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TRAI begins work on data protection and government's role

NEW DELHI: Noting that there is a global trend in the creation of new services on the basis of data which provide significant value to customers, and businesses, the Telecom Regulatory Authority of India today issued a consultation paper on ‘Privacy, Security and Ownership of the Data in the Telecom Sector’.

The paper describes data protection as the legal control over access to and use of data stored in the digital format, and the ability of individuals to understand and control the manner in which information pertaining to them can be accessed and used by others. It may also be considered as a process of safeguarding digital information from corruption and or loss.

While posing twelve questions, the Authority has asked stakeholders to respond by 8 September with counter-comments if any by 22 September 2017.

(indiantelevision.com had reported that TRAI chairman R S Sharma had indicated this paper would be issued in a day or two.)

TRAI says it is important to establish the ownership of the data. For instance, if the data is recognized as belonging to the user to whom it pertains, then this data becomes available for use by them to better their own lives. This brings in the dimension of empowerment to the user.

It says the government should enable the industry to grow by way of creation of newer services. The country may be at risk of falling behind, if action is not taken to encourage the creation of such businesses. This could be done through enabling newer players to bring in innovative services, while also ensuring a level playing field. There are two equally critical steps to do so. The first is Data Portability - the ability to extract all user data from a service, and share it with another- and the second is to create anonymized, public data sets, which can be used as a test bed by newer service providers.

The rapid evolution of telecommunications services in India has aided the overall economic and social development of the country and enabled better connectivity among users, increasing use of information and communication technology (ICT) services and emergence of a variety of new business models. There is also a quantum leap in the quantity and value of data that is being generated through the use of modern communication services. Each step of a user's interaction with ICT services, whether through traditional telecom services, Internet services, devices, applications or other forms of content, results in the generation of large amounts of data.

Reports indicate that 90 percent of the data in the world today has been created in the last two years alone with new data being added to this pool at the rate of approximately 2.5 quintillion bytes of data every day. Data collection, storage and analytics have therefore become widely used tools that allow businesses to monetise their products and services and gain a competitive advantage over other providers. Data is collected by various businesses and agencies as a by-product of the user’s interactions with them. This data is then retained by the business, and used to its advantage.

At the same time, various Government agencies also benefit greatly from the generation of vast amount of data, which acts as an enabler for more efficient delivery of services and prevention and handling of crimes.

The focus is on the issue of informational privacy, which forms a subset of the broader concept of 'privacy' that encompasses many other philosophical, psychological, sociological, economic and political perspectives.

The rationale for government intervention in this sphere arises on account of three key reasons to prevent harm to consumers. First, there is often an information asymmetry between the consumer and the data user on account of the under-estimation by consumers about the value of their personal data and ignorance about the scale and use of the data being collected and its use. The ability of data collectors to unilaterally change their privacy policies also contributes to this asymmetry.

Second is the problem of bounded rationality, which often leads consumers to underestimate the long term consequences of their actions while consenting to share their personal information in the course of availing specific products or services.

Third is the problem of a data monopoly. Since the service providers, through the provision of service generate and hold the data, it gives them an advantage, which they can use to get into adjacencies (and thus extending their monopoly). This results in harm to the market. The government or its authorized agency may take steps to make this data portable, under the control of the user, thus enabling the creation of newer services. The technical standards for this purpose may have to be defined in this case.

The questions posed are:

Q.1 Are the data protection requirements currently applicable to all the players in the eco-system in India sufficient to protect the interests of telecom subscribers? What are the additional measures, if any, that need to be considered in this regard?

Q. 2 In light of recent advances in technology, what changes, if any, are recommended to the definition of personal data? Should the User’s consent be taken before sharing his/her personal data for commercial purposes? What are the measures that should be considered in order to empower users to own and take control of his/her personal data? In particular, what are the new capabilities that must be granted to consumers over the use of their personal data?

Q.3 What should be the rights and responsibilities of the Data Controllers? Can the rights of Data Controller supersede the rights of an Individual over his/her Personal Data? Suggest a mechanism for regulating and governing the Data Controllers.

Q. 4 Given the fears related to abuse of this data, is it advisable to create a technology enabled architecture to audit the use of personal data, and associated consent? Will an audit-based mechanism provide sufficient visibility for the government or its authorized authority to prevent harm? Can the industry create a sufficiently capable workforce of auditors who can take on these responsibilities?

Q. 5 What, if any, are the measures that must be taken to encourage the creation of new data based businesses consistent with the overall framework of data protection?

Q.6 Should government or its authorized authority setup a data sandbox, which allows the regulated companies to create anonymized data sets which can be used for the development of newer services?

Q. 7 How can the government or its authorized authority setup a technology solution that can assist it in monitoring the ecosystem for compliance? What are the attributes of such a solution that allow the regulations to keep pace with a changing technology ecosystem?

Q. 8 What are the measures that should be considered in order to strengthen and preserve the safety and security of telecommunications infrastructure and the digital ecosystem as a whole?

Q. 9 What are the key issues of data protection pertaining to the collection and use of data by various other stakeholders in the digital ecosystem, including content and application service providers, device manufacturers, operating systems, browsers, etc? What mechanisms need to be put in place in order to address these issues?

Q. 10 Is there a need for bringing about greater parity in the data protection norms applicable to TSPs and other communication service providers offering comparable services (such as Internet based voice and messaging services). What are the various options that may be considered in this regard?

Q. 11 What should be the legitimate exceptions to the data protection requirements imposed on TSPs and other providers in the digital ecosystem and how should these be designed? In particular, what are the checks and balances that need to be considered in the context of lawful surveillance and law enforcement requirements?

Q.12 What are the measures that can be considered in order to address the potential issues arising from cross border flow of information and jurisdictional challenges in the digital ecosystem?

Also Read: TRAI to discuss IPR of data generated on apps

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