From Jodhpur to Telangana: Navigating the Web of Misinformation in Diverse Incidents

Introduction

Assisted Reproductive Technology (“ART”) refers to a diverse set of medical procedures designed to aid individuals or couples in achieving pregnancy when conventional methods are unsuccessful. This umbrella term encompasses various fertility treatments, including in vitro fertilization (IVF), intrauterine insemination (IUI), and gamete and embryo manipulation. ART procedures involve the manipulation of both male and female reproductive components to facilitate conception.

The dynamic landscape of data flows within the healthcare sector, notably in the realm of ART, demands a nuanced understanding of the complex interplay between privacy regulations and medical practices. In this context, the Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011, play a pivotal role, designating health information as "sensitive personal data or information" and underscoring the importance of safeguarding individuals' privacy. This sensitivity is particularly pronounced in the ART sector, where an array of personal data, ranging from medical records to genetic information, is collected and processed. The recent Assisted Reproductive Technology (Regulation) Act, 2021, in conjunction with the Digital Personal Data Protection Act, 2023, establishes a framework for the regulation of ART clinics and banks, presenting a layered approach to data protection.

A note on data generated by ART

Data flows in any sector are scarcely uniform and often not easily classified under straight-jacket categories. Consequently, mapping and identifying data and its types become pivotal. It is believed that most data flows in the healthcare sector are highly sensitive and personal in nature, which may severely compromise the privacy and safety of an individual if breached. The Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011 (“SPDI Rules”) categorizes any information pertaining to physical, physiological, mental conditions or medical records and history as “sensitive personal data or information”; this definition is broad enough to encompass any data collected by any ART facility or equipment. These include any information collected during the screening of patients, pertaining to ovulation and menstrual cycles, follicle and sperm count, ultrasound results, blood work etc. It also includes pre-implantation genetic testing on embryos to detect any genetic abnormality. 

But data flows extend beyond mere medical procedures and technology. Health data also involves any medical procedures undertaken, the amount of medicine and drugs administered during any procedure, its resultant side effects, recovery etc. Any processing of the above-mentioned information, in turn, may generate more personal data points relating to an individual’s political affiliations, race, ethnicity, genetic data such as biometrics and DNA etc.; It is seen that different ethnicities and races react differently to the same/similar medication and have different propensities to genetic diseases. Further, it is to be noted that data is not only collected by professionals but also by intelligent equipment like AI which may be employed by any facility to render their service. Additionally, dissemination of information under exceptional circumstances (e.g. medical emergency) also affects how data may be classified. Considerations are further nuanced when the fundamental right to identity of a child conceived and born via ART may be in conflict with the fundamental right to privacy of a donor to remain anonymous. 

Intersection of Privacy laws and ART laws: 

In India, ART technology is regulated by the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”). With this, the Union aims to regulate and supervise assisted reproductive technology clinics and ART banks, prevent misuse and ensure safe and ethical practice of assisted reproductive technology services. When read with the Digital Personal Data Protection Act, 2023 (“DPDP Act”) and other ancillary guidelines, the two legislations provide some framework regulations for the digital privacy of health-based apps.

The ART Act establishes a National Assisted Reproductive Technology and Surrogacy Registry (“National Registry”) which acts as a central database for all clinics and banks and their nature of services. The Act also establishes a National Assisted Reproductive Technology and Surrogacy Board (“National Board”)  under the Surrogacy Act to monitor the implementation of the act and advise the central government on policy matters. It also supervises the functioning of the National Registry, liaises with State Boards and curates a code of conduct for professionals working in ART clinics and banks. Under the DPDP Act, these bodies (i.e. National Board, State Board, ART clinics and banks) are most likely classified as data fiduciaries (primarily clinics and banks), data processors (these may include National Board and State boards) or an amalgamation of both (these include any appropriate authority established under the ART Act for investigation of complaints, suspend or cancellation of registration of clinics etc.) depending on the nature of work undertaken by them. If so classified, then the duties and liabilities of data fiduciaries and processors would necessarily apply to these bodies. As a result, all bodies would necessarily have to adopt Privacy Enhancing Technologies (PETs) and other organizational measures to ensure compliance with privacy laws in place. This may be considered one of the most critical considerations of any ART facility since any data collected by them would be sensitive personal data pertaining to health, regulated by the Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011 (“SPDI Rules 2011”). These rules provide for how sensitive personal data or information are to be collected, handled and processed by anyone.

The ART Act independently also provides for the duties of ART clinics and banks in the country. ART clinics and banks are required to inform the commissioning couple/woman of all procedures undertaken and all costs, risks, advantages, and side effects of their selected procedure. It mandatorily ensures that all information collected by such clinics and banks to not informed to anyone except the database established by the National Registry or in cases of medical emergency or on order of court. Data collected by clinics and banks (these include details on donor oocytes, sperm or embryos used or unused) are required to be detailed and must be submitted to the National Registry online. ART banks are also required to collect personal information of donors including name, Aadhar number, address and any other details. By mandating online submission, the ART Act is harmonized with the DPDP Act, which regulates all digital personal data and emphasises free, informed consent.

Conclusion

With the increase in active opt-ins for ART, data privacy becomes a vital consideration for all healthcare facilities and professionals. Safeguard measures are not only required on a corporate level but also on a governmental level. It is to be noted that in the 262 Session of the Rajya Sabha, the Ministry of Electronics and Information Technology reported 165 data breach incidents involving citizen data from January 2018 to October 2023 from the Central Identities Data Repository despite publicly denying. This discovery puts into question the safety and integrity of data that may be submitted to the National Registry database, especially given the type of data (both personal and sensitive information) it aims to collate. At present the ART Act is well supported by the DPDP Act. However, further judicial and legislative deliberations are required to effectively regulate and balance the interests of all stakeholders.

References

• The Information Technology (Reasonable Security Practices And Procedures And Sensitive Personal Data Or Information) Rules, 2011
• Caring for Intimate Data in Fertility Technologies https://dl.acm.org/doi/pdf/10.1145/3411764.3445132 
• Digital Personal Data Protection Act, 2023
• https://www.wolterskluwer.com/en/expert-insights/pharmacogenomics-and-race-can-heritage-affect-drug-disposition  

Introduction

The Ministry of Electronics and Information Technology recently released the IT Intermediary Guidelines 2023 Amendment for social media and online gaming. The notification is crucial when the Digital India Bill’s drafting is underway. There is no denying that this bill, part of a series of bills focused on amendments and adding new provisions, will significantly improve the dynamics of Cyberspace in India in terms of reporting, grievance redressal, accountability and protection of digital rights and duties.

What is the Amendment?

The amendment comes as a key feature of cyberspace as the bill introduces fact-checking, a crucial aspect of relating information on various platforms prevailing in cyberspace. Misformation and disinformation were seen rising significantly during the Covid-19 pandemic, and fact-checking was more important than ever. This has been taken into consideration by the policymakers and hence has been incorporated as part of the Intermediary guidelines. The key features of the guidelines are as follows –

• The phrase “online game,” which is now defined as “a game that is offered on the Internet and is accessible by a user through a computer resource or an intermediary,” has been added.
• A clause has been added that emphasises that if an online game poses a risk of harm to the user, intermediaries and complaint-handling systems must advise the user not to host, display, upload, modify, publish, transmit, store, update, or share any data related to that risky online game.
• A proviso to Rule 3(1)(f) has been added, which states that if an online gaming intermediary has provided users access to any legal online real money game, it must promptly notify its users of the change, within 24 hours.
• Sub-rules have been added to Rule 4 that focus on any legal online real money game and require large social media intermediaries to exercise further due diligence. In certain situations, online gaming intermediaries:

• Are required to display a demonstrable and obvious mark of verification of such online game by an online gaming self-regulatory organisation on such permitted online real money game
• Will not offer to finance themselves or allow financing to be provided by a third party.
• Verification of real money online gaming has been added to Rule 4-A.

• The Ministry may name as many self-regulatory organisations for online gaming as it deems necessary for confirming an online real-money game.
• Each online gaming self-regulatory body will prominently publish on its website/mobile application the procedure for filing complaints and the appropriate contact information.
• After reviewing an application, the self-regulatory authority may declare a real money online game to be a legal game if it is satisfied that:

• There is no wagering on the outcome of the game.
• Complies with the regulations governing the legal age at which a person can engage into a contract.
• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have a new rule 4-B (Applicability of certain obligations after an initial period) that states that the obligations of the rule under rules 3 and 4 will only apply to online games after a three-month period has passed.
• According to Rule 4-C (Obligations in Relation to Online Games Other Than Online Real Money Games), the Central Government may direct the intermediary to make necessary modifications without affecting the main idea if it deems it necessary in the interest of India’s sovereignty and integrity, the security of the State, or friendship with foreign States.
• Intermediaries, such as social media companies or internet service providers, will have to take action against such content identified by this unit or risk losing their “safe harbour” protections under Section 79 of the IT Act, which let intermediaries escape liability for what third parties post on their websites. This is problematic and unacceptable. Additionally, these notified revisions can circumvent the takedown order process described in Section 69A of the IT Act, 2000. They also violated the ruling in Shreya Singhal v. Union of India (2015), which established precise rules for content banning.
• The government cannot decide if any material is “fake” or “false” without a right of appeal or the ability for judicial monitoring since the power to do so could be abused to thwart examination or investigation by media groups. Government takedown orders have been issued for critical remarks or opinions posted on social media sites; most of the platforms have to abide by them, and just a few, like Twitter, have challenged them in court.

Conclusion

The new rules briefly cover the aspects of fact-checking, content takedown by Govt, and the relevance and scope of sections 69A and 79 of the Information Technology Act, 2000. Hence, it is pertinent that the intermediaries maintain compliance with rules to ensure that the regulations are sustainable and efficient for the future. Despite these rules, the responsibility of the netizens cannot be neglected, and hence active civic participation coupled with such efficient regulations will go a long way in safeguarding the Indian cyber ecosystem.

Executive Summary

The IT giant Apple has alerted customers to the impending threat of "mercenary spyware" assaults in 92 countries, including India. These highly skilled attacks, which are frequently linked to both private and state actors  (such as the NSO Group’s Pegasus spyware), target specific individuals, including politicians, journalists, activists and diplomats. In sharp contrast to consumer-grade malware, these attacks are in a league unto themselves: highly-customized to fit the individual target and involving significant resources to create and use.

As the incidence of such attacks rises, it is important that all persons, businesses, and officials equip themselves with information about how such mercenary spyware programs work, what are the most-used methods, how these attacks can be prevented and what one must do if targeted. Individuals and organizations can begin protecting themselves against these attacks by enabling "Lockdown Mode" to provide an extra layer of security to their devices and by frequently changing passwords and by not visiting the suspicious URLs or attachments. 

Introduction: Understanding Mercenary Spyware

Mercenary spyware is a special kind of spyware that is developed exclusively for law enforcement and government organizations. These kinds of spywares are not available in app stores, and are developed for attacking a particular individual and require a significant investment of resources and advanced technologies. Mercenary spyware hackers infiltrate systems by means of techniques such as phishing (by sending malicious links or attachments), pretexting (by manipulating the individuals to share personal information) or baiting (using tempting offers). They often intend to use Advanced Persistent Threats (APT)  where the hackers remain undetected for a prolonged period of time to steal data by continuous stealthy infiltration of the target’s network. The other method to gain access is through zero-day vulnerabilities, which is the process of gaining access to mobile devices using vulnerabilities existing in software. A well-known example of mercenary spyware includes the infamous Pegasus by the NSO Group.

Actions:  By Apple against Mercenary Spyware

Apple has introduced an advanced, optional protection feature in its newer product versions (including iOS 16, iPadOS 16, and macOS Ventura) to combat mercenary spyware attacks. These features have been provided to the users who are at risk of targeted cyber attacks.

Apple released a statement on the matter, sharing, “mercenary spyware attackers apply exceptional resources to target a very small number of specific individuals and their devices. Mercenary spyware attacks cost millions of dollars and often have a short shelf life, making them much harder to detect and prevent.”

When Apple's internal threat intelligence and investigations detect these highly-targeted attacks, they take immediate action to notify the affected users. The notification process involves:

• Displaying a "Threat Notification" at the top of the user's Apple ID page after they sign in.

• Sending an email and iMessage alert to the addresses and phone numbers associated with the user's Apple ID.
• Providing clear instructions on steps the user should take to protect their devices, including enabling "Lockdown Mode" for the strongest available security.
• Apple stresses that these threat notifications are "high-confidence alerts" - meaning they have strong evidence that the user has been deliberately targeted by mercenary spyware. As such, these alerts should be taken extremely seriously by recipients.

Modus Operandi of Mercenary Spyware

1. Installing advanced surveillance equipment remotely and covertly.

2. Using zero-click or one-click attacks to take advantage of device vulnerabilities.

3. Gain access to a variety of data on the device, including location tracking, call logs, text messages, passwords, microphone, camera, and app information.

4. Installation by utilizing many system vulnerabilities on devices running particular iOS and Android versions.

5. Defense by patching vulnerabilities with security updates (e.g., CVE-2023-41991, CVE-2023-41992, CVE-2023-41993).

6. Utilizing defensive DNS services, non-signature-based endpoint technologies, and frequent device reboots as mitigation techniques.

Prevention Measures: Safeguarding Your Devices

1. Turn on security measures: Make use of the security features that the device maker has supplied, such as Apple's Lockdown Mode, which is intended to prevent viruses of all types from infecting Apple products, such as iPhones.

2. Frequent software upgrades: Make sure the newest security and software updates are installed on your devices. This aids in patching holes that mercenary malware could exploit.

3. Steer clear of misleading connections: Exercise caution while opening attachments or accessing links from unidentified sources. Installing mercenary spyware is possible via phishing links or attachments.

4. Limit app permissions: Reassess and restrict app permissions to avoid unwanted access to private information.

5. Use secure networks: To reduce the chance of data interception, connect to secure Wi-Fi networks and stay away from public or unprotected connections.

6. Install security applications: To identify and stop any spyware attacks, think about installing reliable security programs from reliable sources.

7. Be alert: If Apple or other device makers send you a threat notice, consider it carefully and take the advised security precautions.

8. Two-factor authentication: To provide an extra degree of protection against unwanted access, enable two-factor authentication (2FA) on your Apple ID and other significant accounts.

9. Consider additional security measures: For high-risk individuals, consider using additional security measures, such as encrypted communication apps and secure file storage services

Way Forward: Strengthening Digital Defenses, Strengthening Democracy

People, businesses and administrations must prioritize cyber security measures and keep up with emerging dangers as mercenary spyware attacks continue to develop and spread. To effectively address the growing threat of digital espionage, cooperation between government agencies, cybersecurity specialists, and technology businesses is essential.

In the Indian context, the update carries significant policy implications and must inspire a discussion on legal frameworks for government surveillance practices and cyber security protocols in the nation. As the public becomes more informed about such sophisticated cyber threats, we can expect a greater push for oversight mechanisms and regulatory protocols. The misuse of surveillance technology poses a significant threat to individuals and institutions alike. Policy reforms concerning surveillance tech must be tailored to address the specific concerns of the use of such methods by state actors vs. private players. 

There is a pressing need for electoral reforms that help safeguard democratic processes in the current digital age. There has been a paradigm shift in how political activities are conducted in current times: the advent of the digital domain has seen parties and leaders pivot their campaigning efforts to favor the online audience as enthusiastically as they campaign offline. Given that this is an election year, quite possibly the most significant one in modern Indian history, digital outreach and online public engagement are expected to be at an all-time high. And so, it is imperative to protect the electoral process against cyber threats so that public trust in the legitimacy of India’s democratic is rewarded and the digital domain is an asset, and not a threat, to good governance.

‍