Dr. Harsh Vardhan
Union Minister
Ministry of Health & Family Welfare
Government of India
Email: [email protected]

Shri Ravi Shankar Prasad
Union Minister
Ministry of Electronics & Information Technology
Government of India
Email: [email protected]

Dr. Shashi Tharoor
Parliamentary Standing Committee on Information Technology
Email: [email protected], [email protected]

17 September 2020

Subject: Technical, legal, ethical and implementation concerns regarding Aarogya Setu and other apps introduced during COVID-19 in India

Dear sir,

We, the eight organisations and 145 individuals, consisting of public health advocates, experts in digital privacy, science and technology policy advocates, researchers, lawyers, journalists, medical professionals, students and other concerned persons want to express our deep concerns regarding the Aarogya Setu (AS) and other similar Apps related to the novel Corona virus epidemic. We are deeply concerned about violation of privacy, and compromised ethical principles and values, due to the AS App’s design, its deployment, related policies regarding data storage, preservation of privacy and data sharing, as well as overall  policy implementation  and  inadequate  legal  frameworks  for  data  protection  and  grievance redressal for users.

We appreciate the need of the hour viz.:

  1. the unprecedented nature and massive impact of the Covid-19 pandemic in India
  2. the need for a multi-pronged approach to contain the pandemic and minimize its adverse impact on all domains of our lives
  3. therefore the need for innovative approaches, including digital technology-based ones, that may be required to augment and complement other containment and mitigation measures

We believe that the key challenge is ensuring that a balance is struck between achieving greater public good and safeguarding individuals’ rights and freedoms in alignment with frameworks provided by the Constitution of India, public health ethics discourse, International Health Regulations 2005 (IHR 2005), the Siracusa Principles on Civil and Human Rights, and the Universal Declaration of Human Rights.

In this context, we conducted a detailed analysis of the AS App purposed as a catch-all solution, its Privacy Policy, Terms of Services (henceforth ToS) and Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 (henceforth, Protocol), and its code available on GitHub taking into account the broader eco-system in which Aarogya Setu has been deployed and is being used. This is presented in the

more detailed position paper (attached as Annexure 1) which informs this statement articulating key issues across five domains viz., technical and platform design; legal and policy frames; transparency and public engagement; eco-system in India in which the App has been deployed; and ethics and human rights.

The key issues that we want to highlight are as follows:

I. Technical and platform design domain

At a technical level, the AS App does not conform to key technical best practices being developed internationally. The following major concerns arise:

  1. The AS App collects people’s GPS trails about which many democracies, technologists and the World Health Organisation (WHO) have had concerns. It uses centralised social graph analysis to map interactions between individuals, thereby contravening the strongly supported decentralised data storage systems which safeguards citizens’ real-world activities. It also uses a static Device ID which is rudimentary, and is prone to risks of re-identification (i.e. the anonymised personal data may be matched with the actual person thereby exposing who the person is).
  2. The AS App’s centralised data storage system enables exporting of people’s sensitive personal details to an external government-operated server which is linked with the Indian Council of Medical Research (ICMR) database and others. These are being provided to third parties such as research universities and private consultancy firms. Overall, this is an expansive approach to data collection and extraction, and clearly undermines privacy of people’s data.
  3. The AS App categorizes people as being at high risk of COVID-19 simply based on the App’s opaque algorithm and inaccurate Bluetooth and GPS based proximity tracking. This creates a non-trivial risk of false positives and negatives, leading to other severe social, personal and public health consequences. The use of self-reported symptoms also runs the risk of people wrongly marking themselves as positive or negative.
  4. The AS App is not accessible to people with disabilities, especially those with vision and hearingdisabilities.

II. Legal and policy domain

  1. Aarogya Setu App’s privacy policy or supporting documents such as its  ToS and the Protocol, assert that data retention or deletion requirements do not apply to people’s data which has been “anonymised” and can therefore be seamlessly shared with third parties. This raises three key issues:

a. standards of ‘anonymization’ are not defined in the ToS and the Protocol

b. standards if any are not shared with the user and no consent sought for using their “anonymized”data

c. there is no sunset clause for the personal data AS App collects. The, “sunset” is to the protocol rather than the underlying    personal data. This evokes concerns of permanent surveillance

2. The data security and protection framework under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, are not applicable to government authorities, so there is no automatic or compulsory privacy protection

3. The voluntary Electronic Health Records Standards which provide certain privacy and security protocols for data disclosures during times of national priority, lacks suitable enforceability.

4. The  latest  draft  of  the  Personal  Data  Protection  Bill,  2019  introduced  in  India’s  Parliament  in December  2019  is  insufficient.  It  grants  omnibus  exemptions  to  Governments  for  emergency/ epidemic situations which is inconsistent with the contours of the right to privacy and reasonable restrictions during emergency situations as prescribed by the Supreme Court of India in its seminal right to privacy judgement in KS Puttaswamy v Union of India (2017).

5. Obligations under the IHR 2005 to which India is legally bound, require governments to ensure that national legislative frameworks relating to data sharing are adopted and be consistent with international human rights frameworks and foundational ethical principles.   Lack of such legal framework in India implies lack of protection from potential commercial surveillance.

6. From a policy perspective, there is no independent institutional oversight on (a) public agencies and the businesses developing these Apps; (b) ethical and human rights aspects; and (c) the App’s actual deployment.

III.  Transparency and public engagement domain

  1. As per information in the public domain, Government of India (GoI), had initiated building of the AS App on March 19, 2020, and it was launched on April 2, 2020. As per standard best practice, GoI should have issued a technical whitepaper and consulted the public and external stakeholders before launching the App. However, even now, more than four months since the AS App’s launch, GoI has not published any such document.
  2. The lack of a structured public debate and public engagement around the AS App raises questions about its quality, and about the adequacy of ethical, procedural or institutional safeguards to mitigate risks arising from such technological interventions.
  3. The National Informatics Center (NIC) has informed the media that it opted for a public-private partnership model to develop the AS App. For example, For example, UX Design at MakeMyTrip has been a private volunteer in building these systems. This evokes concerns of commercial exploitation and risk to privacy of the data collected through the AS App.
  4. The underlying source code of the AS App was also not released for the longest time which is, again, best practice in such cases. Eventually, the GoI released the source code but it has not yet released the server-side code or the cloud functions. Experts have observed that the source code released on GitHub is inconsistent with the App which is being used by the public. This has therefore only marginal value in terms of transparency and is inconsistent with globally accepted standards of open source software.
  5. There is ambiguity in the key AS App documents namely ToS, Protocol, and Privacy Policy. These include inadequate information for AS App users about the type and purpose of data collected, where and for how long data will be stored, with whom these data will be shared and for what purposes. A NITI Aayog official has indicated that data collected via the AS App is feeding into the development of India/Bharat Health Stack and that raises various other concerns but will not be dealt with here.
  6. There is inadequate transparency about the various data points and inputs the App’s algorithm relies upon to arrive at its risk scoring of users as green, yellow, orange or red.

IV. India’s eco-system in which AS App is deployed

  1. Indian governance systems habitually work in silos and inter-departmental coordination is extremely weak. Potential usefulness of the deployment of AS App depends upon how well the App data and its processing system is linked to contact tracing, testing and treatment through a well-equipped and trained health system. Unfortunately, there has been surprisingly little information put out so far by concerned government agencies as to how such institutional linkages have worked and how the App data has been used.
  2. innovations in collection and processing of citizens’ data must comply with broader legal and ethical frameworks and constitutional rights of citizens which have historically been weak and have come under increasing threat in recent times.
  3. the fact that the Ministry of Home Affairs is steering this effort instead of the Ministry of Health and Family Welfare, conveys that instead of linkage with testing and treatment, the AS App   is more likely being purposed as a tool for surveillance and movement control, potentially leading to social coercion.

V. Constitutional and human rights, and public health ethics

  1. The Medical Council of India’s Code of Ethics does not cover protocols for health data in circumstances when it is shared with the Government
  2. The Government’s push to make the App effectively mandatory erodes individual autonomy as guaranteed by the Constitution
  3. Critically, effectively mandatory use of the AS App is inconsistent with a recent WHO guidance on ethical considerations in the use of digital proximity tracing technologies.
  4. The AS App’s Protocol is insufficient since it does not offer any legislative foundation for the AS App. Fundamental rights under the Constitution cannot be restricted by the Government even for legitimate purposes without express legislative authorisation.
  5. Further, the Protocol fails to be consistent with standards of necessity and proportionality called for by both IHR 2005 and the Siracusa Principles. Specifically, it does not incorporate substantive language which sufficiently reigns in the government’s ability to collect, store, process, retain and process people’s sensitive personal details.

Against this backdrop, our demands are as follows:

I. For proportionality: Three points of emphasis must be design and architecture of the AS app; transparency and effective public engagement; and limits to retention time and use of the data.

  1. There is a constitutional obligation to adopt the least restrictive/intrusive measure to achieve the stated purpose. These thresholds can be benchmarked against known technological best practices and models, and the kinds of interventions adopted by other constitutional democracies. The design of interventions must also ensure that they do not disproportionately impact people from certain backgrounds, identities, and regions.
  2. A full release of specifications including cryptography, anonymization specifications, Application Programming Interface (API) specifications, and Bluetooth specifications.
  3. Release of the source code for the current version of the AS App, given the fact that the released code does not match with the one in use, and release of the server-side code.
  4. Development  of  a  comprehensive  privacy  impact  assessment,  articulating  accompanying  risks associated with large scale roll-out of the App.
  5. Commitment  (i.e.  sunset  clauses  that  are  clearly  present  in  primary  legislation)  to  permanently destroy the data and systems being built via AS App at the end of the COVID-19 pandemic.
  6. The AS App must not in any way be made mandatory by government or private actors;
  7. Among other things, the focus must be on assuring the public that these are temporary interventions which will not devolve into permanent surveillance and monitoring systems.

II. For legality

  1. Suitable legislation is required aim to hold the Union and State governments and private actors accountable for leakage or any inappropriate use of App data during epidemics and communicable disease outbreaks.
  2. Under this, governments may only access patient data through hospital records, and must preserve patient anonymity.
  3. These frameworks should be solely under the control of public health institutions.

III. For necessity: The government must establish:

  1. The contextual necessity of the new technological interventions like the AS App which monitors people’s movements since this is already being done by other actors (like telecom service providers).;
  2. Grounds for treating the existing government databases, such as those maintained by ICMR and other existing surveillance mechanisms and hospital records as inadequate for the current purposes of responding to the pandemic
  3. The expected advantage of interventions for collection of health and related information is collected, the actual technical effectiveness of the interventions itself, and a detailed cost-benefit/privacy impact analysis to evaluate risks before rolling out such Apps
  4. Necessity  as  a  dynamic  construct,  and  that  it  is  embedded  through  the  life  cycle  of  the  AS programme. Within it there is a need for continual review of the programme as regards principles of transparency and accountability.

IV. Oversight Structures and Processes

  1. The required legislation must create independent institutions for oversight separated from the political executive.
  2. Towards this end, the agencies/institutions concerned should publish periodic reports informing the public if, and to what extent, the App is augmenting the Government’s response in treating and containing the spread of Covid-19. Based on such feedback loops, these institutions should be empowered to make decisions for course correction or even discontinuation of the programme itself, and the permanent destruction of the systems created.

We hope that you will take cognisance of these concerns and address them urgently.

With regards

Apar Gupta – Internet Freedom Foundation (IFF)

Sunita VS Bandewar- Forum for Medical Ethics Society (FMES) and Jan Swasthya Abhiyan

Sulakshana Nandi- Jan Swasthya Abhiyan (JSA)

P.Rajamanickam- All India People’s Science Network (AIPSN)

This letter has been endorsed by the following organisations, networks and individuals:

Organisational endorsements
Janchetna Sansthan                               Abu Road
Lok Manch                                              New Delhi
Rethink Aadhaar Campaign                  India
Right To Food Campaign                       India

Individual Endorsements

  1. Aayushman Aggarwal, Student
  2. Abha Feminist, Activist
  3. Adarsh Ranjan, Student
  4. Akshayarka Deka, Big Data Analyst
  5. Alka Pawangadkar, Translator/Trainer
  6. Amar Jesani, Editor, Indian Journal of Medical Ethics, Mumbai
  7. Amitranjan Basu, Doctor, Shaheed Hospital
  8. Ammu Abraham, Women’s rights and Civil liberties activist
  9. Anand Nandakumar, Lawyer
  10. Anand Philip, Independent Researcher, Bangalore
  11. Anja Kovacs, Director, Internet Democracy Project
  12. Anurag Modi, Social Activist, Shramik Adivasi Sanghatana, Madhya Pradesh
  13. Apoorva Umap, Student
  14. Arindom Bora, Student
  15. Arundhati Dhuru, Social activist, National convener NAPM
  16. Arvind, IT
  17. Ashish Kothari, Kalpavriksh, Pune
  18. Assunta Pardhe, Social worker and lawyer, Chief Functionary Chetna Mahila Vikas Kendra
  19. Avi, Student
  20. Aysha, Concerned citizen
  21. Barathi Nakkeeran, Independent Researcher
  22. Barun Mukhopadhyay, Professor (Retired), Indian Statistical Institute, Biological Anthropology Unit, Kolkata
  23. Bindu Desai, Retired Neurologist
  24. Ch Narendra, Senior Journalist, Hyderabad
  25. Chayanika Shah, Queer Feminist Researcher
  26. Deepika Joshi, Researcher, PUCL, Chhattisgarh
  27. Deepriya Snehi, Advocate
  28. Devdutta, Lawyer
  29. Devika Shetty, Independent mental health activist, Goa
  30. Dharmesh shah, Researcher
  31. Divya Sornaraja, Engineer
  32. Dr.Ganesh Singh Dharmshaktu, Associate Professor, Department of Orthopaedics, Government Medical College, Haldwani Uttarakhand
  33. Dr Shakeel, Physician. The Polyclinic
  34. Dr Shriyuta A, Infosys fellow in Public Health, SEARCH, Gadchiroli
  35. Dr Sylvia Karpagam, Public health doctor
  36. Dr. Harish Gupta, Consultant Physician , Internal Medicine, Lucknow
  37. Dr. J. Charles Davis, Professor of Bioethics and Moral Theology
  38. Dr. Kamaxi Bhate, Professor Emeritus KEM Hospital
  39. Dr. Mahesh Devnani, Doctor, Hospital Administrator
  40. Dr. Mohan Rao, Former professor at the Centre of Social Medicine and Community Health, JNU
  41. Dr. Prashanth N S, Institute of Public Health, Bengaluru.
  42. Dr. Satendra Singh, Disability Rights activist & doctor at University College of Medical Sciences & GTB Hospital, Delhi
  43. Dr. V Visvanathan, Computer Technologist
  44. Dr.Mohan Rao, Independent public health researcher
  45. Dr. Tusharkanti Dey, Retired Academician
  46. Fatima A Castillo, Researcher
  47. Gargi Sharma, Software Engineer
  48. Geeta Seshu, Journalist, Co-Editor, Free Speech Collective
  49. Goldee kushwaha, Student
  50. Gurpreet Singh, Digital Marketing Manager
  51. Hari Prasad Tripathi, Student
  52. Hashim Khan, Working, CGSACS – Deputy Director
  53. Hrishikesh Bhaskaran, Secretary, Swathanthanthra Malayalam Computing
  54. Imtitangit Pongener, Student
  55. Indira C, Public health researcher, Delhi
  56. Jagannath Chatterjee, Patient Advocate, Bhubaneswar
  57. Jashodhara Dasgupta, Independent researcher, New Delhi.
  58. Jhuma Sen, Associate Professor, JGLS
  59. Joy Bhattacharjee, Cloud Infrastructure Consultant
  60. Jyotsna Tirkey, Service, Jan Swasthya Abhiyan
  61. K Ram, Independent Educator
  62. Kabi, Activist
  63. Kalyani Menon, Sen Independent researcher
  64. Kamayani Bali Mahabal, Trainer Gender, Health and Human Rights, Jan Swasthya Abhiyan, Mumbai – Convenor
  65. Kamlesh Khantwal, State Coordinator BGVS and JSA Uttarakhand
  66. Khrisha Shah, Entrepreneur, Dysco (Co-Founder & CEO)
  67. Kim Fernandes, Delhi/University of Pennsylvania
  68. Kiran Jonnalagadda, Technologist
  69. Leo Saldanha, Researcher, Environment Support Group, Bangalore, India
  70. Linda Chhakchhuak, Concerned citizen
  71. Madhuresh Kumar, National Convener, NAPM
  72. Mahathi, Doctor
  73. Mahesh Devnani, Chandigarh
  74. Maithreyi M R, Consulting editor
  75. Manavi, Lawyer
  76. Mansi Sood, Advocate
  77. Mary Mathai, Scientist
  78. Md Rushd Al Amin, Student
  79. Medha Kale, Social activist and Translator, Trustee, Tathapi Trust Pune
  80. Meena Gopal, Researcher and activist, Forum against Oppresssion of Women
  81. Mrinal Sharma, Lawyer, Amnesty International India, Policy Advisor
  82. Murali, Advocate
  83. Nagmani Rao, Retired Academic, Citizen
  84. Navneet Wadkar, PhD Scholar, Jawaharlal Nehru University, New Delhi
  85. Neelanjana, Public Health Researcher, Jan Swasthya Abhiyan Chhattisgarh
  86. Nikhat Hetavkar, Law student
  87. Nilanjana Dey, Marketer
  88. Niraj Bhatt, Researcher Citizen consumer and civic Action Group
  89. Niranjan Sathyamurthy, Illustrator Journalist, author, publisher and documentary film-maker
  90. Oishik Sircar, Academic
  91. Padmini Ray Murray, Independent Researcher, Founder, Design Beku
  92. Paranjoy Guha Thakurta, Journalist, author, publisher and documentary film-maker
  93. Paulomi Chakraborty, Associate Professor, Humanities and Social Sciences
  94. Peehu Pardeshi, Teacher, Jan Swasthya Abhiyan member
  95. Piyali Mitra, Researcher, Forum for Medical Ethics, Member
  96. Prabha, Doctor
  97. Pradeep Esteves, Context India, Bangalore
  98. Pranav Mattapalli, Student
  99. Praveer Peter, Social Worker, Convenor, Solidarity Centre, Ranchi
  100. Preethika, Lawyer
  101. Prof Dr Fatima Castillo, Manila, Philippines
  102. Prof Dr Siby George, IITB, Mumbai
  103. Raghav Mendiratta, Lawyer
  104. Rajalakshmi, Independent
  105. Rajendra Gadwal, Social Activist, Samajwadi Jan Parishad
  106. Rajendran Narayanan, Assistant Professor, Azim Premji University
  107. Ravi Duggal, Independent Researcher and Activist
  108. Ricky Saldanha, Research & Insights professional
  109. Rishab Bailey, Lawyer and technology policy researcher, New Delhi
  110. Roopashri Sinha, Freelance research consultant
  111. Rujvi, Lawyer
  112. Sagari Ramdas, Veterinary Scientist, Food Sovereignty Alliance, India Member
  113. S Saroja, Director – Consumer Protection, Citizen consumer and civic Action Group
  114. Saloni Madan, Student
  115. Sandeep K Shukla, Professor
  116. Sandeep Pandey, Social activist, Vice President Socialist Party (India)
  117. Sandhya Srinivasan, Journalist
  118. Sangeeta, CEHAT
  119. Santosh Mahindrakar, Nurse
  120. Saurabh Bhattacharjee, Academia
  121. Senthamil Selvan K., Health activist
  122. Shals Mahajan, Writer, Member, LABIA – A Queer Feminist LBT Collective
  123. Shamim Meghani Modi, Teacher, FMES
  124. Sharmila, IIT Bombay
  125. Shatakshi, Student
  126. Siddharth Chakravarty, Researcher
  127. Srijit Mishra, Bhubaneswar
  128. Srinivas kodali, Independent Researcher
  129. Srinivasan G,  Technology Professional, Sochara – Volunteer
  130. Subhashis Banerjee, Professor, IIT Delhi
  131. Sudha N, Researcher & Activist
  132. Sudhir Pattnaik, Senior Journalist, Bhubaneswar
  133. Sujata Gothoskar, Researcher and activist
  134. Sujata Patel, Teacher and Researcher
  135. Sujata Sethi, Rohtak
  136. Sukla Sen, Peace Activist
  137. Sumi Krishna, Independent researcher, Bengaluru
  138. Sunep Imsong, Tech Lead
  139. Sunil Tamminaina, Research Scholar
  140. Supriya Subramani, Postdoc
  141. Surbhi Shrivastava, PhD Student
  142. Swatija, Retired
  143. Tanvi Sharma, Advocate, Volunteers Collective
  144. Tara Murli, Architect , Chennai
  145. Vivek Divan, Centre for Health Equity, Law & Policy: Indian Law Society, Pune

The statement and related blog post are available on sites of co-signatories of this statement. Available from: JSA, IFF and AIPSN.

Email sent to the ministries

Joint Letter Aarogya Setu