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Personal Data Protection (PDP) Bill, 2019

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December 06, 2019

Why in news?

The Personal Data Protection (PDP) Bill, 2019, has been approved by the Cabinet and is to be placed in Parliament.

How important has ‘data principal’ become?

  • The individual whose data is being stored and processed is called the ‘data principal’ in the PDP Bill.
  • It usually refers to information about one’s messages, social media posts, online transactions, and browser searches.
  • This large collection of information about one’s online habits has become an important source of profits.
  • On the other hand, it is also a potential avenue for invasion of privacy because it can reveal extremely personal aspects.
  • Thus, companies, governments, and political parties find it valuable as it offers the scope for having the most convincing ways to advertise online.
  • Certainly, much of the future’s economy and law enforcement will be based on data regulation, introducing issues of national sovereignty.

How is data handled and processed?

  • Data is collected and handled by entities called data fiduciaries.
  • While the fiduciary controls how and why data is processed, the processing itself may be done by a third party, the data processor.
  • This distinction is important to delineate responsibility as data moves from entity to entity.
  • E.g. in the US, Facebook (the data controller) fell into controversy for the actions of the data processor, Cambridge Analytica
  • The physical attributes of data - where data is stored, where it is sent, where it is turned into something useful - are called data flows.
  • Data localisation arguments are premised on the idea that data flows determine who has access to the data, who profits off it, who taxes and who “owns” it.
  • However, many contend that the physical location of the data is not relevant in the cyber world.

How does the PDP Bill propose to regulate data transfer?

  • To legislate on the topic, the Bill trifurcates personal data.
  • The umbrella group is all personal data, which is data from which an individual can be identified.
  • Some types of personal data are considered sensitive personal data (SPD).
  • The Bill defines as SPD, the data on finance, health, sexual orientation, biometric, genetic, transgender status, caste, religious belief, and more.
  • Another subset is critical personal data.
  • The government at any time can deem something critical, and has given examples as military or national security data.
  • In the Bill approved by the Cabinet, there are 3 significant changes from the version drafted by the Justice B N Srikrishna Committee.

How does the Bill differ from the earlier draft?

  • Localisation - The draft had said all fiduciaries must store a copy of all personal data in India.
  • This was criticised by foreign technology companies that store most of Indians’ data abroad.
  • The approved Bill removes this stipulation, only requiring individual consent for data transfer abroad.
  • Similar to the draft, however, the Bill still requires sensitive personal data to be stored only in India.
  • It can be processed abroad only under certain conditions including approval of a Data Protection Agency (DPA).
  • The final category of critical personal data must be stored and processed in India.
  • Information - The Bill mandates fiduciaries to give the government any non-personal data when demanded.
  • Non-personal data refers to anonymised data, such as traffic patterns or demographic data.
  • The previous draft did not apply to this type of data, which many companies use to fund their business model.
  • Social media companies - Some social media companies are deemed to be significant data fiduciaries based on factors such as volume and sensitivity of data and their turnover.
  • The Bill requires these companies to develop their own user verification mechanism.
  • The process can be voluntary for users and can be completely designed by the company.
  • However, it will decrease the anonymity of users and “prevent trolling.”

What are the other key features?

  • The Bill includes exemptions for processing data without an individual’s consent for “reasonable purposes”.
  • This includes security of the state, detection of any unlawful activity or fraud, whistle-blowing, medical emergencies, credit scoring, operation of search engines and processing of publicly available data.
  • The Bill calls for the creation of an independent regulator DPA, which will oversee assessments and audits and definition making.
  • Each company will have a Data Protection Officer (DPO) who will cooperate with the DPA for auditing, grievance redressal, recording maintenance and more.

 

Source: Indian Express

Related Article: White Paper on Data Protection Framework

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