The below note looks at different types of encryption, varying practices of encryption in India, and the relationship between encryption, data security, and national security.
When looking at the informational side of privacy, encryption is an important component to understand. Encryption in itself is a useful tool for protecting data that is highly personal in nature and is being stored, used in a transaction, or shared across multiple databases. The quality of encryption is judged by the ability to prevent an outside party from determining the original content of an encrypted message. There are many different types of encryption including:
Encryption in India is a hotly debated and very confusing subject. The government has issued one standard, but individuals and organizations follow completely different standards. According to a note issued by the Department of Telecommunications ("DOT") in 2007, the use of bulk encryption is not permitted by Licensees, but nevertheless Licensees are still responsible for the privacy of consumers' data (section 32.1). The same note pointed out that encryption up to 40 bit key length in the symmetric key algorithms is permitted, but any encryption higher than this may be used only with the written permission of the Licensor. Furthermore, if higher encryption is used, the decryption key must be split into two parts and deposited with the Licensor. The 40 bit key standard was previously established in 2002 in a note submitted by the DOT:"License Agreement for Provision of Internet Service (including Internet Telephony)' issued by Department of Telecommunications"6 Though a 40 bit standard has been established, there are many sectors that do not adhere to this rule. Below are a few sectoral examples:
The varying level of standards poses a serious obstacle to Indian business, as foreign countries do not trust that their data will be secure in India. Also, the differing standards will pose a compliance problem for Indian businesses attempting to launch their services on the cloud.
To understand how encryption relates to privacy, it is important to begin by looking at data security vs. privacy. Security and privacy have an interesting relationship, because they go hand in hand, and yet at the same time they are opposed to each other. First, data security and privacy are not the same. Breaches in data security occur when information is accessed without authorization. There is no loss of privacy, however, until that information is misused. Though data security is critical for protecting privacy, the principles of data security call for practices that threaten privacy principles. For example, data security focuses on data retention, logging, etc, while privacy focuses on the consent, restricted access to data, limited data retention, and anonymity10. If security measures are carried out without privacy interests in mind, surveillance can easily result in severe privacy violations. Thus, data security should influence and support a privacy regime but not drive it. In this context, encryption and data security will create an expectation of privacy, rather than undermine or overshadow privacy. By the same token encryption cannot be seen as the cure for privacy challenges. Encryption cannot adequately protect data, but when supported by a strong privacy and security regime - it can be very effective. It is also a good measuring rod for determining how committed a company has been to protecting a person's privacy and ensuring the security of his or her data. In light of the symbiotic yet complicated relationship that privacy and data security have with each other, it would make sense for legislation and domestic encryption standards to be merged and addressed together. This would ensure that a) the standard is not archaic (as the current 40 bit one is); b) would take into account the threat to privacy that surveillance can impose and would address decryption when addressing encryption; and c) would anticipate the collection and cataloging of data and ensure security of the data and person as well as national security.
Encryption is a subject that causes governments a great deal of concern. For example in order to preserve foreign policy and in national security interests, the US maintains export controls on encryption items11. This means that a license is required to export or re-export identified items. Though the Indian government currently does not have an analogous system, it would be prudent to consider one. Though the government is aware of the connection between encryption and national security, it seems to be addressing it by setting a low standard for the public which enables it to monitor communications etc. easily. It is important to remember though that today we live in a digital age where there are no boundaries. One cannot encrypt data at 40 bits in India and think it is safe, because that encryption can be broken everywhere else in the world. Despite the fact that there are no boundaries in the digital age, users of the internet and communication technologies are subject to different and potentially inconsistent regulatory and self-regulatory data security frameworks and consequently different encryption standards. One way to overcome this problem could be to set in fact a global standard for encryption that would be maximal for the prevention of data leaks. For instance, there are existing algorithms that are royalty free and available to the global public such as the Advanced Encryption Standard algorithm, which is available worldwide. The public disclosure and analysis of the algorithm bolsters the likelihood that it is genuinely secure, and its widespread use will lead to the expedited discovery of vulnerabilities and accelerated efforts to resolve potential weaknesses. Another concern that standardized encryption levels would resolve is the problem of differing export standards and export controls. As seen by the example of the US, industrialized nations often restrict the export of encryption algorithms that are of such strength that they are considered "dual use" - in other words, algorithms that are strong enough to be used for military as well as commercial purposes. Some countries require that the keys be shared, while others take a hands-off approach. In India joining a global standard or creating a national standard of maximum strength would work to address the current issue of inconsistencies among the required encryption levels.
Moving away from the technical language it is useful to break down encryption from a social science point of view. Who are the actors involved - what is their relationship with each other, and how does encryption come into the picture. When one looks at encryption it is possible to conceive of many different scenarios, each with different players. In the first scenario there is an individual and another individual. They are sending information back and forth. The third individual could be an entity, a business, or just another individual. The first two individuals want to keep their information away from this third, unknown person or entity. For that reason, the first two encrypt their communications. Encryption is a tool that has the ability to re-draw the lines between the public and private sphere by giving individuals the ability to form a very private line of communication, and thus a very private relationship in a space that is very non-private - such as the internet. In another scenario between the individuals and the markets - the market wants information about an individual to enhance its effectiveness and profits. To create trust, the market promises that information given is encrypted. Thus, the market is attempting to initiate a trusting relationship with individuals. This relationship though, is forced and false, because individuals must compromise how much information they disclose for a product or service in return.
In the second scenario, there is an individual, another individual, and a Government. In this situation the two individuals again say that they want to have a private conversation in a public space, and so it is encrypted, but the Government - which is worried about national security decides that it wants to listen in on the conversation. This places a new dynamic on the relationship. No longer are the two individuals private. Not only can the government hear their conversation, but they have no choice over whether their conversation is heard or not. This is a relationship based off of the premises of distrust between the government and individuals. It presupposes, and is biased in assuming, that if you have done nothing wrong - you have nothing to hide. Using the same set of actors, perhaps a government requires the collection of information about its citizenry that is sensitive. To ensure the privacy of its people, the government encrypts the information, but the individual has essentially lost control over his/her information. He/she is forced to trust that the Government will not misuse the information given.
In the third scenario there is a market, an individual, and the government. The market gathers information about an individual on transactional levels, but encrypts it - because in the wrong hands this information could be misused. The government still wants access to the information and so they demand the information. What does the market say? Does it side with the individual or the Government? If governments sanction the market, they can make it bend to their will. Thus, the government is in a position to control the market and the individual, but to what ends and for what means. In all of these situations the understood role of the market, the government, and the individual has been shifted by the ability to encrypt information. The idea of using encryption as a means to keep information safe speaks to a new relationship that has formed between the government, the market, and the individual.