremble the pillar of the digital economy. However, there is a need for regulatory policies to accommodate for the status quo. Pertinently, mutual price monitoring—the crux of tacit collusion which is not prohibited by Competition Law—must be addressed again.

The meaning of communication, a pre-requisite for constituting anti-competitive behavior also needs to be revisited to prevent ‘algorithm driven cartelization’. Pricing algorithms create a barrier for new entrants which in the long run affects market efficiency. Such a barrier is likely to impede the innovation in the market, which has direct nexus with consumer welfare.

Information Technology Act, 2000

There have been a lot of cases where e-commerce platforms and social media websites have been cleped as intermediaries, however, it is largely connected with the content uploading. Similarly, Section 2 of the recent Motor Vehicles (Amendment) Act, 2019 defined aggregators such as Uber and Ola as digital intermediaries or marketplaces which can be used by passengers to connect with  cabs. The question of intermediary liability primarily deals with content uploading or verification, and attracts the applicability of IP laws or other criminal laws.

However, the competition in the market is so fierce today, that independent firms like Feedvisor and Intelligence Node have started offering algorithmic pricing as a service. Here, the question arises whether such firms are intermediaries under section 2(w) of Information Technology Act, 2000 and do not attract liability (see Section 79 of the Act) because they are a link that collects the information of various competitors and compares them to produce the best results for a third party. Thus, the applicability of the safe harbor provision on algorithm deploying companies also needs to be considered, since they are aware about the effects and utilization of these algorithms.

  • Algo 1- Algorithm P
  • Algo 2- Algorithm P

[The above diagram demonstrates a scenario where a common algorithm (Algo P) is used by two different business entities(Firm A & Firm B).]

Conclusion and Suggestions

There have been four approaches to solving the above problems so far:-

  1. To broaden the interpretation of competition laws;
  2. To insert new provisions in the existing legislation;
  3. To use more rigorous alternative methods of dispute resolution; and
  4. To act in a way that parallel consciousness would not happen.

The underlying assumption of all the above approaches is that algorithms are inherently perilous to the market and pose threats to the fair competition in markets. The heart of the entire pricing algorithms debate revolves around the term ‘contract’ which needs to be revisited and interpreted. The term contract/agreement connotes ‘meeting of mind’ and the meeting of mind suggest the intention of the parties to agree on something. The most strenuous task before the competition law agencies is to ascertain such intention even when such explicit agreement is lacking.In order to curb the above challenges, the intervention can either be in the form of making big legal changes (e.g. Expanding the scope of major offenses like cartelization and abuse of dominant position) or to come up with small interventions (such putting a cap on the price change for more than a certain number of times in a day).

Therefore, competition law authorities can retaliate to such changes by bringing enforcement algorithms which can detect deviant or anomalous behavior in the market and thwart them timely.

[1] See Virtual Competition by Ariel Ezrachi and Maurice E. Stucke.

[2] See Virtual Competition by Ariel Ezrachi and Maurice E. Stucke.

Figure taken from here.

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Metadata by TLF: Issue 7

Posted on November 14, 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.

Israel spyware ‘Pegasus’ used to snoop on Indian activists, journalists, lawyers

In a startling revelation, Facebook owned messaging app WhatsApp revealed that a spyware known as ‘Pegasus’ has been used to target and surveil Indian activists and journalists. The revelation came to light after WhatsApp filed a lawsuit against the Israeli NSO Group, accusing it of using servers located in the US and elsewhere to send malware to approximately 1400 mobile phones and devices. On its part, the NSO group has consistently claimed that it sells its software only to government agencies, and that it is not used to target particular subjects. The Indian government sought a detailed reply from WhatsApp but has expressed dissatisfaction with the response received, with the Ministry of Electronics and Information Technology stating that the reply has “certain gaps” which need to be further investigated.

Further reading:

  1. Sukanya Shantha, Indian Activists, Lawyers Were ‘Targeted’ Using Israeli Spyware Pegasus, The Wire (31 October 2019).
  2. Seema Chishti, WhatsApp confirms: Israeli spyware was used to snoop on Indian journalists, activists, The Indian Express (1 November 2019).
  3. Aditi Agrawal, Home Ministry gives no information to RTI asking if it bought Pegasus spyware, Medianama (1 November 2019).
  4. Shruti Dhapola, Explained: What is Israeli spyware Pegasus, which carried out surveillance via WhatsApp?, The Indian Express (2 November 2019).
  5. Akshita Saxena, Pegasus Surveillance: All You Want To Know About The Whatsapp Suit In US Against Israeli Spy Firm [Read Complaint], LiveLaw (12 November 2019).

RBI raises concerns over WhatsApp Pay

Adding to the WhatsApp’s woes in India, just after the Israeli spyware Pegasus hacking incident, The RBI has asked the National Payments Corporation of India (NPCI) not to permit WhatsApp to go ahead with the full rollout of its payment service WhatsApp Pay. The central bank has expressed concerns over WhatsApp’s non-compliance with data processing regulations, as current regulations allow for data processing outside India on the condition that it returns to servers located in the country without copies being left on foreign servers.

Further Reading:

  1. Karan Choudhury & Neha Alawadhi, WhatsApp Pay clearance: RBI raises concerns data localisation concerns with NPCI, Business Standard (7 November 2019).
  2. Aditi Agarwal, ‘No payment services on WhatsApp without data localisation’, RBI to SC, Medianama (9 October 2019).
  3. Sujata Sangwan, WhatsApp can’t start payments business in India, YOURSTORY (9 November, 2019).
  4. Yatti Soni, WhatsApp Payments India Launch May Get Delayed Over Data Localisation Concerns, Inc42 (9 October 2019).
  5. Priyanka Pani, Bleak future for messaging app WhatsApp’s payment future in India, IBS Intelligence (9 November 2019).

Kenya passes new Data Protection Law

The Kenyan President, Uhuru Kenyatta recently approved a new data protection law in conformity with the standards set by the European Union. The new bill was legislated after it was found that existing data protection laws were not at par with the growing investments from foreign firms such as Safaricom and Amazon. There was growing concern that tech giants such as Facebook and Google would be able to collect and utilise data across the African subcontinent without any restrictions and consequently violate the privacy of citizens. The new law has specific restrictions on the manner in which personally identifiable data can be handled by the government, companies and individuals, and punishment for violations can to penalties of three million shillings or levying of prison sentences.

Further reading:

  1. Duncan Miriri, Kenya Passes Data Protection Law Crucial for Tech Investments, Reuters (8 November 2019).
  2. Yomi Kazeem, Kenya’s Stepping Up Its Citizens’ Digital Security with a New EU-Inspired Data Protection Law, Quartz Africa (12 November 2019).
  3. Kenn Abuya, The Data Protection Bill 2019 is Now Law. Here is What that Means for Kenyans, Techweez (8 November 2019).
  4. Kenya Adds New Data Regulations to Encourage Foreign Tech Entrants, Pymnts (10 November 2019).

Google gains access to healthcare data of millions through ‘Project Nightingale’

Google has been found to have gained access data to the healthcare data of millions through its partnership with healthcare firm Ascension. The venture, named ‘Project Nightingale’ allows Google to access health records, names and addresses without informing patients, in addition to other sensitive data such as lab results, diagnoses and records of hospitalisation. Neither doctors nor patients need to be told that Google an access the information, though the company has defended itself by stating that the deal amounts to “standard practice”. The firm has also stated that it does not link patient data with its own data repositories, however this has not stopped individuals and rights groups from raising privacy concerns.

Further reading:

  1. Trisha Jalan, Google’s Project Nightingale collects millions of Americans health records, Medianama (12 November 2019).
  2. Ed Pilkington, Google’s secret cache of medical data includes names and full details of millions – whistleblower, The Guardian (12 November 2019).
  3. James Vincent, The problem with Google’s health care ambitions is that no one knows where they end, The Verge (12 November 2019).
  4. Rop Copeland & Sarah E. needlemen, Google’s ‘Project Nightingale’ Triggers Federal Inquiry, Wall Street Journal (12 November 2019).

Law professor files first ever lawsuit against facial recognition in China

Law professor Guo Bing sued the Hangzhou Safari Park after it suddenly made facial recognition registration a mandatory requirement for visitor entrance. The park had previously used fingerprint recognition to allow entry, however it switched to facial recognition as part of the Chinese government’s aggressive rollout of the system meant to boost security and enhance consumer convenience. While it has been speculated that the lawsuit might be dismissed if pursued, it has stirred conversations among citizens over privacy and surveillance issues which it is hoped will result in reform of existing internet laws in the nation.

Further reading:

  1. Xue Yujie, Chinese Professor Files Landmark Suit Against Facial Recognition, Sixth Tone (4 November 2019).
  2. Michael Standaert, China wildlife park sued for forcing visitors to submit to facial recognition scan, The Guardian (4 November 2019).
  3. Kerry Allen, China facial recognition: Law professor sues wildlife park, BBC (8 November 2019).
  4. Rita Liao, China Roundup: facial recognition lawsuit and cashless payments for foreigners, TechCrunch (10 November 2019).

Twitter to ban all political advertising

Twitter has taken the decision to ban all political advertising, in a move that increases pressure on Facebook over its controversial stance to allow politicians to advertise false statements. The policy was announced via CEO Jack Dorsey’s account on Wednesday, and will apply to all ads relating to elections and associated political issues. However, the move may only to prove to have symbolic impact, as political ads on Twitter are just a fraction of those on Facebook in terms of reach and impact.

Further reading:

  1. Julie Wong, Twitter to ban all political advertising, raising pressure on Facebook, The Guardian (30 October 2019).
  2. Makena Kelly, Twitter will ban all political advertising starting in November, The Verge (30 October 2019).
  3. Amol Rajan, Twitter to ban all political advertising, BBC (31 October 2019).
  4. Alex Kantrowitz, Twitter Is Banning Political Ads. But It Will Allow Those That Don’t Mention Candidates Or Bills., BuzzFeed News (11 November 2019).

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E-Pharmacy and Tech Law: An Interface (Part I)

Posted on October 2, 2019October 2, 2019 by Tech Law Forum NALSAR

This is the first part of a 2-part post authored by Anubhuti Garg, 4th year, and Gourav Kathuria, 2nd year, of NALSAR University of Law. Part II can be found here.

The growth of the Internet and rise of companies like Amazon and Flipkart has meant that e-commerce is rapidly gaining traction in India. A notable emergence in this regard has been that of e-pharmacies, which provide heft discounts and hassle-free deliveries to attract consumers. Their arrival on the scene has been acknowledged by the government which has tried to bring in a draft policy in order to regulate these entities, however it is yet to be implemented. The existing laws are inadequate when it comes to dealing with e-pharmacies and there is an urgent need for new legislation governing the issue which is precisely what the Sale of Drugs by E-Pharmacy (Draft Rules) aim to do.

The present post aims to analyse the laws currently applicable to e-pharmacies in India, and Part II will look at the consequences of implementing the proposed policy. The focus is on highlighting the lacunae in existing laws and providing suggestions with a view to implementing a better solution.

Laws Regulating E-Pharmacies

India does not have a special law dedicated to governing e-pharmacies. Most of the laws which are applicable to e-pharmacies were made at a time when computers did not exist and consequently, they are incapable of addressing the issues faced by e-pharmacies.

Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945

The Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945 regulate the sale, distribution and storage of drugs and other pharmaceutical products in India. According to the law pharmacies need to necessarily comply with two conditions: first, they need to acquire a license from the state food and drugs authority, and secondly, specified medicines can only be sold on the basis of a prescription provided by a medical practitioner. Recently, a notification passed by the Office of Drugs Controller General clarified that the present law did not distinguish between online and offline pharmacies; which implies that the present Act would govern e-pharmacies as well.

Information Technology Act, 2000

The Information Technology Act, 2000, does not contain specific references to e-pharmacies. In general, any transaction happening on the internet falls within the ambit of the Act and as a result e-pharmacies will be governed by its provisions.

Challenges with the Laws

Firstly, the current laws are inadequate when it comes to governing the functioning of e-pharmacies. For instance, the Drugs and Cosmetics Act and Rules mandate that a physical pharmacy have proper storage facilities for the medicines with special requirements pertaining to hygiene etc. However, in the case of e-pharmacies it becomes very difficult to assess where the medicines are stored or obtained from, which increases the possibility of the medicine being of below the required quality.

Secondly, the possibility of repeated use of prescriptions gives rise to the risk drug misuse and addiction. There is a need to regulate the manner in which e-pharmacies sell these drugs as restrictions applicable to conventional drug stores cannot be applied in the case of e-pharmacies.

Thirdly, there exist pertinent concerns regarding the privacy of online customers and the confidentiality of their data which need to be addressed. This aspect is not governed by any law and storage of customers’ data by e-pharmacies could prove to be problematic in the long run.

Fourthly, accountability of e-pharmacies is an increasing concern as some pharmacies claim that by virtue of their position as “intermediaries” they should not be held accountable for any problems that may arise in the future. Intermediaries are governed by the IT Act and Section 2(w) classifies online market places like Amazon and Flipkart as intermediaries. Section 79 provides them with immunity from liability for third party information provided they conform to the requirements of Section 79(2). Rule 3 of the Information Technology (Intermediaries Guidelines) Rules 2011 makes intermediaries responsible for informing the users about its policies and provides for a redressal mechanism. However, it fails to impose a high enough burden on information uploaded to the portal, as a result of which serious liability cannot be imposed on e-pharmacies.

The picture that emerges is that of inadequate laws governing the functioning of e-pharmacies, with the varied approaches taken by courts posing another problem. The Madras High Court had earlier imposed an interim ban on e-pharmacies, which was later reversed by a division bench order. Similarly, the Delhi High Court had also banned e-pharmacies however this was overturned by the government’s legislation which was upheld in a later order.

It was to deal with the confusion existing over e-pharmacies that the government came up with draft policy, however this is yet to be implemented. The next part will analyse the draft rules and highlight some concerns surrounding the legislation and will attempt to show the way forward for the regulation of e-pharmacies in India.

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Artificial Intelligence is a Road Map to Transmogrification of Legal Industry

Posted on September 30, 2019 by Tech Law Forum NALSAR

This piece, taking an optimistic view of the use of AI in the legal industry, has been authored by Priyal Agrawal and Laxmi Rathore. They are currently in their 3rd year at the Kirit P. Mehta School of Law, NMIMS, Mumbai.

“In the long term, artificial intelligence and automation are going to be taking over so much of what gives humans a feeling of purpose.” – Matt Bellamy

Artificial intelligence is a computer-based system that performs tasks, which typically require human intelligence. In this process, computers use rules to analyze data, study patterns and gather insights from the data. Artificial Intelligence companies persistently find ways of evolving technology that will manage arduous tasks in various sectors for enhanced speed and accuracy. Artificial Intelligence has transformed nearly all the professional sectors including the legal sector. It is finding its way into the legal profession and there is a plethora of software solutions available, which can substitute the humdrum and tedious work done by lawyers. In the legal profession, the changes are diverse where software solutions have outweighed paperwork, documentation and data management.

This blog analyzes the use of AI in the legal industry. It describes various AI tools which are used in the legal sector, and gives an insight into the use of AI in the Indian Judiciary system to reduce pendency of cases. Finally, we discuss the challenges in the implementation of AI in the legal field.

In the legal field, Artificial Intelligence can be applied to find digital counsel in the areas of due diligence, prediction technology, legal analytics, document automation, intellectual property and electronic billing. One such tool, which facilitates the use of artificial intelligence, is Ross Intelligence. This software has natural language search capabilities that enable lawyers to ask questions and receive information such as related case laws, recommended readings and secondary sources. Prediction Technology is a software which speculates a litigation’s probable outcome. In 2004, a group of professors from Washington University examined their algorithm’s accuracy in predicting Supreme Court judgments in 628 cases in 2002. The algorithm’s results were compared to the findings of a team of experts. It proved to be a more accurate predictor by correctly predicting 75 percent of the outcomes compared to the 59 percent of the experts’ accuracy. In 2016, JP Morgan developed an in-house legal technology tool named COIN (Contract Intelligence). It draws out 150 attributes from 12000 commercial credit agreements and contracts within few seconds. According to this organization, this equals to 36,000 hours of legal work by its lawyers.

In an interview with UK’s law Firm Slaughter and May a review of the AI tool, Luminance that is being currently used by them was taken. This tool is designed to assist with contract reviews, especially with regard to due diligence exercises during mergers and acquisitions. It was found out that the AI tool has an impact on the firm’s lawyers, who could spend more time on doing valuable work.  It was also found out that the tool fits well into the existing workflows of the firm in relation to M&A due diligence. The documents that the tool helps to review are already stored in a virtual data room; the only additional step the tool needs to take is to introduce documents into the solution itself.

India is also adopting the use of artificial intelligence in the legal field. One of India’s leading law firms Cyril Amarchand Mangaldas is incorporating artificial intelligence in its processes for contract analysis and review, in concurrence with Canadian AI assistant Kira system. This software will analyze and differentiate risky provisions in the contract. It will improve the effectiveness, accuracy and scale up the speed of the firm’s delivery model for legal service and research.

In the Indian judicial system, where a plethora of cases is pending, artificial intelligence can play a significant role to reduce the burden. A deadweight of almost 7.3 lakh cases is left pending per year. A large amount of legal research is required by advocates to argue their case. Use of AI can accelerate the speed of legal research and enhance the judicial process. In this regard, a young advocate named Karan Kalia, developed a comprehensive software program for speedy disposal of trial court cases to the Supreme Court’s E-Committee led by Justice Madan B Lokur. This software offers a trial judge with appropriate case laws instantly, while also identifying their reliability.

AI enables lawyers to get nonpareil insight into the legal realm and get legal research done within few seconds. AI can balance the expenditure required for legal research by bringing about uniformity in the quality of research. AI tools help to review only those documents which are relevant to the case, rather than requiring humans to review every document. AI can analyze data through which it can make quality predictions about the outcome of legal proceedings in a competent manner, and in certain cases, better than humans. Lawyers and law firms can swing their attention to the clients rather than spending time on legal research, making the optimum use of the constrained human resources. They can present arguments and evidence digitally, get them processed and submit them faster.

Although AI is prone to some challenges, these can be subdued with time. The major concern circumscribing AI is data protection. AI is used without any legal structure that generates the risk of information assurance and security measures. A stringent framework is needed to regulate AI to safeguard an individual’s private data and provide safety standards.  A few technical barriers will limit the implementation of AI technologies. It is difficult to construct algorithms that capture the law in a useful way. Lack of digitalization of data is also a technical constraint. Complexity of legal reasoning acts as a potential barrier to implementing effective legal technologies. However, this will be eventually rectified with continuous usage and time.

The introduction of AI in the legal sector will not substitute lawyers. In reality, technology will increase the efficiency and productivity of lawyers and not replace them. Instead, the roles of lawyers will shift, rather than decline, and become more interactive with technological applications in their field. None of the AI tools aims to replace a lawyer but they increase the authenticity and accuracy of research and enable to give a more result-oriented suggestion to the clients. As Mcafee and Bryjolfsson have pointed out, “Even in those areas where digital machines have far outstripped humans, people still have vital roles to play.”

The use of AI will manifest a new broom that sweeps clean, i.e., it will bring about far- reaching changes in the legal field. Over the next decade, the use of AI-based software is likely to increase manifold. This will lead to advancement and development in functionality present lawyering technologies such as decision engines, collaboration and communication tools, document automation, e-discovery and research tools and legal expert system the aforementioned. Trending industry concepts like big data and unstructured database will allow vendors to provide more robust performance. There will also be an influx of non-lawyer service providers who will enter the legal industry, some of whom will be wholly consumer-based, some lawyer focused and others will sell their wares to both consumers and lawyers. The future for manual labor in law looks bleak, for the legal world is gearing up to function in tandem with AI.

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Smart Derivative Contract: The Dark Horse of the Securities Market?

Posted on September 18, 2019 by Tech Law Forum NALSAR

This post has been authored by Arnav Maru, currently in his 4th year at Maharashtra National Law University (MNLU), Mumbai.

In a previous post, the concept of smart contracts as used in the legal field was explained comprehensively. Smart contracts are pieces of software that are formed when certain operational terms of a contract are written in the form of electronically executable codes. They were originally envisaged by Nick Szabo and theorized in a paper titled ‘Smart Contracts: Building Blocks for Digital Markets’. He used a rudimentary example of a vending machine to explain the concept. A consumer inserts cash into the machine and enters his preference. The machine then automates the execution of the contract and the goods are delivered to the consumer. The introduction of Blockchain technology has added another dimension to this concept and has exponentially increased its application. Self-executing contracts, based on the Blockchain are a reality now, and have found applications in a myriad of fields. An increasing popularity of the Blockhain and its uses has necessitated an overview of the progress made on this front, both, in terms of legal developments as well as feasibility of actual use.

The Interface of Blockchain and the Derivatives Market

One such innovative, immensely useful, and lucrative application is in the field of derivatives. Explained simply, a derivative contract is one whose value is based on an agreed underlying financial asset or a set of assets. Smart derivative contracts inculcate the advantages of smart legal contracts such as inalterability, self-enforcement and removal of intermediaries, while also providing the flexibility that comes with the written word, necessary for making derivative contracts viable. In September 2018, Bloomberg reported that Morgan Stanley, one of the world’s leading investment banks, would be offering Bitcoin swap trading for clients. CNBC, in a follow up piece, added that Goldman Sachs is working on a derivative for the Bitcoin. These derivatives have been developed on increasing client demand, and have gained traction despite Bitcoin losing a huge chunk of its value in months preceding September 2018.

Smart contracts derive utility from the automated and guaranteed enforcement of promises made ex ante more than anything else. The reduction in enforcement costs has been pegged as their greatest advantage. Researchers have tried to exploit these core advantages and come up with futures, options, and swap models of smart derivative contracts.

Desired Legal Framework

The most important work on taking the model comes from the International Swaps and Derivatives Association (“ISDA”). In a whitepaper published in October 2018, ISDA has developed the concept of a derivative smart contract and laid down a roadmap to their proper construction. In its introduction, the paper lays down that a smart derivative contract lies at the intersection between a smart legal contract, which in itself is a subset of a smart contract, and a derivative contract. The explanation appended to the Venn diagram reads as follows:

“Smart derivatives contracts are smart because they are derivatives contracts with some terms that can be automatically performed. Those terms are expressed in a form that enables their efficient automation. Other terms that are not automatically performed are expressed in natural language.”

Following this analysis, the paper talks about the actual applications of smart contracts to the derivatives market. Automation, as mentioned above, is the key advantage that smart contracts have to offer. A distinction is made between the parts of a derivative contract that can be automated, and the parts of a derivative contract that should be automated. In addition to highlighting that automating the entire contract is neither possible nor desirable, when viewed from a commercial perspective, it also elaborates on how certain ambiguous legal standards, such as ‘a reasonable person’ ought to be so for the proper functioning of private law. A previous paper from ISDA, elaborates on what operational clauses are. Explained simply, they are if-then functions in a derivatives contract. For example, ‘Pay X $100 per share brought on date B if condition Y is met’. These basic Boolean functions are encoded into a smart legal contract and the operational part of a derivative contract is automated.

The natural language of the contract, however, needs to be retained for certain non-operational parts of a derivative contract. Provisions such as the governing law of the contract, arbitration clause, a clause imposing a duty of best efforts on parties, et cetera are non-operational clauses that need the flexibility of the written word. The smart contract can be added as one of the terms to this written contract and integrated in a way that the performance of terms still stands guaranteed. The ISDA has concluded the paper with an effective model for the implementation of such a scenario.

A few other models have come up independently of ISDA. Future or forward options where a smart contract can be programmed to buy or sell security tokens at designated timelines; an options contract where the owner of a security token is given the right but is not burdened with an obligation to sell; a swap model with two different security tokens to hedge against market uncertainties. Their adoption on a commercial scale remains uncertain as of now. While banks and financial institutions have taken steps towards this direction, the solidification of legal frameworks stands in their way.

After an overwhelming response and a positive market reaction, ISDA followed the white paper up with another one titled ‘Legal Guidelines for Smart Derivatives Contracts: Introduction’. In this paper, ISDA has evolved four principles for the development of smart derivatives contracts. The first principle lays down that the smart contract framework needs to meet the existing legal and regulatory framework. While it says that the smart derivative contracts must comply with both, the standards governing smart contracts, and the standard governing derivative contracts, Indian jurisprudence has not developed on the functioning of smart contracts. Any smart legal contract, thus, need only satisfy the provisions of the Indian Contract Act, 1872. The second principle develops on the notion that only the part of the derivatives contract that is capable of being automated should be considered. This commonsensical principle does not need much further elaboration.

The third principle points out that effective automation should be based on legal validation. That is to say, lawyers and legal enforcement officers should be able to validate the legal effect of any coded or automated provision. The legal effect of the code must align with the intended legal effect of the contract. The mere fact of automation must not discount the nature and purpose of the contract. Lastly, leaning more on an economic point of view, the benefit of automation must outweigh the cost of such automation. This principle adds a cost benefit analysis to the feasibility of smart contracts and touches the core of their utility.

Conclusion

The derivatives market in India is still relatively new and undergoes change and development on a regular basis. Markets and technological operations have received the introduction of Blockchain and smart contracts positively. It has huge potential to alter how we think of the derivatives market. ISDA has taken the lead in venturing into tapping the potential that these technologies have in store for us. The whitepapers and other literature need further development and research, and this paper has sought to consolidate the existing works for better understanding in Indian context. No legal machinery or regulatory framework exists at this moment to make the fusion of smart legal contracts and derivative contracts a solid possibility. Until initiative is taken and more research is done in this area, India could fall behind the international trends in fully embracing this advancement. It is urged that foresight be exercised in attempting to make India friendly to such developments. The author sees this piece as a small step towards ensuring the same.

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The Effect of Motor Vehicles (Amendment) Bill, 2019 on Ola and Uber

Posted on September 16, 2019September 17, 2019 by Tech Law Forum NALSAR

This quick read has been authored by Shauree Gaikwad, a 3rd year student at Maharashtra National Law University (MNLU), Aurangabad.

[Ed. Note: Since the post was written, the Bill has become law and the amendments have now come into force.]  

With the progress in technology and the advent of cab-aggregator platforms such as Ola and Uber in India, an amendment to the Motor Vehicles Act was long due. As a result of the Motor Vehicles (Amendment) Bill, 2019 (“2019 Amendment”) being passed, Ola and Uber will have to comply with the Motor Vehicles Act, 2000. The Bill has amended Section 93 of the Motor Vehicles Act, 2000 (“Principal Act”) by adding the term “aggregator” to the existent terms “agent” and “canvasser” to the section. The term “aggregator” has been defined as “a digital intermediary or marketplace for a passenger to connect with a driver for the purpose of transportation”, to be added under Section 1A of the principle Act. Cab-hailing platforms are now recognized as a marketplace, allowing the Centre and States to regulate and penalize Ola and Uber for non-compliance.

The 2019 Amendments which would be directly applicable to Ola and Uber once it becomes a law are:

Recognition of cab-aggregators as intermediaries

Until now, Ola and Uber were not governed directly by any legislation. But the Motor Vehicles (Amendment) Bill, 2019 makes the Information Technology Act, 2000 directly applicable to Ola and Uber through their recognition as digital intermediaries. As a result, Ola and Uber can be penalised for offences such as breach of data privacy under Section 66E and 72 of the IT Act. Hence, the emphasis is laid on preventing the misuse of personal data of consumers such as date of birth, debit card details, UPI number, phone number shared with Ola and Uber in order to use their services. Additionally, under Section 85 of the IT Act, companies who don’t comply with the Act shall be penalised. Further, Ola and Uber will have to compulsorily obtain a license from the State authorities, which will be subject to the guidelines laid down by the Centre. In case of non-compliance, a fine ranging from Rs. 25,000 to Rs. 1,00,000 can be levied against aggregators, according to the new Section 193(2) inserted by the Amendment.

Central and State Laws

The principal Act also empowers the State authorities to attach conditions in the form of guidelines, for obtaining a license that can differ between states, customizable to the local needs. In case of a conflict between central guidelines and the state rules, central guidelines will prevail as the principal Act falls under the concurrent list in the 7th Schedule of the Constitution.

Compliance with directions given by the Centre

Ola and Uber will have to comply with the directions issued by the Centre such as “the promotion of effective competition, passenger convenience and safety, competitive fares and prevention of overcrowding” under Section 96(2) Clause (xxxiib) of the Motor Vehicles Act, 2000. Until now, Ola and Uber independently decided the number of passengers a car could accommodate, according to their pricing and categories such as micro, mini, Ola share (Ola) and pool, Uber-go and premium (Uber). But now, as Ola and Uber have to comply with the principle Act, the number of people a cab can accommodate as well as whether differential pricing by Ola and Uber might be liable to change due to the compulsory competitive pricing clause, and in turn affects the revenue of Ola and Uber.

Uniform Surcharge and Fees

The 2019 Amendment envisages a uniform license rule by making obtaining of license by Ola and Uber a strict norm with hefty fines and makes state authorities responsible for their implementation. Prior to the 2019 Amendment, the surcharge fees and the limit of the number of passengers that a car can accommodate were decided by Ola and Uber. Now, Section 96 of the principal Act, which emphasizes fair pricing and passenger convenience, will bind these cab-aggregator services.

Penalties on Hand-Held Devices

The 2019 Amendment Act also brings in stricter penalties for using hand-held devices. Section 184 of the principal Act penalized the driver for driving dangerously but failed to define acts that constitute dangerous. With the insertion of an explanation clause in Section 184 by S.67(iv) of the 2019 Amendment, drivers can be charged for using mobiles and tablets with a fine ranging from Rs. 1000 to Rs. 5000, instead of the previous fine of Rs. 1000.

Ola and Uber operate through digital platforms, and their business model is heavily dependant upon the use of mobile phones and GPS technology, for navigation and booking and accepting rides. Therefore, the applicability of a strict penal provision for the use of mobile phones may be harmful to their business model. With the increase in the penalty for using a mobile phone while driving and the necessity for Ola and Uber drivers to use mobile phones as a part of their job, there is a degree of uncertainty as to the extent to which usage of technology is acceptable.

 

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Indian Government’s Stance on Cryptocurrencies: An Analysis

Posted on September 11, 2019September 10, 2019 by Tech Law Forum @ NALSAR

This post on the recent recommended ban on cryptocurrency has been authored by Shivani Malik, a final year law student at the Vivekananda Institute of Professional Studies.

Current Scenario

The Ministry of Economic Affairs in its recent press release dated July 22, 2019, prepared a report on the Committee on Virtual Currencies, which proposed a ban on the so-called “private cryptocurrencies”.

The Government of India had constituted an Inter-Ministerial Committee (IMC) on November 2, 2017 under the Chairmanship of Shubash Chandra Garg (Secretary, Department of Economic Affairs) in order to study the issues related to virtual currencies and propose specific action to be taken in this matter. The committee recommended that all private cryptocurrency like Bitcoins should be banned due to the volatile nature of their price. Additionally, a fine of INR 25 Crore may be levied and imprisonment of up to 10 years may be awarded for carrying on activities associated with cryptocurrencies in India.

The report garnered a lot of negative attention, with the crypto community taking the view that it was extremely backward looking and had a regressive approach to such a futuristic concept. In order to recognize the impact of the announcement, it is necessary to first understand what virtual currency is.

What is Virtual Currency?

A virtual currency is a digital representation of value that can be digitally traded and functions as (a) a medium of exchange, and/or (b) a unit of account, and/or (c) a store of value, but does not have legal tender status. A virtual currency is a private medium of exchange that does not in any way reflect a sovereign guarantee of the value or legal tender status. Virtual currency is therefore distinguished from the FIAT currency of a country that is designated as its legal tender. Cryptocurrencies are a subset of virtual currencies that is decentralized and protected by cryptography. Bitcoin is an example of a cryptographic virtual currency, and was the first of its kind.

Currently, the term “legal tender” finds expression under Section 26 of the RBI Act, which states that, “every bank note shall be legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government”. The main point of difference between fiat currency and virtual currency is that while the former is expressly guaranteed by the Central Government, the latter does not provide for the same. In order for any virtual currency to be declared as legal tender, it would need to be expressly guaranteed by the Central Government. Only in that scenario would the parties be legally bound to accept it as a mode of payment.

In the third chapter of the report committed projected the idea of Central Bank Digital Currency (CBDC) that shall be the “Digital Rupee” to be the sole cryptocurrency in India having the following key attributes-

  1. Issued by Reserve Bank of India
  2. Variant to Cash and Reserve Money
  3. Possibility of being served as a competitor to cash.

View of the Committee

Having discussed the above, the Committee appreciated the regulatory concerns associated with virtual currencies. The topics relating to Distributed Ledger Technology (‘DLT’) and Blockchain were delved into deeply and their complexity duly recognized. DLT refers to technologies that involve the use of independent computers to record, share and synchronize transactions in their respective electronic ledgers. Keeping such distributed ledgers obviates the need for keeping the data centralized as is done in a traditional ledger, which is why DLT is extensively utilized by virtual currencies.

Primarily, a transaction under DLT refers to the transfer of ‘value’ from one to another, which could be a record of ownership of assets— money, security, land titles, etc. — or the record of specific information such as information about one’s identity or health. Blockchain, on the other hand, refers to a specific kind of DLT which uses codes to encrypt transactions and stack them up in blocks, creating Blockchains.

As mentioned above, the IMC recognizes the potential of DLT and Blockchain and acknowledges that the application of DLT is being explored in the areas of trade finance, mortgage loan applications, digital identity management or KYC requirements, cross-border fund transfers and clearing and settlement systems. To that effect, the Committee advised the Department of Economic Affairs to take necessary measures to facilitate the use of DLT in the entire financial field after identifying its uses, and further suggested that regulators such as RBI, SEBI, IRDA, PFRDA, and IBBI explore the idea of evolving appropriate regulations for development of DLT in their respective areas.

Consequently, the IMC is of the view that it “would be advisable to have an open mind regarding the introduction of an official digital currency in India”. It is pertinent to note that that the RBI Act has the enabling provisions to permit the central government to approve a “Central Bank Digital Currency” (CBDC) as legal tender in India.

Reasons for attracting the ban

While the use of technology in virtual currencies has multiple upsides, it is not without grave risk. The IMC was of the view that private cryptocurrencies lack the necessary attributes of a currency, such as a fixed nominal value that characterizes legal currency.

Another concern plaguing the committee is that non-official virtual currencies can be used to defraud consumers, particularly unsophisticated consumers or investors. The IMC gives the example of the Rs. 2,000 crore scam involving GainBitcoin in India where investors were duped by a Ponzi scheme. In addition to the above, it has been observed that certain volatility exists when dealing with such currencies. In a country where lakhs of traders get involved in such currencies, this could have huge implications. Secondly, the IMC is worried that if private cryptocurrencies are allowed to function as legal tender, the RBI would lose control over monetary policy and financial stability, as it would not be able to keep a tab on the money supply in the economy.

Also, the anonymity of private digital currencies poses a risk to law enforcement, due to the potential for its use in illegal activities such as money laundering and terrorist financing activities. The lack of grievance redressal mechanisms is another major issue, due to the irreversible nature of such transactions.

The Road Ahead

The IMC report promulgates that the government should consider an official digital currency in lieu of private virtual currencies or crypto coins and tokens. On the other hand, the committee notes the risks involved and volatility in the prices of private cryptocurrencies, which inevitably led to them recommending a ban on cryptocurrencies in India and imposing fines and penalties for carrying on of any activities connected with cryptocurrencies.

This has been subjected to backlash from private traders who have sharply criticized Section 2.7 of the Recommendations which states that “the Committee notes with serious concern mushrooming of cryptocurrencies almost invariably issued abroad and numerous people in India investing in these cryptocurrencies. All these cryptocurrencies have been created by non-sovereigns and are in this sense entirely private enterprises.”

The IMC has opined that these crypto-assets are not backed by any intrinsic value, which have not been recognized as a legal tender in any jurisdiction, but that’s not entirely true. Many cryptocurrencies, these days, are backed by petroleum, gold, as well as the US dollar in the case of Facebook’s Libra. The IMC does not make any differentiation among cryptocurrencies that are not backed by any central banks. The report presents energy consumption as an issue in the context of Bitcoin mining, however, the report does not delve into the numerous solutions suggested world over to curb this consumption. Cryptocurrencies have never been used as a legal tender or currency in India, nor was it the expectation of any crypto startup. It has always been traded as an asset, which is now being banned.

In reference to the same, the panel has asked the government to consider the launch of an official government-backed digital currency in India, to function like banknotes, through the Reserve Bank of India. Authorities in various countries are considering how to regulate cryptocurrencies, particularly after Facebook announced plans to launch one called Libra, because of risks to the financial system and consumer data. According to recent reports, Libra will not be launched in India due to the current Indian regulation of not endorsing private cryptocurrencies. While Libra is likely to have a massive impact on global e-commerce, it is in the money transfer space where it could be a potential game-changer.

Aside from an extremely brief inspection of the application of DLT in India, the report also includes the proposed bill banning crypto assets that will be presented to the Supreme Court as well. It remains to be seen whether the Supreme Court accepts or rejects the same in toto or comes up with their own guidelines on the issue.

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Explainer on Account Aggregators

Posted on August 15, 2019December 4, 2020 by Tech Law Forum @ NALSAR

This post has been authored by Vishal Rakhecha, currently in his 4th year at NALSAR University of Law, Hyderabad, and serves as an introduction for TLF’s upcoming blog series on Account Aggregators. 

A few days back, Nandan Nilekani unveiled an ‘industry-body’ for Account Aggregators (AAs), by the name of ‘Sahamati.’ He claimed that AAs would revolutionise the field of fintech, and would give users more control over their financial data, while also making the transfer of financial information (FI) a seamless process. But what exactly are AAs, and how do they make transfer of FI seamless?

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