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Violence call key to 'sedition'

praskrishna — 2016-02-28T03:06:47Z

Words, whether spoken or shouted, that question or even malign the government cannot be labelled as sedition, unless they specifically incite violence, lawyers and human rights experts familiar with fundamental rights and sedition laws have said.

The article was published in the Telegraph on February 18, 2016

The experts say courts hearing allegations of sedition would be expected to analyse the context and intent to determine whether actions claimed by the prosecution as sedition fit its definition under the Indian Penal Code#(IPC) and various Supreme Court rulings.

Under Section 124A of the IPC, "whoever by words.... or by signs or visible representation or otherwise brings or attempts to bring into hatred, contempt or excites or attempts to excite disaffection towards the government established by law in India" may be punished. The section defines disaffection as "disloyalty and all feelings of enmity", but clarifies that comments that express even strong disapproval of government actions through lawful means without exciting or attempting to excite hatred, contempt, or disaffection are not an offence.

"It is not the actions alone that count, they have to be seen along with the mental ingredients behind those actions - it is the motive that determines the character of the actions," N.R. Madhava Menon, honorary professor at Bangalore's National Law School, told The Telegraph.

"The court would be expected to examine the facts and the evidence presented," he said. "It would ask questions such as, is there evidence for a conspiracy, who was behind the actions, was it an organised event, was it intended to subvert a legally established government?"

Experts say Supreme Court rulings over the decades have narrowed the scope of the sedition law. In a 1995 judgment, the court held that casual raising of slogans by individuals cannot be held as exciting or attempting to excite hatred or disaffection towards the government.

The court has ruled that only speeches intended to create disorder or disturbance or call for resorting to violence could be punishable under the section, said Ravi Nair, executive director of the South Asia Human Rights Documentation Centre, New Delhi.

In a 1962 judgment, the Supreme Court had limited the scope of Section 124A to incitement to violence or fostering public disorder, Gautam Bhatia, a Delhi-based lawyer and author of Offend, Shock, or Disturb, a book on free speech under the Indian Constitution has pointed out.

In a report for the non-government Centre for Internet and Society, Bhatia said other Supreme Court rulings had clarified#that that there needed to be a "direct and imminent degree of proximity" between the speech and expression and the breach of public order, and that the relation between the two should be like a "spark in a powder keg".

"Something the court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public which, in turn, could foster a disrespect for law and the state, and lead to breaches of public order," Bhatia wrote.Human rights analysts point out historical episodes in other countries where citizens have expressed intense opposition to government actions, without having charges of sedition filed against them.

"The protests in the US against the Vietnam War during the late 1960s and protests in the UK against the Falkland War in 1982 or more recently British involvement in the Gulf war are examples," Nair said. "Supreme Court rulings in India have narrowed the scope of the section on sedition to cover only actions that actually call for violence."

Nair said sedition should be seen as an anachronism in any mature democracy. India's sedition law was written during British rule, but the UK abolished its own sedition and seditious libel law in 2009.

For more details visit https://cis-india.org/internet-governance/news/the-telegraph-february-18-2016-violence-call-key-to-sedition

Why the Internet is Making India Furious

praskrishna — 2016-02-28T03:01:59Z

The Centre for Internet and Society (CIS) in Bangalore is a kind of hacker club for wonks and lawyers obsessed with issues of digital rights and global development. Not exactly the mainstream kids’ lunch table. But the Center was brought into sudden relief this week, thanks to … Mark Zuckerberg.

Read Sanjena Sathian's blog post published by Ozy on February 19, 2016

In a splashy bit of news, India’s telecom authority rejected a program called Free Basics, which the Facebook team had been promoting as a way to get free Internet to the masses. (Here on the subcontinent, more than 300 million people use the Internet — but that’s only about a quarter of the population.) The idea: Facebook would allow free access to a handful of websites (the “basics”) to everyone; users would pay for further content. The objections: On the dramatic end came comparisons to colonialism; on the wonkier, objections based on the principles of net neutrality, or the idea that all Internet content should be treated the same. The threat the critics saw in Free Basics was that of the Web as a two-lane highway — the free stuff for the poor folks, and the good stuff for those who can afford it.

Mumbai-based Sanjena Sathian spoke to CIS cofounder and policy director Pranesh Prakash about the changing landscape of web rights that led up to the news.

OZY:

Tell us what you’re thinking in the wake of India’s decision.

Pranesh Prakash:

The order seemed to fix the issue with a sledgehammer rather than a scalpel. It over-regulates and bans things that are beneficial along with that that aren’t. They should have aimed for discriminatory pricing, but they’ve instead eliminated all differential pricing, even when it’s not discriminatory.

What should come next, in my opinion — it is imperative to ensure that governmental resources are used to provide free access to the Internet. If you’ve taken away something that could have helped and said no, no, no, it’s not good for you, then you are under an obligation to provide a replacement.

OZY:

How do you think the larger political conversations going on in India right now seep into the debates about digital rights?

PP:

Many people think the largest divider is between those who are from a developing country or a developed country. I think the larger divide is between those who are politically skeptical of states — more libertarian — versus those who are more trusting of states and see states as having a role to play in Internet governance. How you think the poor in India should get Internet — should that be provided by government or by market mechanisms — well, your political philosophies will play a role. In India, one tends to find fewer free-market fundamentalists than one would meet in, say, San Francisco.

OZY:

I think, increasingly, post-Snowden in particular, people think of digital rights as human rights. Where do you see things going wrong on a rights front here in India?

PP:

Oh, wow … so many ways. In India we have a situation where, right now, more than 3,000 websites were blocked by the government, but no one knows what these sites are. No one knows whether they were blocked through mechanisms that ensure accountability. There is no transparency around any of these. And this is just the visible tip of the iceberg. And how do I know this? I sent a right-to-information request to the government and they gave me this answer. But beyond this, they put in place a few years ago a law which allows for websites and any kind of web content to be censored by anyone. And all they have to do is send a request to any “intermediary,” which could be anything from your ISP to your web host to your DNS provider.

OZY:

Wait, so what does that mean? I get annoyed at a site — where do I go to lodge my complaint?

PP:

All these websites are required by the law to appoint a particular person as a “grievance redressal officer.”

OZY:

What a title!

PP:

Yes … and there are more than 40 grounds for grievances that have been listed in the law, including things such as “causing harm to minors” and certain speech being “disparaging.” Now, I engage in disparaging speech at least 12 times a day. And that’s perfectly legal under Indian law!

OZY:

Eep. Any good news, though?

PP:

A case went all the way up to the Supreme Court, [involving a young woman named] Shreya Singhal. There was a section 66A, quite an odious provision, that allowed for any kind of “offensive” or “annoying” speech to cause that person to be put in prison for up to three years.

Two teenage girls in Maharashtra, upon the death of a politician, put out a comment on social media. The death had caused a bandh, a curfew of sorts in Mumbai, and done not officially by the government but by political party workers. One girl said on Facebook, sure, go ahead, respect this politician, but why inconvenience so many citizens? Her friend liked this. And a case was launched against them. Similarly, some cartoons by an anticorruption activist were challenged and he was imprisoned briefly and released on bail.

OZY:

It’s always the cartoonists.…

PP:

Yes, and one professor in Calcutta — for forwarding a cartoon, he was placed under this law too. Many cases of perfectly fine political speech were made illegal thanks to this law. Eventually, though, in a landmark decision, the Supreme Court struck down this law, and this is the first time in almost three decades that the Supreme Court has struck off an entire law for being unconstitutional.

But, yes. Mostly? It’s not been pretty.

For more details visit https://cis-india.org/internet-governance/news/ozy-february-19-2016-sanjena-sathian-why-internet-is-making-india-furious

Comments by the Centre for Internet and Society on the Report of the Committee on Medium Term Path on Financial Inclusion

vipul — 2016-03-01T13:53:38Z

Apart from item-specific suggestions, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

The Centre for Internet and Society (CIS) is a non-governmental organization which undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives.

In the course of its work CIS has also extensively researched and witten about the Aadhaar Scheme of the Government of India, specially from a privacy and technical point of view. CIS was part of the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee and was instrumental in drafting a major part of the report of the Group. In this background CIS would like to mention that it is neither an expert on banking policy in general nor wishes to comment upon the purely banking related recommendations of the Committee. We would like to limit our recommendations to the areas in which we have some expertise and would therefore be commenting only on certain Recommendations of the Committee.

Before giving our individual comments on the relevant recommendations, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.

Another problem with linking bank accounts with Aadhaar numbers, even if it is not mandatory, is that when the RBI issues an advisory to (optionally) link Aadhaar numbers with bank accounts, a number of banks may implement the advisory too strictly and refuse service to customers (especially marginal customers) whose bank accounts are not linked to their Aadhaar numbers, perhaps due to technical problems in the registration procedure, thereby denying those individuals access to the banking sector, which is contrary to the aims and objectives of the Committee and the stated policy of the RBI to improve access to banking.

Individual Comments

Recommendation 1.4 - Given the predominance of individual account holdings, the Committee recommends that a unique biometric identifier such as Aadhaar should be linked to each individual credit account and the information shared with credit information companies. This will not only be useful in identifying multiple accounts, but will also help in mitigating the overall indebtedness of individuals who are often lured into multiple borrowings without being aware of its consequences.

CIS Comment: The discussion of the committee before making this recommendation revolves around the total incidence of indebtedness in rural areas and their Debt-to-Asset ratio representing payment capacity. However, the committee has not discussed any evidence which indicates that borrowing from multiple banks leads to greater indebtedness for individual account holders in the rural sector. Without identifying the problem through evidence the Committee has suggested linking bank accounts with Aadhaar numbers as a solution.

Recommendation 2.2 - On the basis of cross-country evidence and our own experience, the Committee is of the view that to translate financial access into enhanced convenience and usage, there is a need for better utilization of the mobile banking facility and the maximum possible G2P payments, which would necessitate greater engagement by the government in the financial inclusion drive.

CIS Comment: The drafting of the recommendation suggests that RBI is batting for the DBT rather than the subsidy model. However an examination of the discussion in the report suggests that all that the Committee has not discussed or examined the subsidy model vis-à-vis the direct benefit transfer (DBT) model here (though it does recommend DBT in the chapter on G-2-P payments), but only is trying to say is that where government to people money transfer has to take place, it should take place using mobile banking, payment wallets or other such technologies, which have been known to be successful in various countries across the world.

Recommendation 3.1 - The Committee recommends that in order to increase formal credit supply to all agrarian segments, the digitization of land records should be taken up by the states on a priority basis.

Recommendation 3.2 - In order to ensure actual credit supply to the agricultural sector, the Committee recommends the introduction of Aadhaar-linked mechanism for Credit Eligibility Certificates. For example, in Andhra Pradesh, the revenue authorities issue Credit Eligibility Certificates to Tenant Farmers (under ‘Andhra Pradesh Land Licensed Cultivators Act No 18 of 2011'). Such tenancy /lease certificates, while protecting the owner’s rights, would enable landless cultivators to obtain loans. The Reserve Bank may accordingly modify its regulatory guidelines to banks to directly lend to tenants / lessees against such credit eligibility certificates.

CIS Comment: The Committee in its discussion before the recommendation 3.2 has discussed the problems faced by landless farmers, however there is no discussion or evidence which suggests that an Aadhaar linked Credit Eligibility Certificate is the best solution, or even a solution to the problem. The concern being expressed here is not with the system of a Credit Eligibility Certificate, but with the insistence on linking it to an Aadhaar number, and whether the system can be put in place without linking the same to an Aadhaar number.

Recommendation 6.11 - Keeping in view the indebtedness and rising delinquency, the Committee is of the view that the credit history of all SHG members would need to be created, linking it to individual Aadhaar numbers. This will ensure credit discipline and will also provide comfort to banks.

CIS Comment: There is no discussion in the Report on the reasons for increase in indebtedness of SHGs. While the recommendation of creating credit histories for SHGs is laudable and very welcome, however there is no logical reason that has been brought out in the Report as to why the same needs to be linked to individual Aadhaar numbers and how such linkage will solve any problems.

Recommendation 6.13 - The Committee recommends that bank credit to MFIs should be encouraged. The MFIs must provide credit information on their borrowers to credit bureaus through Aadhaar-linked unique identification of individual borrowers.

CIS Comment: Since the discussion before this recommendation clearly indicates multiple lending practices as one of the problems in the Microfinance sector and also suggests better credit information of borrowers as a possible solution, therefore this recommendation per se, seems sound. However, we would still like to point out that the RBI may think of alternative means to get borrower credit history rather than relying upon just the Aadhaar numbers.

Recommendation 7.3 - Considering the widespread availability of mobile phones across the country, the Committee recommends the use of application-based mobiles as PoS for creating necessary infrastructure to support the large number of new accounts and cards issued under the PMJDY. Initially, the FIF can be used to subsidize the associated costs. This will also help to address the issue of low availability of PoS compared to the number of merchant outlets in the country. Banks should encourage merchants across geographies to adopt such applicationbased mobile as a PoS through some focused education and PoS deployment drives.

Recommendation 7.5 - The Committee recommends that the National Payments Corporation of India (NPCI) should ensure faster development of a multi-lingual mobile application for customers who use non-smart phones, especially for users of NUUP; this will address the issue of linguistic diversity and thereby promote its popularization and quick adoption.

Recommendation 7.8 - The Committee recommends that pre-paid payment instrument (PPI) interoperability may be allowed for non-banks to facilitate ease of access to customers and promote wider spread of PPIs across the country. It should however require non-bank PPI operators to enhance their customer grievance redressal mechanism to deal with any issues thereof.

Recommendation 7.9 - The Committee is of the view that for non-bank PPIs, a small-value cashout may be permitted to incentivize usage with the necessary safeguards including adequate KYC and velocity checks.

CIS Comments: While CIS supports the effort to use technology and mobile phones to increase banking penetration and improve access to the formal financial sector for rural and semi-rural areas, sufficient security mechanisms should be put in place while rolling out these services keeping in mind the low levels of education and technical sophistication that are prevalent in rural and semi-rural areas.

Recommendation 8.1 - The Committee recommends that the deposit accounts of beneficiaries of government social payments, preferably all deposits accounts across banks, including the ‘inprinciple’ licensed payments banks and small finance banks, be seeded with Aadhaar in a timebound manner so as to create the necessary eco-system for cash transfer. This could be complemented with the necessary changes in the business correspondent (BC) system (see Chapter 6 for details) and increased adoption of mobile wallets to bridge the ‘last mile’ of service delivery in a cost-efficient manner at the convenience of the common person. This would also result in significant cost reductions for the government besides promoting financial inclusion.

CIS Comment: While the report of the Committee has already given several examples of how cash transfer directly into the bank accounts (rather than requiring the beneficiaries to be at a particular place at a particular time) could be more efficient as well as economical, the Committee is making the same point again here under the chapter that deals specifically with government to person payments. However even before this recommendation, there has been no discussion as to the need for linking or “seeding” the deposit accounts of the beneficiaries with Aadhaar numbers, let alone a discussion of how it would solve any problems.

Recommendation 10.6 - Given the focus on technology and the increasing number of customer complaints relating to debit/credit cards, the National Payments Corporation of India (NPCI) may be invited to SLBC meetings. They may particularly take up issues of Aadhaar-linkage in bank and payment accounts.

CIS Comment: There is no discussion on why this recommendation has been made, more particularly; there is no discussion at all on why issues of Aadhaar linkage in bank and payment accounts need to be taken up at all.

For more details visit https://cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion

Why India snubbed Facebook's free Internet offer

praskrishna — 2016-02-27T07:49:08Z

The social media giant wanted to give the people of India free access to a chunk of the Internet, but the people weren't interested.

The blog post by Daniel Van Boom was published by Cnet on February 26, 2016. Sunil Abraham was quoted.

Mark Zuckerberg's ambitious mission to provide free Internet access to rural India was rejected by the people it was intended to help long before the country's regulators banned it earlier this month.

Around the country, farmers, labourers and office workers scorned Facebook's offer. Called Free Basics, it provided only limited access to the Internet through a suite of websites and services that, unsurprisingly, included Facebook. They felt the limited service didn't follow the open nature of the Internet, where all sites and online destinations should be equally accessible, so they organized real-world protests and an online Save The Internet campaign, with the message that Zuckerberg's efforts weren't welcome.

You might think people would jump at the opportunity to access Facebook for free, especially since more than a billion people use the social network every day. But it's that hitch -- that they can't access everything else -- which is precisely the problem, said Sunil Abraham, the executive director of the Centre for Internet and Society India. "Even if somebody spends 90 percent of their time on Facebook, that 10 percent is equally as important."

Indian regulators sided with popular opinion and cut off Free Basics in the world's second-most populous country on February 8. The ruling by the Telecom Regulatory Authority of India (TRAI) forbids all zero-rating plans, meaning anyone offering customers free access to only a limited set of services of sites are banned. It was championed as a victory for Net neutrality, the principle that everyone should have equal access to all content on the Internet.

The decision was undoubtedly a blow for Facebook, which says it wants to connect the billions of have-nots around the world to the Internet through the program. While more than half the world's online population uses Facebook each month, the company's efforts to connect with the developing world -- with Free Basics also being available in over 30 other countries, such as Kenya and Iraq -- could be a boon for business.

"[The Internet] must remain neutral for everyone, individuals and businesses alike. Everyone must have equal access to it," said Rajesh Sawhney, a Mumbai-based tech entrepreneur, in support of TRAI's decision to reject Free Basics. He believes the zero-rating scheme can be misused by telcos and other companies to create divisive ecosystems, where certain brands or companies are included and others aren't.

The package wasn't without its supporters though, with some being disappointed with the government's intervention in the marketplace.

"It is generally assumed that there is something sinister behind violations of Net neutrality...but that is not always true," says software engineer Shashank Mehra. "ISPs trying to match consumer demand isn't something sinister, it is a market process."

The social media giant further defends itself by pointing out that Free Basics is open to any and all developers, including competitors Twitter and Google, as long as they meet the program's technical standards. This evidently wasn't enough to convince much of India.

The problem persists

Facebook disputes claims that its interest in India is commercial, saying its efforts are humanitarian. In speeches over the past few months, Zuckerberg has painted Internet access as a tool for global good. "The research has shown on this that for every 10 people who get access to the internet, about one person gets a new job, and about one person gets lifted out of poverty," he said at a Townhall Q&A in Delhi last October. "Connecting things in India is one of the most important things we can do in the world."

Zuckerberg appears to have taken the loss in stride. During a keynote address at the Mobile World Conference in Barcelona earlier this week, he admitted to being disappointed by the ruling, but added, "We are going to focus on different programs [in India]...we want to work with all the operators there." A Facebook spokesperson said the company "will continue our efforts to eliminate barriers and give the unconnected an easier path to the Internet and the opportunity it brings."

Those ideals could certainly help in India, where around 68 percent of its population -- about 880 million people -- live in rural conditions or poverty. The promise of free access to health, education, local and national news through an Internet connection could potentially improve quality of live. So what's the problem?

The service providers would also be granting free Facebook.

Peggy Wolff, a volunteer coordinator at education NGO Isha Vidhya, says Facebook is just the latest in a long line of international companies hoping to crack rural India, where the bulk of the country's poor live.

While admitting that low cost or free Internet is imperative in rural areas, that "smart villages" are needed to help ease the human burden on India's increasingly overcrowded cities, she says, "Free basics is just a bit suspicious to most people. There's just too much vested interest."

"The big question." Sawhney says, "is how do we give fast and free Internet to a large section of society in India?"

There are alternatives. United States-based Jana, for instance, developed an Android app called mCent that allows its growing userbase of 30 million to earn data by downloading and using certain apps or watching advertisements from sponsors. Unlike Free Basics, that data can be expended on any online destination.

Jana's CEO Nathan Eagle, like Zuckerberg, says his mission is to bring Internet connectivity to the next billion people. "Today, Internet connectivity in emerging markets is much more an issue of affordability, rather than access," he explains. "1.3 billion people in emerging markets now have Android phones...it's the cost of data that is prohibitive."

For more details visit https://cis-india.org/internet-governance/news/why-india-snubbed-facebooks-free-internet-offer

Netizen Report: The EU Wrestles With Facebook Over Privacy

praskrishna — 2016-02-27T07:39:01Z

Global Voices Advocacy's Netizen Report offers an international snapshot of challenges, victories, and emerging trends in Internet rights around the world.

The blog post published in Global Voices on February 11, 2016 quotes Pranesh Prakash and Subhashish Panigrahi.

In the latest development in the negotiations between the United States and European Union over data transfer rules, Reuters reports France’s data protection authority gave Facebook three months to stop tracking non-users’ Web activity without their consent, and ordered Facebook to cease some transfers of personal data to the United States or face fines. In response, Facebook asserted it does not use the now-defunct Safe Harbor agreement to move data to the United States and instead has set up alternative legal structures to keep its data transfers in line with EU law. Despite this, Facebook was forced last year to stop tracking Belgian non-users after it was taken to court by the Belgian regulator. Last week, the United States and European Union agreed upon a new legal framework to replace Safe Harbor, but as it is not yet operational, several European data protection authorities are still deciding whether data transfers should be restricted.

Big Blow for Facebook’s Free Basics

Indian regulators officially banned “differential pricing”or discriminatory tariffs placed on data services depending on their content. This means that Internet users in India are guaranteed equal access to any website they want, regardless of how they connect to the Internet, ays Global Voices’ Subhashish Panigrahi. The decision is a particular blow to Facebook’s Free Basics application, which uses differential pricing mechanisms to make accessing Facebook, WhatsApp and a limited number of other websites free to users who do not pay for mobile data plans. Though Facebook promotes the program as a means to increasing digital access, it has come under backlash in India and a number of other countries. Internet policy expert Pranesh Prakash emphasizedthat though the ruling is a win for open access in India, these efforts must continue until India is truly and equally connected.

Google’s new scheme to combat online extremism

In an effort to combat groups like ISIS that recruit online, Google has launched apilot schemeto point users who search for extremist terms toward anti-radicalization links. It announced the new effort on February 2 at a meeting with the U.K. Home Affairs Select Committee on Countering Extremism. Representatives of Twitter and Facebook were also challenged by members of Parliament on their role in combatting the spread of terrorist material. Twitter announcedthat it had suspended 125,000 accounts associated with extremism since mid-2015 in response to pressure from the US government. However, as the New York Times’ Mike Isaac notes, “these companies must walk a fine line between bearing responsibility for their platforms and avoiding becoming the arbiter of what constitutes free speech.”

What’s going to happen to Ukraine’s database of ‘explicit content’?

The Ukrainian censorship body, National Expert Commission for Protection of Public Morality, dissolved last year, but its legacy lives on as a database of “explicit content” that no one in the government seems to know what to do with. The database includes a sizeable amount of content “containing elements of sexual nature and erotica,” but the commission was also well known for its attempt to ban Spongebob Squarepants, Shrek, and Teletubbies. Users have suggested the team responsible for dissolving the commission make the content more widely available, so they can see where taxpayers’ money went.

How to protect yourself from government hacking

Hacking human rights workers, journalists, and NGOs has become common practice for governments around the world, according to Amnesty International’s Morgan Marquis-Boire and Electronic Frontier Foundation’s Eva Galperin. In a post for Amnesty International, the two provide a brief history of government hacking and give suggestions for NGOs and human rights organizations to protect themselves.

Taking on Russia’s invasive surveillance

Two Russian Internet service providers are taking the Federal Security Service to court to challenge the surveillance system employed by Russian federal police to spy on Internet use. ISPs play a critical role in making surveillance possible, by installing expensive equipment that provides police access—making this case a significant affront to Russia’s invasive surveillance apparatus.

Telegram in Iran

Messaging app Telegram’s growing influence is being characterized as a major factor in the dissemination and spread of information leading up to Iran’s Feb. 26 parliamentary elections, but the platform’s susceptibility to state manipulation is also becoming more apparent. After the arrest of former BBC journalist Bahman Doroshafaei, the government took over his Telegram account and started to message his contacts. Some believe this was an effort to extract sensitive information or to distribute spyware. Fatemeh Shams, a friend of Doroshafaei, posted the following warning to her Facebook account:

Someone has been talking to me for two hours from Bahman's hacked Telegram account and now is chatting with my friends with my account..If anyone messaged you on Telegram [from my account] please ignore it. I've lost access to my account.

Mahsa Alimardani, Ellery Roberts Biddle, Hae-in Lim and Sarah Myers West contributed to this report.

For more details visit https://cis-india.org/internet-governance/news/global-voices-february-11-2016-netizen-report

‘A Good Day for the Internet Everywhere': India Bans Differential Data Pricing

subha — 2016-02-25T01:21:27Z

India distinguished itself as a global leader on network neutrality on February 8, when regulators officially banned “differential pricing”, a process through which telecommunications service providers could or charge discriminatory tariffs for data services offered based on content.

The article was published by Global Voices on February 9, 2016

In short, this means that Internet access in India will remain an open field, where users should be guaranteed equal access to any website they want to visit, regardless of how they connect to the Internet.

In their ruling, Telecommunication Regulatory Authority of India (TRAI) commented:

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.

#TRAIFreesInternet | Key take aways from TRAI’s ruling on Net Neutrality pic.twitter.com/xlFsLb3bZ6

— CNN-IBN News (@ibnlive) February 8, 2016

The decision of the Indian government has been welcomed largely in the country and outside. In support of the move, the World Wide Web Foundation's Renata Avila, also a Global Voices community member, wrote:

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.

A blow for Facebook's “Free Basics”

While the new rules should long outlast this moment in India's Internet history, the ruling should immediately force Facebook to cancel the local deployment of “Free Basics”, a smart phone application that offers free access to Facebook, Facebook-owned products like WhatsApp, and a select suite of other websites for users who do not pay for mobile data plans.

Facebook's efforts to deploy and promote Free Basics as what they described as a remedy to India's lack of “digital equality” has encountered significant backlash. Last December, 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.”

When TRAI solicited public comments on the matter of differential pricing, Facebook responded with an aggressive advertising campaign on bill boards and in television commercials across the nation. It also embedded a campaign inside Facebook, asking users to write to TRAI in support of Free Basics.

TRAI criticized Facebook for what it seemed to regard as manipulation of the public. Facebook was also heavily challenged by many policy and open Internet advocates including non-profits like the Free Software Movement of India and the Savetheinternet.in campaign. The latter two collectives strongly discouraged Free Basics by bringing public opinion where Savetheinternet.in alone facilitated a campaign in which citizens sent over 2.4 million emails to TRAI urging the agency to put a stop to differential pricing.

Alongside these efforts, 500 Indian startups including major ones like Cleartrip, Zomato, Practo, Paytm and Cleartax also wrote to India's prime minister Narendra Modi requesting continued support for net neutrality—on the Indian Republic Day January 26.

Stand-up comedians like Abish Mathew and groups like All India Bakchod and East India Comedy created humorous and informative videos explaining the regulatory debate and supporting net neutrality which went viral.

Had differential pricing been officially legalized, it would have adversely affected startups and content-based smaller companies, who most likely could never manage to pay higher prices to partner with service providers to make their service available for free. This would have paved the way for tech-giants like Facebook to capture the entire market. And this would be no small gain for a company like Facebook: India represents the world's largest market of Internet users after the US and China, where Facebook remains blocked.

The Internet responds

There have been mixed responses on social media, both supporting and opposing. Among open Internet advocates both in India and the US, the response was celebratory:

This order shows the power of citizen involvement in policymaking. Policymakers are forced to listen if citizens engage. #NetNeutrality

— Pranesh Prakash (@pranesh) February 8, 2016

I think this is not just a good day for the Internet in India. It's a good day for the Internet everywhere #TRAI #savetheinternet

— Anja Kovacs (@anjakovacs) February 8, 2016

India is now the global leader on #NetNeutrality. New rules are stronger than those in EU and US. https://t.co/D6g68k2xaI

— Josh Levy (@levjoy) February 8, 2016

There are also those like Panuganti Rajkiran who opposed the ruling:

A terrible decision.. The worst part here is the haves deciding for the have nots what they can have and what they cannot.

When you buy a car, it's fulfilment of aspiration. After that, the next guy who buys a car is just traffic. Let's regulate. #NetNeutrality

— Ramesh Srivats (@rameshsrivats) February 8, 2016

Soumya Manikkath says:

So all is not lost in the world, for the next two years at least. Do come back with a better plan, dear Facebook, and we'll rethink, of course.

The ruling leaves an open pathway for companies to offer consumers free access to the Internet, provided that this access is truly open and does not limit one's ability to browse any site of her choosing.

Bangalore-based Internet policy expert Pranesh Prakash noted that this work must continue until India is truly — and equally — connected:

The pro-#NetNeutrality campaign shouldn't rest until every poor family in India has full and free access to the Internet. #ZeroRating

— Pranesh Prakash (@pranesh) February 8, 2016

For more details visit https://cis-india.org/internet-governance/blog/global-voices-subhashish-panigrahi-february-9-2016-a-good-day-for-the-internet-everywhere

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

World Trends in Freedom of Expression and Media Development

pranesh — 2016-02-17T17:03:42Z

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) had published a book in 2014 that examines free speech, expression and media development. The chapter contains a Foreword by Irina Bokova, Director General, UNESCO. Pranesh Prakash contributed to Independence: Introduction - Global Media Chapter. The book was edited by Courtney C. Radsch.

Foreword

Tectonic shifts in technology and economic models have vastly expanded the opportunities for press freedom and the safety of journalists, opening new avenues for freedom of expression for women and men across the world. Today, more and more people are able to produce, update and share information widely, within and across national borders. All of this is a blessing for creativity, exchange and dialogue.

At the same time, new threats are arising. In a context of rapid change, these are combining with older forms of restriction to pose challenges to freedom of expression, in the shape of controls not aligned with international standards for protection of freedom of expression and rising threats against journalists.

These developments raise issues that go to the heart of UNESCO’s mandate “to promote the flow of ideas by word and image” between all peoples, across the world. For UNESCO, freedom of expression is a fundamental human right that underpins all other civil liberties, that is vital for the rule of law and good governance, and that is a foundation for inclusive and open societies. Freedom of expression stands at the heart of media freedom and the practice of journalism as a form of expression aspiring to be in the public interest.

At the 36^th session of the General Conference (November 2011), Member States mandated UNESCO to explore the impact of change on press freedom and the safety of journalists. For this purpose, the Report has adopted four angles of analysis, drawing on the 1991 Windhoek Declaration, to review emerging trends through the conditions of media freedom, pluralism and independence, as well as the safety of journalists. At each level, the Report has also examined trends through the lens of gender equality.

The result is the portrait of change -- across the world, at all levels, featuring as much opportunity as challenge. The business of media is undergoing a revolution with the rise of digital networks, online platforms, internet intermediaries and social media. New actors are emerging, including citizen journalists, who are redrawing the boundaries of the media. At the same time, the Report shows that the traditional news institutions continue to be agenda-setters for media and public communications in general – even as they are also engaging with the digital revolution. The Report highlights also the mix of old and new challenges to media freedom, including increasing cases of threats against the safety of journalists.

The pace of change raises questions about how to foster freedom of expression across print, broadcast and internet media and how to ensure the safety of journalists. The Report draws on a rich array of research and is not prescriptive -- but it sends a clear message on the importance of freedom of expression and press freedom on all platforms.

To these ends, UNESCO is working across the board, across the world. This starts with global awareness raising and advocacy, including through World Press Freedom Day. It entails supporting countries in strengthening their legal and regulatory frameworks and in building capacity. It means standing up to call for justice every time a journalist is killed, to eliminate impunity. This is the importance of the United Nations Plan of Action on the Safety of Journalists and the Issue of Impunity, spearheaded by UNESCO and endorsed by the UN Chief Executives Board in April 2012. UNESCO is working with countries to take this plan forward on the ground. We also seek to better understand the challenges that are arising – most recently, through a Global Survey on Violence against Female Journalists, with the International News Safety Institute, the International Women’s Media Foundation, and the Austrian Government.

Respecting freedom of expression and media freedom is essential today, as we seek to build inclusive, knowledge societies and a more just and peaceful century ahead. I am confident that this Report will find a wide audience, in Member States, international and regional organizations, civil society and academia, as well as with the media and journalists, and I wish to thank Sweden for its support to this initiative. This is an important contribution to understanding a world in change, at a time when the international community is defining a new global sustainable development agenda, which must be underpinned and driven by human rights, with particular attention to freedom of expression.

Executive Summary

Freedom of expression in general, and media development in particular, are core to UNESCO’s constitutional mandate to advance ‘the mutual knowledge and understanding of peoples, through all means of mass communication’ and promoting ‘the free flow of ideas by word and image.’ For UNESCO, press freedom is a corollary of the general right to freedom of expression. Since 1991, the year of the seminal Windhoek Declaration, which was endorsed by the UN General Assembly, UNESCO has understood press freedom as designating the conditions of media freedom, pluralism and independence, as well as the safety of journalists. It is within this framework that this report examines progress as regards press freedom, including in regard to gender equality, and makes sense of the evolution of media actors, news media institutions and journalistic roles over time.

This report has been prepared on the basis of a summary report on the global state of press freedom and the safety of journalists, presented to the General Conference of UNESCO Member States in November 2013, on the mandate of the decision by Member States taken at the 36th session of the General Conference of the Organization.[*]

The overarching global trend with respect to media freedom, pluralism, independence and the safety of journalists over the past several years is that of disruption and change brought on by technology, and to a lesser extent, the global financial crisis. These trends have impacted traditional economic and organizational structures in the news media, legal and regulatory frameworks, journalism practices, and media consumption and production habits. Technological convergence has expanded the number of and access to media platforms as well as the potential for expression. It has enabled the emergence of citizen journalism and spaces for independent media, while at the same time fundamentally reconfiguring journalistic practices and the business of news.

The broad global patterns identified in this report are accompanied by extensive unevenness within the whole. The trends summarized above, therefore, go hand in hand with substantial variations between and within regions as well as countries.

Download the PDF

[*]. 37 C/INF.4 16 September 2013 “Information regarding the implementation of decisions of the governing bodies”. http://unesdoc.unesco.org/images/0022/002230/223097e.pdf; http://unesdoc.unesco.org/images/0022/002230/223097f.pdf

For more details visit https://cis-india.org/internet-governance/blog/unesco-world-trends-in-freedom-of-expression-and-media-development

Internet Freedom

Sunil Abraham and Vidushi Marda — 2016-02-15T02:51:10Z

The modern medium of the web is an open-sourced, democratic world in which equality is an ideal, which is why what is most important is Internet freedom.

The article by Sunil Abraham and Vidushi Marda was published by Asian Age on February 14, 2016.

What would have gone wrong if India’s telecom regulator Trai had decided to support programmes like Facebook’s Free Basics and Airtel’s Zero Rating instead of issuing the regulation that prohibits discriminatory tariffs? Here are possible scenarios to look at in case the discriminatory tarrifs were allowed as they are in some countries.

Possible impact on elections

Facebook would have continued to amass its product — eyeballs. Indian eyeballs would be more valuable than others for three reasons 1. Facebook would have an additional layer of surveillance thanks to the Free Basics proxy server which stores the time, the site url and data transferred for all the other destinations featured in the walled garden 2. As part of Digital India, most government entities will set up Facebook pages and a majority of the interaction with citizens would happen on the social media rather than the websites of government entities and, consequently, Facebook would know what is and what is not working in governance 3. Given the financial disincentive to leave the walled garden, the surveillance would be total.

What would this mean for democracies? Eight years ago, Facebook began to engineer the News Feed to show more posts of a user’s friends voting in order to influence voting behavior. It introduced the “I’m Voting” button into 61 million users’ feeds during the 2010 US presidential elections to increase voter turnout and found that this kind of social pressure caused people to vote. Facebook has also admitted to populating feeds with posts from friends with similar political views. During the 2012 Presidential elections, Facebook was able to increase voter turnout by altering 1.9 million news feeds.

Indian eyeballs may not be that lucrative in terms of advertising. But these users are extremely valuable to political parties and others interested in influencing elections. Facebook’s notifications to users when their friends signed on to the “Support Free Basics” campaign was configured so that you were informed more often than with other campaigns. In other words, Facebook is not just another player on their platform. Given that margins are often slim, would Facebook be tempted to try and install a government of its choice in India during the 2019 general elections?

In times of disasters

Most people defending Free Basics and defending forbearance as the regulatory response in 2015/16 make the argument that “95 per cent of Internet users in developing countries spend 95 per cent of their time on Facebook”.

This is not too far from the truth as LirneAsia demonstrated in 2012 with most people using Facebook in Indonesia not even knowing they were using the internet. In other words, they argue that regulators should ignore the fringe user and fringe usage and only focus on the mainstream. The cognitive bias they are appealing to is smaller numbers are less important.

Since all the sublime analogies in the Net Neutrality debate have been taken, forgive us for using the scatological. That is the same as arguing that since we spend only 5% of our day in toilets, only 5% of our home’s real estate should be devoted to them.

Everyone agrees that it is far easier to live in a house without a bedroom than a house without a toilet. Even extremely low probabilities or ‘Black Swan’ events can be terribly important! Imagine you are an Indian at the bottom of the pyramid. You cannot afford to pay for data on your phone and, as a result, you rarely and nervously stray out of the walled garden of Free Basics.

During a natural disaster you are able to use the Facebook Safety Check feature to mark yourself safe but the volunteers who are organising both offline and online rescue efforts are using a wider variety of platforms, tools and technologies.

Since you are unfamiliar with the rest of the Internet, you are ill equipped when you try to organise a rescue for you and your loved ones.

Content and carriage converge

Some people argue that TRAI should have stayed off the issue since the Competition Commission of India (CCI) is sufficient to tackle Net Neutrality harms. However it is unclear if predatory pricing by Reliance, which has only 9% market share, will cross the competition law threshold for market dominance? Interestingly, just before the Trai notification, the Ambani brothers signed a spectrum sharing pact and they have been sharing optic fibre since 2013.

Will a content sharing pact follow these carriage pacts? As media diversity researcher, Alam Srinivas, notes “If their plans succeed, their media empires will span across genres such as print, broadcasting, radio and digital. They will own the distribution chains such as cable, direct-to-home (DTH), optic fibre (terrestrial and undersea), telecom towers and multiplexes.”

What does this convergence vision of the Ambani brothers mean for media diversity in India? In the absence of net neutrality regulation could they use their dominance in broadcast media to reduce choice on the Internet? Could they use a non-neutral provisioning of the Internet to increase their dominance in broadcast media? When a single wire or the very same radio spectrum delivers radio, TV, games and Internet to your home — what under competition law will be considered a substitutable product? What would be the relevant market? At the Centre for Internet and Society (CI S), we argue that competition law principles with lower threshold should be applied to networked infrastructure through infrastructure specific non-discrimination regulations like the one that Trai just notified to protect digital media diversity.

Was an absolute prohibition the best response for TRAI? With only two possible exemptions — i.e. closed communication network and emergencies - the regulation is very clear and brief. However, as our colleague Pranesh Prakash has said, TRAI has over regulated and used a sledgehammer where a scalpel would have sufficed. In CIS’ official submission, we had recommended a series of tests in order to determine whether a particular type of zero rating should be allowed or forbidden. That test may be legally sophisticated; but as TRAI argues it is clear and simple rules that result in regulatory equity. A possible alternative to a complicated multi-part legal test is the leaky walled garden proposal. Remember, it is only in the case of very dangerous technologies where the harms are large scale and irreversible and an absolute prohibition based on the precautionary principle is merited.

However, as far as network neutrality harms go, it may be sufficient to insist that for every MB that is consumed within Free Basics, Reliance be mandated to provide a data top up of 3MB.

This would have three advantages. One, it would be easy to articulate in a brief regulation and therefore reduce the possibility of litigation. Two, it is easy for the consumer who is harmed to monitor the mitigation measure and last, based on empirical data, the regulator could increase or decrease the proportion of the mitigation measure.

This is an example of what Prof Christopher T. Marsden calls positive, forward-looking network neutrality regulation. Positive in the sense that instead of prohibitions and punitive measures, the emphasis is on obligations and forward-looking in the sense that no new technology and business model should be prohibited.

What is Net neutrality?

According to this principle, all service providers and governments should not discriminate between various data on the internet and consider all as one. They cannot give preference to one set of apps/ websites while restricting others.

2006: TRAI invites opinions regarding the regulation of net neutrality from various telecom industry bodies and stakeholdersFeb. 2012: Sunil Bharti Mittal, CEO of Bharti Airtel, suggests services like YouTube should pay an interconnect charge to network operators, saying that if telecom operators are building highways for data then there should be a tax on the highway
July 2012: Bharti Airtel’s Jagbir Singh suggests large Internet companies like Facebook and Google should share revenues with telecom companies.
August 2012: Data from M-Lab said You Broadband, Airtel, BSNL were throttling traffic of P2P services like BitTorrent
Feb. 2013: Killi Kiruparani, Minister for state for communications and technology says government will look into legality of VoIP services like Skype
June 2013: Airtel starts offering select Google services to cellular broadband users for free, fixing a ceiling of 1GB on the data
Feb. 2014: Airtel operations CEO Gopal Vittal says companies offering free messaging apps like Skype and WhatsApp should be regulated
August 2014: TRAI rejects proposal from telecom companies to make messaging application firms share part of their revenue with the carriers/government
Nov. 2014: Trai begins investigation on Airtel implementing preferential access with special packs for WhatsApp and Facebook at rates lower than standard data rates
Dec. 2014: Airtel launches 2G, 3G data packs with VoIP data excluded in the pack, later launches VoIP pack.
Feb. 2015: Facebook launches Internet.org with Reliance communications, aiming to provide free access to 38 websites through single app
March 2015: Trai publishes consultation paper on regulatory framework for over the top services, explaining what net neutrality in India will mean and its impact, invited public feedback
April 2015: Airtel launches Airtel Zero, a scheme where apps sign up with airtle to get their content displayed free across the network. Flipkart, which was in talks for the scheme, had to pull out after users started giving it poor rating after hearing about the news
April 2015: Ravi Shankar Prasad, Communication and information technology minister announces formation of a committee to study net neutrality issues in the country
23 April 2015: Many organisations under Free Software Movement of India protested in various parts of the country. In a counter measure, Cellular Operators Association of India launches campaign , saying its aim is to connect the unconnected citizens, demanding VoIP apps be treated as cellular operators
27 April 2015: Trai releases names and email addresses of users who responded to the consultation paper in millions. Anonymous India group, take down Trai’s website in retaliation, which the government could not confirm
Sept. 2015: Facebook rebrands Internet.org as Free Basics, launches in the country with massive ads across major newspapers in the country. Faces huge backlash from public
Feb. 2016: Trai rules in favour of net neutrality, barring telecom operators from charging different rates for data services.

The writers work at the Centre for Internet and Society, Bengaluru. CIS receives about $200,000 a year from WMF, the organisation behind Wikipedia, a site featured in Free Basics and zero-rated by many access providers across the world

For more details visit https://cis-india.org/internet-governance/blog/asian-age-february-14-2016-sunil-abraham-vidushi-marda-internet-freedom

Facebook’s Free Basics hits snag in India

praskrishna — 2016-02-15T02:33:26Z

Indian regulators have dealt a major blow to Facebook’s controversial Free Basics online access plan by forbidding so-called differential pricing by internet companies, in effect banning the programme in the country.

The article by James Crabtree with additional reporting by Tim Bradshaw was published in Financial Times on February 8, 2016. Pranesh Prakash was quoted.

Free Basics, a plan to make access to parts of the internet free, has been at the centre of a fierce row in the country between the social network and local start-ups and advocates for net neutrality — the idea that all web traffic should be treated equally and technology companies should not be allowed to price certain kinds of content differently from others.

Last December, the Telecom Regulatory Authority of India ordered Facebook to put its Free Basics programme on hold pending a review.

On Monday, Trai published the results of its deliberations, introducing a complete ban on any form of differential pricing.

The ruling is the latest in a series of regulatory battles pitting net neutrality campaigners against telecom and internet companies, and is likely to be viewed as a test case for other emerging markets in which programmes similar to Facebook’s are yet to be challenged in the courts.

It also marks the most significant setback yet for Free Basics, which Facebook founder Mark Zuckerberg launched in 2014 as the centrepiece of plans to help poorer people access the internet in emerging economies. It operates in more than 30 countries.

Facebook had launched a high-profile public campaign to defend its programme, which offered stripped-down access to sites such as BBC News or Facebook’s own app to customers of Reliance Communications, the US company’s local telecoms partner.

But critics attacked the programme as an attempt to become a gatekeeper for tens of millions of internet users.

In a post to his Facebook page on Monday, Mr Zuckerberg said the company “won’t give up on” finding new ways to boost internet access in India.

“While we’re disappointed with today’s decision, I want to personally communicate that we are committed to keep working to break down barriers to connectivity in India and around the world. Internet.org has many initiatives, and we will keep working until everyone has access to the internet,” he wrote.

Trai’s ruling was welcomed by anti-Facebook campaigners, a group that included the founders of many Indian start-ups including online retailers such as Flipkart, Paytm and restaurant search service Zomato, which had declined to offer their services as part of the Free Basics platform.

Analysts also hailed the Indian regulator’s ruling as a landmark. “This is the most broad and the most stringent set of regulations on differential pricing which exists anywhere in the world,” said Pranesh Prakash of the Bangalore-based Centre for Internet & Society, a think-tank.

India has become an increasingly important focus for the company’s global business, with the country becoming its second-largest market by users last year.

For more details visit https://cis-india.org/internet-governance/news/financial-times-february-8-2016-james-crabtree-facebooks-free-basics-hits-snag-in-india

Zuckerberg's Plan Spurned as India Backs Full Net Neutrality

praskrishna — 2016-02-15T02:18:54Z

Facebook Inc.’s plans for expansion in India have suffered a major setback.

The article by Adi Narayan and Bhuma Srivastava was published in Bloomberg on February 8, 2016. Pranesh Prakash was quoted.

Telecom regulator bans differential Internet data plans
Facebook had lobbied India to approve its Free Basics plan

After the company spent months lobbying the country to accept its Free Basics service -- a way of delivering a limited Internet that included Facebook, plus some other tools, for no cost -- India’s telecom regulator ruled against any plans from cellular operators that charge different rates to different parts of the Web.

Telecom operators can’t offer discriminatory tariffs for data services based on content, and aren’t allowed to enter into agreements with Internet companies to subsidize access to some websites, the Telecom Regulatory Authority of India said in a statement Monday. Companies violating the rules will be fined, it said.

“This is the most extensive and stringent regulation on differential pricing anywhere in the world,” Pranesh Prakash, policy director at the Centre for Internet and Society, said via phone. “Those who suggested regulation in place of complete ban have clearly lost.”

With this decision, India joins countries such as the U.S., Brazil and the Netherlands in passing laws that restrict telecom operators from discriminating Internet traffic based on content. It is a big blow to Facebook’s Internet sampler plan known as Free Basics, which is currently offered in about three dozen countries including Kenya and Zambia, none of which come close to the scale or reach that could’ve been achieved in India.

With 130 million Facebook users, 375 million people online, and an additional 800 million-plus who aren’t, India is the biggest growth market for the social network, which remains blocked in China.

Facebook said in a statement that it’s “disappointed with the outcome.”

Chief Executive Officer Mark Zuckerberg said the decision won’t cause Facebook to give up on connecting people to the Internet in India, “because more than a billion people in India don’t have access to the Internet.” The company will continue to focus on its other initiatives, like extending networks using satellites, drones and lasers.

Freebies Curtailed

The rule will put an end to prepaid plans that offered free access to services such as Google searches, the WhatsApp messaging application and Facebook. These packages were popular with low-income users by giving them an incentive to get online, said Rajan Mathews, director general of the lobby group Cellular Operators Association of India.

“These types of plans were being used by operators to meet the policy goals of connecting one billion people,” Matthews said. “With these gone, the government needs to tell us what alternatives are there.”

The regulator’s decision comes after months of public lobbying by Facebook for India to approve Free Basics, which allows customers to access the social network and other services such as education, health care, and employment listings from their phones without a data plan.

Free Basics was criticized by activists who said it threatened net neutrality, the principle that all Internet websites should be equally accessible, and could change pricing in India for access to different websites.

The regulator, which had sought stakeholders’ views, said it was seeking to ensure data tariffs remain content agnostic. Operators will have six months to wind down existing differential pricing services.

Google Unaffected

“Anything on the Internet can’t be priced based on content, applications, source and destination,” R.S. Sharma, the regulator’s chairman, told reporters in New Delhi. Some Internet companies’ plans to offer free WiFi at public venues, like Google Inc.’s project with Indian Railways, are not affected by this ruling, he said.

For Free Basics, one or two carriers in a given country offer the package for free at slow speeds, betting that it will help attract new customers who’ll later upgrade to pricier data plans. In India, Facebook had tied up with Reliance Communications Ltd., though the service was suspended in December as the government solicited comments from proponents and opponents.

Since the government’s telecommunications regulator announced the suspension, Facebook bought daily full-page ads in major newspapers and plastered billboards with pictures of happy farmers and schoolchildren it says would benefit from Free Basics. Zuckerberg has frequently made the case himself via phone or newspaper op-eds, asking that Indians petition the government to approve his service.

Entrepreneurs, business people and activists took to Twitter to share their views after the decision came out on Monday.

“Great to see TRAI backing #NetNeutrality,” Kunal Bahl, founder of Snapdeal.com, one of India’s biggest e-commerce sites, said. “Let’s keep the Internet free and independent.”

For more details visit https://cis-india.org/internet-governance/news/bloomberg-adi-narayan-bhuma-srivastava-february-8-2016-zuckerberg-plan-spurned-as-india-backs-full-net-neutrality

Trai upholds Net Neutrality in setback to Facebook’s Free Basics

praskrishna — 2016-02-15T02:01:37Z

Trai says Internet service providers will not be allowed to discriminate on pricing of data access for different web services.

The article by Moulishree Srivastava and Shauvik Ghosh was published in Livemint on February 9, 2016. Sunil Abraham was quoted.

India’s telecom regulator has barred Internet service providers from offering customers preferential tariffs to access certain content over concerns that it will violate Net neutrality norms, dealing a blow to Facebook Inc.’s free data service plan.

Internet service providers, including telecom operators, are prohibited from offering discriminatory tariffs for data services based on content, the Telecom Regulatory Authority of India (Trai) said on Monday. Service providers that violate these rules will be fined Rs.50,000 per day to a maximum of Rs.50 lakh. Trai said it may review the rules after two years.

The decision ends a long battle between Facebook and the country’s telecom operators, including Bharti Airtel Ltd, on one side and Net neutrality activists on the other. Facebook had launched an intense lobbying effort that included full-page advertisements in newspapers and an Internet campaign to assure people that its Free Basics plan, which allows access to its social network and some other websites without a data plan, would benefit millions of poor Indians.

“BJP wholeheartedly welcomes the Trai decision on differential pricing. The decision is a clear expression of popular will,” said telecom minister Ravi Shankar Prasad on Monday. “The government made sure proper processes were followed at all levels which eventually led to the victory of an open and equal Internet... It is gladdening to see that the NDA government ensured unparalleled transparency in the entire issue of net neutrality,” he added.

Net neutrality requires Internet service providers not to discriminate on online data by user, content, site, platform, application, mode of communication or price.

“The net neutrality activists... have got exactly what they wanted—the complete prohibition of the differential pricing,” said Sunil Abraham, executive director of the Bengaluru-based research organization Centre for Internet and Society. “Before Facebook started with its aggressive and outrageous campaign to promote Free Basics, the Net neutrality debate was a peaceful discussion. The way it has behaved must have led the regulator to lose trust that big companies can self-regulate.”

It, however, remains to be seen whether telcos challenge the regulation in court, he added.

“This has been a litigious issue and a lot of money is at stake so quite likely, I think, they will go to court,” said Apar Gupta, a lawyer and part of Save The Internet campaign.

The basic rationale behind the regulation is that the network that carries the data should be agnostic to data packets, R.S. Sharma, chairman of Trai, told reporters.

“Anything on the Internet cannot be priced discriminately based on source, destination, content and applications,” he said.

A spokesperson for Facebook said the company will carefully study what the regulator has said and comment accordingly.

Bharti Airtel and Reliance Communications Ltd (Facebook partnered with R-Com in India) declined to comment.

Differential pricing based on the network speed, Sharma said, is a larger issue and so is Net neutrality.

“We have used the term discriminatory pricing in place of differential pricing, because differential pricing in the consultation paper had a particular context. Differential word was quite contextual in the regulation, but it was misunderstood in a very larger context. Therefore, to differentiate, we are calling it discriminatory,” he said.

However, Sharma said that the Net neutrality debate is not over.

“Net neutrality is a larger question, and we have not gone into that question, though, I must admit, differential pricing is looking at Net neutrality from a tariff perspective. Net neutrality has a number of other components which is fast lane, throttling and differentially treating the packet in terms of speed etc. So this is not a part of this regulation,” Sharma said.

Amresh Nandan, research director at Gartner in India, said the Trai order favouring Net neutrality is in line with rules in the US. “The European Union has also ruled in favour of treating all Internet traffic equally,” Nandan said.

Nandan said the proponents of Net neutrality all over the world have been highlighting the importance of democratic values of the Internet and even a marginal attempt to curb it can possibly trigger all kinds of differentiation.

All the major telcos in India have, however, been lobbying the regulator to allow differential-pricing plans for data services. The telcos said such tariffs will increase Internet penetration in the country, benefiting consumers in the long run. They further argued that the existing legal framework is sufficient for regulating and monitoring differential pricing measures provided by the service providers and that Trai can deal with any issue regarding anti-competitive practices on a case-by-case basis as and when they arise.

Activists say such a practice will undermine competition and create monopolies. Differential pricing, they said, will allow big companies to buy favoured treatment from carriers.

Telecom operators said they were disappointed with the ruling. “Differential pricing could be useful in connecting the unconnected in India. This is an upfront disbarment,” said Rajan Mathews, director general of the Cellular Operators Association of India, the lobby group that represent some of the major telcos. “We believe that it was an appropriate tool to allow consumers who have never been on the Internet, to enjoy getting accustomed to it without getting sticker shock.”

Hemant Joshi, a partner at Deloitte Haskins and Sells Llp, said differential pricing was a well-accepted principle across industries.

“The concept inherently recognizes the economic principle of paying differently for different levels of service and experience. In telecom, there are virtual highways that need to follow the same principle. More awareness and education is needed around the economics of differential pricing and its long-term implications on the Industry and the consumer,” he added.

Trai, which put up the consultation paper on differential pricing on 9 December, asked four specific questions, broadly on whether telecom operators should be allowed to offer different services at different price points and models that can be implemented to achieve this.

Trai extended the deadline for comments and counter-comments on its consultation paper to 7 January and 14 January from 31 December and 7 January, respectively. For the consultation process, Trai said that majority of the individual comments received did not address the specific questions that were raised in the consultation paper.

P.R. Sanjai and Ashish K. Mishra in Mumbai contributed to this story.

For more details visit https://cis-india.org/internet-governance/news/livemint-february-9-2016-shauvik-ghosh-moulishree-srivastava-trai-upholds-net-neutrality-in-setback-to-facebooks-free-basics

Linking Facebook use to free top-up data

praskrishna — 2016-02-14T12:33:17Z

Just before the Trai notification, the Ambani brothers signed a spectrum sharing pact and they have been sharing optic fibre since 2013.

The article was published in the Deccan Chronicle on February 14, 2016. Pranesh Prakash gave inputs.

Some people argue that Trai should have stayed off the issue since the Competition Commission of India (CCI) is sufficient to tackle Net Neutrality harms. However it is unclear if predatory pricing by Reliance, which has only nine per cent market share, will cross the competition law threshold for market dominance? Interestingly, just before the Trai notification, the Ambani brothers signed a spectrum sharing pact and they have been sharing optic fibre since 2013.

Will a content sharing pact follow these carriage pacts? As media diversity researcher, Alam Srinivas, notes: “If their plans succeed, their media empires will span across genres such as print, broadcasting, radio and digital. They will own the distribution chains such as cable, direct-to-home (DTH), optic fibre (terrestrial and undersea), telecom towers and multiplexes.”

What does this convergence vision of the Ambani brothers mean for media diversity in India? In the absence of net neutrality regulation could they use their dominance in broadcast media to reduce choice on the Internet? Could they use a non-neutral provisioning of the Internet to increase their dominance in broadcast media? When a single wire or the very same radio spectrum delivers radio, TV, games and Internet to your home — what under competition law will be considered a substitutable product? What would be the relevant market?

At the Centre for Internet and Society (CIS), we argue that competition law principles with lower threshold should be applied to networked infrastructure through infrastructure specific non-discrimination regulations like the one that Trai just notified to protect digital media diversity.

Was an absolute prohibition the best response for Trai? With only two possible exemptions — i.e. closed communication network and emergencies — the regulation is very clear and brief. However, as our colleague Pranesh Prakash has said, Trai has over-regulated and used a sledgehammer where a scalpel would have sufficed. In CIS’ official submission, we had recommended a series of tests in order to determine whether a particular type of zero rating should be allowed or forbidden. That test may be legally sophisticated; but as Trai argues it is clear and simple rules that result in regulatory equity. A possible alternative to a complicated multi-part legal test is the leaky walled garden proposal. Remember, it is only in the case of very dangerous technologies where the harms are large scale and irreversible and an absolute prohibition based on the precautionary principle is merited.

However, as far as network neutrality harms go, it may be sufficient to insist that for every MB that is consumed within Free Basics, Reliance be mandated to provide a data top up of 3MB.

This would have three advantages. One, it would be easy to articulate in a brief regulation and therefore reduce the possibility of litigation. Two, it is easy for the consumer who is harmed to monitor the mitigation measure and last, based on empirical data, the regulator could increase or decrease the proportion of the mitigation measure.

This is an example of what Prof Christopher T. Marsden calls positive, forward-looking network neutrality regulation. Positive in the sense that instead of prohibitions and punitive measures, the emphasis is on obligations and forward-looking in the sense that no new technology and business model should be prohibited.

For more details visit https://cis-india.org/internet-governance/news/deccan-chronicle-february-14-2016-linking-facebook-use-to-free-top-up-data

A Case for Greater Privacy Paternalism?

Amber Sinha — 2016-02-20T07:28:43Z

This is the second part of a series of three articles exploring the issues with the privacy self management framework and potential alternatives.

The first part of the series can be accessed here.

Background

The current data privacy protection framework across most jurisdictions is built around a rights based approach which entrusts the individual with having the wherewithal to make informed decisions about her interests and well-being.^{^[1]} In his book, The Phantom Public, published in 1925, Walter Lippmann argues that the rights based approach is based on the idea of a sovereign and omnicompetent citizens, who can direct public affairs, however, this idea is a mere phantom or an abstraction. ^{^[2]} Jonathan Obar, Assistant Professor of Communication and Digital Media Studies in the Faculty of Social Science and Humanities at University of Ontario Institute of Technology, states that Lippmann's thesis remains equally relevant in the context of current models of self-management, particularly for privacy.^{^[3]} In the previous post, Scott Mason and I had looked at the limitations of a 'notice and consent' regime for privacy governance. Having established the deficiencies of the existing framework for data protection, I will now look at some of the alternatives proposed that may serve to address these issues.

In this article, I will look at paternalistic solutions posed as alternatives to the privacy self-management regime. I will look at theories of paternalism and libertarianism in the context of privacy and with reference to the works of some of the leading philosophers on jurisprudence and political science. The paper will attempt to clarify the main concepts and the arguments put forward by both the proponents and opponents of privacy paternalism. The first alternative solution draws on Anita Allen's thesis in her book, Unpopular Privacy,^{^[4]} which deals with the questions whether individuals have a moral obligation to protect their own privacy. Allen expands the idea of rights to protect one's own self interests and duties towards others to the notion that we may have certain duties not only towards others but also towards ourselves because of their overall impact on the society. In the next section, we will look at the idea of 'libertarian paternalism' as put forth by Cass Sunstein and Richard Thaler^{^[5]} and what its impact could be on privacy governance.

Paternalism

Gerald Dworkin, Professor Emeritus at University of California, Davis, defines paternalism as "interference of a state or an individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm." ^{^[6]} Any act of paternalism will involve some limitation on the autonomy of the subject of the regulation usually without the consent of the subject, and premised on the belief that such act shall either improve the welfare of the subject or prevent it from diminishing.^{^[7]} Seana Shiffrin, Professor of Philosophy and Pete Kameron Professor of Law and Social Justice at UCLA, takes a broader view of paternalism and includes within its scope not only matters which are aimed at improving the subject's welfare, but also the replacement of the subject's judgement about matters which may otherwise have lied legitimately within the subject's control.^{^[8]} In that sense, Shiffrin's view is interesting for it dispenses with both the requirement for active interference, and such act being premised on the subject's well-being.

The central premise of John Stuart Mill's On Liberty is that the only justifiable purpose to exert power over the will of an individual is to prevent harm to others. "His own good, either physical or moral," according to Mill, "is not a sufficient warrant." However, various scholars over the years have found Mill's absolute prohibition problematic and support some degree of paternalism. John Rawls' Principle of Fairness, for instance has been argued to be inherently paternalistic. If one has to put it in a nutshell, the aspect about paternalism that makes it controversial is that it involves coercion or interference, which in any theory of normative ethics or political science needs to be justified based on certain identified criteria. Staunch opponents of paternalism believe that this justification can never be met. Most scholars however, do not argue that all forms of paternalism are untenable and the bulk of scholarship on paternalism is devoted to formulating the conditions under which this justification is satisfied.

Paternalism interferes with self-autonomy in two ways according to Peter de Marneffe, the Professor of Philosophy at the School of Historical, Philosophical and Religious Studies, Arizona State University.^{^[9]} The first is the prohibition principle, under which a person's autonomy is violated by being prohibited from making a choice. The second is the opportunity principle which undermines the autonomy of a person by reducing his opportunities to make a choice. Both the cases should be predicated upon a finding that the paternalistic act will lead to welfare or greater autonomy. According to de Marneffe, there are three conditions under which such acts of paternalism are justified - the benefits of welfare should be substantial, evident and must outweigh the benefits of self-autonomy.^{^[10]}

There are two main strands of arguments made against paternalism.^{^[11]} The first argues that interference with the choices of informed adults will always be an inferior option to letting them decide for themselves, as each person is the 'best judge' of his or her interests. The second strand does not engage with the question about whether paternalism can make better decisions about individuals, but states that any benefit derived from the paternalist act is outweighed by the harm of violation of self-autonomy. Most proponents of soft-paternalism build on this premise by trying to demonstrate that not all paternalistic acts violate self-autonomy. There are various forms of paternalism that we do not question despite them interfering with our autonomy - seat belt laws and restriction of tobacco advertising being a few of them. If we try to locate arguments for self-autonomy in the Kantian framework, it refers not just to the ability to do what one chooses, but to rational self-governance.^{^[12]} This theory automatically "opens the door for justifiable paternalism."^{^[13]} In this paper, I assume that certain forms of paternalism are justified. In the remaining two section, I will look at two different theories advocating greater paternalism in the context of privacy governance and try to examine the merits and issues with such measures.

A moral obligation to protect one's privacy

Modest Paternalism

In her book, Unpopular Privacy,^{^[14]} Anita Allen states that enough emphasis is not placed by people on the value of privacy. The right of individuals to exercise their free will and under the 'notice and consent' regime, give up their rights to privacy as they deem fit is, according to her, problematic. The data protection law in most jurisdictions, is designed to be largely value-neutral in that it does not sit on judgement on what is the nature of information that is being revealed and how the collector uses it. Its primary emphasis is on providing the data subject with information about the above and allowing him to make informed decisions. In my previous post, Scott Mason and I had discussed that with online connectivity becomes increasingly important to participation in modern life, the choice to withdraw completely is becoming less and less of a genuine option.^{^[15]} Lamenting that people put little emphasis on privacy and often give away information which, upon retrospection and due consideration, they would feel, they ought not have disclosed, Allen proposes what she calls 'modest paternalism' in which regulations mandate that individuals do not waive their privacy is certain limited circumstances.

Allen acknowledges the tension between her arguments in favor of paternalism and her avowed support for the liberal ideals of autonomy and that government interference should be limited, to the extent possible. However, she tries to make a case for greater paternalism in the context of privacy. She begins by categorizing privacy as a "primary good" essential for "self respect, trusting relationships, positions of responsibility and other forms of flourishing." In another article, Allen states that this "technophilic generation appears to have made disclosure the default rule of everyday life."^{^[16]} Relying on various anecdotes and examples of individuals' disregard for privacy, she argues that privacy is so "neglected in contemporary life that democratic states, though liberal and feminist, could be justified in undertaking a rescue mission that includes enacting paternalistic privacy laws for the benefit of un-eager beneficiaries." She does state that in most cases it may be more advantageous to educate and incentivise individuals towards making choices that favor greater privacy protection. However, in exceptional cases, paternalism would be justified as a tool to ensure greater privacy.

A duty towards oneself

In an article for the Harvard Symposium on Privacy in 2013, Allen states that laws generally provide a framework built around rights of individuals that enable self-protection and duties towards others. G A Cohen describes Robert Nozick's views which represents this libertarian philosophy as follows: "The thought is that each person is the morally rightful owner of himself. He possesses over himself, as a matter of moral right, all those rights that a slaveholder has over a chattel slave as a matter of legal right, and he is entitled, morally speaking, to dispose over himself in the way such a slaveholder is entitled, legally speaking, to dispose over his slave."^{^[17]} As per the libertarian philosophy espoused by Nozick, everyone is licensed to abuse themselves in the same manner slaveholders abused their slaves.

Allen asks the question whether there is a duty towards oneself and if such a duty exists, should it be reflected in policy or law. She accepts that a range of philosophers consider the idea of duties to oneself as illogical or untenable. ^{^[18]} Allen, however relies on the works of scholars such as Lara Denis, Paul Eisenberg and Daniel Kading who have located such a duty. She develops a schematic of two kinds of duties - first order duties that requires we protect ourselves for the sake of others, and second order, derivative duties that we protect ourself. Through the essay, she relies on the Kantian framework of categorical imperative to build the moral thrust of her arguments. Kantian view of paternalism would justify those acts which interfere with an individual's autonomy in order to prevent her from exercising her autonomy irrationally, and draw her towards rational end that agree with her conception of good.^{^[19]} However, Allen goes one step further and she locates the genesis for duties to both others (perfect duties) and oneself (imperfect duties) in the categorical imperative . Her main thesis is that there are certain situations where we have a moral duty to protect our own privacy where failure to do so would have an impact on either specific others or the society, at large.

Issues

Having built this interesting and somewhat controversial premise, Allen does not sufficiently expand upon it to present a nuanced solution. She provides a number of anecdotes but does not formulate any criteria for when privacy duties could be self-regarding. Her test for what kinds of paternalistic acts are justified is also extremely broad. She argues for paternalism where is protects privacy rights that "enhance liberty, liberal ways of life, well-being and expanded opportunity." She does not clearly define the threshold for when policy should move from incentives to regulatory mandate nor does she elaborate upon what forms paternalism would both serve the purpose of protecting privacy as well as ensuring that there is no unnecessary interference with the rights of individual.^{^[20]}

Nudge and libertarian paternalism

What is nudge?

In 2006, Richard Thaler and Cass Sunstein published their book Nudge: Improving decisions about health, wealth and happiness. ^{^[21]} The central thesis of the book is that in order to make most of decisions, we rely on a menu of options made available to us and the order and structure of choices is characterised by Thaler and Sunstein as "choice architecture." According to them, the choice architecture has a significant impact on the choices that we make. The book looks at examples from a food cafeteria, the position of restrooms and how whether the choice is to opt-in or opt-out influences the retirement plans that were chosen. This choice architecture influences our behavior without coercion or a set of incentives, as conventional public policy theory would have us expect. The book draws on work done by cognitive scientists such as Daniel Kahneman^{^[22]} and Amos Tversky^{^[23]} as well as Thaler's own research in behavioral economics. ^{^[24]} The key takeaway from cognitive science and behavioral economics used in this book is that choice architecture influences our actions in anticipated ways and leads to predictably irrational behavior. Thaler and Sunstein believe that this presents a great potential for policy makers. They can tweak the choice architecture in their specific domains to influence the decisions made by its subjects and nudge them towards behavior that is beneficial to them and/or the society.

The great attraction of the argument made by Thaler and Sunstein is that it offers a compromise between forbearance and mandatory regulation. If we identify the two ends of the policy spectrum as - a) paternalists who believe in maximum interference through legal regulations that coerce behavior to meet the stated goals of the policy, and b) libertarians who believe in the free market theory that relies on the individuals making decisions in their best interests, 'nudging' falls somewhere in the middle, leading to the oxymoronic yet strangely apt phrase, "libertarian paternalism." The idea is to design choices in such as way that they influence decision-making so as to increase individual and societal welfare. In his book, The Laws of Fear, Cass Sunstein argues that the anti-paternalistic position is incoherent as "there is no way to avoid effects on behavior and choices."

The proponents of libertarian paternalism refute the commonly posed question about who decides the optimal and desirable results of choice architecture, by stating that this form of paternalism does not promote a perfectionist standard of welfare but an individualistic and subjective standard. According to them, choices are not prohibited, cordoned off or made to carry significant barriers. However, it is often difficult to conclude what it is that is better for the welfare of people, even from their own point of view. The claim that nudges lead to choices that make them better off by their own standards seems more and more untenable. What nudges do is lead people towards certain broad welfare which the choice-architects believe make the lives of people better in the longer term.^{^[25]}

How nudges could apply to privacy?

Our previous post echoes the assertion made by Thaler and Sunstein that the traditional rational choice theory that assumes that individuals will make rationally optimal choices in their self interest when provided with a set of incentives and disincentives, is largely a fiction. We have argued that this assertion holds true in the context of privacy protection principles of notice and informed consent. Daniel Solove has argued that insights from cognitive science, particularly using the theory of nudge would be an acceptable compromise between the inefficacy of privacy self-management and the dangers of paternalism.^{^[26]} His rationale is that while nudges influence choice, they are not overly paternalistic in that they still give the individual the option of making choices contrary to those sought by the choice architecture. This is an important distinction and it demonstrates that 'nudging' is less coercive than how we generally understand paternalistic policies.

One of the nudging techniques which makes a lot of sense in the context of the data protection policies is the use of defaults. It relies on the oft-mentioned status quo bias.^{^[27]} This is mentioned by Thaler and Sunstein with respect to encouraging retirement savings plans and organ donation, but would apply equally to privacy. A number of data collectors have maximum disclosure as their default settings and effort in understanding and changing these settings is rarely employed by users. A rule which mandates that data collectors set optimal defaults that ensure that the most sensitive information is subjected to least degree of disclosure unless otherwise chosen by the user, will ensure greater privacy protection.

Ryan Calo and Dr. Victoria Groom explored an alternative to the traditional notice and consent regime at the Centre of Internet and Society, Stanford University.^{^[28]} They conducted a two-phase experimental study. In the first phase, a standard privacy notice was compared with a control condition and a simplified notice to see if improving the readability impacted the response of users. In the second phase, the notice was compared with five notices strategies, out of which four were intended to enhance privacy protective behavior and one was intended to lower it. Shara Monteleone and her team used a similar approach but with a much larger sample size.^{^[29]} One of the primary behavioral insights used was that when we do repetitive activities including accepting online terms and conditions or privacy notices, we tend to use our automatic or fast thinking instead to reflective or slow thinking.^{^[30]} Changing them requires leveraging the automatic behavior of the individuals.

Alessandro Acquisti, Professor of Information Technology and Public Policy at the Heinz College, Carnegie Mellon University, has studied the application of methodologies from behavioral economics to investigate privacy decision-making.^{^[31]} He highlights a variety of factors that distort decision-making such as - "inconsistent preferences and frames of judgment; opposing or contradictory needs (such as the need for publicity combined with the need for privacy); incomplete information about risks, consequences, or solutions inherent to provisioning (or protecting) personal information; bounded cognitive abilities that limit our ability to consider or reflect on the consequences of privacy-relevant actions; and various systematic (and therefore predictable) deviations from the abstractly rational decision process." Acquisti looks at three kinds of policy solutions taking the example of social networking sites collecting sensitive information- a) hard paternalistic approach which ban making visible certain kind of information on the site, b) a usability approach that entails designing the system in way that is most intuitive and easy for users to decide whether to provide the information, c) a soft paternalistic approach which seeks to aid the decision-making by providing other information such as how many people would have access to the information, if provided, and set defaults such that the information is not visible to others unless explicitly set by the user. The last two approaches are typically cited as examples of nudging approaches to privacy.

Another method is to use tools that lead to decreased disclosure of information. For example, tools like Social Media Sobriety Test^{^[32]} or Mail Goggles^{^[33]} serve to block the sites during certain hours set by user during which one expects to be at their most vulnerable, and the online services are blocked unless the user can pass a dexterity examination.^{^[34]} Rebecca Belabako and her team are building privacy enhanced tools for Facebook and Twitter that will provide greater nudges in restricting who they share their location on Facebook and restricting their tweets to smaller group of people.^{^[35]} Ritu Gulia and Dr. Sapna Gambhir have suggested nudges for social networking websites that randomly select pictures of people who will have access to the information to emphasise the public or private setting of a post.^{^[36]} These approaches try to address the myopia bias where we choose immediate access to service over long term privacy harms.

The use of nudges as envisioned in the examples above is in some ways an extension of already existing research which advocates a design standard that makes the privacy notices more easily intelligible.^{^[37]} However, studies show only an insignificant improvement by using these methods. Nudging, in that sense goes one step ahead. Instead of trying to make notices more readable and enable informed consent, the design standard will be intended to simply lead to choices that the architects deem optimal.

Issues with nudging

One of the primary justifications that Thaler and Sunstein put forward for nudging is that the choice architecture is ubiquitous. The manner in which option are presented to us impact how we make decision whether it was intended to do so or not, and that there is no such thing a neutral architecture. This inevitability, according to them, makes a strong case for nudging people towards choices that will lead to their well-being. However, this assessment does not support the arguments made by them that libertarian paternalism nudges people towards choices from their own point of view. It is my contention that various examples of libertarian paternalism, as put forth by Thaler and Sunstein, do in fact interfere with our self-autonomy as the choice architecture leads us not to options that we choose for ourselves in a fictional neutral environments, but to those options that the architects believe are good for us. This substitution of judgment would satisfy the definition by Seana Shiffron. Second, the fact that there is no such things as a neutral architecture, is by itself, not justification enough for nudging. If we view the issue only from the point of view of normative ethics, assuming that coercion and interference are undesirable, intentional interference is much worse than unintentional interference.

However, there are certain nudges that rely primarily on providing information, dispensing advice and rational persuasion.^{^[38]} The freedom of choice is preserved in these circumstances. Libertarians may argue that even these circumstances the shaping of choice is problematic. This issue, J S Blumenthal-Barby argues, is adequately addressed by the publicity condition, a concept borrowed by Thaler and Sunstein from John Rawls.^{^[39]} The principle states that officials should never use a technique they would be uncomfortable defending to the public; nudging is no exception. However, this seems like a simplistic solution to a complex problem. Nudges are meant to rely on inherent psychological tendencies, leveraging the theories about automatic and subconscious thinking as described by Daniel Kahneman in his book, "Thinking Fast, Thinking Slow."^{^[40]} In that sense, while transparency is desirable it may not be very effective.

Other commentators also note that while behavioral economics can show why people make certain decisions, it may not be able to reliably predict how people will behave in different circumstances. The burden of extrapolating the observations into meaningful nudges may prove to be too heavy.^{^[41]} However, the most oft-quoted criticism of nudging is that it will rely on officials to formulate the desired goals towards which the choice architecture will lead us.^{^[42]} The judgments of these officials could be flawed and subject to influence by large corporations.^{^[43]} These concerns echo the best judge argument made against all forms of paternalism, mentioned earlier in this essay. J S Blumenthal-Barby, Assistant Professor at the Center for Medical Ethics and Health Policy, Baylor College of Medicine, also examines the claim that the choice architects will be susceptible to the same biases while designing the choice environment.^{^[44]} His first argument in response to this is that experts who extensively study decision-making may be less prone to these errors. Second, he argues that even with errors and biases, a choice architecture which attempts to the rights the wrongs of a random and unstructured choice environment is a preferable option.^{^[45]}

Conclusion

Most libertarians will find the notion that individuals are prevented from sharing some information about themselves problematic. Anita Allen's idea about self-regarding duties is at odds how we understand rights and duties in most jurisdictions. Her attempt to locate an ethical duty to protect one's privacy, while interesting, is not backed by a formulation of how such a duty would work. While she relies largely on an Kantian framework, her definition of paternalism, as can be drawn from her writing is broader than that articulated by Kant himself. On the other hand, Thaler and Sunstein's book Nudge and related writings by them do attempt to build a framework of how nudging would work and answer some questions they anticipate would be raised against the idea of libertarian paternalism.

By and large, I feel that, Thaler and Sunstein's idea of libertarian paternalism could be justified in the context of privacy and data protection governance. It would be fair to say the first two conditions of de Marneffe under which such acts of paternalism are justified ^{^[46]} are largely satisfied by nudges that ensures greater privacy protection. If nudges can ensure greater privacy protection, its benefits are both substantial and evident. However, the larger question is whether these purported benefits outweigh the costs of loss of self-autonomy. Given the numerous ways in which the 'notice and consent' framework is ineffective and leads to very little informed consent, it can be argued that there is little exercise of autonomy, to begin with, and hence, the loss of self-autonomy is not substantial. Some of the conceptual issues which doubt the ability of nudges to solve complex problems remain unanswered and we will have to wait for more analysis by both cognitive scientists and policy-makers. However, given the growing inefficacy of the existing privacy protection framework, it would be a good idea of begin using some insights from cognitive science and behavioral economics to ensure greater privacy protection.

The current value-neutrality of data protection law with respect of the kind of data collected and its use, and its complete reliance on the data subject to make an informed choice is, in my opinion, an idea that has run its course. Rather than focussing solely on the controls at the stage of data collection, I believe we need a more robust theory of how to govern the subsequent uses of data. This will is the focus of the next part of this series in which I will look at the greater use of risk-based approach to privacy protection.

^{^[1]} With invaluable inputs from Scott Mason.

^{^[2]} Walter Lippmann, The Phantom Public, Transaction Publishers, 1925.

^{^[3]} Jonathan Obar, Big Data and the Phantom Public: Walter Lippmann and the fallacy of data privacy self management, Big Data and Society, 2015, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239188

^{^[4]} Anita Allen, Unpopular Privacy: What we must hide?, Oxford University Press USA, 2011.

^{^[5]} Richard Thaler and Cass Sunstein, Nudge, Improving decisions about health, wealth and happinessYale University Press, 2008.

^{^[6]} http://plato.stanford.edu/entries/paternalism/

^{^[7]} Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013. at 29.

^{^[8]} Seana Shiffrin, Paternalism, Unconscionability Doctrine, and Accommodation, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2682745

^{^[9]} Peter de Marneffe, Self Sovereignty and Paternalism, from Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013. at 58.

^{^[10]} Id .

^{^[11]} Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013. at 74.

^{^[12]} Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013. at 115.

^{^[13]} Ibid at 116.

^{^[14]} Anita Allen, Unpopular Privacy: What we must hide?, Oxford University Press USA, 2011.

^{^[15]} Janet Vertasi, My Experiment Opting Out of Big Data Made Me Look Like a Criminal, 2014, available at http://time.com/83200/privacy-internet-big-data-opt-out/

^{^[16]} Anita Allen, Privacy Law: Positive Theory and Normative Practice, available at http://harvardlawreview.org/2013/06/privacy-law-positive-theory-and-normative-practice/ .

^{^[17]} G A Cohen, Self ownership, world ownership and equality, available at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=3093280

^{^[18]} Marcus G. Singer, On Duties to Oneself, available at http://www.jstor.org/stable/2379349?seq=1#page_scan_tab_contents; Kurt Baier, The moral point of view: A rational basis of ethics, available at https://www.uta.edu/philosophy/faculty/burgess-jackson/Baier,%20The%20Moral%20Point%20of%20View%20%281958%29%20%28Excerpt%20on%20Ethical%20Egoism%29.pdf .

^{^[19]} Michael Cholbi, Kantian Paternalism and suicide intervention, from Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013.

^{^[20]} Eric Posner, Liberalism and Concealment, available at https://newrepublic.com/article/94037/unpopular-privacy-anita-allen

^{^[21]} Richard Thaler and Cass Sunstein, Nudge, Improving decisions about health, wealth and happinessYale University Press, 2008.

^{^[22]} Daniel Kahneman, Thinking, fast and slow, Farrar, Straus and Giroux, 2011.

^{^[23]} Daniel Kahneman, Paul Slovic and Amos Tversky, Judgment under uncertainty: heuristics and biases, Cambridge University Press, 1982; Daniel Kahneman and Amos Tversky, Choices, Values and Frames, Cambridge University Press, 2000.

^{^[24]} Richard Thaler, Advances in behavioral finance, Russell Sage Foundation, 1993.

^{^[25]} Thaler, Sunstein and Balz, Choice Architecture, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583509.

^{^[26]} Daniel Solove, Privacy self-management and consent dilemma, 2013 available at http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2093&context=faculty_publications

^{^[27]} Frederik Borgesius, Behavioral sciences and the regulation of privacy on the Internet, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2513771.

^{^[28]} Ryan Calo and Dr. Victoria Groom, Reversing the Privacy Paradox: An experimental study, available at http://ssrn.com/abstract=1993125

^{^[29]} Shara Monteleon et al, Nudges to Privacy Behavior: Exploring an alternative approahc to privacy notices, available at http://publications.jrc.ec.europa.eu/repository/bitstream/JRC96695/jrc96695.pdf

^{^[30]} Daniel Kahneman, Thinking, fast and slow, Farrar, Straus and Giroux, 2011.

^{^[31]} Alessandro Acquisti, Nudging Privacy, available at http://www.heinz.cmu.edu/~acquisti/papers/acquisti-privacy-nudging.pdf

^{^[32]} http://www.webroot.com/En_US/sites/sobrietytest/test.php?url=0

^{^[33]} http://google.about.com/od/m/g/mail_goggles.htm

^{^[34]} Rebecca Balebako et al, Nudging Users towards privacy on mobile devices, available at https://www.andrew.cmu.edu/user/pgl/paper6.pdf.

^{^[35]} Id .

^{^[36]} Ritu Gulia and Dr. Sapna Gambhir, Privacy and Privacy Nudges for OSNs: A Review, available at http://www.ijircce.com/upload/2014/march/14L_Privacy.pdf

^{^[37]} Annie I. Anton et al., Financial Privacy Policies and the Need for Standardization, 2004 available at https://ssl.lu.usi.ch/entityws/Allegati/pdf_pub1430.pdf; Florian Schaub, R. Balebako et al, "A Design Space for effective privacy notices" available at https://www.usenix.org/system/files/conference/soups2015/soups15-paper-schaub.pdf

^{^[38]} Daniel Hausman and Bryan Welch argue that these cases are mistakenly characterized as nudges. They believe that nudges do not try to inform the automatic system, but manipulate the inherent cognitive biases. Daniel Hausman and Bryan Welch, Debate: To Nudge or Not to Nudge, Journal of Political Philosophy 18(1).

^{^[39]} Ryan Calo, Code, Nudge or Notice, available at

^{^[40]} Daniel Kahneman, Thinking, fast and slow, Farrar, Straus and Giroux, 2011.

^{^[41]} Evan Selinger and Kyle Powys Whyte, Nudging cannot solve complex policy problems.

^{^[42]} Mario J. Rizzo & Douglas Glen Whitman, The Knowledge Problem of New Paternalism, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310732; Pierre Schlag, Nudge, Choice Architecture, and Libertarian Paternalism, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585362.

^{^[43]} Edward L. Glaeser, Paternalism and Psychology, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=917383.

^{^[44]} J S BLumenthal-Barby, Choice Architecture: A mechanism for improving decisions

while preserving liberty?, from Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013.

^{^[45]} Id .

^{^[46]} According to de Marneffe, there are three conditions under which such acts of paternalism are justified - the benefits of welfare should be substantial, evident and must outweigh the benefits of self-autonomy. Peter de Marneffe, Self Sovereignty and Paternalism, from Christian Coons and Michael Weber, ed., Paternalism: Theory and Practice; Cambridge University Press, 2013. at 58.

For more details visit https://cis-india.org/internet-governance/blog/a-case-for-greater-privacy-paternalism

There is No Such Thing as Free Basics

subha — 2016-02-14T11:37:50Z

India would not see the rain of Free Basics advertisements on billboards with images of farmers and common people explaining how much they could benefit from this Firefox project. Because the Telecom Regulatory Authority of India (TRAI) has taken a historical step by banning the differential pricing without discriminating services.

The article was published in Bangalore Mirror on February 9, 2016.

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's earlier plan was to launch Free Basics in India by making a few websites—that are mostly partners with Facebook—available for free. The company not just advertised heavily on billboards and commercials across the nation, it also embedded a campaign inside Facebook asking users to vote in support of Free Basics.

TRAI criticised Facebook's attempt for such a manipulative public provocation. However, Facebook was heavily criticised by many policy and Internet advocates, including non-profits groups like Free Software Movement of India and Savetheinternet.in campaign.

The latter two collectives were strongly discouraging Free Basics by bringing public opinion wherein Savetheinternet.org was used to send over 10 lakh emails to TRAI to disallow Free Basics.

Furthermore 500 start ups including major ones like Cleartrip, Zomato, Practo, Paytm and Cleartax also wrote to prime minister Narendra Modi requesting continued support for Net Neutrality — a concept that advocates equal treating of websites — on the Republic Day.

Stand-up comedy groups like AIB and East India Comedy had created humorous but informative videos explaining the regulatory debate and supporting net neutrality which went viral.

Technology critic and Quartz writer Alice Truong reacted 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."

In the light of differential pricing, news portal Medianama's founder Nikhil Pawa, in his opinion piece in Times of India, emphasised the way Aircel in India, Grameenphone in Bangladesh and Orange in Africa were providing free access to Internet with a sole motif of access to Internet, and criticised the walled Internet of Facebook that confines users inside Facebook only.

Had the 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 of 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.

The decision by the government has been welcomed largely in the country and outside.

In support of the move, Web We Want programme manager at the World Wide Web Foundation, Renata Avila, has shared saying,

"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."

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-subhashish-panigrahi-february-9-2016-there-is-no-such-thing-as-free-basics