Mozilla is deeply concerned by news reports that India’s first data protection law may include data localization requirements. Recent leaks suggest that the Justice Srikrishna Committee, the group charged by the Government of India with developing the country’s first data protection law, is considering requiring companies subject to the law to store critical personal data within India’s borders. A data localization mandate would undermine user security, harm the growth and competitiveness of Indian industry, and potentially burden relations between India and other countries. We urge the Srikrishna Committee and the Government of India to exclude this in the forthcoming legislative proposal.
Locating data within a given jurisdiction does not in itself convey any security benefits; rather, the law should require data controllers to strictly protect the data that they’re entrusted with. One only has to look to the recurring breaches of the Aadhaar demographic data to understand that storing data locally does not, by itself, keep data protected (see here, here and here). Until India has a data protection law and demonstrates robust enforcement of that law, it’s difficult to see how storing user data in India would be the most secure option.
In Puttaswamy, the Supreme Court of India unequivocally stated that privacy is a fundamental right, and put forth a proportionality standard that has profound implications for government surveillance in India. We respectfully recommend that if Indian authorities are concerned about law enforcement access to data, then a legal framework for surveillance with appropriate protections for users is a necessary first step. This would provide the lawful basis for the government to access data necessary for legal proceedings. A data localization mandate is an insufficient instrument for ensuring data access for the legitimate purposes of law enforcement.
Economic and Political Harms
A data localization mandate may also harm the Indian economy. India is home to many inspiring companies that are seeking to move beyond India’s generous borders. Requiring these companies to store data locally may thwart this expansion, and may introduce a tax on Indian industry by requiring them to maintain the legal and technical regimes of multiple jurisdictions.
Most Indian companies handle critical personal data, so even data localization for just this data subset could harm Indian industry. Such a mandate would force companies to use potentially cost-inefficient data storage and deny companies from using the most effective and efficient routing possible. Moreover, the Indian outsourcing industry is predicated on the idea of these firms being able to store and process data in India, and then transfer it to companies abroad. A data localization mandate could pose an existential risk to these companies.
At the same time, if India imposes data localization on foreign companies doing business in India, other countries may impose reciprocal data localization policies that force Indian companies to store user data within that country’s jurisdictional borders, leading to legal conflict and potential breakdown of trade.
Data Transfer, Not Data Localization
There are better alternatives to ensuring user data protection. Above all, obtaining an adequacy determination from the EU would both demonstrate commitment to a global high standard of data protection, and significantly benefit the Indian economy. Adequacy would allow Indian companies to more easily expand overseas, because they would already be compliant with the high standards of the GDPR. It would also open doors to foreign investment and expansion in the Indian market, as companies who are already GDPR-compliant could enter the Indian market with little to no additional compliance burden. Perhaps most significantly, this approach would make the joint EU-India market the largest in the world, thus creating opportunities for India to step into even greater economic global leadership.
If India does choose to enact data localization policies, we strongly urge it to also adopt provisions for transfer via Binding Corporate Rules (BCRs). This model has been successfully adopted by the EU, which allows for data transfer upon review and approval of a company’s data processing policies by the relevant Data Protection Authority (DPA). Through this process, user rights are protected, data is secured, and companies can still do business. However, adequacy offers substantial benefits over a BCR system. By giving all Indian companies the benefits of data transfer, rather than requiring each company to individually apply for approval from a DPA, Indian industry will likely be able to expand globally with fewer policy obstacles.
Necessity of a Strong Regulator
Whether considering user security or economic growth, data localization is a weak tool when compared to a strong data protection framework and regulator.
By creating strong incentives for companies to comply with data use, storage, and transfer regulations, a DPA that has enforcement power will get better data protection results than data localization, and won’t harm Indian users, industry, and innovation along the way. We remain hopeful that the Srikrishna Committee will craft a bill that centers on the user — this means strong privacy protections, strong obligations on public and private-sector data controllers, and a DPA that can enforce rules on behalf of all Indians.