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A scenario: The need of data access from other countries
Consider a scenario where a crime is committed in India and the suspect and victim are both Indian citizens. If the suspect used a U.S.-based messaging service to plan the crime, an Indian officer investigating would have to raise a request for data to the U.S. government where it is stored
Why data is rendered inaccessible?
- Data is broken into pieces: Popular service providers increasingly store electronic communications in the cloud, breaking the data into “shards” and distributing the data across different countries
- Companies do not store data locally: While these companies offer services in India, they do not store the data locally
- No law to grant access to foreign law enforcement agencies: The current U.S. law prohibits service providers from disclosing user data to foreign law enforcement agencies.
Clarifying Lawful Overseas Use of Data Act (CLOUD Act): recently signed by US
- This act will enable the U.S. government to enter into agreements with like-minded states for cross-border data sharing
- This will allow law enforcement agencies from these states to directly obtain electronic data, held by communication service providers headquartered in the U.S., to combat crime
Why India needs a better system for accessing data?
- India in the first half of 2017 requested data from Facebook 9,853 times, of which only 54.3% were met
- Companies like facebook provide only basic user information, however investigating agencies more than often need more information than that
- India-U.S. Mutual Legal Assistance Treaty: Currently, an officer in India would have to make a request for electronic data under the India-U.S. Mutual Legal Assistance Treaty to access content data held by a U.S. company
- This process is time consuming: This process has often been criticised by the Indian police for being time consuming, sometimes even taking as long as three years, as well as being cumbersome and outdated.
Effect: India will soon push for agreement with US
New Delhi, on the back of this development, will soon push for an India-U.S. data sharing agreement to serve the interests of its law enforcement and, more importantly, to make headway in the global cyber norms conversation
- Direct access to a company under CLOUD Act: An Indian officer for the purposes of an investigation will no longer have to make a request to the U.S. government but can approach the company directly.
But there are conditions for foreign states wishing to sign data sharing agreement with US
Protection of privacy and civil liberties: The U.S. requires the foreign states to share a common commitment to the rule of law and the protection of privacy and other civil liberties
US Attorney general to verify: India would be considered to satisfy these requirements based on a determination by the U.S. Attorney General.
An established procedure: India will need to ensure that its authorities collect, retain, use and share data as per an established procedure
Review by court: In addition, Indian laws must provide for electronic data requests to be reviewed by a court or other independent authority
Conclusion
As of now, India falls short of these requirements. However, with the government looking to legislate on a new data protection law, this can soon change.
