Kerala High Court issues guidelines to anonymize data collected by the State with respect to Covid19

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The petitioners alleged that: (i) the contract barely has any safeguards against the commercial and unauthorised exploitation of data entrusted to Sprinklr;  and (ii) in case of any breach by Sprinklr, the Kerala government will have no legal recourse before the courts in India since the contract grants exclusive jurisdiction to the courts in New York. The petitioners also submitted that the contract violates Article 299 (1) of the Constitution of India.

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The Kerala government submitted that the contract was executed in order to overcome the “worst case projections” and the possibility of sudden spike in cases due to the outbreak of COVID-19. The Kerala government had anticipated that tracking and tracing of citizens would be necessary with the assistance of a scalable information technology system and the available in-house technology was not well-equipped. The Information Technology Department of the government supported these contentions and asserted that the protection systems on Amazon Cloud Service makes it impossible for anyone including Sprinklr to breach the data confidentiality.

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The Union of India (UOI) emphasized that exclusive jurisdiction granted to the New York courts is unacceptable and that the State of Kerala should have resorted to competent Indian entities to maintain such ‘sensitive medical data’. The UOI also expressed concerns about the confidentiality of the data and potential breach.

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In view of the above, the court:

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directed the Kerala government to provide only anonymized data to Sprinklr and in future apprise and take specific consent from the citizens to the effect that their data so collected will likely be accessed by Sprinklr or any other third party;

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issued a peremptory order that any residual or secondary data available with Sprinklr shall be entrusted back to the Kerala government;

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injuncted Sprinklr from committing breach of the terms of confidentiality and from parting with the data so provided under the contract to any third party;

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directed that Sprinklr shall not deal with the data entrusted upon them in derogation of the confidentiality provisions set out in the contract and shall entrust back all the data so provided by the Kerala government as soon as Sprinklr’s obligations under the contract is complete; and

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injuncted Sprinklr from advertising or representing to any third party regarding the data or using the name or logo of the Kerala Government, directly or indirectly, for any commercial benefit.

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The Kerala High Court further observed that data confidentiality is about protecting data from unlawful, unauthorized and unintentional access and disclosure. Therefore, the authorizations to view, share and use data forms the hypostasis of all confidentiality requirements. The Kerala High Court also observed that the corner stone of managing data confidentiality is, to a large extent, determined by the control over access to it and the modus and manner in which it has been dealt with.