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India’s Data Protection Bill in Geopolitical Context

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In July 2018, India鈥檚 Ministry of Electronics & Information Technology of its Draft Personal Data Protection Bill. The objective was to develop legislation to 鈥渆nsure growth of the digital economy while keeping personal data of citizens secure and protected.鈥 Now, the bill is headed to Indian parliament.

As the world鈥檚 largest democracy, and with a burgeoning technology sector, India鈥檚 emergent position on data privacy and data governance stands to have worldwide impacts on commerce, innovation, and geopolitical competition writ large.

So what does this do? Broadly, it rules and requirements around data sovereignty (a state鈥檚 right to control the data in its own borders, as part of its overall sovereignty) and data localization (requiring data on certain persons to be stored within certain borders). One section of the draft document data localization requirements for those storing and processing data on Indian citizens, regardless of whether they are based or operating within Indian territory. In some ways, this is similar to data localization requirements in GDPR, the EU鈥檚 General Data Protection Regulation. Other cover issues ranging from how to think about defining consent to classifying information like caste as 鈥渟ensitive data.鈥 In sum, the document sets out in broad strokes some of the components of an Indian data privacy framework.

The reception to the bill has been mixed. On the one hand, Indian data protections can be seen as pushback against 鈥溾 by Western tech firms, a new form of 鈥溾 where citizens鈥 data is harvested by foreign companies without leaving those citizens, or even their country writ large, any share of the profits. This data colonialism can result in serious between foreign companies and the Indian government, sometimes to the detriment of domestic innovation when a few select firms control the bulk of access to online services and data collection. As one stakeholder , 鈥淚ndia has grown rich in data before in its economy. There is a need to make sure that this data is mined for Indian and not foreign interest.鈥 In this way, one of the bill鈥檚 objectives, Arun Mohan Sukumar from India's Observer Research Foundation points out, is to give 鈥渄ata fiduciaries鈥 the power to 鈥渞eturn鈥 data collected by foreign firms to Indian citizens, and give domestic firms a leg up on other players in the global market.

On the other hand, American tech companies have over the data localization element鈥攕aying requirements to store data locally could hurt local and foreign firms and 鈥渘egatively impact the flow of foreign investments.鈥 Other analysts have this element of the bill, and expressed fears over weak safeguards against state access to locally stored data. Shashi Tharoor, a member of India鈥檚 parliament and former U.N. under-secretary-general, has about the need for a 鈥渞obust data protection law,鈥 while simultaneously critiquing Prime Minister Modi鈥檚 鈥減attern of seeking more and more digital control over and surveillance of its people.鈥 For it鈥檚 not just foreign companies storing Indian citizens鈥 data that could be impacted, but 鈥攚ith many to the bill鈥檚 failure to clearly delineate who owns data, the user or the platform. This marks one way in which the bill departs from the EU鈥檚 GDPR, which clearly puts the ownership of data in the hands of the data subject. The Indian draft law has yet to decisively provide an answer to this question.

As such, it鈥檚 still unclear how the draft law will be implemented. Like with any democracy, and especially given India鈥檚 size and current political environment, there are many stakeholders with skin in the game here, such as foreign technology firms, domestic companies, state governments, internet freedom organizations, and Indian citizens. Yet the geopolitical impacts of India鈥檚 emerging stand on data governance cannot be overstated.

Data governance, as Samm Sacks and I recently , is an increasingly important element of contemporary geopolitical competition. The 1s and 0s that flow across the internet underpin everything from banking transactions to social media personalization. Data generated by machines and humans alike can be used to train AI systems that are poised to by revolutionizing everything from military command-and-control to urban transportation. Data governance regimes (laws, regulations, standards, etc.) that control access to potential AI training data in other countries鈥攁nd that contribute to broader moderation of foreign companies鈥 market access writ large鈥攁re poised to have widespread impacts on global commerce and tech competition, with implications for national security. Now, India finds itself at the heart of this global emergence of data governance in geopolitical competition.

India is the world鈥檚 largest democracy and, although the pace of economic growth has slowed, the country nonetheless has a . As such, the country holds an important position: a key global influencer on technology norm-setting, a growing player in the global technology sector, and a large potential market for foreign technology firms.

On the democratic norm side, India is an important stakeholder in global conversations about how democracies should balance tech regulation questions around privacy, national security, innovation, and other issues. To quote Arindrajit Basu from India鈥檚 nonprofit Centre for Internet & Society, India 鈥渉as clearly established an appetite to regulate Big Tech鈥 through a 鈥渟lew of policies鈥 not just constrained to this bill. India鈥檚 and are other pieces of the puzzle currently in the works. The country also has the potential, Basu adds, to 鈥渃ement itself as an incubator of responsible, thoughtful, and efficient tech policy for the world鈥攊n a manner that safeguards its core strategic interests.鈥 Indeed, India鈥檚 domestic example-setting and international norm engagement will help chart the future for emerging economies.

On the economic side of things, India has a burgeoning technology sector, with Bangalore regularly the Silicon Valley of India. A number of government initiatives to fund and encourage startups have with the aim of leveling the playing field to compete with foreign firms. The Department for Promotion of Industry and Internal Trade鈥攊n yet another example of the country鈥檚 focus on growing its domestic technology ecosystem鈥 a dedicated fund for Indian startups operating in certain priority sectors. All of these changes are not without challenges and unequal distribution (i.e., ), but the role Indian technology companies and its technology ecosystem writ large play in global tech competition is hardly constrained to outsourcing, as some in the West might stereotype. There are also internet users within India鈥檚 borders, second only to China; it鈥檚 a potentially enormous market in which many foreign technology firms desire to gain and hold ground.

鈥淲e don鈥檛 want to build walls,鈥 secretary of telecommunications Aruna Sundararajan The New York Times, 鈥渂ut at the same time, we explicitly recognize that data is a strategic asset.鈥 She has this part of a broader plan to catalyze the 鈥渞ise of Indian tech companies.鈥 India鈥檚 information technology and telecom minister has similarly that Indian data sovereignty is 鈥渘on-negotiable鈥濃攖hat while 鈥渟ome degree of data movement is important in a digital world鈥 [it] will be based upon reciprocity and understanding.鈥 All to underscore the fact that India recognizes the geopolitical importance of its data policies, and that it won鈥檛 just hinge its decision-making around these issues on the desires of Western tech companies.

India is not alone in confronting these challenges. As many countries鈥攊ncluding the likes of the , , , and China鈥攁ttempt to balance privacy, innovation, and national security in various ways with respect to data鈥攁nd, insofar as data plays a role in AI development, with respect to AI regulation as well鈥擨ndia is both aiming to put a flag in the ground and find its own way.

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Justin Sherman
Justin Sherman
India’s Data Protection Bill in Geopolitical Context