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Privacy in The Digital Age – Legal Scenario (With specific reference to India)
Agenda Privacy Data Privacy Different categories/types of Private data Indian Legal scenario on Privacy Some of the global laws Mom’s gyan
Privacy To separate/seclude from the rest Types – Personal privacy Informational Organizational
We’ll expect reasonable privacy in life…..but then…! ….and so many other ways by which we’re being tracked…!
information/data privacy Attitude of an organization or individual to determine what data in a computer system can be shared with third parties Private data is known as – Personally Identifiable Information (PII) Personal data Sensitive Personal Data/Information
Personally Identifiable Information US Privacy Laws Information that can be used on its own or with other information to identify, contact, or locate a person, or to identify an individual in context
PERSONAL DATA AND SENSITIVE PERSONAL DATA Data Protection Act – UK Personal data - Data relating to a living individual which helps in his identification and includes any expression of opinion him Sensitive personal data - Personal data consisting of information as to – the racial or ethnic origin of the data subject, his political opinions, his religious/spiritual beliefs His professional associations, his physical or mental health or condition, his sexual life, the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
SENSITIVE PERSONAL DATA/INFORMATION The Information Technology Act, 2000 (Amd. 2008) – India Rule 3 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
India on privacy Constitution of India Art. 19 - Freedom of Speech and Expression Art. 21 – Right to Life and Personal Liberty IT Act, 2000 (Amd. 2008) Data privacy Personal privacy Powers of Government Liability of Intermediary
Key Issues Liability of Company (Sec. 85) Data protection – Concern for outsourcing industry Privacy – Individual’s concern Increasing Government control/interference
Preamble of the IT Act Purpose behind enacting IT Act – To provide legal recognition to e-commerce To facilitate e-governance To provide remedy to cyber crimes To provide legal recognition to digital evidence Preamble doesn’t specify that the Act aims @ establishing IT Security framework in India
Section 43 – Unauthorised access Unauthorised Access Remedy – Damages by the way of compensation Amount – Unlimited What needs to be proved – Amount of damages suffered Adjudication – For claims upto Rs. 5 Crores – Adjudicating Officer (IT Secretary of State) For claims above Rs. 5 Crores – Civil courts
Cases decided u/Sec. 43 Thomas Raju vs. ICICI Bank Ramdas Pawar vs. ICICI Bank Saurabh Jain vs. Idea Cellular Fraudulent transfer of money from petitioners account Duplicate SIM cards made without document verification Court is of opinion that bank/cellular company has failed to establish a due diligence and in providing adequate checks and safeguards to prevent unauthorised access Bank has not adhered to the RBI circular of July 2010 for 'guidelines on information security, electronic banking and cyber frauds Idea has issued a SIM based on a fake license and police FIR
Sec. 43a – compensation for failure toprotect data If a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person Liability – Damages by the way of Compensation – Unlimited damages
Who is liable?
Issues What is Sensitive Personal data or Information? What are Reasonable Security Practices and Procedures?
solution The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 Enforceable from 11th April, 11 To be read with Sec. 43A
Sensitive Personal data Or information Rule 3 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
Reasonable Security Practices Rule 8 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
Auditing Necessary to get the codes or procedure certified or audited on regular basis Needs to be done by the Government Certified Auditor who will be known as “Govt. Certified IT Auditor” Not appointed yet
Collection of Information About obtaining consent of the information provider Consent in writing through letter/fax/email from the provider of the SPDI regarding purpose of usage before collection of such information Need to specify – Fact that SPDI is being collected What type of SPDI is collected? How long SPDI will be held? Rule 5 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
Collection of Information Provider should know – Purpose of collection Intended recipients Details of the agency collecting the information and agency retaining the information Body Corporate not to retain information longer than required Option should be given to withdraw the information provided SPDI shall be used only for the purpose for which it has been collected Shall appoint “Grievance Officer” to address any discrepancies and grievances about information in a timely manner – Max. time – One month
Disclosure of Information Disclosure – Prior permission of provider necessary before disclosure to third party OR Disclosure clause needs to be specified in the original contract OR Must be necessary by law Third party receiving SPDI shall not disclose it further Rule 6 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
Transfer of information Transfer to be made only if it is necessary for performance of lawful contract Disclosure clause should be a part of Privacy and Disclosure Policy Transferee to ensure same level of data protection is adhered while and after transfer Details of transferee should be given to provider Rule 7 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
Sec 72(A) (Criminal offence) Punishment for Disclosure of information in breach of lawful contract - Knowingly or intentionally disclosing “Personal Information" in breach of lawful contract IMP – Follow contract Punishment - Imprisonment upto 3 years or fine up to 5 lakh or with both (Cognizable but Bailable)
Other provisions u/it act Section 66E – Punishment for Violation of personal privacy Popularly known as Voyeurism Covers acts like hiding cameras in changing rooms, hotel rooms, etc. Punishment –imprisonment upto 3 years or fine upto Rs. 2 lakh or both Section 67C – Preservation and retention of information by intermediaries Section 69 – Power to issue directions for interception or monitoring or decryption of any information through any computer resources. Section 69A – Power to issue directions for blocking public access to any information through any computer resource Section 69B – Power to authorize to monitor and collect traffic data or information through any computer resource for cyber security Section 79 – Intermediary not liable in certain circumstances
Some of the Global laws
Gramm–Leach–Bliley Act (GLBA, USA) Focuses on finance Safeguards Rule - Disclosure of Nonpublic Personal Information It requires financial institutions to develop a written information security plan that describes how the company is prepared for, and plans to continue to protect clients’ nonpublic personal information. This plan must include – Denoting at least one employee to manage the safeguards, Constructing a thorough risk analysis on each department handling the nonpublic information, Develop, monitor and test a program to secure the information, and Change the safeguards as needed with the changes in how information is collected, stored and used
The Federal Information Security Management Act of 2002 (FISMA, USA) Focus on economic and national security interests of the United States Emphasized on “risk-based policy for cost-effective security” Responsibility attached to federal agencies, NIST and the Office of Management and Budget (OMB) to strengthen information system security Not mandatory No penalty for non-compliance
Data Protection Directive (EU) European Union directive regulating the processing of personal data within the EU Protection of individual’s personal data and its free movement Coming soon - European Data Protection Regulation Not mandatory No penalty for non-compliance
Other laws in the US Children's Internet Protection Act of 2001 (CIPA) Children's Online Privacy Protection Act of 1998 (COPPA) Driver's Privacy Protection Act of 1994 Telephone Consumer Protection Act of 1991 (TCPA) Video Privacy Protection Act of 1988 Electronic Communications Privacy Act of 1986 (ECPA) Privacy Protection Act of 1980 (PPA) Right to Financial Privacy Act of 1978 (RFPA) Family Education Rights and Privacy Act of 1974 Privacy Act of 1974
Protect your own privacy Understand – the type of personal information you disclose Always ask – WHY they want it ? HOW will they use it ? WHO will it will be shared with ? Will YOU get access to it ? Know your rights Question if you are in doubt
If you are a company Am I complying with Law? Do you manage (have, use, access, store, obtain, etc.) personal information ? Am I collecting only the what is REALLY needed and not more ? Have I differentiated between Sensitive Personal Information and other information? Do I protect information even during Transit/Process ? How are you making sure all employees know their responsibilities and rights ? How will you extend the data privacy protection to your third-parties, vendors ? What will you do if there is a privacy breach ? Do you in-house competences to conduct basic investigations ?
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