We are anonymous, we are legion

The Socratic debate: Whose internet is it anyway?

pranesh — 2014-12-09T13:35:45Z

In the US, President Obama recently spoke out on the seemingly arcane topic of net neutrality. What is more astounding is that the popular satire news show host John Oliver spent a 13-minute segment talking about it in June, telling Internet trolls to “focus your indiscriminate rage in a useful direction” by visiting the US Federal Communications Commission’s (FCC) website and submitting comments on its weak draft proposal on net neutrality.

The article was published in the Economic Times on November 18, 2014.

Due to the work of activists, popular media coverage, pro-net neutrality technology companies, and John Oliver, eventually the FCC received 1.1 million responses. Text analysis by the Sunlight Foundation using natural language processing found that only 1% of the responses were clearly opposed to net neutrality. So millions of people in the US are both aware and care about this issue. But the general response in India would be: what is net neutrality and why should I be concerned?

Net neutrality is commonly described as the principle of ensuring that there is no discrimination between the different ‘packets’ that an Internet service provider (ISP) carries. That means that the traffic from NDTV should be treated equally by Reliance Infocomm as the traffic from Network 18’s CNNIBN; that even if Facebook wants to pay Airtel to deliver Whatsapp’s packets faster than Viber’s, Airtel may not do so; that peer-to-peer traffic is not throttled; that Facebook will not be able to pay Airtel to keep its subscribers bound within its walled gardens; and also that Airtel can’t claim to be providing Internet access while restricting that to only Facebook or Whatsapp.

The counter to this by telecom companies the world over, which has little evidence backing it, is primarily two-fold: first, one of equity — that it is ‘unfair’ for the likes of YouTube to get a ‘free ride’ on Airtel networks, hogging up bandwidth but not paying them; and second, that of economic incentives — networks are bleeding money due to services like WhatsApp and Skype replacing SMS and voice, and not being able to charge them will lead to a decrease in profitability and network expansion. The first claim is based on a myth of the ‘free ride’, while the reality is that subscribers who download more also pay the ISP more, while contentemitting companies also have to pay their network providers as per the traffic they generate, and those network providers, in turn, have to enter into ‘transit’ or ‘peering’ agreements with the ISPs that eventually provide access to consumers. The second claim has little evidence to back it up. Efficient competition is the best driver of both profit as well as network expansion. VSNL complained about services like Net2Phone in the 1990s and even filtered all voice-over-IP (VoIP) traffic — and illegally blocked a number of VoIP websites — to preserve its monopoly over international telephony. Instead, removing VSNL’s monopoly only benefited our nation. As for network expansion, it is inability of networks to profit from sparsely populated rural areas that poses a major roadblock. Fixing those problems require smart pricing by telecom companies and intelligent regulation, including exploring policy options like shared spectrum, but they do not necessarily require the abandoning of net neutrality.

However, the fact that the reasons telecom companies often provide against net neutrality are bogus doesn’t mean that it’s easy to ensure net neutrality. The Trai has been exploring this issue by holding a seminar on OTT services. However, the main focus of the discussions were not whether and how India should ensure net neutrality: it was on whether the government should regulate services like WhatsApp and bring them under the licence Raj. Yes, the debate going around in the regulatory circles is whether India should implement rules to ensure net non-neutrality so as favour telecom companies! Net neutrality is a difficult issue in regulatory terms since there is no common understanding among academics and activists of what all should fall under its ambit: only the ‘last mile’ or interconnection as well?

The policy dialogue in India is far removed from this and from considering the nuanced positions of anti-net neutrality scholars, such as Christopher Yoo, who raise concerns about the harms to innovation and the free market that would be caused by mandating net neutrality. The situation in India is much more dire, since blatant violations of net neutrality — howsoever defined — are already happening with Airtel launching its ‘One Touch Internet’, a limited walled garden approach that lies about offering access to the ‘Internet’ while only offering access to a few services based on secretive agreements with other companies. Mark Zuckerberg, the founder of Facebook, recently toured India talking about his grand vision of providing connectivity to the bottom half of the pyramid yet did not talk about how that connectivity would not be to the Internet, but will be limited to only a few services — including Facebook.

Even if we had good laws in favour of net neutrality, without effective monitoring and forceful action by the government, they will amount to little. s. Undoubtedly the contours of the conversation that needs to happen in India over net neutrality will be different from that happening in more developed countries with higher levels of Internet penetration.

However it is a cause of grave concern that while net neutrality is being brutally battered by telecom companies in the absence of any regulation, they are also seeking to legitimize their battery through regulation. It is time the direction of the conversation changed. Perhaps we should invite John Oliver over.

For more details visit https://cis-india.org/internet-governance/blog/economic-times-november-18-2014-pranesh-prakash-the-socratic-debate-whos-internet-is-it-anyway

Ground Zero Summit 2014

praskrishna — 2014-12-05T00:42:17Z

Geeta Hariharan participated in this event organized by India Infosec Consortium on November 13 and 14, 2014 in New Delhi.

Living from the successes of last year and our recent conference in Colombo, Ground Zero Summit 2014, in its second year promises to be Asia's largest information security gathering and proposes to be the ultimate platform for showcasing researches and sharing knowledge in the field of cyber security. The event will feature a panel discussion on cyber diplomacy.

Click to read more about the event

For more details visit https://cis-india.org/internet-governance/news/ground-zero-summit-2014

Fourth Discussion Meeting of the Expert Committee to Discuss the Draft Human DNA Profiling Bill

praskrishna — 2014-12-08T16:07:24Z

The fourth expert committee meeting was held on November 10, 2014 at the Department of Biotechnology to discuss the potential privacy concerns of the draft Human DNA Profiling Bill. Sunil Abraham however was unable to participate because of technical problems.

Agenda

Welcome and opening remarks by the Secretary, DBT
Remarks by the Chairman - Dr. T.S. Rao, Senior Adviser, DBT
A brief overview on deliberations and decisions of Hon’ble Supreme Court - Dr. Alka Sharma, Director, DBT
Discussion and finalization of the Bill by the members
Recommendations of the Expert Committee
Any other item with the permission of the Chairman.

Resources

Click here (Zip file, 2698 Kb) to download the following resources from earlier meetings:

Record note of discussions of the Expert Committee Meeting held on January 31, 2013 at DBT, New Delhi, to discuss the potential privacy concerns on draft Human DNA Profiling Bill.
Annexure 1 to Record note: Draft Human DNA Profiling Bill 2012: The Privacy Issues and Concerns
Annexure 2 to Record note: Short background note on the draft Human DNA Profiling Bill
Record note of the 2nd discussion meeting of the Expert Committee held on May 13, 2013 in DBT to discuss the draft Human DNA Profiling Bill
Minutes of the 3rd meeting of the Expert Committee held on November 25, 2013 in DBT to discuss the draft Human DNA Profiling Bill
Record note of the discussions of the Experts Sub-committee Meeting on Human DNA Profiling Bill held on September 3, 2013 at CPFD, Hyderabad
Affidavit on behalf of DBT
Human Draft DNA Profiling Bill 2012 (Working Draft Version, April 29, 2012)

For more details visit https://cis-india.org/internet-governance/news/fourth-discussion-meeting-of-expert-committee-to-discuss-draft-human-dna-profiling-bill

Getting Strategic about Openness and Privacy

praskrishna — 2014-11-09T09:19:23Z

This blog post by Tim Davies, Open Data Research Lead at Web Foundation was published in Open Up? on November 3, 2014.

Click to read the original post here. Sunil Abraham gave his inputs.

Information is powerful. And in a world where the amount of information generated, captured and stored has grown exponentially in recent decades, getting hold of the information you need, when you need it, relies upon having access to the data that describes it. That makes the control of data especially powerful.

Modern transparency initiatives, promoting the idea of open data, have been seeking to break the data-monopoly of privileged actors within the state — unlocking key datasets and making them available for public scrutiny and reducing the information inequalities that undermine open public discourse. Opening up government data is *one* way in which citizens can reclaim some power and reestablish the principle that “they work for us”. Open government data gives us power to know how the government is spending money, what companies are getting public sector contracts and licenses, who owns these companies, what profits they make and what royalties and taxes they pay. Yet, progress has been slow, and we have faced substantial challenges in securing reliable and standardised flows of public data that can be joined-up to give a true picture of how public resources are being used, and key decisions made. Although millions of public datasets have been placed online, the most politically salient are often lacking. The 2013 Open Data Barometer found fewer than 1 in 10 accountability datasets were truly open.

At the same time, advocates of building a more open government need to grapple with three other trends that are shaping discussions of data, power and the state:

Firstly, and most important, the revelations brought to our attention by whistleblower Edward Snowden have confirmed the extent of the secret state and the profound imbalance of power between citizens and their state created through mass surveillance. Whilst projects to disclose even basic data on the state like public spending are underfunded and ad hoc, billions of dollars are poured into tools and technologies that violate basic human rights and that threaten trust and security on the Web. Fundamentally the problem with secret mass surveillance is that it destroys the checks and balances that are meant to limit the power of the state over citizens.
Secondly, and in part due to the discussion spared by Snowden, public awareness of the data, and consequently power, held by corporations has grown. The Web has become increasingly centralised, and large companies now harvest large amounts of data on any individual technology user. In parallel, in some countries such as the UK, governments have sought to use open data agendas as cover for increased proprietary sharing of public data with private firms, seeking to go around established principles of consent to share publicly held health, tax or student records with profit-making firms. Such data-sharing is not inherently wrong if there are public benefits, but building citizen trust in the state’s stewardship of personal data, and ensuring safeguards are in place to warrant that trust, is a major challenge.
Thirdly, concerns have been raised that some of the data released through open data initiatives may also affect the privacy of citizens. Some aggregated and anonymised datasets can be combined with other data to reverse engineer identifiable information. Although early calls for “raw data now” were clear that they were not calling for open personal information, in practice the divide between personal and public can be a narrow one.

So, do these trends mean we should be more cautious about opening up? Should the balance swing back towards a focus on protecting privacy? Ultimately, a simple opposition of privacy and openness is a false dichotomy. The question is not should we focus on openness, or should we protect privacy: but is Who should be open? And how? And whose privacy should be protected, and how?

Sunil Abraham, of the Centre for Internet and Society in Bangalore, has offered a key solution in the idea that:

“Transparency should be proportional to power, privacy inversely so.”

It is on this basis that organisations working for a fairer future, with more vibrant public discourse, greater freedom, and better governments, can campaign for both privacy and openness together. Those who occupy public office, own companies, or tender for public contracts must accept that there is a legitimate public interest in information about their activities in these roles, whilst independent citizens must be afforded space to form views and live lives without constant state surveillance. Companies should not be considered to have a right to privacy: their interests are already protected by other laws and provisions.

To deliver effective openness through open data, the Web Foundation is working to understand how data gets used on the ground in different settings across the world, and, with Omidyar support, is working on the creation of inclusive open data standards for public contracting data. Standards like the Open Contracting Data Standard are part of building a new infrastructure of open governance, making it possible to join-up data from different places, helping tilt the balance of power towards citizens when it comes to scrutinising governments and corporations. Through the Open Data Barometer we keep track of the availability of key datasets that can be used for accountability, and we’re co-chairing the Open Government Partnership Open Data Working Group, seeking to set high standards for relevant and usable data disclosures by governments.

By focussing on the civic use of data, we can better identify those datasets that must be in the public domain. And by thinking about relative power when considering privacy we can address genuine privacy concerns, whilst not allowing corporations claiming privacy rights, or public figures trying to hide their financial interests, from diminishing the power of data to enable accountability.

At the same time, the Web Foundation leads the Web We Want campaign, challenging mass surveillance and seeking to secure a Web where individuals have the right to privacy, and the tools to secure it. And increasingly transparency of what the state and companies do with personal data can help increase the capacity of citizens to respond to threats to their autonomy, and can increase oversight and safeguards on state or corporate capacity.

Ultimately, our ongoing efforts to open up, and to protect individual freedoms, have to be strategic. And keeping an analysis of power, and Sunil’s maxim, in mind, provides a good starting point to guide the strategy.

For more details visit https://cis-india.org/internet-governance/news/open-up-tim-davies-november-3-2014-getting-strategic-about-openness-and-privacy

White Paper on RTI and Privacy V1.2

vipul — 2014-11-09T02:53:51Z

This white paper explores the relationship between privacy and transparency in the context of the right to information in India. Analysing pertinent case law and legislation - the paper highlights how the courts and the law in India address questions of transparency vs. privacy.

Introduction

Although the right to information is not specifically spelt out in the Constitution of India, 1950, it has been read into Articles 14 (right to equality), 19(1)(a) (freedom of speech and expression) and 21 (right to life) through cases such as Bennet Coleman v. Union of India,[1] Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd.,[2] etc. The same Articles of the Constitution were also interpreted in Kharak Singh v.State of U.P.,[3] Govind v. State of M.P., [4] and a number of other cases, to include within their scope a right to privacy. At the very outset it appears that a right to receive information -though achieving greater transparency in public life - could impinge on the right to privacy of certain people. The presumed tension between the right to privacy and the right to information has been widely recognized and a framework towards balancing the two rights, has been widely discussed across jurisdictions. In India, nowhere is this conflict and the attempt to balance it more evident than under the Right to Information Act, 2005 (the "RTI Act").

Supporting the constitutional right to information enjoyed by the citizens, is the statutorily recognized right to information granted under the RTI Act. Any potential infringement of the right to privacy by the provisions of the RTI Act are sought to be balanced by section 8 which provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual. This exception states that there is no obligation to disclose information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the larger public interest justifies the disclosure of such information. [5] The Act further goes on to say that where any information relating to or supplied by a third party and treated by that party as confidential, is to be disclosed, the Central Public Information Officer or State Public Information Officer has to give written notice to that party within five days of receiving such a request inviting such third party (within ten days) to make its case as to whether such information should or should not be disclosed.[6]

A plain reading of section 11 suggests that for the section to apply the following three conditions have to be satisfied, i.e. (i) if the PIO is considering disclosing the information (ii) the information relates to the third party or was given to a Public Authority by the third party in confidence; and (iii) the third party treated the information to be a confidential. It has been held that in order to satisfy the third part of the test stated above, the third party has to be consulted and therefore a notice has to be sent to the third party. Even if the third party claims confidentiality, the proviso to the section provides that the information cannot be withheld if the public interest in the disclosure outweighs the possible harm or injury that may be caused to the third party, except in cases of trade or commercial secrets.[7] The Courts have also held that section 11 should be read keeping in mind the exceptions contained in section 8 (discussed in detail later) and the exceptions contained therein. [8]

This principle of non disclosure of private information can be found across a number of common law jurisdictions. The United Kingdom's Freedom of Information Act, 2000 exempts the disclosure of information where it would violate the data protection principles contained in the Data Protection Act, 1998 or constitute an actionable breach of confidence.[9] The Australian Freedom of Information Act, 1982 categorizes documents involving unreasonable disclosure of personal information as conditionally exempt i.e. allows for their disclosure unless such disclosure would be contrary to public interest.[10] The Canadian Access to Information Act also has a provision which allows the authorities to refuse to disclose personal information except in accordance with the provisions of the Canadian Privacy Act. [11]

An overview of the RTI Act, especially sections 6 to 8 seems to give the impression that the legislature has tried to balance and harmonize conflicting public and private rights and interests by building sufficient safeguards and exceptions to the general principles of disclosure under the Act. [12] This is why it is generally suggested that section 8, when applied, should be given a strict interpretation as it is a fetter on not only a statutory right granted under the RTI Act but also a pre-existing constitutional right. [13] Logical as this argument may seem and appropriate in some circumstances, it does present a problem when dealing with the privacy exception contained in section 8(1)(j). That is because the right to privacy envisaged in this section is also a pre-existing constitutional right which has been traced to the same provisions of the Constitution from which the constitutional right of freedom of information emanates.[14] Therefore there is an ambiguity regarding the treatment and priority given to the privacy exception vs. the disclosure mandate in the RTI Act, as it requires the balancing of not only two competing statutory rights but also two constitutional rights.

The Privacy Exception

As discussed earlier, the purpose of the RTI Act is to increase transparency and ensure that people have access to as much public information as possible. Such a right is critical in a democratic country as it allows for accountability of the State and allows individuals to seek out information and make informed decisions. However, it seems from the language of the RTI Act that at the time of its drafting the legislature did realize that there would be a conflict between the endeavor to provide information and the right to privacy of individuals over the information kept with public authorities, which is why a privacy exception was carved into section 8(1)(j) of the Right to Information Act. The Act does not only protect the privacy of the third party who's information is at risk of being disclosed, but also the privacy of the applicant. In fact it has now been held that a private respondent need not give his/her ID or address as long as the information provided by him/her is sufficient to contact him/her.[15]

It is interesting to note that although the RTI Act gives every citizen a right to information, it does not limit this right with a stipulation as to how the information shall be used by the applicant or the reason for which the applicant wants such information. [16] This lack of a purpose limitation in the Act may have privacy implications as non sensitive personal information could be sought from different sources and processed by any person so as to convert such non-sensitive or anonymous information into identifiable information which could directly impact the privacy of individuals.

The exception in S. 8(1)(j) prohibits the disclosure of personal information for two reasons (i) its disclosure does not relate to any public activity or interest or (ii) it would be an unwarranted invasion into privacy. The above two conditions however get trumped if a larger public interest is satisfied by the disclosure of such information.

One interesting thing about the exception contained in section 8(1)(j) is that this exception itself has an exception to it in the form of a proviso. The proviso says that any information which cannot be denied to the central or state legislature shall not be denied to any person. Since the proviso has been placed at the end of sub-section 8(1) which is also the end of clause 8(1)(j), one might be tempted to ask whether this proviso applies only to the privacy exception i.e. clause 8(1)(j) or to the entire sub-section 8(1) (which includes other exceptions such as national interest, etc.). This issue was put to rest by the Bombay High Court when it held that since the proviso has been put only after clause 8(1)(j) and not before each and every clause, it would not apply to the entire sub-section 8(1) but only to clause 8(1)(j), thus ensuring that the exceptions to disclosure other than the right to privacy are not restricted by this proviso.[17]

Scope of Proviso to section 8(1)(j)
Though the courts have agreed that the proviso is applicable only to section 8(1)(j), the import of the proviso to section 8(1)(j) is a little more ambiguous and there are conflicting decisions by different High Courts on this point. Whereas the Bombay High Court has laid emphasis on the letter of the proviso and derived strength from the objects and overall scheme of the Act to water down the provisions of section 8(1)(j), [18] the Delhi High Court has disagreed with such an approach which gives "undue, even overwhelming deference" to Parliamentary privilege in seeking information. Such an approach would render the protection under section 8(1)j) meaningless, and the basic safeguard bereft of content.[19] In the words of the Delhi High Court:

" The proviso has to be only as confined to what it enacts, to the class of information that Parliament can ordinarily seek; if it were held that all information relating to all public servants, even private information, can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court. "

The interpretation given by the Delhi High Court thus ensures that section 8(1)(j) still has some effect, as otherwise the privacy exception would have gotten steamrolled by parliamentary privilege and all sorts of information such as Income Tax Returns, etc. of both private and public individuals would have been liable to disclosure under the RTI Act.

Unfortunately, the RTI Act does not describe the terms "personal information" or "larger public interest" used in section 8(1)(j), which leaves some amount of ambiguity in interpreting the privacy exception to the RTI Act. Therefore the only option for anyone to understand these terms in greater depth is to discuss and analyse the case laws developed by the Hon'ble Supreme Court and the High Courts which have tried to throw some light on this issue.

We shall discuss some of these landmark judgments to understand the interpretations given to these terms and then move on to specific instances where (applying these principles) information has been disclosed or denied.

Personal Information
The RTI Act defines the term information but does not define the term "personal information". Therefore one has to rely on judicial pronouncements to understand the term a more clearly. Looking at the common understanding and dictionary meaning of "personal" as well as the definition of "information" contained in the RTI Act it could be said that personal information would be information, information that pertains to a person and as such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest. At the same time, such personal information may, or may not, be private to the person. [20]

The Delhi High Court has tried to draw a distinction between the term "private information" which encompasses the personal intimacies of the home, the family, marriage, motherhood, procreation, child rearing and of the like nature and "personal information" which would be any information that pertains to an individual. This would logically imply that all private information would be part of personal information but not the other way round. [21] The term 'personal information' has in other cases, been variously described as "identity particulars of public servants, i.e. details such as their dates of birth, personal identification numbers",[22] and as including tax returns, medical records etc.[23] It is worth noting that just because the term used is "personal information" does not mean that the information always has to relate to an actual person, but may even be a juristic entity such as a trust or corporation, etc.[24]

Larger Public Interest
The term larger public interest has not been discussed or defined in the RTI Act, however the Courts have developed some tests to determine if in a given situation, personal information should be disclosed in the larger public interest.

Whenever a Public Information Officer is asked for personal information about any person, it has to balance the competing claims of the privacy of the third party on the one hand and claim of public interest on the other and determine whether the public interest in such a disclosure satisfies violating a person's privacy. The expression "public interest" is not capable of a precise definition and does not have a rigid meaning. It is therefore an elastic term and takes its colors from the statute in which it occurs, the concept varying with the time and the state of the society and its needs. This seems to be the reason why the legislature and even the Courts have shied away from a precise definition of "public interest". However, the term public interest does not mean something that is merely interesting or satisfies the curiosity or love of information or amusement; but something in which a class of the community have some interest by which their rights or liabilities are affected.[25]

There have been suggestions that the use of the word "larger" before the term "public interest" denotes that the public interest involved should serve a large section of the society and not just a small section of it, i.e. if the information has a bearing on the economy, the moral values in the society; the environment; national safety, or the like, the same would qualify as "larger public interest".[26] However this is not a very well supported theory and the usage of the term "larger public interest" cannot be given such a narrow meaning, for example what if the disclosure of the information could save the lives of only 10 people or even just 5 children? Would the information not be released just because it violates one person's right to privacy and there is not a significant number of lives at stake? This does not seem to be what all the cases on the right to privacy, right from Kharak Singh[27] all the way to Naz Foundation, [28] seem to suggest. Infact, in the very same judgment where the above interpretation has been suggested, the Court undermines this argument by giving the example of a person with a previous crime of sexual assault being employed in an orphanage and says that the interest of the small group of children in the orphanage would outweigh the privacy concerns of the individual thus requiring disclosure of all information regarding the employee's past.

In light of the above understanding of section 8(1)(j), there seem to be two different tests that have been proposed by the Courts, which seem to connote the same principle although in different words:

1. The test laid down by Union Public Service Commission v. R.K. Jain:

(i) The information sought must relate to „Personal information‟ as understood above of a third party. Therefore, if the information sought does not qualify as personal information, the exemption would not apply;

(ii) Such personal information should relate to a third person, i.e., a person other than the information seeker or the public authority; AND

(iii) (a) The information sought should not have a relation to any public activity qua such third person, or to public interest. If the information sought relates to public activity of the third party, i.e. to his activities falling within the public domain, the exemption would not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (b) The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure. [29]

2. The other test was laid down in Vijay Prakash v. Union of India, but in the specific circumstances of disclosure of personal information relating to a public official:

(i) whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization;

(ii) whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case; and

(iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources. [30]

Constitutional Restrictions
Since there is not extensive academic discussion on the meaning of the term "larger public interest" or "public interest" as provided in section 8(1)(j), one is forced to turn to other sources to get a better idea of these terms. One such source is constitutional law, since the right to privacy, as contained in section 8(1)(j) has its origins in Articles 14,[31] 19(1)(a) [32] and 21[33] of the Constitution of India. The constitutional right to privacy in India is also not an absolute right and various cases have carved out a number of exceptions to privacy, a perusal of which may give some indication as to what may be considered as 'larger public interest', these restrictions are:

a) Reasonable restrictions can be imposed on the right to privacy in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; ^{^[34]}

b) Reasonable restrictions can be imposed upon the right to privacy either in the interests of the general public or for the protection of the interests of any Scheduled Tribe;^{^[35]}

c) The right to privacy can be restricted by procedure established by law which procedure would have to satisfy the test laid down in the Maneka Gandhi case.^{^[36]}

d) The right can be restricted if there is an important countervailing interest which is superior; ^{^[37]}

e) It can be restricted if there is a compelling state interest to be served by doing so; ^{^[38]}

f) It can be restricted in case there is a compelling public interest to be served by doing so; ^{^[39]}

g) The Rajagopal tests - This case lays down three exceptions to the rule that a person's private information cannot be published, viz. i) person voluntarily thrusts himself into controversy or voluntarily raises or invites a controversy, ii) if publication is based on public records other than for sexual assault, kidnap and abduction, iii) there is no right to privacy for public officials with respect to their acts and conduct relevant to the discharge of their official duties. It must be noted that although the Court talks about public records, it does not use the term 'public domain' and thus it is possible that even if a document has been leaked in the public domain and is freely available, if it is not a matter of public record, the right to privacy can still be claimed in regard to it.^{^[40]}

Section 8(1)(j) in Practice

The discussion in the previous chapter regarding the interpretation of section 8(1)(j), though (hopefully) helpful still seems a little abstract without specific instances and illustrations to drive home the point. In this chapter we shall endeavor to briefly discuss some specific cases regarding information disclosure where the issue of violation of privacy of a third party was raised.

Private Information of Public Officials
Some of the most common problems regarding section 8(1)(j) come up when discussing information (personal or otherwise) regarding public officers. The issue comes up because an argument can be made that certain information such as income tax details, financial details, medical records, etc. of public officials should be disclosed since it has a bearing on their public activities and disclosure of such information in case of crooked officers would serve the interests of transparency and cleaner government (hence serving a larger public interest). Although section 8(1)(j) does not make any distinction between a private person and a public servant, a distinction in the way their personal information is treated does appear in reality due to the inherent nature of a public servant. Infact it has sometimes been argued that public servants must waive the right to privacy in favour of transparency.[41] However this argument has been repeatedly rejected by the Courts, [42] just because a person assumes public office does not mean that he/she would automatically lose their right to privacy in favour of transparency.

If personal information regarding a public servant is asked for, then a distinction must be made between the information that is inherently personal to the person and that which has a connection with his/her public functions. The information exempted under section 8(1)(j) is personal information which is so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of the third party.[43] In short, the Courts have concluded that there can be no blanket rule regarding what information can and cannot be disclosed when it comes to a public servant, and the disclosure (or lack of it) would depend upon the circumstances of each case.

Although the earlier thinking of the CIC as well as various High Courts of the country was that information regarding disciplinary proceedings and service records of public officials is to be treated as public information in order to boost transparency,[44] however this line of thinking took almost a U-turn in 2012 after the decision of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commissioner,[45] and now the prevailing principle is that such information is personal information and should not be disclosed unless a larger public interest is would be served by the disclosure.

It would also be helpful to look at a list of the type of information regarding public servants which has been disclosed in the past, gleaned from various cases, to get a better understanding of the prevailing trends in such cases:

(i) Details of postings of public servants at various points of time, since this was not considered as personal information; [46]

(ii) Copies of posting/ transfer orders of public servants, since it was not considered personal information; [47]

(iii) Information regarding transfers of colleagues cannot be exempted from disclosure, since disclosure would not cause any unwarranted invasion of privacy and non disclosure would defeat the object of the RTI Act;[48]

(iv) Information regarding the criteria adopted and the marks allotted to various academic qualifications, experience and interview in selection process for government posts by the state Public Service Commission;[49]

(v) Information regarding marks obtained in written test, interview, annual confidential reports of the applicant as well as the marks in the written test and interview of the last candidate selected, since this information was not considered as personal information; [50]

(vi) Information relating to the appointment and educational certificates of teachers in an educational institution (which satisfies the requirements of being a public authority) was disclosed since this was considered as relevant to them performing their functions. [51]

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. To understand this better below is a brief list of the type of information that has been considered by the Courts as personal information which is liable to be exempt from disclosure under section 8(1)(j):

(i) (a) Salary details, (b) show cause notice, memo and censure, (c) return of assets and liabilities, (d) details of investment and other related details, (e) details of gifts accepted, (f) complete enquiry proceedings, (g) details of income tax returns;[52]

(ii) All memos issued, show cause notices and orders of censure/punishment etc. are personal information. Cannot be revealed unless a larger public interest justifies such disclosure;[53]

(iii) Disciplinary information of an employee is personal information and is exempt under section 8(1)(j); [54]

(iv) Medical records cannot be disclosed due to section 8(1)(j) as they come under "personal information", unless a larger public interest can be shown meriting such disclosure;[55]

(v) Copy of personnel records and service book (containing Annual Confidential Reports, etc.) of a public servant is personal information and cannot be disclosed due to section 8(1)(j);[56]

(vi) Information regarding sexual disorder, DNA test between an officer and his surrogate mother, name of his biological father and step father, name of his mother and surrogate step mother and such other aspects were denied by the Courts as such information was considered beyond the perception of decency and was an invasion into another man's privacy.[57]

It is not just the issue of disclosure of personal details of public officials that raises complicated questions regarding the right to information, but the opposite is equally true, i.e. what about seemingly "public" details of private individuals. A very complicated question arose with regard to information relating to the passport details of private individuals.

Passport Information of Private Individuals
The disclosure of passport details of private individuals is complicated because for a long time there was some confusion because of the treatment to be given to passport details, i.e. would its disclosure cause an invasion of privacy since it contains personally identifying information, specially because photocopies of the passport are regularly given for various purposes such as travelling, getting a new phone connection, etc. The Central Information Commission used a somewhat convoluted logic that since a person providing information relating to his residence and identity while applying for a passport was engaging in a public activity therefore such information relates to a public activity and should be disclosed. This view was rejected by the Delhi High Court in the case of Union of India v. Hardev Singh,[58] and the view taken inHardev Singh was later endorsed and relied upon in Union of India v. Rajesh Bhatia, [59] while hearing a number of petitions to decide what details of a third party's passport should be disclosed and what should be exempt from disclosure.

A list of the Courts conclusions is given below:

Information that can be revealed:

(i) Name of passport holder;

(ii) Whether a visa was issued to a third party or not;

(iii) Details of the passport including dates of first issue, subsequent renewals, dates of application for renewals, numbers of the new passports and date of expiry;

(iv) Nature of documents submitted as proof;

(v) Name of police station from where verification for passport was done;

(vi) Whether any report was called for from the jurisdictional police;

(vii) Whether passport was renewed through an agent or through a foreign embassy;

(viii) Whether it was renewed in India or any foreign country;

(ix) Whether tatkal facility was availed by the passport holder;

Information that cannot be revealed:

(i) Contents of the documents submitted with the passport application;

(ii) Marital status and name and address of husband;

(iii) Whether person's name figures as mother/guardian in the passport of any minor;

(iv) Copy of passport application form;

(v) Residential address of passport holder;

(vi) Details of cases filed/pending against passport holder;

(vii) Copy of old passport;

(viii) Report of the police and CID for issuing the passport;

(ix) Copy of the Verification Certificate, if any such Verification Certificate was relied upon for the issue of the passport.

Other Instances

Apart from the above two broad categories of information that has been the subject of intense judicial discussion, certain other situations have also arisen where the Courts have had to decide the issue of disclosure under section 8(1)(j), a brief summary of such situations is given below:

(i) names and details of people who received money as donations from the President out of public funds was considered as information which has a definite link to public activities and was therefore liable to be disclosed;[60]

(ii) information regarding the religion practiced by a person, who is alleged to be a public figure, collected by the Census authorities was not disclosed since it was held that the quest to obtain the information about the religion professed or not professed by a citizen cannot be in any event; [61]

(iii) information regarding all FIRs against a person was not protected under section 8(1)(j) since it was already a matter of public record and Court record and could not be said to be an invasion of the person's privacy;[62]

(iv) information regarding the income tax returns of a public charitable trust was held not to be exempt under section 8(1)(j), since the trust involved was a public charitable trust functioning under a Scheme formulated by the District Court and registered under the Bombay Public Trust Act as such due to its character and activities its tax returns would be in relation to public interest or activities.[63]

Conclusion

A discussion of the provisions of section 8 and 11 of the RTI Act as well as the case laws under it reveals that the legislature was aware of the dangers posed to the privacy of individuals from such a powerful transparency law. However, it did not want the exceptions carved out to protect the privacy of individuals to nullify the objects of the RTI Act and therefore drafted the legislation to incorporate the principle that although the RTI Act should not be used to violate the privacy of individuals, such an exception will not be applicable if a larger public interest is to be served by the disclosure. This principle is in line with other common law jurisdictions such as the U.K, Austalia, Canada, etc. which have similar exceptions based on privacy or confidentiality.

However it is disappointing to note that the legislature has only left the legislation at the stage of the principle which has left the language of the exception very wide and open to varied interpretations. It is understandable that the legislature would try to keep specifics out of the scope of the section to make it future proof. It is obvious that it would be impossible for the legislature or the courts to imagine every single circumstance that could arise where the right to information and the right to privacy would be at loggerheads. However, such wide and ambiguous drafting has led to cases where the Courts and the Central Information Commission have taken opposing views, with the views of the Court obviously prevailing in the end. This was illustrated by the issue of disclosure of passport details of private individuals with a large number of CIC cases taking different views till the High Court of Delhi gave categorical findings on the issue in the Hardev Singh and Rajesh Bhatia cases. Similar was the issue of service details of public officials since before the decision of the Supreme Court in the case of Girish Ramchandra Deshpande in 2012 the prevailing thinking of the CIC was that details of disciplinary proceedings against public officials are not covered by section 8(1)(j), however this thinking has now taken a U-turn as the Supreme Court's understanding of the right to privacy has taken stronger roots and such information is now outside the scope of the RTI Act, unless a larger public interest in the disclosure can be shown.

The ambiguity that arises in application when trying to balance the right to privacy against the right to information is a drawback in incorporating only a principle and leaving the language ambiguous in any legislation. This paper does not advocate that the legislature try to list out all the instances of this problem that are possibly imaginable, this would be too time consuming and may even be counterproductive. However, it is possible for the legislature to adopt an accepted practice of legislative drafting and list certain instances where there is an obvious balancing required between the two rights and put them as "Illustrations" to the section. This device has been utilised to great effect by some of the most fundamental legislations in India such as the Contract Act, 1872 and the Indian Penal Code, 1860. An alternative to this approach could be to utilize the approach taken in the Australian Freedom of Information Act, where the Act itself gives certain factors which should be considered to determine whether access to a particular document would be in the public interest or not.

List of References

Primary Sources

1. Australia Freedom of Information Act, 1982.

2. Bennet Coleman v. Union of India, AIR 1973 SC 106.

3. Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

4. Calcutta High Court, WP (W) No. 33290 of 2013, dated 20-11-2013.

5. Canadian Access to Information Act.

6. Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667

7. Constitution of India, 1950.

8. Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

9. Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

10. Jamia Millia Islamia v. Sh. Ikramuddin, Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

11. Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

12. Kharak Singh v. State of U.P., AIR 1963 SC 129.

13. Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978.

14. Naz Foundation Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

15. P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

16. Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82.

17. President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

18. Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

19. R. Rajagopal v. Union of India, Supreme Court of India, dated 7-10-1994.

20. Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

21. Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

22. Right to Information Act, 2005

23. Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

24. Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

25. Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

26. Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

27. Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd., (1995) 5 SCC 139.

28. U.K. Freedom of Information Act, 2000.

29. UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

30. Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151

31. Union of India v. Hardev Singh WP(C) 3444 of 2012 dated 23-08-2013.

32. Union of India v. Rajesh Bhatia WP(C) 2232/2012 dated 17-09-2013.

33. Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

34. Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

Secondary Sources

1. "Country Report for U.K.", Privacy International, available at https://www.privacyinternational.org/reports/united-kingdom.

2. "Country Report for Australia", Privacy International, available at https://www.privacyinternational.org/reports/australia.

3. "Country Report for Canada", Privacy International, available at https://www.privacyinternational.org/reports/canada.

[1] AIR 1973 SC 106. This case held that the freedom of the press embodies in itself the right of the people to read.

[2] (1995) 5 SCC 139.

[3] AIR 1963 SC 129.

[4] Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[5] Section 8(1) in its entirety states as follows:

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

[6] Section 11 of the RTI Act.

[7] The Registrar General v. A. Kanagaraj, (Madras High Court, 14 June 2013, available at http://www.indiankanoon.org/doc/36226888/.

[8] Arvind Kejriwal v. Central Public Information Officer, (Delhi High Court, 30 September 2011, available at http://www.indiankanoon.org/doc/1923225/.

[9] Sections 40 and 41 of the U.K. Freedom of Information Act, 2000.

[10] Section 11A read with section 47-F of the Australia Freedom of Information Act, 1982.

[11] Section 19 of the Canadian Access to Information Act.

[12] Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

[13] Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

[14] Articles 14, 19(1)(a) and 21 of the Constitution of India, 1950.

[15] Calcutta High Court, WP(W) No. 33290 of 2013, dated 20-11-2013.

[16] Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

[17] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

[18] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom), para 14. Where the Court held that since the medical records of a convict cannot be denied to Parliament or State legislature therefore they cannot be exempted from disclosure under the Act.

[19] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[20] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[21] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[22] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[23] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[24] Jamia Millia Islamia v. Sh. Ikramuddin , Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

[25] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[26] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[27] AIR 1963 SC 129.

[28] Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

[29] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012. This ruling was overturned by a Division Bench of the High Court relying upon a subsequent Supreme Court ruling, however, it could be argued that the Division Bench did not per se disagree with the discussion and the principles laid down in this case, but only the way they were applied.

[30] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[31] Right to equality.

[32] Freedom of speech and expression.

[33] Right to life.

[34] Article 19(2) of the Constitution of India, 1950.

[35] Article 19(5) of the Constitution of India, 1950.

[36] Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978. The test laid down in this case is universally considered to be that the procedure established by law which restricts the fundamental right should be just, fair and reasonable.

[37] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[38] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[39] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975. However the Court later used phrases such as "reasonable restriction in public interest" and "reasonable restriction upon it for compelling interest of State" interchangeably which seems to suggest that the terms "compelling public interest" and "compelling state interest" used by the Court are being used synonymously and the Court does not draw any distinction between them. It is also important to note that the wider phrase "countervailing interest is shown to be superior" seems to suggest that it is possible, atleast in theory, to have other interests apart from public interest or state interest also which could trump the right to privacy.

[40] R. Rajagopal v. Union of India , Supreme Court of India, dated 7-10-1994. These tests have been listed as one group since they are all applicable in the specific context of publication of private information.

[41] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[42] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010. Also see Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[43] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667. This case also held that information cannot be denied on the ground that it would be too voluminous.

[44] Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151; Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012

[45] 2012 (119) AIC 105 (SC).

[46] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[47] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[48] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667.

[49] Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

[50] UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

[51] Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

[52] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[53] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[54] R.K. Jain v. Union Public Service Commission, Delhi High Court, LPA No. 618 of 2012, dated 12-11-2012.

[55] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[56] Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

[57] Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82. It must be mentioned that this case was not exactly under the procedure prescribed under the RTI Act but was a public interest litigation although the courts relied upon the provisions of the RTI Act.

[58] WP(C) 3444 of 2012 dated 23-08-2013.

[59] WP(C) 2232/2012 dated 17-09-2013.

[60] President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

[61] P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

[62] Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

[63] Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

For more details visit https://cis-india.org/internet-governance/blog/white-paper-on-rti-and-privacy-v-1.2

Learning Forum: Transparency and Human Rights in the Digital Age

praskrishna — 2014-12-04T16:14:38Z

Pranesh Prakash spoke at this event organized by Global Network Initiative on November 6, 2014 in California.

Pranesh Prakash spoke on transparency reports and their use and abuse in India; the Intermediary Liability Rules in India (and its non-provision of any transparency mechanism); and the need for transparency in private speech regulation, not just governmental speech regulation.

The Global Network Initiative and the Telecommunications Industry Dialogue on Freedom of Expression and Privacy present:

2014 Learning Forum - Silicon Valley
Transparency and Human Rights in the Digital Age

Hosted by LinkedIn

Agenda

1:30PM - Registration

2:00PM - Opening Remarks

Mark Stephens, Independent Chair, Global Network Initiative

Jeffrey Dygert, Executive Director of Public Policy, AT&T

Pablo Chavez, Vice President, Global Public Policy and Government Affairs, LinkedIn

2:15PM - Why does transparency matter for protecting and respecting rights online?

Arvind Ganesan, Director of Business and Human Rights, Human Rights Watch

Deirdre Mulligan, Associate Professor, UC Berkeley School of Information

Michael Samway, School of Foreign Service, Georgetown University

3:00PM - What is the state of transparency reporting by companies and governments, and what's missing?

Steve Crown, Vice President and Deputy General Counsel, Microsoft

Jeffrey Dygert, Executive Director of Public Policy, AT&T

Jason Pielemeier, Bureau of Democracy, Human Rights, and Labor, U.S. Department of State

Pranesh Prakash, Policy Director, Centre for Internet & Society, Bangalore

Moderated by Bennett Freeman, Senior Vice President, Sustainability Research and Policy, Calvert Investments

4:00PM - Break

4:30PM - How do companies communicate with users in response to live events?

Ben Blink, Senior Policy Analyst, Free Expression and International Relations, Google

Patrik Hiselius, Senior Advisor, Digital Rights, TeliaSonera

Rebecca MacKinnon, Director, Ranking Digital Rights Project, New America Foundation

Hemanshu Nigam, CEO, SSP Blue

Sana Saleem, Director, Bolo Bhi

Moderated by Cynthia Wong, Senior Internet Researcher, Human Rights Watch

The program will be followed by a reception from 5:30 to 6:30pm.

By invitation only, non-transferrable.

Have questions about Learning Forum: Transparency and Human Rights in the Digital Age? Contact Global Network Initiative

The original was published here.

For more details visit https://cis-india.org/internet-governance/news/learning-forum-transparency-and-human-rights-in-the-digital-age

E-Consultation on Cyber Security, Justice, and Governance Begins!

praskrishna — 2014-12-04T23:36:27Z

Sunil Abraham facilitated the e-consultation on "Internet access, the freedom of expression online, and development in the Global South" at the event organized by the Hague Institute for Global Justice.

This was originally published on the website of the Hague Institute for Global Justice on November 4, 2014.

On 3 November 2014, The Hague Institute launched its first e-consultation, which seeks to contribute to the work of the Commission on Global Security, Justice, and Governance. This is the first of a series of e-consultations on topics relevant to the research and policy agenda of the Commission.

This consultation brings together over 75 international cyber security and cyber governance experts and seeks to build on the high-level Expert Consultation on Cyber Security, Justice, and Governance hosted by The Hague Institute, The Stimson Center and the Observer Research Foundation in New Delhi on 18 October 2014 following the conclusion of the India Conference on Cyber Security and Cyber Governance.

The consultation was chaired by Dr. Jane Holl Lute – a Commissioner, and President and CEO of the Council on Cyber Security and Former U.S. Deputy-Secretary for Homeland Security. Speakers included former Deputy National Security Advisor of India, Ambassador Latha Reddy and Executive Director of the Centre for Internet and Society, Mr. Sunil Abraham.

A summary of the expert discussion can be read here.

For more details visit https://cis-india.org/internet-governance/news/the-hague-institute-for-global-justice-november-4-2014-e-consultation-on-cyber-security-justice-and-governance-begins

India's Statement at ITU Plenipotentiary Conference, 2014

geetha — 2014-11-04T05:50:06Z

India's Draft Resolution at the ITU Plenipot, which we have previously blogged about, was not passed following discussions at the Ad Hoc Working Group on Internet-related Resolutions. Subsequently, India made a statement at the Working Group of the Plenary, emphasizing the importance of the issues and welcoming further discussions. The statement was delivered by Mr. Ram Narain, DDG-IR, Department of Telecommunications and Head of India's Delegation at PP-14. The full text of the statement is provided below.

"Chairman of Working Group Plenary, Mr Musab Abdulla, Head of Delegations, delegates, ladies and gentlemen, good morning/afternoon to you all. I was indeed impressed with the camaraderie with which discussions were held inspite of the fact that delegates discussing the issues have different cultures, languages, nuances, impressions and sometime interests.

"Governance of packet-switched data telecom Networks based on Internet Protocol (IP), popularly known as Internet, has become an important and contentious issue due to several reasons known to all of us. We put up a draft resolution to address some of these key issues pertaining to IP based networks. When we put up the proposal, I had thought that the proposal would contribute in diminishing some of the differences. These issues and their probable solutions are given in our draft resolution, document 98, about which we were ready to take constructive inputs.

"Information is power these days. The wise Lord Acton said about hundred and fifty years ago that Power tends to corrupt and absolute power corrupts absolutely. The countries in modern times have become great on the principles of equality, liberty and justice. As and when these principles were compromised great powers lost their hold. Broadband penetration and connectivity has been the important running theme of this conference. We believe this, like great empires, can only be built on the principles of fairness, justice, and equality. No Telecom Network whether IP based or otherwise can function without naming and numbering, which is the lifeline of a network. Their availability in a fair, just and equitable manner, therefore, is an important public policy issue and need to be dealt that way. We believe that respecting the principle of sovereignty of information through network functionality and global norms will go a long way in increasing the trust and confidence in use of ICT.

"There are number of existing Internet related resolutions, but they only touch the issue in general and, therefore, without focus concrete action does not happen. Our Resolution was with a view to deal with the issues in a focused manner. Some countries supported our draft resolution, while some other were not able to support it. Some stated since the proposal is a comprehensive one, dealing with number of important issues, more time is needed for them to develop a view on it. Due to the number of proposals with Ad Hoc Group lined up before our draft resolution, there was no time left for detailed discussion on the proposal. Therefore, India agreed not to press the resolution for discussion due to paucity of time, with an understanding that for these issues of concerns for many Member States, contributions can be made in various fora dealing with development of IP based networks and future networks, including ITU. India would like that discussion should take place on these issues and look forward to these discussions. We would request that this Statement is included in the records of Plenipotentiary-14 meeting.

"We would like to thank for the cooperation extended by various Member States, particularly USA, for appreciating our concerns and all those who shared our concerns and supported the draft resolution. I would also like to thank Mr. Fabio Bigi, Chairman of Ad Hoc Working Group for giving patient hearing to all us and tolerating all our idiosyncrasies and still arriving at consensus. This is because of his wisdom, which comes with experience.

Thank you all."

For more details visit https://cis-india.org/internet-governance/blog/indias-statement-at-itu-plenipotentiary-conference-2014

Several Indian Twitter users' accounts suspended due to tech glitch

praskrishna — 2014-12-05T00:17:15Z

Twitter denies conspiracy theory, blames technical glitch for account suspensions

The blog entry by Silky Malhotra was published on digit on November 3, 2014. Pranesh Prakash gave his inputs.

The accounts of several Twitter users were suspended for unknown reasons, setting off conspiracy theories that only the accounts of right-wing supporters had been targeted. However, Twitter has denied these rumors and instead blamed technical issues for the glitch.

Although Twitter blamed a technical glitch for the account suspension, several Twitter users responded by stating that there was a pattern to the suspension because 'suspended users' were asked to change their behavior to be able to continue using the micro-blogging site.

A message sent out to a Twitter user whose account was suspended read, "Twitter has automated systems that find and remove multiple automated spam accounts in bulk".

Twitter officials have denied blocking of accounts deliberately and added that the incident was an accident as part of spam cleaning process.

Twitter also apologized for the inconvenience but added, "Unfortunately, your account got caught in one of these spam groups by mistake. It is possible your account posted an update that appeared to be spam, so please be careful what you tweet... You will need to change your behavior to continue using Twitter. Repeat violations of the Twitter rules may result in the permanent suspension of your account."

However this statement has triggered outrage among users who called it Internet policing. Several users responded with humor, and one posted, "In the Twitter canteen you never get chicken wings in pairs because the right wing is blocked."

Pranesh Prakash, policy director, Centre for Internet and Society, stated that though there have been instances of 'privatisation of censorship' in the past, this incident may not have been that. "It doesn't look deliberate especially because even accounts such as eBay India were suspended."

For more details visit https://cis-india.org/internet-governance/news/digit-november-3-2014-silky-malhotra-several-indian-twitter-users-accounts-suspended-due-to-tech-glitch

Twitter users find several accounts suspended for unknown reasons

praskrishna — 2014-12-07T01:27:05Z

Twitter users woke up on Saturday to find several accounts suspended for unknown reasons, triggering conspiracy theories that only the accounts of right-wing supporters had been targeted.

The article by Vasudha Venugopal was published in the Economic Times on November 2, 2014. Pranesh Prakash gave his inputs.

While it was said to have resulted from a technical glitch that suspended random accounts, several tweeters said there was a pattern to the suspension because 'suspended users' were asked to change their behaviour to be able to continue using the micro-blogging site. But by afternoon it was clear that many accounts, irrespective of their posts, had been suspended for a few hours. All suspended accounts were restored by afternoon.

A message sent out to a tweeter whose account was suspended read, "Twitter has automated systems that find and remove multiple automated spam accounts in bulk.

Unfortunately, your account got caught in one of these spam groups by mistake." Twitter also apologised for the inconvenience but added, "It is possible your account posted an update that appeared to be spam, so please be careful what you tweet... You will need to change your behaviour to continue using Twitter. Repeat violations of the Twitter rules may result in the permanent suspension of your account."

This triggered outrage among the Twitteratti who called it internet policing. There was humour too, with a tweeter posting, "In the Twitter canteen you never get chicken wings in pairs because the right wing is blocked."

Twitter officials said there was no deliberate blocking of accounts and that the incident was an accident as part of spam cleaning process. Pranesh Prakash, policy director, Centre for Internet and Society, said though there have been instances of 'privatisation of censorship' in the recent past, this incident did not look like one such attempt. "It doesn't look deliberate especially because even accounts such as eBay India were suspended."

For more details visit https://cis-india.org/internet-governance/news/the-economic-times-vasudha-venugopal-november-2-2014-twitter-users-find-several-accounts-suspended-for-unknown-reasons

Good Intentions, Recalcitrant Text – II: What India’s ITU Proposal May Mean for Internet Governance

geetha — 2014-11-03T07:07:16Z

The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.

Disclaimer and update (2 November 2014): India's Draft Resolution was discussed during the meeting of the Ad Hoc Working Group on Internet-related Resolutions at the ITU Plenipot on the evening of November 1, 2014 (KST). After the discussion, India revised the text of the resolution, seeking to address concerns raised by ITU member states. The revised resolution may be found here. However, this blog post was written with reference to the original text of India's Draft Resolution.

***

As I mentioned in my last post, India’s Draft Resolution on ‘ITU’s Role in Realising Secure Information Society’ raises security and equity concerns. The Draft Resolution has 3 security concerns: (i) security weaknesses in the network architecture that permit “camouflaging the identity of the originator of the communication” and make “tracing of communication difficult”; (ii) non-systematic, non-contiguous allocation of naming, numbering and addressing resources on the Internet, which makes it difficult to identify both the users and what states the IP addresses are located in; (iii) non-local routing and address resolution relating to traffic originating and terminating in the same country. Op. §§1, 3-7 seek to address these. It also identifies the present system of allocation of naming, numbering and addressing resources as inequitable, unfair, unjust and undemocratic (Op. §2 of the Draft Resolution offers a solution). I discussed some human rights implications of India’s Draft Resolution in my last post.

In this post, I explore the implications of the Draft Resolution for Internet governance and multi-stakeholder approaches (most notably, an equal footing model).[1] Given the uncertainties around defining multi-stakeholderism for Internet governance, this is rather ambitious. So I will try to point to concerns with certain textual interpretations of the Draft Resolution, map that against the positions India’s representatives have taken on Internet governance in the past, and the motivations/concerns that underlie the tabling of the Draft Resolution. This Resolution may not be the best way to allay India's concerns, for there are technical and rights implications. But the concerns it raises are worth discussion and knowledge, and at forums where concerns are heard, acknowledged and discussed collectively. The text of the Draft Resolution and its attendant implications are not, then, the sole subjects of this post.

The Draft Resolution and Internet governance:

The text of the Draft Resolution is problematic. Many of its clauses may be seen as taking positions against multi-stakeholder approaches to Internet governance. Introducing such a resolution at the ITU may itself bring back memories of the controversies surrounding Resolution 3 of the World Conference on International Telecommunications (WCIT), 2012.[2] In 3 ways, the text of the Draft Resolution has indications for multi-stakeholder approaches.

First, the Draft Resolution frames issues primarily from the perspective security. In its preamble, the Draft Resolution makes several references to security threats posed by and on the Internet. For instance, it points to the ability of the network to “camouflage the identity of the originator of the communication” (Pream. §(e) [recognizing]), as well as national security concerns in the present-day system of routing Internet traffic through multiple countries (Pream. §§(f) and (g), [recognizing]). The apparent difficulty in tracing IP addresses, due to their random allocation, is another concern (Pream. §(h), [recognizing]). Among the “significant public policy issues” identified in telecom/ICT management, “security and safety of the Telecom/ICTs” is specifically noted (Pream. §(i) [considering]). In the Context note to the Draft Resolution and in several places in the Preamble, there are references to ITU Resolution 130 (‘Strengthening the role of ITU in building confidence and security in the use of information and communication technologies’) and ITU’s Cyber-security Agenda. Given the (legitimate or otherwise) disproportionate involvement of governments and not other stakeholders in matters of cyber-security, the framing of issues from a security perspective may lend itself to worries for multi-stakeholderism. Specifically, the Draft Resolution notes: “ensuring security of ICT networks is sovereign right of Member States” (Pream. §(b) [recognizing]).

Second, the Draft Resolution emphasizes the sovereign right of states to regulate and control telecom/ICT. It says, for instance, “it is the sovereign right of each state to regulate its telecommunication” (Pream. §(b) [considering]). With regard to the Internet, the Context note to the Draft Resolution (page 1) considers the Internet to be synonymous with telecom/ICTs: “the Telecom/ICTs, which in common lexicon is used interchangeably many times as Internet…”. Public telecom networks managed by telecom service providers, interconnected with other networks, are necessary for “proper functioning of a telecom network resources namely, among others, naming, numbering and addressing” (Pream. §(k) [considering]). It is worth noting that the sovereign authority of states over Internet public policy issues is settled text from §35 of the Tunis Agenda, though expressing it as synonymous with telecom may lead to possibilities of licensing and registration, which Bulgaria, for instance, does not do.

Third, the Draft Resolution identifies issues of equity and fairness in the allocation of Internet resources such as naming, numbering and addressing (Pream. §(g) [consdering], Op. §2). It states that to correct this inequity, “facilitation and collaboration among international, inter-governmental organizations and individual member states to ensure planning, implementation, monitoring and cooperation in its policies” is required (Pream. §(g) [considering]). In operative paragaphs, our Draft Resolution calls for collaboration with “all the concerned stakeholders including International and intergovernmental organizations to develop policies for allocation, assignment and management of IP resources including naming, numbering and addressing which is systematic, equitable, fair, just, democratic and transparent” (Op. §2). One may pay attention to the oversight over implementation and the necessity of inter-governmental involvement in planning and monitoring as problematic to iterations of multi-stakeholderism.

These concerns are valid and legitimate, and it is desirable that the text of the resolution be altered to address them. The text should also be altered to address the human rights concerns I point out in my previous post. But human rights enforcement or implementation is within the domain of states, though civil society may be a careful watchdog. The Draft Resolution's text, most certainly, will face certain oppositions: for instance, that it is outside the scope and mandate of the ITU. That the ITU does not deal with content regulation – and this issue touches upon content – will be mentioned. That Internet governance is already being discussed and performed in multiple other multi-stakeholder fora, such as ICANN, the NRO and RIRs, IGF and WSIS, will be emphasized. That the Draft Resolution implicates national security concerns will be mentioned as well. But as an aside, on national security: under international law, states always mention their prerogative over national security, and so as a matter of international custom, national security is outside the scope of agreements unless expressly surrendered.

At the same time, debates around the role of ITU in Internet governance are not new, and those familiar will remember the ITU’s views right before the creation of ICANN (also see Mueller, Ruling the Root 145-48 (2002)), Resolution 3 of the WCIT, and the constant tug-of-war since then. The new Secretary-General of the ITU, Mr. Houlin Zhao, wrote a note in October 2004, before the Tunis phase of the WSIS, justifying ITU’s involvement in Internet governance, advocating that IPv6 address blocks be allocated to countries. Mr. Zhao describes, with specific examples, ITU's role in the development and widespread growth of the Internet. He takes the examples of standards developed within the ITU and ITU's policy role in liberalisation and spread of telecommunications (such as Articles 4 & 9 of the 1988 ITRs).

Mr. Zhao’s concrete proposals are rendered inapplicable by the creation of the NRO and RIRs, and the growth and entrenchment of ICANN. But it may be argued that his principled justifications for ITU involvement remain. It is these that India hopes to highlight, I was told, along with the inequities in resource allocation (IPv4 was spoken of), and the disproportionate weight some states enjoy in Internet governance. Her concerns are, I am told, also shared by some other states. Given that the text exhibits a less-than-friendly approach to multi-stakeholderism, India's previous positions on the issue are of interest. While this would not correct the snags in the Draft Resolution's text, allaying these concerns may be ideal to craft an inclusive and transparent multi-stakeholder model for Internet governance.

India and Multi-stakeholderism in Internet Governance:

India’s position on multi-stakeholder models for Internet governance is a matter of some obscurity. Statements at various forums exhibit a certain disagreement – or at the least, lack of engagement – among India’s ministries on our position on multi-stakeholder approaches, particularly the Ministry of External Affairs (MEA), the Department of Telecommunications (DOT) and the Department of Electronics and Information Technology (DeitY), both within the Ministry of Communications and Information Technology (MCIT). While both the MEA and DOT have been cautious supporters of a diluted form of multi-stakeholderism (they have repeatedly emphasized §35 of the Tunis Agenda), DeitY has been more open in entertaining multi-stakeholder approaches for Internet governance.

At the 66^th session of UN General Assembly, Mr. Dushyant Singh, Member of India’s Parliament from the Bharatiya Janata Party, presented our proposal for a Committee on Internet-related Policies. The proposal sought the establishment of a UN committee comprising 50 member-states, with advisory groups including the private sector and civil society, to deal with Internet-related matters.[3] Though India was not opposed to multi-stakeholder advisories in its CIRP proposal, it was less than inviting in this regard.

At NETmundial (April 2014), the Indian government’s contribution document highlighted §35 of the Tunis Agenda, which delineates ‘roles and responsibilities’ of ‘respective stakeholders’ – i.e., governments (with whom reside “sovereign policy authority”), the private sector (technical and economic development of the Internet) and civil society (grassroots participation). At NETmundial, Mr. Vinay Kwatra of the MEA echoed this, also noting the lack of consensus on what multi-stakeholderism means for Internet governance (page 64).

Admittedly, this is a legitimate concern. Internet governance at various fora does not seem to have a clear answer on what multi-stakeholderism means. The debate was/is alive, for instance, at NETmundial 2014, the ICANN-convened IANA transition process, the World Economic Forum’s new NETmundial Initiative, and in the many calls and suggestions (pages 38-46) made over the years on strengthening the IGF (see also, Malcolm, Multi-stakeholder Governance and the IGF (2008), chapter 6). It is hardly surprising then, that India and other states raise this as a concern.

With regard to multi-stakeholderism, the DeitY in India has been the outlier. Speaking at the 2014 IGF in Istanbul, Mr. R.S. Sharma, Secretary (DeitY), expressed “no doubt that Internet Governance mechanism require the involvement of all the stakeholders, since the evolution of Internet has been a product of many different diverse groups working together in a loosely coordinated manner”, advocating strengthening of the IGF and pointing to India’s proposed India-IGF as an example of multi-stakeholderism at home. Most interestingly, Mr. Sharma did not focus on international Internet-related policies being the “sovereign policy authority of states”. Also in the transcripts of the four meetings of the Working Group on Enhanced Cooperation under the Committee for Science, Technology and Development (CSTD), I have been unable to find outright rejections of multi-stakeholder approaches, though India has not advocated multi-stakeholderism unequivocally either.

But this – the emphasis on “sovereign policy authority of states” in Internet governance – has been a consistent position for India, especially the MEA and DOT. Here at the ITU PP-14 as well, members of the Indian delegation also emphasized states’ sovereign monopoly over policy matters. “Why not take this to the ITU”, I was asked, as “many governments are uncomfortable” with the way Internet governance is being conducted at other fora. There are grave concerns, I was told, about the possibility of excessive control some governments have over both user and government data of other states (government-speak, of course, for the Snowden revelations).

These are, of course, concerns similar to those of authoritarian governments, or those reluctant to open up to multi-stakeholderism and looking for excuses to retain/increase government control. But it is equally possible that these concerns need not be limited only to such states. Perhaps for developing countries as well, these are real concerns. In conversation with members of the Indian delegation at the ITU Plenipot, I was able to discern 3 broad concerns. First, the definition of multi-stakeholderism in Internet governance. India has not shown herself comfortable with an all-out endorsement of multi-stakeholderism. This is troubling. Civil society and the private sector in India will attest to the difficulties in engaging with our government at all levels. For instance, seeking a place on India's delegation for the Plenipot proved a disheartening exercise for some members of India's civil society.

But there are also conflicting indications. India is in the process of instituting an India-IGF, and CIS' Executive Director, Sunil Abraham, is on the MAG. India expressed agreement, at least in informal conversation, to opening up ITU documents to the public on grounds of public interest. The Law Commission of India recently conducted a multi-stakeholder consultation on media laws in India, and Telecom Regulatory Authority of India (TRAI) regularly conducts consultations, though the private sector is more active there. What is lacking in India, however, is a set of clear procedures and processes for multi-stakeholder engagement, particularly on Internet issues. Clear, public, accessible, foreseeable and predictable set of rules or processes on participation from civil society, private sector and academia would make a world of difference to multi-stakeholderism within India. But this lack should not blind states or other stakeholders to the genuineness of privacy/security or equity concerns - for instance, of the protection of our information from mass surveillance or the feasibility and actual participation of developing countries at many Internet governance fora.

Second, members of the delegation expressed concern over inequalities in the allocation of naming, numbering and addressing resources. While I am uncertain how IPv6 allocation falls within this concern, the inequalities of IPv4 allocations are well documented. To gather a sense of this, it would be useful to read chapter 5 of Professor DeNardis’ Protocol Politics, and to glance at Figure 5.7 (page 173). Africa controls, for instance, a mere 1% of all available IPv4 addresses, while North America and Europe control about 63%. A study on engagement from the Asia-Pacific in Internet standards organisations shows, for instance, greater participation from Western countries and from some states like Japan.[4] India and other states from Asia and Africa have lesser participation. Even at ICANN, with efforts to increase participation, meaningful engagement is still from a majority of Western countries. Perhaps states and other stakeholders on the other side of the table can address these concerns through clear, inclusive, non-discriminatory commitments and implementation.

Third, India emphasized how the Draft Resolution does not propose that ITU be involved in content management or resources control, but only seeks to systematize allocation by asking the ITU Secretary General to collaborate and coordinate with other Internet governance organisations to create a set of principles for fair, equitable, transparent and democratic - as well as secure - allocation of resources. ITU Resolution 101 already instructs the Secretary General to collaborate with relevant Internet governance organisations, and the Draft Resolution merely seeks to spell out his tasks. However, as I pointed out in my previous post, the text of the Draft Resolution is at odds with this intention of India's. By dint of its drafting, it gravely implicates human rights, as well as touching upon resource allocation oversight ("needs to be adhere to" in Op. §2). To reflect the above stated intention, the Draft Resolution would need to be redrafted.

Finally, the text of the Draft Resolution exhibits, unfortunately, a certain disregard for existing network architecture and efficiency within the Internet, and to the principles of a free, open and inter-operable and unified Internet, when it seeks to develop a network architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing. An argument may, of course, be made in favour of efficiency and costs, including reduced latency. But it is clear that this has the potential to increase domestic surveillance capabilities and government censorship of content. In any case, traffic localization (if not local address resolution) can be achieved without ITU coordination: through Internet Exchange Points, and through more efficient and better-negotiated peering and transit arrangements (pages 14-17). Internationally coordinated rules for localized traffic routing is not necessary; you just need to have a more efficient Internet Exchange Point. How to get more ISPs to interconnect through India’s National Internet Exchange (NIXI) is one of the very questions that India’s Telecom Regulatory Authority has taken up in its recent consultation on expanding broadband access (page 49). So it is possible that India's concerns could be addressed without ITU involvement, though I am unsure of its impact on the global Internet.

The Draft Resolution will be discussed at the ITU Plenipot today. The discussion will allow India and sympathetic countries to raise several of their concerns relating to the present system of Internet governance, and the direction of its progress. I will report on these discussions upon their completion.

A Note on Limitations:

The aim of this post is to clarify. I would caution against its being the last word on anything, much less India’s positions on Internet governance. An issue as important as this needs far greater access to and confirmation from India’s government – and a more in-depth understanding of the politics – than I do, at the moment.

At the same time, India has not been a model for civil society engagement, as illustratively, the Narmada Bachao Andolan and/or P. Sainath’s evaluation of government policies in Everybody Loves a Good Drought reveal. It has been harder to effectively engage with India’s government than in many states in North America, Latin America and Europe. But I believe the complex dynamics of that is not unique to India. The NSA and GCHQ revelations (as an example of governmental trust deficit of unmatched proportions) have shown that where governments want to keep everyone out and oblivious, they do it well.

I am not in favour of a purely multilateral approach to Internet governance. But at the same time, I share concerns over definition and the evolution of processes as well, as I am sure others in civil society also do. Particularly on the issue of Internet governance and multi-stakeholderism, evidence reveals inconsistency among India’s various ministries. Until this is addressed by our government (hopefully in consultation with all concerned stakeholders), an open mind would probably be the best thing we - including states - could keep.

Acknowledgements: I would like to thank Sunil Abraham, Pranesh Prakash, Rishabh Dara, Arun Sukumar, Anja Kovacs and Parminder Jeet Singh for the freedom to bounce ideas, feedback and the many discussions about multi-stakeholder approaches and Internet governance. I also wish to acknowledge Samir Saran’s article in CFR, which offers an interesting perspective on India’s Draft Resolution.

[1] For this post, I will use ‘multi-stakeholder approaches’ as an umbrella term, but would urge readers to keep in mind the many uncertainties and disagreements about defining multi-stakeholderism for Internet governance. These disagreements exist among and within all stakeholders, including government and civil society. In addition to various iterations of the ‘equal footing model’, the model proposed in §35 of the Tunis Agenda is also multi-stakeholder, albeit in a different – and for many in civil society, less desirable – sense.

[2] For those unacquainted with WCIT, see Mueller, ITU Phobia: Why WCIT was derailed, Internet Governance Blog (18 December 2012), http://www.internetgovernance.org/2012/12/18/itu-phobia-why-wcit-was-derailed/; Kleinwächter, WCIT and Internet governance: Harmless resolution or Trojan horse?, CircleID Blog (17 December 2012), http://www.circleid.com/posts/20121217_wcit_and_internet_governance_harmless_resolution_or_trojan_horse/.

[3] For a commentary, see Mueller, A United Nations Committee for Internet-related Policies? A Fair Assessment, Internet Governance Blog (29 October 2011), http://www.internetgovernance.org/2011/10/29/a-united-nations-committee-for-internet-related-policies-a-fair-assessment/.

[4] Contreras, Divergent Patterns of Engagement in Internet Standardization: Japan, Korea and China. I am unable to find this paper online. Please email me for information.

For more details visit https://cis-india.org/internet-governance/blog/good-intentions-recalcitrant-text-2013-ii-what-india2019s-itu-proposal-may-mean-for-internet-governance

DNA Database for Missing Persons and Unidentified Dead Bodies

vipul — 2014-11-04T15:46:29Z

This blog discusses the possible implications of the public interest litigation that has been placed before the Supreme Court petitioning for the establishment of a DNA database in respect to unidentified bodies.

In the year 2012 Lokniti, a Non Governmental Organization filed a public interest litigation in the Supreme Court of India asking the government to establish a DNA database in respect of unidentified dead bodies as well as for those individuals for whom missing persons reports have been filed so that DNA of unidentified dead bodies can be matched against missing persons - arguing that the right to be identified is a part of the right to dignity, and that such systems have been adopted across the globe. The case has come up a few times since 2012 and parties have been given time to file their replies in these instances. Prior to the 2012 Public Interest Litigation filed by Lokniti, in 2009 a Public Interest Litigation was filed by a Haryana based doctor. The PIL petitioned for the DNA profiling of unidentified bodies to be made mandatory - arguing that thousands of individuals die with their identity being unknown. During the hearing the Bench asked a number of questions including why the Ministry of Health was not brought into the case, given the fact that a number of labs that conduct DNA profiling function under the ministry.

While the case is still pending, the Supreme Court on 22^nd September 2014 gave another interim order which was a little more detailed. On this date the Ministry of Science and Technology of the Government of India, through the Department of Biotechnology stated that they are piloting a DNA profiling Bill that would establish a DNA Profiling Board and a National DNA Data Bank. The National DNA Data Bank is envisaged to maintain the following indices for various categories of data:

I. a crime scene index;

II. a suspects' index;

III. an offenders' index;

IV. a missing persons' index;

V. unknown deceased persons' index

VI. a volunteers' index; and

VII. such other DNA indices as may be specified by regulations made by the Board.

One of the Ministry's plans under this Bill is to create DNA profiles of individuals whose relatives have gone missing, on a voluntary basis to help the relatives identify missing persons and unidentified dead bodies. They also stated that cross-matching of DNA profiling data in the database would require specialized software and the CDFB, Hyderabad is in the process of acquiring the same from the Federal Bureau of investigation, USA.

The advocate for Lokniti responded to this saying that the DNA profiling Bill has been pending for a long time and has not seen the light of day for the last seven years. To this the response of the government was that it was a complex Bill involving a number of issues which take a long time to resolve.

At this point the Supreme Court, without going into the details of the Bill asked the advocate for the Union of India to obtain instructions regarding the following two aspects:

(1) Whether pending the Bill coming into force the concerned Department can constitute a Data Bank in respect of dead persons who are not identifiable; and

(2) when there are missing reports in respect of persons to collect the DNA from the permissible sources like siblings or others so that in case any unidentified dead body is found to match the DNA to arrive at the conclusion about the missing persons who are dead; or as an ancillary the missing person who is a victim of the crime of kidnapping or where any child, who is not able to find out his parents, can be in a position to find out through the DNA.

Thus it seems that the Supreme Court, recognizing its limitations in directing the legislature to pass a law and the fact that the passing of the DNA profiling Bill may take a long time to become law, has tried to find a way out in which the concerns of the petitioner regarding a DNA Databank for missing persons and unidentified dead bodies could be addressed without the passage of the DNA profiling Bill. However since the case is still pending in the Supreme Court no final directions have been given in this regard. Thus, the Court has left the government with the responsibility to address the question of whether a DNA Databank can be established without the passing of a legislation providing legal basis for the collection, profiling, databasing, and use of DNA samples.

http://indianexpress.com/article/india/india-others/sc-wants-centre-to-create-dna-data-bank/#sthash.7zqU0Ill.dpuf

http://indianexpress.com/article/india/india-others/sc-seeks-govt-response-on-making-dna-profiling-mandatory/

The order dated September 22, 2014 can be found at http://courtnic.nic.in/supremecourt/temp/wc%2049112p.txt

For more details visit https://cis-india.org/internet-governance/blog/dna-database-for-missing-persons-and-unidentified-dead-bodies

October 2014 Bulletin

praskrishna — 2014-11-23T16:40:23Z

Welcome to the tenth issue of the newsletter (October 2014).

We at the Centre for Internet & Society (CIS) welcome you to the tenth issue of the newsletter (October 2014). Archives of our newsletters can be accessed at: http://cis-india.org/about/newsletters

Highlights

CIS sent its comments and recommendations on the Rights of Persons with Disabilities Bill, 2014. It was submitted to the Parliamentary Standing Committee in October 2014.
CIS has published the Central Guidelines and Schemes.
CIS was one of the signatories of a letter sent to the Prime Minister of India Shri Narendra Modi sharing its concerns on India's position on intellectual property, particularly in the context of bilateral relations between the United States of America and India. The letter was sent on October 22, 2014.

In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Shashank Singh analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

Subhashish Panigrahi wrote an op-ed in the Samaja (Odia daily) on the hurdles that the Odia language has been facing and the potential aspects of the language including it being used massively on the Internet, Wikipedia and other media platforms.

International Telecommunications Union is hosting its Plenipotentiary Conference this year in South Korea. India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan analyses this.

Vipul Kharbanda analyses the possible implications of the public interest litigation that has been placed before the Supreme Court petitioning for the establishment of a DNA database in respect to unidentified bodies in his latest blog entry.
In a blog post published in Lila Interactions P.P.Sneha explores the possibilities of redefining the idea of access through the channels of education and learning.

►Job

Programme Officer (Access to Knowledge - Institutional Partnerships): CIS is seeking applications for the post of Programme Officer for its Access to Knowledge (A2K) Programme. The position will be based in its Bangalore office. Programme Officer will collaboratively work with the A2K Team and would report to the Programme Director, Access to Knowledge at CIS.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The updated draft is being reviewed by the Office of the Chief Commissioner for Persons with Disabilities. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

Monthly Update

October 2014 Report (Suman Dogra; October 31, 2014).

►Other

Submission

Comments to the Rights of Persons with Disabilities Bill , 2014 (Nirmita Narasimhan and Anandhi Viswanathan; October 30, 2014).

Blog Entries

Central Guidelines and Schemes (Anandhi Viswanathan, October 14, 2014).
The Legal Framework for Enforcement of Rights of Persons with Disabilities (CLPR; October 14, 2014).

Media Coverage

Communication technology opens 'doors' for everyone, not only people with disabilities (John D. Kemp and Brandon M. Macsata, The Hill, October 13, 2014).

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

Blog Entries

Letter to the Prime Minister on Indo-US Bilateral Relations on Intellectual Property (Nehaa Chaudhari; October 22, 2014).
Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response (Shashank Singh; October 29, 2014).

►Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Blog Entries

ଓଡ଼ିଆ ଭାଷା ବିକାଶରେ ପ୍ରତିବନ୍ଧକ ଓ ସମ୍ଭାବନା (Subhashish Panigrahi, Samaja; October 13, 2014).
Bharat Majhi Writings Now Available Under a Creative Commons License (Subhashish Panigrahi; October 14, 2014).
More Than 40 Million People Await the Launch of Odia Wikisource (Subhashish Panigrahi, Global Voices and Wikimedia Blog; October 21, 2014).
Odia Littérateur Ramakrushna Nanda's 4 Books Now Available Under a Creative Commons License (Subhashish Panigrahi; October 22, 2014).
Open Access Platform to Save the Odia Indian Language (Subhashish Panigrahi, Opensource.com; October 22, 2014).
Odia Wikisource Goes Live! (Subhashish Panigrahi; October 26, 2014).
Samskrita Vaibhavam (Sanskrit Wiki Outreach Program) (Shubha and Sayant Mahato; October 30, 2014).
Tulu Wikipedia Workshop cum Editathon at Udupi (Dr. U.B.Pavanaja, October 31, 2014). The event was covered by V4News.com and Mangalore Today.
Converting from nonUnicode (Nudi, Baraha, ...) font encoding to Unicode Kannada (Dr. U.B.Pavanaja; October 31, 2014).

Events Co-organized

Sangeet Baithak: A Hindustani Music Resource Donation Event in Mumbai (Organized by CIS-A2K and Khayal Trust; Shivaji Park, Dadar, Mumbai; October 7, 2014).
Indian Women in Science Wiki edit-a-thon (Organized by IndoBioScience and CIS-A2K; Centre for Ecological Sciences, Indian Institute of Science, Bangalore; October 11, 2014).
Ada Lovelace Edit-a-thon 2014 (Organized by IndoBioScience and CIS-A2K; Urban Solace; October 14, 2014).

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Enliven the Tulu Viki Fidia first and then add Tulu to the 8th Schedule : Dr.UG Pavanaja, Bangalore Rep. in Udupi (V4News.com; October 15, 2014).
Wikipedia can establish Tulu in a wider way (Mangalore Today; October 17, 2014).
Pushing women scientists (Renuka Phadnis; Hindu; October 19, 2014).
Wiki Media Foundation keen on developing Urdu Wikipedia (Nisar Ahmed Syed; October 22, 2014).
Wiki Media Foundation keen on developing Urdu Wikipedia (Siasat Daily; October 24, 2014).

Participation in Event

Barcamp Bangalore (Organized by SAP Labs; Bangalore; October 12, 2014). Dr. U.B.Pavanaja and Rahmanuddin Shaik took part in the event.

Internet Governance

►Privacy

As part of our Surveillance and Freedom: Global Understandings and Rights Development (SAFEGUARD) project with Privacy International we are engaged in enhancing respect for the right to privacy in developing countries. We have produced the following outputs during the month although these may not be part of the SAFEGUARD project:

Blog Entries

The Gujarat High Court Judgment on the Snoopgate Issue (Vipul Kharbanda; October 27, 2014).
DNA Database for Missing Persons and Unidentified Dead Bodies (Vipul Kharbanda; October 31, 2014).

Upcoming Event

CPDP 2015 : The eighth international conference on computers, privacy and data protection will be held in Brussels from January 21 to 23, 2015. CIS is a moral supporter of CPDP.

Participation in Events

Training for Internet Governance Activists (Organized by Global Partners Digital, UK; Cambridge; September 23 - 24, 2014). Geetha Hariharan attended the event. The event was held in September and the details published in October.
The India Conference on Cyber Security and Cyber Governance (Organized by FICCI and CYFY; October 15 - 17, 2014; New Delhi). CIS was a knowledge partner. Sunil Abraham was a panelist in the session "Privacy is Dead".
Expert Consultation on Cyber Security, Justice and Governance (Organized by Hague Institute for Global Justice, Observer Research Foundation and STIMSON; October 18, 2014). Sunil Abraham was a speaker in the session "Internet Access, Freedom Online, and Development in the Global South".

►Free Speech

Good Intentions, Recalcitrant Text - I: Why India's Proposal at the ITU is Troubling for Internet Freedoms (Geeta Hariharan; October 28, 2014).
Good Intentions, Recalcitrant Text - II: What India's ITU Proposal May Mean for Internet Governance (Geeta Hariharan; November 1, 2014).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Is India the next frontier for Facebook? (Rama Lakshmi; Washington Post; October 9, 2014).
If MNCs make early inroads, they will keep market share: Sunil Abraham, CIS (J.Anand; Financial Express; October 23, 2014).

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

Blog Entry

Rethinking Conditions of Access (P.P.Sneha, Lilainteractions; October 15, 2014).

About CIS

The Centre for Internet and Society 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 IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of 'The Centre for Internet and Society' and mail it to us at No. 194, 2nd 'C' Cross, Domlur, 2nd Stage, Bengaluru - 5600 71.

► Request for Collaboration:

We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, atsunil@cis-india.org or Nishant Shah, Director - Research, at nishant@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/october-2014-bulletin

Good Intentions, Recalcitrant Text - I: Why India’s Proposal at the ITU is Troubling for Internet Freedoms

geetha — 2014-11-02T15:13:45Z

At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled a draft proposal on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“Draft Resolution”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.

Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:

First, it is troubling for India that present network architecture has “security weaknesses” such as “camouflaging the identity of the originator of the communication”;[1] random IP address distribution also makes “tracing of communication difficult”;[2]
Second, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;[3]
Third, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;[4] similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.[5]

In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:

First, to develop and recommend a ‘traffic routing plan’ that can “effectively ensure the traceability of communication”;[6]
Second, to collaborate with relevant international and intergovernmental organisations to develop an “IP address plan” which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;[7]
Third, to develop and recommend “a public telecom network architecture” that localizes both routing[8] as well as address resolution[9] for local/domestic traffic to “within the country”.

Admittedly, our Draft Resolution is intended to pave a way for “systematic, fair and equitable allocation” of, inter alia, naming, numbering and addressing resources,[10] keeping in mind security and human rights concerns.[11] In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “concentration of control over Internet resources”, though “certain governments” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “roadmap for the systematization” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the Geneva Plan of Action, 2003.

Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. First, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s NSA files and the absence of adequate protections against government incursions or excesses into privacy,[12] either in international human rights law or domestic law, such text is troublesome. Second, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and finally, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.

In this post, I will address the first concern of human rights implications of our Draft Resolution.

Unintended Implications for Privacy and Freedom of Expression:

India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:

Pream. §(e): “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”;
Pream. §(h): “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. Snowden used Tor while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is reported to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were coerced into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the NSA and GCHQ have tried to break Tor; the Russian government has offered a reward to anyone who can.

Far be it from me to defend Tor blindly. There are reports suggesting that Tor is being used by offenders, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after Snowden’s revelations, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been recognized by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution The Right to Privacy in the Digital Age. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…”.

Erosion of privacy has a chilling effect on free speech [New York Times v. Sullivan, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s Information Technology (Guidelines for Cyber Cafe) Rules, 2011, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to dismantle the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in McIntyre v. Ohio Elections Commission [514 U.S. 334 (1995)].[13] Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, wrote Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).

So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and prima facie violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.

To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in Weber & Saravia v. Germany [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that enables surveillance without sufficient safeguards is prima facie unreasonable and disproportionate. Re: anonymity, in Delfi AS v. Estonia [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication” to test the validity of government’s restrictions.

The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for all IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been arbitrary, and traceability may give rise to a host of new worries.

In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of WHOIS records and registries with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a licence to operate and offer services.

If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as traceroute or IP look-up that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.

If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.

[1] Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.

[2] Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

[3] Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.

[4] Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.

[5] Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.

[6] Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.

[7] Op. §1, Draft Resolution; see note 3.

[8] Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.

[9] Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.

[10] Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”

[11] Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.

[12] See, for instance, Report of the Office of the High Commission for Human Rights (“OHCHR”), Right to Privacy in the Digital Age, A/HRC/27/37 (30 June 2014), ¶34-35, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. See esp. note 30 of the Report, ¶35.

[13] Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; ex. see Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.

For more details visit https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms

The Gujarat High Court Judgment on the Snoopgate Issue

vipul — 2014-10-27T04:40:17Z

Pranlal N. Soni v. State of Gujarat, C/SCA/14389/2014

In the year 2013 the media widely reported that a female civil services officer was regularly spied upon in 2009 due to her acquaintance with the then Chief Minister of Gujarat (and current Prime Minister of India) Mr. Narendra Modi. It was reported that the surveillance was being supervised by the current president of the BJP, Mr. Amit Shah at the behest of Mr. Modi. The case took another twist when the officer and her father said that they had no problems with such surveillance, and had repeatedly conveyed to various statutory authorities including the National Commission for Women, the State Commission for Women, as also before the Hon’ble Supreme Court of India, that they never felt that their privacy was being interfered with by any of the actions of the State Authorities. Infact, para 3.5 of the petition indicated that it was at the behest of the father of the female officer that the State government had carried out the surveillance on his daughter as a security measure.

Inspite of the repeated claims of the subject of surveillance and her father, the Gujarat Government passed a Notification under the Commissions of Inquiry Act, 1952 appointing a two member Commission of Inquiry to enquire into this incident without jeopardizing the identity or interest of the female officer. This Notification was challenged in the Gujarat High Court by the very same female officer and her father on the ground that it violated their fundamental right to life and liberty. The petitioners claimed that they had to change their residential accommodation four times in the preceding few months due to the constant media glare. The print, electronic and social media, so called social workers and other busybodies constantly intruded into the private life of the petitioners and their family members. The petitioner's email accounts were hacked and scores of indecent calls were received from all over. Under the guise of protecting the petitioner's privacy, every action undertaken by the so called custodians for and on behalf of the petitioners resulted into a breach of privacy of the petitioners, making life impossible for them on a day to day basis.

After hearing the arguments of the petitioners, including arguments on technical points the Court struck down the Notification issued by the State government to enquire into the issue of the alleged illegal surveillance. However the Court also briefly touched upon the issue of violation of the privacy of the female officer in this whole episode. However, instead of enquiring into whether there was any breach of privacy in the facts of the case, the Court relied upon the statement made by the female officer that whatever surveillance was done did not cause any invasion into her privacy, rather it was the unwelcome media glare that followed the revelations regarding the surveillance which had caused an invasion of her privacy.

Thus we see that even though the whole snoopgate episode started out as one of “alleged” unwarranted and illegal surveillance this particular judgment is limited only to challenging the validity of the Inquiry Commission appointed by the State Government. In order to challenge the Notification in a PIL the female officer had to show that some fundamental right of hers was violated and in such circumstances privacy is the most obvious fundamental right which was violated.

Although this judgment talks about privacy, it does not have enough legal analysis of the right to privacy to have any significant ramifications for how privacy is interpreted in the Indian context. The only issue that could possibly be of some importance is that the we could interpret the Court’s reliance on the statement of the female officer that there was no breach of privacy rather than its own examination of facts to mean that in cases of breach of privacy, if the person whose privacy has been breached did not feel his or her privacy to have been invaded then the Courts would rely on the person’s statements rather than the facts. However this is only an interpretation from the facts and it does not seem that the Court has spent any significant amount of time to examine this issue, therefore it may not be prudent to consider this as establishing any legal principle.

Note: The details of the case as well as the judgment can be found at http://gujarathc-casestatus.nic.in/gujarathc/tabhome.jsp

For more details visit https://cis-india.org/internet-governance/blog/gujarat-high-court-judgment-on-snoopgate-issue