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Compliance audit under the Information Technology Act, 2000


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Compliance audit under the Information Technology Act, 2000

  2. 2. CASES Nadeem Kashmiri and HSBC Karan Bahree and Mphasis My case - Hyundai
  3. 3. ISSUES Liability of Company Protection of data – Concern for outsourcing industry Privacy of data – Individual’s concern
  4. 4. SEC. 43A – COMPENSATION FOR FAILURETOPROTECT DATA If body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person  Liability– Damages by the way of compensation
  5. 5. ADJUDICATION For claims upto Rs. 5 Crores – Adjudicating officer For claims above Rs. 5 Crores - Civil courts (Unlimited liability)
  6. 6. WHO IS LIABLE? Sec.85: Offences by companies • The company itself, being a legal person; • The top management including directors; and • The managers (persons directly responsible for the data) If it is proved that - • they had knowledge of a contravention; or • they have not used due diligence • that it was caused due to their negligence
  7. 7. ISSUES Whatis Sensitive Personal data or Information? Whatare Reasonable Security Practices and Procedures?
  8. 8. THE SOLUTION The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 Enforceable from 11th April, 11 To be read with Sec. 43A
  9. 9. SENSITIVE PERSONAL DATA ORINFORMATION Rule 3 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
  10. 10. REASONABLE SECURITYPRACTICES  Implementing comprehensive documented information security programme and information security policies  Containing –  Managerial, technical, operational and physical security control measures commensurate with the information assets held by the person. Rule 8 - IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
  11. 11. REASONABLE SECURITY PRACTICES The International Standard IS/ISO/IEC 27001 on “Information Technology – Security Techniques – Information Security Management System – Requirements” is one such standard OR If following other than IS/ISO/IEC codes of best practices for data protection, shall get it duly approved and notified by the Central Government OR An agreement between the parties regarding protection of “Sensitive Personal Information”
  12. 12. AUDITING Necessary to get the codes or procedure certified or audited on regular basis Needs to be done by the Government Certified Auditor Will be known as “Govt. Certified IT Auditor” Not appointed yet CERT-IN has empanelled IT Auditors
  14. 14. COLLECTION OF INFORMATION About obtaining consent of the information provider Consent in writing through letter/fax/email from the provider of the SPDI regarding purpose of usage before collection of such information Need to specify –  Fact that SPDI is being collected  What type of SPDI it is  How long SPDI will be heldRule 5 - IT (Reasonable security practices and procedures and sensitive personal data orinformation) Rules, 2011
  15. 15. COLLECTION OF INFORMATION Provider should know –  Purpose of collection  Intended recipients  Details of the agency collecting the information and agency retaining the information Body Corporate not to retain information longer than required Option should be given to withdraw the information provided SPDI shall be used only for the purpose for which it has been collected Shall appoint “Grievance Officer” to address any discrepancies and grievances about information in a timely manner – Max. time – One month
  16. 16. PRIVACY AND DISCLOSURE OF INFORMATION POLICY Policy about handling of SPDI Shall be published on website or should be available to view/inspect @ any time Shall provide for –  Type of SPDI collected  Purpose of collection and usage  Clear and easily accessible statements of IT Sec. practices and policies  Statement that the reasonable security practices and procedures as provided under rule 8 have been compliedRule 4 - IT (Reasonable security practices and procedures and sensitive personal data or information)Rules, 2011
  17. 17. DISCLOSURE  Disclosure –  Prior permission of provider necessary before disclosure to third party OR  Disclosure clause needs to be specified in the original contract OR  Must be necessary by law  Third party receiving SPDI shall not disclose it furtherRule 6 - IT (Reasonable security practices and procedures and sensitive personal data or information)Rules, 2011
  18. 18. TRANSFER OF INFORMATION  Transfer to be made only if it is necessary for performance of lawful contract  Disclosure clause should be a part of Privacy and Disclosure Policy  Transferee to ensure same level of data protection is adhered while and after transfer  Details of transferee should be given to providerRule 7 - IT (Reasonable security practices and procedures and sensitive personal data or information)Rules, 2011
  19. 19. SEC 72(A) (CRIMINAL OFFENCE) Punishment for Disclosure of information in breach of lawful contract - Knowingly or intentionally disclosing “Personal Information" in breach of lawful contract IMP – Follow contract Punishment - Imprisonment upto 3 years or fine up to 5 lakh or with both (Cognizable but Bailable)
  20. 20. GRAMM–LEACH–BLILEY ACT(GLBA, USA) Focuses on finance Safeguards Rule - Disclosure of Nonpublic Personal Information  It requires financial institutions to develop a written information security plan that describes how the company is prepared for, and plans to continue to protect clients’ nonpublic personal information. This plan must include –  Denoting at least one employee to manage the safeguards,  Constructing a thorough risk analysis on each department handling the nonpublic information,  Develop, monitor, and test a program to secure the information, and  Change the safeguards as needed with the changes in how information is collected, stored, and used.
  21. 21. THE FEDERAL INFORMATIONSECURITY MANAGEMENT ACT OF 2002(FISMA, USA)  Focus on economic and national security interests of the United States  Emphasized on "risk-based policy for cost-effective security“  Responsibility attached to federal agencies, NIST and the Office of Management and Budget (OMB) to strengthen information system security  Not mandatory  No penalty for non-compliance
  22. 22. DATA PROTECTION DIRECTIVE (EU) European Union directive regulating the processing of personal data within the EU Protection of individual’s personal data and its free movement Coming soon - European Data Protection Regulation Not mandatory No penalty for non-compliance
  23. 23. PREAMBLE OF THE IT ACT Purpose behind enacting IT Act –  To provide legal recognition to e-commerce  To facilitate e-governance  To provide remedy to cyber crimes  To provide legal recognition to digital evidenceo Preamble doesn’t specify that the Act aims @ establishing IT Security framework in India
  24. 24. BENEFITS Compliance with legislation No liability on organisation Increased reliability and security of systems Systems rationalization Improved management controls Improved risk management and contingency planning
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