We are anonymous, we are legion

Net neutrality: Net activism packs a punch

praskrishna — 2015-05-09T09:02:03Z

For the first time in the history of internet campaigns in India, a protest movement has successfully changed the course of a debate without having to take to the streets. The net neutrality movement is being fought almost totally in the virtual world. Hashtag activism isn't new in India. In recent times, several big campaigns have been bolstered by the internet which helped mobilize mass support and kept people constantly updated on events. Pink Chaddi, Jan Lokpal and the Nirbhaya movements were some examples of successful on-the-ground campaigns that were galvanized by social media. But they still needed public action — dharnas, candlelight vigils and actual pink undies — to make a difference.

The article by Sandhya Soman was published in the Times of India on April 19, 2015. Pranesh Prakash was quoted.

But the ongoing battle for internet freedom has proved that clicktivism isn't just about passive engagement with a cause. While it's all too easy to 'like' a cause, leading to what David Carr describes as "favoriting fatigue" in an article in the New York Times, some clicks can count in the real world.

It all started when the Telecom Regulatory Authority of India (Trai) posted a vaguely worded and complicated discussion paper on net neutrality and called for public responses to it. "Clearly, many people understood that some of the proposals put forward by Trai in its paper threatened the internet as they knew it," says Anja Kovacs, who directs the Internet Democracy Project and has closely followed online activism in India.

Soon, an unlikely collective of techies, lawyers, journalists and even stand-up comics had banded together. Some of them — such as tech entrepreneur Kiran Jonnalagadda and journalist Nikhil Pahwa — had been writing and tweeting about the issue for a while but the Trai paper galvanized them. "I dropped everything and asked for help. Kiran, (lawyers) Apar Gupta amd Raman Chima, Sandeep Pillai, standup group All India Bakchod and several Reddit India users (some of whom remain anonymous), started getting involved," says Pahwa, who is the founder of Medianama. The only common factor was their love for internet and an acute worry what this policy consultation might do to destroy its open and equal nature.

Though scattered across India, once they came together online, this 'apolitical collective' was able to rope in engineers, developers, open source activists, entrepreneurs, policy experts, lawyers and journalists as volunteers.

The best way to counter propaganda and opposition was to get people involved. An abridged version of the voluminous Trai paper was posted online, and a FAQ section created on a public Google Doc. "Many came forward to answer the questions and that exercise helped create an understanding of the situation," explains Pahwa. By the time, Jonnalagadda and a few other developers set up the savetheinternet.in website by April 1, there was enough information and data points. Lawyers Gupta and Chima had also decoded the legalese and prepared cogent answers to Trai's 20 questions. This was turned into a ready-to-use email template for users to hit 'send'.

And send they did. The flood of emails to the Trai inbox number is already 803,723 and counting. The results of the social media backlash are evident — with e-commerce retailer Flipkart pulling out of Airtel Zero and several websites backing out of Facebook and Reliance's internet.org. "I was hoping to get around 15,000 responses to counter, say, 15 from the telecom lobby. Now, people make fun of me because I said that," laughs Pahwa. In this case, what also struck a chord was the idea of a bunch of young guys using tech to take on mismanagement by the older generation and corporate greed, says entrepreneur Mahesh Murthy. "We were telling them we like things on the internet as they are now."

But it is hard to sustain online outrage without an action plan, relentless groundwork and some comic warfare. So, when the contentious paper came out on March 27, the website was followed by AIB's punchy video that decoded the concept and took irreverent potshots at those who wanted to limit access while urging people to write to Trai. A lot of the lessons for the campaign came from the US where a John Oliver video turned the tide in the net neutrality debate. "We had seen that several people don't take internet petitions seriously. Also, we wanted to follow the proper legal course in this issue and not hold dharnas," says Jonnalagadda.

It is also important for campaigns to result in doable action. As Kovacs points out, savetheinternet.in and netneutrality. in gave users practical tools to respond before the April 24 deadline. The team also kept clarifying doubts and complex concepts on social media and also had an AMA (ask me anything) chat on Scrollback on Saturday while the 'other side' stuck to big words and jargon.

Of course, like every movement, this one too has attracted criticism. The proneutrality band has been branded as socialist and utopian and there were intense arguments amongst supporters. "Disagreements and arguments are not unique to the activism online," says Pranesh Prakash, policy director at Centre for Internet and Society.

Earlier in the debate, Prakash had said he'd received strong pushback from friends and allies when he spoke about the possible benefits of non-competitive zero rating, an example would be allowing companies to offer free access to their sites and apps via an arrangement with a telecom company — if effective competition exists. Airtel Zero and Reliance's Internet.org claim to do the same though most supporters remain critical. Says Prakash: "There might've been differences. But the fact that a lot of people are thinking about effects of 'free', and comparing it to predatory pricing shows that #savetheinternet is one of the better examples of engaged activism."

Online campaigns have previously also successfully mobilized people to get involved in issues they do not know much about, says author Nilanajana Roy, who is an influential voice on Twitter. The J&K flood relief efforts last year started on Twitter but got volunteers moving on the ground, she says. "People don't always realize what they care strongly about so, despite the risk of compassion fatigue or armchair volunteerism, it's worth having some online activism," says Roy.

Meanwhile, those behind the savetheinternet campaign are struggling with their new-found identity as "activists". "I think of myself as a venture capitalist and marketing consultant, not a khadi kurta-jholawala from JNU," says Mahesh Murthy, among those who strongly support the movement.

And at the end of the day, most of these activists would like to go back to their cubicles, free to browse or start a business. But not before they've tried to keep the internet open.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch

Net Neutrality: India is a Keybattle Ground

praskrishna — 2015-09-20T07:08:42Z

Hardnews talks to Sunil Abraham, the executive director of the Centre for Internet and Society (CIS), about the future of the Internet in India.

The article by Abeer Kapoor was published in Hardnews on August 10, 2015.

There are competing definitions of net neutrality. What do you think an Indian definition of net neutrality should be?
It should be driven by an empirical understanding of the harms and benefits for Indian consumers. Any regulation should be based on evidence of harm. Forbearance should be the first option for any regulator. The second option is mandating transparency. The third option, as (Managing Director of the World Dialogue on Regulation for Network Economies Programme) William Melody says, should be raising competition before we consider other more intrusive regulatory measures such as price regulation, mandatory registration and licensing, etc. Telling network administrators how to run their networks should be the very last option we consider. Ideally, the Competition Commission of India should have started an investigation into the competition harms emerging from network neutrality violations. There are other harms emerging from network neutrality violations, such as free speech harms, diversity harms, innovation harms and privacy harms. These residual elements should have been the focus of the TRAI (Telecom Regulatory Authority of India) consultation paper process, the DoT (Department of Telecommunications) panel process and the consultations of the parliamentary standing committee.

There are certain rights that are essential, like privacy. How do you think the right to privacy will play into the definition of Indian net neutrality?
Deep packet inspection – which is a method that is used to manage Internet traffic and walled garden access via mobile applications – causes significant privacy harms and gives rise to a range of security vulnerabilities. These cannot be directly addressed in network neutrality policy. On privacy and security, it is not clear that the Indian situation is different from the global trend, so it is unlikely that we will have an India-specific privacy language in our network neutrality policy.

Privacy harms caused by network neutrality violations have to be addressed by enacting the privacy bill into law. The Department of Personnel and Training (DoPT) has been working on this Bill for the last five or six years. The latest draft has implemented the recommendations of the Justice AP Shah Committee. The last leak of the privacy Bill revealed that the DoPT has included the nine principles identified by the Shah Committee Report on Privacy. We hope that the government will introduce this Bill at the earliest. Section 43A of the IT Act may also need to be amended to address all the nine privacy principles.

The report drafted by DoT on net neutrality is ambiguous and almost reluctant to take a stand. What are the key points of this report?
The DoT panel report does take a stand. It clearly identifies network neutrality as a policy goal. Unfortunately, the panel did not provide its own definition of network neutrality, but instead quoted a definition submitted by civil society activists who testified before it without explicitly adopting it. The panel report examines zero rating and legitimate traffic management in quite a bit of detail and does prescribe some regulatory decision trees to the policymakers. When it comes to specialised services and walled gardens there could have been more detailed and specific recommendations. The biggest disappointment in the report is the call for licensing of those OTT (Over the Top) service providers that provide equivalent services to those provided by telcos. While the need to address regulatory arbitrage from the perspective of privacy and surveillance law may be virtuous, it may not be technically feasible to do so, especially if there is end-to-end encryption. Also, regulatory arbitrage could be addressed by reducing regulations for telcos rather than increasing them for OTT providers.

Do you think licensing and regulation of OTT services such as Google and WhatsApp are a necessity?
It is a myth that they exist in a regulatory vacuum. Many regulations do apply to them and a few of them do comply with Indian authorities on issues like speech regulation, legal interception and also data access. With competition law and taxation there is very little compliance. The trouble is not that there are regulatory vacuums, but rather that these services operate from foreign jurisdictions. Without offices, servers and human resources within the Indian jurisdiction it is very difficult for the courts to implement their orders, and for law enforcement to ensure compliance with Indian laws. This jurisdictional challenge affects most developing countries and not just India, and can only be solved by harmonising procedural and substantive law across jurisdictions, through the spread of soft norms, development of self-regulatory mechanisms using the multi-stakeholder models and through the creation of international law through various multilateral and pluri-lateral bodies.

The report reduces the neutrality debate to ‘access.’ Do you think this approach is reductive?
Access is very important in the Indian context so I don’t see how that is reductive. Many observers believe that the next round in the war for network neutrality will happen in the global South. India is a key battleground – what happens here will have global impact and implications. Network neutrality policies need to consider free speech, privacy, competition, diversity and innovation goals of the markets they seek to regulate. If we are not being doctrinaire about network neutrality we could adopt what (Professor of Internet & Media Law at the University of Sussex) Chris Marsden calls forward-looking “positive net neutrality” wherein “higher QoS (Quality of Service) for higher prices should be offered on fair, reasonable and non-discriminatory [FRAND] terms to all comers”. FRAND, according to Prof. Marsden, is well understood by the telcos and ISPs (Internet Service Providers) as it is the basis of common carriage. This understanding of network neutrality allows for technical and business model innovation by ISPs and telcos without the associated harms. There are zero-rating services being launched by Mozilla, Jaana, Mavin and others that are attempting to do this. I do not believe that they violate network neutrality principles, unlike Airtel Zero or Internet.org.

While this report attempts to arrive at a middle ground between the TSPs and the OTTs, how is this going to reflect in the government’s ‘Digital India’ programme?
We know we have a policy solution when all stakeholders are equally unhappy. But we also need an elegant solution that is easy to implement. Scholars like (Associate Professor of Computer Science at Columbia University) Vishal Mishra have a theoretical solution based on the Shapley Value, that assumes a multi-sided market model, but this may not work in real life. Professor V. Sridhar of the International Institute of Information Technology, Bengaluru (IIITB) has a very elegant idea of setting a ceiling and floor for price and speed and also for insisting on a minimum QoS of the whole of the Internet. These ideas I have not heard in the American and European debate around network neutrality. I remain hopeful that the Indian middle ground will be qualitatively different, given that the structure and constraints of the Indian telecom sector are very different from that in developed countries. Ensuring network neutrality is essential to the success of Digital India. Unfortunately, the Digital India plans that we have heard so far don’t make this explicitly clear.

The Internet was never meant to be monetised. Do you think that private players are eating into a public good that is absolutely necessary for development?
I have never heard that statement before. The Internet, after its early history, has been completely built using private capital. The public Internet has always been monetised. Collectively, the individual entrepreneurs and enterprises that build and run the components of the Internet have created a common public good – which is the globally interconnected network. But the motivation for private capital behind maintaining and building their corner or component of this network has also been profit maximisation.

What has contributed to the growing need to regulate and administer the Internet?
Technical advancements and business model innovations have resulted in both benefits and harms and therefore there could be a rationale for regulation. But more regulation per se is not a virtue and does not serve the interest of citizens and consumers. Expanding the regulatory scope of government infinitely will only result in failure, given the limited capacity and resources of the State. Therefore, whenever the State enters a new area of regulation it should ideally stop regulating in another area. In other words, there is no clear case that the regulation of the Internet is needed to keep growing exponentially – as evolving technologies may require specific regulation – if the resultant harms cannot be addressed using existing law. In most cases, traditional law is sufficient to deal with crimes and offences online.

This story is from the print issue of Hardnews: August 2015

For more details visit https://cis-india.org/internet-governance/news/hardnewsmedia-august-10-2015-abeer-kapoor-net-neutrality-india-is-a-keybattle-ground

Net neutrality: Debate rages on

praskrishna — 2015-05-02T08:45:03Z

The article by Surabhi Agarwal was published in the Business Standard on April 11, 2015. Sunil Abraham gave his inputs.

Net neutrality campaigners have raised the pitch as the telecom regulator seeks public comments on the issue.

They argue any kind of discrimination will scuttle the Internet's growth in the country. Opponents claim technology may make it difficult for the government to stop network management.

A controversy was sparked after Bharti Airtel, the country's largest telecom operator, launched 'Airtel Zero' on Monday that allows companies to offer their applications to Airtel subscribers for free. The maker of the application pays the operator for the customer's free use. "It is wrong for me to have to pay Airtel or Vodafone money to access YouTube, Skype or any site they decide to charge for," Mahesh Murthy, founder of digital marketing agency Pinstorm, wrote in a blog on Wednesday. "What we do with bandwidth must be up to us, not up to some profiteering telecom tycoon," he added. Sachin Bansal, founder of e-commerce company Flipkart.com, on the other hand, tweeted, "When foreign companies do it in India - innovation. Indians do it - violation". Flipkart may have signed up with Airtel's Zero platform.

"Telecom companies are saying zero-rating websites (that are offered free like Facebook or Wikipedia) are cannibalising revenues from customers who used to pay for data earlier. It is also failing to convert non-data paying customers into paying ones, so it is not working for telecom companies," said a member of an Internet think tank who did not wish to be named.

The Telecom Regulatory Authority of India released a discussion paper on net neutrality in the last week of March and is seeking public comments by April 24 and counterviews by May 8.

Another Internet expert said people paying extra to visit select sites was like higher charges for high definition cable television. If net neutrality was restricted to price, consumers could decide what they wished to pay for, he added.

However, if websites or apps were blocked or telecom operators bumped up internet speed for certain services, the implications for innovation would be wider, he pointed out. "If the government is attempting to make a policy, it has to be as fair as possible," he said.

Sunil Abraham, executive director of the Centre for Internet Society, said ensuring network neutrality might be difficult, but the government could stop censorship and discrimination. "Competition usually resolves these issues. We have competition among telecom service providers and Internet service providers. This must be protected," he added.

For more details visit https://cis-india.org/internet-governance/news/business-standard-surabhi-aggarwal-april-11-2015-net-neutrality-debate-rages-on

Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

gautam — 2014-05-27T10:21:24Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo: “the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case, Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

“What is, therefore, required is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.”

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “to earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.”

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirement of Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

For the previous post, please see: http://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2.

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Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he will be blogging on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-2013-iii-conceptions-of-free-speech-and-democracy

Net Neutrality, Free Speech and the Indian Constitution - II

gautam — 2014-04-29T07:42:40Z

In this 3 part series, Gautam Bhatia explores the concept of net neutrality in the context of Indian law and the Indian Constitution.

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

“In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only a space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

For more details visit https://cis-india.org/internet-governance/blog/-neutrality-free-speech-and-the-indian-constitution-part-2

Net Neutrality, Free Speech and the Indian Constitution - I

gautam — 2014-04-29T08:03:57Z

In this post, I will explore net neutrality in the context of Indian law and the Indian Constitution.

Let us take, for the purposes of this post, the following definition:

“The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.”

In other words, put simply, net neutrality in its broadest form requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. In its broadest and absolutist form, net neutrality is highly controversial (including arguments that existing status quo is not neutral in any genuine sense). I take as given, however, that some form of net neutrality is both an important and a desirable goal. In particular, intentional manipulation of information that is available to internet users – especially for political purposes – is, I assume, an undesirable outcome, as are anti-competitive practices, as well as price-discrimination for the most basic access to the internet (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCC. The Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

“The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12:

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’t directly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

“What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.”

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.

For more details visit https://cis-india.org/internet-governance/blog/net-neutrality-free-speech-and-the-indian-constitution-part-1

Net Neutrality Resources

praskrishna — 2017-04-22T09:11:21Z

Submissions by the Centre for Internet and Society to TRAI and DoT, 2015-2017.

Submission for TRAI Consultation on Regulatory Framework for Over-the-Top Services (June 29, 2015)
Submission to TRAI Consultation on Differential Pricing (January 7, 2016)
Counter Comments to TRAI on Differential Pricing (January 14, 2016)
TRAI Consultation on Differential Pricing for Data Services: Post-Open House Discussion Submission (January 25, 2016)
Submission to TRAI Consultation on Free Data (June 30, 2016)
Submission to TRAI Consultation on Proliferation of Broadband through Public WiFi Networks (August 28, 2016)
Submission to TRAI Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks (December 12, 2016)
Submission to TRAI Consultation on Net Neutrality (April 18, 2017)

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality-resources

Net neutrality debate rages

praskrishna — 2015-05-08T14:45:34Z

While Airtel has put out a statement on the pull out by Flipkart, other operators are playing a cautious game.

The article by Lalatendu Mishra and Pradeesh Chandran was published in the Hindu on April 15, 2015. Pranesh Prakash gave his inputs.

It’s a major victory for the proponents of net neutrality and a big setback for service provider Airtel. As the e-commerce firm Flipkart pulled out of talks on joining the controversial Airtel Zero platform, launched by Airtel last week, the debate on net neutrality has taken a fresh turn in the Indian context. In the wake of a virtual uproar in social media and following wide condemnation by votaries of net neutrality, Flipkart has to just give in. With Flipkart-induced new twist in the net neutrality game, the Internet Service Providers (ISPs), mostly telecom operators, are running for cover without knowing how to deal with the evolving situation that has the potential to adversely affect their business.

While Airtel has put out a statement on the pull out by Flipkart, other operators are playing a cautious game. And, they are unwilling to comment on a subject that has become an emotive issue. There are, however, voices which seek a middle path as solution to this issue.

“We are in favour of net neutrality. But this has to be defined in the Indian context. That is what TRAI is precisely doing. The debate on net neutrality is appropriate and important. All stakeholders should be able to decide what is net neutrality for India after due debate,” said Rajan Mathews, Director-General, Cellular Operators Association of India (COAI). “We must have a holistic approach to this issue. There should be rational debate, and we are committed for open and non-discriminatory Internet,” Mr Mathews added. A thought must go into protecting the interest of telecom operators as well, he felt.

While supporting net neutrality, analysts have voiced concern over its impact on the finances of telecos. “Net neutrality is a fair concept but it must take into account the concerns of telecom operators and ensure that their revenue and margins are not significantly impacted,” said Rajiv Gupta, Partner and Director, BCG. “Some kind of middle path needs to be achieved,” Mr Gupta said. Only a few countries so far have made net neutrality into a law. “We are yet to see whether our government’s moral support for net neutrality can translate into a law,” Mr Gupta added.

Surprisingly, Airtel which has come under flak on two occasions in last four months for alleged violation of net neutrality norms, too, has pledged its support for net neutrality! “Airtel fully supports the concept of net neutrality. There have been some misconceptions about our toll free data platform Airtel Zero. It is a not a tariff proposition but is an open marketing platform that allows any application or content provider to offer their service on a toll free basis to their customers who are on our network… The statement made by Flipkart regarding their decision not to offer toll-free data service to their customers is consistent with our stand that Airtel Zero is not a tariff proposition. It is merely an open platform for content providers to provide toll free-data services,” Airtel said. Without spelling out the future of Airtel Zero, it said “The platform remains open to all companies who want to offer these toll free data services to their customers on a completely non-discriminatory basis.” Over 150 start-ups have already expressed willingness to come on board Airtel Zero.

Pranesh Prakash, Policy Director, Centre for Internet and Society, said, “The need for net neutrality is very real and urgent. There are many practices that telecom companies are trying to engage in, such as blocking of WhatsApp to force customers to pay more money for it, which ought not to be allowed.” On Airtel Zero plan, he said “We should clearly separate out the issue of "zero rating" from that of "net neutrality". ``Only anti-competitive instances of zero-rating - for instance, Airtel offering it's own Hike service for free, or Airtel entering into an exclusive deal with Flipkart for zero-rating its app — are problems. Competitive zero-rating, with regulatory safeguards to ensure a fair and efficient marketplace, should be allowed, just as we allow free TV channels and allow toll-free numbers. Banning is akin to a brahmastra in a regulator's arsenal: it should not be used lightly,” Mr Prakash said.

No such plans: Snapdeal

Snapdeal said, “We have no such plans at this point, especially given the regulatory framework is unclear.’’

Zero rating is a practice among mobile network operators, where customers are not charged for a certain volume of data by specific applications or internet services.

An Amazon spokesperson said, “Amazon supports net neutrality - the fundamental openness of the Internet - which has been so beneficial to consumers and innovation.”

Earlier, Facebook and Reliance Communications had partnered for Internet.org. Reliance had announced in 2012 that it would offer free Facebook and WhatsApp for Rs 16 a month, without any additional data costs.

Amidst the debate on net neutrality, Telecom Minister Ravi Shankar Prasad said a six-member panel had been constituted by the telecom department to submit its recommendations regarding the same by early next month.

Start-ups for net neutrality:

Sumit Jain, Co-Founder & CEO, CommonFloor.com

“It’s well acknowledged that Internet has disrupted the world of business like no other technology has in last few decades. It has enabled start-ups with hardly any capital and clout to make a mark. So by rejecting net neutrality, we will be shutting the door on the entrepreneurial aspirations of millions and will leave telcos to play the gate-keeper to a valuable resource as the Internet and challenges the democratic behaviour that Internet in known for”.

Sameer Parwani, CEO & Founder, CouponDunia

“We will stand for net neutrality. India has been in the forefront of digital world. It is the Internet that has given the country hope and aspirations to the common man to be informed and entertained. Not being able to give equal access will just make the situation anti- competitive and it will have a negative effect on the upcoming businesses.”

Kashyap Vadapalli, Chief Marketing officer, Pepperfry

“Lack of net neutrality supports a monopolistic market which will adversely affect the growing start-up eco-system. While heavily funded businesses will be able to maintain their supremacy over consumers start-ups will stand to lose out heavily. We do not encourage discrimination of any sorts when it comes to consumer's access to information.”

Yogendra Vasupal, Founder of Stayzilla

“Airtel Zero seems like an innovative solution to bring Internet to every person. Whether this is on a firm footing or a slippery slope will be decided by the actual implementation. The current way of individual companies buying Internet for their consumers is a slippery slope. The right way to do it would be through a central consortium formed from the e-commerce companies and who has the interests of both the start-ups in this sector and the end-users in mind. After all, Internet is all about freedom of choice. Keeping in mind that currently it would be free only if you use a particular company makes it free at the cost of the freedom of choice it offers. This is everyone's loss.”

Ritesh Agarwal, CEO, OYO Rooms

“Net neutrality is absolutely essential for a free and competitive market especially now since there is a start-up boom in the country particularly in the online sector. Most importantly, Internet was created to break boundaries and as concerned industry players, we should maintain that. We support net neutrality and will do all needed to build this further.”

For more details visit https://cis-india.org/internet-governance/news/the-hindu-lalatendu-mishra-pradeesh-chandran-april-15-2015-net-neutrality-debate-rages

Net Neutrality debate in India: Here are all the arguments you need to know

praskrishna — 2015-05-09T08:01:20Z

While online activists and even big Internet companies have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

The article by Shruti Dhapola was published in the Indian Express on April 23, 2015. Pranesh Prakash gave his inputs.

If you are one of India’s active netizens, it is unlikely that the words Net Neutrality have escaped your daily dose of social media updates and news. The debate, which gained pace post AIB’s video on the topic and news of the Airtel Zero programme, has seen some of the biggest names in the Internet and media industries give their take on the issue. More importantly, last month India’s telecom regulator TRAI came out with a consultation paper on the growth of Over-the-top (OTT) players like WhatsApp or Skype and is looking at exploring a regulatory framework for these apps.

In essence, Net Neutrality implies that all Internet data pack should be treated equally, that there should be no fast or slow lanes for Internet, or that users should pay differently for accessing some websites. While online activists and even big Internet companies in India like ClearTrip, Flipkart, have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

For starters, in a country like India, Net Neutrality has vast implications, especially for start-ups many of whom are dependent on the medium for the success of their business. A neutral Internet means a level playing field.

Rishabh Gupta, COO, Housing.com, says, “Net neutrality has played a significant role in keeping the internet a level-playing field, simplifying customer outreach for businesses across industries. Further, the platform has encouraged new age entrepreneurs to bring in innovative business models making technology as an integral part of business; be it banking, mobile payments, e-commerce, real estate, etc.”

Manav Sethi, Group CMO, Askme adds that “any violation of Internet Neutrality can have a serious bearing on effective and fair competition in the market place”.

“We feel it is the government’s responsibility to ensure a level playing field for home grown entrepreneurs and at the same time protect the interests of netizens,” says Sethi.

Where licensing is concerned, Internet activists have also pointed out that this just won’t work. Pranesh Prakash, Policy Director at Centre for Internet and Society in India, says that India just can’t go back to the licensing days.

“OTT players aren’t just your Facebook or Viber, it’s the entire Internet. For instance with WebRTC protocol coming in you can do peer-to-peer chat, video calls on Web browsers. How would TRAI propose to regulate this, there’s no central service. It might not be popular, but it is being used by some already.”

He says the telecos’ argument about loss revenue due to rise of OTT’s isn’t a legitimate one but adds that instead of going for more regulation TRAI can look to reduce some differential regulations for telecos to make things easier for them.

There’s also a growing belief that TRAI hasn’t acted fairly when it comes to its paper on OTTs. The Internet and Mobile Association of India (IAMAI) has slammed TRAI saying OTTs are already regulated and governed by the IT Act.

A statement issued by IAMAI President Subho Ray said: “It looks like TRAI, in its consultation paper, has copy-pasted from submissions of telcos. India has a robust and at times, overbearing IT Act.” Expressing support for Net Neutrality, his statement said, “the paper makes an assumption that Internet doesn’t come under any regulations, which is incorrect. All Internet companies are regulated by IT Act”.

IAMAI includes firms like Google, Facebook, Snapdeal, Ola, MakeMyTrip and Saavn as its members.

But TRAI has also come out to defend its the whole debate. TRAI chief Rahul Khullar had earlier told Indian Express, “There are passionate voices on both sides of the debate. And if that was not enough, there’s a corporate war going on between a media house and a telecom operator which is confounding already difficult matters.”

While TRAI’s paper has received criticism, it should be noted that the paper does devote a significant proportion to discussing Net Neutrality and the negative impact it could have if India overlooks the principle.

The paper says, “A policy decision to outright depart from “NN” (Net Neutrality) raises various antitrust and public interest issues. There are concerns that TSPs will discriminate against certain types of content and political opinions. Such practices may hurt consumers and diminish innovation in complementary sectors such as computer applications and content dissemination. Discriminatory pricing proposals, if implemented, could raise a variety of significant anti-competitive concerns.”

Discriminatory pricing proposals are what activists fear could take place if India abandons its stand on Net Neutrality, and users will be the one to suffer.

But there is counter-argument to the whole Net Neutrality debate. It states that in a country like India many still don’t have access to data or mobile Internet because it is expensive and that zero-ratings could be a possible solution.

Zero ratings ensure that a TSP or ISP could declare a service or an app as free, and usually these are services that the company has tied-up with. The Facebook-Reliance initiative under the Internet.org initiative is a Zero rating system, where the idea was to provide certain services like Facebook, ClearTrip, NDTV, etc for free for users in certain part of the country. A benevolent scheme no doubt, but a violation of Net Neutrality all the same. Thanks to the furor over Net Neutrality, ClearTrip and others have started pulling out of Internet.org.

Facebook CEO Mark Zuckerberg has defended Internet.org saying while network operators shouldn’t discriminate between services, “for people who are not on the internet though, having some connectivity and some ability to share is always much better than having no ability to connect and share at all. That’s why programs like Internet.org are important and can co-exist with net neutrality regulations.”

Zuckerberg isn’t the only one making an argument for Zero-rating apps. In a paper for Brookings Institute, Darrell M. West argues that zero-rating apps can actually help improve data access to those who can’t afford it.

As an example, the paper points out how “in Paraguay, an Internet.org project has generated an increase in “the number of people using the internet by 50% over the course of the partnership and [an] increase [in the] daily data usage by more than 50%.” In addition to this the paper says that, African nations have reported substantial upticks in Internet usage following introduction of Facebook Zero.

Interestingly, some countries like Chile have banned Zero ratings because they violate Net Neutrality. Pranesh Prakash says that the argument given in favour of ‘zero ratings’ is a bogus one.

Prakash says, “Exclusive deals like Flipkart-Airtel, or Reliance or Facebook or even free Wikipedia, end-up becoming anti-competitive. Discriminatory deals should not be allowed or those that become anti-competitive under Section 3 of Competition act should not be allowed.”

“If zero-rating can exist in an environment of competition, only then it’s a good thing,” he adds.

But government stepping-in isn’t entirely unexpected. Sajai Singh, Partner at J Sagar Associates Law Firm, points out that the government has now woken up to a new disruptive technology. He gives an example of cable television saying that when it first came up in India, the government had no laws to deal with cable.

“This is another example of the government playing catch up and it happens all across the world. It’ll happen more often with newer disruptive technologies like robotics, artificial intelligence. For instance, when the driverless car comes the government will have to bring in some legislation,” he adds.

For now, TRAI has received over 7-8 lakh comments on the discussion paper that they had first put up on their site on 27 March.

It is fair to argue that Net Neutrality has helped preserve the Internet’s free and open character in India and that a deviation from the same will hurt users the most. Then there’s the very real picture that India needs to provide Internet access to more of its citizens especially those who can’t afford it. For TRAI, treading a fine line between the two will prove to be a real challenge.

For more details visit https://cis-india.org/internet-governance/news/indian-express-april-23-2015-net-neutrality-debate-in-india

Net Neutrality and Privacy

divij — 2014-03-20T05:01:58Z

The highly contentious and polarising debate on net-neutrality will have a large impact on shaping the future of the internet and ultimately on the users of the internet. One important issue which needs to be prioritized while debating the necessity or desirability of a legal regime which advocates net-neutrality is its implication on privacy.

The principle behind net-neutrality, simply put, is that the data being transmitted to and from the user should be treated equally, i.e. that data carriage, at the level of ISP’s, should be ‘dumb’. This would mean that internet service providers cannot discriminate between different data based on the content of the data. Without the principle of net-neutrality being followed, ISP’s would become the ‘internet gatekeepers’, choosing what data gets to reach the end-user and how. There are many arguments for favouring or disfavouring net-neutrality, however, advocates of privacy on the internet should be wary of the possible implications of endorsing a non-neutral internet and allowing greater network management by ISP’s. So, how does the net-neutrality debate affect privacy?

It all depends upon what kind of network management ISP’s employ. Deep Packet Inspection (DPI) is a method of data inspection which allows the network manager to scrutinize data at the application level, and in real time. As compared to shallow packet inspection, which identifies based on headers like IP addresses or protocols like TCP and UDP, which are analogous to envelopes on a letter, DPI would be akin to having access to the contents. DPI-based network management can identify the programs, software and applications being used, and what they are being used for in real time. Unlike any ordinary online service provider ISP’s are in the unique position of having comprehensive access to all of their customers’ data. Allowing DPI-based network management for prioritizing certain data or applications, an almost certain outcome if net-neutrality is weakened, would mean that ISP’s would be able to intercept and scrutinize any and all user data, which would reveal substantial information about the user, and would be a serious blow to privacy. While DPI can have several benefits in its application (such as finding and fighting malware or viruses), but where it is used, must be for a targeted and legitimate aim. Even where DPI is not used, if network discrimination is allowed, based on a user-to-user basis it would require inspecting the IP addresses of the user, which can also be a problematic intrusion of privacy, especially since the ISP also has other data like addresses and names of users which it can use to identify them.

Privacy may not necessarily be affected through non-neutral internet systems, but in all probability, with the growth of systems like the DPI and commercial incentives for “gatekeeper ISP’s” who are in a position to profit greatly from an ability to scrutinize and discriminate between data, it is likely that it will. In India, though government ISP’s like MTNL and BSNL deny using DPI,[1] it’s likely that it is still applied by others, and that the government is aware of this (http://www.theinquirer.net/inquirer/news/2161541/indian-isps-block-104-websites). Even as the TRAI advocates and supports net-neutrality, Indian ISP’s seem to be heading the other way.[2] Before the trend becomes the norm, it’s high time for a comprehensive discussion about how policies should be framed for keeping the internet a more neutral, and more private, space.

References

Apar Gupta, TRAI(ing) to keep it neutral, http://www.iltb.net/2010/09/traiing-keep-it-neutral/
For a lay discussion on Deep Packet Inspection and net-neutrality, visit http://arstechnica.com/gadgets/2007/07/deep-packet-inspection-meets-net-neutrality/

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

Net Neutrality Advocates Rejoice As TRAI Bans Differential Pricing

subha — 2016-02-23T02:10:42Z

India would not see any more Free Basics advertisements on billboards with images of farmers and common people explaining how much they benefited from this Facebook project.

The article by Subhashish Panigrahi was published by Odisha TV on February 9, 2016.

Because the Telecom Regulatory Authority of India (TRAI) has taken a historical step by banning differential pricing without discriminating services. In their notes TRAI has explained, “In India, given that a majority of the population are yet to be connected to the internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users’ internet experience.” Not just that, violation of this ban would cost Rs. 50,000 every day.

Facebook planned to launch Free Basics in India by making a few websites – mostly partners with Facebook—available for free. The company not just advertised aggressively on bill boards and commercials across the nation, it also embedded a campaign inside Facebook asking users to vote in support of Free Basics. TRAI criticized Facebook’s attempt to manipulate public opinion. Facebook was also heavily challenged by many policy and internet advocates including non-profits like Free Software Movement of India and Savetheinternet.in campaign. The two collectives strongly discouraged Free Basics by moulding public opinion against it with Savetheinternet.in alone used to send over 2.4 million emails to TRAI to disallow Free Basics. Furthermore, 500 Indian start-ups, including major names like Cleartrip, Zomato, Practo, Paytm and Cleartax, also wrote to India’s Prime Minister Narendra Modi requesting continued support for Net Neutrality – a concept that advocates equal treatment of websites – on Republic Day. Stand-up comedians like Abish Mathew and groups like All India Bakchod and East India Comedy created humorous but informative videos explaining the regulatory debate and supporting net neutrality. Both went viral.

Technology critic and Quartz writer Alice Truong reacted to Free Basics saying; “Zuckerberg almost portrays net neutrality as a first-world problem that doesn’t apply to India because having some service is better than no service.”

The decision of the Indian government has been largely welcomed in the country and outside. In support of the move, Web We Want programme manager at the World Wide Web Foundation Renata Avila has said; “As the country with the second largest number of Internet users worldwide, this decision will resonate around the world. It follows a precedent set by Chile, the United States, and others which have adopted similar net neutrality safeguards. The message is clear: We can’t create a two-tier Internet – one for the haves, and one for the have-nots. We must connect everyone to the full potential of the open Web.”

There are mixed responses on the social media, both in support and in opposition to the TRAI decision. Josh Levy, Advocacy Director at Accessnow, has appreciated saying, “India is now the global leader on #NetNeutrality. New rules are stronger than those in EU and US.”

Had differential pricing been allowed, it would have affected start-ups and content-based smaller companies adversely as they could never have managed to pay the high price to a partner service provider to make their service available for free. On the other hand, tech-giants like Facebook could have easily managed to capture the entire market. Since the inception, the Facebook-run non-profit Internet.org has run into a lot of controversies because of the hidden motive behind the claimed support for social cause.

For more details visit https://cis-india.org/internet-governance/blog/odisha-tv-february-9-2016-subhashish-panigrahi-net-neutrality-advocates-rejoice-as-trai-bans-differential-pricing

Net neutrality advocates hail Trai verdict

praskrishna — 2016-02-14T11:16:45Z

Facebook 'disappointed' with the ruling on differential pricing.

The article by Alnoor Peermohamed appeared in the Business Standard on February 9, 2016. Pranesh Prakash gave inputs.

India has demonstrated what a forward looking and pro-net neutrality policy looks like, experts and net neutrality advocates said after the Telecom Regulatory Authority of India (Trai) turned down a proposal to allow differential pricing services to function in the country.

“This ruling has happened in the face of enormous lobbying on the one side by very large companies and a ragtag bunch of people on the other. In spite of that, to see the right thing has prevailed, which is in the national interest and not what was masqueraded as national interest is very gratifying. This has not often taken place in policy making in India,” says Sharad Sharma, convenor, iSPIRT, a lobby group for indigenous software product firms.

Net neutrality activists across the world have lauded Trai’s decision not to allow large firms such as Facebook and Airtel to divide the Internet and offer selected services for free to consumers. The one year-long fight that began when Airtel proposed to offer internet companies the chance to offer customers their services for free, ended in Trai stipulating fines of Rs 50,000 a day for companies offering differential pricing services, which is capped at Rs 50 lakh.

“This has resulted now in the most expensive and stringent regulation on differential pricing that exists anywhere in the world. Activists around the world would be looking to India and will definitely be using this landmark order to fight against zero rating elsewhere,” said Pranesh Prakash, policy director at the Centre for Internet and Society (CIS), a think tank.

Facebook, which was one of the biggest stakeholders in the drive to allow differential pricing services in the country, said it was disappointed with the ruling. The firm has been accused of supporting net neutrality in the US, but standing in its way in India to get permissions to provide its Free Basics platform in India.

“Our goal with Free Basics is to bring more people online with an open, non-exclusive and free platform. While disappointed with the outcome, we’ll continue our efforts to eliminate barriers and give the unconnected an easier path to the internet and the opportunities it brings,” Facebook said in a statement.

Nikhil Pahwa, founder of Medianama, who ran a campaign called Savetheinternet against Facebook’s Free Basics called this a victory to the youth of India, saying “this outcome indicates what happens when young people actually participate in a governance process”.

According to Pahwa, there’s far too much cynicism about governments not doing the right thing. “We hope this is the beginning of something new: of people believing that they can make a difference, and persevering towards helping form policies that ensure equity and freedom for everyone.”

He added: “There are many internet-related issues that have still to be looked at, especially internet shutdowns, censorship and the encryption policy. These impact all of us, and we should be ready to voice our point of view, and the government looks like it is listening.”

India’s software sector lobby group Nasscom, which had stood against Facebook’s Free Basics platform and for net neutrality in general congratulated Trai for its ruling to disallow zero-rating and differential pricing services in the country.

“Our submission highlighted the importance of net neutrality principles, non-discriminatory access and transparent business models aligned to the goal of enhancing internet penetration in the country. The Trai announcement resounds with the submission made by Nasscom and we would like to congratulate Trai for enshrining the principles of net neutrality,” R Chandrashekhar, president of Nasscom, said in a statement.

For more details visit https://cis-india.org/internet-governance/news/business-standard-february-9-2016-alnoor-peermohamed-net-neutrality-advocates-hail-trai-verdict

Net Neutrality across South Asia

praskrishna — 2016-02-27T08:09:29Z

The Centre for Internet & Society (CIS) and the Observer Research Foundation in association with Centre for Global Communication Studies, Annenberg School for Communication, University of Pennnsylvania and Internet Policy Observatory is organizing this event at the Observer Research Foundation's office in New Delhi from 10 a.m. to 5 p.m., on December 12, 2015.

Context

Net neutrality can broadly be understood as the principle of non-discrimination which in practice allows the internet to be free and open by preventing service providers from slowing or interfering with the transfer of data. Net neutrality has risen as a global policy issue, yet cultural, political, commercial, and economical factors influence how net neutrality is understood and addressed in a particular context. Indeed, the factors driving the net neutrality debate, the way in which governments are addressing net neutrality, the role and response of industry, the public response, and the role of civil society has been varied across contexts. The topic of net neutrality is not limited to a technical debate and brings together a number of issues including the right to access, the right to freedom of expression, fair competition practices, and privacy.

This conference seeks to bring together domain experts, industry, government, and civil society across South Asia to understand how net neutrality is understood in different contexts, how it is being addressed from a policy point of view, what the varying public dialogues around net neutrality are, and what role civil society can play in influencing the debate.

For more details visit https://cis-india.org/internet-governance/events/net-neutrality-across-south-asia

Net nanny meets muscular law

Admin — 2018-10-02T05:48:32Z

India’s new human-trafficking bill could criminalise sex workers and curtail free speech.

The article by Laxmi Murthy was published in Himal South Asian on September 26, 2018.

When conservative morality is armed with the law and prejudice is given legal validity, the state is transformed into a wet nurse cum security guard. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, passed on 26 July in the lower house of the Indian Parliament, represents a growing trend of increased state surveillance and control, and a carceral approach to dealing with non-compliance with overbroad and vague laws laced with prudery.

Trafficking in persons, as defined by the United Nations, is “the recruitment, transportation, transfer, harbouring or receipt of persons” by coercion, deception or the abuse of power or position for the purpose of exploitation. Human trafficking is considered to be a form of modern-day slavery and is outlawed in most countries.

Following the ratification of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in 1949, India enacted the Suppression of Immoral Traffic in Women and Girls Act 1956. However, nowhere was trafficking clearly defined in the law. The acronym of this law, SITA, seemingly deliberately modelled after Sita, the chaste wife of Rama from the epic Ramayana, reinforced the moralism already codified into law. Moving from suppression to prevention of ‘immoral’ trafficking took three decades, but the Immoral Traffic (Prevention) Act (ITPA), as the act was renamed in 1986, continued to prioritise morality over human rights, focusing its attention on raiding brothels and “rescuing and rehabilitating” sex workers, whether or not they wanted such intervention. Though sex work is not illegal per se in India – with some notable exceptions with respect to soliciting in public places – the ITPA views consensual adult sex work as a misnomer and approaches all women in sex work as victims in need of rescue. This ultimately criminalises even consenting adult sex workers by treating solicitation, brothel ownership and procurement as criminal activity.

Unfortunately, the 2018 trafficking bill has been drafted with this very mindset, and goes on to widen the scope to cover “aggravated” forms of trafficking, including trafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones for early sexual maturity among other things. It also includes in its ambit trafficking for the purpose of surrogacy, at a time when questions around commercial surrogacy and consent of surrogates have yet to be settled in Indian law.

The bill also aims to unify existing criminal law provisions on trafficking. The definition of trafficking in the Indian law is drawn primarily from Section 370 of the Indian Penal Code (IPC), which includes ‘any act’ of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude. Trafficking under this bill also includes begging and domestic work. However, critics of the bill, including a collective of sex-worker-rights groups and organisations working with bonded labour, children and adolescents under the banner of the Coalition for an Inclusive Approach on the Trafficking Bill, say that the bill, with its criminalised approach, will further stigmatise sex workers, transgender persons and beggars. The supposed ‘victims’ of trafficking would, therefore, be forcibly rescued, rehabilitated and repatriated, and denied their chosen residence as well as their means of livelihood. The elaborate anti-trafficking bureaucracy to be set up at district, state and national levels seems unwieldy and without representation of the communities it purports to protect.

Cross-purposes

The anti-trafficking bill embodies a constitutional conundrum: in attempting to fulfil the mandate under Article 23 of the Constitution – to protect persons from exploitation inherent in human trafficking – it can potentially violate fundamental freedoms, in particular, the freedom of speech and expression, a core protection guaranteed by Article 19.

According to Section 39 (2) of the bill, “Whoever solicits or publicises electronically, taking or distributing obscene photographs or videos or providing materials or soliciting or guiding tourists or using agents or any other form which may lead to the trafficking of a person shall be punished (emphasis added)”.

This provision, while intending to criminalise online soliciting, casts a wide net and prescribes penalties – rigorous imprisonment for a term of five to ten years and a fine between INR 50,000 (USD 700) and INR 100,000 (USD 1400) – for vaguely defined acts which may lead to trafficking. It is not necessary, as per this provision, to prove a direct causal link between these acts – such as distributing obscene photographs or providing materials – and the actual crime of trafficking. Such a broad brush is highly problematic and violates well-established tenets of criminal jurisprudence which require criminal intention (mens rea) along with the actual criminal act (actus reus). That is, a criminal act must be accompanied by a criminal intention. Without any burden to prove a causal link, anything deemed to potentially lead to trafficking can be proscribed – for example, any artistic work, academic publication or cinematic representation.

Sexually explicit content – text, audio and visual – has evoked deeply contentious opinions right from the time of the Kamasutra and the erotic sculptures of the Khajuraho temples. There is no one single position on pornography or obscenity among feminists, despite their shared concern about enhancing women’s rights and stopping exploitation. On the one hand, American feminist Robin Morgan’s famous pronouncement back in 1974, that pornography is the theory and rape is the practice, implying that pornography was directly responsible for violence and sexual abuse of women, influenced early feminists the world over, and continues to hold sway among sections of women’s rights advocates. However, while images undoubtedly impact on the human psyche, the causal links between pornography and rape are not established firmly enough to warrant censorship and bans. On the other hand, sex-positive feminists who celebrate varied expressions of sexual desire, especially female sexuality, advocates of feminist pornography (which is not seen as a contradiction in terms), adult entertainers and sex workers have practiced and theorised sexual desire and its many manifestations in ways that are undergirded by consent, respect, agency and autonomy, but not necessarily confined to contemporary social mores. Conversations around sexuality and desire have moved beyond criminalisation of what is considered deviant, but echoes of these conversations do not seem to have been heard in the corridors of the Parliament.

With the prevalent moral disapproval of pornography and adult entertainment, the phrase “taking or distributing obscene photographs or videos or providing materials” can easily be misinterpreted as leading to trafficking. The word ‘obscene’ is itself too subjective and culturally loaded a term to withstand rigorous legal scrutiny. It is a no-brainer that deciding what is aesthetically pleasing erotica and what is unacceptable pornography is in the eye of the beholder and is, therefore, subjective. Where there is no requirement to prove intention, or mens rea, any image or video deemed to be obscene can be censored. This could bring into its ambit online material, articles, literature, magazines as well as artists and their work, and consenting adult sexual interactions in the digital space including adult dating apps like Tinder or OkCupid.

It was only as recently as 2014 that India’s Supreme Court jettisoned the archaic Hicklin Test, which was developed in an 1868 case in England to determine whether specific material could “deprave and corrupt those whose minds are open to such influences”. This outdated standard was applied, for instance, in the landmark case of Udeshi v State of Maharashtra in 1964 to uphold the ban on the D H Lawrence classic Lady Chatterley’s Lover and to convict Ranjit Udeshi, a bookseller, under Section 292 of the IPC for distributing “obscene” material.

Half a century on, in 2014, Anand Bazaar Patrika, publishers of Sportsworld, a magazine which reprinted a nude photograph of tennis champion Boris Becker and his fiancée, won the case in the apex court which rejected the Hicklin Test. However, the court adopted a ‘community standards’ test derived from the 1957 Roth v United States case that determined what was obscene and was, therefore, unprotected by the First Amendment to the American Constitution that protects freedom of speech. The ‘community standards’ test has itself been challenged for its vagueness, since what is considered to have social importance is itself variable. In addition, the Supreme Court in the Sportsworld case allowed the nude photograph because, in the court’s view, it did not have “a tendency to arouse feeling or reveal an overt sexual desire”. The nude photograph of a white-skinned Becker with his dark-skinned fiancée was deemed to be in the public interest, as its intention was to cast a spotlight on racism and apartheid. However, the justification that the photo did not arouse sexual desire and was, therefore, acceptable, is both highly subjective and problematic in its criminalisation of sexual desire, in that it allows – without any evidence whatsoever – the dangerous possibility of nudity having a causal effect on violence.

Stormy seas and safe harbours

The Trafficking Bill 2018 in its “offences related to media” chapter, continues in its inexorable march towards criminalisation on the basis of vague definitions. According to Section 36, a person is said to be engaged in trafficking of person even if that person “advertises, publishes, prints, broadcasts or distributes, or causes the advertisement, publication, printing or broadcast or distribution by any means, including the use of information technology or any brochure, flyer or any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner.”

However, since “promoting trafficking or exploitation” has not been clearly defined, it makes room for different interpretations of liability. There is little in this provision that attempts to impose a clear, rigorous standard of evidence that could demonstrate direct cause. The Bengaluru-based non-profit Centre for Internet and Society (CIS) cautions that, under this clause, the likelihood of authors of adult material, videographers, filmmakers and internet sites being charged with promoting trafficking or exploitation is quite high, since the clause might build a legal link between hosting or producing pornography and trafficking.

Clamping down on internet freedom on the basis of obscenity is not new. In July 2015, the government banned 857 websites that it considered pornographic. This followed the Kamlesh Vaswani case in the Supreme Court where the then chief justice of India expressed his inability to order a ban as it would go against the right to personal liberty guaranteed in Article 21 of the Constitution. In their submission challenging the ban, and underlining the subjectivity in viewing and interpreting content, the Internet Service Providers Association of India (ISPAI) said, “one man’s pornography is another man’s high art”, making it impossible for them to ban any sites. The ISPs were later told that they should ban only sites showing child pornography, but they submitted that they neither created content nor owned it and that it was not possible for them to view content before hosting it. And therein lies one of the most controversial features of the trafficking bill.

The most pernicious provision of the bill, Section 41 (2), displays a complete lack of understanding of the manner in which the digital space functions. The section penalises anyone who “distributes, or sells or stores, in any form in any electronic or printed form showing incidence of sexual exploitation, sexual assault, or rape for the purpose of exploitation or for coercion of the victim or his family members, or for unlawful gain.”

As the CIS critique of the bill points out, digital infrastructure requires third party intermediaries to handle information during transmission, storage or display. As it is not always desirable or even practically possible to verify the legality of every bit of data that gets transferred or stored by the intermediary, the CIS points out, the law provides ‘safe harbours’ to protect intermediaries from liability, ensuring that entities that act as architectural requirements and intermediary platforms are able to operate smoothly and without fear. It must be noted that users who upload and initiate transfer of information online, are not always the same parties who are directly involved in transmission of content.

In India, immunity from liability or a ‘safe harbour’ for intermediaries involved with transmission or temporary storage of content is currently provided by Section 79 of the Information Technology Act 2000 (IT Act), on condition that they: (i) act as a mere ‘conduit’ and do not initiate the transmission, select the receiver of the transmission, or select or modify the information contained in the transmission and (ii) exercise due diligence, which has been defined under the law. The provision for safe harbours has also been tested in court, notably in the case of the virtual market Baazee.com (later acquired by eBay), which had hosted an advertisement for an ‘obscene’ video for two days before it was taken down. The court held that the IT Act would prevail over the IPC, and the managers could not be held liable for the content of the advertisement.

With Section 59 of the proposed trafficking bill set to override existing legislation, the provision of safe harbours under the IT Act will be in jeopardy. Notably, this move to prosecute internet intermediaries is in keeping with a worldwide trend. In April 2018, the United States President Donald Trump signed into law two controversial pieces of legislation aimed to tackle human trafficking online, which have grave implications for free speech. The US Congress bill, the Fight Online Sex Trafficking Act (FOSTA), and the Senate bill, the Stop Enabling Sex Traffickers Act (SESTA), have been welcomed by some as a victory for victims of sex trafficking. Alarmingly, however, the bills, better known by their acronyms FOSTA-SESTA, create an exception to the safe harbour rule, ie Section 230 of the 1996 Communications Decency Act (CDA). This provision, which is regarded as a landmark protection, says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” For over two decades, in the spirit of actualising the immense potential of the digital space to share information, ideas and opinions, this section has provided immunity for intermediaries, allowing users to freely generate content without making platforms and ISPs accountable for such content.

Under FOSTA-SESTA, however, websites are liable to be penalised for advertisements promoting consensual adult sex work, dating or escort services (such as Backpage.com or Craigslist) which could be deemed to promote trafficking. Sex-worker-rights activists in the US posit that such an unwarranted clampdown on these avenues through which adult sex workers could safely screen clients and avoid potentially dangerous situations, is putting them at risk.

Despite the protests against the impact of FOSTA-SESTA on the internet and free expression, parliamentarians in the United Kingdom seem set to follow a similar regulatory route. An All-Party Parliamentary Group (APPG) on Prostitution and the Global Sex Trade in July 2018 called for a ban on “prostitution websites”, by which they mean virtual advertising sites such as Vivastreet and Adultwork which host adult advertisements. Anticipating the same fallout as in the US, Amnesty UK tweeted, “Taking down these platforms will push sex workers deeper underground exposing them to greater risks of violence, exploitation and trafficking.”

Beyond criminalisation

According to Interpol, trafficking in human beings is a multi-billion-dollar international criminal industry, which is usually carried out for forced labour, sexual exploitation or for harvesting of tissue, cells and organs. Despite this recognition of the different motives for trafficking, the crime has largely been linked – in the popular imagination, media and, unfortunately, even law enforcement – to sexual exploitation. The thrust of anti-trafficking efforts in India, post-Independence, set the stage for decades of human-rights violations in the name of anti-trafficking, using an ineffective law that penalised victims more than traffickers. The proposed bill, with its ill-conceived criminalised regime, is likely to do more harm than good, and give rise to a repressive regime that is not in the interests of marginalised populations most vulnerable to traffickers. Not only is the bill unlikely to make any dent in the organised trafficking networks, but the fallout of its provisions policing the internet is also likely to hamper freedom of expression and consensual, adult sexual activity mediated through the digital space.

For more details visit https://cis-india.org/internet-governance/news/himal-south-asian-laxmi-murthy-net-nanny-meets-muscular-law

NET LOSS

praskrishna — 2012-06-25T06:15:06Z

Unless the IT Act is amended and the definition of ‘offensive’ online content clearly set out, attempts to gag the Internet will continue in our country, argues Abimanyu Nagarajan

The article was published in the Telegraph on June 20, 2012

Lately, the Indian government seems to be trying its best to control the Internet. In the past few weeks, dozens of file hosting or sharing sites have been blocked by court order. Earlier this year Union human resource development minister, Kapil Sibal, came down heavily on social networking sites and the Internet and waxed eloquent on the need to weed out “offensive” content there.

In fact, this week Google said that there was a 49 per cent increase in requests for content removal from India in the second half of 2011 compared to the first half. Of the 101 requests to take down 255 items, only five were made by the courts. The rest were by politicians and policemen.

In the now infamous cartoon case, a professor of Calcutta’s Jadavpur University was arrested for circulating a cartoon relating to chief minister Mamata Banerjee via email. One of the charges levelled against him was that he was culpable under Section 66A of the Information Technology Act, 2000.

Indeed, experts feel that the IT Act and its vague and loose definition of what constitutes “offensive” content on the Net or on a social networking site can easily be abused by those who wish to control online content.

Everything related to the Internet comes under the purview of the IT Act. As cyber law expert Pavan Duggal says, “The IT Act, 2000, covers all aspects pertaining to the use of computers, computer systems, computer networks, computer resources, communication devices as also data and information in the electronic format.”

Social networking sites and what gets posted there also come under the act. Section 2(1)(w) of the act uses the term “intermediary” to mean any legal entity that receives, stores or transmits a message, or provides any service with respect to that message on behalf of another person. By this definition social networking sites are “intermediaries” and there are strict sets of rules and guidelines listed under Section 43(a) of the act that they have to follow if they want to operate in India.

But what infuriates IT experts most is Section 66A of the IT Act, which leaves the term “offensive” utterly vague and fluid. It states: “Any person who sends, by means of a computer resource or a communication device (a) any information that is grossly offensive or has menacing character; (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device; (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.”

In addition, Rule 3 of the IT Intermediaries Guidelines, 2011, lays down that all Internet service providers, telecom companies, email and blogging services must take down content that is “harmful, harassing, blasphemous, defamatory…”. In fact, this provision allows you to send a takedown notice for any content that may have offended you and the item has to be deleted within 36 hours.

This is draconian, say IT experts. As Prashant Mali, a cyber law expert and president of Cyber Law Consulting, puts it, “The problem is that the offences listed under Section 66A are non-bailable, cognisable offenses. Technically speaking, since nothing is specific, you can always be arrested.”

Adds advocate Apar Gupta, a partner at law firm Advani and Company, “Section 66A is vague and stringent at the same time.”

The extent to which these provisions in the IT Act can be abused was recently demonstrated by the Bangalore-based Centre for Internet Society (CIS). Sunil Abraham, executive director of CIS, talks about how the group flagged content as being offensive on a variety of sites, even though they weren’t so.

“We sent takedown notices to e-commerce, content hosting, and news media sites,” recalls Abraham. “And in most cases, we found the intermediaries were very risk averse. For example, there was one site that was talking about game theory — a mathematics model on decision making. As part of the article, they had linked out to a few gambling sites to support their research. We sent notices saying that the site promoted gambling and was therefore offensive. They didn’t just remove the links, they took the whole site down.”

Mahesh Murthy, CEO of Pinstorm, a digital advertising firm, points out that this means individuals are being allowed to do what should ideally be done by a court of law. “People who are not part of the judiciary, who are not elected officials, are taking decisions on censorship.”

Gupta reveals that the sites are not even required to inform a user that their content is being taken down. “The content vanishes into a black hole. All they have to do is remove the flagged content within 36 hours of it being reported,” he says.

IT experts have been crying themselves hoarse demanding that the government amends the IT Act and clearly sets out definitions for what constitutes “offensive” content. As Duggal says, “It will do immense service to the nation if the IT Act, 2000, is amended so as to provide more definitions, illustrations and parameters of what constitutes offensive content. Since the act is silent on what constitutes offensive material, the scope for abuse of Section 66A remains wide open.”

So will the government heed the demand of cyber law professionals and other experts and amend the IT Act? That remains to be seen. But unless the government changes its posture vis-à-vis the Internet, and shifts from its position that it’s something that needs to be controlled, few believe that an amendment in this regard will be forthcoming any time soon.

For more details visit https://cis-india.org/news/net-loss