“The big question is do we even need aa non-personal data authority? Can the objectives not be achieved by sectoral data portability rights and open banking type solutions?” an individual requested at MediaNama’s dialogue on the Governance of Non-Private Knowledge held on August 6 and seven. “A lot of things mentioned in the report don’t have adequate definition. If you don’t know what they mean, then it becomes extremely difficult to design things for an NPD authority, and what powers will it have, along with the necessary checks and balances,” one other particular person stated.
Folks additionally spoke about whether or not entry to such form of knowledge can really assist ‘Indian’ enterprise to develop, and extra importantly, whether or not it’s proper on the knowledgeable committee’s half to deal with such knowledge as a “common resource”.
The dialogue was held with help from Centre for Communication Governance (NLU Delhi), Fb and FTI Consulting. The dialogue was held beneath the Chatham Home Rule. All quotes have been edited for readability, brevity and anonymity.
Is there a necessity for a non-personal knowledge regulator?
A number of elements within the report are vaguely outlined which makes a regulator’s job troublesome: The report begins by speaking about case for regulating knowledge. That is actually necessary as a result of what the [non-personal data] authority will do is determined by this. There are some phrases that it makes use of that I fairly am undecided about. For instance, it makes use of the phrase ‘unlocking value’ a number of instances. I feel there isn’t a clear articulation of what unlocking worth means.
“One of the cases for regulating data is examining collective privacy. The report also admits that we don’t know particularly what it means. Then my question will be, why are we wielding state power when we ourselves don’t know what collective privacy means. From designing of an authority point of view, first we want to get some of these terms right, before we start giving the state so much power to do something,” the particular person added.
“Similarly, the report says that the NPD authority needs to have an enabling role and ensure that the data is shared for sovereign, social welfare, economic welfare, regulatory and competition purposes. But if you start unpacking each of these words, what is social welfare, what is economic welfare, what is regulatory and competition purpose, which competition law is already not solving,” they requested. “It makes me really wonder about what is it that the NPD authority is trying to do and what the goals of this authority are”.
What precisely is the target of the NPD authority? If the targets are to stop abuse of dominance on account of community impact, or to cut back boundaries to entry, shouldn’t it come from making adjustments to the Competitors Act, the particular person requested. “When we overstep existing regulators, we tend to introduce a lot more discontinuities and a lot more glitch in the system,” they added.
“If the current competition authority cannot penalise vertical implication, cannot successfully remedy network effects, how are we expecting this regulator [NPDA] to go ahead with it. The logic is just not consistent with the law of the land, and then unless there is some extremely new toolkit other than regulations that they are thinking of, we will land up in the same problem. If that case wouldn’t stand in the competition commission, how is this regulator actually entertaining those things.”
One other particular person remarked that within the Indian banking area, there’s a number of infrastructure being created to facilitate or allow the circulate of knowledge. “If we have great access controls there and great privacy by design controls there, then those could solve problems better at the sectoral level,” this particular person stated. Even for sectors that don’t have a sectoral regulator, ministries and different authorities departments can do the job, they added.
Clear regulatory seize: “Even when none of the mechanisms are set out, I see a regulatory capture already. The reason that I say that is, at a couple of instances in the report, it says that data trustees will actually suggest the NPD Authority what enforcement should happen, soft law regulation can be suggested by data trustees. The regulator will make its decisions regarding legitimate data sharing request in consultation with data trustees. And it’s no fluke that the kind of examples that we have seen in data trustees in the report are Ministry of Health, and department of transport. It’s like all principles of admin law flying in your face right. The whole point of regulation is to have distance from the government and have like an objective entity,” an individual stated.
Problems with jurisdiction: “I do find that there are jurisdictional issues,” an individual stated. “Some of these questions, they belong to the competition commission, they belong to the privacy, data protection authority. There are also jurisdictions in terms of territory. Somewhere in the report I read that non-personal data belonging to Indians and Indian communities, so, basically, it also means NASA doing quarter level testing for India and giving us those pictures, satellite imagery of water levels in rivers, that’s also non-personal data of India. Where is the jurisdiction ending and who all are they imagining to be regulated by. It’s really a super regulator, it’s the god of all,” they added.
There are additionally points round home jurisdiction, this particular person stated. “Banks can be a data business, hospitals can be a data business, all of these entities can be a data business. So, I think the big question then is what is the kind of capacity and what is the kind of role that we are investing in this particular regulator,” they remarked.
NPDA vs DPA: When requested whether or not the proposed knowledge safety authority (DPA) within the knowledge safety invoice can be sufficient to manage using non-personal knowledge, a speaker stated that “human derived NPD belongs to the DPA as a result of we do perceive that re-identification is mainly a ticking bomb.
Can non-personal knowledge really assist ‘Indian’ companies?
Unclear how the framework will foster ‘innovation’: The report additionally talks loads in regards to the regulator attempting to create certainty and incentives for innovation. And I wish to push again right here and say that certainty comes from coverage and regulation, it doesn’t come solely from knowledge alone. And the form of certainty questions that we’ve been dealing in India are, out of the blue one thing will get banned, then there’s sudden retrospective taxation, out of the blue a authorities monopoly is established, out of the blue the taxman is knocking at your door for one thing that looks like a really apparent revenue slash income to you, however you need to now begin explaining the whole lot to the taxman.
Knowledge as ‘property’: The classification of “data as infrastructure”, within the report is a bit “hasty”, they added, because it “does not unpack what infrastructure actually means and what kind of infrastructure this is and therefore amenable to which kind of model of operation. I think that, that’s not just about data, but in the overall space when we are talking about digital infrastructure, somehow the word infrastructure seems to have a mythic quality to it where suddenly you say ‘infrastructure’ and then you think that it has to be owned, operated by government,” they remarked.
“The regulatory texture that they are proposing here is how you would regulate something that has clearly established property rights. Like the entire posture, the entire toolkit that we are referring to in terms of thresholds for classifying data, businesses or audit requirements or disclosure requirements, all of those things work in a world of capital, in a world of banking, in a world of companies, but not something as contextual as data and not something with as many overlapping rights with data right,” one other particular person remarked.
Knowledge will not be a ‘natural resource’: There’s a number of analogy between pure assets and knowledge which will get used on this area, the primary speaker stated, including that India’s insurance policies on pure assets are “messed up”. “So, whether it is the state expropriation of natural resources or whether it is the way private sector can be given a free hand on natural resources, both have been detrimental to how we have dealt with natural resources in this country,” they famous.
“If we are classifying data as a natural resource and if we want to go into that direction, then I would say certainly, the lessons that we have to draw from our own experience is what not to do instead of what to do. And I would really caution again in terms of thinking of data as a natural resource or a common resource because to my mind, the analogy doesn’t fit that well,” they added.
Speaking about “data as commons”, one other particular person stated that “even for commons to exist, we need to have either rights over data or see data as property. It needs to be something that can be commonly held. And so, that can get us in a little bit of problems as well because if we go the property direction or an ownership direction, we may inadvertently lead to into more of an ‘data as oil space’”, they stated.
Indian startups have greater issues than simply knowledge: Indian startups have issues by way of a degree taking part in subject that transcend how a lot knowledge they’ve, this speaker stated. Startups face points like licensing, entry boundaries, tax regulation, and tax administration. These hurdles are the explanations startups are incorporating in London or Singapore, the particular person stated. “The reason that they are not here is not because they lack data or data is somehow a big concern. We have deeper problems which matter for the start-up ecosystem, and I am not sure that data is one of them,” they stated.
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