Access To Knowledge (A2K)

Govt likely to issue guidelines to clarify IT rules soon

praskrishna — 2012-12-20T05:24:14Z

Norms relate to the role of intermediaries such as telcos, Web service providers, others on hosting content online, writes Surabhi Agarwal.

The article was first published in LiveMint on December 16, 2012.

After the government issued guidelines on the controversial Section 66A of the Information Technology Act, it is expected to soon come out with similar guidelines to clarify the Information Technology (Intermediaries Guidelines) Rules, 2011, that have also been heavily criticised.

A senior official of the department of electronics and information technology said that even though the government is not looking at amending the overall Act as the legislative process for that would be time consuming, it is hoping to issue guidelines within a week.

The rules were notified in April 2011 with the aim of clearly defining the role of intermediaries—including telcos, Internet and web-hosting service providers and search engines—while hosting content on their networks and websites along with ensuring some level of due diligence by them.

However, this led to outrage among the Internet community as the rules mandated hosts or owners of the websites to take action against “objectionable content” within 36 hours of receiving a complaint. Experts argued that the rules could lead to censorship attempts with some intermediaries complying with illegitimate requests to remove content from websites in a bid to avoid litigation.

The government official said that there had been some confusion about what it meant to take action within 36 hours.

“While the intent was to ensure that intermediaries take cognizance of the request and initiate some proceeding on it, it has been misconstrued as removing content within 36 hours in some cases,” this person said.

The official added that the government was looking at clarifying issues such as this. “We are currently studying the representations sent by different stakeholders on the rules.”

Subho Ray, president, Internet and Mobile Association of India (IAMAI), said that the term “act” should be replaced by “acknowledge” to ensure that it is not wrongly interpreted as removing content within 36 hours.

“We have also requested the time period to be extended to 72 hours as 36 hours is sometimes too short a period if it falls during the weekend,” he said.

While only some clauses address issues such as national interest, public order and security restrictions under which content can be removed, “the remainder of grounds includes private claims such as content which ‘belongs to another person’, or otherwise infringes proprietary rights, or is ‘defamatory’,” said Bangalore-based think tank Centre for Internet and Society (CIS) in its representation, of which Mint has a copy. Moreover, other terms, such as ‘grossly harmful’, ‘harassing’ and ‘disparaging’, are “terminologically indeterminate and purely subjective”, the representation said. It also said that “the intermediary guidelines create a two-track system by which private censorship is legitimized online”.

IAMAI’s recommendations include clearly defining who can qualify as the ‘affected person’ eligible to post a complaint on content, which has currently been left to the discretion and determination of the intermediary.

Ray’s representation also said the rules put the burden of interpretation and acting upon third-party content on the intermediary. “This, we believe is the function of the judiciary and not the intermediaries,” it said.

Guidelines, while bringing some initial clarity, may not be enough, said an executive at a top technology firm who did not want to be identified. “To ensure long-term solutions to some of the issues highlighted, the Act needs to be amended eventually,” he said.

Late last month, the government promised to issue guidelines to the states that complaints under the controversial Section 66A of the IT Act, which criminalizes “causing annoyance or inconvenience” online or electronically, can be registered only with the permission of an officer at or above the rank of deputy commissioner of police, and inspector general in metro cities. However, even in the case of Section 66A, it did not amend the terms in the Section that are said to be vague and subject to interpretation.

For more details visit https://cis-india.org/news/livemint-december-16-2012-surabhi-agarwal-govt-likely-to-issue-guidelines-to-clarify-it-rules-soon

The Trouble with Hurried Solutions

chinmayi — 2012-12-20T04:23:08Z

The World Conference on International Telecommunication showed that countries are not yet ready to arrive at a consensus on regulation and control of the Internet

Chinmayi Arun's Op-ed was published in the Hindu on December 15, 2012.

The World Conference on International Telecommunication (WCIT) that concluded on December 14 saw much heated debate. Some countries wanted to use the International Telecommunication Union (ITU) to gain intergovernmental control of the World Wide Web. Some saw it as an opportunity to democratise the Internet, by replacing U.S. and corporate domination of Internet policy, with a more intergovernmental process. Others insisted that the Internet must be left alone.

The result is that after many days’ deliberations, there was no consensus. The amended International Telecommunication Regulations (ITRs) document has not yet been signed by over 50 countries, of which some like the United States have refused to sign altogether, while others have said that they will need to consult with their national governments before signing.

This article discusses the broader issue under question, which is, whether ITU is the best forum to solve the cross-border problems that arise in relation to the Internet.

WCIT, ITU and ITRs

The ITU has been creating international policy from the days in which the telegraph was prevalent. Although it is now a United Nations agency, its existence predates the U.N. As technology evolved, forcing the telegraph to give way to the telephone, the ITU created new standards for telephony. It even rechristened itself from ‘International Telegraph Union’ to ‘International Telecommunications Union’.

The ITU performs an essential role in ensuring that multiple states with their varying technology, standards and legal systems, are able to interconnect and co-ordinate. Its harmonising rules and standards make co-ordination easier and cheaper than having each state come to an agreement with every other state. The ITRs within the ITU framework facilitate co-ordination by creating binding rules for member states.

Some countries’ proposals for the amendment of the ITRs would have affected content on the Internet substantially. However, after prolonged negotiation, the final draft that was under consideration contained an explicit statement excluding such content from the ITRs’ purview. This draft also came with a resolution that made reference to states’ elaborating their Internet related public policy positions in ITU fora, which was a source of controversy.

Some of the initial suggestions like Russia’s controversial proposal would have given the ITU greater sway over the Internet, permitting it to lay down global standards. These standards may have encouraged countries to inspect data transmitted across the Internet to check whether it is undesirable content raising serious privacy and freedom of speech concerns, especially in countries that do not protect these rights.

The global standards created by the ITU would have permeated to the companies that create the web-based applications that we use, and the resulting law and technological choices would have affected individual users.

Internet governance

The ITU makes its decisions using a traditional model that only seeks consensus between governments, and this is far removed from the way in which the Internet has been governed thus far. Therefore, although expanding the ITU’s mandate to the Internet may seem natural to those who have followed its evolution mirroring the evolution of information technology, the ITU’s manner of functioning is viewed by many as being at odds with the more multi-stakeholder and ad hoc system used to build Internet policy.

In the 1990s, John Perry Barlow proclaimed that cyberspace was outside national borders, and questioned the authority and legitimacy of a national government’s attempts to govern it. Over the years, it has become clear that national governments can exert jurisdiction in cyberspace: filtering content, launching surveillance of users, and creating law that impacts citizens’ behaviour online directly and indirectly.

However, governments’ exertion of will on Internet users is tempered greatly by the other forces that have a strong influence on the Internet. User-behaviour and content often depend on the policies of major service providers like Google, Yahoo, Twitter and Facebook.

Key standards and functions like the allocation of domain names and developing of Internet standards are managed by organisations like ICANN and IETF, which are not governmental organisations. Features like user anonymity are based on technological choices on the World Wide Web. Therefore, governments face significant obstacles and counterbalancing power when they attempt to impose their will on citizens online.

The ITU can weigh this power balance in favour of governments. Many fear that more government power will lead to more censorship, surveillance and stifling of the innovation that is integral to the evolution of Internet. But others support ITU intervention, in the belief that an international inter-governmental regulatory body would be more accountable, and would prevent corporate abuse of power.

Several of the aforementioned corporations, as well as regulatory bodies under question, are headquartered in the United States. There are those who see this as excessive U.S. influence on the Internet, eroding the sovereignty of other states, which have relatively limited influence over what their citizens can transmit and access online. These people see the ITU as a forum that can democratise Internet Governance, giving states shared influence over the web. However, this shared influence is resisted by those who find that the U.S. influence offers them more leverage and protection for their freedom of speech, than increased influence of countries that threaten this internationally accepted human right.

Powerful arguments in favour of increased ITU involvement include highlighting the dangers of abandoning the Internet to the free market. It is true that markets need some regulation to guard against malfunction and abuse of power by stronger players. However, the significant question is not whether these markets should be regulated, but how they should be regulated. Unfortunately, many of the arguments that supported expansion of the ITU’s mandate failed to establish why the ITU is the best solution to the problems plaguing the Internet, rather than being the most readily available reaction.

Any regulatory intervention must have very clear objectives, and some estimate of its likely impact. The intervention must not be considered in isolation but in contrast with other ways to achieve the same goals. Although some of the serious transnational issues plaguing the Internet need international solutions, the ITU, at least in its current avatar, is not necessarily the best remedy. It also remains unclear exactly what effect ITU intervention would have on the Internet — whether it would really offer solutions as intended, or whether it would prove more detrimental than useful, condoning of human rights violations and slowing the blistering innovation that is characteristic of the Internet.

Lack of consensus

Therefore, some of the initial concerns expressed by the countries that refused to sign the ITRs were legitimate. However, the final ITRs document addressed many of these concerns. The dissent emerged over the insertion of text in the preamble that recognised member states’ rights to access international telecommunication networks. These rights, being expressed only in the preamble, are not enforceable, even if they express intentions that are unacceptable to some.

The debates at the WCIT made it clear that the world is not yet ready to come to a unified position on this subject. Perhaps the ITU’s continuation in its path towards increasing, and making effective, multi-stakeholder participation will be the unifying factor some day, if it evolves into a forum which everyone sees as sufficiently democratic, transparent and accountable for Internet policy.

(The writer is Assistant Professor of Law at National Law University, Delhi, and a Fellow of the Centre for Internet and Society, Bangalore. She attended the WCIT from December 3-14)

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-opinion-lead-december-15-2012-chinmayi-arun-the-trouble-with-hurried-solutions

The freedom of expression debate: The State must mend fences with The Web

praskrishna — 2013-01-07T10:30:21Z

A fortnight after her arrest, Renu Srinivasan spends her free time singing Ashley Tisdale's number Suddenly. The lyrics - Suddenly people know my name, suddenly, everything has changed - resonate with the story of her life ever since she 'liked' and 'shared' her friend, Shaheen Dhada's, 21, controversial post regarding Shiv Sena chief Bal Thackeray's funeral on Facebook on November 18 and got arrested for it.

The article by Rahul Jayaram was published in India Today on December 18, 2012. Pranesh Prakash is quoted.

She's now flooded with "hundreds" of messages on FB; some congratulatory, others abusive and gets at least a dozen friend requests on the social networking site. When Renu went to the doctor last week, two constables accompanied her.

"All of a sudden, there's too much attention on me," says the Botany graduate from Dandekar College and a budding singer who is making new friends in the virtual world. There's, however, a word from caution from her father P.A. Srinivasan: "Don't comment on controversial issues you don't understand."

Bloggers are careful. Krish Ashok, a well-known blogger is disappointed with the government's lack of engagement with India's surging online community. In a blog post in August 2010, he made fun of the Ramayana and the fact that women couldn't enter the Sabarimala temple in Kerala. A group called Hindu Janajagruti Samiti threatened to take him to court. Ashok spoke to his lawyer.

"I was amazed. She said no individual could take action against me. But a group or organisation could," he says. Since then, he has become more aware of his Internet rights.

Gursimran Khamba, who has over 30,000 followers on Twitter, kept his cool during Thackeray's death and funeral. When all the media went gaga over him, televising his family photo albums, Khamba, re-tweeted reports and accounts of the Shiv Sena's role during the Mumbai riots of 1992-93. "In my head, I am not courageous to say anything about it myself," he says. He didn't want to incite. He'd rather help his followers get a more nuanced picture of a venerated leader.

Palghar and after, has made Ashok think. "I would reduce the number of provocative posts I might make," he says. Khamba says he will stick to comedy and doesn't believe in offence for the sake of offending although "taking offence is our national sport."

It is a shame, for the Internet is growing in India like nobody's business. It's the medium of the age.

According to comScore, a company that measures Internet trends, India is the fastest growing online market in the last 12 months among BRIC nations. There were 44.5 million unique visitors in July 2011 and in July 2012 there were 62.6 million unique visitors. That is, a growth of 44 per cent in one year. The total Internet usage of 124.7 million users in July 2012, that is, a 41 per cent growth from last year (July 2011).

With 124 million users as of July 2012, India has an Internet penetration of 10 per cent. 75 per cent of India's online users are below the age of 35 making it one of the youngest Net-connected populations. 39.3 per cent of India's Internet population consists of females. It has the highest growth seen among 15 to 24 male and female segments. India has 56.2 million Facebook users and 4.1 million Twitter users. Facebook had 35.3 million users in July 2011 and it jumped to 52.1 million in July 2012. That's a growth of 47% in just one year!

Growth of the Internet is one thing. Freedom of the Internet is another. Freedom House, an American organisation that tracks political and civil liberties worldwide, is blunt in its assessment. India is third in terms of Internet penetration, after the United States and China. Before November 2008, government control over the Internet was limited. All that changed after the November 2008 Mumbai attacks.

Since then it says, "The need, desire, and ability of the Indian government to monitor, censor, and control the communication sector have grown. Given the range of security threats facing the country, many Indians feel that the government should be allowed to monitor personal communications such as telephone calls, email messages, and financial transactions. It is in this context that Parliament passed amendments to the Information Technology Act (ITA) in 2008, expanding censorship and monitoring capabilities. This trend continued in 2011 with the adoption of regulations increasing surveillance in cyber cafes. Meanwhile, the government and non-state actors have intensified pressure on intermediaries, including social media applications, to remove upon request a wide range of content vaguely defined as "offensive" and potentially pre-screen user-generated content. Despite new comprehensive data protection regulations adopted in 2011, the legal framework and oversight surrounding surveillance and interception remains weak, and several instances of abuse have emerged in recent years."

Over this year we have had the cases of cartoonist Aseem Trivedi being put in jail and later released in September. In April, Ambikesh Mahaptra of Jadavpur University in Kolkata was arrested for a cartoon poking fun at West Bengal chief minister Mamta Banerjee and Railway Minister Mukul Roy. In October, Ravi, owner of plastic packaging material factory was arrested and let off on bail for joking about Finance Minister P. Chidambaram's son, Karti. The list gets longer. The Web and the State are at loggerheads. Why?

Lawyers and bloggers haul up Internet laws. And for such a community, we have laws like Section 66 (A) of the Information Technology Act of 2000. The law states that "any person who sends by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character," can be booked for online crime.

Legal experts think Section 66 (A) and the whole of the IT Act of 2000, needs revisiting. According to cyber lawyer Pavan Duggal, Section 66 (A) "is a vanilla provision that can be used for anything online."

Section 66(A) seeks to empower the police and the complainant. "The words 'grossly offensive' and 'menacing character' of Section 66 (A) have no definition given. Normal, legitimate bona fide conversation between boyfriend and girlfriend at noble times online is fine. Once relationship sours, and they are gone."

"It's not clear what the purpose of Section 66A is. It's like having a single provision covering murder, assault, intimidation, and nuisance, and prescribing the same penalty for all of them," says Pranesh Prakash of the Center for Internet and Society, Bangalore. Terminology and the law's purpose are massive concerns.

"The extent of the ambiguity of Section 66A is worrying. Laws need to be very clear about what they want to achieve. If it is murder, then it must say murder. If its attempted murder, it must be clear it is attempted murder. Section 66 A is trying to do too many things at the same time. Its canvas is too vast," says Rajeev Chandrasekar.

As a country, we look to imitate the West, and often copy it badly. Some wonder if we need to mime the West. Pranesh Prakash thinks the Indian Constitution is stronger on free speech grounds than the (unwritten) UK Constitution, and the judiciary has wide powers of judicial review of statutes (i.e., the ability of a court to strike down a law passed by Parliament as 'unconstitutional').

Judicial review of statutes does not exist in the UK (with review under its EU obligations being the exception) as they believe that Parliament is supreme, unlike India. Putting those two aspects together, a law that is valid in the UK might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Article 19(2).

Rajeev Chandrasekar thinks the Brits got it right. During the London riots of June 2011, "the UK government kept a tab on social media networking sites so as to check incitement, he says. It was a good example of clear legislation and effective execution, in an extreme scenario." To defuse online paranoia he wants the government to have a multi-stakeholder arrangement in fixing IT laws. This must involve users, IT companies, cyber cafe owners and the government. The State must mend fences with the Web.

For more details visit https://cis-india.org/news/india-today-rahul-jayaram-december-18-2012-the-freedom-of-expression-debate

Ayodhya trending on Twitter sparks censorship concerns

praskrishna — 2012-12-12T10:38:01Z

On the 20th anniversary of the Babri Masjid demolition, the ShauryaDiwas, Ayodhya and Babri Masjid hashtags were trending on Twitter all day, with almost 2,500 messages sent over 48 hours.

Surabhi Agarwal's article was published in LiveMint on December 6, 2012. Sunil Abraham is quoted.

The tag ShauryaDiwas was used by supporters of the demolition and was used in half the total number of tweets.

Experts said the public display of extreme views on a social networking platform has the potential to create social unrest, leaving the government with few options but to regulate content, in turn fuelling the Internet censorship debate further.

A senior government official said that in a situation in which there are serious national security implications, the government has no option but to "block content" in order to stop communal sentiment from flaring up.

According to social web analytics firm Social Hues, the tweets reached an audience of 456,000 followers. However, according to Vinita Ananth, chief executive of Social Hues, there were also messages that "condemned the call for ShauryaDiwas” tagging it ShameDiwas. "New platforms like Twitter are providing real-time feedback on public sentiment, which is unprecedented."

Ashis Nandy, political and social analyst, said that even though very few Indians are on platforms such as Twitter, communications over them give a hint of what a certain section of the society is thinking about.

"It is a small representation of the middle class, which is driven by ideology and some of the people with extreme opinions may also belong to this group, so perhaps it could have some security implications," he said.

Fringe groups such as those above tend to take extreme positions to get attention, said Sunil Abraham, executive director of Bangalore-based research organization, the Centre for Internet and Society.

Having learnt their lessons after the recent Assam-related panic, intelligence agencies are now keeping a close watch on the Internet, another government official said.

"If necessary, posts will be removed through legitimate ways," the official said, adding that a debate was underway about how to strike a balance between freedom of speech and the lawful requirement of agencies. "Mischief by a few people creates nuisance in society. The government is now looking for ways through which it can regionally block or remove inflammatory tweets. We don’t want to curb freedom of speech and the government doesn’t have any such intentions either," the official said.

Hate messages on social media had sparked a panic exodus of people from the north-east from cities such as Bangalore, Pune and Chennai in August.

For more details visit https://cis-india.org/news/livemint-december-6-2012-surabhi-agarwal-ayodhya-trending-on-twitter-sparks-censorship-concerns

66A ‘cut & paste job’

praskrishna — 2012-12-11T05:43:50Z

The controversial Section 66A of the Information Technology Act has borrowed words out of context from British and American laws, according to lawyers here who are calling it a “poor cut-and-paste job”.

GS Mudur's article was published in the Telegraph on December 3, 2012. Pranesh Prakash and Snehashish Ghosh are quoted.

Section 66A, passed by Parliament in December 2008, draws on laws passed in the UK in 1988 and 2003 and the US in 1996. But some lawyers say that, unlike 66A, those foreign laws impose only reasonable restrictions on freedom of speech.

"The text of 66A seems to be the result of a cut-and-paste job done without applying the mind," said Snehashish Ghosh, a lawyer with the Centre for Internet and Society (CIS), a non-government organisation in Bangalore.

Some of the language in Section 66A is taken from Britain’s Malicious Communications Act (MCA) of 1988, which begins with the words: "Any person who sends to another person...."

This provision in MCA 1988, Ghosh said, is intended to curb malicious messages from one person to another. "It does not cover a post on a social website or an electronic communication broadcast to the world."

Section 66A has also borrowed words from Britain’s Communications Act of 2003 which, Ghosh said, is intended to prevent abuse of public communication services and does not directly deal with messages sent by individuals.

Government officials have said that 66A has also plucked language from the US Telecommunications Act of 1996.

This was a landmark legislation that overhauled America’s telecommunication law by taking into account the emergence of the Internet and changing communications technologies. Among other things, it made illegal the transmission of obscene or indecent material to minors via computers.

"Section 66A in its current form fails to define a specific category (context) as defined in the laws from where it has borrowed words," Ghosh said. "This is what has led to its inconsistent and arbitrary applications."

Ghosh and his colleagues say that 66A, through an "absurd" combination of borrowed and ambiguous language, curbs freedom of expression and threatens people with three years’ imprisonment for certain offences that would otherwise, under existing Indian Penal Code (IPC) provisions, draw a fine of only Rs 200.

Section 66A(b), for example, clubs together the offences of persistently repeated communications that might lead to "annoyance", "inconvenience", "danger", "insult", "injury", "criminal intimidation", "enmity", "hatred", and "ill-will".

This is "astounding and unparalleled", said Pranesh Prakash, policy director at the CIS, who has posted an analysis of Section 66A on the NGO’s institutional blog.

"We do not have such a provision anywhere but in India’s information technology law."

This is “akin to... providing equal punishment for calling someone a moron (insult) and threatening to kill someone (criminal intimidation),” Prakash wrote in the blog, where he has listed existing IPC provisions that can deal with the offences that 66A seeks to cover.

Lawyers have also questioned 66A’s effect of criminalising what the existing IPC would label as civil offences. For example, Prakash said, while the punishment under IPC for criminal nuisance is Rs 200, the penalty imposed by 66A is jail for up to three years.

Several sections in the IPC, they said, can effectively address offences that 66A attempts to address exclusively for electronic communications. For example, the IPC has sections for defamation (499 and 500), outraging religious sentiments (295) and obscenity (292).

"We do not require extraordinary laws when existing laws suffice," Ghosh said.

For more details visit https://cis-india.org/news/telegraphindia-december-3-2012-gs-mudur-66a-cut-and-paste-job

The Worldwide Web of Concerns

pranesh — 2012-12-27T04:31:39Z

The International Telecommunication Union’s World Conference on International Telecommunications (WCIT-12) is currently under way in Dubai, after a gap of 25 years. At this conference, the Inter-national Telecommunication Regulations — a binding treaty containing high-level principles — are to be revised.

Pranesh Prakash's column was published in the Deccan Chronicle on December 10, 2012.

Much has changed since the 1988 Melbourne conference. Since 1988, mobile telephony has grown by leaps and bounds, the Internet has expanded and the World Wide Web has come into existence.

Telecommunications is now, by and large, driven by the private sector and not by state monopolies.

While there are welcome proposals (consumer protection relating to billing of international roaming), there have also been contentious issues that Internet activists have raised: a) process-related problems with the ITU; b) scope of the ITRs, and of ITU’s authority; c) content-related proposals and “evil governments” clamping down on free speech; d) IP traffic routing and distribution of revenues.

Process-related problems: The ITU is a closed-door body with only governments having a voice, and only they and exorbitant fees-paying sector members have access to documents and proposals. Further, governments generally haven’t held public consultations before forming their positions. This lack of transparency and public participation is anathema to any form of global governance and is clearly one of the strongest points of Internet activists who’ve raised alarm bells over WCIT.

w Scope of ITRs: Most telecom regulators around the world distinguish between information services and telecom services, with regulators often not having authority over the former. A few countries even believe that the wide definition of telecommunications in the ITU constitution and the existing ITRs already covers certain aspects of the Internet, and contend that the revisions are in line with the ITU constitution. This view should be roundly rejected, while noting that there are some legitimate concerns about the shift of traditional telephony to IP-based networks and the ability of existing telecom regulations (such as those for mandatory emergency services) to cope with this shift.

ITU’s relationship with Internet governance has been complicated. In 1997, it was happy to take a hands-off approach, cooperating with Internet Society and others, only to seek a larger role in Internet governance soon after. In part this has been because the United States cocked a snook at the ITU and the world community in 1998 through the way it established Internet Corporation for Assigned Names and Numbers (ICANN) as a body to look after the Internet’s domain name system. While the fact that the US has oversight over ICANN needs to change (with de-nationalisation being the best option), Russia wants to supersede ICANN and that too through current revisions of the ITRs. Russia’s proposal is a dreadful idea, and must not just be discarded lightly but thrown away with great force. The ITU should remain but one among multiple equal stakeholders concerned with Internet governance.

One important, but relatively unnoticed, proposed change to ITU’s authority is that of making the standards that ITU’s technical wing churns out mandatory. This is a terrible idea (especially in view of the ITU’s track record at such standards) that only a stuffy bureaucrat without any real-world insight into standards adoption could have dreamt up.

Content-related proposals: Internet activists, especially US-based ones, have been most vocal about the spectre of undemocratic governments trying to control online speech through the ITRs. Their concerns are overblown, especially given that worse provisions already exist in the ITU’s constitution. A more real threat is that of increasing national regulation of the Internet and its subsequent balkanisation, and this is increasingly becoming reality even without revisions to the ITRs.

Having said that, we must ensure that issues like harmonisation of cyber-security and spam laws, which India has been pushing, should not come under ITU’s authority. A further worry is the increasing militarisation of cyberspace, and an appropriate space must be found by nation-states to address this pressing issue, without bringing it under the same umbrella as online protests by groups like Anonymous.

Division of revenue: Another set of proposals is being pushed by a group of European telecom companies hoping to revive their hard-hit industry. They want the ITU to regulate how payments are made for the flow of Internet traffic, and to prevent socalled “net neutrality” laws that aim to protect consumers and prevent monopolistic market abuse. They are concerned that the Googles and Facebooks of the world are free-riding on their investments. That all these companies pay to use networks just as all home users do, is conveniently forgotten. Thankfully, most countries don’t seem to be considering these proposals seriously.

Can general criteria be framed for judging these proposals? In submissions to the Indian government, the Centre for Internet and Society suggested that any proposed revision of the ITRs be considered favourably only if it passes all the following tests: if international regulation is required, rather than just national-level regulation (i.e., the principle of subsidiarity); if it is a technical issue limited to telecommunications networks and services, and their interoperability; if it is an issue that has to be decided exclusively at the level of nation-states; if the precautionary principle is satisfied; and if there is no better place than the ITRs to address that issue. If all of the above are satisfied, then it must be seen if it furthers substantive principles, such as equity and development, competition and prevention of monopolies, etc. If it does, then we should ask what kind of regulation is needed: whether it should be mandatory, whether it is the correct sort of intervention required to achieve the policy objectives.

The threat of a “UN takeover” of the Internet through the WCIT is non-existent. Since the ITU’s secretary-general is insisting on consensus (as is tradition) rather than voting, the possibility of bad proposals (of which there are many) going through is slim. However, that doesn’t mean that activists have been crying themselves hoarse in vain. That people around the world are a bit more aware about the linkage between the technical features of the Internet and its potential as a vehicle for free speech, commerce and development, is worth having to hear some shriller voices out there.

The writer is policy director at the Centre for Internet and Society, Bengaluru

For more details visit https://cis-india.org/internet-governance/blog/deccan-chronicle-pranesh-prakash-december-10-2012-the-worldwide-web-of-concerns

Debate on Section 66A rages on

praskrishna — 2012-12-10T09:44:31Z

Last week, a reputed BPO in Chennai took down its Facebook page and introduced stricter moderation for posts on its bulletin board.

Vasudha Venugopal's article was published in the Hindu on December 10, 2012. Pranesh Prakash is quoted.

The measure, an official said, was aimed at avoiding any "callous remark by any employee." "We have discussions on many raging topics here, and we are just making sure the content is clean with no intended defamation."

The need to present only ‘unobjectionable content’ is just one off-shoot of a controversy that has gripped the country after at least five persons were arrested in recent months for posting their views online. But what started as an outcry by a few voices against the IT Act has now turned into a campaign against the constitutional validity of the Act itself. Last week also saw concerted protests to demand the repeal of Section 66A of the IT Act, under which most of the accused were booked. Human chains and protests were conducted in Chennai, Bangalore, Pune, Hyderabad, Guntur, Kakinada, Vijaywada, Visakhapatnam, Pune, Kozhikode and Kannur, among others.

In the past few months, the debate on the use of Section 66A in particular, and the Act in general, has gathered momentum. The arrests of Jadavpur University professor Ambikesh Mahapatra for circulating a cartoon lampooning West Bengal Chief Minister Mamata Banerjee; cartoonist Aseem Trivedi; businessman Ravi Srinivasan for tweets against Union Finance Minister P. Chidambaram’s son Karti Chidambaram; and the two girls in Maharashtra for criticising the bandh after Shiv Sena leader Bal Thackeray’s death have sparked popular anger.

“Public anger and media attention have been so strong that the government has been forced to retreat, which is a good first step,” says Alagunambi Welkin, president of the Free Software Foundation Tamil Nadu, which organised the protests in Chennai. "The next step would be to plug the loopholes in the IT Act. After all, this same government has declared in various international forums that it is all for promoting openness online."

Activists say that along with the increased pressure on the government, collecting information on cases of the misuse of the Act are the tasks that have to be fulfilled immediately. Human rights activist A. Marx, who has filed a public interest litigation petition against Section 66A, says the selective application of the law is very troubling. From a broader perspective though, this is also an issue of global proportions. Recently, a man in the U.K. was jailed for 18 months after he was found guilty of posting abusive messages on an online memorial. In July this year, a young Moroccan was arrested in Casablanca on the charge of posting “insulting caricatures of the Prophet Mohammed on Facebook.”

As recently as Tuesday, a Shenzen resident was arrested for posting a letter online, accusing a senior village official of corruption, and last week, a man in Kent was arrested for posting an image of a burning poppy on a social network site.

However, Pranesh Prakash, policy director, Centre For Internet And Society, Bangalore, notes that the more problematic parts in India’s laws are ones that result from adaptation. India’s own adaptation of the U.K. law, for instance, considerably increases punishment from six months to three years. However, if it is any consolation, there are voices worldwide being raised on this issue. Till last week, Google’s search page had a message: "Love the free and open Internet? Tell the world’s governments to keep it that way," and a link for comments directed to the Dubai conference, which will see a wide-ranging discussions and key decisions on global internet governance.

For more details visit https://cis-india.org/news/the-hindu-sci-tech-internet-december-10-2012-vasudha-venugopal-debate-on-section-66a

The Worldwide Web of Concerns

pranesh — 2012-12-10T05:10:47Z

The threat of a ‘UN takeover’ of the Internet through the WCIT is non-existent. However, that does not mean that activists have been crying themselves hoarse in vain.

Pranesh Prakash's column was published in the Asian Age on December 10, 2012.

The International Telecommunication Union’s World Conference on International Telecommunications (WCIT-12) is currently under way in Dubai, after a gap of 25 years. At this conference, the International Telecommunication Regulations — a binding treaty containing high-level principles — are to be revised.

Much has changed since the 1988 Melbourne conference. Since 1988, mobile telephony has grown by leaps and bounds, the Internet has expanded and the World Wide Web has come into existence. Telecommunications is now, by and large, driven by the private sector and not by state monopolies.

Process-related problems: The ITU is a closed-door body with only governments having a voice, and only they and exorbitant fees-paying sector members have access to documents and proposals. Further, governments generally haven’t held public consultations before forming their positions. This lack of transparency and public participation is anathema to any form of global governance and is clearly one of the strongest points of Internet activists who’ve raised alarm bells over WCIT.

Scope of ITRs: Most telecom regulators around the world distinguish between information services and telecom services, with regulators often not having authority over the former. A few countries even believe that the wide definition of telecommunications in the ITU constitution and the existing ITRs already covers certain aspects of the Internet, and contend that the revisions are in line with the ITU constitution. This view should be roundly rejected, while noting that there are some legitimate concerns about the shift of traditional telephony to IP-based networks and the ability of existing telecom regulations (such as those for mandatory emergency services) to cope with this shift.

Content-related proposals: Internet activists, especially US-based ones, have been most vocal about the spectre of undemocratic governments trying to control online speech through the ITRs. Their concerns are overblown, especially given that worse provisions already exist in the ITU’s constitution. A more real threat is that of increasing national regulation of the Internet and its subsequent balkanisation, and this is increasingly becoming reality even without revisions to the ITRs. Having said that, we must ensure that issues like harmonisation of cyber-security and spam laws, which India has been pushing, should not come under ITU’s authority. A further worry is the increasing militarisation of cyberspace, and an appropriate space must be found by nation-states to address this pressing issue, without bringing it under the same umbrella as online protests by groups like Anonymous.

Division of revenue: Another set of proposals is being pushed by a group of European telecom companies hoping to revive their hard-hit industry. They want the ITU to regulate how payments are made for the flow of Internet traffic, and to prevent so-called “net neutrality” laws that aim to protect consumers and prevent monopolistic market abuse. They are concerned that the Googles and Facebooks of the world are free-riding on their investments. That all these companies pay to use networks just as all home users do, is conveniently forgotten. Thankfully, most countries don’t seem to be considering these proposals seriously.

Can general criteria be framed for judging these proposals? In submissions to the Indian government, the Centre for Internet and Society suggested that any proposed revision of the ITRs be considered favourably only if it passes all the following tests: if international regulation is required, rather than just national-level regulation (i.e., the principle of subsidiarity); if it is a technical issue limited to telecommunications networks and services, and their interoperability; if it is an issue that has to be decided exclusively at the level of nation-states; if the precautionary principle is satisfied; and if there is no better place than the ITRs to address that issue. If all of the above are satisfied, then it must be seen if it furthers substantive principles, such as equity and development, competition and prevention of monopolies, etc. If it does, then we should ask what kind of regulation is needed: whether it should be mandatory, whether it is the correct sort of intervention required to achieve the policy objectives.

The writer is policy director at the Centre for Internet and Society, Bengaluru

For more details visit https://cis-india.org/internet-governance/blog/asian-age-column-december-10-2012-pranesh-prakash-the-worldwide-web-of-concerns

Annual Conference on Human Rights 2012

praskrishna — 2013-01-07T10:47:00Z

Malavika Jayaram participated in this conference as a panelist in this event organised by Estonia and Google.

Read the original published by Estonian Institute of Human Rights on December 9, 2012.

Monday, December 10, 2012

09:30-10:00 Registration of participants

10:00-11:00 Opening session

Welcoming remarks:	Hanno Pevkur, Minister of Social of Affairs
Presentation of the Report on Human Rights in Estonia:	Mart Nutt, MP, Member of Supervising Board of Estonian Institute of Human Rights Karin Reivart, Research Manager, Turu-uuringute AS
Moderator:	Vootele Hansen, Chairman of Estonian Institute of Human Rights

11:00 – 12:40 Session 1

Human Rights and Security: Protecting victims and providing justice

In the modern world, the vast majority of casualties in armed conflicts are civilians. How should the international community react to human rights violations in conflict zones? Could a conflict exist between the requirements of peace on the one hand and justice, on the other? How can we implement the concept of Responsibility to Protect in practice? How does the promotion of human rights influence the ability of Western nations and institutions to interact with the rest of the world?

Keynote speech:	Stephen J. Rapp, United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice.
Panelists:	Anthony Dworkin, European Council on Foreign Relations, Senior Policy Fellow Gentian Zyberi, University of Oslo, Norwegian Centre for Human Rights, Associate Professor Jeffrey D. Levine, United States Ambassador in Estonia
Moderator:	Riina Kionka, Head of Central Asia Division, European External Action Service; former Personal Representative for Human Rights in the area of CFSP for SG/HR

12:40 – 14:00 Lunch

14:00 – 15:40 Session 2

Human Rights and the Internet: Shuting down the Internet, shuting up the world

UN Human Rights Council Resolution L13 (6 July 2012) stresses that human rights must also be guaranteed in cyberspace. There is no doubt that the Internet has become an important resource for acquiring information, disseminating points of view and creating networks. Restricting Internet freedom also poses a direct threat to human rights. The panel will discuss these threats: who wants to restrict the Internet? Why and how are they doing it? How should we respond?

Keynote speech:	Dunja Mijatovic, OSCE Representative on Freedom of the Media
Panelists:	Toomas Hendrik Ilves, President of Estonia Thomas Zerdick, policy officer, DG Justice, European Commission Malavika Jayaram, Fellow at the Centre for Internet and Society, India David Mothander, Google Nordic Policy Counsel
Moderator:	Dr Katrin Merike Nyman-Metcalf, Tallinn University of Technology, member of the Council of Estonian Human Rights Centre

15:40 – 16:10 Coffee break

16:10 – 17:50 Session 3

Contemporary Human Rights Challenges in a Changing Global Balance of Power

The panel will focus on the role of human rights policy in the changing international environment. Does the shift in global power away from the West force a system based on democracy, human rights and the rule of law onto the defensive? How do we promote our values while engaging with authoritarian countries? Should human rights policy consider local needs and conditions?

Panelists:	Anna Sevortian, Director of Human Rights Watch´s Russia Office Frank Johansson, Director of Amnesty International´s Finland Office Douglas Davidson, US State Department Special Envoy for Holocaust Issues; former Head of the OSCE Mission to Bosnia and Herzegovina Dr Anja Mihr, Netherlands Institute of Human Rights, Associate Professor
Moderator:	Hannes Hanso, Researcher, International Centre for Defence Studies

17:50 – 18:00 Conclusions

Dr Mart Nutt, MP, Member of Supervising Board of EIHR

18:30 – 21:30 Dinner, hosted by the President of Estonia, Toomas Hendrik Ilves

The dinner will be the Swissôtel Tallinn (6. floor).

N.B! The organiser reserves the right to make changes in the programme and the presenters

For more details visit https://cis-india.org/news/estonian-institute-of-human-rights-december-9-2012-annual-conference-on-human-rights-2012

Online Censorship: How Government should Approach Regulation of Speech

sunil — 2012-12-05T07:06:52Z

Why is there a constant brouhaha in India about online censorship? What must be done to address this?

Sunil Abraham's article was published in the Economic Times on December 2, 2012.

Of course, we must get the basics right â€” bad law has to be amended, read down by courts or repealed, and bad implementation of law should be addressed via reform and capacity building for the police. But most importantly those in power must understand how to approach the regulation of speech.

To begin with, speech is regulated across the world. Even in the US â€” contrary to popular impression in India â€” speech is regulated both online and offline.

However, law is not the basis of most of this regulation. Speech is largely regulated by social norms. Different corners of our online and offline society have quite complex forms of self-regulation.

The harm caused by speech is often proportionate to the power of the person speaking â€” it maybe unacceptable for a politician or a filmstar to make an inflammatory remark but that very same utterance from an ordinary citizen may be totally fine.

To complicate matters, the very same speech by the very same person could be harmful or harmless based on context. A newspaper editor may share obscene jokes with friends in a bar, but may not take similar liberties in an editorial.

The legal scholar Alan Dershowitz tells us, "The best answer to bad speech is good speech." More recently the quote has been amended, with "more speech" replacing "good speech".

Censorship by the state has to be reserved for the rarest of rare circumstances. This is because censorship usually results in unintended consequences.

The "Streisand Effect", named after the singer-actor Barbra Streisand, is one of these consequences wherein attempts to hide or censor information only result in wider circulation and greater publicity.

The Maharashtra police's attempt to censor the voices of two women has resulted in their speech being broadcast across the nation on social and mainstream media. If the state had instead focused on producing good speech and more speech, nobody would have even heard of these women.

Circumventing Censorship

Peer-to-peer technologies on the internet mimic the topology of human networks and can also precipitate unintended consequences when subject to regulation. John Gilmore, a respected free software developer, puts it succinctly: "The Net interprets censorship as damage and routes around it."

Most of the internet censorship in the US is due to IPR-enforcement activities. This is why Christopher Soghoian, a leading privacy activist, attributes the massive adoption of privacy-enhancing technologies such as proxies and VPNs (virtual private networks) by American consumers to the crackdown on online piracy.

In India, and even when the government has had legitimate reasons to regulate speech, there have been unintended consequences.

During the exodus of people from the North-east, the five SMS per day restriction imposed by the government resulted in another exodus from SMS to alternative messaging platforms such as BlackBerry Messenger (BBM), WhatsApp and Twitter.

In both cases the circumvention of censorship by the users has resulted in a worsening situation for law-enforcement organisations â€” VPNs and applications like WhatsApp are much more difficult to monitor and regulate.

Mixed Memes

Regulation of speech also cannot be confused with cyber war or security. Speech can occasionally have security implications but that cannot be the basis for enlightened regulation.

A cyber war expert may be tempted to think of censored content as weapons, but unlike weapons that usually remain lethal, content that can cause harm today may become completely harmless tomorrow. This is unlike a computer virus or malware. For example, during the exodus, the online edition of ET featured the complete list of 309 URLs that were in the four block orders issued by the government to ISPs.

However, this did not result in fresh harm, demonstrating the fallacy of cyber war analogies. A cyber security expert, on the other hand, may be tempted to implement a 360Â° blanket surveillance to regulate speech, but as Gilmore again puts it, "If you're watching everybody, you're watching nobody."

In short, if your answer to bad speech is more censorship, more surveillance and more regulation, then as the internet meme goes, "You're Doing It Wrong".

For more details visit https://cis-india.org/internet-governance/blog/economic-times-december-2-2012-sunil-abraham-online-censorship

Technology Culture and Events in South East Asia — A Presentation by Preetam Rai

praskrishna — 2012-12-19T12:25:29Z

Preetam Rai who works with nonprofits, startups and educational institutions will do a small presentation cum discussion at the Centre for Internet & Society, Bangalore on December 18, 2012, from 5.00 p.m. to 6.30 p.m.

In 2012, Myanmar hosted one of the largest open technology event with over 5000 attendees joining the Barcamp Yangon. Every month, Cambodian youth put together dozens of self-initiated peer learning events and actively use social networks to recruit participants. Thais are creating physical spaces where social entrepreneurs and developers collaborate with each other.

Join us to explore these trends and how they are helping change South East Asia. Learn how the technology enthusiasts are ignoring past national antagonism and traveling across borders to connect with peers.

We will introduce you to events and spaces(coworking spaces, hackerspaces) that you can join in to explore this activity first hand when you are traveling through the region.


Participants from several South East Asian countries at BlogFest 2012 in Cambodia.

Preetam Rai

Preetam Rai helps put up technology and educational events in South East Asia. He works with nonprofits, startups and educational institutions helping them connect better with their audiences. He was the South East Asian Regional Editor at Global Voices Online, a social media aggregation project initiated by the Berkman Centre for Internet and Society. He is on twitter at @preetamrai.

VIDEO

For more details visit https://cis-india.org/internet-governance/events/technology-culture-and-events-in-south-east-asia

Comments on the Proposed Rule 138A of the Central Motor Vehicle Rules, 1989 Concerning Radio Frequency Identification Tags

bhairav — 2012-12-04T15:32:55Z

The Centre for Internet & Society gave its comments on the proposed Rule 138A of the Central Motor Vehicle Rules, 1989. The comments were made in response to Notification GSR 738(E) published in the Gazette of India on October 3, 2012.

I Preliminary

1.1 These initial comments are made with regard to Notification GSR 738(E), published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), on 3 October 2012
(“Impugned Notification”).

1.2 The Impugned Notification proposes to insert a new rule 138A in the Central Motor Vehicle Rules, 1989 (“CMV Rules”) to make mandatory the installation of radio frequency identification (“RFID”) tags on all light and heavy motor vehicles to enable their instant identification and monitoring by electronic toll collection booths, the police and any other authority or person that is able to query and read RFID tags.

II Validity of the Impugned Notification

(a) The Scope and Limits of the Executive Power of the Union

2.1 The competence of the Central Government to govern by executive action (such as the Impugned Notification) is restricted to the extent of the executive power of the Union.[1] Following the Ram Jawaya Kapur case,[2] it is settled that the extent of the Union’s executive power is coterminous with the legislative power of Parliament even in the absence of controlling legislation in that field.[3] This is in addition to the Union’s subordinate executive power to give effect to legislation through statutory delegation[4] and its directory executive power to give directions to the States.[5] Thus, there are three kinds of executive power exercisable by the Union:

(a) the regular power, exercisable in the absence of controlling legislation, if the subject of executive action is a matter upon which Parliament is competent to legislate;
(b) the subordinate power, exercisable under the terms of a controlling statute, if that statute specifically delegates such a power to the Union; and
(c) the directory power, exercisable within judicial limits, to secure the compliance of the States with the laws of the Union.

2.2 The regular executive power of the Union cannot be exercised over a matter that is controlled by parliamentary legislation.[6] This principle is akin to, but does not correspond exactly with, the doctrine of occupied field which is primarily concerned with the legislative entries contained in Schedule VII of the Constitution of India. Nevertheless, it is settled that since the power of the executive to act is subject to the control of the legislature, a statutory regime, where it exists, cannot be circumvented by the free exercise of executive power.[7] In the case of the Impugned Notification, the Motor Vehicles Act, 1988 constitutes a statutory regime that occupies the field to preclude regular executive action by the Central Government with regard to RFID tags in motor vehicles. The Impugned Notification should next be examined only in light of the scope and limits of the Union’s subordinate executive power since, as the Impugned Notification is not a direction to the States, the Union’s directory executive power is not in issue.

(b) Extent of the Central Government’s Rule-Making Power

2.3 The subordinate executive power of the Union emanates from section 110 of the Motor Vehicles Act, 1988 (“MV Act”) that confers the Central Government with the power to make rules to implement the statute. At this point it is important to note that the legislative competence of the MV Act is traceable to Entry 35 of List III, Schedule VII of the Constitution of India. Entry 35 concerns:

Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.

Entry 35 being a concurrent subject, it is open to both the Union and the States to act to regulate motor vehicles.[8] Accordingly, the MV Act also vests the States with subordinate executive power through sections 28, 38, 65, 95, 96, 107, 111, 138 and 176 which confer State Governments with the power to make rules to implement the statute in, and amend its application to, their particular states. As for the Union, so for the States is the regular executive power precluded by the existence of a statutory regime.[9]

2.4 Section 110 of the MV Act states:

110. Power of the Central Government to make rules. – (1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-

(a) the width, height, length and overhand of vehicles and of the loads carried;
(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;
(c) brakes and steering gear;
(d) the use of safety glasses including prohibition of the use of tinted safety glasses;
(e) signalling appliances, lamps and reflectors;
(f) speed governors;
(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;
(h) the reduction of noise emitted by or caused by vehicles;
(i) the embossment of chassis number and engine number and the date of manufacture;
(j) safety belts, handle bars of motor cycles, auto-dippers and other equipments essential for safety of drivers, passengers and other road-user;
(k) standards of the components used in the vehicle as inbuilt safety devices;
(l) provision for transportation of goods of dangerous or hazardous nature to human life;
(m) standards for emission of air pollutants;
(n) installation of catalytic convertors in the class of vehicles to be prescribed;
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;
(p) warranty after sale of vehicle and norms therefor:

Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.

(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

(3) Notwithstanding anything contained in this section,-

(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;
(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.

2.5 The subordinate executive power of the Union, i.e. the rule-making power, is restricted to the exact extent of the delegation.[10] This is a well settled and undisputed principle of administrative law. Therefore, the Central Government cannot, in exercise of the rule-making power granted under section 110 of the MV Act, frame rules for matters for which it has not been specifically empowered under that section. Section 110 of the MV Act does not grant the Central Government the power to make rules for mandating RFID tags on vehicles. Clauses (a) to (p) of section 110(1) descriptively list the matters relating to the construction, equipment and maintenance of motor vehicles that the Central Government is competent to regulate by exercising its executive power. This list is exactingly drafted; the absence of general words or a miscellaneous empowerment obviates the need for examining any particular word or words in clauses (a) to (p) in light of the principle of ejusdem generis.

2.6 In the absence of a specific empowerment, or even a general empowerment that may be positively construed ejusdem generis, only two clauses of section 110(1) require further examination. These are:

(e) signalling appliances, lamps and reflectors; and,
(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;

Clause (e), which deals with signalling appliances, cannot be read to include RFID tags since, in accordance with the principle of noscitur a sociis, the meaning of the words “signalling appliances” is derived from its association with the words “lamps and reflectors.”[11] Therefore, RFID tags, which are totally unrelated to lamps, reflectors and related signalling appliances, are not the subject of clause (e). On the other hand, while clause (o) contains an executive empowerment in respect of radio devices, the empowerment only concerns “public vehicles”; and, hence, the installation of RFID tags in non-public vehicles including light vehicles, such as cars, and heavy vehicles, such trucks and lorries, cannot be carried out under this clause. In any event, the word “radio” must be interpreted noscitur a sociis in light of its association with the words “audio-visual” and “tape recorder” to yield an executive empowerment in respect of in-vehicle entertainment devices only.

2.7 Therefore, in the absence of an empowerment under section 110 of the MV Act in respect of RFID tags, the Impugned Notification of the Central Government is ultra vires the MV Act. Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void.[12] The Impugned Notification is both ultra vires its parent statute and void. In this regard, it is instructive to note that it is settled that void rules neither acquire validity by a subsequent conferment of statutory power nor by their publication in the Official Gazette.[13]

III Constitutional Implications regarding Privacy

3.1 Across the world, RFID technology has been challenged on the basis of its intrusion into personal privacy. RFID tags operate on a pre-determined radio frequency; and, unless the tags are programmed to rapidly, constantly and randomly switch frequencies or are able to jam unauthorised queries – an extremely expensive proposition, RFID signals can be easily intercepted. The interception a vehicle’s RFID signals, whether by public authorities or by private persons, can yield detailed locational information of the driver of the vehicle. This is an unwarranted intrusion into the locational privacy of individuals.

3.2 Locational privacy is an intrinsic part of the right to privacy. An intrusion into this right, such as in the form of mandatory RFID tags on vehicles, will reveal information as to inter alia a person’s whereabouts and daily routine as well as addresses of friends’ houses, visits to the hospital, visits to a place of worship, restaurant preferences, addresses of children’s schools and so on. This will affect ordinary citizens, politicians and civil servants equally. All this information will be at the hands of the police. To place the power of tracking and monitoring ordinary individuals with the police, when such technology is not even available with intelligence agencies, would be an act of recklessness. This is compounded by the total lack of safeguards accompanying the attempted imposition of RFID technology.

3.3 Following the Kharak Singh[14] and Gobind[15] cases, the locational privacy of individuals, specifically in relation to their privacy from the police, is constitutionally protected.[16] It is now accepted that privacy is an essential ingredient of personal liberty forming a part of the right recognised under Article 21 of the Constitution. It is further settled that the personal liberty of an individual cannot be taken away except by a law that establishes a procedure that is fair, just and reasonable that withstands the tests of Article 14 and Article 19 of the Constitution.[17]The Impugned Notification, while constituting a “law” under Article 13 of the Constitution, does not create a fair, just and reasonable procedure to deprive individuals of their personal liberty and therefore fails the tests imposed by Maneka Gandhi. Therefore, the Impugned Notification, even if it were not void for want of competence, would be ultra vires the Constitution for violating Article 21.[18]

IV Summary

4.1 In sum:

(a) Section 110 of the MV Act does not bestow on the Central Government a specific empowerment to make rules in respect of RFID tags;
(b) The Impugned Notification exceeds the delegated limits of the Central Government’s subordinate executive power;
(c) The Impugned Notification is ultra vires the MV Act, its parent statute;
(d) Rules that are ultra vires the parent statute for exceeding the limits of subordinate executive power are void;
(e) The Impugned Notification is void;
(f)   The imposition of mandatory RFID tags on vehicles will yield locational information to seriously invade the right to privacy;
(g) The right to privacy is an essential ingredient of personal liberty and is constitutionally protected;
(h) The Impugned Notification violates the right to privacy without creating a fair, just and reasonable procedure to deprive persons of their personal liberty;
(i)   The Impugned Notification is ultra vires the Constitution for violating Article 21;
(j)   Any rule that mandates RFID tags on vehicles to violate the right to privacy is void ab initio.

[1]. Article 73 of the Constitution of India.
[2]. Ram Jawaya Kapur AIR 1955 SC 549.
[3]. Ibid at prs. 12-14.
[4]. See generally, In re Delhi Laws Act AIR 1951 SC 332, Harishankar Bagla AIR 1954 SC 465, Rajnarain Singh AIR 1954 SC 569 and Edward Mills AIR 1955 SC 25.
[5]. See Articles 256 and 257 of the Constitution and State of Rajasthan (1977) 3 SCC 592.
[6]. Bishamber Dayal (1982) 1 SCC 39 at pr. 20.
[7]. Bharat Coking Coal (1990) 4 SCC 557 at prs. 15-17.
[8].Article 253 of the Constitution.
[9]. Article 162 of the Constitution.
[10]. See In re Delhi Laws Act AIR 1951 SC 332, State of Bihar (2000) 4 SCC 640, Shri Sitaram Sugar (1990) 3 SCC 223 [all Constitution Benches], Ramakrishnan Kulwant Rai 1989 Supp (1) SCC 541, K. M. Charia Abdullah (1965) 1 SCR 601, Charanjit Gill (2000) 5 SCC 742, ADM (Rev.) Delhi Administration (2000) 5 SCC 451 and State of Karnataka (1983) 2 SCC 402.
[11]. For foundational Indian case law on the principle of noscitur a sociis, see generally, M. K. Ranganathan AIR 1955 SC 604, Hospital Mazdoor Sabha AIR 1960 SC 110 and Corporation of the City of Nagpur AIR 1960 SC 675.
[12]. See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.
[35]. General Officer Commanding-in-Chief (1988) 2 SCC 351 at prs. 12-14.
[14]. Kharak Singh AIR 1963 SC 1295. The majority, speaking through Ayyangar, J., found that ‘domiciliary visits’ conducted by the police in exercise of powers granted under police regulations violated Article 21 of the Constitution; and, the minority speaking through Subba Rao, J., found that both secret police picketing (as to the location of individuals) and domiciliary visits violated both Article 21 and Article 19(1)(d) of the Constitution.
[15]. Gobind (1975) 2 SCC 148.
[16]. For a jurisprudential development of the right to privacy in India, see generally Kharak Singh AIR 1963 SC 1295, R. M. Malkani (1973) 1 SCC 471, Gobind (1975) 2 SCC 148, R. Rajagopal (1994) 6 SCC 632, People’s Union for Civil Liberties (1997) 1 SCC 301, Mr ‘X’ (1998) 8 SCC 296, Canara Bank (2005) 1 SCC 496, Bharat Shah (2008) 13 SCC 5, Naz Foundation (2009) 160 DLT 277, Selvi (2010) 7 SCC 263 and Ram Jethmalani (2011) 8 SCC 1.
[17]. Maneka Gandhi (1978) 1 SCC 248 at prs. 4-14 (per Bhagwati, Untwalia and Fazal Ali, JJ.), 48-49 (per Chandrachud, J.), 62-78 and 79-91 (per Krishna Iyer, J.) and 192-199, 201, 203 and 211-215 (per Beg, CJI.)
[18]. In this regard, see also Supreme Court Welfare Association (1989) 4 SCC 187 and N. Bakshi 1962 Supp (1) SCR 505 for the proposition that rules violating the Constitution are void ab initio.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-motor-vehicle-rules

Section 66-A, Information Technology Act, 2000: Cases

snehashish — 2012-12-06T09:20:51Z

In this blog post Snehashish Ghosh summarizes the facts of a few cases where Section 66-A, Information Technology Act, 2000, has been mentioned or discussed.

There has been numerous instances application of the Section 66-A, Information Technology Act, 2000 (“ITA”) in the lower courts. Currently, there are six High Court decisions, in which the section has been mentioned or discussed. In this blog post, I will be summarizing facts of a few cases insofar as they can be gathered from the orders of the Court and are pertinent to the application of 66-A, ITA.

Sajeesh Krishnan v. State of Kerala (Kerala High Court, Decided on June 5, 2012)

Petition before High Court for release of passport seized by investigating agency during arrest

In the case of Sajeesh Krishnan v. State of Kerala (Decided on June 5, 2012), a petition was filed before the Kerala High Court for release of passport seized at the time of arrest from the custody of the investigating agency. The Court accordingly passed an order for release of the passport of the petitioner.

The Court, while deciding the case, briefly mentioned the facts of the case which were relevant to the petition. It stated that the “gist of the accusation is that the accused pursuant to a criminal conspiracy hatched by them made attempts to extort money by black mailing a Minister of the State and for that purpose they have forged some CD as if it contained statements purported to have been made by the Minister.” The Court also noted the provisions under which the accused was charged. They are Sections 66-A(b) and 66D of the Information Technology Act, 2000 along with a host of sections under the Indian Penal Code, 1860 (120B – Criminal Conspiracy, 419 – Cheating by personation, 511- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, 420 – Cheating and dishonestly inducing delivery of property, 468 – Forgery for purpose of cheating, 469 – Forgery for purpose of harming and 201 – Causing disappearance of evidence of offence, or giving false information to screen offender read with 34 of Indian Penal Code, 1860)

Nikhil Chacko Sam v. State of Kerala (Kerala High Court, Decided on July 9, 2012)

Order of the Kerala High Court on issuing of the summons to the petitioner

In another case, the Kerala High Court while passing an order with respect to summons issued to the accused, also mentioned the charge sheet laid by the police against the accused in its order. The accused was charged under section 66-A, ITA. The brief facts which can be extracted from the order of the Court read: “that the complainant and the accused (petitioner) were together at Chennai. It is stated that on 04.09.2009, the petitioner has transmitted photos of the de facto complainant and another person depicting them in bad light through internet and thus the petitioner has committed the offence as mentioned above.”

J.R. Gangwani and Another v. State of Haryana and Others (Punjab and Haryana High Court, Decided on October 15, 2012)

Petition for quashing of criminal proceedings under section 482 of the Criminal Procedure Code, 1973

In the Punjab and Haryana High Court, an application for quashing of criminal proceeding draws attention to a complaint which was filed under Section 66-A(c). This complaint was filed under Section 66-A(c) on the ground of sending e-mails under assumed e-mail addresses to customers of the Company which contained material which maligned the name of the Company which was to be sold as per the orders of the Company Law Board. The Complainant in the case received the e-mails which were redirected from the customers. According to the accused and the petitioner in the current hearing, the e-mail was not directed to the complainant or the company as is required under Section 66-A (c).

The High Court held that, “the petitioners are sending these messages to the purchasers of cranes from the company and those purchasers cannot be considered to be the possible buyers of the company. Sending of such e-mails, therefore, is not promoting the sale of the company which is the purpose of the advertisement given in the Economic Times. Such advertisements are, therefore, for the purpose of causing annoyance or inconvenience to the company or to deceive or mislead the addressee about the origin of such messages. These facts, therefore, clearly bring the acts of the petitioners within the purview of section 66A(c) of the Act.”

Mohammad Amjad v. Sharad Sagar Singh and Ors. (Criminal Revision no. 72/2011 filed before the Court of Sh. Vinay Kumar Khana Additional Sessions Judge – 04 South East: Saket Courts Delhi)

Revision petition against the order of the metropolitan magistrate

In a revision petition came up before the Additional Sessions Judge on the grounds that the metropolitan magistrate has dismissed a criminal complaint under Section 156(3) of the Criminal Procedure Code without discussing the ingredients of section 295-A, IPC and 66-A, IT Act.

In this case, the judge observed that, “...section 66A of Information Technology Act (IT Act) does not refer at all to any 'group' or 'class' of people. The only requirement of Section 66A IT Act is that the message which is communicated is grossly offensive in nature or has menacing character.” He also observed that the previous order “not at all considered the allegations from this angle and the applicability of Section 66A Information Technology Act, 2000 to the factual matrix of the instant case.”

For more details visit https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases

Transcripts from WCIT-12

snehashish — 2012-12-03T14:00:21Z

We are archiving copies of the live-transcripts from the World Conference on International Telecommunications, 2012 (WCIT-12) which is being held in Dubai from 3–14 December, 2012.

This is an unedited rough transcript of the discussions/sessions at the WCIT,2012 which is live-streamed and made available by the ITU. We are hosting the live-streamed text for archival purposes:

Day 1 - WCIT-2012: Opening Ceremony (December 3, 2012)

Day 1 - WCIT-2012: Plenary 1 (December 3, 2012)

For more details visit https://cis-india.org/internet-governance/blog/transcripts-of-wcit-2012

Seminar/Artist Talks : "Outresourcing" with the Transmediale Collective

praskrishna — 2012-12-12T07:06:20Z

Sharath Chandra Ram is presenting a White Paper at this event initiated by the Berlin - Transmediale new media collective in Bangalore on December 3, 2012.

OutResourcing is a collaboration project in 2011-2013 of transmediale, festival for art and digital culture, Berlin in cooperation with CEMA, Center for Experimental Media Arts at Sristhi School of Art, Design and Technology, Bangalore. It is supported by Goethe Institute and the framework of Germany and India 2011-2012: Infinite Opportunities.

OutResourcing explores the pervasive phenomenon of outsourcing from a critical constructive point of view. Outsourcing is often either simply embraced as an economical necessity of labor costs in a global economy or criticised as such on the basis of the uneven distribution of wealth, power and/or labor that it entails.

General Welcome and Introductions

2.00 p.m.	First session “outResourcing Phase 1: Rebugging and Insulating” Moderator: Kristoffer Gansing, artistic director, Transmediale
2.15 p.m.	Kristoffer Gansing – 15 minutes introduction to outResourcing
2.30 p.m.	Prayas Abhinav (Artist talk), MAS*ING: INSULATION, ARTIST TALK
3.00 p.m.	Linda Hilfling (Artist talk), THE REBUGGING MANUALS
3.30 p.m.	Sharath Chandra Ram (Artist talk), CLOSED CAPTION
4.00 - 4.30 p.m.	Common discussion 30 minutes

Break 30 minutes

5.00 p.m.	Second Session “outResourcing Phase 2: “Manufacturing and Copying” Moderator: Abhiyan Humane
5.10 p.m.	Galerie C&V "ESSAY ON PRODUCTIVE RESOURCES"
5.40 p.m.	Presentation of exhibition by Srishti School of Art, Design & Technology in collaboration with Galerie C&V Title - THE CONVENIENT TRUTH
6.15 p.m.	Common discussion 25 minutes

Break 20 minutes

7.00 - 8.00 p.m.

Introduction: Kristoffer Gansing
Keynote lecture: Dieter Daniels: RE-SOURCING THE READY-MADE

For more information about the event, click here.

For more details visit https://cis-india.org/news/seminar-artist-talks-outresourcing-with-the-transmediale-collective