For a robust data protection regime

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For a robust data protection regime

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• A new law beckons: India's Personal Data Protection (PDP) Bill 2019 will soon turn into a comprehensive data law, one of the first in the world. The goal is to protect citizen's right to privacy, against excesses by Big Tech firms and the State itself.
• Value of data: The Bill recognises the inherent value of data in today's world, and wants to promote a free and fair digital economy, while protecting personal data of citizens. 

1. The Justice Srikrishna Committee of Experts had given the report that led to the Bill. It was titled "A free and fair digital economy - protecting privacy and empowering Indians".
2. It stressed on both the goal equally, and wanted 'the common public good of both a free and fair digital economy’.

• Free and fair digital economy: The report understood the value of data, as far as running the new economy is concerned, if done responsibly and purposefully. Often, public good is seen as opposite to individual right to privacy. A false trade-off public good of economic growth and data privacy is made out. But they are not opposites.
• Who is the individual: The report and the Bill do not see the individual as an atomised unit, standing away (apart) from the collective, but with linked interests. 

1. Rights to citizens empower entire citizenry
2. Both protection of personal data, and helping growth of digital economy, serve the common goal of free and fair digital economy

• Economy and polity: Report says: Such a free and fair economy needs a polity where the individual alone decides what to do with her data, firms are responsible for sharing data in a law-bound way, and data is used to promote overall welfare. But some authorities are being given exemptions, in the PDP Bill, to ask data fiduciaries for individuals' data.
• Exemptions and exceptions: There are at least eight major exemptions.

1. If there's a public health emergency (epidemics or disasters), then without permission from data principals, personal data can be processed and shared. The community's right to health is paramount. 
2. Data of an employee (data principal) collected during recruitment and termination doesn't need consent. This is to promote ease of doing business.
3. Research gets exemptions. Any data that is archived, researched and statistically analysed, is not fully under privacy protection.
4. Regulatory sandboxes can be made, for new research in AI, ML or emerging tech. (Sandbox - a controlled environment supervised by a regulatory authority within which existing regulations are relaxed or removed to allow businesses to more freely experiment)
5. Exemptions exist for journalistic purposes, subject to norms of Press Council of India, etc.
6. \Manual data processing of MSMEs is given some exemption, to avoid hardship and costs of compliance
7. \Exemptions in collection and processing of data for legal proceedings, prosecution and investigations
8. \Central govt. can take any anonymised data, for targeting public services, and evidence-based policies.

• Blanket power: The Bill gives blanket powers to Central govt. to exempt itself form any part of the law, by way of a simple executive order. That's not good, and must be changed. 

1. The independence of the Data Protection Authority (DPA) and adjudicatory authorities need careful look
2. Cooperative federalism is not take care of, but only central govt. gets all the powers
3. Robust consent framework is missing, and in India where digital literacy is very low, that's not proper

• Summary: To limit the government's power to misuse data must be a key goal. Without that, the Bill has limited meaning.

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