We are anonymous, we are legion

The Second IJLT-CIS Lecture Series at National Law School, Bangalore

praskrishna — 2011-05-13T11:03:04Z

The Indian Journal of Law and Technology and the Centre for Internet and Society, present the second IJLT- CIS Lecture Series, an event comprised of an intensive series of lectures by luminaries with expertise in law and technology to give students, professionals and anyone interested in a comprehensive idea about the theme, "Emerging Issues in Privacy law".

The focus will be on contemporary sub-issues of critical relevance such as:

The Unique Identification Project and Challenges to Privacy
Cloud Computing and Behavioural Tracking
The State and Privacy: Electronic Surveillance

Speakers

The following delegates would be speaking at the conference:

Usha Ramanathan
Malavika Jayaram
Vivek Durai
Prof. Sudhir Krishnaswamy

Profiles of the Speakers

Usha Ramanathan

Dr. Usha Ramanathan is an internationally recognized expert on law and poverty. She studied law at Madras University, the University of Nagpur and Delhi University. She is a frequent adviser to non-governmental organisations and international organizations. She is a member of Amnesty International's Advisory Panel on Economic, Social and Cultural Rights and has been called upon by the World Health Organisation as a expert on mental health on various occasions. Her research interests include human rights, displacement, torts and environment. She has published extensively in India and abroad.

Malavika Jayaram

Malavika Jaya has an experience of more than 15 years as a lawyer with a specialization in information technology and intellectual property. She is a partner in Jayaram & Jayaram, Bangalore managing a portfolio of work that has a strong focus on IT/IP and commercial work, especially with an international angle and is a fellow of the Centre for Internet and Society. She works with CIS in its efforts to explore, understand, and affect the shape and form of the Internet, and its relationship with the cultural and social milieu of our time.

More info on Malavika Jayaram can be found here

Vivek Durai

Vivek G Durai is co-founder and managing partner at Atman Law Partners. He represents Indian and overseas clients in connection with their India entry strategies, venture capital and private equity investments, infrastructure projects, technology contracts, procurement and supply agreements and real estate investments.

More info on Vivek Durai can be found here

Professor (Dr.) Sudhir Krishnaswamy

Prof. Sudhir Krishnaswamy graduated from National Law School Bangalore with a BA LLB (Hons) degree. He then went onto finish a BCL and DPhil in Law from the University of Oxford on a Rhodes Scholarship. He has taught at National Law School, Bangalore and Pembroke College, University of Oxford among other places. His research interests include constitutional law, administrative law, intellectual property law, legal profession and reform of the legal system.

More info on Prof. Krishnaswamy can be found here

Admission will not charged but in order to enable us to ensure adequate seating, do register without fail by the 18th of May by email at editorialboard@ijlt.in.

Updates regarding the conference will be posted here.

For more details visit https://cis-india.org/events/ijlt-cis-lecture-series

New rules to ensure due diligence: IT dept

praskrishna — 2011-05-23T06:12:39Z

Facing widespread criticism over new IT rules that put certain amount of liability on intermediaries like Google and Facebook for user-generated content, the government clarified that the rules are simply seeking "due diligence" on the part of websites and web hosts. This news was published in the Times of India on May 11, 2011.

The new rules were notified on April 11. Activists and Internet companies say that the rules are archaic and loosely worded and may lead to harassment of web users and website owners. The Times of India was first to report on the issue on April 27.

The ministry of information and technology said, "The terms specified in the rules are in accordance with the terms used by most of the intermediaries as part of their existing practices, policies and terms of service which they have published on their website."

It also clarified the "department of telecommunication has reiterated that there is no intention of the government to acquire regulatory jurisdiction over content under these rules".

The government has claimed that before it made the rules final, it had sought public comments over the draft. "None of the industry associations and other stakeholders objected to the formulation which is now being cited in some section of media," it claimed.

However, sources told TOI that companies like Google had objected to loose wordings of the documents and asked government not to put any liability on intermediary for user-generated content on the web. "We too approached the government with our concerns. For our communication, we never received any acknowledgment," said Sunil Abraham, executive director at the Centre for Internet and Society (CIS).

"Given the fact that final rules are more or less similar to the draft rules, I can say that nobody in the government took into account the objections raised by CIS and many other organizations," he added.

Google had earlier told TOI that new rules would adversely affect businesses that depend upon online collaboration to prosper. "We believe that a free and open Internet is essential for the growth of digital economy and safeguarding freedom of expression.

If Internet platforms are held liable for third party content, it would lead to self-censorship and reduce the free flow of information," a Google spokesperson said.

Read the original published by the Times of India here

For more details visit https://cis-india.org/news/new-rules-for-due-diligence

India Chills Online Speech

praskrishna — 2011-05-05T03:19:50Z

While most governments try to control online freedom of speech in a somewhat restrictive manner, either as a collaborator or as a regulator, rarely do they formulate a law to curb online speech. Rarer still does a government provide sweeping powers to intermediaries like an ISP and administrators of Internet sites to control content based on a long list of criteria. This news was published in 'digital communities' on May 3, 2011.

In a quiet move early last month, India passed a new set of rules called Information Technology Rules Act 2011, that curtail freedom of Internet speech by not only empowering the Department of Information Technology to block any site that displays disparaging content based on a list of criteria defined by the Department. But it also empowered any official or private citizen to demand the removal of content that they consider objectionable.

For the first time, it also made intermediaries like an ISP or an Internet site that facilitates user-generated content -- like Google, Facebook, and blogs -- responsible for censoring the Internet.

“The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission, [of content specified by the Act]” it says.

For that matter Internet censorship is not new in India. "This country practices censorship in various forms," says Apar Gupta, a Cyberlaw expert at New Delhi-based Accendo Law Partners. "However it is usually done by a government body or a court order after balancing the interests of free speech and individual or societal harm. Hence, we have film certification and provisions under the Criminal Procedure Code under which a book or any other publication may be banned by a state government by issuing a detailed order in the official gazette. In cases where parties approach courts, courts finely balance competing interests as well.

”But the new rules have for the first time brought censorship, with regard to online content, with a force of law. The new rules even incentivize intermediaries or private parties to censor the Internet,” he added.

The new law is sweeping. For instance, it says that any statement that threatens the unity, integrity; defense, security or sovereignty of India or friendly relations with foreign states or public order, must be removed from Web content.

Moreover, besides banning content that is “harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever,” it also forbids publication of content that is “grossly harmful."

“These rules are not only unfair and blatantly clamp down on freedom of expression, they also put vague limits to freedom of expression and are thus debatable in terms of being constitutionally valid,” says Sunil Abraham, the executive director for the Center for Internet and Society.

As an instance, Gupta points to a clause in the rules prohibiting content that “harm[s] minors in any way.”

Gupta says there is no set definition under the existing civil and criminal law as to what could be considered "harming minors in any way."

“In the absence of any definable legal standards, what then could form the basis of whether content is harming minors or not?” he asks.

The rules threaten to damage entrepreneurship in a big way as well, allege critics.

“Under the new law anyone can lodge a complaint -- say against an amateur mobile software application developer whose product competes with an application of say Apple or Google. While large companies can afford legal expenses of challenging an IPR violation claim, a small-time developer has no option but to succumb to such challenges.”says Abraham adding, “Online anonymity is vital for creativity and entrepreneurship on the Web.”

Read the original news here

For more details visit https://cis-india.org/news/online-speech

Limits to Privacy

Prashant Iyengar — 2012-12-14T10:28:55Z

In his research article, Prashant Iyengar examines the limits to privacy for individuals in light of the provisions of the Constitution of India, public interest, security of state and maintenance of law and order. The article attempts to build a catalogue of all these justifications and arrive at a classification of all such frequently used terms invoked in statutes and upheld by courts to deprive persons of their privacy.

Introduction

In 1965, the Supreme Court of India heard and decided State of UP v. Kaushaliya[1], a case which involved the question of whether women who are engaged in prostitution can be forcibly removed from their residences and places of occupation, or whether they were entitled, along with other citizens of India, to the fundamental right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India [under Article 19(1)(d) and (e) of the Constitution of India]. In other words, did these women possess an absolute right of privacy over their decisions in respect to their occupation and place of residence? In its decision, the Supreme Court denied them this right holding that "the activities of a prostitute in a particular area... are so subversive of public morals and so destructive of public health that it is necessary in public interest to deport her from that place." In view of their 'subversiveness', the statutory restrictions imposed by the Suppression of Immoral Traffic Act on prostitutes, were upheld by the court as constitutionally-permissible “reasonable restrictions” on their movements.

The legal alibis that the State employs to justify its infringement of our privacy are numerous, and range from ‘public interest’ to 'security of the state' to the 'maintenance of law and order'. In this chapter we attempt to build a catalogue of these various justifications, without attempting to be exhaustive, with the objective of arriving at a rough taxonomy of such frequently invoked terms. In addition we also examine some the more important justifications such as 'public interest' and 'security of the state' that have been invoked in statutes and upheld by courts to deprive persons of their privacy.

The statutory venues of deprivation of privacy by the state being many – strictly, any statute that imposes any restriction on movement, or authorizes the search or examination of any residence or book, or the interception of communication may be read as a violation of a privacy right — tracking each of these down would not only be an impossible exercise, but also contribute little to the analytical exercise we are attempting here. Instead, in this chapter we only list provisions from a few statutes that are the familiar instruments by which the state impinges on our privacy. This is done with the limited object of arriving at a rough inventory of the common technologies which the state employs to impinge on our privacy.

Even if intrusions into our privacy are statutorily authorised, these statutes must withstand constitutional scrutiny. We therefore, begin this chapter with a discussion of the constitutional framework within which these statutes operate, and against which the severity of their incursions must be measured.

Constitutional Jurisprudence on Privacy

The 'right to privacy' has been canvassed by litigants before the higher judiciary in India by including it within the fold of two fundamental rights: the right to freedom under Article 19 and the right to life and personal liberty under Article 21.

It would be instructive to provide a brief background to each of these Articles before delving deeper into the privacy jurisprudence expounded by the courts under them.

Part III of the Constitution of India (Articles 12 through 35) is titled ‘fundamental rights’ and lists out several rights which are regarded as fundamental to all citizens of India (some apply all persons in India whether citizens or not). Article 13 forbids the State from making “any law which takes away or abridges the rights conferred by this Part”.

Thus, Article 19(1) (a) stipulates that "all citizens shall have the right to freedom of speech and expression". However this is qualified by Article 19(2) which states that this will not "affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right … 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".

Thus, the freedom of expression guaranteed by Article 19(1) (a) is not absolute, but a qualified right that is susceptible, under the Constitutional scheme, to being curtailed under specified conditions.

The other important fundamental right from the perspective of privacy jurisprudence is Article 21 which reads "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Where Article 19 contains a detailed list of conditions under which freedom of expression may be curtailed, by contrast Article 21 is thinly-worded and only requires a "procedure established by law" as a pre-condition for the deprivation of life and liberty. However, the Supreme Court has held in a celebrated case Maneka Gandhi vs. Union of India [2] that any procedure "which deals with the modalities of regulating, restricting or even rejection of a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, 'procedure' must rule out anything arbitrary, freakish or bizarre."

Four decisions by the Supreme Court have established the right to privacy in India as flowing from Articles 19 and 21.

The first was a seven-judge bench judgment in Kharak Singh vs The State of U.P.[3] The question for consideration before this court was whether 'surveillance' under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by 'domiciliary visits at night' was held to be violative of Article 21.The word ‘life’ and the expression ‘personal liberty’ in Article 21 were elaborately considered by this court in Kharak Singh`s case. Although the majority found that the Constitution contained no explicit guarantee of a ‘right to privacy’, it read the right to personal liberty expansively to include a right to dignity. It held that "an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man —an ultimate essential of ordered liberty, if not of the very concept of civilization."

In a minority judgment in this case, Justice Subba Rao held that "the right to personal liberty takes is not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle' it is his rampart against encroachment on his personal liberty." This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.

In 1972, the Supreme Court decided a case — one of the first of its kind — on wiretapping. In R. M. Malkani vs State of Maharashtra [4] the petitioner’s voice had been recorded in the course of a telephonic conversation where he was attempting blackmail. He asserted in his defence that his right to privacy under Article 21 had been violated. The Supreme Court declined his plea holding that “the telephonic conversation of an innocent citizen will be protected by courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.”

The third case, Govind vs. State of Madhya Pradesh [5] , by a three-judge bench of the Supreme Court is regarded as being a setback to the right to privacy jurisprudence. Here, the court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulation which provided for police surveillance of habitual offenders including domiciliary visits and picketing. The Supreme Court desisted from striking down these invasive provisions holding that "It cannot be said that surveillance by domiciliary visit, would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead criminal lives that are subjected to surveillance."

The court went on to make some observations on the right to privacy under the Constitution:

"Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them it could not he absolute. It must be subject to restriction on the basis of compelling public interest. But the law infringing it must satisfy the compelling state interest test. It could not be that under these freedoms that the Constitution-makers intended to protect or protected mere personal sensitiveness."

The next case in the series was R. Rajagopal vs. State of Tamil Nadu [6] which involved a balancing of the right of privacy of citizens against the right of the press to criticize and comment on acts and conduct of public officials. The case related to the alleged autobiography of Auto Shankar who was convicted and sentenced to death for committing six murders. In the autobiography, he had commented on his contact and relations with various police officials. The right of privacy of citizens was dealt with by the Supreme Court in the following terms: -

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

Elsewhere in the same decision, the court took a cautionary stance and held that "the right to privacy...will necessarily have to go through a process of case-by-case development."

The final case that makes up the 'privacy quintet' in India was the case of PUCL v. Union of India [7] in which the court was called upon to consider whether wiretapping was an unconstitutional infringement of a citizen’s right to privacy. The court held:

The right privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as a ‘right to privacy’. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

The court also read this right to privacy as simultaneously deriving from Article 19. "When a person is talking on telephone, he is exercising his right to freedom of speech and expression", the court observed, and therefore "telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1) (a) of the Constitution."

However, the court in this case made two observations which would have a lasting impact on privacy jurisprudence in India –firstly, it rejected the contention that 'prior judicial scrutiny' should be mandated before any wiretapping could take place and accepted the contention that administrative safeguards would be sufficient.

Thus, to conclude this section of this chapter, it may be observed that the right to privacy in India is, at its foundations a limited right rather than an absolute one. In the sections that follow, it will become apparent that this limited nature of the right provides a somewhat unstable assurance of privacy since it is frequently made to yield to all manners of competing interests which happen to have a more pronounced legal standing.

Vocabularies of Privacy Limitation

Article 12 of the Universal Declaration of Human Rights (1948) defines privacy in the following terms:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Similarly, Article 17 of the International Covenant of Civil and Political Rights (to which India is a party) declares that:

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

In this section, we look briefly at sections in some statutes that authorize the deprivation of privacy. These statutes have been classified under three headings, following the aforementioned international covenants, each dealing with a) our communications, b) our homes and c) bodily privacy.

Privacy of Communications

Communications laws

All laws dealing with mediums of inter-personal communication — post, telegraph and telephony and email – contain similarly worded provisions permitting interception under specified conditions.

Thus, section 26 of the India Post Office Act 1898 confers powers of interception of postal articles for the 'public good'. According to this section, this power may be invoked "On the occurrence of any public emergency, or in the interest of the public safety or tranquillity". The section further clarifies that “a certificate from the State or Central Government” would be conclusive proof as to the existence of a public emergency or interest of public safety or tranquillity.

Similarly, section 5(2) of the Telegraph Act authorizes the interception of any message

on the occurrence of any public emergency, or in the interest of the public safety; and
if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence,

Thus, the events that trigger an action of interception are the occurrence of any ‘public emergency’ or in the interests of ‘public safety’.

Most recently, section 69 of the Information Technology Act 2008 contains a more expanded power of interception which may be exercised "when they [the authorised officers] are satisfied that it is necessary or expedient" to do so in the interest of:

sovereignty or integrity of India,
defence of India,
security of the State,
friendly relations with foreign States or
public order or
preventing incitement to the commission of any cognizable offence relating to above or
for investigation of any offence,

[More details of the occasions and the mandatory procedural safeguards before these powers may be exercised are contained in our briefing notes on Privacy and Telecommunications and Privacy and the IT Act]

From a plain reading of these sections, there appears to be a gradual loosening of standards from the Post Office Act to the latest Information Technology Act. The Post Office Act requires the existence of a ‘state of public emergency’ or a ‘threat to public safety and tranquillity’ as a precursor to the exercise of the power of interception. This requirement is continued in the Telegraph Act with the addition of a few more conditions, such as expediency in the interests of sovereignty, etc. Under the most recent IT Act, the requirement of a public emergency or a threat to public safety is dispensed with entirely – here, the government may intercept merely if it feels it ‘necessary or expedient’.

How much of a difference does it make?

In Hukam Chand Shyam Lal v. Union of India and ors [8] , the Supreme Court was required to interpret the meaning of ‘public emergency’. Here, the court was required to consider whether disconnection of a telephone could be ordered due to an ‘economic emergency’. The Government of Delhi had ordered the disconnection of the petitioner’s telephones due to their alleged involvement, through the use of telephones, in (then forbidden) forward trading in agricultural commodities. According to the government, this constituted an ‘economic emergency’ due to the escalating prices of food. Declining this contention, the Supreme Court held that:

a 'public emergency' within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.

Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency'— as the high court calls it—may not necessarily amount to a 'public emergency' and justify action under this section unless it raises problems relating to the matters indicated in the section.

In addition the other qualifying term, 'public safety' was interpreted in an early case by the Supreme Court to mean "security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context."[9]

Thus, the words ‘public emergency’ and 'public safety' does provide some legal buffer before the government may impinge on our privacy in the case of post and telecommunications. In a sense, they operate both as limits on our privacy as well as limits on the government’s ability to impinge on our privacy — since the government must demonstrate their existence to the satisfaction of the court, failing which their actions would be illegal.

However, as mentioned, even these requirements have been dispensed with in the case of electronic communications falling under the purview of the Information Technology Act where sweeping powers of interception have been provided extending from matters affecting the sovereignty of the nation, to the more mundane 'investigation of any offence'.

Privileged Communications

In addition to laying down procedural safeguards which restrict the conditions under which our communication may be intercepted, the law also safeguards our privacy in certain contexts by taking away the evidentiary value of certain communications.

Thus, for instance, under the Evidence Act, communications between spouses and communications with legal advisors are accorded a special privilege.

Section 122 of the Evidence Act forbids married couples from disclosing any communications made between them during marriage without the consent of the person who made it. This however, does not apply in suits “between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

This rule was applied in a case before the Kerala High Court, T.J. Ponnen vs M.C. Varghese [10] where a man sued his son-in-law for defamation based on statements about him written in a letter addressed to his daughter. The trial court held that the prosecution was invalid since it was based on privileged communications between the couple. This was upheld by the high court. The petitioner had attempted to argue that it was immaterial how he gained possession of the letter. The high court disagreed with this contention holding that this would defeat the purpose of section 122.

Similarly section 126 forbids “barristers, attorneys, pleaders or vakils” from disclosing, without their client’s express consent “any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil... or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.”

As with section 122, this privilege also comes with exceptions. Thus, the following kinds of communications are exempted from the privilege:

any communication made in furtherance of any illegal purpose,
any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

Section 127 extends the scope attorney-client privilege to include any interpreters, clerks and servants of the attorney or barrister. They are also not permitted to disclose the contents of any communication between the attorney and her client.

Section 129 enacts a reciprocal protection and provides that clients shall not be compelled to disclose to the court any "confidential communication which has taken place between him and his legal professional adviser."

Section 131 of the Evidence Act further cements the legal protection afforded to married couples, attorneys and their clients by providing that "No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession" unless that person consents to the production of such documents.

Note that these privileges do not limit the ability of the state to intercept communications – they merely negate the evidentiary value of any communications so intercepted.

Privacy of the Home: Search and Seizure Provisions

Under what circumstances may the State invade the privacy of our homes? What are the limits of these powers? Technically, any law that authorizes “search and seizure” can be said to authorize an invasion of our privacy. Many laws permit searches, for various grounds — ranging from the Income Tax Act which authorizes searches to recover undisclosed income, to the Narcotics Act which prescribes a procedure to search and sieze drugs, to the Excise Act and the Customs Act which do so in order to discover goods that are manufactured or imported in violation of those respective statutes. In this section we deal only with the general provisions for search and seizure under the Code of Criminal Procedure.

The Code of Criminal Procedure (CrPC) provides that a house or premises may be searched either under a search warrant issued by a court, or, in the absence of a court-issued-warrant, by a police officer in the course of investigation of offences.

Thus, a court may issue a search warrant where

it has reason to believe that a person to whom a summons has been, or might be, addressed, will not or would not produce the document or thing as required by such summons; or
where such document or thing is not known to the court to be in the possession of any person, or
where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,

Similarly, section 165 of the Code of Criminal Procedure permits for searches to be conducted by “police officers in charge of police station or a police officer making an investigation” without first obtaining a warrant. Such a search may be conducted if he has “reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached”, and if, in his opinion, such thing cannot “be otherwise obtained without undue delay”.

Such officer must record in writing the grounds of his belief and specify “so far as possible” the thing for which search is to be made.

In both cases, the Code of Criminal Procedure requires the search to conform to procedures including the presence of "two or more independent and respectable inhabitants of the locality”. The preparation, in their presence, of “a list of all things seized in the course of such search, and of the places in which they are respectively found", the delivery of this list to the occupant of the place being searched.

However, in reality, these requirements are observed more in the breach. Courts have consistently held that not following these provisions would not make evidence obtained inadmissible — it would make the search irregular, not unlawful. Thus, in State of Maharashtra v. Natwarlal Damodardas Soni [11], where a search was conducted under the Customs Act to recover smuggled gold, the Supreme Court held that

Assuming that the search was illegal it would not affect either the validity of the seizure and further investigation by the customs authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.

In a different case, Radhakrishan v. State of U.P. [12] which involved an illegal search in contravention of the Code of Criminal Procedure , the Supreme Court held that:

"So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the Articles is not vitiated. It may be that where the provisions of ... Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues."

India inherits the common law notion that a man’s house is his castle. In the light of the cases discussed above, this claim certainly appears to be lofty. However, there is still hope. In a recent case, the Supreme Court struck down provisions of a legislation on grounds that it was too intrusive of citizens’ right to privacy. The case involved an evaluation of the Andhra Pradesh Stamp Act which authorized the collector to delegate “any person” to enter any premises in order to search for and impound any document that was found to be improperly stamped. Thus, for instance, banks could be compelled to cede all documents in their custody, including clients documents, for inspection on the mere chance that some of them may be improperly stamped. These banks were then compelled under law to pay the deficit stamp duty on the documents, even if they themselves were not party to the transactions recorded in the documents.

After an exhaustive analysis of privacy laws across the world, and in India, the Supreme Court held that in the absence of any safeguards as to probable or reasonable cause or reasonable basis, this provision was violative of the constitutionally guaranteed right to privacy, both of the house and of the person. [13]

The case marks a welcome redrawing of the boundaries of the right to privacy against state intrusion.

Privacy of the Body

To what extent do we have a right to privacy that protects what we may do with our own bodies and may be done to them? This section deals with this question in the context of four issues that have arisen before courts:

the ability of the state to order persons to undergo medical-examination,
to undergo a range of 'truth technologies' including narco analysis, brain mapping, etc.,
to submit to DNA testing and d) to abortion. In most cases, as we shall see, the right to privacy cedes ground to any available competing interest.

Court-ordered Medical Examinations

Can courts compel persons to undergo medical examinations against their will? In the case of Sharda v. Dharmpal[14], decided in 2003, the Supreme Court held that they could. Here a man filed for divorce on that grounds that his wife suffered from a mental illness. In order to establish his case, he requested the court to direct his wife to submit herself to a medical examination. The trial court and the high court both granted his application. On appeal to the Supreme Court, the woman contested the order on grounds firstly, that compelling a person to undergo a medical examination by an order of the court would be violative of her right to 'personal liberty' guaranteed under Article 21 of the Constitution of India. Secondly, in absence of a specific empowering provision, a court dealing with matrimonial cases cannot subject a party to undergo medical examination against his her volition. The court could merely draw an adverse inference.

The Supreme Court rejected these contentions holding that the right to privacy in India was not absolute. If the "respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory."

The court upheld the rights of matrimonial courts to order a person to undergo medical test. Such an order, the court held, would not be in violation of the right to personal liberty under Article 21 of the Constitution of India. However, this power could only be exercised if the applicant had a strong prima facie case, and there was sufficient material before the court. Crucially, the court held that if, despite the order of the court, the respondent refused to submit herself to medical examination, the court would be entitled to draw an adverse inference against him.

Thus, oddly, one limitation on the right to privacy appears to be the statutory rights of others. One is entitled to the privacy of one’s body, to the extent that another person is not, thereby, deprived of a statutory right – as in this case, to divorce.

Reproductive Rights

Ahmedabad: A 13-year-old girl, who conceived after being repeatedly raped, has moved the Gujarat High Court and sought permission to medically terminate her pregnancy after a sessions court rejected her plea.

Express India(April 2010) [15]

To what extent do pregnant women enjoy a right to privacy over their bodies and their reproductive decisions? Are there circumstances when the State can intervene and either order or forbid an abortion?

According to the Medical Termination of Pregnancy Act, 1971 a pregnancy may be terminated before the twentieth week if:

the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
where any pregnancy is alleged by the pregnant woman to have been caused by rape,
where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.

Consent for termination needs to be obtained from the guardian in cases of minors or women who are mentally ill. In all other cases, the woman herself must consent.

Beyond the period of 20 weeks, the pregnancy may only be terminated if there is immediate danger to the life of the woman.

In August 2009, the Supreme Court heard an expedited appeal that was filed on behalf of a destitute mentally retarded woman who had become pregnant consequent to having been raped at a government run shelter. The government had approached the high court seeking permission to terminate her pregnancy, which had been granted by that court despite the finding by an ‘expert body’ of medical practitioners that she was keen on continuing the pregnancy. On appeal the Supreme Court held, very curiously, that the woman was not ‘mentally ill’, but ‘mentally retarded’, and consequently her consent was imperative under the Act. [16] However, not content to stop there, the court made several puzzling and contradictory observations:

Firstly, the court took the opportunity to affirm, generally, women’s rights to make reproductive choices as a dimension of their `personal liberty' as guaranteed by Article 21 (Right to Life and Personal Liberty) of the Constitution of India. The court observed:

“It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. (emphasis mine) [17]

However, the court went on to affirm, in language that curiously imitates Roe v Wade,[18] that there was “a `compelling state interest' in protecting the life of the prospective child.[19]

Secondly, the Supreme Court upheld the woman’s consent as determinative and in doing so, categorically rejected the high court approach. The court held that since she suffered from `mild mental retardation' this did not render her "incapable of making decisions for herself". Simultaneously, however, the Supreme Court proceeded gratuitously to apply the common law doctrine of `parens patriae' to resume jurisdiction over the woman in her “best interests”. According to a court-appointed expert committee, her mental age was “close to that of a nine-year old child” and she was capable of “learning through rote memorisation and imitation” and of performing “basic bodily functions”.[20] In this light, the court deemed in her ‘best interests’, as defined by an expert committee, to defer to her wishes.

The findings recorded by the expert body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the `best interests' test alone which should govern the inquiry in the present case and not the `substituted judgment' test. [21]

If one disregards the liberalism of its outcome, there are various problems with this decision. Chiefly, the Supreme Court relied on the woman’s expressed consent to deny the legitimacy of the high court’s decision in favour of abortion. Inexplicably, however, in the same move, the Supreme Court reserved to itself the right to adjudicate the ‘best interests’ of the woman. Thus, in relation to abortion, mentally retarded women are more autonomous than minor girls (since their own consent is determinative, rather than their guardians) but they are still less autonomous than ‘normal’ women (since their decisions are subject to adjudication based on what the court thinks is in their best interests)!

DNA Tests in Civil Suits

Do we have a right to privacy over the interiors of our body – our blood, our tissue, our DNA? There is, by now, a strong line of cases decided by the Supreme Court in which our right to ‘bodily integrity’ has been held to not be absolute, and may be interfered with in order to settle many terrestrial issues. In most cases, this question has arisen in the context of the determination of paternity – either in divorce or maintenance proceedings. Central in the determination of these issues is section 112 of the Evidence Act which stipulates that birth of a child during the continuance of a valid marriage (or within 280 days of its dissolution) would be conclusive proof of legitimacy of that child, “unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

As is evident, this section creates a strong legal presumption of legitimacy that leaves no room for a scientific rebuttal. Various litigants have, nevertheless, sought the courts’ indulgence in accepting medical evidence to displace this formidable legal presumption. These efforts have yielded a measure of success, and a steady line of precedents since the early 1990s now affirms the right of courts to direct medical evidence in cases they consider fit. In these cases, the court has frequently invoked privacy rights as an important consideration to be weighed before ordering a person to submit to any test.

In one of the earliest and most frequently invoked cases, Goutam Kundu vs State of West Bengal and Anr (1993) [22] the Supreme Court laid down guidelines governing the power of courts to order blood tests. The court held:

courts in India cannot order blood test as matter of course;

wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

No one can be compelled to give sample of blood for analysis.

On the particular facts of this case, the Supreme Court refused to order the respondent to submit to the test, since in its view, there was no prima facie case made out that cast doubts on the legal presumption of legitimacy.

These guidelines have been frequently invoked in subsequent cases. In a complex set of facts, in Ms. X vs Mr. Z and Anr (2001), [23] the Delhi High Court was called to consider whether a foetus had a ‘right to privacy’ – or whether the mother of the foetus could assert a right to privacy on it’s behalf. A woman had given birth to a still-born child and tissues from the foetus had been stored at the All India Institute of Medical Sciences. Her husband approached to obtain an order permitting a DNA test to be carried out to determine if he was the father. In her defence, the woman claimed that this would offend her right to privacy. The high court reaffirmed the guidelines laid down in the Gautam Kundu case (supra), and also upheld the petitioner’s right to privacy over her own body. However, the court took the stance that she did not have a right of privacy over the foetus once it had been discharged from her body:

"The petitioner indeed has a right of privacy but is being not an absolute right, therefore, when a foetus has been preserved in All India Institute of Medical Science, the petitioner, who has already discharged the same cannot claim that it affects her right of privacy.

However, if the petitioner was being compelled to subject herself to blood test or otherwise, she indeed could raise a defense that she cannot be compelled to be a witness against herself in a criminal case or compelled to give evidence against her own even in a civil case but the position herein is different. The petitioner is not being compelled to do any such act. Something that she herself has discharged, probably with her consent, is claimed to be subjected to DNA test. In that view of the matter, in the peculiar facts, it cannot be termed that the petitioner has any right of privacy."

The decision has wide-ranging implications since it virtually divests control and ownership over any material that has been discarded from the body – from nails to hair to tissue samples. In an interesting case in the US, Moore v. Regents of the University of California [24], the Supreme Court of California was faced with a suit to determine whether a man retained ownership over cells that had been removed from his body through a surgical procedure. In this case, cells from a patient’s spleen were used to conduct research which resulted in the patenting of a cell-line by the defendant. The patient sued for a share in the profits, but this was rejected by the court which held that he had no property rights to his discarded cells or any profits made from them. The court specifically rejected the argument that his spleen should be protected as property as an aspect of his privacy and dignity. The court held these interests were already protected by informed consent.

In a sense the Ms. X vs Mr. Z case arrives at identical conclusions without as much deliberation on its implications. It would be interesting to see how subsequent courts interpret and apply this precedent.

One of the most critical factors, consistently weighed by courts alongside the privacy rights implicated, is the ‘best interests’ of the child. Thus, in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr.[25], the Supreme Court quashed a high court-mandated DNA test to determine the paternity of an unborn child in a woman’s womb. In doing so, the SC observed:

“In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, DNA is eminently needed. (emphasis added)

A strong trend, evident in this case, is the bussing of the interests of the child (in not being declared illegitimate), along with the privacy rights of the mother. The two create a composite interest opposed to that of the putative father, which the courts have been reluctant to interfere with except for the most compelling reasons. But what happens when then the interests of the child conflict with the privacy rights of either parent?

In a high profile case in 2010, Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari[26], the Delhi High was called upon to determine whether a man had a right to subject the person he named as his biological father to a DNA test. Contrary to the trend in the preceding cases, it was the biological father who pleaded his right to privacy in this case. The court relied on international covenants to affirm the “right of the child to know of her (or his) biological antecedents” irrespective of her (or his) legitimacy. The court ruled:

There is of course the vital interest of child to not be branded illegitimate; yet the conclusiveness of the presumption created by the law in this regard must not act detriment to the interests of the child. If the interests of the child are best sub-served by establishing paternity of someone who is not the husband of her (or his) mother, the court should not shut that consideration altogether.

The protective cocoon of legitimacy, in such case, should not entomb the child’s aspiration to learn the truth of her or his paternity.

The court went on to draw a distinction between legitimacy and paternity that may both "be accorded recognition under Indian law without prejudice to each other. While legitimacy may be established by a legal presumption [under section 112 of the Evidence Act], paternity has to be established by science and other reliable evidence"[27] The court, however, reaffirmed that the same considerations would apply as was laid down in previous cases – i.e., the plaintiff would have to establish a prima facie case and weigh the competing interests of privacy and justice before it could order a DNA test. In this case, the petitioner was able to produce DNA evidence that excluded the possibility that his legal father was his biological father. In addition, photographic and testimonial evidence suggested that the respondent could be his biological father. On these grounds the Delhi High Court ordered the respondent to undergo a DNA test. This was upheld in an appeal to the Supreme Court.

So from the foregoing cases, it appears that it is the ‘best interests of the child’ that undergrids the right to privacy of either parent. When the two are in conflict it is the former that will, the case law suggests, invariably prevail.

Bodily Effects — Fingerprints, handwriting samples, photographs, Irises, narco-analysis, brain maps and DNA

The human body easily betrays itself. We are incessantly dropping residues of our existence wherever we go – from shedding hair and fingernails, to fingerprints and footprints, handwriting – which, through use of modern technology, can implicate our bodies, and identify us against our will. Not even our thoughts are immune as new technologies like brain mapping pretend to be able to harvest psychic clues from our physiology.

In this section we explore occasions when the state may compel us to 'perform' our existence for instance, by submitting to photography, providing finger impressions or handwriting samples, submit to narco-analysis and truth tests, and more recently to provide iris scan data or our DNA.

Section 73 of the Evidence Act stipulates that the court "may direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person."

This section was interpreted by the Supreme Court in State of U.P. v. Ram Babu Misra [28] where it was held that there must be “some proceeding before the court in which...it might be necessary... to compare such writings”. This specifically excludes, say, a situation where the case is still under investigation and there is no present proceeding before the court. “The language of section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court.”

The pre-independence Identification of Prisoners Act, 1920 provides for the mandatory taking, by police officers, of 'measurements' and photograph of persons arrested or convicted for any offence punishable with rigorous imprisonment for a term of one year of upwards or ordered to give security for his good behaviour under section 118 of the Code of Criminal Procedure. [29] The Act also empowers a magistrate to order a person to be measured or photographed if he is satisfied that it is required for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898. [30]

The Act also provides for the destruction of all photographs and records of measurements on discharge or acquittal. [31]

In addition, the Code of Criminal Procedure was amended in 2005 to enable the collection of a host of medical details from accused persons upon their arrest. Section 53 of the Code of Criminal Procedure provides that upon arrest, an accused person may be subjected to a medical examination if there are “reasonable grounds for believing” that such examination will afford evidence as to the crime. The scope of this examination was expanded in 2005 to include “the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.”

In a case in 2004, the Orissa High Court affirmed the legality of ordering a DNA test in criminal cases to ascertain the involvement of persons accused. Refusal to co-operate would result in an adverse inference drawn against the accused.

After weighing the privacy concerns involved, the court laid down the following considerations as relevant before the DNA test could be ordered:

the extent to which the accused may have participated in the commission of the crime;
the gravity of the offence and the circumstances in which it is committed;
age, physical and mental health of the accused to the extent they are known;
whether there is less intrusive and practical way of collecting evidence tending to confirm or disprove the involvement of the accused in the crime;
the reasons, if any, for the accused for refusing consent [32]

Most recently the draft DNA Profiling Bill pending before the Parliament attempts to create an ambitious centralized DNA bank that would store DNA records of virtually anyone who comes within any proximity to the criminal justice system. Specifically, records are maintained of suspects, offenders, missing persons and “volunteers”. The schedule to the Bill contains an expansive list of both civil and criminal cases where DNA data will be collected including cases of abortion, paternity suits and organ transplant. Provisions exist in the bill that limit access to and use of information contained in the records, and provide for their deletion on acquittal. These are welcome minimal guarantors of privacy.

It is evident that the utility of this mass of information – fingerprints, handwriting samples and photographs, DNA data – in solving crimes is immense. Without saying a word, it is possible for a person to be convicted based on these various bodily affects – the human body constantly bears witness and self-incriminates itself. Both handwriting and finger impressions beg the question of whether these would offend the protection against self-incrimination contained in Article 20(3) of our Constitution which provides that “No person accused of any offence shall be compelled to be a witness against himself.” This argument was considered by the Supreme Court in the State of Bombay vs Kathi Kalu Oghad and Ors. [33] The petitioner contended that the obtaining of evidence through legislations such as the Identification of Prisoners Act amounted to compelling the person accused of an offence "to be a witness against himself" in contravention of Article 20(3) of the Constitution. The court held that “there was no infringement of Article 20(3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purposes of comparison. ...Compulsion was not inherent in the receipt of information from an accused person in the custody of a police officer; it will be a question of fact in each case to be determined by the court on the evidence before it whether compulsion had been used in obtaining the information.” [34]

Over the past two decades, forensics has shifted from trying to track down a criminal by following the trail left by her bodily traces, to attempting to apply a host of invasive technologies upon suspects in an attempt to ‘exorcise’ truth and lies directly from their body. One statement by Dr M.S. Rao, Chief Forensic Scientist, Government of India captures this shift:

Forensic psychology plays a vital role in detecting terrorist cases. Narco-analysis and brainwave fingerprinting can reveal future plans of terrorists and can be deciphered to prevent terror activities⁄ Preventive forensics will play a key role in countering terror acts. Forensic potentials must be harnessed to detect and nullify their plans. Traditional methods have proved to be a failure to handle them. Forensic facilities should be brought to the doorstep of the common man⁄ Forensic activism is the solution for better crime management. [35]

Although there are several such 'technologies' which operate on principles ranging from changes in respiration, to mapping the electrical activity in different areas of the brain, what is common to them all, in Lawrence Liang’s words is that they “maintain that there is a connection between body and mind; that physiological changes are indicative of mental states and emotions; and that information about an individual’s subjectivity and identity can be derived from these physiological and physiological measures of deception” [36]

So, how legal are these technologies, in view of the constitutional protections against self-incrimination? In a case in 2004 the Bombay High Court upheld these technologies by applying the logic of the Kathi Kalu Oghad case discussed above. The court drew a distinction between ‘statements’ and ‘testimonies’ and held that what was prohibited under Article 20(3) were only ‘statements’ that were made under compulsion by an accused. In the court’s opinion, “the tests of Brain Mapping and Lie Detector in which the map of the brain is the result, or polygraph, then either cannot be said to be a statement”. At the most, the court held, “it can be called the information received or taken out from the witness.” [37]

This position was however overturned recently by the Supreme Court in Selvi v. State of Karnataka (2010)[38]. In contrast with the Bombay High Court, the Supreme Court expressly invoked the right of privacy to hold these technologies unconstitutional.

“Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as 'Brain Fingerprinting' and 'FMRI-based Lie-Detection' raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject's truthfulness or familiarity with the facts of a crime.”

Further down, the court held that such techniques invaded the accused’s mental privacy which was an integral aspect of their personal liberty.

“There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on 'personal liberty' ... the drug-induced revelations or the substantive inferences drawn from the measurement of the subject's physiological responses can be described as an intrusion into the subject's mental privacy”

Following a thorough-going examination of the issue, the Supreme Court directed that “no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.” The court however, left open the option of voluntary submission to such techniques and endorsed the following guidelines framed by the National Human Rights Commission:

No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
The consent should be recorded before a judicial magistrate.
During the hearing before the magistrate, the person alleged to have agreed should be duly represented by a lawyer.
At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the magistrate but will have the status of a statement made to the police.
The magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. 250
A full medical and factual narration of the manner of the information received must be taken on record.

Although the right against self-incrimination and the inherent fallaciousness of the technologies were the main ground on which decision ultimately rested, this case is valuable for the court’s articulation of a right of ‘mental privacy’ grounded on the fundamental right to life and personal liberty. It remains to be seen whether this articulation will find resonance in other determinations in domains such as, say, communications.

Privacy of Records

Since at least the mid-nineteenth century, we have been living in what Nicholas Dirks has termed an 'ethnographic state' — engaged relentlessly and fetishistically in the production and accumulation of facts about us. From records of birth and death, to our academic records, most of our important transactions, our income tax filings, our food entitlements and our citizenship, most of us have assuredly been documented and lead a shadow existence somewhere on the files. Not only does the government keep records about us, but a host of private service providers including banks, hospitals, insurance and telecommunications companies maintain volumes of records about us. In this last section of this paper, we look at the privacy expectation of records both maintained by the government and the private sector.

Various statutes require records to be maintained of activities conducted under their authority and entire bureaucracies exist solely in service of these documents. Thus, for instance, the Registration Act requires various registers to be kept which record documents which have been registered under the Act. [39]; Once registered under this Act, all documents become public documents and State Rules typically contain provisions enabling the public to obtain copies of all documents for a fee. Similarly, a number of legislation – typically dealing with land records at the state level contain enabling provisions that allow the public to access them upon payment of a fee.

Where no provisions are provided within the statute itself that enable the public to obtain records, two recourses are still available.

Firstly, the Evidence Act enables courts to access records maintained by any government body. Secondly, private citizens may access records kept in public offices through the Right to Information Act. Each of these avenues is described in some details below:

Section 74 of the Evidence Act defines 'public documents' as including the following

Documents forming the acts, or records of the acts

Of the sovereign authority,
Of Official bodies and the Tribunals, and
Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

Public records kept in any state of private documents

It is clear from this definition that most records maintained by any government body are regarded as public documents. Section 76 mandates that every public officer "having custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof".

Since there is no legislative guidance within the Evidence Act to indicate who may be said to possess "a right to inspect", this has been interpreted to mean that where the right to inspect and take a copy is not expressly conferred by a statute (as in the Registration Act mentioned above), “the extent of such right depends on the interest which the applicant has in what he wants to copy, and what is reasonably necessary for the protection of such interest". So it isn’t any officious meddler who may access such records – only persons with genuine interests in the matter, either personal or pecuniary, may obtain copies through this route.

In addition to the Evidence Act, copies of documents may also be obtained under the Right to Information Act 2005 which confers on citizens the right to inspect and take copies of any information held by or under the control of any public authority. Information is defined widely to include "any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force".

Section 8 (j) of the Act exempts "disclosure of 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 relevant authority “is satisfied that the larger public interest justifies the disclosure of such information".

In an interesting case Mr. Ansari Masud A.K vs Ministry of External Affairs (2008)[40] , the Central Information Commission has held that “details of a passport are readily made available by any individual in a number of instances, example to travel agents, at airline counters, and whenever proof of residence for telephone connections etc. is required. For this reason, disclosure of details of a passport cannot be considered as causing unwarranted invasion of the privacy of an individual and, therefore, is not exempted from disclosure under Section 8(1)(j) of the RTI Act.” This is despite the fact that nothing in the Passport Act itself authorizes disclosure of any documents under any circumstances.

However, the Right to Information Act isn’t as convenient a vehicle for privacy abuse as this case may suggest. The RTI adjudicatory apparatus has on several occasions upheld the denial of information on grounds of privacy violation – most famously in a case where an applicant sought information from the Census Department on the ‘religion and faith’ of Sonia Gandhi – the President of the largest party currently in power in India. Both the Central Information Commission – the apex body adjudicating RTI appeals as well as the Punjab and Haryana High Court upheld the denial of information as it would otherwise lead to an unwarranted incursion into her privacy.[41]

A similar concept of 'public interest' would seem to apply when private companies disclose personal information without a person’s consent. Without delving into the issue in too much detail, it would suffice here to mention one of the most important cases to have come up on the issue. In Mr. X vs Hospital Z[42] , a person sued a hospital for having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off. The Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to protect the public interest. While affirming the duty of confidentiality owed to patients, the court ruled that the right to privacy was not absolute and was "subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others."

Conclusion

Reflecting on the volume of case law that we have in India on privacy, one is struck at once, both by the elasticity of the concept of privacy — spanning, as it does, diverse fields from criminal law to paternity suits to wiretapping —as well as its fragility — the flag of privacy is constantly being raised only to be ultimately overridden on pretexts that range from security of state, to a competing private interest.

On the one hand, one marvels at the success of the concept, only a few decades old in Indian law, in insinuating itself into legal arguments across diverse contexts. On the other hand, one is dismayed by the fact that rarely does the concept seem to score a victory. There is an almost ritual quality to the way in which the “right to privacy” is invoked in these cases - always named as a relevant factor; it never seems to substantially influence the outcome of the case at hand.

The right to privacy in India was an Oops baby, born on the ventilator of a minority decision of the Supreme Court, and nourished in the decades that followed by sympathetic judges, who never failed to point out that this right was contingent — not absolute, not meant to be under the Constitution, but carved out anyway. Some five decades after its first invocation by the Supreme Court, one gets the feeling that the right to privacy, conceptually, hasn’t moved, and is still what it was then. We don’t, today, for the many times it has been invoked by courts, have a thicker, more robust concept of privacy than we started out with. So the question, that one is stuck with is, what work does this concept of privacy do?

One of the failings of the concept of privacy in India is that it doesn’t exist as a positive right, but is merely a resistive right against targeted intrusion. So for instance, the right to privacy would be useless as a concept to resist something like generalized street video surveillance – as long as a citizen is not singled out for a disadvantage, this right would be of no use. So this right to privacy is a negative right to not be interfered with. Under it one does not have the right to be as private as one wishes, but only no less than the next person. Still, even this limited concept could be useful, if it were applied more rigorously.

Unfortunately, as the case law indicates, the right to privacy cedes too quickly to competing interests. An incomplete rough catalog of these competing rights, drawn from the case law surveyed in this paper include:

public emergency and public safety (communications)
criminal investigation (search and seizure/communications)
competing private interests (divorce proceedings)
best interests of the child (paternity suits)
public interest (Right to Information)
competing fundamental rights (HIV status)

One may perhaps add judicial inactivity as one of the limiting factors on privacy. By holding that violations of procedure by investigating agencies would not vitiate trials, the judiciary has been complicit in perhaps some of the more damaging incursions into privacy. Once a person is implicated in any manner in the criminal justice system – either as a victim, a witness or an offender, investigating agencies are immediately invested with plenary powers. They can search his house without warrant. They can place him arrest. Subject him to ‘medical examinations’, take his fingerprints and DNA and hold it in a bank and there is nothing you can do. In this context, perhaps the strongest privacy safeguard can come from a reform in criminal procedure alone.

Notes

[1].The State of Uttar Pradesh V. Kaushaliya and Others AIR 1964 SC 416

[2].(1978) 2 SCR 621

[3]. 1 SCR 332

[4].AIR 1973 SC 157, 1973 SCR (2) 417

[5].(1975) 2 SCC 148

[6].(1994) 6 S.C.C. 632

[7].AIR 1997 SC 568

[8].AIR 1976 SC 789,1976 SCR (2)1060, (1976) 2 SCC 128

[9].Romesh Thappar vs The State Of Madras AIR 1950 SC 124 , 1950 SCR 594

[10].1966 AIR 1967 Ker 228, 1967 CriLJ 1511

[11].AIR 1980 SC 593 , 1980 SCR (2) 340

[12].[1963] Supp. 1 S.C.R. 408

[13].Distt. Registrar & Collector, Hyderabad v. Canara bank etc. AIR 2005 SC 186

[14].(2003) 4 SCC 493

[15].13-yr-old rape victim to HC: let me abort -, EXPRESS INDIA, April 21, 2010, http://tinyurl.com/13yrindian (last visited May 2, 2010).

[16].Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1. http://courtnic.nic.in/supremecourt/temp/dc%201798509p.txt (last visited May 2, 2010).

[17].Ibid

[18].410 U.S. 113 (1973)

[19].Article 21 does not limit the abridgement of the right to life by the state to only cases where the state has compelling state interest. The Article reads “No person shall be deprived of his life or personal librty except according to procedure established by law”

[20].Ibid

[21].Ibid

[22].AIR 1993 SC 2295, 1993 SCR (3) 917 <http://indiankanoon.org/doc/1259126/>

[23].AIR 2002 Delhi 217 <http://indiankanoon.org/doc/627683/>

[24].51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479

[25].AIR 2010 SC 2851 <http://indiankanoon.org/doc/486945/>

[26].23 December, 2010 <http://indiankanoon.org/doc/504408/>

[27].Ibid

[28].AIR 1980 SC 791 , 1980 SCR (2)1067 , (1980) 2 SCC 343

[29].Sections 3 & 4 of the Identification of Prisoners Act, 1920

[30].Ibid, Section 5

[31].Section 7

[32].Thogorani Alias K. Damayanti vs State Of Orissa And Ors 2004 Cri L J 4003 (Ori) < http://indiankanoon.org/doc/860378/>

[33].AIR 1961 SC 1808 < http://indiankanoon.org/doc/1626264/>

[34].Ibid

[35].Keynote address given to the 93rd Indian Science Congress. See http://mindjustice.org/india2-06.htm, cited in Liang, L., 2007. And nothing but the truth, so help me science. In Sarai Reader 07 - Frontiers. Delhi: CSDS, Delhi, pp. 100-110. Available at: http://www.sarai.net/publications/readers/07-frontiers/100-110_lawrence.pdf [Accessed April 11, 2011].

[36].Ibid

[37].Ramchandra Ram Reddy v. State of Maharashtra [1 (2205) CCR 355 (DB)

[38].(2010) 7 SCC 263 http://indiankanoon.org/doc/338008/

[39].See Section 52 of the Registration Act 1908

[40].CIC/OK/A/2008/987/AD dated December 22, 2008 <http://indiankanoon.org/doc/1479476/>

[41].Anon, 2010. High Court dismisses appeal seeking information on Sonia Gandhi’s religion. NDTV Online. Available at: http://www.ndtv.com/article/india/high-court-dismisses-appeal-seeking-information-on-sonia-gandhi-s-religion-69356 [Accessed April 12, 2011].

[42].(2003) 1 SCC 500 40

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For more details visit https://cis-india.org/internet-governance/blog/privacy/limits-to-privacy

Digerati See Censorship in New Web Rules

praskrishna — 2011-05-05T02:21:27Z

Attention Indian bloggers and social media fiends: the next time you’re composing a witty tweet or posting an edgy item on Facebook, please take care that what you’re writing isn’t “grossly harmful” or “harassing” or “ethnically objectionable” or – oh, the humanity! – “disparaging.” This news was published in the Wall Street Journal on May 2, 2011.

Those are among the types of content that are banned under Internet regulations the Indian government recently put into effect to enforce sections of an information technology law passed in 2008. It’s up to “intermediaries” – Internet service providers, social networking sites, etc. – to police the Web and remove content that goes out of bounds.

As word of the new rules spreads, digital media barons and commoners alike are freaking out. Is the world’s largest democracy ever-so-quietly trampling on free speech by enacting a censorship regime for the Web? How exactly will these rules affect day-to-day activity online?

On the MediaNama digital media blog, Nikhil Pahwa offers a bleak analysis: “These rules give the Indian government the ability to gag free speech, and block any website it deems fit, without publicly disclosing why sites have been blocked,” he writes.

Concerns are also pouring out on Twitter, with user posts like “Looks like we will become China soon” and “Moving to a more draconian state” and “When the hell did this happen?”

To shed some light on that last question: These rules merely advance what has been a quiet effort for several years by the Indian government to get a grip on the Web without the kind of blanket censorship or Website-blocking practiced in countries like Iran, China and Saudi Arabia.

In a front-page story last year, The Wall Street Journal showed how Indian police and government authorities, acting on complaints from Web users, have successfully pressured Google Inc. and other companies to make inaccessible to Indian users Web content that offends figures ranging from Congress Party President Sonia Gandhi to Hindu nationalist leader Balasaheb Thackeray.

The IT law was in effect then but as the government issues more specific rules to enforce it, its powers appear to be broadening–or at least coming into much sharper focus. The cumulative impact of the government’s Web regulation regime, says Sunil Abraham of the Center for Internet and Society in Bangalore, is to foster a culture of self-censorship not just by Web users but also Internet companies that will likely err on the side of caution by removing anything that seems edgy or potentially offensive.

Mr. Abraham cited as an example of overreach in the rules a provision that bans information that “impersonates another person,” which he said would outlaw everything from parody writing in which the author pretends to be in the shoes of a celebrity to Twitter accounts such as Dr.YumYumSingh, whose tweets are a running send-up of the honorable Prime Minister Manmohan Singh. “There are many occasions when people take on a pseudonym, or pretend to be someone else. If it isn’t done with the intention of financial fraud, there’s no need to clamp down on it,” he said.

Mr. Abraham also lamented that people whose content is taken down appear to have no recourse under the law to protest to ISPs or the government. It’s up to the ISPs to offer such recourse in their terms-of-use, if they are so generous.

To put this in its proper perspective, Indian authorities have never tried to disable Web access for large segments of the population or block very large numbers of sites, so far as we know. CIS revealed through a Right-to-Information request that 11 sites are currently being blocked, including a Facebook page that disparages constitutional framer and low-caste champion B.R. Ambedkar. There are certainly countries practicing a much, much higher degree of outright Web censorship.

But is fostering self-censorship–if that’s what’s happening here–just as bad as censorship itself?

Let us know what you think of the new rules in the Comments.

Read the article originally published in the Wall Street Journal here

For more details visit https://cis-india.org/news/censorship-in-new-web-rules

Free expression

praskrishna — 2011-05-23T08:48:44Z

Free speech and spirited public debate will be the casualties of new rules issued by India restricting Internet content. This news was published in Watertown Daily Times on May 2, 2011.

The regulations from the country's Department of Information Technology go beyond government censorship to individual censorship of material that might be offensive. According to the New York Times, even private citizens can demand that a service provider remove content that is "disparaging," "harassing" or "blasphemous."

The terms, though, are not defined. They are vague and subject to personal interpretation. Enforcement by the government or individuals will be arbitrary.

A rule against content that "threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states or public order" could be used by the government to block Internet debate over foreign policy or disagreement with the government's diplomatic relations with another country.

They are also subject to abuse by those who want to silence those they dislike or oppose.

India has a history of banning books and other materials considered objectionable, but the new rules go much further than a specific ban. They also require "intermediaries" such as Facebook and YouTube to remove offensive content within 36 hours of a complaint from anyone. No provisions are made for challenging the complaint.

"These rules favor those who want to clamp down on freedom of expression," said Sunil Abraham, executive director for the Center for Internet and Society.

Such rules are not surprising in countries with repressive regimes, but they are intolerable in a nation like India that considers itself democratic.

Read the original here

For more details visit https://cis-india.org/news/free-expression

Privacy By Design — Conference Report

praskrishna — 2011-08-22T12:03:30Z

How do we imagine privacy? How is privacy being built into technological systems? On April 16th,The Center for Internet and Society hosted Privacy by Design, an Open Space meant to answer these questions and more around the topic of privacy. Below is a summary of the conversations and dialogs from the event.

Introduction

On April 16th, The Center for Internet and Society hosted Privacy by Design, an Open Space meant to foster discussions around questions related to how privacy is being designed into technological systems. The day opened with two basic questions: How do we imagine privacy? And how are individuals building technology systems incorporating privacy into the system? Throughout the day the conversations took many twist and turns, but at the end of the day three basic points about privacy had come out of the many discussions: 1. Privacy cannot be limited to one definition; it is constantly changing based on person and on context 2. To a person - privacy is a function of abuse and violation 3. The increased generation of data that was made possible by web 2.0 has lead to a rise in privacy issues and is significantly changing many traditional concepts, spaces, and relationships – such as what constitutes a public space, and the relationship between a state and its citizens.

Database architecture and privacy

The morning discussion focused on databases and privacy, and began with questions like: How can a database be built to protect privacy? When a database is built, what role does privacy play in the migration of data? Is privacy protected in databases simply by limiting access to certain parts of data sets? Though many of these were left unanswered, the conversation highlighted the fact that th databases are coded to segregate /regulate users and information in order to protect the system. Thus, databases are architected to incorporate privacy in such a way that protects the viability of only the system and not the individual. In our research we have seen many cases of this. Individual’s privacy has been violated because of malfunctioning or poorly constructed databases. For example, currently Indian governmental databases often have incorrect information, individuals do not have the ability to access and change their information, and if an individual’s information is compromised the government is not held accountable, and there is no course of action that an individual can take towards redress.

Security vs. Privacy

Embedded in this understanding of how privacy is built into technological systems is the question of what security is, and when systems are built, whether privacy and security are considered to be essentially the same. Thus far in our research we have distinguished between privacy and security, saying that, security and privacy have an interesting relationship, because they go hand in hand, and yet at the same time have a different focus, because of this differing focus data security and privacy are not the same. Data breaches that contain personal information of any sort that can be matched, tracked or otherwise co-related to a person or persons will result in a privacy breach too. Though data security is critical for protecting privacy, because data security and privacy have different focuses, the principles that each follows are also different and sometimes conflicting. For example, data security focuses on data retention, logging, etc, while privacy focuses on consent, restricted access to data, limited data retention, and anonymity. If security measures are carried out without privacy interests in mind, privacy violations can easily result. Therefore we have thought that data security should influence and support a privacy regime, but not drive it.

security and privacy have an interesting relationship, because they go hand in hand, and yet at the same time have a different focus, because of this differing focus data security and privacy are not the same. Data breaches that contain personal information of any sort that can be matched, tracked or otherwise co-related to a person or persons will result in a privacy breach too. Though data security is critical for protecting privacy, because data security and privacy have different focuses, the principles that each follows are also different and sometimes conflicting. For example, data security focuses on data retention, logging, etc, while privacy focuses on consent, restricted access to data, limited data retention, and anonymity. If security measures are carried out without privacy interests in mind, privacy violations can easily result. Therefore we have thought that data security should influence and support a privacy regime, but not drive it.

The right to be forgotten and regulation of data

The possibility of creating systems with "off switches" also came out of this thread of conversation. For instance, can a database be structured to show only necessary information to third parties based on the context. In this scenario a card would be created that has all of an individual’s information on it, but only the pertinent information will be shown based on the different situations - if, for example, a teenager goes to a bar, the card will only show a third party that he is over 18. This idea is already taking shape in many Western countries, and is similar to the idea of a federated identity system. A question to ask though is if such a system could work for India, or be even more appropriate for India than a system like the UID. The purpose of federated systems of identity is to take context into consideration, and enable users to keep contexts separate, and link information about an individual only takes place when consent is given by the user. In response to the idea of an identity system that allows only certain information to be seen by third parties based on the situation, it was brought out that privacy is not protected simply by the separation of data into public or private categories, because all data have the potential to be misused. The immediate response to this concern was that if all data have the potential to be mis-used – than the use of data should be carefully regulated. The regulation of data though is also a double edged sword. On one hand regulating the use of data can stop a company from misusing information, but on the other hand it can keep a country from having full and equal access to the internet. A question that came out of this discussion on regulation was about the right to be forgotten. Does an individual have the right to regulate all information about themselves that is in the public sphere? Can they ask for their photos or videos to be taken down from the internet? In India this question has yet to be answered by the law, and it is a question that our research is looking into.

The purpose of federated systems of identity is to take context into consideration, and enable users to keep contexts separate, and link information about an individual only takes place when consent is given by the user. In response to the idea of an identity system that allows only certain information to be seen by third parties based on the situation, it was brought out that privacy is not protected simply by the separation of data into public or private categories, because all data have the potential to be misused. The immediate response to this concern was that if all data have the potential to be mis-used – than the use of data should be carefully regulated. The regulation of data though is also a double edged sword. On one hand regulating the use of data can stop a company from misusing information, but on the other hand it can keep a country from having full and equal access to the internet. A question that came out of this discussion on regulation was about the right to be forgotten. Does an individual have the right to regulate all information about themselves that is in the public sphere? Can they ask for their photos or videos to be taken down from the internet? In India this question has yet to be answered by the law, and it is a question that our research is looking into.

Data types and privacy

Emerging from the conversation on database structure, a conversation on types of data in databases was started. The question was raised as to whether or not databases can actually handle certain types of data. The example given was caste-related data. Information about a person’s caste is constantly changing as people lie about their caste, change their caste, and become married and take on another caste. Furthermore, some people do not want to live with their caste and want to shed off their caste. Therefore, can a database accurately represent such a dynamic data set? Is it dangerous to put such a politically volatile concept as caste into a database where it will confine a person to one definition once entered? Another side to this question though is that perhaps it is in fact necessary to try and place a person in one caste, as there benefits enshrined by law based on a person’s caste, and an individual who has the ability to change his/her caste at their whim therefore defeats and takes advantage of governmental benefits. The point was also raised that by placing information like caste and identity into a database, governments have the ability to divide the country into subsets of identities that they decide to generate. Caste is not the only data that faces these complications and issues. For instance religion and race raise similar question. How can you define and represent a person’s relationship with God in a database? How to you represent a child of multiracial parents on a database?

Changes in the relationship between the state and the citizen

It was also brought out that the representation of citizens’ identities on a database changes the relationship between a state and its citizenry. States no longer see citizens as individuals, but instead as data samples. The UID is an example of an e-governance program that if enacted, could further such a change in the relationship between the state and the citizen, as the whole of India will suddenly and ubiquitously be recognized by the Government (and other entities/organizations) according to their aadhaar number. The relationship between the state and the citizen is not the only social change that databases bring about. Databases also change the concept of public space. As web 2.0 has facilitated the generation of large amounts of data, public space has become a space where one enters and interacts as a dataset. For example face book and twitter allow individuals to create datasets of them and interact with other people through their datasets. Beyond social networking online banking and online shopping also push people to form datasets about themselves and interact with services that were traditionally done in person as individuals, as datasets.

Questions of ownership

The above thread of conversation led to the next question of whether or not individuals control technology or whether technology controls individuals. The example of Facebook was used to illustrate this question. Even though Facebook has a privacy policy, once a person engages with Facebook he or she accepts Facebook’s definition of privacy – which is two tiered. On one level Facebook defines user privacy in terms of restriction - allowing the user to limit who can see their profiles. On another level Facebook’s privacy policy allows the company to share and sell personal information. In these ways companies are constructing databases so that instead of the company being the custodian of information – an entity that provides a structure to protect and hold information - the companies are now the owners of information- selling and using individuals information for profit. In India, this is a problem. Companies, once they collect data, treat it as their own - selling and sharing data with third parties, or using it in ways that were not agreed to by the customer. The question of ownership was a critical question for the group. In the discussions it was important to individuals that they had control and ownership over their information. Individuals felt that information that could be traced back to them or their identity belonged to them, and that in order to protect privacy consent should be secured before any information is used. For instance, data mining by websites without notice was seen as a violation of privacy. The collection of data in public places for marketing purposes without a person’s consent or awareness was similarly seen as a privacy violation. It was also brought out from this conversation that the digitization of information has caused a commercialization of information, and that has led to a sense of ownership and need for privacy over information. For example, before, if someone were to take one’s name and mis-use it, that person was charged with defamation – not for violation of privacy – but if someone misuses information that is in a database or online, that person is now charged for a violation of privacy. This shift in thinking is another example of how web 2.0 has increased privacy violations.

Perceptions and expectations of privacy

The day ended with a conversation about the perceptions and expectations of privacy. Privacy as it relates to an individual is almost wholly dependent on expectation, which changes from person to person, from community to community, and from culture to culture. Just as the expectation of privacy varies between individuals, so does the degree of violation. Thus, it is important to recognize the changing nature of privacy, because it explains why it is difficult for the legal system to address all the nuances of privacy with one broad legislation. This point has been crucial in our research thus far as we are consulting with the public, analyzing legislation, and following news items to see if privacy legislation is wanted and needed in India, and if it is - how it should be shaped.

From the conversation on perceptions of privacy and privacy violations it was also brought out that the concept of privacy is on one hand related to the notion of ownership, and on the other hand it is related to the violation. From the experiences shared by individuals, their privacy never became a concern until it was violated, or they learned about someone else’s privacy being violated. This led to the observation that not only is it difficult for the law to address privacy violations because the violation is based on perception, but also because the effect when one’s privacy is violated is often an emotional one.

Conclusion

The conversations held throughout the day showed the dynamic and personal nature of privacy, and how when databases are constructed, and how our lives made digital this personal aspect is easily lost. When we think about the conversations held throughout the day in relation to our initial questions: what are the different ways of imagining privacy, and how is privacy being built into technological systems, besides the three basic themes of privacy highlighted in the beginning of this blog - there emerged to more themes. One theme portrayed an imagination of privacy that is more personal, and that address the emotional component and the perception component to privacy. Another theme portrayed an imagination of privacy that is technologically more controlled, that allows for more personal regulation, more precise segregation of information in a database, and restricted access by third parties. This imagination of privacy can be and is being met by new and developing technologies. Increasingly in many countries technology is being structured with privacy built into the system. The larger question that this open space has raised, and not completely answered is if privacy legislation can adequately protect an individual’s privacy, and if it cannot, can technology can fill the gaps that privacy legislation leaves open.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy_privacybydesign

India curbs on Bloggers and Internet

praskrishna — 2011-05-13T11:59:20Z

The Information Technology Rules 2011 (due diligence observed by intermediaries guidelines) by the Indian government could lead to online censorship, feel human rights activists. This article by Ayyappa Prasad was published in TruthDrive on April 29, 2011.

"This will curtail the freedom of expression of individual bloggers, because as an intermediary they will become responsible for the readers’ comments. It technically means that any comment or a reader-posted link on a blog which according to the government is threatening, abusive, objectionable, defamatory, vulgar, racial, among other omnibus categories, will now be considered as the legal responsibility of the blogger," said a blogger.

Blogs, which are typically maintained and updated by individuals, have showcased their political importance in recent times and the internet community views these rules as a lopsided attempt to curtail an individual’s right to expression.

"If individual blogs are an intermediary, then why can’t Facebook and Twitter also be classified as such, as they too receive, store and transmit electronic records and facilitate online discussions," retorts the spokesperson of the Centre for Internet and Society (CIS), a Bangalore-based organization, which works on digital pluralism. " These rules will not only bring bloggers and the ISP provider on the same platform, but the due diligence clause will also result in higher power of censorship to the larger player. Imagine your ISP provider blocking your blog because it finds that certain user-comments fit these omnibus terms," the CIS spokesperson added.

Intermediaries include web-hosting providers, which would include companies like Amazon, cyber cafes, payment sites like Paypal, online auction sites, ISPs like BSNL, Airtel, etc. Blogs also fall in this category as networked service providers. The due diligence specifies intermediaries should not display, upload, modify or publish any information that is 'harmful' , 'threatening' , 'abusive' , 'harassing' , 'blasphemous' , 'objectionable' , 'defamatory' , 'vulgar' , 'obscene' , 'pornographic' , 'paedophilic' , 'libellous' , 'invasive of another’s privacy' , 'hateful' , 'disparaging' , 'racially , ethnically or otherwise objectionable' , 'relating to money laundering or gambling'.

Read the original here

For more details visit https://cis-india.org/news/india-curbs-bloggers-internet

April 2011 Bulletin

praskrishna — 2012-07-30T10:45:01Z

Greetings from the Centre for Internet and Society! In this issue we are pleased to present you the latest updates about our research, upcoming events, and news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India.

Workshops organised in Bangalore

Shadow Search Project (SSP) [CIS, April 18, 2011]
Facebook Resistance [CIS, April 2, 2011]

Digital Natives with a Cause?

Digital Natives with a Cause? is a knowledge programme initiated by CIS and Hivos, Netherlands. It is a research inquiry that seeks to look at the changing landscape of social change and political participation and the role that young people play through digital and Internet technologies, in emerging information societies. Consolidating knowledge from Asia, Africa and Latin America, it builds a global network of knowledge partners who want to critically engage with the dominant discourse on youth, technology and social change, in order to look at the alternative practices and ideas in the Global South. It also aims at building new ecologies that amplify and augment the interventions and actions of the digitally young as they shape our futures.

Columns on Digital Natives

A fortnightly column on ‘Digital Natives’ authored by Nishant Shah is featured in the Sunday Eye, the national edition of Indian Express, Delhi, from 19 September 2010 onwards. The following were published in the month of April:

Who the Hack? [Indian Express, April 24, 2011]
One for the avatar [Indian Express, April 3, 2011]

Digital Natives Newsletter

Links in the Chain is a bi-monthly publication which highlights the projects, ideas and news of the Digital Natives with a Cause? The first issue of volume IV is here:

links in the chain volume 4 Best Practices

New Blog Entry by Samuel Tettner

Samuel Tettner is a Digital Natives Coordinator in CIS. He has written the following blog entry:

Cyber Fears: What scares Digital Natives and those around them

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

Workshop organised in Hyderabad

Web Sites Accessibility Evaluation Methodologies: Conference Report

Openness

CIS believes that innovation and creativity should be fostered through openness and collaboration and is committed towards promotion of open standards, open access, and free/libre/open source software. Its latest endeavour has resulted into these:

Submission

Comments on Draft National Policy on ICT in School Education

New Blog Entry

Towards Open and Equitable Access to Research and Knowledge for Development [PLoS, March 29, 2011]

Internet Governance

Although there may not be one centralized authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cyber crime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Its latest endeavour has resulted into these:

CIS is doing a project, ‘Privacy in Asia’. It is funded by Privacy International (PI), UK and the International Development Research Centre, Canada and is being administered in collaboration with the Society and Action Group, Gurgaon. The two-year project commenced on 24 March 2010 and will be completed as agreed to by the stakeholders. It was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around challenges and violations of privacy in India. In furtherance of these goals it aims to draft and promote over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Featured Research

Interview

An Interview with Activist Shubha Chacko: Privacy and Sex workers

Workshops organized in Ahmedabad and Bangalore

'Privacy Matters', Ahmedabad: Conference Report [Ahmedabad Management Association, Ahmedabad, March 26, 2011]
Privacy, By Design [CIS, April 16, 2011]

New Blog Entries

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this:

Column

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

Learning from Fukushima [published in the Business Standard on April 7, 2011]

News & Media Coverage

The Gary Chapman International School on Digital Transformation[International School on Digital Transformation, July 17-22, 2011]
Iraqi delegation in Bangalore to study e-governance projects [Economic Times, April 20, 2011]
Dark waders [Time Out Bengaluru, Vol. 3, Issue 20, April 15 - 28, 2011]
Beyond Clicktivism [Outlook, April 18, 2011]
Gone in a flash [Times of India, April 16, 2011]
How Web 2.0 responded to Hazare [Hindu, April 11, 2011]
EU Commissioner Hedegaard to deliver keynote address at consumer world congress
Net cracker [Time Out Bengaluru Vol. 3 Issue 19, April 1 - 14, 2011]
On the Path to Global Open Access: A Few More Miles to Go [PLoS, March 2011, Volume 8, Issue 3]

Follow us elsewhere

Get short, timely messages from us on Twitter
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Join the CIS group on Facebook
Visit us at www.cis-india.org

CIS is grateful to Kusuma Trust which was founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin, for its core funding and support for most of its projects.

For more details visit https://cis-india.org/about/newsletters/april-2011-bulletin

India's cyber cafes going porn-free

praskrishna — 2011-05-06T04:53:41Z

Pornography fans in India who like to indulge in the sexual eye candy at public cyber cafes may be in for a forced intervention as a new government ruling bans porn websites, requires cafe owners to keep a one-year log of all sites accessed by customers and forces customers to produce an ID card prior to use. This news was published on msnbc.com on April 28, 2011.

These new guidelines, which were released April 11, are getting a lot of pushback from privacy advocates in India, who cite the legality of watching porn in the country.

"Watching pornography is not illegal in India," Pawan Duggal, a lawyer who specializes in IT laws, told The Times of India."It's absurd to ask cyber cafe owners to tell their customers not to access pornographic material even as law allows individuals to access adult websites unless it's not child pornography. The new rules require a second look."

The "Information Technology (Guidelines for Cyber Cafe) Rules, 2011" imposed by the Ministry of Communications and Information Technology (aka the Department of Information Technology) have several requirements, all of which have met with more questions and concerns over the impact on everyone who accesses the Internet through the cafes, not just porn watchers. Here are the notable issues that show some Big Brother tendencies:

Cyber cafe owners must register with an unnamed agency for licenses for their establishments.

Cyber cafe users must produce a legally valid form of identification prior to using a computer, such as school ID, passport, driver's license and voter ID card. Children without ID must be accompanied by an adult with acceptable identification documents.
If the cyber cafe user isn't able to produce legit ID, then they may be photographed through a webcam.
Refusal to produce identification or to be photographed will result in the user not being allowed to use a computer at the cyber cafe.
"All the computers in the cyber café shall be equipped with the safety/filtering software so as to the avoid access to the websites relating to pornography, obscenity, terrorism and other objectionable materials."
Webcam photos will be part of the log cyber cafe owners need to maintain for a minimum of one year, either in print or online. Cyber cafe owners will also be required to submit monthly reports to the Ministry's overseeing agency that give details about computer use, including: "History of websites accessed, logs of proxy server installed at the the cafe, mail server logs, logs of network devices such as routers, switches, systems etc. installed at the cyber cafe and logs of firewall or Intrusion Prevention/Detection systems, if installed."
Finally, the guidelines bring down barriers between users by disallowing partitions of more than 4.5 feet at computer stations. Children are not to be allowed to use the computers unsupervised.

Duggal told The Times that he thought these rules may very well force cafe owners out of business.

Non-profit watchdog Privacy India has these guidelines square in its sights, protesting: the redundancy of the licensing process (cyber cafes are already subject to registration and licensing), how the guidelines may make cafe owners vulnerable to liability for the actions of their users and blocking internet access to children from "poorer classes, (since they are most likely to routinely access internet through cyber cafes) and denies them the opportunity of developing their computer skills which are crucial for the growth of the “knowledge economy” that India is trying to head towards."

Naturally, privacy is the issue that most concerns the group, which would insist on a purge of the logs after "the minimum retention period." Here's what they have to say about kids and their right to privacy:

In addition, we believe that children are more susceptible to exploitation and consequently have a heightened privacy expectation which must be honoured. We recommend that the current sub-rule be deleted and replaced with a clause which specifically exempts children from proving their identity and forbids taking photographs of them under any circumstance.

And why adults need it, too:

There are many uses of the internet for which a user may legitimately require privacy: For instance, patients, including HIV patients and those with mental illness, may wish to obtain information about their condition. Similarly sexuality minorities may wish to seek support or reach out to a larger community. Enforcing the architecture stipulated in this rule would discourage their access to such vital information. In addition, this architecturewould make it easier for cyber crimes such as identity theft to take place since it would be easier to observe the login details of other users at the cyber café.

The group is also not a fan of all the info that cyber cafes will be sitting on. "We further believe that access to the history of websites and mail server logs is a serious invasion of a person’s privacy, and should be omitted from the back up logs."

As if all those new guidelines weren't already cramping the carefree surfing experience, cyber cafes will also be subject to periodic visits by police inspectors who will have the power to demand all logs and check for compliance.

Read the original here

For more details visit https://cis-india.org/news/cyber-cafes-porn-free

Thousands queue for iPad 2 across Asia

praskrishna — 2011-05-23T07:10:28Z

The iPad 2 went on sale in countries across Asia and beyond Friday as Apple's updated gadget entered an ever more crowded market. This article written by Joyce Woo was published by AFP on April 28, 2011.

Apple's original iPad defined the tablet computer market and was swiftly followed by offerings from the tech industry's main players, from Samsung and Dell to BlackBerry maker RIM and Toshiba.

A late arrival to the tablet party was Sony, which only this week announced its own tablets a full year after the original iPad went on sale.

Now Apple is moving into round two of the battle of the tablets with a lighter, thinner, camera-equipped version of their original machine.

First in line in a queue of around 400 rain-soaked people outside an Apple store in Hong Kong was 16-year-old mainland Chinese student Dandy Weng, who travelled to the city from neighbouring Guangdong province for a device.

"I have waited for over 12 hours and haven't slept in 48 hours -- I'm very tired but excited," he told AFP. "I will be the first in China to have the iPad 2! I'm speechless, it's so exciting."

A queue snaked around the Apple shop in a major shopping centre, with some shoppers loading trolleys with as many as a dozen iPads, priced from HK$3,888 ($500) for the 16GB Wi-Fi only model to HK$6,488 for the 64 GB Wi-Fi and 3G model.

Those trying to buy an iPad 2 online via Apple's Hong Kong site, however, will have to wait a little longer -- all versions of the gadget were already out of stock before midday.

At an Apple authorised retail shop in Singapore, only 100 devices were available for sale and most official Apple retailers in Malaysia quickly sold out of the iPad 2.

"Each of our flagship stores had 600 devices each on sale and they ran out just like that," an official with a major Apple retail chain in Kuala Lumpur said.

Trade in "grey market" second generation iPads remained brisk in computer malls in the city such as Low Yat Plaza.

"We can charge more because there is a lot of demand and there is still not so much supply in Malaysia," seller Ang Chee Wei, 34, told AFP, adding that he had sold more than 20 of the devices so far.

"I bring in my iPad 2 from the US so I can still make some money until there are more iPads on the market."

Queues also formed outside retailers in the Philippine capital Manila.

John Quindo, 39, was first in line after standing patiently outside an Apple reseller for three hours.

"I'm excited because the Philippines is usually late (with Apple product releases)," he told AFP.

In India, over 150 outlets across the country opened their doors to Apple lovers seeking a new gadget, with the firm reporting a "phenomenal" initial response from customers.

Nishant Shah, director of research at the Centre for Internet and Society in the southern city of Bangalore, said he expected demand for the iPad 2 to be "huge", with Indian consumers increasingly brand-conscious.

Shilpa Malhotra was on the hunt for an iPad in Mumbai, but at an Apple outlet in the upmarket area of Breach Candy she was told that she could not buy one off the shelf immediately.

"I'm going to check to see if any other stores have got it in stock," she said, getting into a taxi.

The shop had taken orders and pre-payment for nearly 50 of the new iPads since Thursday, meaning dozens more customers wanting to buy the gadget on Friday were placed on a waiting list.

Anyone booking on Friday would get their device in 15 days' time, a store worker said.

In South Korea, 100 invited customers lined up from midnight at the central Seoul branch of KT, a local partner for iPhones and iPads.

The iPad 2 was also launched in Japan on Thursday after a month's delay caused by the devastating quake and tsunami.

A Wi-Fi only version of the gadget will be available in China on May 6.

It also hit stores Friday in Israel, Macau, South Africa, Turkey and the United Arab Emirates, after being first released in the United States on March 11.

The California tech firm sold 15 million iPads last year following the original device's launch in April, generating $10 billion in revenue.

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For more details visit https://cis-india.org/news/ipad-2-across-asia

New internet rules open to arbitrary interpretation

praskrishna — 2011-05-06T04:58:57Z

Six years after an e-commerce CEO's arrest for a pornographic CD sold from his website, the government has introduced a liability on intermediaries such as Facebook and Google to "act within 36 hours" of receiving information about offensive content. This article by Manoj Mitta & Javed Anwer was published in the Times of India on April 27, 2011.

Under the rules notified on April 11 under the Information Technology Act, the intermediaries are required to work with the internet user "to disable such information that is in contravention" of the prescribed restrictions. While most of the restrictions in the rules are based on the criminal law (stuff that is blasphemous, obscene, defamatory, paedophilic, etc), some are so loosely worded that they could easily be misused against netizens accustomed to speaking their mind freely, whether on politics or otherwise.

One glaring example of an ill-thought-out provision is the prohibition on saying something that is "insulting any other nation". Since this expression has been mentioned without any qualifications, it could be invoked against anybody who talks disparagingly about other countries.

Apart from encroaching on free speech, the subjective notion of insulting a nation â€” as opposed to valid criticism â€” opens scope for arbitrariness and politically motivated interpretation. The authorities may not, for instance, take action against any content that is bashing Pakistan but may be touchy about similar attacks on the US.

Since such violations and the remedial action taken on them could become a subject of police probe, the rules state that "the intermediary shall preserve such information and associated records for at least 90 days for investigation purposes".

Given their legal repercussions, activists termed the new rules "draconian". Pranesh Prakash of Centre of Internet and Society alleged, "The rules seek to expand government's reach to control content on the internet. This is neither reasonable nor constitutional as the rules undermine the free speech guaranteed by the Constitution."

The intermediaries are also required to appoint a grievance officer and publish his contact details as well as the mechanism by which "users or any victim who suffers" can notify their complaints. The grievance officer is required to redress the complaints within one month of the receipt of the complaint.

Industry sources hold that the 36-hour deadline imposed on the intermediaries to take action on complaints would unduly affect their freedom as service providers in the Indian jurisdiction. A Google spokesperson told TOI that the proposed guidelines could be "particularly damaging to the abilities of Indians who are increasingly using the internet in order to communicate, and the many businesses that depend upon online collaboration to prosper."

Read the original article published by the Times of India here

For more details visit https://cis-india.org/news/internet-rules-arbitary-interpretation

India Puts Tight Leash on Internet Free Speech

praskrishna — 2011-05-01T02:20:24Z

Free speech advocates and Internet users are protesting new Indian regulations restricting Web content that, among other things, can be considered “disparaging,” “harassing,” “blasphemous” or “hateful.” This article by Vikas Bajaj was published in the New York Times on April 27, 2011.

An Internet cafe in New Delhi. New rules require Web sites and service providers to remove some content that officials and even private citizens find objectionable.

The new rules, quietly issued by the country’s Department of Information Technology earlier this month and only now attracting attention, allow officials and private citizens to demand that Internet sites and service providers remove content they consider objectionable on the basis of a long list of criteria.

Critics of the new rules say the restrictions could severely curtail debate and discussion on the Internet, whose use has been growing fast in India.

The list of objectionable content is sweeping and includes anything that "threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states or public order."

The rules highlight the ambivalence with which Indian officials have long treated freedom of expression. The country’s constitution allows “reasonable restrictions” on free speech but lawmakers have periodically stretched that definition to ban books, movies and other material about sensitive subjects like sex, politics and religion.

An Indian state, for example, recently banned an American author’s new biography of the Indian freedom fighter Mohandas Gandhi that critics have argued disparages Mr. Gandhi by talking about his relationship with another man.

Although fewer than 10 percent of Indians have access to the Internet, that number has been growing fast — especially on mobile devices. There are more than 700 million cellphone accounts in India.

The country has also established a thriving technology industry that writes software and creates Web services primarily for Western clients.

Even before the new rules — known as the Information Technology (Intermediaries guidelines) Rules, 2011 — India has periodically tried to restrict speech on the Internet. In 2009, the government banned a popular and graphic online comic strip, Savita Bhabhi, about a housewife with an active sex life. Indian officials have also required social networking sites like Orkut to take down posts deemed offensive to ethnic and religious groups.

Using a freedom of information law, the Center for Internet and Society, a Bangalore-based research and advocacy group, recently obtained and published a list of 11 Web sites banned by the Department of Information Technology. Other government agencies have probably blocked more sites, the group said.

The new Internet rules go further than existing Indian laws and restrictions, said Sunil Abraham, the executive director for the Center for Internet and Society. The rules require Internet “intermediaries” — an all-encompassing group that includes sites like YouTube and Facebook and companies that host Web sites or provide Internet connections — to respond to any demand to take down offensive content within 36 hours. The rules do not provide a way for content producers to defend their work or appeal a decision to take content down.

"These rules overly favor those who want to clamp down on freedom of expression," Mr. Abraham said. "Whenever there are limits of freedom of expression, in order for those limits to be considered constitutionally valid, those limits have to be clear and not be very vague. Many of these rules that seek to place limits are very, very vague."

An official for the People’s Union for Civil Liberties, an advocacy group based in New Delhi, said on Wednesday that it was considering a legal challenge to the constitutionality of the new rules.

"What are we, Saudi Arabia?" said Pushkar Raj, the group’s general secretary. "We don’t expect this from India. This is something very serious."

An official at the Department of Information Technology, Gulshan Rai, did not return calls and messages.

The rules are based on a 2008 information technology law that India’s Parliament passed shortly after a three-day siege on Mumbai by Pakistan-based terrorists that killed more than 163 people. That law, among other things, granted authorities more expansive powers to monitor electronic communications for reasons of national security. It also granted privacy protections to consumers.

While advocates for free speech and civil liberties have complained that the 2008 law goes too far in violating the rights of Indians, Internet firms have expressed support for it. The law removed liability from Internet intermediaries as long as they were not active participants in creating content that was later deemed to be offensive.

Subho Ray, the president of the Internet and Mobile Association of India, which represents companies like Google and eBay, said the liability waiver was a big improvement over a previous law that had been used to hold intermediaries liable for hosting content created by others. In 2004, for instance, the police arrested eBay’s top India executive because a user of the company’s Indian auction site had offered to sell a video clip of a teenage couple having sex.

"The new I.T. Act (2008) is, in fact, a large improvement on the old one," Mr. Ray said in an e-mail response to questions.

Mr. Ray said his association had not taken a stand on the new regulations. An India-based spokeswoman for Google declined to comment on the new rules, saying the company needed more time to respond.

Along with the new content regulations, the government also issued rules governing data security, Internet cafes and the electronic provision of government services.

Read the original article published by the New York Times here

For more details visit https://cis-india.org/news/internet-free-speech

India Can Restrict 'Objectionable' Web Content under New Rules

praskrishna — 2011-05-23T09:48:17Z

Internet sites and service providers in India now have the authority to order the quick deletion of offensive online content – in a move that is causing great concern among free speech proponents. This article by Ed Silverstein was featured in TMCnet Legal on April 27, 2011.

The new rules are called "the Information Technology (Intermediaries guidelines) Rules, 2011" and allow for rejecting content that is found to be objectionable.

"The list of objectionable content is sweeping and includes anything that ‘threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states or public order," reports The New York Times.

The new rules are also more restrictive than prior laws, Sunil Abraham, the executive director for the Centre for Internet and Society, told The New York Times.

The rules require that intermediaries, who include websites like YouTube and Facebook (News - Alert) and companies that host Web sites, remove offensive content within 36 hours, The Times said. There apparently is no appeal process, The Times adds.

"These rules overly favor those who want to clamp down on freedom of expression," Abraham told The Times. "Whenever there are limits of freedom of expression, in order for those limits to be considered constitutionally valid, those limits have to be clear and not be very vague. Many of these rules that seek to place limits are very, very vague."

The Times of India also complained that, "While most of the restrictions in the rules are based on the criminal law (stuff that is blasphemous, obscene, defamatory, paedophilic, etc.), some are so loosely worded that they could easily be misused against netizens accustomed to speaking their mind freely, whether on politics or otherwise."

For example, one prohibition is saying something that would be "insulting" to "any other nation," The Times of India said.

"Since this expression has been mentioned without any qualifications, it could be invoked against anybody who talks disparagingly about other countries," The Times of India explains.

In addition, India’s MediaNama, adds, "These rules give the Indian government the ability to gag free speech, and block any website it deems fit, without publicly disclosing why sites have been blocked, who took the decision to block it, and just as importantly, providing adequate recourse to blogs, sites and online and mobile businesses, for getting the block removed."

Free speech advocates may try to challenge in the new rules in Indian courts.

In addition, the Indian government has issued new regulations on data security and Internet cafes, The New York Times reports.

The New York Times also reported that an India-based spokeswoman for Google (News - Alert) declined to immediately comment on the new rules.

But a Google spokesperson told The Times of India the guidelines may be "particularly damaging to the abilities of Indians who are increasingly using the internet in order to communicate, and the many businesses that depend upon online collaboration to prosper."

The Bangalore-based Centre for Internet and Society has also published a list of 11 Web sites banned by the India’s Department of Information Technology.

In a related matter, TMCnet reports that Freedom House has ranked India 14th among 37 countries on "free and unrestricted access to the web."

The number of Indians with Internet access is increasing, with many users in the nation favoring mobile devices. Over 700 million cellphone accounts now exist in India, The New York Times said.

Read the original here

For more details visit https://cis-india.org/news/india-can-restrict-objectionable-web-content

Iraqi Minister meets Secretary, Indian Ministry of Panchayat Raj

praskrishna — 2011-05-01T03:52:26Z

His Excellency Mr. Abdul Kareem El-Samarai, the Iraqi Minister of Science and Technology was among 15 other senior bureaucrats from Iraq who met with Mr. ANP Sinha, Secretary, Ministry of Panchayati Raj to discuss the Ministry’s efforts at introducing ICT at the Panchayat level through its e-Panchayat initiatives. This was as part of their study tour to India in association with UNDP-Iraq and UNDP-India. They also met with Mr. Shankar Aggarwal, Additional Secretary, DIT earlier in the day who briefed them about the various aspects of the National e-Governance Plan envisaged by the Government of India to make government services accessible and affordable to all Indian citizens. This news was published by the Karnataka News Network on April 27, 2011.

"India-Iraq cooperation will extend beyond ICT to all other areas of governance within two months" announced Mr. El-Samarai in a separate meeting today as part of the study tour in Delhi convened by Communication Multimedia and Infrastructure (CMAI) Association of India in partnership with the Centre for Internet and Society, Bangalore.

The meeting was also attended by top level telecom officials of the country including Mr. Satya Pal, Advisor to the DoT, Mr. NK Goyal, President, CMAI, Mr. B.M. Baveja, Senior Director and Group Head, Ministry of IT and Mr. S.N. Gupta, Chief Regulatory Officer, BT Telecom among others. Mr. El-Samarai emphasised that Iraq’s newly elected Government is stable and is taking all efforts to use ICT to provide basic services to Iraqi citizens apart from forwarding reforms in health and educational sectors. He stressed on the need for Iraq’s neighbours to respect the sovereignty of the country and welcomed India’s cooperation in Iraq’s efforts in introducing e-governance initiatives and use of ICT in the country. "We look forward to cooperation with India in enhancing our national efforts at governance reform", he said.

"E-Governance is crucial to effect a higher growth rate in India – upto 12% - and ensure that the growth is inclusive and sustainable", said Mr. Aggarwal while noting that e-governance is not only electronic governance but also “empowered governance". The delegates were also addressed about the recent developments in the e-governance strategy of the government including formulation of the National e-Governance Plan, mobile governance and standardisation initiatives, and establishment of data centres and Citizen Service Centres (CSCs) across the country.

The delegation's visit to Delhi was followed by their visit to Bangalore last week in context of the ‘Building e-Iraq National e-Governance Strategy’ of the Iraqi Government which attempts to increase transparency and government accountability in Iraq through ICT in addition to providing better services to citizens through e-governance initiatives. “This visit is not an end in itself but the beginning of an expanded cooperation between Iraqi and Indian Governments in forwarding national efforts at development and reform through use of technology”, said Ms. Caitlin Wiesen, Country Director of UNDP-India.

The delegation visited the National Informatics Centre and got a glimpse of the technology used at the NIC to manage data integration and ICT infrastructure for the entire e-government framework of the country. They also got a direct experience of the technology as they interacted with the NIC officials at Gandhinagar and Chennai directly from the Delhi office through video conferencing technology. Mr. B.K. Gairola, Director General of NIC addressed the delegation about the functions of the NIC including infrastructure for GIS facilities, cyber security for government departments, establishment of data centres and MMPs executed by the NIC to strengthen e-governance processes in the country.

The delegation had a meeting with the Secretary, IT, Government of Delhi yesterday about the National Convergence Mission Plan. They had also visited Narayana Hrudayalaya, Bangalore One Centre and Azim Premji Foundation in Bangalore last week apart from other e-governance initiatives. “We really appreciate the efforts of UNDP in organising the study tour and we will take all efforts to strengthen the relationship that Iraq shares with India”, said Mr. El-Samarai. The last leg of the study tour included a meeting with Mr. Patrice Coeur-Bizot, UNDP Resident Representative who noted that 60 years of cooperation between UNDP-India and the Indian Government resulted in the first ever discussion on e-governance in India under the auspices of the UNDP. “I cannot stress enough on the importance of forging synergy of efforts between UNDP-India and the Iraqi e-Government initiative”, he said. The tour will be concluded by a reception hosted by the Country Representative, UNDP-India before returning to Baghdad.

For more details contact- krithika@cis-india.org (Krithika Dutta, Centre for Internet and Society-Bangalore)

Read the original news published by Karnataka News Network here

For more details visit https://cis-india.org/news/iraq-tour-of-india

We are anonymous, we are legion

The Second IJLT-CIS Lecture Series at National Law School, Bangalore

Speakers

Profiles of the Speakers

Usha Ramanathan

Malavika Jayaram

Vivek Durai

Professor (Dr.) Sudhir Krishnaswamy

New rules to ensure due diligence: IT dept

India Chills Online Speech

Limits to Privacy

Introduction

Constitutional Jurisprudence on Privacy

Vocabularies of Privacy Limitation

Privacy of Communications

Privileged Communications

Privacy of the Home: Search and Seizure Provisions

Privacy of the Body

Court-ordered Medical Examinations

Reproductive Rights

DNA Tests in Civil Suits

Bodily Effects — Fingerprints, handwriting samples, photographs, Irises, narco-analysis, brain maps and DNA

Privacy of Records

Conclusion

Notes

Digerati See Censorship in New Web Rules

Free expression

Privacy By Design — Conference Report

Introduction

Database architecture and privacy

Security vs. Privacy

The right to be forgotten and regulation of data

Data types and privacy

Changes in the relationship between the state and the citizen

Questions of ownership

Perceptions and expectations of privacy

Conclusion

India curbs on Bloggers and Internet

April 2011 Bulletin

Researchers@Work

Workshops organised in Bangalore

Digital Natives with a Cause?

Columns on Digital Natives

Digital Natives Newsletter

New Blog Entry by Samuel Tettner

Accessibility

Workshop organised in Hyderabad

Openness

Submission

New Blog Entry

Internet Governance

Featured

New Blog Entries

Study Tour

Featured Research

Interview

Workshops organized in Ahmedabad and Bangalore

New Blog Entries

Telecom

Column

News & Media Coverage

Follow us elsewhere

India's cyber cafes going porn-free

Thousands queue for iPad 2 across Asia

New internet rules open to arbitrary interpretation

India Puts Tight Leash on Internet Free Speech

India Can Restrict 'Objectionable' Web Content under New Rules

Iraqi Minister meets Secretary, Indian Ministry of Panchayat Raj