The looming dance: Generative AI and data privacy in India's 2024 landscape

Generative AI (Gen AI), with its ability to create remarkably realistic text, images, and even audio, presents revolutionary opportunities across various sectors. However, its  reliance on vast amounts of data raises questions about data privacy, particularly in India’s recently enacted Digital Personal Data Protection Act, 2023(DPDP Act)  in India. It is therefore important to examine the intricate relationship between Gen AI and data privacy from the perspective of a data privacy lawyer, taking into account India's latest legal developments.

The DPDP Act, 2023: A New Era of Data Protection

India's data privacy landscape underwent a significant transformation with the implementation of the DPDP Act,2023. This comprehensive legislation builds upon the foundations laid by the Personal Data Protection Bill (PDPB), 2022, incorporating valuable feedback and addressing potential shortcomings. 

Key features of the DPDP Act include:

• Data categorization: The DPDP Act classifies data into three tiers – personal data, sensitive personal data, and critical personal data. Each tier is subject to varying compliance requirements, ensuring proportionate protection based on data sensitivity.
• Consent framework: The DPDP Act emphasizes informed and granular consent, empowering individuals to grant specific permissions for data processing based on their preferences. This granular approach provides more control over personal information compared to the single blanket consent under the PDPB.
• Data localization: While the DPDP Act does not mandate blanket data localization for all categories of data, it empowers the government to designate specific sensitive data categories for mandatory storage and processing within India's borders, aiming to safeguard national security and data sovereignty.
• Data Protection Authority (DPA): The DPDP Act establishes the DPA with enhanced powers and resources to effectively oversee data processing practices, investigate grievances, and impose penalties for non-compliance.

Gen AI and the Evolving Privacy Landscape

Despite the robust framework of the DPDP Act, Gen AI still raises several privacy concerns due to its data-intensive nature:

• Data collection and processing: Training Gen AI models often involves massive datasets, potentially encompassing personal information. The DPDP Act's principles of data minimization and informed consent will be crucial in ensuring compliance and responsible data collection practices.
• Data bias and discrimination: Like any data-driven technology, Gen AI models trained on biased data can perpetuate discriminatory outcomes. The DPDP Act's emphasis on fairness and non-discrimination principles, along with individual access rights, empowers individuals to challenge biased outcomes and seek redressal.
• Deepfakes and synthetic media: Gen AI's ability to create highly realistic deepfakes poses risks to individual reputation and potentially impacts elections or national security. The DPDP Act's provisions on sensitive personal data, harmful content, and individual redressal mechanisms will be critical in addressing these challenges.
• Data anonymization and de-identification: While anonymization techniques remain relevant, the DPDP Act recognizes their limitations and emphasizes a risk-based approach to data protection. Data controllers must employ robust anonymization methods and consider potential re-identification risks.

Strategies for Responsible Gen AI Development

Despite the challenges, responsible development and deployment of Gen AI is possible through comprehensive strategies aligned with the DPDP Act:

• Privacy-by-design approach: Integrating privacy considerations throughout the development and deployment process of Gen AI applications remains crucial. This includes minimizing data collection, implementing robust security measures aligned with DPDP Act requirements, and obtaining informed granular consent based on the data purpose.
• Transparency and accountability: Gen AI developers must be transparent about data collection practices, algorithms used, and potential risks, aligning with the DPDP Act's transparency obligations. Mechanisms for accountability, such as data protection impact assessments (DPIAs) and audits, should be implemented.
• Collaboration with stakeholders: Data privacy lawyers, data scientists, and civil society organizations must collaborate to develop ethical guidelines and best practices for responsible Gen AI development that comply with the DPDP Act.
• Leveraging the DPA: The DPA plays a critical role in enforcing data privacy regulations related to Gen AI. Proactive engagement with the DPA, seeking guidance and adhering to its rulings, will be essential for developers and data controllers.

A Continuous Journey Towards Responsible Innovation

In the future, the synergy between Gen AI and the DPDP Act holds the potential to build a better future for individuals. Through continued collaboration, proactive engagement with the DPA, and adherence to ethical principles, we can harness the transformative power of Gen AI while upholding the rights and privacy of individuals. As the dance between technological innovation and data protection unfolds, it is crucial to strike a harmonious balance that fosters innovation without compromising the fundamental right to privacy, paving the way for a more secure and ethically-driven digital future in India.

The article has been written by Nitesh Khare, Certified Data Protection Officer, Director-Zou Global Services