Experts contend that as the personal data, collated and harnessed by the tech company is freely available in public domain, it is unlikely to come under the ambit of the Information Technology Act. Moreover, as the information does not appear to be ‘secret official data’, the Official Secrets Act, 1923 – the law that covers espionage related issues – may not apply in this case.
They point out that the case reflects the gaping hole in our law - as it stands. “Profiling of data principals is an activity meant to be strictly regulated by a dedicated data protection law which lays down restrictions on profiling, and makes profiling (without the necessary consent, and without safeguards) not just a civil wrong, but a punishable offense,” says Bharat Chugh, former judge, and Supreme Court advocate.
Udbhav Tiwari, public policy advisor at Mozilla, too feels that the recent events have provided further evidence of the dire need for a strong data protection law in India. “It is the only effective way to hold entities which leak personal information in the public domain (without the consent of impacted individuals) accountable for their actions,” he says. The government should focus on enacting the draft Data Protection Bill
at the earliest, experts add.
However, that is just the first step towards protecting personal data of individuals from prying eyes from across the border. Experts point out that Section 2(A)(c) of the proposed bill tries to answer this concern by making the proposed data protection law extra territorial. “It will also regulate processing of personal data/profiling anywhere in the world if it concerns profiling of data principals within the territory of India,” says Chugh.
However, enforcement of such a provision is a different matter altogether. One way forward, experts note is to put in place necessary Mutual Legal Assistance Treaties/Conventions/Arrangements obligating other countries to co-operate and bring offenders to the book. That, of course, is easier said than done with respect to countries such as China, they add.