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Iron out contradictions in the Digital India programme

sumandro — 2015-07-28T01:04:28Z

The Digital India initiative takes an ambitious 'Phir Bhi Dil Hai Hindustani' approach to develop communication infrastructure, government information systems, and general capacity to digitise public life in India. I of course use 'public life' in the sense of the wide sphere of interactions between people and public institutions.

The article was published in the Hindustan Times on July 15, 2015.

The 'Phir Bhi Dil Hai Hindustani' approach involves putting together Japanese shoes, British trousers, and a Russian cap to make an entertainer with a pure Indian heart. In this case, the analogy must not be understood as different components of the initiative coming from different countries, but as coming from different efforts to use digital technologies for governance in India.

It is deploying the Public Information Infrastructure vision, inclusive of the National Optical Fibre Network (now renamed as BharatNet) and the national cloud computing platform titled Meghraj, so passionately conceptualised and pursued by Sam Pitroda. It has chosen the Aadhaar ID and the authentication-as-a-service infrastructure built by Nandan Nilekani, Ram Sewak Sharma, and the team, as the identity platform for all governmental processes across Digital India projects. It has closely embraced the mandate proposed by Jaswant Singh led National Task Force on Information Technology and Software Development for completely electronic interface for paper-free citizen-government interactions.

The digital literacy and online education aspects of the initiative build upon the National Mission on Education through ICT driven by Kapil Sibal. Two of the three vision areas of the Digital India initiative, namely 'Digital infrastructure as a utility to every citizen' and 'governance and service on demand,' are directly drawn from the two core emphasis clusters of the National e-Governance Plan designed by R. Chandrashekhar and team, namely the creation of the national and state-level network and data infrastructures, and the National Mission Mode projects to enable electronic delivery of services across ministries.

And this is not a bad thing at all. In fact, the need for this programmatic and strategic convergence has been felt for quite some time now, and it is wonderful to see the Prime Minister directly addressing this need. Although, while drawing benefits from the existing programmes, the DI initiative must also deal with the challenges inherited in the process.

Recently circulated documents describes that the institutional framework for Digital India will be headed by a Monitoring Committee overseeing two main drivers of the initiative: the Digital India Advisory Group led by the minister of communication and information technology, and the Apex Committee chaired by the cabinet secretary. While the former will function primarily through guiding the implementation works by the Department of Electronics and Information Technology (DeitY), the latter will lead the activities of both the DeitY and the various sectoral ministries.

Here lies one possible institutional bottleneck that the Digital India architecture inherits from the National e-Governance Plan. Putting the DeitY in the driving seat of the digital transformation agenda in parallel with all other central government departments indicate an understanding that the transformation is fundamentally a technical issue. However, most often what is needed is administrative reform at a larger scale, and re-engineering of processes at a smaller scale.

Government agencies that have addressed such challenges in the past, such as the department of administrative reforms and public grievances, is not mentioned explicitly within the institutional framework, and instead DeitY has been trusted with a range of tasks that may be beyond its scope and core skills.

The danger of this is that the Digital India initiative will end up initiating more infrastructural and software projects, without transforming the underlying governmental processes. For example, the recently launched eBasta website creates a centralised online shop for publishers of educational materials to make books available for teachers to browse and select for their classes, and for the students to directly download, against payment or otherwise. The website has been developed by the Centre for Development of Advanced Computing and DeitY. At the same time, the ministry of human resource development, which is responsible for matters related to public education, has already collaborated with the Central Institute of Educational Technology and the Homi Bhabha Centre for Science Education in TIFR to build a comprehensive platform for multi-media resources for education – the National Repository of Open Educational Resources. The initial plans of the DI initiative are yet to explicitly recognise that the key challenge is not in building new applications and websites, but aligning existing efforts.

This mismatch, between what the Digital India initiative proposes to achieve and how it plans to achieve it, is further demonstrated in the 'e-Governance Policy Initiatives under Digital India' document. The compilation lists the key policies to govern designing and implementation of the Digital India programmes, but surprisingly fails to mention any policies, acts, and pending bills approved or initiated by any previous government. This is remarkably counter-productive as the existing policy frameworks, such as the Framework for Mobile Governance, the National Data Sharing and Accessibility Policy, and the Interoperability Framework for e-Governance, are suitably placed to complement the new policies around use of free of open source softwares for e-governance systems, so as to ensure their transparency, interoperability, and inclusive outreach. Several pending bills like The National Identification Authority of India Bill, 2010, The Electronic Delivery of Services Bill, 2011, and The Privacy (Protection) Bill, 2013, are absolutely fundamental for comprehensive and secure implementation of the various programmes under the Digital India initiative.

The next year will complete a decade of development of national e-governance systems in India, since the launch of National e-Governance Plan in 2006. Given this history of information systems sometimes partially implemented and sometimes working in isolation, a 'Phir Bhi Dil Hai Hindustani' approach to digitise India is a very pragmatic one. What we surely do not need is increased contradiction among e-governance systems. Simultaneously, we neither need digital systems that centralise governmental power within one ministry on technical grounds, or expose citizens to abuse of their digital identity and assets due to lack of sufficient legal frameworks.

(Sumandro Chattapadhyay is research director, The Centre for Internet and Society. The views expressed are personal.)

For more details visit https://cis-india.org/internet-governance/blog/hindustan-times-july-15-2015-sumandro-chattapadhyay-iron-out-contradictions-in-the-digital-india-programme

A Public Discussion on Criminal Defamation in India

bhairav — 2015-07-27T14:44:15Z

The Centre for Internet and Society (CIS); the Network of Women in Media, India; and Media Watch, Bengaluru, are hosting a public discussion on criminal defamation in India. The discussion will start at 5.30 pm on Wednesday, 29 July 2015, at the CIS office in Domlur, Bengaluru.


Pictured above: A poster of the event.

Decriminalising Defamation in India: A Brief Statement of Issues

Subramanian Swamy’s petition to decriminalise defamation has been joined in the Supreme Court by concurring petitions from Rahul Gandhi and Arvind Kejriwal. Defamation is criminalised by sections 499 and 500 of the Indian Penal Code, 1860 (IPC). Swamy and his unlikely cohorts want the Supreme Court to declare that these criminal defamation provisions interfere with the right to free speech and strike them down.

Although news coverage of the case has focused on the motivations and arguments of the three politicians, defamation should not be the sole province of celebrities and the powerful. Unfortunately, criminal defamation has emerged as a new system of censorship to silence journalists, writers, and activists. SLAPP suits (Strategic Lawsuits against Public Participation) are being increasingly used by large corporations to frighten and overwhelm critics and opponents. SLAPP suits are not designed to succeed – although they often do, they are intended to intimidate, harass, and outspend journalists and activists into submission.

The law of defamation rests on uncertain foundations. In medieval Europe defamation was dually prosecuted by the Church as a sin equal to sexual immorality, and by secular courts for the threat of violence that accompanied defamatory speech. These distinct concerns yielded a peculiar defence which fused two elements: truth, which shielded the speaker from the sin of lying; and, the public good, which protected the speaker from the charge of disrupting the public peace. This dual formulation – truth and the public good – remains the primary defence to defamation today.

India does not have a strong ‘fair comment’ defence to protect speech that is neither true nor intrinsically socially useful. This bolsters the law’s reflexive censorship of speech that falls outside the bounds of social utility and morality such as parody, caricature, outrageous opinion, sensationalism, and rumour. This failure affects cartoonists and tabloid sensationalism alike.

Defamation law is also open to procedural misuse to maximise its harrassive effect. Since speech that is published on the Internet or mass-printed and distributed can be read almost anywhere, the venue of criminal defamation proceedings can be chosen to inconvenience and exhaust a speaker into surrender. This motivation explains the peculiarly remote location of several defamation proceedings in India against journalists and magazine editors.

The offence of defamation commoditises reputation. While defamation remains a crime, the state must prosecute it as it does other crimes such as murder and rape. This merits the question: should the state expend public resources to defend the individual reputations of its citizens? Such a system notionally guarantees parity because if the state were to retreat from this role leaving private persons to fight for their own reputations, the market would favour the reputations of the rich and powerful at the expense of others.

These and other issues demand an informed and rigorous public discussion about the continued criminalisation of defamation in India.

Download the concept note prepared by Bhairav Acharya

For more details visit https://cis-india.org/internet-governance/events/a-public-discussion-on-criminal-defamation-in-india

Will Indians have to pay for WhatsApp?

pranesh — 2015-08-24T02:00:56Z

India's Department of Telecommunications (DoT) formed a panel in January 2015 to look into net neutrality in the country.

This was originally published by BBC on July 25. Pranesh Prakash has been quoted.

Net neutrality means service providers should treat all traffic equally. Users should be able to access all websites at the same speed and cost.

A battle to decide the future of the internet in India is being fought online, between telecom users and operators.

The panel has now released its report to the public and invited comments. Pranesh Prakash from the Centre for Internet Studies decodes the report and what it means for Indians.

What does the panel say?

Internet-based Over-the-top (OTT) communication services like WhatsApp, Viber, and the like are currently taking advantage of "regulatory arbitrage", meaning that the regulations that apply to non-Internet based communications services (telephone calls) are different from OTT communications services.

Under current rules, the OTT services don't have to get a licence from the government, don't have to abide by anti-spam, do-not-disturb regulations, share any revenue with the government or abide by national security conditions. The panel wants to bring these services under a licensing regime.

The report distinguishes between Internet-based voice calls (voice over IP, or VoIP) and messaging services and doesn't wish to interfere with the latter. This means it could regulate services like Skype, Viber and WhatsApp calls but not WhatsApp or Viber messages. It also distinguishes between domestic and international VoIP calls, and believes only the former need regulation. It is unclear on what basis these distinctions are made.

The core principles of net neutrality - which are undefined in the report, though definitions proposed in submissions they've received are quoted - should be adhered to. In the long-run, these should find place in a new law, but for the time being they can be enforced through the licence agreement between the government and telecom providers.

Where does the panel report go wrong?

The proposal by the panel to regulate VoIP services like Skype or Viber is a terrible idea.

Many important terms are left undefined, and many distinctions that the report draws are left unexplained. For instance, it is unclear on what regulatory basis the report distinguishes between domestic and international VoIP calls or between regulation of messaging services and VoIP services.

Will it increase cost of access to WhatsApp and Viber?

"Zero-rating" is a policy whereby telecoms providers agree not to pass on the costs of handling the data traffic so that consumers can receive services for free.

On the one hand, this could decrease the cost of access to WhatsApp and Viber. But that might not be allowed because free services could harm competition and distort markets.

Whether this will lead to consumers paying for WhatsApp and similar services depends on what kinds of regulations are placed on them, and if any costs are imposed on them.

Does the report uphold net neutrality?

The report is clear that it strongly endorses the "core principles of net neutrality".

On the issue of "zero-rating" the panel proposes some sound measures, saying that there should be a two-part mechanism for ensuring that "harmful" zero-rating doesn't go through.

First, telecom services need to submit "zero-rating" tariff proposals to an expert body constituted by telecoms department.

Second, consumers will be able to complain about the harmful usage of "zero-rating" by any service provider, which may result in a fine.

Where have people got the report wrong?

There have been reports saying that the panel has recommended increased charges for domestic VoIP calls. This is untrue.

There are reports saying the panel has given the go-ahead for all forms of zero-rating. Once again, this is untrue. The panel cites instances of zero-rating that aren't discriminatory, violative of net neutrality and don't harm competition or distort consumer markets (such as zero-rating of all Internet traffic for a limited time period). Then it goes on to state that the regulator should not allow zero-rating that violates the core principles of net neutrality.

Pranesh Prakash is policy director at the Centre for Internet and Society. A longer article he wrote on the panel report can be accessed here.

For more details visit https://cis-india.org/internet-governance/news/bbc-july-25-2015-will-indians-have-to-pay-for-whatsapp

First draft of Technology Business Incubators: An Indian Perspective and Implementation Guidance Report

vidushi — 2015-07-25T16:14:44Z

The Centre for Internet and Society presents the first draft of its analysis on technology business incubators("TBI") in India. The report prepared by Sunil Abraham, Vidushi Marda, Udbhav Tiwari and Anumeha Karnatak looks at operating procedures, success stories and lessons that can be learnt from TBIs in India.

A technology business incubator (TBI) is an organisational setup that nurtures technology based and knowledge driven companies by helping them survive during the startup period in the company’s history, which lasts around the initial two to three years. Incubators do this by providing an integrated package of work space, shared office services, access to specialized equipment along with value added services like fund raising, legal services, business planning, technical assistance and networking support. The main objective of the technology business incubators is to produce successful business ventures that create jobs and wealth in the region, along with encouraging an attitude of innovation in the country as a whole.

The primary aspects that this report shall go into are the stages of a startup, the motivational factors behind establishing incubators by governments & private players, the process followed by them in selecting, nurturing talent as well as providing post incubation support. The report will also look at the role that incubators play in the general economy apart from their function of incubating companies, such as educational or public research roles. A series of case analysis of seven well established incubators from India shall follow which will look into their nurturing processes, success stories as well as lessons that can be learnt from their establishment. The final section shall look into challenges faced by incubators in developing economies and the measures taken by them to overcome these challenges.

Download the full paper

For more details visit https://cis-india.org/internet-governance/blog/technology-business-incubators

The scariest bill in Parliament is getting no attention – here’s what you need to know about it

sunil — 2015-09-13T07:56:42Z

A bill proposes creation of a national DNA data bank, without requisite safeguards for privacy, and opens the information to everything from civic disputes to compilation of statistics.

The blog post by Nayantara Narayanan was published in Scroll.in on July 24, 2015.

On Wednesday, the Narendra Modi government told the Supreme Court that India's citizens have no fundamental right to privacy. Attorney General Mukul Rohatgi referred to a 1950 court verdict which held that the right to privacy was not a fundamental right while defending the constitutional validity of the Aadhar scheme, a massive database of information of individual citizens including biometrics and bank accounts. At the same time, the government is planning another big database.

In the ongoing stormy monsoon session of Parliament, where the government and opposition have locked horns over several proposed legislation, Human DNA Profiling Bill 2015 has been making little noise but can have widespread impact on India’s criminal justice system and the privacy of citizens. The bill aims to regulate the collection and use of genetic material from crime scenes, and also proposes the creation of a national DNA databank that might be used for non-forensic purposes.

DNA is a mighty tool, especially in criminal forensics, but access to a person’s genetic information can be highly intrusive and dangerous. DNA contains information about health and genetic relationships that can influence employment, insurance. It can be tampered with and planted at crime scenes.

Law and poverty expert Usha Ramanathan and Centre for Internet and Society executive director Sunil Abraham, who are members of an expert committee on DNA profiling constituted by the government, have written dissent notes against the final draft of the Human DNA Profiling Bill. Ramanathan and Abraham are of the opinion that there aren’t adequate safeguards to privacy and too much power rests with the proposed DNA Profiling Board.

Ramanathan notes that one of the biggest challenges of a DNA database is function creep – the gradual widening of the use of a technology beyond the purpose for which it was originally intended. As this DNA profiling bill enters Parliament, here are some questions we should be asking.

Is DNA evidence infallible?

The short answer is “no”. Despite all the crime shows and murder movies we have seen where DNA evidence nails the perpetrator to the crime, DNA evidence is far from absolute. Genetic material recovered from a crime scene is likely to be only a partial strand of DNA. Analysing this partial strand can lead to a match with the person that left the DNA behind but can also lead to a coincidental match with people who happen to have a similar gene sequence in their DNA. False incriminations can happen when more than one person’s DNA get mixed at the crime scene, from DNA contamination, mislabelling and even degradation over time.

In the Aarushi Talwar murder case, for instance, the Hyderabad-based Centre for DNA Fingerprinting and Diagnostics altered its 2008 report in 2013 and admitted to typographical errors in the description of its DNA samples. The evidence could have changed the course of the investigation.

What will the national DNA database look like?

The bill proposes to set up a national DNA data bank and a number of state or regional data banks that will feed into the national data pool. Every data bank will have six categories under which DNA profiles will be filed – crime scene index, suspects’ index, offenders’ index, missing persons’ index, unknown deceased persons’ index, and volunteers’ index. The DNA profiling board will have the power to include more categories. In the offenders’ index, the DNA information will be linked to the name of the person from whom it was collected. All others will be linked to a case reference number.

What happens when my genetic material is on the database?

The bill gives sanction for broad use of DNA profiles and samples – to identify victims of accidents or disasters, to identify missing persons, for civil disputes and other offences. It also allows the information to be used to create population statistics, identification research, parental disputes, issues relating to reproductive technologies and migration. In his dissent note, Abraham argues that all non-forensic use should be rejected.

Cases like whether paternity should be determined, unwed mothers leaving their children and adopted children looking for their natural parents are hugely contestable things, said Ramanathan. “You are changing multiple structures and not recognising any of them,” she added.

Even though the bill allows for DNA information of offenders to be expunged once a court acquits them or sets aside a conviction, it makes no provision for removing other kinds of profiles.

The CDFD, which will be instrumental in building and processing DNA profiles, is using the CODIS software bought from the US's Federal Bureau of Investigation an compatible with their systems. The FBI used CODIS to identify victims of the terrorist attacks on the World Trade Center in 2001. More recently, the CDFD used CODIS to identify some who died in the Uttarakhand floods of 2013 after asking for 5,000 people who were possibly relatives of the deceased to undertake DNA testing.

Can the DNA profiling board protect our genetic information?

The bill grants the board vast powers to allow the use of DNA profiles in any civil and criminal proceedings that it deems necessary. “Ideally these powers would lie with the legislative or judicial branch,” Abraham said, in his dissent note. “Furthermore, the Bill establishes no mechanism for accountability or oversight over the functioning of the Board.”

Ramanathan questions the constitution of the board itself, her worry being that the board is not a body of disinterested officials. The secretary of the board is supposed to be from the Centre for DNA Fingerprinting and Diagnostics, an autonomous institute that will get a lot of work from the creation of the national DNA data bank.

Why does a DNA fingerprinting consent form ask for caste?

One of the most troubling features of the creation of a databank is the consent form to be signed by a person donating blood for DNA analysis. Along with name, gender and address, the form also asks for caste to be listed.

India has a history of unwarrantedly linking caste and community with criminality. Members of decriminalised tribes regularly report being harassed by the police and even having false cases foisted on them simply because they are linked to a certain community. Tagging caste onto genetic data can result in unfair profiling and identification errors.

The United Kingdom set up its national criminal DNA database in 1995. The database expanded over a decade by including genetic information of anyone who was arrested till more than one million innocent people were on it – including a grandmother who didn’t return a football to children who kicked it into her garden. The dangers of a genetic database are too much state oversight, false implication in crimes and a loss of privacy – none of which should come to pass without at least a debate.

For more details visit https://cis-india.org/internet-governance/news/the-scariest-bill-in-parliament-is-getting-no-attention-2013-here2019s-what-you-need-to-know-about-it

Clearing Misconceptions: What the DoT Panel Report on Net Neutrality Says (and Doesn't)

pranesh — 2015-07-21T12:36:26Z

There have been many misconceptions about what the DoT Panel Report on Net Neutrality says: the most popular ones being that they have recommended higher charges for services like WhatsApp and Viber, and that the report is an anti-Net neutrality report masquerading as a pro-Net neutrality report. Pranesh Prakash clears up these and other incorrect notions about the report in this brief analysis.

Background of the DoT panel

In January 2015, the Department of Telecommunication (DoT) formed a panel to look into "net neutrality from public policy objective, its advantages and limitations," as well the impact of a "regulated telecom services sector and unregulated content and applications sector". After spending a few months collecting both oral and written testimony from a number of players in this debate, and analysing it, on July 16 that panel submitted its report to the DoT and released it to the public for comments (till August 15, 2015). At the same time, independently, the Telecom Regulatory Authority of India (TRAI) is also considering the same set of issues. TRAI received more than a million responses in response to its consultation paper — the most TRAI has ever received on any topic — the vast majority of of them thanks in part to the great work of the Save the Internet campaign. TRAI is yet to submit its recommendations to the DoT. Once those recommendations are in, the DoT will have to take its call on how to go ahead with these two sets of issues: regulation of certain Internet-based communications services, and net neutrality.

Summary of the DoT panel report

The DoT panel had the tough job of synthesising the feedback from dozens of people and organizations. In this, they have done an acceptable job. Although, in multiple places, the panel has wrongly summarised the opinions of the "civil society" deponents: I was one of the deponents on the day that civil society actors presented their oral submissions, so I know. For instance, the panel report notes in 4.2.9.c that "According to civil society, competing applications like voice OTT services were eroding revenues of the government and the TSPs, creating security and privacy concerns, causing direct as well as indirect losses." I do not recall that being the main thrust of any civil society participant's submission before the panel. That having been said, one might still legitimately claim that none of these or other mistakes (which include errors like "emergency" instead of "emergence", "Tim Burners Lee" instead of "Tim Berners-Lee", etc.) are such that they have radically altered the report's analysis or recommendations.

The report makes some very important points that are worth noting, which can be broken into two broad headings:

On governmental regulation of OTTs

Internet-based (i.e., over-the-top, or "OTT") communications services (like WhatsApp, Viber, and the like) are currently taking advantage of "regulatory arbitrage": meaning that the regulations that apply to non-IP communications services and IP communications services are different. Under the current "unified licence" regime, WhatsApp, Viber, and other such services don't have to get a licence from the government, don't have to abide by anti-spam Do-Not-Disturb regulations, do not have to share any part of their revenue with the government, do not have to abide by national security terms in the licence, and in general are treated differently from other telecom services. The report wishes to bring these within a licensing regime.
The report distinguishes between Internet-based voice calls (voice over IP, or VoIP) and messaging services, and doesn't wish to interfere with the latter. It also distinguishes between domestic and international VoIP calls, and believes only the former need regulation. It is unclear on what bases these distinctions are made.
OTT "application services" do not need special telecom-oriented regulation.
There should a separation in regulatory terms between the network layer and the service layer. While this doesn't mean much in the short-term for Net neutrality, it will be very important in the long-term for ICT regulation, and is very welcome.

On Net neutrality

The core principles of Net neutrality — which are undefined in the report, though definitions proposed in submissions they've received are quoted — should be adhered to. In the long-run, these should find place in a new law, but for the time being they can be enforced through the licence agreement between the DoT and telecom providers.
On the contentious issue of zero-rating, a process that involves both ex-ante and ex-post regulation is envisaged to prevent harmful zero-rating, while allowing beneficial zero-rating. Further, the report notes that the supposed altruistic or "public interest" motives of the zero-rating scheme do not matter if they result in harm to competition, distort consumer markets, violate the core tenets of Net neutrality, or unduly benefit an Internet "gatekeeper".

Where does the DoT panel report go wrong?

The proposal by the DoT panel of a licensing regime for VoIP services is a terrible idea. It would presumptively hold all licence non-holders to be unlawful, and that should not be the case. While it is in India's national interest to want to hold VoIP services to account if they do not follow legitimate regulations, it is far better to do this through ex-post regulations rather than an ex-ante licensing scheme. A licensing scheme would benefit Indian VoIP companies (including services like Hike, which Airtel has invested in) over foreign companies like Viber. The report also doesn't say how one would distinguish between OTT communication services and OTT application services, when many apps such as food ordering apps, including text chat facilities. Further, VoIP need not be provided by a company: I run my own XMPP servers, which is a protocol used for both text and video/voice. Will a licensing regime force me to become a licence-holder or will it set a high bar? The DoT panel report doesn't say. Will there be a revenue-sharing mechanism, as is currently the case under the Unified Licence? If so, how will it be calculated in case of services like WhatsApp? These questions too find no answer in the report. All in all, this part of the report's analysis is found to be sadly wanting.
Many important terms are left undefined, and many distinctions that the report draws are left unexplained. For instance, it is unclear on what regulatory basis the report distinguishes between domestic and international VoIP calls — which is an unenforceable (not to mention regulatorily unimportant) distinction — or between regulation of messaging services and VoIP services, or what precisely they mean by "application-agnostic" and "application-specific" network management (since different scholars on this issue mean different things when they say "application").

What does the DoT panel report mean for consumers?

Not too much currently, since the DoT panel report is still just a set of recommendations by an expert body based on (invited) public consultations.
Does it uphold Net neutrality? The DoT panel report is clear that they strongly endorse the "core principles of Net neutrality". On the issue of "zero-rating", the panel proposes some sound measures, saying that there should be a two-part mechanism for ensuring that harmful zero-rating doesn't go through: First, telecom services need to submit zero-rating tariff proposals to an expert body constituted by DoT; and second consumers will be able to complain about the harmful usage of zero-rating by any service provider, which may result in a fine. What constitutes harm / violation of Net neutrality? The panel suggests that any tariff scheme that may harm competition, distorts the consumer market, or violates the core principles of Net neutrality is harmful. This makes sense.
Will it increase cost of access to WhatsApp and Viber? Well, one the one hand, zero-rating of those services could decrease the cost of access to WhatsApp and Viber, but that might not be allowed if the DoT panel recommendations are accepted, since that would possibly be judged to harm competition and distort the consumer markets. The DoT panel has also recommended bringing such services within a licensing framework to bridge the "regulatory arbitrage" that they are able benefit from (meaning that these services don't have to abide by many regulations that a telecom provider has to follow). Whether this will lead to WhatsApp and similar services charging depends on what kinds of regulations are placed on them, and if any costs are imposed on them. If the government decides to take the approach they took to ISPs in the late 90s (essentially, charging them Re. 1 as the licence fee), doesn't impose any revenue sharing (as they currently require of all telecom services), etc., then there needn't be any overly burdensome costs that WhatsApp-like services will need to pass on to consumers.

What misunderstandings do people have?

There are multiple news reports that the DoT panel has recommended increased charges for domestic VoIP calls, or that ISPs will now be able to double-charge. Both of these are untrue. The DoT panel's recommendations are about "regulatory arbitrage" and licensing, which need not be related to cost.
There is a fear that the exception from net neutrality of "managed services and enterprise services" is a "loophole", or that exceptions for "emergency services" and "desirable public or government services" are too vague and carry the potential of misuse. If one goes by the examples that the panel cites of managed services (e.g., services an ISP provides for a private company separately from the rest of the Internet, etc.), these fear seems largely misplaced. We must also realize the the panel report is a report, and not legislation, and the rationale for wanting exemptions from Net neutrality are clear.
The DoT panel has given the go-ahead for zero-rating. Once again, this is untrue. The panel cites instances of zero-rating that aren't discriminatory, violative of Net neutrality and don't harm competition or distort consumer markets (such as zero-rating of all Internet traffic for a limited time period). Then it goes on to state that the regulator should not allow zero-rating that violates the core principles of Net neutrality.

What's missing in the Net neutrality debate is nuance. It's become a debate in which you are either for Net neutrality or against it. However, none of the underlying components of Net neutrality — a complex mix of competition policy, innovation policy, the right to freedom of expression, etc. — are absolutes; therefore, it is clear that Net neutrality cannot be an absolute either.

For more details visit https://cis-india.org/internet-governance/blog/clearing-misconceptions-dot-panel-net-neutrality

Aadhaar Number vs the Social Security Number

elonnai — 2015-07-24T01:24:00Z

This blog calls out the differences between the Aadhaar Number and the Social Security Number

In response to news items that reported the Government of India running pilot projects to enroll children at the time of birth for Aadhaar numbers - an idea that government officials in the news items claimed was along the lines of the social security number - this note seeks to point out the ways in which the Aadhaar number and the social security number are different.[1]

Governance

SSN is governed by Federal legislation: The issuance, collection, and use of the SSN is governed by a number of Federal and State legislation with the most pertinent being the Social Security Act 1935[2] - which provides legal backing for the number, and the Privacy Act 1974 which regulates the collection, access, and sharing of the SSN by Federal Executive agencies.[3]

Aadhaar was constituted under the Planning Commission: The UIDAI was constituted as an attached office under the Planning Commission in 2009.[4] A Unique Identification Authority Bill has been drafted, but has not been enacted.[5] Though portions of the Information Technology Act 2008 apply to the UID scheme, section 43A and associated Rules (India's data protection standards) do not clearly apply to the UIDAI as the provision has jurisdiction only over body corporate.

Purpose

SSN was created as a number record keeping scheme for government services: The Social Security Act provides for the creation of a record keeping scheme - the SSN. Originally, the SSN was used as a means to track an individuals earnings in the Social Security system.[6] In 1943 via an executive order, the number was adopted across Federal agencies. Eventually the number has evolved from being a record keeping scheme into a means of identity. In 1977 it was clarified by the Carter administration that the number could act as a means to validate the status of an individual (for example if he or she could legally work in the country) but that it was not to serve as a national identity document.[7] Today the SSN serves as a number for tracking individuals in the social security system and as one (among other) form of identification for different services and businesses. Alone, the SSN card does not serve proof of identity, citizenship, and it cannot be used to transact with and does not have the ability to store information. [8]

Aadhaar was created as a biometric based authenticator and a single unique proof of identity: The Aadhaar number was established as a single proof of identity and address for any resident in India that can be used to authenticate the identity of an individual in transactions with organizations that have adopted the number. The scheme as been promoted as a tool for reducing fraud in the public distribution system and enabling the government to better deliver public benefits.[9]

Applicability

SSN is for citizens and non-citizens authorized to work: The social security number is primarily for citizens of the United States of America. In certain cases, non citizens who have been authorized by the Department of Homeland Security to work in the US may obtain a Social Security number.[10]

Aadhaar is for residents: The aadhaar number is available to any resident of India.[11]

Storage, Access, and Disclosure

SSN and applications are stored in the Numident: The numident is a centralized database containing the individuals original SNN and application and any re-application for the same. All information stored in the Numident is protected under the Privacy Act. Individuals may request records of their own personal information stored in the Numident. With the exception of the Department of Homeland Security and U.S Citizenship and Immigration Services, third parties may only request access to Numident records with the consent of the concerned individual.[12] Federal agencies and private entities that collect the SSN for a specific service store the number at the organizational level. The Privacy Act and various state level legislation regulates the disclosure, access, and sharing of the SSN number collected by agencies and organizations.

Aadhaar and data generated at multiple sources is stored in the CIDR and processed in the data warehouse: According to the report "Analytics, Empowering Operations", "At UIDAI, data generated at multiple sources would typically come to the CIDR (Central ID Repository), UIDAIs Data centre, through an online mechanism. There could be certain exceptional sources, like Contact centre or Resident consumer surveys, that will not feed into the Data center directly. Data is then processed in the Data Warehouse using Business Intelligence tools and converted into forms that can be accessed and shared easily." Examples of data that is stored in the CIDR include enrollments, letter delivery, authentication, processing, resident survey, training, and data from contact centres.[13] It is unclear if organizations that authenticate individuals via the Adhaar number store the number at the organizational level. Biometrics are listed as a form of sensitive personal information in the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) 2011, thus if any body corporate collects biometrics with the Aadhaar number - the storage, access, and disclosure of this information would be protected as per the Rules, but the Aadhaar number is not explicitly protected. [14]

Use by public and private entities

Public and private entities can request SSN: Public and private entities can request the SSN to track individuals in a system or as a form of identifying an individual. Any private business is allowed to request and use the SSN as long as the use does not violate federal or state law. Legally, an individual is only required to provide their SSN to a business if they are engaging in a transaction that requires notification to the Internal Revenue Service or the individual is initiating a transaction that is subject to federal Customer Identification Program rules.[15] Thus, an individual can refuse to provide their SSN, but a private business can also refuse to provide a service.[16]

Any public authority requesting the SSN must provide a disclosure notice to the individual explaining if the provision of SSN is required or optional. According to the Privacy Act of 1974, no individual can be denied a government service or benefit for not providing the SSN unless Federal law specifically requires the number for a particular service.[17] Thus, there are a number of Federal legislation in the U.S that specifically require the SSN. For example, the Social Security Independence and Program Improvements Act 1994 allows for the use of the SSN for jury selection and allows for cross matching of SSNs and Employer Identification Numbers for investigation into violation of Federal Laws. [18]

Public and private entities can request Aadhaar: The Aadhaar number can be adopted by any public or private entity as a single means of identifying an individual. The UIDAI has stated that the Aadhaar number is not mandatory,[19] and the Supreme Court of India has clarified that services cannot be denied on the grounds that an individual does not have an Aadhaar number.[20]

Verification

The SSN can be verified only in certain circumstances: The SSA will only respond to requests for SSN verification in certain circumstances:

Before issuing a replacement SSN, posting a wage item to the Master Earnings File, or establishing a claims record - the SSA will verify that the name and the number match as per their records.
When legally permitted, the SSA verification system will verify SSNs for government agencies.
When legally permitted the SSA verification system will verify a workers SSN for pre-registered and approved private employers.
If an individual has provided his/her consent, the SSA will verify a SSN request from a third party.

For verification the SSN number must be submitted with an accompanying name to be matched to and additional information such as date of birth, fathers name, mothers name etc. When verifying submitted SSN's, the system will respond with either confirmation that the information matches or that it does not match. It is important to note that because SSN is verified only in certain circumstances, it is not guaranteed that the person providing an SSN number is the person whom the number was assigned.[21]

The Aadhaar number can be verified in any transaction: If an organization, department, or platform has adopted the Aadhaar number as a form of authentication, they can send requests for verification to the UIDAI. The UIDAI will respond with a yes or no answer. When using their Aadhaar number as a form of authentication individuals can submit their number and demographic information or their number and biometrics for verification.[22]

Lost or stolen

SSN can be replaced: If an individual loses his/her SSN card lost or their number is fraudulently used, they can apply for a replacement SSN card or a new SNN number. [23]

Aadhaar number can be replaced: If an individual has lost their Aadhaar number, there is a process that they can follow to have their number re-sent to them. If the number cannot be located by the UIDAI , the individual has the option of re-enrolling for a new Aadhaar number.[24] The UIDAI has built the scheme with the understanding the biometrics are a unique identifier that cannot be lost or stolen, and thus have not created a system to address the possibility of stolen or fraudulent use of biometrics.

Implementation

Legislation and formal roll out: The SSN program was brought into existence via the Social Security Act and officially rolled out while eventually being adopted across Federal Departments.

Bill and pilot studies: The UID scheme has been envisioned as being brought into existence via the Unique Identification Authority Bill 2010 which has not been passed. Thus far, the project has been implemented in pilot phases across States and platforms.

Enrollment

Social Security Administration: The Social Security Agency is the soul body in the US that receives and processes applications for SSN and issues SSN numbers. [25]

UIDAI, registrars, and enrolling agencies: The UIDAI is the soul body that issues Aadhaar numbers. Registrars (contracted bodies under the UIDAI_ - and enrolling agencies (contracted bodies under Registrars) are responsible for receiving and processing enrollments into the UID scheme.

Required supporting documents

SSN requires proof of age, identity, and citizenship: To obtain a SSN you must be able to provide proof of your age, your identity, and US citizenship. The application form requires the following information:

Name to be shown on the card
Full name at birth, if different
Other names used
Mailing address
Citizenship or alien status
Sex
Race/ethnic description (SSA does not receive this information under EAB)
Date of birth
Place of birth
Mother's name at birth
Mother's SSN (SSA collects this information for the Internal Revenue Service (IRS) on an original application for a child under age 18. SSA does not retain these data.)
Fathers' name
Father's SSN (SSA collects this information for IRS on an original application for a child under age 18. SSA does not retain these data).
Whether applicant ever filed for an SSN before
Prior SSNs assigned
Name on most recent Social Security card
Different date of birth if used on an earlier SSN application.
Date application completed
Phone number
Signature
Applicant's relationship to the number holder.[26]

Aadhaar requires proof of age, address, birth, and residence and biometric information: The application form requires the following information:

Name
Date of birth
Gender
Address
Parent/guardian details
Email
Mobile number
Indication of consenting or not consenting to the sharing of information provided to the UIDAI with Public services including welfare services
Indication of if the individual wants the UIDAI to facilitate the opening of a bank account linked to the Aadhaar number and permits the sharing of information for this purpose
If the individual has no objection to linking their present bank account to the Aadhaar number and the relevant bank details
Signature[27]

[1] Sahil Makkar, "PM's idea to track kids from birth hits practical hurdles", Business Standard. April 11^th 2015. Available at: http://www.business-standard.com/article/current-affairs/pm-s-idea-to-track-kids-from-birth-hits-practical-hurdles-115041100828_1.html

[2] The Social Security Act of 1935. Available at: http://www.ssa.gov/history/35act.html

[3] The United States Department of Justice, "Overview of the Privacy Act of 1974". Available at: http://www.justice.gov/opcl/social-security-number-usage

[4] Government of India Planning Commission "Notification". Available at: https://uidai.gov.in/images/notification_28_jan_2009.pdf

[5] The National Identification Authority of India Bill 2010. Available at: http://www.prsindia.org/uploads/media/UID/The%20National%20Identification%20Authority%20of%20India%20Bill,%202010.pdf

[6] History of SSA 1993 - 2000. Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[7] Social Security Number Chronology. Available at: http://www.ssa.gov/history/ssn/ssnchron.html

[8] History of SSA 1993 - 2000, Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[9] UID FAQ: Aadhaar Features, Eligibility. Available at: https://resident.uidai.net.in/faqs

[10] Social Security Numbers for Noncitizens. Available at: http://www.ssa.gov/pubs/EN-05-10096.pdf

[11] Aapka Aadhaar. Available at: https://uidai.gov.in/aapka-aadhaar.html

[12] Program Operations Manual System. Available at: https://secure.ssa.gov/poms.nsf/lnx/0203325025

[13] UIDAI Analytics -Empowering Operations - the UIDAI Experience. Available at: https://uidai.gov.in/images/commdoc/other_doc/uid_doc_30012012.pdf

[14] Information Technology (Reasonable security practices and procedures and sensitive personal data or information rules 2011) available at: http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511(1).pdf

[15] IdentityHawk, "Who can lawfully request my social security number?" Available at: http://www.identityhawk.com/Who-Can-Lawfully-Request-My-Social-Security-Number

[16] SSA FAQ " Can I refuse to give my social security number to a private business?" Available at: https://faq.ssa.gov/link/portal/34011/34019/Article/3791/Can-I-refuse-to-give-my-Social-Security-number-to-a-private-business

[17] The United States Department of Justice, "Overview of the Privacy Act of 1974". Available at: http://www.justice.gov/opcl/social-security-number-usage

[18] Social Security Number Chronology. Available at: http://www.ssa.gov/history/ssn/ssnchron.html

[19] Aapka Aadhaar. Available at: https://uidai.gov.in/what-is-aadhaar.html

[20] Business Standard, "Aadhaar not mandatory to claim any state benefit, says Supreme Court" March 17^th, 2015. Available at: http://www.business-standard.com/article/current-affairs/aadhaar-not-mandatory-to-claim-any-state-benefit-says-supreme-court-115031600698_1.html

[21] Social Security History 1993 - 2000, Chapter 6: Program Integrity. Available at: http://www.ssa.gov/history/ssa/ssa2000chapter6.html

[22] Aapka Aadhaar. Available at: https://uidai.gov.in/auth.html

[23] SSA. New or Replacement Social Security Number Card. Available at: http://www.ssa.gov/ssnumber/

[24] UIDAI, Lost EID/UID Process. Available at: https://uidai.gov.in/images/mou/eiduid_process_ver5_2_27052013.pdf

[25] Social Security. Availabl at: http://www.ssa.gov/

[26] Social Security Administration, Application for a Social Security. Available at: http://www.ssa.gov/forms/ss-5.pdf

[27] Aadhaar enrollment/correction form. Available at: http://hstes.in/pdf/2013_pdf/Genral%20Notification/Aadhaar-Enrolment-Form_English.pdf

For more details visit https://cis-india.org/internet-governance/blog/aadhaar-vs-social-security-number

Privacy, Autonomy, and Sexual Choice: The Common Law Recognition of Homosexuality

bhairav — 2015-08-23T12:20:52Z

In the last few decades, all major common law jurisdictions have decriminalised non-procreative sex – oral and anal sex (sodomy) – to allow private, consensual, and non-commercial homosexual intercourse.

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Anti-sodomy statutes across the world, often drafted in the same anachronistic vein as section 377 of the Indian Penal Code, 1860 (“IPC”), have either been repealed or struck down on the grounds that they invade individual privacy and are detrimentally discriminative against homosexual people.

This is not an examination of India’s laws against homosexuality, it does not review the Supreme Court of India’s judgment in Suresh Koushal v. Naz Foundation (2014) 1 SCC 1 nor the Delhi High Court’s judgment in Naz Foundation v. Government of NCT Delhi 2009 (160) DLT 277, which the former overturned – in my view, wrongly. This note simply provides a legal history of the decriminalisation of non-procreative sexual activity in the United Kingdom and the United States. Same-sex marriage is also not examined.

In the United Kingdom

The Wolfenden Report

In England, following a campaign of arrests of non-heterosexual persons and subsequent protests in the 1950s, the government responded to public dissatisfaction by appointing the Departmental Committee on Homosexual Offences and Prostitution chaired by John Frederick Wolfenden. The report of this committee (“Wolfenden Report”) was published in 1957 and recommended that:

“…homosexual behaviour between consenting adults in private should no longer be a criminal offence.”

The Report further observed that it was not the function of a State to punitively scrutinise the private lives of its citizens:

“(T)he law’s function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others… It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.”

The Sexual Offences Act, 1967

The Wolfenden Report was accepted and, in its pursuance, the Sexual Offences Act, 1967 was enacted to, for the first time in common law jurisdictions, partially decriminalise homosexual activity – described in English law as ‘buggery’ or anal sex between males.
Section 1(1) of the original Sexual Offences Act, as notified on 27 July 1967 stated –
"Notwithstanding any statutory or common law provision, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty one years."
A ‘homosexual act’ was defined in section 1(7) as –
“For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act.”
The meaning of ‘private’ was also set forth rather strictly in section 1(2) –
“An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done –
(a) when more than two persons take part or are present; or
(b) in a lavatory to which the public have or are permitted to have access, whether on
payment or otherwise.”
Hence, by 1967, English law permitted:

as between two men,
both twenty-one years or older,
anal sex (buggery),
and other sexual activity (“gross indecency”)
if, and only if, a strict prescription of privacy was maintained,
that excluded even a non-participating third party from being present,
and restricted the traditional conception of public space to exclude even lavatories.

However, the benefit of Section 1 of the Sexual Offences Act, 1967 did not extend beyond England and Wales; to mentally unsound persons; members of the armed forces; merchant ships; and, members of merchant ships whether on land or otherwise.

Developments in Scotland and Northern Ireland

Over the years, the restrictions in the original Sexual Offences Act, 1967 were lifted. In 1980, the Criminal Justice (Scotland) Act, 1980 partially decriminalised homosexual activity in Scotland on the same lines that the Act of 1967 did for England and Wales. One year later, in 1981, an Irishman Jeffrey Dudgeon successfully challenged the continued criminalisation of homosexuality in Northern Ireland before the European Court of Human Rights (“ECHR”) in the case of Dudgeon v. United Kingdom (1981) 4 EHRR 149. Interestingly, Dudgeon was not decided on the basis of detrimental discrimination or inequality, but on the ground that the continued illegality of homosexuality violated the petitioner’s right to privacy guaranteed by Article 8 of the 1950 European Convention on Human Rights (“European Convention”). In a 15-4 majority judgement, the ECHR found that “…moral attitudes towards male homosexuality…cannot…warrant interfering with the applicant’s private life…” Following Dudgeon, the Homosexual Offences (Northern Ireland) Order, 1982 came into effect; and with it, brought some semblance of uniformity in the sodomy laws of the United Kingdom.

Equalising the age of consent

However, protests continued against the unequal age of consent required for consensual homosexual sex (21 years) as opposed to that for heterosexual sex (16 years). In 1979, a government policy advisory recommended that the age of consent for homosexual sex be reduced to 18 years – two years older than that for heterosexual sex, but was never acted upon. In 1994, an attempt to statutorily equalise the age of consent at 16 years was defeated in the largely conservative House of Commons although a separate legislative proposal to reduce it to 18 years was carried and enacted under the Criminal Justice and Public Order Act, 1994. Following this, the unequal ages of consent forced a challenge against UK law in the ECHR in 1994; four years later, in Sutherland v. United Kingdom [1998] EHRLR 117, the ECHR found that the unequal age of consent violated Articles 8 and 14 of the European Convention – relating to privacy and discrimination. Sutherland was significant in two ways – it forced the British government to once again introduce legislation to equalise the ages of consent; and, significantly, it affirmed a homosexual human right on the ground of anti-discrimination (as opposed to privacy).

To meet its European Convention commitments, the House of Commons passed, in June 1998, a bill for an equal age of sexual consent but it was rejected by the more conservative House of Lords. In December 1998, the government reintroduced the equal age of consent legislation which again passed the House of Commons and was defeated in the House of Lords. Finally, in 1999, the government invoked the statutory superiority of the House of Commons, reintroduced for the third time the legislation, passed it unilaterally to result in the enactment of the Sexual Offences (Amendment) Act, 2000 that equalised the age of sexual consent for both heterosexuals and homosexuals at 16 years of age.

Uniformity of equality

However, by this time, different UK jurisdictions observed separate legislations regarding homosexual activity. The privacy conditions stipulated in the original Sexual Offences Act, 1967 remained, although they had been subject to varied interpretation by English courts. To resolve this, the UK Parliament enacted the Sexual Offences Act, 2003 which repealed all earlier conflicting legislation, removed the strict privacy conditions attached to homosexual activity and re-drafted sexual offences in a gender neutral manner. A year later, the Civil Partnership Act, 2004 gave same-sex couples the same rights and responsibilities as a civil marriage. And, in 2007, the Equality Act (Sexual Orientation) Regulations came into force to prohibit general discrimination against homosexual persons in the same manner as such prohibition exists in respect of grounds of race, religion, disability, sex and so on.

In the United States

Diversity of state laws

Sodomy laws in the United States of America have followed a different trajectory. A different political and legal system leaves individual US States with wide powers to draft and follow their own constitutions and laws. Accordingly, by 1961 all US States had their own individual anti-sodomy laws, with different definitions of sodomy and homosexuality. In 1962, Illinois became the first US State to repeal its anti-sodomy law. Many States followed suit over the next decades including Connecticut (1971); Colorado and Oregon (1972); Delaware, Hawaii and North Dakota (1973); Ohio (1974); New Hampshire and New Mexico (1975); California, Maine, Washington and West Virginia (1976); Indiana, South Dakota, Wyoming and Vermont (1977); Iowa and Nebraska (1978); New Jersey (1979); Alaska (1980); and, Wisconsin (1983).

Bowers v. Hardwick

However, not all States repealed their anti-sodomy laws. Georgia was one such State that retained a statutory bar to any oral or anal sex between any persons of any sex contained in Georgia Code Annotated §16-6-2 (1984) (“Georgia statute”) which provided, in pertinent part, as follows:

“(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another… (b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years”

In 1982, a police officer arrested Michael Hardwick in his bedroom for sodomy, an offence which carried a prison sentence of up to twenty years. His case went all the way up to the US Supreme Court which, in 1986, pronounced its judgement in Bowers v. Hardwick 478 US 186 (1986). Although the Georgia statute was framed broadly to include even heterosexual sodomy (anal or oral sex between a man and a woman or two women) within its ambit of prohibited activity, the Court chose to frame the issue at hand rather narrowly. Justice Byron White, speaking for the majority, observed at the outset –

“This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or
desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy…”

Privacy and autonomy

Interestingly, Hardwick’s case against the Georgia statute was not grounded on an equality-discrimination argument (since the Georgia statute prohibited even heterosexual sodomy but was only enforced against homosexuals) but on a privacy argument that sought to privilege and immunise private consensual non-commercial sexual conduct from intrusive State intervention. To support this privacy claim, a long line of cases was relied upon that restricted the State’s ability to intervene in, and so upheld the sanctity of, the home, marriage, procreation, contraception, child rearing and so on [See, Carey v. Population Services 431 US 678 (1977), Pierce v. Society of Sisters 268 US 510 (1925) and Meyer v. Nebraska 262 US 390 (1923) on child rearing and education; Prince v. Massachusetts 321 US 158 (1944) on family relationships; Skinner v. Oklahoma ex rel. Williamson 316 US 535 (1942) on procreation; Loving v. Virginia 388 US 1 (1967) on marriage; Griswold v. Connecticut 381 US 479 (1965) and Eisenstadt v. Baird 405 US 438 (1972) on contraception; and Roe v. Wade 410 US 113 (1973) on abortion]. Further, the Court was pressed to declare a fundamental right to consensual homosexual sodomy by reading it into the Due Process clause of the Fourteenth Amendment to the US Constitution.

The 9-judges Court split 5-4 down the middle to rule against all of Hardwick’s propositions and uphold the constitutionality of the Georgia statute. The Court’s majority agreed that cases cited by Hardwick had indeed evolved a right to privacy, but disagreed that this privacy extended to homosexual persons since “(n)o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated…”. In essence, the Court’s majority held that homosexuality was distinct from procreative human sexual behaviour; that homosexual sex could, by virtue of this distinction, be separately categorised and discriminated against; and, hence, homosexual sex did not qualify for the benefit of intimate privacy protection that was available to heterosexuals. What reason did the Court give to support this discrimination? Justice White speaking for the majority gives us a clue: “Proscriptions against that (homosexual) conduct have ancient roots.” Justice White was joined in his majority judgement by Chief Justice Burger, Justice Powell, Justice Rehnquist and Justice O’Connor. His rationale was underscored by Chief Justice Burger who also wrote a short concurring opinion wherein he claimed:

“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” … To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

The majority’s “wilful blindness”: Blackmun’s dissent

The Court’s dissenting opinion was delivered by Justice Blackmun, in which Justice Brennan, Justice Marshall and Justice Stevens joined. At the outset, the Justice Blackmun disagreed with the issue that was framed by the majority led by Justice White: “This case is (not) about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare…” and further pointed out that the Georgia statute proscribed not just homosexual sodomy, but oral or anal sex committed by any two persons: “…the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used.”. When considering the issue of privacy for intimate sexual conduct, Justice Blackmun criticised the findings of the majority: “Only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality…” And when dealing with the ‘historical morality’ argument that was advanced by Chief Justice Burger, the minority observed:

“The assertion that “traditional Judeo-Christian values proscribe” the conduct involved cannot provide an adequate justification for (§)16-6-2 (of the Georgia Statute). That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”

The states respond, privacy is upheld

Bowers was argued and decided over five years in the 1980s. At the time, the USA was witnessing a neo-conservative wave in its society and government, which was headed by a republican conservative. The HIV/AIDS issue had achieved neither the domestic nor international proportions it now occupies and the linkages between HIV/AIDS, homosexuality and the right to health were still unclear. In the years after Bowers, several more US States repealed their sodomy laws.

In some US States, sodomy laws that were not legislatively repealed were judicially struck down. In 1998, the Georgia State Supreme Court, in Powell v. State of Georgia S98A0755, 270 Ga. 327, 510 S.E. 2d 18 (1998), heard a challenge to the same sodomy provision of the Georgia statute that was upheld in by the US Supreme Court in Bowers. In a complete departure from the US Supreme Court’s findings, the Georgia Supreme Court first considered whether the Georgia statute violated individual privacy: “It is clear from the right of privacy appellate jurisprudence…that the “right to be let alone” guaranteed by the Georgia Constitution is far more extensive that the right of privacy protected by the U.S. Constitution…”

Having established that an individual right to privacy existed to protect private consensual sodomy, the Georgia Court then considered whether there was a ‘legitimate State interest’ that justified the State’s restriction of this right. The justifications that were offered by the State included the possibility of child sexual abuse, prostitution and moral degradation of society. The Court found that there already were a number of legal provisions to deter and punish rape, child abuse, trafficking, prostitution and public indecency. Hence: “In light of the existence of these statutes, the sodomy statute’s raison d’ etre can only be to regulate the private sexual conduct of consenting adults, something which Georgians’ right of privacy puts beyond the bounds of government regulation.” By a 2-1 decision, Chief Justice Benham leading the majority, the Georgia Supreme Court struck down the Georgia statute for arbitrarily violating the privacy of individuals. Interestingly, the subjects of the dispute were not homosexual, but two heterosexual adults – a man and a woman. Similar cases where a US State’s sodomy laws were judicially struck down include:

Campbell v. Sundquist 926 S.W.2d 250 (1996) – [Tennessee – by the Tennessee Court of Appeals on privacy violation; appeal to the State Supreme Court expressly denied].
Commonwealth v. Bonadio 415 A.2d 47 (1980) – [Pennsylvania – by the Pennsylvania Supreme Court on both equality and privacy violations];
Doe v. Ventura MC 01-489, 2001 WL 543734 (2001) – [Minnesota – by the Hennepin County District Judge on privacy violation; no appellate challenge];
Gryczan v. Montana 942 P.2d 112 (1997) – [Montana – by the Montana Supreme Court on privacy violation];
Jegley v. Picado 80 S.W.3d 332 (2001) – [Arkansas – by the Arkansas Supreme Court, on privacy violation];
Kentucky v. Wasson 842 S.W.2d 487 (1992) [Kentucky – by the Kentucky Supreme Court on both equality and privacy violations];
Massachusetts v. Balthazar 366 Mass. 298, 318 NE2d 478 (1974) and GLAD v. Attorney General 436 Mass. 132, 763 NE2d 38 (2002) – [Massachusetts – by the Superior Judicial Court on privacy violation];
People v. Onofre 51 NY 2d 476 (1980) [New York – by the New York Court of Appeals on privacy violation]; and,
Williams v. Glendenning No. 98036031/CL-1059 (1999) – [Maryland – by the Baltimore City Circuit Court on both privacy and equality violations; no appellate challenge].

Lawrence v. Texas

These developments made for an uneven field in the matter of legality of homosexual sex with the sodomy laws of most States being repealed by their State legislatures or subject to State judicial invalidation, while the sodomy laws of the remaining States were retained under the shade of constitutional protection afforded by Bowers. Texas was one such State which maintained an anti-sodomy law contained in Texas Penal Code Annotated § 21.06(a) (2003) (“Texas statute”) which criminalised sexual intercourse between two people of the same sex. In 1998, the Texas statute was invoked to arrest two men engaged in private, consensual, non-commercial sodomy. They subsequently challenged the constitutionality of the Texas statute, their case reaching the US Supreme Court. In 2003, the US Supreme Court, in Lawrence v. Texas 539 US 558 (2003) pronounced on the validity of the Texas statute. Interestingly, while the issue under consideration was identical to that decided in Bowers, the Court this time around was presented with detailed arguments on the equality-discrimination aspect of same-sex sodomy laws – which the Bowers Court majority did not consider. The Court split 6-3; the majority struck down the Texas statute. Justice Kennedy, speaking for himself and 4 other judges of the majority, found instant fault with the Bowers Court for framing the issue in question before it as simply whether homosexuals had a fundamental right to engage in sodomy.

Privacy, intimacy, home

This mistake, Justice Kennedy claimed, “…discloses the Court’s own failure… To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans…the individual…just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. Their penalties and purposes (of the laws involved)…have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.” Justice Kennedy, joined by Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer, found that the Texas statute violated the right to privacy granted by the Due Process clause of the US Constitution:

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”” [The quote is c.f. Planned Parenthood of Southeastern Pa. v. Casey 505 US 833 (1992)]

Imposed morality is defeated

With the privacy argument established as controlling, Justice Kennedy went to some length to refute the ‘historical morality’ argument that was put forward in Bowers by then Chief Justice Burger: “At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter… The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction.” To illustrate these other authorities, Justice Kennedy references the ECHR’s decision in Dudgeon supra which was reached five years before Bowers: “Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision (Dudgeon) is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.”.

The Court then affirmed that morality could not be a compelling ground to infringe upon a fundamental right: “Our obligation is to define the liberty of all, not to mandate our own moral code”. The lone remaining judge of the majority, Justice O’Connor, based her decision not on the right to privacy but on equality-discrimination considerations. Interestingly, Justice O’Connor sat on the Bowers Court and ruled with the majority in that case. Basing her decision on equal protection grounds allowed her to concur with the majority in Lawrence but not overturn her earlier position in Bowers which had rejected a right to privacy claim. It also enabled her to strike down the Texas statute while not conceding homosexuality as a constitutionally guaranteed private liberty. There were three dissenters: The chief dissent was delivered by Justice Scalia, in which he was joined by Chief Justice Rehnquist and Justice Thomas. Bowers was not merely distinguished by the majority, it was overruled:

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

For more details visit https://cis-india.org/internet-governance/blog/privacy-autonomy-sexual-choice-common-law-recognition-of-homosexuality

7th Best Practices Meet 2015

praskrishna — 2015-07-17T13:11:20Z

Data Security Council of India (DSCI) organized the 7th edition of its Best Practices Meet (BPM) from July 9 - 10, 2015 at Hotel ITC Gardenia in Bengaluru. BPM2015 had “Architecting Security for Digital Transformation” as its theme. Sunil Abraham and Elonnai Hickok were speakers at this event.

The two-day deliberations, reflected on policy, endeavours at national and industry levels, proposed industry steps, market response, best practices, industry standards and technology designs and see how they play their roles in architecting of information systems and enterprise security within organizations. Sunil Abraham was a panelist in the session "Architecting Security for transformation to Digital India". Elonnai Hickok was a panelist in the session "Steering privacy in the age of extreme innovation technology & business models."

See the Agenda

For more details visit https://cis-india.org/internet-governance/news/best-practices-meet-2015

A Dissent Note to the Expert Committee for DNA Profiling

elonnai — 2016-07-21T11:01:44Z

The Centre for Internet and Society has participated in the Expert Committee for DNA Profiling constituted by the Department of Biotechnology in 2012 for the purpose of deliberating on and finalizing the draft Human DNA Profiling Bill and appreciates this opportunity. CIS respectively dissents from the January 2015 draft of the Bill.

Click for DNA Bill Functions, DNA List of Offences, and CIS Note on DNA Bill. A modified version was published by Citizen Matters Bangalore on July 28.

Based on the final draft of the Human DNA Profiling Bill that was circulated on the 13th of January 2015 by the committee, the Centre for Internet and Society is issuing this note of dissent on the following grounds:

The Centre for Internet and Society has made a number of submissions to the committee regarding different aspects of the Bill including recommendations for the functions of the board, offences for which DNA can be collected, and a general note on the Bill. Though the Centre for Internet and Society recognizes that the present form of the Bill contains stronger language regarding human rights and privacy, we do not find these to be adequate and believe that the core concerns or recommendations submitted to the committee by CIS have not been incorporated into the Bill.

The Centre for Internet and Society has foundational objections to the collection of DNA profiles for non-forensic purposes. In the current form the DNA Bill provides for collection of DNA for the following non forensic purposes:

Section 31(4) provides for the maintenance of indices in the DNA Bank and includes a missing person’s index, an unknown deceased person’s index, a volunteers’ index, and such other DNA indices as may be specified by regulation.
Section 38 defines the permitted uses of DNA profiles and DNA samples including: identifying victims of accidents or disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases listed in Part I of the Schedule or for other purposes as may be specified by regulation.
Section 39 defines the permitted instances of when DNA profiles or DNA samples may be made available and include: for the creation and maintenance of a population statistics Data Bank that is to be used, as prescribed, for the purposes of identification research, protocol development or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.
Part I of the schedule lists laws, disputes, and offences for which DNA profiles and DNA samples can be used. These include, among others, the Motor Vehicles Act, 1988, parental disputes, issues relating to pedigree, issues relating to assisted reproductive technologies, issues relating to transplantation of human organs, issues relating to immigration and emigration, issues relating to establishment of individual identity, any other civil matter as may be specified by the regulations, medical negligence, unidentified human remains, identification of abandoned or disputed children.

While rejecting non-forensic use entirely, we have specific substantive and procedural objections to the provisions relating to forensic profiling in the present version of the Bill. These include:

Over delegation of powers to the board: The DNA Board currently has vast powers as delegated by Section 12 including:
“authorizing procedures for communication of DNA profiles for civil proceedings and for crime investigation by law enforcement and other agencies, establishing procedure for cooperation in criminal investigation between various investigation agencies within the country and with international agencies, specifying by regulations the list of applicable instances of human DNA profiling and the sources and manner of collection of samples in addition to the lists contained in the Schedule, undertaking any other activity which in the opinion of the Board advances the purposes of this Act.”

Section 65 gives the Board the power to make regulations for a number purposes including: “other purposes in addition to identification of victims of accidents, disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases lists in Part I of the Schedule for which records or samples may be used under section 38, other laws, if any, to be included under item (viii) of para B of Part I of the Schedule, other civil matters, if any, to be included under item (vii) of para C of Part I of the Schedule, and authorization of other persons, if any, for collection of non intimate body samples and for performance of non-intimate forensic procedures, under Part III of the Schedule.

Ideally these powers would lie with the legislative or judicial branch. Furthermore, the Bill establishes no mechanism for accountability or oversight over the functioning of the Board and section 68 specifically states that “no civil court shall have jurisdiction to entertain any suit or proceeding in respect to any matter which the Board is empowered by or under this Act to determine.”

The above represents only a few instances of the overly broad powers that have been given to the Board. Indeed, the Bill gives the Board the power to make regulations for 37 different aspects relating to the collection, storage, use, sharing, analysis, and deletion of DNA samples and DNA profiles. As a result, the Bill establishes a Board that controls the entire ecosystem of DNA collection, analysis, and use in India without strong external oversight or accountability.
Key terms undefined: Section 31 (5) states that the “indices maintained in every DNA Data Bank will include information of data based on DNA analysis prepared by a DNA laboratory duly approved by the Board under section 1 of the Act, and of records relating thereto, in accordance with the standards as may be specified by the regulations.”

The term’ DNA analysis’ is not defined in the Act, yet it is a critical term as any information based on such an analysis and associated records can be included in the DNA Database.
Low standards for sharing of information: Section 34 empowers the DNA Data Bank Manager to compare a received DNA profile with the profiles stored in the databank and for the purposes of any investigation or criminal prosecution, communicate the information regarding the received DNA profile to any court, tribunal, law enforcement agencies, or DNA laboratory which the DNA Data Bank Manager considers is concerned with it.

The decision to share compared profiles and with whom should be made by an independent third party authority, rather than the DNA Bank Manager. Furthermore, this provision isvague and although the intention seems to be that the DNA profiles should be matched and the results communicated only in certain cases, the generic wording could take into its ambit every instance of receipt of a DNA profile. For eg. the regulations envisaged under section 31(4)(g) may prescribe for a DNA Data Bank for medical purposes, but section 34 as it is currently worded may include DNA profiles of patients to be compared and their information released to various agencies by the Data Bank Manager as an unintentional consequence.
Missing privacy safeguards: Though the Bill refers to security and privacy procedures that labs are to follow, these have been left to be developed and implemented by the DNA Board. Thus, except for bare minimum standards and penalties addressing the access, sharing, and use of data – the Bill contains no privacy safeguards.

In our interactions with the committee we have asked that the Bill be brought in line with the nine national privacy principles established by the Report of the Group of Experts on Privacy submitted to the Planning Commission in 2012. This has not been done.

For more details visit https://cis-india.org/internet-governance/blog/dna-dissent

Criminal Defamation: The Urgent Cause That has United Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy

praskrishna — 2015-07-16T13:45:04Z

Three years ago when the then Janata Party president Subramanian Swamy accused Congress vice president Rahul Gandhi and his mother of misappropriation of funds while trying to revive the National Herald newspaper, the Nehru-Gandhi scion threatened to sue him.

The article by Betwa Sharma was published in Huffington Post on July 15, 2015. Sunil Abraham gave his inputs.

Swamy's response was characteristic: "Grow up and file a defamation case".

In a strange turn of events, the matter of criminal defamation has brought together an unlikely cast of characters in an ongoing petition in the Supreme Court--Swamy, Gandhi and Delhi chief minister Arvind Kejriwal, who knows a thing or two about making allegations.

They are petitioning the Apex Court to strike down penal provisions criminalising defamation, which they argue, has a "chilling effect" on the fundamental right to free speech. Opinion is divided around the world on whether or not defamation ought to be a criminal offence. Because some jurisdictions have stricter defamation laws, some indulge in a practise known as 'forum shopping', or suing in jurisdictions with harsher views on libel and slander.

The three leaders have filed separate petitions that are now being jointly heard by the court. They are challenging the constitutional validity of Sections 499 and 500 of the Indian Penal Code which make defamation a criminal offence punishable with up to two years in prison.

A verdict striking down the colonial-era S. 499, used by the British to suppress those opposing their rule, could prove to be a huge victory for free speech in India. Earlier this year, the Supreme Court struck down the draconian Section 66A of the Information Technology Act as "unconstitutional and void".

There is cause for optimism. The Supreme Court has already said that the validity of criminal defamation laws must be tested against the free speech guarantees of the constitution. The bench comprising of Justices Dipak Misra and Prafulla C Pant have observed that political debates maybe excluded as a criminal defamation offence.

While Gandhi, Subramanian and Kejriwal have been slapped with defamation suits by political rivals, there have been long-standing concerns over the threat posed by these provisions to the media and those who use social media to express their opinions against the rich and the powerful.

The government of the day is keen to maintain the status quo. In a recent submission, it has argued that S.499 is now the only provision to deal with defamation on social media and the only protection for reputation of citizens. But free speech activists say there is no evidence to show that a defamation law deters a person who is out to spread lies.

The questionable utility of S.499, the scope for its abuse and the culture of self-censorship, they argue, removes it from the ambit of "reasonable restrictions" which the state can impose on free speech under article 19 (2) of the constitution.

"Hardly a day goes by in India without some rich and powerful person initiating or threatening to initiate defamation suits against rivals or traditional media or ordinary citizens on social media," said Sunil Abraham, executive director of the Bangalore-based Centre for Internet & Society. "It is unclear how much self-censorship is going on because Indians fearing jail terms avoid speaking truth to power.

On the issue of protecting people's dignity, Abraham said there is no prima facie evidence in India that criminalising defamation in India has resulted in the protection of the reputations of citizens from falsehoods.

"On the the other hand every other national media house and quite of few investigative journalists have been and continue to be harassed by criminal suits filed by the powerful," he told HuffPost India. "The chilling effect on speech is a disproportionate price for citizenry to pay for what is only a personal harm."

Under the leadership of Chief Minister J Jayalalithaa, the Tamil Nadu government filed 125 defamation cases against The Hindu and other publications between 2001 and 2004. On Tuesday, she filed a defamation suit against news portal Rediff.com for running two articles related to speculations about her health.

In the United States, defamation claims by public officials and public figures were severely curtailed after its Supreme Court ruled in 1964 that the complainant needs to prove actual malice with "clear and convincing" evidence. Further, truth is an absolute defence against defamation in the U.S.

On Tuesday, Swamy and Gandhi also argued that truth should be defence in defamation suits. “Truth is not a complete defence in criminal defamation. For a nation with a national motto of Satyameva Devata it is ironic," Swamy said.

BJP leader Swamy is of the view that defamation should only be subject to a civil suit which can be redressed by payment of monetary compensation. But the central government has argued that a defamer could be too poor to compensate the complainant.

"I am not saying there is no such thing as defamation. You can sue someone for defamation, but you cannot deprive someone of his liberty," he said in a recent interview with The Sunday Guardian.

Jayalalithaa filed a defamation suit against the senior BJP leader who alleged that most of the boats of Indian fishermen captured by Sri Lanka belong to the AIADMK chief, her close aide Sasikala and DMK leader TR Baalu.

The suit against the Congress Vice President was filed by the Rashtriya Swayamsevak Sangh for allegedly blaming the Hindu right-wing organisation for the assassination of Mahatma Gandhi.

BJP leader Nitin Gadkari sued Kejriwal after his name was included in AAP's list of "India's most corrupt."

"The accused is in the habit of making false and defamatory statements without any basis. The statements made by the accused and his party members have damaged and tarnished my image in the eyes of the people," Gadkari told the court, last year.

Legal analysts also find it hard to predict just how far the Supreme Court will go to protect free speech. Its judgment against S.66A of the IT Act is regarded as one of the biggest victories for free speech in India. Justice Misra was on the bench that struck down the provision for being “open-ended and unconstitutionally vague," and not fit to be covered under Article 19 (2).

But last month, in a judgment regarded as a blow to free speech, it was Justices Misra and Pant who ruled that freedom of speech is not an absolute right.

Senior Advocate Gopal Subramanium had argued, "Freedom to offend is also a part of freedom of speech.”

For more details visit https://cis-india.org/internet-governance/news/huffington-post-july-16-2015-betwa-sharma-criminal-defamation-the-urgent-cause-that-has-united-rahul-gandhi-arvind-kejriwal-and-subramanian-swamy

Corporate push to Modi’s Rs.4.5-billion digital dream

praskrishna — 2015-07-16T02:26:24Z

Prime Minister Narendra Modi’s Rs. 4.5-billion digital dream seems to find favour with the corporate world, which calls it a “very progressive step” and “massive tech push”.

The article by Rakesh Kumar was published in the Statesman on July 13, 2015. Sumandro Chattapadhyay was quoted.

Modi shared his dreams at the recent Digital India Week in the capital and the event saw big names from the business world—Reliance Industries Ltd chairman Mukesh Ambani, Tata group chairman Cyrus Mistry, Wipro Ltd chairman Azim Premji, among others—supporting the initiative.

Showing its faith in Modi’s dream, Reliance Industries is all set to invest over Rs.2.5 lakh crore in the initiative that would focus on cloud computing and mobile applications, empowering every citizen with access to digital services, knowledge and information.

The initiative could boost the IT sector, which according to NASSCOM witnesses a robust growth in 2015, with the calculated revenue for FY 2015 at $147 billion, and a growth of 13 per cent from the corresponding period 2014.

“From an IT perspective, this is a sincere approach to problem solving with growth, realism and long-term transformation at the core,” said Manish Sharma, president, Consumer Electronics and Appliances Manufacturers Association (CEAMA) and managing director, Panasonic India, in an exclusive interview to thestatesman.com.

“Empowering citizens with the use of IT, we believe Digital India is a massive tech push to provide electronic governance and universal phone connectivity across the country,” he added.

CEAMA and Panasonic are willing to contribute to Digital India through technological expertise and commitment.

The Indian information Technology (IT) industry is reportedly pegged at $118-billion and DS Rawat, secretary general, ASSOCHAM, feels the Digital India initiative could be a “game-changer”.

Commenting on PM’s pledge to bring Internet connectivity to all Indians, Rawat told thestatesman.com: “The initiative is possible, provided the implementation of the schemes is done in a mission mode.”

“The business and industry will be the major beneficiary in terms of quality of governance, which is possible through digital initiative. Besides, the industry itself has to prepare to deal with new emerging business models such as e-commerce,” he added.

Modi, at the Digital India launch, said that “e-governance will be quickly changed into m-governance, and ‘M’ does not mean Modi governance, it means mobile governance.”

Both, big corporate houses and small players hailed the PM’s remark.

“It is good initiative for the railway sector in terms of passenger amenities, online procurement and technological up gradation,” said Amit Goel of Aggarwal Engineers in an interview to thestatesman.com.

The company is active in the railway sector.

When asked how Digital India initiative would help small companies, Goel said: “It will help us in many ways. By adopting e-governance, small companies can check and bid for the online procurement and will be able to interact with the concerned department through digital technology.”

Anil Valluri of NetApp India said: “Digital India is one of the most significant transformations the country will witness by eventually connecting over a billion people of India, with technology as its focal point.”

When it comes to IT transformation, cyber security emerges as a vital issue.

Sumandro Chattapadhyay, Research Director, The Centre for Internet and Society (CIS), described the issue of digital security as the key to the “operationalisation and sustainability of the Digital India initiative”. “We expect the government not only to build administrative structures for ensuring cyber-security of the information systems, but also enable legal frameworks for protecting citizens from unlawful and unforeseen abuses of their digital identities as well as their digital assets.” Having said that, he praised the PM’s move, saying it will bring together various existing and new initiatives for building “network infrastructures for expanded public access, electronic governance systems for effective delivery of services, under the national policy umbrella of 'Digital India’”.

Rajiv Kapur, managing director, Broadcom India, pointed out another benefit of the ubiquitous broadband sector, which according to a report, faces certain challenges such as low rural penetration, stagnant data usage over the years and limited broadband services.

“It will help bring parity between the rural and urban India,” he said and added: “Today, we need solutions that allow the majority of rural Indian population to continue to stay at their homes, and not migrate to cities.”

In a knowledge economy, the biggest difference that will make an impact is education.

"Healthcare is another area where having connectivity can make big difference in quality of life," he said.

“E-delivery of governance and services is important for the efficient use of government resources, and allows for collaborative, transparent and more efficient governance," the Broadcom managing director added.

For more details visit https://cis-india.org/internet-governance/news/the-statesman-rakesh-kumar-july-13-2015-corporate-push-modis-billion-digital-dream

CIS Cybersecurity Series (Part 24) – Shantanu Ghosh

purba — 2015-07-15T14:58:50Z

CIS interviews Shantanu Ghosh, Managing Director, Symantec Product Operations, India, as part of the Cybersecurity Series.

“Remember that India is also a land where there are a lot of people who are beginning to use computing devices for the first time in their lives. For many people, their smartphone is their first computing device because they have never had computers in the past. For them, the challenge is how do you make sure that they understand that that can be a threat too. It can be a threat not only to their bank accounts, with their financial information, but even to their private lives.”

Centre for Internet and Society presents its twenty fourth installment of the CIS Cybersecurity Series.”

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Shantanu Ghosh is the Managing Director of Symantec Product Operations, India. He also runs the Data Centre Security Group for Symantec globally.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/blog/cis-cybersecurity-series-part-24-2013-shantanu-ghosh

CIS Cybersecurity Series (Part 23) – Justin Searle

purba — 2015-07-15T14:44:38Z

CIS interviews Justin Searle, security expert, as part of the Cybersecurity Series.

"I think that people here in India, just like everywhere else, are broadening the areas where security can be applied. We see elsewhere, like in the United States and in Europe, that a lot of security researchers are starting to get into not just control systems, but also embedded devices and hardware and wireless... And we are seeing the same trends here in India as well. It is fun to see that growth and continual development, and not only that, but we are seeing security projects and research coming out of India, that's unqiue and fresh and contributing back to what originally came more from the United States and Europe."

Centre for Internet and Society presents its twenty third installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Justin Searle is the managing partner for Utilisec. Utisix provides security services to the energy sector. They also assist oil, water, gas, and manufacturing companies. Justin specializes in security assessments and finding vulnerabilities in systems.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/cis-cybersecurity-series-part-23-2013-justin-searle

Freedom of Expression in a Digital Age

Geetha Hariharan and Jyoti Panday — 2015-07-15T14:42:23Z

The Centre for Internet & Society, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania organized this conference on April 21, 2015 in New Delhi.

This report was edited by Elonnai Hickok

Effective research, policy formulation, and the development of regulatory frameworks in South Asia

Inside this Report

BACKGROUND TO THE CONFERENCE

THE ORGANIZERS

CONFERENCE PROGRAMME

WELCOME ADDRESS

SESSION 1: LEARNINGS FROM THE PAST

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Smarika Kumar, Alternative Law Forum

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Questions & Comments

SESSION 2: CURRENT REALITIES

Cherian George, Associate Professor, Hong Kong Baptist University

Zakir Khan, Article 19, Bangladesh

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)

Raman Jit Singh Chima, Asia Consultant, Access Now

Questions & Comments

SESSION 3: LOOKING AHEAD

Sutirtho Patranobis, Assistant Editor, Hindustan Times

Karuna Nundy, Advocate, Supreme Court of India

Geeta Seshu, The Hoot

Pranesh Prakash, Policy Director, Centre for Internet & Society

Questions & Comments

Conclusion

Background to the Conference

As the Internet expands and provides greater access and enables critical rights such as freedom of expression and privacy, it also places censorship and surveillance capabilities in the hands of states and corporations. It is therefore crucial that there exist strong protections for the right to freedom of expression that balance state powers and citizen rights. While the Internet has thrown up its own set of challenges such as extremist/hate speech, the verbal online abuse of women, and the use of the Internet to spread rumours of violence, the regulation of cont ent is a question that is far from being settled and needs urgent attention. These are compounded by contextual challenges. What role can and should the law play? When is it justified for the government to intervene? What can be expected from intermediaries, such as social networks and Internet Service Providers (ISPs)? And what can users do to protect the right to free speech - their own and that of others?

Balancing freedom of expression with other rights is further complicated by the challenges of fast paced and changing technologies and the need for adaptable and evolving regulatory frameworks. By highlighting these challenges and questioning the application of existing frameworks we aim to contribute to further promoting and strengthening the right to freedom of expression across South Asia.

The Organizers

Centre for Internet & Society

Established in 2008, the Centre for Internet and Society (CIS) is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open standards and open government data). CIS also engages in scholarly research on the budding disciplines of digital natives and digital humanities. CIS has offices in Bangalore and New Delhi.

Observer Research Foundation

ORF, established in 1990, is India's premier independent public policy think tank and is engaged in developing and discussing policy alternatives on a wide range of issues of national and international significance. The fundamental objective of ORF is to influence the formulation of policies for building a strong and prosperous India in a globalised world. It hosts India's largest annual cyber conference - CyFy: the India Conference on Cyber Security and Internet Governance

The Annenberg School for Communication, The Centre for Global Communication Studies & the Internet Policy Observatory (U. Penn.)

The Annenberg School of Communication (ASC) at the University of Pennsylvania produces research that advances the understanding of public and private communications. The Center for Global Communication Studies (CGCS) is a focused academic center at ASC and a leader in international education and training in comparative media law and policy. It affords students, academics, lawyers, regulators, civil society representatives and others the opportunity to evaluate and discuss international communications issues. The Internet Policy Observatory (IPO) was started by CGCS to research the dynamic technological and political contexts in which Internet governance debates take place. The IPO serves as a platform for informing relevant communities of activists, academics, and policy makers, displaying collected data and analysis.

Conference Programme

'Freedom of Expression in a Digital Age' Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia
April 21^st, 2015 - 11 a.m. to 6 p.m.

The Observer Research Foundation

20, Rouse Avenue Institutional Area

New Delhi - 110 002, INDIA

About the Conference

The conference will be a discussion highlighting the challenges in promoting and strengthening online freedom of expression and evaluating the application of existing regulatory frameworks in South Asia

Agenda

Learnings from the past		Current Realities		Looking ahead
11:00 - 1:00	1:00 - 2:00	2:00 - 4:00	4:00- 4:15	4:15 - 6:00
Overview of online FoEx policy and regulatory models across South Asia		Enabling FOEX in South Asia		Challenges associated with formulating regulation for online FoEx
Definitions of FoEx across South Asia		Ways in which FoEx is, or may be, curtailed online		Ways forward to bridge existing gaps between policy formation and policy implementation with respect to FOEX online
Impact of technology and markets on FoEx across South Asia		Balancing FoEx and other digital rights		Exploring emerging regulatory questions for FoEx online
Challenges to FoEx online across South Asia		The impact of jurisdiction, multi-national platforms, and domestic regulation on FoEx online		Impacting and influencing the development and implementation of Internet regulation through research
Effective research techniques and online FoEx		Role and responsibility of intermediaries in regulating online speech across South Asia		Exploration of the future role and interplay of technology and policy in enabling FOEX online

Ms. Mahima Kaul, Head (Cyber & Media Initiative), Observer Research Foundation (ORF), introduced the conference and its context and format, as well as the organisers. In three sessions, the Conference aimed to explore historical lessons, current realities and future strategies with regard to freedom of expression on the Internet in India and South Asia.

Mr. Manoj Joshi, Distinguished Fellow, ORF, provided the welcome address. Mr. Joshi highlighted the complexities and distinctions between print and electronic media, drawing on examples from history. He stated that freedom of expression is most often conceived as a positive right in the context of print media, as restrictions to the right are strictly within the bounds of the Constitution. For instance, during the riots in Punjab in the 1980s, when hate speech was prevalent, constitutionally protected restrictions were placed on the print media. When efforts were made to crack down on journalists with the introduction of the Defamation Bill in the 1980s, journalists were lucky that the Bill also included proprietors as those liable for defamation. This created solidarity between journalists and proprietors of newspapers to fight the Bill, and it was shelved.

Freedom of expression is necessary in a democratic society, Mr. Joshi stated, but it is necessary that this freedom be balanced with other rights such as privacy of individuals and the protection against hate speech. In the absence of such balance, speech becomes one-sided, leaving no recourse to those affected by violative speech.

In the digital age, however, things become complex, Mr. Joshi said. The freedom available to speech is enhanced, but so is the misuse of that freedom. The digital space has been used to foment riots, commit cybercrime, etc. Online, in India the restrictions placed on freedom of speech have become draconian. Section 66A and the incidents of arrests under it are an example of this. It is, therefore, important to consider the kind of restrictions that should be placed on free speech online. There is also the question of self-regulation by online content-creators, but this is rendered complex by the fact that no one owns the Internet. This conference, Mr. Joshi said, will help develop an understanding of what works and what frameworks we will need going forward.

Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society (CIS), introduced the speakers for the first session. Mr. Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance, Jamia Millia Islamia University, would first share his views and experience regarding the various ways of curtailing freedom of expression by the State, markets and civil society. Ms. Smarika Kumar of theAlternative Law Forum (ALF) would then expand on structural violations of freedom of expression. Mr. Bhairav Acharya, Advocate with the Delhi Bar and Consultant for CIS, would throw light on the development of free speech jurisprudence and policy in India from the colonial era, while Prof. Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University, was to speak about his arrest and charges under Section 66A of the Information Technology Act, 2000 (am. 2008), providing insight into the way Section 66A was misused by police and the West Bengal government.

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Mr. Parthasarathi began his talk with an anecdote, narrating an incident when he received a call from a print journalist, who said "TV people can get away with anything, but we can't, and we need to do something about it." The notion of news institutions getting away with non-kosher actions is not new - and has been a perception since the 19^th century. He stressed that there have always been tensions between Freedom of Expression, access, and other rights. Curtailment happens not just by the state, but by private parties as well - market and civil society. Indeed, a large number of non-state actors are involved in curtailing FoE. Subsequently a tension between individual FoE and commercial speech freedom is emerging. This is not a new phenomenon. Jurisprudence relating to free speech makes a distinction between the persons in whom the right inheres: individuals on the one hand (including journalists and bloggers), and proprietors and commercial entities on the other.

In India, freedom of speech cases - from 1947 - relate primarily to the rights of proprietors. These cases form the legal and constitutional basis for issues of access, transmission and distribution, but are not necessarily favourable to the rights of individual journalists or newsreaders. At the individual level, the freedom to receive information is equally important, and needs to be explored further. For entities, it is crucial to consider the impact of curtailment of speech (or threats of curtailment) on entities of different sizes and kinds.

Mr. Parthasarathi further explained that online, freedom of expression depends on similar structural conditions and stressed that scholarship must study these as well. For example, intermediaries in the TV industry and online intermediaries will soon come together to provide services, but scholarship does not link them yet. The law is similarly disjointed. For instance, 'broadcasting' falls in the Union List under Schedule VII of the Constitution, and is centrally regulated. However, distribution is geographically bounded, and States regulate distribution. In order to have a cohesive broadcast regulation, he raised the point that the placement of 'broadcasting' in the Union List may need to be re-thought.

According to Mr. Parthasarathi, the underlying conceptual basis - for the interlinked scholarship and regulation of intermediaries (online and broadcast), of commercial speech and individual access to information, and censorship (State and private, direct and structural) - lies in Article 19(1)(a). He noted that there is a need to rethink the nature of this freedom. For whom do we protect freedom of speech? For individuals alone, or also for all private entities? From what are we protecting this freedom? For Mr. Parthasarathi, freedom of speech needs to be protected from the State, the market, civil society and those with entrenched political interests. Additionally, Mr. Parthasarathi raised the question of whether or not in the online context freedom of the enterprise becomes antithetical to universal access

Mr. Parthasarathi also highlighted that it is important to remember that freedom of expression is not an end in itself; it is a facilitator - the 'road'- to achieve crucial goals such as diversity of speech. But if diversity is what freedom of expression should enable, it is important to ask whether institutional exercise of freedom has led to enhanced diversity of speech. Do media freedom and media diversity go together? For Mr. Parthasarathi, media freedom and media diversity do not always go together. The most vivid example of this is the broadcast environment in India, following the deregulation of broadcast media beginning from the mid 1990s - much of which was done through executive orders on an ad hoc basis.

This led to infrastructural censorship, in addition to the ex-post curtailment of content. Increasingly the conditions on which content is produced are mediated i.e. which entities are eligible to obtain licenses, what type of capital is encouraged or discouraged, how is market dominance measured, accumulation of interests across content and carriage, or various carriage platforms? Mediating the conditions of producing speech, or infra censorship, is primarily operationalised through regulatory silences, as illustrated in the absence of any coherent or systematic anti-competitive measures.

Indian courts are champions in protecting the freedom of expression of 'outlets' - of proprietors and entities. But this has not led to diversity of speech and media. Perhaps there is a need to rethink and reformulate ideas of freedom. He pointed out that it is not enough merely to look at ex post curtailment of speech (i.e., the traditional idea of censorship). Instead the conditions in which speech is made and censored need to be explored; only then can our understanding expand. Mr Parthasarathi ended his talk by stressing that a proactive understanding of freedom of expression can highlight architectural curtailment of speech through the grant of licenses, competition and antitrust laws, media ownership and concentration across carriage and content, etc. This is essential in a digital age, where intermediaries play a crucial, growing role in facilitating freedom of speech.

Smarika Kumar, Alternative Law Forum
Beginning where Mr. Parthasarathi left off, the focus of Ms. Kumar's presentation was the curtailment of speech and the conditions under which speech is produced. At the outset, she sought from the audience a sense of the persons for whom freedom of speech is protected: for government-controlled media, the markets and commercial entities, or for civil society and citizens? Ms. Kumar aimed to derive ideas and conceptual bases to understand freedom of speech in the digital space by studying judicial interpretations of Article 19(1)(a) and its limitations. Towards this end, she highlighted some Indian cases that clarify the above issues.

Ms. Kumar began with Sakal Papers v. Union of India [AIR 1962 SC 305]. In Sakal Papers, the issue concerned the State's regulation of speech by regulation of the number of permitted pages in a newspaper. This regulation was challenged as being in violation of Article 19(1)(a) of the Constitution. The rationale for such regulation, the State argued, was that newsprint, being imported, was a scarce commodity, and therefore needed to be equitably distributed amongst different newspapers - big or small. Further, the State defended the regulation citing its necessity for ensuring equal diversity and freedom of expression amongst all newspapers. The petitioners in the case argued that such a regulation would negatively impact the newspapers' right to circulation by reducing the space for advertisements, and thus forcing the newspaper to increase selling prices. Readers of the newspaper additionally argued that such increase in prices would affect their right to access newspapers by making them less affordable, and hence such regulation was against the readers' interests. Ultimately, the Supreme Court struck down the regulation. The Constitution Bench noted that if the number of pages of a newspaper were to be limited and regulated, the space available for advertisements would reduce. Were advertisements to reduce, the cost of newspapers would increase, affecting affordability and access to information for the citizens. Ultimately, newspaper circulation would suffer; i.e., the State's regulation affected the newspapers' right of circulation which would amount to a violation of freedom of expression as the right extends to the matter of speech as well as the ability to circulate such speech.

Apart from the number of pages, the Indian government has sought to regulate newsprint in the past. In Bennett Coleman and Co. & Ors. v. Union of India [AIR 1973 SC 106], a Constitution Bench of the Supreme Court considered whether regulation of the number of pages permitted in a newspaper constituted an unreasonable restriction on freedom of expression. Towards this, the Government of India set forth a Newsprint Policy in 1972, under the terms of which the number of pages of all papers were to be limited to ten; where there were small newspapers that did not achieve the ten-page limit, a 20% increase was permitted; and finally, new newspapers could not be started by common ownership units. The Newsprint Order aimed to regulate a scarce resource (newsprint), while the Newsprint Policy sought to promote small newspapers, encourage equal diversity among newspapers and prevent monopolies. The Supreme Court upheld the Newsprint Order, stating that newsprint was indeed a scarce resource, and that the matter of import and distribution of newsprint was a matter of government policy. The Court would not interfere unless there was evidence of mala fides. However, the Court struck down the Newsprint Policy for reasons similar to Sakal Papers ; that the rights afforded to newspapers under Article 19(1)(a) - including circulation - could not be abridged for reasons of protecting against monopolies.

In his dissenting opinion, Justice Mathew stated that in conceiving freedom of expression, it is important to also consider the hearer (the reader). For Justice Mathew, Meiklejohn's view the "what is essential is not that everyone shall speak, but that everything worth saying shall be said" cannot be affected if, because of concentration of media ownership, media are not available for most speakers. In such a situation, " the hearers [cannot] be reached effectively". However, the imperative is to maximise diversity of speech. For this, we need to balance the rights of citizens against those of the press; i.e., the rights of the reader against those of the speaker.

Ms. Kumar pointed out that this was the first case to consider the right of readers to access a diversity of speech. Justice Mathew distinguished curtailment of speech by the state, and by the market - and that this is crucial in the digital age, where information is predominantly accessible through and because of intermediaries. Ms. Kumar further stressed that especially in an age where 'walled gardens' are a real possibility (in the absence of net neutrality regulation, for instance), Justice Mathew's insistence on the rights of readers and listeners to a diversity of speech is extremely important.

Ms. Kumar went on to explain that though judges in the Supreme Court recognised the rights of readers/listeners (us, the citizens) for the purposes of news and print media, a similar right is denied to us in the case of TV. In Secretary, Ministry of Broadcasting v. Cricket Association of Bengal [AIR 1995 SC 1236], the issue surrounded private operators' right to use airwaves to broadcast. The Supreme Court considered whether government agencies and Doordarshan, the government broadcaster, " have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them", and whether Doordarshan could claim to be the single host broadcaster for all events, including those produced or organised by the company or by anybody else in the country or abroad. The Supreme Court held that the TV viewer has a right to a diversity of views and information under Article 19(1)(a), and also that the viewer must be protected against the market. The Court reasoned that " airwaves being public property, it is the duty of the state to see that airwaves are so utilised as to advance the free speech right of the citizens, which is served by ensuring plurality and diversity of views, opinions and ideas ".

If every citizen were afforded the right to use airwaves at his own choosing, "powerful economic, commercial and political interests" would dominate the media. Therefore, instead of affirming a distinct right of listeners, the Court conflated the interests of government-controlled media with those of the listeners, on the ground that government media fall under public and parliamentary scrutiny. According to Ms. Kumar this is a regressive position that formulates State interest as citizen interest. Ms. Kumar argued that in order to ensure freedom of speech there is a need to frame citizens' interests as distinct from those of the market and the government.

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS
Mr. Acharya's presentation focused on the divergence between the jurisprudence and policy surrounding freedom of expression in India. According to him, the policies of successive governments in India - from the colonial period and thereafter - have developed at odds with case-law relating to freedom of expression. Indeed, it is possible to discern from the government's actions over the last two centuries a relatively consistent narrative of governance which seeks to bend the individual's right to speech to its will. The defining characteristics of this narrative - the government's free speech policy - emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet. Thus, there has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Today, free speech scholarship (including digital speech) fails to take into account this consistent divergence between jurisprudence and policy. Mr. Acharya pointed out that we think of digital speech issues as new, whereas there is an immense amount of insight to gain by studying the history of free speech and policy in India.

Towards this, Mr. Acharya highlighted that to understand dichotomy between modern and native law and free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal's hinterland to begin the long process of displacing traditional law to create a modern legal system. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Mr. Acharya explained that this myopia in Indian policy research is similar social censorship (i.e., social custom as creating limits to free speech). Law and society scholars have long studied the social censorship phenomenon, but policy research rejects this as a purely academic pursuit. But the truth is that free speech has been regulated by a dual policy of law and social custom in India since colonial times. The then-Chief Justice of the Calcutta High Court Elijah Impey required officers to respect local customs, and this extended to free speech as well. But as colonial courts did not interpret Hindu law correctly; interpretations of freedom of speech suffered as well. Mr. Acharya noted that the restrictions on freedom of speech introduced by the British continue to affect individuals in India today. Prior to British amendments, India had drawn laws from multiple sources - indeed customs and laws were tailored for communities and contexts, and not all were blessed with the consistency and precedent so familiar to common law. Since the British were unable to make sense of India's law and customs, they codified the principles of English customary law.

The Indian Penal Code (IPC) saw the codification of English criminal law (the public offences of riots, affray, unlawful assembly, etc., and private offences such as criminal intimidation). In Macaulay's initial drafts, the IPC did not contain sedition and offences of hurting religious sentiments, etc. Sections 124A ("Sedition") and 295A (" Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs") were added to the IPC in 1860, and changes were made to the Code of Criminal Procedure as well. Today, these sections are used to restrict and criminalise digital speech.

The Right to Offend :

Mr. Acharya then considered the history of the "right to offend", in light of the controversies surrounding Section 66A, IT Act. Before the insertion and strengthening of Section 295A, citizens in India had a right to offend others within the bounds of free speech. He clarified that in 1925 a pamphlet " Rangila Rasool" was published by Lahore-based Mahashe Rajpal (the name(s) of the author(s) were never revealed). The pamphlet concerned the marriages and sex life of the Prophet Mohammed, and created a public outcry. Though the publisher was acquitted of all charges and the pamphlet was upheld, the publisher was ambushed and stabbed when he walked out of jail. Under pressure from the Muslim community, the British enacted Section 295A, IPC. The government was seeking to placate and be sensitive to public feeling, entrenching the idea that the government may sacrifice free speech in the face of riots, etc. The death of India's "right to offend" begins here, said Mr. Acharya.

A prior restraint regime was created and strengthened in 1835, then in 1838, etc. At this time, the press in India was largely British. Following the growth of Indian press after the 1860s, the British made their first statutory attempt at censorship in 1867: a prior sanction was required for publication, and contravention attracted heavy penalties such as deportation and exile. Forfeiture of property, search and seizures and press-inspections were also permitted by the government under these draconian laws. Mr. Acharya noted that it is interesting that many leaders of India's national movement were jailed under the press laws.

Independence and After :

Mr. Acharya further explained that the framers of the Constitution deliberately omitted "freedom of the press" from the text of Article 19(1)(a) and that Jawaharlal Nehru did not think the press ought to be afforded such a right. This is despite a report of the Law Commission of India, which recommended that corporations be provided an Article 19 right. But why distrust the press, though citizens are granted the freedom of speech and expression under Article 19(1)(a)? In Mr. Acharya's opinion, this is evidence of the government's divergent approach towards free speech policy; and today, we experience this as a mistrust of the press, publications, and of online speech.

Mr. Acharya also explained that statutory restrictions on free speech grew at odds with judicial interpretation in the 1950s. Taking the examples ofRomesh Thapar v. the State of Madras [AIR 1950 SC 124] and Brij Bhushan v. the State of Delhi [(1950) Supp. SCR 245], Mr. Acharya showed how the judiciary interpreted Article 19 favourably. Despite the government's arguments about a public order danger, the Supreme Court refused to strike down left wing or right wing speech ( Romesh Thapar concerned a left wing publication; Brij Bhushan concerned right wing views), as "public order" was not a ground for restricting speech in the Constitution. The government reacted to the Supreme Court's judgement by enacting the First Amendment to the Constitution: Article 19(2) was amended to insert "public order" as a ground to restrict free speech. Thus, it is possible to see the divergence between free speech jurisprudence and policy in India from the time of Independence. Nehru and Sardar Vallabhbhai Patel had supported the amendment, while B.R. Ambedkar supported Romesh Thapar and Brij Bhushan. On the other hand, then-President Rajendra Prasad sought Constitutional protection for the press.

Why Study Free Speech History?

Mr. Acharya noted how the changes in free speech policy continue to affect us, including in the case of content restrictions online. In the 1950s, then-Prime Minister Nehru appointed the First Press Commission, and the newspaper National Herald was established to promote certain (left wing) developmental and social goals. Chalapati Rao was the editor of the National Herald, and a member of the First Press Commission.

At that time, the Commission rejected vertical monopolies of the press. However, today, horizontal monopolies characterize India's press. The First Press Commission also opposed 'yellow journalism' (i.e., sensational journalism and the tabloid press), but this continues today. Decades later, Prime Minister Indira Gandhi called for a "committed bureaucracy, judiciary and press", taking decisive steps to ensure the first two. For instance, Justice Mathew (one of the judges in the Bennett Coleman case) was an admirer of Indira Gandhi. As Kerala's Advocate General, he wanted the Press Registrar to have investigative powers similar to those given in colonial times; he also wanted the attacks on government personalities to be criminalized. The latter move was also supported by M.V. Gadgil, who introduced a Bill in Parliament that sought to criminalise attacks on public figures on the grounds of privacy. Mr. Acharya noted that though Indira Gandhi's moves and motives with regard to a "committed press" are unclear, the fact remains that India's regional and vernacular press was more active in criticizing the Emergency than national press.

Demonstrating the importance of understanding a contexts history - both social and legislative, following the striking down of 66A in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), elements in the government have stated their wish to introduce and enact a new Section 66A. Mr. Acharya explained that such moves from elements in the government shows that despite the striking down of 66A, it is still possible for the repressive and mistrustful history of press policy to carry forward in India. This possibility is supported by colonial and post-Independence press history and policy that has been developed by the government. When looking at how research can impact policy, greater awareness of history and context may allow for civil society, academia, and the public at large to predict and prepare for press policy changes.

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Prof. Mahapatra introduced himself as a victim of the West Bengal administration and ruling party. He stated that though India's citizens have been granted the protection of fundamental rights after Independence, these rights are not fully protected; his experience with the West Bengal ruling party and its abuse of powers under the Information Technology Act, 2000 (am. 2008) ("IT Act") highlights this.

On March 23, 2012, Prof. Mahapatra had forwarded a cartoon to his friends by email. The cartoon poked fun at West Bengal Chief Minister Mamata Banerjee and her ruling party. On the night of April 12, 2012, individuals not residing in the Professor's housing colony confronted him, dragging him to the colony building and assaulting him. These individuals forced Prof. Mahapatra to write a confession about his forwarding of the cartoon and his political affiliations. Though the police arrived at the scene, they did not interfere with the hooligans. Moreover, when the leader of the hooligans brought the Professor to the police and asked that he be arrested, they did so even though they did not have an arrest warrant. At the police station, the hooligans filed a complaint against him. The Professor was asked to sign a memo mentioning the charges against him (Sections 114 and 500, Indian Penal Code, 1860 & Section 66A, IT Act). Prof. Mahapatra noted that the police complaint had been filed by an individual who was neither the receiver nor the sender of the email, but was a local committee member with the Trinamool Congress (the West Bengal ruling party).

The arrest sparked a series of indignant responses across the country. The West Bengal Human Rights Commission took suo motu cognizance of the arrest, and recommended action against the high-handedness of the police. Fifty six intellectuals appealed to the Prime Minister of India to withdraw the arrest; the former Supreme Court judge Markandey Katju was among those who appealed. Thirty cartoonists' organisations from across the world also appealed to the President and the Prime Minister to withdraw the case.

The West Bengal government paid no heed to the protests, and Chief Minister Mamata Banerjee publicly supported the actions of the police - making public statements against Justice Katju and A.K. Ganguly, former judge of the Supreme Court and head of the West Bengal Human Rights Commission respectively. A charge sheet was framed against Prof. Mahapatra and others, with Section 66A as one of the charges.

The case has been going on for over two years. Recently, on March 10, 2015, the Calcutta High Court upheld the recommendations of the West Bengal Human Rights Commission, and directed the government to implement them. The West Bengal government has preferred an appeal before a division bench, and the case will continue. This is despite the fact that Section 66A has been struck down (by the Supreme Court in Shreya Singhal & Ors. v. Union of India).

Though noting that he was not an expert, Prof. Mahapatra put forward that it seemed that the freedom of expression of the common man depends on the whims of the ruling parties and the State/Central governments. It is of utmost importance, according to him, to protect the common man's freedom of speech, for his recourse against the government and powerful entities is pitifully limited.

Questions & Comments

Q. A participant stated that the core trouble appears to lie in the power struggle of political parties. Political parties wish to retain power and gather support for their views. Despite progressive laws, it is the Executive that implements the laws. So perhaps what is truly required is police and procedural reforms rather than legislative changes.

A. Members of the panel agreed that there is a need for more sensitivity and awareness amongst the law enforcement agencies and this might be long overdue and much needed step in protecting the rights of citizens.

Q. A participant was interested in understanding how it might be possible to correct the dichotomy between FoE policy and doctrine? The participant also wanted the panel to comment on progressive policy making if any.

A. Members of the panel stated that there is no easy way of correcting this dichotomy between custom and law. Scholars have also argued that the relationship between custom and pernicious social censorship is ambiguous. Towards this, more studies are required to come to a conclusion.

Q. A participant requested clarity on what rights can be created to ensure and support a robust right to freedom of expression, and how this might affect the debates surrounding net neutrality?

A. Members of the panel noted that the Internet allows citizens and corporations to regulate speech on their own (private censorship), and this is problematic. Members of the panel also responded that the existing free speech right does not enable diversity of speech. Social and local customs permit social censorship, and this network effect is clearly visible online; individuals experience a chilling effect. Finally, in the context of net neutrality, the interests of content-producers (OTTs, for instance) are different from those of users. They may benefit economically from walled gardens or from non-interference with traffic-routing, but users may not. Therefore, there is a need for greater clarity before coming to a conclusion about potential net neutrality regulation.

Session 2: Current Realities

Dr. Cherian George, Associate Professor, Hong Kong Baptist University
Dr. George began his talk by highlighting how there is no issue as contentious as offensive speech and how it should be dealt with. The debate around free speech is often framed as a battle between those who support democracy and those who oppose it. Yet, this is also a tension within democracy. Citizens should not be unjustly excluded from participating in democracy (companion rights in Article 19 and 20, ICCPR). Relevant UN institutions and Article 19 have come up with reports and ideals that should be universally adopted - norms that apply to many areas including speech. These norms are different from traditional approaches. For example:

Human Rights Norms	Traditional Approach
Regulate incitement of violence (discrimination, hate, etc.)	Law protects people's feelings from speech that offends
Protect minorities as they are more vulnerable to exploitation and uprooting of their values	Law sides with the majority, to protect mainstream values over minority values
Allow robust criticism of ideas, religions, and beliefs	Law protects religion, beliefs, and ideas from criticism
Strive for balance between liberty and equality	Aims for order and maintenance of status quo
Promote harmony through the media	Enforces harmony by the state

Commenting on the traditional approach, Dr. George noted that if the state protects feelings of offence against speech, it allows groups to use such protection as a political weapon: "hate spin", which is the giving or taking of offence as a political strategy. Hate spin is normally framed as a "visceral, spontaneous reaction" to a video, writing, or speech, etc. Yet, the spontaneous reaction of indignation to speech or content can consistently be revealed to result from conscious manipulation by middlemen for political purposes.

South Asia is similar to West Asia - as the legal frameworks provide immunity for dangerous speech. In practice, this allows for the incitement of discrimination, hostility, and violence. At the same time, the legal frameworks allow for excessive sympathy for wounded feelings, and often the taking of offence turns into a political strategy. Power enters the equation here. The law allows the powerful to take offence and use hate speech against those not in powerful positions.

Dr. George highlighted a number of legal quandaries surrounding freedom of expression including:

Enforcement gaps: There is a lack of enforcement of existing laws against incitement.
Non-regulated zones: Socio-political research demonstrates that many problems cannot be regulated, and yet the law can only deal with what can be regulated. Hate speech is one of these as hate speech is not in the speech itself, but in the meaning that is produced in the mind of those saying/listening.
Verdict-proof opportunities: Political entrepreneurs can use legislative and judicial processes to mainstream hateful views, regardless of how legislature and courts ultimately act. The religious right, for instance, can always pit themselves morally against "secular" decisions of apex authorities (SC, etc.). For example, in the context of the US and Islamophobia - the State legislature in Alabama introduced an anti-Shariah law. Yet, the law is against a non-existent threat and appears to be a ploy to normalize anti-Muslim sentiments, including in political rhetoric. While focusing on winning battles in courts or legislature, the intolerant groups do not need to win a legal court case to introduce and entrench language of intolerance in public discourse and discussion. This demonstrates that there is a need to begin moving away from a purely legal analysis (interpretation or development) of the laws, and a need to begin studying these issues through a sociological lens.

Zakir Khan, Article 19, Bangladesh
Mr. Khan introduced Article 19 and its work in Bangladesh and the rest of South Asia. He noted that Article 19 is involved in documenting and analysing laws and regulations affecting freedom of expression, including in Bangladesh. Article 19 also campaigns for changes in law and policy, and responds from a policy perspective to particular instances of government overreach.

Mr. Khan explained that India has the Information Technology Act, 2000 (am. 2008) ("IT Act"), and in Bangladesh, the equivalent legislation is the Information and Communication Technology Act, 2006 ("ICT Act"). The ICT Act was enacted to bring Bangladeshi law in conformity with international law; i.e. in accordance with the UNCITRAL model law on e-commerce and online transactions. The ICT Act deals with hacking, crimes committed with the use of a computer system, breach of data, breach of computer system, and hardware.

Like the IT Act in India, Bangladesh's ICT Act also criminalizes speech and expression online. For instance, Section 57, ICT Act, criminalizes the publication of "fake, obscene or defaming information in electronic form". Similarly, bringing damage to "the state's image" online is criminalized. In 2013, the Bangladesh Ministry of Law amended the ICT Act to increase penalties for online offences, and allow for the detention of suspected offenders, warrantless arrests and indefinite detention without bail. Bloggers and activists have been protesting these changes, and have been targeted for the same.

Mr. Khan noted that Article 19 has developed a tool to report violations online. Individuals who have experienced violations of their rights online can post this information onto a forum, wherein Article 19 tracks and reports on them, as well as creating awareness about the violation. Any blogger or online activist can come and voice concerns and report their stories. Mr. Khan also highlighted that given the ICT Act and the current environment, online activists and bloggers are particularly threatened. Article 19 seeks to create a safe space for online bloggers and activists by creating anonymity tools, and by creating awareness about the distinctions between political agenda and personal ideology.

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)
Ms. Arun began by noting that usually conversations around freedom of expression look at the overlap between FoE and content i.e. the focus is on the speaker and the content. Yet, when one targets the mediator - it shifts the focus as it would be approaching the issue from the intermediary's perspective. When structural violation of free speech happens, it either places the middleman in the position of carrying through the violation, or creates a structure through which speech violations are incentivized.

An example of this is the Bazee.com case. At the time of the case the law was structured in such a way that not only perpetrators of unlawful content were punished, but so were the bodies/persons that circulated illegal content. In regulatory terms this is known as "gatekeeper liability". In the Bazee.com case, a private party put obscene content up for sale and Bazee.com could and did not verify all of the content that was for sale. In the case, the Delhi HC held Avnish Bajaj, the CEO of Bazee.com, liable on the precedent of strict liability for circulation of obscene content. The standard of strict liability was established under Ranjit Udeshi case. The standard of strict liability is still the norm for non-online content, but after Bazee.com, a Parliament Standing Committee created a safe harbour for online intermediaries under Section 79 of the IT Act. As per the provision, if content has been published online, but an intermediary has not edited or directly created the content, it is possible for them to seek immunity from liability for the content. The Parliament Standing Committee then stated that intermediaries ought to exercise due diligence. Thus, the Indian legal regime provides online intermediaries with immunity only if content has not been published or edited by an intermediary and due diligence has been exercised as defined by Rules under the Act. While developing India's legal regime for intermediary liability the Parliamentary Standing Committee did not focus on the impact of such regulation on online speech.

To a large extent, present research and analysis of Freedom of Expression is focused on the autonomy of the speaker/individual. An alternative formulation and way of understanding the right, and one that has been offered by Robert Post through his theory of democratic self governance, is that Freedom of Expression is more about the value of the speech rather than the autonomy of the speaker. In such a theory the object of Freedom of Expression is to ensure diversity of speech in the public sphere. The question to ask then is: "Is curtailment affecting democratic dialogue?" The Supreme Court of India has recognized that people have a right to know/listen/receive information in a variety of cases. Ms. Arun explained that if one accepts this theory of speech, the liability of online intermediaries will be seen differently.

Ms. Arun further explained that in Shreya Singhal, the notice-and-takedown regime under section 79 of the IT Act has been amended, but the blocking regime under section 69A has not. Thus, the government can still use intermediaries as proxies to take down legitimate content, and not provide individuals with the opportunity to to challenge blocking orders. This is because as per the Act, blocking orders must be confidential. Though the blocking regime has not been amended, the Supreme Court has created an additional safeguard by including the requirement that the generator of content has to be contacted (to the extent possible) before the government can pass and act upon a blocking order. Mr. Arun noted that hopefully, when implemented, this will provide a means of recourse for individuals and counter, to some extent, the mandated secrecy of content blocking orders.

Raman Jit Singh Chima, Asia Consultant, Access Now
Mr. Chima began his presentation by noting that the Internet is plagued by a few founding myths. Tim Goldsmith and Jack Wu (in Who Controls the Internet: Illusions of a Borderless World) name one: that no laws apply to the Internet; that, because of the borderless nature of the Internet - data flows through cables without regard for State borders - and thus countries' laws do not affect the Internet. These cyber-anarchists, amongst whom John Perry Barlow of the Electronic Frontier Foundation (EFF) is inspiring, also argue that regulation has no role for the Internet.

Mr. Chima countered these 'myths', arguing that the law affects the Internet in many ways. The US military and Science departments funded the invention of the Internet. So the government was instrumental in the founding of the Internet, and the US Department of Commerce has agreements with ICANN (Internet Corporation for Assigned Names and Numbers) to govern the Domain Names System. So the law, contracts and regulation already apply to the Internet.

Mr. Chima further explained that today organisations like EFF and civil society in India argue for, and seek to influence, the creation of regulation for the protection of journalists against unfair and wrongful targeting by the government. This includes moves to protect whistleblowers, to ensure the openness of the Internet and its protection from illegitimate and violative acts against freedom of expression, access and other rights. Some governments, like India, also place conditions in the licenses granted to Internet Service Providers (ISPs) to ensure that they bring access to the rural, unconnected areas. Such law and regulation are not only common, but they are also good; they help the population against virtual wrongdoing.

Mr. Chima pointed out that when States contemplate policy-making for the Internet, they look to a variety of sources. Governments draw upon existing laws and standards (like India with the virtual obscenity offence provision Section, 67 and 67A, IT Act, which is drawn from the real-world penal provision Section 292, IPC) and executive action (regulation, by-laws, changes to procedural law) to create law for the Internet. Additionally, if a government repeats a set of government actions consistently over time, such actions may take on the force of law. Mr. Chima also spoke of web-developers and standards-developers (the technical community), who operate by rules that have the force of law, such as the 'rough consensus and running code' of the IETF (Internet Engineering Task Force). Governments also prescribe conditions ("terms of use") that companies must maintain, permitting or proscribing certain kinds of content on websites and platforms.

Finally, Mr. Chima highlighted international legal and policy standards that play a role in determining the Internet's law and regulation. ICANN, the administrator of the Internet Assigned Numbers Authority (IANA) functions and governing body for the Domain Names System, functions by a set of rules that operate as law, and in the creation of which, the international legal community (governments, companies, civil society and non-commercial users, and the technical community) play a role. The ITU (International Telecommunications Union) and organisations like INTERPOL also play a role.

Mr. Chima explained that when one wants to focus on issues concerning freedom of expression, multiple laws also apply. Different States set different standards. For instance, in the US, the main standards for the Internet came from issues relating to access to certain types of online content. In Reno v. ACLU (1997), the US Supreme Court considered what standards should be created to access obscene and indecent content on the Internet. The judges held that the Internet, as a medium of unprecedented dynamism, deserved the higher protection from governmental overreach.

In Asia, the main legal standards for the Internet came from Internet commerce: the UNCITRAL model law, which prescribed provisions best suited to the smoother commercial utilization of a fast and growing medium, became the foundation for Internet-related law in Asian states. Predictably, this did not offer the strongest rights protections, but rather, focused on putting in place the most effective penalties. But when Asian states drew from the European UNCITRAL law, many forgot that European states are already bound by the European Convention for Human Rights, the interpretation of which has granted robust protections to Internet-related rights.

Mr. Chima provided the example of Pakistan's new Cybercrime Bill. The Bill has troubling provisions for freedom of expression, and minimal to no due process protections. While drafting the law, Pakistan has drawn largely from model cybercrime laws from the Council of Europe, which are based on the Budapest Convention. In Europe and the US, States have strong parallel protections for rights, but States in Asia and Africa do not.

Mr. Chima concluded that when one talks of freedom of expression online, it is important to also remember the roles of intermediaries and companies. The ISPs can be made liable for content that flows through their wires, through legal mechanisms such as license provisions. ISPs can also be made to take further control over the networks, or to make some websites harder to access (like the Internet Watch Foundation's blacklist). When policy organisations consider this, it is critical that they ask whether industry bodies should be permitted to do this without public discussion, on the basis of government pressure.

Questions & Comments

Q. Participants asked for panel members to talk about the context in which bloggers find themselves in danger in Bangladesh.

A. Panel members stated that the courts are not fair to bloggers as often they side with government. It was added that courts have labelled bloggers as atheist, and subsequently all bloggers are being associated with the label. Further, it was added that most people who are outraged, do not even know what blogging is, and people associate blogging with blasphemy and as opposing religious beliefs. It was also noted that in Bangladesh, while you see violations of FoE from the State, you see more violations of blogger rights from non-state actors.

Q. Participants asked if there is anything specific about the Internet that alters how we should consider hate speech online and their affective/visceral impact.

A. Pa nel members noted that they are still grappling with the question of what difference the Internet makes, but noted that it has indeed complicated an already complex issue as there is always the question about political entrepreneurs using convenient content to foment fires.

Q. Participants questioned panel members about how the right to offend is protected in jurisdictions across Asia where there is still tension between classical liberalism and communitarian ideologies, and where the individuated nature of rights is not clearly established or entrenched.

A. Panel members responded by stating that when one compares the US, Indonesia and India, the US seems to be able to strike a balance between free speech and other competing interests as they are committed to free speech and committed to religious tolerance and plurality of competing interests. Panel members also added that the fabric of civil society also has an impact. For example, Indonesian civil society is simultaneously religious and secular and pro-democracy. In India, there seems to be a tension between secular and religious groups. In Indonesia, people are moving to religion for comfort, while still seeking a world that is religious and secular.

Q. Participants asked for clarification on ways to approach regulation of hate speech given that hate speech is not just about a particular kind of threatening speech, but encompasses rumours and innuendos.

A . Panel members acknowledged that more research needs to be done in this area and added that applying the socio-cultural lens on such issues would be beneficial.

Q. Participants asked if panel members had a framework for a regulating the content practices of private actors, who are sometimes more powerful than the state and also enforcing censorship.

A. Panel members responded that private censorship is an important issue that needs to be reflected upon in some depth, though a framework is far from being developed even as research is ongoing in the space.

Session 3: Looking Ahead

The third and final session of the conference aimed to find principles and methods to achieve beneficial and effective regulation of the Internet. One of the core aims was the search for the right balance between the dangers of the Internet (and its unprecedented powers of dissemination) and the citizens' interest in a robust right to freedom of expression. Mr. Sutirtho Patranobis, Assistant Editor with the Hindustan Times (Sri Lanka desk, previously China correspondent), shared his experience with governmental regulation of online free speech in China and Sri Lanka. Ms. Karuna Nandy,Advocate, Supreme Court of India, analysed the Indian Supreme Court's decision in Shreya Singhal v. Union of India (March 24, 2015), and sought to draw lessons for the current debate on net neutrality in India. Ms. Geeta Seshu, founder and editor of the online magazine The Hoot, offered an expanded definition of freedom of speech, focusing on universal access as the imperative. Finally, Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society, offered his views on net neutrality and the issue of zero-rating, as well as arguing for an increased, cooperative role of civil society in creating awareness on issues relating to the Internet.

Sutirtho Patranobis, Assistant Editor, Hindustan Times
During his career, Mr. Patranobis was the China correspondent for the Hindustan Times. Mr. Patranobis began his presentation by sharing his experiences in China. In China, multiple online platforms have become sources of news for citizens. Chinese citizens, especially the urban young, spend increasing amounts of time on their mobile phones and the Internet, as these are the major sources of news and entertainment in the country.

The Chinese government's attitude towards freedom of expression has been characterized by increasing control over these online platforms. The includes control over global companies like Google and Facebook, which have negotiated with the Chinese government to find mutually acceptable operating rules (acceptable to the government and the company, but in most cases unfavourable to the citizens) or have faced being blocked or filtered from the country. Mr. Patranobis noted that free speech regulation in China has evolved into a sophisticated mechanism for control and oppression, and the suppression of dissent. Not only China, but Sri Lanka has also adopted similar approaches to dealing with freedom of expression.

In China, free speech regulations have evolved with an aim to curtail collective action and dissent. China's censorship programmes work towards silencing expression that can represent, reinforce or spur social mobilisation. Mr. Patranobis explained that these programmes aim to put an end to all collective activities (current or future) that may be at odds with government policies. Therefore, any online activity that exposes government action as repressive, corrupted or draconian is meted out harsh treatment. Indeed it is possible to see that there are sharp increases in online censorship and crackdowns when the government implements controversial policies offline.

Mr. Patranobis went on to discuss the nature of objectionable content, and the manner in which different jurisdictions deal with the same. Social and cultural context, governmental ideologies, and political choices dictate the nature of objectionable content in States such as China and Sri Lanka. On the flipside, media literacy, which plays a big role in ensuring an informed and aware public, is extremely low in Sri Lanka, as well as in many other States in South Asia.

Mr. Patranobis raised the question of how the Internet can be regulated while retaining freedom of expression - noting that the way forward is uncertain. In Sri Lanka, for instance, research by UNESCO shows that the conflicting policy objectives are unresolved; these first need to be balanced before robust freedom of expression can be sustained. The Internet is a tool, after all; a tool that can connect people, that can facilitate the spread of knowledge and information, to lift people from the darkness of poverty. The Internet can also be a tool to spread hate and to divide societies and peoples. Finding the right balance, contextualised according to the needs of the citizens and the State, is key to good regulation.

Karuna Nundy, Advocate, Supreme Court of India
Ms. Nandy focused her presentation on two issues currently raging in India's free speech debates: the Supreme Court's reasoning on Sections 66A and 69A, IT Act, in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), and issues of access and innovation in the call for a net neutrality regulation. She stated that the doctrine of the "marketplace of ideas" endorsed by Justices Nariman and Chelameswar in Shreya Singhal speaks to the net neutrality debate.

Ms. Nandy held that a law can be challenged as unconstitutional if it prohibits acts that are legitimate and constitutional. Such an argument refers to the impugned law's "overbroad impact". For instance, the Supreme Court struck down Section 66A, IT Act, on the ground (among others) that the impugned section leads to the prohibition and criminalisation of legitimate and protected speech. Cases such asChintaman Rao v. State of Madhya Pradesh [(1950) SCR 759] and Kameshwar Prasad v. State of Bihar [1962 Supp. (3) SCR 369] speak to this principle. They expand the principle of overbreadth to include the notion of "chilling effect" - i.e., situations where overbroad blocking leads to the prohibition of legitimate constitutional speech. In such situations, citizens are unsure what constitutes protected speech and what does not, leading to a chilling effect and self-censorship for fear of reprisals.

In Shreya Singhal, the Supreme Court also considered the "reasonable person" doctrine that has been developed under the law of obscenity. India had initially adopted the Hicklin test, under which the test to determine what is obscene depended on whether prurient minds (minds that have a tendency to be corrupted) would find the impugned material lascivious and corrupting. This test, laid down in Ranjit Udeshi v. State of Maharashtra [AIR 1965 SC 881] and altered/refined by decades of jurisprudence, was put to rest in Aveek Sarkar v. State of West Bengal [AIR 2014 SC 1495]. In Aveek Sarkar, the Supreme Court adopted the "community standards" test to determine obscene content. According to Ms. Nandy, the "community standards" test rests on the doctrine of reasonable persons. Ms. Nandy noted that in effect there is a need for more police officers to protect those who produce legitimate content from hecklers.

Quoting from the U.S. decision of Whitney v. California [71 L. Ed. 1095], Ms. Nandy submitted that:

" It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. "

On the issue of website blocking and the Supreme Court's reasoning on Section 69A, IT Act, in Shreya Singhal, Ms. Nandy explained that the Additional Solicitor General had conceded a number of points during the oral arguments. She further explained that website blocking can be applied when the Central Government is satisfied that there is a necessity for it. However, reasons must be recorded in writing. Also, according to the Supreme Court's interpretation of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (" Blocking Rules"), both the intermediary and the originator of the communication (the content-creator) have to be given a chance to be heard.

Rule 16 of the Blocking Rules, which mandates confidentiality of all blocking requests and orders, was also discussed in Shreya Singhal. Though some confusion has arisen about the Rule's interpretation, Ms. Nandy submitted that Rule 16 has been read down. There is no longer a strict, all-encompassing requirement of confidentiality. While the identity of the complainant and the exact nature of the complaint must be kept confidential, the blocking order and the reasoning behind the order are no longer bound by Rule 16. This is because in §109 of the judgment, the Supreme Court accepts that writ petitions can lie on the basis of blocking orders. In order for writs to lie, affected parties must first be aware of the existence and content of the blocking order. Therefore, Ms. Nandy explained, the effect of the Supreme Court's reasoning is that the confidentiality requirement in Rule 16 has been read down.

On net neutrality, Ms. Nandy argued that zero-rating is an efficient solution to providing universal access to the Internet. Services like Internet.org are not strictly market-driven. This is because there is not a large demand for Facebook or specific over-the-top (OTT) service providers. In speaking about the marketplace for ideas in Shreya Singhal, the Supreme Court did not indirectly outlaw services seeking to balance access with diversity of speech. Ms. Nandy held that price discrimination in the provision of telecom, broadband and mobile Internet services already exists. In light of this, the focus should the provision of these services on the basis of consumer choice.

Geeta Seshu, The Hoot
Ms. Seshu began her presentation by noting that one's perspective on online censorship cannot be the same as that on traditional censorship. Traditional censorship cuts off an individual's access to the censored material, but on the Internet, material that is censored in traditional media finds free and wide distribution. One's conceptualisation of freedom of expression and curtailment of this right must include access to the medium as a crucial part. To this end, it is important to not forget that access to the Internet is controlled by a limited number of Internet service and content providers. Thus, a large section of the population in India cannot exercise their right to free speech because they do not have access to the Internet.

In this context, it is important to understand the way in which the digital rollout is happening in India. Ms. Seshu explained that the rollout process lacks transparency, and noted the example of the 4G/LTE rollout plan in India. There is, of course, a diversity of content: those that have access to the Internet have the ability to exercise their right to free speech in diverse ways. However, introducing access into the free speech universe highlights many inequalities that exist in the right; for instance, Dalit groups in India have limited access to the Internet, and some kinds of content receive limited airtime.

Importantly, Ms. Seshu argued that the government and other entities use technology to regulate content availability. Policymakers exploit the technology and architecture of the networks to monitor, surveil and censor content. For instance, one may see the UID scheme as an adaptation of technology to facilitate not only service-provision, but also as a move towards a Big Brother state. Civil society and citizens need to study and respond to the ways in which technology has been used against them. Unfortunately, the debates surrounding regulation do not afford space for Internet users to be part of the discussion. In order to turn this around, it is important that citizens' and users' rights are developed and introduced into the regulatory equation.

Pranesh Prakash, Policy Director, Centre for Internet & Society
Taking up where Ms. Seshu left off, Mr. Prakash wished to explore whether the Internet was merely an enabler of discussion - allowing, for instance, a ruckus to be raised around the consultation paper of the Telecom Regulatory Authority in India (TRAI) on Over-The-Top (OTT) services and net neutrality - or whether the Internet positively adds value. The Internet is, of course, a great enabler. The discussions surrounding OTTs and net neutrality are an example: in response to the TRAI consultation, a campaign titled "Save the Internet" resulted in over 9.5 lakh comments being submitted to the TRAI. It is inconceivable that such a widespread public discussion on so complex a topic (net neutrality) could take place without the Internet's facilitation.

But, Mr. Prakash held, it is important to remember that the Internet is the tool, the platform, for such mobilisation. Campaigns and conversations such as those on net neutrality could not take place without the organisations and people involved in it. Civil society organisations have played prominent roles in this regard, creating awareness and well-informed discussions. For Mr. Prakash, civil society organisations play their role best when they create such public awareness, and it is important, to play to a stakeholders strengths. Some organisations are effective campaigners, while others (such as CIS) are competent at research, analysis and dissemination.

According to Mr. Prakash, it is equally important to remember that successful discussions, campaigns or debates (such as the ongoing one on net neutrality) do not occur solely because of one organisation's strengths, or indeed because of civil society alone. Networks are especially critical in successful campaigns and policy changes. As researchers, we may not always know where our work is read, but sometimes they reach unexpected venues. For instance, one of Mr. Prakash's papers was used by the hacker collective Anonymous for a local campaign, and he was made aware of it only accidentally. Mr. Prakash noted that civil society has to also accept its failures, pointing to the controversy surrounding the Goondas Act in Karnataka. Where there are strong counter-stakeholders (such as the film lobby in south Indian states), civil society's efforts alone may not lead to success.

On net neutrality, Mr. Prakash noted the example of a strategy employed by the Times of India newspaper, when it undercut its competitors by slashing its own prices. Such moves are not unknown in the market, and they have their benefits. Consumers benefit from the lowered prices. For instance, were a Whatsapp or Facebook pack to be introduced by a telecom operator, the consumers may choose to buy this cheap, limited data pack. This is beneficial for consumers, and also works to expand access to the Internet. At the same time, diversity of speech and consumer choice is severely restricted, as these companies and telecom operators can create 'walled gardens' of information and services. Mr. Prakash put forth that if we can facilitate competitive zero-rating, and ensure that anti-competitive cross-subsidization does not occur, then perhaps zero-rated products can achieve access without forcing a trade off between diversity and choice.

Finally, on the issue of website blocking and takedowns under Sections 69A and 79, IT Act, Mr. Prakash noted that the Shreya Singhal judgment does nothing to restrict the judiciary's powers to block websites. According to Mr. Prakash, at the moment, the Shreya Singhal judgment relieves intermediaries of the responsibility to take down content if they receive private complaints about content. After the judgment, intermediaries will lose their immunity under Section 79, IT Act, only if they refuse to comply with takedown requests from government agencies or judicial orders.

But, as Mr. Prakash explained, the judiciary is itself a rogue website-blocker. In the past few years, the judiciary has periodically ordered the blocking of hundreds of websites. Such orders have resulted in the blocking of a large number of legitimate websites (including, at one point, Google Drive and Github). To ensure that our freedom of expression online is effectively protected, Mr. Prakash argued that ways to stop the judiciary from going on such a rampage must be devised.

Questions & Comments

A. Participants and panel members commented that researchers and commentators err by making analogies between the Internet and other media like newspapers, couriers, TV, satellite, cable, etc. The architecture of the Internet is very different even from cable. On the Internet, traffic flows both ways, whereas cable is not bi-directional. Moreover, pricing models for newspapers have nothing in common with those on the Internet. The comparisons in net neutrality debates stand the danger of incorrectness, and we must guard against that. Zero-rating and net neutrality issues in high-access countries are very different from the issues in low-access countries like India.

B. Participants and panel members commented that access and availability must play a predominant role in thinking about freedom of expression. In India, we are technologically far behind other states, though we have potential. The real end-goal of this is the convergence of services and information, with the user at the centre of the ecosystem. Our technological capabilities include satellite and spectrum; the best spectrum bands are lying vacant and can be re-framed. For this, the government must be educated.

C. Participants and panel members commented that in high-access states, the net neutrality issues surround competition and innovation (since there is no or very little ISP competition and switching costs are not low), while in India and France, where there is already competition amongst providers, access plays a crucial role. On the Internet, the networking or engineering aspects can disrupt the content carried over the network, so that is also a concern.

D. Participants and panel members commented that zero-rating is both a blessing and a curse. Zero-rating would not be detrimental in a market with perfect information and competition. But the reality is information asymmetry and imperfect competition. If today, we were to allow zero-rating, diversity would suffer and we would be left with 'walled gardens'.

Conclusion

The conference addressed a range of issues characteristic of debates surrounding freedom of expression in India and South Asia. Beginning with the conceptual understanding of freedom of expression, panellists advocated an expanded definition, where the right to free speech is teleological. The panellists considered freedom of speech as a tool to ensure diversity of speech, both horizontally and vertically. Towards this end, panellists gave several suggestions:

First , policymakers and scholars must understand freedom of speech as a right of both the speaker and the listener/reader, and carve out a separate listeners' right. Panellists expanded upon this to show the implications for the debate on net neutrality, cross-media ownership and website-blocking, for instance.

Second , there is a need for scholars to examine the historical dichotomy between the policy and jurisprudence of free speech in India and other contexts across South Asia. Such an approach to scholarship and policy research would help predict future government policy (such as in the case of the Indian government's stance towards Section 66A following the Supreme Court's decision in Shreya Singhal v. Union of India) and strategize for the same.

Third , particularly with regard to the Internet, there is a need for policy advocates and policy makers to "bust" the founding myths of the Internet, and look to various domestic and international sources of law and regulation. Studies of regulation of freedom of speech on the Internet in different jurisdictions (Bangladesh, China, Sri Lanka) indicate differing government approaches, and provide examples to learn from. The interpretation and consequences of Shreya Singhal on website-blocking and intermediary liability in India provide another learning platform.

Fourth , panellists discussed the possibilities of cooperation and strategies among civil society and policy organisations in India. Taking the example of the Save the Internet campaign surrounding net neutrality in India, panellists speculated on the feasibility of using the Internet itself as a tool to campaign for governance and policy reform. Together with the audience, the panellists identified several areas that are ripe for research and advocacy, such as net neutrality and zero-rating, and citizens' free speech right as being separate from governmental and corporate interests.

For more details visit https://cis-india.org/internet-governance/blog/freedom-of-expression-in-a-digital-age