August 2019
The Promise of PublicInterest Technology: In India and the United Statesby New America's U.S.-India Fellows
Richard Abisla, Subhodeep Jash, Aditya K. Kaushik, Sylvia Mishra, Ananth Padmanabhan, Pranesh Prakash, Tanvi Ratna, Joshua Simons, Madhulika Srikumar, & Kaliya Young
Last edited on August 01, 2019 at 3:20 p.m. EDT
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About New America
We are dedicated to renewing America by continuing the quest to realize our nation’s highest ideals, honestly confronting the challenges caused by rapid technological and social change, and seizing the opportunities those changes create.
About the U.S.-India Fellowship
The India-United States Fellows Exchange is a collaboration between the Global Studies Program and the Fellows Program at New America. It aims to identify technologists from industry, government, and civil society; analysts of technology from academia and the media; and government regulators from state, local, and national levels to participate in a unique and timely fellowship exchange. This program will bring Fellows from India to the United States, and Fellows from the United States to India, in order to devise novel technology-based solutions to policy challenges. The aim of this program is to enable both countries to better harness technology to improve the lives of their citizens, and to improve and strengthen the bilateral relationship between India and the United States.
About Fellows
New America’s Fellows Program invests in thinkers—journalists, scholars, filmmakers, and public policy analysts—who generate big, bold ideas that have an impact and spark new conversations about the most pressing issues of our day.
About International Security
The International Security program aims to provide evidence-based analysis of some of the thorniest questions facing American policymakers and the public. We are focused on South Asia and the Middle East, extremist groups such as ISIS, al Qaeda and allied groups, the proliferation of drones, homeland security, and the activities of U.S. Special Forces and the CIA.
Acknowledgments
The India-U.S. Fellowship team would like to sincerely thank the Ford Foundation for its vision, trust, and support throughout this process. A sincere thanks to Pradeep Nair and Seema Sharma for their support and enthusiasm both before and during our fellowship.
Thank you to our partner in India, the Observer Research Foundation, for hosting our cohort while in New Delhi, and to the Selection Committee for supporting this year’s application process.
We would also like to thank a number of New America teams that helped to shape the experience of the 10 Fellows while they were in residence: Blockchain Trust Accelerator; Cybersecurity Initiative; Future of Property Rights; International Security; and Resource Security.
Open Technology Institute; Ranking Digital Rights; Political Reform; Public Interest Technology; and Resource Security. Thank you to your staff for making time to meet with the cohort of Fellows throughout the research period, further building out their network, and providing them with thought leadership.
Thank you to the wider New America team for supporting our Fellows by attending open events we had with them, joining us on our Fellows Day at New America, and helping answer any questions they had. A huge thank you to Anne-Marie Slaughter, Tyra Mariani, and Anish Goel for their collective support and encouragement throughout the entire fellowship.
Thank you to our colleagues supporting events, communications, production, and human resources. You carried us through the process, and we are extremely grateful for the time and effort you have put into supporting the fellowship, convening event, and final papers.
A huge thank you for the collaborative effort of a number of our current and former colleagues throughout this process: Catherine York, Emily Schneider, Afua Bruce, Joanne Zalatoris, Maria Elkin, Angela Spidalette, Narmada Variyam, Clarke Reeves, Dee Snyder with Connoisseur Travel, Robin Bradley, Elizabeth Pankova, and Sumaita Mulk.
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About the Author(s)
Richard Abisla is a 2019 India-U.S. Fellow at NewAmerica. Abisla is currently the Portfolio Manager forthe Americas at Caravan Studios, a division ofTechSoup.
Subhodeep Jash is a 2019 India-U.S. Fellow at NewAmerica, where he focuses on civic engagement thatcombines technology with active citizenship.
Aditya K. Kaushik is a 2019 India-U.S. Fellow at NewAmerica. Kaushik works as a project scientist atDivecha Centre for Climate Change at the IndianInstitute of Science (IISc) in Bangalore.
Sylvia Mishra is a 2019 India-U.S. Fellow at NewAmerica. Mishra will research civilian drones andIndia and the United States’ potential role in shapingnew drone applications, a project with applications inwider public interest issues.
Ananth Padmanabhan is a 2019 India-U.S. Fellow atNew America and a fellow at the Centre for PolicyResearch. His research interests are in the fields oftechnology policy, intellectual property rights, andinnovation scholarship.
Pranesh Prakash is a 2019 India-U.S. Fellow at NewAmerica. Prakash will spend his fellowship workingon policy and standards relating to the Indianparliament's record-keeping and legislative process.
Tanvi Ratna is a 2019 India-U.S. Fellow at NewAmerica. Ratna is a policy analyst and engineer,managing blockchain projects with a leading globalconsulting firm, based in India.
Joshua Simons is a 2019 India-U.S. Fellow at NewAmerica. Simons, a Sheldon Fellow in Government atHarvard University, is writing about the politics andethics of machine learning.
Madhulika Srikumar is a 2019 India-U.S. Fellow at New America. Srikumar will be working on India-U.S. data sharing for law enforcement and explore the underlying privacy standards for access to electronic data in the two countries.
Kaliya Young is a 2019 India-U.S. Fellow at New America. Young is one of the world’s leading experts on decentralized or self-sovereign identity technology
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Contents
Foreword
The Development of Smart Water Markets Using Blockchain Technology(Aditya K. Kaushik)
Civilian Drones: Privacy Challenges and Potential Resolution (AnanthPadmanabhan)
The Privacy Negotiators: The Need for U.S. Tech Companies to MediateAgreements on Government Access to Data in India (Madhulika Srikumar)
Governing Data: Non-Discrimination and Non-Domination in Decision-Making (Joshua Simons)
Open Transit Data in India (Richard Abisla)
Blockchain Regulation in the United States: Evaluating the overall approach to virtual asset regulation (Tanvi Ratna)
Improving India’s Parliamentary Voting and Recordkeeping (Pranesh Prakash)
India and the United States: The Time Has Come to Collaborate onCommercial Drones (Sylvia Mishra)
Civic Futures 2.0: The Gamification of Civic Engagement in Cities(Subhodeep Jash)
Key Differences Between the U.S. Social Security System and India’s AadhaarSystem (Kaliya Young)
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Foreword
New America and the Ford Foundation recognized a unique and timely
opportunity to create a fellowship exchange initiative between public interest
technology practitioners in India and the United States. The 2019 exchange
brought Fellows from India to the United States and sent Fellows to India from
the United States with the aim of enabling Fellows from both countries to better
harness technology to improve the lives of their citizens. The Fellows were
technology practitioners from industry, government, and civil society as well as
analysts of technology from academia and the media, and governmental
regulators.
Too often, technical experts who understand the details of how a technology
works lack the expertise or critical distance necessary to effectively evaluate, and
thoughtfully shape, the policy impact of their work. Developing a better
understanding of technology’s impact is a precondition for formulating effective
and just public policy.
Each Fellow we selected possessed unique experience and expertise, which
enabled them to devise novel technological solutions to public problems, and to
analyze the effects of technology and of technology policy in new ways over the
course of their eight-week research program.
Our first batch of applicants were diverse in talent, experience, education, and
physical location. 27 percent of our applicants were female, 95 percent had a
degree beyond a Bachelor’s or equivalent, and 62 percent of applicants came
from India. Most candidates put forward potential projects in technology policy,
privacy, blockchain, future of work, and biometrics. Through a robust selection
process, our final cohort consisted of 10 Fellows, four women and six men, and
seven were from India and three were U.S.-based.
We had a series of goals for this cohort:
1. To increase knowledge and awareness of technology policy challenges
and effective technological solutions to social problems in India and the
United States
2. To increase knowledge and awareness in India and the United States of
both the successes and failures of initiatives to apply data science to public
problems
3. To increase awareness within the United States and India of successful
local and regional technological tools addressing public policy challenges
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Our 2019 cohort's projects, as you’ll see in the following research papers, focused
on a wide range of issues: Open data and public transit in India; civic engagement
through technology and gamification; blockchain-based solutions used for water
management; civilian drones and the role that India and the United States have
in shaping new drone applications; privacy in drone systems and evaluating the
implications of this technology on personal data; policy and standards relating to
the Indian Parliament’s recordkeeping and legislative process; designing
effective regulatory frameworks for blockchain; the politics and ethics of
machine learning; data sharing between India and the United States for law
enforcement purposes and the underlying privacy standards for access to this
electronic data; and the Aadhaar program in India.
Our approach to the fellowship was extremely hands-on and tailored to the
unique backgrounds of our cohort. We began with one week of programming at
the start of the fellowship in New Delhi, which included a full-day at the Ford
Foundation with moderated discussions about the Fellows’ work, as well as
keynote conversations. A second day was held at a partner organization—the
Observer Research Foundation—with high-level industry speakers from
organizations such as Facebook, Centre for Policy Research, The World Bank,
Dalberg, and Mozilla.
Through a series of activities during the research exchange period, we supported
the formation of a cohesive spirit of shared enterprise among the Fellows in the
cohort in a way that ensured that the whole was more than the sum of the
individual parts. We hosted events where the cohort met as a group with leading
policymakers, experts and analysts working on public policy issues, and we
organized individual meetings and interviews between Fellows and experts in the
United States and India who could help them make progress on their projects.
The second week of full programming for all 10 Fellows took place at the end of
the fellowship in Washington, D.C. Events included a full-day program for all
Fellows to highlight their research findings on moderated panel discussions at
New America with industry experts. In addition to the moderated discussions
with Fellows, invited speakers included U.S.-based policy experts for keynote
conversations. Fellows also participated in research workshops, and high-level
meetings.
Further, there were industry experts across New America, representing programs
and initiatives (Blockchain Trust Accelerator, Cybersecurity Initiative, Future of
Property Rights, International Security, Open Technology Institute, Ranking
Digital Rights, Political Reform, Public Interest Technology, and Resource
Security) that were available to meet with the cohort of Fellows throughout the
research period, further building their professional network.
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In addition to their research papers, Fellows wrote articles, participated on
panels, and took advantage of other media opportunities, and had meetings with
technologists and policymakers in both countries.
We hope that you will enjoy reading their research papers, and believe that this
anthology of work will prove helpful to India and U.S. policymakers and
researchers alike.
Peter Bergen, Vice President for Global Studies & Fellows, New America
Pradeep Nair, Regional Director, Ford Foundation
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The Development of Smart Water Markets UsingBlockchain Technology (Aditya K. Kaushik)
Aditya K. Kaushik is a project scientist at Divecha Centre for Climate Change at the
Indian Institute of Science where his work revolves around developing applied research
initiatives and assisting in science policy communication in the area of water. Kaushik
holds a master of science degree in electrical engineering from the University of
Southern California and a master of arts degree in law and diplomacy from the
Fletcher School at Tufts University.
Acknowledgments : The author would like to thank New America for providing an
opportunity to part of the 2019 India-U.S. fellowship program. This paper would not
have been possible without contributions from Ahmed Jawad, Anik Bhaduri, Allison
Price, Awista Ayub, Christopher Mellon, Jennifer Brody, Keerthana Chandrashekar,
Melissa Salyk-Virk, Sharon Burke, Tomicah Tillemann, Yulia Panfil and the 2019
India - US fellows. The author would also like to express his gratitude to the New
America editing, publishing and the communications team for their support.
Introduction
A significant reduction in the quantity of freshwater and deterioration of its
quality has pushed the world towards a global water crisis. Lack of sufficient
water, defined as water scarcity, is exacerbated by current global trends of
rampant population growth, rapid urbanization, a rise in consumerism, and
climate change (see Figure 1). According to the United Nations World Water
Development Report 2018, about 46 percent of people in the world live in water
scarce regions at least one month per year. This figure is predicted to rise to about
51–55 percent by the year 2050. Meanwhile, the global population is estimated to
rise by 32 percent by the year 2050. Within this, the global urban population is
expected to increase by over 80 percent, thus, increasing the global water
demand, which is estimated to rise by 30 percent by the year 2050. Water
scarcity is inextricably interwoven with the health, food, and energy sectors
which has the capacity to significantly disrupt the economic, social,
environmental, and political landscape, extending the problem across multiple
development sectors.
Traditionally, the problem of water scarcity has been addressed by augmenting
the supply side through a structural approach, such as building dams and
reservoirs. Supply-side augmentation has yielded tremendous benefits vis-à-vis
access to water and water services but it has also been environmentally
damaging. Policymakers and city planners are increasingly looking at
nonstructural demand-side solutions, such as managing water allocations, to
ensure more efficient use of resources to complement the traditional structural
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approaches. In water reallocation projects, the movement of water from
abundant areas to water-scarce areas tries to adjust the unequal demand for
water over a geographic jurisdiction. Typically, centralized governmental
institutions are responsible for water reallocation. These institutions are the main
suppliers of water and they predict demand-side responses and while also
determining supply and distribution costs. They respond to policies designed by
city planners and seldom to the needs of individual buyers. This is partly because
individual buyers are unable to signal their needs to the suppliers through such
centralized ecosystems. Incorrect mapping of supply and demand requirements
lead to the inefficient allocation of water resources. In addition, water
management and its use result in several negative externalities. It is susceptible
to problems related to collective action, free rider issues, and wastage.
Water markets where water assets are treated as a tradable commodity are cited
as a solution to better allocate water and address the problem of water scarcity.
Development of any market, especially to manage a good like water, is
susceptible to market distortions typically caused by information asymmetry and
high transaction costs. These market distortions lead to barriers to trade and thus
prevent markets to function efficiently. As water is unlike any other commodity
and is essential for life, these market distortions can incur a significant social
cost. Thus, water markets have been historically a complicated economic policy
instrument to implement. The purpose of this paper is to explore how
blockchain-based solutions, based on the cities of Los Angeles and Bengalaru as
case studies, can be used by regulators to reduce information asymmetry and
high transaction costs and help in the development of efficient and transparent
water markets.
Figure 1: Water scarcity in 2010 (upper image) and projected water
scarcity in 2050 (lower image)
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Source: Burek, P., Y. Satoh, G. Fischer, M. T. Kahil, A. Scherzer, S. Tramberend, L.
F. Nava et al. "Water Futures and Solution: Fast Track Initiative (Final Report)."
IIASA, Laxenburg, Austria (2016). http://pure.iiasa.ac.at/id/eprint/13008/1/
WP-16-006.pdf
What are Water Markets?
A water market is a medium that allows buyers and sellers of a water-related
good (wastewater, rainwater, groundwater, water rights, or entitlements) to
interact and facilitate an exchange. The primary purpose of a water market is to
facilitate efficient allocation of water resources and provide a clear measure of
the value of water to incentivize conservation. The theory of water markets is
based on the principle that trading water allows for better economic efficiency
between buyers and sellers by allocating water resources in accordance with the
strength of the buyer’s water demand. It also allows for better accounting of
externalities like pollution and waste by allowing consumers to respond to
changes in the operating environment. Water markets allow users with high
marginal value to purchase water from users with low marginal value. In other
words, water is transferred from low water use areas to high water use areas,
allowing for allocation efficiency. The interaction between buyers and sellers and
traditional market forces determine the price of water. The price of water is
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influenced by environmental and economic considerations. When markets are
functioning efficiently, the market price of water sends signals and thus
incentivizes buyers and sellers to increase or decrease their demand and supply.
Typically, water is managed as a service industry where the price of water is
determined by governing agencies who are unwilling to change the price based
on quantity or quality available. Thus, such a system leads to distortions where
water is being underpriced and over-consumed. Some of the more successfully
functioning water markets exist in the United States (California’s Central Valley),
in Australia (the Murray-Darling Basin), and in Chile (the National Market).
Water markets are typically created to either meet additional water demands, to
limit water use, to improve economic productivity and/or to protect natural
ecosystems.
Conditions Necessary to Create Efficient Water Markets
Symmetric information exchange between buyers and sellers
Information asymmetry revolves around decisions made during transactions. In
a water market setting, underlying gaps in the data ecosystem and institutional
mechanisms contribute to three kinds of information asymmetries. First, there is
a data inequality issue. For example, some participants might have better access
to data than others, or the data that is available is of bad quality, or data is
available but important data is hidden away, thus leading to adverse selection.
Adverse selection occurs when some participants are able to make better
decisions than others due to access to certain information. For instance, a seller
of a treated wastewater has more information about the product quality than the
buyer, thus putting the buyer at a disadvantage. The buyers will be unable to
decide whether the price quoted is optimal or not vis-à-vis the quality of water
supplied. Adverse selection can act as a barrier to entry for new buyers and can
also result in bad quality goods weeding out good quality goods over time.
Second, when the data ecosystem is susceptible to tampering and institutional
infrastructure does not have the necessary checks, balances, and penalty
enforcement mechanisms, it can lead to the problem of moral hazard. The
moral hazard problem occurs when entities participating in a trade transact in
bad faith, provide misleading information, or change behavior post-contractual
agreement. For instance, during a transaction, one of the parties can
misrepresent the quality of the product and the other party is unable to validate
the quality, thus promoting mistrust and perpetuating opaqueness in water
markets. Third, the creation of monopolies of knowledge can lead to severe
distribution effects. For instance, a large buyer of a water good, by virtue of
access to more and better information, can affect the price and quantity of the
water traded. Thus, such information asymmetries lead to market failures.
Symmetric information exchange between buyers and sellers is a necessary
condition for the creation of efficient water markets.
Low infrastructure and transaction cost
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Development and maintenance of a water market come with associated costs.
Infrastructure costs include: 1) Initial cost of setting up an enabling mechanism
of water markets; 2) Development and deployment of water entitlements; 3)
Connecting buyers and sellers; 4) Monitoring and evaluation of water use and
externalities; and 5) Enforcement mechanisms for penalty and reward.
Transaction costs include: 1) Participation fees; 2) Information search costs of
willing buyers and sellers; 3) Negotiation and bargaining costs; 4) Cost of
registration for an exchange; 5) Enforcing contracts; and 6) Cost of checking the
veracity of the product. High infrastructure costs and associated maintenance
costs act as a barrier to setting up a water market. High transaction costs can
lead to thin markets.
Stringent regulation and distribution of water entitlements
Regulators set the framework and rules for establishing a water market. They
play a key role in identifying and vetting participants, issuing water rights,
administering trade, monitoring and evaluating water use, and externalities; and
developing enforcement mechanisms for deterring rule breakers. Regulation is
subject to bureaucracy and corruption that can prevent water markets from
functioning effectively. In a water market setting, if there are different rules for
different participants, and if the buyers and sellers do not perceive equal
opportunity gains from transactions, then a market failure can occur. A robust
regulatory mechanism with necessary checks and balances is necessary for
developing, implementing, managing, and sustaining a complex economic
instrument such as a water market.
Water entitlements are tradable rights held by users for the exclusive use of a
water resource as defined by the regulators. Clarity over water rights and a
history of water assets are a necessary condition for the functioning of a water
market. Information asymmetry and high transaction costs lead to significant
market distortions in any market. Its effects are even more magnified when
managing water assets in a market-based setting. A robust regulatory process
along with a clear system of water rights is necessary to overcome these
distortions in order to create a sustainable water market.
Blockchain Solution and Analysis
Traditionally, in a regulated market place, market distortions such as information
asymmetry and high transaction costs are tackled through a system of
institutional solutions such as: 1) The establishment of norms and standards that
act as binding rules and requirements vis-à-vis processes and quality of the
goods; 2) The disclosure and transparency mechanism that requires participants
in a market to report process adopted, quality of product produced, cost
associated, and so on; 3) The monitoring and traceability provisions that allow for
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tracking of products, quality, and liability allocation; and 4) Contingent
contracts that allow for a trade to be completed when specific conditions are met.
However, the effectiveness of these institutional solutions depends on several
intermediaries, an individual’s ability to access these intermediaries, an ability to
leverage the available data, and the integration of several disparate systems and
stakeholders. In addition, these solutions are susceptible to inefficiencies,
corruption, bureaucracy, human errors, and tampering.
In order to make these institutional solutions more resilient and adaptive, as well
as make regulators more accountable, while also setting the conditions that
would allow participants to trade, blockchain-based solutions can address these
needs. These solutions can be used as a governing tool that can replace
intermediaries, modernize the regulatory processes, and act as an accounting,
auditing, interlinking and trading platform that enables water markets to
function effectively.
Blockchain Technology
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As of late, blockchain technology seems like a short-term trend, but some hail it
as the best innovation since the internet. Even though the optimism should be
handled with caution, blockchain’s key features and potential applications seem
well worth the hype. Blockchain is a distributed, decentralized, peer-to-peer
database network that allows for fast, secure, and transparent transactions of
digital assets. It is a network of ledgers with the capacity to record information,
and compute and transact, with each ledger holding an up-to-date copy of the
entire network. Each ledger then acts as a node in a network. Unlike in a
centralized system, where transactions are validated by a single server acting as a
central authority, with blockchain, the veracity of transactions is validated by
distributed consensus. For example, if a majority of nodes verify and
authenticate a transaction, then the transaction is accepted. This updated version
of the transaction is stored in a block. Each block stores a series of transactions
and is linked to the previous block of transactions through hashing functions.
Through cryptography and complex mathematical puzzles, the blockchain
network is virtually immutable. Thus, it can be used to store information and
facilitate transactions in a transparent, efficient, and a tamper-proof manner.
Blockchain for Water Markets
Source: Narang, Shivika, Praphul Chandra, Shweta Jain, and Y. Narahari.
"Foundations of Blockchain Technology for Industrial and Societal Applications –
A Quarterly Publication of ACCS." A Quarterly Publication of ACCS. (2018).
https://acc.digital/foundations-of-blockchain-technology-for-
industrial-and-societal-applications/.
The capabilities of blockchain technology can be divided into three fundamental
features. First is a shared ledger system that is virtually immutable through a
combination of cryptography and distributed consensus algorithm. It protects
against the misuse of data and opens up several possibilities in domains where
privacy and trust are of critical importance. One of the obvious applications is in
securing digital identities. This allows for the creation of a common tamper proof
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database that facilitates assembling data from multiple sources in a seamless
manner. Its distributed consensus mechanism and inherent traceability
provisions allow for checking the veracity of this data and validates data sharing.
This promotes trust amongst different stakeholders and participants, increases
transparency, improves data reliability and reduces audit time. This common
tamper proof database facilitates accounting for trades and transfers, prevents
double counting, and promotes efficiency in the system. The second feature is
tokenization, which is the ability to create coins or tokens that are a digital
representation of assets i.e. a unit of a token represents a specific amount of an
asset. This paves a path for token economics and allows for faster transactions
with better tracking, trading, and transferring of digital assets. The third feature
is a “smart” contract, which is a digital protocol that self-executes when certain
conditions are met. This allows disparate parties to transact in a transparent
and trusted manner without a need for an external enforcement mechanism or
intermediaries. It facilitates the compliance of participants, enforces negotiations
of contracts, and renders transactions traceable. Smart contracts can help reduce
transaction costs, human errors, and corruption through automation and thus
increase the robustness and resilience of the system.
Figure 4: Mapping of blockchain features with digital water requirements
In a water market setting, the convergence of the three features of blockchain—a
shared ledger to store information in an immutable fashion, the ability to create
currencies that paves a path for token economics, and smart contracts to execute
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automated functions when certain conditions are met—makes it a useful tool to
reduce information asymmetry and transaction cost. To illustrate this, consider
the case of a blockchain based peer to peer trading platform called the Water
Ledger developed by an Australian based company called Civic Ledger.
Civic Ledger conducted a feasibility study on whether Water Ledger can increase
transparency and improve efficiency in the water trading market of Murray
Darling basin in Australia. The primary finding of the study was that the
complexities of the water market, such as complicated business and operational
rules, lack of available water information and presence of intermediaries,
excluded nearly 75 percent of potential users from participating in water trades.
Simply put, they did not have confidence and could not understand how these
markets functioned. The Water Ledger platform developed by Civic Ledger
provides a single ecosystem without intermediaries that bring buyers and sellers
together. The water trading mechanism in Murray Darling Basin allows for
buying and selling of water entitlements—permanent rights to share of water and
water allocation shares—seasonal rights to share of water distributed to an
entitlement holder. Through a system of tokenization i.e. by mapping a physical
asset such as allowable water allocation shares to a digital signature in the form
of a token, the Water Ledger platform provides clarity over the ownership and
history of such a water asset. This makes tracking, trading, and transferring of
water assets far more transparent. Through its system of consensus algorithms,
Water Ledger verifies all water trades and updates all shared digital ledgers and
public registries in real time. Having such a tamper-proof blockchain network
with robust traceability provisions prevents misrepresentation of transactions, or
participants from backing out of a trade after a contract is signed. This provides
the participants with confidence in the robustness of such a trading system and
tackles the problem of moral hazard. In addition to all trades being published in
real time, business and operating rules are built into the blockchain system. This
reduces uncertainties amongst participants. Any change in the rules of trade will
immediately be visible to all users. Thus by allowing equal access to
information and making all changes to the market rules visible to all, Civic
Ledger provides a platform that promotes trust and transparency in the water
market ecosystem. This, in turn, reduces the problem of adverse selection that
participants face in a water market and prevents the creation of knowledge
monopolies.
As demonstrated by Water Ledger, the intermediaries in a water market setting
play a variety of roles. They manage operations such as connecting buyers and
sellers, providing information, and registering trades. These intermediaries
charge a fee to manage these operations. The Water Ledger platform allows
buyers and sellers to come together in a single market place without any
intermediaries and all information is provided at no cost to participants. This
reduces the transaction cost and transaction time. The platform also integrates
with other related departments’ data that determine a buyer’s need such as
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rainfall data and agricultural throughput. This provides buyers with a range of
options optimized to their needs. This reduces information search cost. The
process of trading is inexpensive and is simplified through a combination of
smart contracts and optimized choices based on the selection of specific
parameters that is presented to participants. Automatic execution, settlement,
and enforcement of contracts based on complex water market rules eliminates
costs associated with negotiating and enforcing trades. Finally, the platforms
allow for trades to be published in multiple ledgers simultaneously, thus reducing
the cost of maintaining and reconciling multiple ledgers.
Reduction of transaction cost and transaction time allows more users to
participate as well as allows for more transactions to actualize. This improves the
liquidity in the water trading market.
Thus, blockchain can be used as an effective tool to eliminate market distortions
and pave the way for “smart ” water markets to address the problem of water
scarcity. Blockchain would act as: 1) An accounting platform that maintains a
ledger of accurate tamper-proof information on water rights, quantity, quality,
buyers and sellers; 2) An auditing platform that allows regulators to quantify
water flows and quality and penalize rule violations; 3) A trading platform that
connects buyers and sellers and facilitates transactions of water assets; and 4) A
networking/interlinking platform that allows for seamless interaction among
different agencies and stakeholders.
Thus, blockchain can be used as an effective tool to
eliminate market distortions and pave the way for
“smart” water markets to address the problem of
water scarcity.
Challenges of Using Blockchain
Use of other technologies
There are several different types of databases that record digital transactions:
version control software packages that keep track of every change made to a file,
audit management packages to assist in continuous monitoring and
scrutinization, trading tools to facilitate transactions, and accounting tools for
book-keeping purposes. These individual tools offer specific features that can
rival or supplant blockchain. It is possible that these tools are individually cost-
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effective and offer a faster execution speed. However, integration of multiple
such tools to operate across different functionalities, as in the case of water
markets, creates inherent complexities that can lead to inefficiencies and higher
costs. As illustrated in the previous section, the blockchain database, through its
decentralized shared ledger system, consensus algorithms to verify transactions,
and tokenization to track assets and smart contracts, provides an integrated
functionality of accounting, auditing, and trading and thus provides seamless
integration while adding value across the ecosystem.
High energy consumption and increased transaction time
Blockchains are divided into public or private based on who is allowed to
participate in the network. In public blockchains, anyone is allowed to participate
without permission;in the consensus validation process, in sending transactions
over the network, or in viewing all transactions. Thus, public blockchains offer
true transparency and decentralization. Such a blockchain system works well in
certain applications such as managing digital currencies. However, on the
downside, public blockchains increase transaction time and reduce the network
speed as there is significant cost vis-a-vis computational power and the time
associated with verifying transactions through a such a distributed consensus
protocol. As illustrated in the previous sections, blockchain does reduce costs
related to data storage, data capture, and search cost. But it also increases costs
significantly during the verification process. For public blockchain to function
efficiently and to scale, significant computational power will be necessary to
facilitate faster transactions. However, in a water market setting, selected
participants are allowed to engage in trade while regulators play a role in deciding
the rules of the trade. In such a setting, a private blockchain-based model with a
permissioned access setting that puts a limit on the number of participants would
be an ideal protocol to use. A system with limited players can reduce the inherent
cost associated with using blockchain and thus facilitate faster transactions and
provide better scalability options.
Not truly decentralized
Use of a permissioned blockchain system does not eliminate the role of a central
authority and thus is not truly decentralized. However, regulators and
institutions play a significant role in the management of water markets. They set
the rules of the water markets for participation, compliance, operation, and
trading. They also continuously monitor water use, take into account water
quantity and quality considerations, and observe externalities and third-party
effects. All this in addition to developing a penalty and reward system to ensure
compliance. In short, they play a role in preventing market failures. A
permissioned blockchain protocol offers a way to make the regulators more
accountable, make regulations more robust, and help reduce market distortions.
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Exploring the Need for Water Markets in Los Angeles County andBengaluru
Los Angeles County
The water management infrastructure in Los Angeles County, with the help of
215 community water systems, serves over 10 million people. Each of the
community water systems is administered by government agencies or privately-
owned bodies. The water systems are of different capacities in terms of the
volume of water that they can hold and the number of customers they cater to.
Each of the water systems is unequally supplied with different water resources.
The supply of water to each of the water systems is not determined by need,
equity, efficiency or the environment, but rather by historical processes. Different
water systems are supplied with water from various sources (as seen in Figure 5)
resulting in differences in quality. Also, by being dependent on a particular water
resource, water systems are susceptible and vulnerable to shocks such as
droughts or contamination. In addition, due to an unequal allocation
mechanism, some water systems contain more water or less water than the other
systems. This results in different pricing mechanisms for each system. There are
some water systems that supply water at $2,000 per year for certain households
whereas comparable households in other water systems pay around $200 per
year.
These water systems in Los Angeles County differ in governance regimes,
jurisdictional boundaries, and regulations. They are completely decentralized in
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their management, fragmented in their architecture, and disconnected in their
operations. The water systems act as a natural monopoly since consumers have
no ability to switch to other suppliers. In addition, there is no systematic or
standardized regulatory framework. There is a lack of standardized and
accessible databases. This results in a lack of supervision, transparency, and
accountability in the system, which can lead to an inadequate understanding of
water quality and distribution. Governing agencies make assumptions on how to
distribute water rather than adequately projecting for future demands and risks.
There is also a lack of coordination and oversight as each of the suppliers set their
own prices and policies.
Developing a regional blockchain-based water market that provides a robust
regulatory mechanism and an efficient trading platform can help: 1) Reduce
inequity by facilitating water systems with surplus water to trade with systems
that have a deficit; 2) Develop new revenue streams and local water sources by
incentivizing water systems to explore opportunities to tap into new supplies such
as rainwater, wastewater, and stormwater; 3) Improve resilience to climate
change impacts by facilitating water systems to diversify its supplies; and 4)
Creating incentives for water systems to recycle wastewater.
Bengaluru
The population of Bengaluru stands at over 10 million; similar in size to that of
Los Angeles County. However, unlike Los Angeles County, the major supplier
of fresh water is a centralized governmental agency called the Bengaluru Water
Supply and Sewerage Board (BWSSB). The BWSSB primarily imports water from
a single source, the Kaveri river. With growing demand and a changing climate,
reliance on a single source will make the water system infrastructure vulnerable.
The distribution of water by BWSSB is based on a piped water network. There is
inter-regional inequity in water distribution as a significant number of urban
communities in Bengaluru is not connected to a piped water supply managed by
BWSSB. Instead, they rely on water supplied by unregulated private companies.
These private companies typically extract and sell groundwater. Since they can
operate under an informal market setting, there is no systematic reporting or
regulatory framework to hold them accountable for the quality of water that they
supply or the environmental impacts (like falling water tables) that they inflict. In
the areas where BWSSB supplies water, the tariffs are low. Such an inefficient
pricing model leads to apathy and lack of awareness amongst consumers
resulting in overuse and wastage.
In order to reduce the dependence on a single source, there is a need to diversify
BWSSB’s water resource portfolio. Thus, there is an opportunity to develop
recycled wastewater, catchment and household-scale rainwater, and stormwater
as supplementary sources. Financial considerations and management
inefficiencies are usually an impediment to developing new local sources. But
developing a blockchain-based smart water market that provides a robust
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accounting, auditing, and trading platform to manage these local sources will
bring in new revenue streams, provide access to newer and cheaper water supply
options to consumers, improve allocation efficiency, and reduce risk exposure
vis-à-vis imported water. These market-based instruments for local water
sources can be expanded to include private companies who manage
groundwater, thus formalizing the informal water market.
Policy Implications: Beyond Water Markets
Creation of a prosumer market
In light of current water scarcity problems, alternate sources are being tapped to
address water needs. Rainwater harvesting and wastewater reuse are popular
alternatives. A blockchain-based system can be used to create peer-to-peer
trading platforms, where water users can be incentivized to also act as producers.
This lays a foundation for a prosumer market, i.e. production by consumers.
Development of a prosumer market reduces dependence on surface and
groundwater, incentivizes consumers to use less water thereby assisting in
conservation, and creates a socially, economically, and environmentally
conscious citizenry.
Monitoring water quality levels
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A blockchain system can be built to acquire water quality data from quality
measurement equipment and can be used by authorities to monitor the levels of
water purity in the distribution system. Through smart contracts, an automatic
system can be developed to send alerts to relevant authorities and citizens if
water quality level falls below permissible limits. Such a mechanism can help to
avoid a crisis related to water quality as seen in Flint, Michigan in the United
States where there was an unprecedented level of lead in water.
Facilitation of urban-basin interlinkage
The blockchain system can also be integrated with water meters installed at
basins to facilitate seamless information transfer to urban water systems. This
can help authorities to better design demand and supply models, assess risks and
opportunities, and develop a robust real-time disaster response mechanism.
Future Research
The future work will focus on the economic implications of a blockchain-based
water market on society. To illustrate this a bit further, one of the key findings of
this paper is that using blockchain as an underlying technology to manage water
markets reduces market distortions due to information asymmetry. An
interesting question that this finding unlocks is how will a water market operate
when buyers and sellers have access to perfect information? Based on the
“market for lemons” concept, when perfect information is available to buyers
regarding different grades of quality of goods that are available, over time poor
quality goods will be weeded out due to perfect signaling. This can result in
either fewer sellers participating in such a market or fewer products albeit higher
quality ones available to meet the demand. In a blockchain-based water market
context, with fewer goods available, the price of high quality water goods will
increase substantially. Such a scenario can lead to the creation of an exclusive
market with only a few participants who are able to afford the products. In
addition, sellers of poorer quality water goods will have an incentive to move to a
non-blockchain-based market, which will result in market segmentation. Thus,
the future work will focus on whether a blockchain based water market will
increase or decrease the welfare in society.
Conclusion
Water resources are finite and are becoming increasingly scarce in light of natural
and anthropogenic stressors such as extreme weather phenomena, population
explosion, rapid urbanization, and consumerism. Regulators who manage water
are faced with challenges such as inefficiencies in water allocation, apathy
amongst consumers, overexploitation of water resources, and pollution.
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Water markets are cited as a solution to address the problem of water scarcity
and its associated problems. They are instruments that are used to dynamically
allocate water-related goods efficiently. However, water markets are a complex
economic instrument to implement, manage and sustain as they are susceptible
to market distortions especially due to information asymmetry and high
transaction cost. A robust regulatory mechanism is necessary to prevent these
market distortions. The research paper makes a case for a blockchain-based
system to be used by regulators as an accounting, auditing, trading and an
interlinking tool to reduce information asymmetry and transaction costs. This
paper also explores the potential of a blockchain-based water market to address
the inequitable distribution of water in the community water systems of Los
Angeles County; and, the underdeveloped local water sources and unregulated
private players in Bengaluru.
A blockchain-based smart water market will be able
to effectively allocate water resources.
A blockchain-based smart water market will be able to effectively allocate water
resources; empower consumers by providing economic and social value, and
incentivize conservation and provide positive environmental outcomes. Thus, it
will act as an effective policy instrument to reduce water scarcity.
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Civilian Drones: Privacy Challenges and PotentialResolution (Ananth Padmanabhan)
Ananth Padmanabhan is a New America India-U.S. Fellow, 2019 and a Fellow at the
Centre for Policy Research in New Delhi.
Acknowledgements: The author extends heartfelt gratitude to Peter Singer, Arthur
Holland Michel, Rachel Stohl, Anand Murali, John Livingstone, Mugilan T.
Ramasamy, and Anirudh Rastogi for sharing their insights.
Introduction
From being a technology used predominantly by the military for years,
unmanned aerial vehicles (hereinafter referred to interchangeably as UAV, UAS,
or drones) have gradually moved into the public sphere by offering versatile
civilian uses. This is due to converging technological advances such as hardware
miniaturization, sophisticated software functionalities, and advanced sensors.
While several countries have seen this explosion of drone innovation in the
civilian airspace, China stands out with the dominance of Da-Jiang Innovations
(DJI) as the market leader. The United States has seen the rise and fall of many
drone start-ups, alongside a realization on the part of leading aircraft
manufacturers about the immense potential of the technology. U.S. dominance
in adjacent fields – artificial intelligence, robotics, and 3-D printing, to list some
here – is significant, making it a force to contend with in this sector. India has
primarily witnessed the proliferation of drone service companies that offer
solutions across a range of areas, from agriculture to event photography. But
Indian companies have not yet made a mark globally when it comes to the
manufacture of drones or supporting hardware elements. In short, the
innovation landscape and relative strengths and weaknesses are significantly
varied across countries.
In short, the innovation landscape and relative
strengths and weaknesses are significantly varied
across countries.
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The regulatory landscape is similarly incongruent across jurisdictions. In an
earlier report, I examined this issue, comparing the regulatory responses across
key jurisdictions to the civilian use of this technology. This work arose in the
context of India’s initial regulatory responses, wherein the Ministry of Civil
Aviation (MCA) first declared, in 2014, a complete ban on civilian drone
operations and followed by a set of draft regulations that failed to support the full
potential of this technology when it came to commercial uses. As that report
argued, the fledgling industry could be permanently crippled under the weight of
security apprehensions that permeated that set of draft regulations. At the same
time, the draft had not considered several aspects of drone operations that
demanded regulatory attention, including property protections and safety
concerns. It was thus both over- and under-inclusive. But in an optimistic turn,
the new regulations that came into effect in December 2018 took a more
progressive stance, earning a dial-down of some of the earlier criticisms.
The newest set of regulations take seriously the challenges of compliance arising
from a licensing regime. They propose a reg-tech (regulatory technology)
solution to these challenges, namely Digital Sky, which operates as a platform for
convenient filing of paperwork to obtain unique identification numbers and
operators’ permits. These identification numbers and permits are a prerequisite
for most remotely piloted aircraft (RPA) operations under the regulations.
Appropriately titled Regulations 1.0, these regulations also present a window for
future innovation in this sector, including testbed locations for experimental
projects. Though delivery drones may presently appear a distant use case,
considering all operations must have a remote pilot operator for each RPA and be
within visual-line-of-sight (VLOS), there is a distinct possibility that the sector
would expand with time to accommodate fully autonomous, self-controlling
drones that operate without the presence of any manual operator and beyond
VLOS. The safety of drone operations has also merited significant attention,
including insistence on geo-fencing technological capabilities beyond a certain
height and for most weight categories, and the requirement of drone operator
insurance to compensate for any losses incurred because of commercial
operations.
However, despite privacy (of individuals, communities, and personal data) being
a critical concern, solutions have not found a place in the regulatory narrative
even as civilian use grows. Drone operators have also flagged concerns regarding
confidentiality of their operations but those are outside the scope of this paper.
Here, the focus is on end-user concerns, with the argument being advanced that
the challenges in this regard are common to the United States and India. These
challenges can be further subdivided into two sets, categorized here as
“traditional privacy challenges” and “big data privacy challenges.” These
challenges are explained more fully in the next section. On both counts, legal and
regulatory responses have been far from satisfactory. The aim of this paper is
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threefold: descriptive for clearly identifying these challenges; explanatory for
demonstrating why they remain unresolved; and reformative to advance better
regulation in this area.
The discussion proceeds in three segments. The first segment captures the
present regulatory landscape in India on this issue and argues that privacy
concerns have been mostly ignored or at least unaddressed in any meaningful
way. The second segment discusses “traditional privacy challenges” and the
limitations of the law, including constitutionally guaranteed rights when it comes
to civilian drones and possible high-level responses. The third segment discusses
“big data privacy challenges,” current legal and regulatory limitations, and
possible high-level strategies and responses. A short conclusion follows.
The Privacy Challenge and Broad Regulatory Brushstrokes
The present Indian regulations only require that RPA operators be “liable to
ensure that privacy norms of any entity are not compromised in any manner,”
with nothing more by way of guidance on achieving this outcome. The RPAS
Guidance Manual accompanying these regulations, issued by the Directorate
General of Civil Aviation (DGCA), simply restates this liability. Additionally, no
technological requirements have found mention in the regulations, unlike with
safety concerns through the presence of geo-fencing and detect-and-avoid
systems. A supplementary document accompanying the regulations places full
responsibility on the RPA operator to come up with standard operating
procedures (SOP), including to protect the privacy of persons, without any
baseline that such SOP must meet in this regard.
Public documents on the Digital Sky project do not consider privacy an important
enough concern to be addressed through this reg-tech solution. The public tender
for this digital platform contains Annexure No. 8, which outlines its technology
architecture. It merely states that the “privacy of data should be fundamental in
the design of the system without sacrificing the utility of the state procurement
system” and reiterates that the handling of sensitive and critical data must not
remain an afterthought in a system of this scale. It also references the IndiaStack
– a system of Application Programming Interfaces built on top of India’s
centralized digital identities database, Aadhaar – as a model stack with privacy-
protected data sharing. This reference disregards the fact that the kind of data
gathering and processing that is facilitated by drones is far removed from the use
cases of personal data processing that IndiaStack can potentially resolve.
The vision for Digital Sky – no permission, no take-off (NPNT) – envisages setting
“rights for airspace permission access at a fine-tuned level (for example, the
ability to choose a polygon area of airspace at a particular altitude and for a
particular date and time) and … enforced digitally through … generation of
verifiable flight telemetry.” The DGCA will grant a “permission artefact” in the
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form of a digitally signed XML format file that specifies the geographic area and
time of operations, and the identification details of the remote pilot. The RPAs
are meant to carry firmware that can authenticate these artefacts and confirm
that the flight parameters of the mission match those contained in the artefact.
Thus, to be NPNT compliant, any flight module must carry three important
features: a unique identifier to allow the end-to-end traceability of a flight
module, a system to obtain and verify a permission artefact, and the elimination
of any synthetic flight logs or external systems to provide simulated logs.
Compared with these elaborate specifications for regulatory compliance, the
Digital Sky Technology Standards go easy on privacy concerns. The primary
response is through an articulation of “privacy-by-design (PbD).” This is
included as a guiding design principle in the Standards, with its four key features
being: a) proactive, not reactive, and preventative, not remedial; b) privacy as the
default setting; c) visibility and transparency; and d) respect for privacy, of all
stakeholders. But there is no concrete direction, unlike with aspects such as key
management and identification of registered flight modules that find more
extensive detailing in the Standards. More recently, the MCA issued a Drone
Ecosystem Policy Roadmap, where it is reiterated that “for privacy, we require
manufacturers to adhere to a privacy by design standard, eliminating risks of
future privacy harms by operators.” Though not a legally binding document, the
roadmap captures the MCA’s vision for civilian drone businesses and their
regulation through Digital Sky and other means. Discussing fully autonomous
drone operations, an area identified as the next frontier of innovation in this
technology domain, the roadmap merely notes that “use of algorithms for
piloting may be permitted, but only if adequate safety, security and privacy
principles are demonstrated in the design of operations.” PbD is identified as an
area to which airworthiness standards for drone design could potentially extend,
such that privacy principles can be “embedded into the functional design … by
introducing technical measures that enable privacy as the default setting.” In
addition to these recommendations, the roadmap also envisages drone service
providers including “technical and organizational measures designed to
implement data-protection principles as part of any UAS operation that collects
personal data, and to integrate the necessary safeguards to protect the rights of
data principals” and “feedback and review mechanisms including requests to
access, anonymize, or erase the data of the data principal.” Remote pilot
operators are also expected to be trained in applicable privacy and data
protection laws of India before being approved to handle RPA operations.
The reference to PbD in the standards and roadmap is also relevant because
India’s newly proposed Personal Data Protection Bill, 2018 emphasizes reliance
on this concept. This bill resulted from extensive deliberations by an Expert
Committee of the Ministry of Electronics and Information Technology headed by
retired Justice B.N. Srikrishna (hereafter “Srikrishna Committee”). In relevant
part, it states that data fiduciaries shall implement managerial and organizational
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policies, business practices, and technical systems that anticipate, identify, and
avoid harm to the data principal and ensure that the interests of the data principle
is accounted for at every stage of personal data processing. This provision must
be read in the light of deliberations by the Srikrishna Committee leading up to
this bill, captured in an initial white paper that was circulated for public
comments in November 2017. Here the committee has noted difficulties when
operationalizing the notice and consent framework for the internet of things
(IoT) and IoT-enabled applications that gather data ubiquitously. These
technologies do not present individuals with the opportunity to evaluate privacy
harms associated with specific use cases, and based on such evaluations, to either
accept or reject such instances and applications of personal data collection and
processing. Manufacturers of several “smart devices” used at homes and in
personal settings decouple privacy notices from such devices and make them
available instead on their respective websites. However, the Committee observed
that this is not a very effective method to inform users about the data collection
and use practices of such devices. The Committee therefore insisted upon the
need to develop better notice design or whether such notices are the right
solution for the privacy harms arising from the use of these “smart devices.” The
Committee also noted that standard responses such as de-identification
techniques do not work very well in many such cases. As an example, the white
paper cited gait analysis based on data processing by a wearable activity tracker,
where no amount of possible de-identification could secure foolproof privacy
protection.
At present, there are no straightforward responses to the new kinds of privacy
challenges posed by a combination of ubiquitous data gathering and advanced
data analytics. Drone operations can potentially gather significant amounts of
personal data, including facial images and location coordinates of individuals,
and analyze them to granular detail. These activities pose great risk to both
individual and community privacy, including re-identification of anonymized
datasets and extensive profiling. The “big data privacy challenges” arising from
these activities are discussed in Part III of this paper. Additionally, civilian drones
offer the capability to commit more traditional forms of privacy violations,
including intrusions upon spatial privacy and unlawful surveillance. The present
regulatory response in India needs to evolve to address these concerns in a
stronger way, as detailed in the following section.
Traditional Privacy Challenges and Responses
In the U.S., the Electronic Privacy Information Center (EPIC, a non-profit
research center) petitioned the Federal Aviation Administration during the rule-
making process for civilian UAS operations, providing an overview of traditional
privacy challenges. EPIC highlighted the increased capacity for domestic
surveillance offered by drones through high-definition cameras, real-time video
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streams, a massive geographical sweep, heat and motion sensors, automated text
and facial recognition technologies, and the ability to operate undetected. It also
raised concerns regarding incentives for various kinds of businesses to develop
and deploy drones for a wide range of data gathering purposes, including
‘paparazzi drones’ to track and photograph celebrities, street-level drones to
enhance satellite imagery, and drones offered as market solutions for private
detectives. The FAA refused to consider these issues, leaving it to states to
respond appropriately to the various privacy concerns, resulting in a “patchwork”
of privacy protection. The FAA reaffirmed this stance in February, 2019, as part
of a fresh rule-making exercise.
Similarly, in the Indian context, the privacy jurisprudence does not offer clear
principles to adjudicate claims against private violators. The primary reason for
this – disproportionate focus on constitutional principles that are better
addressed to tackle privacy violations by the State, rather than the organic
evolution of privacy through tort law (as has happened in the United States) – and
other reasons, such as a weak civil justice system with long-pending cases and
minimal judicial guidance on evaluating and apportioning damages for tortious
claims, have been elaborated in my earlier report.
The “patchwork” in the U.S., which is comprised of not only state laws but also a
wide range of local ordinances, makes it difficult to pinpoint any legislation as the
ideal. At the same time, certain principles and regulatory approaches stand out.
Commonly restricted conduct includes operations over public property and
critical infrastructure; over private property without the owner’s consent; in
parks; and at large events. Criminal law and high monetary penalties are relied
upon to address intrusive behavior that makes use of drones, with the ability to
factor in the intent of the perpetrator when deciding on questions of guilt and
punishment. For instance, North Carolina prohibits using drones to photograph a
person with the intent to publish or distribute the photo, but exempts
“newsgathering, newsworthy events, or events or places to which the general
public is invited.” Similarly, Arkansas law criminalizes the use of drones for video
voyeurism, Indiana addresses “remote aerial harassment” and “remote aerial
voyeurism,” and the Californian legislation is targeted towards individuals who
knowingly enter air columns immediately above private property for taking
pictures or videos. South Dakota prohibits using a drone with a camera to take
photos of private property or a person on private property when the person has a
reasonable expectation of privacy.
Through all of these examples, an attempt to balance multiple values emerges:
the prospect of innovation using this new technology, the reasonable expectation
of privacy in certain settings, and fairness of criminal action. The American
Legislative Exchange Council has put out an easily comprehensible and
consistent model law in this regard, primarily focusing on harassment and
stalking activities that are met with criminal penalties of the same nature as “a
misdemeanor punishable by imprisonment for not more than 90 days or a fine of
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not more than $500.00, or both.” The model law also proposes penalizing the
knowing and intentional operation of drones to “capture photographs, video, or
audio recordings of an individual in a manner that invades the individual’s
reasonable expectation of privacy.” Indian lawmakers could benefit from these
insights while avoiding the patchwork in the US, intervening at this early stage to
come out with drone legislation that sets the balance between criminal offenses
and civil liabilities, and clearly spells out different kinds of conduct to which they
apply.
The Indian legal system has also not been responsive to mass surveillance, partly
because, for several years, the status of privacy as a fundamental right in India
was ambivalent at best. But also, mass surveillance has not run into effective
legal and constitutional challenges because Indian courts have analyzed State
surveillance within the factual context of individual, rather than systemic,
surveillance. In fact, many of the contested instances involve individuals who
found their way into “history sheets” maintained by the police for reasons
justifiable or otherwise. Upon constitutional challenges against police action, the
Supreme Court has balanced out individual rights with social goals, such as
maintenance of public order, often prioritizing the latter. Even in cases that
apparently address systemic flaws, such as unauthorized telephone tapping, the
technical capabilities of the executive and the intent behind the contested State
action were both limited towards a subset of individuals. Therefore, the court laid
down procedural and substantive restrictions on the authority of the State to
carry out surveillance, which would operate on a case-by-case basis. The court’s
detailed directives against telephone tapping demanded specificity of State
action in the communications and persons and addresses intercepted; the
exhausting of alternate and less intrusive ways to acquire the information before
activating interception; or the limiting of intercepted material to the necessary
minimum. However, these directives are not adequate safeguards against mass
surveillance as they fail to conduct a robust review of the technology architecture
in place to gather and process data.
Shifting from this context to one of mass surveillance where technical capabilities
permit non-targeted gathering and processing of data without further action
from the political executive has been a steep learning curve for the Apex court.
The 2018 verdict in Justice Puttaswamy v. Union of India shows the challenges
when adjudicating the legality of such measures. This case involved an
omnibus constitutional challenge to Aadhaar, India’s biometric identities project
aimed primarily at de-duplication of identities to ensure that welfare benefits
from the State reach their rightful beneficiaries. Among the various grounds of
the challenge was a novel one that attacked the excessive seeding of Aadhaar
numbers in multiple databases, such as a pension, education, banking, and
telecom databases. The petitioners argued that this exercise would, in effect,
present the State with a mass surveillance tool. Additionally, they also pointed
out that various state resident data hubs (SRDHs) helped to offer a 360-degree
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view of residents, as publicly acknowledged by the State governments – Haryana,
Andhra Pradesh, Tamil Nadu, Madhya Pradesh, and others – instituting them.
These SRDHs used the Aadhaar identity as their foundation without
incorporating the protections under the Aadhaar Act in respect to data security or
privacy. Thus, the SRDHs made it evident that the aggregation of data from
different silos, profiling, and consequential surveillance of residents was no
longer in the realm of conjecture; it had become reality. The Aadhaar numbers
made finding information much more convenient by serving as a unifying link
across various government departments and between their respective databases.
To articulate this threat in legal terms, the petitioners relied on important
decisions of the European Court of Justice that treated mass surveillance as a
separate category when up for judicial review. These cases focused on the
structural and architectural aspects of the respective surveillance programs. But
the Indian Supreme Court followed a more conservative approach, narrowly
balancing immediate individual harms and long-standing social goals rather than
assessing medium and long-term consequences of such unified databases. While
the majority opinion suggested several quick fixes for any immediate harms from
the workings of Aadhaar, they hardly addressed the long-term consequences of
SRDHs and other potential applications of Aadhaar for big data analytics and
profiling. In fact, the majority did not even reference SRDHs despite the
petitioners pointing out that, when combined with multiple databases, the view
that Aadhaar offered on citizens could be extremely invasive. The majority
observed that the averment of “a surveillance state created by the Aadhaar
project is not well founded, and in any case, is taken care of by the diffluence
exercise carried out with the striking down certain offending provisions in their
present form.”
For reasons best known to the State, it extensively relied during the hearing on a
powerpoint presentation by the Chief Executive Officer of the Unique
Identification Authority of India (UIDAI). This presentation mostly focused on
the security architecture in place to prevent data leaks and did not address the
surveillance threat or refer to the SRDHs. Yet, the majority verdict endorsed
these claims that were, at best, irrelevant to the surveillance challenge. This is
particularly disconcerting because secure systems can simultaneously be
extremely sophisticated surveillance machines. Instead, the majority would have
done well to follow the various European court decisions that consistently
opposed state-of-the-art mass surveillance architectures because their long-term
consequences, while not fully ascertainable, made them even more worrisome
and intrusive. All this goes to establish the case here that Indian courts have an
extremely limited vocabulary to address questions of mass surveillance. Because
of the widespread use of civilian drones in governance is a distinct possibility, it is
important that such vocabulary be developed immediately in order to address
concerns that are more architectural in nature. Digital Sky or enhanced security
systems cannot substitute the need for the same as their primary focus is on ease
of regulatory compliance and safety of drone operations.
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The court could look to the “chilling effects” doctrine as developed by U.S. courts
as a possible solution here. It has, in fact, done so previously in a different setting.
In Shreya Singhal v. Union of India, a case dealing with free speech, the police
had invoked section 66-A of the Information Technology Act, 2000 against some
Facebook users for expressing their displeasure at a city-wide shutdown in
Mumbai in the wake of Shiv Sena supremo Bal Thackeray’s death. Striking down
this provision as being unconstitutional for its chilling effects on the freedom of
speech and expression, the court opened doors to the possibility of evaluating
structural power imbalances brought on by vaguely-worded criminal offenses.
Chilling effects can occur when a citizen apprehends that the State is watching
their activities and alters their behavior based on this belief. While immediate
criminal consequences may not necessarily follow, the mere existence of vague
and overreaching criminal liabilities could restrain individuals from expressing
themselves due to the fear of such consequences. As the court reasoned, “Section
66-A is cast so wide that virtually any opinion on any subject would be covered by
it, as any serious opinion dissenting with the mores of the day would be caught
within its net. Such is the reach of this section and if it is to withstand the test of
constitutionality, the chilling effect on free speech would be total.”
While this doctrine is not a perfect mechanism to scope out the limits of state
authority when undertaking mass surveillance, and can even be a conversation-
stopper in this context, the verdict in Shreya Singhal demonstrates the need to
evaluate possible long-term consequences of state action. To do so, the judiciary
must go beyond immediate cases of rights infractions to a critical scrutiny of the
architecture of data collection put in place, be it legal or technological. This is not
a point limited to rights reviews. Even cases involving the dilution of judicial
independence through the formation of tribunals, for instance, demand a similar
outlook – as do instances such as circumventing legislative scrutiny through
frequent resort to executive ordinances. In all these situations, the State’s usual
defense – that the scope for abuse is not grounds for striking down an executive
or legislative action – is weakened. These are all architectural questions, ones that
have a bearing on even the basic structure of the Constitution, but not in the
same way that surveillance orders against repeat offenders or individual
instances of telephone tapping impinge on individual rights.
Big Data Privacy Challenges and Some Responses
Besides their low-altitude operations, with direct spatial privacy and surveillance
concerns, drones also gather considerable amount of data. Drone platforms –
often consisting of in-flight software to help command the aircraft, high-
resolution Light Detection and Ranging (LiDAR) imagery solutions, digital
orthomosaic technology to stitch together varied images and present a composite
picture, photogrammetry to calculate distance and volume measurements, and
data analytics solutions – offer critical actionable insights to several industries
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today. This capability has resulted in business models where such platforms are
offered as services. In addition to the new kinds of sensors and data that drones
can gather, they also transmit the standard types of data that any internet-of-
things solution can potentially channel to a central server— - mobile phone data,
radio frequency identification data, location, weather and temperature data.
A significant part of such data would fall within the legal definition of sensitive
personal information. No special case needs to be made here for the privacy risks
associated with such data, evident as they are from the strict legal mandate that
prior written consent of the data-holder is required to collect and process the
same Apart from the stand-alone risks of such data in the hands of private
entities, these pieces of data are often combined with personal data categories –
social media behavior, biometric information, financial data – gathered from
other sources, to heighten the risk. These “big data privacy challenges” are
however less obvious as compared with risks highlighted in the previous section,
and we remain relatively underinformed about them even in settings outside of
the civilian drone context.
Often, the challenges there are not with the gathering of data, but rather with
how it is processed and the associated risks. As digital activities grow
exponentially, so do the electronic tracks left behind by individuals. The
semantic web and other data analytic solutions permit such crumbs to be
aggregated by intelligent machines and algorithms to provide a comprehensive
picture of an individual’s preferences, personality traits, and values, as well as
predict her next move and suggest specific, relevant choices. Yet such practices
run the risk of being reductive, incomplete, and often divorced from the context
in which the data was originally gathered. Because of the efficiency involved in
algorithmic perception, prediction, and suggestion, and the recombinant nature
of data, private actor incentives are aligned towards the unhindered amassing
and processing of huge swaths of personal data, often for purposes unidentifiable
at the time of the original transaction or data exchange. As noted by the Indian
Supreme Court, these privacy invasions often go undetected because of the non-
rivalrous and invisible nature of data access, storage, and transfer.
Unstructured streaming data presents new challenges for state-of-the-art
anonymization strategies developed to deal with static, structured, and well-
defined datasets. Re-identification techniques have evolved in parallel,
combining multiple Personally Identifiable Information (PII)-excluded databases
to arrive at near identical results as those emerging from the processing of a PII-
inclusive database. The newly created database can then be linked with other
databases, even PII-excluded ones, to compromise anonymity. These techniques
present a cautionary tale: against the ubiquity of “data fingerprints” left by
individuals, and the excessive linking of multiple databases, PII protection can do
much less than before. Therefore, the legal mandate on big data handlers must
go beyond anonymization and de-identification strategies that exclude PII.
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Finally, much like the issue with surveillance identified in the previous section ,
i.e. refocusing attention from targeted to mass surveillance, big data processing
demands refocusing attention from individual to group privacy and the
simultaneous development of policy positions on handling community data.
Individuals, while not personally identifiable in many such cases, may still be
“reachable” on account of being within a group targeted for prejudicial action
based on data-driven inference and prediction. To illustrate, individuals
practicing a certain faith can be targeted either by identifying them individually
or through a larger group consisting of several individuals practicing this faith. In
the latter scenario, while the individual remains unidentified, she is vulnerable to
any action taken against the group. Often, individuals are even unaware of such
memberships because the aggregated datasets and groups emerging therefrom
do not perfectly align with pre-existing real-world groupings, constructed as they
are by algorithmic black boxes. The excessive linking of multiple datasets also
enables group profiling without any personally identifiable information being
breached. Of particular concern is the possibility of constructing
“demographically identifiable information,” which then enables the
classification, identification, and/or tracking of a specific categorization based on
ethnicity, religion, gender, age, health condition, location, or any other
demographically defining factor. Though aware of these risks, the Srikrishna
Committee did not propose any immediate solutions for community data
protection, perhaps because it did not strictly fall within its mandate. Noting
the need for a “principled basis for according protection to an identifiable
community,” “class action remedies for certain kinds of data breaches involving
community data,” and “tools like group communication and sanction,” the
Committee strongly recommended that the Government of India address them
through appropriate legislation.
Many of the solutions to these threats are within the ambit of personal data
protection and regulations thereof, but it is unclear how effective they could be in
balancing the multiple values at stake. With new modes of gathering and
processing data, such as internet-of-things and remote cloud servers, privacy
notices that are predominantly available on websites and mobile apps are fast
losing their relevance. The pervasiveness of digital technologies and
applications has also resulted in “consent fatigue” due to the increasingly large
number of requests for consent and the disproportionate time required to
meaningfully assess such requests by the user on a routine basis. Meaningful
consent is further vitiated by a substantial number of companies adopting a “take
it or leave it” approach to privacy notices, with no room for negotiation. Privacy
notices also often suffer from verbosity and dense legalese. Moreover, the draft
bill proposed by the Srikrishna Committee does not address many situations
where it is difficult to register consent because of technological or interface
limitations. Consequently, the notice-and-consent foundations of this bill can
diminish the flexibility needed for new data technologies to scale and grow.
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Therefore, solutions on offer at present, especially the idea of privacy self-
management, need to be customized to the specific context of civilian drone use.
Here, responses could include integrating a notice dashboard as part of Digital
Sky. The public then can access information about the geographic locations and
purposes served by drone operations, the sensing and data gathering
technologies onboard the unmanned system, the kinds of data potentially
captured, and technical specifications relating to the granularity and accuracy of
the data collected and processed, from such dashboard. By providing this option,
the DGCA can effectively compel drone operators to carry out privacy impact
assessments and publicize them before undertaking such operations. Data
minimization can also be achieved because these assessments and disclosures
make it possible to evaluate whether the data operations are proportionate with
the stated purposes, thereby disincentivizing drone operators to gather or process
disproportionate amounts or types of data. Many of these recommendations
are reflected in a set of voluntary best practices that the National
Telecommunications and Information Administration (NTIA) released in 2016.
Concluding Remarks
The traditional privacy challenges raised by drone technology – fitting drones
with devices that can capture personal and private information at very close
range, using the technology for mass surveillance, causing discomfort to human
beings through their intrusive nature – are concerns totally ignored by the present
regulatory response in India, except to place liability on drone operators for any
such harms. Criminal law responses similar to those present in many of the state
legislations in the U.S. need to be introduced to penalize rogue actors with
wrongful intent to intrude upon privacy. In parallel, strengthening the civil tort of
privacy through clear delineation of principles for quantification of damages, and
the constitutional tort of privacy through appropriate legal standards to restrain
mass surveillance projects, is required to safeguard individual interests against
such traditional privacy harms.
These are basic steps that must be implemented
soon to keep pace in an area where law and
technology will continue to evolve.
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The Indian State must also move ahead to create appropriate personal and
community data protection regimes that place limits on the processing of such
data using drone technology. This framework should make use of a co-regulation
framework that incentivizes private actors to adopt voluntary codes of conduct
and places responsibility on appropriate state authorities to evaluate such codes,
suggest suitable modifications, and monitor compliance with the same. The
Digital Sky platform, a state-of-the-art solution for regulatory compliance as well
as drone tracking, should be expanded to publicize privacy impact assessments
carried out by drone operators. These are basic steps that must be implemented
soon to keep pace in an area where law and technology will continue to evolve.
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 37
The Privacy Negotiators: The Need for U.S. TechCompanies to Mediate Agreements onGovernment Access to Data in India (MadhulikaSrikumar)
Madhulika Srikumar is attending the graduate program at Harvard Law School as a
2019 Inlaks Scholar. She was previously an Associate Fellow and Programme
Coordinator with the Cyber Initiative at Observer Research Foundation in New Delhi.
Acknowledgments: The author extends sincere thanks to Sharon Bradford Franklin,
Andrew Woods, Greg Nojeim, Heather West, Jennifer Daskal, Tim Maurer and
William Carter for their valuable insights. This paper would not have been possible
without the kind support of New America and the invaluable guidance provided by
Awista Ayub and Melissa Salyk-Virk. The author would also like to thank the 2019
India-US Fellows. All errors in this paper are the author's alone.
Introduction
Apple’s clash with the FBI in 2016 was touted as an “American Revolution” and a
reminder of “why we (Americans) have the fourth amendment.” Indeed,
Apple’s challenge signified the pivotal role that tech companies play in defining
the parameters of government surveillance. It did so by publicly challenging a
court order requiring the company to break the encryption built into its iPhone
device.
Cut to 2018: to the chagrin of privacy advocates everywhere, Apple announced
that it would move the data of Chinese users to servers owned by a state-run
company to comply with China’s data localization law. The company later
announced that they would host the encryption keys in China; and that the
Chinese partner would “have access to all data” of users registered in the
country.
An emerging body of scholarship has now examined the role that tech companies
play in instances like Apple’s clash with the FBI – where “surveillance
intermediaries” constrain government surveillance, as Alan Rozenshtein argues.
Scholars have examined the incentives and tools that tech companies use to
resist the government (U.S. government in most analyses) and the net positive
effect that it has ushered in for users against surveillance excesses by law
enforcement.
What these scholarly attempts have omitted, however, is taking the latter reality
into account – where tech companies accede to (sometimes regressive)
government demands. The number of internet users in India and China is over
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four times larger than the United States excluding the number of future users.
This fact alone introduces finer nuances that dismantle the existing
understanding of financial and policy incentives that drive intermediary
behavior.
I lay out in the following sections why tech companies must instead be treated as
privacy negotiators – not only advocating for user privacy but negotiating the
tradeoff between cooperation or resistance in the short term vs. compliance with
unintended regulatory consequences in the long term. Over the past year, the
scales have tipped in favor of the latter outcome. The difficulty of obtaining
electronic data from U.S. tech companies combined with the historic resistance
put forth by these companies has been recognized as the primary reason behind
the onerous regulation introduced in India.
In response, tech companies are increasingly relenting to government pressure
thereby complying with regulation that is not only poorly designed but one that
could pose serious consequences to the privacy of Indian users.
I argue that as privacy negotiators, tech companies are in a unique position in the
surveillance architecture to reform cross-border access to data for law
enforcement in a manner that secures the privacy interests of Indian (and all
foreign) users. Given that these tech companies are privy to the nature of
requests and have the legal standing to pushback against the requests- their role
as privacy negotiators is established firmly.
In earlier work, I examined the challenges in the current cross-border regime
where Indian government requests data from U.S. tech companies, arguing that
the respective governments must consider an India-US executive agreement
under the Clarifying Lawful Overseas Use of Data Act or CLOUD Act. I argued
that such a bilateral agreement would not only ease cross-border access to data
and make it more efficient but also safeguard user privacy in the process and
ultimately strengthen the overall case against mandatory data localization.
This article takes off from there – given that there is an alternative on the table,
there are still no significant advances being made in the conversation. This article
explores why. Even while the challenge arising out of the conflict of laws is
undeniable, I argue that there is an emerging “conflict of interests” which has
resulted in tech companies acceding to Indian government’s demands for
localization. The article, therefore, addresses the gap between current literature
that examines the challenge of cross-border access to data and the growing
scholarship on governing tech companies as “information fiduciaries.”
In Part I, I briefly lay out the challenge of Indian government access to data
highlighting how U.S. tech companies have fallen into the role of privacy
negotiators. The section also briefly addresses the significant normative
turnaround that an India-US executive agreement on data sharing can bring
about.
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In Part II, I examine how the push for data localization from the Indian
government came about and the competing incentives of tech companies that
may ultimately drive them to comply with a larger localization mandate.
In Part III, I explore how the recognition of tech companies as data fiduciaries
under Indian law may enhance the legal responsibility of privacy negotiators –
requiring them not only to pushback against localization but also push for more
privacy protecting alternatives such as the CLOUD Act. In the final section, I
argue that private tech firms indeed have the clout to push for an executive
agreement between India and the U.S. to raise the privacy standards of law
enforcement access to data.
This article is limited to examining the regulatory responses stemming from the
cross-border conundrum when Indian law enforcement agencies (LEA) request
user data from U.S. tech companies whose services are widely used in the
country. Any reference to “tech companies” in this paper is limited to prominent
U.S. tech service providers that are operational worldwide. Their function as
privacy negotiators, therefore, is emblematic of the role they carry out in the
current surveillance regime – and as I argue later in the article, also indicative of
the duty they must discharge towards all users. Developments in India present a
compelling lens to examine this contention since companies’ recent actions in
the country exhibit a decisive turnaround in the incentives that earlier drove their
resistance in the surveillance regime worldwide.
Conflict of Laws
The system for cross-border access to electronic data for criminal investigations
between India and the United States has often been criticized for being outdated
and time consuming, sometimes taking as long as three years. At the heart of
the issue is the conflict of laws between where the user is located, where the
company is headquartered and in some cases, where the data is stored.This has
led to fragmentation of legal frameworks across jurisdictions and reliance on
slow inter-governmental processes like Mutual Legal Assistance Treaties
(MLAT).
Access to electronic data – specifically communications content – has become
instrumental not just for crimes committed online but also to further
investigations where these crimes cause ‘real-world’ harm. U.S. tech companies,
governed by the Stored Communications Act, disclose non-content data to
government agencies that honor the rule of law and respect fundamental rights.
Companies only voluntarily disclose content data during exigent circumstances
involving danger of death or serious physical injury to any person
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Under normal circumstances content data can only be shared in response to a
warrant issued in the U.S. As a result, in most cases investigating officers in India
must obtain a warrant meeting the probable cause standard from a U.S. court
through the India-U.S. MLAT to access content data. Due to delays and
uncertainties associated with the MLAT process, Indian law enforcement
officials often express their dissatisfaction of having to comply with a foreign law,
especially while tackling crucial cases. One such instance is the recent case of
disinformation spread through WhatsApp that resulted in mob violence and
deaths of 27 people.
Given this reality, the Indian government in the past year has called for data to be
localized or stored within India’s borders. The mandate to store data locally
either completely or in the form of “mirror servers” is a harmful and ill-suited
policy approach for two reasons.
First, mandating data to be localized is especially dangerous to user privacy since
police officials in India rely on legacy laws to access electronic data which require
no prior authorisation by courts. Legacy laws in India provide that any court or
police officer in charge of a police station can compel the production of any
“document or other thing” that is necessary or desirable for the purposes of an
investigation or trial. Not only has this power been interpreted broadly but in
practice it is only police officers who issue notices to companies requesting user
data. This imposes a much lower threshold than the U.S. Probable Cause
standard that is currently enforced on Indian users through the MLAT process
where the court issues a warrant.
Second, data localization is ill-suited for the stated purpose of law enforcement
access. Major service providers may not be able to comply with user data requests
from the Indian government since U.S. law still effectively bars these companies
from disclosing user data to foreign law enforcement authorities. Even if U.S.
companies comply, only data of Indian citizens can be provided. In cases of
transnational crimes such as online radicalisation, money laundering and
cybercrimes, Indian police will have to continue to rely on cooperative models
like the MLAT process.
It is crucial that a common framework is devised that eases the existing conflict
of laws and increases institutional cooperation between states to discourage
further fragmented developments such as mandatory data localization. Access to
electronic data, therefore, must be determined on the basis of where the user is
located and not where the data is stored. States must strive towards enacting
direct data sharing arrangements between foreign LEAs and technology
companies to operationalize this. The CLOUD Act signed into law last year by the
U.S. Congress can actualize this for the first time and decentralize control over
data from U.S. authorities where popular technology companies are located.
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Even while the CLOUD Act is an imperfect solution – the Act by allowing
executive agreements between states to bypass the existing conflict of laws
provides a workaround that was earlier unavailable. In effect, an India-U.S.
executive agreement under the CLOUD Act would establish a higher standard of
privacy protection for Indian users that is currently unavailable under Indian law
such as limiting the scope of requests and judicial review.
Conflict of Interests
Push for Data Localization
Calls for mandatory data localization by the Indian government over the past
year have emerged as the overwhelming bone of contention. Far from mere
rhetoric, the Reserve Bank of India (RBI) has already made it mandatory for all
payment service providers to store copies of data locally.
India’s first draft data protection law imposes mandatory data localization –
requiring all data fiduciaries operating in the country to store at least one serving
copy of data on a local server. The draft law further empowers the government
to recognize certain categories of data which must not only be stored but also
processed exclusively in the country.
Admittedly, this push for data localization is part of a larger strategy that the
government is rolling out to reassert their sovereignty in the digital economy.
However, in no uncertain terms, the committee drafting the law has cited the
difficulty that law enforcement faces in accessing user data during criminal
investigations and prosecutions as the primary motive behind the move. The
committee reasons that forcing companies to localize data, even just a copy, can
enable “quick and easy access.”
The government directive to command cooperation from companies on
surveillance is not limited to data localization. The draft amendment rules to the
Information Technology Act imposes an obligation on intermediaries to respond
within 72 hours of receiving a request from any government agency; preserve
data upon requests for 180 days or longer; and enable “tracing” the originator of
the messages shared on their platforms.
Forcing companies to store data locally – even just copies– has been widely
panned by stakeholders in India and abroad. Broadly, enforcing data localization
is criticized as a regulatory tool that can lead to unchecked surveillance, impose
significant costs on companies, ironically on local startups, compromise security,
and as per the U.S. government be discriminatory and trade-distortive.
It is undeniable that the Indian government has a legitimate interest in regulating
tech companies, especially given their growing strategic importance. A case can
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even be made that a carefully nuanced localization law – that is backed by
evidence and least obstructive in practice – can be an appropriate regulatory
response in some cases.
It is undeniable that the Indian government has a
legitimate interest in regulating tech companies,
especially given their growing strategic importance.
However, the current data localization directive is driven by the government’s
waning patience in eliciting compliance from tech companies across issues –
from online speech to taxation. Even in the absence of a consensus across
agencies on the extent, indeed the rationale behind data localization, the
government is hurtling towards a point of no return. The government’s
frustration stems from private and foreign companies wielding public power and,
consequently, opposing state sovereignty.
Compliance with such a law would run wildly contrary to the public stance that
tech companies have long held on this issue. If passed in its current form, this law
will also be counterproductive defeating the government’s intended purpose,
likely hurting law enforcement efforts, undermining user privacy in the process.
First, as I mentioned above, it is unclear whether a mandate to relocate data
locally will translate into easier access for Indian law enforcement. Given that
U.S. law effectively bars these companies from disclosing user data to foreign law
enforcement authorities, companies are in a position to legally refuse to comply
with requests. As is current practice, companies can continue to demand a
judicial order from a U.S. court to comply with a request for content of any online
communications.
Second, even if localizing data could assuage fears of foreign surveillance, it
could easily lend itself to domestic surveillance. The Committee has sought to
localize data for law enforcement but “categorically refused to afford this data
any procedural protection”. The Committee has instead placed the onus on
Parliament to enact another comprehensive legislation for surveillance reform.
In other words, the government is enacting data localization in the absence of
any, let alone strong, data protection laws and enforcement mechanisms. Some
have gone on to argue that the mandate may therefore not fulfill the standard laid
out by the Supreme Court on what constitutes a reasonable restriction on an
individual’s right to privacy. This reasoning is compelling since the
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government can just as easily adopt less onerous regulations that could serve the
purpose adequately and proportionately.
Competing Incentives of Tech Companies
Developments over the past year conclusively indicate that tech companies are
relenting to Indian government demands to forcefully localize data. While these
demands are not new, the RBI made a decisive move towards enacting this
mandate for the first time targeting big tech companies – posing an existential
peril to the payment ecosystem in the country. The principal banking regulator
made it mandatory for all “payment system providers” to store payments data
locally and ensure “unfettered supervisory access” to the data stored within a six-
month period. Eighty percent of the players, including Google, Amazon, and
Whatsapp, have reportedly either complied with the regulation or are planning
to.
Undoubtedly, the RBI notification has a far-reaching impact – not only because it
is the first policy of this kind, but more importantly for what it signals lies in store.
It has been reported that the Central Bank is relying on the localization
regulation to “prepare ground” for a stringent data protection law that would be
applicable across sectors not limited to financial data. Further, the close
involvement of the central government in seeking compliance with the RBI
regulation firmly indicates the emergence of a “whole-of-government” approach,
laying the foundation for a wider localization requirement under the upcoming
data protection law.
Admittedly, big tech companies have complied with data localization laws in
Russia and China previously. However, I argue here, that submitting to an Indian
regulation (and thereby a mandate issued by a democratic state) represents a
turning point in the incentives that drive their behavior in emerging economies.
Take Facebook, for instance. The company recently not only acknowledged that
choosing where to build data centers is “one of the most important decisions”
they make, but also committed to not storing sensitive data in countries with
weak human rights records or lacking security safeguards. Meanwhile,
Facebook’s subsidiary Whatsapp is on the final stretch before storing all
payments-related data within India in the absence of adequate checks and
balances under Indian law.
It may be unclear, even unnecessary, to characterize these actions of tech
companies as hypocrisy or doublespeak. Tech companies have been and will
continue to strike a balance between cooperation with, and resistance to lawful
surveillance across jurisdictions.
In effect, however, the added complexity of responding to foreign governments
has contributed to their resistance over time. This, in turn, has resulted in heavy-
handed policies in growing markets such as India, which has distorted the
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incentives that earlier drove their actions. Companies are increasingly either
adhering to these policies or showing a willingness to. Even while companies are
incentivized by a profit motive, and understandably so, as privacy negotiators
their acquiescence or pushback plays an outsized role for the privacy rights of
Indian users. This alone demands an exercise in breaking down what incentives
drive them.
Launch of new services: The launch of WhatsApp’s first-ever payments service
coincided with the RBI localization notification. The RBI’s directive to all
payment system providers to store payment data of the Indian leg of a transaction
exclusively in India was issued in April 2018. In addition to the local storage
requirement, the stated purpose behind the regulation was for providers to
establish a mechanism to allow the Central bank to monitor this data end-to-end.
The regulation was applicable to all payment providers including international
card networks such as Mastercard and Visa, and operators of pre-paid wallets
including WhatsApp Payments, Amazon Pay and Google Pay.
The consequent resistance to this regulation by global payment firms including
big tech companies illustrated not only how their pushback was unsuccessful, but
also the stakes involved for these companies as they were vying to expand in the
Indian market. Tech companies view India as the “next frontier of growth” –
fighting to capture the sizable and growing digital payments market, which is
expected to be worth a reported $500 billion by 2020. Google Pay is reported
to have 30 million users on the platform in India alone. With over 200 million
monthly active users, India is the biggest market for WhatsApp – justifying why
the company has been testing its payments service first in the country.
Even while complying with the RBI regulation heralded significant costs and an
overhaul of existing operations; and is inconsistent with their previous policy
positions on this issue, tech companies ultimately relented. Google, for instance,
agreed to abide by all RBI requirements while at the same time maintaining that
they promote cross border data flows since they generate more economic value.
Apple, on the other hand, has reportedly stalled the launch of Apple Pay in India
in light of RBI’s localization mandate.
Even under mounting pressure from industry bodies, U.S.-India trade
organizations and U.S. senators, the Indian government has been
unwavering in its demand. The Central Bank refused to extend their six-month
deadline for compliance; did not concede to a less onerous alternative such as
a “mirror server” requirement; and did not open up to public consultation.
While companies challenged the RBI directive, it is clear that none of them
pursued a legal challenge, though the reasons why remain unclear. Combined
with the whole of government approach that the current administration in India
has adopted, we see that tech companies acceded to the localization request
given their significant growing interest in the market.
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Localization as the “less bad” option: Increasingly, tech companies operating
in India are seen to be viewing a localization mandate as a less bad option. First,
tech companies across the board have agreed to comply (some at the first
instance) with the RBI notification to exclusively store payment data arising out
of the country locally. The majority of the global payment firms including
Amazon and Google have abided by the law and satisfied the regulator’s
requirements. This differs significantly from how some of the companies have
responded to Russia’s 2014 data localization law, with some either ignoring the
obligation altogether and the rest failing to fully comply.
Second, it appears increasingly unlikely that the companies would continue to
rely on U.S. law as a crutch to resist or delay responding to requests from Indian
agencies. In effect by complying with the RBI requirement to store data
exclusively in India, the companies have ceded to the regulators’ supervisory
powers. Especially given the presence of physical infrastructure or personnel in
the country, companies might consider the risk of not attracting punitive action
more seriously.
Third, tech companies might be willing to acquiesce to data localization to stave
off demands that could fundamentally alter their technological design. Over the
past year, while WhatsApp has been under government pressure to localize data,
the company was also fighting the fire to contain the spread of viral rumors on its
platform. False videos of child abduction shared on the messaging app triggered
a spate of mob-related killings that resulted in over 30 reported deaths.
The company’s plan to launch its payment service stalled as they came under
intense scrutiny from the government to “not evade responsibility” and were
being pressured to introduce technology changes to their service. This
pressure culminated with the Ministry of Electronics and Information
Technology (MeitY)’s draft intermediary guidelines late last year that
mandatorily required companies to enable “tracing out the originator” of
messages upon requests and to respond within 72 hours. While the company
made changes to its messaging service to limit forwarding of messages, they
pushed back on the tracing requirement as it could entail breaking the end-to-
end encryption deployed by the platform. We see that while the company was
willing to alter its architecture by storing data locally for its payment service, they
were at the same time unwilling to alter a critical facet of its business model in
encryption.
Responsibility of Tech Companies as Privacy Negotiators
U.S. tech companies operating in India are therefore caught up in what can best
be termed as an identity crisis. At the crux of it, the aforementioned incentives
muddy the waters for tech companies, making it difficult for them to push for a
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workaround to adequately address the challenge of Indian law enforcement
access to data.
Since U.S. tech companies play a unique role when responding to government
surveillance, acting both as the first and last line of defense, I argue that only
companies can and must negotiate to protect the long-term privacy interests of
Indian users. Especially given that these tech companies will soon be recognized
as “data fiduciaries” in the Indian market, I argue that companies indeed have an
additional legal responsibility to protect their users’ privacy interests. Through
the CLOUD Act, tech companies can counteract the demands for data
localization while upholding high standards of due process and privacy
protections for Indian users that are currently unavailable under Indian law.
As current literature has exhaustively outlined, tech companies are the only
actors privy to the nature of requests they receive from government agencies.
Not only can tech companies afford the resources to comply with requests, but
they can also cooperate more actively, and even pushback through a legal
challenge when required. Ultimately it is only companies who have the
resources or the legal standing to fight a request – further entrenching the role
that they play as privacy negotiators.
The question that then arises is what role do companies discharge as privacy
negotiators? Are there any obligations, legal or otherwise, on these companies to
safeguard user rights within the larger surveillance architecture?
To predict the route that technology companies will adopt in the tussle between
advocating for user privacy and acceding to lawful surveillance, it is necessary to
distill the specific interests that tech companies have in going either way. Viewed
as pure corporate actors following rational self-interest, it may seem unwise for
the companies to assume any additional burden of resisting requests for access to
data, even when requests may be overbroad or vague. This holds doubly true
when American companies undertake the collective responsibility of addressing
requests from foreign governments and are called on to find a fix to the current
overburdened cross-border regime for data sharing.
Largely, the current scholarship falls on one of two sides of this debate. The first,
popularized by Rozenshtein, adopts an empathetic view that companies as
surveillance intermediaries have brought about an overall positive change or
“disciplining effect” on the surveillance regime—through pushback in courts and
mobilizing public opinion for the benefit of user privacy. Rozenshtein goes so far
as to argue that tech companies have never before relied so significantly on a
foreign user base and resisted government surveillance this aggressively in part
due to their “intense libertarian aversion to government invasions of privacy.”
The second is more cynical in its outlook where scholars argue that tech
companies shielding or delivering information to law enforcement is all
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happenstance and purely an outcome of their pervasiveness in our digital
economy. Users should have no expectations to think a “technology company
can and should be responsible for its users’ rights.” Regardless, the consensus
across the two schools is loud and clear. Tech companies post 2013 Snowden
disclosures have a commercial incentive to challenge lawful government
surveillance and advocate for users rights; and indeed on the whole until now,
companies’ actions support this contention.
However, this contention overall no longer holds any water. As I have outlined
above, the incentives of tech companies are no longer aligned with the interests
of users – at least Indian users. By conceding, indeed, complying with the Indian
government’s mandate to store data locally in the absence of adequate privacy
safeguards, tech companies’ interests have conclusively aligned with the
government and regulatory interests and no longer appear aligned with those of
Indian users; and by extension users in all emerging markets. The incentive to
launch a new service in a crucial market or the act of conceding to localization in
order to not attract other adverse regulatory mandates are compelling reasons for
companies to abandon their seemingly voluntary role as privacy negotiators.
Instead, the assertion that companies often choose to fight for user privacy
because of their profit motives and not in spite of them—as advanced by the
above mentioned cynical school—does a better job of explaining the turn of
events helmed by tech companies in the country. Simply put, tech companies find
themselves in a conflict of interests—advancing their market priorities versus
prioritizing user privacy.
This relationship between tech companies and users stands fundamentally
altered with the growing recognition of tech companies as fiduciaries. India’s
upcoming draft data protection bill may well be one of the first few legislations
that articulates this duty of care for tech companies – recognizing any individual,
state, company, or juristic entity who determines the purposes and means of
processing personal data (either alone or in conjunction with others) as data
fiduciaries.
The constitutional law scholar Jack Balkin first proposed extending the common
law doctrine of fiduciary relationships to the digital economy – and coined the
term “information fiduciaries”. This proposal has gained wide acceptance,
with the drafters of India’s data protection bill adapting it to develop a “fourth
path” to deliver a data protection regime, distinct from the U.S., EU and China –
relevant not just to India but to “all countries in the Global South”.
As information fiduciaries, tech companies including social media, search
engines, etc. will have to discharge duties of care, confidentiality and loyalty
towards users whose data they collect, store and use. This fiduciary
responsibility bestowed on companies is over and above the contractual rights
that users are entitled to and further confers the duty on companies to adopt a
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professional code of ethics to protect the data principal’s or user’s interests.
Balkin likens this duty to that of a doctor’s or lawyer’s:
Suppose that a doctor, lawyer, or accountant sold personal information
about their clients to a data broker. Suppose that they used personal
information to manipulate a client’s actions for the doctor, lawyer, or
accountant’s benefit. Or suppose that they simply disclosed it in order
to gain a business advantage at the expense of their client. If they did
any of these things, they would likely be liable for a violation of
professional conduct … Even absent an express promise not to reveal,
use or sell information, there is a duty not to do so in ways that will
harm the interests of the client, or that pose a conflict of interest.
The fiduciary relationship between users and companies, however, is not
extended to all online service providers who operate in the digital economy.
Instead, four criteria must be met for a company to be considered an information
fiduciary; whether users are placed in a position of significant vulnerability,
whether users disclose personal information to the company in return for gaining
access to important online services; and finally whether the company holds
disproportionate volumes of data about the user which can be used against her
interest. Admittedly, India’s draft data protection bill adopts a broader
sanction, indeed conferring the fiduciary duty on all actors who process personal
data in the digital market.
The criteria set out above, however, are wholly met by private tech firms in the
current surveillance ecosystem for the reasons I stated above – that tech
companies are the first and last line of defense. While the above excerpt
suggests that tech companies must be able to avoid conflicts that harm the
interests of clients, or in this case users, altogether – the reality is not as wishful.
Instead, with the statutory recognition of their fiduciary duty, tech firms have an
obligation to carry out their duty of loyalty by resolving any conflict of interest to
the benefit of their users’ interests and not their own. Therefore, as privacy
negotiators, tech companies must respond to surveillance by not endangering the
privacy of their users by localizing data in the absence of adequate safeguards,
but instead work towards a sustainable workaround. Commentators have argued
that the government’s push towards data localization in the data protection bill
(and companies acceding to this demand) undermines the fiduciary relationship
laid out in the very same bill – increasing not just privacy but the security risks of
users located in India.
Indeed, the duty of loyalty translates into fiduciaries ensuring that they use data
“only in ways that are consistent with users’ expectations.” Expectations of
Indian users can be easily traced in the submissions to MeitY during the recent
public consultation process on the data protection bill. Not only has a significant
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section of civil society and industry opposed the localization mandate but there is
also a growing consensus that an India-U.S. agreement under the CLOUD Act
must be considered as a policy alternative. Therefore, as privacy negotiators
bestowed with a fiduciary duty, tech companies must strive to leverage their clout
to push for such an agreement.
Resolving Conflicts
The whole-of-government approach adopted by Indian policymakers combined
with the support from the law enforcement and national security community has
all but cemented the government’s single-minded objective of demanding U.S.
companies to store personal data locally. This move cannot be seen in isolation
– only stemming from the challenge that the Indian government currently faces
either in accessing user data or enforcing domestic regulations. The government
recognizing that data is a “strategic asset” is motivated to level the playing field
between Indian and foreign players in the digital economy; even appointing
industry representatives with reported conflicting interests to policy drafting
committees. While there is acknowledgement that localization is not a silver-
bullet solution for all of these multifarious concerns, law enforcement access is
viewed as the only challenge that will definitively be solved by localizing data
within Indian borders. With the lines between global tech companies and their
Indian counterparts drawn, Indian companies have thrown their support behind
localization; expecting that it will give them a competitive advantage against the
outsized resources that the technology giants command.
Other developments over the past year have also contributed to a confrontation
between foreign tech companies and the Indian government. The reveal, for
instance that the Cambridge Analytica leaks had led to sharing of personal
information of 560,000 Indians with the political consulting firm. And more
recently, Twitter initially declining to appear before the parliamentary standing
committee on information technology.
From the perspective of the users, however, there is a dawning realization that
critical safeguards for privacy may be lost in this battle for compliance between
the government and companies. Especially in the surveillance regime it is
ultimately only companies that may have a legal standing to resist requests for
excessive collection of user data – further cementing the role that they can play as
privacy negotiators. In effect, global technology companies wield significant
bargaining clout that,at least until now,as been used sparingly when user privacy
has coincided with their commercial interests. On the face of it,that seems to be
changing.
Major U.S. tech companies have openly supported President Trump’s signing of
the CLOUD Act. Microsoft, for instance, has committed to additional privacy
protections on top of the CLOUD Act including the requirement for prior-judicial
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sanction before responding to request. Apple is contributing to making the
process more transparent by training law enforcement officials from around the
world in lawful data collection and by creating a web portal for requesting user
data and tracking the status of these requests. More recently, Amazon Web
Services joined the list of prominent technology companies that have lent support
to the CLOUD Act as the answer to data collection for law enforcement.
This support is not insignificant. With their sheer size, near complete integration
with the digital economy and transnational operations, the companies have
begun to resemble nation states in multilateral negotiations and as such will have
a huge bearing on whether the new framework succeeds or fails.
However, as I have examined in Part II of the article, even as companies openly
voice support for frameworks such as the CLOUD Act, their actions in response
to regulatory pressure in India suggest otherwise. A critical consideration in this
equation, however, is users’ trust in the companies’ ability to protect their data
and privacy. This trust is not limitless and for it to persist, companies will need to
walk the talk of safeguarding user privacy.
Frameworks like the Cybersecurity Tech Accord, signed by over 100 global
companies committed to protecting users against malicious cyber threats (even
those emanating from state actors), are symbolic of the clout that global tech
companies can leverage – an initiative that need to be encouraged in
conversations around law enforcement access to data.
Conclusion
Law enforcement demands for access to data have coincided and intensified with
the evolution of electronic communications. And yet, the contours of this access
are more fluid today than they have ever been and will only get murkier in the
coming years. Two paradoxical trends in technology lend credence to this fact:
even as larger and more complex data sets become available, a pivot towards
anonymising technologies is likely to make more and more data inaccessible to
law enforcement.
Law enforcement demands for access to data have
coincided and intensified with the evolution of
electronic communications.
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Earlier this year, Facebook – arguably the most important arbiter of user privacy –
announced the eventual merging of its three messaging services and the creation
of an ecosystem where the chat app essentially becomes a web browser. The
more significant part of the announcement, however, was the deployment of
WhatsApp-like encryption across all its services. The company would store no
content data and would therefore not be in a position to share it with law
enforcement. This pivot towards universal encryption is likely to intensify the
present demands for data access and a resurgence of the dichotomous debate
around user privacy versus national security.
At the same time, as emerging technologies like facial recognition, wearables,
and smart assistants become commonplace, they will create highly sophisticated
datasets including behavioral data – compounding both the volume and types of
data that can be available for criminal investigations.
While encryption will further frustrate law enforcement attempts to access data,
new and emerging datasets will increase their dependence on technology
platforms. Reconciling these two demands will need fixing the problems that
currently plague cross-border data sharing. An important realization that has
emerged in the context of controversies surrounding content moderation and
speech regulation by social media platforms has been that centralization of these
complex politico-legal decisions in the hands of a few actors.
Competing priorities around ensuring national security, investigating crimes and
protecting user privacy have long evaded any meaningful reconciliation. In many
ways, recent developments like India’s data localization mandate have forced
technology companies and privacy advocates into a corner. At the same time,
new policy frameworks like the CLOUD Act have, for the first time, thrown up an
opportunity to arrive at a sustainable and privacy-strengthening solution.
The pivot that technology companies make in their public policy posture now will
determine the way in which this debate will be resolved. It is critical that they
step up and not only bargain for stronger user protection, but also highlight to
countries like India how a cooperative and not compulsive framework will better
serve all stakeholders in the long run.
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Governing Data: Non-Discrimination and Non-Domination in Decision-Making (Joshua Simons)
Joshua Simons is a Sheldon Fellow in Government at Harvard University, and is
writing about the politics and ethics of machine learning. His research argues that
machine learning is political.
Introduction
This paper is about how modern democracies should govern data-driven
decision-making. It examines the goals that democracies might require different
institutions to embed in their decision-making procedures, including those that
use machine learning. I compare the public philosophies and constitutions of
America and India to contrast such goals, the elimination of discrimination and
domination respectively.
The present is a critical moment in the governance of data-driven decision-
making. Across the world, the debate about the governance of data and the
technology companies is gaining pace. In India, the government has begun to
develop a ‘data marketplace’ for private sector institutions to stimulate
innovation. India is also on the cusp of adopting a comprehensive legislative
framework to govern data-driven decision-making. The draft Data Protection
Bill, built on the conceptual foundations of the Srikrishna Report, will be the first
significant legislation to draw on the data fiduciary concept developed by
American lawyers.
At such a moment, it is important to pause to ask fundamental questions about
what the governance of data should aim to achieve. This paper goes beyond
familiar concerns about privacy to compare two ideas that might underpin such a
governance framework: discrimination, which I associate with American law and
politics; and domination, which I associate with Indian law and politics. The U.S.
places on institutions only the negative requirement not to discriminate in their
decision-making procedures. This limited goal does not address the ways in
which, without intent or malpractice, decision-making procedures can
compound and entrench patterns of inequality.
India’s approach in politics and law to addressing structural social inequality is
founded on the concept of domination. In particular, the ambition to eliminate
relations of domination is central to the Constitution of India and the writings
and speeches of B.R. Ambedkar. India requires society’s most important
institutions to embed in their decision procedures the goal of eliminating
persistent structures of power between social groups, a goal that extends beyond
simply the pursuit of efficiency and non-discrimination.
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Other democracies can learn much from India’s traditions, including the U.S. The
Indian idea of domination treats equity as a policy to be pursued in the name of
democracy. This recognizes that pervasive and persistent inequalities of power
—of resources and income, education and health, social status and respect—
ultimately undermine democracy itself. The promise of political equality, the
foundation of collective self-government, becomes a mirage. Because
domination is a threat to democracy, institutions across the social, economic, and
political spheres must embed the goal of eliminating it in their decision-making
procedures.
India’s current approach to governing data neglects these ideas. Instead of
drawing fromIndia’s own constitutional and philosophical traditions, the draft
Data Protection Bill imports several flimsy concepts from American and
European privacy law, including from the EU’s General Data Protection
Regulation (GDPR). India should instead pursue its own approach, built on the
idea of non-domination, rather than the shaky foundations of privacy. The
governance of data should aim not just to protect privacy, but to promote equity.
This paper applies these ideas about non-domination to the governance of data-
driven decision-making. It explores how the responsibilities of data fiduciaries,
the conceptual pillar of India’s recent Data Protection Bill, might be extended to
include responsibilities to address structural injustice. This could be done in a
context-sensitive way, that varies across institutions and sectors.
The great strength of the non-domination principle is that it forces us to ask: Who
decides? It focuses on who gets to make choices about the design of data-driven
decision procedures that will shape the contours of our societies. As we march
rapidly towards an algorithmic world, the question of what principles should
underpin the governance of data-driven decision-making, will be among the
most important political questions in the data-drenched twenty-first century.
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The Challenge: Data and Decisions
Data-driven decision-making operates at three levels. First, society itself.
Societies are characterized by differences and inequalities of all kinds. Some we
do not regard as important, such as what brand of raincoats different groups
choose to wear, what humor they prefer, or how they dance. Some are the result
of persistent structures of power, such as the way that race, gender, caste and
class shape educational and employment opportunities, access to healthcare or
credit, or the ability to be seen and heard in public with dignity and respect.
Second, data. Data sets almost always reflect these differences and inequalities.
They show us not only which clothes or humor different groups prefer, but also
the complex ways in which race, gender, caste, and class condition the
opportunities certain groups are afforded. If African Americans or Dalits are
routinely excluded from educational opportunities, property in safe and
prosperous locations, or valuable jobs and promotions, then a large and complex
dataset will reflect how being an African American or Dalit conditions—and
therefore correlates with—the opportunities an individual is afforded in life. Data
encodes social inequalities and the structures of power that produce them.
Third, the decision-making procedure. Data sets can be used to make decisions
in a number of ways. These range from simple linear models to sophisticated
forms of machine learning. When an institution develops its decision-making
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procedure, it makes choices about how to structure that procedure. These include
choices about the data-driven model itself: which data to train it on, which
features to include, what to train it to predict, rank, or classify. These also include
choices about how to combine the model with human decision-making, such as
what kind of human oversight, if any, to impose.
There are conflicting ideas about how data makes decisions different. On the one
hand, data offers the opportunity to eliminate intractable human prejudice. On
the other, data threatens to reinforce existing prejudices and inequalities.
Wealthy, white, men are better represented in data. Using that data to make
decisions—without human reflection or intervention—will simply reproduce
those injustices.
The truth is that we have choices about how we use data to make decisions. Data
gives us control over our decision-making procedures, especially machine
learning. It enables us to be explicit about the goals we wish to prioritize, the
values we wish to promote, and the trade-offs we are willing to make. We can
decide to impose a definition of fairness. Or we can decide to ignore issues of
justice and equality, and blindly pursue accuracy and efficiency.
Data raises the stakes of these choices, about which values to embed in our
decision-making procedure. Data-driven decision-making operates on a vast
scale. This means that the choices an institution makes as it designs decision-
making procedures will, over time, shape the lives of large numbers of people.
Especially in India where data-driven programs operate on a caste scale. Aadhar,
India’s national identification system, is now reported to cover almost 1.2 billion
citizens.
To understand the kinds of choices involved, consider an example. Imagine an
online advertising tool that recommends job adverts to individuals. The
recommendations reflect the past online behavior of users seeking job postings,
in particular, which advertisements they clicked on and applied to. Suppose
women on average clicked on lower paid jobs than men; the tool then
recommends lower paid jobs to women compared to men. The institution
designing the tool has three options, each with quite different technical and legal
implications.
First, the institution could establish a decision-making procedure that reflects the
world (read: data) as it is. This tool would show women lower paid jobs because
that’s the data users have given them. Second, the institution could impose some
fairness metric on their decision-making procedure. For example, they could
impose a maximum difference between average incomes in job postings for men
and women within a specified geographic area. Computer scientists have
developed a series of sophisticated individual and group-based definitions
of fairness (some of which cannot simultaneously be achieved) which could be
imposed on the model. Third, the institution could use their decision-making
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procedure to change the world (read: data). They could show women higher paid
jobs on average, subject to some reasonable constraint.
What choice should the institution designing the jobs recommendation tool
make? What should our governance framework say about which choice the
institution should make? This paper compares two ideas in the U.S. and India
about the kinds of burdens that should be placed on institutions as they make
these choices: discrimination and domination.
Governing in America: Non-Discrimination
Over the past five decades, non-discrimination has become among the most
important principles for governing decision-making procedures in the U.S. It is
broadly accepted that institutions should ensure their decision-making
procedures do not discriminate, including procedures that use data. Let us
examine this principle by focusing on one particular law, Title VII of the Civil
Rights Act of 1964, which prohibits discrimination against employees and
applicants on the basis of race, color, sex, national origin, and religion.
Recall our tool that recommends job adverts to users. The company who designs
it has three possible choices: To reflect the world as it is and show women lower
paid jobs on average, because those are the job postings they tend to click on; to
impose some fairness constraint, such as specifying some maximum difference
between the average income of jobs postings between men and women; or to
change the world and show women higher paid jobs on average than men, subject
to some reasonable constraint.
U.S. discrimination law would not require this company to pursue either of the
final two strategies. To require the company to pursue these would, in effect,
would require institutions in their decision-procedures to take affirmative action
on behalf of protected groups. This extension of the non-discrimination principle
has never gained broad purchase in the United States. To see why, let’s focus in
more detail on Title VII. This will clarify the ideas and concepts that actually
underpin the non-discrimination duty—and most importantly, their limits.
Two kinds of legal cases can be brought under Title VII, disparate treatment and
disparate impact. Disparate treatment concerns direct discrimination in which
similar people are formally treated differently, usually when there is
demonstrable intent to discriminate. More important for our purposes is
disparate impact, which is indirect discrimination that does not concern intent.
A disparate impact case involves three questions. First, is there a disparate impact
of this policy on members of a protected class? The plaintiff has to show that the
decision-making procedure causes a disparate impact with respect to a protected
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class. Second, is there some business justification for this disparate impact? This
has historically been the most important part of a disparate impact case. The
defendant has the opportunity to show there is a legitimate business case for this
procedure and thereby avoid liability. In data-driven decision-making, the
answer is usually likely to be that the procedure accurately predicts something
useful to the defendant. Third, is there a less discriminatory means of achieving
the same ends? This may become the most important component of a Title VII
case in relation to data-driven decision-making. The plaintiff can show that there
is another decision-making procedure that achieves the same goal, but produces
less discriminatory outcomes across a protected group.
In most cases, efficient data-driven decision-making procedures will not fall foul
of Title VII discrimination law as currently constituted. This is because the
principle of non-discrimination on which the law is developed does not capture
cases in which data-driven decision-making procedures reinforce existing
structures of inequality and disadvantage.
Consider two goals that have driven the development of U.S. discrimination law,
anti-classification and anti-subordination. The anti-classification goal aims to
combat unfairness for individuals in certain protected classes that results from
the choices of decision-makers. This mostly concerns formal or intentional
discrimination. The anti-subordination goal aims to eradicate inequalities based
on membership in protected classes; not just procedurally, but substantively. On
the anti-subordination view, the purpose of disparate impact law is not only to
unearth well-hidden cases of intentional discrimination, it is also to cover cases
of unintentional discrimination which entrench existing patterns of inequality.
Legal theorists and courts have reached consensus only on the anti-classification
goal. The law is not now thought by most to serve the purpose of addressing the
complex structural inequalities to which disadvantaged groups are subject.
Without the anti-subordination grounding, U.S. discrimination law has no basis
on which to impose on institutions the requirement to address structural injustice
in their decision-making procedures. “As a society,” the historian Michael
Selmi argues, “we have never been committed to eradicating racial or gender
inequality beyond immediate issues of intentional discrimination.”
The problem with the non-discrimination principle is this. It reinforces the idea
that beyond efficiency, the sole responsibility of institutions is to pursue
neutrality or blindness in the design of their decision procedures. Institutions
have no obligation to ensure that their procedures do not entrench existing
structures of inequality. Non-discrimination constrains attempts to embed
equity in the decision-making procedures of important institutions. It does not
support the goal of transforming underlying structures of power or confronting
persistent patterns of domination. As the feminist scholar Nancy Down argues,
“discrimination analysis is designed to ensure that no one is denied an equal
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opportunity within the existing structure; it is not designed to change the
structure to the least discriminatory, most opportunity-maximizing pattern.”
I believe that non-discrimination, and the ideas of neutrality or blindness it
entails, obscures the politics of debating and deciding between substantive aims,
and the trade-offs required to achieve them. Negative duties of non-
discrimination are not a satisfactory basis on which to develop a framework for
governing data-driven decision-making. We must think explicitly about how
we should treat individuals differently on the basis of the disadvantages
associated with protected groups. The rest of this paper explores how the
constitution of India and the arguments of B.R. Ambedkar might enable us to
reason through that challenge. They explore another idea to underpin the
governance of data-driven decision-making: non-domination.
Governing in India: Non-Domination
In 1950, India adopted a constitution that represented a new social and political
experiment. On the eve of independence, most of those who became citizens
could not read or write. India was a society characterized by profound hierarchies
of power and deep differences of language, education, and culture. The
constitution aimed to harness the power of the state to transform these
entrenched hierarchies. This was to be achieved, in part, by imposing on
institutions a wide range of responsibilities to directly address structural social
injustices.
India’s constitution directly challenged the liberal idea that underpins the
approach to non-discrimination in the United States, “that every attempt to
resolve social question of inequality and material destitution by political means
would lead to terror and absolutism.” As Sunil Khilnani explains, democracy in
India promised “to bring the alien and powerful machine like that of the state
under the control of human will...to enable a community of political equals
before constitutional law to make their own history.” The Constitution, as K.
G. Kannabiran describes it, particularly the Social and Economic Directives,
expressly places “the state under obligation to eliminate inequalities in status,
facilities, and opportunities between people.”
These ideas were in large part B.R. Ambedkar’s. Ambedkar’s primary concern
was with the relationship between the political sphere, on the one hand, and the
social and economic spheres, on the other. His work explored what burdens the
pursuit of political equality in a democracy placed on different actors to address
manifest social and economic inequalities.
Introducing the Constitution in 1949, Ambedkar issued a warning to India’s
Constituent Assembly. He warned his comrades, “not [to] be content with mere
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political democracy. We must make our political democracy a social democracy
as well.” He continued:
On the 26th January 1950, we are going to enter into a life of
contradictions. In politics we will have equality and in social and
economic life we will have inequality. In politics we will be recognizing
the principle of one man one vote and one vote one value. In our social
and economic life, we shall, by reason of our social and economic
structure, continue to deny the principle of one man one value. How
long shall we continue to live this life of contradictions? How long shall
we continue to deny equality in our social and economic life? If we
continue to deny it for long, we will do so only by putting our political
democracy in peril. We must remove this contradiction at the earliest
possible moment or else those who suffer from inequality will blow up
the structure of political democracy.
The contradiction between formal political equality and social and economic
inequality is, in the end, a threat to democracy. For Ambedkar, if the equal worth
of each citizen in politics stands in stark contrast to persistent inequalities in the
economic and social spheres, political equality becomes a mere formalism. The
idea of democracy becomes a mirage. Since patterns of domination reproduce
persistent inequalities, democracy itself depends on the practical and continuous
goal of eliminating patterns of domination.
This prompts a series of important political questions: Who has what burdens to
eliminate non-domination? How should they be imposed? Ambedkar’s
reflections on these questions formed the basis of some of the most ambitious
provisions in India’s Constitution. The idea was to embed social transformation
into the aims and procedures of society’s most important institutions. Powerful
institutions were explicitly required to direct their efforts towards the
transformation of society. These were the politics of confronting a long history of
injustice.
There are two relevant parts of the constitution. In Part III on Fundamental
Rights, Article 14 establishes equality before the law; Article 15 prohibits
discrimination on the grounds of religion, race, caste, sex, or place of birth;
Article 16 establishes equality of opportunity in public employment; and Article
17 prohibits the practice of untouchability. Second, Part IV the Directive
Principles of State Policy, which cannot be enforced in law, establish “equality as
a policy aimed at bringing about…changes in the structure of society.”
The implications of these provisions for public sector institutions are reasonably
clear: their decision-making procedures must contribute to the elimination
patterns of domination. For instance, in 1980, the Supreme Court ruled the
policies of reservation and affirmative action of the Indian Railway Board to be
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consistent with the constitution’s aims and purposes. The Court argued that the
State was in fact required to pursue policies of affirmative action—that is, to treat
individuals differently based on their membership of groups historically subject
to patterns of domination. Issuing the judgment, Justice Krishna Iyer wrote: “the
Indian Constitution is a National Charter pregnant with social revolution, not a
Legal Parchment barren of militant values, to usher in a democratic, secular,
socialist society which belongs equally to the masses hungering for a human deal
after feudal colonial history’s long night.”
The implications for private institutions are less clear. Case law is still
developing. Consider the scope of Article 15 (2), which states that no citizen can
be restricted on protected grounds from access to “shops, public restaurants,
hotels and places of public entertainment, as well as places of public resort
dedicated to the use of the general public.” In a 2011 case, the Army College of
Medical Services (ACMS) in New Delhi devised its own merit-based admissions
procedure. The Court found the procedure to be unconstitutional. Its reasoning
stated that private sector institutions were subject to the provisions of Article 15.
“If a vast majority of our youngers, especially those belonging to disadvantaged
groups, are denied access in the higher educational institutions in the private
sector,” argued the judgment, “it would mean that a vast majority of youngers…
belonging to disadvantaged groups would be left without access to higher
education at all.”
The court drew on Ambedkar’s arguments in the Constituent Assembly debates,
to expand the scope of the word “shop” to include private educational
institutions. The ACMS admissions procedure, the Court found, produced
disparate impact, reinforcing the disadvantage of students from disadvantaged
backgrounds. Since ACMS was subject to the provision of Article 15 (2), and its
admissions procedure produced demonstrable disparate impact against
disadvantaged students, it was unacceptable.
More interesting was the Court’s interpretation of the word “only” when
referring to the prohibited grounds of discrimination. They interpreted the word
not to prohibit merely explicit or intentional discrimination on the grounds of
some protected trait, as courts tend to in the U.S. Instead, the word meant that
“the private establishment” must “ensure that the consequences” of its “rules of
access . . .do not contribute to the perpetration of the unwarranted social
disadvantages associated with the functioning of the social, cultural and
economic order.” In other words, India’s Supreme Court has been willing to
extend constitutional provisions beyond the requirements of non-discrimination.
These provisions require private sector institutions to embed the aim of
eliminating patterns of domination in their decision procedures.
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Non-Domination in Decision-Making
How far this provision will extend remains to be seen, but the underlying idea is
clear. Democracy depends on the promise of political equality. This promise is
undermined by entrenched patterns of domination. These patterns can be
reproduced not only by the state, but by institutions that perform public
functions or that distribute important goods, such as employers, landlords,
banks, telephone networks, and so on. When these institutions establish their
decision-making procedures—hiring and firing, promoting and demoting, setting
rent and granting mortgages—they must bear some of the burdens of eliminating
patterns of domination.
As Justice Bhagwati, the 17th Chief Justice of India, wrote: “In a hierarchical
society with an indelible feudal stamp and incurable actual inequality, it is absurd
to suggest that progressive measures to eliminate group disabilities…are
antagonistic to equality on the ground that every individual is entitled to equality
of opportunity based purely on merit.”
Let’s explore the implications of the non-domination principle for the
governance of data-driven decision-making. Recall the example with which this
essay began: the tool that recommends jobs adverts. I argued that that the U.S.
non-discrimination principle provides no grounds for placing any responsibility
on a public or private institution to either impose some fairness constraint, such
as limiting the difference between the average incomes of job posting seen by
men and women, or to show women higher average incomes than men, on the
grounds that doing so would be to pursue some defensible aim of social justice.
The non-domination approach provides grounds for imposing the responsibility
to pursue both of these more ambitious aims. It could require public and private
institutions to impose some kind of fairness constraint on their data-driven
decision-making procedures, or to construct that procedure to specifically
eliminate patterns of domination. The Indian non-domination approach provides
a conceptual and legal basis for applying many of the technical approaches to
fairness developed in the computer science literature.
India could develop an approach to governing data built on this non-domination
principle. This could be done by broadening the responsibilities of data
fiduciaries, established in the draft Data Protection Bill. The fiduciary concept
rests on the idea of a relationship of trust. Banks are custodians of customers’
money; internet companies are custodians of customers’ data. That relationship
of trust entails responsibilities for the fiduciary to act in the best interests of
consumers. For instance, processing data is permitted only for purposes that the
consumer might “reasonably expect.” In a country where citizens expect
institutions to bear the responsibility of eliminating patterns of domination,
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the concept of trust might plausibly impose quite significant burdens on grant
fiduciaries. They might be required to identify and raise important trade-off
choices as they design and develop data-driven decision-making procedures,
especially those that bear on entrenched social inequalities. Those choices could
then be subject to meaningful public oversight, through explicit regulatory
provisions, civil society organizations, and public debate.
Incorporating the non-domination principle into these fiduciary requirements of
trust may stretch the idea of trust to its limits. This is not because non-
domination is too ambitious an aim, but because the governance of data is about
more than privacy. If trust cannot incorporate ideas like non-domination,
fairness, and justice, the data fiduciary concept may prove limited in a world of
algorithmic decision-making and machine learning. Jack Balkin, who first coined
the information fiduciary concept, has written about this challenge.
Instead, more comprehensive structural regulation may be required. Such
regulation must leave room for flexibility and variation. Eliminating patterns of
domination may be part of the pursuit of political equality (essential in any
democracy), but considerable variation should be permitted in terms of how this
aim is embedded into decision-making procedures. Overly prescriptive and
specific regulatory requirements would undermine the institutional innovation
that is required to achieve the overall goal.
At this critical moment in the development of regimes to govern data, we must
pause to ask fundamental questions about the ideas and aims that should
underpin them. The American approach, guided by the principle of non-
discrimination, does not impose on institutions the obligation to transform
entrenched social inequalities through their decision-making procedures. In an
algorithmic society, in which decisions are ever more often made or informed by
algorithmic procedures, there is a risk that these structures of injustice are
reproduced on a vast scale that becomes ever harder to adjust. A giant form of
path dependency.
The Indian approach, guided by the principle of non-domination, holds that
decision-making procedures, in both private and public institutions, are the right
place to intervene to address structural injustice. Many difficult questions—about
the extent of the responsibilities that different institutions should bear—remain
unanswered and profoundly under-theorized.
But what the Indian approach makes clear is that a comprehensive approach to
governing data-driven decision-making cannot simply address issues of privacy.
Such an approach must confront intractable questions about the burdens of
pursuing political equality. After all, as Ambedkar argued, nothing less than the
future of democracy is at stake. This has never been truer than in a world in
which data-driven decision-making is pervasive.
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Conclusion: Who Decides?
I would like to end by drawing attention to perhaps the most significant strength
of the Indian approach and the non-domination principle on which it rests. It
brings to the surface the politics of decision-making. It makes visible the
inevitable trade-offs involved in establishing a decision-making procedure. It
therefore forces us to confront the choices we have about the burdens we wish to
impose on institutions as they establish those decision-making procedures. It
forces us to ask what we wish to achieve and how.
This is an important strength in an algorithmic world. Too often, political choices
are buried in the technical details of decision-making procedures. In machine
learning, for instance, they are buried in choices about the construction of the
dataset, choices about the outcome of interest or target variable, or which
variables to include in the model. The risk is that a great many of the political
choices necessary in a democracy are buried in the technical decision-making
procedures of institutions, beyond the reach of legislative action and political
debate. The pursuit of justice is moved slowly but imperceptibly outside the
sphere of democratic politics.
Too often, political choices are buried in the
technical details of decision-making procedures.
Avoiding this outcome will require comprehensive legislation. That legislation
must not only set out the responsibilities of different institutions to address
structural injustice in their decision-making procedures. It must also take on an
even harder task: establishing the right institutional structure to enforce those
provisions. There is a difficult balance to be struck. Regulation should not aim to
specify precisely who has which burdens in every case; regulatory overreach can
stifle democracy, as well as protect it. Yet without regulation, there can be no
democratic oversight at all. This is not a tension specific to algorithmic decision-
making, but rather, one that characterizes the relationship between democracy
and the modern administrative state. But as ever, data and algorithms raise the
stakes.
The great strength of the non-domination principle is that it forces us to ask: Who
decides? The risk is that we pretend that nobody decides. In practice, this means
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that institutions will decide unilaterally, often in secret and without public
oversight, which priorities and values to build into their decision-making
procedures. In the case of our example of the job recommendations tool, Google
and Facebook decide, without accountability, whether they wish to pursue
efficiency, fairness, or non-domination. With the right framework, Google and
Facebook may decide first, but their decisions would then be subject to
regulatory provisions. And those provisions would, in turn, be subject to the
oversight of democratic institutions.
As our societies make more and more important decisions using data,
democracies must make choices about how they wish to distribute the burdens of
pursuing justice. Ignoring these choices will simply narrow the possibilities of
political action, producing a kind of political atrophy, eroding the capacity of
citizens to govern themselves in democratic politics. To stimulate their thinking
as they confront these choices, democracies all over the world should draw on
the writings of B.R. Ambedkar and the provisions of the Constitution of India.
This Indian approach, founded on the principle of non-domination, can provide
an approach to governing data-driven decision-making that diverges from the
familiar provisions of late twentieth century Anglo-American liberalism.
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Open Transit Data in India (Richard Abisla)
Richard Abisla is the Portfolio Manager, Americas at Caravan Studios, a division of
TechSoup.
Acknowledgments: The author extends sincere thanks to Kate Owens, Andrea Rizvi,
O.P. Agarwal, Charru Malhotra, Srinivas Kodali, Jackie Klopp, Catherine Hurd
Johnson, Marnie Webb, Niranjan Krishnamurthi, and to all those who provided
invaluable guidance and information for this project. The author is grateful to New
America, in particular, Awista Ayub, Melissa Salyk-Virk, and the 2019 India-US
Fellows, and to Caravan Studios and TechSoup for this opportunity. All errors and
omissions in this paper are the author’s alone. All information was accurate at the time
of submission/publication.
Introduction
Hundreds of millions of people worldwide rely on public transportation daily,
yet only a tiny proportion of those users have access to accurate information
about when their transport will arrive or where it is going. This lack of
information is not solely customer-facing: the majority of transit operators,
whether public or private, do not collect automated data that would allow them to
make more informed business decisions. This lack of data creates a vicious cycle
in which commuters, tired of wasting time as they wait for their bus or train,
abandon mass transit and seek lower-capacity vehicles, like taxis, rideshares,
two-wheelers, or autorickshaws, which increases congestion and air pollution.
Both transit riders and operators would benefit from access to data about public
transportation; on the user side, accurate information increases rider satisfaction
and ridership, while on the operator side, data can be used to improve offerings
and better meet the needs of local communities.
Technological innovation and the transparency movement have spurred and
spread the adoption of open transit data over the past 13 years. In 2006, the
creation of a worldwide open standard for transit data, the General Transit Feed
Specification (GTFS), provided an interoperable format for transit agencies of all
types and modalities to share data that can be displayed on mobile apps, or used
to create maps and schedules. A growing worldwide transparency movement,
demonstrated by the 2011 launch of the Open Government Partnership and the
institution of open data policies in the United States (2013), Britain (2010), and
India (2012), have provided frameworks and policy assurances that citizens can
access data collected by their governments. Despite the proliferation of
technological solutions that can promote mass transit ridership and satisfaction,
many countries lag in their adoption of open transit data, preventing their
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residents from accessing readily available tools to use transit more efficiently,
save time, and reduce their dependence on lower-capacity vehicles.
This paper seeks to explain barriers to collecting, organizing, and sharing this
data in the Indian public transport context, and will provide four case studies of
transit data projects that are working to overcome these barriers. These
successful projects provide examples of stakeholder engagement that can be
replicated in other regions, such as Latin America, and countries where large
portions of the population depend on mass transit. The paper will examine
opportunities to include public transit data into existing data and transport
policies, and will investigate opportunities to increase capacity-building efforts so
that local transit authorities have adequate information to make decisions that
favor open transit data.
Methodology
In order to investigate transit data organization and publication in India, I
interviewed 40 people over the course of seven weeks and made site visits in
Delhi, Mumbai, Kochi, Bangalore, and Hyderabad. All interviewees have
participated in the Indian mass transit ecosystem by providing, studying,
innovating, or using public transit. The interviewees include representatives from
central, state, and local government, transit corporation employees,
representatives from civil society organizations, and academics; many are also
regular public transit riders. I reviewed the existing literature on open data and
transit data in India and examined the issue via local press coverage. The
objective of the four case studies that follow are to illuminate the different
environments and sets of stakeholders that have allowed these projects to
develop and garner support within local government and transit corporations.
Case Studies
Kochi: NGO leadership and resources together with a forward-thinking government
In March of 2018, Kochi Metro Rail Limited (KMRL) was heralded as the first
metro agency in India to open its data by publishing their GTFS feed on their
website. KMRL’s open feed was developed with assistance from the World
Resources Institute (WRI), a global research organization active throughout India
that works to “turn big ideas into action at the nexus of environment, economic
opportunity, and human well-being.” Kochi had initially approached WRI for
help with their open data, and WRI was able to lend significant mentoring and
technical assistance to KMRL staff. KMRL publishes a static GTFS feed,
which, in their case, is as good as real time data due to vehicle management
software that ensures trains run on schedule.
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KMRL, despite only operating the metro, currently acts as an interim Unified
Metropolitan Transport Authority, leading other transportation modalities to
organize and share their data. Other stakeholders include private bus operators, a
network of 15,000 autorickshaw drivers, and the Rajagiri School of Engineering
and Technology (RSET). RSET is developing a data dashboard for KMRL,
allowing the agency to analyze their data in more sophisticated ways. This will
become increasingly important—and useful—as open data practices spread to
other modalities in the Kochi transportation ecosystem. KMRL has helped to
organize 950 privately-operated buses that are under contract from the
government of the State of Kerala. These bus owners have been organized into
seven companies that have agreed to have GPS devices installed on their buses
and pay for monthly maintenance. The 450 government-owned and operated
buses do not yet have GPS installed, as they have yet to go through the required
procurement process for the GPS devices. KMRL was also a key player in
organizing a cooperative of 15,000 autorickshaw drivers that will engage in a
variety of activities focused on drivers’ welfare and economic success. Most
notably, the cooperative will begin offering transportation to Metro stations on a
ticketed basis, and will develop a mobile application that will provide on-demand
access to members that utilize the GPS installed in their fare boxes. KMRL
officials note that organizing the bus companies into clusters and helping with the
organization of the 15,000 autorickshaw drivers into a cooperative have been the
most challenging parts of the project.
In order to provide arrival data for transit riders, Kochi has partnered with the
Chalo mobile application to display metro, ferry, and bus data, and will soon
add autorickshaws. Chalo has over 50,000 downloads and over 7,000 daily
users, a modest amount for a city of over 2 million people. Because Kochi’s
data is “open,” or hosted online and available for use, Kochi’s transit system is
also displayed in Google Maps, which has over 1 billion active monthly users
worldwide. As more buses and ferries are added to the GTFS feed, more
developers may elect to build products using the feed. Access to the static GTFS
files are free, and a link to the files are sent to the requestor’s email after inputting
a name and email address.
Kochi officials have a clear vision that promoting ease of access to public
transportation, such as providing first and last mile connectivity to metro stations
and providing access to digital schedules and journey planners will both increase
equity and improve environmental outcomes. KMRL officials have noted that if
transit is faster and cheaper, poorer residents will have more economic
opportunities and more disposable income, which can lead to better
opportunities for their children and a better quality of life for families. This
equity lens is unsurprising considering Kerala’s communist-leaning governance
history. In a similar vein, the Kerala Minister for Transport has publicly noted
that the shift of commuters to private, lower capacity vehicles are increasing
pollution, traffic, and accidents. Retaining transit riders, and creating new
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ones, is key to addressing these concerns. Additionally, the Kochi Smart Cities
mission shares administration with KMRL, resulting in a close relationship that
has also influenced KMRL’s commitment to open data.
Delhi: Political will and academic leadership
In November of 2018, Delhi became the first city in India to provide static and
real-time bus data feeds. Delhi’s bus open transit data project was initiated in
2016, with the formation of an advisory committee that included a broad swath
of stakeholders in the urban mobility space, including government officials, the
Delhi Transport Commissioner, staff from both Delhi bus corporations,
university professors, and industry representatives, like Google, and ride-hailing
companies Uber and Ola. The Committee was a joint initiative of the
Indraprastha Institute of Information Technology Delhi (IIITD) and the Delhi
government, which is run by the Aam Aadmi Party, a new party that won on an
anti-corruption platform and had made campaign promises to improve life in
Delhi. As a result of the committee’s work, the Delhi Government signed a
memorandum of understanding with IIITD to build a portal to share real time
information publicly. IIITD, working with a group of student interns, unveiled a
portal after five months. Both static and real-time GTFS feeds are available on
the open transit data portal after a simple registration that includes contact
information and explanation of the intended purpose of accessing the data use.
The Delhi GTFS feeds currently include the 1,700 buses that are under the
control of the Delhi Integrated Multi-Modal System (DIMTS), a joint venture of
the Delhi National Capital Territory Government and the IDFC Foundation.
Known as “cluster buses,” these orange buses are monitored by DIMTS, who also
manages the contracts with individual private bus operators. All cluster buses
have GPS installed, which allows them to be monitored from a central control
center. Presently, only DIMTS-administered buses feed real-time data into the
control center and the GTFS Real Time feed, as the remaining 3,800 buses
managed by the Delhi Transport Company (DTC) are not currently participating
due to broken or missing GPS devices.
DIMTS has developed a proprietary transit application, PoochhO. In addition
to arrival times for the 1,700 cluster buses, PoochhO estimates bus seat
availability on buses and provides proximity and contact information for nearby
autorickshaw drivers. Both DIMTS and DTC buses are visible on Google Maps,
with cluster buses providing real-time information and DTC buses offering
schedule data. However, Delhi’s bus data will be of limited use until the entire
bus system’s data is available.
Barriers in the Delhi data project include funding constraints and nonfunctional
or missing GPS units on the fleet of 3,800 DTC buses. Initially, limited
knowledge of open data practices posed a challenge, but the strong partnership
with IITD helped Delhi overcome this challenge. Furthermore, the partnership
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allowed the project to succeed without a large financial investment. One of the
project’s biggest successes has been cultivating buy-in from the Delhi local
government, the Department of Transportation, and DIMTS. And, now that the
data is online and open data activists are able to use it for their own analyses.
Bangalore: Academic influence, strong activism, and press coverage
Despite publicly announcing in 2017 that open bus data would be released
imminently, as of early 2019 Bangalore has not published open static nor real-
time GTFS feeds. Early excitement and positive press coverage of Bangalore
Municipal Transportation Corporation’s (BMTC) open data commitment has
transformed into frustration for many civil society stakeholders, including local
tech workers who use a higher tier, yet still public, level of service known as “AC
buses.” These are commuters who may shift to lower capacity vehicles when
they are left waiting at the bus stop too long, adding to congestion and air
pollution. A major fear of BMTC officials is that providing data on the AC bus
lines, which are profitable, would open up those lines to competition from
ridesharing companies Uber and Ola, reducing ridership and revenue.
Another challenge has been buy-in from leadership at BMTC. In 2016, BMTC’s
Managing Director supported open data, but soon left the organization, and her
replacement wanted to monetize the data. This monetization push is a central
barrier to open data provision in Bangalore, as BMTC has struggled to find
financial resources to support the creation of both static and real-time GTFS
feeds. Central to the desire to monetize the data is the reality that BMTC receives
little in the way of subsidies from the Karnataka state government, and is run
more like a for-profit business than a public service. However, many civil
society actors and activists take exception to this line of thinking, strongly
maintaining that mobility is a right and should be supported by the state
government. These activist voices have been highlighted in the local press, and
have provided positive pressure on BMTC leadership to make data available to
riders.
In September 2018, a new IT Director took charge at BMTC and began to actively
engage with civil society stakeholders. She began working with local NGOs to
organize a static GTFS feed, often the first step to getting more useful real-time
data. Working with the NGO Fields of View in a voluntary capacity allowed
BMTC to experiment with GTFS without incurring costs or undergoing lengthy
procurement processes, both of which could have derailed the project. The
new BMTC leadership reports that they are committed to providing open transit
data, and are actively trying to figure out how they can work with civil society and
academia to organize and provide the data. While BMTC does provide their own
proprietary mobile application, usage rates and user satisfaction are low.
Bangalore’s vibrant stakeholder community continuously advocates for open
data, putting pressure on BMTC to address the demand and need for open data.
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Central to the stakeholder community are academics like Dr. S. Rajagopalan of
the International Institute of Information Technology-Bangalore, who served on
BMTC advisory committees to help select Intelligent Transportation Systems
(ITS), which include the GPS devices and bus management software that can be
used to create real-time GTFS feeds. BMTC adopted an ITS in 2016, and now
every bus has GPS and can be monitored from a central control center. Dr.
Rajagopalan also helped to create BMTC’s draft Data Sharing Policy, which has
yet to be formally adopted. The policy is based on both the National Data
Sharing and Accessibility Policy and Transport for London’s Open Data Policy.
The Data Sharing Policy supports opening transit data for use by urban planners,
educational institutions, businesses, transportation companies, and trip planning
websites and portals. In addition to academics like Dr. Rajagopalan, the
involvement of activist groups like DataMeet and Bangaluru Bus Prayaanikara
Vedike (Bangalore Bus Commuters Forum), coupled with interest from the
local press, have elevated the conversation in Bangalore and put public pressure
on BMTC. While these groups are not solely focused on bus data, they do make
arguments in favor of better trip planning and for using the data to understand
how bus routes provide access to jobs and other resources from across the
socioeconomic spectrum. In particular, groups like the Bangaluru Bus
Prayaanikara Vedike are interested in making sure that lower-revenue bus lines
that go to poorer areas are not terminated.
Hyderabad: State open data policy leading the way
In 2016, the Telangana State Government unveiled a state open data policy based
upon the National Data Sharing and Accessibility Policy (NDSAP), becoming the
second state in India to adopt an open data policy. The policy provides clear
directives to state government departments to open up non-sensitive datasets,
going as far as saying that “opening up the government is the new world order.”
The policy indicates that datasets should be in “human readable and machine
readable formats, using open standards, and under open license.” The creation
of Telangana as a new state after splitting from Andhra Pradesh in 2014 provided
a special opportunity for the government to reflect on their practices, and “it was
realized that a lot of government decisions were not data-driven.” Leadership
from top state ministries have paved the way for Telangana state services,
including the Telangana State Road Transport Corporation (TSRTC), to
implement open data using open standards.
In order to organize GTFS feeds of TSRTC buses that provide services to
Hyderabad, the state capital, the Telangana government is working with both
WRI and Factly, a local startup that focuses on creating platforms and
infrastructure to support open data and “strengthen democracy through
engagement.” Factly and WRI will create static GTFS feeds for both TSRTC
buses and the Hyderabad Metro Rail Limited (HMRL). The first step in
organizing the TSRTC data was to identify all bus stops by their latitude and
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longitude coordinates; this was done by combining several data sets that had
been compiled over several years from multiple civil society actors, including
Hyderabad Urban Lab, Engineers Without Borders, Mufkhamjah College of
Engineering and Technology, Shakti Sustainable Development Foundation, and
WRI. From these multiple efforts, more than 8,000 bus stops were mapped,
more than twice the number of actual bus stops.
Factly and WRI designed a process to validate the bus stop data so that it can be
used as a basis for a static GTFS feed. First, spelling inaccuracies had to be
corrected and geo-locations had to be cross-checked, with names assigned to the
GPS coordinates of the 3,900 bus stops. A developer hired by WRI built a fuzzy
mapping algorithm to check and de-duplicate this data, which was then sent to
TSRTC to be verified and audited manually . The verification process has taken
over two months, and is still ongoing as of March 2019. Once complete, TSRTC
will update schedule data, and Factly and WRI will create the GTFS feed, as well
as a mechanism that TSRTC staff can use to make future changes in schedules
and routes. Once completed, the data will be ready to be shared in the public
domain.
Thanks to buy-in from top state officials there has been little staff resistance to
organizing the GTFS feed. The main barriers have been a lack of validated
information and a glut of bus stop information, which have been solved through
both machine and human validation processes. TSRTC buses do not currently
have GPS devices installed, so there are no immediate plans to organize a real-
time GTFS feed. However, the involvement of Factly and WRI certainly bodes
well for future developments, should TSRTC endeavor to install GPS devices on
their vehicles.
Figure 1: Table of public transit data for case study locations in India
City Population* Metro: Static Metro: Real Time Bus: Static Bus: Real Time
Kochi 2.81M Yes, open No, in process No Partially, closed
Delhi 28.1M Yes, closed Yes, closed Yes, open Partially, open
Bangalore 11.25M Yes, closed Yes, closed In process Under negotiation
Hyderabad 9.58M Yes, closed Yes, closed In process No
* Demographia World Urban Areas,” Demographia, April 2019, accessed March
10, 2019, http://www.demographia.com/db-worldua.pdf
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Case Study Discussion
Stakeholder Engagement
These case studies illustrate the importance of vocal stakeholders, local
leadership, and progressive policy. In each city, local champions have emerged
from civil society or from within the transit corporation to help lead and shepherd
the projects. In Kochi, Bangalore, and Delhi, NGOs or academic institutions have
provided labor and technological resources for free or at a very low cost, helping
authorities avoid lengthy procurement processes and finding money in already
stretched budgets. In Bangalore and Delhi, academics played key roles in
influencing city officials to move towards open data, educating officials on the
benefits of open data and open standards like GTFS. Both Delhi and Kochi
benefitted from political leadership who wanted to show positive change in
government services and to increase transparency. In Bangalore, a well-
organized civil society is clamoring for transit data, and has the ear of the local
press. In Hyderabad, barriers experienced by other cities, such as lack of political
will, interest, or budget, have been roundly avoided by the implementation of a
state-wide open data policy. These examples show how the leadership of civil
society can be a powerful tool in embracing open transit data, and how important
of an official state policy it can be with financial resources behind it.
Uses of Open Data
Once data is open and available, agencies can use it to understand their systems
and improve their offerings. Transit data can be overlaid with other geospatial
data, including population density and housing development, job availability,
and employment and education centers. In Hyderabad, transit data has been
used to show that public transportation options are “infrequent or nearly absent”
in the areas of the city where residents are least likely to own or have access to
private vehicles, and that they are missing near the city’s slums. This analysis
of publicly available data shows how transit can be an economic development
tool that can break the cycle of poverty. Lack of access to public transportation
excludes certain portions of the population from opportunities, making their
lives more difficult and expensive, and keeping them in poverty.
Open Transit Data: Not a universal solution
While providing transit data is critical to improving the rider experience, it is not
a panacea to solve all transit-related ills. In many cases, comprehensive bus
reform is needed to provide drastic improvements in markets where ridership is
declining, rider satisfaction is low, and entrenched problems seem
insurmountable. In Delhi, it is the poor who are most dependent on cheap
public transportation, yet they spend 25-30 percent of their income on moving
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around the city. Simply providing these transit riders with more information
about when the bus is coming may make their commute less frustrating, but the
majority of Delhi’s bus riders do not have the purchasing power to switch to
another modality if they get tired of waiting. Rather, they will wait for the bus
as long as they have to,however crowded it may be. For these riders, knowing
when the bus is coming might not be the biggest change they’d request from their
transit operator; given the choice, they would probably prioritize more vehicles,
more frequent departures, and cheaper fares over digital signage or a
smartphone app that communicates arrival times.
Transit Data: Open best, closed still good
It is also important to note that transit data does not need to be “open,” or
publicly available online for free in order to be used for analysis or trip planning.
Many agencies choose to organize a GTFS feed, but keep it closed for their own
internal analysis and to provide a proprietary mobile or web applications that
riders can use to access schedules and trip planners. Transit riders are then only
able to use the proprietary application, which provides one point of failure and
may be of lower quality than other transit applications. One reason for varying
quality is that several of the top transit applications, such as Google Maps and
Moovit, are private companies that have invested multiple millions of dollars in
their products. It makes sense that the user experience, design, and performance
of these applications would be superior to an application created by a city transit
agency, no matter the talent and skills of the in-house developers. Additionally,
there is little need to reinvent the wheel of building an in-house transit
application when publishing a GTFS feed online allows consumers to access
multiple applications. It is important to note that smartphone applications are not
the only option to provide transit data to consumers, and transit data can be used
to create resources like maps and timetables, as well as text or voice-based
applications for feature phone users. While open data allows for customers to use
more products and researchers to perform more analyses, the first goal should be
providing access in order to promote ridership, whether the data itself is open or
not.
Suggested Policy Interventions
Despite strong research that shows the benefits of transit data to riders and
operators, and organized civil society that clamors for access, too many local
governments lag in their provision of data to their communities. What follows are
recommendations for policy and capacity building interventions that could help
cities provide useful data, thereby promoting the use of mass transit.
National Data Sharing and Accessibility Policy
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There are several opportunities to weave transit data into existing policies. First,
the National Data Sharing and Accessibility Policy (NDSAP) was implemented in
March 2012, and soon thereafter the Open Government Data Platform India
was launched. Despite the NDSAP setting clear expectations for all
government agencies to share data in an online format for use by civil society, the
policy is not mandatory, and only provides guidelines to central government
agencies, and not to state or city government agencies. In India, cities have a
much closer relationship to the state government than the central government,
and city services are often managed by the state government. For this reason, the
most effective way to influence urban policy is to influence state policy.
State Open Data Policies
The case of Telangana shows that adapting the NDSAP into state policy provides
a clear pathway for open transit data. According to the Centre for Budget and
Governance Accountability, as of August 2018, only five of 29 states have
instituted their own state-level policy that corresponds to NDSAP or have
adopted the NDSAP as state policy. While enforcement might be difficult to
ensure, given that the national policy itself lacks enforcement mechanisms,
expressly including transit data in state open data plans provides clear
expectations to cities that transit data be open and freely available. Codifying
these expectations into state-level policy will also strengthen the position of both
transit activists (like commuters’ groups) and open data organizations and
activists (like DataMeet), giving them a policy to refer to as they work to hold
local governments and transit operators accountable.
Local, Transit-Specific Open Data Policies
In the absence of a state policy, local, transit-specific open data policies, such as
BMTC’s draft policy, would provide a pathway for cities to embrace open data
without the express support of the state government. Such policies have the
potential to provide leadership from below, and could lead to a visible “win”
that could demonstrate the value of open data to the lives of everyday residents.
Releasing transit data on an open standard like GTFS provides the benefit of
harnessing the imagination and brainpower of many actors, such as the robust
developer and startup community. GTFS also enjoys strong support and interest
from civil society, including academics, and large multilateral institutions. Even
those who don’t necessarily support GTFS, like Rajarshi Sahai, the former India
country manager for transit app startup TRAFI, believe in localized policy:
“Policy must evolve out of unique experiences of each city than following
templates/exemplars.” Codifying open transit data into local public policies
would have the dual impact of supporting commuters and transit riders and
supplying the potential to spread open data practices amongst all levels of
government.
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Smart Cities Mission
Transit data could also be couched in existing, and future, Smart Cities policies
and projects. Transit on the whole is a focus of the burgeoning Smart Cities
movement in India. The focus is to support “urban development through
capacity building, research, service, and infrastructure innovations and citizen
engagement,” and the central government is actively working with State-level
departments and agencies to implement Smart Cities programs. A key
opportunity to spread the technology tools key to creating open GTFS feeds is the
National Urban Innovation Stack (NUIS), a platform to share cloud-based
technology services amongst all participating Smart Cities. The NUIS could
easily include GTFS creators and management software, in addition to targeted
training on open data practices. The NUIS is well positioned to include existing
data creation tools, like scripts that convert a city’s transit data from KML or
JSON files into GTFS, and GTFS management software. The monetary savings of
providing this software centrally would be significant, and would immediately
provide tools to 100 cities that would encourage and enable them to organize and
publish their transit data. This would also contribute to creating a “culture of
data” that other cities, such as Medellín, Colombia, have found useful in
becoming more data-driven. Cities that have invested public funds into
developing their own mobile apps could choose to share the source code of these
applications, resulting in further savings for cities that want to provide
proprietary mobile apps.
National Urban Transport Policy
Lastly, transportation policy itself provides an avenue to compel state and city
governments to organize and provide transit data. In the context of rapid urban
growth, the Government of India instituted the National Urban Transport Policy
(NUTP) in 2006, and updated it in 2014. A main tenet of the policy is to
encourage residents to use public and non-motorized modes through offering
financial assistance to state government agencies, as well as providing leadership
in order to “guide State-level action plans within an overall framework.” The
plan acknowledges that state-level policy and laws are the way to improve urban
transport, and provides significant financial resources for states to plan and
implement public transportation systems. While the NUTP does not explicitly
mention open transit data, it does encourage the installation of GPS devices on
buses, which make it possible to provide GTFS-Real Time data. A customer-
facing data provision that ensures transit riders have access to scheduled and
real-time information in a digital format would work towards the ultimate goal of
reducing the number of cars on the road, lessening congestion and air pollution.
Significantly, the NUTP recommends that each city with more than one million
inhabitants set up a Unified Metropolitan Transport Authorities (UMTA).
These agencies will be charged with integrating different transportation
modalities – such as bus, metro trains, and autorickshaws. A key benefit will be
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the coordination amongst the agencies, solving problems like a bus stop that is
200 meters from the Metro entrance, or a bus line running along the same route
as the metro. UMTAs can support open data by setting standards around data
provision and publication, and by requiring all public transportation providers in
the metropolitan area to make data available. When systems are fully integrated,
it may be possible that some services that make money may subsidize services
that are not profitable.
Capacity Building
Alongside policy, stakeholders agree that capacity building amongst local transit
corporation staff could have an enormous impact on the provision of open transit
data. Capacity building should focus on the dual audiences of decision-makers,
who will engage with cost-benefit analyses and budget considerations, and
technical staff, who will create, manage, and maintain GTFS feeds. O.P. Agarwal,
the CEO of WRI India, believes that officials want to do the right thing, but often
don’t have a good understanding of what open data means and entails, despite
the phrase being a popular buzzword. Helping leaders understand open data,
the required effort and cost to convert existing data to open data, and the benefits
to ridership, revenue, and rider satisfaction would help these staff to make more
informed decisions that would benefit riders. Likewise, more technical
training and capacity building is needed, as some IT staff lack the knowledge to
build an API to provide their data, and others are uninterested in providing data
to startups or end users. Strong policy, however, will provide both the incentive
and reason for capacity building, and will provide a nationwide goal of transit
data provision.
The Smart Cities Mission provides an excellent opportunity to include capacity
building around open transit data, due to the existing inclusion of both urban
mobility as a thematic priority, and a capacity-building mechanism. The new
National Urban Learning Portal will provide an online portal for city officials to
participate in ongoing trainings relevant to Smart Cities. Providing a structure
for local officials to participate in centrally-endorsed training programs is a good
start to spreading good open data practices. As part of the Smart Cities mission,
every city has a Chief Data Officer, who could act as a key resource for city staff
who are deputized to organize and publish public data. Mobilizing existing
resources to help promote open transit data would be relatively low-cost, yet
could easily impact hundreds of millions of people.
Lastly, many sources have noted that there are few national convenings that
bring together decision-makers from transit corporations, government officials,
NGO representatives, activists, and community groups to discuss and learn
about these issues. A forum for all stakeholders could help spur innovation and
operationalize some of the research and innovation into the mass transit systems.
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These events provide space for each stakeholder group to understand the
needs and challenges of the other, and to start to address issues and challenges
together. As one Delhi transit official shared, the more minds there are involved
in solving a problem, the better the ideas.
Conclusion
In the absence of a central policy or law with clear flow-down requirements to
states and clear enforcement mechanisms, transit data provision will continue to
be ad hoc and dependent on civil society’s leadership and resources. In
conversation with several transit authority leaders, it became clear that central
policies with clear incentives and enforcement mechanisms would spur local
transit providers to organize and publish transit data. One official highlighted the
importance of buy-in from the highest level of public hierarchies, stating that
“water can only be poured from the top.” Funding should not be overlooked as
part of the policy push, as many civil society groups become involved in open
transit data due to financial constraints within the public transit corporation.
These NGOs are often able to marshal their own resources, or use related grant
funding, to perform tasks that ideally would be the responsibility of the local
transit corporation. Capacity building efforts that dovetail with existing
government programs can help to socialize information about open data and
build comfort and interest amongst both decision-makers and technical staff who
will implement open data practices in their organizations.
In order to promote public transit usage and better
transit systems in general, cities should invest in
transit data.
This paper provides suggestions on amendments to existing policies to include
open transit data, proposals on capacity building provision, and technology tools
geared to state and city transportation corporations. While civil society has
proven to be effective in engaging stakeholders and guiding transit corporations
towards understanding the value of open transit data, policy interventions would
help to shift the responsibility from NGOs, civic hackers, commuter’s groups, and
universities to the government agencies themselves. And while NGOs do a great
job spurring transit agencies to adopt open data practices, it is not feasible for
them to act as the back office for transit agencies in perpetuity. In order to
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promote public transit usage and better transit systems in general, cities should
invest in transit data. Not only will this increase rider satisfaction, ridership, and
revenue, but it will decrease congestion and pollution, bettering the quality of
life for residents of Indian cities, and cities worldwide.
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Blockchain Regulation in the United States:Evaluating the overall approach to virtual assetregulation (Tanvi Ratna)
Tanvi Ratna is a policy analyst and engineer, managing blockchain projects with a
leading global consulting firm, based in India. She helped design the blockchain policy
framework of the Government of Karnataka, home to India's Silicon Valley, and helps
advise the central government in India on blockchain regulation. Her research focuses
on designing effective regulatory frameworks for blockchain.
Introduction
Blockchain technology and cryptocurrencies have received more hype and
regulatory attention than perhaps any other emerging technology in recent times.
There are both private blockchains, where access to the network is permissioned,
and public blockchains, where access is open. Public blockchains are powered by
virtual currencies or cryptocurrencies. They are different from Distributed
Ledger Technology (DLT), in that they have a consensus layer powered by
cryptography, and the whole system sustains itself with an incentive structure,
which is the cryptocurrency. Blockchain, for the purposes of this paper, primarily
refers to public blockchains unless otherwise specified, as the bulk of the
regulatory and policy focus has been around public blockchains.
Blockchain offers a highly compelling case of futuristic regulation and the ability
of governments to cope with rapid technological developments for the following
reasons:
• Technology with in-built economic model: Public blockchains are
different from other technological innovations so far, in the sense that
they are more than just a technology, but also more than just a currency or
financial instrument. Blockchains are networks with an unorthodox peer-
to-peer economic model. This makes it difficult to define a policy
precedent or approach.
• Multi-faceted and global instrument: Cryptocurrencies can behave as a
currency or equity, they are global by nature, and cut across the fields of
technology, finance, and business. Traditionally, all these aspects of
economic behavior are regulated in silos.
• Paradigm shift for society and business models: Because of their
networked and peer-to-peer nature, blockchains can reorganize existing
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silos in systems and processes, and have far reaching effects on existing
social, business and governance structures.
Blockchain is an interesting test of how governments cope with emerging
paradigms, as it is a challenge to traditional mindsets and systems across the
board. As phrased in a recent report by Don Tapscott, the challenge is to create a
regulatory environment that “simultaneously protects investors and consumers,
sustains innovation, grows the economy, and cultivates a new kind of society.”
This study is a brief survey of regulatory actions and capacity building efforts
undertaken by different agencies of the U.S. federal government towards
cryptocurrencies and blockchain technology, and some perspectives from the
ecosystem and state government levels. The aim of this study is to assess the
overall government strategy being adopted towards this technology in the United
States.
The Overall Approach to Blockchain Regulation in the United States
The definition of cryptocurrencies is still an evolving debate in the United States,
with many calls for over-arching definitions and clarifications. Even at the time of
publication of this paper, a taxonomy act had been introduced in the U.S.
Congress to address this precise issue. The government, at least at the level of
federal financial regulators, applies the following system of classification towards
cryptocurrencies, or their preferred moniker the “digital asset.”
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Figure 1: Classification of Virtual Assets by U.S. Financial Regulators
Source: Multiple officials, U.S. Department of Treasury, personal interviews, Feb.
2019, Washington, D.C.
There are many other agencies involved, outside of the three major regulators,
even at the federal level. These include the U.S. Congress, which has a
Blockchain Caucus; criminal enforcement agencies such as the FBI, Department
of Justice, and Homeland Security; and a host of inter-departmental task forces.
For the purpose of this study, we explore in some detail the actions of the three
major regulators who are the main drivers of activity, as well as some
perspectives from the ecosystem and state government levels.
Activity by Major Federal Regulators
Securities and Exchange Commission (SEC)
The SEC has been one of the two most active agencies on cryptocurrency
regulation in the United States; the other being the Commodity Futures Trading
Commission (CFTC), which will be discussed later. The SEC is not one of the first
agencies to begin regulating but it became more active with the growth of Initial
Coin Offerings (ICOs) and security issue related activity in the blockchain
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ecosystem around 2016. The SEC views (some) virtual assets as securities, and
recently issued guidance to that effect.
Regulatory Action: From 2014 to 2017, the SEC was cautious of
cryptocurrencies. From 2013 to 2014, the agency issued investor alerts on Ponzi
schemes and fraudulent activities in virtual currencies. The focus was on
investor education and fraud prevention.
The DAO hack of 2016 was a major turning point in shifting the attention of
the SEC towards the classification of cryptocurrencies into securities and non-
securities. In 2017, the SEC issued an in-depth investigative report definitively
classifying the DAO as a security. This spurred intense deliberation globally on
security vs. utility tokens, and different countries such as Switzerland, Singapore,
South Korea issued classification frameworks.
ICOs proliferated in 2017-2018 and the cryptocurrency market reached some of
its highest valuations by the end of 2017. In the wake of concerns about scams
and an unregulated ICO market, the SEC undertook heavy enforcement action in
Feb 2018. Over 80 firms that had undertaken ICO offerings were subpoenaed.
In 2018-20119 the explorations of asset classes deepened with the submission of
proposals to launch a Bitcoin exchange traded fund (ETF) to boost institutional
investment. The SEC rejected nine of these proposals. Some major decisions on
new submissions are expected in 2019.
On April 3, 2019 the SEC released its most definitive guidance to date, providing a
framework for identifying whether a token was an investment contract or not.
The SEC has now set a precedent of issuing “no-action letters” to startups after
studying their business models. The no action letter lays out conditions to be met
and serves as an assurance of no action by the SEC against the startup, for the
actions it has disclosed in its application. The SEC issued its first “no-action
letter” after 11 months of deliberation and discussion with the Florida-based
startup, TurnKey Jet, Inc. after examining it through the Howey Test, and
deciding that their token offering was not a security, but closer to crypto-based
store credit.
Capacity Development: The first in-depth activity by the SEC on blockchain
was the DAO investigation in 2016, and they have been steadily increasing their
capacity on the subject ever since. In January 2018, Hester Peirce, a leading
champion of blockchain technology, was appointed as one of the five
Commissioners of the SEC. The agency already had active working groups
looking at the technology, such as the distributed ledger working group.
In June 2018, a new senior advisory position was created at the SEC to coordinate
efforts across all SEC divisions and offices regarding the application of U.S.
securities laws to emerging digital asset technologies and innovations, including
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initial coin offerings and cryptocurrencies. Valerie Szczepanik was appointed to
this role.
Similar to the model of LabCFTC, in October 2018 the SEC set up a dedicated
team, called the Strategic Hub for Innovation and Financial Technology (Fintech
Finhub), with a sizeable staff to serve as the focal point for tracking and
interacting with fintech issues and innovators. The Finhub is also in the process
of hiring a crypto securities lawyer at the time of this writing.
Commodity Futures Trading Commission (CFTC)
The CFTC has been one of the two most active federal agencies in the regulation
of cryptocurrencies. It is also widely considered to be the most supportive of the
innovation.
Virtual currencies have been determined to be commodities by the CFTC under
the Commodity Exchange Act. While its regulatory oversight authority over
commodity cash markets is limited, it maintains general anti-fraud and
manipulation enforcement authority over virtual currency cash markets as a
commodity in interstate commerce.
Regulatory Action: The CFTC adopts and advocates for a “light touch”
approach towards cryptocurrencies. It refrained from issuing any directives or
taking any enforcement action until late 2018.
During peaking bitcoin prices, ICOs, and an SEC crackdown, the CFTC also
undertook enforcement actions from early 2018. It issued a first full ban for
fraudulent trading activity to the company CabbageTech in August 2018, and
issued the arrest of a cryptocurrency trader for fraud in November 2018.
Capacity Building: The CFTC has been quick to embrace the incoming
changes brought about by a host of emerging technologies, including blockchain
and machine learning, and focuses on staying on top of developments and
innovating its own processes.
In 2017, they pioneered a forward-looking regulatory model with the launch of
LabCFTC, a focal point to make the CFTC more accessible to fintech innovators
and serve as a platform to inform the Commission's understanding of new
technologies. The lab aims to promote responsible FinTech innovation to
improve the quality, resiliency, and competitiveness of U.S. markets, and to
accelerate CFTC engagement with fintech and regtech solutions.
The lab has grown to a six-member core team with law and technology
backgrounds and serves as an internal platform and think tank for the CFTC. It is
structured in a hub and spoke model, with staff from operating divisions who
serve as subject matter experts. LabCFTC has an open door policy and pursues
active engagement with the startup and stakeholder community including
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through hosting office hours in cities across the U.S. It also has international
partnerships with governments in the United Kingdom, Australia, and Singapore.
In 2017, the Agency launched a podcast series, the first of its kind for a
government regulator, to educate consumers and bring in wider perspectives
from government, private sector, and civil society on a range of topics, including
FinTech. Over five podcasts, four consumer advisories, and two primers were
released by the CFTC LabCFTC, and the Office of Customer Education and
Outreach on the topics of cryptocurrencies and smart contracts between 2017
and 2018. The lab recently issued a Request for Information on Ether in order
to help inform the Agency on aspects of crypto-asset markets and mechanics.
The U.S. Department of the Treasury
The U.S. Department of the Treasury and its associated agencies play a host of
important roles in setting the direction and coordination on digital asset
regulation.
The U.S. Treasury has been looking into cryptocurrencies through its own
divisions, the most visible of which have been three of its specialized agencies:
the Internal Revenue Service (IRS), Financial Crimes Enforcement Network
(FinCEN), and the Office of Foreign Assets Control (OFAC). The Treasury and
their agencies look at virtual assets in their role as a currency, though as an
exception, the IRS define them as property for tax purposes.
Financial Crimes Enforcement Network (FinCEN) and Office of Foreign
Assets Control (OFAC)
One of the most active areas of guidance and enforcement by the Treasury has
been around anti-money laundering (AML), know your customer (KYC), and
Counter Terrorism Financing and Sanctions.
With a mandate to safeguard the U.S. financial system from illicit use and combat
money laundering, the FinCEN was one of the first regulators to become active
on cryptocurrencies in the United States. As early as 2013, the FinCEN issued
guidance that virtual currency exchangers and administrators would be
considered money transmission businesses (MSBs). In a letter to Congress in
2018, FinCEN reiterated that stance with clarifications regarding who would be
required to comply.
As a result, virtual currency exchangers and administrators are required to
register with the FinCEN, comply with existing AML/KYC requirements, and the
Bank Secrecy Act (BSA), including suspicious activity reports (SARs) and
currency transaction reports (CTRs).
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As of 2018, there are approximately 100 virtual currency exchangers and
administrators that have registered as MSBs with FinCEN. FinCEN has
examined one third of these MSBs and has brought several enforcement actions.
In 2018, FinCEN and OFAC both released guidance on virtual currencies
compliance with sanctions on Iran. OFAC added a set of blacklisted digital
currency addresses to their Specially Designated Nationals And Blocked Persons
(SDN) list.
Internal Revenue Service (IRS)
In 2014, the IRS issued Notice 2014-21 in the form of FAQs to describe how
existing tax principles would apply to transactions using virtual currencies. In
this notice, the IRS stated that virtual currencies would be treated as property for
federal tax purposes and provided some information on taxation for some
activities such as mining, self-employment, contracting, and third party
settlement. However, the technology has matured significantly since then,
leaving many questions still unanswered. There have been an increasing number
of calls from the community, from lawyers, and even from Congress for the
IRS to issue updated information and clearer guidelines.
Capacity Building: There are two aspects of capacity building in the Treasury:
one, at the level of coordination of overall financial regulation; and two, in terms
of internal capacity.
At a high level, the Treasury Secretary has the authority to convene all financial
regulators. Through the Financial Stability Oversight Council (FSOC), a working
group on digital assets was convened in 2017. It was comprised of several
regulators, including the SEC, CFTC, the Consumer Financial Protection Board
(CFPB), the Federal Reserve, the Office of the Comptroller of the Currency
(OCC). After 18 months of deliberation over new technologies, including
blockchain, the FSOC came out with a seminal report on recommendations for
FinTech in general, which included aspects such as the streamlining of state and
federal money transmission laws and experimentation with regulatory
sandboxes. In recent remarks, a senior official also said the Treasury supported
the idea of a federal charter for streamlining regulation.
The Treasury leads the FSOC digital asset working group and the Treasury and
FinCEN participate in a host of inter-agency working groups such as the FBI-led
Virtual Currency Emerging Threats Working Group, the FDIC-led Cyber Fraud
Working Group, and the Terrorist Financing and Financial Crimes-led Treasury
Cyber Working Group. These groups provide a consistent platform for capacity
building and exchange amongst U.S. financial regulators on blockchain and
virtual assets.
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Unlike the other agencies, the FinCEN does not have a public-facing focal point
of contact for the blockchain community. It does, however, have a network of
dedicated officers for virtual currency in its relevant offices and bureaus, such as
the Office of Terrorist Financing and Financial Crimes.
In terms of internal capacity building, a unique tool developed by the Treasury is
the FinCEN Networking Bulletin that was launched in March 2013. The bulletin
provides a more granular explanation of virtual currency movement to law
enforcement, and assists them in following the money as it funnels between
virtual currency channels and the U.S. financial system.
Among other things, the bulletin addresses the role of traditional banks, money
transmitters, and exchangers that come into play as intermediaries by enabling
users to fund the purchase of virtual currencies and exchange virtual currencies
for other types of currency. It also highlights known records processes associated
with virtual currencies and the potential value these records may offer to
investigative officials.
More recently, the bulletin has been expanded from only U.S. financial regulators
to include some international partners as well. The bulletin has a crowd-sourcing
feature and asks the readers to provide ongoing feedback on what they are
learning through their investigations.
This bulletin has helped the FinCEN create a forum to quickly learn of new
developments. Furthermore,based on this information, the FinCEN has issued
several analytical products of a tactical nature to inform law enforcement
operations.
Perspectives of Other Stakeholders
State Governments
State governments within the United States have their own jurisdiction over
money transmission and enforcing financial laws, as well as in designing
corporate licensing and registration and other incentives to attract startups and
investment in their state. New York was the pioneering state in starting these
experiments in 2014, and since then several states have come out with their own
bills and frameworks.
In 2014, the New York Department of Financial Services created the ‘BitLicense’,
a business license for virtual currency activities applying to activities involving
New York State or its residents. It included regulation around money
transmission, custody, exchange services, and other aspects. Although New
York had a first mover advantage and followed a thorough consultation process,
the eventual regulation was seen as onerous and not well suited to the needs
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of the startup community. Since then, several states have developed bills and
legislation to incentivize blockchain startups, including Arizona, Delaware,
Nevada, Massachusetts, Washington, and others. The most comprehensive
and innovative reform to date has, interestingly, come from the state of
Wyoming.
In early 2019, Wyoming passed a monumental 13 bills to provide one of the most
comprehensive legal frameworks for blockchain startups in the United States.
Unique protections granted under this legal framework are direct property rights
for individual owners of digital assets, a state chartered depository to provide
banking services to blockchain startups, a series LLC corporate structure,
qualified digital asset custodians, and a regulatory sandbox. This framework is
the most comprehensive till date in the United States.
Startups and Ecosystem Perspective
The blockchain developer and start-up ecosystems in the United States have
faced stark consequences in terms of federal regulations and have their own
perspective on how legislation should be created. The significant drop in token
prices starting in 2018 led to a period of contraction in the industry (termed
“Crypto Winter”) that was, in part, attributed to regulatory crackdowns. The
author undertook a series of interviews with blockchain startups and venture
capital funds in tech hubs on the West Coast to gauge the impact that regulatory
action was having on start-up growth in the space. This revealed a number of key
points of concern.
• Investment has slowed down considerably for crypto-based
blockchain projects based in the United States: Multiple startups
spoke of capital becoming very difficult to secure for crypto-based
blockchain projects in the United States. While funding does come in for
private blockchain startups, and in trading activity, large scale investment
into public blockchain protocols has slowed considerably. Regulatory
action has slowed both retail and institutional funding into public
blockchain projects, and also impeded the flow of private money. Some
startups with innovative products were almost on the verge of shutting
down because they were unable to find funding. Many budding startups
spoken with in the Seattle area had shut down over the last year because
of funding shortages.
• Public blockchain firms tend to adopt foreign domiciles: Some
venture funds commented that even if they wanted to invest in public
blockchain startups and have them based in the United States, the lawyers
would advise strongly against domicile in the U.S. Multiple startups
commented that it was a “no-brainer” for them to domicile their crypto-
based startups outside of the U.S., which they saw as “unfriendly to
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cryptocurrencies.” A strong sentiment amongst both startups and funds
interviewed was that they believed the U.S. government viewed
cryptocurrencies negatively and did not support or understand the
transformative potential of public blockchains.
• The regulatory landscape is too confusing for startups: Almost all
the startups interviewed found the proliferation of regulators confusing to
navigate and said that under current guidelines, they were never sure of
when they were under threat of enforcement action. Many startups had
taken the initiative of reaching out to their Congressperson and spending
significant sums on hiring lawyers. However, they were quickly
overwhelmed by jurisdictional confusion between who was setting
guidelines and policy standards and who was responsible for
enforcement. Practitioners and product developers said that despite best
efforts, they were left without a clear understanding of how to legally
secure themselves according to continuously emerging guidance
measures. As a result, the preference was to domicile their start-up in
another country with simpler rules.
• Enterprise experiments are becoming larger: Juxtaposed against a
shrinking public blockchain start-up scene were also comments of “Big
Tech” experiments in blockchain growing larger and more ambitious.
There were multiple mentions of Facebook’s upcoming blockchain
product, of the IBM and Walmart’s blockchain project, and Microsoft and
other Big Tech firms’ experiments gathering scale and momentum. Some
concluded that enterprises would outpace disruptive platforms such as
Bitcoin and Ethereum in blockchain adoption, which was in some ways
inimical to the disruption of blockchains to monopolistic power.
Overall Conclusions on the U.S. Approach
The U.S. federal government’s approach has been almost entirely regulatory-led.
Legislation and policy are absent from federal government action on virtual
assets so far. As a quick note, the Congressional Blockchain Caucus has a small
number of members, and although they have introduced three bills, it is unlikely
that these will pass anytime soon without wider support in Congress.
An overall assessment of the federal regulatory approach so far highlights the
following concerns:
The U.S. federal approach is highly fragmented
The most obvious aspect of the federal approach is the highly fragmented nature
of regulatory action. In the absence of directives by Congress or the White
House, regulators have taken the lead in government action in the sector. This
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has created the risk of patchwork regulation due to a highly proliferated financial
regulatory system. To their credit, as seen in this paper, federal agencies have put
in place many mechanisms for coordination. However, as also seen, this
approach has created a lot of confusion and uncertainty on the ground for
startups and investors, and has led to the U.S. being seen as an unfriendly
destination for crypto-based startups. The model of regulation-by-enforcement,
rather than a light touch approach, has deepened this perception and created a
clamor for clear rules and guidance before harsh enforcement.
The U.S. federal regulatory approach is missing the paradigm-shifting nature of the
technology
Financial regulators have taken a risk-based approach that is technology-neutral.
As a result, virtual assets, in their examination by the federal government, have
been reduced to their financial functions. This is unfortunate, because
blockchain technology powered by cryptocurrencies has transformative
implications, not just as a currency or payment medium, but as a business model,
as a capital formation model, and as a new protocol for transactions that form the
basis of the economy and can impact institutional power and social structures.
There is no agency in the federal government that is looking at blockchain
technology as a whole. ICOs, for example, have been reduced to whether or not
they are security offerings, but no examination has been done of the model with
regard to capital formation laws. No examination has been done of banking laws
for blockchain business models at a federal level.
Federal regulators have not undertaken any new rule-making on the issue. This is
exacerbated by the lack of federal legislative or executive action. The overall
approach of the government has been to extend the application of laws, in many
cases from the 1960s, to regulate innovations in the space. This can work in the
short term; however, this is increasingly getting entrenched as the federal
approach. It started with the FinCEN extending the application of MSB laws in
2013 and continues with the latest SEC guidance furthering the application of the
Howey Test in 2019.
It is understandable that since blockchain technology is not used on a major scale
yet, federal regulators need not engage in a lengthy and expensive rule making
process. However, there are also no signals that such thinking is underway. The
internet boom taught us that technology may take time to develop, but it
proliferates and gets too big to ignore very fast. The world still faces regulatory
challenges from the internet revolution, for example, by not thinking ahead
around the use of data in business models. However, these technologies are now
too big and deeply embedded in the social fabric to be changed drastically. It
would be irresponsible to make similar mistakes with blockchain, as many are
referring to it as the second internet.
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The U.S. federal regulatory approach is possibly entrenching intermediaries and
existing power structures
U.S. regulators, to their credit, have been vocal and careful about wanting to
regulate abnormal activity without hampering innovation. However, perhaps
unintentionally, regulatory action so far has had the effect of entrenching
existing power structures and business models, rather than supporting
innovation. This has happened on two fronts.
The first front is entrenched money flows. Blockchain startups had developed an
innovative fundraising and user acquisition model with Initial Coin Offerings
(ICOs). However, this needed a new regulatory framework, in the absence of
which fraudulent activity proliferated. Some countries chose to regulate this by
using a sandbox approach. However, the United States undertook a regulation-
by-enforcement route, with no clear legal guidelines to hold ICOs. While this did
stop fraudulent activity, it also stopped a lot of legitimate activity by scaring away
investors and startups, who chose to domicile elsewhere. SEC released its
guidelines for ICOs only in February 2019, a year after the wave of enforcement,
by which time several other countries had come out with ICO frameworks and
startups had relocated. The other effect this had was to reinforce the existing
fundraising structures of private, venture capital and institutional money, many
of whom were themselves getting disrupted by the ICO model, which had
created an alternative avenue of fundraising. It also limited public offerings to
traditional listing rules which are notorious in the difficulty they create for
startups to list. After the JOBS Act and Section D, the ICO model was a second
alternative to startup funding that should have received greater attention as an
innovation that needed to be fenced in by appropriate rules rather than stopped
completely by enforcement.
The second front is entrenched advantage for enterprise and large tech firms.
Regulatory action against cryptocurrencies has created a preference for private or
enterprise blockchain activity. Prescient industry watchers have already pointed
out that true disruption is in public blockchains, that siloed private blockchain
experiments would not sustain in the long term and would eventually have to
move into a semblance of inter-operable public blockchains. The shift to
enterprise blockchain has been to the benefit of existing industry leaders in
enterprise solutions, and also spurred Big Tech giants such as Facebook,
Amazon, and Microsoft to develop blockchain solutions. This is not a bad
development, but juxtaposed with a slowdown of funds for public blockchain
startup projects, it also implies that we might see further consolidation of Big
Tech over a technology that could have disrupted them.
The U.S. regulatory approach is creating opportunities for regulatory arbitrage
globally
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The U.S. regulatory approach has been seen by many in the ecosystem as
onerous, confusing, and unsupportive, and there is unlikely to be a clear directive
from Congress or the White House soon to move towards a single window or
more coordinated approach. These conditions have created a ripe environment
for global regulatory arbitrage as a lever to attract and retain talented startups
and shape the way forward in blockchain technology. Several countries such as
Singapore, Malta, and Switzerland have taken a lead in creating sandboxes and
other incentives to attract startups and investors, and now have thriving
blockchain ecosystems. The timeline for this technology to mature is not too
long, and it is likely that mature and scalable solutions will emerge in about five
years. Unless the regulatory paradigm changes significantly in the United
States, other geographies will take a lead in this technology.
Conclusion
The United States’ approach to the regulation of virtual assets has been highly
fragmented. Due to the proliferation of federal financial regulators, and the lack
of policy oversight, different regulatory agencies have taken the initiative. While
from a regulators perspective, this approach is understandable as they are
carrying out their respective economic mandates, blockchain is a multi-faceted
technology, where financial regulation has direct implications on technological
development and business models. Blockchain startups could have served as a
disruptor to the centralized influence of large firms in technology and finance.
However, the current regulatory framework is not supportive of this disruption,
as discussed before.
The United States’ approach to the regulation of
virtual assets has been highly fragmented.
The patchwork and regulation-by-enforcement nature of government action is
confusing for startups and has deterred U.S. investment into the public
blockchain space. Most startups that were working in the public blockchain space
have relocated to other countries, and many that stayed are facing funding
shortages. This has created a large opportunity for regulatory arbitrage globally,
and countries such as Singapore, Switzerland and Malta have made themselves
leaders in the space very quickly with progressive regulation and robust startup
ecosystems.
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There are positive aspects of increased capacity building and inter-agency
coordination among federal regulators in the United States. States are also
developing innovative frameworks. However, virtual assets remain borderless
global assets. Regulating them effectively, while harnessing their innovative
potential, will require coordinated action at the national level in terms of both
regulations and incentives. However, the White House and Congress remain
loosely engaged in the process, and such coordination might not materialize
soon.
While America remains a leading player in the technology, competition is
increasing globally. In the absence of a holistic policy and regulatory approach,
the United States might not fully harness its potential in the long run.
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Improving India’s Parliamentary Voting andRecordkeeping (Pranesh Prakash)
I would like to thank Alex Howard, Ashok Hariharan, Heather Hurlburt, Jim
Magnificio, PDT Achary, Srijoni Sen, and TK Vishwanathan for talking to me at
length and sharing their immense knowledge so freely, and to Chakshu Roy and Eric
Mill for the valuable inputs and pointing me in the right direction. I would also like to
thank the 2019 cohort of New America’s India-US Public Interest Technology
Fellowship for their valuable feedback, and New America—particularly Awista Ayub
and Melissa Salyk-Virk—for providing me the fellowship that allowed for this paper,
and for their patience. All errors and omissions remain mine.
Parliamentary Voting
Every democratic assembly requires a way of gauging the opinion of the
gathering. The most common way to do this in a parliament is through voting.
However, there is no standard way of voting. And even when voting is used, as
James Carey notes in his book on parliamentary voting, “in most countries, it [is]
exceedingly unusual to record how each legislator voted on a given proposal.”
This is true of India as well: individual legislators’ votes are not usually recorded.
It is a common misconception that one can review the voting record of one’s
representative in parliament. Voting records cannot serve as a means of
accountability for individual members of parliament, nor for the member of the
legislative assembly and the local city councillor.
Voting Procedures in the Indian Parliament
Before getting into the whys and wherefores of parliamentary voting, it is
instructive to look at the law in India and to understand how voting currently
happens in India’s Lok Sabha (House of the People) and Rajya Sabha (Council of
States). Voting procedures are codified in the “Rules of Procedure and Conduct
of Business” that are framed by each House of Parliament. While the Lok Sabha
and the Rajya Sabha frame their rules of business and procedures independently,
they are similar, if not identical, on most important matters.
All issues that need to be decided by the Lok Sabha and the Rajya Sabha take the
form of “motions” proposed by individual members. All motions require
voting, as mandated by the Constitution of India, art. 100(1), which states:
Save as otherwise provided in this Constitution, all questions at any
sitting of either House or joint sitting of the Houses shall be determined
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by a majority of votes of the members present and voting, other than
the Speaker or person acting as Chairman or Speaker.
However, the constitution does not define what a “vote” is, nor how a
determination of a “majority” is to be made.
Voice Votes
The most common form of voting is the voice vote, and it is the default followed
in all cases where counted voting is not mandatory. In this form of voting, the
Speaker (in the Lok Sabha) or the Chairman (in the Rajya Sabha) puts forth the
motion, and asks those who agree with the motion to say “Aye,” and those who
disagree to say “Nay.” Whichever group seems to have more voices (i.e., is
louder) is proclaimed by the speaker to “have it.” After making the declaration
once, the Speaker is, in theory, supposed to wait to see if there is any objection. If
there is not any objection, she repeats either “the Ayes have it” or “the Noes have
it” two more times, after which the motion is considered voted upon.
While the sense of the House as a whole may be determined through a voice vote,
it is clear that the views of each member is not. Further, when one watches the
proceedings of Parliament as relayed on television, one realizes that this is a
mechanical invocation since there is usually no pause between the Speaker
asking those who oppose to motion to say “No” and her declaring thrice: “the
ayes have it, the ayes have it, the ayes have it,” all in a single go.
Counted Votes
If a member of Parliament objects after the first declaration of the voice vote, the
Speaker may, if she so chooses, opt to put the motion to a counted vote. This can
take one of four forms: a head count, a vote using a voting machine, a vote by
going into “lobbies,” or a vote by “aye” or “no” slips (this form is only available in
the Lok Sabha).
In a head count, those who agree with the motion will stand up when asked to
and the number of members standing will be counted, and similarly for those
who oppose the motion. While the numbers are recorded (unlike in a voice vote),
the names of the voters are not. If the Speaker wishes, she may order a “division.”
It is up to the Speaker as to which form of counting to hold, or indeed if counting
is required at all.
“Division” is parliamentary parlance for counted voting. When a division is
ordered by the Speaker, the Secretary-General of the House starts the ringing of
the division bell (which rings intermittently for division in the Rajya Sabha, and
continuously for division in the Lok Sabha). This bell rings for 3½ minutes,
after which the doors to the inner lobby of the house are shut, preventing the
entry or exit of Members of Parliament (MPs). The Speaker takes one more voice
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vote and declares the results. If the results are challenged a second time, she has
to order that votes be counted. The most common form of counted voting in
India is through the “automatic vote recorders,” which were introduced in 1956.
To use it, the MP presses a “vote activation button” along with a button
indicating their vote—“Aye,” “No,” or “Abstention”—for ten seconds (and the
results are shown on a board before being declared as final). Otherwise, the
division may be undertaken by “lobby,” where the ayes and the noes go to
opposite sides of the room and a division clerk counts them by name. In the Lok
Sabha, one additional method of division is permitted, whereby MPs take “aye”
or “no” slips, write their division number on it and sign it, and then hand it to a
division clerk. In all cases, members who for some reason cannot vote using the
prescribed method (e.g., for reasons of infirmity) are allowed alternative forms of
voting as long as they are within the lobby. Further, before the division results are
announced, each MP has the opportunity to correct her vote in case she did not
cast it correctly, or cast it from the wrong seat. Once the result of a division is
announced, however, it may not be challenged.
While the totals of the ayes and noes from a division are provided when the
“unedited” version of the debates are put up on the Lok Sabha and the Rajya
Sabha websites the day after a debate, the names of the individual members and
the way they voted is not provided until the edited version appears, which may
take up to a few weeks.
When are Divisions Mandatory?
There are two situations in which voting by division is provided for under the
rules. First, when a member of the house disputes the Speaker’s declaration of a
voice vote, and the Speaker using her discretion, opts to order a division.
Second, if a vote requires the assent of at least two-thirds of the members of the
House of Parliament. In this latter case, a division is mandatory. This is only
required for seven distinct kinds of matters: for amendments to the Constitution
of India, for removal of the President or judges of the Supreme Court, for
limiting the powers of autonomous tribal states, for the power to legislate on
behalf of the States, for the establishment of all-India services, or for the
approval or extension of a proclamation of emergency. Needless to say, all of
these are infrequent occurrences, with constitutional amendments being the
most common among them.
Secret Ballots
There are some circumstances in which the votes are recorded secretly. The
election of the President and the Vice-President are both done through a “system
of proportional representation by means of the single transferable vote and the
voting at such election shall be by secret ballot.”
Voting Procedures in the USA and the United Kingdom
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The U.S. Constitution has a specific provision on voting that not only talks about
voting, but specifically speaks of recorded votes by stating, “the Yeas and Nays of
the Members of either House on any question shall, at the Desire of one-fifth of
those present, be entered on the Journal.” Given this provision, the default in
both the House of Representatives and the Senate is voice votes, with counted
votes being the exception. Counted votes in the House can take the form of a
division (where names are not counted, only totals), recorded teller votes and
‘yea and nay’ votes (where names and totals are counted in both cases, and both
happen electronically). In the Senate, counted votes happen either through a
“division” vote or by a roll-call vote, with roll-calls being the official way of
deciding contentious issues. The rules in the Senate even allow a motion to be
passed without a vote if it is “without objection.”
In the United Kingdom, the procedure is similar to India, with a voice vote being
the default, and divisions by going into separate lobbies (chambers to the left and
the right of the main room) being held when MPs dispute the Speaker’s
assessment of a voice vote.
In the U.S. Congress, the rules provide 15 minutes as a minimum between the
announcement of a roll-call/recorded vote and its conduct. In the United
Kingdom, eight minutes is provided from the time the division bell starts ringing
to when the lobby doors are closed. Both the United States and the United
Kingdom allow for deferred voting, thus allowing a number of different votes to
be held together in a cluster at a pre-announced time, thus simplifying voting
significantly.
Voting Freedom
Should a legislator vote in accordance with her conscience, or in accordance with
what she believes her constituents (or the majority thereof ) want, or in
accordance with what her party leadership wants? This is an inescapable and
central issue in all party-based democratic systems. Carey dubs this the
“fundamental tension between individualism and collectivism,” and explains
that “individual accountability implies that legislators answer to the specific
demands of citizens in their behavior, including voting. Collective accountability
implies that teams of legislators—mainly parties and coalitions, in most
legislatures–act collectively to promote a policy agenda and are evaluated by
citizens as a group according to their effectiveness in advancing it. Where
constituents—even supporters of the same party or coalition—put diverse
demands on legislators, the demands of individual accountability can contradict
the collective action on which collective accountability is based.”
This tension also has one other basis, which is the question of who voters and
constituents would wish to hold accountable: parties or individual MPs. Do
voters vote on the basis of parties, regardless of who is standing for election for
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that party, or do they vote on the basis of individuals, even if that individual shifts
between parties? Or does it lie somewhere in between, and if so, closer to which
end of the spectrum? There are no clear answers to these questions, and indeed,
there might not be one universal answer.
Whips
In different parliaments, the term “whip” is used to mean different things. In
the following discussions, the term is mainly used to refer to instructions issued
by a political party to its legislators. The negative consequences for disobeying a
whip are quite different in India from countries like the United States or the
United Kingdom. In the U.S. Congress, “disciplinary action for voting against the
views of party leaders is rare, although Senators and Representatives may
indirectly be sanctioned by denial of assignment to, or leadership positions on
important committees.” Whereas in the United Kingdom, the measures for
disobeying a whip “can include a written reprimand from the party chief whip
(also communicated to the Member’s constituency party organization),
temporary suspension from the party organization in Parliament, or a
”withdrawal of the whip," a formal expulsion from the party organization."
However, in India, the anti-defection law passed in 1985 allows an MP to be
disqualified from her parliamentary seat upon disobeying a party whip! In the
Supreme Court case of Kihoto Hollohan v. Zachillhu, the anti-defection law was
upheld. However, in doing so, the court also limited the application of the law
to no-confidence motions and motions on “integral policy and program of the
political party on the basis of which it approached the electorate.” This might
seem a reasonable limitation, however, it has not worked out in practice since the
Supreme Court has also held that the Speaker can unilaterally decide whether a
legislator has voluntarily given up her seat or has gone against party directions.
There is no clear way in which a Speaker can distinguish between disobeying a
party on a trifling matter and on an “integral policy and program” since many
parties don’t release election manifestos, and even then it is difficult to say which
policies and programs are “integral” to the party and which ones aren’t.
Voting Practices Compared
There is a clear historical trajectory to the idea of recorded voting, as David
Beetham notes:
[…] the idea of accountability implies a more focused and systematic
‘account-giving’ after the event, to which the public can respond. As we
have already seen, constituents are increasingly interested in learning
how their representatives have voted on key issues before parliament,
and interrogating them about their actions. For members to have their
voting record published, and to be able to give a reasoned defense of
their record, is of the essence of political accountability. The extension
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of the Internet makes this requirement much more readily realizable,
and it is now a standard feature in many parliaments.
This seems to suggest that recorded voting is now seen as a bare minimum.
Importantly, recorded voting by itself does not include justification of MPs’ votes
to their constituents, nor does it include reporting by MPs to their constituents on
other forms of parliamentary activity.
In 2018, the U.S. House of Representatives had 500 recorded votes, and the
Senate had 274 (in both cases, not including committees). In 2017, the numbers
were 710 and 325 respectively. Since the 2017 general elections in the United
Kingdom, there have been 353 divisions in the House of Commons. By
comparison, in India, in the 16th Lok Sabha (2014-2019), there have been 90
divisions, 55 of which were mandatory and 35 were non-mandatory. But only 11
bills were voted upon. This is despite the far lengthier and cumbersome
processes for recorded voting in both the United States and the United Kingdom.
There is a clear indication that India’s anti-defection law is responsible for this.
An insightful study by Shalaka Patil shows that there was a dramatic drop in the
number of divisions held in the Lok Sabha after 1985, when the anti-defection
law was enacted. The 3rd Lok Sabha (1962-67) had 330 divisions, whereas the
14th Lok Sabha had only 20 divisions.
While voice votes implicitly introduce a presumption that the government will
carry the motion, the anti-defection law has implicitly introduced a presumption
that all the members vote in line with their party even if a division were to be
held.
Interestingly, whips are not recorded in the United States, nor in the United
Kingdom, though educated guesses can be made by looking at voting records.
Voting Reforms
Recording of Votes
The various forms of voting reveal different information to different actors. Voice
votes and head counts are forms of “signal votes” where individual MP’s
positions are not revealed to their constituents or the public, but are revealed to
their party leaders. Division votes are “open votes” that show the MP’s position to
the public. Less than 2 percent of the bills considered by the Lok Sabha are
decided by counted votes. This needs to change. One cannot sufficiently
evaluate an MP’s legislative and representative roles without voting records.
At the very least, the most important votes in Parliament—all motions related to
bills and subordinate legislation, as well as no-confidence motions which
determine whether a government survives or falls—ought to be voted on through
divisions. There have been multiple instances of governments, with the help of
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partisan speakers, refusing to hold divisions even on no-confidence motions, as
was the case in the state of Maharashtra in 2014, and last year in Sri Lanka.
These are indeed cases of parliamentary procedures being used to undermine
democracy in a way that the framers of the procedures never contemplated.
One problem that arises with the recording of votes is that MPs are not always
present for votes. To improve attendance and engagement during votes on bills
and subordinate legislation, the practice of deferred/clustered divisions should
be introduced, allowing Parliamentarians to vote on a number of laws and
amendments at the same time. These two sets of changes would need the
amendment of Parliamentary rules of procedure.
Recording of Whips
While many political scientists have focused on analyzing votes by legislators in
various countries and their public nature, not many have studied the public
availability of instructions issued by political parties. While this is useful in all
democracies with political parties, it is essential in countries like India where
disobeying whips issued by political parties can have very serious consequences.
Even if one argues that in a weak parliament (where the legislature largely votes
in accordance with the executive’s will) the voting record of individual legislators
does not matter, one cannot say the same about political parties. Since the whips
that political parties issue to their MPs can have consequences, there ought to be
a clear record kept of them. While Patil suggests that whips ought to be conveyed
to the Ministry of Parliamentary Affairs, it is better for whips to be conveyed to
Speaker or the Secretary-General of each House of Parliament, since that
would serve two distinct functions. First, since it is the Speaker who has the
power to disqualify an MP, whips ought to be available to the Speaker. Second,
whips are an important aspect of parliamentary functioning, and as such should
form part of the record of Parliament and be published by the same authority that
publishes debates and the votes of legislators.
Manifestos by Political Parties
Even if one disagrees with Kihoto Hollohan v. Zachillhu, one would agree that in
order for any reasonable application of that decision, all political parties should
have to indicate to voters what policies and programs are “integral” to the party
through a separate section of their manifesto issued in multiple languages before
a Lok Sabha election. Currently, many political parties do not even release
manifestos. Without this, it will be left to the Speaker to judge what issues were
advertised to the electorate as “integral” to a party.
Beyond Voting
Voting is only one part of the duties of an MP. While it is clear that an
individual MP does not have too much leeway to influence governmental policy
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through votes in Parliament, it is far from clear that MPs don’t have influence
over governmental policy. Most important laws (though not all) are usually
referred to standing committees and the inputs of those standing committees,
which generally have representation from multiple political parties, are often
taken seriously by various ministries and laws are often re-written to address the
concerns of the standing committees. As a general practice, standing committee
reports are issued collectively (with allowances for dissents) and are helmed by
the MP chairing each committee. This makes it harder for MPs to use standing
committees as a location for signaling their work to their constituents, and
perhaps also accounts for their low attendance rates. But this lack of signaling
also means that there can be cross-party cooperation, rather than mere
contention, in standing committees, which is harder to achieve on the floor of
Parliament.
When it comes to legislating from within Parliament, but from outside the
government, i.e., what are known as “Private Member’s Bills,” the record is so
abysmal in terms of them being passed that it is noteworthy that some MPs
continue to introduce private members’ bills. It seems that MPs do so to push
discussions on a topic and gain the attention of the government (as happened
with MP Kanimozhi’s Transgender Rights Bill, which failed, but led to the
government taking up the issue and introducing its own bill), or to engage in
signaling to their constituents or their party leaders.
Apart from work within Parliament, MPs undertake much constituency-related
work, including the disbursement of the MP local area development (MPLAD)
funds and working with various levels of government to implement
developmental programs in their constituency.
A few MPs have started issuing reports of their own performance in and outside
of Parliament. It would be welcome if the press highlighted such reports, and
created peer pressure for other MPs to start issuing progress reports to their
constituents.
Parliamentary Recordkeeping
Parliamentary functioning can only be judged by the records it keeps, and thus
parliamentary records are a critical part of parliamentary accountability.
What kinds of records does parliament generate? There are at least the following
forms of records:
• Debate Records, with speaker’s and members’ names and timings
• Voting records, vote counts, and quorum counts
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• Questions and answers, including corrections
• Bills and acts
• Subordinate legislation
• Amendments
• Committee meeting records
• Committee reports, including dissents
• Resolutions, references, announcements, statements, and special
addresses
• Summary of work reports
• Reports of elections, inductions, and resignations, and deaths of members
• Rules of procedure and conduct of business
• Stand-alone books, pamphlets, and reports
Technology Use Within Parliament
Is there a uniform and efficient process for handling these records and for making
them public? In 2016, an additional director of the Lok Sabha Secretariat noted
that “presently, a digitization project is under progress for the creation of PDF
files of the proceedings of Lok Sabha, including Questions and Debates.” This
makes it clear that there is no digital workflow for these documents. While the
Lok Sabha and Rajya Sabha websites are updated on a daily basis, their site
architecture, their abysmal search functionalities, and the less-than-useful
format of the records on the sites make it clear that the records are both hard to
find, and hard to make use of by researchers and citizens.
In the Rajya Sabha’s 2017 annual report, the chapter dedicated to LARRDIS (the
parliamentary information retrieval system) has a dismal section on
achievements related to computerization, where they list only four
achievements: “using the Internet” for research, communications being “sent
through email,” “soft copies” being emailed, and “all typing work” being “done
on computers.”
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While the National Informatics Centre has a “Parliament Information Division,”
which seems to be responsible for maintenance of the Parliamentary websites,
there is not much information available about its functioning.
While there are a few Parliament-related files on data.gov.in, the central
government’s open data portal, there are no datasets relating to Parliamentary
debates. In response to an email asking for bulk access to the digitized debate
dataset, the data custodians (as listed on data.gov.in) for both the Lok Sabha and
the Rajya Sabha explained that whatever was on the website was all that was
accessible.
How Open Standards Can Help
One technical way to improve the accessibility of parliamentary records, and
consequently improve the work of parliamentarians, bureaucrats who work with
parliamentary records, and researchers, is to use a structured and
semantically marked-up format for recordkeeping and to establish a digital
workflow for both houses of Parliament. There is an open standard for
parliamentary (and judicial) records called Akoma Ntoso (“AKN”), which is an
XML-based semantic structured format standardized within an international
standards body called OASIS. All of the different forms of records produced by
the Indian Parliament can be represented in the AKN format.
Ashok Hariharan, a software developer who was a coordinator of the Africa i-
Parliaments Action Plan within the U.N.’s Department of Economic and Social
Affairs, noted that there were several benefits to going in for a semantically
marked-up structured format, including efficiency; improved collaboration
among institutions; preservation; interoperability; cost-effectiveness; value
addition; and ease of comparative research.
Producing Revised Versions of Laws
Various ministries and departments often do not have the latest version of the
laws relating to their work on their website, instead opting to put up the base
(unamended) statute, with each of the amendments listed separately rather than
offering an integrated view of the law. They do this because integrating all the
amendments is not easy in the formats they use (PDF and DOC/DOCX), and the
integration has to be done manually. By contrast, if a format like AKN were used
for the original statute and the subsequent amendments, then any suitable
software can be used to automatically create the integrated version of the law.
Dated Versioning of Laws
At times, especially for judicial cases, government departments (who often file
the cases) and courts need to know what the precise content of a law was on a
particular date. In order to have this, the department or court needs to keep an
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integrated version of the law after each amendment. For laws that get amended
frequently—e.g., regulations by the Central Board of Direct Taxes and the
Reserve Bank of India—this would be quite cumbersome. If AKN were used, then
an accurate version of the law as on a particular date could even be generated
dynamically.
Tracking Changes During Amendments
One problem that many legislators face is that of keeping track of the
amendments proposed for the bills that they are considering. The amendments
often take the form of a document which contains cryptic declarations such as,
“on page 5, line 17 substitute […].” Neither the Ministry of Parliamentary Affairs,
nor the parliamentary secretariats produce redlined versions of the law with all
the proposed amendments incorporated. That job is left up to the offices of each
parliamentarian, and can be very cumbersome since all the data for doing this
has to be entered manually. If AKN were used with a digital workflow
management software, such redlined versions could be created automatically.
MPs would even be able to directly edit a copy of the proposed bill and automate
the generation of the amendments they wish to propose in forms easily
understood by both the software as well as by the parliamentary secretariat.
Making Complex Research Easier
Usage of a structured format like AKN allows for complex structure-aware
searches to be conducted, enabling research that otherwise would have been
difficult to carry out.
Examples of Usage of Akoma Ntoso
The European Union uses AKN internally for many purposes, apart from using a
platform called AT4AM, which also uses AKN, for handling amendments, and
which is tightly integrated with their work-task allocation, budgeting, and
translation systems. AKN is also used in South Africa, the United Kingdom, Italy,
the U.S. state of California, and a host of other jurisdictions. In 2017, a U.N. inter-
agency Working Group on Document Standards recommended the formation of
a “Semantic Interoperability Framework,” which included the usage of Akoma
Ntoso localized for the U.N.’s needs (AKN4UN) as one of the two prongs.
Many NGOs that work on legislative transparency use a free/libre/open source
platform named Indigo, which provides a convenient interface for writing laws
in AKN, including transforming existing laws into AKN. In India, an NGO named
Nyaaya had already converted more than 800 Indian laws into AKN.
In India, the use of an XML-based format called XBRL is mandated for the
submission of all company financial reports to the Ministry of Corporate Affairs.
Given this, there is precedent for using XML-based semantically-marked up and
structured formats within government. Indeed, the National Policy on Open
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Standards mandates the use of open standards for e-governance, and the
Interoperability Framework for e-Governance (IFEG) lists a number of
standards, but unfortunately, the IFEG does not list Akoma Ntoso as one of the
standards since it doesn’t take legislation or parliamentary records as a separate
e-governance domain.
Judicial Interventions
An important case in this regard has emerged from a right to information (RTI)
query by a law student, wherein he asked the Legislative Drafting Department of
the Ministry of Law to provide him a copy of the Indian Christian Marriage Act,
1972 since the version available on IndiaCode.nic.in was not readable. Later, this
case was filed as a public interest litigation (PIL) in the Delhi High Court, noting
that Section 4 of the RTI Act mandates the proactive uploading of laws by the
government. In this regard, Justice Manmohan of the Delhi HC quoted the CIC
order:
“Section 4 [of the Right to Information Act] mandates the Ministry of
Law to place the texts of enactments. It is the duty of Legislative
Department to provide information about access of every updated
enactment. It is not just a recommended obligation under Section 4(1)
(a) of RTI Act, but a constitutional mandate, a legal necessity, and an
essential requirement for peace.”
In one of his orders, Justice Manmohan even asked the Ministry of Law to
convene a meeting to consider, among other issues, whether Akoma Ntoso could
be used as a standard. Unfortunately, the minutes from the meeting convened
by the Ministry of Law do not mention Akoma Ntoso. It would seem that even
this judicial intervention did not suffice to put India on the path to the
modernization of parliamentary recordkeeping.
Costs
The Indian Parliament is one of the most underfunded parliaments in the world,
getting an annual budget in 2017-18 of 0.049 percent of the total government
expenditure, whereas the worldwide average is ten times higher at 0.49 percent.
I asked one of the original authors of Akoma Ntoso, who has a long history of
consulting on legislative standards transitions, for a cost estimate given the
Indian scenario. The largest cost, he noted would be for proof-readers for the
digitization of existing legislation. Writing the software for parsing of laws is not
very expensive, coming to only six to seven months of work for a single person
(i.e., six to seven man-months), even taking into account the customizations
required. The search functionality with a public-facing website would be
another six man-months. Automating the production of new documents would
be a bit more complicated. Overall, he estimated a cost of around $2-5 million
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USD, which, even on the higher end of the estimate, is less than three percent of
the annual Parliamentary budget of $150 million USD.
Even with this comparatively low overall importance given to parliamentary
budgeting, the amount needed for a transformation of records in a minuscule
percentage, and even less given the spread of the developmental costs over a
multi-year period. Given this, improving the technology on which our Parliament
is built is not in the least a difficult choice.
Conclusion
There are multiple aspects to what makes a parliament democratic and
legitimate: its representative character, openness and transparency, accessibility,
accountability, and effectiveness. In this paper, I have focused solely on
openness, transparency, and accountability in the form of parliamentary voting
and parliamentary records. I have demonstrated that both the practices as well as
the rules of procedure covering voting in the Indian parliament require a serious
overhaul if we are to have meaningful accountability of Parliamentarians to their
constituents for their legislative functions.
We must mandate counted voting on all motions related to bills and delegated
legislation, as well as no-confidence motions. The lack of such provisions
currently contributes to a lack of legislative accountability, as well as opening up
the possibility of a Speaker misusing her powers during a no-confidence motion.
Further, we need parliamentary recording of whips issued by political parties to
their members in order to enable a Speaker to know when a whip has been
disobeyed by a member, as well as for accountability of political parties to those
who voted for them. We also need to mandate pre-election declaration of
“integral” policies and programs by each political party to ensure that it is clear
when there’s a violation of such a policy or program by a member of parliament
who got elected on the party ticket.
However, I have also argued that it is insufficient, as Parliamentarians perform
many functions beyond legislation. There is a need for greater transparency and
reporting by Parliamentarians themselves, in the absence of any other systematic
means of reporting to the electorate about their promises and accomplishments.
In relation to recordkeeping, I have pointed out the harms caused by the non-
usage of a semantic and structured open standard for legislative records, and the
manifold benefits of adopting a format like Akoma Ntoso alongside an
appropriate digital workflow, including for bureaucrats, parliamentarians,
researchers, and voters. I have also provided a cost estimate for the development
of and transition to an Akoma Ntoso-based platform in a way that covers both
past and current records.
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Finally, I have also pointed out multiple avenues for further research on
parliamentary accountability and recordkeeping in the Indian context.
Appendix 1: Examples of Akoma Ntoso
Here is a snippet of the Aadhaar Act (2016) marked up in Akoma Ntoso:
<akomaNtoso xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance"
xmlns="http://www.akomantoso.org/2.0" xsi:schemaLocation="http://
www.akomantoso.org/2.0 akomantoso20.xsd">
<act contains="originalVersion">
<preface>
<p class="title">
<shortTitle>Aadhaar (Targeted Delivery Of Financial And Other Subsidies,
Benefits And Services) Act, 2016</shortTitle>
</p>
</preface>
<preamble>
<p>A Bill to provide for, as a good governance, efficient, transparent, and
targeted delivery of subsidies, benefits and services, the expenditure for which is
incurred from the Consolidated Fund of India, to individuals residing in India
through assigning of unique identity numbers to such individuals and for matters
connected therewith or incidental thereto.</p>
<p>Be it enacted by Parliament in the Sixty-seventh Year of the Republic of India
as follows:--</p>
</preamble>
<body>
<chapter id="chapter-I">
<num>I</num>
<heading>Preliminary</heading>
<section id="section-1">
<num>1.</num>
<heading>Short title, extent and commencement.--</heading>
<subsection id="section-1.1">
<num>(1)</num>
<content>
<p>This Act may be called the Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Act, 2016.</p>
</content>
</subsection>
</section>
</chapter>
</body>
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</act>
</akomaNtoso>
Example of Akoma Ntoso snippet recording the presence of a quorum and a vote
in a debate, and then to include that in a summary analysis by linkage:
<!-- Verbatim debate notation, which creates "eId" references named "quantity_2" (for
ayes) and "quantity_3" (for noes).-->
<debateSection eId="dbsect_2" name="... ">
<summary eId="summary_1">(Question carried by <quantity eId="quantity_2"
normalized="72" refersTo="#ayes">72</quantity> to <quantity
normalized="34" eId ="quantity_3" refersTo="#noes"> 34</quantity> votes)</
summary>
</debateSection>
<!-- Analysis notation, which refers to the debate outcome (via "href " tags of
"quantity_{2,3}").-->
<parliamentary>
<voting eId="voting_1" href="#summary_1" refersTo="#voting"
outcome="#approved">
<quorum eId="voting_1__quorum_1" refersTo="#majority" value="80"/>
<count eId="voting_1__count_2" refersTo="#ayes" href="#quantity_2"
value="72"/>
<count eId="voting_1__count_3" refersTo="#noes" href="#quantity_3"
value="34"/>
</voting>
</parliamentary>
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India and the United States: The Time Has Come toCollaborate on Commercial Drones (Sylvia Mishra)
Sylvia Mishra is a Scoville Fellow and her research focuses on nuclear strategy and
nonproliferation, Southern Asian security and nuclear dynamics, U.S. policy in Indo-
Pacific, and emerging and disruptive technologies.
This paper is written from an exploratory strategic lens underscoring why India and
the United States ought to focus on bolstering partnership on commercial drones. The
paper immensely benefited from interviews and discussions with Peter W. Singer,
Arthur Holland Michel, Rachel Stohl, Sharon Burke, Bhaskar Kanungo, Allegra
Harpootlian, and Col. Dennis Wille.
Introduction
On December 1, 2018, flying commercial drones became legal in India as the
Directorate General of Civil Aviation’s (DGCA) put forward guidelines on how
unmanned aircraft can operate within the country. The opening up of the
drone, or unmanned aerial vehicles (UAV), market is expected to improve
efficiency and create jobs in certain sectors like agriculture, forestry, media,
construction, and disaster management while also expanding the culture of
innovation. Commercial drones are among the fastest growing segments in India
and their demand is growing exponentially. In some of the public sectors, such as
infrastructure, transport, agriculture, and disaster management, drones are
already being utilized for land surveillance, improvements to infrastructure,
precision agriculture, 3-D digital mapping, and tracking a variety of issues of river
erosion and deforestation. At the World Economic Forum Annual Meeting in
Davos in 2019, the Indian state government of Andhra Pradesh announced that it
will start testing a policy framework—Advanced Drone Operations Toolkit
developed in partnership with 41 government agencies and private enterprises to
enable state-wide drone delivery operations aimed at bringing key medical
supplies to communities across the state. The open source guide was developed
in collaboration with the governments of Rwanda andSwitzerland, and leverages
the work of the Drone Innovator’s Network (DIN) to roll out socially impactful,
advanced drone operations.
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As the utility of drones in the commercial sector
grows, several market reports indicate that the
Indian commercial drone market will reach $885.7
million by 2021.
The adoption of commercial drone applications is on the rise across sectors. As
the utility of drones in the commercial sector grows, several market reports
indicate that the Indian commercial drone market will reach $885.7 million by
2021. India has been one of the top drone-importing nations, accounting for
22.5 percent of the world’s UAV imports. Israel and the United States have
emerged as top drone exporters to India as the focus has been on expanding its
armed drone inventory. In 2018, the Indian government approved the purchase of
Heron TP missile-armed drones from Israel. The United States will export the
General Atomics MQ-9 Guardian/Predator-B long-range unmanned combat
aerial vehicle (UCAV) to India, making it one of the most significant defense sales
between the United States and India. The sale of drones with military
applications has become an important part of bilateral defense ties between
India and the United States, and both countries operate under the Defense
Technology and Trade Initiative. Breaking away from the dominant narrative
that focuses on India-U.S. collaboration on drones for military purposes, this
paper aims to underscore that India and the United States have a unique
opportunity to partner on commercial drones. Over the coming years, drones will
become an integral element to a better standard of living. India and the United
States. should partner to harness the benefits of commercial drones by leveraging
the technological prowess and culture of innovation that exist in both countries.
The paper aims to develop a framework where India and the United States can
cooperate to promote greater use of drone technology in the commercial sector
to transform working practices, bring significant economic benefits, and boost
prosperity. This paper benefited from interviews conducted with several experts
in Washington, D.C. and New Delhi, and takes the position that a partnership on
commercial drones is essential. It outlines how India and the United States can
collaborate on a multilateral level, a bilateral government-to-government level,
and an industry-to-industry level. As and how the global airspace becomes
congested and increasingly contested, the development of counter-drone
technologies is also inevitable. The paper also discusses counter-drone
technologies, their evolution and use in the U.S. market, and use by law
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enforcement agencies. It outlines how India can learn how some of the counter-
drone technologies are being utilized by law enforcement agencies in the United
States.
Why Does India-U.S. Cooperation on Commercial Drones Matter?
As India and the United States continue to bolster their bilateral partnership, one
facet of their relationship that remains understudied, and mandates greater
attention, is commercial drones and their use for public benefit. As the oldest and
largest democracies, the United States and India also need to focus on using
drone technologies to drive positive social change, proactively shape demand for
commercial drone technology and its applications across various sectors and
domestic growth opportunities. India and the United States have a rich pool of
resources and talent, the spirit of innovation to build an ecosystem that depends
more heavily on the civic use of drone tech. Drone technology is rapidly
advancing. Even though the commercial drone sector in India is still evolving and
regulations are being formed, this industry has the potential to transform
societies. Not to mention that as commercial drones proliferate, the surrounding
industry would also grow; jobs in analytics and data processing are just an
example. A McKinsey report indicated that the value of the commercial drone
industry and activity has risen from $40 million in 2012 to about $1 billion in 2017
. It is expected that by 2026, commercial drones—both corporate and
consumer applications—will have an annual impact of $31 billion to $46 billion
on the country’s GDP. Despite the drone market in India being in a nascent
stage, the paper offers an overview of how India and the United States can
cooperate to incentivize the use of drones for a variety of purposes. Several
industries in India will be greatly enhanced, and will enable smarter employment
of people with the use of drones as force multipliers in the agriculture,
construction, energy and logistic sectors. In much the same way that the Federal
Aviation Administration’s (FAA) Part 107 rules have facilitated the spread of
commercial drone operations in the U.S., the Directorate of Civil Aviation
(DGCA) in India needs to undertake incremental steps to relieve the indigenous
commercial drone industries from the scourge of regulations that curtails the
sector to flourish. It is important that the DGCA undertakes policies that
ensure both safety and security of drones, but also gradually encourages
operations beyond the current limit of 400 feet of Beyond Visual Line of Sight
(BVLOS).
Three Levels of Cooperation on Commercial Drones
The two countries can cooperate on three levels: multilateral, bilateral, and
industry-to-industry.
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1) Multilateral Cooperation for Responsible Drone Use: There are wide variations
in drone laws amongst countries. In fact, even within the United States, drone
laws vary from state to state and work on a sort of drone federalism. In 2018, the
International Standard Organization (ISO) proposed international standards for
drone operations with the expectation that these standards will be adopted by
countries globally. The objective of the ISO’s international standards is to
establish drone regulation that every country can agree on, and will help
normalize drone operations and responsible use throughout the world. The ISO
standards focus primarily on data security, air safety, privacy, and facilitating
ways where UAVs can be used in a variety of commercial scenarios.
It is imperative that both India and the United States at a multilateral level push
for the spread of safe and responsible practices of common drone laws. While
several countries are trying to grapple with this challenge, it is important for the
architects of India’s drone ecosystem to keep in mind that adopting the ISO
standards needs to be swift and smooth. If the United States and India are able to
both converge to the ISO standards and also encourage other countries to join, it
will allow for great cross-pollination among businesses across countries. For
example, U.S. companies that have already matured in commercial drone
technologies would not have to bear a huge cost to restructure their operations in
India for compliance. Moreover, the manufacturing of drones and the import and
export of hardware and software can become globalized. This means that drone
hardware can be manufactured in one country, software developed in another
country, and the final product can be used in another country. In a globalized and
an integrated economic environment, India and the United States adopting ISO
standards would make cooperation between them and with other countries
easier.
2) Partnership at the Government Level for a Cause: Humanitarian Assistance
and Disaster Relief (HADR): In the past decade, India has been a first responder
in several humanitarian disasters and international crises. It demonstrates India's
commitment as a responsible actor in the global order and willingness to become
a net security provider in the region. New Delhi has contributed its resources to
prevent and mitigate regional and international crises. India’s leadership role
and India-U.S. efforts following the devastating earthquake in Nepal have been
noteworthy. Drones have been at the forefront of India’s increased efforts in
HADR. Humanitarian organizations and several governments across the world
have mobilized drones to collect vital information about collapsed buildings,
locate survivors, and supply victims with relief packages. The National Disaster
Management Authority (NDMA) helped in Nepal’s relief efforts using the Netra
drone for aid. Similarly, the NDMA has been using the resources of several
indigenous drone manufacturing companies in India. For example, Airpix, a
company that specializes in aerial photography and video production, was used
in a campaign to rebuild Uttarakhand and to spread awareness about
infrastructural deficiencies in the mountainous state. India has also been
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sending medicine to remote areas in Rwanda, Malawi, Uganda and other places
with the delivery of medical services using drones.
While India and the U.S. government have their own mechanisms in dealing with
HADR, cooperation on HADR is featured in the New Framework for the U.S.-
India Defense Relationship (2005) and was reiterated in the 2015 framework. As
India and the United States develop frameworks and models of cooperation and
burden-sharing in the Indo-Pacific, collaboration on HADR using drones is a
good starting point. Both countries can benefit from the complementary nature
of their efforts and interests in the region.
There are already a few examples of India-U.S. cooperation on drones with a
focus on HADR. Under the Defense Technology and Trade Initiative (DTTI),
India and the United States are working on an air-launched unmanned system
which would have HADR as one of the targeted uses. Another example of
cooperation between the two countries on drones is that in the wake of a polio
outbreak, a U.S.-based company, WeRobotics, was asked by the Center for
Disease Control and Prevention (CDC) to organize training on medical cargo
drones in Papua New Guinea (PNG). WeRobotics partnered with two Indian
companies,Soli Consultancy and Redwing Labs India, to ensure the project’s
completion and success.
3) Industry-to-Industry Cooperation to Boost India’s Commercial Drones Market:
China has emerged as the leading civilian drone exporter. India has not been
able to become an exporter of commercial drones, and there are several
challenges that have stymied the commercial drone ecosystem in India. One
factor is the lack of clarity on the drone manufacturing licensing process from the
Department of Industrial Policy and Promotion (DIPP). Another challenge is
import restrictions on the components (motors, propellers, batteries) for
assembling a drone. The export of drones also goes through an inter-ministerial
panel due to restrictions under the SCOMET list.
Under the Civil Aviation Regulations, the DGCA has launched the Digital Sky
platform, which is built around the principle of “No Permission, No Takeoff.”
While Digital Sky will be in charge of handling flights permissions, to give an
impetus to the commercial drone industry, some of the issues such as “Beyond
Visual Line of Sight” (BVLOS) and Autonomous Operations need to be resolved.
Set against some of these challenges and uncertainties are the regulatory
framework in India, which are still evolving, and a sweeping cross-pollination
between Indian and U.S. industries may not be possible. However, the Indian
drone industry will find it beneficial to partner with U.S. drone industries on
building the software. There are few examples of such cooperation. For instance,
Precision Hawk is a U.S. company working in partnership with the FAA and the
National Aeronautics and Space Administration (NASA) on Low Altitude
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Tracking and Avoidance Systems (LATAS). The LATAS platform will show pilots
of manned aircraft where UAVs are in the airspace before they become a safety
hazard. For this project, Precision Hawk is collaborating with a technology
partner in India called Webonise on the simulation of drones in a virtual
environment to aid the development of this platform.
Challenges
To foster India-U.S. partnership at the three proposed levels, there are several
challenges that the Indian commercial drones’ ecosystem will need to overcome
at the policy and regulatory level.
As drones are gradually incorporated into the Indian airspace, there are several
long-standing liability issues and privacy laws that the DGCA will need to clarify.
Remotely controlled drones are increasingly cheap, and more widely available,
but they pose real privacy risks. Some of the examples include surveillance
drones violating property rights, and pervasive surveillance. A research survey,
reported by Forbes in early 2019, indicated that flying drones 24/7 generated
fears of the police. The way commercial drone technology is progressing, it
seems quite likely that corporate giants like Amazon, Google, UPS, and Alibaba
will be stepping up efforts to enable drones to play a significant role in the “last-
mile” delivery – transporting items from the warehouse to the customer’s
doorstep.
Policymakers will be required to ensure a balance between the benefits of
commercial drone use and its privacy costs. Any framework that provides
impetus to a new technology is required to ensure that that spirit of innovation is
sustained, while individual rights to privacy and freedom of expression are also
maintained. For instance, a Rand report indicates that a team of researchers
explored the hidden or indirect costs and potential consequences, both positive
and negative, of adopting commercial delivery drones. The study revealed that
regulators around the world are struggling to keep pace with new drone delivery
technology and some countries are banning the use of commercial drones as
regulating a technology which is still evolving is a challenge. Moreover, as there
are security implications of this technology, regulators are erring on the side of
cautious by banning the delivery applications of commercial drones.
While some of the current regulations in place cover licensure for pilots,
registration, restricted fly zones, and insurance, one of the primary challenges of
using delivery drones is a requirement that drones stay within the pilot’s line of
sight (which almost defeats the purpose of commercial delivery drones).
India’s Ministry of Civil Aviation’s framework for Civil Aviation Regulations (2.0)
still does not provide specifics for several issues such as current imports and
permission structures, or drone licensing and registrations, among other things.
The authorities will also need to devise a regulatory response and guidance for
mid-air collisions and injury to property and persons.
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To increase bilateral partnership on commercial drones, India will first need to
fine-tune some of its regulatory policies and also look at international
standardization of commercial drone laws. One positive development that will
spur interest and investments in the Indian drone ecosystem is that the
government has allowed for 100% foreign direct investments in manufacturing
commercial drones.
While the Indian government and industry leaders will grapple these regulatory
challenges for the commercial drone ecosystem, it is important to remember that
drone technology will only advance worldwide. The number of people and
industries that sees value in utilizing drones as force multipliers increase.
Therefore, India cannot afford to stay behind the curve or stymie talent and
technology in this industry.
Counter Drone Technology and Operations
Research indicates that most drone operators fly in good faith; however, there are
some actors that can do a lot of damage using commercial drones. There are an
increasing number of reports that state that extremist groups, militias, and drug
cartels are using commercial drones as weapons. The proliferation of drones
and the possibility of their use for malignant purposes, such as use of drones by
organized criminals to run counter operations against law enforcement, plan
robberies and other crimes, have led to the development of counter-drone
technologies. Industries are investing in developing counter-drone
technologies for law enforcement agencies to prevent unwarranted use of
commercial drones and to ensure the safety and security of civilians. Counter-
drone technology, also commonly known as counter-UAS (C-UAS) or counter-
UAV, refers to systems that are used to detect and intercept unmanned aircraft.
Drones are dual-use and can pose threats in both civilian and wartime
environments. Concerns regarding the weaponization and use of commercial
drones in conflicts, most notably by non-state actors, are growing. Drones have
been used in conflicts in Syria, Iraq, and Ukraine. For instance, the Islamic State
(ISIS) was able to import and construct several hundreds of inexpensive drones
and use them in battlefields in Iraq and Syria. According to a report from the
Center for a New American Security, more than 90 countries and non-state
actors operate drones and their increasing use will have an impact on the future
of conflict, crisis stability, and escalation dynamics. Non-state actors are
increasingly able to transform commercial/hobby drones into military hardware
and in the future, this trend will only grow as it provides non-state actors access
to the kind of operational awareness that was previously held only by state
militaries.
It is in the context of these developments and security concerns that commercial
industries are rapidly investing in counter-drone technologies to keep people safe
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from rogue drones. A report calledCounter-Drones System by the Center for the
Study of Drone at Bard College found out that there are at least 235 counter-
drone products either available on the market or are in various stages of
development. Several detection, identification, and neutralization
technologies are being employed and developed by leading defense contractors.
Some of the most prominent counter-drone technologies for detection and
tracking include scanning for radio frequency, electro-optical, infrared, acoustic,
and combined sensors. Other technologies and methods used for interdiction of
drones involve radio frequency jamming, spoofing, laser, nets, and projectiles.
The global counter-drone market size is expected to reach $1.85 billion by
2024 as incidences of unauthorized use of UAVs and acts of terror using drones
rise.
Given that major proliferation of drones is underway in the Subcontinent, India
needs to devote adequate attention to developing and mainstreaming counter-
drone technologies. India has a unique opportunity to learn some of the lessons
of how counter-drone technology is evolving in the United States and being
utilized by federal law enforcement agencies. Given C-UAS technologies are
dependent on innovation, industries in India can collaborate with counter-drone
tech companies in the United States and become part of the global supply chain
of C-UAS tech.
On February 1, 2019, CNBC reported that by 2022 the Federal Aviation
Administration (FAA) expects that there will be 2.9 million drones flying in the
United States. While commercial drones are beneficial to the national
economy, the rapid multiplication of drones in the skies poses significant security
risks. As greater numbers of drones are flying dangerously close to commercial
and private aircraft, there have been several near misses between drones and
aircraft. While reining in rogue drones has received significant attention
during the last five years, there are several outstanding challenges as all counter-
drone technologies need to reconcile with legal and safety mechanisms. The FAA
considers drones to be aircraft and does not allow shooting down an aircraft, thus
making shooting down drones illegal and a federal crime in the United States.
Only the federal government’s law enforcement agencies have been granted the
authority to employ C-UAS technologies, thus his suggesting that counter-
drone adoption measures will take place in close coordination with FAA laws.
In July 2018, the FAA updated its guidance on “Unmanned Aircraft Systems
(UAS) Detection and Countermeasures” and underscored that successful
mitigation of rogue drones is reliant on accurate detection. One of the major
findings of the FAA report is that the “low technical readiness of C-UAS systems,
combined with a multitude of other factors, such as geography, interference,
location of the majority of reported VAS sightings, and cost of deployment and
operation, demonstrate this technology is not ready for use in domestic civil
airport environments.” The report emphasized the challenges of C-UAS
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technologies and the potential risks of targeted UAS when engaged in airport
environment, which can introduce greater hazards than it is intended to mitigate.
Despite the slow pace of adoption of counter drone tech, it is pertinent that law
enforcement agencies and security officials will need to be prepared, trained, and
equipped to counter hostile drones. The U.S. Congress recognized that the need
for counter-drone tech will only grow and, therefore, in the 2017 and 2018
National Defense Authorization Acts (NDAAs) enabled limited C-UAS authority
to the Department of Defense and Energy. Notwithstanding these challenges,
there are several companies, such as SkySafe, DeDrone, Fortem, that are working
with the Department of Defense (DoD) to keep unwanted drones in check;
though the real challenge continues to be the regulatory battle. For instance,
SkySafe does not only track drones but also intercepts them, but hacking and/or
intercepting drones is illegal in the United States. It is, therefore, important
that companies, local and federal government agencies have a greater level of
coordination when it comes to counter drones technologies.
With an increasing boom of the commercial drone market in India, drones are
becoming cheaper, smaller, more agile, and stealthier. After several incidents of
drone sightings around Indian airports, the government is investing in the
development of reliable, safe and secure C-UAS technologies. For example, the
Defence Research and Development Organization (DRDO) has taken up the
development of high-intensity laser weapons. Additionally, the Indian
government’s Bureau of Civil Aviation and Security (BCAS) has been engaging
with two Israeli companies to develop drone disabling technologies around
Indian airports. This technology primarily looks at two categorization of skills –
soft kill (a drone which flies into a secured airspace can be destabilized and its
system frozen) and hard kill (the drone can be destroyed).
The growth in the market of counter-drone technology is another area where the
industry in both India and the United States can cooperate. The BCAS can work
with the U.S. industries and federal law enforcement agencies to navigate the
policies adopted and the regulatory challenges involved in the lawful elimination
of drones.
There is also a major component of learning lessons from the United States and
applying them in the Indian context to foster a culture of safety and responsibility
throughout the drone industry. For instance, to mitigate rogue drones near the
National Nuclear Security Administration’s (NNSA) sites, the Office of Defense
Nuclear Security has deployed its first C-UAS platform. The NNSA worked in
partnership with the FAA for the designation of Los Alamos Lab as a “No-Drone
Zone” and to set up a system to detect, identify, track, and intercept
unsanctioned drones at Los Alamos National Laboratory. It would be in India’s
security interest to draw upon the lessons from the NNSA-FAA collaboration to
better understand the capabilities, functional efficacy, and ease of handling of
anti-drone technology. Additionally, training a specific team – either the Central
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Industrial Security Force (CISF) personnel or the Air Traffic Controllers (ATC) –
staff at airports would be highly beneficial for the Indian security establishment.
Some Key Considerations for the Way Forward
The use and utility of commercial drones are on the rise and expectedly will
continue to grow. As there are some significant developments for new regulatory
frameworks for drones in India, there is an opportunity for New Delhi to increase
partnership with the United States on commercial drones. India will need to fine-
tune its regulatory policies on commercial drone laws according to international
standards. The increasing number of drones in the sky and the growing number
of violations – accidental or criminal – also incentivizes Indian and American
industries to collaborate on counter-drone tools to keep out unwanted drones.
Drone technology in the commercial sector has the potential to create
tremendous impact with regard to job creation, increasing productivity, and
efficiency. However, there will be considerable concerns about both the promise
of the technology and its ability to carry out tasks while ensuring safety, security
and privacy of citizens. Expectations regarding drone technology in the
commercial sector need to be more pragmatic and rooted in reality.
Expectations regarding drone technology in the
commercial sector need to be more pragmatic and
rooted in reality.
Despite the rapid advances of drone technology, there needs to be significant
progress in several aspects of the technology: autonomous flights (this
technology is still developing but it allows drones to fly without a user directing
their flight); and battery performance (improvements in battery technology are
expected to boost drone flight time). Though some of these improvements will
allow commercial drones to fly for longer durations without battery recharging,
the drone technology can fall short of the promise. It is important for industry
players and policymakers to temper expectations of what drone technology as a
whole can achieve, given it is still evolving and is not a fully mature technology.
Drones are not horizontal technology (i.e. the movement and transfer of this
technology from one sector to the other is not easily possible.) The most
disruptive technologies that have made huge impacts on consumer use are
horizontal technologies like e-commerce. However, since drones are not a
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horizontal technology, there would be significant expenditure on R&D in every
sector where drone applications are envisioned. For example, the last-mile
delivery drones will require a very different approach than farm surveillance by
drones. Last-mile delivery will require precision, timeliness, accuracy, interaction
with humans, and an understanding of potential obstacles. Farm surveillance
applications will require imaging technology, stability in dire environmental
conditions, and autonomy. This again indicates that there needs to be a
management of expectations on the commercial drones’ impact across sectors.
In the Indian context, it is clear that the development of the commercial drones
sector will happen in close coordination with the Indian government. However,
experts warn that stiff regulations could stifle the commercial drones sector from
flourishing. There must be a balanced approach where the government is able to
safeguard an individual’s privacy, monitor drones that could harm national
security, but simultaneously encourage policies that enable the commercial
drones sector to flourish.
To conclude, it is important to highlight that although much of the recent debate
on drones has centered on the state’s use of drones for surveillance and military
purposes, the use of drones by and for civil society deserves attention. For any
underlying opportunity in the case of the commercial drone market in India,
there is a vital need for enabling policies and handholding between India and the
United States. For a smooth launch and progress of the commercial drone
industry in India, there needs to be policy consensus and coordination among the
Ministry of Defense, the Ministry of Home Affairs, the Ministry of Commerce
and Industry, the Ministry of Civil Aviation, the Department for Promotion of
Industry and Internal Trade, and Niti Ayog, among others. Moreover, there also
needs to be significant investment from the government on drone education –
training pilots, capacity building for manufacturing, registration and tracking of
drones, certification of remote pilots and other professional drone services. The
time is right and ripe for India to collaborate with the United States on the
development of its commercial drone sector, setting and strengthening the
regulatory landscape to allow commercial drones to be used effectively and
safely and also for the scalability of the technology.
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Civic Futures 2.0: The Gamification of CivicEngagement in Cities (Subhodeep Jash)
Subhodeep Jash is a Senior Consultant with FTI Consulting Asia’s Strategic
Communications Practice at New Delhi. The idea for this research stemmed from his
stint with the WZB Berlin Social Science Center.
Acknowledgements: I would like to express my gratitude to Charru Malhotra, Perry
Nunes, Liav Orgad and Jess Riegel for their valuable insights. I wish to express my
appreciation for the kind support and guidance of Awista Ayub and Melissa Salyk-Virk
at New America. Last, but not the least, I thank the entire cohort of the 2019 India-
U.S. Fellows for their feedback towards refining the contours of this paper.
Executive Summary
Citizenship is a fundamentally political institution. This research focuses on the
intersection of technology and active citizenship, which is a central component of
a republican conception of citizenship where citizens are expected to engage in
political deliberation and contribute to the common good of the community. This
paper is a primer on the newer forms of civic interactions that emerge when
gaming elements (such as points, badges, rankings, rewards, etc.) are introduced
into a non-game setting like civic engagement. Further, it maps current trends
and variations around the gamification of civic engagement. It begins with two
unique use-cases from Boston (United States) and Tlalnepantla (Mexico) that
illustrate how gamification can encourage greater participation in governance
processes and possibly address gaps in efficiency facing democracies. Finally, the
research attempts to form a typology of the various civic innovation projects in
Europe and the Americas, and Subsequently, examines the broad level societal
benefits and ethical challenges that arise from these interventions.
The closing section of the paper introduces the context of civic engagement in
one of the world’s largest digital demos, India and what a potential for
gamification in that socio-political context could imply. While this potential for
gamified governance looks encouraging, its use is being examined more as a
complementary tool to existing approaches surrounding citizen participation and
interactions.
Pokemon Gov and “Points” of Kindness
Digital technology is increasingly used to experiment with new forms of
encouraging citizen engagement. The spectrum of such experimentation ranges
from chatbots that drive interactions between government officials and citizens
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in Jersey, (an island located in the English Channel), to points-based systems
such as catalogues of good deeds (in Mexico) to motivate active citizenship. A
common thread behind such ideas is to provide incentives that motivate civic
activism, with the hope that, over time, such incentives will create a culture of
communal activism. Two such salient use-cases for gamification emerging in the
U.S. city of Boston and the Mexican city of Tlalnepantla are discussed hereunder
that illustrate successful deployment in these new civic interactions.
Digital technology is increasingly used to
experiment with new forms of encouraging citizen
engagement.
In 2016, the city of Boston in the state of Massachusetts launched a spring-time
campaign called “SpotHoles” as a way to encourage constituents to generate
more pothole reports during the snow-melt month of March when potholes are
especially prevalent. Prior to this campaign, residents could call a helpline to
report such civic grievances. However, a major challenge existed within the
helpline reporting system: the ability to situate these potholes within the
neighborhoods.
Subsequently, the SpotHoles campaign was deployed to report potholes with
better accuracy across the city by using a mobile application-based scavenger
hunt akin to the augmented reality mobile game, Pokémon Go. After creating a
branded campaign with associated digital assets, SpotHoles netted more than
300 percent higher citizen-reported potholes than the same period in the
previous year. And even better, the increased reports were accompanied by an
accurate location because of the mobile reporting application’s ability to geo-
locate issues, allowing users to snap a picture and send a note to the city.
The success of the initiative led to a partnership between Niantic Inc., the
developer of Pokémon Go and the Boston Mayor’s Office of Urban Mechanics to
institute a participatory Pokémon Go initiative with school students. The
initiative developed “PokéStops,” which provided a way of incorporating real-
world locations into the game build. For example, the potential locations for
PokéStops could be small parks or historic buildings. Students were asked to
make short videos explaining why these locations should be included in the
game. Then, a youth-led selection jury would pick the winning locations. The
idea of involving citizens into this curation exercise was identified as a way to
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celebrate meaningful and accessible locations in the city and raise civic
awareness among youth.
As another example, Tlalnepantla de Baz, a city in Mexico, suffered from low
civic engagement and its residents were indifferent to neighborhood problems.
There was little interest even in filing reports of criminal acts, which prevented
the authorities from taking action. This indifference threatened the city’s social
fabric, making citizens feel disconnected and insecure. In 2016, an initiative from
the Mayor’s office encouraged local citizens to participate in the community by
choosing a “good deed” from a catalog. Examples of good deeds included voting,
assistance to the elderly, job training, first-aid courses, safety training,
professional consultations, organizing cultural events, and self-employment
workshops. Good deeds could be municipal, but also universal—for example, the
promotion of environmental activities. Each good deed that was performed was
recorded and given a score, and citizens were able to claim benefits according to
their score from a parallel “Catalogue of Municipal Benefits.” Municipal benefits
included bike rental and public transportation, scholarships, tickets to cultural
events, and reduced municipal housing. The goal is to motivate civic activism,
with the hope that, over time, such incentives will create a culture of communal
activism. In the past few years, there have been suggestions to use technology to
motivate more active citizenship.
The Tlalnepantla city officials were inspired by community network projects that
promoted a sense of collaboration in other cities but felt that those projects were
too narrowly focused. The city’s Mayor, Guillermo Alfredo Martínez González,
said that the initiative led to a closer interaction among residents by promoting
good deeds, and had a transformative effect on the entire society by “allowing for
greater collective development, conflict resolution, stronger identity, and
reconstitution of the social fabric.”
Both these endeavors highlight how game elements such as a points based
system or a scavenger hunt akin interface can reinvigorate the interactions
between citizens and public policy. This paper examines a range of such similar
experiments that brought about this emergence in the gamification of civic
engagement.
Defining Gamified Civic Engagement
New forms of civic interactions have been driven by the incorporation of game
elements (i.e. points, badges, levels, rankings, rewards) into the non-game
context of citizen engagement and have created conditions for gamified civic
engagement. In recent years, there has been a growing appeal of the
gamification of civic engagement as a possible solution to reshaping participatory
regimes among residents in cities similar to the cases of Boston and Tlalnepantla.
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It is important to distinguish gamification from “mere games”—since the use of
game mechanics does not necessarily make a product a (video-) game. While
the main scope of games is pure entertainment, gamification is aimed at
transmitting features that leverage elements of role play, story, and agency.
According to some authors (Landers et al., 2018), this happens under three
conditions:
• The perception of a non-trivial goal that can reasonably be pursued
• The desire to pursue that goal under behavioral rules that differ from the
behavioral rules that one would normally apply
• The voluntary nature of the decision to pursue that goal
Background
An increasing number of cities, including a large number in the developed world,
suffer from low civic participation, an absence of social solidarity, and a feeling of
apathy in creating solutions to common problems. Harvard-based sociologist
Robert Putnam suggests that people living in diverse but divided communities
tend to “hunker down” and “withdraw from collective life” by placing less
trust in their neighbors, including those from a similar background. As a result,
they assume markedly more negative attitudes towards their local areas, vote
less; volunteer less, and give less to charity. A recent report of the City of London
portends an alarming development—it indicates a lack of “cross-community
contact,” and a low level of active citizenship, especially among newcomers.
The report finds this reality to be “one of the key challenges facing cities across
the world” and urges the need to find solutions to encourage active citizens who
“shape the decisions that affect their communities and their city” and share “a
sense of rootedness and active participation in community life.”
The OECD is one of the few public institutions that have guidelines on
measuring trust, both interpersonal and institutional. A recent OECD study finds
that only 43 percent of citizens trust their government. Trust in government is
deteriorating in many OECD countries. Lack of trust compromises the
willingness of citizens and business to respond to public policies and contribute
to a sustainable economic recovery. Open government policies that concentrate
on citizen engagement and access to information can increase public trust.
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Early Use Cases
What are the earliest use-cases of gamification around civic engagement? One of
the early salient cases is the ‘Howard Dean for Iowa Game’, the first official
video game commissioned in the history of the U.S. presidential elections in
2003. Players in the game earned points for virtual sign-waving, door-to-door
canvassing, and pamphleteering. The engagement for this game led to 100,000
plays before the Iowa caucus and signaled a new form of political campaigning.
Another example occurred in 2004 when the Illinois House Republicans released
a game called Take Back Illinois designed to represent their political positions
on various policy issues (such as economic development, healthcare, and
education). The game was at the center of that year’s legislative electoral race.
The game attained a fair degree of popularity as it received traction from online
distribution channels and supported via local blogs. The game was praised for its
attempt to capture political communication rhetoric in a persuasive manner.
During the lead up to Barack Obama’s presidential inauguration in 2009, his
team asked American citizens to vote for whichever issue they cared about most
on a platform called Change.gov. The idea was to crowdsource the highest-
priority issues from American citizens.
Then, in 2016, Hillary Clinton’s presidential campaign team launched an app
designed to gamify the campaign process. The application, which was inspired by
the Facebook game, Farmville, offered virtual badges and real-life rewards for
activities such as sharing promotional videos through social media platforms.
These scenarios all have a precise scope: to engage potential voters. Albeit, none
of these three campaigns led to successful electoral outcomes for the three
candidates, they did herald an innovative approach to bolster citizen
engagement.
Certain experiments pertaining to gamification were seen more in a setting to
provoke discussions, as seen in citizen engagement processes with SAM from
New Zealand, where an AI chatbot simulated interaction between a virtual
politician and users on Facebook messenger. All of these early engagement
efforts sought to explore ways to reinvent the citizen interaction process through
gamification as it offered greater motivation towards participation and a
transparent mechanism to engage in governance processes.
The Landscape of Citizen Gamification
During the course of this research, 25 to 30 initiatives that attempted to gamify
civic engagement were mapped. These projects were geographically diverse,
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spreading across Europe, North America, and Asia. Based on the mechanisms
involved, the projects could be divided into two broad categories:
1. Participatory decision-making: consultation/budgeting forums and
crowdsourced decision-making, and
2. Points-based system and community currencies.
Citizen engagement efforts employ several different “means” to achieve many
different “ends.” Depending on the context, citizens can play different roles
ranging from providing ideas and expertise (as with policy crowdsourcing
platforms) to being representatives of specific interests (as seen with
participatory budgeting and deliberative polling).
Participatory Decision-making: Consultation and budgeting forums
Graham Smith terms “democratic innovations” as the institutions “that have
been specifically designed to increase and deepen citizen participation in the
political decision-making process.” These innovations, as per Smith, are
consequential in that they represent a departure from the traditional institutional
architecture of advanced industrial nation-states. Citizen assemblies,
participatory budgeting forums, town halls, online citizen groups, and newer
legislative forms (such as liquid democracy) would be classifiable as democratic
innovations based on this taxonomy. In this regard, gamification within the
context of participatory consultation and budgeting forums has seen use-cases
that have boosted the participatory dimension of citizen engagement.
Ovar, a small town in Portugal, saw an impressive 25 percent of its residents turn
out to vote in its first participatory budgeting campaign. A seaside town of 55,398
people, Ovar is one of the oldest municipalities in the country. The city
implemented participatory budgeting as a means for the mayor, Salvador
Malheiro, to connect with the citizens and better engage with young people. The
program, which was allotted €100,000, used a gamification strategy with a
leader board that highlighted which proposals were receiving the most votes. It
also gave people both online and offline methods of voting, through either paper
ballots or a website form.
In 2015, Decide Madrid, a platform for public participation in decision-
making, was launched by the Madrid city council. Decide Madrid has four main
functions: proposals and votes for new local laws; debates; participatory
budgeting; and consultations. The platform allows any resident to propose a new
local law that other residents can vote on to show support. Proposals that gain
support from one percent of the census population are then put to a binding
public vote.
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A variant similar to participatory budgeting, “CrowdLaw,” is a participatory
lawmaking process where legislative bodies can tap into new methods for
unlocking the intelligence and expertise of the citizenry beyond an electoral
process.
In Reykjavik, Iceland, a CrowdLaw web platform for “idea generation” and
“policy crowdsourcing” allows citizens to present and discuss ideas related to the
services and operations of the city of Reykjavik since 2010. The website has seen
a fairly positive response as it’s been used by 20 percent of Iceland’s population.
vTaiwan, an experimental e-consultation platform, was used to engage
200,000 people in crafting legislation on topics as varied as company
shareholder requirements, regulating ridesharing services like Uber, internet
alcohol sales, and online education. The online engagement process used a
combination of an online system called “pol.is” and Slido, a questionnaire
tool.
Points-based Systems and Community Currencies
There have been a few cities that have promoted the idea of a local civic currency
towards promoting social innovation and as a means to invest in projects at a
local level. Nu Spaarpas, for example, was a municipal experiment that was
launched in Rotterdam in the Netherlands around 2000 to create a loyalty
points-like system to incentivize sustainable and eco-friendly consumption
choices. Consumers were rewarded when they engaged in behaviors such as
buying green or recyclable products. These loyalty points could be redeemed for
gifts such as event tickets or public transportation passes.
Cities such as Gent (in Belgium), Cascais (in Portugal), and the example of
Tlalnepantla (in Mexico) have taken the lead in developing similar community
currency (digital or physical) driven initiatives that foster active citizenship or
sustainability-driven action.
Recently, a system of digital social credit has been offered by Andrew Yang,
the founder of Venture for America and U.S. 2020 Democratic presidential
candidate. In his view, Digital Social Credits can improve civic engagement,
volunteer rates, and social interactions across the community. Credits can be
gained by “participating in a town fair,” “tutoring a local student,” or
“volunteering at a local shelter.”
Points- or rating-based system can, however, present a set of technological,
psychological, and ethical challenges. Who decides what is a “good deed?” What
criteria is used for creating such systems? How should a city disseminate the idea
or allow for registering participants or recording data? How effective are such
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incentives likely to be in cultivating positive habits and morals, and what can be
the societal side effects?
While these challenges are not examined in this paper, the feasibility and ethical
implications of scoring systems, especially in light of the bad reputation earned
with the adoption of China’s Social Credit System, become pertinent for further
research into the design of scoring systems. Algorithmic citizenship earned a bad
reputation following the adoption of China’s Social Credit System (SCS) in 2014.
The SCS creates a world in which one’s daily online activities are constantly
monitored and evaluated to create a Citizen Score, which is publicly ranked and
compared against the entire population. China’s SCS ranks citizens based on
criteria such as credit history, consumption behavior, social connections,
personal characteristics, and compliance with the government’s ideological
framework. The Citizen Score affects the eligibility of citizens for basic
services (mortgage, job, social benefits, etc.) and provides people with rewards
(e.g., one can rent a car without a deposit or have a faster check-in experience at
the airport) and punishments (e.g., restricted access to restaurants or removal of
the right to travel abroad). As China looks to make this project mandatory by
2020 and its intentions with regard to big data governance systems,
notwithstanding, the SCS can be conceived more like an ecosystem of initiatives
sharing a similar underlying logic than a fully integrated machine for social
control.
The distinction, however, is that unlike the pervasive algorithmic citizenship
profiles in China that are punitive in nature, the civic experiments outlined here
for cities across Europe and the Americas are largely voluntary and not developed
around sanctions or any form of activities that are classified as being negative.
Impact of Gamified Systems
Benefits
What do the gamified systems mean in terms of social benefit at a local level?
Gamified innovations provide novel solutions that simultaneously solve a social
need and augment capabilities and relationships and improve the use of assets
and resources. Social innovation models that are driven through citizen
engagement lead to a greater good for society and enhance social interaction and
engagement levels. It is evident that gamification can mobilize citizens
effectively to participate in public decision-making. Citizen participation needs
to be fun, easy and interactive. People are provided a voice and incentive towards
building an engaged society with a sense of fulfilling both their rights and
responsibilities towards more active civic engagement.
The efficacy of such platforms depend on a variety of factors, such as: (a)
voluntary participation that is sometimes incentivized, but not coerced; (b) trust
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of the civil society placed in the state authorities to provide the motivation
accompanied by an underlying assumption of a republican, “active” citizen
rather than a “Marshallian” (passive) citizen; (c) ca requirement to perform
some sort of action, and not just be a passive recipient ; (d) digital literacy
combined with internet and smartphone proliferation within the ecosystem to
allow adequate diversity of participation.
In 2009, a study published by the MacArthur Foundation investigated the
correlation between video games and their capacity to stimulate civic and
political engagement. The report identified a direct correlation between the civic
potential of video games and further engagement in civic life, especially by
young citizens.
Participatory processes work best at a local level as party politics are less
dominant. Citizens also find it easier to spot problems, identify solutions and
evaluate legislation for issues that directly affect their daily lives.
With several initiatives, a tech interface is meant to be a layer supplementing an
offline discussion forum, as happened in Decide Madrid and vTaiwan, the use-
cases highlighted earlier.
Measuring Engagement Levels
While we have examined the broad strokes of the kinds of gamification that are
being driven in the civic engagement context, it is important to evaluate whether
these civic-driven initiatives encourage low-risk/low-cost engagement or
whether they can be a driver of social change (both online and offline).
In an effort to measure levels of engagement, the International Association of
Public Participation (IAP2) has developed a public participation spectrum to help
groups define the public’s role in any public participation process on an
increasing level of intensity ranging on a scale of: Inform, Consult, Involve,
Collaborate and Empower. These varying degrees of engagement on the
participation spectrum can be outlined as follows.
• Inform: To allow citizens with a balanced and objective understanding of
a problem alternatives and solutions.
• Consult: To obtain citizen feedback on a policy challenge or problem
facing citizens
• Involve: To have a direct engagement mechanism for citizen redressal on
their needs and concerns.
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• Collaborate: To partner with the public on each aspect of the policy cycle
(from the development of alternatives to identifying the preferred
solution).
• Empower: To place decision making authority to the public.
Figure 1: Spectrum of Public Participation
(Source: Tim Bonnemann, City of Vancouver Mayor's Engaged City Task Force
Final Report on https://www.flickr.com/photos/planspark/12249559465 )
Taxonomy Of Gamified Civic Engagement Projects
Initiative/Platform(City/Country) Category Mechanics Depth of Participation
SpotHoles Campaign(Boston, USA)
Participatory(crowdsourced) decisionmaking
Hybrid realitygame app-based
Inform, Consult, Involve,Collaborate
City Points (Cascais,Portugal)
Points/rating based system App based Inform, Involve,Collaborate
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Initiative/Platform(City/Country) Category Mechanics Depth of Participation
Change Tomorrow(Ovar, Portugal)
Participatory decisionmaking
Web based +Offline
Inform, Consult, Involve
Better Reykjavik(Reykjavik, Iceland)
Participatory decisionmaking
Web based Inform, Consult, Involve,Collaborate, Empower
vTaiwan (Taipei,Taiwan)
Participatory decisionmaking
Web-based +offline forums
Inform, Consult, Involve,Collaborate
Nu Spaarpas(Rotterdam,Netherlands)
Points/rating based system Card basedtechnology
Inform, Involve,Collaborate
Torekes (Gent,Belgium)
Points/rating based system Loyalty card basedInform, Involve,Collaborate
Decide Madrid(Madrid, Spain)
Participatory decisionmaking
Web-based +offline forums
Inform, Consult, Involve,Collaborate
Citizenlab (Brussels,Belgium)
Participatory decisionmaking
Web + app based Inform, Consult, Involve,Collaborate
Hull Coin (Hull,England)
Points/rating based system App based Inform, Involve,Collaborate
Echo Citoyen (Paris,France)
Participatory decisionmaking
Web-based +offline forums
Inform, Consult, Involve,Collaborate
Next Election(Bangalore, India)
Participatory decisionmaking
Web + app based Inform, Consult,Collaborate
Figure 2: Taxonomy of Gamified Civic Engagement Projects
It is important to note some commonalities among the 12 initiatives presented in
Figure 2. First, most of the experiments were created by non-profits or
administered through collaborations between startups and city councils. Second,
all the initiatives have a similar goal, which is to inform the public and obtain a
reasonable degree of participation. Further, over half of the initiatives have a
consultative dimension, (i.e. receiving feedback from the citizens on a civic
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problem) thereby reflecting a fair degree of citizen engagement. Third, a majority
(over 70 percent) of the initiatives have used a blend of channels for engagement,
including either web/app-based platforms and offline elements. And lastly, all the
initiatives are based on positive acts and duties and do not carry any punitive
elements.
For a subsequent iteration of the synoptic table, a more detailed study of these
initiatives would need to be carried out in order to acquire a better measure of
how successful these platforms are. While this paper has not delved into these
finer details, any subsequent research in this area could look to incorporate the
following aspects:
• Creator of the initiatives
• Participation (voluntary/mandated) and opt-out scope
• Privacy and security features for the web/app based platforms
• Transparency in disclosures for activities or lists in the points or rating
based systems
• Feedback mechanisms for users or citizens
Challenges to Gamified Systems
Samuel Bowles in his book The Moral Economy argues that substituting moral
goodness with a reward and punishment system attacks the core of Rousseau’s
social contract. Intrinsic motivation, he believes, is a better motivation than
extrinsic rewards. Given that several of the game elements border on steering the
choice architecture towards a more rewards-centered arc, this is a trade-off that
can produce unintended consequences. For example, the ‘paradox of
disincentives’ may be viewed here as the outcome of an authoritarian exercise
of power from the moment in which citizens perceive that they lack the ultimate
control of their decisions.
Beth Noveck, of the Governance Lab at New York University, argues that civic
innovation in governments implies a conceptual shift in the exercise of public
power. The introduction of gamified governance implies a shift towards
upending the status quo towards reuniting citizenship with expertise. It
postulates a bottom-up approach to building public policies, and it necessitates
new mental models for conceiving the exercise of regulatory powers from public
institutions.
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Design becomes a critical challenge, in terms of marshaling convincing evidence
for the adoption of new technologies or including the right motivational
incentives for a crowdsourced decision-making process. Also, the perils of
‘groupthink’ can produce cognitive biases, as studied by eminent behavioral
economist, Daniel Kahneman when each decision-maker in a group has too little
information to solve a given problem and instead observes others in the hope of
becoming wiser.
With the increased use of computer algorithms to monitor digital activity, any
form of scoring systems is bound to raise questions relating to one’s status,
identity, and rights. John Cheney-Lippold captured this phenomenon with the
term jus algoritmi, which describes a new form of citizenship produced by
online data collection and used by law enforcement agencies (the NSA’s PRISM
Surveillance Program of targeting “algorithmically foreigners,” or the U.S.
Homeland Security Department’s plan to collect data on immigrants based on
search results, social media handles, and mobile phone information ).
Algorithmic citizenship brings to the fore fundamental questions on the digital
sphere and public function of online activity.
Normative citizen scoring (e.g., general assessment of moral personality or
ethical integrity) in all aspects and on a large scale by public authorities
endangers individual freedom and autonomy, especially when used in violation
of fundamental rights, or “when used disproportionately and without a
delineated and communicated legitimate purpose”, as has been highlighted in
the European Commission’s High Level Expert Group on Artificial Intelligence
guidelines titled “Draft Ethics Guidelines for Trustworthy A.I.”
Scaling solutions is a critical component in the new practice of public problem
solving, as argued by Tara McGuinness, Former Director to the White House
Task Force on Community solutions and Anne-Marie Slaughter, CEO of New
America. Some of the startups echoed this sentiment as well in terms of
constraints. Navigating the right areas for creating new forms of civic
engagement is another important dimension that emerges as a key consideration
for some of these projects. The measurement of impact is not quite so
straightforward. Accounting for context when measuring impact is imperative,
and thereby a theory of change for mapping complex causality is needed. For
example, large scale participation if orchestrated by advocacy groups may not be
a reliable indicator of citizens’ informed value preferences. In this context,
political scientists Robert Dahl and John Dryzek moot the formation of small
groups of citizens that comprise the non-elite, typically recruited through
random sampling.
These challenges outline the fact that, while it is enticing for gamified
applications to offer low-cost and higher engagement forms, the design of such
systems are intricate in nature and require much deeper deliberation.
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Civic Engagement in India: Potential for Gamification?
In India, the Ministry of Electronics and Information Technology (MeitY)
launched the National Portal of India (www.india.gov.in) in November 2005 as
well as the Open Government Data Platform (www.data.gov.in) in October
2012 for providing easier access to public information and data. In 2014, the
Digital India program laid the groundwork towards increasing the level of citizen
participation in the decision-making process through digital tools such as MyGov
and the eponymous Prime Minister’s mobile app, Narendra Modi. While these
platforms have exhibited some initial promise, the lack of an adequate vision
means that they no longer remained relevant and have been reduced to a
platform for input on various advertising or marketing campaigns instead of
substantive issue-driven citizen interactions.
As far as the civic engagement ecosystem in cities goes, there has typically been
sporadic levels of engagement. Traditionally, civic engagement has not been a
top priority. However, there is potential in its future application with citizens
increasingly using technology (especially mobile) with over 175 million
smartphone users expected to emerge in the next four years. Civil society
organizations such as the Janaagraha Centre for Citizenship and Democracy, and
the federal government’s efforts under the ‘Digital India program’ have led to
strengthening capacities towards digital literacy.
While gamification in this context is still at a pretty nascent stage, there are a few
applications that have been identified during this research.
ichangemycity is a locational online social networking platform launched in
2012 by Janaagraha Centre for Citizenship and Democracy for civic action. The
site uses the power of the internet to connect people who are in the same vicinity
and helps them discuss and act on civic issues. The platform largely uses a
complaint redressal system for citizens to raise concerns on potholes, unattended
garbage, water supply, and related civic issues. There is a system of “upvoting”
(where other users can vote for complaints to be prioritized) as part of the
interaction mechanism to ensure resolution of a complaint.
Next Election is envisaged as a virtual town hall that brings citizens,
politicians, and journalists together. It seeks to create a vertical accountability
framework among a diverse range of actors in order to bridge the gap between
elected representatives and constituents. It has microsites that comprise
sentiment analysis on issues such as sanitation and environment as well as
scorecard systems that allow individuals to rate elected representatives, building
a network of issue-based champions.
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Civis , started off as a web platform and sought to create meaningful
engagements with participatory consultation exercises around livability metrics
in Bangalore, Gurgaon, and Mumbai. Civis, thus operates more on the
participatory or crowdsourced decision-making spectrum. About 1,074 citizens
participated in a consultation on the city of Bangalore’s revised master plan.
Reap Benefit is an NGO based out of Bangalore that looks to empower civic
problem solving among youth through a mix of skill enhancement, local data,
and contextual solutions. The NGO wants to build a community of “solve ninjas”
around issues such as sanitation, education, and healthcare. The organization
does employ game elements in the form of badges for different skills: mobilize,
report, build, prototyping solutions, and campaigning.
Village Capital, a venture capital firm in collaboration with the Omidyar
Network, ran an accelerator program last year to support the growing ecosystem
of civic tech startups in India. Fourteen platforms that were developing ideas
about improving governance and augmenting citizen-facing interactions were
part of this program. According to Perry Nunes, a manager at Village Capital, a
large part of these initiatives were geared towards streamlining public service
delivery and helping local or municipal governments. Transparency and
governance and citizen participation were two of the broad themes for civic
innovation ideas.
The overarching state of play in India looks to be based around improvements in
backend governance delivery. There is a resource constraint present when it
comes to capacities for scaling civic engagement models. With this context,
gamification in India can leverage individual choices at a low cost as it aims to
produce a common good. Gamification also has more commonalities with
crowdsourcing vis-a-vis ‘nudges’ , which are aspects of a choice architecture
that alters people’s behavior in a predictable manner without forbidding any
options or significantly altering economic incentives. However, the introduction
of any sort of game mechanics must fit the right socio-economic context. At
present, the focal point for civic innovations is in Southern India (Bangalore in
particular). The design of these innovations is largely geared toward problem
identification or grievance redressal, but there is enough room for new forms to
emerge that focus on solution identification and crowdsourced policy-making.
The Way Forward: A Blueprint for Gamifying Citizenship
Digital technology is increasingly used to experiment with new forms of
encouraging active citizenship. The current spectrum extends from China’s
social credit system to ideas such as catalogs of good deeds to motivate active
citizenship. While China’s Social Credit System has been unequivocally
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condemned in the Western world, many of its scoring components are also
common for social networks outside China.
A scoring system, therefore, needs to have a more contextual and cognitive
design. For example, there are certain principles that could be considered while
building such systems. Based on the nascent scholarship and conversations with
some of the developers of these civic innovations, future scoring systems should
be:
• Voluntary. A voluntary system that provides equal forms of participation
in terms of allowing each registered resident to participate and the choice
to opt out of a system after signing up.
• Deliberative. The public can participate in something akin to the Catalog
of Good Deeds idea in Mexico.
• Flexible. Any list of deeds or activities needs to be subject to a review and
constant iteration.
• Transferable. Earned points can be transferred among citizens’ subject to
certain conditions.
• Secure. The technological infrastructure on which a system is built needs
to be safe and secure (in which data is encrypted).
• Positive Acts. The system can be built around rewards, however, a
decision to not participate should not impose any negative costs.
• Adaptive. It is interoperable and can be implemented either at a sub-
municipal level or supra-municipal level, such as a consortium of cities
(e.g. C40 Cities ) where an individual can claim benefits in one
participatory city based on good deeds in other participating cities.
• Activity-centric. It is action-based: no score will be given to individuals—
this is not a citizen rating method—but to “deeds.” It is imperative that
extrinsic rewards don’t become a substitute for intrinsic motivation. The
two would need to go hand in hand.
Gamification can mobilize citizens to effectively participate in public decision-
making. But note that gamification can also have detrimental effects if the design
is manipulative in terms of the choice architecture it presents or has the
unintended consequence of excluding participants in any way. In this regard, it
becomes imperative to ensure that any such context starts with the sense of
belonging to the local community and to amplify with a smart gamification
scheme.
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The gamification of civic engagement syncs well with the ability to create new
spatial interactions around local issues (such as waste management, potholes,
etc.).
Any adaptation of the innovations discussed in this paper would need to fit into
the socio-political context of the region. Blended models or formal and
unconventional channels should operate together to engage citizens in policy-
making.
Conclusion
Gamifying citizen engagement is certainly not a panacea for all societal ills, and
it poses various challenges of its own—notably those linked to aspects of privacy,
design, and inclusion. But, in combination with other innovations and methods,
especially the interlinkages with behavioral economics and collective
intelligence, it does offer a potentially valuable and still somewhat under-
explored approach to governance in the 21st century. The motivation towards
greater participation and transparency across the public participation spectrum
ranges from informing to empowering the public.
While the verdict for attributing success to gamification in this space is still not
clear, the governance potential offered by gamification stems primarily from the
avenues it offers for greater motivation and participation, inclusion and,
consequently, transparency across the full policy life cycle—from agenda setting
to solution ideation, policy development, implementation, enforcement, and
review of effectiveness.
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Key Differences Between the U.S. Social SecuritySystem and India’s Aadhaar System (Kaliya Young)
Kaliya Young also known as "Identity Woman" is the author of A Comprehensive
Guide to Self-Sovereign Identity and the Domains of Identity. She holds a Master
of Science in Identity Management and Security from the University of Texas at
Austin. She currently serves on the faculty of Merritt College in Oakland California.
Acknowledgments: The author would like to thank all the people she spoke with in
India about Aadhaar. This paper would not have been possible without the support of
New America and the guidance provided by Awista Ayub and Melissa Salyk-Virk. The
author would also like to thank the 2019 India-U.S. Fellows.
Introduction
As the world’s largest democracies, with 1.3 billion and 326 million people
respectively, India and the United States both need to support the abstract
representation of individuals and entities and support their transactions with
each other confidently in the digital world.
In a 2013 lecture, Nandan Nilekani, founding chairman of Unique Identification
Authority of India (UIDAI) stated, "the same thing happened in the 1930s in the
United States when Roosevelt passed the Social Security Act as part of the New
Deal.” Because the United States is often admired as a large functioning
democracy, the fact that it uses a national ID number means that there is an
assumption that the U.S. system must be a good model.
The United States began issuing Social Security numbers (SSN) to a small
segment of citizens in 1935. The system has evolved over the past 85 years and
now numbers are issued to children at birth. Today, Social Security numbers are
used by employers to verify employment eligibility and by the government to
track the collection of taxes, social benefit contributions by people, and to
support them receiving benefits. Most residents also have a state level driver’s
license or ID card that an SSN is required in the application process. This type of
ID has a photo biometric and is held by 87 percent of adults.
Over the past 10 years, India has rolled out an identity system based on the
collection of biometrics and simple demographic information from all of its
residents. The system is called Aadhaar, meaning foundation in Hindi. To date,
Aadhaar claims to have enrolled 1.3 billion residents.
Both Aadhaar numbers and SSN are unique numbers issued to residents by their
federal government. A card with the number on it is mailed to the resident. To
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this extent, the numbers are comparable. There are differences in the registration
and enrollment processes, but this is not really where the major differences lie.
The important differences center on how numbers serve as part of an overall
identity system in both the public and private sector. This paper walks through
the specifics of these differences comparing the U.S. and Indian systems
throughout.
The first section provides context for each ID and considers the historical and
contemporary risks of identity systems.
The second section considers the role of the number itself, and, further, explains
how the creators of Aadhaar position the number within a sprawling system that
continues to add new features, particularly in contrast with the limited role of the
SSN within the U.S. context.
The third section looks at the very different legal and regulatory frameworks that
inform the operation of the agencies responsible for both Aadhaar and Social
Security, along with contrasts in the visibility of operations through the court
systems where challenges occur.
The fourth section outlines how the national-level UIDAI worked with state-level
governments and consultants in India to create vast databases of information
about residents at the local level. These state-level databases are called State
Resident Data Hubs. In the United States, there are no large scale databases of
this type. This section walks through the range of regulations that have been put
in place since the 1960s to guard against the creation of such databases in the
United States.
Finally, the paper concludes with a discussion in sections five and six about how
the use of the SSN has become limited to employee enrollment and financial
services in contrast to the ever-expanding use of Aadhaar in the private sector
and employment context.
Risks of Identity Technologies
Identity systems, one of the original public interest technologies, arose with
the creation of contemporary nation-states. The first identity documents were
simply receipts that proved that an individual had been surveyed in a census or
that they were registered by a local authority in return for a government service
in response to a live event (e.g., birth, marriage, and/or death). As a result, these
documents or statuses shaped a citizen’s perception of identity as a member of a
common public or state.
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Identity technologies have tremendous power. They can enable the constructive
engagement of citizens with their government, but can be used by the state in
ways that cause great harm.
Democracies benefit from diverse input into the design of identity systems and a
broad consensus about their operation, transparency, and accountability to the
citizens whose information is managed by these systems.
Existing mental models of how identity and identification systems work are
based on government registries for births, deaths, and marriages where events
are recorded on paper in a ledger book and certificates issued. Identifier oriented
systems like the SSN originated at a time when paper-based punch cards were the
latest technology. There were limits to how far and wide a number could circulate
when paper technologies like punch cards, index cards, and the physical mail
system were the only means of circulation.
Even when identity technology is limited to paper, its abuse could lead to horrific
results. IBM’s punch card technology was instrumental in facilitating the Nazi
genocide of Jews in Europe via the census records in various countries. Several
Indian subjects interviewed for this research paper pointed out that there have
been a number of significant events of communal and caste violence in India:
• Keezhvenmani (Tamil Nadu, 1968)
• Gujarat (1969)
• Nellie (Assam, 1983)
• The Anti-Sikh Riots (1984)
• Hashimpura (Uttar Pradesh, 1987)
• Lakshmanpur Bathe (Bihar, 1997)
• Gujarat (2002)
• Khairlanji (Maharashtra, 2006)
Some of these incidents were facilitated by datasets from Voter IDs and Ration
Cards, and some had implicit state involvement. Beyond these large incidents
involving thousands of deaths at one time, there are also tens of thousands of
reports of more isolated incidents of violence every year against Dalits.
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In the third millennium, computers became ubiquitous and we, i.e., society writ-
large, must consider how identification-based systems translate into a new digital
medium. There are new opportunities and risks created by the design and
implementation of identity technologies and the systems they are connected to.
Techno-Utopianism, the predominant stance of UIDAI, iSPRIT and India Stack
proponents, does not address some of the real security risks. In India, security
researchers and reporters who have brought to light the flaws, vulnerabilities,
and leaks of the Aadhaar number system have been prosecuted by the UIDAI as
criminals. This has led to groups of concerned critics collaborating and
publishing under pseudonyms to ensure the public knows about the issues and
vulnerabilities while limiting their own risk.
What is the Role of The Number
Both the U.S. Social Security Number and Aadhaar Number are core to how the
respective systems work but the way the number is seen and how the designers of
the programs orient around it is quite different.
In India, there has been a proliferation of digital services linked to and
surrounding the Aadhaar number. Some examples include:
• Aadhaar-enabled payment services for bank transfers using only the
Aadhaar number;
• Aadhaar payment bridge for government-to-citizen transfers;
• Offline authentication with QR code;
• Mobile Aadhaar application including lock and unlock service;
• Aadhaar authentication history logs;
• VirtualID creation;
• Mobile OTP for authentication;
• eKYC (electronic Know Your Customer);
• DigiLocker, a service for people to download all the documents they have
been issued by different government departments; and
• eSignatures and document signed locker.
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However, security researchers I spoke with highlighted major flaws in the design
of many of these services. There has also been a stream of reporting about
specific security vulnerabilities that have been uncovered, like API’s to the core
demographic database that was reported to be completely open.
The creators of Aadhaar and the India Stack led by iSPIRT, a trade association
of software makers focused on the Indian market, see the Aadhaar number as the
center of a bottleneck in an ecosystem. The Aadhar system is built under the
assumption that national identity numbers are the equivalent of IP addresses in a
digital network. This assumption creates significant correlation risks and the
potential to amass vast datasets that can be used for commercial and government
surveillance.
In the United States, public concern about the possible use of the SSN for
government surveillance has limited the use of the number and led to regulations
about its use in both the public and private sector.
On the other hand, in the India stack model, not only does the Indian
government provide an identity card to citizens, acknowledging them and giving
them a “proof ” to share, but it also provides authentication services. Indians
can use their UID to log in to services and then either use a biometric or get a
one-time password (OTP) sent to their phone which they then enter to complete
remote authentication. This means that the UIDAI has a record of all of the
places where a person authenticates their identity, and this information is kept in
Aadhaar’s logs for six months.
It is very difficult to imagine a proposal by private sector companies or
government leaders in the United States that would require individuals to “log
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in” with their SSN. U.S. government agencies, both as a matter of policy and
law, are reducing or ending their reliance on the SSN as the canonical identifier of
people. There is no way an SSN can be used for authentication against a factor of
authentication (password, OTP, biometric) held by the Social Security
Administration.
There is ongoing work in the United States to develop ways for individuals to
prove they are a particular person by leveraging government-issued identity
documents in digital form. An important feature of some of these systems is
that they do not rely on a connection to a central government database to prove
their veracity.
Legal and Regulatory Frameworks
UIDAI and its leadership have a culture of operating just beyond or just within a
legal and regulatory framework. Two books about the story of the creation of
Aadhaar have been written by journalists. Both document how the project did
not have a legal or regulatory basis for six years between 2009 and 2016 and
operated with a startup culture. They describe how the UIDAI leaders pushed to
build out Aadhaar despite this legal limbo.
When it was finally made legal with the Aadhaar Act of 2016, the UIDAI was also
left as its own regulator with enormous freedom to expand aspects of the system
and build new “features” without any need to consult the public. UIDAI did not
do privacy impact or security assessments that would bring transparency to how
the system would work or change in the future and what the implications would
be. In my interviews with UIDAI leaders, they described the next new features
that were going to be appearing within the India Stack framework while at the
same time saying that the UIDAI had no responsibility for how people were asked
for their identity information or how that information was used by those
requesting it.
Unlike UIDAI, when the U.S. government changes any technology at the core of
its operations, it moves with a deliberate and careful approach bound by the legal
and regulatory framework of the government, particularly when working with
the sensitive personal information of its residents. For decades, there have been
extensive on-the-record hearings by various legislative committees and
presidential commissions addressing government systems for registering citizens
and collecting and using data about them. Hearings of this type are, by default,
not public in the Indian parliamentary system.
Another contrast between the two systems is a key mechanism for public
accountability. Challenges to U.S. government procedures happen in the courts,
where proceedings produce court transcripts. The 38 days of hearings about
Aadhaar before the Indian Supreme Court produced no transcripts: the best we
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have are some summaries and aggregations of live tweeting done by
observers in the courtroom.
In contrast to the U.S. Social Security Administration, the UIDAI is its own
regulator. This is in part because, in India, most legislation is written in a way that
delegates significant regulatory power to the government while the law
concentrates on legal and policy issues. In the case of the Aadhaar Act,
substantial regulatory power was given not to the government but to UIDAI itself,
meaning it is not actually accountable to any other organization. And the
UIDAI is exempted from Right to Information [RTI] requests and it sets the
grievance mechanisms for itself. The UIDAI is responsible for regulating the
ecosystem around it. Many have questioned the revolving door that is seemingly
connecting the UIDAI and private industry and question whether this limits the
ability of UIDAI to regulate its own ecosystem.
From Enrollment to Mass Databases
Governments register people into systems through enrollment. In the United
States, enrollment systems are run entirely by government officials who are
accountable to government agencies within which corruption is very rare. There
is coordination between the local county and state levels that have the authority
to register births and the federal Social Security Administration through a system
called enumeration at birth (EAB).
Enrolling people in more than one program or system at once is multi-context
enrollment. In the United States, legislation at the federal level, colloquially
known as the Motor Voter Act and officially as National Voter Registration Act
of 1993 mandates that states provide the opportunity for people who are signing
up or renewing a driver’s license to also have the opportunity to register to vote in
elections. Individuals getting a driver’s license must proactively choose to be
enrolled in this second and very different system. A special process pushes data
from the driver's license registration process over to the government agency that
manages the state-level voter list.
In India, multi-context enrollment takes place with state-level registrars. States
are incentivized to enroll their people because they get to collect more
information than the basic four fields (name, birthdate, gender, and address)
required by the UIDAI “Know Your Resident” rules. Different states have added
additional fields, such as marital status, house status , occupation, and VoterID
number. This data was intended to be reserved for the state and is known as
“Know Your Resident Plus” [KYR+] data.
Indian residents, when they go through the process of getting their Aadhaar
number for the first time, are enrolled in the UIDAI Central Identity Repository
and the State Resident Data Hub.
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Figure 3: Flow of Data from Enrollment into the CIDR and SRDH by Anand
Venkatanarayanan https://medium.com/karana/the-360-degree-
database-17a0f91e6a33
UIDAI created the software and required that states use this software if they
wanted to get UID information and additional KYR information.
Several years into enrollment, problems surfaced. Some residents were bypassing
State enrollment agents by enrolling through banks and other registrars, and
states did not have access to that data. In response, the UIDAI made a deal with
states to share the UID and demographic data from residents of their states that
enrolled with other registrars.
It is claimed that this activity stopped with the passage of the Aadhaar Act in 2016
and that all the State Resident Data Hubs were destroyed. However, there is
evidence that these Hubs are still operating. Even if the data is no longer sent
directly from the UIDAI to SRDH, each of the states has agreements to access the
KYC API of the UIDAI CIDR, so when they interact with residents they can pull
the data from the UIDAI into their state-level databases (see Figure 5).
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Figure 5: SRDH – State Adoption Strategy Document & State Resident Data Hub
(SRDH) Application Framework Adoption Guidelines by UIDAI
The State Resident Data Hubs use the UID as the anchor to integrate all data
from different state databases together. This happens in two ways. One is a
linking process where residents who are recipients of a particular subsidy,
benefit, or service go to the agency and assert their ID from a given system and
provide their Aadhaar number. They may be asked to authenticate via a thumb
print. This process is known as linking, or organic seeding.
Another process, known as inorganic seeding, combines data from SRDH and
UIDs together with existing databases from various subsidies, benefits, or
services. This process occurs without the awareness or consent of residents.
Authorities might check with residents/beneficiaries to see if they made the
correct link or to find beneficiaries who “did not match” any particular Aadhaar
number and ask them what their number was. This human resolution requires
more effort to complete.
The assumption is that only those with matching UID Aadhaar numbers are
“real” beneficiaries. Everyone else is a ghost or fake and can be eliminated.
Indian naming conventions are very fluid, and the same people use different
names in different contexts. This strategy to address who is on different social
services programs is causing disruption to clients who have their benefits cut off
because their legitimate claims are not recognized by the system.
The State Resident Data Hubs have applied a computer science data modeling
idea of “single source of truth” and sought to impose it on Indian society and
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bureaucracy, deciding that whatever is recorded in the UIDAI database is the
single source of truth about an individual.
Rather than creating mass databases and integrating all data about citizens
across all contexts, the U.S. government is actively taking steps to stop or reduce
the use of the SSN, even in unlinked discrete databases. Currently, the use of
the number at the federal level is mandated for only a few agencies and services,
such as the Internal Revenue Service (tax authority), Social Security
Administration, passport applications, and for loans by any federal agency. Other
agencies that request the number must inform residents that sharing it is
voluntary, and they will not be denied services if they do not share the number.
This was not always the case. Beginning with an executive order by President
Eisenhower in 1953, there was a phase where using the SSN as a key to interact
with various services was encouraged and even mandated.
In 1961 the Internal Revenue Service required the use of SNNs when filing taxes.
Increased digitization of records in the 1960s drove the need for common
reference systems across government agencies and within the private sector, and
they chose the SSN as a way to do this.
In 1965, there was a proposal to create a National Data Center that would pool
statistical information held by the Census Bureau, the Internal Revenue Service,
the Bureau of Labor Statistics, the Social Security Administration, the Federal
Reserve Board as well as a dozen other federal agencies. The public reaction to
merging all of these bureaucratic records caught proponents off guard because
they thought that the composite data were necessary for a well-ordered society,
and the benefits were self-evident. But the reaction by the public was hostile
and sustained when the proposal was floated in 1967, and again in 1970 when it
was finally rejected. There was widespread press coverage that looked at the
implications for the present and future by creating such databases (see Figure 8).
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Figure 8: (c) 1967 The Atlantic Media Co., as first published on the cover of The
Atlantic Magazine.
All rights reserved. Distributed by Tribune Content Agency, LLC
Today, India has the type of database the American public rejected in the 1960s
and 1970s. The process was started by the UIDAI and their approved consultants
(among them Accenture, Ernst and Young, KPMG, PwC, Wipro, and Deloitte)
with the software they developed and supported. This is particularly true in570
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Andhra Pradesh and Telangana, which have recently become separate states.
They did intense surveys of their residents, linking all the data collected to a
citizen’s Aadhaar number. Andhra Pradesh used The People Hub (see Figure 9)
to combine 29 different department databases.
Figure 9: Screenshot of Andhra Pradesh online state survey http://
prajasadhikarasurvey.ap.gov.in/PSS2017/index.html [this link is not live]. It is
from this
How did the United States move from public outcry against a National Data
Center to developing actual laws and regulation that helped citizens accept the
same data being collected by discrete agencies to guard against information
sharing between agencies? While India adopted the use of Aadhaar across
several agencies to deliver services, the U.S. was slower to move in that direction
with the SSN, but did get there eventually.
In this time period the late 1960s and early 1970s there were multiple hearings,
task forces, and committees convened by various agencies of the federal
government and committees in United States Congress. These included The
Social Security Number Task Force in 1970. In 1973, the Secretary of Health
Education and Welfare Advisory Committee on Automated Personal Data
Systems issued a report entitled, “Records, Computers and the Rights of
Citizens.” The committee developed a code of fair information practices,
inspired by the code of fair labor practices.
Below is the Committee’s original formulation of the Code:
• Safeguards for personal privacy based on our concept of mutuality in
record keeping would require adherence by record-keeping organizations
to certain fundamental principles of fair information practice.
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• There must be no personal data record-keeping systems whose very
existence is secret.
• There must be a way for an individual to find out what information about
him is in a record and how it is used.
• There must be a way for an individual to prevent information about him
obtained for one purpose from being used or made available for other
purposes without his consent.
• There must be a way for an individual to correct or amend a record of
identifiable information about himself.
• Any organization creating, maintaining, using, or disseminating records
of identifiable personal data must assure the reliability of the data for their
intended use and must take reasonable precautions to prevent misuse of
the data.
These were the starting points of what evolved to be the Fair Information
Practices and Principles, and later evolved into the Privacy Act of 1974, that
prohibits data sharing between government agencies. It states:
No governmental agency can "deny to any individual any right, benefit,
or privilege provided by law because of such individual's refusal to
disclose his social security account number" except refusal to disclose
after a request pursuant to requirements of federal statutes or pursuant
to pre-existing federal or state statutes or regulations through which a
system of records had already (before January 1, 1975) been set up. (5
U.S.C. § 552a) (note, Section 7 Disclosure of Social Security Number)
Over the next several years, the U.S. government began to move in a direction
that would result in expanded use of the SSN. In 1976, the Tax Reform Act
expanded the use of the SNN outside of Federal Agencies, by authorizing the
direct use of the SSN in state and local government programs. In 1977,
Personal Privacy in an Information Society by the Privacy Protection Study
Commission was delivered to President Carter. It covered the relationships
among government agencies across a broad range of services and had a special
chapter on the SSN. The Debt Collections Act of 1982 required that the SSN be
collected as part of the applications for all federal loans (student, agriculture,
small business—each administered by different departments) as a standard
practice.
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It is important to keep in mind that mandating the use of the SSN for privacy
protection meant that each of these departments could not share data about
residents with each other without consent. Many government departments that
encompass workforces and programs like the military or Medicare (healthcare
for the elderly), that relied heavily on the SSN as “the identifier,”made significant
changes to their system and stopped using it altogether.
The Driver’s License Protection Act of 1994 places strict limits on who can access
the Department of Motor Vehicles’ data, and under what circumstances. The
e-Government Act of 2002 requires agencies that collect data about citizens to
complete a Privacy Impact Assessment (PIA) for electronic information systems
and to make the results public. The PIA must be conducted before developing or
procuring an ID system that will collect, maintain, or disseminate information in
an identifiable form or about members of the public. They must also conduct this
assessment when merging databases, or when business processes change
significantly by adding new uses or disclosures of information. Here is what the
PIAs must analyze and describe:
Conducting a PIA.
PIAs must analyze and describe:
1. what information is to be collected (e.g., nature and source);
2. why the information is being collected (e.g., to determine eligibility);
3. intended use of the information (e.g., to verify existing data);
4. with whom the information will be shared (e.g., another agency for a
specified programmatic purpose);
5. what opportunities individuals have to decline to provide information (i.e.,
where providing information is voluntary) or to consent to particular uses
of the information (other than required or authorized uses), and how
individuals can grant consent;
6. how the information will be secured (e.g., administrative and
technological controls7); and
7. whether a system of records is being created under the Privacy Act, 5
U.S.C. 552a.
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Major information systems. PIAs conducted for these systems should reflect
more extensive analyses of:
1. the consequences of collection and flow of information;
2. the alternatives to collection and handling as designed; and
3. the appropriate measures to mitigate risks identified for each alternative.
Throughout the last two decades, there have been more reports by the federal
government about the SSN.
Today, in the United States the use of the SSN is strictly regulated and culturally
limited, while, in India, there is currently no privacy protection bill of any kind
that applies to the government or the private sector.
Commercial Sector Enrollment and Use
In the United States, several federal government statutes mandate the use of the
SSN for particular financial service transactions, such as opening a bank account,
cashing a check over $3,000 USD, being the beneficial owner of businesses, or
applying for a home loan. Because the SSN card is literally just a paper card with a
name and number on it, agencies also conduct Know Your Customer (KYC)
checks with identity documents that have photographs, such as driver’s licenses,
passports, military IDs, and permanent resident cards. Laws require the
collection of this type of data, but they also mandate the protection of this
information.
India, like the United States, has a KYC requirement driven by international
requirements mandated by the Financial Action Task Force (FATF) that put
these requirements in place after the September 11, 2001 terrorist attacks. The
original design of the UIDAI database would permit residents to do
authentication of their name and address. This process would start with a
resident sharing personal information with a bank. The bank would then send it
to the UIDAI which would send back an affirmative or negative answer to
whether it matched. While this design is commonly used to preserve individual
privacy, it also limits the amount of information that leaves the database.
Indian addresses are much more complex than U.S. addresses: each building has
a name or number, within a block, within a district, and then a city. In addition
to this complexity, India has 22 official languages. Its administration uses English,
which most residents do not read or speak. Language barriers make it difficult to
get an accurate answer from the UIDAI database. Lastly, regulated banks require
a copy of an identity document, and many people do not have an appropriate one.
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In 2014, the UIDAI made a significant design change and created a process
known as eKYC, where banks and telecommunications companies could ask
people for their Aadhaar number on enrollment, do a biometric authentication
with a fingerprint on a device, and the UIDAI would send the business a digital
document with their name, birth date, Aadhaar number, and physical address.
They could then use this address to populate their database and keep the digital
copy on file.
In the United States, there are very few services offered by any government that
allows private companies to connect with a government database and extract
private citizen data. The Social Security Administration has set up a system
known as Consent Based SSN Verification (CBSV). Various private companies
have been granted a special license for $5,000 USD to connect to the
government agency to do this type of check (CBSV).
Businesses use one of these agencies to check against the database with the
consent of the person whose information is being checked. They share the name,
SSN, and date of birth. These are sent to the government, checked against the
SSN Master File, and a Yes/No indicator is sent back to the business.
Since it is uncommon in everyday life to have one’s SSN information checked by
businesses, banks doing large numbers of transactions with people require a
different license to participate in this system.
In contrast, in India residents are regularly asked to show their Aadhaar “card”
and this document is regularly photocopied. As a result of this process, a new
convention has arisen where individuals take a photocopy of their card and write
the purpose for which it was made across the image. This, users hope, is a way to
prevent the photo copy from being used by someone else to open an account or to
obtain a service in their name.
Employment Enrollment and Use
When people seek employment in the United States, they are required to share
their SSN with their employer. Employers are required by law to verify that the
people they are hiring have valid SSNs. The CBSV is used for employee SSN
verifications.
Individuals can also self-check via the e-Verify system set up by the Department
of Homeland Security on an online portal. Individuals can enter their SSN with
their current citizenship status and receive a report about their current eligibility
to work.
Employers can enroll to use the e-Verify system too. They log into the system
every time they want to check a potential employee’s status by using information
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listed in the I-9 form (legal name, SSN, date of birth, and current citizenship
status). The employer will then receive a report about the applicant’s current
eligibility to work.
Employers who want to check if an SSN is valid for the purposes of tax
withholding can register with the Social Security Number Verification System
(SSNVS) to do so. Employers enter the names and SSN of employees that they
want to check. The system reports back if they match a person in the system.
Employers do this is to ensure that the taxes they are withholding from their
employees actually lines up with records at the Social Security Administration.
At the end of every quarter, employers send the government income taxes that
they withhold from their employees along with the name and SSN. The
government uses the SSN as an index to tax records and social benefit schemes
into which they pay social security and Medicare.
While these systems can potentially be used to extract information for other
purposes, this is explicitly prohibited.
In India, the Employees Provident Fund Organization requires Aadhaar (EPFO)
to open an account, and participation in PF is mandatory, so employees do not
have a choice as to whether or not they want to share their Aadhaar number with
their employer who will then pass it along to the EPFO.
In India, several employers, particularly the government, connect to the Aadhaar
Enabled Biometric Attendance System. This means that every day, when an
employee arrives to work, they are required to enter their Aadhaar number but it
is authenticated with a fingerprint. The biometric template is sent to the CIDR
and the authentication event is logged. This means the government not only has
a record of what an employee earned and tax deductions they submitted
quarterly, it also knows when the employee was at work in any given day.
Figure 11: Authentication Process of Matrix that Integrates with the AEBAS
server. https://www.matrixaccesscontrol.com/aadhaar-enabled-biometric-
attendance-solution.html.
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Conclusion
The framing of how a national identity number can and must be used, along with
the regulation of its use, often determines how companies, other governments,
and citizens all use national identity numbers. It is vital that a global dialogue
continues about the specifics of how the identity systems work in the two largest
democracies.
While in India I learned there were a lot of assumptions made about how the U.S.
system works that are actually incorrect. I hope that this paper provides a starting
point to understand the key differences between the U.S. and Indian systems and
made clear to readers from both countries about how the systems work.
In the United States, there is significant regulation around the use of SSNs, and
extensive privacy protection rules about any personally identifiable information.
There is public dialogue, which has been ongoing since the creation of the
SSN, about how much information is appropriate for the U.S. government to have
on residents in order to provide them with services.
The Aadhar system is more exclusively digital because it was created in the last
10 years. There are no privacy or data protection laws in place in India. The
creators of the Aadhaar system chose to expand the features of the system
without public input and feedback, and because they are their own regulator.
In my research, I have not found any comprehensive government-led privacy
impact assessments or evaluations about the use of Aadhaar in any context.
Aadhaar proponents see it as having the potential to “solve” a vast range of
problems. Yet, there tends to be insufficient consideration of the ways in which
the proposed solutions that use Aadhaar might create risks for those individuals
and institutions it intends to serve
Identity systems are powerful tools that have the potential for good, but also for
great harm. Those highlighting legitimate concerns in democracies should not be
fearful that their criticism will be criminalized. Public engagement and robust
public dialogue about identity systems in all countries should continue and be
supported.
597
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 154
Notes
1 The Global Risks Report 2018 13th Edition,[Geneva: World Economic Forum,2018] http://www3.weforum.org/docs/WEF_GRR18_Report.pdf.
2 The United Nations World Water DevelopmentReport 2018: Nature-Based Solutions for Water,[Paris: WWAP (United Nations World WaterAssessment Programme) /UN-Water, 2018, UNESCO]http://www.unwater.org/publications/world-water-development-report-2018/.
3 Martina Flörke, Christof Schneider, and Robert I.McDonald, "Water competition between cities andagriculture driven by climate change and urbangrowth," Nature Sustainability 1, no. 1 (2018): 51.
4 Robert I. McDonald, Pamela Green, Deborah Balk,Balazs M. Fekete, Carmen Revenga, Megan Todd,and Mark Montgomery, "Urban growth, climatechange, and freshwater availability," Proceedings ofthe National Academy of Sciences 108, no. 15 (2011):6312-6317.
5 Peter H. Gleick, "Global freshwater resources:soft-path solutions for the 21st century," Science 302,no. 5650 (2003): 1524-1528.
6 Ibid.
7 Negative externalities are costs that impact aparty that does not have a role in its creation. Forinstance, vehicular pollution generated by a specificindividual affecting people nearby. Negativeexternalities cause market failures.
8 Collection action problem occurs when individualspursuing a common goal do not cooperate due tocompeting interests.
9 Free rider issues occur when individuals who donot pay for a good or service reap its benefit. Toomany free riders results in over-exploitation or under-production of the good or service.
10 Richard E. Howitt, Richard E. and KristianaHansen, "The Evolving Western Water Markets," Choices 20, no. 316-2016-6565 (2005): 59.
11 Guy Le MoigneShawki Barghouti, Gershon Feder,Lisa Garbus, and Mei Xie, "Country experiences withwater resources management," World Bank TechnicalPaper 175 (1992).
12 Ereney Hadjigeorgalis, "A Place for WaterMarkets: Performance and Challenges," Review ofAgricultural Economics 31, no. 1 (2009): 50-67.
13 George A. Akerlof, "The Market for ‘Lemons:’Quality Uncertainty and the Market Mechanism," Uncertainty in Economics (Academic Press, 1978):235-251.
14 C. Wilson, Adverse Selection, In: PalgraveMacmillan (eds) [London: The New PalgraveDictionary of Economics, Palgrave Macmillan, 2008]
15 Y. Kotowitz, Moral Hazard, In: PalgraveMacmillan (eds) [London: The New PalgraveDictionary of Economics. Palgrave Macmillan, 2008]
16 J.O. Ledyard, Market Failure, In: PalgraveMacmillan (eds)[London: The New PalgraveDictionary of Economics. Palgrave Macmillan, 2008]
17 David S. Brookshire, Bonnie Colby, Mary Ewers,and Philip T. Ganderton, "Market Prices for Water inthe Semiarid West of the United States," WaterResources Research 40, no. 9 (2004).
18 John Freebairn and John Quiggin, "Water rightsfor variable supplies," Australian Journal ofAgricultural and Resource Economics 50, no. 3(2006): 295-312.
19 A. Dinar, M. Rosegrant, R. Meinzen-Dick, "Waterallocation mechanisms: Principles and examples,"The World Bank Policy Research Working Paper 1779(June 1997).
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 155
20 Jill E. Hobbs, "Information asymmetry and therole of traceability systems," Agribusiness: AnInternational Journal 20, no. 4 (2004): 397-415.
21 Max H. Bazerman and James J. Gillespie, "Bettingon the future: The virtues of contingent contracts," Harvard Business Review 77 (1999): 155-162.
22 Stefaan G. Verhulst, "Information Asymmetries,Blockchain Technologies, and Social Change," Medium, July 24, 2018, https://medium.com/@sverhulst/information-asymmetries-blockchain-technologies-and-social-change-148459b5ab1a.
23 Sloane Brakeville, and Bhargav Perepa,"Blockchain Basics: Introduction to DistributedLedgers," IBM Developer, March 18, 2018, accessedApril 14, 2019, https://developer.ibm.com/tutorials/cl-blockchain-basics-intro-bluemix-trs/.
24 Nigel Gopie, "What Are Smart Contracts onBlockchain?" Blockchain Pulse: IBM Blockchain Blog,July 02, 2018, https://www.ibm.com/blogs/blockchain/2018/07/what-are-smart-contracts-on-blockchain/.
25 "Civic Use Cases," Helping Governments to BeMore Accessible, Efficient and Effective. https://www.civicledger.com/?page_id=95.
26 "Civic Ledger Pty Ltd.," Australian WaterPartnership. https://waterpartnership.org.au/partners/civic-ledger-pty-ltd/.
27 "OECD Blockchain Policy Forum – DistributedLedgers: Opportunities and Challenges," Releasingthe Floodgates: Blockchain for Water Management,Sept. 2018.
28 "Water Markets and Trade," AustralianGovernment - Murray-Darling Basin Authority, Sept.29, 2015. https://www.mdba.gov.au/managing-water/water-markets-and-trade.
29 "About Water Ledger," How Water LedgerWorks, https://waterledger.com/about-us.
30 "OECD Blockchain Policy Forum – DistributedLedgers: Opportunities and Challenges," Releasingthe Floodgates: Blockchain for Water Management,Sept. 2018.
31 "About Water Ledger," How Water Ledger Works,https://waterledger.com/about-us.
32 Ibid.
33 "OECD Blockchain Policy Forum – DistributedLedgers: Opportunities and Challenges," Releasingthe Floodgates: Blockchain for Water Management.September 2018.
34 Ibid.
35 The term “smart” in this context indicates the useof internet of things, big data, predictive analyticsintegrated over blockchain network as underlyingtechnologies to facilitate the operations of a watermarket.
36 Jayachandran Praveen, “The Difference betweenPublic and Private Blockchain," Blockchain Pulse: IBMBlockchain Blog, Aug. 06, 2018, https://www.ibm.com/blogs/blockchain/2017/05/the-difference-between-public-and-private-blockchain/.
37 J.R. DeShazo, Gregory Pierce, and HenryMcCann, “Los Angeles County Community WaterSystems Atlas and Policy Guide: SupplyVulnerabilities, At-Risk Populations, ConservationOpportunities, Pricing Policies, and CustomerAssistance Programs,” UCLA: Luskin Center forInnovation, (2015), https://innovation.luskin.ucla.edu/wp-content/uploads/2019/03/LA_County_Community_Water_Systems.pdf; U.S.Census Bureau Quick Facts: Los Angeles County,California," Census Bureau Quick Facts, July 1, 2017,https://www.census.gov/quickfacts/losangelescountycalifornia.
38 S. Pincetl et al., “Water Management in LosAngeles County: a Research Report,” Los Angeles:UCLA, Institute of Environment and Sustainability,
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 156
2015, https://www.ioes.ucla.edu/wp-content/uploads/UCLA-CCSC_LAWater_-Haynes1.pdf
39 Ibid.
40 Ibid.
41 J.R. DeShazo and Gregory Pierce, "Quantifyingthe Benefits and Designing Governance Structuresfor a Water Market in Los Angeles County," [LosAngeles: UCLA, Luskin Center for Innovation, Oct.2016] https://innovation.luskin.ucla.edu/wp-content/uploads/2019/03/Quantifying_the_Benefits_and_Designing_Governance_Structures_for_a_Water_Market_in_LA.pdf
42 Bengaluru Water Board, “Blueprint for Future,”https://www.bwssb.gov.in/images/upload/pdfs/vision_document_2050.pdf.
43 Bangalore Water Supply and Sewerage Board,"About BWSSB," Bangalore Water Supply andSewerage Board. https://www.bwssb.gov.in/com_content?page=3&info_for=4.
44 Bengaluru Water Board, “Blueprint for Future,"https://www.bwssb.gov.in/images/upload/pdfs/vision_document_2050.pdf.
45 Malini Ranganathan, "'Mafias' in the waterscape:Urban informality and everyday public authority inBangalore," Water Alternatives 7, no. 1 (2014).
46 George A. Akerlof, "The Market for ‘Lemons:’Quality Uncertainty and the Market Mechanism," Uncertainty in Economics (Academic Press, 1978):235-251.
47 Bart Elias, Unmanned Aircraft Operations inDomestic Airspace: U.S. Policy Perspectives and theRegulatory Landscape (Washington, D.C.:Congressional Research Service, 2016), https://digital.library.unt.edu/ark:/67531/metadc824644/m2/1/high_res_d/R44352_2016Jan27.pdf.
48 Tom Hancock and Wang Xueqiao, “China’s DJItargets agriculture as consumer drone sales slow,” Financial Times, March 25, 2019, https://www.ft.com/content/afa5e042-4c50-11e9-bbc9-6917dce3dc62.
49 Richard Levick, “Drone Industry Just BeginningTo Take Off,” Forbes, May 15, 2018, https://www.forbes.com/sites/richardlevick/2018/05/15/drone-industry-just-beginning-to-take-off/#71c6b76672bc.
50 Ujjwal Bakshi and Manash Neog, “Much to DroneAbout,” Economic Times, April 4, 2019, https://economictimes.indiatimes.com/news/defence/opinion-much-to-drone-about/articleshow/68724827.cms.
51 Therese Jones, International Commercial DroneRegulation and Drone Delivery Services (SantaMonica: RAND Corporation, 2017), https://www.rand.org/pubs/research_reports/RR1718z3.html.
52 Ananth Padmanabhan, Civilian Drones andIndia’s Regulatory Response (New Delhi: CarnegieIndia, 2017), https://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218.
53 Somya Lohia, “Drone Regulations 1.0 Can FetchIndia Major Slice of $100 Billion Industry,” MoneyControl, January 9, 2019, https://www.moneycontrol.com/news/india/drone-regulations-1-0-can-fetch-india-major-slice-of-100-billion-industry-3358411.html.
54 Civil Aviation Requirements Series X Part I Issue I:Requirements for Operation of Civil Remotely PilotedAircraft System (RPAS), F. No. 05-13/2014-AED Vol. IV(New Delhi: Directorate General of Civil Aviation,2018), http://dgca.nic.in/cars/d3x-x1.pdf.
55 Ibid., Reg. 14.2.
56 Ibid., Reg. 12.14 & 12.2.
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 157
57 Ibid., Reg. 11.2 & 17.1.
58 Ibid, Reg. 12.21.
59 DGCA RPAS Guidance Manual (New Delhi:Directorate General of Civil Aviation, 2018), http://dgca.nic.in/rpas/DGCA%20RPAS%20Guidance%20Manual.pdf.
60 Procedures for Operation of Civil RemotelyPiloted Aircraft Systems (RPAS) in Indian Airspace,AIP Supplement 164/2018 AAI/ATM/AIS/09-09/2018(NewDelhi: Airports Authority of India, 2018), https://aim-india.aai.aero/sites/default/files/aip_supplements/AIPS_2018_164.pdf.
61 Tender Document: Development, Hosting andMaintenance of Digital Sky Platform for Ministry ofCivil Aviation IT-11042/1/2018-DIRECTORATE OF IT(New Delhi: Airports Authority of India, 2018),https://www.aai.aero/system/files_force/tender/Tender_DigiSky.pdf?download=1.
62 DGCA RPAS Guidance Manual (New Delhi:Directorate General of Civil Aviation, 2018), http://dgca.nic.in/rpas/DGCA%20RPAS%20Guidance%20Manual.pdf.
63 Ibid.
64 Ibid.
65 Drone Ecosystem Policy Roadmap (New Delhi:Ministry of Civil Aviation, 2019), https://www.globalaviationsummit.in/documents/DRONE-ECOSYSTEM-POLICY-ROADMAP.pdf.
66 Ibid, 7.
67 Ibid, 14.
68 The Personal Data Protection Bill, 2018 (NewDelhi: Ministry of Electronics and InformationTechnology, 2018), https://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill%2C2018_0.pdf.
69 White Paper of the Committee of Experts on aData Protection Framework for India (New Delhi:Ministry of Electronics and Information Technology,2017), https://meity.gov.in/writereaddata/files/white_paper_on_data_protection_in_india_18122017_final_v2.1.pdf
70 Petition to the Federal Aviation Administration:Drones and Privacy (Washington, D.C.: ElectronicPrivacy Information Center, 2012), https://epic.org/privacy/drones/FAA-553e-Petition-v-1.1.pdf.
71 Margot Kaminski, “Drone Federalism: CivilianDrones and the Things They Carry,” California LawReview 4 (2013): 57–74.
72 Notice of Proposed Rulemaking: Operation ofSmall Unmanned Aircraft Systems Over People FAA–2018–1087 (Washington, D.C.: Federal AviationAdministration, 2019), https://www.govinfo.gov/content/pkg/FR-2019-02-13/pdf/2019-00732.pdf.
73 Ananth Padmanabhan, Civilian Drones and India’sRegulatory Response (New Delhi: Carnegie India,2017), https://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218.
74 Arthur Holland Michel, Drones at Home: Localand State Drone Laws (New York: Center for theStudy of the Drone, Bard College, 2017), https://dronecenter.bard.edu/files/2017/03/CSD-Local-and-State-Drone-Laws-1.pdf.
75 Amanda Essex, Taking Off: State UnmannedAircraft Systems Policies (Denver, CO: NationalConference of State Legislatures, 2016), http://www.ncsl.org/Portals/1/Documents/transportation/TAKING_OFF-STATE_%20UNMANNED_%20AIRCRAFT_SYSTEMS_%20POLICIES_%20%28004%29.pdf.
76 An Act Relating To Unmanned Aircraft Systems –Establishing Statewide Standards, Protecting Privacy,And Ensuring Public Safety (Virginia: AmericanLegislative Exchange Council, 2017), https://www.alec.org/model-policy/an-act-relating-to-
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 158
unmanned-aircraft-systems-establishing-statewide-standards-protecting-privacy-and-ensuring-public-safety/.
77 Gautam Bhatia, “State Surveillance and the Rightto Privacy in India: A Constitutional Biography,” National Law School of India Review 26 (2014): 127–158.
78 (2019) 1 SCC 1.
79 Ibid, 359.
80 (2015) 5 SCC 1.
81 Ibid, 167.
82 Colin Snow, “Drones Pose a Unique Big DataChallenge For Business Users,” Forbes, February 6,2019 https://www.forbes.com/sites/colinsnow/2019/02/06/what-every-cio-needs-to-know-about-commercial-drone-data/#5d7fb90389ba ; MichelleChan, “What Businesses Need to Know About DroneData,” Techwire Asia, February 13, 2019, https://techwireasia.com/2019/02/what-businesses-need-to-know-about-drone-data/
83 Information Technology (Reasonable SecurityPractices and Procedures and Sensitive Personal Dataor Information) Rules ((New Delhi: Ministry ofElectronics and Information Technology, 2011),https://meity.gov.in/writereaddata/files/GSR313E_10511%281%29_0.pdf ; Ibid. ; Rachel Finnand Anna Donovan, “Big Data, Drone Data: Privacyand Ethical Impacts of the Intersection Between BigData and Civil Drone Deployments,” in The Future ofDrone Use: Opportunities and Threats from Ethicaland Legal Perspectives, ed. Bart Custers (The Hague:TMC Asser Press, 2016), 47-67.
84 As Solove remarks about the “Information Age:”“The data gathered about people is significantlymore extensive, the process of combining it is mucheasier, and the computer technologies to analyze itare more sophisticated and powerful.” See DanielSolove, “A Taxonomy of Privacy,” University of
Pennsylvania Law Review 154 (2006): 477, 506 ; Ibid.,507–08.
85 Jordi Soria-Comas and Josep Domingo-Ferrer,“Big Data Privacy: Challenges to Privacy Principlesand Models.” Data Science and Engineering 1 (2016):21, 22. ; Justice KS Puttaswamy v. Union of India,(2017) 10 SCC 1.
86 Guide to Basic Data Anonymisation Techniques(Singapore: Personal Data Protection Commission ofSingapore, 2018), www.pdpc.gov.sg/-/media/Files/PDPC/PDF-Files/Other-Guides/Guide-to-Anonymisation_v1-(250118).pdf.
87 For a particularly stark situation, where the de-identification was considered near foolproof and yetre-identified, see Jean Louis Raisaro et al.,“Addressing Beacon Re-Identification Attacks:Quantification and Mitigation of Privacy Risks,” Journal of the American Medical Informatics Association 24(2017): 799, 800.
88 Solon Barocas and Helen Nissenbaum, “BigData’s End Run around Anonymity and Consent,” in Privacy, Big Data, and the Public Good, eds. Julia Laneet al. (New York, NY: Cambridge University Press,2014), 44–45.
89 Ira S Rubinstein, “Big Data: The End of Privacy ora New Beginning,” International Data Privacy Law 3(2013): 74, 77–78; Davide Castelvecchi, “Can WeOpen the Black Box of AI?” Nature 538, no. 7623(2016): 20.
90 Mireille Hildebrandt, “Defining Profiling: A NewType of Knowledge?” in Profiling the EuropeanCitizen: Cross-Disciplinary Perspectives, eds. MireilleHildebrandt and Serge Gutwirth (eBook: Springer,2008), 17, 20.
91 Nathaniel A Raymond, “Beyond ‘Do No Harm’ andIndividual Consent: Reckoning with the EmergingEthical Challenges of Civil Society’s Use of Data,” in Group Privacy: New Challenges of Data Technologies,
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 159
eds. Linnet Taylor, Luciano Floridi and Bart van derSloot (eBook: Springer, 2017): 67, 75.
92 A Free and Fair Digital Economy: ProtectingPrivacy, Empowering Indians (New Delhi: Ministry ofElectronics and Information Technology, 2018),https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.
93 Ibid, 45–46.
94 Ananth Padmanabhan and Anirudh Rastogi, “BigData,” in Regulation in India: Design, Capacity,Performance, eds. Devesh Kapur and Madhav Khosla(London: Hart Publishing, 2019): 251, 262.
95 Aleecia M. McDonald and Lorrie Faith Cranor,“The Cost of Reading Privacy Policies,” I/S Journal ofLaw and Policy, 4 (2008): 543, 565.
96 Arthur Allen Leff, “Contract as Thing,” AmericanUniversity Law Review 19 (1970): 131.
97 Nikhil Narendran, “Policy Framework forProtection of Big Data in State Possession,” in Blockchain for Property: A Roll Out Road Map for India, eds.Baladevan Rangaraju and Vishnu Chandra (NewDelhi: India Institute, 2017): 34, 40.
98 Rahul Matthan, Privacy 3.0: Unlocking Our Data-Driven Future (Noida: Harper Collins, 2018): 167–171.
99 Carmine Cifaldi, “Unmanned Aircraft SystemPrivacy and Data Protection,” in Handbook ofUnmanned Aerial Vehicles, eds. K.P. Valavanis andG.J. Vachtsevanos (eBook: Springer, 2018): 1–19.
100 Voluntary Best Practices for UAS Privacy,Transparency, and Accountability (Washington, D.C.:National Telecommunications and InformationAdministration, 2016), https://www.ntia.doc.gov/files/ntia/publications/uas_privacy_best_practices_6-21-16.pdf.
101 Clark D. Cunningham, “Apple and the AmericanRevolution: Remembering Why We Have the fourth
Amendment”, The Yale Law Journal, volume 126,https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1
102 “ Breaking Down Apple’s iPhone Fight With theU.S. Government”, The New York Times, March 21,2016, https://www.nytimes.com/interactive/2016/03/03/technology/apple-iphone-fbi-fight-explained.html?module=inline
103 Nick Statt, “Apple’s iCloud partner in China willstore user data on servers of state-run telecom”, TheVerge, July 18, 2018, https://www.theverge.com/2018/7/18/17587304/apple-icloud-china-user-data-state-run-telecom-privacy-security
104 “Chen Guangcheng, Apple Can’t Resist Playingby China’s Rules”, The New York Times, January 23,2018, https://www.nytimes.com/2018/01/23/opinion/apple-china-data.html
105 Alan Z. Rozenshtein, “SurveillanceIntermediaries”, Stanford Law Review, volume 70,January 2018, https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/01/70-Stan.-L.-Rev.-99.pdf
106 Ibid., “Digital Switzerlands”, University ofPennsylvania Law Review, Volume 164 (forthcoming),Developments in the Law — More Data, MoreProblems, Harvard Law Review, volume 131 no.6 :1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
107 “Top 20 Countries with the Highest Number OfInternet Users”, https://www.internetworldstats.com/top20.htm
108 Bedavyasa Mohanty and Madhulika Srikumar,“Hitting Refresh: Making India-US Data SharingWork,” ORF Special Report 37, https://www.orfonline.org/research/hitting-refresh-india-us-data-sharing-mlat/
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 160
109 Ibid.
110 See Bedavyasa Mohanty and MadhulikaSrikumar, “Hitting Refresh: Making India-US DataSharing Work,” ORF Special Report 37, https://www.orfonline.org/research/hitting-refresh-india-us-data-sharing-mlat/
111 Krishna Pokharel and Rajesh Roy, “India SaysRumors About Child Snatching on WhatsApp Led toMob Killings”, The Wall Street Journal, July 5, 2018,https://www.wsj.com/articles/india-admonishes-whatsapp-after-deaths-1530730096
112 . Section 91, Code of Criminal Procedure, 1973
113 Bedavyasa Mohanty and Madhulika Srikumar,“Hitting Refresh: Making India-US Data SharingWork,” ORF Special Report 37, https://www.orfonline.org/research/hitting-refresh-india-us-data-sharing-mlat/
114 Id.
115 “Cross-Border Law Enforcement Demands:Analysis of the U.S. Department of Justice’sProposed Bill”, Center for Democracy andTechnology, August 17, 2016, https://cdt.org/files/2016/08/DOJ-Cross-Border-Bill-Insight-FINAL2.pdf
116 Bedavyasa Mohanty and Madhulika Srikumar,“Data localization is no solution,” The Hindu, August3, 2018, https://www.thehindu.com/opinion/op-ed/data-localisation-is-not-enough/article24584698.ece
117 This, however, requires an executive agreementbetween the United States and the foreign countrycertifying that the state will rely on robust privacyprotections, and respect for due process and the ruleof law when making requests to companies directly.Such a framework over time, will not only need to betransparent and hold both companies and LEAsaccountable but also be scalable to respond to theincreasing volume and complexity of requests.Specifically, due process safeguards on usernotification, redressal etc. will need to be
incorporated. The U.S. Department of Justicerecently issued clarifications on how the CLOUD Actwill be operationalized available at https://www.justice.gov/opa/press-release/file/1153446/download?utm_medium=email&utm_a=govdelivery
118 For more on the privacy protecting requirementsunder CLOUD Act, both at an institutional level andfor individual requests, see Madhulika Srikumar,Debrae Kennedy-mayo, Peter Swire and SreenidhiSrinivasan, “India-US Data Sharing For LawEnforcement : Blueprint For Reforms,” ObserverResearch Foundation, January, 2019, https://www.orfonline.org/wp-content/uploads/2019/01/MLAT-Book-_v8_web-1.pdf
119 Reserve Bank of India Notifications, “Storage ofPayment Systems Data”, Apr. 6, 2018
120 Sections 40 and 41, The Personal DataProtection Bill, 2018
121 Ibid.
122 Committee of Experts under the Chairmanshipof Justice B.N. Srikrishna, “A Free and Fair DigitalEconomy Protecting Privacy, Empowering Indians”,27 July 2018
123 Ministry of Electronics and InformationTechnology, “The Information Technology[Intermediaries Guidelines (Amendment) Rules]2018,” https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf
124 Pranesh Prakash,“Why Data Localisation MightLead To Unchecked Surveillance,” Centre for Internetand Society, October 15, 2018, https://cis-india.org/internet-governance/blog/bloomberg-quint-pranesh-prakash-october-15-2018-why-data-localisation-might-lead-to-unchecked-surveillance ; “US criticisesIndia's data localisation norms, draft e-commercepolicy,” The Economic Times, April 9, 2019, https://economictimes.indiatimes.com/news/economy/foreign-trade/us-criticises-indias-data-localisation-
newamerica.org/fellows/reports/anthology-working-papers-new-americas-us-india-fellows/ 161
norms-draft-e-commerce-policy/articleshow/68794927.cms?from=mdr
125 Rishab Bailey and Smriti Parsheera ,“Datalocalisation in India: Questioning the means andends,” NIPFP Working Paper Series, no.242, https://www.nipfp.org.in/media/medialibrary/2018/10/WP_2018_242.pdf
126 Josh Constine,” Zuckerberg warns ofauthoritarian data localization trend,” Techcrunch,https://techcrunch.com/2019/04/26/facebook-data-localization/
127 Rishab Bailey and Smriti Parsheera ,“Datalocalisation in India: Questioning the means andends,” NIPFP Working Paper Series, no.242, https://www.nipfp.org.in/media/medialibrary/2018/10/WP_2018_242.pdf
128 Reserve Bank of India Notifications, “Storage ofPayment Systems Data”, Apr. 6, 2018
129 “RBI data localisation: 80 percent players,including WhatsApp, comply with norms”, BusinessStandard, https://www.business-standard.com/article/technology/rbi-data-localization -80-players-including-whatsapp-comply-with-norms-118101500907_1.html
130 “Facebook takes a tough stand on data storageamidst India’s localisation push”, The EconomicTimes, https://cfo.economictimes.indiatimes.com/news/facebook-takes-a-tough-stand-on-data-storage-amidst-india-s-localisation-push/68328647
131 WhatsApp is working to comply with ReserveBank of India (RBI) regulations on the local storage ofpayment-related data, the Economic Times reported.“Only some engineering work is left,” an anonymoussenior Facebook executive told ET. https://www.medianama.com/2019/04/223-whatsapp-plans-to-comply-with-rbis-data-localization -mandate-report-why-is-it-needed/
132 “India Pushes Back Against Tech ‘Colonization’by Internet Giants”,The New York Times, https://www.nytimes.com/2018/08/31/technology/india-technology-american-giants.html
133 Komal Gupta, “Google Agrees to Comply withRBI’s Data Localisation Norms,” Livemint , September10, 2018, https://www.livemint.com/Companies/xEAFZGZ9kOaMz6R4HIgwXK/Google-ready-to-comply-with-RBI-norms-for-payment-services.htmlSurabhi Aggarwal, “Industry bodieswrite to IT minister Ravi Shankar Prasad against databill,” Economic Times, October 4, 2018, //economictimes.indiatimes.com/articleshow/66062141.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
134 See U.S. India Strategic Partnership Forum(USISPF) submission to MeitY available at https://www.medianama.com/wp-content/uploads/USISPF-Submission-India-Draft-Data-Protection-Bill-Privacy-2018.pdf
135 Aditya Kalra, “U.S. senators urge India to softendata localisation stance,” Reuters, October 13, 2018,https://uk.reuters.com/article/uk-india-data-localisation-exclusive/exclusive-u-s-senators-urge-india-to-soften-data-localisation-stance-idUKKCN1MN0CY
136 Ashish Shukla, “RBI refuses to extend deadlinefor data localisation,” IBTimes, October 14, 2018,https://www.ibtimes.co.in/rbi-refuses-extend-deadline-data-localisation-783058
137 Bhavin Patel and Hemant Krishna, “DataLocalisation: Here’s why the RBI isn’t listening to the‘Mirroring’ argument,” CNBC TV18, October 15, 2018,https://www.cnbctv18.com/technology/data-localisation-heres-why-the-rbi-isnt-listening-to-the-mirroring-argument-1097451.htm
138 Rishab Bailey and Smriti Parsheera ,”Datalocalisation in India: Questioning the means andends,”The Leap Blog, February 22, 2019, https://
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blog.theleapjournal.org/2019/02/data-localisation-in-india-questioning.html
139 Amazon not mirroring it abroad Whatsappasked for 5 more months, mastercard and rest askedfor one year
140 “Russia fines Facebook $50 for failing to complywith local data privacy law, ” ZDNet, April 12, 2019,https://www.zdnet.com/article/russia-fines-facebook-50-for-failing-to-comply-with-local-data-privacy-law/ ; Mark Scott, “Russia Prepares to BlockLinkedIn After Court Ruling,” The New York Times,November 10, 2016, https://www.nytimes.com/2016/11/11/technology/russia-linkedin-data-court-blocked.html?_r=
141 Bedavyasa Mohanty and Madhulika Srikumar,“Hitting Refresh: Making India-US Data SharingWork,” ORF Special Report 37, https://www.orfonline.org/research/hitting-refresh-india-us-data-sharing-mlat/
142 Rishab Bailey and Smriti Parsheera ,“Datalocalisation in India: Questioning the means andends,” NIPFP Working Paper Series, no.242, https://www.nipfp.org.in/media/medialibrary/2018/10/WP_2018_242.pdf
143 Government authorities increasingly rely onblocking access to internet altogether to containcases of public unrest. See Timothy Mclaughlin,“How Whatsapp Fuels Fake News And Violence InIndia, ” The Wired, December 12, 2018, https://www.wired.com/story/how-whatsapp-fuels-fake-news-and-violence-in-india/
144 “Fighting fake news: Govt asks Whatsapp totake immediate action,” Economic Times, July 3,2018, https://economictimes.indiatimes.com/et-now/daily/fighting-fake-news-govt-asks-whatsapp-to-take-immediate-action/videoshow/64846005.cms?from=mdr
145 The Indian government introduced the draftamendment to the Information Technology Act, 2008
to overhaul the current intermediary liability regimein India. One of the problematic provisions includedthe requirement for intermediaries to enable tracingthe originator of messages. See Yesha Tshering Paul“Fake News: Misguided Policymaking To CounterMisinformation,” Bloomberg Quint, January 14, 2019,https://www.bloombergquint.com/opinion/fake-news-misguided-policymaking-to-counter-misinformation
146 The Srikrishna Committee appointed to draftIndia’s first comprehensive data protection lawintroduced the term “fiduciaries” in the Personal DataProtection Bill, 2018. See Arghya Sengupta, “Why theSrikrishna Committee Rejected Ownership of Data inFavour of Fiduciary Duty,” The Wire, August 2, 2018,https://thewire.in/tech/why-the-srikrishna-committee-rejected-ownership-of-data-in-favour-of-fiduciary-duty
147 For more on how Indian law enforcementagencies make requests for data under Indian law,see Chapter 3 in Srikumar et al., “India-US DataSharing For Law Enforcement : Blueprint ForReforms,” Observer Research Foundation, January,2019, https://www.orfonline.org/wp-content/uploads/2019/01/MLAT-Book-_v8_web-1.pdf
148 See Developments in the Law — More Data,More Problems, Harvard Law Review, volume 131 no.6 : 1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
149 See Developments in the Law — More Data,More Problems, Harvard Law Review, volume 131 no.6 : 1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
150 For instance, Facebook commits to fight back incourt if requests are overbroad or defective. ChrisSonderby, “Sharing Our Latest Transparency Report,”Facebook Newsroom, May 23, 2019, https://newsroom.fb.com/news/2019/05/transparency-report-h2-2018/
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151 Alan Z. Rozenshtein, “SurveillanceIntermediaries”, Stanford Law Review, volume 70,January 2018, https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/01/70-Stan.-L.-Rev.-99.pdf
152 The authors in this paper argue that SiliconValley have been forced to accept their role as our“corporate avatars” when they possess “neither thewill nor the means to effectively challengegovernment snooping”. See Chapter 1 inDevelopments in the Law — More Data, MoreProblems, Harvard Law Review, volume 131 no.6 :1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
153 The authors in this paper argue that SiliconValley have been forced to accept their role as our“corporate avatars” when they possess “neither thewill nor the means to effectively challengegovernment snooping”. See Chapter 1 inDevelopments in the Law — More Data, MoreProblems, Harvard Law Review, volume 131 no.6 :1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
154 The authors in this paper argue that SiliconValley have been forced to accept their role as our“corporate avatars” when they possess “neither thewill nor the means to effectively challengegovernment snooping”. See Chapter 1 inDevelopments in the Law — More Data, MoreProblems, Harvard Law Review, volume 131 no.6 :1715-1722, https://harvardlawreview.org/2018/04/cooperation-or-resistance-the-role-of-tech-companies-in-government-surveillance/
155 See 3(13), Personal Data Protection Bill, 2018.Available at https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf;Stakeholders in India however have argued that thedraft bill does not imbibe the philosophy offiduciaries completely since certain sections in thebill still places the disproportionate onus on users to
realize their rights. See comments submitted byDvara Research to MeitY available at https://www.dvara.com/blog/wp-content/uploads/2018/10/Response-to-draft-Personal-Data-Protection-Bill_DvaraResearch.pdf
156 Jack M. Balkin, "Information fiduciaries and thefirst amendment." UCDL Rev. 49 ,1183, 2015
157 See A Free and Fair Digital Economy ProtectingPrivacy, Empowering Indians: Committee of Expertsunder the Chairmanship of Justice B.N. Srikrishna,July 27, 2018, available at https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report-comp.pdf
158 Jack M. Balkin, "Information fiduciaries and thefirst amendment." UCDL Rev. 49 ,1183, 2015
159 Id. , see Jack M.Balkin, "Fixing Social Media'sGrand Bargain." Hoover Working Group on NationalSecurity, Technology, and Law, Aegis Series Paper1814,2018.
160 The author of this piece argues that Balkin’sfiduciary framework could eliminate the third partydoctrine in the U.S. altogether binding all companiesto a higher duty of care towards users. See MikeGodwin, It’s Time to Reframe Our Relationship WithFacebook,” Slate, November 16, 2018, https://slate.com/technology/2018/11/information-fiduciaries-facebook-google-jack-balkin-data-privacy.html; In India, the Supreme Court through the2017 ruling recognising privacy as a fundamentalright invalidated the application of third partydoctrine. See Gautam Bhatia, “The Supreme Court’sRight to Privacy Judgment – IV: Privacy,Informational Self-Determination, and the Idea ofConsent,” Indian Constitutional Law and Philosophy,August 2017, https://indconlawphil.wordpress.com/2017/08/30/the-supreme-courts-right-to-privacy-judgment-iv-privacy-informational-self-determination-and-the-idea-of-consent/
161 Vivan Sharan, Sidharth Deb, “Reimaginingfiduciaries in the digital economy,” Livemint, August,
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15, 2018, https://www.livemint.com/Opinion/KkgNtjljNd6Ikmu0qR8hWJ/Opinion--Reimagining-fiduciaries-in-the-digital-economy.html
162 Ariel Dobkin, "Information Fiduciaries inPractice: Data Privacy and User Expectations." Berkeley Tech. LJ 33 2018: 1.
163 Dalip Singh, “Law enforcement agencies favourdata localisation “, Economic Times, October 8, 2018,https://economictimes.indiatimes.com/news/economy/policy/law-enforcement-agencies-favour-data-localization /articleshow/66113360.cms
164 India Pushes Back Against Tech ‘Colonization’ byInternet Giants”,The New York Times, https://www.nytimes.com/2018/08/31/technology/india-technology-american-giants.html
165 Aria Thaker, “Behind RBI’s digital paymentspanel, a controversial firm’s shadow, conflict ofinterest allegations”, Scroll, January 10, 2019, https://scroll.in/article/908802/behind-rbis-digital-payments-panel-a-controversial-firms-shadow-conflict-of-interest-allegations; The Indiangovernment’s motivation to create an environmentfavourable to domestic tech firms is most evident inits recent policy on Foreign Direct Investment in e-commerce. See “What India e-commerce policyentails for online retailers”, Livemint, January 16,2019, https://www.livemint.com/Industry/4e8rKuiaJSGmsNU5BXUSvM/What-India-ecommerce-policy-entails-for-online-retailers.html
166 a. Aditya Kalra and Aditi Shah, “U.S. firms faceoff with Indian rival in lobbying against data storagerules,” Reuters, July 24, 2018, https://www.reuters.com/article/us-india-data-localisation/u-s-firms-face-off-with-indian-rival-in-lobbying-against-data-storage-rules-idUSKBN1KE17Nb. Vidhi Choudhary and YashwantRaj, “Cambridge Analytica row: Facebook databreach hit 560K Indian users,”Hindustan Times, April5, 2018, https://www.hindustantimes.com/tech/facebook-data-breach-hit-over-5-6-lakh-users-in-india/story-S3bafNwwKTtO5q6U7S4FZM.html
167 Prashant Reddy, “View: It's time to tame thesocial media beast,” Economic Times, February 13,2019,//economictimes.indiatimes.com/articleshow/67966170.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
168 Ben Brody, “Tech Giants Back U.S. Bill GoverningCross-Border Data Searches,”Bloomberg, February 7,2018, https://www.bloomberg.com/news/articles/2018-02-07/tech-companies-welcome-cross-border-data-search-legislation
169 Brad Smith, “A call for principle-basedinternational agreements to govern law enforcementaccess to data,” Microsoft On the Issues, September11, 2018, https://blogs.microsoft.com/on-the-issues/2018/09/11/a-call-for-principle-based-international-agreements-to-govern-law-enforcement-access-to-data/
170 Michael Punke, “AWS and the CLOUD Act,”AWS Security Blog, May 27, 2019, https://aws.amazon.com/blogs/security/aws-and-the-cloud-act ; Chaim Gartenberg, “Apple will launch aglobal web portal for law enforcement requests laterthis year,” The Verge, September 6, 2018, available at https://www.theverge.com/2018/9/6/17827352/apple-global-web-portal-law-enforcement-requests; Kristen E. Eichensehr, “DigitalSwitzerlands”, University of Pennsylvania LawReview, Volume 164 (forthcoming)
171 “One year later: A cybersecurity commitmentshared by more than 100 companies,” Tech Accord,May 9, 2019, https://cybertechaccord.org/one-year-later-a-cybersecurity-commitment-shared-by-more-than-100-companies/
172 Mike Isaac, “Zuckerberg Plans to IntegrateWhatsApp, Instagram and Facebook Messenger,”The New York Times, January 25, 2019, https://www.nytimes.com/2019/01/25/technology/facebook-instagram-whatsapp-messenger.html
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173 Mike Isaac, “Facebook’s Mark Zuckerberg SaysHe’ll Shift Focus to Users’ Privacy,” The New YorkTimes, March 6, 2019, https://www.nytimes.com/2019/03/06/technology/mark-zuckerberg-facebook-privacy.html . Facebook’s official announcement isavailable at https://www.facebook.com/notes/mark-zuckerberg/a-privacy-focused-vision-for-social-networking/10156700570096634/
174 Law enforcement agencies across the worldmake overbroad demands for location data to findsuspects and witnesses at crime scenes. See JenniferValentino-Devries, “Tracking Phones, Google Is aDragnet for the Police,” The New York Times, April13, 2019, https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html;also on “reverse location warrants” see Aaron Mak,Close Enough, Slate, February 19, 2019, https://slate.com/technology/2019/02/reverse-location-search-warrants-google-police.html; Matthew Haag,“FamilyTreeDNA Admits to Sharing Genetic DataWith F.B.I.”, The New York Times, February 4, 2019,https://www.nytimes.com/2019/02/04/business/family-tree-dna-fbi.html
175 Josh Costine, “Facebook will pass off contentpolicy appeals to a new independent oversight body,”Techcrunch, https://techcrunch.com/2018/11/15/facebook-oversight-body/
176 For instance, in the UK, https://nyti.ms/2D5bGf7; France, https://techcrunch.com/2019/04/03/how-frances-new-digital-minister-plans-to-regulate-tech/; and Germany, https://iapp.org/news/a/germanys-first-fine-under-the-gdpr-offers-enforcement-insights/
177 Varun Aggrawal, “Infosys to Set up DataMarketplace for Enterprises - The HinduBusinessLine,” June 19, 2018, https://www.thehindubusinessline.com/info-tech/infosys-to-set-up-data-marketplace-for-enterprises/article24203427.ece.dsllwakwjgthkjj.
178 “The Personal Data Protection Bill” (2018),https://meity.gov.in/writereaddata/files/
Personal_Data_Protection_Bill,2018.pdf; Justice B.N.Srikrishna, “A Free and Fair Digital Economy:Protecting Privacy, Empowering Indians,”(Committee of Experts under the Chairmanship ofJustice B.N. Shrikrishna, July 2018), https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.
179 Jack M. Balkin, “Information Fiduciaries and theFirst Amendment,” U.C. Davis Law Review 49, no. 4(2016): 1234; Lina Khan and David Pozen, “A SkepticalView of Information Fiduciaries” (SSRN, February 25,2019), https://papers.ssrn.com/abstract=3341661.
180 Whilst the European Union’s approach in theGDPR is limited by is focus on privacy. Thechallenges of governing data-driven decision-makinggo well beyond concerns about privacy. See TaliaGillis and Josh Simons, “Explanation < Justification:GDPR and the Perils of Privacy,” (SSRN, 2019).
181 To use André Béteille’s phrase, one of India’smost important twentieth-century social theorists.André Béteille, Anti-Utopia: Essential Writings ofAndré Béteille (New Delhi: Oxford University Press,2005); André Béteille, Ramachandra Guha, andJonathan P. Parry, Institutions and Inequalities: Essaysin Honour of Andre Beteille (New Delhi: OxfordUniversity Press, 1999).
182 Purva Khera, Macroeconomic Impacts of GenderInequality and Informality in India, IMF WorkingPaper (Washington, District of Columbia DC:International Monetary Fund, 2016); Carol Vlassoff, Gender Equality and Inequality in Rural India: Blessedwith a Son (New York, NY: Palgrave Macmillan, 2013);Stephen M. Caliendo, Inequality in America: Race,Poverty, and Fulfilling Democracy’s Promise,Dilemmas in American Politics (Boulder, CO:Westview Press, 2014); Xavier N. De Souza Briggs, Social Capital and Segregation: Race, Connections, andInequality in America (Cambridge, MassMA.: John F.Kennedy School of Government, 2002).
183 It is important to note that this is not just aboutunrepresentative data. Unrepresentative data
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excludes some groups, perhaps because there arenot enough data points about that group, or the datapoints that exist are less numerous or rich. This is animportant problem, particularly in India, where theunderrepresentation of Untouchables and women indata is systemic. But the problems this paperconsiders would remain even in the most accurateand careful data sets, which are still a reflection ofthe structure of our social world, including theinequalities and injustices that characterize it. Arepresentative dataset is not devoid of injustice. Thisleaves open a host of important issues about whenthe representation of injustice in a dataset actuallyconstitutes an injustice, an issue I hope to address infuture work. Cynthia Dwork and Deirdre Mulligan,“It’s Not Privacy, and It’s Not Fair,” Stanford LawReview 66 (September 2013): 35–40; Kate Crawford,“The Hidden Biases in Big Data,” Harvard BusinessReview, April 1, 2013, https://hbr.org/2013/04/the-hidden-biases-in-big-data; David Garcia et al.,“Analyzing Gender Inequality through Large-ScaleFacebook Advertising Data,” Proceedings of theNational Academy of Sciences of the United States ofAmerica 115, no. 27 (2018): 6958–63, https://doi.org/10.1073/pnas.1717781115.
184 Andrew D. Selbst and Solon Barocas, “TheIntuitive Appeal of Explainable Machines,” SSRNElectronic Journal, 2018, https://doi.org/10.2139/ssrn.3126971.
185 Daniel Kahneman, Thinking, Fast and Slow (NewYork, NY: Farrar, Straus and Giroux, 2011).
186 Virginia Eubanks, Automating Inequality: HowHigh-Tech Tools Profile, Police and Punish the Poor(New York, NY: St. Martin’s Press, 2018).
187 TOI, “Aadhaar Covers over 89% Population:Alphons,” The Times of India, accessed March 5,2019, https://timesofindia.indiatimes.com/business/india-business/aadhaar-covers-over-89-population-alphons/articleshow/63202223.cms.
188 Cynthia Dwork et al., “Fairness throughAwareness,” ITCS ’12 (ACM, 2012), 214–226.
189 Sam Corbett-Davies and Sharad Goel, “TheMeasure and Mismeasure of Fairness: A CriticalReview of Fair Machine Learning,” 20180731, http://arxiv.org/abs/1808.00023.
190 Jon Kleinberg, Sendhil Mullainathan, andManish Raghavan, “Inherent Trade-Offs in the FairDetermination of Risk Scores,” Proceedings ofInnovations in Theoretical Computer Science (ITCS),2017.
191 I am therefore moving beyond privacy as aframework for thinking about the governance ofdata-driven decision-making. Privacy is one concernwe might have about those decision-makingprocedures, usually called “data processing” inexisting legislation in the EU and India. But it is farfrom the only concern. Other aims and values needto be brought into play. Privacy should not be thesole lens through which to view governance data andmachine learning. A29WP, “Guidelines on AutomatedIndividual Decision-Making and Profiling” (Article 29Data Protection Working Party, 2018), https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=612053.; ICO, “Guide to the General DataProtection Regulation (GDPR)” (U.K.: InformationCommissioner’s Office, August 2018), https://ico.org.uk/media/for-organisations/guide-to-the-general-data-protection-regulation-gdpr-1-0.pdf;Srikrishna, “A Free and Fair Digital Economy:Protecting Privacy, Empowering Indians.”
192 Most other important pieces of non-discrimination legislation extend the categories towhich duties of non-discrimination apply. Theseinclude the Equal Pay Act of 1963, which prohibitsthe payment of different wages to employees ofdifferent sexes who perform equal work under similarconditions; the Americans with Disabilities Act (ADA)of 1990, which prohibits discrimination againstindividuals with a disability and requires the provisionof reasonable accommodation to someone who islegally disabled; and the Genetic Information Non-Discrimination Act of 2008, which protects
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individuals from genetic discrimination in thehealthcare and insurance industries.
193 For instance, U.S. Executive Orders 10925,11246, and 11375 require federal contractors who doover $10,000 in Government business in one year to“take affirmative action to ensure that applicants areemployed, and that employees are treated duringemployment, without regard to their race, color,religion, sex or national origin.”
194 David Strauss, “Discriminatory Intent and theTaming of Brown,” University of Chicago Law Review56, no. 3 (1989): 935–935.
195 Jon Kleinberg et al., “Discrimination in the Ageof Algorithms,” 2019, http://arxiv.org/abs/1902.03731;Solon Barocas and Andrew D. Selbst, “Big Data’sDisparate Impact,” California Law Review 104, no. 3(June 1, 2016): 671–732.
196 There is an important emerging debate aboutprecisely this point, including a paper of my own. Forthe key protagonists, see Kleinberg et al.,“Discrimination in the Age of Algorithms,” 2019;Barocas and Selbst, “Big Data’s Disparate Impact”;Lior Strahilevitz, “Privacy versus Antidiscrimination,” Public Law & Legal Theory Working Paper, no. 174(2007), https://chicagounbound.uchicago.edu/public_law_and_legal_theory/235; Pamela L. Perry,“Two Faces of Disparate Impact Discrimination,” Fordham Law Review 59, no. 4 (March 1, 1991): 523–595;Cass Sunstein, “The Anticaste Principle,” MichiganLaw Review, January 1, 1993, 2410.
197 Barocas and Selbst, “Big Data’s DisparateImpact,” 724.
198 Sophia Moreau and Deborah Hellman, Philosophical Foundations of Discrimination Law (Oxford:Oxford University Press, 2013), 259.
199 Béteille, Anti-Utopia.
200 Cass Sunstein makes a similar point. If there isprejudice and statistical discrimination, and if third
parties promote discrimination, there will bedecreased investments in human capital. Suchdecreased investments will be a perfectly reasonableresponse to the real world. And if there aredecreased investments in human capital, thenprejudice, statistical discrimination, and third-partyeffects will also increase. Statistical discriminationwill become all the more rational; prejudice willhardly be broken down; consumers and employerswill be more likely to be discriminators.Ronnie J.Steinberg, Applications of Feminist Legal Theory toWomen’s Lives: Sex, Violence, Work andReproduction. Women in the Political Economy.(Temple University Press, 2012), 560; Sunstein, “TheAnticaste Principle,” 2431.
201 Dwork et al., “Fairness through Awareness,” 215.
202 As Hannah Arendt argued when comparing theAmerican and French revolutions. Rohit De, APeople’s Constitution: The Everyday Life of Law in theIndian Republic (Princeton, CT: Princeton UniversityPress, 2018), 5; Uday S. Mehta, “The Social Questionand the Absolutism of Politics,” 2010, http://www.india-seminar.com/2010/615/615_uday_s_mehta.htm; Hannah Arendt, On Revolution (New York, NY: Viking Press, 1965).
203 Sunil Khilnani, The Idea of India (New Delhi:Penguin, 2004).
204 Kalpana Kannabirān, Tools of Justice: Non-Discrimination and the Indian Constitution (New York,NY: Routledge, 2012), 7.
205 B. R. Ambedkar is a neglected character inIndia’s political history. His ideas have received littleattention compared with more widely known figuresM. K. Gandhi and Jawaharlal Nehru, in part becauseof the Congress Party’s dominant role in shapingIndia’s national story, and the contours of democraticpolitics after independence. See Valerian Rodrigues,“Justice as the Lens: Interrogating Rawls through Senand Ambedkar,” Indian Journal of HumanDevelopment 5, no. 1 (2011): 153–174; Jean Drèze andAmartya Sen, “Democratic Practice and Social
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Inequality in India,” Journal of Asian and AfricanStudies 37, no. 2 (2002): 6–37; Martha Nussbaum,“India: Implementing Sex Equality through Law,” Chicago Journal of International Law 2, no. 1 (2001): 35–58.
206 Kannabirān, Tools of Justice, 162.
207 Patterns of domination, which produce thesepersistent inequalities in the political and economicspheres, have two effects. First, they undermine theliberty of each individual to benefit from an effectiveand competent use of their powers. Democracyentailed political equality. Political equality entailedthe absence of domination. Second, patterns ofdomination undermine the possibility of freeassociation. Drawing on John Dewey, Ambedkarargued that free association – the capacity of groupsto form links, to self-govern over time – was essentialto democratic life. Democracy is not merely a form ofgovernment. It is primarily a mode of associatedliving, of conjoin communicated experience. It isessentially an attitude of respect and reverencetowards fellow men. Patterns of domination madeimpossible the associations and relationships thatencouraged and embodied this attitude of respectand reverence.B.R. Ambedkar, Annihilation of Caste:The Annotated Critical Edition, ed. S. Anand (NewDelhi: Navayana, 2014), 280, 261.
208 Béteille, Guha, and Parry, Institutions andInequalities, 342.
209 V. R. Krishnaiyer, Akhil Bharatiya SoshitKaramchari Sangh and Others vs. Union Of India, No.185 (Supreme Court of India November 14, 1980).
210 J B. Sudershan Reddy, Indian MedicalAssociation vs. Union Of India & Ors, No. 8170(Supreme Court of India May 12, 2011).
211 Deepti Shenoy, “Courting Substantive Equality:Employment Discrimination Law in India,” Universityof Pennsylvania Journal of International Law 34, no. 3(2013): 632.
212 Jon Kleinberg et al., “Discrimination in the Ageof Algorithms,” 20190210, http://arxiv.org/abs/1902.03731.
213 The Personal Data Protection Bill; Srikrishna, “AFree and Fair Digital Economy: Protecting Privacy,Empowering Indians.”
214 Srikrishna, “A Free and Fair Digital Economy:Protecting Privacy, Empowering Indians,” 8.
215 De, A People’s Constitution; Béteille, Guha, andParry, Institutions and Inequalities; Khilnani, The Ideaof India.
216 This is precisely the challenge that Jack Balkin,who first coined the data fiduciary concept, warnedabout. Balkin, “Information Fiduciaries and the FirstAmendment,” 1232–1324.
217 As André Béteille argues, institutional well-beingis an important consideration. He describes this asequality as a matter of policy, not of right, warningagainst placing too much faith specifically in thestate to eliminate every social inequality, everydifference of caste or class. Béteille, Anti-Utopia, 435.
218 Joshua A. Kroll et al., “Accountable Algorithms,”University of Pennsylvania Law Review 165, no. 3(2017): 633–705; Andrew Tutt, “An FDA forAlgorithms,” Admin. L. Rev. 83 (2016); JeremyWaldron, “Accountability: Fundamental toDemocracy,” SSRN Scholarly Paper (Rochester, NY:Social Science Research Network, April 1, 2014),https://papers.ssrn.com/abstract=2410812; Craig T.Borowiak, Accountability and Democracy: The Pitfallsand Promise of Popular Control (Oxford UniversityPress, 2011); Adam Przeworski, Susan Carol Stokes,and Bernard Manin, Democracy, Accountability, andRepresentation (Cambridge: Cambridge UniversityPress, 1999).
219 “World Metro Figures Statistics Brief,” UITP,accessed April 29, 2019, https://www.uitp.org/sites/default/files/cck-focus-papers-files/UITP-Statistic%20Brief-Metro-A4-WEB_0.pdf; Global BRT
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Data, “Global BRT Data,” accessed April 29, 2019,https://brtdata.org/.
220 Autorickshaws are three-wheeled vehicles thatsupply much of the last-mile connectivity to masstransit in Indian cities.
221 Candace Brakewood, Gregory Macfarlane, andKari Watkins, “The Impact of Real-Time Informationon Bus Ridership in New York City,” TransportationResearch Part C: Emerging Technologies, 53 (April2015): 59-75.; Eric Jaffe, “The Best Evidence Yet ThatReal-Time Arrival Info Increases Transit Ridership,”CityLab, accessed Feb. 20, 2019, https://www.citylab.com/transportation/2015/03/the-best-evidence-yet-that-real-time-arrival-info-increases-transit-ridership/387220/.
222 Aaron Antrim and Sean Barbeau, “The ManyUses of GTFS Data- Opening the Door to Transit andMultimodal Applications,” ITS America’s 23rd AnnualMeeting & Exposition, April 2013, https://www.researchgate.net/publication/268097444_THE_MANY_USES_OF_GTFS_DATA_OPENING_THE_DOOR_TO_TRANSIT_AND_MULTIMODAL_APPLICATIONS; Transit Center, “The DataTransit Riders Want “A Shared Agenda for PublicAgencies and Transit Application Developers,”accessed Feb. 16, 2019, http://transitcenter.org/wp-content/uploads/2018/12/The_Data_Transit_Riders_Want.pdf.
223 “Open Government Partnership,” OpenGovernment Partnership, accessed Jan. 28, 2019,https://www.opengovpartnership.org/.
224 “WRI India,” WRI India, accessed January 28,2019, https://wri-india.org/.
225 KMRL signed a Memorandum of Understanding(MOU) with WRI in February of 2017, which includedseveral initiatives to support urban transport andurban development, including public transport,transit oriented policy, electric mobility, and urbanplanning in Kochi.
226 Available at: https://kochimetro.org/open-data/
227 The GPS installation was paid for by the UrbanMass Transit Company Limited (UMTC), a jointventure of several national and state governmentagencies and the private company InfrastructureLeasing and Financial Services Limited (IL&FS).
228 “Kochi Metro Rail Limited signs pact with autodrivers,” Deccan Chronicle, Jan. 24, 2018, https://www.deccanchronicle.com/nation/in-other-news/240118/kochi-metro-rail-limited-signs-pact-with-auto-drivers.html.
229 In Hindi, “Chalo” means “Let’s Go!”
230 “Demographia World Urban Areas,”Demographia, April 2019, http://www.demographia.com/db-worldua.pdf
231 G.P. Hari, Personal Interview, Kochi, Feb. 11,2019.
232 “Kochi gets Chalo app for live tracking of buses,ferries,” The Hindu, accessed Jan. 28, 2019, https://www.thehindu.com/news/cities/Kochi/kochi-gets-chalo-app-for-live-tracking-of-buses-ferries/article24596526.ece.
233 Aparna Vijaykumar, Personal Interview, Online,March 5, 2019.
234 Arjun G., “Delhi Government launches OpenTransit Data Platform for Buses,” Medium, accessedJan. 28, 2019, https://medium.com/redact/delhi-government-launches-open-transit-data-platform-for-buses-b1ed9b80e996; Open Data Portal availableat: https://opendata.iiitd.edu.in/
235 Pravesh Biyani, Personal Interview, New Delhi,Feb. 14, 2019.
236 Ibid.
237 Ibid.
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238 “PoochhO,” Delhi Integrated Multi-modalTransit System, accessed Feb. 15, 2019, https://play.google.com/store/apps/developer?id=DIMTS+Ltd.
239 Samir Sharma, Personal Interview, New Delhi,Feb. 15, 2019.
240 Ibid.
241 Pravesh Biyani, Personal Interview, New Delhi,Feb. 14, 2019.
242 Nikhil V.J., “Re: [datameet] – Open Transit Data– Delhi,” Email, 2019.
243 “BMTC to open up transit data enablingentrepreneurs build mobility solutions.” EconomicTimes. https://tech.economictimes.indiatimes.com/news/internet/bmtc-to-open-up-transit-data-enabling-entrepreneurs-build-mobility-solutions/59064430; “BMTC’s data-sharing plan on backburner,” The Hindu, accessed Feb. 4, 2019, https://www.thehindu.com/todays-paper/tp-national/tp-karnataka/bmtcs-data-sharing-plan-on-back-burner/article19874128.ece; Naveen Menezes, “Two yearson, commuters continue to suffer as BMTC squats onreal-time data,” Economic Times, accessed Feb. 16,2019, https://economictimes.indiatimes.com/industry/transportation/two-years-on-commuters-continue-to-suffer-as-bmtc-squats-on-real-time-data/articleshow/67087829.cms.
244 ET Bureau, “BMTC to open up transit dataenabling entrepreneurs build mobility solutions,” Economic Times. https://tech.economictimes.indiatimes.com/news/internet/bmtc-to-open-up-transit-data-enabling-entrepreneurs-build-mobility-solutions/59064430.
245 Naveen Menezes, “Two years on, commuterscontinue to suffer as BMTC squats on real-timedata,” Economic Times, accessed Feb. 16, 2019,https://economictimes.indiatimes.com/industry/transportation/two-years-on-commuters-continue-
to-suffer-as-bmtc-squats-on-real-time-data/articleshow/67087829.cms.
246 O.P. Agarwal, Personal Interview, New Delhi,March 1, 2019.
247 Naveen Menezes, “Two years on, commuterscontinue to suffer as BMTC squats on real-timedata,” Economic Times, accessed Feb. 16, 2019,https://economictimes.indiatimes.com/industry/transportation/two-years-on-commuters-continue-to-suffer-as-bmtc-squats-on-real-time-data/articleshow/67087829.cms.
248 Harsha Krishna, Personal Interview, Bangalore,March 4, 2019.
249 O.P. Agarwal, Personal Interview, New Delhi,March 1, 2019.
250 Tejas Pande, Personal Interview, New Delhi,Feb. 9, 2019;Vinay Sreenivasa, Personal Interview.Online, March 7, 2019; Harsha Krishna, PersonalInterview, Bangalore, March 4, 2019.
251 Harsha Krishna, Personal Interview, Bangalore,March 4, 2019.
252 Ibid.
253 “BMTC,” Bangalore Municipal TransportCorporation, accessed Feb. 20, 2019, https://play.google.com/store/apps/details?id=com.bmtc.mybmtc&hl=en_US.
254 Ibid; Tanushree Dev Barma, Personal Interview,Bangalore, March 5, 2019.
255 S. Rajagopalan, Personal Interview, Bangalore,March 5, 2019.
256 BMTC Data Sharing Policy Draft (July, 2018),Bangalore: Bangalore Municipal Transit Corporation,2018.
257 S. Rajagopalan, Personal Interview, Bangalore,March 5, 2019.
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258 Ibid.
259 BMTC Data Sharing Policy Draft (July, 2018).Bangalore: Bangalore Municipal Transit Corporation,2018.
260 Srinivas Kodali, “BMTC IntelligentTransportation System (ITS) and Need for OpenTransport Data,” Data Meet, accessed Jan. 28, 2019,http://datameet.org/2016/08/05/bmtc-intelligent-transportation-system-its-open-transport-data/ .
261 Naveen Menezes, “Two years on, commuterscontinue to suffer as BMTC squats on real-timedata,” Economic Times, accessed Feb. 16, 2019,https://economictimes.indiatimes.com/industry/transportation/two-years-on-commuters-continue-to-suffer-as-bmtc-squats-on-real-time-data/articleshow/67087829.cms
262 Vinay Sreenivasa, Personal Interview, Online,March 7, 2019.
263 Yunus Y. Lasania, “Telangana’s ‘open data’ policyto help start-ups address public issues,” LiveMint,accessed March 15, 2019, https://www.livemint.com/Companies/iZKdgU1KkQh4azdSKCZ31O/Telanganas-open-data-policy-to-help-startups-address-pub.html
264 Telangana Open Data Policy 2016, Hyderabad,Telangana: Government of Telangana, accessedMarch 15, 2019, https://data.gov.in/sites/default/files/Telangana-Open-Data-Policy-2016.pdf
265 Ibid.
266 Yunus Y. Lasania, “Telangana’s ‘open data’ policyto help start-ups address public issues,” LiveMint,accessed March 15, 2019, https://www.livemint.com/Companies/iZKdgU1KkQh4azdSKCZ31O/Telanganas-open-data-policy-to-help-startups-address-pub.html
267 “Background,” Factly, accessed Feb. 18, 2019,https://factly.in/about/
268 Anant Maringanti, Personal Interview,Hyderabad, March 6, 2019.; Harsha Devulapalli andGirish Agrawal, “Mapping bus transit services inHyderabad – an illustrative example of the use ofopen geospatial data,” Transportation ResearchProcedia. 25 (201): 4196-4206.
269 Surya Kandukuri, Personal Interview,Hyderabad, March 6, 2019.
270 Vishal Ramprasad, Personal Interview, Mumbai,Feb. 12, 2019.
271 Srya Kandukuri, “Notes from our conversation,”Email, 2019.; Surya Kandukuri, Personal Interview,Hyderabad, March 6, 2019.
272 Ibid.
273 Aaron Antrim and Sean Barbeau, “The ManyUses of GTFS Data- Opening the Door to Transit andMultimodal Applications,” ITS America’s 23rd AnnualMeeting and Exposition, April 2013, https://www.researchgate.net/publication/268097444_THE_MANY_USES_OF_GTFS_DATA_OPENING_THE_DOOR_TO_TRANSIT_AND_MULTIMODAL_APPLICATIONS
274 Harsha Devulapalli and Girish Agrawal,“Mapping bus transit services in Hyderabad – anillustrative example of the use of open geospatialdata,” Transportation Research Procedia, 25 (201):4196-4206.
275 Anumita Roychowdhury, Gaurav Dubey, AnuSoman, Waiting for a Bus: Strategies to improveDelhi’s bus system. (New Delhi: Centre for Scienceand Environment, 2017).
276 Ibid.
277 O.P. Agarwal, Personal Interview, New Delhi,March 1, 2019.
278 In many cases, transit operators do not make asystem map or timetable available. Data can be used
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to provide these more analog solutions in order tomeet the information needs of riders who do notpossess smartphones or do not access transit data inan online format. Other technologies may proveuseful to encompass groups of people who might notuse smartphones, such as text or voice-basedservices.
279 Open Government Data Platform India,“National Data Sharing and Accessibility Policy,”accessed Jan. 28, 2019, https://data.gov.in/sites/default/files/NDSAP.pdf
280 “Open Government Data Platform India,” OpenGovernment Data Platform India, accessed Jan. 28,2019, https://data.gov.in
281 Mohd Ujaley, “Countries to Ride on India’s OpenGovernment Data Platform,” Express Computer,https://www.expresscomputer.in/interviews/countries-to-ride-on-indias-open-government-data-ogd-platform/11567
282 Simonti, Chakraborty, “Open Data Policy of theGovernment of India: What has it achieved?” CBGIndia, http://www.cbgaindia.org/blog/open-data-policy-government-india-achieved
283 Joel Gurin, Personal Interview, Online, March 1,2019.
284 Mark Headd, “New Thinking in HowGovernments Deliver Services,” in BeyondTransparency, ed. Brett Goldstein with Lauren Dyson.(San Francisco: Code for America Press, 2013): 278-9.
285 Rajarshi Sahai, “Going Public with PublicTransport Data For Public: Dilemmas of DevelopingCities,” accessed Jan. 28, 2019, https://india.uitp.org/articles/open-data-public-transport-data-for-public
286 “National Urban Innovation Stack: Strategy andApproach,” New Delhi, India: Ministry of Housingand Urban Affairs, Government of India, 2019,accessed Feb. 8, 2019, https://smartnet.niua.org/
sites/default/files/resources/nuis_master_doc_07.01.19_v5_0.pdf
287 “DataSmart Cities: Empowering Cities throughData,” Ministry of Housing and Urban Affairs,Government of India, https://smartnet.niua.org/sites/default/files/resources/datasmart_cities.pdf
288 “We Continue to Create an Open Data Culture,”Makaia, accessed March 5, 2019, https://makaia.org/we-continue-to-create-open-data-culture
289 “National Urban Transport Policy (2006),” NewDelhi, India: Ministry of Urban Development,Government of India, 2006. https://smartnet.niua.org/sites/default/files/resources/National%20Urban%20Transport%20Policy.pdf
290 “National Urban Transport Policy (2014),” NewDelhi, India: Ministry of Urban Development,Government of India, 2014. http://www.itdp.in/wp-content/uploads/2014/11/NUTP-2014.pdf
291 “National Urban Transport Policy,” New Delhi,India: Ministry of Urban Development, Governmentof India (2006), https://smartnet.niua.org/sites/default/files/resources/National%20Urban%20Transport%20Policy.pdf
292 Ibid.
293 GP Hari, Personal Interview, Kochi, Feb. 11,2019.
294 Harsha Krishna, Personal Interview, Bangalore,March 4, 2019.
295 Harshith Gokulendra, Personal Interview, NewDelhi, March 1, 2019.
296 O.P. Agarwal, Personal Interview. New Delhi,March 1, 2019.
297 Srinivas Kodali, Personal Interview, New Delhi,Feb. 5, 2019.
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298 Rajarshi Sahai, Personal Interview, Online, Jan.30, 2019.
299 Available at: https://smartnet.niua.org
300 Kunal Kumar, “Building National UrbanInnovation Stack for Indian Smart Cities Mission -Technologies and Financing Model,” (Panelpresentation, Smart Republic Conference, NewDelhi, India, Feb. 27-28, 2019).
301 Srinivas Kodali,. Personal Interview. New Delhi,Feb. 5, 2019.
302 Samir Sharma, Personal Interview. New Delhi,Feb. 15, 2019.
303 GP Hari, Personal Interview, Kochi, Feb. 11,2019.
304 Vishal Ramprasad, Personal Interview, Mumbai,Feb. 12, 2019.
305 Harsha Krishna, Personal Interview. Bangalore,March 4, 2019;Vipassana Vijayarangan, PersonalInterview, Online, Jan. 15, 2019.
306 “National Urban Transport Policy,” New Delhi,India: Ministry of Urban Development, Governmentof India, 2006, https://smartnet.niua.org/sites/default/files/resources/National%20Urban%20Transport%20Policy.pdf.
307 Don Tapscott, “2018 Regulation Roundtable:Addressing the Regulatory Challenges of DisruptiveInnovation,” Summary of 10 May 2018 Proceedingsheld at KPMG Toronto, Blockchain Research Institute,Aug. 8 2018.
308 Warren Davidson, R-OH, "Text - H.R.7356 - 115thCongress (2017-2018): Token Taxonomy Act."Congress.gov. December 20, 2018, accessed April 14,2019, https://www.congress.gov/bill/115th-congress/house-bill/7356/text.
309 U.S. Securities and Exchange Commission,“Ponzi Schemes Using Virtual Currencies,” July 23,
2017, https://www.investor.gov/system/files/news/documents/english/ia_virtualcurrencies.pdf
310 The DAO is one example of a DecentralizedAutonomous Organization, which is a term used todescribe a “virtual” organization embodied incomputer code and executed on a distributed ledgeror blockchain.
311 U.S. Securities and Exchange Commission,“Report of Investigation Pursuant to Section 21(a) ofthe Securities Exchange Act of 1934: The DAO,” July25, 2017, https://www.sec.gov/litigation/investreport/34-81207.pdf
312 Lester Coleman, "SEC Subpoenas 80Cryptocurrency Firms," CCN, March 04, 2018,accessed May 16, 2019. https://www.ccn.com/sec-subpoenas-80-cryptocurrency-firms-including-techcrunch-fund.
313 Nikhilesh De, "SEC Again Delays Decision onBitwise Bitcoin ETF Approval," CoinDesk, May 15,2019. accessed May 16, 2019, https://www.coindesk.com/sec-again-delays-decision-on-bitwise-bitcoin-etf-approval.
314 U.S. Securities and Exchange Commission,Fintech Finhub, "Framework for “InvestmentContract” Analysis of Digital Assets," April 3, 2019,accessed April 14, 2019, https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets.
315 The Howey Test is the standard methodology,put in place by the U.S. Supreme Court to determinewhether a transaction is an example of an"investment contract,” i.e., a security. It derives froma 1946 case, SEC v. W.J. Howey Co., a lawsuitinvolving the Howey Company of Florida. In thecontext of blockchain tokens, the Howey test can beexpressed as three independent elements: (1) Aninvestment of money, (2) in a common enterprise, (3)with an expectation of profits predominantly fromthe efforts of others.
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316 "A New Commissioner at America's MainSecurities Regulator Causes a Buzz," The Economist,Nov. 08, 2018, accessed April 14, 2019, https://www.economist.com/finance-and-economics/2018/11/08/a-new-commissioner-at-americas-main-securities-regulator-causes-a-buzz.
317 Stan Higgins, "The SEC Just Appointed Its First-Ever Crypto Czar," CoinDesk, June 04, 2018,accessed April 14, 2019, https://www.coindesk.com/sec-just-appointed-first-ever-crypto-czar.
318 Detailed in the next section, LabCFTC is apioneering regulatory model in dealing with fintechinnovations
319 Stephan O'Neal, “SEC Launches FinHub toCommunicate With Industry, But What Does It Haveto Say?" Cointelegraph, Feb. 13, 2019, accessed April14, 2019, https://cointelegraph.com/news/sec-launches-finhub-to-communicate-with-industry-but-what-does-it-have-to-say.
320 Yogita Khatri, "The SEC Wants to Hire a 'CryptoSecurities' Advisor," CoinDesk, April 01, 2019,accessed April 14, 2019, https://www.coindesk.com/the-us-sec-is-hiring-a-crypto-specialist-legal-advisor.
321 Commodity Futures Trading Commission, “AnIntroduction to Virtual Currency,” 2017, https://www.cftc.gov/sites/default/files/idc/groups/public/%40customerprotection/documents/file/oceo_aivc0218.pdf.
322 Khatri, Yogita, "CabbageTech CEO Indicted inNew York for Defrauding Crypto Investors," CoinDesk, March 27, 2019, accessed April 14, 2019, https://www.coindesk.com/cabbagetech-ceo-indicted-in-new-york-for-defrauding-crypto-investors.
323 Chris Giancarlo, "CFTC Chairman ChrisGiancarlo,” DC Blockchain Summit 2019,Georgetown University, Washington, D.C., March 6,2019.
324 Daniel Gorfine (Director, LabCFTC), personalinterview, Washington, D.C., April 2019.
325 Daniel Gorfine, "Podcasts." Commodity FuturesTrading Commission, accessed April 14, 2019. https://www.cftc.gov/Media/Podcast/index.htm.
326 Commodity Futures Trading Commission,"Request for Input on Crypto-asset Mechanics andMarkets." December 11, 2018, accessed May 12, 2019,https://www.cftc.gov/sites/default/files/2018-12/federalregister121118.pdf.
327 United States Financial Crimes EnforcementNetwork, Department of Treasury, Guidance:Application of FinCEN’s Regulations to PersonsAdministering, Exchanging, or Using VirtualCurrencies, FIN-2013-G001, March 18, 2013, https://www.fincen.gov/sites/default/files/shared/FIN-2013-G001.pdf.
328 Peter Van Valkenburgh, "FinCEN Raises MajorLicensing Problem for ICOs in New Letter toCongress," Coin Center, March 6, 2018, accessedMay 12, 2019, https://coincenter.org/link/fincen-raises-major-licensing-problem-for-icos-in-new-letter-to-congress.
329 Timothy Spangler and Robert J. Rhatigan."FinCEN Warns That Virtual Currency Activities AreSubject to Anti-Money Laundering Obligations," Lexology, April 03, 2018, accessed April 14, 2019, https://www.lexology.com/library/detail.aspx?g=67eaaff2-3d48-4e39-a1b7-8cf1651099df.
330 FinCEN, "Advisory on the Iranian Regime’s Illicitand Malign Activities and Attempts to Exploit theFinancial System," FIN-2018-A006, October 11, 2018,accessed April 14, 2019, https://www.fincen.gov/sites/default/files/advisory/2018-10-11/Iran AdvisoryFINAL 508.pdf.
331 Internal Revenue Service, "Notice 2014-21,"March 2014, accessed April 14, 2019, https://www.irs.gov/pub/irs-drop/n-14-21.pdf.
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332 "Tax Treatment of Cryptocurrency Hard Forksfor Taxable Year 2017," American Bar Association toInternal Revenue Service, March 19, 2017,Washington, D.C.
333 "IRS Treatment of Virtual Currencies," U.S.House of Representatives Committee on Ways andMeans to Internal Revenue Service, Sept. 19, 2018,Washington, D.C. https://republicans-waysandmeansforms.house.gov/uploadedfiles/letter_irs_virtual_currencies.pdf.
334 Steven T. Mnuchin and Craig S. Phillips, “AFinancial System That Creates EconomicOpportunities Nonbank Financials, Fintech, andInnovation,” U.S. Department of the Treasury, July2018. https://home.treasury.gov/sites/default/files/2018-07/A-Financial-System-that-Creates-Economic-Opportunities---Nonbank-Financi....pdf.
335 Craig S. Phillips "Fireside Chat with CounselorCraig Phillips, U.S. Dept. of the Treasury," Speech atthe D.C. Blockchain Summit 2019, GeorgetownUniversity, Washington, D.C., March 6, 2019.
336 Statement of Jennifer Shasky Calvery, Director,Financial Crimes Enforcement Network, United StatesDepartment of the Treasury (2013) (testimony ofJennifer Shasky Calvery).https://www.fincen.gov/news/testimony/statement-jennifer-shasky-calvery-director-financial-crimes-enforcement-network-0.
337 Ibid.
338 "Virtual Currency Business (BitLicense)," NewYork Department of Financial Services, 2015. https://www.dfs.ny.gov/apps_and_licensing/virtual_currency_businesses/license_management.
339 Patrick Murck, (Partner, Cooley LLP), personalinterview, March 2019.
340 Marco Santori and Maria Vullo, "Legal Tender?The Regulation of Cryptocurrencies," June 7, 2018,accessed April 14, 2019, https://www.cfr.org/event/legal-tender-regulation-cryptocurrencies.
341 Anonymous New York venture capitalist inblockchain, personal interview, March 2019.
342 Gage Lathrop and Dale Werts, "Blockchain andCryptocurrency: State Law Roundup," JD Supra, July10, 2018, accessed April 14, 2019, https://www.jdsupra.com/legalnews/blockchain-and-cryptocurrency-state-law-84534/.
343 Long, Caitlin, "What Do Wyoming's 13 NewBlockchain Laws Mean?" Forbes, April 08, 2019,accessed April 14, 2019, https://www.forbes.com/sites/caitlinlong/2019/03/04/what-do-wyomings-new-blockchain-laws-mean/#11ecd0575fde.
344 Caitlin Long (Co-Founder, Wyoming BlockchainCoalition), personal interview, Feb. 2019.
345 Multiple start-up founders and businessstrategy leads (anonymous), personal interview, April2019, Seattle.
346 Greg Heuss (Managing Partner, CounterpointVentures), personal interview, April 2019, Seattle,Washington.
347 Multiple start-ups (anonymous), interview bythe author, April 2019, Los Angeles and SanFrancisco, California.
348 David Otto (Founder and Managing Partner,Martin Davis PLLC), personal interview, April 2019,Seattle, Washington.
349 Multiple start-ups and Venture Capitalists(anonymous), interview by the author, April 2019, LosAngeles and San Francisco, California.
350 The SEC, as well as the securities laws itenforces, have come under bipartisan criticism fromacademics, entrepreneurs, investors, and membersof Congress for creating red tape that makes itdifficult both for entrepreneurs to raise capital in thepublic markets and for investors to find wealth-building opportunities. This concern promptedCongress to pass regulatory relief overwhelmingly in
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the Jumpstart Our Business Start-ups (JOBS) Act,which was signed by President Obama in 2012. In2018, the U.S. House of Representatives passed a billallowing further relief, the Jobs and InvestorConfidence Act. The JOBS Act eased some burdenson entrepreneurs by exempting small and “emerginggrowth” companies from some of the costly burdensof securities laws like the Sarbanes-Oxley Act of2002 and the Dodd-Frank Act 2010.For furtherreference: John Berlau, "Cryptocurrency and theSEC's Limitless Power Grab," Competitive EnterpriseInstitute, April 11, 2019, accessed April 14, 2019,https://cei.org/content/cryptocurrency-and-secs-limitless-power-grab.
351 Multiple venture capitalists, interviewed byauthor, Feb./Apr. 2019, New York, Seattle, SanFrancisco.
352 John M. Carey, Legislative Voting andAccountability, Cambridge Studies in ComparativePolitics (Cambridge University Press, 2009), ix.
353 This expectation was, in some part, because ofthe way I had seen the voting records of Americanmembers of Congress being used to discuss theirpast positions on legislative matter, as well as toexamine the linkages between the funding theyreceived and the positions they espoused.
354 Rule 246, “Rules of Procedure and Conduct ofBusiness in the Council of States (Rajya Sabha),”August 2016, https://rajyasabha.nic.in/rsnew/rs_rule/rules_pro.pdf; and Rule 364, “Rules of Procedure andConduct of Business in Lok Sabha,” April 2014, http://164.100.47.194/loksabha/rules/RULES-2010-P-FINAL_1.pdf.
355 “Constitution of India,” 1950, http://www.legislative.gov.in/constitution-of-india.
356 For the sake of brevity, the term “Speaker” shallbe used to cover both the Speaker of the Lok Sabhaas well as the Chairman of the Rajya Sabha.
357 A head-count is not seen as a “division” underthe Rules of Procedures of the Lok Sabha and theRajya Sabha, even though votes are counted.
358 This was increased from 2½ minutes in 1989(Lok Sabha) and 2006 (Rajya Sabha).
359 It was in 1956-57 that the Indo-German TradeCentre was contracted to install ‘automatic voterecording equipment,’ i.e., voting machines,manufactured by Telefonbau und NormalzeitG.M.B.H. of Frankfurt, West Germany, in both theLok Sabha as well as the Rajya Sabha. Incidentally,this contract led to what was the first ruling onparliamentary privilege within the Rajya Sabha, andthe second in the Lok Sabha in relation to a casebefore the Election Tribunal and the Calcutta HighCourt on disqualification of a member. See, RajyaSabha Committee on Privileges, “First Report,” May1958, https://rajyasabha.nic.in/rsnew/privileges_digest/priv-18.pdf; Lok Sabha Committeeon Privileges, “Second Report,” April 1958, https://eparlib.nic.in/bitstream/123456789/57641/1/privileges_02_02_1958.pdf; and Brojo Gopal Das v. Kalipada Banerjee, January 1959, https://indiankanoon.org/doc/1158907/?type=print. Giventhat the equipment did not have any means of theMP authenticating herself (unlike the machine usedin the U.S. House of Representatives), thatnecessitated the allocation of specific seats to eachmember, which had not been fixed (except thereservation of a few rows for government ministers)until then. As a book on Indian parliamentaryprocedure notes, “each member is now allotted afixed seat from where he has to address the Houseunless it otherwise directed by the Chair, and at thetime of a division he has to record his vote byoperating the apparatus fixed to his seat.” MN Kauland SL Shakdher, Practice and Procedure ofParliament, 3rd ed., vol. 1 (Metropolitan Book Co.,1979), http://archive.org/details/in.ernet.dli.2015.111150; this is also encapsulated in the Lok SabhaRules of Procedure. Rule 349(vii), “Rules of Procedureand Conduct of Business in Lok Sabha”
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360 India Const., art. 368(2).
361 India Const., arts. 61(2)(b) and 61(4).
362 India Const., art. 124(4).
363 India Const., art. 244A(3).
364 India Const., art. 249.
365 India Const., art. 312.
366 India Const., art.352(6).
367 India Const., arts. 55(3) & 66(1).
368 U.S. Const., art. I, . 5, cl. 3.
369 Elizabeth Rybicki, “Voting and QuorumProcedures in the Senate,” (Congressional ResearchService, August 2013), 5.
370 Rybicki, 5.
371 “Divisions,” UK Parliament, accessed 10 March2019, https://www.parliament.uk/about/how/business/divisions/
372 Ibid.
373 Shalaka Patil, “Push Button Parliament - WhyIndia Needs a Non-Partisan, Recorded Vote System,” Anuario Colombiano de Derecho Internacional 4(2011): 182, https://heinonline.org/HOL/Page?handle=hein.journals/acdin4\&id=154\&div=\&collection=.
374 Carey, Legislative Voting and Accountability,166.
375 Carey, 166.
376 Whips can be the letter that are issued by asenior functionary of a political party, issuingdirections to the members of that party in parliament—usually directing them to vote in a particularmanner on a motion, to abstain from voting, or even
to just attend a particular session of parliament. Theterm can also be used to describe the privilege ofbelonging to a political party; thus when an MP’swhip is removed, that MP is expelled from the party,until that MP’s whip is restored. Finally, the term canalso be used to describe the senior political partyfunctionaries whose job it is to issue and removewhips, and otherwise ensure cohesion among theirfellow party members. Whips are statutorilyrecognized in multiple parliaments, and draw salariesfrom the public exchequer as well in countries likeIndia and the U.K.
377 R. Eric Petersen, “Parliament and Congress: ABrief Comparison of the British House of Commonsand the U.S. House of Representatives,” 2005, 4,https://fas.org/sgp/crs/misc/RL32206.pdf.
378 Petersen, 4.
379 The law allows for disqualification if there is“voluntarily giving up of seat” or if an MP “votes orabstains from voting in such House contrary to anydirection issued by the political party to which hebelongs or by any person or authority authorized byit in this behalf, without obtaining, in either case, theprior permission of such political party, person orauthority and such voting or abstention”. There arelimited circumstances in whips may not be issued,namely in the election of presidents and vice-presidents.
380 Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686.The court noted that, “there are certain side effectsand fall out which might affect and hurt even honestdissenters and conscientious objectors, but these arethe usual plus and minus of all areas of experimentallegislation.”
381 Ibid.
382 Mannadi Satyanarayan Reddy v. AndhraPradesh Legislative Assembly and Others, 2009 (3)ALT 32.
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383 David Beetham, Parliament and Democracy inthe Twenty-First Century: A Guide to Good Practice(Inter-Parliamentary Union, 2006), 96, https://www.ipu.org/resources/publications/handbooks/2016-07/parliament-and-democracy-in-twenty-first-century-guide-good-practice.
384 Beetham, 96.
385 The situation before 1972-73 when the U.S.House of Representatives moved to electronic votingwas described by the Clerk of the House: “Voting inthe House was something of a mystery, unless youwere present in the chamber when the roll wascalled, and attentive to the Members’ responses, andthen, of course, people in the gallery then, as now,could not take notes. You did not know until the nextday when the vote was recapitulated in theCongressional Record how the Members individuallyhad voted.” - Donnald K. Anderson, Clerk of the U.S.House of Representatives (2006)
386 Patil, “Push Button Parliament - Why IndiaNeeds a Non-Partisan, Recorded Vote System,” 170–72.
387 Simon Hug, Simone Wegmann, and RetoWüest, ‘Parliamentary Voting Procedures inComparison’, West European Politics 38, no. 5(September 2015): 943, https://doi.org/10.1080/01402382.2015.1045290.
388 Patil, “Push Button Parliament - Why IndiaNeeds a Non-Partisan, Recorded Vote System,” 171.
389 Varghese K. George, “Voice Vote Valid OnlyWhen Nobody Questions It,” The Hindu, November2014, https://www.thehindu.com/news/national/other-states/voice-vote-valid-only-when-nobody-questions-it/article6596275.ece.
390 Anusha Ondaatjie and Iain Marlow, “NoConfidence in New PM, Sri Lanka Lawmakers TellParliament,” Bloomberg, accessed 29 April 2019,https://www.bloomberg.com/news/articles/
2018-11-14/sri-lanka-parliament-passes-no-confidence-vote-against-new-pm.
391 See Hug, Wegmann, and Wüest,”ParliamentaryVoting Procedures in Comparison.”
392 For this to happen, it ought to be taken up bythe Rules Committee of either house, and a changerecommended. Thereupon, the rules of procedure ofthe Lok Sabha and the Rajya Sabha should beamended by each house. While the lack of a clearrule is not a bar for this practice to be implemented,it would give it a more binding character if it foundexpression in the rules of procedure. As a start,though, it would be judicious for political parties tostart publicly documenting every whip they issue(whether one-line, two-line, or three-line whips) ontheir website.
393 Patil, “Push Button Parliament — Why IndiaNeeds a Non-Partisan, Recorded Vote System,” 191.
394 Patil, 192.
395 MPs have at least four distinct kinds of duties:(1) Legislative and deliberative: MPs debate, draft,and pass statutes, they amend or reject subordinatelegislation promulgated by the Executive; (2)Oversight: they exercise budgetary oversight,participate in committees that examine the workingsof the government, and have powers to conductspecial investigations via “joint parliamentarycommittees,” fell governments through “no-confidence motions,” impeach the President,approve or disapprove declarations of emergency,and interrogate the functioning of the governmentthrough a variety of means [Question Hour, CallingAttention Motion, etc.], and impeach judges ofconstitutional courts; (3) Elective: they vote for theelections for the president and vice-president of India(apart from parliamentary functionaries such as theSpeaker of the Lok Sabha, etc.; (4) Representative:MPs represent their political parties, and representtheir constituents by raising issues relevant to theirconstituents in Parliament [or in parliamentarycommittees and processes], by aiding their
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constituents in communicating with governmentalbodies and getting their concerns heard by thegovernment and local bodies, and recommendingspecific developmental projects be undertaken intheir constituency and providing the funding for thatthrough the MPLAD fund.
396 Lok Sabha Secretariat, “Resumé of Work Doneby Lok Sabha: 16th Lok Sabha, 13th Session,”February 2018, 32–33, http://164.100.47.193/resumeofwork/XIII/5163LS.pdf.
397 MP’s Reports, Dr. Shashi Tharoor’s OfficialWebsite, 2019, http://shashitharoor.in/mp_reports.MP Shashi Tharoor has been leading the way, havingissued such reports since his first term from2009-2014. Instructively, in his latest end-term reportcovering 2014-2019, he only dedicates two sectionsfor work within the Lok Sabha and a StandingCommittee, while eleven sections are dedicated towork outside of Parliament.
398 Manju Jain, “Delivering Parliamentary Libraryand Research Services in an Interconnected World:The Case of the Parliament of India,” IFLA - Libraryand Research Services for Parliaments, September2016, https://www.ifla.org/node/10848.
399 Rajya Sabha Secretariat, ‘Rajya Sabha AnnualReport 2017’, 2017, https://rajyasabha.nic.in/rsnew/annual_report/2017/LARRDIS.pdf.
400 Empirical research for this paper would havebeen aided greatly if Parliamentary debates wereavailable in a structured format such as AkomaNtoso.
401 There are many definitions of open standards,but for the purposes of this section I mean that it hasbeen standardized by a committee with openparticipation and an open process, and is availablefor free, and may be implemented in free/libre/opensource software without payment of any royalties.
402 Ashok Hariharan, interview by author, March2019.
403 John Sheridan and Jim Mangiafico, ‘Structure-Aware Search of UK Legislation’, in XML London 2016Conference Proceedings (London, United Kingdom:XML London, 2016), 78–81, https://doi.org/10.14337/XMLLondon16.Sheridan01.
404 ‘AT4AM.eu’, AT4AM.eu, accessed 30 January2019, https://at4am.eu/.
405 “U.N. Semantic Interoperability Framework forNormative and Parliamentary Documents (UNSIF) |United Nations System Chief Executives Board forCoordination,” United Nations System, accessed 16April 2019, https://www.unsystem.org/content/akn4un. The blog post on this notes: ‘The adoption of[the UN Semantic Interoperability Framework] hasput the foundations for the establishment of a UN-wide ecosystem of machine-readable documentsthat will foster collaboration and reduce costs ininformation management across the system bytransforming the web of information enclosed intraditional word processing documents into a web ofdata that can be interpreted by computers to createinnovative services. By having documents available ina common semantically rich format will raisedramatically the UN capacity to coordinate activities,create synergies and respond to clients’ informationdemands, improve the efficiency and quality ofinformation processing, dissemination andaccessibility, and bring significant benefits in termsof governance, accountability and transparency.”
406 “Indigo Platform for Publishing BeautifulLegislation: Laws-Africa/Indigo’ (Laws.Africa, March2019), https://github.com/laws-africa/indigo.
407 Nyaaya, “Laws of India in Akoma Ntoso XMLformat,” https://github.com/nyaayaIN/laws-of-india/tree/master/consolidated.
408 Union of India v. Vansh Sharad Gupta, W.P. (C)4761/2016, order dated May 25, 2017, http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=106443&yr=2017.
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409 Union of India v. Vansh Sharad Gupta, W.P. (C)4761/2016, order dated December 15, 2017, http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=240305&yr=2017.
410 Chakshu Roy, “Budgeting for Democracy,” TheIndian Express, February 2017, https://indianexpress.com/article/opinion/columns/union-budget-parliament-democracy-lok-sabha-rajya-sabha-4511240/.
411 Ashok Hariharan, interview with author, March2019. Hariharan.’
412 Hariharan.
413 Hariharan.
414 Beetham, Parliament and Democracy in theTwenty-First Century, 7.
415 Ministry of Civil Aviation, GovernmentAnnounces Regulations for Drones, New Delhi, India:Press Information Bureau, Government of India,August 27, 2018, http://pib.nic.in/newsite/PrintRelease.aspx?relid=183093; Gill, Prabhjote,“Flying Drones are Finally Legal in India.,” BusinessInsider, August 29, 2018, https://www.businessinsider.in/flying-drones-is-finally-legal-in-india/articleshow/65573434.cms.
416 For a discussion on how unmanned aerialvehicles or commercial drones are being utilized insome of the core public sectors and allowing civilianuses of aerial monitoring, see: Padmanabhan,Ananth, “Civilian Drones and India’s RegulatoryResponse,” Carnegie India, March 10, 2017, https://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218.
417 “Cleared for Take-Off: India Ready for the DroneRevolution, Pilots New Open Source Guide forGovernments,” World Economic Forum, January 25,2019, https://www.weforum.org/press/2019/01/cleared-for-take-off-india-ready-for-the-drone-
revolution-pilots-new-open-source-guide-for-governments/.
418 FE Bureau, “India’s Drone Market Expected toGrow $885.7 mn by 2021,” Financial Express, October8, 2018, https://www.financialexpress.com/industry/technology/indias-drone-market-expected-to-grow-885-7-mn-by-2021-jobs-look-like-a-guarantee-here/1340848/.
419 Mallapur, Chaitanya, “India Tops List of Drone-Importing Nations,” Business Insider, May 4, 2015,https://www.business-standard.com/article/specials/india-tops-list-of-drone-importing-nations-115050400136_1.html.
420 Panda, Ankit, “US Approves Sale of ArmedPredator-B Drones to India,” The Diplomat, May 2,2018. https://thediplomat.com/2018/05/us-approves-sale-of-armed-predator-b-drones-to-india-report/.
421 Pamela Cohn, Alastair Green, MeredithLangstaff, and Melanie Roller, “Commercial Dronesare Here: The Future of Unmanned Aerial Systems”,McKinsey Report, December 2017, https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/commercial-drones-are-here-the-future-of-unmanned-aerial-systems
422 Pamela Cohn, Alastair Green, MeredithLangstaff, and Melanie Roller, “Commercial DronesAre Here: The Future of Unmanned Aerial Systems,”McKinsey Report, December 2017, https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our-insights/commercial-drones-are-here-the-future-of-unmanned-aerial-systems.
423 “Drone Certification: A Step-by-Step Guide toFAA Part 107 for U.S. Commercial Drone Pilots,” UAVCoach, https://uavcoach.com/drone-certification/.
424 Dukowitz, Jack, “ISO Releases Draft of FirstInternational Drone Standards for Public Comment,” UAVCoach. November 30, 2018, https://uavcoach.com/iso-standards/.
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425 Government. Ministry of External Affairs. Responding First as a Leading Power. https://www.mea.gov.in/Portal/IndiaArticleAll/636548962666860480_Responding_First_Leading_Power.pdf
426 Kuronuma, Yuki. ‘Drones Help Rescue Efforts inNepal.’ Nikkei Asian Review. May 11, 2015. https://asia.nikkei.com/Business/Drones-help-rescue-efforts-in-Nepal
427 Parmar, Tekendra, “Drones in India,” Center forthe Study of the Drone. December 4, 2014. https://dronecenter.bard.edu/drones-in-india/.
428 Rossow, Richard M. and C. Raja Mohan, Deepening India-U.S. Cooperation on HumanitarianAssistance and Disaster Relief in the Indian Oceanand the Asia-Pacific Regions, CSIS, Wadhwani Chairin U.S.-India Policy Studies, October 2015. https://csis-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/151021_Rossow_DeepeningUSIndiaCooperation_Web.pdf.
429 Mehta, Aaron, “US, India Collaborating on Air-Launched Drone,” Defense News, March 18, 2019,https://www.defensenews.com/global/asia-pacific/2019/03/18/us-india-collaborating-on-air-launched-drone/
430 “Building Cargo Drone Expertise in Papua NewGuinea,” iRevolutions, February 25, 2019, https://irevolutions.org/2019/02/25/building-cargo-drone-expertise-in-papua-new-guinea/.
431 “Is China at the Forefront of DroneTechnology?”, CSIS ChinaPower, May 29, 2018,https://chinapower.csis.org/china-drones-unmanned-technology/
432 Das, Pranab K, “The Customs Paradigm inCombatting Weapons of Mass Destruction,” Ministryof Finance, Government of India. https://www.eiseverywhere.com/file_uploads/
00f88670a97ee6715c92afc0199aec8c_6.6Mr.PranabKumarDas.pdf.
433 Ministry of Civil Aviation. Operations ofRemotely Piloted Aircraft System (RPAS) to beEnabled through Digital Sky Platform, PressInformation Bureau, August 27, 2018. http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1544087
434 Mathews, Neelam, “India Struggles With DroneIssues.” AINOnline, February 17, 2016, https://www.ainonline.com/aviation-news/aerospace/2016-02-17/india-struggles-drone-issues
435 For a detailed discussion on the variouschallenges to bolster the commercial drone sector inIndia, see “Make in India for Unmanned AircraftSystems: Awaiting its Kitty Hawk Moment,” FICCIand EY, https://www.ey.com/Publication/vwLUAssets/ey-make-in-india-for-unmanned-aircraft-systems/$File/ey-make-in-india-for-unmanned-aircraft-systems.pdf
436 Rice, Stephen, “Eyes in the Sky: The Public hasPrivacy Concerns About Drones”, Forbes, February 4,2019, https://www.forbes.com/sites/stephenrice1/2019/02/04/eyes-in-the-sky-the-public-has-privacy-concerns-about-drones/#a0432c06984c
437 A doorstep delivery would entail collection ofcustomer data at levels which would be consideredprivate such as residence address, timings fordeliveries among other detailed information oncustomers.
438 Lohn, Andrew J, Gulden, Timothy R. Xu, Jia.Jones, Therese, Kuhn, Kenneth, Welser IV, William.“What’s in Store for Commercial Delivery Drones,” Rand Research Brief, https://www.rand.org/pubs/research_briefs/RB9995.html
439 Lohn, Andrew J, Gulden, Timothy R. Xu, Jia.Jones, Therese, Kuhn, Kenneth, Welser IV, William.“What’s in Store for Commercial Delivery Drones,” Ra
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nd Research Brief, https://www.rand.org/pubs/research_briefs/RB9995.html
440 ET Bureau, “Drones: Out of Sight, but in IndianGovt’s Mind,” Economic Times, January 16, 2019,https://economictimes.indiatimes.com/industry/transportation/drones-out-of-sight-but-in-indian-govts-mind/articleshow/67550036.cms
441 Isaak, Adam “With More Drones in the SkyEvery Year, ‘Counter-Drone’ Tech Can Keep the BadOnes at Bay”, CNBC, February 2, 2019, https://www.cnbc.com/2019/02/02/counter-drone-tech-is-needed-more-than-ever.html
442 Chang, Lulu “FBI Rescue Hostage TeamBamboozled After Criminals Unleash Drone Swarm”, Digital Trends, May 4, 2018, https://www.digitaltrends.com/cool-tech/drones-fbi-raid/
443 Brennan, David. “Why are Militants UsingDrones? UAV Weapons Have Spread Far BeyondNation States,” Newsweek, April 24, 2018, https://www.newsweek.com/why-are-militants-using-drones-uav-weapons-have-spread-far-beyond-nation-899076.
444 “Game of Drones-Proliferated Drones,” Wargame Report, Center for New American Security, June29, 2016, http://drones.cnas.org/wp-content/uploads/2016/06/Game-of-Drones-Proliferated-Drones.pdf.
445 Harper, Alexander, “Drones Level the Battlefieldfor Extremists,” The Interpreter, April 20, 2018,https://www.lowyinstitute.org/the-interpreter/drones-level-battlefield-extremists.
446 Michel, Arthur H, ‘Counter-Drone Systems.’ TheCenter for Study of Drone, Bard College, February2018, accessed April 26, 2019. https://docs.google.com/viewerng/viewer?url=http://dronecenter.bard.edu/files/2018/02/CSD-Counter-Drone-Systems-Report.pdf&hl=en_US
447 Ibid.
448 Grand View Research, “Anti-Drone Market SizeWorth $1.85 Billion By 2024 | CAGR: 24.1%,” accessedApril 26, 2019. https://www.grandviewresearch.com/press-release/global-anti-drone-market
449 “Why We Need Counter-Drone TechnologyNow More than Ever,” CNBC, February 1, 2019,https://www.cnbc.com/video/2019/02/01/counter-drone-companies-like-dedrone-fortem-are-policing-the-skies.html
450 Federal Aviation Administration, Pilot Reports ofClose Calls With Drones Soar in 2015, August 12,2015, https://www.faa.gov/news/updates/?newsId=83445
451 Goglia, John,“FAA Confirms Shooting a Drone isa Federal Crime. So When Will U.S. Prosecute?” Forbes, April 13, 2016, https://www.forbes.com/sites/johngoglia/2016/04/13/faa-confirms-shooting-drone-federal-crime-so-when-will-us-prosecute/#15ca2e562a25
452 U.S. Department of Transportation, UpdatedGuidance on Unmanned Aircraft System (UAS)Detection and Countermeasures, Federal AviationAgency. July 19, 2018, https://www.faa.gov/airports/airport_safety/media/Counter-UAS-Airport-Sponsor-Letter-July-2018.pdf
453 Snead, Jason, John-Michael Seibler, and DavidInserra, “Establishing a Legal Framework for Counter-Drone Technologies,” The Heritage Foundation, April16, 2018, https://www.heritage.org/technology/report/establishing-legal-framework-counter-drone-technologies
454 French, Sally, “Department Of Defense Is UsingSkySafe To Crack Down on Rogue Drones,” DroneGirl, July 20, 2017, https://thedronegirl.com/2017/07/20/skysafe-anti-drone/
455 Peri, Dinaker, “Expanding Anti-UAVs Market toCounter Drone Technology,” CLAWS Journal, Winter2015, https://www.claws.in/images/journals_doc/
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246665511_ExpandingAnti-UAVsMarkettoCounterDroneTechnology.pdf
456 Ahuja, Namrata B, “Govt Plans to Deploy Anti-Drone Facilities at Airports,” The Week, March 14,2018, https://www.theweek.in/news/india/2018/05/14/govt-plans-to-deploy-anti-drone-facilities-at-airports.html
457 National Nuclear Security Administration, NNSA Deploys its First Counter-Unmanned AircraftSystem, Nov. 19, 2018, https://www.energy.gov/nnsa/articles/nnsa-deploys-its-first-counter-unmanned-aircraft-system
458 Horizontal technology refers to application of atechnology across different sectors without muchinvestment in R&D. An example would be e-commerce where selling a book is similar to selling alaptop.
459 “The Chatbots Taking Over Government: WhatJobs Can They Do?” October 17, 2017, https://apolitical.co/solution_article/chatbots-government-what-jobs-can-they-do/.
460 Lindsay Curdele, “Pokemon Gov: GamifyingCivic Engagement,” July 28, 2016https://mediacause.org/pokemon-go-gamifying-civic-engagement/.
461 Participatory Pokemon Go, last modified July 5,2017, https://www.boston.gov/departments/new-urban-mechanics/participatory-pokemon-go.
462 “Catalog of Good Deeds: Building Civil SocietyThrough Daily Acts of Kindness, Tlalnepantla De Baz,Mexico: Mayors Challenge Finalist, 2016,https://mayorschallenge.bloomberg.org/ideas/tlalnepantla-de-baz/.
463 Ibid.
464 G. Sgueo, A discussion on gamified digitaladvocacy, Workshop The Future of Law. Technology,Innovation and Access to Justice, Chair for Public
Law and Comparative Law, Humboldt University ofBerlin and Friedrich Naumann Stiftung for Freedom,November 2018.
465 Alan Ivan Chorney, "Taking the Game out ofGamification," Dalhousie Journal of InterdisciplinaryManagement, Vol. 8, No. 1 (2012).
466 Jane McGonigal, Reality is broken: Why gamesmake us better and how they can change the world.(New York: Penguin, 2011).
467 Robert D. Putnam, "E Pluribus Unum: Diversityand Community in the Twenty-first Century." (The2006 Johan Skytte Prize Lecture, 2007).
468 Nicholas Plumb, Hannah Millinship Hayes, et al,“Integration City: A new communities agenda forLondon,” October 2016, https://the-challenge.org/uploads/documents/TCN-Integration-City.pdf.
469 Ibid
470 OECD Guidelines on Measuring Trust, Nov. 23,2017, http://www.oecd.org/sdd/oecd-guidelines-on-measuring-trust-9789264278219-en.htm.
471 I. Bogost, “The rhetoric of video games” in K.SALEN (ed.), The Ecology of Games: ConnectingYouth, Games, and Learning, (MIT Press, 2008), p.130.
472 Ibid.
473 Gianluca Sgueo, “Games, Powers &Democracies: Chapter 1,” Games, Powers &Democracies, (Milan: Bocconi University Press, 2018).
474 , Barnett et al., “Toward Metrics forRe(imagining) Governance: The Promise andChallenge of Evaluating Innovations in How WeGovern,” GovLab Working Paper, April 18, 2013.
475 Graham Smith, Democratic innovations:Designing institutions for citizen participation(Cambridge: Cambridge University Press, 2009).
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476 Decide Madrid, https://decide.madrid.es/.
477 CrowdLaw Introduction, The GovLab, Sep. 2017,https://crowd.law/crowdlaw-introduction-baef458325ae
478 “Over Half of Reykjavik Residents SteerPolicymaking - Here's How,” Apolitical, Sept. 2017,https://apolitical.co/solution_article/half-reykjavik-residents-steer-policymaking-heres/.
479 Vtaiwan, https://info.vtaiwan.tw/.
480 “Taiwan Is Using Social Media to CrowdsourceLegislation,” Apolitical, June 2017, https://apolitical.co/solution_article/taiwan-using-social-media-crowdsource-legislation/.
481 Beth Noveck, “More Than A Coin: The Rise OfCivic Cryptocurrency,”June 25, 2018, https://medium.com/@bethnoveck/with-victoria-alsina-reproduced-from-forbes-march-27-2018-600db3e64131.
482 Paul van Sambeek, Edgar Kampers, “NU-spaarpas, the Sustainable Incentive Card Scheme,2004.
483 De Torekes, https://samenlevingsopbouwgent.be/wat-doen-we/projecten/de-torekes/
484 “Engage Your Citizens with Gamification,”Innowave, https://content.campaignspartner.com/link/innowave-download-wp-en-lk.
485 Peter Hasson, “Social Credit,” Daily Caller, Nov.2018, https://dailycaller.com/2018/11/17/andrew-yang-2020-social-credit/.
486 Andrew Yang, “Modern Time Banking,” https://www.yang2020.com/policies/modern-time-banking/.
487 Rachel Botsman, “Big Data Meets Big BrotherAs China Moves To Rate Its Citizens,” Wired, Oct. 21,2017, https://www.wired.co.uk/article/chinese-government-social-credit-score-privacy-invasion.
488 Rogier Creemers, "China's Social CreditSystem: An Evolving Practice of Control." (2018)
489 A. Davies and J. Simon, “Citizen engagement insocial innovation – a case study report,” adeliverableof the project: “The theoretical, empirical and policyfoundations for building socialinnovation in Europe”(TEPSIE), European Commission – 7th FrameworkProgramme, Brussels:European Commission, DGResearch, 2012.
490 Fred Powell, "Civil society, social policy andparticipatory democracy: Past, present and future." Social Policy and Society 8, no. 1 (2009): 49-58.
491 Ibid
492 Joseph Kahne, Ellen Middaugh, and ChrisEvans. The civic potential of video games.(Cambridge, MA: MIT Press, 2009).
493 “Who Knows Best? Cities Consult Citizens forFresh IdeasPlace,” Feb. 2019, http://www.thisisplace.org/i/?id=8bce0a3d-3179-4bf9-ad79-e5f52e186062.
494 Samuel Bowles, “The Moral Economy: WhyGood Incentives are no substitute for good citizens,”(New Haven, CT: Yale University Press, 2017).
495 Cass R. Sunstein, “Why nudge?: The politics oflibertarian paternalism,” ((New Haven, CT: YaleUniversity Press, 2014).
496 Beth Noveck, Smarter Citizens, Smarter State,(Harvard, MA:Harvard University Press, 2015).
497 BETH Noveck, "Wiki-government: HowTechnology Can Make Government Better,Democracy Stronger, and Citizens More Powerful,”(Washington, DC: Brookings Institution 2009).
498 Amos Tversky and Daniel Kahneman,"Judgment Under Uncertainty: Heuristics andBiases," Science 185, no. 4157 (1974): 1124-1131.
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499 John Cheney-Lippold, "A New AlgorithmicIdentity: Soft Biopolitics and the Modulation ofControl," Theory, Culture & Society 28, no. 6 (2011):164-181.
500 John Cheney-Lippold, "Jus algoritmi: How theNational Security Agency Remade Citizenship,"International Journal of Communication 10 (2016): 22.
501 Colin Daileda “The U.S. Will Start CollectingSocial and Search Data on Every Immigrant Soon,” Mashable, September 2017, https://mashable.com/2017/09/26/us-government-social-media-data-immigrants/.
502 Draft Ethics Guidelines for Trustworthy AI,European Commission, December 2018, https://ec.europa.eu/digital-single-market/en/news/draft-ethics-guidelines-trustworthy-ai.
503 Ibid.
504 Tara McGuinness and Anne-Marie Slaughter,“The New Practice of Public Problem Solving,” Stanford Social Innovation Review, Spring 2019. https://ssir.org/articles/entry/the_new_practice_of_public_problem_solving#
505 Bharath Visweswariah, “Solving India's MostPressing Challenges with Civic Tech,” Medium, May21, 2018, https://medium.com/positive-returns/solving-indias-most-pressing-challenges-with-civic-tech-f2caea4a4c76.
506 “About: ichangemycity,” https://www.ichangemycity.com/about-us.
507 “Next Election: Make It Count!,” https://www.nextelection.com/home.
508 “Civis,” https://civis.vote/.
509 “Building Young India's Champions | Solve ninja,Reap Benefit,” https://reapbenefit.org/
510 “Home.” Village Capital, vilcap.com/.
511 Richard H. Thaler and Cass R. Sunstein, Nudge:Improving Decisions about Health, Wealth, andHappiness, (New York: Penguin, 2009).
512 “C40 Cities | Networks,” https://www.c40.org/networks
513 Stefaan Verhulst, Towards a Science ofGamification and its Relationship to Governance andDemocracy (2018).
514 Nilekani, Nandan ‘Technology to LeapfrogDevelopment: The Aadhaar Experience’ Center forGlobal Development, The Eighth Annual Richard H.Sabot Lecture.
515 “Social Security.” Social Security History, SocialSecurity Administration, www.ssa.gov/history/hfaq.html.
516 This statistic was reported in 2009 by “HighwayFinance Data Collection.” Policy and GovernmentalAffairs Office of Highway Policy Information, U.S.Department of Transportation/Federal HighwayAdministration, www.fhwa.dot.gov/policyinformation/pubs/hf/pl11028/chapter4.cfm.
517 Public Interest Technology is a field dedicated toleveraging technology to support public interestorganizations and the people they serve. Fordecades, public interest organizations have workedto improve the lives of the general public. They workon issues that shape our everyday lives, includingprotecting the environment, human rights, childwelfare, and reforming criminal justice. Source NewAmerica about Public Interest Technology
518 Mawaki, Chango, "Becoming Artifacts:Medieval Seals, Passports and the Future of DigitalIdentity" (2012). The School of Information Studies-Dissertations. Paper 74.
519 Benedict Anderson, Imagined communities:reflections on the origin and spread of nationalism,London: Verso, 1983.
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520 Edward Black, IBM and the Holocaust: The Stratigic Alliance Between Nazi Germany and America’sMost Powerful Corporation. New York: RandomHouse 2001)
521 M Manikandan ‘Fire of 1968 still burning inside’The New Indian Express. Dec 24, 2017
522 1969 Gujarat riots
523 Nellie Massacre
524 1984 Anti-Sikh Riots
525 Hashimpura massacre
526 Laxmanpur Bathe Masacare
527 ‘Timeline of the Riots in Modi’s Gujarat’ NewYork Times, Aug 19, 2015
528 Khairlanji Massacre
529 See Kaur, Jaskaran; Crossette, Barbara (2006). Twenty years of impunity: the November 1984pogroms of Sikhs in India (2nd ed.). Portland, OR:Ensaaf. p. 29. and Rao, Amiya; Ghose, Aurobindo;Pancholi, N. D. (1985). Truth about Delhi violence:report to the nation. India: Citizens for Democracy.Retrieved 4 August 2010.
530 Dabas, Maninder, ‘11 Major Incidents ofViolence Against Dalits Which Show How Badly WeTreat Them’. Indian Times. July 25, 2016
531 A Techno-Utopian strongly believes thattechnology allows mankind to make social,economic, political, and cultural advancements andthat technology’s impacts as extremely positive.
532 Nandan Nilekani and Viral Shah, RebootingIndia: Realizing a Billion Aspirations (Penguin Books,India 2015)
533 This was the case for several of my intervieesfor this research and why I have chosen not todisclose their names. Examples include: Shashidhar
KJ, “UIDAI files FIR against journalist for exposingflaws in Aadhaar enrolment,” Medianama, March 29,2017; Rachna Khaira “Rs 500, 10 minutes, and youhave access to billion Aadhaar details, ”Tribune NewsService Jan. 4, 2018.
534 Interviews with subjects in India whoparticipate in groups to do research and publish theirwork either under the name of someone who hasenough power to reduce the risk they will have a FIR(first information report) filed against them or undera group name.
535 Anand Venkatanarayanan, Security Analysis ofmAadhaar, Oct 30, 2017Derick Thomas, “What UIDAIdoesn’t tell you about offline use of Aadhaar forKYC,” Nov. 18, 2018. Karan Saini, “Extracting personalphone numbers linked to Aadhaar,” May 8, 2018.
536 Zack Whittaker. “A new data leak hits Aadhaar,India's national ID database.” ZDNet/ZeroDay, March23, 2018.
537 Original content by iSpirit https://ispirt.in
538 Cameron, Kim, Laws of Identity See the 4thLaw of Identity. in the Directed Identity: A universalidentity system must support both “omni-directional”identifiers for use by public entities and“unidirectional” identifiers for use by private entities,thus facilitating discovery while preventingunnecessary release of correlation handles.
539 Identification vs. authenticationIdentification isthe process of establishing who an entity is within agiven population or context. It often takes placethrough identity proofing, which verifies and validatesattributes (such as name, birth date, fingerprints oriris scans) that the entity presents.Authentication isthe process of determining if the authenticators(such as a fingerprint or password) used to claim adigital identity are valid – that they belong to thesame entity who previously established theidentity.World Economic Forum, Identity in a DigitalWorld: A new chapter in the social contract, 2017
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540 This scenario was imagined by the AmericanCivil Liberties Union and a short film was created ofwhat this would be like when ordering pizza.
541 Better Identity in America: A Blueprint forPolicymakers, Better Identity Coalition, June 2018.
542 See: Department of Homeland Security, SiliconValley Innovation, Program. ‘Preventing Forgery andCounterfeiting of Certificates and Licenses(70RSAT19R00000002)’, Other TransactionsSolicitations Link to site. Direct link to PDF.
543 Aadhaar: A Biometric History of India’s 12-DigitRevolution by Shankkar Aiyar and The Aadhaar Effect:Why the World’s largest identity project matters byN.S. Ramnath, Charles Assisi.
544 Updates on Aadhaar Final Hearing: Day 1
545 Vidyut, Constitutional validity of Aadhaar SeriesMediaNama
546 Prashant Reddy Thikkavarapu, ‘The Aadhaar BillIs Yet Another Legislation That Leaves Too MuchPower With The Government At The Centre’, Caravan Magazine 14 March 2016
547 Prashant Reddy Thikkavarapu | ‘New AadhaarRegulations Grant The UIDAI Unchecked Power, AndOffer Little Convenience To Users’, November 21,2016
548 The Ecosystem Around Aadhaar mapped byVidyut https://aadhaar.fail/aadhaar-ecosystem/ andDr. Usha Ramanathan’s Talk on the UIDAI Litigation An argument was made by private individuals andprivate companies to allow them to use the data as abusiness database, to use it as an identity platform onwhich many apps would be built. When the case wasunder way, five such businesses came to the court tobe a part of the litigation. They requested the court tonot change anything or their businesses wouldcollapse. The link between businesses and thegovernment in this project was extraordinary.
549 Social Security Administration, Enumeration atBirth
550 Department of Justice About the National VoterRegistration Act
551 Number of rooms, type of room, material of thebuilding construction.
552 Government of Kerala, Aadhaar Application
553 Anand Venkatanarayanan and other securityresearchers have examined the software used forenrollment and in particular the encryption keys usedin the enrollment software.
554 All of these are available on the Internet Archiveversions of UIDAI sites. UIDAI, State Resident DataHub (SRDH) State Adoption Strategy Document v1.2March, 2012. UIDAI Doc Number: UID _603_ECMP,Aadhaar Enrolment Client-Registrar IntegrationManual Pre-Enrolment Data, Security & KYR+ Data.Document Version 2.2; UIDAI, Approach Documentfor Aadhaar Seeding In Service Delivery DatabasesVersion 1.0. 2010; ITE & C Department Govt. ofAndhra Pradesh. State Resident Data Hub SRDH;UIDAI, SRDH Application Deployment Guide VersionNo.1.5; State Resident Data Hub (SRDH) ApplicationFramework Adoption Guidelines; UIDAI,Memorandum of Understanding between the UniqueIdentification Authority of India And the StateGovernment for the Implementation of SRDH Project
555 UIDAI State Resident Data Hub (SRDH), StateAdoption Strategy Document v1.2, March, 2012 IDAIPortal and allows a Registrar to access ONLY its ownKYR data – hence, a State Registrar cannot accessdata enrolled by Non State Registrars.
556 UIDAI Data Sharing Policy Annexure-B,Memorandum of Understanding between the UniqueIdentification Authority of India And the StateGovernment for the Implementation of SRDH Project.
557 U Sudhakar Reddy, “Aadhaar-linked SRDH Datawas shared in the past,” Times of India Mar. 9, 2019.
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558 Digital India Site: Kerala State Resident DataHub Lookup Service
559 UIDAI, Standard Protocol Covering theApproach & Process for Seeding Aadhaar Numbers inService Delivery Databases June 2015 Version 1.1
560 The same person may have many differentnames or variations of name based on context. It isalso true that different parts of India have differentnaming conventions. Naming Conventions In India,RitiRiwaz, Aug. 2, 2018, Naming Traditions: How toName Babies in India Last Updated on Sept. 12, 2017by Team Babygogo,
561 Subjects I interviewed in India went into greatdetail explaining how the name on their birthcertificate was their grandfathers and matched whatwas on their marriage certificate but this wasdifferent from the name they had on all their schoolrecords and this was different from how they listedtheir name on government documents like PANcards.
562 Niha Masih Lost in transition: Has linkingAadhaar to government welfare schemes made itdifficult for beneficiaries to avail of aid? HindustanTimes Oct. 08, 2017; Namita Singh Centre: Statesneed to speed up Aadhaar seeding with benefitschemes, MediaNama, Nov. 12, 2018; Reetika Khera,Impact of Aadhaar in Welfare Programmes. Thegovernment's estimates of savings are examined, butthese do not stand scrutiny. What passes as 'savings'is often the result of denial of legal entitlements forlack of Aadhaar. In that sense, the Aadhaar projectundermines the right to life.
563 Feggins, R. DevOps Best Practice - Establishinga “Single Source of Truth,” July, 14, 2014.
564 Government of Odisha, State Resident DataHub. http://archive.is/wBrqeOdisha SRDH is acentralized, secure & single source of information onstate residents and will be integrated withdepartmental applications for the purpose of availingGovernment Welfare Scheme benefits.
565 United States Government GovernmentAccountability Office,Social Security NumbersFederal and State Laws Restrict Use of SSNs, yetGaps Remain, Testimony Before the Committee onConsumer Affairs and Protection andCommittee onGovernmental Operations, New York State Assembly,Statement of Barbara D. Bovbjerg, SOCIALSECURITY NUMBERS, Federal and State LawsRestrict Use of SSNs, yet Gaps Remain, For Releaseon Delivery Expected at 10:30 a.m. EST Thursday,September 15, 2005.
566 Meiser, Ken, Opening Pandoras Box: The SocialSecurity Number from 1937-2018, 2018. (master’sthesis)
567 Sarah Igo, the Known Citizen: A history ofPrivacy in Modern America
568 Sawyer and Schechter, “Computers, Privacyand the National Data Center” 811. In the KnownCitizen: A history of Privacy in Modern America bySarah Igo
569 The cover story on the Atlantic in November1967 was The National Data Bank; They July 1970News Week Cover Is Privacy Dead; The ComputerData Bank: Will it Kill your Freedom, July 1968 LookMagazine.
570 UIDAI, ‘State Resident Data Hub (SRDH)Institutional Framework Document’, April 2012. SeeSection 2.1.3.1 UIDAI Empanelment List
571 Government of Telegana, Intensive HouseholdSurvey 2014
572 Aman Sethi, ‘Why state data hubs pose a risk toAadhaar security’, Hindustan Times, March 13, 2018
573 Social Security Number Task Force, SocialSecurity Administration, Report to the Commissioner(1971)
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574 Records, Computers and the Rights of Citizens,Report of the Secretary's Advisory Committee onAutomated Personal Data Systems July, 1973
575 See Robert Gellman, Fair Information Practices:A Basic History
576 U.S. Department of Justice, United StatesDepartment of Justice Overview of the Privacy Act1974, 2015 Edition
577 Meiser, Ken, Opening Pandora’s Box: The SocialSecurity Number from 1937-2018, 2018. (master’sthesis)
578 Personal Privacy in an Information Society, TheReport of The Privacy Protection Study Commission,July 1977
579 Chapter 16: The Social Security Number.Personal Privacy in an Information Society, TheReport of The Privacy Protection Study Commission,
580 Meiser, Ken, Opening Pandoras Box: The SocialSecurity Number from 1937-2018, 2018. (master’sthesis)
581 Meiser, Ken, Opening Pandoras Box: The SocialSecurity Number from 1937-2018, 2018. (master’sthesis)
582 Better Identity Coalition, Better Identity inAmerica: A Blueprint for Policy Makers, 2018. Page 4.accessed
583 E-Government Act of 2002 (Pub.L. 107–347, 116Stat. 2899, 44 U.S.C. § 101, H.R. 2458/S. 803)
584 M-03-22, OMB Guidance for Implementing thePrivacy Provisions of the E-Government Act of 2002
585 Congressional Research Services The SocialSecurity Number: Legal Developments Affecting ItsCollection, Disclosure, and Confidentiality, Feb. 21,2008State Department Report to Congress on SocialSecurity Number Fraud Prevention Act 2017
586 Laws currently being proposed would onlyapply to the private sector.
587 Consumer Identification Program 31 C.F.R1020.220
588 The Privacy of Financial Information 12 C.F. R. pt332 and the Interagency Guidelines EstablishingInformation Security Standards 12 C.F.R. pt 364. App.B (and corresponding regs) together with severallaws mandating reporting to consumers of mis-useand theft of their information; Disclosure by CRA ofConsumer File to Consumer; Free Annual Report; 15U.S.C. §§ 1681g, 1681h, 1681j(a); 12 C.F.R. pt. 1022,subpart N. Duties of Consumer Reporting AgenciesRegarding Identity Theft 12 C.F.R. § 1022.123
589 FATF - http://www.fatf-gafi.org
590 Indian Postal Addresses, Real Addresses takenfrom Kamat's Address Book,
591 Nandan Nilekani and Viral Shah, RebootingIndia: Realizing a Billion Aspirations (Penguin Books,India 2015) Page 113-120
592 There are a few limited cases such as privateinvestigators, for example, can run license plates ifthey are in the course of an investigation. Towingcompanies can run a license plate to locate theowner of a towed vehicle.
593 I worked with advocates in India to surveypeople to create a list of how and where thishappens. This was an informal survey via Twitter toget a sense of the range of every day activities thatrequire photocopies of Aadhaar Cards - https://twitter.com/godavar/status/1112556629390692353?s=19Patient transfer between hospital dfKotakMahindra Bank Mobile App for updating mobilenumber.private hospitals like #RNTagoreHospitalsAllbanks ask for #Aadhaar photocopiesnew SIM card inChennaiprivate and public schoolsA workshop onDigital marketingRooftop gardening lecturedemoHAM Radio classesVoter Idapplicationinsurance of many typesshare
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market,Office HR deptMedical insurancerenewalPassport office during renewalPost office,when creating new post office schemes like NationalSaving CertificatesPAN card data correctionCellphone connection - AirtelVodafone while upgradingSIMElectoral Bond purchaseIndane gas agency forKYC. Sundaram Motors Honda dealer processinginsurance claimTCS World 10k Race,BengaluruTamilnadu Ration (TN EPDS)the DTDCcourier took my Aadhar card photocopy whilesending one package outside India - claimed theauthorities at the airports are asking them to submitit as one of the required documents.Livpure ROwater purifier.Central University of HimachalPradesh. For admission related paperwork.
594 As stated on their website: “Anyone whoknowingly and willfully uses SSNVS to request orobtain information from Social Security under falsepretenses violates Federal law and may be punishedby a fine or imprisonment, or both.” BusinessServices Online BSO Suite of Services Page”
595 EPFO Scheme How to Link Aadhaar Card WithEPFO & UAN Account 2018
596 Aadhaar Enabled Biometric AttendanceSolution (AEBAS) is an attendance managementsystem designed for government organizations byGovernment of India to improve productivity ofemployees. The system authenticates attendanceusing Aadhaar number created by UniqueIdentification Authority of India (UIDAI). It is a cloudbased BAS that monitors attendance of governmentemployees in real-time.
597 Stephen Cobb, Data privacy and dataprotection: U.S. law and legislation:an ESET WhitePaper. 2016
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