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Emerging Trends in Technology & its Impact on Law 188
LAW AND TECHNOLOGY IN CONTEMPORARY
INDIA
Ashraf Azmi1
Introduction
We stand at a moment of transformation in the conditions of economic
production and human freedom a moment wrought by a cluster of technological
shifts and, in large measure, are managed through law. Law already is and will
continue to be, a major domain in which the conditions of tomorrow are
negotiated, but it cannot be thought of without understanding the technological,
economic, and social context in which it operates and the historical moment at
which it intersects with these other disciplines. A systematic dedication to
understanding how technology affects life and how the law interacts with
technology is a precondition to understanding the stakes and implications of
today's institutional battles.
What is „Technology‟?
Technology which derived ―from Greek τέχνη, techne, ―art, skill, the cunning of
hand‖, and (λογία,) -logia,‖ is the collection of tools, including machinery,
modifications, arrangements, and procedures used by humans. Engineering is a
discipline that seeks to study and design new technologies. Technologies
significantly affect human as well as other animal species‘ ability to control and
adapt to their natural environments. The term can either be applied generally or
to specific areas- examples include construction technology, medical technology,
and information technology.
Rise of Technological Economy
The networked personal computer inverts the capital structure of information
production and exchange that has been the stable fact for over one hundred and
fifty years. While the exact number is difficult to pin down, somewhere between
1 Assistant Professor, Faculty of Law, Integral University Lucknow
Emerging Trends in Technology & its Impact on Law 189
six hundred million and one billion people around the globe now own the basic
physical capital necessary to reduce information, knowledge, and culture, and to
participate in the global economy centered on them.
That means that almost one billion people on the planet now have the freedom to
decide to produce information or culture simply because they want to – they
already have access to the physical requirements and the human intuition,
wisdom, and creativity necessary to do so. They do not need a business plan to
write software to serve a need they have. If they know how to do it, they can
write it and find others who will work with them to improve it.
This is the fundamental fact proven by the dramatic success of free and open-
source software development. Over a million programmers participate in tens of
thousands of projects, the best known of which are responsible for most of the
basic functions of Internet communications, some having been adopted in the
face of strong, but ultimately unsuccessful, competition from proprietary firms.
What is Law?
Almost everything we do is governed by some set of rules. There are rules for
games, social clubs, sports, and adults in the workplace. There are also rules
imposed by morality and custom that play an important role in telling us what we
should and should not do. However, some rules — those made by the state or the
courts — are called ―laws‖. Laws resemble morality because they are designed
to control or alter our behavior. But unlike rules of morality, laws are enforced
by the courts; if you break a law — whether you like that law or not — you may
be forced to pay a fine, pay damages, or go to prison. Why are some rules so
special that they are made into laws? Why do we need rules that everyone must
obey? What is the purpose of the law?
If we did not live in a structured society with other people, laws would not be
necessary. We would simply do as we please, with little regard for others. But
ever since individuals began to associate with other people — to live in a society
–laws have been the glue that has kept society together.
For example, the law in Canada states that we must drive our cars on the right-
hand side of a two-way street. If people were allowed to choose at random which
side of the street to drive on, driving would be dangerous and chaotic. Laws
regulating our business affairs help to ensure that people keep their promises.
Laws against criminal conduct help to safeguard our personal property and our
lives.
Emerging Trends in Technology & its Impact on Law 190
We need the law to ensure a safe and peaceful society in which individuals‘
rights are respected. But we expect even more from our law. Some totalitarian
governments have cruel and arbitrary laws, enforced by police forces free to
arrest and punish people without trial. Strong-arm tactics may provide a great
deal of order, but we reject this form of control.
Exploring the Law and Technology Relationship
Law has often to deal with technologies, i.e., with human activities which,
employing the attainments of science, bring into existence new media, tools,
devices, systems which improve the quality of life of human beings.
Some examples are-
1. Law and exploitation of natural resources (energies): energies can be
exploited thanks to the emergence of modern technologies. The law regulates the
production, processing, distribution of energies and natural resources.
2. Law and food: the food chain requires the regulation of technologies related
to food to guarantee, for example, high-quality standards.
3. Law and biology: to provide a legal framework for medically assisted
procreation or for cloning we have to deal with the technologies which allow
obtaining gametes, stem cells, crossbreds, chimeras.
4. Law and medicine: some choices related to the legally significant end-of-life
issues are dependent on medical notions such as that of brain death. The same
notion of therapeutic tenacity must be measured against the available
technologies.
5. Law and information technologies: IT has made available tools such as e-
documents and e-signatures. The law must cope with these technologies to
regulate them or to make them legally available.
Utilization of Technology by Law
A. Technology can change the contents of protected legal interests, as in the case
of the right to privacy, which has been transformed by the rise of Information
Technology. The so-called technology convergence in telecommunications
swiped away the features which framed telecommunications as a natural
monopoly, opening the market to a potentially infinite number of operators,
enhancing the free competition within the sector.
Emerging Trends in Technology & its Impact on Law 191
This is also true for the vanishing distinction between article 15 and article 21 of
the Italian Constitution. Traditionally the former is enforced whenever, for
example, the freedom and secrecy of personal correspondence are at play. The
latter protects freedom of expression toward a public audience.
B. Law can also employ new technologies to pursue goals that were pursued by
other technologies in the past: this is the case of the e-document, the e-signature,
the payment of obligations through e-money, the conclusion of contracts through
the Internet, and so on. In all these examples, new rules set the possibilities of
employment of digital technologies to attain this or that goal which was reached
through other technologies in the past.
The rules arising from technologies are shaped by the features characterizing
such technologies. For example, one thing is to have rules concerning the matter
(atoms), another is to have rules concerning the bits. In some cases, this implies
the need to re-frame concepts that traditionally refer to material things (such as
ownership and possession) or to draw on new concepts (such as the ideas of title
and legitimization in the case of dematerialized financial instruments).
C. The role of technologies to help to create new commodities was true in the
past for the new value prompted by the invention of printing, from which after a
lengthy process the new right of copyright emerged. In more recent years this is
happening about data banks (of human tissues for example, but several other
examples may be offered). The law is continuously confronted with the need for
regulating new commodities which were unknown in the past.
D. The change in technologies influences also the source and the structure of the
rules. Sometimes legal systems prefer to regulate given phenomena by making
recourse to international instruments or to regulatory patterns which are not
imposed from outside (for example codes of conduct)
Data Protection Efforts in India:
But before going into any details about the data protection efforts, there arises
but one question: Why protect data?
The answer is- The need to protect data and data privacy in India is relatively
new, arising from the ever-expanding off-shoring business operations conducted
in India by overseas companies wherein personal data is exported by these
overseas companies to their off-shore agents or counterparts in India.1 If it was
not for this mushrooming off-shoring business, India would perhaps never have
Emerging Trends in Technology & its Impact on Law 192
worried much about data protection, as there are already existing provisions in
the Indian legal framework for the protection of data, albeit not at the scale at
which protection is warranted under the current circumstances.
India had been the hot-spot for off-shoring operations for foreign companies for
a long time, till concerns of data security were raised, following certain incidents
of data theft and breach of data privacy by certain Indian off-shoring companies.
These incidents made headlines in national and international media and brought
India‘s legal framework for data protection under worldwide scrutiny. While
India continues to be a hotspot for off-shoring, it cannot avoid data security
issues for much longer, as both the industry and the government have been under
tremendous pressure to enact a law for data protection in India.
Recent efforts towards data protection in India
Instances of data theft have compelled both the government and the industry to
remedy the situation as a response to international pressure, in terms of providing
some sort of framework for data protection. Some of these efforts are discussed
below.
A. Proposal to Amendment to the IT Act
Proposed Amendments to The IT Act Given growing concerns raised by recent
instances of data theft, the Ministry of Information Technology proposed certain
amendments to the IT Act, 2000. One such amendment, pertinent to data
protection, is the proposed insertion of a new Section 43A wherein sensitive
personal information would be handled with reasonable security practices and
procedures. The proposed amendment reads as follows:
43A. Where a body corporate, possessing, dealing, or handling any sensitive
personal data or information in a computer resource which it owns, controls
or operates, is negligent in implementing and maintaining reasonable
security practices and procedures and thereby causes wrongful loss or
wrongful gain to any person, such body corporate shall be liable to pay
damages by way of compensation not exceeding five crore rupees, to the
person so affected.
Explaining: -
(i) ‗body corporate‘ means any company and includes a firm, sole proprietorship,
or other association of individuals engaged in commercial or professional
activities;
Emerging Trends in Technology & its Impact on Law 193
(ii) ‗reasonable security practices and procedures‘ means security practices and
procedures designed to protect such information from unauthorized access,
damage, use, modification, disclosure, or impairment, as may be specified in an
agreement between the parties or as may be specified in any law for the time
being in force and in the absence of such agreement or any law, such reasonable
security practices and procedures, as may be prescribed by the Central
Government in consultation with such professional bodies or associations as it
may deem fit;
(iii) ‗sensitive personal data or information means such personal information as
may be prescribed by the Central Government in consultation with such
professional bodies or associations as it may deem fit. This has taken the form of
Clause 20 of the Information Technology (Amendment) Bill, 2006. However,
nothing in the proposed amendments deals with crucial aspects of data protection
such as the processing of personal data, handling of sensitive personal data, the
conditions under which data may be collected from an individual, the
precautions to be taken while collecting data, confidentiality, and security of the
processing of the data collected and so on. The proposed amendments have not
yet materialized into new provisions under The IT Act and have only recently
received the comments of the Standing Committee on Parliamentary Affairs.
B. The Data Security Council of India
The National Association of Software and Services Companies (NASSCOM) has
set up a self-regulatory initiative in data security and privacy protection called
the Data Security Council of India (DSCI). What led to the establishment of the
DSCI is the continuing effort by NASSCOM to ensure that the Indian
information technology industry has a safe environment that can be
benchmarked with the rest of the world.
The DSCI is a self-regulatory body established under the premise that the
industry, rather than the government, is best positioned to develop appropriate
data privacy and security standards as it has greater knowledge and a better
understanding of the practical commercial issues involved. It is felt that such an
approach would allow the DSCI to evolve and effectively respond to global
developments.
The DSCI would adopt global standards to move towards this end, initially
focusing on establishing its membership and evolving a code of conduct by
promoting a culture of privacy. Initially, the DSCI would promote and encourage
Emerging Trends in Technology & its Impact on Law 194
voluntary compliance with the code of conduct, gradually creating a mechanism
for enforcement of the same to establish its credibility.
The DSCI is envisaged as a non-profit organization, with its governing body
having an adequate representation of independent directors and industry
specialists. Organizations associated with data security and privacy protection
such as Information Technology (IT) and Information Technology enabled
Services (ITeS) companies, academic or research institutions and universities
can also become members of the DSCI.
C. National „DO NOT CALL REGISTER
Effective from October 2007, TRAI put in place the National ‗Do Not Call
Registry (NDNC), with the primary objective of curbing unsolicited commercial
communication (UCC). The Telecom Unsolicited Commercial Communications
Regulations, 2007, defines UCC as, ―any message, through telecommunications
service, which is transmitted to inform about or solicit or promoting any
commercial transaction about goods, investments or services which a subscriber
opts not to receive.‖
Exceptions to UCC are messages received under a contract, communications
relating to charities, etc., and communications transmitted under the directions of
the government, in the interest of the sovereignty and integrity of India. The
NDNC register will, therefore, be a database containing the list of all telephone
numbers of subscribers who do not wish to receive UCC.
CONCLUSION
A reading of the report of the Standing Committee on Information Technology
on the proposed amendments to The IT Act concerning data protection makes it
clear that while the industry and the legislators are familiar with terms like
‗personal data‘, ‗sensitive personal data, ‗personal privacy‘, ‗data privacy and so
on, there is a lot of ambiguity as to how these terms should be interpreted for
effective data protection in India.
Without an in-depth understanding of the industry‘s needs and what is involved
in the protection of data and data privacy in India, all the above efforts will
remain mere efforts. Nor would attempts to do patchwork on existing legislation,
to protect data, meet the current need for a legal framework. Emulating the
European example of data protection by distinguishing it from the protection of
Emerging Trends in Technology & its Impact on Law 195
e-commerce transactions would undoubtedly place India on the global map when
it comes to data protection.
Besides, it would also create a safe environment for foreign companies to invest
in India. Till then, it needs to be seen how long the off-shoring industry is going
to indulge India‘s baby steps towards data protection.
The rise of the networked information economy and its contributions to both
freedom and development seems to be an important and immediate conclusion of
a systematic study of law and technological change in our age. We are in the
midst, however, of a series of deep transformations in how we produce
information, knowledge, and culture and how these elements of human
knowledge will be applied to improve the human condition.
The next few decades will offer more opportunities to do the right thing, as well
as to go wrong. Incumbents will generally try to optimize law to protect their
rents and business models. But to diagnose the likely benefits or costs of new
practices, and, as a consequence, of the laws that will be proposed and opposed
along the fault lines of these transformations, one must have a good analytical
basis from which to evaluate both the old and the new and the stakes of the
transition from one to the other. This is why the study of law and technology will
be central to the understanding of human flourishing, welfare, and freedom for
many years to come
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Emerging Trends in Technology & its Impact on Law 196
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