Cambridge Analytica row: Taking Indians for a ride

Emotions are high across the world after it came to light that the UK-based company Cambridge Analytica did data mining from Facebook, and as a result, electoral campaigns of several countries were compromised. The Guardian has revealed Cambridge Analytica’s 27-page blueprint showing usages of not only of Facebook, but also of Google, Snapchat, Twitter, and YouTube, which helped Donald Trump emerge victorious in 2016 US elections.

The US episode has also raised serious questions about the data security of 48 crore Internet users and the sanctity of electoral process in India. It is unclear under what provisions the Indian Government is exercising its jurisdiction by asking six questions to Cambridge Analytica, which is a foreign company. It is preposterous that no notice has yet been sent to OBI that is part of the same group to which Cambridge Analytica belongs. Trump’s former chief strategist and former Vice President of Cambridge Analytica, Steve Bannon, has accused Facebook of selling users’ data. From the notice, it looks that the government wants to absolve Facebook with the plea that Mark Zuckerberg has apologised and promised to take tougher steps for data protection.

Ever since the days of revelation of PRISM by Edward Snowden, India knew that social media data is not secure. Nine big Internet companies like Facebook, Google, Skype, Microsoft and others were alleged to have shared more than 6 billion pieces of sensitive information of Indian government and users with the US intelligence agency NSA. Instead of taking action against these companies for compromising India’s national security, neither the UPA nor the NDA regime took any step to alleviate this issue but offered these giants laissez-faire regime in the name of IT revolution. While in PRISM, the data was alleged to have been shared by the companies themselves, Cambridge Analytica profiled the data of users and their friends with a commercial understanding of Facebook. 

Time and again it has been seen that foreign Internet companies have not been abiding by Indian laws. The debate has been renewed with allegations that the NaMo and With INC apps are sharing data outside India. For past many years, huge Government data is continuously going and is being processed outside India in violation of Public Records Act, 1993 but there is no action in this regard. Failing to implement a law to stop the illegal outflow of government data, it is really worth questioning what the proposed privacy law can achieve? As per I.T. Intermediaries Rules, 2011, and directions of Delhi High Court, Facebook was compelled to appoint Grievance Officer for India in 2013 but the officer was placed in Ireland. If the Government is commanding enough to summon Zuckerberg, surely it can compel Facebook to place a Grievance Officer for India in India?

The present Government gave a real spring to governance through social media and almost all its agencies are present on Twitter and Facebook. Each post and usage of social media sends out data like the location, device type, usage time and obviously the nature of posts to companies that store all such data abroad for big data analysis which compromises the sovereignty of India. The dangers of having Government data processed are exemplified in the form of lobbying and also the chances of foreign powers interfering in strategic areas and elections in India. Processing of data of social media users is not something unknown to the Government. In fact, the National Disaster Management Authority has partnered with Facebook to utilise such data. As part of the understanding, Facebook will anonymously analyse the nature of posts made by users in a particular area and share such data with the Government in order to support disaster management. While this step seems noble and useful, the same tools are now threatening the democratic setup. The threat to democratic setup was thwarted by our representation to Election Commission of India in 2014 when it had sought to partner with Google. Four years later, the dangers have come to the fore, that too in full glory, prompting Chief Election Commissioner to review all existing ties with Facebook.

Facebook, Twitter, and Google have minted billions by making unlawful usages of data of Indians, the benefits of which should rightfully stay in India. If the Government is at all serious, besides Cambridge Analytica, it should also ask Facebook and other social media companies to submit the account statements of the last ten years with details of data-sharing of Indian users. A forensic audit of the same may reveal, who has paid how much to whom and for what! In politics over data, we should not forget that foreign Internet companies have a yearly turnover of around Rs 20 lakh crore from Indian business operations. The real problem can only be tackled if such companies are duly taxed and their servers installed in our country, keeping in with the push for ‘Make in India’. Data is the new oil and we are manufacturing it at an unparalleled level to make India as biggest centre of data usages. Clause 16(1) of Facebook’s Terms for Indian users reads, “You consent to having your personal data transferred to and processed in the United States.” Can the Government really tackle this at all at a time when a substantive discourse on this is lacking across the political spectrum?

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal