The Centre for Internet and Society
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Paper-thin Safeguards and Mass Surveillance in India
https://cis-india.org/internet-governance/blog/paper-thin-safeguards-and-mass-surveillance-in-india
<b>The Indian government's new mass surveillance systems present new threats to the right to privacy. Mass interception of communication, keyword searches and easy access to particular users' data suggest that state is moving towards unfettered large-scale monitoring of communication. This is particularly ominous given that our privacy safeguards remain inadequate even for targeted surveillance and its more familiar pitfalls.</b>
<p style="text-align: justify; ">This need for better safeguards was made apparent when the Gujarat government illegally placed a young woman under surveillance for obviously illegitimate purposes, demonstrating that the current system is prone to egregious misuse. While the lack of proper safeguards is problematic even in the context of targeted surveillance, it threatens the health of our democracy in the context of mass surveillance. The proliferation of mass surveillance means that vast amounts of data are collected easily using information technology, and lie relatively unprotected.</p>
<p style="text-align: justify; ">This paper examines the right to privacy and surveillance in India, in an effort to highlight more clearly the problems that are likely to emerge with mass surveillance of communication by the Indian Government. It does this by teasing out Indian privacy rights jurisprudence and the concerns underpinning it, by considering its utility in the context of mass surveillance and then explaining the kind of harm that might result if mass surveillance continues unchecked.</p>
<p style="text-align: justify; ">The first part of this paper threads together the evolution of Indian constitutional principles on privacy in the context of communication surveillance as well as search and seizure. It covers discussions of privacy in the context of our fundamental rights by the draftspersons of our constitution, and then moves on to the ways in which the Supreme Court of India has been reading the right to privacy into the constitution.</p>
<p style="text-align: justify; ">The second part of this paper discusses the difference between mass surveillance and targeted surveillance, and international human rights principles that attempt to mitigate the ill effects of mass surveillance.</p>
<p style="text-align: justify; ">The concluding part of the paper discusses mass surveillance in India, and makes a case for expanding our existing privacy safeguards to protect the right to privacy in a meaningful manner in face of state surveillance.</p>
<p style="text-align: justify; "><a href="https://cis-india.org/internet-governance/blog/paper-thin-safeguards.pdf" class="external-link">Download the paper here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/paper-thin-safeguards-and-mass-surveillance-in-india'>https://cis-india.org/internet-governance/blog/paper-thin-safeguards-and-mass-surveillance-in-india</a>
</p>
No publisherchinmayiSurveillanceInternet GovernancePrivacy2015-06-20T10:17:57ZBlog EntryPrivate Censorship and the Right to Hear
https://cis-india.org/internet-governance/blog/the-hoot-july-17-2014-chinmayi-arun-private-censorship-and-the-right-to-hear
<b>Very little recourse is available against publishers or intermediaries if these private parties censor an author’s content unreasonably.</b>
<p style="text-align: justify; ">The article was <a class="external-link" href="http://www.thehoot.org/web/Private-censorship-and-the-right-to-hear/7652-1-1-6-true.html">published in the Hoot</a> on July 17, 2014 and also mirrored on the <a class="external-link" href="http://ccgnludelhi.wordpress.com/">website of Centre for Communication Governance</a>.</p>
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<p style="text-align: justify; "><i>DNA</i> newspaper's removal of <a href="http://www.dnaindia.com/authors/rana-ayyub" target="_blank">Rana Ayyub</a>'s brave <a href="http://caravandaily.com/portal/censored-rana-ayyub-article-on-amit-shah-that-dna-axed/" target="_blank">piece</a> on Amit Shah, with no explanation, is shocking. It is reminiscent of the role that media owners played in censoring journalists during the Emergency, prompting L.K. Advani to say, "<a href="https://wearethebest.wordpress.com/2010/06/29/hindu-and-ht-were-worst-offenders-in-1975/" target="_blank">You were asked to bend, but you crawled</a>."</p>
<p style="text-align: justify; "><span><span>The promptitude with which some media houses are weeding out political writing that might get them into trouble should make us reconsider the way we think about the <a href="http://www.indiankanoon.org/doc/1157189/" target="_blank">freedom of the press</a>. Discussions of press freedom often concentrate on the individual's right to speak, but may be more effective if they also accommodated another perspective - the <a href="http://balkin.blogspot.in/2011/03/hugo-black-lecture-part-i.html" target="_blank">audience's right to hear</a>.</span></span><span><span></span></span></p>
<p style="text-align: justify; "><span><span><span><span>It is fortunate that Ayyub's piece was printed and reached its audience before attempts were made to bury it. Its removal was counterproductive, making <i>DNA</i>'s decision a good example of what is popularly known as the <a href="http://en.wikipedia.org/wiki/Streisand_effect" target="_blank">Streisand Effect</a> (when an attempt to censor or remove infor-mation has the unintended consequence of publicising the information even more widely). </span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span>The controversy that has emerged from <i>DNA</i> removing the article has generated much wider attention for it now that it has appeared on <a href="http://caravandaily.com/portal/censored-rana-ayyub-article-on-amit-shah-that-dna-axed/" target="_blank">multiple</a> <a href="http://rantographic.blogspot.in/2014/07/a-new-low-in-indian-politics-rana-ayyub.html" target="_blank">websites</a>, its readership expanding as <a href="https://twitter.com/search?q=rana%20ayyub&src=typd" target="_blank">outrage</a> at its removal <a href="http://www.firstpost.com/india/newspaper-pulls-down-article-critical-of-amit-shah-twitter-outrages-1616767.html" target="_blank">ricochets</a> around the Internet. </span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span>This incident is hardly the first of its kind. Just weeks ago, <a href="http://www.livemint.com/Companies/rqT2Oi8fwv4XVjJcHzlcVN/Inside-the-Network18-takeover.html" target="_blank">news</a> surfaced of Rajdeep Sardesai being pressurised to alter his news channel's political coverage before the national election. The <i>Mint</i> <a href="http://www.livemint.com/Companies/rqT2Oi8fwv4XVjJcHzlcVN/Inside-the-Network18-takeover.html" target="_blank">reported</a> that the people pressurising Sardesai wanted a complete blackout of Kejriwal and the Aam Admi party from CNN-IBN. Had he capitulated, significant news of great public interest would have been lost to a large audience. CNN-IBN's decision would have been put down to editorial discretion, and we the public would have been none the wiser. </span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span>Luckily for their audience, Sardesai and Sagarika Ghose <a href="http://www.thenewsminute.com/news_sections/456" target="_blank">quit</a> the channel that they built from scratch instead of compromising their journalistic integrity. However, the league of editors who choose to crawl remains large, their decisions protected by the Indian constitution.</span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span>The freedom of the press in India only protects the press from the government's direct attempts to influence it. Both big business and the state have far more instruments at their disposal than just direct ownership or censorship diktats. These include withdrawal of lucrative advertisements, <a href="http://www.legallyindia.com/201404294653/Bar-Bench-Litigation/khaitan-mulla-ambani-gas-wars" target="_blank">defamation notices</a> threatening journalists with enormous fines and imprisonment, and sometimes even <a href="http://www.thehindu.com/news/national/11-journalists-killed-in-india-in-2013/article5523381.ece" target="_blank">physical violence</a>. Who can forget how <i>Tehelka</i> magazine's exposure of largescale government wrongdoing resulted in its financiers being persecuted by the Enforcement Directorate, with one of them even being jailed for some time. </span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span>The instruments of harassment work best when the legal notices are sent to third party publishers or intermediaries. Unlike the authors who may wish to defend their work or modify it a little to make it suitable for publication, a publishing house or web platform would usually prefer to avoid expensive litigation. Third party publishers will often <a href="http://timesofindia.indiatimes.com/india/Under-pressure-publisher-puts-books-under-review/articleshow/36024216.cms" target="_blank">remove</a> legitimate con-tent to avoid spending time and money fighting for it. <a href="http://www.theguardian.com/books/2014/feb/19/penguin-india-protest-hindus-wendy-doniger" target="_blank">Pressurising</a> them is a fairly effective way to silence authors and journalists. </span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>Consider the different news outlets and publishing houses that control what reaches us as news or commentary. If they can be forced to bury content, citing editorial discretion, consider what this means for the quality of news that reaches the Indian public. Indira Gandhi understood this weakness of the press, and <a href="https://wearethebest.wordpress.com/2010/06/29/hindu-and-ht-were-worst-offenders-in-1975/" target="_blank">successfully controlled</a> the Indian media by managing the proprietors.</span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>Although media ownership still remains concentrated in a few hands, the disruptive element that still offers some hope of free public dialogue is the Internet where, through blogs, small websites and social media, journalists can still get access to the public sphere. This means that when <i>DNA</i> deletes Rana Ayyub's article, copies of it are immediately posted in other places. </span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>However, online journalism is also vulnerable. Online intermediaries which receive <a href="http://ibnlive.in.com/news/dot-orders-blocking-of-73-urls-with-content-critical-of-iipm-including-a-ugc-notice-report/373152-11.html" target="_blank">content blocking</a> and <a href="http://www.indexoncensorship.org/2013/11/india-online-report-freedom-expression-digital-freedom-1/" target="_blank">take down</a> orders tend to <a href="https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_blank">over-comply</a> rather than risk litigation. Like publishers, these intermediaries can easily prevent speakers from reaching their audiences. Just look at the volume of information online that is dependent on third party intermediaries such as Rediff, Facebook, WordPress or Twitter. The only thing that keeps the state and big business from easily controlling the flow of information on the Internet is that it is difficult to exert <a href="http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/19/government-take-down-requests-to-google-hits-a-new-record-company-says/" target="_blank">cross-border pressure</a> on online intermediaries located outside India.</span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>However, the ease with which most of the mainstream media is controlled makes it easy to construct a bubble of fiction around audiences, leaving them in blissful ignorance of how little they really know. Very little recourse is available against publishers or intermediaries if these private parties censor an author's content unreasonably. Unlike state censorship, <a href="http://www.lse.ac.uk/CPNSS/research/currentResearchProjects/ChoiceGroup/PDF_files/WP_6_2.pdf" target="_blank">private censorship</a> is invisible, and is protected by the online and offline intermediaries' right to their editorial choices.</span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>Ordinarily, there is nothing wrong with editorial discretion or even with a media house choosing a particular slant to its stories. However, it is important for the public to have access to a healthy range of perspectives and interests, with a diversity of content. If news of public significance is regularly filtered out, it affects the state of our democracy. Citizens cannot participate in governance without access to important information.</span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span><span>It is, therefore, vital to acknowledge the harm caused by private censorship. A democracy is endangered when a few parties disproportionately control access to the public sphere. We need to think of how to ensure that the voices of journalists and scholars reach their audience. Media freedom should be seen in the context of the right of the audience, the Indian public, to receive information.</span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hoot-july-17-2014-chinmayi-arun-private-censorship-and-the-right-to-hear'>https://cis-india.org/internet-governance/blog/the-hoot-july-17-2014-chinmayi-arun-private-censorship-and-the-right-to-hear</a>
</p>
No publisherchinmayiInternet GovernancePrivacy2014-07-22T05:57:09ZBlog EntryFiltering content on the internet
https://cis-india.org/internet-governance/blog/filtering-content-on-the-internet
<b></b>
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<p dir="ltr" style="text-align: justify; ">The op-ed was <a class="external-link" href="http://www.thehindu.com/todays-paper/tp-opinion/filtering-content-on-the-internet/article5967959.ece">published in the Hindu</a> on May 2, 2014.</p>
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<p dir="ltr" style="text-align: justify; ">On May 5, the Supreme Court will hear Kamlesh Vaswani’s infamous anti-pornography petition again. The petition makes some rather outrageous claims. Watching pornography ‘puts the country’s security in danger’ and it is ‘worse than Hitler, worse than AIDS, cancer or any other epidemic,’ it says. This petition has been pending before the Court since February 2013, and seeks a new law that will ensure that pornography is exhaustively curbed.</p>
<p dir="ltr" style="text-align: justify; "><b>Disintegrating into binaries</b></p>
<p dir="ltr" style="text-align: justify; ">The petition assumes that pornography causes violence against women and children. The trouble with such a claim is that the debate disintegrates into binaries; the two positions being that pornography causes violence or that it does not. The fact remains that the causal link between violence against women and pornography is yet to be proven convincingly and remains the subject of much debate. Additionally, since the term pornography refers to a whole range of explicit content, including homosexual adult pornography, it cannot be argued that all pornography objectifies women or glamorises violent treatment of them.</p>
<p dir="ltr" style="text-align: justify; ">Allowing even for the petitioner’s legitimate concern about violence against women, it is interesting to note that of all the remedies available, he seeks the one which is authoritarian but may not have any impact at all. Mr. Vaswani could have, instead, encouraged the state to do more toward its international obligations under the Convention on the Elimination of Discrimination against Women (CEDAW). CEDAW’s General Recommendation No. 19 is about violence against women and recommends steps to be taken to reduce violence against women. These include encouraging research on the extent, causes and effects of violence, and adopting preventive measures, such as public information and education programmes, to change attitudes concerning the roles and status of men and women.</p>
<p dir="ltr" style="text-align: justify; "><b>Child pornography</b></p>
<p dir="ltr" style="text-align: justify; ">Although different countries disagree about the necessity of banning adult pornography, there is general international consensus about the need to remove child pornography from the Internet. Children may be harmed in the making of pornography, and would at the very minimum have their privacy violated to an unacceptable degree. Being minors, they are not in a position to consent to the act. Each act of circulation and viewing adds to the harmful nature of child pornography. Therefore, an argument can certainly be made for the comprehensive removal of this kind of content.</p>
<p dir="ltr" style="text-align: justify; ">Indian policy makers have been alive to this issue. The Information Technology Act (IT Act) contains a separate provision for material depicting children explicitly or obscenely, stating that those who circulate such content will be penalised. The IT Act also criminalises watching child pornography (whereas watching regular pornography is not a crime in India).</p>
<p dir="ltr" style="text-align: justify; ">Intermediaries are obligated to take down child pornography once they have been made aware that they are hosting it. Organisations or individuals can proactively identify and report child pornography online. Other countries have tried, with reasonable success, systems using hotlines, verification of reports and co-operation of internet service providers to take down child pornography. However, these systems have also sometimes resulted in the removal of other legitimate content.</p>
<p dir="ltr" style="text-align: justify; "><b>Filtering speech on the Internet</b></p>
<p dir="ltr" style="text-align: justify; ">Child pornography can be blocked or removed using the IT Act, which permits the government to send lists of URLs of illegal content to internet service providers, requiring them to remove this content. Even private parties can send notices to online intermediaries informing them of illegal content and thereby making them legally accountable for such content if they do not remove it. However, none of this will be able to ensure the disappearance of child pornography from the Internet in India.</p>
<p dir="ltr" style="text-align: justify; ">Technological solutions like filtering software that screens or blocks access to online content, whether at the state, service provider or user level, can at best make child pornography inaccessible to most people. People who are more skilled than amateurs will be able to circumvent technological barriers since these are barriers only until better technology enables circumvention.</p>
<p dir="ltr" style="text-align: justify; ">Additionally, attempts at technological filtering usually even affect speech that is not targeted by the filtering mechanism. Therefore, any system for filtering or blocking content from the Internet needs to build in safeguards to ensure that processes designed to remove child pornography do not end up being used to remove political speech or speeches that are constitutionally protected.</p>
<p dir="ltr" style="text-align: justify; ">In the Vaswani case, the government has correctly explained to the Supreme Court that any greater attempt to monitor pornography is not technologically feasible. It has pointed out that human monitoring of content will delay transmission of data substantially, will slow down the Internet, and will also be ineffective, since the illegal content can easily be moved to other servers in other countries.</p>
<p dir="ltr" style="text-align: justify; ">Making intermediaries liable for the content they host will undo the safe harbour protection granted to them by the IT Act. Without it, intermediaries like Facebook will actually have to monitor all the content they host, and the resources required for such monitoring will reduce the content that makes its way online. This would seriously impact the extensiveness and diversity of content available on the Internet in India. Additionally, when demands are made for the removal of legitimate content, profit-making internet companies will be disinclined to risk litigation much in the same way as Penguin was reluctant to defend Wendy Doniger’s book.</p>
<p dir="ltr" style="text-align: justify; ">If the Supreme Court makes the mistake of creating a positive obligation to monitor Internet content for intermediaries, it will effectively kill the Internet in India.</p>
<p dir="ltr" style="text-align: justify; "><i>(Chinmayi Arun </i>is <i>research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, </i>Bangalore)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/filtering-content-on-the-internet'>https://cis-india.org/internet-governance/blog/filtering-content-on-the-internet</a>
</p>
No publisherchinmayiInternet GovernancePrivacy2014-05-06T09:33:08ZBlog EntryMaking the Powerful Accountable
https://cis-india.org/internet-governance/blog/the-hindu-january-29-2014-chinmayi-arun-making-the-powerful-accountable
<b>If powerful figures are not subjected to transparent court proceedings, the opacity in the face of a critical issue is likely to undermine public faith in the judiciary.</b>
<hr />
<p style="text-align: justify; ">Chinmayi Arun's Op-ed was <a class="external-link" href="http://www.thehindu.com/opinion/op-ed/making-the-powerful-accountable/article5627494.ece">published in the Hindu</a> on January 29, 2014.</p>
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<p style="text-align: justify; ">It is odd indeed that the Delhi High Court seems to believe that sensational media coverage can sway the Supreme Court into prejudice against one of its own retired judges. Justice Manmohan Singh of the Delhi High Court has said in <i>Swatanter Kumar v. Indian Express and others</i> that the pervasive sensational media coverage of the sexual harassment allegations against the retired Supreme Court judge 'may also result in creating an atmosphere in the form of public opinion wherein a person may not be able to put forward his defence properly and his likelihood of getting fair trial would be seriously impaired.' This Delhi High court judgment has drawn upon the controversial 2011 Supreme Court judgment in <i>Sahara India Real Estate Corp. Ltd v. SEBI</i> (referred to as the Gag Order case here) to prohibit the media from publishing headlines connecting retired Justice Swatanter Kumar with the intern's allegations, and from publishing his photograph in connection with the allegations.</p>
<p style="text-align: justify; ">Although the Gag Order judgment was criticised at the time that it was delivered <i>Swatanter Kumar v. Indian Express</i> illustrates its detractors' argument more vividly that anyone could have imagined.</p>
<p style="text-align: justify; ">Sukumar Muralidharan wrote of Gag Order case that the postponement (of media coverage) order remedy that it created, could become an "instrument in the hands of wealthy and influential litigants, to subvert the course of open justice".</p>
<p style="text-align: justify; ">Here we find that although a former Supreme Court judge is pitted against a very young former intern within a system over which he once presided, Justice Manmohan Singh seems to think that it is the judge who is danger of being victimised.</p>
<p style="text-align: justify; ">The Swatanter Kumar judgment was enabled by both the Gag Order case as well as the 1966 Supreme Court judgment in <i>Naresh Sridhar Mirajkar v. State of Maharashtra</i>, which in combination created a process for veiling court proceedings. Naresh Mirajkar stated that courts' inherent powers extend to barring media reports and comments on ongoing trials in the interests of justice, and that such powers do not violate the right to freedom of speech; and the Gag Order case created an instrument - the 'postponement order' - for litigants, such that they can have media reports of a pending case restricted. The manner in which this is used in the Swatanter Kumar judgment raises very worrying questions about how the judiciary views the boundaries of the right to freedom of expression, particularly in the context of reporting court proceedings.</p>
<h3 style="text-align: justify; ">Broad power to restrict reporting</h3>
<p style="text-align: justify; ">The Gag Order case was problematic: it used arguments for legitimate restraints on media reporting in exceptional circumstances, to permit restrictions on media reporting of court proceedings under circumstances 'where there is a real and substantial risk of prejudice to fairness of the trial or to proper administration of justice'. The Supreme Court refused to narrow this or clarify what publications would fall within this category. It merely stated that this would depend on the content and context of the offending publication, and that no 'straightjacket formula' could be created to enumerate these categories. This leaves higher judiciary with a broad discretionary power to decide what amounts to<br />legitimate restraints on media reporting, using an ambiguous standard. Exercise of this power to veil proceedings involving powerful public figures whose actions have public implications, imperils openness and transparency when they are most critical.</p>
<p style="text-align: justify; ">Court proceedings are usually open to the public. This openness serves as a check on the judiciary, and ensures public faith in the judiciary. In countries as large as ours, media coverage of important cases ensures actual openness of court proceedings - we are able to follow the arguments made by petitioners who ask that homosexuality be decriminalised, the trial of suspected terrorists and alleged murderers, and the manner in which our legal system handles sexual harassment complaints filed by young women.</p>
<p style="text-align: justify; ">When court proceedings are closed to the public (known as 'in-camera' trials) or when media dissemination of information about them is restricted, the openness and transparency of court proceedings is compromised. Such compromise of transparency does take place in many countries, to protect the rights of the parties involved, or prevent miscarriage of justice. For example, child-participants are protected by holding trials in-camera; names of parties to court proceedings are withheld to protect their privacy sometimes; and in countries where juries determine guilt, news coverage that may prejudice the jury is also restricted.</p>
<h3 style="text-align: justify; ">The damage done</h3>
<p style="text-align: justify; ">Although the Supreme Court stated in principle that the openness of court proceedings should only be restricted where strictly necessary, this appears to lend itself to very varied interpretation. For example, it is very difficult for some of us to understand why it was strictly necessary to restrict media coverage of sexual harassment proceedings in the Swatanter Kumar case. J. Manmohan Singh on the other hand seems to believe that the adverse public opinion will affect the retired judge's chance of getting a fair trial. His judgment also seems to indicate his concern that the sensational headlines will impact the public confidence in the Supreme Court.</p>
<p style="text-align: justify; ">The Delhi High Court's apprehension about the effects of the newspaper coverage on the reputation of the judge did not need to translate into a prior restraint on media coverage. They may better have been addressed later, by evaluating a defamation claim pertaining to published material. The larger concerns about the reputation of the judiciary are better addressed by openness: if powerful public figures, especially those with as much influence as a former Supreme Court judge are not subjected to transparent court proceedings, the opacity in the face of such a critical issue is likely to undermine public faith in the judiciary as an institution.Such opacity undermines the purpose of open courts. It is much worse for the reputation of the judiciary than publicised complaints about individual judges.</p>
<p style="text-align: justify; ">Since the Delhi High Court ruling, there has been little media coverage of the sexual harassment case. Suppression of media coverage leaves the young woman comparatively isolated. Wide coverage of the harassment complaint involving Justice Ganguly, helped the intern in that case find support. The circulation of information enabled other former interns as well as a larger network of lawyers and activists, reach out to her. This is apart from the general pressure to be fair that arises when a case is being followed closely by the public. Media coverage is often critical to whether someone relatively powerless is able to assert her rights against a very powerful person. This is why media freedom is sacred to democracies.</p>
<p style="text-align: justify; ">If the Supreme Court was confident that the high courts in India would use their broad discretionary power under the Gag Order case sparingly and only in the interests of justice, the Swatanter Kumar case should offer it grounds to reconsider. Openness and freedom of expression are not meant to be diluted to protect the powerful - they exist precisely to ensure that even the powerful are held accountable by state systems that they might otherwise be able to sway.</p>
<p style="text-align: justify; "><i>(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, Bangalore.)</i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hindu-january-29-2014-chinmayi-arun-making-the-powerful-accountable'>https://cis-india.org/internet-governance/blog/the-hindu-january-29-2014-chinmayi-arun-making-the-powerful-accountable</a>
</p>
No publisherchinmayiPrivacyFreedom of Speech and ExpressionTransparency and AccountabilityInternet GovernanceOpenness2014-01-30T06:43:41ZBlog EntryBig Brother is watching you
https://cis-india.org/internet-governance/blog/the-hindu-january-3-2014-chinmayi-arun-big-brother-is-watching-you
<b>India has no requirements of transparency whether in the form of disclosing the quantum of interception or in the form of notification to people whose communication was intercepted.</b>
<hr />
<p class="body" style="text-align: justify; ">The article by Chinmayi Arun was <a class="external-link" href="http://www.thehindu.com/opinion/op-ed/big-brother-is-watching-you/article5530857.ece">published in the Hindu</a> on January 3, 2014.</p>
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<p class="body" style="text-align: justify; ">The Gujarat telephone tapping controversy is just one of many kinds of abuse that surveillance systems enable. If a relatively primitive surveillance system can be misused so flagrantly despite safeguards that the government claims are adequate, imagine what is to come with the Central Monitoring System (CMS) and Netra in place.</p>
<p class="body" style="text-align: justify; ">News reports indicate Netra — a “NEtwork TRaffic Analysis system” — will intercept and examine communication over the Internet for keywords like “attack,” “bomb,” “blast” or “kill.” While phone tapping and the CMS monitor specific targets, Netra is vast and indiscriminate. It appears to be the Indian government’s first attempt at mass surveillance rather than surveillance of predetermined targets. It will scan tweets, status updates, emails, chat transcripts and even voice traffic over the Internet (including from platforms like Skype and Google Talk) in addition to scanning blogs and more public parts of the Internet. Whistle-blower Edward Snowden said of mass-surveillance dragnets that “they were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”</p>
<p class="body" style="text-align: justify; ">So far, our jurisprudence has dealt with only targeted surveillance; and even that in a woefully inadequate manner. This article discusses the slow evolution of the right to privacy in India, highlighting the context and manner in which it is protected. It then discusses international jurisprudence to demonstrate how the right to privacy might be protected more effectively.</p>
<p style="text-align: justify; "><b>Privacy and the Constitution</b></p>
<p class="body" style="text-align: justify; ">A proposal to include the right to privacy in the Constitution was rejected by the Constituent Assembly with very little debate. Separately, a proposal to give citizens an explicit fundamental right against unreasonable governmental search and seizure was also put before the Constituent Assembly. This proposal was supported by Dr. B.R. Ambedkar. If accepted, it would have included within our Constitution the principles from which the United States derives its protection against state surveillance. However, the proposed amendment was rejected by the Constituent Assembly.</p>
<p class="body" style="text-align: justify; ">Fortunately, the Supreme Court has gradually been reading the right to privacy into the fundamental rights explicitly listed in the Constitution. After its initial reluctance to affirm the right to privacy in the 1954 case of <i>M.P. Sharma vs. Satish Chandra, </i>the court came around to the view that other rights and liberties guaranteed in the Constitution would be seriously affected if the right to privacy was not protected. In <i>Kharak Singh vs. The State of U.P., </i>the court recognised “the right of the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated. The right to privacy here was conceived around the home, and unauthorised intrusions into homes were seen as interference with the right to personal liberty.</p>
<p class="body" style="text-align: justify; ">If the <i>Kharak Singh </i>judgment was progressive in its recognition of the right to privacy, it was conservative about the circumstances in which the right applies. The majority of judges held that shadowing a person could not be seen to interfere with that person’s liberty. Dissenting with the majority, Justice Subba Rao maintained that broad surveillance powers put innocent citizens at risk, and that the right to privacy is an integral part of personal liberty. He recognised that when a person is shadowed, her movements will be constricted, and will certainly not be free movements. His dissenting judgment showed remarkable foresight and his reasoning is consistent with what is now a universally acknowledged principle that there is a “chilling effect” on expression and action when people think that they are being watched.</p>
<p class="body" style="text-align: justify; ">The right to privacy as defined by the Supreme Court now extends beyond government intrusion into private homes. After <i>Govind vs. State of M.P.</i>, and <i>Dist. Registrar and Collector of Hyderabad vs. Canara Bank</i>, this right is seen to protect persons and not places. Any inroads into this right for surveillance of communication must be for permissible reasons and according to just, fair and reasonable procedure. State action in violation of this procedure is open to a constitutional challenge.</p>
<p class="body" style="text-align: justify; ">Our meagre procedural safeguards against phone tapping were introduced in <i>PUCL vs. Union of India </i>(1997) after the Supreme Court was confronted with extensive, undocumented phone tapping by the government. The apex court found itself compelled to lay down what it saw as bare minimum safeguards, consisting mostly of proper record-keeping and internal executive oversight by senior officers such as the home secretary, the cabinet secretary, the law secretary and the telecommunications secretary. These safeguards are of little use since they are opaque and rely solely on members of the executive to review surveillance requests.</p>
<p style="text-align: justify; "><b>Right and safeguards</b></p>
<p class="body" style="text-align: justify; ">There is a difference between targeted surveillance in which reasons have to be given for surveillance of particular people, and the mass-surveillance which Netra sets up. The question of mass surveillance and its attendant safeguards has been considered by the European Court of Human Rights in <i>Liberty and Others vs. the United Kingdom</i>. Drawing upon its own past jurisprudence, the European Court insisted on reasonable procedural safeguards. It stated quite clearly that there are significant risks of arbitrariness when executive power is exercised in secret and that the law should be sufficiently clear to give citizens an adequate indication of the circumstances in which interception might take place. Additionally, the extent of discretion conferred and the manner of its exercise must be clear enough to protect individuals from arbitrary interference. The principles laid down by the European Court in relation to phone-tapping also require that the nature of the offences which may give rise to an interception order, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which recordings may or must be erased or the tapes destroyed be made clear.</p>
<p style="text-align: justify; "><b><b>Opaque and ineffective</b></b></p>
<p class="body" style="text-align: justify; ">Our safeguards apply only to targeted surveillance, and require written requests to be provided and reviewed before telephone tapping or Internet interception is carried out. CMS makes the process of tapping more prone to misuse by the state, by making it even more opaque: if the state can intercept communication directly, without making requests to a private telecommunication service provider, then it is one less layer of scrutiny through which the abuse of power can reach the public. There is no one to ask whether the requisite paperwork is in place or to notice a dramatic increase in interception requests.</p>
<p class="body" style="text-align: justify; ">India has no requirements of transparency whether in the form of disclosing the quantum of interception taking place each year, or in the form of subsequent notification to people whose communication was intercepted. It does not even have external oversight in the form of an independent regulatory body or the judiciary to ensure that no abuse of surveillance systems takes place. Given these structural flaws, the Amit Shah controversy is just the beginning of what is to come. Unfettered mass surveillance does not bode well for democracy.</p>
<p class="body" style="text-align: justify; "><i>(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, Bangalore.)</i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hindu-january-3-2014-chinmayi-arun-big-brother-is-watching-you'>https://cis-india.org/internet-governance/blog/the-hindu-january-3-2014-chinmayi-arun-big-brother-is-watching-you</a>
</p>
No publisherchinmayiInternet GovernancePrivacy2014-01-06T09:31:22ZBlog EntryParsing the Cyber Security Policy
https://cis-india.org/internet-governance/blog/the-hoot-july-13-2013-chinmayi-arun-parsing-the-cyber-security-policy
<b>An effective cyber-security policy must keep up with the rapid evolution of technology, and must never become obsolete. The standard-setting and review bodies will therefore need to be very nimble, says Chinmayi Arun.</b>
<hr />
<p style="text-align: justify; ">Chinmayi Arun's article was published in<a class="external-link" href="http://www.thehoot.org/web/Parsing-the-cyber-security-policy/6899-1-1-19-true.html"> the Hoot</a> on July 13, 2013 and later cross-posted in the <a class="external-link" href="http://thefsiindia.wordpress.com/2013/07/13/indias-national-cyber-security-policy-preliminary-comments/">Free Speech Initiative </a>the same day.</p>
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<p style="text-align: justify; "><span><span>We often forget how vulnerable the World Wide Web leaves us. If walls of code prevent us from entering each other’s systems and networks, there are those who can easily pick their way past them or disable essential digital platforms. We are reminded of this by the doings of </span></span><span><a href="http://www.thedailybeast.com/articles/2013/04/17/anonymous-next-move.html" target="_blank"><span>Anonymous</span></a><span>, which carried out a series of </span><a href="http://www.pcmag.com/article2/0,2817,2404554,00.asp" target="_blank"><span>attacks</span></a><span>, including the website <span>run by Computer Emergency Response Team India (CERT-In)<span> which is the government agency in charge of cyber-security. Even more serious, are cyber-attacks (arguably cyber warfare) carried out by other states, using digital weapons such as </span></span></span><span><a href="http://www.wired.com/threatlevel/2011/07/how-digital-detectives-deciphered-stuxnet/all/" target="_blank"><span>Stuxnet</span></a><span>, the digital worm<span>. More proximate and personal are perhaps the </span></span></span><span><a href="http://articles.timesofindia.indiatimes.com/2013-06-22/internet/40133370_1_phishing-attacks-kaspersky-lab-unsuspecting-user" target="_blank"><span>phishing attacks</span></a><span>, which are on the rise. </span></span></span></p>
<div style="text-align: justify; "><span><span>We therefore run a great risk if we leave</span></span><span><span><a href="http://abcnews.go.com/US/story?id=95993&page=1" target="_blank"><span> air-traffic control</span></a><span>, </span></span><span><a href="http://www.bbc.co.uk/news/world-us-canada-22692778" target="_blank"><span>defense resources</span></a> <span> or databases containing several </span></span><span><a href="http://www.nytimes.com/2013/05/10/us/hackers-access-personal-data-in-washington-state.html" target="_blank"><span>citizens’ personal data</span></a><span> vulnerable. Sure, there is no doubt that efforts towards better cyber-security are needed. A cyber-security policy is meant to address this need, and to help manage threats to individuals, businesses and government agencies. We need to carefully examine the government’s efforts to handle cyber-security, how effective it is and whether its actions do not have too many negative spillovers.</span></span></span></div>
<div style="text-align: justify; "><span><span><span><br /></span></span></span></div>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><span><span>The National Cyber-Security Policy, unveiled last week, is merely a statement of intention in broad terms. Much of its real impact will be ascertainable only after the language to be used in the law is available.</span></span><span><span> </span></span><span><span> Nevertheless, the scope of the policy </span></span><span><span><a href="http://www.rediff.com/news/report/national-cyber-security-policy-fails-on-many-fronts/20130703.htm" target="_blank"><span>remains ambiguous</span></a><span> so far, leading to </span></span><span><a href="http://groundreport.com/privacy-ignored-by-the-cyber-security-policy-of-india/" target="_blank"><span>much speculation</span></a><span> about the different ways in which it might be intrusive. </span></span></span></p>
<div style="text-align: justify; "><br />
<div style="text-align: justify; "><span><i><span>One Size Fits All?</span></i></span></div>
<div style="text-align: justify; "><span><span>The policy covers very different kinds of entities: government agencies, private companies or businesses, non-governmental entities and individual users. These entities may need to be handled differently depending on their nature. Therefore, while direct state action may be most appropriate to secure government agencies’ networks, it may be less appropriate in the context of purely private business. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>For example, securing police records would involve the government directly purchasing or developing sufficiently secure technology. However, different private businesses and non-governmental entities may be left to manage their own security. Depending on the size of each entity, each may be differently placed to acquire sophisticated security systems. A good policy would encourage innovation by those with the capacity to do this, while ensuring that others have access to reasonably sound technology, and that they use it. Grey-areas might emerge in contexts where a private party is manages critical infrastructure. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>It will also be important to distinguish between smaller and larger organisations whilst creating obligations. Unless this distinction is made at the implementation stage, start-up businesses and civil society organisations may find requirements such as earmarking a budget for cyber security implementation or appointing a Chief Information Security Officer onerous. Additionally, the policy will need to translate into a regulatory solution that provides under-resourced entities with ready solutions to enable them to make their information systems secure, while encouraging larger entities with greater purchasing power to invest in procuring the best possible solutions. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><i><span>Race to the Top</span></i></span></div>
<div style="text-align: justify; "><span><span>Security on the Internet works only if it stays one step ahead the people trying to break in. An effective cyber-security policy must keep up with the rapid evolution of technology, and must never become obsolete. The standard-setting and review bodies will therefore need to be very nimble.</span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>The policy contemplates working with industry and supporting academic research and development to achieve this. However the actual manner in which resources are distributed and progress is monitored may make the crucial difference between a waste of public funds and acquisition of capacity to achieve a reasonable degree of cyber security.</span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>Additionally the flow of public funds under this policy, particularly to purchase technology, should be examined very carefully to see whether it is justified. For example, if the government chooses to fund (even by way of subsidy) a private company’s cyber-security research and development rather than an equivalent public university’s endeavour, this decision should be scrutinized to see whether it was necessary. Similarly, if extensive public funds are spent training young people as a capacity-building exercise, we should watch to see how many of these people stay in India and how many leave such that other countries end up benefiting from the Indian government’s investment in them!</span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><i><span>Investigation of Security Threats</span></i></span></div>
<div style="text-align: justify; "><span><span>Although much of the policy focuses on defensive measures that can be taken against security breaches, it is intended not only to cover investigation subsequent to an attack but also to pinpoint ‘potential cyber threats’ so that proactive measures may be taken. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>The policy has outlined the need for a ‘Cyber Crisis Management Plan’ to handle incidents that impact ‘critical national processes or endanger public safety and security of the nation’. This portion of the policy will need to be watched closely to ensure that the language used is very narrow and allows absolutely no scope for misinterpretation or misuse that would affect citizens’ rights in any manner. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>This caution will be necessary both in view of the manner in which restraints on freedom of speech permitted in the interests of public safety have been flagrantly abused, and because of the </span><span>kind of paternalistic </span></span><span><a href="https://www.eff.org/deeplinks/2009/04/cybersecurity-act" target="_blank"><span>state intrusion</span></a><span><span> that might be conceived to give effect to this.</span></span></span></div>
<div style="text-align: justify; "><span><span><span><br /></span></span></span></div>
<div style="text-align: justify; "><span><span>Additionally, since the policy also mentions information sharing with internal and international security, defence, law enforcement and other such agencies, it will also be important to find out the exact nature of information to be shared.</span></span> Of course, how the policy will be put into place will only become clear as the terms governing its various parts emerge. But one hopes the necessary internal direct action to ensure the government agencies’ information networks are secure is already well underway.</div>
<span><span> </span></span>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>It is also to be hoped that the government chooses to take implementation of privacy rights at least as seriously as cyber-security. If some parts of cyber security involve ensuring that user data is protected, the decision about what data needs protection will be important to this exercise. </span></span></div>
<div style="text-align: justify; "><span><span><br /></span></span></div>
<div style="text-align: justify; "><span><span>Additionally, although the policy discusses various enabling and standard-setting measures, it does not discuss the punitive consequences of failure to take reasonable steps to safeguard individuals’ personal data online. These consequences will also presumably form a part of the privacy policy, and should be put in place as early as possible.</span></span></div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hoot-july-13-2013-chinmayi-arun-parsing-the-cyber-security-policy'>https://cis-india.org/internet-governance/blog/the-hoot-july-13-2013-chinmayi-arun-parsing-the-cyber-security-policy</a>
</p>
No publisherchinmayiCyber SecurityInternet GovernancePrivacy2013-07-22T06:37:56ZBlog EntryWay to watch
https://cis-india.org/internet-governance/blog/indian-express-june-26-2013-chinmayi-arun-way-to-watch
<b>The domestic surveillance regime in India lacks adequate safeguards.</b>
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<p style="text-align: justify; ">Chinmayi Arun's column was <a class="external-link" href="http://www.indianexpress.com/news/way-to-watch/1133737/0">published in the Indian Express</a> on June 26, 2013.</p>
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<p style="text-align: justify; ">A petition has just been filed in the Indian Supreme Court, seeking safeguards for our right to privacy against US surveillance, in view of the PRISM controversy. However, we should also look closer home, at the Indian government's Central Monitoring System (CMS) and other related programmes. The CMS facilitates direct government interception of phone calls and data, doing away with the need to justify interception requests to a third party private operator. The Indian government, like the US government, has offered the national security argument to defend its increasing intrusion into citizens' privacy. While this argument serves the limited purpose of explaining why surveillance cannot be eliminated altogether, it does not explain the absence of any reasonably effective safeguards.</p>
<p style="text-align: justify; ">Instead of protecting our privacy rights from the domestic and international intrusions made possible by technological development, our government is working on leveraging technology to violate privacy with greater efficiency. The CMS infrastructure facilitates large-scale state surveillance of private communication, with very little accountability. The dangers of this have been illustrated throughout history. Although we do have a constitutional right to privacy in India, the procedural safeguards created by our lawmakers thus far offer us very little effective protection of this right.</p>
<p style="text-align: justify; ">We owe the few safeguards that we have to the intervention of the Supreme Court of India, in PUCL vs Union of India and Another. In the context of phone tapping under the Telegraph Act, the court made it clear that the right to privacy is protected under the right to life and personal liberty under Article 21 of the Constitution of India, and that telephone tapping would also intrude on the right to freedom of speech and expression under Article 19. The court therefore ruled that there must be appropriate procedural safeguards to ensure that the interception of messages and conversation is fair, just and reasonable. Since lawmakers had failed to create appropriate safeguards, the Supreme Court suggested detailed safeguards in the interim. We must bear in mind that these were suggested in the absence of any existing safeguards, and that they were framed in 1996, after which both communication technology and good governance principles have evolved considerably.</p>
<p style="text-align: justify; ">The safeguards suggested by the Supreme Court focus on internal executive oversight and proper record-keeping as the means to achieving some accountability. For example, interception orders are to be issued by the home secretary, and to later be reviewed by a committee consisting of the cabinet secretary, the law secretary and the secretary of telecommunications (at the Central or state level, as the case may be). Records are to be kept of details such as the communications intercepted and all the persons to whom the material has been disclosed. Both the Telegraph Act and the more recent Information Technology Act have largely adopted this framework to safeguard privacy. It is, however, far from adequate in contemporary times. It disempowers citizens by relying heavily on the executive to safeguard individuals' constitutional rights. Additionally, it burdens senior civil servants with the responsibility of evaluating thousands of interception requests without considering whether they will be left with sufficient time to properly consider each interception order.</p>
<p style="text-align: justify; ">The extreme inadequacy of this framework becomes apparent when it is measured against the safeguards recommended in the recent report on the surveillance of communication by Frank La Rue, the United Nations special rapporteur on the promotion and protection of the right to freedom of speech and expression. These safeguards include the following: individuals should have the legal right to be notified that they have been subjected to surveillance or that their data has been accessed by the state; states should be transparent about the use and scope of communication surveillance powers, and should release figures about the aggregate surveillance requests, including a break-up by service provider, investigation and purpose; the collection of communications data by the state, must be monitored by an independent authority.</p>
<p style="text-align: justify; ">The safeguards recommended by the special rapporteur would not undermine any legitimate surveillance by the state in the interests of national security. They would, however, offer far better means to ensure that the right to privacy is not unreasonably violated. The emphasis placed by the special rapporteur on transparency, accountability and independent oversight is important, because our state has failed to recognise that in a democracy, citizens must be empowered as far as possible to demand and enforce their rights. Their rights cannot rest completely in the hands of civil servants, however senior. There is no excuse for refusing to put these safeguards in place, and making our domestic surveillance regime transparent and accountable, in compliance with our constitutional and international obligations.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/indian-express-june-26-2013-chinmayi-arun-way-to-watch'>https://cis-india.org/internet-governance/blog/indian-express-june-26-2013-chinmayi-arun-way-to-watch</a>
</p>
No publisherchinmayiInternet GovernancePrivacy2013-07-01T10:17:27ZBlog EntryFreedom of Expression Gagged
https://cis-india.org/internet-governance/blog/the-hindubusinessline-feb-15-2013-chinmayi-arun-freedom-of-expression-gagged
<b>The use of law to bully people into silence, called ‘heckler’s veto’, is not unique to India, writes Chinmayi Arun in this op-ed published in Business Line on February 15, 2013.</b>
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<p style="text-align: center; "><a class="external-link" href="http://www.thehindubusinessline.com/opinion/freedom-of-expression-gagged/article4419285.ece?homepage=true">Click</a> to read the original published in the Business Line.</p>
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<p style="text-align: justify; ">Freedom of expression in India is under threat. This year we have the Tamil Nadu government’s ban on Vishwaroopam, the Ashis Nandy FIR, the smothering of Kashmir’s first all girls rock band’s music, and the removal of semi-nude paintings of Hindu deities from an art gallery upon the police’s ‘suggestion’. Another Rushdie-banning controversy is upon us, and yet another Facebook user’s arrest has made the news.</p>
<p style="text-align: justify; ">Clearly, our right to freedom of expression is under an ongoing siege. The onslaught comes in varied forms: bullying by members of society, informal government action with the overhanging threat of the law, and direct use of the law (and of a variety of legislations within it). Each form is encouraged, exacerbated even, by our problematic interpretation of freedom of expression principles. Our law allows a group of intolerant people to silence a speaker by creating a threat to public order or by threatening the speaker directly, and our state is proving utterly ineffectual in protecting speech from intolerance.</p>
<h3 style="text-align: justify; ">Instruments Deployed</h3>
<p style="text-align: justify; ">India’s first Kashmiri all-girls band is tragic proof of horizontal attacks on speech – their music was silenced by the grandmufti’s declaring it ‘un-Islamic’, and the attendant social pressure that tends to follow. They were not protected from this horizontal attack. The Palghar incident also had echoes of horizontal pressure, which was used to directly bully Shaheen Dhada, via friends advising her to apologise and strangers slapping her, before the instrument of the law was used to bully her further.</p>
<p style="text-align: justify; ">The instrument of the law can be used in invisible, informal ways, as Bangalore’s Chitrakala Parishath incident illustrates. Here, the pressure of police ‘suggestion’, carrying the implied threat of the force of the law, was used to ensure that semi-nude paintings of Hindu deities were removed from an exhibition. It appears that this police ‘suggestion’ was motivated by the fear that those paintings could trigger law and order problems.</p>
<p style="text-align: justify; "><i>Vishwaroopam</i> was banned using the law, specifically section 144 of the Code of Criminal Procedure, which empowers the government to issue orders “in urgent cases of nuisance or apprehended danger”. However, orders issued under section 144 would still need to observe the boundaries drawn for it in Article 19(2) of the Constitution.</p>
<h3 style="text-align: justify; ">Freedom and Public Order</h3>
<p style="text-align: justify; ">Some may argue that controversial or offensive speech can legitimately be restricted since “public order” is one of the grounds for which our Constitution permits the restriction of the freedom of expression. However the original text of the Constitution did not include “public order” among its permissible grounds for restriction. This was inserted in the First Amendment of the Constitution, but was fortunately accompanied by the word ‘reasonable’ before restriction, thus ensuring that the freedom of expression can only be reasonably restricted under the exceptional circumstances listed in the Constitution.</p>
<p style="text-align: justify; ">This insertion of ‘public order’ came after the Supreme Court’s invalidation of government pre-censorship of speech on public order grounds in <i>Romesh Thapar v. State of Madras</i> (1950), declaring that the Constitution required that “nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression”. Therefore, Parliament amended the Constitution to expand the grounds on which the state could restrict speech, and included ‘public order’ among the expanded grounds. The trouble with this is that the intolerant are now able to create a public order problem to silence speakers.</p>
<p style="text-align: justify; ">The Supreme Court of India, in <i>Babulal Parate vs State Of Maharashtra</i> (1961) found that public order must be “maintained in advance in order to ensure it”, and ruled that restriction of Article 19 freedoms of expression and assembly in the interests of public order is permissible. However, all such restrictions must continue to satisfy the reasonability test laid down in the Constitution, providing our judiciary with the opportunity to ensure that intolerance does not continue to oppress speech.</p>
<h3 style="text-align: justify; ">The Heckler's Veto</h3>
<p style="text-align: justify; ">The use of law to bully people into silence is not unique to India. Harry Kalven termed this ‘the hecklers’ veto’: if police action silences speakers for fear that the offended listeners might create a law and order problem, this effectively allows the listeners to veto what the speaker can say. There was a time when the heckler’s veto held sway in the United States and the United Kingdom. However, both countries’ legal principles have evolved to stop pandering to the intolerant, and it is time that India does the same.</p>
<p style="text-align: justify; ">Justice Hugo Black of the US Supreme Court, in his <i>Feiner v. New York </i>(1951) dissent, argued that the police must make all reasonable efforts to protect the speaker’s constitutional right to speak before interfering with this right. This dissenting opinion was later hailed as visionary. The US Supreme Court subsequently gradually recognised the evils of the heckler’s veto, which privileges and encourages intolerance. The United Kingdom also progressively narrowed its reading of the Public Order Act to ensure that speech is not restricted unless immediate violence is feared, and is now decriminalising insults which are not directed at a clearly identifiable victim.</p>
<p style="text-align: justify; ">The Indian Supreme Court’s judgment in the <i>Rangarajan v. P. Jagjivan Ram</i> (1989) echoes Justice Black’s denouncement of the heckler’s veto. It declares, “freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to …surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”. However other judgments have shied away from confronting the fact that speech-related public order problems created by intolerance, not by speech.</p>
<p style="text-align: justify; ">Our legal system needs to take a firm, consistent stand against the heckler’s veto. We need to stop mirroring the evils of outdated law in fresh legislations like the Information Technology Act, and work instead to remove law and practices that institutionalise intolerance.</p>
<p style="text-align: justify; ">(The author teaches at National Law University, Delhi and is Fellow, Centre for Internet and Society.)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hindubusinessline-feb-15-2013-chinmayi-arun-freedom-of-expression-gagged'>https://cis-india.org/internet-governance/blog/the-hindubusinessline-feb-15-2013-chinmayi-arun-freedom-of-expression-gagged</a>
</p>
No publisherchinmayiFreedom of Speech and ExpressionInternet Governance2013-02-18T08:55:36ZBlog EntryFive Frequently Asked Questions about the Amended ITRs
https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs
<b>This piece discusses the five major questions that have been the subject of debate after the World Conference on International Telecommunications 2012 (WCIT). The politics surrounding the WCIT are not discussed here but it must be kept in mind that they have played a significant role in the outcome of the conference and in some of the debates about it.</b>
<p style="text-align: justify; ">Each question is discussed with reference to the text of the treaty, to the minutes of the plenary sessions (which are available via the <a href="http://www.itu.int/en/pages/default.aspx">ITU website</a>), a little international law and a few references to other people’s comments on the treaty.</p>
<p><b>1. Do the ITRs apply to content on the internet?</b></p>
<p style="text-align: justify; ">Article 1.1 (a) has been amended to add the sentence “These Regulations do not address the content-related aspects of telecommunications”. Although some discussions about the <a href="http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf">International Telecommunication Regulations (ITRs)</a> and content have ignored this altogether, others seem concerned about its interpretation.</p>
<p style="text-align: justify; ">The ITU Secretary General has issued <a href="http://www.itu.int/en/wcit-12/Pages/statement-toure.aspx">a statement</a> in which he has clarified that “The new ITR treaty does NOT cover content issues and explicitly states in the first article that content-related issues are not covered by the treaty”.</p>
<p style="text-align: justify; ">Commentators like <a href="http://tryingtoreason.wordpress.com/2012/12/15/yes-the-new-itrs-do-cover-content-and-the-internet/">Chuan-Zheng Lee</a> however, continue to view the treaty with suspicion, on the basis that it is necessary to examine content in order to tell whether it is spam (Lee and <a href="http://globalvoicesonline.org/2013/01/02/wcit-and-its-relationship-to-the-internet-what-lies-ahead/">Chaparro</a> differ on this question). However, others like <a href="http://www.nytimes.com/2012/12/15/technology/in-a-huff-a-telling-us-walkout.html?pagewanted=all&_r=0">Eric Pfanner</a> have pointed to this paragraph in their skepticism about the US refusal to sign.</p>
<p style="text-align: justify; "><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">The Chairman proposed the addition to Article 1.1(a) at the tenth plenary session. He did this to address concerns that the ITRs text could be interpreted to apply to content on the Internet. The original formulation that he proposed was ‘These regulations do not address and cannot be interpreted as addressing content’. This text was suggested in the middle of an extended discussion on Article 5A.</p>
<p style="text-align: justify; ">Many countries were skeptical of this insertion. Sudan argued that content could not be avoided in telecommunication networks “because it will always be in transit.” The United Arab Emirates seemed concerned about international interference in states’ existing regulation of content, and said “maybe we could actually say this in the minutes of the meeting that this regulation should not be interpreted as on alteration to Member States content regulation”.</p>
<p style="text-align: justify; ">Concerns about what the term ‘content’ means and whether it would apply broadly were raised by more than one country, including Saudi Arabia. For instance, it was argued that the text proposed by the Chairman might interfere with parts of the treaty that require operators to send tariff information correspondence. More than one country that felt that the insertion of this text would impact several parts of the treaty, and that it would be difficult to determine what amounted to dealing with content. The primary issue appeared to be that the term ‘content’ was not defined, and it therefore remained unclear what was being excluded. In response to these concerns, the Chairman withdrew his proposal for the amendment excluding content.</p>
<p style="text-align: justify; ">However, several states then spoke up in favour of the Chairman’s proposal, suggesting that the proposed amendment to Article 1.1 influenced their acceptance of Article 5A (on security and robustness of networks – discussed in detail below). Brazil suggested that an answer to the definitional concerns may be found in the work by Study Group 17, which had a definition available.</p>
<p style="text-align: justify; ">Following this, the next day, at the twelfth plenary, the Chairman brought back the Article 1.1 amendment excluding content. He stated explicitly that this amendment might be the way to get Articles 5A and 5B approved. The text he read out was insertion of the words <i>“</i>to the exclusion of their content”, after ‘’services’ at the end of 1.1A. Interestingly however, the term ‘content’ was never defined.</p>
<p style="text-align: justify; ">At the next plenary session, Iran raised the objection that this phrase was overbroad, and proposed the following formulation instead: “These Regulations do not address the content-related aspects of telecommunications”. This formulation found its way into the amended ITRs as the treaty stands today.</p>
<p><b>2. Does Article 5A on network security legitimize surveillance of Internet content?</b></p>
<p style="text-align: justify; ">Article 5A deals with ‘security and robustness of networks’ and requires member states to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks...”. This may have given rise to concerns about interpretations that may extend the security of networks to malware or viruses, and therefore to content on the Internet. However, Article 5A has to be read with Article 1.1(a), and therefore must be interpreted such that it does not ‘address the content-related aspects of telecommunications’.</p>
<p style="text-align: justify; ">Some commentators continue to see Article 5A as problematic. Avri Doria <a href="http://avri.doria.org/post/38641776703/wcit">has argued</a> that the use of the word ‘security’ in addition to ‘robustness’ of telecommunication infrastructure suggests that it means Internet security. However Emma Llansó of the Centre for Democracy and Technology <a href="https://www.cdt.org/blogs/emma-llanso/2012making-sense-wcit-it%E2%80%99s-complicated">has noted</a> that the language used in this paragraph is “ far too vague to be interpreted as a requirement or even a recommendation that countries surveil users on their networks in order to maintain security”. Llansó has suggested that civil society advocates make it clear to countries which attempt to use this article to justify surveillance, that it does not lend itself to such practices.</p>
<p style="text-align: justify; "><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Article 5A was one of the most controversial parts of the ITRs and was the subject of much debate.</p>
<p style="text-align: justify; ">On December 11<sup>th</sup>, in the Chairman’s draft that was being discussed, Article 5A was titled ‘security of networks’, and required members to endeavour to ensure the “security and robustness of international telecommunication networks”. The Chairman announced that this was the language that came out of Committee 5’s deliberations, and that ‘robustness’ was inserted at the suggestion of CEPT.</p>
<p style="text-align: justify; ">Several countries like Poland, Australia, Germany and the United States of America were keen on explicitly stating that Article 5A was confined to the physical or technical infrastructure, and either wanted a clarification that to this effect or use of the term ‘robustness’ instead of security. Many other countries, such as Russia and China, were strongly opposed to this suggestion and insisted that the term security must remain in the document (India was one of the countries that preferred to have the document use the term ‘security’).</p>
<p style="text-align: justify; ">It was in the course of this disagreement, during the tenth plenary session, that the Chairman suggested his global solution for Article 1.1 – a clarification that this would not apply to content. This solution was contested by several countries, withdrawn and then reinstated (in the eleventh plenary) after many countries explained that their assent to Article 5A was dependant on the existence of the Article 1 clarification about content (see above for details).</p>
<p style="text-align: justify; ">There was also some debate about whether Article 5A should use the term ‘robustness’ or the term ‘security’ (eg. The United States clarified that its preference was for the use of ‘resilience and robustness’ rather than security). The Secretary General referred to this disagreement, and said that he was therefore using both terms in the draft. The title of Article 5A was changed, in the eleventh plenary, to use both terms, instead of only referring to security.</p>
<p><b>3. Does Article 5B apply to spam content on the Internet? </b></p>
<p style="text-align: justify; ">The text of the amended treaty talks of ‘unsolicited bulk electronic communications’ and does not use the term ‘spam’[Article 5B says that ‘Members should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services’].If this phrase is read in isolation, it may certainly be interpreted as being applicable to spam. Commentators like <a href="http://avri.doria.org/tagged/WCIT/page/2">Avri Doria</a> have pointed to sources like<a href="http://www.itu.int/osg/csd/intgov/resoultions_2010/PP-10/RESOLUTION_130.pdf"> Resolution 130 of the Plenipotentiary Conference of the International Telecommunication Union</a> (Guadalajara, 2010) to demonstrate that ‘unsolicited bulk electronic communications’ ordinarily means spam. However, others like<a href="http://globalvoicesonline.org/2013/01/02/wcit-and-its-relationship-to-the-internet-what-lies-ahead/"> Enrique A. Chaparro</a> argue that it cannot possibly extend to content on the Internet given the language used in Article 1.1(a). Chapparo has explained, that given the exclusion of content, Article 5B it authorizes anti-spam mechanisms that do not work on content.</p>
<p style="text-align: justify; ">Article 5B, which discusses ‘unsolicited bulk electronic communications’, must be read with Article 1, which is the section on purpose and scope of the ITRS. Article 1.1 (a) specifies that the ITRs “do not address the content-related aspects of telecommunications”. Therefore it may be argued that ‘unsolicited bulk electronic communications’ cannot be read as being applicable to content on the Internet.</p>
<p style="text-align: justify; ">However, many continue to be concerned about Article 5B’s applicability to spam on the Internet. Although some of them that their fear is that some states may interpret Article 5B as applying to content, despite the contents of Article 1.1(a), many have failed to engage with the issue in the context of Article 1.1(a).</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Article 5B is inextricably linked with the amendment to Article 1.1. Mexico asked specifically about what the proposed amendment to Article 1.1 would mean for Article 5B: “I’m referring to the item which we’ll deal with later, namely unsolicited bulk electronic communications. Could that be referred to as content, perhaps?”. The Chairman responded saying, “This is exactly will solve the second Article 5B, that we are not dealing with content here. We are dealing with measures to prevent propagation of unsolicited bulk electronic messages”.<sup></sup></p>
<p style="text-align: justify; ">The amendment to Article 1.1 was withdrawn soon after it was introduced. Before it was reintroduced, Sweden said (at the eleventh plenary) that it could not see how Article 5B could apply without looking into the content of messages. The United States agreed with this and went on state that the issue of spam was being addressed at the WTSA level, as well as by other organisations. It argued that the spam issue was better addressed at the technical level than by introducing it in treaty text.</p>
<p style="text-align: justify; ">The amendment excluding content was reintroduced during the twelfth plenary. The Chairman explicitly stated that it might be the way to get Articles 5A and 5B approved.</p>
<p style="text-align: justify; ">The word ‘spam’ was dropped from the ITRs in the eight plenary, and “unsolicited bulk electronic communications” was used instead. However, in the eleventh plenary, as they listed their reasons for not signing the newly-amended ITRs, Canada and the United States of America referred to ‘spam’ which suggests that they may have viewed the change as purely semantic.</p>
<p><b>4. Does the resolution on Internet Governance indicate that the ITU plans to take over the Internet?</b></p>
<p style="text-align: justify; ">Much controversy has arisen over the plenary resolution ‘to foster an enabling environment for the greater growth of the Internet’. This controversy has arisen partly thanks to the manner in which it was decided to include the resolution, and partly over the text of the resolution. The discussion here focuses on the text of the resolution and then describes the proceedings that have been (correctly) criticized.</p>
<p style="text-align: justify; ">The history of this resolution, as <a href="http://www.circleid.com/posts/20121217_wcit_and_internet_governance_harmless_resolution_or_trojan_horse/">Wolfgang Kleinwächter</a> has explained, is that it was part of a compromise to appease the countries which were taking positions on the ITU’s role in Internet governance, that were similar to the <a href="http://files.wcitleaks.org/public/Merged%20UAE%20081212.pdf">controversial Russian proposal</a>. The controversial suggestions about Internet governance were excluded from the actual treaty and included instead in a non-binding resolution.</p>
<p style="text-align: justify; ">The text of the resolution instructs the Secretary General to “to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multi-stakeholder model of the Internet as expressed in § 35 of the Tunis Agenda”. This paragraph is particularly controversial since of paragraph 35 of the <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a> says “Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.” Kleinwächter has pointed out that this selection leaves out later additions that have taken place with progression towards a multi-stakeholder model.</p>
<p style="text-align: justify; ">The resolution also resolves to invite member states to “to elaborate on their respective positions on international Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunication/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups”.</p>
<p style="text-align: justify; ">A little after its introduction, people began expressing concerns such as the <a href="https://www.accessnow.org/blog/2012/12/12/wcit-watch-just-taking-the-temperature-a-late-night-resolution-on-the-inter">Secretary General may treat the resolution as binding</a>, While the language may raise cause for concern, it is important to note that resolutions of this nature are not binding and countries are free to opt out of them. Opinions vary about the intentions that have driven the inclusion of this resolution, and what it may mean for the future. However commentators like Milton Mueller have scoffed at these concerns, pointing out that the resolution is harmless and may have been a <a href="http://www.internetgovernance.org/2012/12/13/what-really-happened-in-dubai/">clever political maneuver</a> to resolve the basic conflict haunting the WCIT, and that <a href="http://www.internetgovernance.org/2012/12/18/itu-phobia-why-wcit-was-derailed/">mere discussion of the Internet in the ITU harms no one</a>.</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Egypt and Bulgaria suggested that the resolution refer to paragraph 55 of the Tunis agenda instead of paragraph 35, by inserted the following text “”Recognizing that the existing arrangements for Internet Governance have worked effectively to make the Internet the highly robust, dynamic and geographically diverse medium it is today, with the private sector taking the lead in day-to-day operations and with innovation and value creation at the edges.” The US was also quite insistent on this language (although it did also argue that this was the wrong forum to discuss these issues).</p>
<p style="text-align: justify; ">The Chairman was willing to include paragraph 55 in addition to paragraph 35 but Saudi Arabia objected to this inclusion. Finland suggested that the resolution should be removed since it was not supported by all the countries present and was therefore against the spirit of consensus. The Secretary General defended the resolution, suggesting both that it was harmless and that since it was a key component of the compromise, eliminating it would threaten the compromise. South Africa and Nigeria supported this stand.</p>
<p style="text-align: justify; ">It was during this debate that the procedural controversy arose. Late into the night, the Chairman said there was a long list of countries that wished to speak and said “I just wanted to have the feel of the room on who will accept the draft resolution”. He proceeded to have countries indicate whether they would accept the draft resolution or not, and then announced that the majority of the countries in the room were in favour of retaining the resolution. The resolution was then retained. Upon Spain’s raising the question, the Chairman clarified that this was not a vote. The next day, other countries raised the same question and the Chairman, while agreeing that the resolution was adopted on the basis of the ‘taking of temperature’ insisted that it was not a vote so much as an effort to see what majority of the countries wanted.</p>
<p style="text-align: justify; "><b>5. Does the human rights language used in the preamble, especially the part about states’ access to the Internet, threaten the Internet in any way?</b></p>
<p style="text-align: justify; ">The preamble says “Member States affirm their commitment to implement these Regulations in a manner that respects and upholds their human rights obligations”, and “These Regulations recognize the right of access of Member States to international telecommunication services”. The text of the preamble can be used as an interpretation aid since it is recognized as providing context to, and detailing the object and purpose of, a treaty. However if the meaning resulting from this appears to be ambiguous, obscure, absurd or unreasonable, then supplementary means such as the preparatory work for the treaty and the circumstances for its conclusion may also be taken into account.</p>
<p style="text-align: justify; ">Therefore anyone who is concerned about the impact of the text inserted in the preamble must (a) identify text within the main treaty that could be interpreted in an undesirable manner using the text in the preamble; and (b) consider preparatory work for the treaty and see whether it supports this worrying interpretation. For example, if there were concerns about countries choosing to interpret the term ‘human rights’ as subordinating political rights to economic rights, it would be important to take note of the Secretary General’s emphasis on the <a href="http://www.un.org/en/documents/udhr/index.shtml">UDHR</a> being applicable to all member states.</p>
<p style="text-align: justify; ">Initially, only the first insertion about ‘human rights obligations’ was part of the draft treaty. The second insertion, recognizing states’ rights followed after the discussion about human rights language. Some states argued that it was inconsistent to place human rights obligations on states towards their citizens, but to leave out their cross-border obligations. It was immediately after this text was voted into the draft, that the United States, the United Kingdom and other countries refused to sign the ITRs. This particular insertion is phrased as a right of states rather than that of individuals or citizens, which does not align with the language of international human rights. While it may not be strictly accurate to say that human rights have traditionally been individual centric (since collective rights are also recognized in certain contexts), it is certainly very unusual to treat the rights of states or governments as human rights.</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">The United States of America and the Netherlands wanted to include language to state explicitly that states’ international human rights obligations are not altered in anyway. This was to clarify that the inclusion of human rights language was not setting the ITU up as a forum in which human rights obligations are debated. Malaysia objected to the use of human rights language in the preamble right at the outset, on the grounds that the ITRs are the wrong place for this, and that the right place is the ITU Constitution. It even pointed to the fact that jurisprudence is ever-evolving, to suggest that the meaning of human rights obligations might change over time. These were the two major perspectives offered towards the beginning of the discussion.</p>
<p style="text-align: justify; ">The Chairman underlined the fact that the Universal Declaration of Human Rights is already applicable to all UN countries. He argued that reflection of these principles in the ITRs would help build universal public faith in the conference.</p>
<p style="text-align: justify; ">The first traces of the states’ access rights can be seen in Cuba’s intervention at the ninth plenary – Cuba argued that limiting states’ access to public information networks amounted to infringement of human rights. At the fourteenth plenary, Nigeria proposed on behalf of the African group that the following text be added to the preamble “And recognize the right of access of all Member States to international telecommunication networks and services." Countries like China which had been ambivalent about the human rights language in the preamble, were happy with this move away from an individual-centric understanding of human rights, to one that sees states as representative of people.</p>
<p style="text-align: justify; ">The United States was express in its dissent, and said “human rights obligations go to the individual”. Sweden was also not happy with the proposal and argued that it moved away from well-established human rights language that affirmed existing commitments to drafting new human rights language.</p>
<p style="text-align: justify; ">It was an amended version of the African group proposal that finally found its way into the preamble. It was supported by many countries such as China, Nigeria and Sudan, who took the position that group rights are included within human rights, and that governments represent their citizens and therefore have rights on their behalf. This position was strenuously disputed by states like the USA, Switzerland, United Kingdom and Canada.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs'>https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs</a>
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No publisherchinmayiWCITInternet GovernanceFeaturedITUHomepageInformation Technology2013-01-30T05:36:26ZBlog EntryThe Trouble with Hurried Solutions
https://cis-india.org/internet-governance/blog/the-hindu-opinion-lead-december-15-2012-chinmayi-arun-the-trouble-with-hurried-solutions
<b>The World Conference on International Telecommunication showed that countries are not yet ready to arrive at a consensus on regulation and control of the Internet</b>
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<p style="text-align: center; ">Chinmayi Arun's Op-ed was <a class="external-link" href="http://www.thehindu.com/opinion/lead/the-trouble-with-hurried-solutions/article4200604.ece?homepage=true">published</a> in the Hindu on December 15, 2012.</p>
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<p style="text-align: justify; ">The World Conference on International Telecommunication (WCIT) that concluded on December 14 saw much heated debate. Some countries wanted to use the International Telecommunication Union (ITU) to gain intergovernmental control of the World Wide Web. Some saw it as an opportunity to democratise the Internet, by replacing U.S. and corporate domination of Internet policy, with a more intergovernmental process. Others insisted that the Internet must be left alone.</p>
<p style="text-align: justify; ">The result is that after many days’ deliberations, there was no consensus. The amended International Telecommunication Regulations (ITRs) document has not yet been signed by over 50 countries, of which some like the United States have refused to sign altogether, while others have said that they will need to consult with their national governments before signing.</p>
<p style="text-align: justify; ">This article discusses the broader issue under question, which is, whether ITU is the best forum to solve the cross-border problems that arise in relation to the Internet.</p>
<h3 style="text-align: justify; ">WCIT, ITU and ITRs</h3>
<p style="text-align: justify; ">The ITU has been creating international policy from the days in which the telegraph was prevalent. Although it is now a United Nations agency, its existence predates the U.N. As technology evolved, forcing the telegraph to give way to the telephone, the ITU created new standards for telephony. It even rechristened itself from ‘International Telegraph Union’ to ‘International Telecommunications Union’.<br /><br />The ITU performs an essential role in ensuring that multiple states with their varying technology, standards and legal systems, are able to interconnect and co-ordinate. Its harmonising rules and standards make co-ordination easier and cheaper than having each state come to an agreement with every other state. The ITRs within the ITU framework facilitate co-ordination by creating binding rules for member states.<br /><br />Some countries’ proposals for the amendment of the ITRs would have affected content on the Internet substantially. However, after prolonged negotiation, the final draft that was under consideration contained an explicit statement excluding such content from the ITRs’ purview. This draft also came with a resolution that made reference to states’ elaborating their Internet related public policy positions in ITU fora, which was a source of controversy.<br /><br />Some of the initial suggestions like Russia’s controversial proposal would have given the ITU greater sway over the Internet, permitting it to lay down global standards. These standards may have encouraged countries to inspect data transmitted across the Internet to check whether it is undesirable content raising serious privacy and freedom of speech concerns, especially in countries that do not protect these rights.</p>
<p style="text-align: justify; ">The global standards created by the ITU would have permeated to the companies that create the web-based applications that we use, and the resulting law and technological choices would have affected individual users.</p>
<h3 style="text-align: justify; ">Internet governance</h3>
<p style="text-align: justify; ">The ITU makes its decisions using a traditional model that only seeks consensus between governments, and this is far removed from the way in which the Internet has been governed thus far. Therefore, although expanding the ITU’s mandate to the Internet may seem natural to those who have followed its evolution mirroring the evolution of information technology, the ITU’s manner of functioning is viewed by many as being at odds with the more multi-stakeholder and ad hoc system used to build Internet policy.<br /><br />In the 1990s, John Perry Barlow proclaimed that cyberspace was outside national borders, and questioned the authority and legitimacy of a national government’s attempts to govern it. Over the years, it has become clear that national governments can exert jurisdiction in cyberspace: filtering content, launching surveillance of users, and creating law that impacts citizens’ behaviour online directly and indirectly.<br /><br />However, governments’ exertion of will on Internet users is tempered greatly by the other forces that have a strong influence on the Internet. User-behaviour and content often depend on the policies of major service providers like Google, Yahoo, Twitter and Facebook.<br /><br />Key standards and functions like the allocation of domain names and developing of Internet standards are managed by organisations like ICANN and IETF, which are not governmental organisations. Features like user anonymity are based on technological choices on the World Wide Web. Therefore, governments face significant obstacles and counterbalancing power when they attempt to impose their will on citizens online.<br /><br />The ITU can weigh this power balance in favour of governments. Many fear that more government power will lead to more censorship, surveillance and stifling of the innovation that is integral to the evolution of Internet. But others support ITU intervention, in the belief that an international inter-governmental regulatory body would be more accountable, and would prevent corporate abuse of power.</p>
<p style="text-align: justify; ">Several of the aforementioned corporations, as well as regulatory bodies under question, are headquartered in the United States. There are those who see this as excessive U.S. influence on the Internet, eroding the sovereignty of other states, which have relatively limited influence over what their citizens can transmit and access online. These people see the ITU as a forum that can democratise Internet Governance, giving states shared influence over the web. However, this shared influence is resisted by those who find that the U.S. influence offers them more leverage and protection for their freedom of speech, than increased influence of countries that threaten this internationally accepted human right.<br /><br />Powerful arguments in favour of increased ITU involvement include highlighting the dangers of abandoning the Internet to the free market. It is true that markets need some regulation to guard against malfunction and abuse of power by stronger players. However, the significant question is not whether these markets should be regulated, but how they should be regulated. Unfortunately, many of the arguments that supported expansion of the ITU’s mandate failed to establish why the ITU is the best solution to the problems plaguing the Internet, rather than being the most readily available reaction.<br /><br />Any regulatory intervention must have very clear objectives, and some estimate of its likely impact. The intervention must not be considered in isolation but in contrast with other ways to achieve the same goals. Although some of the serious transnational issues plaguing the Internet need international solutions, the ITU, at least in its current avatar, is not necessarily the best remedy. It also remains unclear exactly what effect ITU intervention would have on the Internet — whether it would really offer solutions as intended, or whether it would prove more detrimental than useful, condoning of human rights violations and slowing the blistering innovation that is characteristic of the Internet.</p>
<h3 style="text-align: justify; ">Lack of consensus</h3>
<p style="text-align: justify; ">Therefore, some of the initial concerns expressed by the countries that refused to sign the ITRs were legitimate. However, the final ITRs document addressed many of these concerns. The dissent emerged over the insertion of text in the preamble that recognised member states’ rights to access international telecommunication networks. These rights, being expressed only in the preamble, are not enforceable, even if they express intentions that are unacceptable to some.<br /><br />The debates at the WCIT made it clear that the world is not yet ready to come to a unified position on this subject. Perhaps the ITU’s continuation in its path towards increasing, and making effective, multi-stakeholder participation will be the unifying factor some day, if it evolves into a forum which everyone sees as sufficiently democratic, transparent and accountable for Internet policy.</p>
<p style="text-align: justify; "><i>(The writer is Assistant Professor of Law at National Law University, Delhi, and a Fellow of the Centre for Internet and Society, Bangalore. She attended the WCIT from December 3-14)</i></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hindu-opinion-lead-december-15-2012-chinmayi-arun-the-trouble-with-hurried-solutions'>https://cis-india.org/internet-governance/blog/the-hindu-opinion-lead-december-15-2012-chinmayi-arun-the-trouble-with-hurried-solutions</a>
</p>
No publisherchinmayiWCITITUInternet Governance2012-12-20T04:23:08ZBlog Entry