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All Posts | May 14,2019

Critical security advisory: WhatsApp vulnerability

WhatsApp has reported that a security vulnerability in the app was exploited to install the NSO Pegasus spyware in certain iPhones and Android phones. The spyware can be installed by calling a target device. Even if the call is missed, the device could still be infected. The Financial Times has reported that a log of the call could disappear from the device, leaving no trace that the device was called and infected if the user of the device missed the call. The spyware can retrieve your calls, messages and data, and activate your camera and microphone, among malicious activities.

WhatsApp has stated the the vulnerability has been fixed in a recent update to the app. We urge all our readers to upgrade the app on your phone as soon as possible. If you noticed an incoming call that later disappeared from your call log, we advise that you erase / reset your phone.

In general, we advise updating your device's OS (such as iOS or Android) and apps as often as possible so that you have the latest security patches installed on your phone. We further advise purchasing your devices from only those manufacturers that have a reputation of keeping the OS updated for at least as long as you plan to use the device.

For more details regarding the security vulnerability in WhatsApp, please see https://techcrunch.com/2019/05/13/whatsapp-exploit-let-attackers-install-government-grade-spyware-on-phones/

For more information on keeping yourself safe and secure online, please visit https://security.sflc.in/

All Posts | Sep 26,2018

Full text of the 1448-page Aadhaar Judgement

The Supreme Court has delivered its much awaited judgment in the Aadhaar case, wherein the majoirty view, comprised of -  Dipak Misra CJI., AK Sikri J., AM Khanwilkar, J. and Ashok Bhushan J. (though Bhushan J. dissented with the majority on certain points) upheld the constitutionality of the Aadhaar Act, 2016 barring a few provisions on disclosure of personal information, cognizance of offences and use of the Aadhaar ecosystem by private corporations. DY Chandrachud J. delivered a dissenting opinion debasing the entire Aadhaar scheme along with the Act. The entire text of the judgment is available here.

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.

Conclusion

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 | May 16,2018

Aadhaar final hearing: what happens now?

On Thursday, May 10, a five-judge Constitution Bench of the Supreme Court of India finished hearing arguments from the batch of 29 petitions (led by K.S. Puttaswamy v. Union of India) that had challenged the constitutional validity of the Aadhaar scheme on various grounds. Most notably, the petitioners had argued that Aadhaar violated the fundamental right to privacy guaranteed under Article 21 of the Constituion of India, caused large scale exclusion of intended beneficiaries from various welfare schemes and benefits, and was irregularly introduced in the Parliament as a money bill to circumvent crucial oppositions. Final hearing of these petitions began on January 17, 2018 and spanned 38 days. Our detailed notes from the hearings that provide an overview of the arguments raised and addressed over the course of the proceedings are available here.

Through its order issued on May 10, the five-judge Bench has reserved judgment on the matter. Indian procedural laws do not prescribe a time limit within which the judgment must be delivered, and the actual time taken varies from case to case. Considering the time sensitive nature of this matter, a judgment is expected sooner rather than later. However, the Supreme Court will be on vacation starting May 21 and will remain closed through all of June, so we do not expect to see the judgment anytime before July 2018.

When issued, the judgment will do one of three things: (1) strike Aadhaar down as unconstitutional, forcing the Government to dismantle the project and roll-back every initiative taken in connection with it; or (2) find Aadhaar constituionally sound, allowing the Government to retain the project in its current form and expand it going forward; or (3) arrive at a middle-ground, where certain aspects of Aadhaar are struck down and others retained - for instance, Aadhaar may be found constitutionally sound overall, but specific aspects like mandatory mobile/bank account linkages may be disallowed.

Regardless of the outcome, K.S. Puttaswamy v. Union of India has been one of the most significant litigations India has seen in recent times, as it tests the world’s largest biometric ID program against fundamental human rights like the right to privacy and more. The Supreme Court’s verdict in this matter will undoubtedly have far reaching implications on how technology is integrated into governance in the years to come, and it will play a big role in shaping India’s nascent privacy and data protection landscape.

We would also like to take this opportunity to express our deepest appreciation for everyone involved in the Aadhaar litigation, whether they were lawyers, litigants, researchers or those making information available to the public by live tweeting or writing about the proceedings. We would like to make special mention of Justice K.S. Puttaswamy, Vickram Krishna, Shantha Sinha, S. G Vombatkere, and Mathew Thomas among others for moving the Courts to adjudicate on various issues surrounding Aadhaar; senior advocates Shyam Divan, Gopal Subramanium, K.V. Vishwanathan, Minakshi Arora, P. Chidambaram, Sajan Poovayya, P.V Surendranath, Kapil Sibal, Sanjay Hegde, Anand Grover, C.U. Singh and Arvind Datar for arguing the matter at the Supreme Court; advocates Gautam Bhatia, Prasanna S, Apar Gupta, and Kritika Bharadwaj among others for assisting the senior counsels and preparing arguments; Prasanna S and Gautam Bhatia for their live reportage of the proceedings; and Usha Ramanathan, Reetika Khera, and Jean Dreze among many others for building a strong discourse around Aadhaar. We are sure we have missed out many names from this list, but we extend our gratitude to everyone who played a part in building and maintianing a national narrative around the concerns with Aadhaar.

All Posts | May 16,2018

Updates on Aadhaar Final Hearing: Day 38

On the last day (day 38) of the final Aadhaar hearing, Senior Advocate, Gopal Subramanium resumed his submissions for the State. He started by asking the bench, “Is Aadhaar really affirmative action? Is the Act an enabler or is it in the guise of enabler? The Act is not an instrumentality to deliver services. It is only a means of identification.” He contended that the bench has to read the true purpose of the law and whether the impugned law seeks to achieve that purpose Mr. Subramanium was of the view that dignity and autonomy is not preserved by Section 7 of the Act. He further stated that Aadhaar does not have a true purpose and that a claim to a true purpose is not proper purpose, following which he argued that authentication is at the heart of the Aadhaar Act and failure of authentication is a ground or denial of services.

J. Chandrachud opined that an Act like Aadhaar needs a regulator which is absent, to which, Mr. Subramanium agreed and stated that the State seeks to take away our data without the backing of a strong data protection framework. He further expressed that some words used in the Act, like “grant of subsidies, benefits and services” are expressions of condescension in Section 7 and are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. J. Chandrachud, in reply, said that whether a “subsidy” is a benefit or a right has to be decided.

Thereafter, Mr. Subramanium highlighted that private players have access to Aadhaar data and there is no vertical protection. Section 7 has been interpreted to be mandatory. The State cannot make citizens subservient under Section 7 and call rights, benefits, he emphasized. He, then called for the Act to be struck down completely as it fails all three tests laid down in the Puttaswamy judgment: there is no legitimate state aim as the real aim of the Act is different from the purported aim; there was no law when Aadhaar was implemented and there is no proportionality.

Next, Mr. Subramanium read out a quote of B. R Ambedkar, “Political democracy rests on four premises: They are (1) The individual is an end in himself. (2) The individual has certain inalienable rights which must be guaranteed to him by the constitution. (3) The individual shall not be required to relinquish any of his constitutional rights as a price of any privilege. (4) The state shall not delegate power to private persons to govern others.”

Concluding his arguments, Mr. Subramanium stated that this court consciously overruled ADM Jabalpur, and the doctrine of misuse does not apply here because there is actual denial of rights in the case of Aadhaar. In his prayer, he asked for the Aadhaar Act to be completely struck down and the architecture and database destroyed.

Senior Advocate, Arvind Datar began his arguments next, and stated that the Aadhaar Act could not have been passed as a money bill. At most, it can be a financial bill of category 3 under Article 117 (3) of the Constitution. He was of the view that the doctrine of severability will not apply to Aadhaar, since the doctrine is only applicable to validly enacted legislations. Mr. Datar asserted that the judgments of Mohd. Saeed Siddiqui and Yogendra Jaiswal should be overruled. Finality of speaker’s decision does not mean that the bill cannot be subject to judicial review, he remarked.

Mr. Datar submitted that under the Prevention of Money Laundering Act (PMLA), Aadhaar is not just confined to banks but has gone beyond its scope. It is now needed for mutual funds, insurance policies and credit cards, among other things. He commented that magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise.

He further submitted that Aadhaar is not justified under Article 300A of the Constitution and seeding Aadhaar will never solve problems of money laundering and black money because the source of such money is different. Mr. Datar called the State’s action colorable exercise of power and remarked that black money and money laundering is being used as a ruse to collect people’s biometrics. He prayed to the bench that Section 57 should be struck down as anything outside Section 7 is completely violative of the Puttaswamy judgment; Section 139AA of the Income tax Act is inconsistent with the Aadhaar Act; and there should be an option to opt out of the Aadhaar ecosystem.

Next, Senior Advocate, P. Chidambaram commenced his submissions on the money bill aspect of Aadhaar. and stated that the Attorney General’s reading of the word “only” in Article 110(1)(g) is erroneous. He submitted that Section 57 travels beyond Article 110 of the Constitution. Mr. Chidambaram further submitted that Clause (g) of Article 110(1) must be read very restrictively and a particular provision has to be incidental to clauses 110(1)(a)-(f) to come under clause 110(1)(g) since clause (g) is not a substantive provision.

Mr. Chidambaram argued that the implications of passing a non money bill as a money bill are very serious: one half of the Parliament is virtually disabled from making any amendments and; it denudes the highest Constitutional Authority of the country, the President of India. Since the Aadhaar bill was passed without the effective participation of the Rajya Sabha and without assent from the President, the court cannot save it as it is a fundamentally unconstitutional legislation, he asserted.

Mr. Chidambaram was of the view that the pith and substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. The doctrine is only limited to entries of legislative lists. In his prayer, he requested the bench to strike down the Aadhaar Act as it is not a money bill.

Senior Advocate, K.V Vishwanathan began his submissions and stated that the respondents’ argument that the least intrusive method is not a facet of proportionality is erroneous. He further stated that harmonization of rights is being applied by the State. Balancing right to food and right to privacy is wrong.

In his next submission, he contended that Section 59 does not protect Aadhaar during the time Aadhaar was an executive scheme. Concluding his arguments, he asserted that there can be no collection and digitalization of records and that the underpinning of the Aadhaar Act is authentication of individuals. The State cannot discharge its duty by subjecting the poor and downtrodden of this country to a technological menace.

The hearing concluded with Senior Advocate, P. V Surendranath making a short submission on excessive delegation.

The matter is now reserved for judgment.

All Posts | May 15,2018

Updates on Aadhaar Final Hearing: Day 37

On day 37 of the final Aadhaar hearing, Senior Advocate Shyam Divan resumed his submissions for the petitioners by stating that banks and telecom operators were linking individuals’ Aadhaar with their bank accounts and mobile numbers without their permission. This is called inorganic seeding. He asserted that UIDAI collected biometrics of a hundred crore people which is the entire population of Europe and North America without any statutory backing.

Mr. Divan contended that from the citizens’ perspective, there is an authentication tower and enrolment tower and IP addresses, date, time and purpose of authentication can be known because of the architecture of Aadhaar. He, then highlighted that the source of Aadhaar software belongs to foreign companies. Mr. Divan remarked that it is impossible to live in contemporary India without Aadhaar and also stated that Aadhaar linking is not a one time thing as claimed by the respondents. It is a continuous process.

Mr. Divan produced a hypothetical log of an individual’s authentication activities to show how much data about her is generated over three days. He then showed a long list of agencies that are using authentication services on UIDAI’s website. Mr. Divan was of the opinion that the ID4D report relied on by the Attorney General is not impartial.

Mr. Divan contended that collecting biometrics was ultra vires the 2009 notification and even assuming that the notification was an Act of Parliament, it would have been ultra vires for collecting something as intrusive as biometrics. Further, there was no informed consent and penalties when biometrics before the Act was passed.

Mr. Divan argued that UIDAI has been flouting the interim orders of the Supreme Court that held that Aadhaar cannot be made mandatory. He further emphasized that schemes under Section 7 of the Aadhaar Act should not involve children and education. Schemes for rehabilitation of bonded labourers and women rescued from trafficking that involve stigma should also be excluded, he stated. Schemes related to food and nutrition and matters related to health should not be covered by Section, contended Mr. Divan and further remarked that there cannot be retrogression of human rights.

Mr. Divan explained that Sarva Shiksha Abhiyan and mid-day meal schemes require children to furnish Aadhaar to avail benefits of these schemes. He commented that there should be no conditions placed on children to avail any benefits as this is way beyond any reasonable limit of proportionality. Mr. Divan gave the example of tuberculosis patients requiring to disclose their Aadhaar number.

Mr. Divan urged the bench to not look into Section 7 by itself but consider the over all impact of the Act and stated that Aadhaar is an over extension of the coercive powers of the State. He reiterated that non retrogression of rights is an important principle of human rights law. Mr. Divan argued that the Constitution of India has an intricate scheme to defend Part III with the final defence lying with the Supreme Court. But before the matter even reaches the Supreme Court, there are other bulwarks to protect Part III: wisdom of the Rajya Sabha and Article 111 of the Constitution. Mr. Divan stated that the Government cannot bypass the wisdom of the Rajya Sabha and Article 111 to pass Aadhaar as a money bill.

On the point of protection of demographic information. Mr. Divan said that demographic information is important in many situations and should not be trivialised. People must have the choice to preserve and protect it.

Concluding his submissions, Mr. Divan said that Aadhaar will not survive the first five words of the Preamble, “We, the people of India.”

Next, Mr. Gopal Subramanium began his submissions for the petitioners and stated that State functionaries have a continuing constitutional obligation. If the obligation is not met, it cannot be reversed and the burden of proof cannot be on individuals to establish their identity. He asserted that Section 33 will allow sharing of authentication records and footprints of one’s activities will be known by the State. “Is there any nexus between such knowledge of the State and delivery of services?”, he asked.

Mr. Subramanium argued that an individual can ping the authentication machine three times and get rejected and then get accepted on the fourth ping. He asserted that the State cannot subject citizens to this. He submitted that the State has not been able to demonstrate any compelling interest as Aadhaar is not just for the oppressed as claimed by them. Everyone is now supposed to link it with their banks and telecoms. He highlighted that the legislation is not an enabler or a tool for empowerment. Therefore, it falls on all grounds i.e Articles 14, 19 and 21 of the Constitution. Mr. Subramanium further submitted that data of citizens cannot be used for political exercise and Aadhaar’s preponderant nature is” likely to invade. It alters the symbiotic relationship between State and citizen.

Ending his submissions, Mr. Subramanium argued that Aadhaar should be completely struck down as it steps out of the boundaries of the Constitution. He stated that there has to be a positive law if the State wants to abridge a fundamental right. Aadhaar was implemented without a law and the State cannot then retrospectively enact a law.

 

All Posts | May 15,2018

Updates on Aadhaar Final Hearing: Day 36

On day 36 of the final Aadhaar hearing, Attorney General K.K Venugopal resumed his submissions and stated that Article 110(1)(g) is a standalone provision and there can be a money bill that does not relate to Article 110(1)(a)-(f) of the Constitution but is still covered independently under Article 110(1)(g). Therefore, the Aadhaar bill did not have to be passed by the Rajya Sabha. Chief Justice of India, Dipak Misra interjected and said that Section 57 is an enabling provision that allows state legislatures to introduce Aadhaar for various services. The State legislature may or may not introduce it as a money bill. The nature of the bill will be examined if it is challenged in a court of law.

Further, Mr. K.K Venugopal cited Articles 122 (Courts not to inquire into proceedings of the Parliament) and 255 (Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only) of the Constitution in support of his money bill argument.

Next, Mr. Venugopal talked about Aadhaar-telecom linking. He asserted that currently, Aadhaar is not mandatory to obtain a new mobile connection but there will be no chance of forgery and fraud if Aadhaar is linked to SIM card. He then stated that Aadhaar was made optional as per the direction of the Supreme Court but it will only remain optional till the final disposal of the matter.

Mr. Venugopal concluded his submissions for the respondents by reiterating that no core biometrics data is shared under the Aadhaar Act and read out the offences and penalties laid down under the Act. He vehemently asserted that we cannot accuse a democratic government of such conspiracy. Mr. Venugopal mentioned that the State takes offense to the fact that words such as “electronic leash” and “concentration camps” were used by the petitioners’ counsels.

Senior Advocate Shyam Divan began the rejoinder for the petitioners. He stated that this is the first time in a democracy that something like the Central Identities Data Repository (CIDR) has been implemented. He emphasized that the Supreme Court is at the vanguard of balancing human rights and new technologies.

Mr. Divan submitted that surveillance has three elements: identity of the person, date and time, and location. He referred to an affidavit filed by the State, appending an expert report by Maninder Agarwal of IIT Kanpur who is also a member of the technology and architecture review board and security review board of Aadhaar. Mr. Divan stated that the report admits that tracking the location of a person is possible with Aadhaar. He contended that Prof. Agarwal admitted that the last five years of location data can be accessed with the verification log. Even without the verification log, current data of a person can be tracked by UIDAI, according to Mr. Divan.

Mr. Divan submitted that Aadhaar is not just a privacy issue, it is also a limited government issue. The coercive power of the State cannot extend to creating an infrastructure that is capable of tracking people, he emphasized. Mr. Divan stated, “Can we have a law or system that sets up an authority that does not comport with our democracy? I'm speaking about a rudimentary level of surveillance. I'm not even talking about commercial surveillance.He also argued that UIDAI’s registered device is capable of tracking people.

On the point of balancing of rights, Mr.Divan stated that Aadhaar is an impairment of Part III of the Constitution and this was a moment in time to take a firm stance. J. Chandrachud interjected and said that there is an inexorable march of technology and the kind of safeguards we should take while balancing human rights with innovation is something we have to consider.

Concluding his submissions for the day, Mr. Divan went through a list of questions put forth by the petitioners to UIDAI and read out the answers given by the same. Mr. Divan informed the bench that UIDAI in their answer have said that they do not take responsibility for correct/incorrect identification but only provide a matching system, which in essence, is a self certification/declaration system. Further, he stated that UIDAI takes no responsibility for ensuring correct name, address, date of birth of the Aadhaar enrolee. In the end, he highlighted that UIDAI has not answered how many authentication rejections have taken place. If an individual is successful in performing five authentications a year, it is considered hundred percent successful.

All Posts | May 07,2018

Updates on Aadhaar Final Hearing: Day 35

On day 35 of the final Aadhaar hearing, Advocate Zoheb Hossain, appearing for the State of Maharashtra and UIDAI continued his submissions. He began by handing over a bunch of international charters and covenants to the bench on harmonization of socio-economic and civil-political rights. J. Chandrachud remarked that directive principles of state policy are essential for good governance and are a guarantee of reasonableness of a law and even though they are non-justiciable, they are read into Article 21. Mr. Hossain stated that enacting a data protection law is a positive obligation of the State. Reading out excerpts from the Wadhwa Committee report on public distribution system and food security, he also mentioned that Aadhaar is a project to ensure socio economic rights of the people.

Mr. Hossain cited the case of D.K Trivedi v. State of Gujarat wherein it was held that when a statute confers discretionary powers to the executive, the validity of the statute cannot be judged by assuming that the executive will act in an arbitrary manner and abuse its power. It was also held that there is a constitutional obligation on the State to ensure socio-economic welfare of the citizens which includes prevention of leakages in public distribution systems.

Next, he cited the case of J.P Unnikrishnann v. State of Andhra Pradesh wherein the court relied on UDHR and ICCPR to read in education as a social right under Article 21. Mr. Hossain then cited a UN General Assembly resolution which said that the ideal of freedom can only be achieved if conditions are created so that everyone can enjoy socio economic and civil political rights. He also mentioned that all human rights are equally important, indivisible and interconnected. Socio-economic rights are as important as civil and political rights.

On the point of proportionality, Mr. Hossain contended that to judge proportionality, reasonableness of the measure/restrictions have to be shown from the point of view of the general public and not from the point of view of one affected party. He argued that right to privacy is an individual right which can be highly subjective or objective and the state cannot be held to be vicariously liable for its infringement. He asserted that no petitioner has claimed infringement of right to privacy and questioned the fact that a violation of privacy is being heard as a PIL.

Next. Mr. Hossain submitted that a person may use her Aadhaar for obtaining SIM, opening bank account and getting PDS. Her telecom company will not have details of the bank/PDS. Similarly, her bank will not have information of her telecom and PDS subsidy. UIDAI won't have any of the three details which proves that there is no scope of conducting mass surveillance.

Further, Mr. Hossain explained the development of social security number in the US and cited a congressional report. He stated that SSN is a quasi universal personal identification number and is used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, among other things. He cited a US judgment that said that firing of an employee for refusal to produce her SSN was not seen as a violation of privacy.

As regards the security of Aadhaar, Mr. Hossain stated that the Aadhaar Act provides adequate safety to identity and authentication records, following which he cited section 33 (disclosure of information in certain cases) and said that that the decision made under this section is reviewed by an oversight committee as laid down in the proviso.

With respect to national security, Mr. Hossain argued that a party cannot expect strict adherence to the principles of natural justice during times of emergency. On the petitioner’s argument that a person has no right to complain before a court of law (Section 47), Mr. Hossain contended that the purpose of such a measure is discernible under the scheme of the Act. He also stated that a complaint can be filed to UIDAI which can then take cognizance of it depending on the genuineness of the complaint, therefore a person is not left remedy-less. He further highlighted that Aadhaar is technical and it is appropriate if UIDAI is given the power to complain as they best understand the matters. He gave the example of a similar provision in the Industrial Disputes Act which was upheld by the court.

In his last argument, Mr. Hossain asserted that the purpose of Aadhaar including section 139AA of the Income Tax Act is to promote re-distributive justice and ensure substantial equality along with furthering the dignity of the individual. He quoted the Puttaswamy judgement and said that rights can be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering. Aadhaar Act and Income Tax Act are standalone acts and it cannot be said that Parliament in its wisdom cannot make Aadhaar mandatory by way of an amendment, he argued. Mr. Hossain pointed put that if the objects of the two statutes are different, then they are said to run parallely and not intersect. There is no conflict. On why only individual tax payers are supposed to link Aadhaar with PAN, Mr. Hossain said that the rule of equality doesn't mean that the state has to strike at all evils at the same time. He further mentioned that Aadhaar for individuals also cures the evil vis-a-vis companies. Companies and individuals are treated differently in the income tax Act. That cannot be called unreasonable classification, argued Mr. Hossain.

Attorney General of India, Mr. K.K Venugopal then made his submissions on the aspect of money bill. He contended that the term “targeted delivery of services” in the preamble of the Act contemplates expenditure of funds which brings the Act into the ambit of money bill under Article 110 of the Constitution. Even though the law has ancillary provisions, the main objective of the Act is delivery of services and benefits and not a single provision in the Act is unnecessary or unrelated to the main purpose/pith and substance of the Act which is giving subsidies, he argued. To this, J. Chandrachud remarked that Section 57 of the Act snaps the link with Consolidated Fund of India. In reply, Mr. Venugopal stated that Section 57 is saved by Article 110(1)(g).

The hearing will continue on May 3, 2018

 

All Posts | Apr 30,2018

Updates on Aadhaar Final Hearing: Day 33

On day 33 of the final Aadhaar hearing, Senior Advocate, Rakesh Dwivedi appearing for the State/UIDAI resumed his submission on Aadhaar by stating that the standard of control exercised by UIDAI on requesting entities is “fair and reasonable” as laid down under Article 21. He further pointed out that the data collected by REs is segregated and there is no way to aggregate it as there are over three hundred REs. J. Chandrachud asked about misuse of data by individual REs, to which Mr. Dwivedi gave the example of Vodafone and mentioned that Vodafone can indulge in targeted advertising without Aadhaar data as it collects far more demographic data about an individual than UIDAI does. He emphasized that at least in the case of UIDAI, there are so many regulations and penal consequences that do not apply to Vodafone. Mr. Dwivedi then showed the bench a credit card statement to put across the point that banks have a record of all transactions made by an individual including information such as the place of transaction. He remarked that no one is questioning the data collection activities of banks and telecoms and that Aadhaar is the single target. Mr. Dwivedi also gave the example of the food delivery app “bigbasket” and highlighted that the app knows the food habits of the users.

On the technology of Aadhaar, Mr. Dwivedi contended that UIDAI needs to have big data, processing power and statistical knowhow to do big data analysis on the data that is colllected. He explained how companies like Google and Facebook process tremendous data on a daily basis while UIDAI does not have such algorithms. Mr. Dwivedi also mentioned that the data collected by REs does not have any value as no authentication records are stored with them. Next, he showed a list of entities that require one time authentication and those that require authentication each time there is a transaction and pointed out that most entities require authentication once, and therefore there is no way to surveil people.

With respect to exercising control over REs by UIDAI, Mr. Dwivedi submitted that an RE procures the fingerprint device from a vendor and UIDAI controls the vendor with respect to the hardware and software of the device. He explained that UIDAI puts a key in the device so that data is encrypted and sent to CIDR. The device is then taken to Standardisation Testing and Quality Certification (STQC) to check whether it meets all the requirements. The whole process of device preparation and certification happens without the knowledge of the requesting entity. An information systems operator then conducts an audit of the RE and the report is submitted to UIDAI. If the report is approved, then the particular RE gets a license from UIDAI in order to operate as an RE. In this regard, Mr. Dwivedi asserted that metadata is important for validation that the data is coming from a particular RE with which UIDAI has an agreement. Further, the metadata is important for fraud management and verification, stated Mr. Dwivedi.

As an additional security measure, Mr. Dwivedi highlighted that REs have a data vault as well which is controlled by trusted people. Apart from these procedures, there are two more audits conducted on REs: annual audit and random audits by UIDAI.

Further, Mr. Dwivedi submitted that the information held by REs is not of any commercial value. He stated that UIDAI has device control, there are double pairs of keys, encryption is immediate and time stamped, transmission of data requires a digital signature with a private key, there is complete prohibition of storing PID block and finally there are penal consequences if any provision of the Aadhaar Act or Regulations is violated. Mr. Dwivedi alsiosubmitted that the central government has no access to UIDAI’s data as UIDAI is an autonomous body. He mentioned that while examining the problem of smart cards, even the EU has said that having a centralized database is important since decentralization leads to fakes and duplicates.

Mr. Dwivedi’s next contention was on Aadhaar-SIM linking. He began by citing the Lok Niti Foundation judgment and TRAI’s recommendation to link Aadhaar with SIM card. Mr. Dwivedi next read out the DoT notification that talked about re-verification of mobile numbers using e-KYC process. On the legality of such measure, Mr. Dwivedi said that the proviso to Section 4 of the Telegraph Act gives exclusive power to the Central government to decide license conditions. As regards proportionality, he mentioned that the measure to verify one’s SIM card using Aadhaar is not excessive at all and proportional to the object sought to be achieved. At this point, J. Chandrachud remarked that the Supreme Court never directed in the Lok Niti Foundation order to carry out e-KYC of mobile numbers using Aadhaar. In reply, Mr. Dwivedi stated that Aadhaar-SIM linking was done on the recommendation of TRAI before the Lok Niti order had even come out. Further, he said that the measure is reasonable in the interest of national security.

Mr. Dwivedi contended that the entire architecture of Aadhaar is such that there is no aggregation of data. The system stands the test of Article 21 on its own and there is no infringement of privacy.

Additional Solicitor General, Tushar Mehta, intervened to make a short submission on whether Aadhaar passes the muster of Article 300A of the Constitution and whether Article 300A encompassed ‘Rules’ also. The phrase “authority of law” gives power to the legislature to link Aadhaar with bank account under the Prevention of Money Laundering Act (PMLA) and the PMLA Rules have the backing of the PMLA. He stated that a statutory rule is akin to law under Article 300A of the Constitution. The parliament cannot every time amend the law (PMLA) for example in respect of money laundering. Therefore a wide statutory network is provided and power is given to the rule making authority.

Senior Advocate, Jayant Bhushan then commenced his submission on the master circular issued by the Reserve Bank of India on April 20, 2018 and stated that RBI issued the master circular by virtue of its power under the Banking Regulation Act and Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 that provides that Aadhaar has to be submitted to a reporting entity. He also highlighted Rule 9(14) which provides that the regulator (RBI in this case) shall provide guidelines incorporating the requirements of sub rules (1) to (13) above and may prescribe enhanced or simplified measures to verify identity. Requirements under Rule 9(1)-(130 is made mandatory under Rule 9(14). Mr. Bhushan asserted that the RBI master circular is now in conformity with PMLA rules and RBI had no option but to amend the master circular.

Next, Advocate Gopal Sankarnarayanan began his submissions. He stated that he is going to argue the following contentions:

  1. Aadhaar Act is valid subject to three specific provisions that have to be wither read down or struck down
  2. Conflict between Aadhaar Act and Right to Information Act, 2005
  3. Manifest arbitrariness with respect to Section 139AA of the Income Tax Act and its relation with Article 21

Mr. Sanakarnarayanan will continue his submissions tomorrow (April 26, 2018).