Stakeholders’ responses to the TRAI privacy consultation paper (Part III of XII): Cross-border flow of data

This is the third post, in a twelve (12) part series of posts, to map the opinions of all the stakeholders on the basis of their responses to the consultation paper on Privacy, Security, and Ownership of the Data in the Telecom Sector (Consultation Paper) published by the Telecom Regulatory Authority of India (TRAI) on 9th August 2017.

In order to address key data privacy and security issues, the TRAI framed twelve (12) questions and invited comments to these questions. In total, fifty-three (53) stakeholders submitted detailed responses. Comments of all stakeholders are available here. Our comments to the Consultation Paper are available here.

“Q.12 What are the measures that can be considered in order to address the potential issues arising from the cross-border flow of information and jurisdictional challenges in the digital ecosystem?”

The concerns in relation to cross border flow of data and data localisation, raised by stakeholders in their responses to abovementioned question 12 of the Consultation Paper, broadly correspond to the issues raised under chapter 8 and chapter 9 of the White Paper of the Committee of Experts on a Data Protection Framework for India (White Paper). Chapter 8 engaged with a number of issues on cross-border flow of data including international practices, adequacy test, binding corporate rules, model contractual clauses and privacy shield. Chapter 9 dealt with a diverse range of issues including protecting rights of the data subjects, preventing foreign surveillance, easy access of data in support of law enforcement and national security and impact on Indian start-up ecosystem in context of data localisation. The mapping of stakeholders’ opinion, and the analysis of such mapping, has been conducted in context of the issues raised under chapters 8 and 9 of the White Paper, particularly the concerns related to rights of the data subject, foreign surveillance, law enforcement, and impact on the economy, development, and innovation.

The mapping of stakeholders’ opinion, and the analysis of such mapping, is based on the interpretation of all the responses to the Consultation Paper. A few details may have been lost during the interpretation of the responses. All suggestions, requests, and comments, to rectify any such ommission(s) or error(s) in this exercise, are duly invited.

The following table projects the stance of the stakeholders to predominant issues concerning cross-border data flow (CBDF) and data localisation:

*Industry Associations: IAMAI – Internet & Mobile Association of India, ACTO – Association Of Competitive Telecom Operators, ACT – Association for Competitive Technology, ASSOCHAM – Associated Chambers of Commerce and Industry of India, COAI – Cellular Operators Association of India, GSMA – Groupe Speciale Mobile Association, ISPAI – Internet Service Providers Association of India, NASSCOM-DSCI – National Association of Software and Services Companies – Data Security Council of India, USISPF – U.S. India Strategic Partnership Forum, ITI – Information Technology Industry Council, USIBC – US India Business Council, BSA – Business Software Alliance, EBG – European Business Group Federation, BIF – Broadband India Forum, ISACA – Information Systems Audit and Control Association, iSPIRIT – Indian Software Product Industry Round Table.

**Telecom Service Providers: AT&T Global Network Services India Pvt. Ltd., RJIL – Reliance Jio Infocomm Limited, MTNL – Mahanagar Telephone Nigam Limited, TTL – Tata Teleservices Limited, BSNL – Bharat Sanchar Nigam Limited.

***Civil Society Organisations/ Think Tanks: NLUD – National Law University, Delhi,  IDP – Internet Democracy Project, CIS – The Centre for Internet and Society, ITfC – IT for Change, SFLC – Software Freedom Law Centre, FCSO – Federation of Consumer and Service Organization, CUTS – Consumer Unity and Trust Society, CGS – Consumer Guidance Society, CPA – Consumer Protection Association, IFF – Internet Freedom Foundation.

INSIGHTS

• 37.73% of the stakeholders stated that restrictions to CBDF would hamper the growth, development, and functioning of the digital economy.
• 3.77% of the stakeholders opined that restrictions to CBDF would not hamper the growth, development, and functioning of the digital economy.
• 58.49% of the stakeholders did not provide a clear stand on whether CBDF would hamper the growth, development, and functioning of the digital economy.

Would restrictions to CBDF hamper the growth, development, and functioning of the digital economy?

Graph illustrating the breakdown of responses

• 16.98% of the stakeholders agreed that certain categories of data should be stored locally.
• 20.75% of the stakeholders responded against certain categories of data being stored locally.
• 62.26% of the stakeholders did not provide a clear stand on whether certain categories of data should be stored locally

Should certain categories of data be stored locally?

Graph illustrating the breakdown of responses

Detailed Mapping of Responses

A detailed mapping of the responses of all the fifty-three (53) stakeholders, including the stances of the stakeholders, their response to question twelve (12) of the Consultation Paper and the suggestions they have made to the TRAI in view of the question, is available here.

[This post is authored by Nehaa Chaudhari, Public Policy Lead, and Pushan Dwivedi, Associate, with valuable contributions from Gokula Krishnan and Sushma S. Babu during their internships with TRA].