Centre for Internet and Society

The Online Video Environment in India: A Survey Report

pranesh — 2010-12-21T07:31:30Z

Report on online for the Open Video Alliance, Centre for Internet and Society, and iCommons by Siddharth Chadha, Ben Moskowitz and Pranesh Prakash.

For more details visit https://cis-india.org/openness/publications/content-access/online-video-india-survey-v1

The Online Video Environment in India - A Survey Report

pranesh — 2011-10-03T09:31:30Z

iCOMMONS, the OPEN VIDEO ALLIANCE, and the CENTRE FOR INTERNET AND SOCIETY have initiated a research project which seeks to survey the online video environment in India and the opportunities this new medium presents for creative expression and civic engagement. This report seeks to define key issues in the Indian context and begins to develop a short-term policy framework to address them.

The basic assumption of this paper is that the online video medium should support creative and technical innovation, competition, and public participation, and that open source technology can help develop these traits. These assumptions are not elaborated upon here. Instead, this report looks at questions of “openness” that are not strictly technological; that are specific to video in India; and that provide points of entry to a simple policy framework.

The paper is organized in the following parts:

The first chapter, THE NATIONAL CHARACTER OF INDIAN VIDEO, provides a brief historical timeline of events from the first screening of the Lumiere Brothers films in India in 1896, through the beginning of the twenty-first century. This chapter traces the traditional channels of dissemination of video content in India, and establishes the close and unique bond that the visual medium has formed with Indian society.
The second chapter, DIGITAL MEDIA AND NETWORK TRANSFORMATIONS, looks at recent media transformations like the rise of the Internet and peer-to-peer networking, the proliferation of telecommunications, and other developments which form the backbone of the emerging online video medium. Peer-to-peer and associative networking provides a new means of content circulation throughout the country.
The third chapter, MAPPING CONTENT ON THE INTERNET, traces the various types of visual content visible over these new networks, exploring case studies of videos circulating on the Internet which have raised new questions of censorship, freedom of speech, and the openness of the medium.
The fourth chapter, THE ‘OPEN VIDEO’ QUESTION, creates a judgment-based framework to assess the openness of the medium. This chapter lays out a series of questions around the broad spectrum of openness, viewed from various perspectives of access, participation, open source technology, and availability, with the intent of mapping the circumstances under which online video operates in India. Moreover, the chapter focuses on the structural limitations to video which can be addressed by policy, or even an absence of policy.

Whereas the report consciously makes an effort to explore not only transitory web videos but also films, the terms ‘video’ and ‘film’, in many parts are treated interchangeably. Although films and videos represent different traditional mediums of recording, the interest of this report in examining the ‘online video’ content in India, consists of both types of material—accessed perhaps with little distinction.

The scope of this paper is extremely broad and touches upon a wide variety of issues in India, where each area has a peculiar specificity of its situation—urban or rural, geographic, and so on. Links and references have been provided in the footnotes for background readings of these issues.

Click here to download the report. [PDF, 1.22 MB]

For more details visit https://cis-india.org/openness/online-video-environment-in-india

The National Public Meeting on Software Patents

pranesh — 2011-08-23T03:02:56Z

On Saturday, October 4, 2008, the Centre for Internet and Society, with the support of eighteen other organization, held a meeting on the National Public Meeting on Software Patents in the United Theological College campus. The aim of the event was to explore various issues surrounding software patents, especially from the perspective of the draft Patent Manual.

After introductions by Sunil Abraham of CIS, the discussions were kicked off by Sudhir Krishnaswamy (an Assistant Professor at National Law School), who spoke about typology of laws; principle-based arguments for excluding software from patenting; policy-based arguments for the same; and lastly, strategies for combating the patent manual. About the rationale behind excepting software ("computer programmes per se") from patentability, he theorised that given the location of "computer programmes per se" in section 3(k) of the Act, surrounded as it is by "mathematical or business method" and "algorithms", the exception seems to be a principle-based one and not a policy-based one. He also talked about what he saw as the practical realities of the Patent Office, and questioned the role the Draft Manual would actually play in the decisions of Patent Examiners.

He listed out economic arguments as:

Inapplicability of the incentive arguments. The software industry does not need patents since copyright covers software, and even if incentives are required, that is incentive enough;
Return on investment. Short shelf-life, and hence 17-year patent terms are irrelevant when the shelf-life is so small;
New intermediaries are created, who are neither producers nor consumers of software. These intermediaries who help in price-discovery. They discover value in patents which were previously thought neglected by the process known as patent trolling.

Apart from these, he also briefly talked of the legal arguments around software patents, and argued that the question is not only about copyright vs. patent, but also about property vs. contract. He asked questions such as: "What role does copyright play in the software industry, or is contract more important?", and pointed out that while this might have been addressed around a decade ago, those questions need to be revisited given the current scenario. Further, he proposed that the strategies should not revolve solely around the Patent Act and Draft Manual, but around pre- and post-grant oppositions as well.

Prabir Purkayastha of the Delhi Science Forum and Knowledge Commons spoke next, giving a quick run-through of the history, both legal and philosophical, surrounding software patents in India and in the U.S. and Europe (pointing out that most of the wordings of Draft Manual on this point are borrowed from a similar document in the U.K.). He asked the question of why people are opposing software patents. Is it because it is damaging to 'public interest', because it bad for Indian domestic software industry, or because it is an abstract idea which is sought to be patented in the guise of something else? He concluded that ultimately it is not the manual that groups are opposing, but the notion of software patents themselves. Thus, he focussed on how the phrase "per se" used in the Act ought to be interpreted by the Patent Office so as to give credence to the Indian Parliament's rejection (in 2005) of the 2004 patent ordinance (in which section 3(k) read: "a computer programme per se other than its technical application to industry or a combination with hardware"). Lastly, he talked about the various strategies to be employed in the fight against software patents, including pre- and post-grant oppositions.

Dr. Nagarjuna G. of the Free Software Foundation of India focussed on what he termed "the absurdity of software patents". He emphasised how software requires an interpreter or hardware, and hence talk of "software per se" often becomes meaningless. Further, he underlined how embedding software in hardware was not innovation in itself, and stressed ont he changing notions of software and hardware as we evolve technologically. His equation of software with abstract ideas gives us a glimpse into the foundation of his objection to software patents.

First up in the second session (which was more focussed on the manual, and the law in India) was Prashant Iyengar of the Bangalore-based Alternative Law Forum. He first listed out the different kinds of objections to software patents, including the point that there are only limited ways of thinking about programming, as Donald Knuth's The Art of Computer Programming shows. Then he went on to go through the history of software patents in India, from the first software patent, granted in 1996, through the 2002 Amendment, the 2004 Ordinance, the 2005 Amendment, and the 2005 and 2008 Draft Manuals. He looked at the vocabulary surrounding software patents, including the words "per se" and "as such", and the cases and legislations from which the language used in the Draft Manual might have been borrowed. He also started a fruitful debate on the different ways to attack the implicit inclusion of that which is not "computer programmes per se" within the scope of patentable subject matter.

After Prashant was Venkatesh Hariharan of Red Hat. He spoke on the practical benefits and harms of software patents, and spoke at length about the difference between legal protection of software in the form of patents and via copyright. He pointed to data showing that lawyers are the ones who benefit most from software patents, and that software developers were the ones who suffered most. Pointing to such practical issues such as how does one go about coding a simple e-commerce transaction when more than 4000 patents have already been granted in that area, he brought down the level of discussion from abstract notions of laws and legalities to practical experiences of software programmers.

Next, Pranesh Prakash of the Centre for Internet and Society made a presentation on a small sample of software patents that have been applied for in India, and pointed out the infirmities in both the patents that have been applied for, as well as the problems in uncovering these patents because of various errors on the Indian Patent Office website. Going through a few of the patent applications, he showed how a great number applications have very badly worded abstracts, filled with weasel words, whose sole purpose is obfuscating the fact that what is being applied for is a software patent. This, he pointed out, made it difficult to both determine the scope of the applications (subject matter) as well as the innovations contained in the invention (novelty and non-obviousness), and thus difficult to examine from the perspective of pre-grant oppositions.

After these presentations, the meeting continued with the Open House session which had many people making presentations, including Abhas Abhinav of DeepRoot Linux, Arun M. of FSF India, and Joseph C. Matthew, who is the IT Adviser to the Chief Minister, Kerala. With the wrapping up of this session, the proceedings for the day came to a close.

Coverage in the press

Audio Recordings and Slides

The Principles of Patent Law and Introduction to Software Patents

Sudhir Krishnaswamy (National Law School) | mp3 | ogg
Prabir Purkayastha(Delhi Sience Forum) (Knowledge Commons) |mp3 | ogg
Nagarjuna G.(Free Software Foundation of India) | mp3 | ogg

Software Patents in India: The Indian Patent Act and the Draft Patent Manual

Prashant Iyengar(Alternative Law Forum) | mp3 | ogg
Venkatesh Hariharan(Red Hat) | mp3 | ogg

Software Patent Applications in India

Pranesh Prakash (Centre for Internet and Society) | mp3 | ogg | ppt

Open House

Abhas Abhinav (DeepRoot Linux) | mp3 | ogg

Arun M.(Free Software Foundation of India)| mp3 | ogg
Joseph Mathew (IT Adviser to the Chief Minister, Kerala)| mp3 | ogg

For more details visit https://cis-india.org/openness/blog-old/the-national-public-meeting-on-software-patents

The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill

pranesh — 2011-10-03T05:37:27Z

Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.

Special 301 Report: Unbalanced Hypocrisy

The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:

[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.

More the report changes, the more it stays the same. Despite having wider consultations than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.

India and the 2010 Special 301 Report

The Special 301 report for 2010 contains the following assessment of India:

India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year.

This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.

On Copyrights

The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely how India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again proven to be wrong:
Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, states:

Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.

Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid and others, who argue that lax enforcement has enabled access to knowledge and promotion of innovation. In a panel on 'Access to Knowledge' at the Internet Governance Forum, Lea Shaver, Jeremy Malcolm and others who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).
The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.
The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.

On Patents

Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.

The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An American judgment even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.

Miscellanea

The harms of counterfeit medicine, as we have noted earlier, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.

Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.

Conclusion

Michael Geist, professor at University of Ottowa astutely notes:

Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain. In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.

His comments apply equally well for India as well.

IIPA's Recommendation for the Special 301 Report

Thankfully, this year IIPA's recommendations have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:

The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.

Breaking that into two bit:

Open Source

Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. HP and IBM have been huge supporters of open source software. Even Microsoft has an open source software division. [Intel][intel], SAP, Cisco, Dell, Sybase, Entrust, Intuit, Synopsys, Apple, Borland, Cadence, Autodesk, and Siemens are all members of BSA which support open source software / produce at least some open source software. And all BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to look at FOSS very seriously and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.

Domestic Software

As this insightful article by Nate Anderson in Ars Technica notes:

Open source is bad enough, but a "buy Indian" law? That would be an outrage and surely something the US government would not itself engage in as recently as last year. Err, right?

Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.

WCT, WPPT, Camcording, and Statutory Damages

The IIPA submission also wish that India would:

Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;
Adopt an optical disc law;
Enact Copyright Law amendments consistent with the WCT and WPPT;
Adopt an anti-camcording criminal provision.

Quick counters:

Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case called the damage award "monstrous and shocking" and said that veered into "the realm of gross injustice."
The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.
India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.
Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.

Further conclusions

Shamnad Basheer, an IP professor at NUJS, offer the following as a response:

"Dear USA,

India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest! More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.

Yours sincerely,

India."

Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.

For more details visit https://cis-india.org/a2k/blogs/2010-special-301

The 'Global Multistakholder Community' is Neither Global Nor Multistakeholder

pranesh — 2016-11-03T10:42:53Z

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

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

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

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

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

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

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

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

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

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

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

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

Text of DIT's Response to Second RTI on Website Blocking

pranesh — 2011-10-28T14:37:34Z

CIS had filed a request under the Right to Information Act with the government, asking a number of questions relating to blocking of content under the IT Act. We have reproduced below the response we got from the government.

Government of India
Ministry of Communications & Information Technology
Department of Information Technology
Electronics Niketan, 6 CGO Complex,
New Delhi-110003

No: 14(12)/2011-ESD
10.6.2011

Shri Pranesh Prakash,
Centre for Internet and Society,
194, 2C Cross, Domlur Stage II,
Bangalore - 560071

Subject: Request for information under RTI Act, 2005.

Sir,
Reference your request dated 13 May 2011, which was received in this office on 18.5.2011 on the above subject.

The information as received from the custodian of information is attached herewith (Annexure-I, II and III).

Yours faithfully,
(A.K.Kaushik)
Additional Director & CPIO
Cyber Laws & E-Security Division
Tel: 011-24364803

Annexure I

Reply to Shri Pranesh Prakash

How many orders have been issued for blocking of computer resources prior to the coming into force of the Information Technology (Amendment) Act, 2008 (i.e., before October 27, 2009) under the Information Technology Act, 2000, or any other law for the time being in force.

Reply - Five orders were issued for blocking access to web content.

Please provide a list of all the websites for which the DIT has issued blocking orders and the dates on which each website was blocked.

Reply - The following websites have been blocked pursuant to court orders

Sl	Website	Date of issuing direction by designated officer
1.	www.zone-h.org	08.03.2010
2.	http://donotdiall00.webs.com (IP 216.52.115.50)	08.08.2010
3.	www.bloggernews.net/124029	15.11.2010
4.	http://www.google.co.in/#hl=en&source=hp&biw=-1276&bih=843&=dr+babasaheb+ambedkar+wallpaper&aq=4&aqi=gl0&aql=&oq=dr+babas& gs_ rfai=&fp=e791fe993fa412ba	20.12.2010
5.	http://www.cinemahd.net/desktopenhancements/wallpaper/23945-wallpapers-beautiful-girl-wallpaper.html	20.12.2010
6.	http://www.chakpak.com/find/images/kamasutra-hindi-movie	20.12.2010
7.	http://www.submitlink.khatana.net/2010/09/jennifer-stano-is-engaged-to.html	20.12.2010
8.	http://www.result.khatana.net/2010/11/im-no-panty-girl-yana-gupta-wardrobe.html	20.12.2010
9.	http://www.facebook.com/pages/I-Hate-Ambedkar/172025102828076	25.02.2011
10.	www.indybay.org	17.03.2011
11.	www.arizona.indymedia.org	17.03.2011

Please provide a list of all the persons to whom such orders were issued.

Reply - The directions were issued to Department of Telecommunications.
Please provide a list of all the requests for blocking of information that have been received by the Designated Officer under the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 ("Rules").
Please provide a list of all persons/authorities from whom the Designated Officer under the Rules has received requests for blocking of information and the dates these requests were received.

Reply 4 & 5 - The details are given in Annexure-II.
Please provide the files on all the complaints and requests that have been rejected, including file noting.
Please provide the files on all the complaints and requests that have been accepted, including file noting.
Please provide the files on all the complaints and requests that are still being processed (e.g. more information has been sought on the request), including file notings.

Reply 6,7 & 8 - Files are available in section and can be viewed.
Please provide us copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules.
Please provide copies of all the recommendations of the Committee for Examination of requests under Rule 8(4) of the Rules.

Reply 9 & 10 - Copy of the minutes/recommendation of the meeting of the Committee is at Annexure III.
Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules to periodically review the blocked resources.
Please provide us copies of all the findings of the Review Committee.
If the Review Committee has not met, please provide us the reason for the meetings not happenings as per the requirement of Rule 14 of the Rules.

Reply 11, 12 & 13 - This meeting is coordinated by Department of Telecommunications and DIT is not in possession of details.
Does "intermediary" in Rule 13 include intermediaries not located in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Has any block ordered by the DIT ever been revoked by the DIT or any other governmental authority?

Reply - Such questions are not permitted under RTI Act as per DOPT OM No. 1 /7/2009 IR dated 1st June 2009.
On what basis does the DIT decide whether the appropriate intermediary is the person who has put up content, the web host, or the different Internet service providers in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Does Rule 16 of the Rules override the Right to Information Act?

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
If the answer to the previous question is yes, please provide any correspondence with any legal officer who provided the DIT advice that it could override the Right to Information Act through delegated legislation.

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.

Annexure II

Request received by Designated Officer

Website	Date of receipt of request	Request by
www.tamil.net.in	29.03.2010	Secretary Public (Law & Order) Deptt. Secretariat, Chennai 600 009
www.betfair.com	28.06.2010	Sr. Inspector, Cyber Crime Cell, Mumbai
http://www.youtube.com/ch?watv=tHUNESaC0E4	05.07.2010	Jt. Commissioner of Police (Crime), Mumbai
http://ulaginazhagiyamuthalpenn.blogspot.com	21.07.2010	Principal Secretary, IT Department, Chennai–600 009
en.wikipedia.org/Wiki/Sukhbir Singh Badal	11.08.2010	Principal Secretary to Govt. of Punjab, Dept. of IT, Chandigarh
http://www.exbii.com http://www.topix.net	05.10.2010	Commissioner, Maharashtra State, Colaba, Mumbai–400 001
http://ashsyumul.blogspot.com/2009/12/penginaan-terhadap-islam.html	20.08.2010	Shri Haneef Ali, State President, Bharatiya Janata Minority Morcha, Andhra Pradesh
http://www.angelsofindia.com/ http://www.adult-gals.com/ http://www.indianangels.net/ http://www.arabexposed.com/ http://indiamafia.com/ http://www.indianasfuckers.com http://www.indianpronvideos.in/ http://www.peterporntube.com http://www.bollywood-sex.net/ http://www.indianworldsex.com/ http://indianhomevideo.com/ http://indian-pakistani-girls.com http://indianvidz.com http://indianparadise.net/ http://bollywoodscandals.net/ http://indiansexpics.net/ http://www.indian-hardcore-movies.com/ http://www.bollywoodnudesex.net/ http://www.bangmyindianwife.com/ http://www.indian-angel-teens.com/ http://south-indian-sex.com/ http://www.indianseduction.com/ http://www.indiansexuniversity.com http://www.indianpassion.com/ http://fuckmyindianass.com http://indiansexwebcams.com/ http://exoticpics4u.com/ http://www.indianfreesexmovies.com/ http://www.newsindiansexmovies.com/ http://www.peterporn.net/ http://www.3xindianmovies.com/ http://www.amateur-indian-girls.com/ http://www.bollywoodhardcore.net http://www. indiansexpost.com/ http://www.desi-amateurs.com/ http://www.3xasianmovies.com/ http://allindiansex.com/ http://www.indiapornmovies.com http://www.3xindiansex.com/ http://www.indianxclips.com/ http://indiansexvideos.org http://www.pureindianporn.com/ http://indian-porn-sex.com http://www.newsindianpornmovies.com http://juicyindiangirls.com http://www/hardcoreindiansex.net http://bollywoodboobs.com http://indianmovietgp.com/ http://www.365indian.com http://www.indian-sex-hoes.com/ http://www.indian-sex-photos.net/ http://www.indian-free-sex.com/ http://www.indian-sex-movies.org http://ww.tamil-sex-movies.net/ http://www.indianteens.org/ http://www.sexyindianbooty.com http://www.indianposing.com http://www.pornhub.com/ http://www.indianpornhub.com/ http://www.exvideos.com	25.11.2010	Jt.Commissioner of Police (Crime), Mumbai

Annexure III

Minutes of the meeting held on 24-08-2010 for the request for blocking of website www.betfair.com

A meeting of "Committee for examination of request" constituted under the provisions of Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 under section 69A of the Information Technology Act, 2000 was held on 24.08.2010 at Electronics Niketan. New Delhi to examine the Request sent by Government of Maharashtra to block the website www.betfair.com. The meeting was participated by the following members:

Dr. Gulshan Rai, Group Coordinator, Department of Information Technology
Shri Dharmendra Sharma, Joint Secretary, Ministry of Home Affairs
Shri Arvind Kumar, Joint Secretary, Ministry of Information & Broadcasting
Shri Ashok C. Prakash, Additional L.A., Department of Legal Affairs
Shri B.J. Srinath, Sr. Director, CERT-In

The Committee discussed the case and observed that Govt. of Maharashtra has requested for blocking of website www.betfair.com on the grounds of "public order". The Committee also noted the reply from Cyber Crime Cell, Mumbai that no case has been registered against www.betfair.com. Further, no details suggesting the "impact" of the said site on public order has been made available by the State Government.

Keeping in view the directions of the Hon'ble High Court to dispose the application strictly as per law, the Committee assessed that based on the data/facts/details provided by Government of Maharashtra and Cyber Crime Cell, Mumbai, violation of section 69A of the Information Technology Act, 2000 is not being established.

Download a scanned version of the letter received from the DIT office here [PDF, 1.74 MB]

For more details visit https://cis-india.org/internet-governance/dit-response-2nd-rti-blocking

Technological Protection Measures in the Copyright (Amendment) Bill, 2010

pranesh — 2012-05-17T16:51:38Z

In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.

Technological Protection Measures are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.

In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)

First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).

TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?

Leaving that question aside for now, what does the proposed law itself say?

65A. Protection of Technological Measures

    (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

    (2) Nothing in sub-section (1) shall prevent any person from:

        (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:

          Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

        (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or

        (c) conducting any lawful investigation; or

        (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or

        (e) operator; or [sic]

        (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or

        (g) taking measures necessary in the interest of national security.

Implications: The Good Part

This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:

In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict access, only to restrict copying, communication to the public, and that gamut of rights.
In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.

A third important difference from the DMCA is that

It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)

Implications: The Bad Part

This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:

TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:
The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in Article 161 of their law) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:
- tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose
- upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law
How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?

Uncertainties

As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who circumvent are penalised in 65A(1), and not those who produce the circumvention devices. However:

On "shall maintain" and penalties

In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It is unclear what the implications of not maintaining such records are.

The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for such a purpose maintain/maintained a complete record ...". Instead, shall maintain is used, and an independent legal obligation seems, thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could possibly be attached to violation of this proviso despite it not coming within 65A(1)?

On "facilitating" and remoteness

The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?

While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.

More uncertainties

It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).

On "purpose" as a criterion in 65A(2)(a)

A last point, which is somewhat of an aside is that 65A(2)(a) states:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.

There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on why someone reproduces, etc., but on the act of reproduction). In fact, it allows acts based on purposes (via s.52(1)). The correct way of reading 65A(2)(a) might then be:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.

But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).

Conclusion

It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.

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

Surveillance and the Indian Constitution - Part 3: The Public/Private Distinction and the Supreme Court’s Wrong Turn

pranesh — 2014-03-06T23:02:45Z

After its decision in Gobind, the Supreme Court's privacy floodgates opened; a series of claims involving private parties came before its docket, and the resulting jurisprudence ended up creating confusion between state-individual surveillance, and individual-individual surveillance.

Gautam Bhatia's blog post was originally published on Indian Constitutional Law and Philosophy Blog

We have seen that Gobind essentially crystallized a constitutional right to privacy as an aspect of personal liberty, to be infringed only by a narrowly-tailored law that served a compelling state interest. After the landmark decision in Gobind, Malak Singh v State of P&H was the next targeted-surveillance history-sheeter case to come before the Supreme Court. In that case, Rule 23 of the Punjab Police Rules was at issue. Its vires was not disputed, so the question was a direct matter of constitutionality. An order of surveillance was challenged by two individuals, on the ground that there were no reasonable bases for suspecting them of being repeat criminals, and that their inclusion in the surveillance register was politically motivated. After holding that entry into a surveillance sheet was a purely administrative measure, and thus required no prior hearing (audi alteram partem), the Court then embarked upon a lengthy disquisition about the scope and limitations of surveillance, which deserves to be reproduced in full:

“But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court’s protection which the court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly R.23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobstrusive and within bounds. Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance. There is no order as to costs.”

Three things emerge from this holding: first, the Court follows Gobind in locating the right to privacy within the philosophical concept of individual dignity, found in Article 21’s guarantee of personal liberty. Secondly, it follows Kharak Singh, Malkani and Gobind in insisting that the surveillance be targeted, limited to fulfilling the government’s crime-prevention objectives, and be limited – not even to suspected criminals, but – repeat offenders or serious criminals. And thirdly, it leaves open a role for the Court – that is, judicial review – in examining the grounds of surveillance, if challenged in a particular case.

After Malak Singh, there is another period of quiet. LIC v Manubhai D Shah, in 1993, attributed – wrongly – to Indian Express Newspapers the proposition that Article 19(1)(a)’s free expression right included privacy of communications (Indian Express itself had cited a UN Report without incorporating it into its holding).

Soon afterwards, R. Rajagopal v State of TN involved the question of the publication of a convicted criminal’s autobiography by a publishing house; Auto Shankar, the convict in question, had supposedly withdrawn his consent after agreeing to the book’s publication, but the publishing house was determined to go ahead with it. Technically, this wasn’t an Article 21 case: so much is made clear by the very manner in which the Court frames its issues: the question is whether a citizen of the country can prevent another person from writing his biography, or life story. (Paragraph 8) The Court itself made things clear when it held that the right of privacy has two aspects: the tortious aspect, which provides damages for a breach of individual privacy; and the constitutional aspect, which protects privacy against unlawful governmental intrusion. (Paragraph 9) Having made this distinction, the Court went on to cite a number of American cases that were precisely about the right to privacy against governmental intrusion, and therefore – ideally – irrelevant to the present case (Paras 13 – 16); and then, without quite explaining how it was using these cases – or whether they were relevant at all, it switched to examining the law of defamation (Para 17 onwards). It would be safe to conclude, therefore, in light of the clear distinctions that it made, the Court was concerned in R. Rajagopal about an action between private parties, and therefore, privacy in the context of tort law. It’s confusing observations, however, were to have rather unfortunate effects, as we shall see.

We now come to a series of curious cases involving privacy and medical law. In Mr X v Hospital Z, the question arose whether a Hospital that – in the context of a planned marriage – had disclosed the appellant’s HIV+ status, leading to his social ostracism – was in breach of his right to privacy. The Court cited Rajagopal, but unfortunately failed to understand it, and turned the question into one of the constitutional right to privacy, and not the private right. Why the Court turned an issue between two private parties – adequately covered by the tort of breach of confidentiality – into an Article 21 issue is anybody’s guess. Surely Article 21 – the right to life and personal liberty – is not horizontally applicable, because if it was, we might as well scrap the entire Indian Penal Code, which deals with exactly these kinds of issues – individuals violating each others’ rights to life and personal liberty. Nonetheless, the Court cited Kharak Singh, Gobind and Article 8 of the European Convention of Human Rights, further muddying the waters, because Article 8 – in contrast to American law – embodies a proportionality test for determining whether there has been an impermissible infringement of privacy. The Court then came up with the following observation:

“Where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. Akali’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay.”

With respect, this is utterly bizarre. If there is a clash of two rights, then that clash must be resolved by referring to the Constitution, and not to the Court’s opinion of what an amorphous, elastic, malleable, many-sizes-fit “public morality” says. The mischief caused by this decision, however, was replicated in Sharda v Dharmpal, decided by the Court in 2003. In that case, the question was whether the Court could require a party who had been accused of unsoundness of mind (as a ground for divorce under the wonderfully progressive Hindu Marriage Act) to undergo a medical examination – and draw an adverse inference if she refused. Again, whether this was a case in which Article 21 ought to be invoked is doubtful; at least, it is arguable, since it was the Court making the order. Predictably, the Court cited from Mr X v Hospital Z extensively. It cited Gobind (compelling State interest) and the ECHR (proportionality). It cited a series of cases involving custody of children, where various Courts had used a “balancing test” to determine whether the best interests of the child overrode the privacy interest exemplified by the client-patient privilege. It applied this balancing test to the case at hand by balancing the “right” of the petitioner to obtain a divorce for the spouse’s unsoundness of mind under the HMA, vis-à-vis the Respondent’s right to privacy.

In light of the above analysis, it is submitted that although the outcome in Mr X v Hospital Z and Sharda v Dharmpal might well be correct, the Supreme Court has misread what R. Rajagopal actually held, and its reasoning is deeply flawed. Neither of these cases are Article 21 cases: they are private tort cases between private parties, and ought to be analysed under private law, as Rajagopal itself was careful to point out. In private law, also, the balancing test makes perfect sense: there are a series of interests at stake, as the Court rightly understood, such as certain rights arising out of marriage, all of a private nature. In any event, whatever one might make of these judgments, one thing is clear: they are both logically and legally irrelevant to the Kharak Singh line of cases that we have been discussing, which are to do with the Article 21 right to privacy against the State.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-3

Surveillance and the Indian Constitution - Part 2: Gobind and the Compelling State Interest Test

pranesh — 2014-01-27T18:03:38Z

Gautam Bhatia analyses the first case in which the Supreme Court recognized a constitutional right to privacy, Gobind v. State of Madhya Pradesh, and argues that the holding in that case adopted the three-pronged American test of strict scrutiny, compelling State interest, and narrow tailoring in its approach to privacy violations.

After its judgment in Kharak Singh, the Court was not concerned with the privacy question for a while. The next case that dealt – peripherally – with the issue came eleven years later. In R.M. Malkani v State of Maharashtra, the Court held that attaching a recording device to a person’s telephone did not violate S. 25 of the Telegraph Act, because

"where a person talking on the telephone allows another person to record it or to hear it, it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone."

Although this case was primarily about the admissibility of evidence, the Court also took time out to consider – and reject – a privacy-based Article 21 argument, holding that:

"Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods."

Apart from the fact that it joined Kharak Singh in refusing to expressly find a privacy right within the contours of Article 21, there is something else that unites Kharak Singh and R.M. Malkani: they hypothetical in Kharak Singh became a reality in Malkani – what saved the telephone tapping precisely because it was directed at "… a guilty person", with the Court specifically holding that the laws were not for targeting innocent people. Once again, then, the targeted and specific nature of interception became a crucial – and in this case, a decisive – factor. One year later, in another search and seizure case, Pooran Mal v Inspector, the Court cited M.P. Sharma and stuck to its guns, refusing to incorporate the Fourth Amendment into Indian Constitutional law.

It is Gobind v State of MP, decided in 1975, that marks the watershed moment for Indian privacy law in the Constitution. Like Kharak Singh, Gobind also involved domiciliary visits to the house of a history-sheeter. Unlike Kharak Singh, however, in Gobind the Court found that the Regulations did have statutory backing – S. 46(2)(c) of the Police Act, which allowed State Government to make notifications giving effect to the provisions of the Act, one of which was the prevention of commission of offences. The surveillance provisions in the impugned regulations, according to the Court, were indeed for the purpose of preventing offences, since they were specifically aimed at repeat offenders. To that extent, then, the Court found that there existed a valid “law” for the purposes of Articles 19 and 21.

By this time, of course, American constitutional law had moved forward significantly from eleven years ago, when Kharak Singh had been decided. The Court was able to invoke Griswold v Connecticut and Roe v Wade, both of which had found a "privacy" as an "interstitial" or "penumbral" right in the American Constitution – that is, not reducible to any one provision, but implicit in a number of separate provisions taken together. The Court ran together a number of American authorities, referred to Locke and Kant, to dignity, to liberty and to autonomy, and ended by holding, somewhat confusingly:

“the right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty… there are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might he engaging in such activities and that such ‘harm’ is not Constitutionally protective by the state. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures… the right to privacy in any event will necessarily have to go through a process of case-by-case development."

But if no clear principle emerges out of the Court’s elucidation of the right, it was fairly unambiguous in stressing the importance of the right itself. Interestingly, it grounded the right within the context of the freedom struggle. "Our founding fathers," it observed, "were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it." (Para 30) The parallels to the American Fourth Amendment are striking here: in his historical analysis Akhil Amar tells us that the Fourth Amendment was meant precisely to avoid the various abuses of unreasonable searches and seizures that were common in England at the time.

The parallels with the United States become even more pronounced, however, when the Court examined the grounds for limiting the right to privacy. "Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest." "Compelling public interest" is an interesting phrase, for two reasons. First, “public interest” is a ground for fundamental rights restrictions under Article 19 (see, e.g., Article 19(6)), but the text of the Article 19 restrictions do not use – and the Court, in interpreting them, has not held – that the public interest must be “compelling”. This suggests a stricter standard of review for an Article 21 privacy right violation than Article 19 violations. This is buttressed by the fact that in the same paragraph, the Court ended by observing: “even if it be assumed that Article 19(5) [restrictions upon the freedom of movement] does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.” The Court echoes the language of 19(5), and adds the word “compelling”. This surely cannot be an oversight.

More importantly – the compelling State interest is an American test, used often in equal protection cases and cases of discrimination, where “suspect classes” (such as race) are at issue. Because of the importance of the right at issue, the compelling state interest test goes hand-in-hand with another test: narrow tailoring. Narrow tailoring places a burden upon the State to demonstrate that its restriction is tailored in a manner that infringes the right as narrowest manner that is possible to achieve its goals. The statement of the rule may be found in the American Supreme Court case of Grutter v Bollinger:

"Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still constrained under equal protection clause in how it may pursue that end: the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose."

To take an extremely trivial example that will illustrate the point: the State wants to ban hate speech against Dalits. It passes legislation that bans “all speech that disrespects Dalits.” This is not narrowly tailored, because while all hate speech against Dalits necessarily disrespects them, all speech that disrespects Dalits is not necessarily hate speech. It was possible for the government to pass legislation banning only hate speech against Dalits, one that would have infringed upon free speech more narrowly than the “disrespect law”, and still achieved its goals. The law is not narrowly tailored.

Crucially, then, the Court in Gobind seemed to implicitly accept the narrow-tailoring flip side of the compelling state interest coin. On the constitutionality of the Police Regulations itself, it upheld their constitutionality by reading them narrowly. Here is what the Court said:

“Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime – crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperiling safety of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.”

But Regulation 855 did not refer to the gravity of the crime at all. Thus, the Court was able to uphold its constitutionality only by narrowing its scope in a manner that the State’s objective of securing public safety was met in a way that minimally infringed the right to privacy.

Therefore, whether the Gobind bench was aware of it or not, its holding incorporates into Indian constitutional law and the right to privacy, not just the compelling State interest test, but narrow tailoring as well. The implications for the CMS are obvious. Because with narrow tailoring, the State must demonstrate that bulk surveillance of all individuals, whether guilty or innocent, suspected of crimes or not suspected of crimes (whether reasonably or otherwise), possessing a past criminal record or not, speaking to each other of breaking up the government or breaking up a relationship – every bit of data must be collected to achieve the goal of maintaining public security, and that nothing narrower will suffice. Can the State demonstrate this? I do not think it can, but at the very least, it should be made to do so in open Court.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-2

Surveillance and the Indian Constitution - Part 1: Foundations

pranesh — 2014-01-23T15:12:30Z

In this insightful seven-part series, Gautam Bhatia looks at surveillance and the right to privacy in India from a constitutional perspective, tracing its genealogy through Supreme Court case law and compares it with the law in the USA.

Note: This was originally posted on the Indian Constitutional Law and Philosophy blog.

On previous occasions, we have discussed the ongoing litigation in ACLU v. Clapper in the United States, a challenge to the constitutionality of the National Security Agency’s (NSA) bulk surveillance program. Recall that a short while after the initial Edward Snowden disclosures, The Hindu revealed the extent of domestic surveillance in India, under the aegis of the Central Monitoring System (CMS). The CMS (and what it does) is excellently summarized here. To put thing starkly and briefly:

“With the C.M.S., the government will get centralized access to all communications metadata and content traversing through all telecom networks in India. This means that the government can listen to all your calls, track a mobile phone and its user’s location, read all your text messages, personal e-mails and chat conversations. It can also see all your Google searches, Web site visits, usernames and passwords if your communications aren’t encrypted.”

The CMS is not sanctioned by parliamentary legislation. It also raises serious privacy concerns. In order to understand the constitutional implications, therefore, we need to investigate Indian privacy jurisprudence. In a series of posts, we plan to discuss that.

Privacy is not mentioned in the Constitution. It plays no part in the Constituent Assembly Debates. The place of the right – if it exists – must therefore be located within the structure of the Constitution, as fleshed out by judicial decisions. The first case to address the issue was M. P. Sharma v. Satish Chandra, in 1954. In that case, the Court upheld search and seizure in the following terms:

"A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right. by some process of strained construction."

The right in question was 19(1)(f) – the right to property. Notice here that the Court did not reject a right to privacy altogether – it only rejected it in the context of searches and seizures for documents, the specific prohibition of the American Fourth Amendment (that has no analogue in India). This specific position, however, would not last too long, and was undermined by the very next case to consider this question, Kharak Singh.

In Kharak Singh v. State of UP, the UP Police Regulations conferred surveillance power upon certain “history sheeters” – that is, those charged (though not necessarily convicted) of a crime. These surveillance powers included secret picketing of the suspect’s house, domiciliary visits at night, enquiries into his habits and associations, and reporting and verifying his movements. These were challenged on Article 19(1)(d) (freedom of movement) and Article 21 (personal liberty) grounds. It is the second ground that particularly concerns us.

As a preliminary matter, we may observe that the Regulations in question were administrative – that is, they did not constitute a “law”, passed by the legislature. This automatically ruled out a 19(2) – 19(6) defence, and a 21 “procedure established by law” defence – which were only applicable when the State made a law. The reason for this is obvious: fundamental rights are extremely important. If one is to limit them, then that judgment must be made by a competent legislature, acting through the proper, deliberative channels of lawmaking – and not by mere administrative or executive action. Consequently – and this is quite apart from the question of administrative/executive competence - if the Police Regulations were found to violate Article 19 or Article 21, that made them ipso facto void, without the exceptions kicking in. (Paragraph 5)

It is also important to note one other thing: as a defence, it was expressly argued by the State that the police action was reasonable and in the interests of maintaining public order precisely because it was “directed only against those who were on proper grounds suspected to be of proved anti-social habits and tendencies and on whom it was necessary to impose some restraints for the protection of society.” The Court agreed, observing that this would have “an overwhelming and even decisive weight in establishing that the classification was rational and that the restrictions were reasonable and designed to preserve public order by suitable preventive action” – if there had been a law in the first place, which there wasn’t. Thus, this issue itself was hypothetical, but what is crucial to note is that the State argued – and the Court endorsed – the basic idea that what makes surveillance reasonable under Article 19 is the very fact that it is targeted – targeted at individuals who are specifically suspected of being a threat to society because of a history of criminality.

Let us now move to the merits. The Court upheld secret picketing on the ground that it could not affect the petitioner’s freedom of movement since it was, well secret – and what you don’t know, apparently, cannot hurt you. What the Court found fault with was the intrusion into the petitioner’s dwelling, and knocking at his door late at night to wake him up. The finding required the Court to interpret the meaning of the term “personal liberty” in Article 21. By contrasting the very specific rights listed in Article 21, the Court held that:

“Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that these which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories.” (Paragraph 16)

A few important observations need to be made about this paragraph. The first is that it immediately follows the Court’s examination of the American Fifth and Fourteenth Amendments, with their guarantees of “life, liberty and property…” and is, in turn, followed by the Court’s examination of the American Fourth Amendment, which guarantees the protection of a person’s houses, papers, effects etc from unreasonable searches and seizures. The Court’s engagement with the Fourth Amendment is ambiguous. It admits that “our Constitution contains no like guarantee…”, but holds that nonetheless “these extracts [from the 1949 case, Wolf v Colorado] would show that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man – an ultimate essential of ordered liberty”, thus tying its own holding in some way to the American Fourth Amendment jurisprudence. But here’s the crucial thing: at this point, American Fourth Amendment jurisprudence was propertarian based – that is, the Fourth Amendment was understood to codify – with added protection – the common law of trespass, whereby a man’s property was held sacrosanct, and not open to be trespassed against. Four years later, in 1967, in Katz, the Supreme Court would shift its own jurisprudence, to holding that the Fourth Amendment protected zones where persons had a “reasonable expectation of privacy”, as opposed to simply protecting listed items of property (homes, papers, effects etc). Kharak Singh was handed down before Katz. Yet the quoted paragraph expressly shows that the Court anticipated Katz, and in expressly grounding the Article 21 personal liberty right within the meaning of dignity, utterly rejected the propertarian-tresspass foundations that it might have had. To use a phrase invoked by later Courts – in this proto-privacy case, the Court already set the tone by holding it to attach to persons, not places.

While effectively finding a right to privacy in the Constitution, the Court expressly declined to frame it that way. In examining police action which involved tracking a person’s location, association and movements, the Court upheld it, holding that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

The “therefore” is crucial. Although not expressly, the Court virtually holds, in terms, that tracking location, association and movements does violate privacy, and only finds that constitutional because there is no guaranteed right to privacy within the Constitution. Yet.

In his partly concurring and partly dissenting opinion, Subba Rao J. went one further, by holding that the idea of privacy was, in fact, contained within the meaning of Article 21: “it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” Privacy he defined as the right to “be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.” On this ground, he held all the surveillance measures unconstitutional.

Justice Subba Rao’s opinion also explored a proto-version of the chilling effect. Placing specific attention upon the word “freely” contained within 19(1)(d)’s guarantee of free movment, Justice Subba Rao went specifically against the majority, and observed:

“The freedom of movement in clause (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Art. 19(1)(d) of the Constitution.”

This early case, therefore, has all the aspects that plague the CMS today. What to do with administrative action that does not have the sanction of law? What role does targeting play in reasonableness – assuming there is a law? What is the philosophical basis for the implicit right to privacy within the meaning of Article 21’s guarantee of personal liberty? And is the chilling effect a valid constitutional concern?

We shall continue with the development of the jurisprudence in the next post.

You can follow Gautam Bhatia on Twitter

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-1

Submission to TRAI Consultation on "Inputs for Formulation of National Telecom Policy - 2018"

pranesh — 2018-01-25T14:46:48Z

Centre for Internet and Society (CIS) made a submission to TRAI Consultation on inputs to the National Telecom Policy.

Preliminary

We welcome the TRAI consultation on the National Telecom Policy 2018.

We believe these should be among the objectives of the next NTP.

To enable inclusion through the provision of telecommunications infrastructure and services that are accessible to all, especially for the most marginalized.
To maximize the utility of telecom networks by increasing their capacity and throughput.
To maximize the socio-economic utility of of spectrum and rationalize the regulatory regime.
To re-energize the telecom sector, and to bring about a shift to a revenue-sharing model of revenue-generation for the exchequer.

NTP-12 does not include any policy mandate for providing accessibility for person with disabilities. The Policy should mandate implementation of systems that would enable better accessibility for persons with disabilities. This could have included formulation of a Code of good practice for manufactures and service providers, conduct surveys and gather statistics on use of telecommunication services by persons with disabilities, etc.

Resource and infrastructure sharing

Resource- and infrastructure-sharing among telecommunications companies and applications is crucial to ensure both eiciency of usage of a limited resource (whether it is cabling in underground ducts, or spectrum, or telecom towers), as well as to lower telecommunications costs (especially capital expenditure cost) and lowering barriers to entry, reducing environmental costs, and to maximize the beneits for consumers.[1]

Eforts must be taken to enable greater sharing of resources and infrastructure, without there being a negative impact on competition.[2]

As a telecom scholar points out, “[O]perators will sometimes share the cost of digging or deploying passive infrastructure, but will lay their own iber lines, which allows them to engage in full, facility-based competition. In these cases, there is no risk of coordination, as networks based on multiple iber lines ensure that access seekers can obtain full control over them. Under such conditions, co-investment agreements are more likely to lead to timelier and more intense competition on the downstream market.”[3]

For this, the separation between infrastructure and service must be maintained, with focus of competition at the service end with infrastructure being largely common. This is managed differently in different countries.[4]

Keeping all this in mind, we suggest that Strategies E(b) and F(c) be reworded to say, "By promoting both passive and active sharing of telecom infrastructure and resources among telecom service providers, while ensuring that doesn’t lead to a decrease in competition, and where appropriate making certain forms of infrastructure sharing mandatory."

Among the resources that require sharing is spectrum. In 2015, DoT guidelines allowed liberalised spectrum to be shared among operators.

Modernizing spectrum management

We are happy to note that the strategy of “ensuring adequate availability of contiguous, broader and globally harmonised spectrum” is listed under Strategy D(u). There are many opportunities for harmonisation of spectrum usage in India vis-a-vis global usage. For instance, currently in India, only 50 MHz of spectrum has been earmarked for unlicenced use outdoors in the 5 GHz band (5.825 GHz to 5.875 GHz). There is no rationale for this distinction between indoor and outdoor use, and this limits the usage of Wi-Fi outdoors. The US has delicensed 580 MHz in the 5GHz band which allows for the IEEE 802.11ac standard to be used on it, whereas India has only delicensed 300 MHz, whereas 1280 MHz is what is dictated by needs.[5] At a minimum 580 MHz (3x160 MHz) ought to be made available for unlicensed used.

Additionally, delicensing the 60 GHz band would bring us in line with global regimes,[6] where at least 19 countries have delicensed the 60 Ghz band for both access as well as backhaul purposes.[7]

The 60GHz band is ideal for delicensing since it there is virtually no interference since due to oxygen absorption and narrow antenna beam width the transmission distances

are short. We also need to liberalize the 70 and 80 GHz bands to enabling lower cost access for these frequencies to extend ibre connectivity where necessary by using other means, including through aerial systems.

While under Strategy D(v), TRAI proposes the “earmarking [of] unlicensed frequency bands periodically for operation of low power devices for public use”, it should instead be “earmarking unused, underused, and unlicensed frequency bands periodically for public use, with licence-exemption and light-licensing where possible, with safeguards to prevent interference”.

Even bands that have been allocated under the NFAP and licensed may lie unused or underused as well. According to a study by IIT-Hyderabad, unused TV spectrum in India amounts to between 85%-95% of the total TV spectrum. A large swath of 115 MHz — from 470 to 585 MHz — lies unused, and is available for alternative uses. Waiting for an ecosystem to develop around the 470- 698 MHz band,[8] is harming the government’s vision of Digital India and an urgent course correction is needed. As we have argued in the past, “[w]hereas Digital India needs low-cost wireless broadband, especially for long-distance links in rural India, because of the high cost and diiculty of building and maintaining ibre or wired networks in diicult terrain, and/or in sparsely populated areas. Therefore, access to TVWS needs to be bundled with BharatNet, and other shared backbone networks like ERNET.

Policies should permit diferent network design scenarios including transmission power and purpose. Point-to-point links are needed over long distances in place of ibre or microwave, and broad coverage is needed for contiguous areas like industrial developments, campuses, commercial complexes, or rural communities … TVWS does need tight radio ilters (unlike Wi-Fi) to minimise interference, the underlying consideration that drives spectrum management. There's also need for varying power speciications depending on the network design and purpose as described above, and policies for unlicensed sharing using geolocation databases, as deined by the US FCC."[9]

Further, following the lead of the FCC in the USA, and Ofcom in the UK, we in India should exempt low-power usage across all spectrum bands. The approach followed by Ofcom (which allows for powers between -90 dBm/MHz to -41 dBm/MHz (and on a sloping gradient from 10.6 GHz onwards), may be recommended. To reflect this, a strategy statement to “explore greater exemptions from licensing requirements where possible, including for low-power spectrum usage”, would be helpful.

The NTP should also lead the way in encouraging the government and the regulator to look to new ways of managing licence-exempt use of spectrum, as has been done, for example, in the UK.[10]

This allows for a movement away from power-oriented regulations to regulation on the basis of interference. For instance, shared spectrum databases may allow for coordinated usage of higher power but without interference. Further, this allows for bands to be categorized not by usage, but by transmit powers and duty cycles.

Accessibility

One of the lacunae in the NTP-12 is its lack of any policy mandate for providing accessibility for person with disabilities.[11] NTP-18 should not make the same mistake. The NTP should mandate implementation of systems that would enable better accessibility for persons with disabilities. This should include formulation of a code of good practice for manufactures and service providers, conducting surveys and gathering statistics on use of telecommunication services by persons with disabilities, etc.

Revenue maximization

We believe that Strategy D(r) (“reviewing the objectives of spectrum management to maximise socio-economic gains”) should explicitly mention that revenue maximization should not itself be a goal, since that may harm the socio-economic gains to be had from optimal usage of spectrum. We believe that it should be made explict that “ensuring revenue maximization for the exchequer will not be the main aim of spectrum management policy”.

Auctions, which ind mention in TRAI’s recommendations, ne — to favour a model of revenue sharing[12] — and at the least they need to be structured in such a manner as to avoid the “winner’s curse”.[13] Revenue-sharing, which was followed after NTP-99, allows for a more sustainable form of revenue generation for the government, while having transparent allocation systems or auctions designed in a manner not oriented towards maximizing the generation of auction proceeds for the government.[14] Just as increasing the USO fund by itself cannot be a goal — ensuring universal service is the goal — similarly, the generation of tax revenue by itself cannot be a goal.

Patents pools, local manufacturing, and cost of devices

Under “Strategies to become net positive in international trade of telecommunication systems and services”, the consultation paper proposes inancial incentives for development of SEPs, as well as “incentivising local manufacturing of network equipment and devices” as strategies. One concrete strategy to incentivise local manufacturing of telecommunications equipment and devices is to create government-controlled patent pools,[15] which can be used to ensure that patent-holders are paid a royalty on SEPs while also lowering the transaction costs and legal uncertainty for local device manufacturers, and ultimately lowering the price of devices for customers.[16]

Private patent pools do not suiciently take care of the legal risks created to manufacturers. If government intervention is not done, then Indian manufacturers will end up embroiled in legal battles as we have seen with Micromax, and others. CIS has provided a very detailed submission on TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing.[17]

Internet connection and data centres

While under “Strategies to establish India as a global hub for data communication systems and services”, the problem of Internet interconnection is brought up, but the strategies don’t mention what needs to be done. One of the problems facing India currently is a low level of peering interconnection agreements and a high cost of transit interconnection agreements. This results in a higher cost of Internet for everyone. This needn’t be so. The NTP could establish that there should be no licensing required for running an interconnection point. Currently, there is a lack of clarity on the matter, with contrary suggestions having been provided by Trai in the past. Further, the NTP and that existing interconnection exchanges like NIXI should not discriminate between licensed telecom operators and unlicensed content providers, since it is crucial that the latter also be present at interconnection exchanges, and interconnection exchanges will not lourish unless the hurdles put in place, which favour incumbents, are reduced.

It is worrying that TRAI has suggested establishing a “licensing and regulatory framework for cloud service providers” (Strategy H(a)). While cloud service providers are subject to the regulations provided in the IT Act, and other legislations in India, they currently are not subject to any licensing requirements. No rationale has been provided by TRAI for this suggestion, and it would kill innovation in the sector, and would inhibit the emergence of India as a global hub for data communications systems and services. Similarly, while an overarching data protection and security legislation needs to be in place, the suggestion of a “licensing and regulatory framework for IoT/ M2M service providers” (Strategy G(a)) is worrying, and there is no suitable rationale for having licensing in this space, which will only serve to curb innovation without any corresponding or suitable benefit accruing to the public.

Given that telecommunications isn’t an end in itself, but is a means to an end, one of the missions of the NTP could be:

To enable inclusion through the provision of telecommunications infrastructure and services that is accessible for all, especially for the most marginalized, including those who are disabled, those who live in remote areas, those who are illiterate, scheduled castes and scheduled tribes, women, and transgender communities.

Once again, we are grateful to TRAI for having provided this opportunity to comment.

[]. GSMA, “Mobile Infrastructure Sharing,” 2008, https://www.gsma.com/publicpolicy/wpcontent/uploads/2012/09/Mobile-Infrastructure-sharing.pdf.

[]. José Carlos Laguna de Paz, “How Cooperation Between Telecom Firms Can Improve Efficiency,” The Regulatory Review, June 25, 2015, https://www.theregreview.org/2015/06/25/laguna-telecoms-cooperation/.

[]. Ibid.

[]. Jan Markendahl, Amirhossein Ghanbari, and Bengt G. Mölleryd, “Network Cooperation between Mobile Operators : Why and How Competitors Cooperate?,” in DIVA, 2013, http://urn.kb.se/resolve? urn=urn:nbn:se:kth:diva-134358.

[]. Parag Kar, “Response to TRAI’s Consultation Paper on Proliferation of Broadband through Public Wi-Fi Networks” (Qualcomm, August 10, 2016), http://www.trai.gov.in/sites/default/files/201609011022542916621Qualcomm_india_pvt_ltd.pdf.

[]. See ITU-R Report “ITU-R M.2227 (11/2011)” and ITU-R Recommendation “ITU-R M.2003-1 (01/2015)” on “Multiple Gigabit Wireless Systems in frequencies around 60 GHz”.

[]. Broadband India Forum, “V Band - 60 GHz: The Key to Affordable Broadband in India” (Broadband India Forum, 2016), http://www.broadbandindiaforum.com/img/White%20Paper%20on%20V-BAND%20Revised%20Final.pdf.

[]. Varun Aggarwal, “DoT Says No to Releasing TV White Space Spectrum, Clarifies It Is for Experiments,” The Hindu Business Line, June 16, 2016, http://www.thehindubusinessline.com/info-tech/dot-says-no-to-releasing-tvwhite-space-spectrum-clarifies-it-is-for-experiments/article8737575.ece

[]. Shyam Ponappa, “The Buzz around TV White Space,” Business Standard, November 4, 2015, http://www.businessstandard.com/article/opinion/shyam-ponappa-the-buzz-around-tv-white-space-115110401618_1.html.

[]. “Better Managing Licence-Exempt Usage,” Ofcom, October 7, 2016, https://www.ofcom.org.uk/research-anddata/technology/radio-spectrum/exempt.

[]. Snehashish Ghosh, “National Telecom Policy 2012 — Issues and Concerns,” The Centre for Internet and Society, June 30, 2012, https://cis-india.org/telecom/national-telecom-policy-2012.

[]. David E. M. Sappington and Dennis L. Weisman, “Revenue Sharing in Incentive Regulation Plans,” Information Economics and Policy 8, no. 3 (September 1, 1996): 229–48, https://doi.org/10.1016/0167-6245(96)00010-8.

[]. Shyam Ponappa, “Richard Thaler’s Views on Auctions,” Business Standard, November 1, 2017, http://www.business-standard.com/article/opinion/richard-thaler-s-views-on-auctions-117110101558_1.html.

[]. Shyam Ponappa, “Breakthroughs Needed for Digital India,” Business Standard, April 6, 2016, http://www.businessstandard.com/article/opinion/shyam-ponappa-breakthroughs-needed-for-digital-india-116040601241_1.html.

[]. Sunil Abraham, “Letter for Establishment of Patent Pool for Low-Cost Access Devices through Compulsory Licenses,” The Centre for Internet and Society, accessed January 19, 2018, https://cis-india.org/a2k/blogs/letter-forestablishment-of-patent-pool-for-low-cost-access-devices

[]. Nehaa Chaudhari, “Pervasive Technologies: Patent Pools,” The Centre for Internet and Society, accessed January 19, 2018, https://cis-india.org/a2k/blogs/patent-pools

[]. Anubha Sinha, “Comments on TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing” (Centre for Internet and Society, November 13, 2017), http://www.trai.gov.in/sites/default/files/CentreInternetSocietyIndia_CP_PLTEM.pdf.

For more details visit https://cis-india.org/telecom/blog/submission-to-trai-consultation-on-inputs-for-formulation-of-national-telecom-policy-2018

Submission on India's Draft Comments on Proposed Changes to the ITU's ITRs

pranesh — 2012-12-07T04:15:56Z

Given below are the responses from the representatives of civil society in India (The Society for Knowledge Commons, Centre for Internet & Society, The Delhi Science Forum, Free Software Movement of India, Internet Democracy Project and Media for Change) to the Government of India's proposals for the upcoming WCIT meeting, in December 2012, in Dubai.

Our detailed comments on India's draft proposals can be found here. Also read the final version of Indian Government's submission to ITU on November 3, 2012.

Background

We believe that, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

Some of the proposed changes to the ITR's could have a significant negative impact on the openness of the Internet.

In addition, the processes related to the WCIT lack openness and transparency: the WCIT / ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents, contrary to established principles of Internet governance as laid down in the Tunis Agenda and as supported by the Indian government at several national and international fora. The WCIT process needs to be improved both at the domestic and global level. We urge the Indian government to support a more open process in the future, with respect to deliberations that will have a significant impact on the people.

We recognise that concerns regarding cyber-security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, we believe that as a number of parallel processes are working on these specific issues, these need not be brought under the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to the infrastructure layer that has traditionally been the area of its focus and not the content or the application layer of the Internet. Any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora.

We note that the proposal ARB/7/24 defines an "operating agency" as "any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service" and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. We call on the Indian government to ensure that the term "operating agency" is defined in a narrower or more restrictive manner and only used in exceptional cases. Normally, the obligations of member states should be with respect to "recognised operating agencies" and not omnibus all "operating agencies".

Follow-up

We would like to note that we have never officially received this document directly from the Indian government. In view of the support the Indian government continually espouses for multi-stakeholder Internet governance, this is a matter of deep regret.

We are aware that the official closing date for proposals is early November. However, we also know that several governments intend to submit proposals right upto the beginning of the WCIT meeting. In addition, several governments have included civil society representatives on their official delegation.

We therefore call upon the Department of Telecommunications to organise an open consultation with civil society representatives, to discuss both India's proposals and the comments of various civil society representatives on them, in greater depth, as part of DoT’s preparation for the WCIT meeting and in line with India's espoused commitment to multi-stakeholderism. We look forward to discussing our inputs with the Government to make the decision making process on governance more participatory and inclusive.

For more details visit https://cis-india.org/internet-governance/blog/submission-on-indias-draft-comments-on-proposed-changes-to-itus-itrs

Submission by Indian Civil Society Organisations on Proposals for the Future ITRs and Related Processes

pranesh — 2012-12-07T08:00:19Z

The Centre for Internet & Society was one of the signatories of this submission which was sent in November 2012, in response to the International Telecommunication Union's call for public comments in relation to the revision of International Telecommunication Regulations that are to take place at the ITU's World Conference on International Telecommunications in Dubai from December 3 to 14, 2012.

We, the undersigned civil society organisations from India, respectfully acknowledge the important role that the ITU has played in the spread of telecommunications around the world. However, we are concerned about the lack of transparency and openness of the processes related to the WCIT: the WCIT/ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents. The documents that are publicly available show that some of the proposals might deal with Internet governance. According to established principles as laid down in the Tunis Agenda - which process the ITU helped to lead - Internet governance processes are required to be multistakeholder in nature. The WCIT and ITU processes require urgent improvement with regard to openness, inclusiveness and transparency. While we appreciate the current opportunity to share our comments, we would like to encourage the ITU and its Member States to adopt a genuine multistakeholder approach at the earliest.

As mentioned, we do welcome the current opportunity to share our thoughts. Though this list is not exhaustive, some of our major concerns are as follows:

We believe that, given the historical development of present methods of internet regulation, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to aspects of the physical layer that have traditionally been the areas of its focus. The ITRs scope should not be expanded to other layers, nor to content - any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora. In addition, it is crucial that “ICTs” and the term “processing” be excluded from the definition of telecommunication as this clearly opens up the possibility for Member States to regulate/attempt to regulate the “content/“application” layer on the internet at the ITU.

We also recommend that provisions regarding international naming, numbering, addressing and identification resources will be restricted to telephony, as should provisions regarding transit rate, originating identification and end-to-end QoS. Provisions regarding the routing of Internet traffic should not find a place in the ITRs at all.

We recognise that concerns regarding cyber security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, as these are being discussed in many other fora, we believe that the ITRs are not the best place to address these. Their inclusion here could inhibit the further evolution and expansion of the Internet. We also believe that any fora discussing cyber security should be multistakeholder, open and transparent.

We note that the proposal ARB/7/24 defines an “operating agency” as “any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service” and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. The term “operating agency” should be defined in a narrower or more restrictive manner and, irrespective of its exact definition, only be used in exceptional cases. Normally, the obligations of member states should be with respect to “recognised operating agencies” and not omnibus all “operating agencies”.

Signed:

Centre for Internet and Society
Delhi Science Forum
Free Software Movement India
Internet Democracy Project
Knowledge Commons (India)

For more details visit https://cis-india.org/internet-governance/blog/submission-on-proposals-for-future-itrs-and-related-processes

Statutory Motion Against Intermediary Guidelines Rules

pranesh — 2012-04-03T09:35:41Z

Rajya Sabha MP, Shri P. Rajeev has moved a motion that the much-criticised Intermediary Guidelines Rules be annulled.

Motion to Annul Intermediary Guidelines Rules

A motion to annul the Intermediary Guidelines Rules was moved on March 23, 2012, by Shri P. Rajeeve, CPI(M) MP in the Rajya Sabha from Thrissur, Kerala.

The motion reads:

"That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annuled; and

That this House recommends to Lok Sabha that Lok Sabha do concur on this Motion."

This isn't the first time that Mr. Rajeeve is raising his voice against the Intermediary Guidelines Rules. Indeed, even when the Rules were just in draft stage, he along with the MPs Kumar Deepak Das, Rajeev Chandrashekar, and Mahendra Mohan drew Parliamentarians' attention to the rules. Yet, the government did not heed the MPs' concern, nor the concern of all the civil society organizations that wrote in to them concerned about human rights implications of the new laws. On September 6, 2011, Lok Sabha MP Jayant Choudhary gave notice (under Rule 377 of the Lok Sabha Rules) that the Intermediary Guidelines Rules as well as the Reasonable Security Practices Rules need to be reviewed. Yet, the government has not even addressed those concerns, and indeed has cracked down even harder on online freedom of speech since then.

Fundamental Problems with Intermediary Guidelines Rules

The fundamental problems with the Rules, which deal with objectionable material online:

Shifting blame.

It makes the 'intermediary', including ISPs like BSNL and Airtel responsible for objectionable content that their users have put up.

No chance to defend.

There is no need to inform users before this content is removed. So, even material put up by a political party can be removed based on anyone's complaint, without telling that party. This was done against a site called *CartoonsAgainstCorruption.com". This goes against Article 19(1)(a).

Lack of transparency

No information is required to be provided that content has been removed. It's a black-box system, with no one, not even the government, knowing that content has been removed following a request. So even the government does not know how many sites have been removed after these Rules have come into effect.

No differentiation between intermediaries.

A one-size-fits-all system is followed where an e-mail provider is equated with an online newspaper, which is equated with a video upload site, which is equated with a search engine. This is like equating the post-office and a book publisher as being equivalent for, say, defamatory speech. This is violative of Article 14 of the Constitution, which requires that unequals be treated unequally by the law.

No proportionality.

A DNS provider (i.e., the person who gives you your web address) is an intermediary who can be asked to 'disable access' to a website on the basis of a single page, even though the rest of the site has nothing objectionable.

Vague and unconstitutional requirements.

Disparaging speech, as long as it isn't defamatory, is not criminalised in India, and can't be because the Constitution does not allow for it. Content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.

Allows private censorship.

The Rules do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request.

Presumption of illegality.

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court (if they ever discover that it has been removed). This is contrary to the presumption of validity of speech used by Indian courts, and is akin to prior restraint on speech. Courts have held that for content such as defamation, prior restraints cannot be put on speech, and that civil and criminal action can only be taken post-speech.

Government censorship, not 'self-regulation'.

The government says these are industry best-practices in existing terms of service agreements. But the Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service.

Problems Noted Early

We have noted in the past the problems with the Rules, including when the Rules were still in draft form:

Other organizations like the Software Freedom Law Centre also sent in scathing comments on the law, noting that they are unconstitutional.

We are very glad that Shri Rajeeve has moved this motion, and we hope that it gets adopted in the Lok Sabha as well, and that the Rules get defeated.

For more details visit https://cis-india.org/internet-governance/blog/statutory-motion-against-intermediary-guidelines-rules

Statement of Solidarity on Freedom of Expression and Safety of Internet Users in Bangladesh

pranesh — 2013-01-15T11:51:44Z

This is a statement on the violent attack on blogger Asif Mohiuddin by the participants to the Third South Asian Meeting on the Internet and Freedom of Expression that took place in Dhaka, Bangladesh, on January 14–15, 2013.

Bangladeshi blogger Asif Mohiuddin was brutally attacked in a stabbing last evening. His condition is currently said to be critical. Violent attacks on mediapersons have led to at least four deaths in the past year. This trend is now extending to those writing online.

It is the duty of societies at large to ensure that principles we universally consider sacrosanct, such as the right to life and liberty and of freedom of expression are in fact ideas, and of the government to actively protect the rights guaranteed under the Constitution of Bangladesh and to ensure they are not just words on paper.

Article 39 of the Constitution of Bangladesh—and Article 19 of the Universal Declaration of Human Rights—guarantee both the freedom of thought and conscience, as well as the right of every citizen of freedom of speech and expression, and freedom of the press.

Article 32 of the Constitution of Bangladesh—and Article 3 of the Universal Declaration of Human Rights—guarantee that no person shall be deprived of life or personal liberty except by law.

The attack on Asif Mohiuddin constitutes a violation these fundamental principle by criminals, and we request the government to act decisively to show it will not tolerate such violations.

Reporters Without Borders note that "the ability of those in the media to work freely has deteriorated alarmingly in Bangladesh, which is now ranked 129th of 179 countries in the 2011-2012 World Press Freedom Index".

In general, the situation of those working as non-professional 'citizen journalists' is even worse. In a 2010 report, the UN Special Rapporteur wrote:

"Citizen journalists are by nature more isolated, they are more vulnerable to attack than professional journalists. However, citizen journalists enjoy less protection than their counterparts in traditional media, as they do not have the support of media organizations and networks, in particular the organizational resources, including lawyers and financial resources, which can help shield them from harassment."

This reality of greater vulnerability is equally applicable to those who do not self-identify as 'citizen journalists', but use social media to express unpopular opinions.

Keeping this in mind, we call upon the government on Bangladesh to carry out swift investigations into this particular incident and bring the perpetrators to justice, and to grant greater legal support to citizen journalists and ensure better protections for all those who use the Internet as a means of expression.

For more details visit https://cis-india.org/internet-governance/blog/statement-of-solidarity-asif-mohiuddin