The Indian Telecom regulator TRAI has issued a consultation paper on data protection, even as the Ministry of Electronics and IT has set up its own committee. Going through the paper, there appears to be little correlation between the title of the paper and the content of the paper. While the paper is titled “Privacy, Security and Ownership of the Data in the Telecom Sector”, the paper, and indeed the questions asked by the regulator, also take into account the usage of data by apps, operating systems and online platforms including the permissions taken by apps, cookies, device fingerprinting, collection of information on users from other users (something which Truecaller depends on).

The paper relies on the Justice AP Shah report on Privacy, and looks into the role of data controllers, which is any organization that determines the purposes and means of processing the personal information of users: essentially, any app or service. It also considers the recommendations of the AP Shah report which suggested providing users notice of data usage, consent mechanisms, data collection limitations, disclosure, security and accountability, among others issues.

Download the consultation paper here.

Here are the questions for the consultation posed by the TRAI. We’re segmenting them by sub-topics, but the question numbers are as mentioned in the paper:

Personal Data, user rights and consent

Q2. 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?

Q3. 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.

Data protection: Internet and data startups

Q5. 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?

Q9. 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?

Q6. 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?

Telecom and user data

Q8. 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?

Q10. 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?

Q11. 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?

Data localisation and jurisdictional issues

Q12. 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?

Auditing of use of personal data and regulatory intervention

Q4. 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?

Q7. 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?

Q1. 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?