The final Personal Data Protection bill drafted by the committee led by Justice BN Srikrishna did away with a couple problematic provisions, The Caravan reports. In a work-in-progress draft of the bill accessed by The Caravan, it was revealed that the Act vastly strengthened the power of public officials to decline RTI requests on personal privacy grounds. It also strengthened the exclusive right that the UIDAI had on filing Aadhaar-related complaints.
But in the final bill, these changes were no longer there — the RTI Act was amended, but the amendment in the final bill does not strengthen the pre-existing privacy clause significantly. The Aadhaar Act amendment was done away with, too. But then, the final version also added something else, per the report: localisation.
Localisation in the Data Protection bill
The localisation requirement in the Srikrishna Committee’s final bill is among the legislation’s most contentious features. The bill requires all data fiduciaries to store a copy of users’ personal data in India. As for what personal data will constitute in different contexts, that hasn’t been explicitly clarified. The previous draft bill that The Caravan obtained only had this localisation requirement for sensitive personal data, which is more clearly defined. Here’s the version of the localisation requirement in the final bill that came out on Friday.
Restrictions on Cross-Border Transfer of Personal Data. —
(1) Every data fiduciary shall ensure the storage, on a server or data centre located in India, of at least one serving copy of personal data to which this Act applies.
(2) The Central Government shall notify categories of personal data as critical personal data that shall only be processed in a server or data centre located in India.
(3) Notwithstanding anything contained in sub-section (1), the Central Government may notify certain categories of personal data as exempt from the requirement under subsection (1) on the grounds of necessity or strategic interests of the State.
(4) Nothing contained in sub-section (3) shall apply to sensitive personal data.
(from the Personal Data Protection Bill, 2018; emphasis ours)
The localisation requirement has rattled both committee members and civil society. “Data localization is bad for business, users, and security,” Mozilla said in a statement. Rama Vedashree and Prof. Rishikesha T Krishnan, who were both members of the Srikrishna committee, put on record their dissent on keeping a copy of personal data in India. “This narrative [that localisation is a tool for domestic market development],” Vedashree said in her dissent, “seems fuelled by unfounded apprehensions and assumptions, rather than evidence and reasoning”.
Other parts remain intact
Other aspects of the bill — which among other things layout standards for consent and direct oversight of intelligence agencies — have mostly remained unchanged. However, the bill has raised some significant concerns on localisation and the room that the government has to process data without consent. In fact, a part of the bill that said that the government would have to prove that obtaining consent for processing personal data was too burdensome is no longer there in the final bill.
Rama Vedashree, who dissented to the localisation requirement, said that the MeitY should hold further public consultations before handing over the bill to the Cabinet. Ravi Shankar Prasad, the IT Minister, said on Friday that the bill would be subject to the “widest possible parliamentary consultation”.