Info Sharing Blog

Saturday, April 25, 2020

Cloud computing, Data protection law in India and Sprinklr controversy #opinion

April 25, 2020 Posted by jaacostan ,
There is no legislation in India that specifically recognizes cloud computing. Hence all these computer related cases or crimes may be dealt with the existing IT Act and Privacy Laws. When compared to EU-GDPR or Canada's PIPEDA, these laws are very weak.
Cloud computing services that deal with personal or sensitive personal information need to comply with the requirements set out under the Privacy Rules related to security, encryption, access to data subject, disclosure, international transfer and publication of policy statements. Cloud service providers in India may also be required to comply with the Information Technology (Intermediaries Guidelines) Rules 2011 (Intermediary Guidelines) prescribed under the IT Act.
Controversy : Sprinklr agreement is based on Laws in New York./Govt sells the data/without consent from citizen.
India lacks stringent data privacy laws as well a strong IT act. However as per current law, the IT Act  covers offenses committed outside of India if the offense involves a computer, computer system or computer network located in India. This would protect consumers within India who procure cloud computing services from service providers located outside India. Section 75 of the IT Act 2000 ,states that the provisions of the act would apply to any offense or contravention thereunder committed outside India by any person (including companies), irrespective of his nationality, if the act or conduct constituting the offense or contravention involves a computer, computer system or computer network located in India.
Though Sprinkler has confirmed in writing that the data is stored in Mumbai Amazon Cloud Data center, the opposition and critics of the State goverment are not convinced. So when it comes to privacy, India lacks strong laws. However, The Personal Data Protection Bill 2019 (PDP Bill 2019) was tabled in the Indian Parliament and is currently being analyzed. In its current form, the bill now only requires the storage of “sensitive personal data” within India, a subset of what was within the previous mandate. Sensitive personal data can also be transferred abroad for the purpose of processing upon the fulfillment of certain conditions including obtaining explicit consent from the data user (called “data principal”) and being in pursuance of a contract or an intra-group scheme that safeguards user rights, while also ensuring liability on the data processor (fiduciary) if harm does accrue. (clause 34 PDP 2019 Bill).

Alternatively, “sensitive personal data” may be transferred abroad if the data is to be accorded an adequate level of protection in that jurisdiction. Further, Indian law enforcement authorities must have access to that data when they need to, for conducting criminal investigations. The Indian government has the power to notify any data as “critical personal data,” which must be stored and processed only in India. However “Critical Personal Data” has not yet been defined by the government.
Even if some data breach happens, as of now, India don't have a stringent rule to bring the culprits on its knees. So all those talking on Privacy is just a bluff.In that sense, the laws in US is much stringent than India. 
Related Article : Cambridge Analytica and Information Technology Act of India: Why India needs a Stringent Data Privacy Law?
Note1 : Currently proposed PDP bill itself is controversial. The latest version of the Personal Data Protection Bill 2019 would allow the government to direct companies to hand over the anonymized personal data and non-personal data of citizens. It would also give the government the power to directly collect citizen data without consent so long as it serves the public interest, as well as provide it with the discretion to exempt an entity or department from any part of the law. This PDP bill is supposed to protect the privacy and now it seems different.

Note2: Regardless the scenarios, any contracts must be awarded only after the consultation with the legal department. This is a valid point. Changing technologies or current data processor just because of controversy doesn't help anyone in this COVID19 critical period.