Feedback on the Draft Non-Personal Data Governance Framework

Author: thinkinglegal | September 9, 2020 - 21:10 | Tags: Data Protection & Privacy

The Ministry of Electronics and Information Technology has released the Draft Non-Personal Data Governance Framework (“Report”) and invited suggestions from the public. In this piece we have discussed the issues that should be considered by the Ministry of Electronics and Information Technology before implementing the recommendations made by Committee of Experts constituted under the chairmanship of Mr. Kris Gopalakrishnan (“Committee”).

Data sharing for sovereign purpose

  • This recommendation of the Committee has the problem of too much concentration of power in the Government’s hand. The report suggests that the government may collect and use non personal data for “national security, law enforcement, legal or regulatory purposes.” This broad language can spur state surveillance concerns, and potentially deter consumers from sharing data with government or businesses, stunting innovation and development.
  • The Committee has recognised that the government may abuse its power and should have checks and balances but no formal procedure for implementing such checks and balances have been proposed. They just have mentioneThe Report merely suggests “elaborate institutional structure” however, nowhere explained what all it there is no further substantiation of the structure. The Committee should elaborate on the steps that they should take to ensure that government does not misuse its power given under the report.

Vague concept of Community Data Protection and ownership

The definition of Community Non Personal Data is ambiguous. The Report does not provide a clear distinction between Community NPD and Public NPD. Further, Non- Personal Data often constitute trade secrets that are covered, and also pose serious questions about privacy. The paper proposes the nebulous notion of community data while failing to include sufficient mechanisms to protect the rights of the Community.

This vague concept further frustrates the concept of attribution of ownership. The Report lacks the objective basis and criteria for defining the owners of community and public NPD. As a result, this will further bear undue disadvantage to the owners of such data and they will not be able to exercise rights as may be available to them.

Inconsistency with TRIPS

India as a signatory to TRIPS gives protection to computer databases. In such a case, there is a problem of demarcation between inaccessible non-personal data which is protected as copyright under TRIPS and non-copyright non-personal data which can be used as a public resource.

Ambiguity on the flow of Non-Personal Data

The report states that “Sensitive Non-Personal Data may be transferred outside India, but shall continue to be stored within India.” The language of this is lacks clarity of procedure. There is an ambiguity in its language as in whether it means it can move abroad while a copy stays in India or that it can be processed abroad but then must be brought back to India.

Definition of Non-Personal Data is too broad

The definition of the category of non-personal data in the paper actually covers a broad variety of data. So it includes anonymised data about health, about agricultural crops on a farmer's field, and even weather data. Although grouping all these various categories is common throughout the world, it is nevertheless problematic because it does not allow people to understand the distinctive harms that may come to them.

Establishment of NPDA

The Report has merely conceived the idea of an alternate authority for regulating the usage and sharing of NPD. However, there is need of further clarification and objectivity on the role and extent of powers of such authority. A detailed description of the role of the NPDA along with the extent of its powers is required to be mentioned so as to further the object of avoiding conflicts with the Data Protection Authority (“DPA”) and Competition Commission of India (“CCI”).

This post has been contributed by Ms. Vaneesa Agrawal and Ms. Pragya Mishra.

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