Imperative of data sovereignty
If we can protect the data and information from getting monopolised and at the same time make this information freely available to small e-commerce players, small start-ups, government agencies and general public and researchers, then only we can make our country a digital super power. — Dr. Ashwani Mahajan
While there are some sections of the society who are extremely sensitised over privacy of the personal data, but there are many who understand that the ownership of non-personal data, derived from this personal digital data, has great significance for achieving cherished goal of making India a digital superpower . The data is key to understand the behaviour, create influencers for these behaviours along with a big opportunity to create skilled jobs and entrepreneurship opportunities. It is future; it is present & country will have to rise to take grab this opportunity. If we look around, the data is the key to artificial intelligence, shaping of robotic production and machine learning, which is shaping the manufacturing and service sector.
Recently, sharing the draft of the Digital Personal Data Protection Bill, 2022, the government has sought suggestions from the people in this context by 17 December 2022. If legislated this will be a first law on conduct of those who possess data, which is called 'Data Fiduciary' in the Draft Bill.
Significantly, today personal information of people is shared through various digital mediums including apps, websites, service providers etc. We know that in this digital age when we download any app we are asked to give different types of permissions. If the user refuses for this then that app cannot be used at all. The same applies to digital newspapers, various service providers and other types of websites. E-commerce firms and platforms in the digital economy control the data and often indulge in rent-seeking behaviour. Bigger question is that can we afford to pay in dollars or Euros to learn behaviours & solutions of our own conducts or ventures?
Therefore, the very first draft policy statements for e-commerce, which was made public for comments during Suresh Prabhu's tenure as Minister of Commerce and Industry, elaborated at length about the importance of data collected by e-commerce companies and importance of having this data stored in India and discourage misuse of the same by big giants. Incidentally that policy could not be finalized as Suresh Prabhu tenure ended abruptly. Next incumbent decided to drop data from e-commerce policy and wished that the regulations about data would be made by Ministry of Electronic and Information Technology (MeitY).
While preparing the draft bill, which is in circulation today, MeitY took a narrow view of legislation on data, and prepared this bill, claiming to protect the individuals from the possible misuse of their personal information by the big giants including Google, Social media companies, e-commerce companies etc. It clearly fails to appreciate and cover the importance of non-personal data, created by anonymizing the personal data for making India a digital superpower. Though a provision is indicated in the bill about cross border flow of data, but the there is no mention of maintaining sovereign right over the data.
Although this effort being made to protect the personal information of the people, is being considered a step in the right direction, but experts believe that we will miss the digital bus if we fail to establish sovereign right over the vast amount of data of Indians. Though the questions are being raised about the small quantum of the penalty proposed for breach of personal data, looking at the size of the big data controlling companies, constitution of the board overseeing the implementation of the bill, and absence of the appellate authority etc., a bigger question is, are people sensitive about privacy in India? Probably not. We even give all our personal information to any unknown person at a petrol station. Privacy and sensitivity towards personal information is yet to come in India. But we have to understand that our personal and non-personal information has great economic importance. In today's era, the usefulness and importance of data cannot be underestimated. Today we are in the amidst of Industrial Revolution 4.0. Data, artificial intelligence (AI) etc can be used to achieve, what human brain has not been able to achieve so far. Today the powerful nations are trying to control this data and all out efforts are being made by them to achieve their objective to control data.
The question of sending data abroad and its sovereignty
The proposed Bill provides for cross border flow of data, and says “The Central Government may, after an assessment of such factors as it may consider necessary, notify such countries or territories outside India to which a Data Fiduciary may transfer personal data, in accordance with such terms and conditions as may be specified.”
We should know that 800 million people in India today are using different types of apps on their smartphones. In this process, Google, Facebook and other big-tech and social media platforms, e-commerce companies and all kinds of other service providers and websites are collecting unlimited amounts of data, through their clout and wide coverage. They control data by augmenting and mining of data of various types, including people's personal data, their habits, their social relationships, their financial behaviour, their likings and purchases. They augment this data through data mining; and create artificial intelligence (AI) out of it. Many instruments of AI are being prepared. When global powers are using all avenues to acquire this data, India not only needs to own and localise the data produced in the country; there is also a need to carry computation of this data within the geographical boundaries of our country.
Control of people’s data and through it, exploitation of the same people, is becoming the specialty of today's data economy. There is a need for such a law through which the country has sovereign rights over the country's data. At the same time, artificial intelligence and various other types of informations should be prevented from being monopolized by big tech, e-commerce and social media companies by augmenting that data. We have to understand that by anonymizing and processing personal data, non-personal data is created and through that information is collected about economic and social practices, including financial behaviour and buying behaviour of different sections of the society.
We need to understand that developed countries are losing no opportunity at international forums to ensure seamless flow of data to facilitate the competitiveness of their companies. The ‘free flow of data’ would create an asymmetric relationship between developed countries and developing countries and put firms in developing countries at a disadvantage. Therefore, regulation of data is very important.
United Nations Conference on Trade and Development, that is UNCTAD’s Trade and Development Report 2018 says: "it is important for the countries to control their data and be able to use/share their data and regulate its flow". Further, the UNCTAD report concludes: "The bottom line is that the potential for development provided by digital technologies can be easily eclipsed if developing countries are not given the flexibility and policy space to design their economic and industrial policies and national regulatory frameworks to promote digital infrastructure and digital capacities."
Our objective of ensuring sovereign right over the data can be achieved if there is a provision in the law that even after sending the personal data of the people of the country to foreign countries, the sovereign right on it remains with the country and the obligation to retransmit the processed data, to India is also ensured. If we can protect the data and information from getting monopolised and at the same time make this information freely available to small e-commerce players, small start-ups, government agencies and general public and researchers, then only we can make our country a digital super power. Through this only, we can succeed in moving rapidly towards Industrial Revolution 4.0.
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