India’s Sovereign Control on NRI Data - ICN INDIA

India’s Sovereign Control on NRI Data

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By: N K Mathur

NEW DELHI : Let us not remain under a notion that India has sovereign control on internet over its soil. Let us not think that we are masters of whatever electronic communications travel over India’s geographical domain.

Yes, that is true! And this despite the fact that our Indian Telegraph Act clearly stipulates that the Central Government shall have exclusive privilege of establishing, maintaining and working communications within India. The International Telecommunication Regulations also mention that each country shall have sovereign right to regulate its telecommunications. However, internet is a global network, without a central governing body, encompassing many countries and autonomous networks, each setting and enforcing its own policies and therefore should be looked at carefully. We must be conscious of the fact that all data travels via the internet.

A Look at Data

The world’s most valuable resource today is Data – data is now as valuable as oil used to be till a few years ago. It is data that fuels the modern economies; it is the big datatech companies that stand tall and are among the wealthiest corporate. Unlike oil which is a limited resource data is unlimited and keeps growing. Data can be collected and used in detail or in a cursory manner. Data, as we know, is not limited by any geographical constraints: it is accessible from any part of the world to anyone in any corner of the globe. Moreover, data can be reused any number of times there is no apparent degradation; it can in fact also be enhanced and updated keeping it current
with more useability.

Once ‘relevant’ data as decided by an individual or an Organisation, is collected it remains somewhat free from biases – bias sets in choosing which elements would be included. The same data set could be analysed in several different styles depending on the purpose of the Organisation collecting and analysing it. It is becoming more and more specialised every day.

The UN and ITU

In view of its multi-jurisdictional nature of internet and data, the United Nations (UN) convened Internet Governance Forum (IGF) in order to discuss multi-stakeholder public policy issues related to key elements of internet governance however no final consensus could emerge. Another key decision-maker in the field of internet is the International Telecommunication Union (ITU), the UN specialized agency for information and communication technologies (ICT). In addition to 193 member states, ITU membership includes ICT regulators, and over 700 private companies and leading academic institutions. ITU however continues to play an active and constructive role in development of internet despite no general agreement in its multilateral mode. The dissenting nations have been advocating for a multi-stakeholder model which seeks to bring all stakeholders, including government and private sector, together to participate in decision making.

Control Functions

An objective study indicates that control of the internet which was in the hands of the US Government (although it abdicated its control in September 2016) is still being more or less US managed. India should be keen on seeking a larger determinate role in the control functions. Mere location of root servers in India – or other select countries- would not serve any purpose unless they are allowed a role in control and management. With its geo-political status it should be a member on the controlling body.

The Indian Government has expressed itself towards a multi-stakeholder model, wherein the Government would be represented in decision-making forums but shall undertake consultations at national level with stakeholders while formulating the country’s position. It appears that Governmental discussions related to internet governance have been, in the past, side-tracked by vested interests in the name of “multi-stakeholder consultation”. Today, this term is sought to comprise some unrepresentative groups supported by vested interests. Almost all similar international organisations started on multi-lateral model. Later on, they are pressured to take cognizance of other in-country bodies and ultimately convert into multi-stakeholder style. Intelsat and Inmarsat are examples which are, formally, multilateral but in actual practice they have become multi-stakeholder in concept. The present position is that India has apparently lost control on electronic communications over its territory – the present international regime of internet governance having been entrusted to international multi-stake holder system. However, certain other Nations have adopted measures that enable exercise of such regulatory control in regard to their domestic traffic.

Possible Mode

From sovereignty and geopolitical considerations, it would be desirable that India, too, acquires effective control on electronic communications including internet over its territory – which appears technologically feasible. Such control on communications is the national prerogative even in peace-time, when it embraces all walks of nation’s life, and can certainly not be compromised due to its strategic importance in times of emergency. Hence to safeguard national interest at all times, certain policy measures need to be adopted. Here, it should also be recognised that a major portion of communications is not only voice, but in data form, for which the world utilises the internet, a packet data network, deploying open system interconnection. However, with Internet governance having been entrusted to a multi-stakeholder body, India has perhaps compromised the sovereignty aspect enshrined in our Act and in the International Regulations. Incidentally, there is also no effective representation of India on the Board of the Body which, in effect, controls the vital activities in this area –namely the International Consortium for Assignment of Names and Numbers (ICANN).

Possible Structure

What should be the structure of each nation’s representation in the governing Body based on multi-stakeholder model may now be addressed. Fundamentally, the Government of each State (Country) is the representative Body and must have the final say. The Government Representative – preferably at Minister level – would be assisted by a few, designated representatives selected from out of the major stakeholders – the industry, study groups, academia, licencees, society-reps, policy-makers etc. This should constitute our (and any country’s) representative delegation.

Fundamentally, the term civil society primarily means the citizen rather than such structured groups who might have vested interests. Decision-making must be on fast- track: 3 to 6 weeks decision time depending on the type of issue. The basic objective in decision making should be: benefit to society. The State’s stand on an issue should be determined on the basis of broad consensus. The voting strength in the multi-stakeholder Body could be in proportion of population of each country, possibly one vote per million with a maximum of 10 and, of course, with a minimum of one vote.

The Organisation itself needs to be located in a rather neutral country like Switzerland, New Zealand or Singapore. India should also take into account the possibility that certain powerful countries might work out some arrangement that meets their concerns and could thereafter be forced upon other countries as ‘fait accompli’. It is therefore of paramount importance to take care of India’s status and concerns in whatever international regime for Internet governance is in place.

Let us not overlook the fact that India’s NRI data could be a gold mine – a coveted resource – and all efforts must be made towards its control. India is formulating a privacy law which includes data localisation provisions. However, this alone could be inadequate regulation and would fall short in capitalizing on all the features that data has to offer. This would afford a tremendous boost to Atmanirbhar Bharat. India has large data to offer and can become a leader in data usage and with the help of soft regulation offering maximum benefits to humanity.

N K Mathur
Chairman Infocom Think Tank
Former Civil Servant, Govt of India
(views are personal)

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