Centre for Internet and Society

Big win for freedom of speech. Really?

sunil — 2015-03-29T01:20:51Z

The 66A ruling was historic, but what about the provisions regulating speech online and offline that still exist within the ITA, the IPC and other laws.

The article was published in Bangalore Mirror on March 29, 2015.

The Shreya Singhal v. Union of India ruling on the Information Technology Act 2000 (ITA) was truly a historic moment in Indian free speech jurisprudence. Few anticipated the striking down of the draconian Sec. 66A in its entirety, for introducing additional unconstitutional limits to free speech through its vague and imprecise language. The Supreme Court also read down Sec. 79(3)(b) and the intermediary liability rules — requiring a court order or a government notification to take down content and relieving intermediaries of the responsibility for determining legality of content. However, the court left the provision for website blocking, 69A, as it stood.

66A criminalised those that use a computer resource or a communication device to send one of the three classes of information listed below — some of which was redundant as they were already offences under the IPC (sections indicated in brackets below) or other sections of the ITA:

Information that was grossly offensive or menacing in character;
False information for causing annoyance, inconvenience, danger, obstruction, insult, injury [44], criminal intimidation [506], enmity, hatred [295A] or ill will.
Annoying or inconvenient message - to deal spam OR to deceive or to mislead the addressee or recipient about the origin of such messages - presumably for phishing, which incidentally is dealt with more properly in Sec. 66D of ITA.

The regulatory vacuum created by the striking down of 66A can be addressed by parliament by ITA to reintroduce a well-crafted anti-spam provision that does not infringe upon human rights.

The intermediary liability section 79 and the associated rules were introduced to encourage free speech by granting immunity to intermediaries for content created by their users, unless they failed to act on take down notices. However, this provision proved to have a chilling effect on free speech, with risk-aversive intermediaries over-complying with takedown notices as they were unable to distinguish between legal and illegal content. Shreya Singhal solves half the problem - whether intermediaries decide either to remove or retain content in response to take down notices sent by non-government entities and individuals they remain immune from liability. But government entities can continue to censor speech using takedown notices without any oversight, transparency or adherence to the principles of natural justice. The recently launched Manila Principles developed by the CIS and others gives a more complete set of best practices that could be used to fix Sec. 79 through an amendment. For example - "abusive or bad take down notices should be penalized."

Website-blocking under 69a is mostly an opaque procedure as per the letter of the law as it does not require the user to be informed [because the alternative of informing the intermediary is deemed sufficient], and given a chance to be heard, and a secrecy rule prevents all documentation related to the procedure from being disclosed to the public. There is both an optimistic and a pessimistic view on what the bench has said when it upheld this section. Constitutional law expert Gautam Bhatia is of the view that the judge has made informing the user mandatory and has also overridden the secrecy provision by requiring a written order that can be assailed through writ petitions. But a more pessimistic reading is that the bench found the section constitutional and was satisfied with the safeguards and was only reiterating the procedure in the judgment. The trouble is the opacity of the procedure is worse than the current text of the law - there is no evidence that users have ever been notified and RTI requests for documentation related to block orders have been rejected using the secrecy rule.

Does the striking down of 66A mean that speech on the internet is completely free and completely unregulated? No, several provisions that regulate speech online and offline still exist within the ITA, the IPC and other laws. Within the ITA - infringing the privacy of individuals [ 66E], transmission of obscene material [67], including sexually explicit material [Sec. 67A], and also child pornography [67B], the Cyber Cafe Rules which require intermediaries to install web filters.

In the IPC, several sections regulate speech that define closely the intent and ingredients required in a precise way, something 66A did not do. Sedition is defined in Sec. 124A, with restrictions on speech in the case of causing hatred, contempt or disaffection towards the state. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc is criminalised [153A], and imputations or assertions prejudicial to national integration are also prohibited [153B]. Certain restrictions on speech have also been made in terms of protecting the privacy and dignity of individuals for ex. disclosure of a victim's identity in sensitive cases [228], insulting the modesty of a woman [509]. Defamation [499] and conduct intended to cause public mischief by way of statements, rumours, reports [505] remain criminalized; and in 2013 cyber stalking [354D] has also been added.

[with inputs from Vidushi Marda] The author is the director of The Centre for Internet and Society

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-march-29-2015-sunil-abraham-big-win-for-freedom-of-speech-really

Multiple Aspects Need to be Addressed as the Clamour Grows for Network Neutrality

sunil — 2015-04-16T13:33:03Z

In the global debate there are four violations of Network Neutrality that are considered particularly egregious.

The article was published in DNA on April 16, 2015.

One — blocking of destinations or services in order to force the consumer to pay extra charges for access, two — not charging or zero-rating of certain destinations and services with or without extraction of payment from the sender or destination, and three — throttling or prioritisation of traffic between competing destinations or services and four — specialised services wherein the very same Internet infrastructure is used to provide non-Internet but IP based services such as IP-TV.

The main harms of network neutrality violations are as follows: one, censorship by private parties without legal basis; two, innovation harms because the economic threshold for new entrants is raised significantly; three, competition harms as monopolies become more entrenched and then are able to abuse their dominant position; four, harms to diversity because of the nudge effect that free access to certain services and destinations has on consumers reducing the infinite plurality of the Internet to a set of menu options. The first and fourth harm could result in the Internet being reduced to a walled garden.

It is insufficient to try and address this with networking rules for engineers such as “all packets should be treated equally.” But a set of principles could be developed that can help us grow access without violating network neutrality. Wikimedia Foundation has already developed their principles which they call “Wikipedia Zero Operating Principles”. In India our principles could include the following. One, no blocking without legal basis. Two, transparency — all technical and commercial arrangements are to be disclosed to the public. Three, non-exclusivity — all arrangements should be available to all parties, no special deals for those you favour. Four, non-discrimination between equals — technologies and entities that are alike should be treated alike. Five, necessity — whilst some measure may be required occasionally when there is network congestion they should be rolled back in a time-bound fashion.

Once these principles are enforced through a network neutrality regulation, ISPs and telecom operators will be allowed to innovate with business and payment models. Steve Song, inventor of Village Telco says “My preferred take on zero-rating would be to zero-rate gprs/edge data in general so that there is a minimum basic access for all.” My colleague Pranesh Prakash says “One possibility, of many, is to create a single marketplace or exchange for zero-rating, through which one can zero-rate on all telecom networks for standard tiered rates that they publish, and terms that are known to the regulator. Banning is akin to a brahmastra in a regulator's arsenal: it should not be used lightly” Jochai Ben-Avie of Mozilla told me yesterday of experiments in Bangladesh where consumers watch an advertisement everyday in exchange for 5Mb of data. My own suggestion to address the harms caused by walled gardens would be to make them leak – mandate that unfettered access to the Internet be provided every other hour.

There is many other ways in which the Internet has been transformed in India and other countries but these are not commonly considered network neutrality violations. Here are some examples. One, blocking of port 25 — a port that is commonly used to relay email spam. Two, blocking of port 80 – so that domestic connections cannot be used to host web servers. Three, the use of private IP addresses, ISPs who are delaying migration to IPv6 infrastructure because of cost implications leverage their IPv4 address inventory by using Carrier Grade — Network Address Translators [CG-NATs]. Four, asymmetric connections where download speeds for consumers are faster than upload speeds. With the exception of the first example — all of them affect end users negatively but do not usually impact corporations and therefore have been unfortunately sidelined in the global debate.

The TRAI consultation paper reveals many of the concerns of the telecom operators that go beyond the scope of network neutrality. Many of these concerns are very legitimate. There is a scarcity of spectrum — this could partially be addressed by auctioning more spectrum, scientific management of spectrum, promotion of shared spectrum and unlicensed spectrum. Their profit margins are thinning – this could be addressed by dismantling the Universal Service Obligation Fund, it is after all as Rohan Samarajiva puts it “a tax on the poor.” Internet companies don't pay taxes – this could be addressed by the Indian government, by adopting the best practices from the OECD around preventing tax avoidance. But some of their concerns cannot be addressed because of the technological differences between telecom and Internet networks. While it is relatively easy to require telecom companies to provide personal information and allow for interception of communications, those Internet companies that use end-to-end encryption cannot divulge personal information or facilitate interception because it is technologically impossible. While the first two concerns could be addressed by TRAI, the last two should be addressed by other ministries and departments in the Indian government.

There are other concerns that are much more difficult to address without the deep understanding of latest advancements in radio communication, signal processing and congestion control techniques in packet switched networks. A telecom expert who did not wish to be identified told me that “even 2G TDM voice is 10 to 15 times more efficient when compared to VOIP. IP was developed to carry data, and is therefore not an efficient mode to carry voice as overhead requirement for packets destroys the efficiency on voice. Voice is best carried close to the physical layer where the overheads are lowest.” He claims that since “VOIP calls are spectrally inefficient they should be discouraged” through differential pricing. We need accessible scientific literature and monitoring infrastructure so that an evidence base around concerns like this can be created so as to address them effectively through regulatory interventions.

You know you have reached a policy solution when all concerned stakeholders are equally unhappy. Unfortunately, the TRAI consultation paper assumes that Internet companies operate in a regulatory vacuum and therefore places much unnecessary focus on the licensing of these companies. This is a disastrous proposal since the Internet today is the result of “permission-less innovation”. The real issue is network neutrality and one hopes that after rigorous debate informed by scientific evidence TRAI finds a way to spread unhappiness around equally.

The author works for the Centre for Internet and Society which receives funds from Wikimedia Foundation which has zero-rating alliances with telecom operators in many countries across the world.

For more details visit https://cis-india.org/internet-governance/blog/dna-april-16-2015-sunil-abraham-multiple-aspects-need-to-be-addressed-as-the-clamour-grows-for-network-neutrality

Fear, Uncertainty and Doubt

sunil — 2015-04-17T01:44:39Z

Much confusion has resulted from the Section 66A verdict. Some people are convinced that online speech is now without any reasonable restrictions under Article 19 (2) of the Constitution. This is completely false.

There are many other provisions within the IT Act that still regulate speech online, for example the section on obscenity (Sec. 67) and also the data protection provision (Sec. 43A). Additionally there are provisions within the Indian Penal Code and other Acts that regulate speech both online and offline. For example, defamation remains a criminal offence under the IPC (Sec. 499), and disclosing information about children in a manner that lowers their reputation or infringes their privacy is also prohibited under the Protection of Children from Sexual Offences Act, 2012 (Sec. 23).

Others are afraid that the striking down of Section 66A results in a regulatory vacuum where it will be possible for bad actors to wreak havoc online because the following has been left unaddressed by the IT Act.

Criminal Intimidation: The phrase "criminal intimidation" was included in Sec. 66A(b), but the requirement was that intimidation should be carried out using "information which he knows to be false". Sec. 506 of the IPC which punishes criminal intimidation does not have this requirement and is therefore a better legal route for affected individuals, even though the maximum punishment is a year shorter than the three years possible under the IT Act.
Cyber-stalking: A new section for stalking - Sec. 345 D - was added into the IPC in 2013 which also recognised cyber stalking. The definition within Sec.345D is more precise compared to the nebulous phrasing in Sec. 66A, which read - "monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking".
Phishing: Sec. 66A (c) dealt with punishment to people who "deceive or mislead the addressee or recipient about the origin of such messages". Sec.66D, which will be the operative section after this verdict, deals with "cheating by impersonation" and forms a more effective safeguard against phishing.

Cyber-bulling of children is arguably left unaddressed. Most importantly, spam, the original intention behind 66A, now cannot be tackled using any existing provision of the law. However, the poorly drafted section made it impossible for law enforcement to crack down on spammers. A 2005 attempt by the ITU to produce model law for spam based on a comparative analysis of national laws resulted in several important best practices that were ignored during the 2008 Amendment of the Act. For example, the definition of spam must cover the following characteristics - mass, unsolicited and commercial. All of which was missing in 66A.

Good quality law must be drafted by an open, participatory process where all relevant stakeholders are consulted and responded to before bills are introduced in parliament.

A scanned copy of the article was published in the Deccan Chronicle on March 26, 2015.

For more details visit https://cis-india.org/internet-governance/blog/deccan-chronicle-march-26-2015-sunil-abraham-fear-uncertainty-doubt

Shreya Singhal and 66A

sunil — 2015-04-19T08:09:42Z

Most software code has dependencies. Simple and reproducible methods exist for mapping and understanding the impact of these dependencies. Legal code also has dependencies --across court orders and within a single court order. And since court orders are not produced using a structured mark-up language, experts are required to understand the precedential value of a court order.

The article was published in the Economic and Political Weekly Vol-L No.15. Vidushi Marda, programme officer at the Centre for Internet and Society, was responsible for all the research that went into this article. PDF version here.

As a non–lawyer and engineer, I cannot authoritatively comment on the Supreme Court’s order in Shreya Singhal vs Union of India (2015) on sections of the Information Technology Act of 2000, so I have tried to summarise a variety of views of experts in this article. The Shreya Singhal order is said to be unprecedented at least for the last four decades and also precedent setting as its lucidity, some believe, will cause a ripple effect in opposition to a restrictive understanding of freedom of speech and expression, and an expansiveness around reasonable restrictions. Let us examine each of the three sections that the bench dealt with.

The Section in Question

Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the language used in this section was a pastiche of outdated foreign laws such as the UK Communications Act of 2003, Malicious Communications Act of 1988 and the US Telecommunications Act, 1996.¹ Since the amendment, this section has been misused to make public examples out of innocent, yet uncomfortable speech, in order to socially engineer all Indian netizens into self-censorship.²

Summary: The Court struck down Section 66A of the IT Act in its entirety holding that it was not saved by Article 19(2) of the Constitution on account of the expressions used in the section, such as "annoying," "grossly offensive," "menacing,", "causing annoyance." The Court justified this by going through the reasonable restrictions that it considered relevant to the arguments and testing them against S66A. Apart from not falling within any of the categories for which speech may be restricted, S66A was struck down on the grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts of the section could be saved, and then concluded that no part of S66A was severable and declared the entire section unconstitutional. When it comes to regulating speech in the interest of public order, the Court distinguished between discussion, advocacy and incitement. It considered the first two to fall under the freedom of speech and expression granted under Article 19(1)(a), and held that it was only incitement that attracted Article 19(2).

Between Speech and Harm

Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will have value for precipitating the ripple effect. According to him, there were two incompatible strands of jurisprudence which have been harmonised by collapsing tendency into imminence.³ The first strand, exemplified by Ramjilal Modi vs State of UP⁴ and Kedar Nath Singh vs State of Bihar,⁵ imported an older and weaker American standard, that is, the tendency test, between the speech and public order consequences. The second strand exemplified byRam Manohar Lohia vs State of UP,⁶ S Rangarajan vs P Jagjivan Ram,⁷ andArup Bhuyan vs Union of India,⁸ all require greater proximity between the speech and the disorder anticipated. In Shreya Singhal, the Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb speech that has a tendency to cause disorder. Other experts are of the opinion that Justice Nariman was doing no such thing, and was only sequentially applying all the tests for free speech that have been developed within both these strands of precedent. In legal activist Lawrence Liang's analysis, "Ramjilal Modi was decided by a seven judge bench and Kedarnath by a constitutional bench. As is often the case in India, when subsequent benches of a lower strength want to distinguish themselves from older precedent but are unable to overrule them, they overcome this constraint through a doctrinal development by stealth. This is achieved by creative interpretations that chip away at archaic doctrinal standards without explicitly discarding them."⁹

Compatibility with US Jurisprudence

United States (US) jurisprudence has been imported by the Indian Supreme Court in an inconsistent manner. Some judgments hold that the American first amendment harbours no exception and hence is incompatible with Indian jurisprudence, while other judgments have used American precedent when convenient. Indian courts have on occasion imported an additional restriction beyond the eight available in 19(2)-the ground of public interest, best exemplified by the cases of K A Abbas¹⁰ and Ranjit Udeshi.¹¹ The bench in its judgment-which has been characterised by Pranesh Prakash as a masterclass in free speech jurisprudence¹²-clarifies that while the American first amendment jurisprudence is applicable in India, the only area where a difference is made is in the "sub serving of general public interest" made under the US law. This eloquent judgment will hopefully instruct judges in the future on how they should import precedent from American free speech jurisprudence.

Article 14 Challenge

The Article 14 challenge brought forward by the petitioners contended that Section 66A violated their fundamental right to equality because it differentiated between offline and online speech in terms of the length of maximum sentence, and was hence unconstitutional. The Court held that an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered people a medium through which they can express views at negligible or no cost. Second, the Court likened the rate of dissemination of information on the internet to the speed of lightning and could potentially reach millions of people all over the world. Before Shreya Singhal, the Supreme Court had already accepted medium-specific regulation. For example in K A Abbas, the Court made a distinction between films and other media, stating that the impact of films on an average illiterate Indian viewer was more profound than other forms of communication. The pessimistic reading of Shreya Singhal is that Parliament can enact medium-specific law as long as there is an intelligible differentia which could even be a technical difference-speed of transmission. However, the optimistic interpretation is that medium-specific law can only be enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the executive adopts the pessimistic reading, then draconian sections like 66A will find their way back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and cyberbullying.

Section 79

Section 79 was partially read down. This section, again introduced during the 2008 amendment, was supposed to give legal immunity to intermediaries for third party content by giving a quick redressal for those affected by providing a mechanism for takedown notices in the Intermediaries Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked invisible censorship¹³ in India and has had a demonstrated chilling effect on speech¹⁴ because of the following reasons:

One, there are additional unconstitutional restrictions on speech and expression. Rule 3(2) required a standard "rules and regulation, terms and condition or user agreement" that would have to be incorporated by all intermediaries. Under these rules, users are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that falls into different content categories, a majority of which are restrictions on speech which are completely out of the scope of Article 19(2). For example, there is an overly broad category which contains information that harms minors in any way. Information that "belongs to another person and to which the user does not have any right to" could be personal information or could be intellectual property. A much better intermediary liability provision was introduced into the Copyright Act with the 2013 amendment. Under the Copyright Act, content could be reinstated if the takedown notice was not followed up with a court order within 21 days.¹⁵ A counter-proposal drafted by the Centre for Internet and Society for "Intermediary Due Diligence and Information Removal," has a further requirement for reinstatement that is not seen in the Copyright Act.¹⁶

Two, a state-mandated private censorship regime is created. You could ban speech online without approaching the court or the government. Risk-aversive private intermediaries who do not have the legal resources to subjectively determine the legitimacy of a legal claim err on the side of caution and takedown content.

Three, the principles of natural justice are not observed by the rules of the new censorship regime. The creator of information is not required to be notified nor given a chance to be heard by the intermediary. There is no requirement for the intermediary to give a reasoned decision.

Four, different classes of intermediaries are all treated alike. Since the internet is not an uniform assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the different classes of intermediaries perform different functions and therefore contribute differently to the causal chain of harm to the affected person. If upstream intermediaries like registrars for domain names are treated exactly like a web-hosting service or social media service then there will be over-blocking of content.

Five, there are no safeguards to prevent abuse of takedown notices. Frivolous complaints could be used to suppress legitimate expressions without any fear of repercussions and given that it is not possible to expedite reinstatement of content, the harm to the creator of information may be irreversible if the information is perishable. Transparency requirements with sufficient amounts of detail are also necessary given that a human right was being circumscribed. There is no procedure to have the removed information reinstated by filing a counter notice or by appealing to a higher authority.

The judgment has solved half the problem by only making intermediaries lose immunity if they ignore government orders or court orders. Private takedown notices sent directly to the intermediary without accompanying government orders or courts order no longer have basis in law. The bench made note of the Additional Solicitor General's argument that user agreement requirements as in Rule 3(2) were common practice across the globe and then went ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of reading this would be to say that the requirement for standardised "rules and regulation, terms and condition or user agreement" remains. The other more consistent way of reading this part of the order in conjunction with the striking down of 66A would be to say those parts of the user agreement that are in violation of Article 19(2) have also been read down.

This would have also been an excellent opportunity to raise the transparency requirements both for the State and for intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in consuming that speech, and (iii) the general public. It is completely unclear whether transparency in the case of India has reduced the state appetite for censorship. Transparency reports from Facebook, Google and Twitter claim that takedown notices from the Indian government are on the rise.¹⁷ However, on the other hand, the Department of Electronics and Information Technology (DEITY) claims that government statistics for takedowns do not match the numbers in these transparency reports.¹⁸ The best way to address this uncertainty would be to require each takedown notice and court order to be made available by the State, intermediary and also third-party monitors of free speech like the Chilling Effects Project.

Section 69A

The Court upheld S69A which deals with website blocking, and found that it was a narrowly-drawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality, unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process in India. Blocking under S69A has been growing steadily over the years. In its latest response to an RTI (right to information)¹⁹ query from the Software Freedom Law Centre, DEITY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014. On 30 December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria propaganda, among which were "pastebin" websites, code repository (Github) and generic video hosting sites (Vimeo and Daily Motion).²⁰ Analysis of leaked block lists and lists received as responses to RTI requests have revealed that the block orders are full of errors (some items do not exist, some items are not technically valid web addresses), in some cases counter speech which hopes to reverse the harm of illegal speech has also been included, web pages from mainstream media houses have also been blocked and some URLs are base URLs which would result in thousands of pages getting blocked when only a few pages might contain allegedly illegal content.²¹

Pre-decisional Hearing

The central problem with the law as it stands today is that it allows for the originator of information to be isolated from the process of censorship. The Website Blocking Rules provide that all "reasonable efforts" must be made to identify the originator or the intermediary who hosted the content. However, Gautam Bhatia offers an optimistic reading of the judgment, he claims that the Court has read into this "or" and made it an "and"-thus requiring that the originator must also be notified of blocks when he or she can be identified.²²

Transparency

Usually, the reasons for blocking a website are unknown both to the originator of material as well as those trying to access the blocked URL. The general public also get no information about the nature and scale of censorship unlike offline censorship where the court orders banning books and movies are usually part of public discourse. In spite of the Court choosing to leave Section 69A intact, it stressed the importance of a written order for blocking, so that a writ may be filed before a high court under Article 226 of the Constitution. While citing this as an existing safeguard, the Court seems to have been under the impression that either the intermediary or the originator is normally informed, but according to Apar Gupta, a lawyer for the People's Union for Civil Liberties, "While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing."²³ Even worse, block orders have been unevenly implemented by ISPs with variations across telecom circles, connectivity technologies, making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.

Rule 16 under S69A requires confidentiality with respect to blocking requests and complaints, and actions taken in that regard. The Court notes that this was argued to be unconstitutional, but does not state their opinion on this question. Gautam Bhatia holds the opinion that this, by implication, requires that requests cannot be confidential. Chinmayi Arun, from the Centre for Communication Governance at National Law University Delhi, one of the academics supporting the petitioners, holds the opinion that it is optimism carried too far to claim that the Court noted the challenge to Rule 16 but just forgot about it in a lack of attention to detail that is belied by the rest of the judgment.

Free speech researchers and advocates have thus far used the RTI Act to understand the censorship under S69A. The Centre for Internet and Society has filed a number of RTI queries about websites blocked under S69A and has never been denied information on grounds of Rule 16.²⁴ However, there has been an uneven treatment of RTI queries by DEITY in this respect, with the Software Freedom Law Centre²⁵ being denied blocking orders on the basis of Rule 16. The Court could have protected free speech and expression by reading down Rule 16 except for a really narrow set of exceptions wherein only aggregate information would be made available to affected parties and members of the public.

Conclusions

In Shreya Singhal, the Court gave us great news: S66A has been struck down; good news: S79(3) and its rules have been read down; and bad news: S69A has been upheld. When it comes to each section, the impact of this judgment can either be read optimistically or pessimistically, and therefore we must wait for constitutional experts to weigh in on the ripple effect that this order will produce in other areas of free speech jurisprudence in India. But even as free speech activists celebrate Shreya Singhal, some are bemoaning the judgment as throwing the baby away with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain vigilant.

Notes

1 G S Mudur (2012): "66A 'Cut and Paste Job,'" The Telegraph, 3 December, visited on 3 April, 2015, http://www.telegraphindia.com/1121 203/jsp/frontpage/story_16268138.jsp

2 Sunil Abraham (2012): "The Five Monkeys and Ice Cold Water," Centre for Internet and Society, 26 September, visited on 3 April 2015, http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-201...

3 Gautam Bhatia (2015): "The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again," Indian Constitutional Law and Philosophy, 26 March, visited on 4 April 2015, https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect...

4 Ramjilal Modi vs State of UP, 1957, SCR 860.

5 Kedar Nath Singh vs State of Bihar, 1962, AIR 955.

6 Ram Manohar Lohia vs State of UP, AIR, 1968 All 100.

7 S Rangarajan vs P Jagjivan Ram, 1989, SCC(2), 574.

8 Arup Bhuyan vs Union of India, (2011), 3 SCC 377.

9 Lawrence Liang, Alternative Law Forum, personal communication to author, 6 April 2015.

10 K A Abbas vs Union of India, 1971 SCR (2), 446.

11 Ranjit Udeshi vs State of Maharashtra,1965 SCR (1) 65.

12 Pranesh Prakash (2015): "Three Reasons Why 66A Verdict Is Momentous"/ Times of India/(29 March). Visited on 6 April 2015, http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Th...

13 Pranesh Prakash (2011): "Invisble Censorship: How the Government Censors Without Being Seen," The Centre for Internet and Society, 14 December, visited on 6 April 2015, http://cis-india.org/internet-governance/blog/invisible-censorship

14 Rishabh Dara (2012): "Intermediary Liability in India: Chilling Effects on Free Expression on the Internet," The Centre for Internet and Society, 27 April, visited on 6 April 2015, http://cis-india.org/internet-governance/chilling-effects-on-free-expres... .

15 Rule 75, Copyright Rules, 2013.

16 The Draft Counter Proposal is available at http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-i...

17 According to Facebook's transparency report, there were 4,599 requests in the first half of 2014, followed by 5,473 requests in the latter half. Available at https://govtrequests.facebook. com/country/India/2014-H2/ also see Google's transparency report available at http: //www.google. com/transparencyreport/removals/government/IN/?hl=en and Twitter's report, available at https:// transparency.twitter.com/country/in

18 Surabhi Agarwal (2015): "Transparency Reports of Internet Companies are Skewed: Gulashan Rai," Business Standard, 31 March, viewed on 5 April 2015, http://www.business-standard.com/article/current-affairs/transparency-re... .

19 http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reve...

20 "32 Websites Go Blank," The Hindu, 1 January 2015, viewed on 6 April 2015, http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/a...

21 Pranesh Prakash (2012): "Analysing Latest List of Blocked Sites (Communalism and Rioting Edition)," 22 August, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/analysing-blocked-sites-ri... . Also, see Part II of the same series at http://cis-india.org/internet-governance/analyzing-the-latest-list-of-bl... and analysis of blocking in February 2013, at http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-b...

22 Gautam Bhatia (2015): "The Supreme Court's IT Act Judgment, and Secret Blocking," Indian Constitutional Law and Philosophy, 25 March, viewed on 6 April 2015, https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act...

23 Apar Gupta (2015): "But What about Section 69A?," Indian Express, 27 March, viewed on 5 April 2015, http://indianexpress. com/article/opinion/ columns/but-what-about-section-69a/

24 Pranesh Prakash (2011): DIT's Response to RTI on Website Blocking, The Centre for Internet and Society, 7 April, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/rti-response-dit-blocking ). Also see http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-... and http://cis-india.org/internet-governance/resources/reply-to-rti-applicat...

25 http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-...

For more details visit https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a

Don’t SLAPP free speech

sunil — 2013-02-28T11:22:09Z

IIPM is proving adept at the tactical use of lawsuits to stifle criticism, despite safeguards. THE DEPARTMENT of Telecommunications, on 14 February, issued orders to block certain web pages critical of the Indian Institute of Planning and Management (IIPM).

Sunil Abraham's column with inputs from Snehashish Ghosh was published in Tehelka on February 3, 2013 (Issue 9 Volume 10)

Despite our best efforts, we have not managed to get a copy of the court order. Meanwhile, there has been a lot of speculation among Internet policy experts on Twitter. What is the title of the case? Which judge issued the order? Who is the affected party? Why have mainstream media houses like Outlook not been served notice by the court? Is the infamous Section 66A of the IT Act to be blamed? That is highly unlikely. News reports suggest that a lower court in Gwalior has issued an ad interim injunction in a defamation suit. Most experts agree that this is a SLAPP (Strategic Litigation Against Public Participation) suit, where a company uses the cost of mounting a legal defence to silence critics.

Bullies with deep pockets use the law in very creative ways, such as forum shopping, forum shifting and the use of proxies. Forum shopping can be best understood through the example of mining giant Fomento suing Goan blogger Sebastian Rodrigues for $1 billion at the Kolkata High Court, even though Goa would have been a more logical location. Though IIPM lost an earlier case against Careers360 before the Uttaranchal High Court, the offending URLs from that case are included in the latest block order, exemplifying successful forum shifting. The doctrine of ‘res subjudice’ does not permit courts to proceed in a matter which is “directly and substantially” similar to a previous suit between the same parties. Proxies are usually employed to circumvent this procedural doctrine.

Article 19(2) of our Constitution empowers the State to create laws that place eight types (depending on how you count) of reasonable restrictions on the freedom of speech and expression. One of these reasonable restrictions is defamation. Tort law on defamation in India has been mostly borrowed from common law principles developed in the UK, which include a series of exceptions where the law cannot be used. In the present context, the exceptions important for the IIPM case include: fair and bona fide comment and matter of public interest. In addition, Section 499 of the Indian Penal Code provides for 10 exceptions to defamation. The exceptions relevant to this case are: “first: imputation of truth which public good requires to be made or published”, “ninth: imputation made in good faith by person for protection of his or other’s interests” and “tenth: caution intended for good of person to whom conveyed or for public good”. The criminal law on defamation in India is based on robust legal principles, but for the sake of public interest it’d be best to do away with such a law as it has far-reaching, chilling effects on free speech.

On interim injunctions in defamation suits, the Delhi High Court set an important precedent protecting free speech in 2011. While applying the English principle — the Bonnard Rule — the court in Tata Sons Pvt Ltd versus Greenpeace International held that a higher standard should be adhered to while granting an interim injunction in a defamation suit, because such an injunction might impinge upon freedom of expression and thus potentially be in violation of the Indian Constitution. This century-old rule states that “until it is clear that an alleged libel is untrue… the importance of leaving free speech unfetter – ed is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions…”

In the same case, the Court rejected the argument that since it was published online and thus had wider reach and greater permanence, an injunction should be granted. It observed that “publication is a comprehensive term, embracing all forms and mediums — including the Internet”, thus ruling out special treatment for the Inter net in cases of defamation. That is good news for free speech online in India. Now let’s stick to it.

For more details visit https://cis-india.org/internet-governance/blog/tehelka-sunil-abraham-feb-3-2013-dont-slap-free-speech

Sunil Abraham - Key Listener Speech at Wikimedia Summit 2019

sunil — 2019-05-04T03:34:15Z

The Wikimedia Summit 2019 – formerly known as "Wikimedia Conference" or "Chapters Meeting" – took place on 29–31 March 2019 in Berlin. Sunil Abraham made a speech at the summit organized in Berlin.

Sunil answers a series of questions at the closing session of the Wikimedia Summit 2019:

What stands out?

Money. Creative Commons revenues are pegged at 2.4 million dollars. Mozilla Foundation gets 24 million dollars. Wikimedia Foundation gets 91 million dollars. So the job of pulling off the "Big Open" or the "creation of the meta movement" or "the movement of movements" is primarily the responsibility of the Wikimedia community given the scale of resources it is able to mobilize. For example, the Open Access movement has lost funding as its key donor Open Society Foundation after supporting the movement for 17 years is unable to support any further. The Wikipedia movement can easily save the global access movement by just allocating 1 million dollar for it.

What concerns me?

Homogenization. Homogenization of time frames, homogenization of process. Should we, for example, stagger the time period for online community consultation on the draft recommendations, so that there is less 'consultation fatigue' By homogenizing the processes at the Summit, it would be risking infantilizing the community. Would this meeting have been more exciting and useful, if Working Groups had the freedom to fork the process, and do what works for them.

What have I learned from my own journey and work?

Working with lawyers for the last 10 years, has led me to appreciate tests over principles. For example, in the open standards movement there is a constant question: is this particular standard an open standard? There, free software acts as the canary in the coal mine: If we cannot implement a standard using free software, then it is not an open standard. Working with lawyers for the last 10 years, has led me to appreciate tests over principles. For example, in the open standards movement there is a constant question: is this particular standard an open standard?There, free software acts as the canary in the coal mine: If we cannot implement a standard using free software, then it is not an open standard.

What have you learned that could be useful for the strategy process?

From the process architect I have learned that we shouldn't focus on solving /this/ particular instance of the problem, we should focus on working on developing processes that solve these problems in the future. So, the emphasis is on process fixes. This is really the bleeding edge of regulatory theory these days. Since we are in Germany, I must mention the name of the German academic Gunther Teubner who developed this concept of reflexive regulation 26 years ago in his article 'Substantive and Reflexive Elements in Modern Law.

What would you suggest to improve the strategy process?

The core of responsive regulation is community consultation processes. However, closing the loop on the consultation process is critical, otherwise participants feel that they have wasted time providing feedback. For example, the Indian telecom regulator first issues a consultation paper. Then solicits the first round of feedback, then solicits a second round of counter comments then they hold round tables, and, finally, they issue the recommendation or the regulation. But when they do that, they make sure they close the loop.They provide reasoned explanations for why suggestions were rejected. This might have to happen at both stages for this strategy development process. The working groups will have to say why they rejected certain pieces of feedback, and also the board will have to explain why they rejected certain recommendations from the working groups.

What would be your wish for this movement?

As we enter adulthood as a movement, it is important that we do not lose our youthful idealism. Idealism at two levels: ambition and vocabulary. Global civil society is broadly divided into two groups. Those who work on tractable problems, like getting rid of polio. And those who work on intractable problems, like saving and developing democracy. When monitoring and evaluation becomes a primary management lens for our movement, it shouldn't make us more and more risk-averse. Let us not focus on the easy problems let us always focus, as a movement, on the hard problems. When it comes to vocabulary, I am not totally sure that phrases like 'product experience', 'target markets', and 'Knowledge as a Service' is the vocabulary of the movement. Maybe, we need to think of two types of vocabulary, External facing vocabulary and internal facing vocabulary.

Watch the Video

Video, via Wikimedia Commons, source: https://commons.wikimedia.org/wiki/File:Wikimedia_Summit_2019_-_Key_listener_Sunil_Abraham.webm.
Author, Anna Rees (WMDE): Uploader: Cornelius Kibelka (WMDE), This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

For more details visit https://cis-india.org/openness/sunil-abraham-key-listener-speech-at-wikimedia-summit-2019

Freedom from Monitoring: India Inc Should Push For Privacy Laws

sunil — 2013-08-21T07:04:48Z

More surveillance than absolutely necessary actually undermines the security objective.

This article by Sunil Abraham was published in Forbes India Magazine on August 21, 2013.

I think I understand why the average Indian IT entrepreneur or enterprise does not have a position on blanket surveillance. This is because the average Indian IT enterprise’s business model depends on labour arbitrage, not intellectual property. And therefore they have no worries about proprietary code or unfiled patent applications being stolen by competitors via rogue government officials within projects such as NATGRID, UID and, now, the CMS.

A sub-section of industry, especially the technology industry, will always root for blanket surveillance measures. The surveillance industry has many different players, ranging from those selling biometric and CCTV hardware to those providing solutions for big data analytics and legal interception systems. There are also more controversial players who provide spyware, especially those in the market for zero-day exploits. The cheerleaders for the surveillance industry are techno-determinists who believe you can solve any problem by throwing enough of the latest and most expensive technology at it.

What is surprising, though, is that other indigenous or foreign enterprises that depend on secrecy and confidentiality—in sectors such a banking, finance, health, law, ecommerce, media, consulting and communications—also don’t seem to have a public position on the growing surveillance ambitions of ‘democracies’ such as India and the United States of America. (Perhaps the only exceptions are a few multinational internet and software companies that have made some show of resistance and disagreement with the blanket surveillance paradigm.)

Is it because these businesses are patriotic? Do they believe that secrecy, confidentiality and, most importantly, privacy, must be sacrificed for national security? If that were true then it would not be a particularly wise thing to do, as privacy is the precondition for security. Ann Cavoukian, privacy commissioner of Ontario, calls it a false dichotomy. Bruce Schneier, security technologist and writer, calls it a false zero sum game; he goes on to say, “There is no security without privacy. And liberty requires both security and privacy.”

The reason why the secret recipe of Coca Cola is still secret after over 120 years is the same as the reason why a captured soldier cannot spill the beans on the overall war strategy. Corporations, like militaries, have layers and layers of privacy and secrecy. The ‘need to know’ principle resists all centralising tendencies, such as blanket surveillance. It’s important to note that targeted surveillance to identify a traitor or spy within the military, or someone engaged in espionage within a corporation, is pretty much an essential. However, any more surveillance than absolutely necessary actually undermines the security objective. To summarise, privacy is a pre-condition to the security of the individual, the enterprise, the military and the nation state.

Most people complaining online about projects like the Central Monitoring System seem to think that India has no privacy laws. This is completely untrue: We have around 50 different laws, rules and regulations that aim to uphold privacy and confidentiality in various domains. Unfortunately, most of those policies are very dated and do not sufficiently take into account the challenges of contemporary information societies. These policy documents need to be updated and harmonised through the enactment of a new horizontal privacy law. A small minority will say that Section 43(A) of the Information Technology Act is the India privacy law. That is not completely untrue, but is a gross exaggeration. Section 43(A) is really only a data security provision and, at that, it does not even comprehensively address data protection, which is only a sub-set of the overall privacy regulation required in a nation.

What would an ideal privacy law for India look like? For one, it would protect the rights of all persons, regardless of whether they are citizens or residents. Two, it would define privacy principles. Three, it would establish the office of an independent and autonomous privacy commissioner, who would be sufficiently empowered to investigate and take action against both government and private entities. Four, it would define civil and criminal offences, remedies and penalties. And five, it would have an overriding effect on previous legislation that does not comply with all the privacy principles.

The Justice AP Shah Committee report, released in October 2012, defined the Indian privacy principles as notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure of information, security, openness and accountability. The report also lists the exemptions and limitations, so that privacy protections do not have a chilling effect on the freedom of expression and transparency enabled by the Right to Information Act.

The Department of Personnel and Training has been working on a privacy bill for the last three years. Two versions of the bill had leaked before the Justice AP Shah Committee was formed. The next version of the bill, hopefully implementing the recommendations of the Justice AP Shah Committee report, is expected in the near future. In a multi-stakeholder-based parallel process, the Centre for Internet and Society (where I work), along with FICCI and DSCI, is holding seven round tables on a civil society draft of the privacy bill and the industry-led efforts on co-regulation.

The Indian ITES, KPO and BPO sector should be particularly pleased with this development. As should any other Indian enterprise that holds personal information of EU and US nationals. This is because the EU, after the enactment of the law, will consider data protection in India adequate as per the requirements of its Data Protection Directive. This would mean that these enterprises would not have to spend twice the time and resources ensuring compliance with two different regulatory regimes.

Is the lack of enthusiasm for privacy in the Indian private sector symptomatic of Indian societal values? Can we blame it on cultural relativism, best exemplified by what Simon Davies calls “the Indian Train Syndrome, in which total strangers will disclose their lives on a train to complete strangers”? But surely, when email addresses are exchanged at the end of that conversation, they are not accompanied by passwords. Privacy is perhaps differently configured in Indian societies but it is definitely not dead. Fortunately for us, calls to protect this important human right are growing every day.

For more details visit https://cis-india.org/internet-governance/blog/forbesindia-article-august-21-2013-sunil-abraham-freedom-from-monitoring

Financial Speculation as Urban Planning

sunil — 2011-04-05T04:36:21Z

Talk by Prof Michael Goldman

A talk by Michael Goldman followed by an open discussion organised by a group of concerned citizens and the Centre for Internet and Society, about the roots of the US financial crisis and related dynamics in "world city" planning, such as that here in Bangalore.

Speaker Bio

Michael Goldman
Associate Professor
Dept of Sociology
Univ of Minnesota, Minneapolis, MN
McKnight Presidential Fellow

Interest Areas: Transnational, political, environmental, and development sociology; Sociology of knowledge and power; Transnational institutions (international finance, expert networks).

Current Research: Neoliberalism and its discontents; the making of a world city: Bangalore, India; “Water for All”/ water privatization policies; development and environment in North-South relations.

Recent Publications

“How ‘Water for All!’ Became Hegemonic: The Power of the World Bank and its Transnational Policy Networks.” 2007. Geoforum special issue on global water policy, 38(5): 786-800.
“Under New Management: Historical Context and Current Challenges at the World Bank.” 2007. Brown Journal of World Affairs, special issue on Wolfowitz’s Bank, Vol. XIII: 2, Summer 2007.
“El neoliberalismo verde.” 2006. Chapter in Las Politicas de la Tierra, Alfonso Guerra and Jose Felix Tezanos, eds. Madrid: Editorial Sistema.
Imperial Nature: The World Bank and Struggles for Social Justice in the Age of Globalization. 2005. New Haven, CT and London: Yale University Press. Yale UP paperback edition, 2006; India edition, Orient Longman Press, 2006; Japanese edition, Kyoto University Press, 2008.
“World Bank.” 2005. Entry in Encyclopedia of International Development, Tim Forsyth, ed., London: Routledge.
“Tracing the Routes/Roots of World Bank Power.” 2005. International Journal of Sociology and Social Policy, special issue on global water policy, 25(1/2): 10-29.
“The Birth of a Discipline: Producing Authoritative Green Knowledge for the World (Bank).” 2005. Chapter in Earthly Politics: Local and Global in Environmental Governance, Sheila Jasanoff and Marybeth Long, eds. Cambridge, MA: MIT Press.
“La tragedia della recinzione dei beni comuni.” 2005. Beni Comuni: Fra Tradizione e Futuro, Giovanna Ricoveri, ed., Rome: Editrice Missionaria Italiana.
“Eco-governmentality and Other Transnational Practices of a ‘Green’ World Bank.” 2004. in Liberation Ecologies 2nd ed. Richard Peet and Michael Watts, eds. London: Routledge.

For more details visit https://cis-india.org/internet-governance/events/financial-speculation-as-urban-planning

Who Governs the Internet? Implications for Freedom and National Security

sunil — 2014-04-05T16:23:36Z

The second half of last year has been quite momentous for Internet governance thanks to Edward Snowden. German Chancellor Angela Merkel and Brazilian President Dilma Rousseff became aware that they were targets of US surveillance for economic not security reasons. They protested loudly.

The article was published in Yojana (April 2014 Issue). Click to download the original here. (PDF, 177 Kb)

The role of the US perceived by some as the benevolent dictator or primary steward of the Internet because of history, technology, topology and commerce came under scrutiny again. The I star bodies also known as the technical community - Internet Corporation for Assigned Names and Numbers (ICANN); five Regional Internet Registries (RIRs) ie. African, American, Asia-Pacific, European and Latin American; two standard setting organisations - World Wide Web Consortium (W3C) & Internet Engineering Task Force (IETF); the Internet Architecture Board (IAB); and Internet Society (ISOC) responded by issuing the Montevideo Statement [1] on the 7th of October. The statement expressed "strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance." It called for "accelerating the globalization of ICANN and IANA functions..." - did this mean that the I star bodies were finally willing to end the special role that US played in Internet governance? However, that dramatic shift in position was followed with the following qualifier "...towards an environment in which all stakeholders, including all governments, participate on an equal footing." Clearly indicating that for the I star bodies multistakeholderism was non-negotiable. Two days later President Rousseff after a meeting with Fadi Chehadé, announced on Twitter that Brazil would host "an international summit of governments, industry, civil society and academia." [2] The meeting has now been dubbed Net Mundial and 188 proposals for “principles” or “roadmaps for the further evolution of the Internet governance ecosystem” have been submitted for discussion in São Paulo on the 23rd and 24th of April. The meeting will definitely be an important milestone for multilateral and multi-stakeholder mechanisms in the ecosystem.

It has been more than a decade since this debate between multilateralism and multi-stakeholderism has ignited. Multistakeholderism is a form of governance that seeks to ensure that every stakeholder is guaranteed a seat at the policy formulation table (either in consultative capacity or in decision making capacity depending who you ask). The Tunis Agenda, which was the end result of the 2003-05 WSIS upheld the multistakeholder mode. The 2003–2005 World Summit on the Information Society process was seen by those favouring the status quo at that time as the first attempt by the UN bodies or multilateralism - to takeover the Internet. However, the end result i.e. Tunis Agenda [3] clarified and reaffirmed multi-stakeholderism as the way forward even though multilateral governance mechanisms were also accepted as a valid component of Internet governance. The list of stakeholders included states, the private sector, civil society, intergovernmental organisations, international standards organisations and the “academic and technical communities within those stakeholder groups mentioned” above. The Tunis Agenda also constituted the Internet Governance Forum (IGF) and the process of Enhanced Cooperation.

The IGF was defined in detail with a twelve point mandate including to “identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.” In brief it was to be a learning Forum, a talk shop and a venue for developing soft law not international treaties. Enhanced Cooperation was defined as “to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues” – and to this day, efforts are on to define it more clearly.

Seven years later, during the World Conference on Telecommunication in Dubai, the status quoists dubbed it another attempt by the UN to take over the Internet. Even those non-American civil society actors who were uncomfortable with US dominance were willing to settle for the status quo because they were convinced that US court would uphold human rights online more robustly than most other countries. In fact, the US administration had laid a good foundation for the demonization of the UN and other nation states that preferred an international regime. "Internet freedom" was State Department doctrine under the leadership of Hillary Clinton. As per her rhetoric – there were good states, bad states and swing states. The US, UK and some Scandinavian countries were the defenders of freedom. China, Russia and Saudi Arabia were examples of authoritarian states that were balkanizing the Internet. And India, Brazil and Indonesia were examples of swing states – in other words, they could go either way – join the good side or the dark side.

But Internet freedom rhetoric was deeply flawed. The US censorship regime is really no better than China’s. China censors political speech – US censors access to knowledge thanks to the intellectual property (IP) rightsholder lobby that has tremendous influence on the Hill. Statistics of television viewership across channels around the world will tell us how the majority privileges cultural speech over political speech on any average day. The great firewall of China only affects its citizens – netizens from other jurisdictions are not impacted by Chinese censorship. On the other hand, the US acts of censorship are usually near global in impact.

This is because the censorship regime is not predominantly based on blocking or filtering but by placing pressure on identification, technology and financial intermediaries thereby forcing their targets offline. When it comes to surveillance, one could argue that the US is worse than China. Again, as was the case with censorship, China only conducts pervasive blanket surveillance upon its citizens – unlike US surveillance, which not only affects its citizens but targets every single user of the Internet through a multi-layered approach with an accompanying acronym soup of programmes and initiatives that include malware, trojans, software vulnerabilities, back doors in encryption standards, over the top service providers, telcos, ISPs, national backbone infrastructure and submarine fibre optic cables.

Security guru Bruce Schneier tells us that "there is no security without privacy. And liberty requires both security and privacy.” Blanket surveillance therefore undermines the security imperative and compromises functioning markets by make e-commerce, e-banking, intellectual property, personal information and confidential information vulnerable. Building a secure Internet and information society will require ending mass surveillance by states and private actors.

The Opportunity for India

Unlike the America with its straitjacketed IP regime, India believes that access to knowledge is a precondition for freedom of speech and expression. As global intellectual property policy or access to knowledge policy is concerned, India is considered a leader both when it comes to domestic policy and international policy development at the World Intellectual Property Organisation. From the 70s our policy-makers have defended the right to health in the form of access to medicines. More recently, India played a critical role in securing the Marrakesh Treaty for Visually Impaired Persons in June 2013 which introduces a user right [also referred to as an exception, flexibility or limitation] which allows the visually impaired to convert books to accessible formats without paying the copyright-holder if an accessible version has not been made available. The Marrakesh Treaty is disability specific [only for the visually impaired] and works specific [only for copyright]. This is the first instance of India successfully exporting policy best practices. India's exception for the disabled in the Copyright Act unlike the Marrakesh Treaty, however, is both disability-neutral and works-neutral.

Given that the Internet is critical to the successful implementation of the Treaty ie. cross border sharing of works that have been made accessible to disabled persons in one country with the global community, it is perhaps time for India to broaden its influence into the sphere of Internet governance and the governance of information societies more broadly.

Post-Snowden, the so called swing states occupy the higher moral ground. It is time for these states to capitalize on this moment using strong political will. Instead of just being a friendly jurisdiction from the perspective of access to medicine, it is time for India to also be the enabling jurisdiction for access to knowledge more broadly. We could use patent pools and compulsory licensing to provide affordable and innovative digital hardware [especially mobile phones] to the developing world. This would ensure that rights-holders, innovators, manufactures, consumers and government would all benefit from India going beyond being the pharmacy of the world to becoming the electronics store of the world. We could explore flat-fee licensing models like a broadband copyright cess or levy to ensure that users get content [text, images, video, audio, games and software] at affordable rates and rights-holders get some royalty from all Internet users in India. This will go a long way in undermining the copyright enforcement based censorship regime that has been established by the US. When it comes to privacy – we could enact a world-class privacy law and establish an independent, autonomous and proactive privacy commissioner who will keep both private and state actors on a short lease. Then we need a scientific, targeted surveillance regime that is in compliance with human rights principles. This will make India simultaneously an IP and privacy haven and thereby attract huge investment from the private sector, and also earn the goodwill of global civil society and independent media. Given that privacy is a precondition for security, this will also make India very secure from a cyber security perspective. Of course this is a fanciful pipe dream given our current circumstances but is definitely a possible future for us as a nation to pursue.

What is the scope of Internet Governance?

Part of the tension between multi-stakeholderism and multilateralism is that there is no single, universally accepted definition of Internet governance. The conservative definitions of Internet Governance limits it to management of critical Internet resources, including the domain name system, IP addresses and root servers – in other words, the ICANN, IANA functions, regional registries and other I* bodies. This is where US dominance has historically been most explicit. This is also where the multi-stakeholder model has clearly delivered so far and therefore we must be most careful about dismantling existing governance arrangements. There are very broadly four approaches for reducing US dominance here – a) globalization [giving other nation-states a role equal to the US within the existing multi-stakeholder paradigm], b) internationalization [bring ICANN, IANA functions, registries and I* bodies under UN control or oversight], c) eliminating the role for nation states in the IANA functions[4] and d) introducing competitors for names and numbers management. Regardless of the final solution, it is clear that those that control domain names and allocate IP addresses will be able to impact the freedom of speech and expression. The impact on the national security of India is very limited given that there are three root servers [5] within national borders and it would be near impossible for the US to shut down the Internet in India.

For a more expansive definition – The Working Group on Internet Governance report[6] has four categories for public policy issues that are relevant to Internet governance:

“(a) Issues relating to infrastructure and the management of critical Internet resources, including administration of the domain name system and Internet protocol addresses (IP addresses), administration of the root server system, technical standards, peering and interconnection, telecommunications infrastructure, including innovative and convergent technologies, as well as multilingualization. These issues are matters of direct relevance to Internet governance and fall within the ambit of existing organizations with responsibility for these matters;

(b) Issues relating to the use of the Internet, including spam, network security and cybercrime. While these issues are directly related to Internet governance, the nature of global cooperation required is not well defined;

(c)Issues that are relevant to the Internet but have an impact much wider than the Internet and for which existing organizations are responsible, such as intellectual property rights (IPRs) or international trade. ...;

(d) Issues relating to the developmental aspects of Internet governance, in particular capacity-building in developing countries.”

Some of these categories are addressed via state regulation that has cascaded from multilateral bodies that are associated with the United Nations such as the World Intellectual Property Organisation for "intellectual property rights" and the International Telecommunication Union for “telecommunications infrastructure”. Other policy issues such as "cyber crime" are currently addressed via plurilateral instruments – for example the Budapest Convention on Cybercrime – and bilateral arrangements like Mutual Legal Assistance Treaties. "Spam" is currently being handled through self-regulatory efforts by the private sector such as Messaging, Malware and Mobile Anti-Abuse Working Group.[7] Other areas where there is insufficient international or global cooperation include "peering and interconnection" - the private arrangements that exist are confidential and it is unclear whether the public interest is being adequately protected.

So who really governs the Internet?

So in conclusion, who governs the Internet is not really a useful question. This is because nobody governs the Internet per se. The Internet is a diffuse collection of standards, technologies and actors and dramatically different across layers, geographies and services. Different Internet actors – the government, the private sector, civil society and the technical and academic community are already regulated using a multiplicity of fora and governance regimes – self regulation, coregulation and state regulation. Is more regulation always the right answer? Do we need to choose between multilateralism and multi-stakeholderism? Do we need stable definitions to process? Do we need different version of multi-stakeholderism for different areas of governance for ex. standards vs. names and numbers? Ideally no, no, no and yes. In my view an appropriate global governance system will be decentralized, diverse or plural in nature yet interoperable, will have both multilateral and multistakeholder institutions and mechanisms and will be as interested in deregulation for the public interest as it is in regulation for the public interest.

[1]. Montevideo Statement on the Future of Internet Cooperation https://www.icann.org/en/news/announcements/announcement-07oct13-en.htm

[2]. Brazil to host global internet summit in ongoing fight against NSA surveillance http://rt.com/news/brazil-internet-summit-fight-nsa-006/

[3]. Tunis Agenda For The Information Society http://www.itu.int/wsis/docs2/tunis/off/6rev1.html

[4]. Roadmap for globalizing IANA: Four principles and a proposal for reform: a submission to the Global Multistakeholder Meeting on the Future of Internet Governance by Milton Mueller and Brenden Kuerbis March 3rd 2014 See: http://www.internetgovernance.org/wordpress/wp-content/uploads/ICANNreformglobalizingIANAfinal.pdf

[5]. Mumbai (I Root), Delhi (K Root) and Chennai (F Root). See: http://nixi.in/en/component/content/article/36-other-activities-/77-root-servers

[6]. Report of the Working Group on Internet Governance to the President of the Preparatory Committee of the World Summit on the Information Society, Ambassador Janis Karklins, and the WSIS Secretary-General, Mr Yoshio Utsumi. Dated: 14 July 2005 See: http://www.wgig.org/WGIG-Report.html

[7].Messaging, Malware and Mobile Anti-Abuse Working Group website See: http://www.maawg.org/

The author is is the Executive Director of the Centre for Internet and Society (CIS), Bangalore. He is also the founder of Mahiti, a 15 year old social enterprise aiming to reduce the cost and complexity of information and communication technology for the voluntary sector by using free software. He is an Ashoka fellow. For three years, he also managed the International Open Source Network, a project of United Nations Development Programme's Asia-Pacific Development Information Programme, serving 42 countries in the Asia-Pacific region.

For more details visit https://cis-india.org/internet-governance/blog/yojana-april-2014-sunil-abraham-who-governs-the-internet-implications-for-freedom-and-national-security

April 2016 Newsletter

sunil — 2016-05-10T06:26:09Z

Welcome to the CIS newsletter for April 2016. The key issues we worked on this month included the Aadhaar Act 2016, Standard Essential Patents, cyber security of smart grids, and involvement of international agencies in the smart cities project in India.

Early last year, thanks to the fund raising efforts of a friend of CIS - Suhail Kazi, we received Rs. 1.9 lakhs as donations from 19 individuals. In January this year, we set up an online giving feature on our website which would ease the donation process, but we haven’t got a single donation so far! This could be because many of you may be under a false impression that CIS is very wealthy and does not need more support. Unfortunately, this is no longer true. Today, we are unable to find a single donor who is interested in our Accessibility, Telecom, or RAW programmes. In other words, we need your support. Would you to consider making a small donation to CIS? Click here to donate.

Previous issues of the newsletters can be accessed here: http://cis-india.org/about/newsletters.

Highlights
CIS prepared an FAQ on the Aadhaar / UIDAI project and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. Further, two infographics were produced to highlight on the questions of "Can the Aadhaar Act 2016 be Classified as a Money Bill?" and "Can the Matters Dealt with in the Aadhaar Act be the Objects of a Money Bill?". NVDA team prepared a report on the progress of the project for the month of April 2016. CIS submitted its comments to the Department of Industrial Policy and Promotion's Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms. CIS has offered its assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India. A summary of the comments can be accessed here. Responses to the Discussion Paper is available here. Rohini Lakshané's paper titled Patents and Mobile Devices in India: An Empirical Survey has been accepted for publication by the Vanderbilt Journal of Transnational Law. Kiran A.B. in a blog post has documented the availability and openness of data sets in India that are relevant for monitoring the targets under the SDGs. Low-cost Aakash tablet and its previous iterations in India have gone through several phases of technological changes and ideological experiments wrote Sumandro Chattapadhyay and Jahnavi Phalkey in an article published in the Economic and Political Weekly.

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CIS in the News
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CIS gave inputs to the following media coverage:

India's biometric database crosses billion-member mark (AFP and Daily Mail, UK; April 4, 2016).
The Panama Papers and the question of privacy (Big News Network; April 6, 2016). This was originally published by Privacyinternational.org.
Daunting task ahead for investigative agencies with WhatsApp's end-to-end encryption (Neha Alawadhi; Economic Times; April 8, 2016).
PMO’s no to smart cards, insists on Aadhaar (Somesh Jha; Hindu; April 10, 2016).
2014 showed the power of Twitter, now every Indian politician wants a handle (T.V. Jayan, Smitha Verma,Sonia Sarkar and V. Kumara Swamy; Telegraph; April 10, 2016).
Why is the UIDAI cracking down on individuals that hoard Aadhaar data? (Alnoor Peermohamed; Business Standard; April 13, 2016).
You will need a license to create a WhatsApp group in Kashmir (Governance Now; April 19, 2016).
Will Facebook, Twitter relocate servers to India? (Taru Bhatia; Governance Now; April 23, 2016).
Government keeps experts out of cyber security discussions (Amrita Madhukalya; DNA; April 23, 2016).
CCTV plays Sherlock (Raj Shekhar, Arun Dev, V Narayan & A Selvaraj with inputs from Sindhu Kannan and Somreet Bhattacharya; The Times of India; April 24, 2016).

CIS members wrote the following pieces:

Sunil Abraham wrote an article in the July 15 edition of Frontline arguing that the Aadhaar project’s technological design and architecture is an unmitigated disaster and no amount of legal fixes in the Act will make it any better.
Amber Sinha wrote an article in The Wire arguing that the Aaddhaar Act is not a money bill, and the Supreme Court may very well question the decision by the Lok Sabha speaker to classify it as such.
Sumandro Chattapadhyay also wrote on The Wire arguing that "the last chance for a welfare state doesn’t rest in the Aadhaar system."
Subhashish Panigrahi's article on the 8 challenges that Indian language Wikipedias have to overcome was published by Global Voices. The article had earlier been published in the Wire.
Elonnai Hickok and Vanya Rakesh co-authored an article on Cyber Security of Smart Grids in India that was published by Dataquest.
Shyam Ponappa in his monthly column published in the Business Standard tell us that it's time the government accepts that current policies are not enough to bring about Digital India.

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Accessibility & Inclusion
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India has an estimated 70 million persons with disabilities who don't have access to read printed materials due to some form of physical, sensory, cognitive or other disability. As part of our endeavour to make available accessible content for persons with disabilities, we are developing a text-to-speech software in 15 languages with support from the Hans Foundation. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

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Access to Knowledge
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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.

►Pervasive Technologies

Comments

Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms (Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané; April 23, 2016).
Responses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms (Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané; April 23, 2016).
Summary of CIS Comments to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms (Anubha Sinha; April 26, 2016).

Blog Entries

Global Congress 2015 - A Collection of Resources (Pervasive Technologies Team; April 1, 2016).
Compilation of Mobile Phone Patent Litigation Cases in India (Rohini Lakshané; updated on April 15, 2016).
Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation (Rohini Lakshané; updated on April 29, 2016).
MHRD IPR Chair Series: Information Received from Tezpur University (Karan Tripathi; April 26, 2016).
National IPR Policy Series : Sectoral Innovation Councils on Intellectual Property Rights – RTI Requests + DIPP Responses (Nehaa Chaudhari and Saahil Dama; April 30, 2016). Nisha S. Kumar assisted in compilation of the document.

Participation in Events

Fifth Annual IP Teaching Workshop (Organised by the Centre for Innovation, Intellectual Property and Competition at National Law University Delhi in association with National Academy of Law Teaching, NLU-D; Delhi; March 31 and April 1, 2016). Nehaa Chaudhari was a speaker.
First Round-table on Innovation, IP and Competition (Organized by the Centre for Innovation, Intellectual Property & Competition (CIIPC) at the National Law University, Delhi; India Habitat Centre; New Delhi; April 1-2, 2016). Nehaa Chaudhari and Anubha Sinha attended the round-table.
Brainstorming Workshop on PG Programme on Media Studies for UGC E-Pathshala Programme (Organized by Jamia Milla Islamia; New Delhi; April 5, 2016).
Sensitization Seminar on IPR for Electronics & ICT Sectors (Organized by Andhra Pradesh Technology Development & Promotion Centre (APTDC) of Confederation of Indian Industry (CII), in association with Department of Electronics and Information Technology (DeitY); Vishakhapatnam; April 21, 2016).

►Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Work Plan

CIS - A2K Work Plan: July 2016 - June 2017 (CIS-A2K Team; April 2, 2016): We have revised the work plan template taking into account the changed proposal plan sent out by WMF and in light of the feedback that we have received from FDC assessment during last proposal application. The FDC feedback is taken into account at the level of design, RoI and ensuring quality for all our activities.

Article

Eight Challenges Indian-Language Wikipedias Need to Overcome (Subhashish Panigrahi; Global Voices; April 21, 2016). A version of this post was previously published on The Wire.

Media Coverage

Odia gets more space in e-world (Anwesha Ambaly; The Telegraph; April 7, 2016).
Exercise to Correct articles in Tulu Wikipedia begins (Raviprasad Kamila; The Hindu; April 28, 2016).

Event Organized

Tulu Wikipedia Editathon to Improve Quality of Articles in Tulu Wikipedia (Shri Ramakrishna PU College; Mangaluru; April 26 - 30, 2016).

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Openness
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Our work in the Openness programme focuses on open data, especially open government data, open access, open education resources, open knowledge in Indic languages, open media, and open technologies and standards - hardware and software. We approach openness as a cross-cutting principle for knowledge production and distribution, and not as a thing-in-itself.

Monitoring Sustainable Development Goals in India: Availability and Openness of Data (Part II) (Kiran A.B.; April 12, 2016).

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Internet Governance
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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.

►Cyber Security

Cyber Security of Smart Grids in India (Elonnai Hickok and Vanya Rakesh; April 25, 2016).

►Big Data

Blog Entry

RTI regarding Smart Cities Mission in India (Paul Thottan; April 21, 2016).

►Privacy

Blog Entries

FAQ on the Aadhaar Project and the Bill (Elonnai Hickok, Vanya Rakesh, and Vipul Kharbanda; April 13, 2016).
Aadhaar Act and its Non-compliance with Data Protection Law in India (Vanya Rakesh; April 14, 2016).
Can the Matters Dealt with in the Aadhaar Act be the Objects of a Money Bill? (Pooja Saxena; April 24, 2016).

Articles

Will Aadhaar Act Address India’s Dire Need For a Privacy Law? (Nehaa Chaudhari; Quint; March 31, 2016).
The Last Chance for a Welfare State Doesn’t Rest in the Aadhaar System (Sumandro Chattapadhyay; April 19, 2016).
The Aadhaar Act is Not a Money Bill (Amber Sinha; April 25, 2016).

Participation in Events

RightsCon Silicon Valley 2016 (Organized by RightsCon; March 31 and April 1, 2016). Elonnai Hickok attended the event.
Panel Discussion on UID/ Aadhar act 2016 and its impact on Social, Security (Organized by Students Christian Movement of India at SCM House; Bangalore; April 25, 2016). Sunil Abraham was a panelist.
The Centre for the Study of Law and Governance (CSLG), Jawaharlal Nehru University (JNU), organised a roundtable discussion on Tuesday, April 26, to discuss the Aadhaar project and Act. Along with Prasanna S, Apar Gupta, and Dr. Chirashree Dasgupta, Sumandro Chattapadhyay was one of the discussants.
Aadhaar by Numbers (Organized by National Institute of Public Finance and Policy; New Delhi; April 29, 2016). Sunil Abraham was a speaker.

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Telecom
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CIS is involved in promoting access and accessibility to telecommunications services and resources, and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Article

Breakthroughs Needed For Digital India (Shyam Ponappa; Business Standard; April 6, 2016 and Organizing India BlogSpot; April 7, 2016).

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Researchers at Work
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The Researchers at Work (RAW) 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. It aims to produce local and contextual accounts of interactions, negotiations, and resolutions between the Internet, and socio-material and geo-political processes:

Article

Buying into the Aakash Dream - A Tablet’s Tale of Mass Education (Sumandro Chattapadhyay and Jahnavi Phalkey; Economic & Political Weekly; April 23, 2016).

Announcement

Call for Proposal: Big Data for Development – Initial Field Studies (Sumandro Chattapadhyay; April 29, 2016).

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About CIS
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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 diverse abilities, 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/april-2016-newsletter

ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ

sunil — 2012-06-18T11:19:35Z

ಸ್ವತಂತ್ರ ತಂತ್ರಾಂಶ ಪ್ರತಿಷ್ಠಾನದ ಸ್ಥಾಪಕ ರಿಚರ್ಡ್ ಸ್ಟಾಲ್‌ಮನ್ ಡಿಆರ್‌ಎಂ (ಡಿಜಿಟಲ್ ರೈಟ್ಸ್ ಮ್ಯಾನೇಜ್‌ಮೆಂಟ್) ಎಂಬ ಪರಿಕಲ್ಪನೆಯನ್ನು `ಡಿಜಿಟಲ್ ರೆಸ್ಟ್ರಿಕ್ಷನ್ ಮ್ಯಾನೇಜ್ಮೆಂಟ್` ಎಂದು ಬಿಡಿಸಿಡುತ್ತಾರೆ. ಅವರ ದೃಷ್ಟಿಯಲ್ಲಿ ಇದು ಡಿಜಿಟಲ್ ಹಕ್ಕುಗಳ ನಿರ್ವಹಣೆಯಲ್ಲ. ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ. ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ಬಳಕೆದಾರನ ಹಕ್ಕುಗಳನ್ನು ನಿಯಂತ್ರಿಸುತ್ತದೆ.

The article was published in Prajavani on June 9, 2012

ಕಾಪಿ ರೈಟ್ ಹೊಂದಿರುವವನಿಗೆ ಬಳಕೆದಾರನ ಹಾರ್ಡ್‌ವೇರ್, ಸಾಫ್ಟ್‌ವೇರ್ ಮತ್ತು ಅದರಲ್ಲಿ ನೋಡುವ, ಆಲಿಸುವ ಮತ್ತು ಓದುವ ವಸ್ತು-ವಿಷಯದ ಮೇಲೆಯೂ ನಿಯಂತ್ರಣ ಹೇರುವ ಅನೈತಿಕ ಅಧಿಕಾರವನ್ನು ಕೊಟ್ಟು ಬಿಡುತ್ತದೆ ಎಂಬುದು ಸ್ಟಾಲ್‌ಮನ್ ಅವರ ಅಭಿಪ್ರಾಯ.

ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರು ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ತಮ್ಮ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರಾದರೂ ಇದು ಜಾರಿಯಲ್ಲಿರುವ ಅನೇಕ ದೇಶಗಳ ಉದಾಹರಣೆಯನ್ನು ಮುಂದಿಟ್ಟುಕೊಂಡು ನೋಡಿದರೆ ಬಳಕೆದಾರನ ಮಟ್ಟಿಗೆ ಡಿಆರ್‌ಎಂ ಜ್ಞಾನದ ಬಾಗಿಲುಗಳನ್ನು ಮುಚ್ಚುತ್ತದೆ ಎಂಬುದೇ ನಿಜ.

ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯನ್ವಯ ಅಸ್ತಿತ್ವದಲ್ಲೇ ಇರದ ಹಕ್ಕುಗಳನ್ನು ಈ ಡಿಆರ್‌ಎಂ ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರಿಗೆ ನೀಡಿಬಿಡುತ್ತದೆ. ಅಂಗವಿಕಲರು ತಮಗೆ ಓದಲು ಅನುಕೂಲವಾಗುವ ಮಾಧ್ಯಮಕ್ಕೆ ಒಂದು ಪುಸ್ತಕವನ್ನು ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಂಶೋಧಕರು ಪುಸ್ತಕ ಅಥವಾ ಈ ಬಗೆಯ ಜ್ಞಾನದ ಮಾಧ್ಯಮಒಂದರಲ್ಲಿರುವ ವಿಷಯವನ್ನು ತಮ್ಮ ಸಂಶೋಧನೆಗೆ ಬಳಸಿಕೊಳ್ಳುವುದು, ಹಾಗೆಯೇ ಸಿನಿಮಾ, ಸಾಫ್ಟ್‌ವೇರ್ ಇತ್ಯಾದಿಗಳನ್ನು ವೈಯಕ್ತಿಕ ಬಳಕೆಗಾಗಿ ಉಳಿಸಿ ಇಟ್ಟುಕೊಳ್ಳಲು (ಬ್ಯಾಕ್‌ಅಪ್) ಬೇಕಾದಂತೆ ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಾಫ್ಟ್‌ವೇರ್‌ನಂಥ ಉತ್ಪನ್ನ ಗಳನ್ನು ಅವುಗಳನ್ನು ಉದ್ದೇಶಿತ ಉಪಯೋಗ ಕ್ಕಿಂತ ಭಿನ್ನ ಬಗೆಯಲ್ಲಿ ಬಳಸುವುದು, ಉದ್ದೇಶಿತ ವೇದಿಕೆಗಳಿಗಿಂತ ಭಿನ್ನವಾದ ವೇದಿಕೆಗಳಲ್ಲಿ ಬಳಸಲು ಸಾಧ್ಯವಾಗುವಂತೆ ಸಾಫ್ಟ್‌ವೇರ್‌ಗಳಂಥ ಉತ್ಪನ್ನಗಳನ್ನು ರಿವರ್ಸ್ ಇಂಜಿನಿಯರಿಂಗ್ ಮಾಡುವಂಥ ಕ್ರಿಯೆಗಳಿಗೆ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಅನುವು ಮಾಡಿಕೊಡುತ್ತದೆ.

ಆದರೆ ಡಿಆರ್‌ಎಂ ತಂತ್ರಜ್ಞಾನ ಕಾನೂನುಬದ್ಧವಾಗಿಯೇ ಇರುವ ಈ ಎಲ್ಲಾ ಕೆಲಸಗಳಿಗೂ ತಡೆಯೊಡುತ್ತದೆ.2011ರ ತಿದ್ದುಪಡಿಯೊಂದಿಗೆ ಹೊಸ ರೂಪ ಪಡೆದುಕೊಂಡಿರುವ 1957ರ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ತಂತ್ರಜ್ಞಾನದ ಮೂಲಕ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವ ವಿಧಾನಕ್ಕೆ ಕಾನೂನಿನ ಮಾನ್ಯತೆಯನ್ನು ನೀಡಿದೆ.

ತನ್ನ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವು ದಕ್ಕಾಗಿ ಕಾಪಿರೈಟ್ ಮಾಲೀಕ ಅಳವಡಿಸಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಹ್ಯಾಕ್ ಮಾಡುವಂಥ ಕೆಲಸ ಮಾಡಿದವರಿಗೆ ಎರಡು ವರ್ಷಗಳ ಕಾರಾಗೃಹ ವಾಸದಂಥ ಶಿಕ್ಷೆಯೂ ಹೊಸ ಕಾನೂನಿನಲ್ಲಿದೆ. ಹಾಗೆಂದು ಈ ಕಾನೂನು ಬಹಳ ಋಣಾತ್ಮಕವಷ್ಟೇ ಆಗಿದೆ ಎನ್ನಲು ಸಾಧ್ಯವಿಲ್ಲ.

ಇದರಲ್ಲಿ ಮೂರು ಅತಿ ಮುಖ್ಯ ಧನಾತ್ಮಕ ಅಂಶಗಳಿವೆ. ಮೊದಲನೆಯದ್ದು ಸಾರ್ವತ್ರಿಕ ಲಭ್ಯತೆಯ ವಸ್ತು-ವಿಷಯಗಳನ್ನು ಈ ಬಗೆಯ ತಂತ್ರಜ್ಞಾನ ಉಪಯೋಗಿಸಿ ಬಳಕೆದಾರರನ್ನು ನಿರ್ಬಂಧಿಸಲು ಅವಕಾಶವಿಲ್ಲ. ಎರಡನೆಯದ್ದು ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಯನ್ನು ಪರೀಕ್ಷಿಸುವ ಉದ್ದೇಶದಿಂದ ನಡೆಸಲಾಗುವ ಹ್ಯಾಕಿಂಗ್ ಅಪರಾಧವಲ್ಲ. ಮೂರನೆಯದ್ದು ಹೀಗೆ ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಗಳನ್ನು ಬಳಸಿಕೊಳ್ಳುವ ಮತ್ತೊಂದು ತಾಂತ್ರಿಕ ವಿಧಾನವನ್ನು ಆವಿಷ್ಕರಿಸುವುದನ್ನು ಕಾನೂನು ತಡೆಯುತ್ತಿಲ್ಲ.

ಒಂದು ವಿಡಿಯೋ/ಆಡಿಯೋ ಕಂಪೆನಿ ಒಂದು ಡಿವಿಡಿಯನ್ನು ಕೇವಲ ಮೈಕ್ರೋಸಾಫ್ಟ್ ಮೀಡಿಯಾ ಪ್ಲೇಯರ್‌ನಲ್ಲಿ ಮಾತ್ರ ವೀಕ್ಷಿಸಲು ಅಥವಾ ಆಲಿಸಲು ಸಾಧ್ಯವಿರುವಂತೆ ಡಿಆರ್‌ಎಂ ಮಾಡಿದ್ದರೆ ಲೀನಕ್ಸ್ ಹೊಂದಿರುವ ಬಳಕೆದಾರರು ಅದನ್ನು ತಮ್ಮ ಕಂಪ್ಯೂಟರ್‌ಗಳಲ್ಲಿ ನೋಡಲು ಸಾಧ್ಯವಿರುವಂತೆ ಪರಿವರ್ತಿಸಿ ಕೊಳ್ಳುವುದು ಅಪರಾಧವಲ್ಲ. ಇಲ್ಲಿ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯಾಗುವುದಿಲ್ಲ.

ಹಾಗೆಯೇ ಆಡಿಯೋ ಪುಸ್ತಕವೊಂದನ್ನು ಬಿಡುಗಡೆ ಮಾಡಿರುವ ಕಂಪೆನಿ ಅದನ್ನು ಅಂಧರು ಬಳಸಿಕೊಳ್ಳಲಾಗದಂತೆ ಡಿಆರ್‌ಎಂ ಬಳಸಿದ್ದರೆ ಅಂಧರಿಗೆ ಅದನ್ನು ತಮಗೆ ಬೇಕಾದ ಸ್ವರೂಪಕ್ಕೆ ಪರಿವರ್ತಿಸಿಕೊಂಡು ಬಳಸುವ ಸ್ವಾತಂತ್ರ್ಯವನ್ನು ಕಾಯ್ದೆ ನೀಡುತ್ತದೆ. ಹಾಗೆಯೇ ಗೆಳೆಯನೊಬ್ಬನಿಂದ ಪಡೆದ ಡಿಆರ್‌ಎಂ ಇರುವ ಡಿವಿಡಿಯಿಂದ ಶಿಕ್ಷಕರೊಬ್ಬರು ತಮ್ಮ ತರಗತಿ ಅನುಕೂಲಕ್ಕಾಗಿ ಪ್ರತಿ ಮಾಡಿಕೊಂಡು ವಿಡಿಯೋ ಕ್ಲಿಪ್‌ಗಳನ್ನು ರೂಪಿಸಿದರೂ ಅದು ಅಪರಾಧವಾಗು ವುದಿಲ್ಲ. ಹಾಗೆಯೇ ತಂತ್ರಜ್ಞನೊಬ್ಬ ಅಂತರ ಜಾಲಸಂಪರ್ಕವನ್ನು ಬಳಸಿ ಆಡಬಲ್ಲ ಕಂಪ್ಯೂಟರ್ ಗೇಮ್ ಒಂದರಲ್ಲಿ ಸ್ಪೈವೇರ್ ಇದೆ ಅನುಮಾನಿಸಿ ಅದರ ಆಕರ ಸಂಕೇತಗಳನ್ನು ನೋಡಿ ಬದಲಾಯಿಸಲು ಪ್ರಯತ್ನಿಸಿದರೆ ಅದು ತಪ್ಪಲ್ಲ.

ಈ ಸವಲತ್ತನ್ನು ಭದ್ರತಾ ಏಜನ್ಸಿಗಳೂ ಬಳಸಿಕೊಳ್ಳಲು ಸಾಧ್ಯವಿದೆ. ಹಾಗೆಯೇ ಜಾಗತಿಕ ಮಾರುಕಟ್ಟೆಯಲ್ಲಿರುವ ಪ್ರಖ್ಯಾತವಾಗಿರುವ ಒಂದು ಸಾಫ್ಟ್‌ವೇರನ್ನು ಹೋಲುವಂಥದ್ದೇ ಉತ್ಪನ್ನವನ್ನು ಬೆಂಗಳೂರಿನ ಉತ್ಸಾಹಿಯೊಬ್ಬ ರೂಪಿಸಿ ಜಾಗತಿಕವಾಗಿ ಮಾರಾಟ ಮಾಡಲು ಹೊರಟರೂ ಅದನ್ನು ನಿಯಮ ತಪ್ಪು ಎನ್ನುವುದಿಲ್ಲ. ಆದರೆ ಇದರಲ್ಲಿ ಆತ ಅನುಕರಿ ಸುತ್ತಿರುವ ಉತ್ಪನ್ನ ಬಳಸಿರುವ ಆಕರ ಸಂಕೇತಗಳು ಇರಬಾರದಷ್ಟೇ.

ಎಲ್ಲವನ್ನೂ ಮಸಿ ನುಂಗಿತು ಎಂಬಂತೆ ಈ ಕಾಯ್ದೆಯಲ್ಲಿರುವ ಎರಡು ಋಣಾತ್ಮಕ ಅಂಶಗಳು ಅದರ ಧನಾತ್ಮಕತೆಗೆ ದೊಡ್ಡ ಮಿತಿಯನ್ನು ಹೇರಿಬಿಟ್ಟಿವೆ. ನಿರ್ದಿಷ್ಟ ಉತ್ಪನ್ನವನ್ನು ಪರಿವರ್ತಿಸಲು ಬೇಕಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಒದಗಿಸುವ ಕಂಪೆನಿಗಳು ಅದನ್ನು ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆ ಎಂಬ ದಾಖಲೆಗಳನ್ನು ಇಟ್ಟುಕೊಳ್ಳಬೇಕೆಂಬ ನಿಯಮವಿದೆ.

ಅಂದರೆ ಇದೊಂದು ಬಗೆಯಲ್ಲಿ ಪರೋಕ್ಷವಾಗಿ ಈ ತಂತ್ರಜ್ಞಾನವನ್ನು ಬಳಸುವುದರ ಮೇಲೆ ಹೇರಿರುವ ನಿಯಂತ್ರಣದಂತಿದೆ. ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆಂಬ ದಾಖಲೆಯನ್ನು ಕಡ್ಡಾಯವಾಗಿ ಇಟ್ಟುಕೊಳ್ಳುತ್ತಾ ಹೋಗುವ ಕ್ರಿಯೆಯೇ ಮಾರಾಟ ಗಾರರ ಉತ್ಸಾಹಕ್ಕೆ ತಣ್ಣೀರೆರಚುತ್ತದೆ.

ಹಾಗೆಯೇ ಬಳಕೆದಾರರು ತಮ್ಮ `ಪರಿವರ್ತಿಸುವ ಹಕ್ಕನ್ನು` ಚಲಾಯಿಸಲು ಅಗತ್ಯವಿರುವ ಸವಲತ್ತು ಒದಗಿಸುವುದಕ್ಕೆ ಕಾಪಿರೈಟ್ ಮಾಲೀಕರನ್ನು ಬಾಧ್ಯಸ್ಥರನ್ನಾಗಿಸಿಲ್ಲ. ಅಂದರೆ ಬಳಕೆದಾರನಿಗೆ ಹಕ್ಕಿದೆ. ಆದರೆ ಅದನ್ನು ಚಲಾಯಿಸುವ ಅವಕಾಶದ ಬಗ್ಗೆ ಮಾತ್ರ ಖಾತರಿ ಇಲ್ಲ ಎಂಬ ಸ್ಥಿತಿ ಇದೆ.

ಲೇಖಕರು ಸೆಂಟರ್ ಫಾರ್ ಇಂಟರ್‌ನೆಟ್‌ಅಂಡ್ ಸೊಸೈಟಿಯ ಕಾರ್ಯನಿರ್ವಾಹಕ ನಿರ್ದೇಶಕರು

English translation below:

Digital Restrictions Management

As Richard Stallman the founder of the Free Software movement puts it the correct expansion of the acronym DRM is Digital Restrictions Management and not Digital Rights Management. According to his analysis DRM is used to limit the rights of consumers and enables rights-holders to exercise unethical control over the consumer's hardware, software and content.

Even though copyrights holders will tell us that DRM helps cut down on wilful and unwitting infringement. For consumers and members of the general public evidence from other countries reveal that DRM in most cases undermines access to knowledge. DRM permits the copyright holder to claim rights that don't exist as per copyright law and to restrict fair dealing (also referred to as far use) guarantees. Fair dealing protections include access by the disabled, use in research or academic context, archiving or making a personal backup, reverse engineering for academic reasons to to create interoperable/competing products/services etc.

The 2012 amendment to the Indian Copyright Act 1957 has resulted in legal recognition for effective technological measures [also called Technological Protection Measures or TPMs] and rights management information [RMI] applied for protecting the rights of the copyright-holder. Circumvention of such a measure could result in a 2 year jail term and a fine.

The DRM provisions per the amendment does three things correctly. One, it does not allow copyright-holder to use technological measure as a means to enclose public domain content or secure rights that are not granted to them under the Act. Two, any circumvention to exercise limitations and exceptions under the fair dealing provisions of the Act is not considered to be an offence. Three, it does not criminalise the creation of circumvention technologies. Unfortunately, however the Amendment also gets two things wrong. One, there are onerous recording keeping mandates for those providing circumvention technologies to consumers and members of the general public. Two, the provision does not make the rights-holder responsible for providing the means to consumers and members of the general public who wish to exercise their right to circumvention.

Suppose a movie studio released DVD version of its films with DRM that only worked with Microsoft Windows operating system. Those who bought the DVD but ran GNU/Linux or any other operating system would then have a right to circumvent the DRM and republish the content in an video encoding format. This would not be considered an offence because the customer is not attempting any copyright infringement.

Suppose a publishing house only released audio versions of its books with DRM that prevented accessibility to the content by the disabled. Another newly-introduced exception specifically for the disabled would apply if the rights-holder has ignored the disabled as a market but not making available accessible versions of their content. In other words, the disabled have a right to make accessible versions for themselves and therefore circumvent the DRM if necessary.

Suppose the very same movie studio also ensured that the DRM on its DVDs prevented customers from extracting video clips. If a teacher borrowed the film from a friend and then used circumvention technology to copy and paste video clips into her classroom presentation. This would not be considered an offence as she was only taking advantage of an exception meant for educational institutions.

Suppose a security researcher suspected the DRM technology in network enabled gaming console contained spy-ware. He would have the right to circumvent the DRM and reverse engineer the source code of the console in order to audit the code for the existence of back-doors. This exception will also be used by law enforcement agencies and military/intelligence organisations to purge our supply-chain of electronic infrastructure of spy-ware.

Finally assume a young entrepreneur from Bengaluru wanted to make a competing and yet interoperable product based on an existing product with global market penetration. Assume that the developers of the existing product used DRM to keep their source code and file format inaccessible to competitors. Again under the latest amendment our friend would have the right to circumvent the DRM as long as the code he write is not copied from the existing product.

For more details visit https://cis-india.org/a2k/digital-restrictions-management

CIS's Position on Net Neutrality

sunil — 2015-12-09T13:06:06Z

As researchers committed to the principle of pluralism we rarely produce institutional positions. This is also because we tend to update our positions based on research outputs. But the lack of clarity around our position on network neutrality has led some stakeholders to believe that we are advocating for forbearance. Nothing can be farther from the truth. Please see below for the current articulation of our common institutional position.

Net Neutrality violations can potentially have multiple categories of harms — competition harms, free speech harms, privacy harms, innovation and ‘generativity’ harms, harms to consumer choice and user freedoms, and diversity harms thanks to unjust discrimination and gatekeeping by Internet service providers.
Net Neutrality violations (including some those forms of zero-rating that violate net neutrality) can also have different kinds benefits — enabling the right to freedom of expression, and the freedom of association, especially when access to communication and publishing technologies is increased; increased competition [by enabling product differentiation, can potentially allow small ISPs compete against market incumbents]; increased access [usually to a subset of the Internet] by those without any access because they cannot afford it, increased access [usually to a subset of the Internet] by those who don't see any value in the Internet, reduced payments by those who already have access to the Internet especially if their usage is dominated by certain services and destinations.
Given the magnitude and variety of potential harms, complete forbearance from all regulation is not an option for regulators nor is self-regulation sufficient to address all the harms emerging from Net Neutrality violations, since incumbent telecom companies cannot be trusted to effectively self-regulate. Therefore, CIS calls for the immediate formulation of Net Neutrality regulation by the telecom regulator [TRAI] and the notification thereof by the government [Department of Telecom of the Ministry of Information and Communication Technology]. CIS also calls for the eventual enactment of statutory law on Net Neutrality. All such policy must be developed in a transparent fashion after proper consultation with all relevant stakeholders, and after giving citizens an opportunity to comment on draft regulations.
Even though some of these harms may be large, CIS believes that a government cannot apply the precautionary principle in the case of Net Neutrality violations. Banning technical innovations and business model innovations is not an appropriate policy option. The regulation must toe a careful line to solve the optimization problem: refraining from over-regulation of ISPs and harming innovation at the carrier level (and benefits of net neutrality violations mentioned above) while preventing ISPs from harming innovation and user choice. ISPs must be regulated to limit harms from unjust discrimination towards consumers as well as to limit harms from unjust discrimination towards the services they carry on their networks.
Based on regulatory theory, we believe that a regulatory framework that is technologically neutral, that factors in differences in technological context, as well as market realities and existing regulation, and which is able to respond to new evidence is what is ideal.

This means that we need a framework that has some bright-line rules based, but which allows for flexibility in determining the scope of exceptions and in the application of the rules. Candidate principles to be embodied in the regulation include: transparency, non-exclusivity, limiting unjust discrimination.
The harms emerging from walled gardens can be mitigated in a number of ways. On zero-rating the form of regulation must depend on the specific model and the potential harms that result from that model. Zero-rating can be: paid for by the end consumer or subsidized by ISPs or subsidized by content providers or subsidized by government or a combination of these; deal-based or criteria-based or government-imposed; ISP-imposed or offered by the ISP and chosen by consumers; Transparent and understood by consumers vs. non-transparent; based on content-type or agnostic to content-type; service-specific or service-class/protocol-specific or service-agnostic; available on one ISP or on all ISPs. Zero-rating by a small ISP with 2% penetration will not have the same harms as zero-rating by the largest incumbent ISP. For service-agnostic / content-type agnostic zero-rating, which Mozilla terms ‘equal rating’, CIS advocates for no regulation.
CIS believes that Net Neutrality regulation for mobile and fixed-line access must be different recognizing the fundamental differences in technologies.
On specialized services CIS believes that there should be logical separation and that all details of such specialized services and their impact on the Internet must be made transparent to consumers both individual and institutional, the general public and to the regulator. Further, such services should be available to the user only upon request, and not without their active choice, with the requirement that the service cannot be reasonably provided with ‘best efforts’ delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or that the discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.
On incentives for telecom operators, CIS believes that the government should consider different models such as waiving contribution to the Universal Service Obligation Fund for prepaid consumers, and freeing up additional spectrum for telecom use without royalty using a shared spectrum paradigm, as well as freeing up more spectrum for use without a licence.
On reasonable network management CIS still does not have a common institutional position.

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

Copyright Amendment: Bad, but Could Have Been Much Worse

sunil — 2012-06-15T12:29:39Z

The changes to the Copyright Act protect the disabled - but are restrictive about cover versions and web freedom, writes Sunil Abraham in this article published in the Business Standard on June 10, 2012.

When the Copyright (Amendment) Act, 2012, was passed unanimously by the Lok Sabha on May 22, it meant that there was little reason for celebration, some not-so-great news, and a lot of pretty bad news.

The only real reason for unqualified celebration is the amendment’s introduction of a robust exception for the disabled. It is bleeding-edge policy formulation, as it is right up there alongside the Treaty for the Visually Impaired currently being negotiated at the World Intellectual Property Organisation (WIPO). The Indian exception is more robust: first, it is disability-neutral, unlike the treaty which only addresses the needs of the print-impaired; and second, it is works-neutral, unlike the treaty which only addresses books and printed works. In brief, given the very limited circulation of copyrighted works amongst the disabled, they now can convert inaccessible works to accessible formats and share them with each other on a non-profit basis. No royalty needs to be paid to the rights-holders for this conversion and the resultant access. Other reasons to celebrate include the newly introduced exception for non-commercial lending and the extension of fair dealing (or fair use) to all works.

Now for some middling news. The Digital Rights Management provision makes it an offence punishable with a fine and a two-year jail term to circumvent “effective technological measures” (also called Technological Protection Measures) and remove “rights management information” (RMI). The provision protects public interest since it does not allow rights-holders to claim rights unavailable under copyright law, and does not prevent consumers and citizens from benefiting from the various fair dealing (or fair use) exceptions and limitations.

Unfortunately, the provision mandates onerous record-keeping for those providing circumvention technologies, and also does not insist that the rights-holder provide the means for circumvent when the consumer or citizen legitimately needs to do so.

The first piece of bad news is that an inadequate “safe harbour” provision has been introduced for Internet intermediaries. Like the Information Technology Act, the Copyright Act has also gotten the configuration of the intermediary liability regime wrong. This was the opportunity to finally protect common carriers, platforms for social media and commons-based peer-production (such as free software and open content). In short, search engines are finally legal in India, and so are ISPs, virtual private network providers and content delivery networks.

But unfortunately, social media platforms such as Facebook and peer-production platforms like Wikipedia are not afforded sufficient immunity to thrive as real-time participatory platforms. The take-down procedure is designed to provide instant relief to rights-holders, as intermediaries are supposed to remove content immediately. They have the option of reinstating content if the take-down notice is not followed within three weeks by a court order. This mechanism will have a chilling effect on free speech — given that Indian internet service providers very obviously privilege the interests of intellectual property rights-holders over those of the ISPs’ customers — as most recently illustrated by their over-compliance with certain John Doe court orders emerging from the Madras High Court.

The second piece of bad news is the extension of the term of protection for photographs. It has gone from being “sixty years after publication” to “sixty years after the death of the photographer”. Sixty years from publication was already in excess of the Agreement on Trade-Related aspects of Intellectual Property Rights (the TRIPS Agreement). Now we are in excess of WIPO Copyright Treaty requirements, even though India is not a signatory. The possibility of grandchildren earning royalties does not serve as an incentive for shutterbugs to take more photos or better photos. It is not even clear if one can monetise the average photo after the first decade. Therefore, the global public domain has been substantially impoverished, without any evidence that this will make the photographers reciprocally wealthier.

It does not stop there. In the age of hip-hop, trance, jhankar beats and turntables, one would have hoped that our law-makers would at least get the provision for “cover versions” or “remixes” right. Cover versions in India are doubly useful both in terms of aesthetics and profits — and yet the relevant provision can only be described as mediaeval. Cover versions can be produced only after a gap of five years; they have to be restricted to the same medium as the original; payment from them must be made in advance for 5,000 copies (should all those who sang commercially viable cover violations of “Kolaveri Di” be considered lawbreakers?); and there are strict limits on what are acceptable alterations to the original. The “alterations” have to be “reasonable” and “technically necessary”. Today, affordable yet sophisticated multimedia technologies allow teenagers to build professional sound recording studios in their bedrooms — and our government is seeking to restrict them to boring word-for-word and note-for-note covers.

And it gets worse. Bowing to pressure from foreign publishers’ associations, the government deleted the “parallel importation” provision at the last minute. The inclusion of this provision would have made it clear that works reproduced with the rights-holders’ permission in other countries could be imported into India. Foreign publishers and their lobbyists went all-out with a propaganda campaign predicting a dystopia filled with pirated books, surplus books dumped from overseas and starving, uncompensated authors. Had our government not caved, this clarification in law would have gone a long way in dismantling distribution monopolies and made the market much more competitive. The resultant increase in choice and reduction in cost would have benefited everyone. Human Resources Development Minister Sibal promised both Houses during the passage of the amendment that he would revisit this, and let’s hope he does so — especially for our libraries and our second-hand book stores, and for the students and disabled amongst us.

The writer is at the Centre for Internet and Society, Bangalore. sunil@cis-india.org

Click to read the original published by Business Standard.

For more details visit https://cis-india.org/a2k/copyright-amendment

Two Tales of Transparency!

sunil — 2012-04-11T12:09:01Z

In a single week, two global Internet giants announce transparency efforts that have direct implications for privacy and free speech.

One, Google replaces 60 odd privacy policies with a single one across its products apparently to provide a unified experience for consumers, advertisers and law enforcement agencies. Google says that it is trying to make its privacy policy more accessible and transparent to its users and that nothing has changed. This is indeed true, as the respective privacy policies were modified when Google acquired these products. Google spent USD 1.9 billion acquiring 79 companies in 2011. This year's company filings state "we expect our current pace of acquisitions to continue.” Their multi-year acquisition spree has spawned 60 odd products that collect personal information. And beyond Google core offerings like Search, News, YouTube and Orkut – their advertising networks Adsense and Double Click keep tabs on you as you visit millions of other websites. This advertiser cum share-holder sweet spot has been created by centrally storing 9 months of comprehensive logs tied to IP address and other device details for all accounts. A blanket surveillance dream-come-true for rogue state actors. Even in most democratic regimes this far exceeds legally mandated data retention requirements. Fans will point out that Google's transparency record on user information requests, data retention and data portability is unmatched across the industry. But that is just saying that you are less evil than Microsoft and Facebook. In June 2007, Google reduced data retention from 24 to 18 months and in a letter to the European Commission privacy regulators it said “we ... firmly reject any suggestions that we could meet our legitimate interests in security, innovation and anti-fraud efforts with any retention period shorter than 18 months.” But come August 2008, Google reduces data retention from 18 months to 9 months in what it called an attempt to address regulatory concerns. Like Europeans, Indian citizens could also benefit if our law makers were to enact horizontal privacy statute and establish the office of the privacy commissioner. In an ideal world, a pro-consumer or pro-citizen Indian privacy commissioner would create evidence based policy and reduce data retention to say 6 weeks. If unfortunately, we go by the precedent set by multi-tiered blanket surveillance provisions in the IT Act, it looks like policy-makers have bought the flawed “more is better” argument emerging from business press cheerleaders of the global surveillance industry.

Two, Twitter announces technical capabilities to censor tweets using geo-location to be in compliance with legal orders from different jurisdictions. Again very little has changed. Twitter has in the past complied with legal orders. In terms of transparency – Twitter has adopted pretty high standards. It will notify the author about the removal and other users from that country with message stating that the tweet has been withheld. Which some predict will precipitate a Streisand effect. In addition, Twitter has expanded its partnership with ChillingEffects.org to publicly archive these legal orders. Some activists wonder if Twitter's role in the Arab Spring would have been undermined if it implemented legal orders from the Mubarak regime. Unfortunately for Twitter, initial praise for this comes from China's state-run newspaper and from the Thai government. But to be fair, unlike Google above, Twitter is sticking to absolute legal minimum. The use of the US jurisdiction in the past, as a free speech haven did benefit activists in authoritarian regimes but perhaps SOPA and PIPA signals the end of that. In India, given the draconian IT Act this could result in blocking of heavy metal tweets on account of them being “blasphemous” or Twitpics of Cartoons against Corruption for being an “annoyance”. Both offenses which are significant dilutions from the previous standards of “incitement of hatred” or “defamation”. There are two part to the solution here, one, Twitter giving the best fight it can to protect free speech and two, Indian citizens petitioning their MPs for the amendment of the IT Act.

For more details visit https://cis-india.org/internet-governance/two-tales-of-transparency

Intermediary liability law needs updating

sunil — 2019-02-13T00:05:30Z

The time has come for India to exert its foreign policy muscle. There is a less charitable name for intermediary liability regimes like Sec 79 of the IT Act — private censorship regimes.

The article was published in Business Standard on February 9, 2019.

Intermediaries get immunity from liability emerging from user-generated and third-party content because they have no “actual knowledge” until it is brought to their notice using “take down” requests or orders.

Since some of the harm caused is immediate, irreparable and irreversible, it is the preferred alternative to approaching courts for each case. When intermediary liability regimes were first enacted, most intermediaries were acting as common carriers — ie they did not curate the experience of users in a substantial fashion. While some intermediaries like Wikipedia continue this common carrier tradition, others driven by advertising revenue no longer treat all parties and all pieces of content neutrally. Facebook, Google and Twitter do everything they can to raise advertising revenues. They make you depressed. And if they like you, they get you to go out and vote. There is an urgent need to update intermediary liability law.

In response to being summoned by multiple governments, Facebook has announced the establishment of an independent oversight board. A global free speech court for the world’s biggest online country. The time has come for India to exert its foreign policy muscle. The amendments to our intermediary liability regime can have global repercussions, and shape the structure and functioning of this and other global courts.

While with one hand Facebook dealt the oversight board, with the other hand it took down APIs that would enable press and civil society to monitor political advertising in real time. How could they do that with no legal consequences? The answer is simple — those APIs were provided on a voluntary basis. There was no law requiring them to do so.

There are two approaches that could be followed. One, as scholar of regulatory theory Amba Kak puts it, is to “disincentivise the black box”. Most transparency reports produced by intermediaries today are on a voluntary basis; there is no requirement for this under law. Our new law could require a extensive transparency with appropriate privacy safeguards for the government, affected parties and the general public in terms of revenues, content production and consumption, policy development, contracts, service-level agreements, enforcement, adjudication and appeal. User empowerment measures in the user interface and algorithm explainability could be required. The key word in this approach is transparency.

The alternative is to incentivise the black box. Here faith is placed in technological solutions like artificial intelligence. To be fair, technological solutions may be desirable for battling child pornography, where pre-censorship (or deletion before content is published) is required. Fingerprinting technology is used to determine if the content exists in a global database maintained by organisations like the Internet Watch Foundation. A similar technology called Content ID is used pre-censor copyright infringement. Unfortunately, this is done by ignoring the flexibilities that exist in Indian copyright law to promote education, protect access knowledge by the disabled, etc. Even within such narrow application of technologies, there have been false positives. Recently, a video of a blogger testing his microphone was identified as a pre-existing copyrighted work.

The goal of a policy-maker working on this amendment should be to prevent repeats of the Shreya Singhal judgment where sections of the IT Act were read down or struck down. To avoid similar constitution challenges in the future, the rules should not specify any new categories of illegal content, because that would be outside the scope of the parent clause. The fifth ground in the list is sufficient — “violates any law for the time being in force”. Additional grounds, such as “harms minors in anyway”, is vague and cannot apply to all categories of intermediaries — for example, a dating site for sexual minorities. The rights of children need to be protected. But that is best done within the ongoing amendment to the POCSO Act.

As an engineer, I vote to eliminate redundancy. If there are specific offences that cannot fit in other parts of the law, those offences can be added as separate sections in the IT Act. For example, even though voyeurism is criminalised in the IT Act, the non-consensual distribution of intimate content could be criminalised, as it has been done in the Philippines.

Provisions that have to do with data retention and government access to that data for the purposes of national security, law enforcement and also anonymised datasets for the public interest should be in the upcoming Data Protection law. The rules for intermediary liability is not the correct place to deal with it, because data retention may also be required of those intermediaries that don’t handle any third-party information or user generated content. Finally, there have to be clear procedures in place for reinstatement of content that has been taken down.

Disclosure: The Centre for Internet and Society receives grants from Facebook, Google and Wikimedia Foundation

For more details visit https://cis-india.org/internet-governance/blog/business-standard-february-9-2019-sunil-abraham-intermediary-liability-law-needs-updating