We are aware of some companies including Microsoft, Adobe and also Graphic software companies like AutoCAD trying to bully computer users, threatening them with copyright violation and forcing them to buy licenses.

Some times this happens when a trial version of a software has been downloaded and used beyond the user forgets to de activate the software after the trial period. Companies deliberately allow usage of the software beyond the trial period and thereafter claim infringement of copyright.

In some instances employees of companies inadvertantly download software into company devices and the company gets exposed to the copyright infringement. This normally happens in small companies where the information security system is not strong.

We have discussed such issues in the past and even assisted some companies to ward off extortionist attempts by some dealers in the name of their companies.

Now it appears that a new cyber crime wave is commencing where the usual Credit card fraudsters make calls accusing “Your employees have downloaded our software and deleted it. We know everything. We will take legal action” .

The caller may refuse to indicate what evidence he has but keep threatening that they will take legal action.

After the initial threat calls the discussion veers round to payment of money which is the fraud part. In these cases, the allegation may not be true and the call may not be from the genuine company. The email if any may come from a proton mail which is not traceable. Possibility of some of the employees of the company engaged in the commission of this fraud is not ruled out.

It appears that this fraud is to extract whatever money is possible from out of this threat.  It can also run into a sequence of extortions if the organization is yielding and subsequently end up with ransom ware infection also.

One such case has been reported from Bangalore in the name of CorelDraw software

I request organizations to be careful in dealing with such fraudsters. If they send any emails in which clickable links are available saying that “Here is the evidence”… be circumspect and avoid clicking the hyperlinks because they may contain viruses.

Already several such cases have been reported in the following URLs.

https://www.kaanoon.com/305022/corel-draw-software

https://www.cybercrimecomplaints.in/thread/fraud-call-from-corel-india-corelindia-co-in/ 

The email received by the recipient includes the logos of Corel India and is in the name of Deepak Shetty as “Compliance Executive” of Corel Corporation with phone numbers + 91 88 600 865 71  and   + 91 22 6243 0743. 

Naavi.org has sought clarification from Corel India and would look forward to clarifications.

Naavi

The study of Neuro Rights Law for the purpose of developing Jurisprudence requires an understanding the neuro science as well as the technology that interacts with the neuro systems of humans.

So far we have tried to establish the relevance and scope of Neuro rights laws comparing it with the Privacy Laws. We have discussed how the definition of “Harm” under DPA 2021 can be extended to the impact of neuro modulation techniques and how the flexibility in DPA 2021 in defining “Critical Personal Information” can be extended to the “Neuro Data” to cover the “Neuro Rights” which are being discussed world over as part of the Human Rights.

In our journey to the center of the World of Neuro rights, today we shall explore the technologies related to the domain.

The Human nervous system consists of the Central Nervous system (which includes the Brain and the Spinal Cord), the nerve system that enables two way movement of signals from different parts of the human body to the brain and from the brain to the different parts of the body. The signal transmissions occur when the electrical potential in a neuron cell body (Soma) exceeds a threshold level (action potential) which emits a neuro signal that travels through the wire like part of the cell called the Axon reaching out to the different parts of the body. The end parts of the neuron cells called the Dendrites transfer the signals to the dendrites of the neighboring neurons through the area called “Synapses”. While the signal travels through the Axons, the signals are insulated by what is known as “Myelin sheaths”.

From the requirements of technology, what is important is that generation of neuro signals is created by an accumulation of electrical voltage in the cell and when it crosses the threshold of the action potential the signal is fired from the cell body through the axon to the axon terminals.

The objective of technology is to capture these signals and probably manipulate them in transmission. The technological devices working in this area may be called “Brain Computer Interface” or “Brain Machine Interface” (BCI or BMI). It can also be referred to as Human-Computer Interface or HCI

In the simple “Brain Mapping” technology, the objective  of a BCI is just to record the activity of the brain under different contexts of external stimuli. In a more sophisticated exercise, the technology can try to understand the source and destination of the signal within the human body and the nature of the actions intended which can be transmitted to the specific areas of the body to induce the actions.

The technology itself can be divided into “Non Invasive”, “Invasive” and “Semi Invasive” types.

The world of technology is also trying to create a “Virtual Brain” or the “Blue Brain” (An IBM Project) as a sequel to the Artificial Intelligence. The Blue brain can be a “Chip” that can be installed in the human brain in an invasive technique involving surgery and implantation of the chip below the skull. The “Blue Brain” can be supported by “Nano bots” which travel through our blood circulatory system carrying the information from different parts of the body into the Chip.

The Non Invasive technologies rely on electrodes that are fixed on the outside of the skull. Semi Invasive techniques will involve implanting of the chip inside the body below the skin but rest outside the grey matter of the brain.

The EEG or the Electroencephalograph is a recording of the brain activity from outside the skull using electrodes that collect the signals that can read on the surface. The resolution of the signals which can be graphically represented will have a low resolution. In comparison,

The Semi invasive technique where the sensor is within the skin but outside the grey matter of the brain within the body such as “Electrocorticography” (ECoG) provides better data collection. ECoG measures the electrical activity of the brain taken from beneath the skull in a similar way to noninvasive electroencephalography, but the electrodes are embedded in a thin, plastic pad that is placed directly above the cortex, beneath the dura mater.

In the invasive technology, probes may directly be mounted on the grey matter of the brain and be capable of observing the signals more closely. It may have the potential to observe the activity of a single neuron.

The terms such as EEG or ECoG etc are more relevant for the neuro scientists but have been provided here for the general understanding of the architecture of technology related to Brain Interfaces.

However the end objective of the technology in medicine is to create a therapeutic usage where the implanted chip can cure deceases such as loss of short term memory, epilepsy, sectoral damage of brain etc. It is to be accepted that there is a huge benefit to the society from such technology and though we may focus more on the negative aspects to discuss the “Rights”, it is not the intention of the author to belittle the scientific developments. Eventually, this technology can  create “Cyborgs” and the possibility of misuse of technology is to be flagged for appropriate security response.

In terms of technology, the system of BCI involves

a) Acquisition of digital signals

b) Transmission of signals from the collection device to a back end device for futehr processing

c) Pre-processing of signals, Feature extraction and classification

d) Application interface to input the extracted data into an application

e) Processing of the data and converting it into useful information to the society

As compared to the EEGs a similar technology exists in the form of MRI. The MRI technology observes the changes caused in blood-oxygenation levels and its magnetic impact. It is like observation of a derived impact where as the EEG is a more direct observation of the neuro activity. An attempt is also being made to use both EEG and MRI technologies together for a better understanding of the brain activity.

We shall stop our discussion on the technology aspects related to NMT (neuro modulation technology) at this point and give time to assimilate the concepts.

The objective of this limited presentation so far is to draw the attention of the computer technologists to the potential available in this segment. We may continue and expand this discussion later in our discussions.

Naavi

(PS: This exercise is an exploration of new thoughts in the journey to the world of Law, Science, Technology and finally the philosophy of human brain activity.   I invite comments and corrections to the above from other experts in the area.)

Earlier Articles

What are Neuro Rights?

Starting the journey to the Neuro Rights Law and Technology

The Age of Neuro Rights Dawns in India

New Dimensions of Privacy-Mental Privacy and Neuro Privacy Rights

At present “Privacy Right” is considered as a “Right to be let alone”. However, in practice, “Protection of Privacy Rights” is reduced to “Protection of Information Privacy” which is essentially, giving protection to the “Right of Choice” of an individual on how his/her personal information is collected, processed, stored, disclosed or destroyed.

Laws related to Privacy Protection therefore focus on “Data Protection” and prescribe how personal data is defined, how it should be collected, what are the limitations of processing, what are the rights given to the data subjects etc.

However, the emergence of technology which can interfere with the way human brain communicates with the organs of the body gives raise to a new harm threat that the “Right of Choice” itself may get manipulated.

Hence there is a need for new laws that protect the possibility of the integrity of the expression of  “Right of Choice”  to be protected. The Neuro Rights Protection falls in this domain. Though this is also referred to as “Mental Privacy”, since currently the “Right to be left alone” is also referred to as “Mental Privacy”, it is preferable if we refer to the new branch of study of Neuro Rights as  “Neuro Privacy”.

One definition of “Neuro Rights” presently used is that it refers to the “Legal and ethical principles of freedom and entitelment related to an individual’s cerebral or mental domain”.

Just as Neuro privacy differs from the “right of choice”, it also is different from the “Manipulation of a data subject’s choice” through advertising.

In “Advertising”, certain information is presented to a data subject which he perceives through his normal sensory organs and because of persistency of communication, starts accepting it as a possibility and converts it into an acceptance.

The normal principles of marketing and advertising  takes communication through the “AIDAS” stages involving “Awareness”, “Interest generation” “Desire Development”, “Availability of product” and “Satisfaction at post purchase level”.

In order to make Advertising and Marketing effective, it is necessary to know the nature of the communication recipient and what motivates him. An advertisement exposed to the general audience without market segmentation and development of communication content relevant to the audience would be a huge waste of resources. It is therefore necessary for advertisers to understand the market participants to whom the communication has to be targeted.

For this purpose all advertisers undertake profiling of the end recipients of an advertising and marketing effort which is frowned upon by Privacy activists. However, laws try to balance the requirements of business with the privacy concerns by specifying stronger procedures for obtaining an “Informed Consent” in the form of  “Explicit Consent”.

Businesses like Google and Meta are however often accused of misrepresenting and obtaining consent by unfair means and this becomes one of the main disputes that the data protection authority has to manage.

In the case of “Children” who are considered incapable of giving consent, profiling or targeted advertisements may be completely banned as in Indian law while “Parental Consent” is obtained in certain circumstances.

The “Neuro Privacy” addresses a different concern which is different from “Target Advertising”. Neuro Modulation Technology (NMT) involves changing the behaviour of the brain of a subject so that what he expresses as “Consent” or “Choice” is perhaps  corrupted with the NMT devices. Who has given the consent? Is it out of free will? becomes difficult to ascertain when a subject could be under the influence of a “Brain-Computer Interface”.

Hence there is a demand for recognition of a new set of rights under the family of “Neuro Rights”.  At present, Five different rights are being identified in this group namely

1. 1. “Mental Privacy” which is a right to control collection, storage, use or disclosure of “Neuro Data”. “Neuro Data” is collected from devices which we call the “Brain-Computer Interface” (BCI) or “Brain Machine Interface” (BMI). This would be a “specially  sensitive personal data” and can even be brought under the definition of “Critical data” under the Indian law
   2. “Personal Identity” meaning that technologies should be kept within boundaries so that they donot disrupt the sense of “Self”.
   3. “Free Will” which provides ultimate control to individuals over their own decision making without unknown manipulation from external Neuro technologies.
   4. “Fair Access to Mental Augmentation” meaning a fair access to useful mental enhancement neuro technologies on the basis of justice and guaranteed equality of access
   5. “Protection from Bias” meaning counter measures to combat bias for algorithms in neuro technology.

We are aware that the Indian data protection law (DPA 2021) does recognize “Harm” including “psychological manipulation which impairs the autonomy of the individual”, and also provides an option to define “Neuro data” as a special category of personal data which is considered “Critical Data”. With these two aspects, the current DPA 2021 may be interpreted adequately to protect all the above 5 rights.

However just as the Privacy activists were not able to accept judiciary reading down down Information Technology Act 2000/8 as a data protection Act, the Privacy activists may not be able to accept the DPA 2021 as also inclusive of the Neuro Rights Protection. Hence it may be necessary to bring an appropriate subordinate legislation or an amendment of the act in due course to protect the  Neuro Rights.

At present there are more than 130 countries having Privacy Laws but only one country with laws on Neuro Rights. We may therefore consider that it would take some time for the world to recognize the need for legal protection to Neuro Rights.

However when we look around and see the pace at which technology is developing and its destructive powers, it is better to be ready with a legislation before the technological developments go out of hand.

We have seen how the Crypto Currencies are threatening the very existence of a global economic system because we are not able to bring a law to regulate Crypto Currencies. Similarly Meta Verse as well as AI are likely to go out of control soon since there are no proper regulations to prevent their misuse. We should not make the same mistake in the case of Neuro Rights and remain complacent. It is better early than being late.

Hence we need to start using the DPA 2021 to provide coverage to Neuro Rights also even as the concept is further refined and brought  into a future legislation with a better clarity.

(To be Continued…)

Naavi

Earlier Articles

Starting the journey to the Neuro Rights Law and Technology

The Age of Neuro Rights Dawns in India

New Dimensions of Privacy-Mental Privacy and Neuro Privacy Rights

India entered the era of Cyber Laws in 2000 with ITA 2000 and  made a soft entry to data protection law in 2009 with the notification of ITA 2008 and likely to enter the field of Data Protection law in 2022. During these 20 years, Jurisprudence in Cyber Laws is under development and has accelerated in the last few years. At present we are in the process of assimilating the concept of “Cyber Evidence” and moving ahead we are trying to understand the legal principles related to Artificial Intelligence, Big Data , IoT , Smart Cars, Crypto Assets, Meta Verse etc.

It would take a few more years to understand the  anatomy of these technological developments and arrive at a generally acceptable interpretation for judicial purpose. The jurisprudence regarding such techno legal issues has to be developed by Techno Legal experts which in due course will reflect in judgements.

In the meantime, a new branch of  human rights has emerged in the name of “Neuro Rights”. It has come as an of shoot of the “Privacy Rights” and hence needs to be addressed almost immediately after the Data protection law comes into existence.

Naavi.org will try to present different perspectives of Neuro Rights in preparation for a larger discussion in due course.

“Neuro Rights” is a branch of  human rights and for the sake of definition, we can define “Neuro Rights” as that body of law that addresses regulation of technological intrusions into the human’s mental faculty. It tends to protect the “Cognitive Liberty” of an individual which is the right of a person to independently and autonomously use his/her mind to engage in multiple modes of thought.

The technologies that tend to read, modify or block (similar to the Confidentiality, Integrity and Availability principles in Information Security)  the functioning of the human brain and connected nervous system are the “Neuro Technologies”, the use of which impairs the native ability of a subject to interpret the sensory perceptions.

For example, if a tiger is in front of me and my mind is made to think and see that it is a cat, then it is an intrusion into my mind for alteration of visual perception. Such illusions with “Deep mind stimulation” has been successfully experimented with rats by electrodes implanted inside the rat. It is a FDA approved procedure and soon may be allowed against the human beings.  The topic has been extensively discussed and reflected in many movies and not far from being realized in the actual world.

In the positive sense, such technologies can make a blind person see as if he has eyes, help in treatment of sleep disorders, motor coordination problems, epilepsy, depression etc.

Hypnotism is already being used for similar results though the technology of hypnotism and the technology of Neuro Modulation are different and we shall try to differentiate between the two in some future discussions.

We are already aware of “Cochlear Implants” which enable persons with inner ear problems leading to hearing loss to regain hearing . A Cochlear implant  is surgically implanted in the body and bypass the damaged portion of the inner ear to directly stimulate the auditory nerve.

Similarly there are prosthetic limbs which sense the twitching of muscles and convert them into movements of fingers.

What these devices indicate is that it is  technically possible to interact with the human nervous system and change the sensory perceptions through appropriate changes induced in the signals reaching the brain from the organs or vice versa.  Whether this can be done through a “Near Field Communication” device or through a surgically implanted chip only is a matter to be decided by the technological developments.

Is this “Ethical”?

Is this an intrusion of “Mental Privacy”?

Does this impair the “Choice” of the human subject and render our current Privacy law based on “Opt-in Consent” completely irrelevant?

…..are issues that arise in the light of these developments.

This developments in “Neuro Modulation/Modification Technologies” (NMTs), are not like the medical implants which regulate heart functions or blood sugar discharge etc., which are IoT devices which talk to external stimuli including wifi messages which pose many serious life threatening security risks.

Manipulation of the brain activity may actually change the person himself into a different person and  pose greater danger than the “Artificial intelligence”.

It is therefore necessary for us to think if we need to quickly bind the technology developers into some sort of discipline so that they donot create monsters and escape responsibility saying that it was just a bug in the software.

This branch of law that addresses this concern is the Neuro Rights Law. It is  new branch of study which is an extension of Privacy Rights.

In terms of development of legal jurisprudence, it has taken 20 years since India introduced Cyber Law but Cyber Jurisprudence is still under development.  We donot know how long it will take for Data Protection Jurisprudence to  reach some threshold level of acceptability. But we cannot ignore that now we are entering a new era of Neuro Rights and have to develop Jurisprudence for this branch of law also.

Naavi will try to place his thoughts little by little on this topic and hopefully Naavi.org will aggregate these thoughts into some useful body of knowledge.

Watch out for more articles on this topic in the days to come.

(P.S: I am aware that I am only a student in this new domain of Neuro Rights and trying to marry the legal concepts with Neuro Science and Psychology in the process, both of which are specialized areas of medical science. Just as 20 years back I tried to develop the Techno Legal jurisprudence by bringing the law and technology concepts to support each other, and later tried to bring together the computer technology and physics concepts together, I am trying to bring together two dissimilar disciplines together by interpreting law to he way human nervous system operates. I hope the readers of this blog will appreciate the short comings in such a journey and help me take the discussions from the base level to a more sophisticated level in the next few months. )

Naavi

Previous Articles

The Age of Neuro Rights Dawns in India

New Dimensions of Privacy-Mental Privacy and Neuro Privacy Rights

India entered the domain of Cyber Laws on 17^th October 2000 with the notification of the Information Technology act 2000 (ITA 2000). Several amendments were passed on this act in 2008 effective from 27^th October 2009. These amendments gave a strong “Information Security and Data Security” posture to ITA 2000. Concepts of “Reasonable Security” and “Due Diligence” became part of the law and gave a compliance direction to the law.

With the concept of “Due Diligence”, the compliance goal post became a moving target with every advancement in technology and global laws. It was therefore possible for Courts to start picking ideas from PDPB 2019, a bill pending in the Parliament and discuss the “Right to forget” in some judgements. For the same reason, even though DPA 2021 is still a bill to be passed, it is considered as a due diligence guideline to be incorporated in the compliance framework for a company.

Despite this flexibility with which we can interpret ITA 2000 for new scenarios arising out of technological advancement, there is always a demand for law to be more specific. Hence there is a need to replace Section 43A and its notification with a whole new act-DPA 2021. There is also a demand now for a major amendment to the ITA 2000 itself to accommodate issues arising out of AI, Crypto assets etc.

While we can interpret several aspects of AI or Crypto Assets or any other technological developments including cyber crimes such as ransomware by suitable interpretation of the current laws itself, there is always a preference in judicial circles to bring a specific legal provision to bring in more uniformity of interpretations.

In this context, we can deliberate if India needs to think on “Neuro Rights Law” as a separate law or work with interpretations of ITA 2000 and DPA 2021 to meet some of the requirements related to the same.

In the DPA 2021, “psychological manipulation which impairs the autonomy of the individual” has been defined as a “Harm” and therefore the entire Act applies to any activity that could cause such a “Psychological Manipulation”. It would be interesting to see if this concept of “Psychological Manipulation” can be extended to the concept of “Neuro Rights” which primarily address manipulation of the functioning of human brains with electronic impulses.

Chile is credited to be the first Country in the world to pass a law on “Neuro Rights” in September 2021 to protect the “Mental Privacy”, free will and non-discrimination in citizens’ access to neurotechnology. The stated aim is to give personal brain data the same status as an organ, so that it cannot be bought or sold, trafficked or manipulated.

There is one view that the development of such law is a little premature since the “Neuro Manipulation Technology” (NMT) is still in its infancy.

There is no doubt that NMT has many positive applications related to medical science for treatment of Alzeimer’s decease or even impairments of hearing or vison. But the possibilities of the technology becoming another “Bhasmasura” cannot be ruled out. Today the technology of Crypto Currencies is threatening to destroy our economy. AI and Humanoids may turn into rogue applications and devices like of which are seen in today’s movies. Similarly NMT has the potential to transform the human race into a hybrid entity which is ethically and morally questionable.

So far “Manipulation” which is recognized as Cyber Crimes relate to data residing inside a computer which has a recognized owner. When data is changed without the permission of the owner, it is recognized as a “Cyber Crime”. Even our Privacy law is built on “Right of Choice” where a person opts-in or opts-out of a data collection and processing environment out of his own free will.

The thought of adding “Psychological Manipulation” as a part of “Harm” was perhaps driven by the Cambridge Analytica experience where  a powerful coordinated messaging campaign could brainwash the audience into a chosen behaviour. Inducing a hypnotic state of mind through audio suggestions and visual imagery has been effectively tried in some games such as the “Blue Whale”. The new immersive technologies like the Meta Verse have made this hypnotization techniques more sophisticated.

We have also developed and accepted technologies of “Implants” within the body which can regulate heart beatings or blood sugar. Essentially we are already intruding into the human body to interpret the electro chemical changes happening in our organs and convert them into some action. The artificial limbs technology have gone beyond attaching an extendable arm or leg to responsive hand where artificial fingers can be managed with twitches in the arm. In a way these technologies already convert muscular impulses into guiding the fingers to grab or hold an object  and otherwise substitute the normal movements of the human fingers.

The new technologies that are triggering the concern for a new law on Neuro Rights is the development of “Chips” which can be implanted on a human which will directly interact with the brain and create sensory perceptions within the brain. These sensory perceptions may be gathered from the sensory devices or otherwise.

To understand the nature of this new technology, we can look at the following example.

Let us assume that there is a computer application that requires a password for access.  In the simplest case, the password is entered into the computer in plain text and it may go to the secured application which already has a copy of the password and matches the two to open the access gates.

In a more secured method, the secure application may not store the password in plain text. The plain text password may be converted into a hash at the user’s end and the hash is presented to the application which matches it with the hash already in its store and grants access.

In such a hash based authentication system, knowing the hash of a password is sufficient to access the server since the server responds when the right hash is provided. The application may not be able to distinguish if the hash was calculated in real time after the user entered the plain text password in his computer or was replayed from a hash store. Such stored password attacks have been successfully carried out even when biometric was used though technology has now been updated to check if the finger print recognizes an underlying living hand or not etc.

The fact is that access to the secured application can be gained through the input device or directly at the entrance of the secure application.

The “Chip” method of access to the human brain involves an electro magnetic link with which the Chip may be able to communicate with the neurons of the human brain and make the brain think it is seeing some thing or hearing some thing which is not there in the physical world.

This sort of “Brain Signal Manipulation” impairs the functioning of the human brain to see things or hear things which are not real. This is a manipulation of the free will of a person and makes the discussion of “Right of Choice”  etc completely meaningless.

The legal issues that are being raised by the NMT is different from the issues arising on the Metaverse, where a person has accused another of inappropriate touch of an avatar causing mental trauma equivalent to rape in the physical society. Here the interaction is between two digital avatars in a digital platform and its equivalence to a physical society action is being debated. But here the perception of the victim is an induced feeling of the pain of the digital avatar as imagined by the victim.  It is more in the mind of the victim than otherwise but the perception of shame felt by the victim in a virtual rape of her digital avatar may be as real as the experience of the Blue Whale game player.

Philosophers may however ask what is the difference if you can see things which are not real? As long as the perception is real, it is an experience. For example if you are in the  3D Trick Art Museum in Dubai or the 7D hologram show, the perceptional experience may be as real as it can get. A person may get frightened enough to have a heart attack though the snake he sees may only be an image.

The NMT with embedded chips is much more than the current technologies such as the 7D hologram show since in these technologies, the perception is captured by the normal human eye or ear and transmitted to the brain. In the NMT embedded chip technology, the perception is created directly in the brain and hence it is indistinguishable from real experience.

Once the embedded chips can respond to WiFi signals or the technology advances to the extent that brain manipulating waves can be transmitted through air, brain hacking becomes easier and can be achieved without the need for an embedded chip and a wiring between the chip and the neuro channels within the body.

In the Indian law, under ITA 2000 there is a provision under Section 11 that any electronic record shall be attributed to the person who programs a system to behave in a specific manner. Hence the “Induced Experience” can be attributed to the person who caused the Chip to send the specific signal which induced the experience.

By combining the provisions of ITA 2000 as well as the concept of “harm” under DPA 2021 it is therefore possible to consider that “Inducing mental experiences” is nothing different from introducing a “Computer contaminant” into a computer system. Hence hacking of human brain may be equivalent to hacking of a computer.

The analogy of human brain being considered as a computer is also corroborated by the neuro science. According o neuro science, sensory perceptions travel as electrical impulses and gets transmitted from the nerve edges through the nerves to the receptors in the brain. There after the brain interprets the impulse based on its memory where similar impulses are stored earlier. The Eyes, ears, nose tongue or skin or are like input devices and the mouth may be an output device. The processing in the spinal cord may be similar to the RAM response. The arms, legs and other muscles are like various mechanical devices that may be taking the output from the brain and converting into physical actions.

In view of the above, the “Neuro Rights” in India may be exercisable even under the current laws. However, a thought process has been sown where by a debate on whether a separate Neuro rights law is required in India.

Naavi would invite thought leaders in this domain to contribute to the development of Neuro Rights Jurisprudence in India so that Judiciary can be provided with necessary guidance when required.

Naavi

Reference Article

We need to regulate mind-reading tech before it exists

A Critical perspective on Neuro Rights: Comments  regarding Ethics and law

Mind the Gap: Lessons Learned from Neurorights

New Dimensions of Privacy… Mental Privacy or Neuro Privacy Rights

The JPC for PDPB decided to include parts of Non Personal Data regulation within the provisions of the DPA 2021. In the process a situation of overlapping jurisdiction was created between the ITA 2000 and DPA 2021. Earlier with Section 43A of ITA 2000 being replaced by PDPB2019 gave a clear distinction between “Personal Data Regulation” under PDPB 2019 and “Non Personal Data Protection” under ITA 2000 with the possible “Non Personal Data Governance” under a new act as suggested by Kris Gopalakrishna report.

In a bid to avoid creating a  Non Personal Data Governance Authority of India, the JPC decided to make the DPAI also responsible for Non Personal Data to the extent of Breach notification. This left the door for future regulation on “Non Personal Data Governance” also with the DPAI.

Without going into the merits of whether an authority which is “Privacy Protection Oriented” would be the right authority for “Monetization of Data” which would be the essential part of the Non Personal Data Governance Act, we can note that the decision of the JPC has created overlapping of DPA 2021 with ITA 2000.

ITA 2000 essentially applies to data of all kinds and hence it applies both to personal data and non personal data. To the extent DPA 2021 deals with “Reasonable Security Practice” which was earlier under Section 43A, there is no overlapping of provisions. DPA 2021 also does not cover criminal offences which are covered under Chapter XI of ITA 2000/8. The only offensive section under DPA 2021 could have been covered under ITA 2000 itself. This  section (Section 83) under DPA 2021 relates to “Unauthorized modification of de-identified data back to identified data and thereby diminishing the value of de-identified data” and can be covered under ITA 2000 under Section 43(i) read with Section 66.

If this section 83 DPA 2021 had been removed, DPA 2021 could have remained entirely a “Section 43A supporting compliance legislation”.  This would have maintained the two legislations distinct.

Now that JPC did not factor the existence of a statutory body called CERT-IN, it appears that CERT-IN has decided that it would announce its statutory status and published the latest data breach notification directive of April 28, 2022.

The industry representatives have already got perturbed and ran to the Minister to complain that this would affect the Privacy which he has correctly defended. (Refer indianexpress here)

The recent directive has asserted the power of CERT-IN and hence it cannot be challenged even after DPA 2021 is enacted.

However, a potential conflict situation between DPAI and Director General CERT-IN may arise and both need to show statesmanship in collaborating with each other. Though the CERT-IN and DPAI may resolve their differences, it is likely that the industry will play one against the other for their own advantage and project CERT-IN as an “Official of MeitY” and not to be respected like a DPAI which has 7 august members with expertise in different areas such as Law, Technology, Data Science etc.

In order to prevent the weakening of the perceived role of CERT IN, it is necessary for the Meity and CERT-In to strengthen its perceived position. One suggestion in this regard is given below.

1. An Advisory Committee should be established by a gazette notification under the chairmanship of Director General, CERT-IN.
2. The committee shall have at least Six members consisting of experts in the area of Cyber Law, Technology Data Science, Data Security, National Security, grievance redressal experience (Example Arbitration, etc, or a lawyer who is eligible for being appointed as a Judge of a High Court).
3. The Committee shall meet as often as necessary either through virtual meetings or physical meetings and provide its views on various issues on which the CERT-IN needs to take decisions, in particular when action is to be initiated against an entity under Section 70B(7)
4. The committee shall also recommend to the CERT-IN to initiate a complaint with a relevant Adjudicator (Under section 46 of ITA 2000) to undertake an inquiry as per the Information Technology (Qualification and Experience of Adjudicating officers and manner of holding enquiry) rules 2003.

Under the above suggestion the CERT-IN and his advisory committee will match the expertise of the DPAI in terms of experience and skills so that any interaction between the CERT-IN and DPAI shall take place with two nearly equally empowered regulatory authorities.

Also under Section 70B(7) action may be initiated by the CERT-IN against any entity that contravenes the directions of the CERT-IN or otherwise fails to report a data breach, by recommending prosecution for a punishment of imprisonment upto 1 year and a fine of Rs one lakh.

Under Section 70B, it may be difficult to impose any penalty on any entity as a deterrent. Such power under ITA 2000 vests only with the adjudicator who can take either a “Suo Moto” cognizance of a contravention of ITA 2000 or act under a complaint which can be filed by any person who can claim compensation for a loss suffered.

If there is a data breach, there would be some affected person who may or may not come forward to file a complaint with the Adjudicating officer. But the Adjudicating officer coming to know of a contravention (which may be through a report submitted by the CERT-IN) can initiate an inquiry. If the inquiry finds that there has been a contravention and there has been a wrongful loss to some body and wrongful gain to some body else, he can order collection of penalty from the person responsible for the loss and hold it in trust for the claims that may arise from any affected victim.

Since the notification of ITA 2000 on 17th October 2000 and the creation of Adjudicating officers through notification of 25th march 2003, there have not been any published reorts of Adjudicating officers imposing fines except on specific complaints preferred by some complainants.

There could be some cases where the Police have sought  the assistance of the Adjudicating officer (eg: Karnataka) where fines have been imposed on Cyber Cafes under Section 45 of ITA 2000 (Residual penalty) which must have been appropriated by the Government as if it is a penalty imposed for a criminal offence. Such cases have not been widely reported.

Now CERT-IN needs to take the responsibility to advise the relevant Adjudicating officer (the IT Secretary of the State where the victim of a contravention resides) that there has been a data breach in his jurisdiction and it warrants a suo moto inquiry and deterrent action.

It is noted that the Minister of IT, Sri Rajeev Chandrashekar has reported today that there is also an attempt to amend the ITA 2000/8 and a draft would be presented for public comments within a month. If required, some of the changes suggested above of creating an Advisory body for the Director General CERT-IN can be formally introduced into the Act.

It may also be noted that ITA 200o envisaged a committee called “Cyber Advisory Committee” which has to endorse any amendment to the Act as per section 88 of ITA 2000. It can also be recalled that the Controller of Certifying Authorities had created one such advisory committee in the year 2000 of which the undersigned was also a part. There was also an Inter-Ministerial working group of which also the undersigned was a part. These committees had limited existence and subsequently most decisions are being taken by the executives in MeitY. Many of these decisions including the Intermediary Guidelines of 25th February 2021 have been systematically challenged in the Supreme Court and inefficient handling of the Shreya Singhal petition lead to Section 66A being scrapped by the Supreme Court without a proper replacement of the provisions as was promised by the then IT Minister.

The creation of the CERT-IN Advisory board will therefore provide a legal strength to the decisions given out  by the Director General of CERT-IN. It could become a “Shadow DPAI” so that any data breach related directions for non personal data under section 25 of the proposed data protection act (DPA 2021) can be issued by CERT-IN instead of by the DPAI.

Naavi

Also refer: 

CERT-In Re-issues its order of 4th January 2017