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Indian Govt to collect non-personal data for training AI models: What does this mean for publicly available personal data?

Digital Personal Data Protection Act 2023, India’s data protection law, effectively allows ‘data scraping’. So are peoples’ publicly available data, like details on social media, up for grabs?

On March 11, at the announcement of the IndiaAI Mission,  Minister of State for Electronics and IT, Rajeev Chandrasekhar, said that India will be creating “a non-personal data collection platform” to train AI models and that it “will be available only for Indian data Indian startups and Indian companies and not for foreign companies.”

Publicly available information under the Digital Personal Data Protection Act 2023

Chandrasekar mentioned that the data used to train these sets would be “non-personal” data. However, it is unclear what non-personal data comprises, in this case.  “Non-personal” data could include information that is posted on social media. This information can be users’ details like their name, face, etc. Shouldn’t this data be seen as “personal” regardless of it being available publicly, as it can be used to target people due to its personally identifying nature? However, this comes into question with India’s data protection law.

While talking about collection of “non-personal data” and data collection centres, Chandrasekar specifically mentioned the Digital Personal Data Protection (DPDP) Act 2023. Significantly, Clause 3(c)(ii) of the DPDP Act explains that the provisions of the Act do not apply to “personal data that is made or caused to be made publicly available.” This includes data shared through social media or available on any other public platform.

DPDP Act, in effect, allows the practice of “data scraping”—which is when actors collect publicly available data, without requiring the consent of the subject. This is arising as a major privacy concern when juxtaposed with advancements in AI. Such a provision might allow, as pointed out by Jagannath PV, Chief Privacy Officer, LTIMindtree at PrivacyNama 2023, companies like Clearview AI to crop up in India. A US-based facial recognition company, Clearview AI uses datasets of publicly available pictures of people to build its facial recognition technology. This raised many privacy concerns, as this data was used without user consent.

Data scraping and privacy

Last year, 12 members of the Global Privacy Assembly’s International Enforcement Cooperation Working Group (IEWG)  published a joint statement, highlighting the dangers of data scraping: “Scraped personal information can be exploited for various purposes, such as monetisation through re-use on third-party websites, sale to malicious actors, or private analysis or intelligence gathering, resulting in serious risks to individuals…broadly, individuals lose control of their personal information when it is scraped without their knowledge and against their expectations. For example, data scrapers may aggregate and combine scraped data from one site with other personal information, and use it for unexpected purposes.”

The Supreme Court’s Puttaswamy judgements in 2017 made privacy a fundamental right in India as an integral part of Articles 14,15, 19 and 21. Under the judgment, informational privacy or data protection was also considered a right to privacy. The courts subsequently tasked the Central government with creating an adequate data protection law. The courts recognised the need for the collection of data but required these to fit the parameters of legality, legitimacy and proportionality.

While data scraping is legal under the DPDP Act, the question remains whether data scraping is a legitimate use of data. Does sharing one’s personal data on public platforms like social media make it “non-personal”? With AI companies being encouraged by the government, such questions of privacy must be deliberated on seriously.

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