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Not Surprised by Indian govt's data localisation directives: Michael Dell

Admin — 2018-10-18T01:37:17Z

The Indian government's attempts to ensure that companies adhere to data localisation norms will spawn similar requests from other countries, Michael Dell, the founder and chief executive of Dell Technologies, said.

The blog post by Anand J. was published in VCCircle on October 17, 2018.

However, he acknowledged that the country's concerns are genuine given the privacy and security implications of data. "If you don’t know where your data is or it has gotten into the wrong hands, it can be a very, very dangerous problem," Dell told The Economic Times. He added, "I would not be surprised if pretty much every country in the world creates something like this."

Dell's comments come in the backdrop of India's draft Personal Data Protection Bill, data localisation efforts and data mirroring requirements for payment firms as required under the diktat by the Reserve Bank of India.

Under the RBI direction, even the multinationals like Visa and MasterCard have to ensure that Indian customer data is stored locally. Though the last date for these companies to comply with the directive expired on Monday, the central bank will not penalise them as of now.

In the interview, Dell also acknowledged that information is more valuable than applications and problems will arise when data gets leaked or compromised. "Every business at the end of the day is based on some kind of trust or assurance," he told ET.

However, industry lobby Nasscom and internet watchdog Centre for Internet and Society had told TechCircle that some of the data localisation norms are rather strict and will prevent internet businesses from being truly open and free.

"Data localisation mandates should be narrowly tailored. Ideally, data should be localised based on the sector. For instance, military, intelligence and law enforcement might need strict localisation rules. There is no policy objective that will be served by localising social media data," CIS director Sunil Abraham had told TechCircle in an interview some months ago.

Nasscom's policy director Ashish Aggarwal told TechCircle that the industry lobby did not see the recommendations as a balanced approach in terms of localisation. "If imposed, this will cause a disproportionate cost to the industry," he had said.

For more details visit https://cis-india.org/internet-governance/news/vccircle-october-17-2018-anand-j-not-surprised-by-indian-govt-data-localisation-directives

Spending too much time on social media? Tech abuse may lead to mental health issues

Admin — 2018-10-18T00:55:46Z

Technology is a boon, no doubt. But where can we, in ourdigital lives, draw the line between convenience and addiction? ET’s Divya J Shekhar finds out how the IT city is dealing with internet addiction and how collective social effort might help find the sweet spot.

The article by Divya Shekhar was published in Economic Times on October 13, 2018. Sunil Abraham was quoted.

Fifty-odd residents in Hebbal switched off all their digital devices between 7 and 9 pm two days ago on World Mental Health Day. This Saturday, they will join other members in their 1,200-strong group to plug out once again. They plan to make this a weekly ritual.

At the centre of this initiative, which is called 'Time Out from Plugins', is a mother who started researching on technology addiction after observing her 16-year-old son play online games for long hours. Tejaswi Uthappa, a freelance writer, said that her otherwise wellbehaved son becoming irritable and snappy after being glued to the gaming console for hours got her thinking about the ill-effects of letting technology take over our lives.

Types of Technology Addiction

“As parents, we might casually complain about our children spending most of their time on television, digital games or laptops. But this is actually far more serious because it impacts their brain, and eventually, their behaviour,” said Uthappa, who now wants to reach out to schools and colleges to help create awareness about technology-addiction among youngsters.

An increasing number of Bengalureans are getting addicted to technology. Just last week, a 26-year-old checked in to the National Institute of Mental Health and Neurosciences (Nimhans) to seek treatment as he had watched Netflix for over seven hours a day for the past six months in order to escape the reality of his unemployment. From excessive PUBG (online game) and social media overdose to need for virtual validation and incessant online shopping, psychiatrists are treating a gamut of technology addictions.

How Much is Too Much?

According to experts at Nimhans, eight out of 10 technology addiction cases are related to online gaming. This is in line with a 2013 survey conducted by the Indian Council for Medical Research in Bengaluru, which revealed that 4.1% people in the IT city between 18 and 60 years of age were addicted to their mobile phones, while 1.3% were internet addicts. This number might have increased with the Telecom Regulatory Authority of India (Trai) stating that as on March 2018, there were 1.18 billion wireless subscribers and 493 million internet or broadband subscribers in the country.

Manoj Kumar Sharma, a clinical psychologist at the Service for Healthy Use of Technology (SHUT) Clinic at Nimhans, said that he caters to almost six-seven patients every week, up from two-three people who checked into the clinic when it launched in 2014. “It goes to show that people are conscious and are actively taking action to correct their addictive tendencies,” he said. Most people between ages 16 and 20 are addicted to social media, Sharma explained, tend to develop body image issues if their online activity or post does not garner enough attention or ‘likes’. This need for validation from virtual friends to make up for their lonely reality is also directly proportional to the number of cosmetic surgeries.

IT City's Tech Addiction

For those between 24 and 28 years of age, the addiction is usually in the form of pornography or online streaming platforms like Netflix. Experts have also coined the term ‘online infidelity’ to describe a condition where adults satisfy themselves using online platforms rather than through physical intimacy with their respective partners.

“There is a bidirectional relationship between depression and use of technology. The latter can be used as a coping mechanism for stress and anxiety. Conversely, technology abuse can also intensify depression,” said Sharma.

Medical professionals state that ideally, an individual’s daily social media consumption should be broken down to brief 20 minute sessions. “When a digital screen is the last thing you look at before going to sleep, it messes with your hormones. For instance, the heart and pulse rate increase, blood pressure for those with hypertension tends to increase and the body’s response to diabetes medication will vary,” said consulting physician and cardiologist Dr B Ramana Rao.

Increased exposure to technology, he explained, affects eyesight, causes mood alterations, and makes individuals angry and irritable. There are four main criteria, experts said, through which addiction can be determined: if use of technology affects your sleep, productivity, interpersonal relationships and makes you isolate yourself from social activities.

Open Communication

Parents, counsellors, schools and colleges are recognising the need to work together to find solutions and disconnect those vulnerable to internet overuse. Mansoor Ali Khan, member, board of management, Delhi Public School, said that while schools are often considered “uncool” if they do not use technology in classrooms, it is necessary to understand that sometimes, simple, conventional learning works best.

“Children who have been handed iPads and smartphones when they are as young as three years old, have lower concentration levels and learning capability. Moreover, the conversations they have with friends also restricted to TV shows and games,” he said.

Do you have Nomophobia?

The school plans to increase cyber literacy and make the discourse around technology addiction more transparent. Sharma of SHUT Clinic, who launched a Digital Detox app earlier this year, is now developing an intervention module that he wants to take to schools and colleges. This, he said, will help academicians study how to control use of technology as a coping mechanism for peer pressure, boredom and stress. It would also help, he
added, if parents and elders are less judgmental about those needing help.

Sunil Abraham, executive director, The Centre for Internet and Society, told ET that parents must understand the concept of introducing incremental screen time to avoid addiction. This means, children between ages 1 and 3 must have zero screen time, those between 3 and 9 must have one hour of screen time every day, while adolescents between 9 and 15 years of age can access internet only for two hours daily.

“Parents todayccessed by children need to be kept in common areas like the living room,” said Abraham, stressing that parents should never use gadgets to distract children or keep them busy.

Tejaswi Uthappa agrees. According to her, open lines of communication about internet usage and cyberspace helps people seek help. “Our initiative, for instance, started with just me. But now, there are over a thousand adults — parents, working professionals or homemakers - who come on-board the moment they hear that we combat internet addiction. Only our intent and not our method, matters to them,” she said. “So it is a question of stakeholders acknowledging that this as a problem and coming together to find ways to solve it.”

For more details visit https://cis-india.org/internet-governance/news/economic-times-divya-shekhar-october-13-2018-spending-too-much-time-on-social-media

377 Bites the Dust: Unpacking the long and winding road to the judicial decriminalization of homosexuality in India

Agnidipto Tarafder and Arindrajit Basu — 2018-10-18T00:39:34Z

An informal case comment tracing the journey and assessing the societal implications the recent 377 (Navtej Johar v Union of India).

The article was published in Socio-Legal Review, a magazine published by National Law School of India University on October 11, 2018.

Introduction

After a prolonged illness due to AIDS-related complications, the gregarious Queen front-man Farrokh Bulsara (known to the world as Freddie Mercury) breathed his last in his home in Kensington, London in 1991. Despite being the symbol of gay masculinity for over a decade, Mercury never explicitly confirmed his sexual orientation-for reasons that remain unknown but could stem from prevailing social stigma. Occluded from public discourse and shrouded in irrational fears, the legitimate problems of the LGBT+ community, including the serial killer of HIV/AIDS was still relegated to avoidable debauchery as opposed to genuine illness. Concerted activism throughout the 90’s-depicted on the big screen through masterpieces such as Philadelphia, alerted the Western public of this debacle, which lead to a hard-fought array of rights and a reduction of social ostracization at the turn of the century for the LGBT+ community across western countries. This includes over two dozen countries that have allowed same-sex marriages and a host of others that recognize civil union between same-sex partners in some form.^[1]

On 6^th September, 2018, Section 377 of the Indian Penal Code – a colonial era law that criminalized “carnal intercourse against the order of nature” bit the dust in New Delhi, at the hands of five judges of the Supreme Court of India (Navtej Johar v Union of India).^[2] Large parts of the country celebrated the restoration of the ideals of the Indian Constitution. It was freedom, not just for a community long suppressed, but for the ethos of our foundation that for a century suffered this incessant incongruity. The celebrations were tempered, perhaps by a recognition of how long this fight had taken, the unnecessary hurdles – both judicial and otherwise – that were erected along the way, and a realization of the continued suffering this community might have to tolerate till they truly earn the acceptance they deserve. While the judgment will serve as a document that signifies the sanctity of our constitutional ethos, in the grander scheme of things it is still but a small step, with the potential to catalyze a giant leap forward. For our common future, it is imperative that the LGBT+ community does not undertake this leap alone but is accompanied by the rest of the nation- a nation that recognizes the travails of this long march to freedom.

Long March to Freedom

Modelled on the 1533 Buggery Act in the UK, Section 377 was introduced into the Indian Penal Code by Thomas Macaulay, a representative of the British Raj. While our colonial masters progressed in 1967, the hangover enmeshed in our penal laws lingered on. Public discourse on this legal incongruity emerged initially with the publication of a report titled Less than Gay: A Citizens Report on the Status of Homosexuality in India, spearheaded by activist Siddhartha Gautam, on behalf of the AIDS Bhedbav Virodhi Andolan (ABVA) that sought to fight to decriminalise homosexuality and thereby move towards removing its associated stigma.^[3] The ABVA went on to file a petition for this decriminalisation in 1994. The judicial skirmish continued in 2001 with the Naz Foundation, a Delhi-based NGO that works on HIV/AIDS and sexual health, filing a petition by way of Public Interest Litigation asking for a reading down of the Section. The Delhi High Court initially dismissed this petition – stating that the foundation had no locus standi.[4] Naz Foundation appealed against this before the Supreme Court, which overturned the dismissal on technical grounds and ordered the High Court to decide the case on merits.

The two-judge bench of the Delhi High Court held that Section 377 violated privacy, autonomy and liberty, ideals which were grafted into the ecosystem of fundamental rights guaranteed by Part-III of the Indian Constitution.^[5] It stated that the Constitution was built around the core tenet of inclusiveness, which was denigrated by the sustained suppression of the LGBT+ community. It was an impressive judgment, not only because of the bold and progressive claim it made in a bid to reverse a century and a half of oppression, but also because of the quality of the judgment itself. It tied in principles of international law, along with both Indian and Foreign judgments in addition to citing literature on sexuality as a form of identity. For a brief while, faith in the ‘system’ seemed justified.

Hope, however, is a fickle friend. Four years from the day, an astrologer by the name of Suresh Kumar Koushal challenged the Delhi High Court’s verdict.[6] Some of the reasons behind this challenge would defy any standard sense of rationality. These included national security concerns – as soldiers who stay away from their families^[7] may enter into consensual relationships with each other – leading to distractions that might end up in military defeats. Confoundingly, the Supreme Court’s verdict lent judicial legitimacy to Koushal’s thought process, as they overturned the Naz Foundation judgment and affirmed the constitutional validity of Section 377 on some truly bizarre grounds.^[8] Indian constitutional tradition permits discrimination by the state only if classification is based on an intelligible differential between the group being discriminated against from the rest of the populace; having a rational nexus with a constitutionally valid objective. To satisfy this threshold, the Supreme Court stated, without any evidence, that there are two classes of people-those who engage in sexual intercourse in the ‘ordinary course’ and those who do not- thereby satisfying the intelligible differential threshold.^[9] As pointed out by constitutional law scholar Gautam Bhatia, this differential makes little sense – an extrapolation of this idea could indicate that intercourse with a blue-eyed person was potentially not ‘ordinary’, since the probability of this occurring is rare.^[10] The second justification was based on numbers. The Court argued that statistics pointed to the fact that only 200 people had been arrested under this law, which suggested that it was largely dormant and hence, discrimination doesn’t get established per se.[11] In other words, a plain reading of the judgement might lead one to conclude that the random arrests of a small number of citizens would be constitutionally protected, so long it does not overshoot an arbitrarily determined de minimis threshold! The judgment seemed to drag Indian society ceaselessly into the past. This backward shift internally was accompanied by international posturing by India that opposed the recent wave of UN resolutions which sought to advocate LGBT+ rights.^[12]

Thankfully, there remained a way to correct such Supreme Court induced travesties, through what is known as a curative petition, a concept introduced by the Court itself through one of its earlier judgements.[13] Needless to mention, such a petition was duly filed before the Court.[14] While this curative petition was under consideration, last August, a 9-judge bench of the Court spun some magic through a landmark judgment in Just. (Retd.) K S Puttuswamy v Union of India^[15] which stated that the ‘right to privacy’ was a recognised fundamental right as per the Indian Constitution. The judgment in Koushal was singled out and criticised by Justice Chandrachud who asserted the fact that an entire community could not be deprived of the dignity of privacy in their sexual relations.

Strategically, this was a master-class. While the right to privacy cannot alone serve as the justification for allowing individuals to choose their sexual orientation, in several common law nations including the UK^[16] and the USA^[17], privacy has served as the initial spark for legitimizing same-sex relations. A year before the privacy judgment was delivered, a group of individuals had filed a separate petition arguing that Section 377 violated their constitutional rights. The nature of this petition was intrinsically different^[18] from the Naz Foundation’s, since the Foundation had filed a ‘public interest litigation’ in a representative capacity whereas this petition affected individuals in their personal capacity, implying that the nature of the claim in each case was different.

The cold case file of this petition that crystallised into the iconic judgment delivered last week, was brought to the fore and listed for hearing in January 2018.[19] Justice Chandrachud’s judgement in Puttaswamy, that tore apart the Koushal verdict, had no small role to play in the unfolding of this saga.^[20]

And so the hearings began. The government chose to not oppose the petition and allowed the court to decide the fate of Article 377.[21] This was another convenient manoeuvre by the legislature, effectively shifting the ball into the judiciary’s court, shielding itself from potential pushbacks from its conservative voter-base. However, as public support for decriminalisation started pouring in from various quarters, leaders of religious groups were quick to make their opposition known, leaving the five judges on the bench to decide the fate of a community long suppressed through the clutches of an illegitimate law.

“I am what I am”: The judgement, redemption and beyond

“The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons.”^[22]

Justice Indu Malhotra summed up her short judgement with this momentous pronouncement, adding that ‘history owes an apology’^[23] to the members of the LGBT+ community, for the injustices faced during these centuries of hatred and apathy. It seems fair to suggest that this idea of ‘righting the wrongs of the past’ became the underlying theme of the Supreme Court’s landmark verdict on the constitutionality of Section 377. Five judges, through four concurring but separate opinions, extracted the essence of the claim against this law – protecting the virtue of personal liberty and dignity. In doing so, it exculpated itself from the travesty of Suresh Kaushal, emancipating the ‘miniscule minority’ from their bondage before the law and took yet another step towards restoring faith in the ‘system’ of which the judiciary is currently positioning itself as the sole conscientious wing. Perhaps the only set of people shamed through this verdict were our parliamentarians, who on two separate occasions in the recent past had thwarted any chance of change when they opposed, insulted and ridiculed Dr. Shashi Tharoor while he attempted to introduce a Bill decriminalizing homosexuality on the floor of the House.^[24]

Earlier in the day, the Chief Justice, authoring the lead opinion for himself and Justice Khanwilkar, began with the ominous pronouncement that ‘denying self-expression (to the individual) was an invitation to death’,^[25] emphasizing through his long judgement the importance of promoting individuality in all its varied facets- in matters of choice, privacy, speech and expression.^[26] Arguing strongly in support of the ‘progressive realization of rights’,^[27] which he identified as the soul of constitutional morality, the Chief Justice outlawed the ‘artificial distinction’ drawn between heterosexual and homosexual through the application of the ‘equality’ doctrine embedded in Articles 14 and 15.^[28] Noting that the recent criminal law amendment recognizes the absence of consent as the basis for sexual offences, he pointed out the lack of a similar consent-based framework in the context of non peno-vaginal sex, effectively de-criminalizing ‘voluntary sexual acts by consenting adults’ as envisaged within the impugned law.^[29] The Chief Justice went on to elaborate that the right to equality, liberty and privacy are inherent in all individuals, and no discrimination on grounds of sex would survive the scrutiny of the law.^[30]

Justice Nariman in his separate opinion charted out the legislative history behind the adoption of the Indian Penal Code. In his inimitable manner, he travelled effortlessly across time and space to source historical material and legislations, judicial decisions and literary critique from various jurisdictions to bolster the claim that the discrimination faced by homosexuals had no basis in law or fact.^[31] For instance, referring to the Wolfenden Committee Report in the UK regarding decriminalisation of homosexuality which urged legislators to distinguish between ‘sin and crime’, the judge went on to lament the lives lost to mere social perception, including that of Oscar Wilde and Alan Turing.^[32] Repelling the popular myth of homosexuality being a ‘disease’, he quoted from the Mental Healthcare Act, 2017, the US Supreme Court’s seminal judgment in Lawrence v Texas^[33] and several other studies on the intersection of homosexuality and public health, dismissing this contention entirely. Justice Nariman, invoking the doctrine of ‘manifest arbitrariness’^[34] to dispel the notion that the law treating homosexuals was ‘different’. Since it was based on sexual identity and orientation, such a law was a gross abuse of the equal protection of the Constitution.

Justice Chandrachud, having already built a formidable reputation as the foremost liberal voice on the bench, launched a scathing, almost visceral attack against the idea of ‘unnatural sexual offence’ insofar as it applied to homosexuality.^[35] Mirroring the concern first espoused by Justice Nariman about the chilling effect of majoritarianism, he wondered aloud what societal harm did a provision like Section 377 seek to prevent. In fact, his separate opinion is categorical in its negation of the ‘intelligible differentia’ between ‘natural’ and ‘non-natural’ sex, sardonically stating the perpetuation of heteronormativity cannot be the object of a law.^[36]

As an interesting aside, his judgement in Puttaswamy famously introduced a section called ‘discordant notes’^[37] which led an introspective Court to disown and overturn disturbing precedent from the past, most notably the Court’s opinion in the ADM Jabalpur,^[38] decided that the right to seek redressal for violation of Fundamental Rights remained suspended as a consequence of the National Emergency.

In a similar act of constitutional manipulation, he delved into a critique of the Apex Court’s judgement in the Nergesh Meerza^[39] case. This was a decision which upheld the discriminatory practice of treating men and women as different classes of employees by Air India, denying the women employees certain benefits ordinarily available to men. The Court in Nergesh Meerza read the non-discrimination guarantee in Article 15 narrowly to understand that discrimination based on ‘sex alone’ would be struck down. He held that since the sexes had differences in the mode of recruitment, promotion and conditions of service, it did not tantamount to ‘merely sex based’ categorization and was an acceptable form of classification. In his missionary zeal to exorcise the Court of past blemishes, Dr. Chandrachud observed that interpreting constitutional provisions through such narrow tests as ‘sex alone’ would lead to denuding the freedoms guaranteed within the text. Though not the operative part of the judgement, one hopes his exposition of the facets of the equality doctrine and fallacies in reasoning in Nargesh Meerza will pave the way for just jurisprudence to emerge in sex discrimination cases in the future.^[40]

Reverting to the original issue, the judge addresses several key concerns voiced by the LGBT+ community through their years of struggle. He spoke of bridging the public-private divide by ensuring the protection of sexual minorities in the public sphere as well, wherein they are most vulnerable. Alluding to his opinion in Puttaswamy, he declares that all people have an inalienable right to privacy, which is a fundamental aspect of their liberty and the ‘soulmate of dignity’- ascribing the right to dignified life as a constitutional guarantee for one and all. Denouncing the facial neutrality^[41] of Section 377, insofar as it targets certain ‘acts and not classes of people’, his broad and liberal reading of non-discrimination goes beyond the semantics of neutrality and braves the original challenge- fashioning a justice system with real equality at its core.

Shall History Absolve Us?

Where to from here then? Can the 500 pages of this iconic judgment magically change the social norms that define the existence of LGBT+ communities in modern Indian society? If the reception of this judgement by the conservative factions within society is anything to go by, the answer is clear enough. Yet, the role of this judgment – in an ecosystem of other enablers – might just be a crucial first step. As noted by Harvard Law School professor Lawrence Lessig, law can create, displace or change the collective expectations of society by channelling societal behaviour in a manner that conforms with its contents.^[42] An assessment of the impact of Brown v Board of Education on African-Americans offers an interesting theoretical analogy.^[43]

The unanimous decision of the US Supreme Court in Brown marked a watershed moment in American history that struck down the ‘separate but equal’ doctrine which served as the basis for segregation between communities of colour and the dominant White majority in American public schools. While this ruling initially faced massive resistance, it laid the edifice for progressive legislation such as the Civil Rights Act and the Voting Act a decade later.^[44] While its true impact on evolving acceptable standards of social behaviour remains disputed with valid arguments on all sides, Brown kick-started a counter-culture that sought to wipe out the toxic norms that the Jim Crow-era had birthed in the 1950s. Along with subsequent decisions by the US Supreme Court, it acted as the catalyst that morphed the boundaries between ‘us’ and ‘them’. Republican Senator Barry Goldwater attempted to stifle this counterculture in 1964 by undertaking a sustained campaign that opposed the dictum in Brown not in opposition to African-Americans but instead in opposition to an overly intrusive federal government that was taking away from the cultural traditions and values, particularly of the South.^[45] In the past few years, cultural apathy seems to have taken a more sinister turn as recent incidents of police violence and the rebirth of white supremacist movements indicate.

Lessons from a different context in an alternate society can never be transposed in another without substantial alterations. Discrimination is intersectional and a celebration of identity is a recognition of intersectionality. Therefore, the path ahead for the LGBT+ community lies in crafting a strategy that works for them – a strategy that can draw from lessons learned in other contexts. Last week’s judgment could morph into a point of reference for a counter-cultural movement that works to remove the stains of oppression. The key challenge is carrying this message to swathes of the populace who, goaded by leading public figures, continue to treat homosexuality as an unnatural phenomenon^[46].

Being a majority Hindu nation, one possible medium of communication could be reference to ancient Hindu scriptures that do not ostracize individuals based on their sexual orientation but treat them as fellow sojourners on their path to Nirvana, the idea of spiritual emancipation, a central tenet of Hindu belief.^[47] Strategically, using this framework as a dangling carrot for religious conservatives may be a potential conversation starter but comes riddled with potholes, as the same scriptures could be interpreted to justify subjugation of women, for example. A more holistic approach might be reading these scriptures into the overarching foundation stone of society -The Indian Constitution, which is not a rigid, static document – stuck in the time of its inception – but is a dynamic one that responds to and triggers the Indian social and political journey. The burden of a constitution, as reiterated by Chief Justice Misra and Dr. Chandrachud is to ‘draw a curtain’ on the past of social injustice and prejudice and embrace constitutional morality, a cornerstone of which is the principle of inclusiveness. Inclusiveness driven by rhetoric in political speeches and storylines on the big screen. Inclusiveness that fosters symbiosis between the teachings of religious scriptures and that of Constitutional Law Professors – an inclusiveness that begets the idea of India, which is a fair deal for all Indians.

…And Justice for all?

In the aftermath of this decision come further legal challenges. Legally, while the ‘right to love’ has been vindicated, the right to formalise this union through societal recognition remains to be established. This judgement paves the way for the acceptance of homosexual relationships, but not necessarily the right to marry for a homosexual couple. There are passages within Justice Chandrachud’s visionary analysis which directly address this concern, and advocate for the ‘full protection’ of the law being extended to the LGBT+ populace. It will certainly be instructive for future courts, and one tends to remain hopeful that the long march to freedom for the LGBT+ community and its supporters will not come to a screeching halt through judicial intervention or State action. If anything, the wings of government should bolster these efforts, in view of this verdict.

That said, social acceptance seldom waits on the sanction of the law.

The outpouring of public support which was witnessed through public demonstrations, social media advocacy and concerted efforts from so many quarters to bring down this draconian law needs to continue and consolidate. There are evils yet, and the path to genuine inclusiveness in this country (as in most others) is littered with thorns. And even greater resistance is likely to emerge when tackling some of these issues, which tend to hit closer home than others.

While this judgement entered into detailed discussions on the issue of consent, it remained disquietingly silent on a most contentious subject, perhaps because it was perceived to be beyond the terms of reference. The exception of marital rape carved out in the Indian Penal Code, which keeps married relationships outside the purview of rape laws, remains as a curse – a reminder that gender equality in this nation will only come at tremendous human cost. The institution of family, that sacrosanct space which even the most liberal courtrooms in India have sought to protect, stands threatened. Malignant patriarchy will raise its head and claim its pound of flesh before the dust settles, and in the interest of freedom, it shall be up to the Apex Court to ensure that it settles on the right side of history. Else, all our progress, howsoever incremental, may be undone by this one stain on our collective conscience.

*Agnidipto Tarafder is an Assistant Professor of Law at the National University of Juridical Sciences, Kolkata, where he teaches courses in Constitutional Law, Labour Law and Privacy.

*Arindrajit Basu recently finished his LLM (Public International Law) at the University of Cambridge and is a Policy Officer at the Centre for Internet & Society, Bangalore

_________________________________________________________________________________________

^[1] Gay Marriage Around the World, Pew Research Centre (Aug 8, 2017) available at http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/.

^[2] W. P. (Crl.) No. 76 of 2016 (Supreme Court of India).

^[3] Aids Bhedbav Virodhi Andolan, Less than Gay: A Citizen’s Report on the Status of Homosexuality in India (Nov-Dec, 1991) available at https://s3.amazonaws.com/s3.documentcloud.org/documents/1585664/less-than-gay-a-citizens-report-on-the-status-of.pdf.

[4] P.P Singh, 377 battle at journey’s end (September 6, 2018) available at https://indianexpress.com/article/explained/section-377-verdict-supreme-court-decriminalisation-gay-sex-lgbtq-5342008/.

^[5] (2009) 160 DLT 277; W.P. (C) No.7455/2001 of 2009 (Delhi HC).

[6] Sangeeta Barooah Pisharoty, It is like reversing the motion of the earth, The Hindu (December 20, 2013) available at https://www.thehindu.com/features/metroplus/society/it-is-like-reversing-the-motion-of-the-earth/article5483306.ece.

^[7] Id.

^[8] (2014) 1 SCC 1 (Supreme Court of India).

^[9] Ibid, at para 42.

^[10] Gautam Bhatia, The unbearable wrongness of Koushal v Naz Foundation, Ind Con Law Phil (December 11, 2013)

[11] supra note 8, at para 43.

^[12] Manjunath, India’s UN Vote: A Reflection of Our Deep Seated Anti-Gay Sentiments, Amnesty International (Apr 20, 2015) available at https://amnesty.org.in/indias-un-vote-reflection-societys-deep-seated-anti-gay-prejudice/.

[13] The concept of curative petitions was laid down in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 (Supreme Court of India).

[14] Ajay Kumar, All you need to know about the SC’s decision to reopen the Section 377 debate, FIRSTPOST (February 3, 2016) available at https://www.firstpost.com/india/all-you-need-to-know-about-the-scs-decision-to-reopen-the-section-377-debate-2610680.html.

^[15] 2017 (10) SCC 1(Supreme Court of India).

^[16] The Wolfenden Report, Brit. J; Vener. Dis. (1957) 33, 205 available at https://sti.bmj.com/content/sextrans/33/4/205.full.pdf.

^[17] Griswold v Connecticut, 381 US 479.

^[18] Gautam Bhatia, Indian Supreme Court reserves judgment on the de-criminalisation of Homosexuality, OHRH Blog (August 15, 2018) available at http://ohrh.law.ox.ac.uk/the-indian-supreme-court-reserves-judgment-on-the-de-criminalisation-of-homosexuality/.

[19] Krishnadas Rajagopal, Supreme Court refers plea to decriminalize homosexuality under Section 377 to larger bench, The Hindu (January 8, 2018) available at https://www.thehindu.com/news/national/supreme-court-refers-377-plea-to-larger-bench/article22396250.ece.

^[20] Puttuswamy, paras 124-28.

[21] Aditi Singh, Government leaves decision on Section 377 to the wisdom of Supreme Court, LIVEMINT (July 11, 2018) available at https://www.livemint.com/Politics/fMReaXRcldOWyY20ELJ0GK/Centre-leaves-it-to-Supreme-Court-to-decide-on-Section-377.html.

^[22] supra note 2, at para 20.

^[23] Ibid.

^[24] Express News Service, Lok Sabha votes against Shashi Tharoor’s bill to decriminalize homosexuality again, Indian Express (March 12, 2016) available at https://indianexpress.com/article/india/india-news-india/decriminalising-homosexuality-lok-sabha-votes-against-shashi-tharoors-bill-again/.

^[25] Navtej Johar v. Union of India, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India) at para 1.

^[26] Ibid, at para 2.

^[27] Ibid, at para 82.

^[28]Ibid, at para 224.

^[29] Ibid, at para 253.

^[30] Ibid.

^[31] Separate Opinion, RF Nariman, paras 1-20.

^[32] Ibid, at paras 28-9.

^[33] Ibid. Lawrence v Texas, 539 US 558 (2003), discussed in paras 108-09.

^[34] Ibid, at para 82.

^[35] Separate Opinion, DY Chandrachud, at para 28.

^[36] Ibid, at para 56-7, 61.

^[37] Supra note 20, at para 118-9.

^[38] ADM Jabalpur v Shiv Kant Shukla (1976) 2 SCC 521. (Supreme Court of India)

^[39] Air India v Nergesh Meerza (1981) 4 SCC 335. (Supreme Court of India)

^[40] Supra note 25, at paras 36-41.

^[41] Ibid, at paras 42-43, 56.

^[42] Lawrence Lessig, The Regulation of Social Meaning, 62 University of Chicago Law Review 943 ,947 (1995)

^[43] Brown v. Board of Education of Topeka, 347 U.S. 483.

^[44] David Smith, Little Rock Nine: The day young students shattered racial segregation, The Guardian (September 24, 2017) available at https://www.theguardian.com/world/2017/sep/24/little-rock-arkansas-school-segregation-racism.

^[45]Michael Combs and Gwendolyn Combs, Revisiting Brown v. Board of Education: A Cultural, Historical-Legal, and Political Perspective (2005).

^[46] Poulomi Saha, RSS on 377: Gay sex not a crime but is unnatural, India Today (September 6, 2018) available at https://www.indiatoday.in/india/story/rss-on-section-377-verdict-gay-sex-not-a-crime-but-is-unnatural-1333414-2018-09-06.

^[47] S Venkataraman and H Varuganti, A Hindu approach to LGBT Rights, Swarajya (July 4, 2015) available at https://swarajyamag.com/culture/a-hindu-approach-to-lgbt-rights.

For more details visit https://cis-india.org/internet-governance/blog/socio-legal-review-national-law-school-of-india-university-agnidipto-tarafder-and-arandrajit-basu-377-bites-the-dust

Are online shows obscene?

Admin — 2018-10-16T15:58:40Z

Should content on online platforms such as Netflix be monitored and censored? How can they show nudity when films made for the cinema halls can’t, a petition wants to know.

The article by Anila Kurian was published in Deccan Herald on October 10, 2018. Akriti Bopanna was quoted.

Last Friday, the Bombay High Court issued a notice to the Ministry of Information and Broadcasting over a public interest case seeking regulation of content online.

The petitioner, Divya Ganeshprasad Gontia, finds content on online platforms such as Netflix “vulgar and obscene.” The PIL argues that broadcasting nude or vulgar scenes in a cognisable offence under the Indian Penal Code, the Cinematograph Act, Indecent Representation of Women (Prohibition) Act of 1986 and the Information Technology Act of 2000.

Advocate Shyam Dewani, the petitioner’s lawyer in Mumbai, spoke extensively to Metrolife about the case.

“There is a falling standard when it comes to web series nowadays. It started with just movies but now, with the form becoming popular, competitors have started making other shows. The more liberal the forum became, the more obscene the content became,” he says. Many shows are now vulgar and hurt religious sentiments. There must be some restriction, he argues.

No web series can be above the law and creators should follow guidelines, Dewani contends.

“There are extensive advertisements promoting shows on these online portals and even children have access to them. Other countries have regulations like parental control, for example, so why can’t we?” he says.

Shows like ‘Gandi Baat’ on ALTBalaji and ‘Sacred Games’ on Netflix feature ‘vulgar content,’ and are offensive to women, the petition alleges. One of the ways in which this could be curbed, the petitioner argues, is for the I&B ministry to set up a pre-screening committee for web shows, films and other content released directly on these platforms.

Even though these shows have been marked ‘18+’ as their certication, there is no authority making the certication, says Dewani.

“Who are you to self-certify your own show? If content for movies also followed the pattern, there would be a huge hue and cry. So regulating it is all we are asking for,” he says.

Akriti Bopanna, policy officer at the Centre for Internet and Society, Bengaluru, says it is true that sections of the IPC say you can’t broadcast nudity and vulgar content. “Because online portals directly publish on the Internet, there is no one to check them. There’s a sense that since there’s no censor board, they can get away with anything," she says.

The audiences are different for online platforms, however.

“While we see films that are bold and good for society, there are others that are the complete opposite. There are no hard and fast rules to say if this is good or bad for freedom of speech. Right now, this could go either way,” she says.

Here’s what others in the entertainment industry say.

Danish Sait, Actor: Moral policing isn’t good
“I’ve grown to realise that we can’t have a blanket rule to anything in our country. The online medium is the one section of society that is desperately trying to be liberal but that’s also under the scanner now. I understand that kids are exposed to and impacted by the digital world, in which case, this doesn’t seem like such a bad idea. But it also feels like everything is looked at from a moral policing point of view. Even I find some shows explicit. But as an adult, I make the choice to move on. I think this can be solved if there is parental control. So, for the rest of the world, live and let live.”

Kubbra Sait, Actor (Cuckoo in Sacred Games) : They shouldn't dictate terms
“Censoring online content is unfair. If the content is not something that causes any communal riot affects the peace and dynamics of our country or society, it should not be censored. We need the authorities to give us guidelines on who can consume it, but they shouldn’t dictate what the content should be.

Children are uploading videos of harming themselves, and that is not regulated. Artistes have reached where they have now because they broke barriers set in the past. If a committee starts dictating things to us, we will go back to regressive content. We used to applaud husbands slapping their wives for infidelity, and understood that two bobbing flowers was a symbol of sex. It’s 2018 and we’ve evolved. So please give us the freedom somewhere. Let me choose the content I want and watch it where I want.”

Rasika Dugal, Actor: Don't curb free expression
“I have never been in favour of censorship. I feel you should consume and make sense of the material according to your own sensibility. But there seems to be an understanding in society that some things need regulation. As an artiste, I am against that. Having said that, if there are already certain checks and balances in place, which aren’t curbing your freedom of expression, then it shouldn’t be a problem. I hope, when this eventually rolls out, it doesn’t become a place from which everything is looked at from a moral high ground and doesn’t take away from your freedom of expression.”

Pawan Kumar, Director: Self-censorship works better
“At the end of the day, censorship is a personal choice. No matter how much the government does whatever it does, people will find a way to watch what they want. By restricting like this, I think you are only affecting creative jobs. There could be good content that we might miss out on. Then again, content creators will always and newer ways to bring out their stories, whether it is adult-oriented or sensitive issue-oriented. The more you barricade it, the more new mediums will come out. It’s an on-going journey. I think what should probably be done is to educate one about self-censorship; you decide what to watch and not to.”

Why the furore?
Many films and series on Netflix feature explicit scenes of lovemaking. The narratives of Lust Stories and Sacred Games are spiced with scenes rarely seen before on the big screen in India. Content for web content is not screened by any authority, and therefore enjoys greater freedom than regular films, which must go through a certification process controlled by the government.

Ball in court
The High Court has sought responses from the ministries of information technology, law and home affairs. They have to respond by October 31.

For more details visit https://cis-india.org/internet-governance/news/deccan-herald-october-10-2018-anila-kurian-are-online-shows-obscene

Internet services not to be affected as DNS servers undergo update

Admin — 2018-10-16T14:28:20Z

Internet services across the country are unlikely to be impacted over the next 48 hours even as the Domain Name System (DNS) servers undergo a security update coordinated by global regulator, Internet Corporation of Assigned Names and Numbers (ICANN).

The article by an HT correspondent was published in the Hindustan Times on October 12, 2018. Sunil Abraham was quoted.

“ICANN, the global certifying authority for DNS security, had taken a decision a year back to change the Trust Key. All ISPs were notified to update their configuration to the new key. Accordingly, the Internet Service Providers (ISP) have confirmed that they have already updated their DNS servers with the new key and the country does not carry any risk of impact on Internet services,” said National Cyber Security Coordinator Gulshan Rai in a statement on Friday. DNS servers are like the phone book for the Internet which translates human-friendly computer labels into their respective IP addresses. If the DNS servers become inactive, it will be impossible for users to access different websites in the absence of this translation.

The ICANN’s ongoing maintenance work over the next two days is to change the cryptographic key that helps protect DNS. This has been necessitated to counter the rising incidents of cyber attacks, ICANN said.

Rai had held a meeting with all ISPs in this regard on September 5. During which ISPs said that they had taken all necessary steps to update their systems in order to avoid any inconvenience to their users. Rai reviewed the situation again on Friday.

Sunil Abraham, founder, Centre for Internet and Society, said, “This security update is the responsibility of the management and network administrators at ISPs and telcos. Only time will tell what percentage of people have done their job. Its very likely that this number is very small, in case of people who haven’t updated their servers,” he explained.

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-october-12-2018-internet-services-not-to-be-affected-as-dns-servers-undergo-update

Sales of surveillance cameras are soaring, raising questions about privacy

Admin — 2018-10-16T14:22:55Z

The Telangana government wants more eyes on the streets to upgrade Hyderabad’s safety. It has asked enterprises, public sectors, residential associations and individuals to install closed-circuit television cameras (CCTVs) in and around their premises.

The article by Rahul Sachitanand was published in Economic Times on October 14, 2018. Elonnai Hickok was quoted.

More than a lakh CCTVs are expected to be installed across the city in the next few years. The initiative is part of the Nenu Saitham (Telugu for Me Too) project — being promoted by Hyderabad Police, which will monitor the feed. To ensure that lowquality CCTVs are not installed and the project is sustainable, the police has asked citizens to only buy from selected vendors.

With this move, launched in November 2017, the Telangana govt joins a growing list of governments, corporations, educational institutes, residential buildings and small businesses across the country that are buying such technology.

According to industry estimates, over a million surveillance units were sold every month a couple of years ago. Now it is two million. The Indian market is growing 20-25% annually, say experts. Frost & Sullivan says the security & surveillance market was worth Rs 8,200 crore in FY2017, reached Rs 11,000 crore in FY2018 and is expected to touch Rs 20,000 crore in FY2020.

The rise in CCTV coverage can also be observed anecdotally. There’s a steady uptick in CCTV clips circulating on Whatsapp, capturing crimes or funny events that would otherwise have gone undocumented. Many of the sensational crimes recently, including multiple incidents of murder in Tamil Nadu, were captured on CCTV cameras, distilling the pure horror of those moments on our mobile screens, and also offering valuable proof to nail the culprits.

The surveillance and security boom is fed by several companies, ranging from homegrown firms such as CP Plus to joint ventures such as Prama Hikvision to multinationals such as Bosch, Panasonic, Honeywell and Axis. The Telangana project, for example, helped Sweden-based Axis Communications widen its India market. It has already installed 1,500 cameras, and more will be installed soon. Other state governments have or are in the process of placing orders.

The Swedish company says it recently installed cameras and associated technology across a range of large corporate and government establishments across India. “We are at the beginning of a five-year boom cycle for these devices,” says Sudhindra Holla, sales director (India & Saarc), Axis Communications. “We are catering to a rush of orders ranging from large companies with complex security infrastructure to deals from government agencies in small towns such as Nanded and Kolhapur.”

Multiple factors are driving the growth in the CCTV segment, says Manu Tiwari, programme manager (automation and electronics practice), Frost and Sullivan. A strong government push to enhance security; purchases for initiatives such as the Smart City project, which covers 100 cities, and the Rs 2,219 crore allocated under the Nirbhaya Fund for women’s safety, which covers eight cities, are some of the growth drivers.

According to Sanjay Kaushik, managing director of security consultancy Netrika Consulting, there is a push to better use CCTV feeds to improve security across India. “While the focus hitherto has been on post facto scouting of footage to find perpetrators, organisations are now trying to be more proactive with their monitoring to spot suspicious people and packages before crimes occur.”

This could involve closely looking at footage to spot suspicious movements at places such as malls or airports or using technology to spot suspicious objects left unattended for long periods. Then, there’s also a focus on making sure the cameras are installed correctly. “Recognisability is key. Organisations are being pushed to ensure simple things like camera feeds are free of obstructions, licence plates are visible in feeds and there is adequate lighting,” adds Kaushik. Advances in technology have ensured that CCTV systems are cheaper and more accessible.

While large enterprises had taken to such technology earlier, even smaller commercial establishments and private residents now can afford to install security systems. The prices have practically halved over the last couple of years. An entry-level camera is now available for a little over Rs 2,000. “Even the cost of an integrated solution, which was as much as Rs 40,000 to Rs 50,000 three or four years ago, is today available for as little as Rs 15,000,” says Yogesh Dutta, COO of New Delhi-based CP Plus. “A rapid increase in the number of CCTVs sellers and technicians has also helped widen access.” The devices have become popular as it helps law enforcers to tackle crime, he adds.

CP Plus’s customers include Vedanta Power and Odisha Police, which has also decided to use e-surveillance to enhance security. Frost and Sullivan says small & medium enterprises and large corporations were together the biggest end-user segments in FY18. This segment had a market share of 33%. Residential had a 28% market share; the industrial segment had 18% and the government 13%, it said. Other major end-user segments are hospitality, education and healthcare.

An increase in such surveillance, however, may be double-edged, say privacy advocates. While a blanket coverage using CCTVs may give citizens a feeling of security, India’s rudimentary legislation around who can access these feeds is a problem. Some countries such as the UK and UAE have stricter guidelines on this. Law-enforcement agencies can access such feeds while following up on their investigations, says Supreme Court lawyer Karnika Seth, without procuring a warrant. “As long as it is for this purpose, it is within the purview of the law. However, with the new judgment on privacy, anything more would be a no-go area.”

The use of CCTV can potentially impinge on the rights of an individual, says Elonnai Hickok, who heads privacy research at the Centre for Internet and Society, an advocacy outfit in Bengaluru. “Technically speaking, the feed can reveal personal information about an individual, including identity, location and daily patterns. Because the feed captures individuals in public spaces, it is not possible for people to have an opt-out option. The access and use of the data are often unclear.” Regulations are starting to address the use of CCTV imagery in some places. The European Union’s General Data Protection Regulation, for example, has recognised that imagery that identifies an individual is personal data and thus requires lawful, fair and transparent processing.

The draft data protection bill by the Srikrishna committee also says CCTV imagery would be considered personal data. If CCTV cameras are put in place by a private actor, Hickok contends, they would need to adhere to the principles laid out in chapters II and III of the draft — which covers fair and reasonable processing, purpose limitation, collection limitation, lawful processing, notice, data quality, data storage limitation, accountability and consent.

For feeds used by the state for reasons such as public safety, the consent clause will not apply. But state actors will still need to adhere to the principles laid out in chapter II. If CCTVs are used for the purpose of prevention, detection, investigation and prosecution of a crime, it will be exempt from adhering to the requirements of the bill. However, this use must be backed by a law passed in Parliament and the data cannot be retained once its purpose has been met.

There are more legal restrictions if the CCTV application is integrated with capabilities that capture biometrics. "Clear responsibilities and reasons should be enunciated, the policies should be clearly documented and publicised and, importantly, the cost and benefits should be ascertained," Hickock argues. ¡§It is important to have technical safeguards like encryption and procurement guidelines.

Legal and privacy issues aside, the commercial aspect is clearly looking bright. Prama Hikvision, a Chinese-Indian joint venture, has invested Rs 100 crore in a factory in Bhiwandi to make 500,000 cameras a month. A second factory, possibly in Telangana, is expected to go on stream soon, with a monthly capacity of 1,50,000 units. "CCTVs have gone from being used by a sliver of companies, primarily banks and jewellers, to being adopted by a much broader audience," says Ashish Dhakan, MD and CEO, Prama Hikvision. "Our client list includes companies in the sectors of transportation, power, petroleum, oil and gas and retail."

Another trend market players have spotted is a shift from analog, which used tapes to record footage, to digital systems, where recording time and storage space are not major constraints. "We see continuous enhancement to megapixel (displays) from lowresolution, improved compression technology. This allows more data, more storage capacity, and overall lowering of cost for storage recording devices," says Sharad Yadav, general manager, Honeywell Building Technologies, India. Frost and Sullivan analyst Tiwari lists emerging offerings - including intelligent video surveillance, wireless systems and higher resolution of visuals - as features that will define the next-generation devices.

But digital also comes with some dangers. As CCTV cameras go from standalone devices to being digital and connected ones, experts say there is a risk of hacking. Hackers may also be able to use the network as a gateway. This could give hackers access to much more than just the camera feed. "Cybersecurity is a constant focus for us," says Holla of Axis Communications. "While no camera is hackproof, we believe we have built enough capabilities to react to these hacks and quickly release patches to secure them."

Others such as Hickok of CIS say more safeguards are required. "Technical safeguards like encryption and procurement guidelines are also important, as has been highlighted by the UK Information Commissioner's Office," she says. Keeping the cameras safe may be as important as safeguarding the lives these devices monitor.

For more details visit https://cis-india.org/internet-governance/news/economic-times-rahul-sachitanand-october-14-2018-sales-of-surveillance-cameras-are-soaring-raising-questions-about-privacy

Why Data Localisation Might Lead To Unchecked Surveillance

pranesh — 2018-10-16T14:08:34Z

In recent times, there has been a rash of policies and regulations that propose that the data that Indian entities handle be physically stored on servers in India, in some cases exclusively. In other cases, only a copy needs to be stored.

The article was published in Bloomberg Quint on October 15, 2018 and also mirrored in the Quint.

In April 2018, the Reserve Bank of India put out a circular requiring that all “data relating to payment systems operated by them are stored in a system only in India” within six months. Lesser requirements have been imposed on all Indian companies’ accounting data since 2014 (the back-up of the books of account and other books that are stored electronically must be stored in India, the broadcasting sector under the Foreign Direct Investment policy, must locally store subscriber information, and the telecom sector under the Unified Access licence, may not transfer their subscriber data outside India).

The draft e-commerce policy has a wide-ranging requirement of exclusive local storage for “community data collected by Internet of Things devices in public space” and “data generated by users in India from various sources including e-commerce platforms, social media, search engines, etc.”, as does the draft e-pharmacy regulations, which stipulate that “the data generated” by e-pharmacy portals be stored only locally.

While companies such as Airtel, Reliance, PhonePe (majority-owned by Walmart) and Alibaba, have spoken up in support the government’s data localisation efforts, others like Facebook, Amazon, Microsoft, and Mastercard have led the way in opposing it.

Just this week, two U.S. Senators wrote to the Prime Minister’s office arguing that the RBI’s data localisation regulations along with the proposals in the draft e-commerce and cloud computing policies are “key trade barriers”. In her dissenting note to the Srikrishna Committee's report, Rama Vedashree of the Data Security Council of India notes that, “mandating localisation may potentially become a trade barrier and the key markets for the industry could mandate similar barriers on data flow to India, which could disrupt the IT-BPM (information technology-business process management) industry.”

Justification For Data Localisation

What are the reasons for these moves towards data localisation?

Given the opacity of policymaking in India, many of the policies and regulations provide no justification at all. Even the ones that do, don’t provide cogent reasoning.

The RBI says it needs “unfettered supervisory access” and hence needs data to be stored in India. However, it fails to state why such unfettered access is not possible for data stored outside of India.

As long as an entity can be compelled by Indian laws to engage in local data storage, that same entity can also be compelled by that same law to provide access to their non-local data, which would be just as effective.

What if they don’t provide such access? Would they be blacklisted from operating in India, just as they would if they didn’t engage in local data storage? Is there any investigatory benefit to storing data in India? As any data forensic expert would note, chain of custody and data integrity are what are most important components of data handling in fraud investigation, and not physical access to hard drives. It would be difficult for the government to say that it will block all Google services if the company doesn’t provide all the data that Indian law enforcement agencies request from it. However, it would be facile for the RBI to bar Google Pay from operating in India if Google doesn’t provide it “unfettered supervisory access” to data.

The most exhaustive justification of data localisation in any official Indian policy document is that contained in the Srikrishna Committee’s report on data protection. The report argues that there are several benefits to data localisation:

Effective enforcement,
Avoiding reliance on undersea cables,
Avoiding foreign surveillance on data stored outside India,
Building an “Artificial Intelligence ecosystem”

Of these, the last three reasons are risible.

Not A Barrier To Surveillance

Requiring mirroring of personal data on Indian servers will not magically give rise to experts skilled in statistics, machine learning, or artificial intelligence, nor will it somehow lead to the development of the infrastructure needed for AI.

The United States and China are both global leaders in AI, yet no one would argue that China’s data localisation policies have helped it or that America’s lack of data localisation polices have hampered it.

On the question of foreign surveillance, data mirroring will not have any impact, since the Srikrishna Committee’s recommendation would not prevent companies from storing most personal data outside of India.

Even for “sensitive personal data” and for “critical personal data”, which may be required to be stored in India alone, such measures are unlikely to prevent agencies like the U.S. National Security Agency or the United Kingdom’s Government Communications Headquarters from being able to indulge in extraterritorial surveillance.

In 2013, slides from an NSA presentation that were leaked by Edward Snowden showed that the NSA’s “BOUNDLESSINFORMANT” programme collected 12.6 billion instances of telephony and Internet metadata (for instance, which websites you visited and who all you called) from India in just one month, making India one of the top 5 targets.

This shows that technically, surveillance in India is not a challenge for the NSA.

So, forcing data mirroring enhances Indian domestic intelligence agencies’ abilities to engage in surveillance, without doing much to diminish the abilities of skilled foreign intelligence agencies.

As I have noted in the past, the technological solution to reducing mass surveillance is to use decentralised and federated services with built-in encryption, using open standards and open source software.

Reducing reliance on undersea cables is, just like reducing foreign surveillance on Indians’ data, a laudable goal. However, a mandate of mirroring personal data in India, which is what the draft Data Protection Bill proposes for all non-sensitive personal data, will not help. Data will stay within India if the processing happens within India. However, if the processing happens outside of India, as is often the case, then undersea cables will still need to be relied upon.

The better way to keep data within India is to incentivise the creation of data centres and working towards reducing the cost of internet interconnection by encouraging more peering among Internet connectivity providers.

While data mirroring will not help in improving the enforcement of any data protection or privacy law, it will aid Indian law enforcement agencies in gaining easier access to personal data.

The MLAT Route

Currently, many forms of law enforcement agency requests for data have to go through onerous channels called ‘mutual legal assistance treaties’. These MLAT requests take time and are ill-suited to the needs of modern criminal investigations. However, the U.S., recognising this, passed a law called the CLOUD Act in March 2018. While the CLOUD Act compels companies like Google and Amazon, which have data stored in Indian data centres, to provide that data upon receiving legal requests from U.S. law enforcement agencies, it also enables easier access to foreign law enforcement agencies to data stored in the U.S. as long as they fulfill certain procedural and rule-of-law checks.

While the Srikrishna Committee does acknowledge the CLOUD Act in a footnote, it doesn’t analyse its impact, doesn’t provide suggestions on how India can do this, and only outlines the negative consequences of MLATs.

Further, it is inconceivable that the millions of foreign services that Indians access and provide their personal data to will suddenly find a data centre in India and will start keeping such personal data in India. Instead, a much likelier outcome, one which the Srikrishna Committee doesn’t even examine, is that many smaller web services may find such requirements too onerous and opt to block users from India, similar to the way that Indiatimes and the Los Angeles Times opted to block all readers from the European Union due to the coming into force of the new data protection law.

The government could be spending its political will on finding solutions to the law enforcement agency data access question, and negotiating solutions at the international level, especially with the U.S. government. However it is not doing so.

Given this, the recent spate of data localisation policies and regulation can only be seen as part of an attempt to increase the scope and ease of the Indian government’s surveillance activities, while India’s privacy laws still remain very weak and offer inadequate legal protection against privacy-violating surveillance. Because of this, we should be wary of such requirements, as well as of the companies that are vocal in embracing data localisation.

For more details visit https://cis-india.org/internet-governance/blog/bloomberg-quint-pranesh-prakash-october-15-2018-why-data-localisation-might-lead-to-unchecked-surveillance

Community Standards Roundtable Conversations

Admin — 2018-10-16T14:01:55Z

Ambika Tandon was a participant in a roundtable organized by Facebook, School of Media & Cultural Studies, and Tata Institute of Social Sciences in Bengaluru on October 7, 2018.

The agenda for the roundtable was to discuss their community standards, particularly hate speech and harassment, and receive feedback from a feminist and gendered lens. Click to read more.

For more details visit https://cis-india.org/internet-governance/news/community-standards-roundtable-conversations

Indian Feminist Judgment Project Workshop

Admin — 2018-10-16T13:34:06Z

Swaraj Paul Barooah was a discussant at the Indian Feminist Judgment Project 'righting together' workshop organised in Delhi by Jindal from October 6 - 7, 2018.

Swaraj provided commentary on the re-writing of a patent application from a feminist perspective. Click here to view the agenda.

For more details visit https://cis-india.org/internet-governance/news/indian-feminist-judgment-project-workshop

September 2018 Newsletter

praskrishna — 2018-10-16T06:28:42Z

Dear readers,

Previous issues of the newsletters can be accessed here.

Highlights

Wikisource is one of the trending Wikimedia projects. Many new editors and new books to Indic language Wikisource's get added over a period of time. However, new editors as well as existing editors face numerous problems while working with the content online. The Centre for Internet & Society's Access to Knowledge (CIS-A2K) team, to help the editors, has created a Wikisource Handbook for Indian communities. CIS invites feedback to the first draft of this Handbook.
Centre for Internet & Society (CIS) participated in the 5th Global Congress on IP and Public Interest held in Washington in a big way. CIS signed on as a supporting member to the Civil Society Proposal for a Treaty on Education and Research Activities.
Sunil Abraham, in an article in the Hindustan Times, explores what leads to fake news. He has revealed that transparency regulations is the need of the hour especially for election campaigns and political advertising.
Amber Sinha, Elonnai Hickok, Udbhav Tiwari and Arindrajit Basu co-authored a blog post which examines cross-border data sharing. The authors have argued that conventional methods of compelling the presentation of evidence available for investigative agencies often fail when the evidence is not present within the territorial boundaries of the state.
Arindrajit Basu and Elonnai Hickok wrote a blog entry on usage of artificial intelligence in governance sector in India. As per research though artificial intelligence has the potential to ameliorate structural inefficiencies in governmental functions, the deployment of this technology across sub-sectors is still on the horizons.
Amber Sinha, Elonnai Hickok and Arindrajit Basu produced a research paper on the implications of artificial intelligence in India in various sectors such as health, banking, manufacturing, and governance sectors.
Artificial Intelligence in many ways is in direct conflict with traditional data protection principles and requirements including consent, purpose limitation, data minimization, retention and deletion, accountability, and transparency. Authors Elonnai Hickok and Amber Sinha have explained this in a blog entry.
The researchers@work programme has selected 10 essays, based on an open call announced in August, engaging with the thematic of "offline". The abstracts of the selected essays have been published, and the final essays will be published on the upcoming r@w blog.

Articles

India’s post-truth society (Swaraj Paul Barooah; Hindu Businessline; September 7, 2018).
Digital Native: #MemeToo (Nishant Shah; Indian Express; September 9, 2018).
The Right Words for Love (Nishant Shah; Indian Express; September 23, 2018).
A trust deficit between advertisers and publishers is leading to fake news (Sunil Abraham; Hindustan Times; September 30, 2018).
Digital Native: Hardly Friends Like That (Nishant Shah; Indian Express; September 30, 2018).

CIS in the News

Can this curb your addiction? (Surupasree Sarmmah; Deccan Herald; September 5, 2018).
'Why should we talk to Dunzo?' State regulators fume at liquor delivery (Aroon Deep; Medianama; September 7, 2018).
#NAMAprivacy: Data Protection Authority's regulatory and enforcement challenges (Rana; Medianama; September 9, 2018).
'What Security Breach?' The Unchanging Tone of UIDAI's Denials (Karan Saini; The Wire; September 12, 2018).
Haryana Cops Say Internet Shutdowns Hurt Police Operations (Gopal Sathe; Huffington Post; September 19, 2018).
Find ways to trace origin of messages: Government to WhatsApp (Surabhi Aggarwal; Economic Times; September 20, 2018).
Net nanny meets muscular law (Laxmi Murthy; Himal South Asian; September 26, 2018).
After Supreme Court Setback, Fintech Firms Await Clarity On Aadhaar (Nishant Sharma; Bloomberg Quint; September 27, 2018).

Access to Knowledge

Our Access to Knowledge programme currently consists of two projects. The Pervasive Technologies project, conducted under a grant from the International Development Research Centre (IDRC), aims to conduct research on the complex interplay between low-cost pervasive technologies and intellectual property, in order to encourage the proliferation and development of such technologies as a social good. The Wikipedia project, which is under a grant from the Wikimedia Foundation, is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

Copyright and Patent

Participation in Event

5th Global Congress on IP and the Public Interest (Organized by PublicCitizen, Washington College of Law, American University, O'Neill Institute and the American Assembly, Columbia University; Washington D.C.; September 24 - 29, 2018). Sunil Abraham, Anubha Sinha and Swaraj Paul Barooah were panelists at the event.

Wikipedia

Publication

Wikisource Handbook for Indian Communities (Bodhisattwa Mandal and Ananth Subray P. V.; September 19, 2018).

Blog Entry

Christ (DU) students enrolls for 3rd Wikipedia certificate course (Ananth Subray; September 23, 2018).

Events Organized

Copyright Workshop (CIS; New Delhi; September 1 - 2, 2018).
Meeting on Digitization and Content Donation (Bhandarkar Oriental Research Institute; Pune; September 6, 2018).
Orientation session on Sanskrit Wikipedia (Tilak Maharashtra Vidyapeeth; Pune; September 6, 2018).
Workshop on FOSS, Unicode & Wikimedia Projects for Publishers, Printers, Designers and Writers (Fergusson College; Pune; September 7, 2018).
Workshop in MKCL regarding Vanbodh Project with TRTI (Maharashtra Knowledge Corporation Limited; Mumbai; September 11, 2018).

Internet Governance

As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and IDRC) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on restrictions that the Indian government has placed on freedom of expression online.

Privacy

Research Papers

The Srikrishna Committee Data Protection Bill and Artificial Intelligence in India (Amber Sinha and Elonnai Hickok; September 3, 2018).
AI in India: A Policy Agenda (Amber Sinha, Elonnai Hickok and Arindrajit Basu; September 5, 2018).
Artificial Intelligence in the Governance Sector in India (Arindrajit Basu and Elonnai Hickok; edited by Amber Sinha, Pranav MB and Vishnu Ramachandran; ecosystem mapping by Shweta Mohandas and Anamika Kundu; September 14, 2018).
Cross-Border Data Sharing and India: A study in Processes, Content and Capacity (Amber Sinha, Elonnai Hickok, Udbhav Tiwari and Arindrajit Basu; September 27, 2018).

Participation in Events

Online Cogitatum on AI and Ethics in India (Organized by Takshashila; Takshashila Institution; August 27, 2018). Elonnai Hickok participated in the event.
Conference on Data Protection (Organized by National Institute of Public Finance and Policy; New Delhi; September 4, 2018). Sunil Abraham and Amber Sinha were discussant in the session Disclosures in Privacy Policies: Does Consent Work?
Symposium on Data Privacy and Citizen's Rights (Organized by Tech Law Forum of NALSAR University of Law; Hyderabad; September 9, 2018).
Gender and Privacy: Countering the Patriarchal Gaze (Organized by Privacy International; United Kingdom; September 13 - 14, 2018).
Meeting of Information Systems Security and Biometrics Sectional Committee (Organized by Bureau of Indian Standards; New Delhi; September 14, 2018).
Forecasting the Implications of the CLOUD Act Around the World (Organized by Global Network Initiative; Russell Senate Office Building, Washington D.C.; September 18, 2018). Elonnai Hickok was a speaker.
Networked Economies and Gender Action Learning (Organized by IDRC and facilitated by Gender at Work; Ottawa; September 20 - 21, 2018). Elonnai Hickok, Sunil Abraham and Ambika Tandon participated in the meeting. Sunil Abraham, Swaraj Paul Barooah and Ambika Tandon also attended a workshop on Gender Action Learning on September 24 - 25, 2018, which discussed strategies to work on gender under a grant for Cyber Policy Centres.
Round Table Discussion on Personal Data Protection Bill (Organized by SFLC; Bengaluru; September 25, 2018). Shweta Mohandas participated in the event and moderated the first session on Data Protection Principles (Rights and Obligations).

Cyber Security

Event Organized

Symposium on India’s Cyber Strategy (India Habitat Centre, New Delhi; August 31, 2018).

Participation in Event

Cyber-Security in the Age of Smart Manufacturing (Organized by Federation of Indian Chamber of Commerce & industry (FICCI) in association with Karnataka Innovation and Technology Society, and Government of Karnataka; The Lalit Ashok, Bengaluru; September 26, 2018). Arindrajit Basu attended the event.

researchers@work

The researchers@Work (r@w) programme is an interdisciplinary research initiative driven by an emerging need to understand the reconfigurations of social practices and structures through the Internet and digital media technologies, and vice versa.

Blog Entry

Essays on 'Offline' - Selected Abstracts (P.P. Sneha; September 6, 2018).
Digital Native: #MemeToo (Nishant Shah; Indian Express; September 9, 2018).
The Right Words for Love (Nishant Shah; Indian Express; September 23, 2018).
Digital Native: Hardly Friends Like That (Nishant Shah; Indian Express; September 30, 2018).

Participation in Event

Plenary Talk at Jyothi Nivas College Research Symposium (Organized by Jyoti Nivas College; Bangalore; September 28, 2018). P.P. Sneha made a presentation on presentation on new reading and writing practices in the digital context.

About CIS

The Centre for Internet and Society (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with disabilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfigurations of social and cultural processes and structures as mediated through the internet and digital media technologies.

► Follow us elsewhere

Twitter: http://twitter.com/cis_india
Twitter - Access to Knowledge: https://twitter.com/CISA2K
Twitter - Information Policy: https://twitter.com/CIS_InfoPolicy
Facebook - Access to Knowledge: https://www.facebook.com/cisa2k
E-Mail - Access to Knowledge: a2k@cis-india.org
E-Mail - Researchers at Work: raw@cis-india.org
List - Researchers at Work: https://lists.ghserv.net/mailman/listinfo/researchers

► Support Us

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

► Request for Collaboration

We invite researchers, practitioners, artists, and theoreticians, both organisationally and as individuals, to engage with us on topics related internet and society, and improve our collective understanding of this field. To discuss such possibilities, please write to Sunil Abraham, Executive Director, at sunil@cis-india.org (for policy research), or Sumandro Chattapadhyay, Research Director, at sumandro@cis-india.org (for academic research), with an indication of the form and the content of the collaboration you might be interested in. To discuss collaborations on Indic language Wikipedia projects, write to Tanveer Hasan, Programme Officer, at tanveer@cis-india.org.

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

For more details visit https://cis-india.org/about/newsletters/september-2018-newsletter

State of Work in India

Admin — 2018-10-09T14:25:37Z

Aayush Rathi and Ambika Tandon attended a panel discussion organized by Bangalore International Centre (TERI) and Azim Premji University, on Wednesday, October 3, 2018 in Bengaluru. A report titled 'State of Working India' by the Centre for Sustainable Employment was released on the occasion.

The report can be accessed here

For more details visit https://cis-india.org/internet-governance/news/state-of-work-in-india

Roundtable on Cyber-security and the Private Sector

pranav — 2018-10-15T09:18:35Z

The Centre for Internet & Society (CIS) invites you to a roundtable discussion on cyber-security and the private sector. The event will be held at Omidyar Network office in Bangalore from 10.00 a.m. to 4.00 p.m.

An increased proliferation of cyber attacks from multiple vectors and a variety of actors has necessitated a multi-stakeholder response to cyber-security that requires private sector involvement, both at the policy and technical fields. This contribution has come in the recent past not only through active involvement at the domestic levels but also through norm-setting in the international arena.

This symposium seeks to discuss the various cyber-security concerns in the Indian private sector and maps initiatives being undertaken by various actors towards furthering cyber-security in an attempt to identify challenges, points of tension, brainstorm solutions-thereby mapping the way forward through engagement not only with private sector actors but also in dialogue with civil society and policy-makers. CIS has undertaken some preliminary research in this area to further discussion in this area and serve as a forum for sharing perspectives for various stakeholders.

The symposium will be divided into three sessions, broadly in the form of a roundtable with different modus operandi in each session.

A Concept Note for the event can be found here, and the agenda can be found here. If you would like to attend, please rsvp pranav@cis-india.org, or register here.

For more details visit https://cis-india.org/internet-governance/events/roundtable-on-cyber-security-and-the-private-sector

CyFy 2018

Admin — 2018-10-08T15:36:40Z

Swaraj Paul Barooah and Arindrajit Basu participated in CyFy 2018 organized by Observer Research Foundation at Hotel Taj Mahal, New Delhi from October 3 - 5, 2018.

Click to see the agenda

For more details visit https://cis-india.org/internet-governance/news/cyfy-2018

Gmail users beware while giving access

Admin — 2018-10-08T15:25:26Z

Recently, Google admitted to giving hundreds of firms access to users’ Gmail inboxes. It also revealed that many apps are able to scan and share data from email inboxes. However, Google explained that it vets third parties that are given access, and permission should be given by the user.

The article by Surupasree Sarmmah was published in Deccan Herald on October 4, 2018.

Metrolife asks Gmail users if they were aware of giving permission to third-party apps and talks to an expert to see if access to emails can make a user vulnerable to blackmail, loss of individual liberty and compromise on one’s safety.

Vinod Singha, finance lead, IDP Events, says, “It is shocking that a third party is given access to a user’s Facebook and Gmail data. These third-party apps will put the user’s name on a target group to sell products and services, without the person’s knowledge. It’s high time we, as users, become aware of both advantages and disadvantages of online data sharing.”

Pallavi Shivakumar, assistant professor, says, “There should be more transparency and accountability from these app developers. There might not be any violation from their end but this is definitely a case of infiltration. I also feel that people need to be more aware of the footprint they are leaving behind.”

Aayush Rathi, policy officer, Centre for Internet and Society, says that the Cambridge Analytica scandal is an example of misuse of access to data granted to third parties.

He elaborates, “Google mandates every user to give consent to a third-party app before the app can access their information. A screen asking your permission to let the app access to your inbox pops up. While you may willingly click on that, the ripple effects will create problems — people you send emails to and who you receive emails from may also be impacted. Further, while as a user I may consent to a third party getting access to my inbox, what we may not be able to control is their sharing of our data with a fourth party.”

He adds that technically, Google is in the clear because unless an app gets consent from the user, it can’t access your inbox. The apps are also vetted by Google to see if they are in consonance with privacy standards; this is even before they are permitted to take permission from a user. “From a security point of view, Google claims to have high-end malware detection systems in place. Apps within the play store ecosystem can be vetted by Google but there are applications outside the ecosystem that can be used too. One of the central questions then becomes the degree to which we want Google to close down its API while maintaining data portability and interoperability considerations,” Aayush told Metrolife.

What can a user do?

Do your own vetting before giving access to a third-party app.
Regular review of the third-party applications you have given access to through Google settings on Gmail. email ID Google Google Account

For more details visit https://cis-india.org/internet-governance/news/deccan-herald-october-4-2018-surupasree-sarmmah-gmail-users-beware-while-giving-access

Net nanny meets muscular law

Admin — 2018-10-02T05:48:32Z

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

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

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

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

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

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

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

Cross-purposes

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

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

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

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

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

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

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

Stormy seas and safe harbours

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

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

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

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

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

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

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

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

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

Beyond criminalisation

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

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