Centre for Internet and Society

World Trends in Freedom of Expression and Media Development

pranesh — 2016-02-17T16:41:28Z

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

CIS Submission to TRAI on Differential Pricing

pranesh — 2016-02-09T08:52:31Z

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality/2016-01-07_cis_trai-submission_differential-pricing

CIS's Comments on the CCWG-Accountability Draft Proposal

pranesh — 2016-01-29T15:17:48Z

The Centre for Internet & Society (CIS) gave its comments on the failures of the CCWG-Accountability draft proposal as well as the processes that it has followed.

We from the Centre for Internet and Society wishes to express our dismay at the consistent way in which CCWG-Accountability has completely failed to take critical inputs from organizations like ours (and others, some instances of which have been highlighted in Richard Hill’s submission) into account, and has failed to even capture our concerns and misgivings about the process — as expressed in our submission to the CCWG-Accountability’s 2nd Draft Proposal on Work Stream 1 Recommendations — in any document prepared by the CCWG. We cannot support the proposal in its current form.

Time for Comments

We believe firstly that the 21 day comment period itself was too short and is going to result effectively in many groups or categories of people from not being able to meaningfully participate in the process, which flies in the face of the values that ICANN claims to uphold. This extremely short period amounts to procedural unsoundness, and restrains educated discussion on the way forward, especially given that the draft has altered quite drastically in the aftermath to ICANN55.

Capture of ICANN and CCWG Process

The participation in the accountability-cross-community mailing list clearly shows that the process is dominated by developed countries (of the top 30 non-staff posters to the list, 26 were from the ‘WEOG’ UN grouping, with 14 being from the USA, with only 1 from Asia Pacific, 2 from Africa, and 1 from Latin America), by males (27 of the 30 non-staff posters), and by industry/commercial interests (17 of the top 30 non-staff posters). If this isn’t “capture”, what is? There is no stress test that overcomes this reality of capture of ICANN by Western industry interests. The global community is only nominally multistakeholder, while actually being grossly under-representative of the developing nations, women and minority genders, and communities that are not business communities or technical communities. For instance, of the 1010 ICANN-accredited registrars, 624 are from the United States, and 7 from the 54 countries of Africa.

Culling statistics from the accountability-cross-community mailing list, we find that of the top 30 posters (excluding ICANN staff):

57% were, as far as one could ascertain from public records, from a single country: the United States of America.
87% were, as far as one could ascertain from public records, participants from countries which are part of the WEOG UN grouping (which includes Western Europe, US, Canada, Israel, Australia, and New Zealand), which only has developed countries. None of those who participated substantively were from the EEC (Eastern European) group and only 1 was from Asia-Pacific and only 1 was from GRULAC (Latin American and Caribbean Group).
90% were male and 3 were female, as far as one could ascertain from public records.
57% were identifiable as primarily being from industry or the technical community, as far as one could ascertain from public records, with only 2 (7%) being readily identifiable as representing governments.

This lack of global multistakeholder representation greatly damages the credibility of the entire process, since it gains its legitimacy by claiming to represent the global multistakeholder Internet community.

Bogey of Governmental Capture

With respect to Stress Test 18, dealing with the GAC, the report proposes that the ICANN Bylaws, specifically Article XI, Section 2, be amended to create a provision where if two-thirds of the Board so votes, they can reject a full GAC consensus advice. This amendment is not connected to the fear of government capture or the fear that ICANN will become a government-led body; given that the advice given by the GAC is non-binding that is not a possibility. Given the state of affairs described in the submission made above, it is clear that for much of the world, their governments are the only way in which they can effectively engage within the ICANN ecosystem. Therefore, nullifying the effectiveness of GAC advice is harmful to the interests of fostering a multistakeholder ecosystem, and contributes to the strengthening of the kind of industry capture described above.

Jurisdiction

All discussions on the Sole Designator Model seem predicated on the unflinching certainty of ICANN’s jurisdiction continuing to remain in California, as the legal basis of that model is drawn from Californian corporate law. To quote the draft report itself, in Annexe 12, it is stated that:

"Jurisdiction directly influences the way ICANN’s accountability processes are structured and operationalized. The fact that ICANN today operates under the legislation of the U.S. state of California grants the corporation certain rights and implies the existence of certain accountability mechanisms. It also imposes some limits with respect to the accountability mechanisms it can adopt. The topic of jurisdiction is, as a consequence, very relevant for the CCWG-Accountability. ICANN is a public benefit corporation incorporated in California and subject to California state laws, applicable U.S. federal laws and both state and federal court jurisdiction."

Jurisdiction has been placed within the mandate of WS2, to be dealt with post the transition. However, there is no analysis in the 3rd Draft on how the Sole Designator Model would continue to be upheld if future Work Stream 2 discussions led to a consensus that there needed to be a shift in the jurisdiction of ICANN. In the event that ICANN shifts to, say, Delaware or Geneva, would there be a basis to the Sole Designator Model in the law? Therefore this is an issue that needs to be addressed before this model is adopted, else there is a risk of either this model being rendered infructuous in the future, or this model foreclosing open debate and discussion in Work Stream 2.

Right of Inspection

We strongly support the incorporation of the rights of Inspection under this model as per Section 6333 of the California Corporations Code as a fundamental bylaw. As there is a severe gap between the claims that ICANN raises about its own transparency and the actual amount of transparency that it upholds, we opine that the right of inspection needs to be provided to each member of the ICANN community.

Timeline for WS2 Reforms

We support the CCWG’s commitment to the review of the DIDP Process, which they have committed to enhancing in WS2. Our research on this matter indicates that ICANN has in practice been able to deflect most requests for information. It regularly utilised its internal processes and discussions with stakeholders clauses, as well as clauses on protecting financial interests of third parties (over 50% of the total non-disclosure clauses ever invoked - see chart below) to do away with having to provide information on pertinent matters such as its compliance audits and reports of abuse to registrars. We believe that even if ICANN is a private entity legally, and not at the same level as a state, it nonetheless plays the role of regulating an enormous public good, namely the Internet. Therefore, there is a great onus on ICANN to be far more open about the information that they provide. Finally, it is extremely disturbing that they have extended full disclosure to only 12% of the requests that they receive. An astonishing 88% of the requests have been denied, partly or otherwise. See "Peering behind the veil of ICANN's DIDP (II)".

In the present format, there has been little analysis on the timeline of WS2; the report itself merely states that:

"The CCWG-Accountability expects to begin refining the scope of Work Stream 2 during the upcoming ICANN 55 Meeting in March 2016. It is intended that Work Stream 2 will be completed by the end of 2016."

Without further clarity and specification of the WS2 timeline, meaningful reform cannot be initiated. Therefore we urge the CCWG to come up with a clear timeline for transparency processes.

For more details visit https://cis-india.org/internet-governance/blog/ciss-comments-on-the-ccwg-accountability-draft-proposal

Response by the Centre for Internet and Society to the Draft Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration

pranesh — 2015-11-29T06:35:12Z

This proposal was made to the Global Multistakeholder Community on August 9, 2015. The proposal was drafted by Pranesh Prakash and Jyoti Panday. The research assistance was provided by Padmini Baruah, Vidushi Marda, and inputs from Sunil Abraham.

For more than a year now, the customers and operational communities performing key internet functions related to domain names, numbers and protocols have been negotiating the transfer of IANA stewardship. India has dual interests in the ICANN IANA Transition negotiations: safeguarding independence, security and stability of the DNS for development, and promoting an effective transition agreement that internationalizes the IANA Functions Operator (IFO). Last month the IANA Stewardship Transition Coordination Group (ICG) set in motion a public review of its combined assessment of the proposals submitted by the names, numbers and protocols communities. In parallel to the transition of the NTIA oversight, the community has also been developing mechanisms to strengthen the accountability of ICANN and has devised two workstreams that consider both long term and short term issues. This 2 is our response to the consolidated ICG proposal which considers the proposals for the transition of the NTIA oversight over the IFO.

Click to download the submission.

For more details visit https://cis-india.org/internet-governance/blog/response-by-the-centre-for-internet-and-society-to-the-draft-proposal-to-transition-the-stewardship-of-the-internet-assigned-numbers-authority-iana-functions-from-the-u-s-commerce-department2019s-national-telecommunications-and-information-administration

CIS Submission on CCWG-Accountability 2nd Draft Proposal on Work Stream 1 Recommendations

pranesh — 2015-11-23T14:58:58Z

The Centre for Internet & Society (CIS) submitted the below to ICANN's CCWG-Accountability.

The CCWG Accountability proposal is longer than many countries' constitutions. Given that, we will keep our comments brief, addressing a very limited set of the issues in very broad terms.

Human Rights

ICANN is unique in many ways. It is a global regulator that has powers of taxation to fund its own operation. ICANN is not a mere corporation. For such a regulator, ensuring fair process (what is often referred to as "natural justice") as well as substantive human rights (such as the freedom of expression, right against discrimination, right to privacy, and cultural diversity), are important. Given this, the narrow framing of "free expression and the free flow of information" in Option 1, we believe Option 2 is preferable.

Diversity

We are glad that diversity is being recognized as an important principle. As we noted during the open floor session at ICANN49: [We are] extremely concerned about the accountability of ICANN to the global community. Due to various decisions made by the US government relating to ICANN's birth, ICANN has had a troubled history with legitimacy. While it has managed to gain and retain the confidence of the technical community, it still lacks political legitimacy due to its history. The NTIA's decision has presented us an opportunity to correct this.

However, ICANN can't hope to do so without going beyond the current ICANN community, which while nominally being 'multistakeholder' and open to all, grossly under-represents those parts of the world that aren't North America and Western Europe.

Of the 1010 ICANN-accredited registrars, 624 are from the United States, and 7 from the 54 countries of Africa. In a session yesterday, a large number of the policies that favour entrenched incumbents from richer countries were discussed. But without adequate representation from poorer countries, and adequate representation from the rest of the world's Internet population, there is no hope of changing these policies.

This is true not just of the business sector, but of all the 'stakeholders' that are part of global Internet policymaking, whether they follow the ICANN multistakeholder model or another. A look at the board members of the Internet Architecture Board, for instance, would reveal how skewed the technical community can be, whether in terms of geographic or gender diversity.

Without greater diversity within the global Internet policymaking communities, there is no hope of equity, respect for human rights — civil, political, cultural, social and economic — and democratic functioning, no matter how 'open' the processes seem to be, and no hope of ICANN accountability either.

Meanwhile, there are those who are concerned that diversity should not prevail over skill and experience. Those who have the greatest skill and experience will be those who are insiders in the ICANN system. To believe that being an insider in the ICANN system ought to be privileged over diversity is wrong. A call for diversity isn't just political correctness. It is essential for legitimacy of ICANN as a globally-representative body, and not just one where the developed world (primarily US-based persons) makes policies for the whole globe, which is what it has so far been. Of course, this cannot be corrected overnight, but it is crucial that this be a central focus of the accountability initiative.

Jurisdiction, Membership Models and Voting Rights

The Sole-Member Community Mechanism (SMCM) that has been proposed seems in large part the best manner provided under Californian law relating to public benefit corporations of dealing with accountability issues, and is the lynchpin of the whole accountability mechanism under workstream.

However, the jurisdictional analysis laid down in 11.3 will only be completed post-transition, as part of workstream. Thus the SMCM may not necessarily be the best model under a different legal jurisdiction. It would be useful to discuss the dependency between these more clearly. In this vein, it is essential that the Article XVIII Section 1 not be designated a fundamental bylaw. Further, it would be useful to add that for some limited aspects of the transition (such as IANA functioning), ICANN should seek to enter into a host country agreement to provide legal immunity, thus providing a qualification to para 125 ("ICANN accountability requires compliance with applicable legislation, in jurisdictions where it operates.") since the IANA functions operator ought not be forced by a country not to honour requests made by, for example, North Korea.

It should also be noted that accountability needs independence, which may be of two kinds: independence of financial source, and independence of appointment. From what one could gather from the CCWG proposal, the Independent Review Panel will be funded by the budget the ICANN Board prepares, while the appointment process is still unclear.

One of the most important accountability mechanisms with regard to the IANA functions is that of changing the IANA Functions Operator. As per the CWG Stewardship's current proposal, the "Post-Transition IANA" won't be an entity that is independent of ICANN. If the PTI's governance is permanently made part of ICANN's fundamental bylaws (as an affiliate controlled by ICANN), how is it proposed that the IFO be moved from PTI to some other entity if the IANA Functions Review Team so decides? Additionally, for such an important function, the composition of the IFRT should not be left unspecified.

While it is welcome that a separation is proposed between the IANA budget and budget for rest of ICANN's functioning, the current discussion around budgets seems to be based on the assumption that all IANA functions will be funded by ICANN, whereas if the IANA functions are separated, each community might fund it separately. That provides two levels of insulation to IANA functions operator(s): separate sources of operational revenue, as well as separate budgets within ICANN.

It should be noted that there have been some responses that express concern about the shifting of existing power structures within ICANN through some of the proposed alternative voting allocations in the SMCM. However, rather than present arguments as to why these shifts would be beneficial or harmful for ICANN's overall accountability, these responses seem to assume that shift from the current power structures are harmful. This is an unfounded assumption and cannot be a valid reason, nor can speculation of how the United States Congress will behave be a valid reason for rejecting an otherwise valid proposal. If there are harms, they ought to be clearly articulated: shifts from the status quo and fear of the US Congress aren't valid harms. Thus, while it is important to consider how different voting rights models might change the status quo while arriving at any judgments, that cannot be the sole criterion for judgment of its merits. Further, as the French government notes:

[T]he French Government still considers that linking Stress Test 18 to a risk of capture of ICANN by governments and NTIA’s requirement that no “government-led or intergovernmental organization solution would be acceptable”, makes no sense. . . . Logically, the risk of capture of ICANN by governments in the future is as low as it is now and in any case, it cannot lead to a “government-led or intergovernmental organization solution”.

While dealing with the question of relative voting proportions, the community must remembered that not all parts of the world are equally developed with regard to the domain name industry and with respect to civil society as those countries in North America, Western Europe, and other developed nations, and thus may not find adequate representation via the SOs. In many parts of the world, civil society organizations — especially those focussed on Internet governance and domain name policies — are non-existent. Thus a system that privileges the SOs to the exclusion of other components of a multistakeholder governance model would not be representative or diverse. A multistakeholder model cannot disproportionately represent business interests over all other interests.

In this regard, the comments of former ICANN Chairperson, Rod Beckstrom, at ICANN43 ought to be recalled:

ICANN must be able to act for the public good while placing commercial and financial interests in the appropriate context . . . How can it do this if all top leadership is from the very domain name industry it is supposed to coordinate independently?

As Kieren McCarthy points out about ICANN:

The Board does have too many conflicted members
The NomCom is full of conflicts
There are not enough independent voices within the organization

Reforms in these ought to be as crucial to accountability as the membership model.

The current mechanisms for ensuring transparency, such as the DIDP process, are wholly inadequate. We have summarized our experience with the DIDP process, and how often we were denied information on baseless grounds in this table.

For more details visit https://cis-india.org/internet-governance/blog/cis-submission-on-ccwg-accountability-2nd-draft-proposal-on-work-stream-1-recommendations

The 'Global Multistakholder Community' is Neither Global Nor Multistakeholder

pranesh — 2016-11-03T10:42:53Z

CIS research shows how Western, male, and industry-driven the IANA transition process actually is.

In March 2014, the US government announced that they were going to end the contract they have with ICANN to run something called the Internet Assigned Numbers Authority (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.

Analysis of the process since then shows how flawed the “global multistakeholder community” that converges at ICANN has not actually represented the disparate interests and concerns of different stakeholders. CIS research has found that the discussions around IANA transition have not been driven by the “global multistakeholder community”, but mostly by males from industry in North America and Western Europe.

CIS analysed the five main mailing lists where the IANA transition plan was formulated: ICANN’s ICG Stewardship and CCWG Accountability lists; IETF’s IANAPLAN list; and the NRO’s IANAXFER list and CRISP lists. What we found was quite disheartening.

A total of 239 individuals participated cumulatively, across all five lists.
Only 98 substantively contributed to the final shape of the ICG proposal, if one takes a count of 20 mails (admittedly, an arbitrary cut-off) as a substantive contribution, with 12 of these 98 being ICANN staff some of whom were largely performing an administrative function.

We decided to look at the diversity within these substantive contributors using gender, stakeholder grouping, and region. We relied on public records, including GNSO SOI statements, and extensive searches on the Web. Given that, there may be inadvertent errors, but the findings are so stark that even a few errors wouldn’t affect them much.

2 in 5 (39 of 98, or 40%) were from a single country: the United States of America.
4 in 5 (77 of 98) were from countries which are part of the WEOG UN grouping (which includes Western Europe, US, Canada, Israel, Australia, and New Zealand), which only has developed countries.
None were from the EEC (Eastern European and Russia) group, and only 5 of 98 from all of GRULAC (Latin American and Caribbean Group).
4 in 5 (77 of 98) were male and 21 were female.
4 in 5 (76 of 98) were from industry or the technical community, and only 4 (or 1 in 25) were identifiable as primarily speaking on behalf of governments.

This shows also that the process has utterly failed in achieving the recommendation of Paragraph 6 of the 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010).

45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)

66% (34 of 51) of the Business Constituency at ICANN are from a single country: the United States of America. (N.B.: This page doesn’t seem to be up-to-date.)

This shows that businesses from the United States of America continues to dominate ICANN to a very significant degree, and this is also reflected in the nature of the dialogue within ICANN, including the fact that the proposal that came out of the ICANN ‘global multistakeholder community’ on IANA transition proposes a clause that requires the ‘IANA Functions Operator’ to be a US-based entity. For more on that issue, see this post on the jurisdiction issue at ICANN (or rather, on the lack of a jurisdiction issue at ICANN).

For more details visit https://cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder

Comments on the DoT Panel Report via MyGov

pranesh — 2015-09-26T10:16:44Z

On behalf of the Centre for Internet and Society, I must commend the Department of Telecom Panel on its report. Overall, it displays a far better understanding of the underlying issues than the TRAI consultation paper did, and is overall a good effort at balancing the different sides. However, some of its most important recommendations are completely off-mark and would be disastrous if accepted by the government.

It is praiseworthy that the panel emphasizes the separation in regulatory terms between the network layer and the service layer. This also means that telecom carriers should be regulated differently from OTT services.

Licensing of Communication OTT Services

The proposal by the DoT panel of a licensing regime for communication OTT services is a terrible idea. It would presumptively hold all licence non-holders to be unlawful, and that should not be the case; as the panel itself notes, apps that lower the cost of communication are a welcome development and should be encouraged by the government and not made presumptively unlawful.

While it is in India's national interest to want to hold VoIP services to account if they do not follow legitimate regulations, it is far better to do this through ex-post regulations rather than an ex-ante licensing scheme.

A licensing scheme would benefit Indian VoIP companies (including services like Hike, which Airtel has invested in) over foreign companies like Viber, or free/open source technologies like WebRTC. The Universal Licence is designed for a world where all the licencees have an operational presence in India. This is not true of communications OTT services. Therefore a licensing regime would unjustly favour some services over others.

Further, VoIP services need not be provided by a company: a person can choose to run XMPP, SIP, or Mumble — all of which are protocol that support VoIP — on their own computers. Will a licensing regime force such individuals' many of whom may not be Indian nationals — to become licence-holders if they facilitate domestic communications within India? The DoT panel report doesn't say. This would also result in a licensing regime unjustly favouring some services over others.

The report also doesn't say how one would distinguish between OTT communication services and OTT application services, when many apps such as personal assistance apps like HelpChat, are centred around communications. It also does not mention what regulatory distinction exists between text communication services and video/voice communication services, or between purely domestic and international video/voice communications. Stating that certain telecom companies are currently earning most of their revenue from domestic voice traffic will not suffice as a regulatory, just as it did not suffice to say that VSNL's international telephony monopoly earned it a lot of money. Regulatory fairness is the important issue and not protecting specific business models. Thus, there is no rational distinction to be drawn. Even if the panel has some regulatory distinction that it has not stated, this is an impossibility to enforce. Much domestic IP traffic is 'round-tripped', with traffic leaving India and coming back in. How would the regulator propose to regulate that?

Will there be a revenue-sharing mechanism, as is currently the case under the Unified Licence? If so, how will it be calculated in case of services like WhatsApp? These questions too find no answer in the report.

Given these numerous objections and unanswered questions, the government would be well-advised not seek to license OTT communications services. Instead, it would be useful for the government to hold public consultations about:

1. What Universal Licence conditions makes sense in the world of IP-based services, and international services?
2. How can we frame ex-post regulations that address legitimate concerns? Is there overlap with provisions of the IT Act such as s.69, s.69B, s.79, and others?
3. How can we ensure that the regulatory burden for telecom players with respect to their being able to provide IP-based services that are equivalent to OTT communication services?

Net neutrality

While the DoT panel reiterates a number of times that the core principles of Net neutrality should be adhered to, it nowhere defines what these core tenets are. We suggest the following definition:

net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

The above definition applies to the way the ISPs treat consumers, treat interconnecting networks, as well as the way they treat traffic internally.
We agree with the panel that in that while Net neutrality should find place in a new law, for the time being Net neutrality principles can be enforced through the licence agreement between the DoT and telecom providers.

Traffic Management

It is unclear what precisely the DoT panel means by "application-agnostic" and "application-specific" network management. Different scholars on this issue — such as Barbara van Schewick and Christopher Yoo — mean different things when they use the word "application". Without a definition, it is difficult to say whether the panel's recommendation on that front are sound.
Instead, we suggest the following tests:
Discrimination between classes of traffic for the sake of network management should only be permissible if:

there is an intelligible differentia between the classes which are to be treated differently, and
there is a rational nexus between the differential treatment and the aim of such differentiation, and
the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP, and
the network management practice is the least harmful manner in which to achieve the aim.

As for the provision of enterprise and managed services, which we more broadly term "specialized services", we would recommend:

Provision of specialized services is permitted if and only if it is shown that
The service is available to the user only upon request, and not without their active choice, and
The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or
The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

Lastly, we would recommend that the above regulatory guidlines only be applied against ISPs, and not against public providers of Internet connectivity, such as a library, a school, an airport, a hotel, etc.

Zero-rating

On the contentious issue of zero-rating, a process that involves both ex-ante and ex-post regulation is envisaged to prevent harmful zero-rating, while allowing beneficial zero-rating. Further, the report notes that the supposed altruistic or "public interest" motives of the zero-rating scheme do not matter if they result in harm to competition, distort consumer markets, violate the core tenets of Net neutrality, or unduly benefit an Internet "gatekeeper".

Much of the discussion around zero-rating has been happening around an assumption of common understanding of the phrase. Unfortunately, that is not true. There is no consensus as to whether a "special Facebok pack of 200MB for Rs.20" offered by a telecom company constitutes zero-rating or not. Without a working definition of zero-rating, not much progress can be made.

We propose the following as a definition:

Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage.

The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer.

We believe that zero-rating can be non-discriminatory in nature, and such zero-rating should not be prohibited. Having a system with both ex-ante and ex-post checks is rather heavy-handed regulation, but since the issue is very contentious in India, we believe it might be merited.

We thank you for giving us this opportunity to comment.
Pranesh Prakash, Policy Director at the Centre for Internet and Society

For more details visit https://cis-india.org/telecom/blog/comments-on-dot-panel-report-via-mygov

Software Freedom Pledge

pranesh — 2015-09-25T12:26:09Z

On September 19, 2015, celebrated globally as Software Freedom Day, a number of enthusiasts got together and collectively took a pledge.

We, who have gathered together for Software Freedom Day 2015, believe that software freedom is both a matter of ethical principle as well as a matter of pragmatism, and is necessary for a democratic, open society.

We believe that it is desirable that all people, but especially governments, use, contribute to, and spread open standards, free/libre/open source software, open APIs, openly-licensed content (including open data, open access, and open education resources), leading to a vibrant public domain, and ensure that all of the above are accessible for all, including persons with disabilities and other marginalised sections of society.

Given that, we pledge to:

use and spread free software amongst our family, friends, and neighbours, both in person and virtually.
demand that services we use in turn use open standards and open APIs, and thus be available for all using free/libre/open source software, without the payment of any royalties.
raise the issue of software freedom with our democratic representatives, to seek that they in turn respect and promote these principles.
as far as possible, making our own work openly available, and seek to convince our employers, publishers, producers, and other persons who might be in a position to restrict
work against any laws, policies — corporate or governmental — or technical restrictions that seek to prevent people from full exercise of their rights, and which are contrary to the above principles.

Signed by:

Abhaya Agarwal
Ananth Subray
Asutosha Sarangi
Chirag Sarthi J
Prakash Hebballi
Pranesh Prakash
Ralph Andrade
Subhashish Panigrahi
Tito Dutta
Veethika Mishra

For more details visit https://cis-india.org/openness/software-freedom-pledge-2015

Indian Porn Ban is Partially Lifted But Sites Remain Blocked

pranesh — 2015-09-13T09:00:03Z

The Indian government made a quick about-face on its order to block hundreds of pornography websites on Tuesday, partially lifting the ban after political backlash against the moral policing.

The article was published in Wall Street Journal on August 5, 2015. Pranesh Prakash gave his inputs.

But the websites remained blocked because Internet service providers were afraid of legal trouble.

The new order from the Department of Telecommunications said that Internet service providers could unblock any of the 857 websites, so long as they don’t contain child pornography. However, the websites remain blocked because service providers say they have no way of knowing whether they contain child porn, and no control over whether they will in the future.

Ravi Shankar Prasad, the IT minister, said Tuesday night that the government would trim down the list of banned sites, to focus only on those that contain child porn.

“A new notification will be issued shortly. The ban will be partially withdrawn. Sites that do not promote child porn will be unbanned,” said Mr. Prasad on the TV news channel India Today.

The wording of the new order created confusion, because it appears to put the responsibility for policing the Internet for child pornography on service providers.

“How can we go ahead? What if something comes up tomorrow [on one of these sites], which has child porn, or something else?,” said an executive at an Indian service provider who asked not to be named.

“The onus cannot be put on the service providers. What the government is doing is inherently unfair, it is not what the law requires,” said Pranesh Prakash, policy director at the Centre for Internet and Society, a Bangalore-based civil liberties advocacy group. It is the government’s job to determine what violates the law, not private companies, Mr. Prakash said.

For more details visit https://cis-india.org/internet-governance/news/the-wall-street-journal-august-5-2015-sean-mclain-indian-porn-ban-is-partially-lifted-but-sites-remain-blocked

Ban on pornography temporary, says government

pranesh — 2015-09-13T08:46:24Z

The government has taken a dramatic U-turn from its stated position on internet pornography.

The article was published in Business Standard on August 4, 2015. Pranesh Prakash has been quoted.

A year after conveying to the Supreme Court that a blanket ban on internet pornography was not possible, through the department of electronics and information technology, it has asked internet providers to disable 857 websites that carry adult content. A senior official from the department of telecommunications (DoT) said the ban was a temporary measure, till the final order is announced by the apex court on August 10.

The government is looking at setting up an ombudsman to oversee cyber content, which will have representatives from NGOs, child activists and the government. The DoT official said, “There has to be some kind of regulatory oversight away from the government intervention… An ombudsman might be set up for overseeing cyber related content issues.”

The genesis of the current notification lies in the public interest litigation (PIL) filed by advocate Vijay Panjwani in April 2013. The PIL has sought curbs on these websites on the internet, especially the ones showing child pornography. The senior DoT official conveyed that the blocking of 857 websites was in compliance with the SC directive asking for measures to block porn sites, particularly those dealing with child pornography.

The July 31 notification from DoT has advised internet service licensees to disable content on 857 websites, as the content "hosted on these websites relates to morality and decency as given in Article 19(2) of the Constitution of India". The government had stated last year that it was not technologically feasible to monitor such contents as it would require physical intervention, which would impact data speeds.

In December 2014, the government had approached telecom providers and internet service providers to help identify such sites, but the service providers did not cooperate. Consequently, the government has gone ahead and identified 857 websites. However, the government has not given any detail as what was the criterion to identify such websites.

Pranesh Prakash, policy director at the Centre for Internet and Society, says DoT has used the provision of 79 (3) (b) of the IT Act, which is a convoluted Section that the intermediatory (ISPs) may lose protection from liability. This section is very convulated, the provisions for website blocking does not allow blocking porn. In section 69 (a), the entire procedure is that it allows an opportunity for the blocked website to be heard. “I can't comment on the reasons that the government for doing this. I know the order says the ban relates to morality, decency," adds Prakash.

Last year, the government took a position that said blocking these websites was not feasible, given that these sites are hosted outside India. In case of any ban, these sites can be relocated within hours to bypass it. Pavan Duggal, an advocate who specialises in cyber laws, has called the disablement 'cosmetic,' as it will not have the requisite deterrent effect. Duggal says: "This is a lost battle from the word go, as it is impossible to disable access permanently."

Watching such content in India is currently not an offence and, thus, the government is invoking “morality and decency” while seeking a curb on a fundamental right — Freedom of Speech & Expression. Under Article 19 (2) of the Constitution, the state can curb a fundamental right in order to maintain public order, decency or morality.

TO BAN OR NOT TO BAN

2013

Advocate Vijay Panjwani & Kamlesh Vaswani file PIL seeking curbs on internet pornography

Aug 2014

Supreme Court bench under Chief Justice R M Lodha agreed with the PIL and sought strict laws to curb online content

8 Jul 2015

Chief Justice of India H L Dattu upholds personal liberty and refuses to pass an interim order. Asks government to take a stand on the issue
CJI, heading a three-judge Bench, asks government to a detailed affidavit within four weeks

Jul 31

DoT sends notification seeking ban on 857 websites
Currently, there are no laws banning internet pornography in India, other than those related to children
Government’s stated position has been that it is difficult to curb online content

For more details visit https://cis-india.org/internet-governance/news/business-standard-august-4-2015-ban-on-pornography-temporary-says-government

Proxies and VPNs: Why govt can't ban porn websites?

pranesh — 2015-09-13T08:26:17Z

The government's move to block more than 800 pornographic websites has led experts to question whether this latest attempt to police the internet is even feasible.

The article by Siladitya Ray was published in the Hindustan Times on August 3, 2015. Pranesh Prakash was quoted.

Internet service providers (ISPs) have confirmed they received letters from the Department of Telecommunications (DoT) on Saturday that directed them to block certain websites. But can the government stop users from visiting porn sites?

The answer seems to be no.

"It is extremely easy to circumvent these blocks, using virtual private networks (VPNs) and proxies that anonymise your traffic," said Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.

A cursory Google search on how to unblock porn websites throws up millions of how-tos and guides on using proxies and VPNs to get around restrictions set by authorities. All these services anonymise users’ web traffic by routing them through foreign servers.

According to data from Pornhub, one of the world's biggest porn sites, India ranks fifth for the most daily visitors to the website. Pornhub saw a total of 78.9 billion video views globally in 2014.

The government can try to keep up with proxies and block them too. But as proxies change on a daily basis and there are always dozens of functioning proxies to choose from across, blocking all of them will be a near impossible task.

Tor, an anonymity network, is also a popular way to surf blocked sites.

But is it legal to circumvent blocks put in place by authorities by using VPNs and proxies?

There is no law in India that prohibits viewing pornography, experts say. Section 67 of the Information Technology Act only deals with "publishing obscene information in electronic form".

This provision has been interpreted as a measure to criminalise the posting of pornographic content online. However, accessing "obscene" content privately – such as within the four walls of a person’s home – is not illegal, say experts.

In July, while hearing a petition seeking the blocking of pornographic websites, Supreme Court Chief Justice HL Dattu wondered whether the court could restrain an adult from watching pornography within his home and described such a ban as a violation of Article 21 of the Constitution, which grants the right to personal liberty to its citizens.

But what about the legality of using VPNs and proxies? “There are no laws preventing the use of VPNs and proxies in India," said Prakash.

Are proxies and VPNs safe?

While the use of proxies and VPNs is very simple, they do come with their own set of problems. These services have access to all your browsing data and may push adware and other forms of malware.

Prakash advised that users should only choose services that are well known and have a good reputation.

"Sites like TorrentFreak put out annual lists of the top VPNs available," he said. These can be used as a guide to determine what services are safe.

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-august-3-2015-siladitya-ray-proxies-and-vpns

Indian government orders ISPs to block 857 porn websites

pranesh — 2015-09-13T08:18:33Z

The Indian government has ordered a large number of porn websites to be blocked, creating an uproar among users and civil rights groups in the country.

The blog post by John Ribeiro was originally published by IDG News Service and mirrored on PC World website on August 2, 2015.

The Department of Telecommunications has issued orders for the blocking of 857 websites serving pornography, said two persons familiar with the matter, who declined to be named.

Section 69 (A) of India’s Information Technology Act allows the government to order blocking of public access to websites and other information through computer resources, though this section appears to be designed to be invoked when a threat is perceived to the sovereignty and integrity of India, security of the state, friendly relations with foreign states or public order.

“The government cannot on its own block private access to pornography under current statutes,” said Pranesh Prakash, policy director of the Centre for Internet and Society in Bangalore. “Parliament has not authorized the government to ban porn on its own.”

“However, courts have in the past ordered specific websites to be blocked for specific offences such as defamation, though as far as I know not for obscenity,” Prakash added.

Viewing pornography privately is not a crime in the country, though its sale and distribution is an offense.

Some porn websites were still accessible through certain Internet service providers on Monday, as some ISPs took some time to implement the order. “All the 857 websites will be blocked by all ISPs today,” said a source in the ISP industry, who requested anonymity. “As licensees we have to follow the orders.”

The government could not be immediately reached for comment.

Reports of the blocks created a furore among Internet users in the country, who criticized the move on Reddit, Twitter and other social media.

India’s Supreme Court struck down in March as unconstitutional an Internet law that provided for the arrest of people sending online messages considered offensive or menacing. But it upheld Section 69 (A) in that same ruling, which it described as a “narrowly drawn provision” limited to a few subjects.

In a public interest lawsuit on the blocking of pornography, the Supreme Court last month declined to issue an interim order that would block porn websites at the request of the private litigant, according to a report.

For more details visit https://cis-india.org/internet-governance/news/idg-news-service-august-2-2015-indian-govt-orders-isps-to-block-857-porn-websites

Digital Security Workshop for Journalists and Human Rights Workers

pranesh — 2015-09-02T03:41:47Z

The Centre for Internet and Society would like to welcome journalists and human rights workers to attend a workshop on digital security. The workshop will be led by Pranesh Prakash, policy director at CIS and resident security expert. In this workshop, the participants will be provided hands-on training on how to assess security threats, how to protect sources, how to prevent others from snooping on private communications, and how to harden your computer and electronic devices' security. The training will focus both on understanding security, how it can mean different things in different situations, and the trade-offs involved, as well as on practical easy-to-use tools.

All attending are requested to bring their laptops, smartphones, and tablets.

Please mail pranesh AT cis-india DOT org if you wish to attend, or if you have any queries.

This workshop furthers CIS's work as part of the Cyber Stewards Network.

For more details visit https://cis-india.org/events/digital-security-workshop-journalists-bangalore-sept-2015

Will Indians have to pay for WhatsApp?

pranesh — 2015-08-24T02:00:56Z

India's Department of Telecommunications (DoT) formed a panel in January 2015 to look into net neutrality in the country.

This was originally published by BBC on July 25. Pranesh Prakash has been quoted.

Net neutrality means service providers should treat all traffic equally. Users should be able to access all websites at the same speed and cost.

A battle to decide the future of the internet in India is being fought online, between telecom users and operators.

The panel has now released its report to the public and invited comments. Pranesh Prakash from the Centre for Internet Studies decodes the report and what it means for Indians.

What does the panel say?

Internet-based Over-the-top (OTT) communication services like WhatsApp, Viber, and the like are currently taking advantage of "regulatory arbitrage", meaning that the regulations that apply to non-Internet based communications services (telephone calls) are different from OTT communications services.

Under current rules, the OTT services don't have to get a licence from the government, don't have to abide by anti-spam, do-not-disturb regulations, share any revenue with the government or abide by national security conditions. The panel wants to bring these services under a licensing regime.

The report distinguishes between Internet-based voice calls (voice over IP, or VoIP) and messaging services and doesn't wish to interfere with the latter. This means it could regulate services like Skype, Viber and WhatsApp calls but not WhatsApp or Viber messages. It also distinguishes between domestic and international VoIP calls, and believes only the former need regulation. It is unclear on what basis these distinctions are made.

The core principles of net neutrality - which are undefined in the report, though definitions proposed in submissions they've received are quoted - should be adhered to. In the long-run, these should find place in a new law, but for the time being they can be enforced through the licence agreement between the government and telecom providers.

Where does the panel report go wrong?

The proposal by the panel to regulate VoIP services like Skype or Viber is a terrible idea.

Many important terms are left undefined, and many distinctions that the report draws are left unexplained. For instance, it is unclear on what regulatory basis the report distinguishes between domestic and international VoIP calls or between regulation of messaging services and VoIP services.

Will it increase cost of access to WhatsApp and Viber?

"Zero-rating" is a policy whereby telecoms providers agree not to pass on the costs of handling the data traffic so that consumers can receive services for free.

On the one hand, this could decrease the cost of access to WhatsApp and Viber. But that might not be allowed because free services could harm competition and distort markets.

Whether this will lead to consumers paying for WhatsApp and similar services depends on what kinds of regulations are placed on them, and if any costs are imposed on them.

Does the report uphold net neutrality?

The report is clear that it strongly endorses the "core principles of net neutrality".

On the issue of "zero-rating" the panel proposes some sound measures, saying that there should be a two-part mechanism for ensuring that "harmful" zero-rating doesn't go through.

First, telecom services need to submit "zero-rating" tariff proposals to an expert body constituted by telecoms department.

Second, consumers will be able to complain about the harmful usage of "zero-rating" by any service provider, which may result in a fine.

Where have people got the report wrong?

There have been reports saying that the panel has recommended increased charges for domestic VoIP calls. This is untrue.

There are reports saying the panel has given the go-ahead for all forms of zero-rating. Once again, this is untrue. The panel cites instances of zero-rating that aren't discriminatory, violative of net neutrality and don't harm competition or distort consumer markets (such as zero-rating of all Internet traffic for a limited time period). Then it goes on to state that the regulator should not allow zero-rating that violates the core principles of net neutrality.

Pranesh Prakash is policy director at the Centre for Internet and Society. A longer article he wrote on the panel report can be accessed here.

For more details visit https://cis-india.org/internet-governance/news/bbc-july-25-2015-will-indians-have-to-pay-for-whatsapp

Global Censorship: Shifting Modes, Persisting Paradigms

pranesh — 2015-08-14T11:22:11Z

'Global Censorship: Shifting Modes, Persisting Paradigms' is a book edited by Pranesh Prakash, Nagla Rizk, and Carlos Affonso Souza, and published by the Access to Knowledge Global Academy as part of its Access to Knowledge Research Series.

For more details visit https://cis-india.org/a2k/a2kga-global-censorship