The news report that Personal profiles of 50 million Face Book users was collected and unauthorizedly used to help Trump win an election has opened a new debate on Privacy and Data Protection in India. BJP and Congress parties are fighting on TV to blame each other that they are also indulging in a similar misuse of personal data while the local subsidiary of Cambridge Analytica (CA) which is the firm accused of the misuse claims to have served both BJP and Congress in different elections.
Much of the debate that is happening in this connection appears to be dishonest and hypocritical and the bluff has to be called.
We must first recognize that the CA is supposed to have collected the data through an App which was voluntarily downloaded by users who gave a consent for the access of their personal information. The person who collected the information based on the consent provided used it as a data for some kind of research for targeted advertising. The research was bought by Trump’s campaign managers and hopefully he was benefited.
Just as in India anything done by Modi is objected to, the Anti Trump brigade is accusing as if US election was tampered because of the profiling of the consumer research company and the targeted advertising for which it was used. Even if the firm had done a “Psychological Profiling” from the data available, as long as the data was in the public domain or out of an informed consent, there is no breach of Privacy. There are FinTech companies who do data analytics for fixing credit limits and if data analytics is used to create innovative advertising, it is neither a surprise nor some thing to be scoffed at.
This sort of data collection from public resources or from informed consent cannot be objected to just because we donot like Mr Trump winning.
If there is any real objection, one has to go into the fact of whether the “Informed Consent” was actually through a fraud and if so the data collector namely the British academic “Aleksandr Kogan” has to be brought to book.
Presently all Privacy Laws place faith on such consents. But if the Data Collector breaches the agreement and sells the data to another person who uses it for a purpose other than the purpose for which it was provided, it has to be objected to only on grounds of “Breach of Contract, Breach of trust” etc.
As regards the third party who bought to the data, data protection acts need to impose a “Due Diligence” obligation to disclose and get consent from the data vendor that the purchased data can be used for a specific purpose. Since “Advertising” is a legitimate purpose, if the data collector offers a data for advertising to an advertiser and the advertiser may buy it under the premise that the data subject must have provided the necessary consent.
Is the secondary data user expected to check if the original consent provided to the data collector permits such use or not is a matter yet to be clearly defined in law though it could be an ethical and moral issue. Also in many cases, even the buyer may not be aware how exactly he is going to use the data and how he can benefit from it. He may be simply buying it speculatively and discover some value added derivatives out of it which he may trade.
It is therefore hypocritical for us to express surprise that FB data could be used for profiling and profiled information can be used for advertising and such advertising could be for political campaigns. All this has to be expected in the era of Big Data anaytics and Artificial Inteligence.
In fact while the laws of privacy so far have missed the need to impose “Due Diligence” by the secondary user of personal data and this can be taken note of and included in the Indian Data Protection Laws, we can draw attention to Section 66B of the ITA 2008 which provides a possibility for “Stretching the legislative intent indicated in the section” to cover the misuse of data. Section 66B is actually meant for punishing the use of stolen computers and mobiles and uses the term “dishonestly receives and retains any stolen Computer Resources”. If we can consider data as a computer resource and the act of use of data for a purpose other than what it was meant as “Stealing”, then Section 66B can be stretched to the data misuse scenario though it is not recommended.
May be the Justice Srikrishna panel may include a clause that
“Any user of personal data shall exercise due diligence to ensure that the purpose for which it may be used is consistent with the consent provided”
Perhaps this is the lesson we can take out of this incident apart from what we have already discussed as to the need of an intermediary called “Data Trust” in the Data Protection environment.