DATA PROTECTION AND 5G: THE NEED FOR A STRONG DATA PROTECTION LAW BEFORE THE ROLL OUT OF 5G IN INDIA

In this post, the author has discussed the need to have a strong data protection law before the launch of an important and ambitious technology such as 5G which appears to be a potential game-changer for the Indian economy.

India is taking various steps towards realizing its dream of becoming a truly digital economy. The vision of the implementation of 5G soon is one of the ambitious and significant aspects of this whole idea. The launch of 5G will act as a game-changer in the world of information and technology. It will not only be a golden opportunity to empower the national economy but will also help in providing better facilities to the citizen and their subscribers. However, there are some basic questions in the minds of the public, and a group of people is quite skeptical in this regard. There are issues such as what is 5G and what is so unique about it, what will be the impact of 5G on the telecom sector and the Indian economy as a whole, what will be the legal hurdles before rolling out the 5G amongst others are being asked regularly. In this article, we will be dealing with India’s Quest with 5G Technology with an emphasis on the question “why we need to have a strong data protection law before the launch of an important and ambitious technology such as 5G which appears to be a potential game-changer for Indian economy?”

What is 5G?

5G is the 5th generation cellular network technology. It can be seen as a follow up to earlier cellular technologies such as 2G, 3G, and 4G. It will play a key role in transforming the dream of smart India with smart cities and digital India. 5G promises to provide advanced internet experience to the users by giving them Giga speeds and at an affordable cost range. 5G will not only do all the current tasks but will also connect a vast network of sensors, autonomous vehicles, and many other technologies by way of sophisticated practices such as artificial intelligence.

India’s preparedness for 5G connectivity

India’s digital economy may reach USD 5 trillion in the next few years.[i]And an important reason behind it will be the growth of India as the largest selling smartphone country in the world and the growth in a number of people using social media along with various other digital services. These are the main reasons that India as a potential superpower is in the race to become a large digital economy.

Since the year 1995, when the cellular mobile service was first launched in India, mobile networks have been an engine of digital transformation. And now today when a plethora of developed countries are looking to adopt 5G soon, India also appears to be all set to adapt and implement the 5G network shortly.

However, before implementing the 5G, we should also consider the challenges that India is facing currently. Data protection is one of it, it is important to have a law to regulate the protection of data that appears to be significant in this high-speed world of 5G. There are ongoing cybercrimes, hackings, trading, and instances selling of personal data to the third party. There have been growing concerns with the aspect of the security of sensitive personal data and the whole debate with respect to data localization of data. In an era where statements such as data is the most valuable asset on the earth, Data protection is a burning question in India as well, and various phone operators have cautioned the government about the security concern over the data protection before implementing the 5G in India.[iii]

It is said that what oil used to be in the previous century, data is in this. Data, as we know, has now become an immensely valuable and precious resource in the world, so processing of any data must be implemented while understanding national and international security. Not just India, even powerful countries such as the USA recently was in controversy with the case of Cambridge Analytica for stealing personal data.[iv]The the controversy was about influencing the behavior of voters in the 2016 USA presidential election campaign that episode awakens the citizens of the USA to fight for their privacy right, and a lot of hue and cry was made. Even the European Union adopted the General Data Protection Regulation (GDPR) in the year 2016[v], which will regulate data protection in European Union Countries. However, the same cannot be said about India. Unfortunately, we are far behind in the race of information and technology, the critical question today should not be about getting high-speed internet facility but a substantial provision for the strict data protection law. In this process, Huawei and other 5G operator’s assurances to India for data protection should be strictly examined.

The digital revolution had a significant impact on India’s GDP and will continue to do so. This digital revolution, on the one hand, helped an individual to connect to the whole world with the help of a smartphone and mobile phones while on the other hand there is nothing personal left for an individual once he enters the digital world. It is also concluded by various reports that online companies are trying to steal the personal data information for their benefit to know the customer well and to understand their wants and needs.[vi]All these require greater scrutiny and a strong data protection law is the need of the hour.

Why do we need a Data Protection Law in India?

The apex court of India in the case of K.S. Puttaswamy vs. Union of India [vii] held that the right to privacy is a fundamental right under article 21 of the constitution of India. Still, unfortunately, we do not have proper laws for data protection in India till now. The process for formulating a data protection law began a couple of years ago. The current status is that we have The Data Protection Bill 2019[viii] which is pending in the parliament.[ix]The bill has been sent to a standing committee that is pondering over its provisions currently.[x]

Personal data may be used by the criminals and ethical hackers for their benefits, and there is no provision for prohibiting these types of cybercrime. The Personal data protection bill 2019, was formulated for this purpose, The PDP bill with some changes as compared to the 2018 bill was finally produced in the parliament. The bill has a wide range of provision which is the need of an hour. “Data” as formally defined means and includes any representation of information, concepts, opinions, facts or any instructions in any manner suitable for communication, interpretation, or processing by humans or by automated means;[xi] It also described various sensitive personal Data including, password, health data, sex life, biometric data, financial data and various other sensitive data like religious and political beliefs and one of the most important in this Bill is about the right to be forgotten.

Data protection laws are much needed before the 5G technology and in this data protection bill will be crucial for the protection of data. This law will be covering territorial and extraterritorial cases and the processing of personal data only in India. Hence, before the next G in the telecom sector comes, we all need strict data protection law.

Critical Analysis and concluding remarks

Although Companies such as Nokia and Huawei have advocated the rolling out of 5G as soon as possible citing the architecture of 5G as much more secure compared to earlier technologies because of its distinctive architecture, it is also said that the encryption of 5G could only be broken through quantum computers which in itself is a thing of future. However, it is essential to note that every revolution requires a regulation which this revolution of 5G will also need. Therefore the concerns raised by the experts concerning security hold more value over the arguments of companies who are in favor of fast-rolling of 5G.In our opinion, every concern of every stakeholder should be addressed before taking any major decision in this regard. In a global scenario where there already is a bitter rivalry going on between USA and China over the role of Huawei in this whole saga where the proposition is with respect to 5G and data protection[xii], India should keep its cards close, and play safe, It is important for us to bring in the data protection bill first. Once the data protection bill is enacted concerns such as data portability, data localizations and any breach of data security will automatically fall under its ambit which will be the law of the land — therefore paving the way for smooth rolling of 5G technology.

References:

[i] https://economictimes.indiatimes.com/news/economy/finance/investment-key-to-india-becoming-usd-5-trillion-economy-in-five-years-cea/articleshow/71322635.cms [ii]https://www.google.com/search?q=Data+is+the+most+valuable+asset+on+the+earth&oq=Data+is+the+most+valuable+asset+on+the+earth&aqs=chrome..69i57j0.709j0j7&sourceid=chrome&ie=UTF-8

[iii] https://economictimes.indiatimes.com/industry/telecom/telecom-news/security-concerns-should-be-addressed-before-adopting-5g-airtel/articleshow/70529210.cms?from=mdr

[iv]https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html

[v] https://edps.europa.eu/data-protection/data-protection/legislation/history-general-data-protection-regulation_en

[vi] https://www.theguardian.com/technology/2016/aug/31/personal-data-corporate-use-google-amazon [vii]https://www.supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf

[viii]The Personal Data Protection Bill, 2019, Available at. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf

[ix] https://www.prsindia.org/billtrack/personal-data-protection-bill-2019

[x] https://www.prsindia.org/billtrack/personal-data-protection-bill-2019

[xi] Section 2(11), The Personal Data Protection Bill,2019 [xii]https://www.google.com/search?q=Data+is+the+most+valuable+asset+on+the+earth&oq=Data+is+the+most+valuable+asset+on+the+earth&aqs=chrome..69i57j0.709j0j7&sourceid=chrome&ie=UTF-8


Submitted by:

Raja Reeshav Roy and Prince Pathak,

National Law University, Jodhpur


(Images used for representative purpose only)

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