India's struggle for online freedom

Rebecca MacKinnon's article was published in the Sydney Morning Herald on June 9, 2012

With popular websites like Vimeo.com blocked across India by court order, the video calls for action: "Fight for your rights. Fight for India." Over the past several weeks, the group has launched distributed denial-of-service attacks against websites belonging to internet service providers, government departments, India's Supreme Court, and two political parties.

Street protests are being planned for today in as many as 18 cities to protest laws and other government actions that a growing number of Indian internet users believe have violated their right to free expression and privacy online.

A lively national internet freedom movement has grown rapidly across India since the beginning of this year.

The most colourful highlight so far was a seven-day Gandhian hunger strike, otherwise known as a "freedom fast," held in early May on a New Delhi pavement by political cartoonist Aseem Trivedi and activist-journalist Alok Dixit. Trivedi's website was shut down this year in response to a police complaint by a Mumbai-based advocate who alleged that some of Trivedi's works "ridicule the Indian Parliament, the national emblem, and the national flag."

Escalating political and legal battles over internet regulation in India are the latest front in a global struggle for online freedom — not only in countries like China and Iran where the internet is heavily censored and monitored by autocratic regimes, but also in democracies where the political motivations for control are much more complicated.

Democratically elected governments all over the world are failing to find the right balance between demands from constituents to fight crime, control hate speech, keep children safe, and protect intellectual property, and their duty to ensure and respect all citizens' rights to free expression and privacy. Popular online movements — many of them globally interconnected — are arising in response to these failures.

Only about 10 per cent of India's population uses the web, making it unlikely that internet freedom will be a decisive ballot-box issue anytime soon. Yet activists are determined to punish New Delhi's "humourless babus," as one columnist recently called India's censorious politicians and bureaucrats, in the country's media. Grassroots organisers are bringing a new generation of white-collar protesters to the streets to defend the right to use a technology that remains alien to the majority of India's people.

The trouble started with the 2008 passage of the Information Technology (Amendment) Act, whose Section 69 empowers the government to direct any internet service to block, intercept, monitor, or decrypt any information through any computer resource.

Company officials who fail to comply with government requests can face fines and up to seven years in jail. Then, in April 2011, the Ministry of Communications and Information Technology issued new rules under which internet companies are expected to remove within 36 hours any content that regulators designate as "grossly harmful," "harassing," or "ethnically objectionable" — designations that are open to a wide variety of interpretations and that free speech advocates argue have opened the door to abuse.

It is thanks to these rules that the website of the hunger-striking cartoonist, Trivedi, was taken offline. Also thanks to the 2011 rules, Facebook and Google are facing trial for having failed to remove objectionable content. If found guilty, the companies could face fines, and executives could be sentenced to jail time.

Saturday's protesters are calling for annulment of the 2011 rules and the repeal of part of the 2008 act. They are also calling for internet service companies to reverse the wholesale blocking of hundreds of websites, including the file-sharing services isoHunt and The Pirate Bay, as well as the video-sharing site Vimeo and Pastebin, which is primarily used for the sharing of text and links.

Internet service providers were responding to a court order from the Madras High Court demanding the blockage, which is aimed at preventing the online distribution of pirated versions of one particular film. The internet companies, fearing that they would not be able to catch every individual instance on every possible site they host, instead chose to block entire services along with all of their content — which had nothing to do with the film in question.

Such "John Doe" orders, named because they are directed against unknown potential offenders in the present and future, are characterised "by their overly broad and sweeping nature," argue lawyer Lawrence Liang and researcher Achal Prabhala, which extends "to a range of non-infringing activities as well, thus catching a whole range of legal acts in their net."

More broadly, as Delhi-based journalist Shivam Vij wrote in a recent essay: "The current mechanisms of internet censorship in India — blocking, direct removal requests to websites, intermediary rules — are draconian and unconstitutional. They need to be replaced with a new set of rules that are fair, transparent and accessible for public scrutiny. They should not be amenable to misuse by the powers-that-be for their own private interests."

Not only are the rules abused, but researchers find that they are causing extralegal censorship by companies that overcompensate in order to err on the side of caution. Last year, the Bangalore-based Centre for Internet and Society performed an experiment in which it sent "legally flawed" takedown demands to seven companies that provide a range of online services, including search, online shopping, and news with user-generated comments.

The legal flaws in the notices were such that the companies could have rejected them without being in breach of the law. Yet "of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them," reads the Centre for Internet and Society report.

Despite the growing public opposition, a motion to annul the 2011 rules was defeated by voice vote in the upper house of Parliament last month. Yet the criticism was sufficiently sharp that Communications Minister Kapil Sibal announced that he will hold consultations with all members of Parliament, representatives of industry, and other "stakeholders" to discuss the law's problems and how it might be revised.

Many of the law's critics, however, are skeptical that this will eliminate the law's deep flaws and loopholes for abuse, especially given the government's failure to listen so far. Comments on the 2011 rules submitted last year by the Centre for Internet and Society were not even acknowledged as having been received by the Ministry of Communications and Information Technology. "Sibal uses the excuse of national security and hate speech," says the center's director, Sunil Abraham, "but that is not what is happening."

Abraham worries that what is really happening is a government effort at Internet "behavior modification" through a process akin to an experiment involving caged monkeys, bananas, and ice water. Put four monkeys in a cage and hang a bunch of bananas on the ceiling. Every time one of them climbs up to reach the bananas, you drench all of them with ice water.

Soon enough, the monkeys will start policing themselves — attacking anybody who tries to reach the bananas, making it unnecessary for their masters to deploy the ice water. "This is why the government is being so aggressive so early on, with only 10 percent of India's population online," says Abraham. "If you start the drenching early on, by the time you get to 50 per cent [internet penetration], every one will be well-behaved monkeys."

Companies will act as private internet police for fear of legal punishment before the government is called upon to step in and enforce the law. If it works, Indian politicians could have fewer reasons to worry about online critiques or mockery, because companies fearing prosecution will proactively delete speech that could potentially be designated "harassing" or "grossly harmful."

India is not China or Iran, however. Its politicians may be corrupt, and most of its voters may not understand why Internet freedom matters because they've never used the Internet. But it still has an independent press and boisterous civil society that are not going to give up their critiques and protests anytime soon. India also has a strong, independent judiciary, with a record of ruling against censorship and surveillance measures when a strong case can be made that they conflict with constitutional protections of individual rights. "On free speech I have high faith in the Indian judiciary," says Abraham. "There is a good chance to launch a constitutional challenge."

If Google and Facebook lose at their impending trial — now scheduled for July — they will most certainly appeal, which activists hope could provide just such an opportunity to prevent the sort of "behaviour modification" process that Abraham warns against.

Now India's burgeoning internet freedom movement needs its own reverse "behaviour modification" strategy — imposing consistent and regular doses of political and legal ice water upon India's bureaucrats, politicians, and companies whenever they do things that threaten to corrode the rights of India's internet users. Saturday's protest is just the beginning.

Sunil Abraham is quoted in the article. The report on Intermediary Guidelines co-produced by CIS and Google is also mentioned.