You Are Tracked! Analysis of the Geospatial Information Regulation Bill, 2016

The Geospatial Information Regulation Bill, 2016, is the first legislation in India dealing directly with entities/companies seeking to provide location-based services, as it seeks to regulate the acquisition, dissemination, publication and/or distribution of the geospatial information of India. The Bill was released by the Ministry of Home Affairs in May, 2016, in order to receive public comments and opinion. While there has been widespread negative feedback from experts and in the media on the provisions of the Bill, the Ministry is yet to acknowledge such comments, or release an updated draft. Thus, as of now, it is pertinent to analyse the Bill in its current form, and evaluate the potential impact on the various companies using location-based services either as an integral or ancillary part of their businesses.

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Analysis of the Bill

What kind of information does the Bill regulate?

The Bill seeks to regulate any Geospatial Information (the “GI”) relating to India – “any geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition; or graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto including surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes” (S. 2(e)).

Who does it regulate?

The Bill intends to regulate any person/individual/company/trust etc., whether Indian or foreign, who wants to or has already acquired any GI, or who wants to disseminate, publish or distribute any GI (whether acquired by that entity or not). The expansive nature of this definition means that the Bill can potentially cover a large number of companies, especially many start-ups in India. These can be companies that are either directly engaged in provided location-based services and/or acquiring the GI, or those that indirectly use/license the GI owned by others to enhance or provide various products and/or services. The Bill also specifically covers entities that allow the dissemination/visualization of India’s GI via internet platforms/services. Thus, this Bill can potentially cover companies that:

  1. Provide users/consumers with mapping and/or navigation services. Thus, such companies/entities might have not only acquired GI related to India, but also provide access to this GI to the general public;
  2. Use other mapping/location-based services with their own products/services (via integration), to help their own users track their location and movements.;
  3. Integrate the mapping/location-based services of other companies on their application, to help users find restaurants in their localities and track the location of the food ordered for delivery;
  4. Are real estate aggregators, who use location-based services to improve user-experience in searching for and finding houses.

Apart from the companies coming under category (i) above, none of the other companies own or acquire any of the GI. They simply license it from those who own it and who already provide location-based services, and subsequently display/disseminate the data to their own users.

How would such entities be regulated?

Entities dealing with GI in any capacity are split into three categories under the Bill:

  1. Entities that have already acquired and own GI – such entities have to, within a year of the Bill coming into effect, apply to the Security Vetting Authority (discussed further below) for a license to continue retaining the GI. If such license is not granted, the entity has to ensure that it destroys any GI held by it, and ceases to possess the same.
  2. Entities that want to start acquiring, or entities that want to acquire further GI – such entities require a separate license from the Security Vetting Authority (SVA). Thus, companies will not only require one license to continue holding and owning any GI that they may already have, but they will also require a separate license to continue acquiring further GI, if required. This can prove to be a very tedious task, as highlighted in the license obtaining process discussed below.
  3. Entities that want to disseminate, publish, or enable the visualization of the GI (whether through physical means, or through internet platforms/services) within India – such entities will also require a separate license from the SVA. However, the Bill does not explain whether an entity that has obtained a license for the storing/acquisition of GI, will require a separate license to disseminate/publish it. If this is true, then companies might be faced with the complicated task of obtaining 3 separate licenses, one each for the different tasks they wish to perform with the GI (as described above).
  4. Entities that want to disseminate any GI of India, outside India (whether by physical means, or through internet platforms/services) – such entities will require yet another license from the SVA.

From the above, it seems that one of the shortcomings of this Bill is not only the heavy regulation for any activity related to India’s GI, but also the lack of clarity on whether entities can possible obtain a single, unified license to perform all of the functions. Such a provision would surely make the entire license-obtaining process easier, and importantly, reduce the regulatory disincentive that might be created (which may push both existing and prospective companies/entities away from entering the business of location-based services).

The Security Vetting Agency

This is one of regulatory bodies set up under this Bill. Established by the Government of India, the Security Vetting Authority (the “SVA”) will be responsible for granting and/or denying the licensing applications. The SVA shall function in accordance with the regulations to be framed by the Apex Committee, a body constituted directly under the Ministry of Home Affairs. It is also responsible for ensuring the effective overall implementation of the Bill.

While the specific rules and regulations regarding the procedures to be followed by the SVA have not been stated in the Bill (they are yet to be notified by the Apex Committee/Ministry of Home Affairs), the main objective of the SVA is to vet the applications submitted to it by analysing any GI that has been acquired, or is proposed to be acquired by any entity. The GI is analysed from the view of national security and accuracy of the information, and only GI that has been approved by the SVA can be displayed by an entity holding a license under the Bill. Further, there is no specified time-limit within which the SVA must analyse such GI and approve/reject the same. This is a major drawback in the Bill for two reasons: (i) the fear of a long-drawn licensing process may add to the list of existing disincentives to entities applying for licenses; and (ii) it effectively removes the possibility of any entity providing real time GI (such as live videos, traffic data, newly constructed roads/building etc.) to consumers, as prior to display or publication of the same, it has to be vetted by the SVA. This second drawback could potentially have a large impact on the business of many companies which rely on providing real-time information (such as the traffic feature in Google Maps, which helps users calculate the distance and time between two points based on live traffic feeds; or real estate aggregators, which need to show new constructions/buildings on their applications).

Enforcement Authority and Contraventions/Penalties

Contraventions under the Bill are dealt with by the Enforcement Authority. Also set up by the Indian Government, this body is responsible for ensuring that (a) all licensees adhere to their respective obligations/conditions; and (b) that no unauthorised entity acquires or disseminates/publishes any GI. Some of the offences specified under the Bill, along with their respective penalties are as follows:

  1. Illegal dissemination, publication or distribution of geospatial information of India
    • Fine – INR Ten lakh to INR One Hundred crore and/or imprisonment for a period up to seven years
  2. Illegal acquisition of geospatial information of India
    • Fine – INR One Crore to INR One Hundred Crore and/or imprisonment for a period up to seven years.
  3. Use of geospatial information of India outside India
    • Fine – INR One crore to INR One Hundred crore and/or imprisonment for a period up to seven years.
  4. Wrong depiction of map of India
    • Fine – INR Ten lakhs to INR One Hundred crore and/or imprisonment for a period up to seven years
  5. Violation of terms and conditions of a licence
    • Fine – INR Ten lakhs to INR One Hundred crore and/or imprisonment for a period up to seven years, additionally suspension/revocation of the license.

Interestingly, the Bill specifies that it is applicable even to persons situated outside India, as long as they commit an offence which is punishable under this Act. This, read with the fact that entities wanting to disseminate the GI of India outside India require a separate license from the SVA, shows that the Bill also intends to cover foreign companies/entities that are acquiring and/or distributing the GI of India. Thus, even entities/companies that might have no business or operations in India, but have acquired (via their own/private satellites or Government satellites) the GI of India, or are disseminating/publishing the same, shall be subject to the same conditions with respect to licensing and offences. On the face of it, this provision seems extremely hard to enforce. The Bill does not have any special provisions dealing with such situations, and as such it seems like India will have to extradite the person/entity responsible for the contravention to try them – something which is largely dependent on the cooperation of the country where such person might be situated.

Conclusion

The Government justified the introduction of this Bill as an effort to address security and data privacy concerns arising through the extensive mapping and location-based services provided by various companies in India. With no clear legislation on the topic, strategic and sensitive government and military location/sites could be depicted on such maps with clarity, compromising the safety of such locations.

However, overall, it seems like the Bill is unable to strike a balance between serving the above purposes, while still allowing the proliferation and use of maps and location-based services. Considering the popularity and multiple uses of such services within the general public, the Bill seems like it will do more harm than good by making it very restrictive and difficult for companies currently providing, or looking to provide location-based services as a business. It will also stifle the business of companies/entities that are already relying on location-based services to enhance their products/services. One hopes that the multiple cumbersome licensing requirements along with the prohibitively high penalty stipulations in the Bill don’t end up curbing and choking innovation in this field, considering the multiple use-cases of location-based services and the assistance that it provides to regular citizens.

Author: Madhav Rangrass, Associate

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