The Government of India Gazetted the DPDPA on August 11 2023. The Minister of IT Sri Rajeev Chandrashekar has announced that the DPB will be constituted and some rules will be notified within the next 3 weeks.
Under the DPDPA at least 26 rules are required to be notified. Not all of these may be notified immediately but they may come in stages.
The set of rules that can be expected are as follows
Sl No
Section 40
Description
1
(r)
the manner of appointment of the Chairperson and other Members of the Board under sub-section (2) of section 19;
2
(s)
the salary, allowances and other terms and conditions of services of the Chairperson and other Members of the Board under sub-section (1) of section 20;
3
(t)
the manner of authentication of orders, directions and instruments under sub-section (1) of section 23;
4
(u)
the terms and conditions of appointment and service of officers and employees of the Board under section 24
5
(v)
the techno-legal measures to be adopted by the Board under sub-section (1) of section 28;
6
(w)
the other matters under clause (d) of sub-section (7) of section 28;
7
(a)
the manner in which the notice given by the Data Fiduciary to a Data Principal shall inform her, under sub-section (1) of section 5; (purpose)
8
(b)
the manner in which the notice given by the Data Fiduciary to a Data Principal shall inform her, under sub-section (2) of section 5; ( Rights)
9
(h)
the manner of publishing the business contact information of a Data Protection Officer under sub-section (9) of section 8;
10
(g)
the time period for the specified purpose to be deemed as no longer being served, under sub-section (8) of section 8;
11
(k)
the other matters comprising the process of Data Protection Impact Assessment under sub-clause (i) of clause (c) of sub-section (2) of section 10;
12
(l)
the other measures that the Significant Data Fiduciary shall undertake under sub-clause (iii) of clause (c) of sub-section (2) of section 10;
13
(m)
the manner in which a Data Principal shall make a request to the Data Fiduciary to obtain information and any other information related to the personal data of such Data Principal and its processing, under sub-section (1) of section 11;
14
(n)
the manner in which a Data Principal shall make a request to the Data Fiduciary for erasure of her personal data under sub-section (3) of section 12;
15
(p)
the manner of nomination of any other individual by the Data Principal under sub-section (1) of section 14;
16
(o)
the period within which the Data Fiduciary shall respond to any grievances under sub-section (2) of section 13
17
(x)
the form, manner and fee for filing an appeal under sub-section (2) of section 29
18
(y)
the procedure for dealing an appeal under sub-section (8) of section 29;
19
(c)
the manner of accountability and the obligations of Consent Manager under sub-section (8) of section 6;
20
(d)
the manner of registration of Consent Manager and the conditions relating thereto, under sub-section (9) of section 6;
21
(e)
the subsidy, benefit, service, certificate, licence or permit for the provision or issuance of which, personal data may be processed under clause (b) of section 7;
22
(f)
the form and manner of intimation of personal data breach to the Board under sub-section (6) of section 8
23
(i)
the manner of obtaining verifiable consent under sub-section (1) of section 9;
24
(j)
the classes of Data Fiduciaries, the purposes of processing of personal data of a child and the conditions relating thereto, under sub-section (4) of section 9;
25
(q)
the standards for processing the personal data for exemption under clause (b) of sub-section (2) of section 17;
26
(z)
any other matter which is to be or may be prescribed or in respect of which provision is to be, or may be, made by rules…including who is a Significant Data Fiduciary
The world has crossed an important red line with the humanoid robot namely Mika, which is functioning as a CEO of a company. Mika is said to be the sister of Sophia, which earlier had created history by being the first robot to be granted citizenship of a country.
In India we are seeing humanoid robots being teachers in schools, receptionists in Banks, news readers in TV stations. I am sure that apart from the “Drones”, “Robotic soldiers” are being developed across the globe by all countries including China, US, Japan and perhaps India too.
At the same time Neuroscientists are also creating “Cyborgs” who are humans with implanted computing devices.
The question we want to ask ourselves today is how does law respond to these kind of developments where AI is merging with humans and humans are merging with AI?
At present AI is a creation of a human being and in Jurisprudence it is a “Tool” operated by the human and hence the legal consequences of the actions of AI are attributed to the human behind the creation. But just as a parent is responsible for the actions of his minor upto a certain age and thereafter the responsibilities pass on to the erstwhile minor who is now a “Major”, the AI remains a “Subordinate AI” upto a point of time and thereafter becomes “Independent AI”.
We need to decide if “Independent AI” which has near human like cognitive capabilities and decision making capabilities not entirely dependent on the past instructional inputs should be given a legal status independent of its creator and made responsible for its own decisions.
The “Cyborgs” like Neil Harbisson are a different category. They were born human but endowed with super human capabilities through an implant. These cyborgs have come to existence because of a medical necessity that prompted them to take the adventurous life but other instances of similar kind indicate that the future of humanity is that of Cyborgs. It is expected that many individuals will provide consent to become cyborgs to improve their functionality.
The Problem for Jurisprudents is to determine how to treat these Cyborgs, Humanoid robots , Generative AI algorithms in terms of law. Are these different classes of Juridical entities to whom the law has to be defined?
Just as a ANI/AGI develops into ASI and we can consider it like the human attaining maturity through the aging process from a minor to a major, the Cyborg before implant and after implant is a different individual and Jurisprudence has to recognize this transition from a human to Cyborg as a difference in status. May be we have to trat this like a “Sex Change” operation of a human where a “male” may become a “female” and vice versa which may have already come for discussion in the Jurisprudential circles at present.
Thus we need to not only define these new humanoid types in law but also enable the law to recognize the transition of an entity from one state to another.
As we continue this discussion, we will be entering into philosophical discussions also when we visualize the future of Cybernetics and how human race will change over the next few decades.
I will keep Cyber Philosophy discussion for another day.
India is in the process of revising its age old Criminal law namely the Indian Penal Code 1872 and Criminal Procedure Code 1973 with the new laws Bharatiya Nyaaya Samhita and Bharatiya Nagarik Surakshita samhita 2023 drafts of which are already presented in the Parliament.
In the meantime India is also expected to revise the ITA 2000 with the Digital india Act which may alter the Cyber Jurisprudence that has been developing since last two decades of the existence of ITA 2000.
The Artificial Intelligence itself as a technology is growing along with the developments of Neuro Science, Meta Verse etc.
The society will soon have many confrontations between AI and law and most complicated aspect of this would be in criminal Jurisprudence.
We have seen that evidentiary aspects introduced by ITA 2000 (Section 65B of IEA) have not been absorbed by the Judicial community till date since unlearning the past is that difficult. Now to unlearn the criminal jurisprudence and think of any change arising out of Artificial intelligence is a challenge.
How the Higher Judiciary would react to this need and come up with its own jurisprudential guideline is for the future society to witness.
However we can try to highlight some of the issues that need to be sorted out immediately to avoid a blackout when the new DIA becomes operative.
The essence of Criminal Jurisprudence is the definition of a Crime, definition of a criminal and definition of justice.
Crime can be defined as “an act that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceedings”
Law and Justice donot always converge and experts define Justice as “A moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs.”.
Many times Justice has to be an interpretation of the written law and herein lies the domain of “Jurisprudence”.
Jurisprudence has to interpret what is “Ethics” which can be considered as an extension of written law. The distinction of what is a crime in written law and what is a crime in the minds of a victim is always a tough challenge to the Judiciary.
Most of the time criticism of judiciary arises because Judiciary may either stick to the law in words and ignore the law in spirit. Some times Judiciary goes to the other extreme and interprets law as they consider necessary invoking principles such as the “Basic Structure of the Constitution” etc and take complete control of defining what is law irrespective of what is written in the statute and what the public think is ethics.
If we look at Criminal Jurisprudence in the light of emerging technologies such as Artificial Intelligence, Humanoid robots, Virtual Reality, Augmented reality etc there is a basic problem of identifying the “Actor” who has committed a Crime and the “Act” which constitutes a Crime.
The “Act” which constitutes a “Crime” is being defined in the law. For example Section 66 of ITA 2000 defines an offence punishable with 3 years of imprisonment as
“if any person dishonestly or fraudulently does any act refered to in section 43, he shall be punishable with imprisonemnt which may extend to three years or fine which may extend to five lakh rupees or both”
Section 43 associated with this section is a compendium of 10 subsections and commission of any of these 10 acts without the “Permission of the owner or any person who is in charge of a computer, computer system or computer network” shall be liable ….
The 10 acts represented by the subsections of Section 43 of ITA 2000 are ….
Determining an offence under Section 66 therefore involves the interpretation of “Dishonesty” and “Maliciously acting” and also “diminishing of value of information” , “Causing injury to information” etc.
(1) accessing or securing access to such computer, computer system or computer network or computer resource
(2) downloading, copying or extracting any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(3) introducing or causing to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(4) damaging or causing to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(5) disrupting or causeing disruption of any computer, computer system or computer network;
(6) denying or causing the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(7) providing any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder,
(8) charging the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
(9) destroying, deleting or altering any information residing in a computer resource or diminishing its value or utility or affecting it injuriously by any means
(10) Stealing, concealing, destroying or altering or causing any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage,
Here in lies the jurisprudential requirements to be taken into account in defining an act as a crime.
The second aspect of Cyber Crime jurisprudence is the interpretation of who is the “Person” who is responsible for the offence.
In the Artificial Intelligence scenario, an attempt is made to make computer program so sophisticated that it appears that decisions are taken “Automatically”.
When a computer output directly comes out of an input and the process of interpretation of the program, the output follows the principle of GIGO (Garbage in Garbage out) and the programmer takes the responsibility for determining “Means of processing”. The person who provides the input is the user of the software who takes the output as the result of the Computer based automated decision and acts further on the basis of this decision.
We shall take the example of an industrial process in which a Chemical process takes into account the temperature, composition of the processed material etc and determines the time upto which the process should run to generate a required chemical process resulting in a output finished product. If the parameters of input in such a process are dishonestly altered, the process would result in a loss or may even lead to an accident and cause death or injury.
Is this a Section 66 offence? If so who is responsible for it?..is it the programmer? or the process owner who provided the input? or is it the fault of the sensors which gave a certain reading based on which the operator pressed a button to continue the process?. What if the operator wanted to stop the process but the buttons were mis-wired that the process was triggered instead of being stopped?
These are the issues which require Cyber Jurisprudents to resolve.
When we term certain software as “Artificial Intelligence”, either ANI (Artificial Narrow Intelligence) or even AGI (Artificial General Intelligence), it still follows instructions already in the library and hence the actions of the AI depends entirely on the owner of the library or creator of the library. Hence in such circumstances criminal jurisprudence requires the owner of the software to take the responsibility for the actions of the software and if the creator of the software has not provided the necessary disclosures, the creator (Developer) may also have back to back responsibility. This is clear even in ITA 2000 by virtue of Section 11. (Attribution of an automated activity).
When we enter the realms of “Generative AI” or ASI (Artificial Super Intelligence) where, by design the creator of the algorithm has enabled the software to hallucinate, predict and give out decisions and also learn from its own decisions and modify the next set of outputs on similar inputs, then we are looking at a system which is behaving beyond the original instructions input by the developer.
It is in such circumstances that Cyber Jurisprudence has to interpret whether even the modification of code based on the learnings are to be attributed to the original creator of the algorithm or should the AI itself be considered as a juridical person.
With the emergence of humanoid robots at least one of which is presently acting as Chief Executive of a Company which bears health risks in its products, the consequences of malfunctioning of AI has to be determined in law. Will you put the humanoid robot acting as CEO of a company taking a bad decision that causes death and destruction in the jail for 10 years or for life? or will you give it a death sentence? … is the Criminal Jurisprudence challenge.
I welcome a debate on this aspect so that Meity and MHA may take these into account during the framing of the new IPC law and DIT.
FDPPI which is in the forefront of Privacy and Data Protection Compliance related activities in India released a framework for Compliance and Certifiable Audit titled “Data Governance and Protection Standard of India (DGPSI) in Bangalore at Hotel Chancery.
The Following press release was issued on the occasion.
The Framework DGPSI is a unique framework which is a combination of DPDPA 2023 compliance requirements, ITA 2000/8 compliance requirements as well as the Draft BIS standard on Data Governance and Management.
FDPPI has developed the standard to replace all other frameworks presently being adopted for compliance to DPDPA 2023. This framework-DGPSI would be available for the industry for developing a Business System of DGPMS which can be also certified by accredited auditors of FDPPI.
This unified framework is open for one unified audit and certification instead of three separate audit and certification for DPDPA Compliance, ITA 2008 compliance and BIS-DGDMS compliance.
FDPPI will be conducting separate training programs for training professionals under this framework and the first of such program will commence by the end of OCtober 2023.
With this FDPPI is ushering in a new era in Data Protection Compliance audits in India.
Enquiries from organizations interested in getting certified as “FDPPI Accredited DGPMS auditors” may be sent to the undersigned.
Justice Sri Koratagere S Puttaswamy (retd) the petitioner on the Supreme Court case which led to the Privacy Judgement of the Justice Kehar bench on 24th August 2017 and the passing of the DPDPA 2023 was honoured in a historic event at Bengaluru on 24th September 2023 with a title “Privacy Pitamaha”, by FDPPI and Manipal Law School.
The 98 year old Sri Puttaswamy was honoured in a simple ceremony at his residence while in a Press Conference at Hotel Chancery, Lavelle Road, a detailed discussion was held and the following press release was issued.
October 17 each year we remember to celebrate as the “Digital Society Day” recognizing that on this day in 2000 India moved from a “No Legal Recognition” for digital documents to “Legal Recognition of electronic documents” and “Digital Signature” paving the way for valid Digital Contracts and giving birth to the legally recognized Digital Society.
On October 17, 2023, Naavi with FDPPI is planning to have a virtual roundtable and take on a campaign “Jago”.
It is customary for “Jago” campaign to be directed at citizens as if it is only the citizens who need to be awakened from slumber whether it is for prevention of Cyber Crimes or implementation of Data Protection.
This year, we would like to extend this “Jago” campaign to the inactive regulators also. Watch out for the detailed agenda.
