Defender of your Digital Freedom

All Posts | Jun 25,2018

Welcome AI! – The Indian Government’s Ambitious Policy Proposal

Healthcare, Education, Smart Cities and Transportation Identified as Key Sectors

On June 4th, the NITI Aayog published a discussion paper[fn]Can be downloaded from - http://niti.gov.in/writereaddata/files/document_publication/NationalStrategy-for-AI-Discussion-Paper.pdf [/fn] titled “National Strategy for Artificial Intelligence”. While recognizing the potential of AI for the economic and social growth of India, the paper identifies five sectors which are set to play a pivotal role in the adoption of AI in the country and are likely to benefit from Government intervention – Healthcare, Agriculture, Education, Smart Cities and Infrastructure and Smart Mobility and Transportation. These sectors were chosen as private sector participation alone was deemed insufficient to drive AI adoption in these categories (sectors such as banking and manufacturing seem to have been purposely ignored despite them driving AI usage in India). The paper envisions India as a research hub for AI related technologies; it recognizes the need for skilling its workforce for better adoption; the need for creating awareness and supporting start-ups; and the importance of maintaining ethics, privacy and security with the use of AI.

India – AI Garage of the World

The discussion paper pits India’s ambitions in becoming an AI garage for the world. It imagines India to be a playground for global institutions to develop scalable solutions which can be easily adopted in other developing nations. For establishing India as a research hub, the paper calls for setting-up of centres of research - Centre of Research Excellence in AI (these institutions will focus on core research and building a knowledge base around AI) and International Centre for Transformational AI (these institutions will be focused on creation and adoption of AI based applications). The paper also calls for a change in the Intellectual Property (“IP”) framework in India to strengthen laws for bringing AI applications under the purview of patents and protecting the financial interests of innovators, ignoring finer details like how growth of innovation will be ensured if AI applications[fn]As AI applications are computer based technologies, it is important to clarify that for the purpose of this discussion, AI applications are construed as either – a set of algorithms/ computer programme or software.[/fn] are patented and concentrated in a few hands in the industry. It has been a long standing view of experts that making computer programmes patentable will hinder innovation in technology. Currently, algorithms and computer programmes (per se)[fn]Though, as per section 3(k) of The Patents Act, 1970, computer programmes are per se not patentable, the Controller of Patents has in the past offered Patents to companies such as – Facebook, Google and Apple for their computer related inventions.[/fn] are completely excluded and are not patentable under Indian law - as per section 3(k) of The Patents Act, 1970[fn]Section 3(k) of The Patents Act, 1970, excludes mathematical or business methods, computer programmes per se and algorithms from being considered as inventions for the purposes of the Act.[/fn]. If algorithms/ computer programmes are brought under patent law, large corporations will win in the race of filing claims, thereby creating a patent thicket, impenetrable by small players. This will lead to hampering of growth, as sprucing innovation often requires open platforms and active sharing, specially in the field of technology. Even in mature patent jurisdictions like the United States, there is a growing concern around patenting of computer programmes (software). According to renowned patent reformers Bessen and Meurer – granting patents to computer software hinders innovation. In their book - ‘Patent Failure – How Judges, Bureaucrats and Lawyers Put Innovators at Risk’ they distinguish softwares from other inventions on the basis that – claims under software patents are often abstract and ambiguous which leads to a problem in determining their applicability. They say, “Abstract claims in software patents might be especially difficult to translate into well defined property boundaries.” For Bessen and Meurer, abstract claims for software patents end up rewarding patentees for inventions they do not invent and lead to reduced incentive for future inventors. They also argue that due to increased litigation in issues of software patents, the costs of litigation for such inventions far exceeds their profits.

Thus, a change in the IP framework to bring AI applications under the purview of patents is trickier than it seems. Firstly, this will require a major overhaul of the law itself, as patent law currently doesn’t recognize algorithms and computer programmes as inventions. Secondly and more importantly, the rationale behind patenting of AI applications will need to be debated, to ensure that innovation isn’t hampered.

NITI Aayog envisions ambitious uses like – Internet of Medical Things and Autonomous Trucking

The paper comprehensively enumerates various challenges faced by the identified industry sectors and offers recommendations on how AI can help overcome these challenges, but it fails to illustrate the implementation mechanism of these ambitious goals. Moreover, the solutions seem to be slightly disconnected from the ground realities of India. For example, the paper advocates the use of robotics and Internet of Medical Things for solving problems in healthcare in India and helping the Government meet its social objectives. Considering the low affordability and penetration of health services in India, it does not visit details of how such a task will be implemented or scaled up. Similarly, in Agriculture and Education, recommendations such as – soil and crop health monitoring; and adaptive learning and intelligent tutoring systems seem to be lofty goals not contextualized to the Indian situation. Implementing AI tools for soil and health monitoring will require substantial investment on both sides, (government level, as well as at farms) including educating farmers on the use of this new technology. Similarly, with ICT infrastructure a challenge in public schools, along with low teacher awareness, putting in place mechanisms such as intelligent tutoring systems and adaptive learning seems far fetched.

The paper quotes low driver cost per kilometer questioning the economic practicality of autonomous vehicles in India, but recommends investment in such technologies for the purposes of export and to build ancillary expertise. While brushing away the use of autonomous vehicles on Indian roads, the paper routes for autonomous trucking, AI in railways and use of AI in Indian cities for solving traffic woes. The chapter on smart cities and infrastructure warrants red-flagging as it recommends controversial applications of AI such as – crowd management by monitoring and predicting behaviour and implementation of safety systems by keeping a check on people’s movements by using sophisticated surveillance systems and social media intelligence platforms. Crowd monitoring and predictive behaviour need to be addressed with issues of privacy and data protection before implementation and the suggestion of a social media intelligence platform is reminiscent of the I&B Ministry’s proposed Social Media Communication Hub.

A National Data Marketplace for Increased Access to Meaningful Data

One of the most innovative suggestions of the discussion paper is the establishment of a data marketplace for solving the problem of access to data sets by new entrants in the AI foray. The paper envisages the formation of a decentralized data marketplace based on distributed ledger technology, it puts the responsibility on the Government to introduce regulations for the setting-up of such a data marketplace by private players. The paper predicts that the introduction and use of a National AI Marketplace will lead to collaboration, access and accelerated adoption of AI among enterprises and public authorities. Though, establishment of a national data marketplace will benefit smaller players and increase access to meaningful data, it also raises questions of privacy and protection of sensitive data. Before such a marketplace is installed, India requires a robust data protection law, which not only sets comprehensive guidelines for the collection of data but also prescribes reasonable penalties for their violation.

Explainable AI and Self Regulation

On the Ethics, Privacy and Security front – the paper advocates for elimination of data bias by identifying and removing them on a case-by-case basis. Though, the paper discusses explainable AI/ algorithms, it is vague in its applicability. The paper calls for the enactment of a robust data protection law (it also makes a reference to the Justice Srikrishna Committee – which has been tasked with drafting a new data protection law for India) and formulation of sector specific regulations for diversity in applicability. Adherence to International Standards for safety and privacy and encouragement of self-regulation are some of the other methods suggested by the paper to ensure privacy. The paper calls for establishing negligence tests and safe harbours as opposed to strict liability for estimating damages for abuse of process. Though these recommendations are forward looking, there are some issues worth highlighting – the paper acknowledges the concept of explainable AI but doesn’t tackle government use of AI and transparency. It’s essential that the government makes AI use transparent and accessible in the public domain to eliminate instances of foul-play. Rules for self regulation and safe harbour might not be effective in situations of gross negligence and corporate oversight or when dealing with new technologies. The paper is also silent on use of AI technologies in military practices – considering the Indian armed forces are working on incorporating AI in their operations[fn]http://www.thehindu.com/news/national/india-gears-up-for-ai-driven-wars/article23944083.ece[/fn], it is an important moot point.


This discussion paper is a step in the right direction and NITI Aayog’s move should be sufficiently acknowledged, but as policy design and implementation goes in India, the magic lies in execution. The paper has recommended some ambitious uses of AI in Indian life without going into the financial viability of such projects, given that public participation has not been invited yet, this paper is a pre-cursor to a larger policy debate which shall ensue in the coming months. With the draft law on data protection on its way and India standing on the brink of federal elections in the coming year, it will be interesting to see where and how NITI Aayog and the central government take the debate on AI from here.

All Posts | Oct 25,2017

“Privacy Bytes” launched by SFLC.in as a one-stop destination for resources on online privacy in India

New Delhi, October 24, 2017: Delhi-based not-for-profit legal services organization SFLC.in today launched “Privacy Bytes”, a new website to provide policy makers, academics, media persons and the public at large with resources on online privacy-related issues, matters and cases in India. Accessible at privacy.sflc.in; the website has compiled notes on the Right to Privacy; FAQs and information about the existing legal situation regarding privacy in India as well as information about the efforts underway to shape the future of privacy in India. SFLC.in also launched a twitter presence @privacybytes that will provide the latest updates and resources on privacy. The website will also feature extensive resources on privacy laws around the world, Indian and international reports on privacy and judicial pronouncements on citizens’ right to privacy.

Mishi Choudhary, President at SFLC.in said, “Guaranteeing the citizens’ right to privacy is a fundamental step towards realizing the vision of a digitally empowered society in India. As the contours of privacy and data protection laws for Indian citizens are being drawn up, we believe this is the right time to produce a comprehensive repository on all matters related to privacy to spread awareness as well as support an informed analysis and discussion among all stakeholders involved.”

The right to privacy has been a matter of public debate in India in the recent months. In August 2017, a nine-judge bench of India’s Supreme Court unanimously ruled that Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution of India. It added that the right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution. Earlier in July, the Ministry of Electronics and Information Technology (MeitY) constituted a Committee of Experts to study and identify key data protection issues and suggest a draft Data Protection Bill.

SFLC.in also said that it will soon publish simple infographics that will explain how to protect and safeguard privacy in the age of smartphones; and will continually add new resources and content on the issue on ‘Privacy Bytes’ website.

About SFLC.in:
SFLC.IN is a donor supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. SFLC.IN promotes innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice and help policy makers make informed and just decisions with the use and adoption of technology. You can support their work by making tax-deductible donations and providing feedback.

All Posts | Jun 26,2017

Delhi Tech Talks [June 23, 2017; New Delhi]

On June 23, 2017, the second edition of Delhi Tech Talks – a collaborative series of quarterly discussions on the state of tech policy in India – was organized by the Centre for Communication Governance at National Law University, Delhi (CCG), Centre for Internet and Society (CIS), Digital Empowerment Foundation (DEF), HasGeek, Internet Democracy Project (IDP), and SFLC.in at the India International Centre, New Delhi. The overarching theme for this event was data protection, privacy and citizenship, in the context of Aadhaar.

Session 1: Aadhaar, Data Privacy, and What it Means to be a Citizen

The discussion comprised two panels, the first of which was titled “Aadhaar, Data Privacy and What it Means to be a Citizen”. This panel was moderated by Ms. Shuchita Thapar (Project Manager, CCG), and featured the following speakers: Ms. Anja Kovacs (Founder-Director, IDP), Mr. Pranesh Prakash (Policy Director, CIS), Ms. Zainab Bawa (Founder & CEO, HasGeek), Mr. Osama Manzar (Founder, DEF), and Ms. Chinmayi Arun (Executive Director, CCG).

Ms. Anja Kovacs began by highlighting the negatives of surveillance. She said that surveillance is not just a matter of privacy but also social justice, and explained the same from a feminist perspective. In light of the recent comments made by the Attorney General that Indians do not have an absolute right over their bodies, she explained the shifting perspective on the definition of “body”. Ms. Kovacs said that in the age of digital technology, the body is not just limited to the physical self but extends to multiple data doubles in the virtual world. With respect to Aadhaar and the collection of biometrics, she said that if the data reflection of our body does not work, we might be denied basic services by the State and this will influence the relationship between citizen and State.

Mr. Pranesh Prakash was of the view that moving towards digitalization is not necessarily awful. It is a consequence of urbanization and helps in the larger project of nation state building. He emphasized that the problem lies with the implementation of the Aadhaar scheme and not so much with the law. He maintained that he is not against the idea of a foundational identification system upon which other identification mechanisms are based. Mr. Prakash clarified that the issue with Aadhaar is not identification, but unchecked surveillance, though he also added that just because a technology can be used for surveillance does not make it bad per se. Instead, there should be discussions around privacy and accountability with respect to Aadhaar.

Ms. Zainab Bawa said that Aadhaar is like a looming ghost – on one hand there is a growing belief that it is extremely important for one to have an Aadhaar card and on the other hand there is a lot of mystery surrounding its nature. She talked about the politicization of the issue of Aaddhar and how a binary is being promoted by the Government through Aadhaar and demonetisation. The Government is propagating the idea that anything thats analogue is backward. She also pointed out the problem of authentication failure and the confusion among citizens with respect to grievance redressal. Lastly, Ms. Bawa raised the following questions: “What are the spheres of relationships where regulations are required to protect privacy? In the absence of law, can mathematics sometimes provide a more elegant solution for privacy?”

Mr. Osama Manzar started with his views on what it is like to be a citizen in times of technology. According to Mr. Manzar, being a citizen in India is a luxury, considering the number of people who are denied benefits for the lack of Aadhaar. He cited the example of four hundred women sitting in front of a computer for three days to access a printout that was supposed to show that they were paid their MNREGA wages. Mr. Manzar mentioned that Aadhaar is digital exclusion in the name of inclusion.

Ms. Chinmayi Arun spoke about the ideals of a democratic state and how Aadhaar is contrary to it. In the context of Aadhaar, she expressed her skepticism with respect to a project where the Government identifies a problem and then finds a solution that does not necessarily have anything to do with the problem. She said that democracy is based upon a delicate balance between the citizens and the State. Ms. Arun also mentioned the importance decentralization of power in a democratic State. She said that Aadhaar concentrates power and information in the Centre, and that this is incompatible with democracy. Further, Ms. Arun stated that democracy is about not trusting your Government, adding that this is not because the Government has harmful intentions but to maintain that delicate balance between the citizen and the State. It was also remarked by her that the previous draft of the Aadhaar Act had the provision of “ombudsman”, who could pull the plug on the entire system of Aadhaar. It has been removed from the new Act. Ms. Arun also gave the example of Germany, where a subject who is being surveilled is always informed of the same after the surveillance is complete. The subject can approach the court if he/she thinks that he/she has been illegally targeted by the State. This is contrary to what is followed in India, where there is no state accountability mechanism. Most of the safeguards that are considered fundamental in other countries is not implemented in India, said Ms. Arun.

Session 2: When Big Data Becomes Toxic

The second panel of the evening, titled “When Big Data Becomes Toxic” was moderated by Ms. Smitha Krishna Prasad (Project Manager, CCG), and had the following speakers: Mr. Anupam Saraph (Future Designer), Mr. Manish (Research Associate, Centre for Policy Research), Ms. Smriti Parsheera (Research Associate, National Institute for Public Finance and Policy), and Mr. Sukarn Singh Maini (Counsel, SFLC.in).

Mr. Anupam Saraph explained how Aadhaar is being used to facilitate benami transactions. He pointed out that the Reserve Bank of India (RBI) had initially refused to link Aadhaar with bank accounts, but information received through RTI revealed that they were compelled by the Ministry of Finance to allow the linking. He said that Aadhaar can be used to create multiple fake identities, hence enabling the creation of multiple fake bank accounts. Mr. Saraph highlighted that UIDAI signed an MoU with a non governmental agency called National Payments Corporation of India to create Aadhaar Enabled Payment System, which will enable transfer of funds from person to person instead of account to account.

Mr. Manish started by quoting an anecdote about his experience at a seminar on bonded labour. Representatives of the Government attending the seminar were asked to propose solutions to tackle the evil. Most of the labour secretaries from various states of India were of the view that the solution to tracing bonded labourers was to create a centralised database of such labourers with their Aadhaar details. Mr. Manish also explained how India has become a reluctant welfare state and that there is a push towards digitalization, especially with regard to financial services, post demonetisation.

Ms. Smriti Parsheera talked about big data and databases, and said that big data analysis can be utilized for a lot of good if done in the right way, though she also acknowledged the privacy and data protection challenges with big data. She touched upon the concern of bias with respect to big data analysis, citing the example of biases that creep into the criminal justice system. Lastly, she explained the link between big data and Aadhaar and how unidentifiable Aadhaar data analysis can be used for the benefit of research and analysis that can serve public good.

Lastly, Mr. Sukarn Singh Maini spoke about digital payments such as Unified Payments Interface and e-wallets, and privacy concerns attached to it. He also explained how big data analysis can be used for behavioural advertising. He spoke about Ministry of Electronics Information and Technology’s draft rules on e-wallets, the lack of a privacy and data protection legislation in India and the need for the same, and the need for the Supreme Court to form a bench to decide the pending issue of privacy.