Naavi.org

RBI has released an instructive booklet on Cyber Frauds  which should be of great use to common people.

Since this is meant for public awareness, a copy is provided here. 

Naavi

While we carry on a discussion on the “Right to Privacy” as a fundamental right and what should be the provisions of regulation such as Digital Data Protection Act or GDPR etc., there is a need to also have a firm understanding of the foundation and legislative background for the law.

The DPDPB2022 has skirted the issue by making this Bill only as an attempt to regulate Governance of Digital Personal Data in a manner that it would ensure that Personal Data is not misused to cause infringement of Privacy Right.

But the real nature of the Right to Privacy beyond it being a part of the Fundamental Right to Life and Liberty under the Article 21 of the Indian Constitution is not clearly explained even in the Puttaswamy Judgement.

There is therefore a need for a continued academic debate on this topic since this will come to haunt us even when regulations are notified under DPDPB 2022.

Naavi.org would like to start a debate on the “Theory of Privacy” for academic purpose with the hope that we would add to the global knowledge base on the topic.

I invite participation of other academicians in this respect. Watch out for series of articles that would be released over a period of time.

Naavi

Naavi has embarked on a major project to bring together all Data Protection Consultants into one common platform.

By “Data Protection Consultants”, I mean individuals who  are capable of providing guidance to an organization in implementing Privacy or Information Security related compliances.

The set of such consultants also include  firms which have teams of multiple consultants and divisions of some large companies which have a vertical for extending such services.

The instrument through which these consultants would interact is a techno legal platform presently identified as “Federation of Data Protection Consultants” (FDPC).

The platform will have multiple objectives.

The first objective is to get together all consultant and consultancy organizations in the domain of Privacy, Data and  Protection as well as and Information Security consultancy on one platform as a “Self help Group” with its own self regulatory practices for Ethical business.

The second objective is to enable the consultants to offer their services through the platform.

The third objective is to enable the organizations most of whom may be SME/MSMEs to access the services of these consultants through the platform.

The platform may be considered as a “Data Protection Services Exchange”

The platform will be managed by a “Registrar” who will maintain the technical services.

The platform will be an affiliate of FDPPI but will be a subcontractor.

The platform will be an “Intermediary” under ITA 2000 and act as an aggregator of services and not the service provider himself.

The actual consultancy contract would be between the consultant and the client which will be facilitated by the platform.

In order to improve the credibility and ensure smooth service, the platform may organize secondary back up services under a separate “Contingent Service Contract”.

The process of empanelment of consultants, receiving enquiries from prospective clients, short listing of consultants to a given project, receiving bids, managing preliminary negotiations, as well as dispute resolution will be provided as the platform service. In this process principles used in Arbitration Councils, Tendering processes, Service aggregators etc will all be used appropriately.

It is envisaged that the platform could emerge as a Service Start up under Ujvala Consultants Private Limited and partners to such a project are welcome.

In order to explain the concept further, Naavi conducted an open house discussion today the 11th December 2022 at 11.00 am on Zoom.

The recording of the session is here:

Naavi

We  are aware that RBI is implementing a pilot project to introduce E Rupee as its CBDC. The E-Rupee or CBDC-Retail will be a tokenized version of a currency denomination. It will therefore be a digital document that is stored in a digital container which can be a software wallet or a hardware device.

The critical part of the implementation which we are not certain if the RBI  has sorted out is the ability for the public to view the Digital Token, identify it as a digital currency, validate  its authenticity and transfer it from one wallet to another.

As long as there is a Bank as an intermediary, the transferee can rely on the Bank to confirm the authenticity of the transaction. This happens in the Virtual currency transactions today. But the RBI seems to have a necessity to introduce a Digital Currency that may or may not have  an intermediary like the Bank

The undersigned is not in favour of complete disintermediation which will enable the digital currency to be “Anonymous” since it may then be used easily like cash for corruption and holding of black wealth.

Whether RBI finally adopts an anonymous version or an identifiable version of the digital currency, the E Rupee will be ultimately an electronic information which is stored somewhere.

If it is associated with the identity of the owner it would be “Personal Data”, If it is completely anonymous, it would be “Non personal Data”.

There will be  in future some instances where a owner of a digital currency may die leaving the  Digital Currencies held by him in his wallet with a bank or a private sector service provider or on his personal digital wallet device. This needs to be passed on to the legal heir like any other property.

In case there is no claimant to such digital currency, it cannot be left to be used by the wallet service provider but surrendered to the Government.

If the digital currency is held in a bank Wallet, it can be settled just like settling a claim on the Bank accounts.

While a “Will” cannot be made in digital form, a “Will” can be made in writing for a “Digital Property” and hence the owner may leave a written will and the digital currency would become a property that is settled through a succession certificate or a probate.

Since it is possible that non banking institutions may hold the digital currency and it may even be found as attachments to an e-mail or whatsApp message etc, the digital currency assets will be left with private people and  in case of death of the owner, the asset may illegally be appropriated by such intermediaries.

In the DPDPB 2022, a provision has been introduced for “Nomination” of personal data and this may apply to e-mails or WhatsApp accounts or other digital data. Legally this nomination may also include the digital currencies and will be subject to the limitations imposed by Section 1(4) of ITA 2000 which requires a written will to be made for digital assets.

The recent changes made on October 4 2022, removing the immovable property documents from exceptions under Section 1(4) which we consider as an ill advised move has also increased the financial stake in digital documents since we may now find a property worth crores of rupees for which a digital document may exist as sale deed or partition deed and may surface after the death of the property owner. This will be a new form of Cyber Crime which the Government has now unleashed on the public in India with the amendment of Section 1(4) of ITA 2000 and deletion of one of the sub clauses on immovable property.

It is possible that the DPDPB 2022 has not taken into account the huge values that may be contained in the personal data that may lie around or may be fraudulently created to commit frauds related to property.

Even if “Nomination” is considered only an authority to operate the property and not to transfer the ownership, the current provisions on “Nomination” is not robust enough to take care of the risks.

It would be necessary to ensure that DPDPB 2022 either deletes the nomination feature completely and makes it an obligation on the Data Fiduciary to settle the claim on personal data like settling the Bank assets.

Alternatively the DPDPB2022 should  make specific mention that “Nomination” does not amount to transfer of the right to the digital property, Will cannot be made in digital form and the responsibilities of the Data Fiduciary to ensure that the genuine legal heirs receive the property is not extinguished because of nomination.

Further any consent to Nomination should be suitably witnessed and not be subject to the usual “Click here” option.

Hope the MeitY takes note of this aspect when they finalize the draft of DPDPB 2022.

Naavi

Comments are welcome.

Naavi and FDPPI are in the forefront of advocating “Compliance by design” as a commitment to creating a Privacy and Data Protection eco system in India.  The logic is that it is the responsibility of the Government to define what compliance measures are required for the purpose of protecting Privacy and Data Security and the industry should focus on putting together Technical and Organizational measures to meet the compliance requirements.

In any Techno legal compliance including the compliance of data protection law, there will be need for several interpretations of the provisions of the law. However it is considered that the Companies who are the subjects of compliance and who are Data Fiduciaries under the law are not the best legal minds to interpret the basic concepts of law such as what is Privacy and it should be left to the Courts and the Legislature to define the legal aspects of compliance so that need for their interpretation at the user level is low.

Hence instead of “Privacy by Default” or “Privacy by Design” we  prefer to focus on “Compliance by Default” and “Compliance by Design”.

“Compliance by Design” in the context of Digital personal Data Protection Bill/Act has the objective of creating a Personal Data Protection Compliance Management System (PDPCSI) . This requires compliance of Chapter II of the new DPDPB 2022 which inter-alia extends to the entire Act. Some of the specific requirements which are recognized as “Obligations” of a Data Fiduciary is recorded under Section 9 of the Act.

The PDPCSI of FDPPI is designed to meet these requirements and proceed further to make an estimate of the maturity of implementation in the form of Data Trust Score (DTS).

PDPSI is built on 12 basic principles as “Standards” and  50 “Model Implementation Specification” (MIS) which covers all aspects of Privacy Governance and Personal Data Security. In order to achieve the targets of Privacy Governance, the Data Fiduciary needs to have  appropriate measures in place to obtain consent, provide appropriate notice, recognize the exemptions available, deemed consent provisions that can be used, identify special provisions related to minor, data transfer to a processor etc.  Additionally it addresses the  need to preserve the confidentiality, integrity and availability of personal information.

PDPSI tries to provide guidance on some basic preparatory requirements such as “Classifying data”, “Recognizing the value of Data”, ” Drawing up an inventory of data, processes and people”, “Conducting a Risk Assessment” etc. Additionally some specific policies such as the “Augmented Whistle Blower Policy”, “Contract Management Policy”, “Pseudonymization Policy”, “Remote Working Policy” etc are suggested as part of the framework.

Overall, PDPSI framework is designed to be inclusive of all best practices under ISO 27701 or IS 17428 or what is normally considered as GDPR compliance.

The DPO practioner’s Certification program conducted by FDPPI is geared towards imparting knowledge and skills to be able to implement, maintain and audit the Personal Data Compliance Management System (PDCMS) just as a IS professional is trained to implement an ISMS system or a Data Privacy professional under GDPR context is trained to implement a PIMS system.

FDPPI has recently launched a program for enrolling Data Protection Consultants into a Federation of Data Protection Consultants (See details in www.fdpc.in) . In the same website, intending Companies who want to avail the services of consultants who can help in the implementation of Data Protection Systems can send their requests. The enrolled consultants may use PDPSI framework if they are FDPPI certified auditors. Otherwise they may use other frameworks in which they have  the necessary expertise.

FDPPI Certified auditors can not only assist in setting up and implementing the DPCMS, but also initiate (Different auditors who have not been involved in the implementation) “Certifiable Audit”. These Certifiable audits will be Certified by FDPPI under a process and only accredited auditors for this purpose can conduct and submit such audits to FDPPI for approval.

Presently around 27 professionals have been fully certified for DPO status based on the earlier version of PDPB 2019. FDPPI will be updating them to the new DPDPB2022 before renewing their Certifications.

The upgradation is part of the periodical requirement for the DPOs Certified by FDPPI so that industry will get the services from professionals who are upto date with the requirements.

We invite both experienced and aspiring professionals to consider registering with FDPPI for new Certification and FDPC for providing their consultancy services.

For clarifications if any contact fdppi@fdppi.in or Naavi.

Naavi