Regulation

In 2014, India’s ministry of law and justice issued a policy on pre-legislative consultation, partially drawing on OECD recommendations. While most legislative proposals in India set aside time for public comments, the consultation often appears to be a formality. We need to redesign the process so that stakeholders can approach the process constructively - recognizing that policy-making is a compromise, and that both government and stakeholders must be open to differing viewpoints.

In India, the absence of comprehensive privacy law has led to over-reliance on CERT-In Rules, 2013, for data breach guidance. Recent directions by the Ministry of Electronics and Information Technology has expanded mandatory reporting requirements, raising concerns about inundating CERT-In with trivial incidents and, as a result, hindering its ability to respond to serious breaches.

There is a growing recognition of the fact that we can use technology tools to make our regulations smarter. There are 2 categories of tools to do this. The first gives users more control over what can be done with their data by placing data in pods and only allowing them to be accessed in accordance with the privacy management protocols. The second unlocks data silos allowing data to move between them with the consent of the user. While these tools seem contradictory they operate at opposite ends of the data spectrum can can be combined to augment statutory frameworks.

Policy-making requires an understanding of the reciprocal relationships inherent in regulation. Focusing on a policy outcome in a narrow area of specific intent will result in unintended consequences in reciprocally related areas. In these instances it is important to think about policy making as a dial. Tilting too much in one direction will cause harm elsewhere. It is about finding the right balance.

The pandemic forced us into a natural experiment that has given us valuable insights about the natural world in the absence of humans. It also allowed us to experiment with changing various regulations to continue to operate in a lockdown. We should use the learnings from this natural experiment to figure out how to implement empirical policy-making by implementing regulatory sandboxes for our policy endeavours.

Regulation can never keep up with technology. What we need to do is develop principles-based regulation and allow regulators discretion in its implementation through effective post-facto enforcement. We should presume that regulatory actions have been taken in good faith unless proven otherwise and build transparency into our systems to ensure that regulators do not exceed their authority. Regulators should list all applicable regulations on their website and not attempt to enforce anything outside those regulations.

In India, electronic records can only be brought into evidence if accompanied by a certificate signed by a responsible person describing how it was produced and details of the computer involved in its production. Unless we remove these offline measures and replace them with digital certificates and other forms of electronic authentication, digital dispute resolution will be crippled.

My reflections on my 2020 predictions about technological advancements. The pandemic emphasized technology’s central role in society, from remote working to vaccine development. New regulatory measures give hope for increased internet access and technology legislation in India, recognizing the need to adapt and engage with technology in new ways.

Despite our pessimistic focus on disasters and negative events, the world has significantly improved in areas like forced labor, women’s voting rights, literacy, and environmental protection. Even in tech policy and government handling of data privacy, progress is evident, though challenges remain.

Different platforms require tailored regulations, and so operating systems and app stores should be regulated differently. Given the recent developments in India, where startups have challenged Google’s Play Store policy, there is a need for innovative thinking beyond traditional regulatory solutions.