Centre for Internet and Society

Why should you keep a close eye on the net neutrality debate in the US

Admin — 2017-11-25T15:33:32Z

As the United State's FCC Chairman Ajit Pai gears up to repeal the net neutrality laws put in place in 2015, India should sit up and take note.

The blog post by Subhrojit Mallick was published by Digit on November 24, 2017.

Back in 2014, a group of Redditors started debating net neutrality in India after Airtel announced it would charge extra for Voice Over IP (VoIP) services like Skype. Soon, that snowballed into a nation-wide campaign with over a million internet users participating. Things didn’t help when Facebook too wanted to provide a bunch of internet services for free in India through its Internet.org or Free Basics initiative. However, a year-long discussion and public outrage against the two, led the Telecom Regulatory Authority of India (TRAI) to rule in favour of net neutrality and stop both Airtel and Facebook in their tracks of violating a free and open internet.

Fast forward three years down the line and America, the birthplace of the internet, is struggling with the problem of internet freedom. The Federal Communications Commission (FCC) under the Donald Trump Administration led by Chairman Ajit Pai submitted a final draft proposal yesterday to repeal the existing net neutrality laws put in force by the Obama administration in 2015. The draft proposal will be voted upon by FCC by the end of the year and considering the FCC has a Republican majority under Ajit Pai, the proposal is likely to pass.

The draft removes almost every net neutrality rule from 2015, making ISPs the gatekeepers of the internet. It states internet providers will have the freedom to implement fast and slow speed lanes, prioritise traffic and block apps and services. The only rule they have to follow -- publicly disclose when they are doing any of the things stated above.

Executive director of the Centre for Internet and Society, Sunil Abraham elaborated on what's on Pai's mind.

"Ajit Pai's ideology is pro-market. He believes the market will sort all problems out. According to Pai, the magic of competition will eliminate all the harms emerging from net neutrality violation," he said.

"Pai has said, you do what you want to do, but you have to disclose that to the public. You can block, throttle, have fast lanes, prioritise traffic, have discriminatory pricing, but you disclose them. If the customer doesn't like it, he can swith to another network. Pai believes the transparency requirements will allow the magic of the market to diminish and eliminate harm. His regulation of net neutrality is transparency," Abraham further added.

However, such a move will have drastic effects on the free flow of internet traffic. Telecom companies and ISPs can handpick services by charging customers to access some sites or by slowing down the speeds of others. For instance, ISPs can make consumers pay more to watch high-quality content on Netflix.

With net neutrality rules repealed, the internet will become a pay-to-play service. It will essentially divide the internet into fast and slow lanes. One will be a speedy service that could be priced higher and another, much slower and cheaper. While big players like Amazon, Facebook, Google, Netflix and the likes can easily pay the higher fees and stay unfettered, newcomers and smaller players will have it tough. Although, the move will lead to cuts in profits for everyone. A higher price to consumers will eat into the user base of these companies, while startups and new voices in the media will find entry and success prohibitive.

Although it’s true that no single ISP in the US has the entire market to itself and the market is indeed divided into a handful of players, they do operate in a de facto monopolised way. How? ISPs in the US have sliced up the entire country into areas such that users in a particular area have only one choice of service provider. That essentially leaves users at the mercy of whatever Comcast or Spectrum is offering (or not offering).

By putting the net neutrality rules in place in 2015, the US had ensured these ISPs won’t do anything grossly uncompetitive. The current rules make broadband in the country a public utility, same as electricity. And now, Ajit Pai-led FCC is about to repeal those very rules that kept them grounded.

Will the FCC ruling make apps and services expensive in other countries?

While Pai’s jurisdiction does not extend beyond the United States, his tirades against a free internet will most definitely have rippling effects across the world. More importantly, it will raise the cost of operations of companies like Netflix and Amazon who will have to hire legal experts and lobbyists to negotiate deals with service providers. That extra cost will be burdened on the US consumers of course, but since they have a large international presence, it is likely that the extra cost will trickle down to users outside the US as well.

And that’s not just the streaming companies. All the tech giants hail from the US and it is only logical that a rise in their costs of operation will have an impact on their global operations.

Although, if the level playing field in the US is disrupted, companies will look for greener pastures and if that means moving out of the US to other countries, it could happen.

How will FCC’s decision impact India?

While US is grappling with such a reality, Indians fought against it and won. Or did they? Last year, after Airtel and Facebook were asked to drop their plans for differential pricing, TRAI released a paper on net neutrality and differential pricing to finalise its views on the matter. The regulatory body released a 14-question long consultation paper seeking comments on internet traffic management from the public.

“Increasingly, concerns have been raised globally relating to discriminatory treatment of Internet traffic by access providers. These concerns relating to nondiscriminatory access have become the centre of a global policy debate. The purpose of this second stage of consultation is to proceed towards the formulation of final views on policy or regulatory interventions, where required, on the subject of NN,” the paper read.

“Net Neutrality being repealed in the US will hurt innovation in that country, and will lead to a consolidation of power with those Internet companies which have the money to partner with US carriers. This hurts Indian product startups, because it means that their apps may not be as easily available to users in the US. The Internet is one world, and we need the same Internet to be available everywhere, across the world: one Internet for the entire world,” Nikhil Pahwa, Co-Founder of Internet Freedom Foundation told Digit.

That means, essentially, the debate on net neutrality is not over in India. In fact, both RS Sharma, the Chairman of TRAI and FCC’s Ajit Pai agree on the need to bridge the digital divide. Both are exploring ways to keep the internet open while providing access to the unconnected. Thankfully, both differs on the approach to meet that goal.

Pai believes the internet should be left unregulated despite the “hypothetical harms” to the consumer. He thinks the current rules were put in place to avoid theoretical harms which were not based on hard evidence. Pai claims there should be evidence-based regulation of the internet.

Sharma, in contrast, disagrees on an evidence-based approach.

“The TRAI's view of Net Neutrality has so far been diametrically opposite to Ajit Pai's FCC, and with good reason. Net Neutrality ensures that all ISPs and telecom operators act as exchanges of data between users, and do not discriminate on the basis of the type or source of that data. This allows for permission-less innovation on the Internet, which has given us the Internet that we have today,” Pahwa added.

Will India’s stance on net neutrality change after the FCC’s decision?

Rajan Mathews, Director General of Cellular Operators Association of India believes the FCC’s decision will no doubt have some impact on the path India takes.

“I think the policymakers will look at the decision the US makes. They had taken their decision as a point of reference before and the FCC’s ruling is too large an issue to not look at it. Both the DoT (Department of Telecom) and TRAI will have to reevaluate their approach in the context of the what happens in the US,” he said.

“Net neutrality approach in both countries is still in flux and India is going to tread lightly on net neutrality issues,” he added. As per Mathews, in India, the situation is different from the US where a handful of telecom companies and ISPs wield control of the entire country. In India, there is a licensed environment which provides a minimal standard of net neutrality, which is applied across the board and everybody who is providing a similar service is made to follow similar guidelines.

However, Mathews did attribute India’s efforts to enforce net neutrality to the United States’ efforts to place the rules in the first place in 2015 under the Obama administration, when internet was deemed as a public utility, same as electricity or telephone.

“Net neutrality in India emerged from the US definition. Now that they are going to repeal it, people in India who were looking at the US as a model will evaluate the implications of the move,” Mathews elaborated.

The US is looking to implement an ex-post approach to regulating the internet wherein the ISPs and telcos will adopt a free market approach and will only be investigated if they violate a rule. India, Mathews says, is adopting an ex-ante approach where there will be some commonly accepted criteria of net neutrality, but operators will have the ability to manage their traffic to ensure quality of service.

Minister of Information and Broadcasting, Ravi Shankar Prasad also helped alleviate fears of India following suit. During the Global Summit for Cyberspace Security held yesterday, he said, "The citizens' right of accessing the internet is "non-negotiable" and the government will not allow any company to restrict people's entry to the worldwide web."

Prime Minister Narendra Modi also came in support of net neutrality in India. He tweeted, "The internet, by nature, is inclusive and not exclusive. It offers equity of access and equality of opportunity."

Pahwa, who fought hard against Airtel and Facebook to ensure the internet remains neutral, was confident the decision won’t affect India’s stance on net neutrality. However, he is apprehensive that Indian telecom companies might borrow a leaf from their US counterparts and lobby hard to repeal the rules.

“I don't think the FCC decision affects the Indian regulation in any way, because the Indian regulator TRAI has already established strong and well rooted principles for Net Neutrality regulations in India. The only thing that worries me is that Indian telecom operators will use the developments in the US to push back against Net Neutrality with renewed vigour,” he said.

So, on the face of it, while India is well insulated from the catastrophe the United States has embarked upon, it is important to watch what the US is doing closely and make sure we don’t repeat their mistakes here.

For more details visit https://cis-india.org/internet-governance/news/digit-subhrojit-mallick-november-24-2017-why-should-you-keep-a-close-eye-on-net-neutrality-debate-in-us

Why Parallel Importation of Books Should Be Allowed

pranesh — 2019-02-01T17:41:26Z

There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an "infringing copy". This blog post argues that the government should, keeping in mind the larger picture, still go ahead and legalise parallel imports.

[Updated Wednesday, February 2, 2011, to respond to Thomas Abraham's extensive and thoughtful rebuttal of the earlier version this post.]

First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face:

The amendment

2(m) "infringing copy" means,—

    (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

    (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

    (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

    (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham in the Hindustan Times, very ominously titled The Death of Books. However it seems to us that the publishing industry—especially foreign publishers with distributorships in India—don't want to open themselves up to competition in the distribution market, and are opposing this most commendable move.

What is parallel importation?

Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is.

"Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws 23 (2006).)

Some fear-mongers try to equate parallel importation with 'anarchy' in markets, and some confusedly claim that this amendment would allow infringing copies of books would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle monopoly rights over importation, and the amendment makes that amply clear.

Harms on existing books of not allowing parallel importation

Libraries/second-hand bookshops/consumers have no way of knowing if a book was originally imported legally or not, since there is no easy way of telling a parallel-ly imported copy apart from a exclusively imported copy. If one of them, even unknowingly buys/sells a foreign edition about which they am not sure and it turns out it was not legally imported (and there are literally thousands of such books, and I personally own at least a couple dozen foreign editions bought from various second-hand bookshops) then they are committing copyright infringement.

This precisely was argued by the library associations and others in amici briefs to the US Supreme Court in the Costco v. Omega case. For instance, the brief for the the American Library Association, the Association of College and Research Libaries, and the Association of Research Libraries in Support of Petitioner argues that:

By restricting the application of [the first sale doctrine] to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of [the first sale doctrine] only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States.

and, the brief for the Public Knowledge, American Association of Law Libraries, American Free Trade Association, the Electronic Frontier Foundation, Medical Library Association, and the Special Libraries Association in Support of Petitioner states:

The uncertainty created by the Ninth Circuit’s holding [against parallel importation] will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets. Owners of copyright works or goods containing copyrighted elements manufactured abroad will be unable to dispose of these products without authorization at the risk of liability under copyright law’s extensive damages provisions. Furthermore, the chilling effects of the Ninth Circuit’s holding will extend beyond works manufactured abroad. Owners of copies of works will be unable to determine whether they are protected by [the first sale doctrine], as they will not always know where their goods were manufactured. Copyright holders will have little incentive to make clear the location of manufacturing of their copyrighted works,3 as greater uncertainty means a greater ability to sell the right to distribute the goods within the United States. Secondary market sellers who cannot afford to purchase this right will be unable to do business unless they are prepared to engage in lengthy and expensive litigation with an uncertain result. A wide variety of important secondary markets in copyrighted works and goods with copyrighted elements will suffer without the protection of the first sale doctrine.

Benefits of parallel importation

Dismantling distribution monopoly rights

The benefits that will accrue from allowing for parallel importations are huge. Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorization to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit. This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions.

Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all.

Generally, there are two main benefits of allowing for parallel importation: faster introduction of the latest international releases into the domestic country, and lowered prices by decreasing the costs imposed by a monopoly right over distribution.

All the foreign books that an online bookseller like Flipkart delivers in India are procured from international sources. Without parallel importation, Flipkart will have to ask for permission from the book publishers for each foreign book each time it makes a sale. This would cripple Flipkart's business model.

Helping book publishers

Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's War and Peace) to Delhi's Darya Ganj market (Edmund Wilson's Letters on Literature and Politics)—does not prevent me from buying books first hand. Indeed, Wilson's Letters is out of print, and cannot be bought in a store like Crosswords or Gangaram's.

Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India.

Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally.

The introduction of the modern "public library" in the mid-19th century led to a surge in literacy, readership, and book sales, and not a decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales.

Helping libraries and the print-disabled

Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Flipkart, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported.

Helping all consumers

An excellent report was prepared in 2006 by Consumers International, in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report).

Rebutting objections

I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others.

1. Authors' won't lose out on royalties

Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores. For parallel importation to take place, the books have to be purchased legally, and that first sale itself ensures that authors are paid royalties.

Of course, publishing contracts often have a clause that remaindered books will not garner royalties. But in that case, the problem is not parallel importation, but the overstocking and subsequent remaindering of books. The authors wouldn't be paid (or would be paid very little) for remaindered books even if the books weren't imported into India. Parallel importation does not in any way change that.

Indian authors

There is a worry that an Indian author would be hit if remaindered copies of his/her books started entering the Indian market. That would mean that foreign publishers had overstocked that Indian author's book, i.e., that the expectation from the book was much higher than the actual demand. If this happens infrequently, then the author hasn't much to worry about (since remainders aren't a big problem). If it happens frequently, then firstly the publisher should re-adjust to the market and realize that demand is low. Secondly, the author needs to worry more about quality of the book (and whether it caters to foreign audiences) than the possible effects that the availability of cheaper copies of that book would have.

2. Remaindered books are in publishers' control

India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is remaindered books. He believes that remaindered books have the potential to destroy the Indian book market. Remaindering of books has been happening for decades. If remaindered books haven't already destroyed all book markets worldwide, then it is unlikely that they will do so suddenly just because parallel importation of books is permitted in India.

Remainders happen because of a miscalculation by the publisher: expecting more demand than was actually present. What happens with that excess stock is controlled by the publishers. They can choose to pulp them, burn them, or even push them into other channels of commerce that Mr. Abraham points out exist in the mature, frontline markets where remaindering happens:

And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way.

Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders.

3. Dumping of books should be tackled separately

An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand, Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea, Japan, and a host of other countries, all of which allow for parallel importation of books. In a 1998 judgment, the United States Supreme Court, some parallel imports of copyrighted goods were legal. That ruling did not cause the downfall of the US book market, despite cheaper books being available outside the US. Australia has allowed for parallel importation of books in one form or another since 1991 (when the law was changed to allow for all parallel of all books that weren't introduced in the Australian market within 30 days of it being released elsewhere in the world). New Zealand did a study after removing the ban on parallel importation, and declared that cheaper books were available on a more timely basis than previously. None of these countries have been overrun by grey market books.

Customs laws are better suited

Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by customs laws (anti-dumping and countervailing duties). Using copyright law to regulate apprehended book dumping practices (which might not even happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended bycatch, and the consequences can be disastrous for the knowledge environment in case of books.

Customs laws are more flexible because they are imposed by the executive, and unlike copyright law, can be more easily changed as per requirements. So even if copyright law allows for parallel importation of copyrighted works, a special case can be made out by publishers in case of trade publishing, for instance, and that can be targetted specifically by imposing duties. However, the inverse cannot happen, since we are not aware of any mechanism whereby libraries, consumers and others can get to 'override' the provision in the Copyright Act.

Additionally, these duties can be made to operate only if the book is already being sold in India; these duties can be made to operate only on new books. A ban on parallel importation, on the other hand will apply equally to books that are out of print, to books that the original copyright owner has not even granted an exclusive Indian distributorship and are not even being sold in India. It goes right to the heart of freedom of speech, which the Supreme Court has held includes the right to receive information.

4. Non-printing of low-priced editions for India because of "unsecure" market won't happen

Parallel importation, which is what the amendment to s.2(m) allows for, affects only importation. It does not in any way affect publication in India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made in this post that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision does not depend on whether India allows for parallel importation or not.] The amendment does not change that position, for reasons explained at greater length in a separate post. The incentives to print low-priced editions hence does not decrease. If anything it will increase because currently books that are not available as low-priced editions cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase.

Indeed, even before that 2009 Delhi High Court judgment prohibiting exports to the United States, many low-priced editions were being printed in India. And even before the 2005 Bombay High Court judgment prohibiting parallel imports, many low-priced editions were being printed in India. This won't change, regardless of the law, because India is an increasingly profitable and expanding market, and low-priced editions are a necessity in this market due to lower average income.

5. Rhetoric flourish and the law: Open and closed markets

Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge.

Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in Quality King v. L'anza in 1998, in which the court held in favour of the importer.

The question reached the US Supreme Court again last year in Costco v. Omega, but the court split on it 4-4, and did not deliver a binding precedent on parallel importation. Thus, for all intents and purposes, under copyright law, the United States is an open market.

In the United Kingdom, as per European Union law, parallel importation is permitted from anywhere within the EU. And in Australia, parallel importation of parallel goods is largely allowed, with some conditions to encourage faster publishing in Australia of foreign books.

Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores.

Standing Committee consultations

Lack of wide consultation

On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments.

Publishers were represented

While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee.

Libraries, students, consumers were not represented

However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment.

Department's and Standing Committee's reasoning

We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment.

7.10
All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India.

7.11
Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners.

7.12
Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights.

7.13
After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice. [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into India will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law. [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of.

Conclusion

It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publishers' monopoly rights over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.

For more details visit https://cis-india.org/a2k/blogs/parallel-importation-of-books

Why Open Access Has To Look Up For Academic Publishing To Look Up

sinha — 2016-10-12T16:22:10Z

In an important development, the US Federal Trade Commission has filed a complaint against the India-based OMICS group for harassing authors to publish in its journals.

The article was published in the Wire on October 12, 2016.

“…if you are a member of the knowledge elite, then there is free access, but for the rest of the world, not so much … Publisher restrictions do not achieve the objective of enlightenment, but rather the reality of ‘elite-nment.” Lawrence Lessig

In 2011, speaking impassionately to an audience at CERN – one of the world’s largest institutions for nuclear physics research, headquartered in Geneva – Lessig, a professor of law at Harvard Law School and a political activist, highlighted the crisis of access to scientific scholarship. Indeed, over the last six decades, public access to scholarly works has diminished. Works that can be freely searched and read represent only a sliver of the entire wealth of human knowledge.

With the emergence of academic journals in the seventeenth century, the practice of exchanging manuscripts for review and comments became popular, leading to the establishment of the peer-review system. In fact, until the eighteenth century, there existed a strong belief in the intellectual commons and traditions of sharing knowledge between scholars. These traditions dated back to scholarship flourishing in ancient Greece. Open access was the default, and not the exception to the norm.

However, by the nineteenth century, there occurred a game-changing shift in the approach to knowledge production. It was theorised that the commons approach was inefficient and that knowledge needed to be exclusively owned to spur further production. This was in line with the incentive theory of copyright law, which was an added justification to the commoditisation of knowledge. In such circumstances, all scholarly works increasingly came to be fortified within the expensive walls of academic journals. Journals left no stone unturned to capitalise on scholars vying to get published in prestigious titles (Nature, Lancet, Cell, etc.).

The business model rarely rewarded authors or peer reviewers. On the contrary, some journals required authors to pay a considerable fee to publish their work. Subscription charges to such research, a large part of which was funded by the government (i.e. taxpayers), hit the roof and could be afforded only by elite institutions. And with the advent of the digital age, the fortresses moved online.

However, before the internet arrived, there had been efforts to counter the entrenchment of scholarly works. They were mostly in the nature of social movements, located broadly within the philosophical umbrella of openness. The nineties marked a significant increase in the modes of access, through devices connected to the internet. Previously a fringe movement, openness was now entering the realms of publishing, software, standards development, education and data. It manifested in Linux, Wikipedia, open web standards, open educational resources, open government data, Creative Commons and, particularly, open access publishing. Just last month, a UN report called for open access to research to improve public health.

Open access publishing was a breakaway from the traditional scholarly publishing model. It offered a different model of online research publication informed by the principles of transparency, free access and unrestricted access. Three key definitions exist, and the Budapest Open Access Initiative (2002) provides a good overview of it:

There are many degrees and kinds of wider and easier access to this literature. By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

Further, open access is compatible with copyright, peer review, revenue (even profit), print, preservation, prestige, quality, career-advancement, indexing, and other features and supportive services associated with conventional scholarly literature (as Peter Suber wrote in 2004). The model broadly offers two routes: gold and green. Gold open access involves publication in an open access journal. The journal provides for peer-review, retention of copyright by the author and in most cases requires author-side fees. Green open access involves publishing a work in an online repository, with/without peer-review. The models have several variations, and adoption often depends on their suitability for a particular discipline. Many institutions now have an Open Access Mandate policy.

Latest challenges to open access publishing

For a 15-year-old movement (formally), open access publishing is making a serious dent in the market for scholarly publications. It has emerged as a formidable competitor to the traditional model. How else do you explain the unfortunate acquisition of SSRN – one of the largest online open access repositories – by the largest publisher of academic journals, Elsevier, earlier this year? Where, within a few days of Elsevier gaining control, users began to notice problematic takedowns of articles on SSRN.

The acquisition was a severe blow to open access publishing. To be fair, there remain certain issues intrinsic to open access publishing models that need urgent resolution. For instance, while some open access journals provide high quality services at levels comparable to that of paywalled journals, a large majority has been unable to reach reasonable standards of publication.

Further, as it has emerged lately, many are yet to crack the business model while a few are driven by malicious attempts to con authors. Most commercial open access publishers have resorted to a system of levying from the authors an article-processing charge (APC). These publishers include large players such as the Public Library of Science journals and BioMed Central. APCs are justified as necessary costs for publication. Thus, sometimes they are reasonably applied only to peer-reviewed submissions. However, sometimes they are blatantly misused by publishers who quote exorbitant APCs. As a result, APCs have become a serious concern for the academic community, with the reentry of an undesirable price barrier which has shifted the burden from the reader to the author.

In one noteworthy development, the US Federal Trade Commission (FTC) has filed a complaint against the OMICS group for deceiving authors and misrepresenting its editorial quality. The OMICS group has its roots in Hyderabad and runs a multitude of open access journals. It carried a notorious reputation for soliciting articles profusely, and then holding the articles hostage unless the authors paid hefty fees for their publication. It apparently charged the fees for conducting peer-review, which as this harrowing account of an author reveals, was an utter sham. It also seems that the group targeted unsuspecting scholars from developing countries, where there was a higher concentration of early-career researchers eager to get their works published.

Holding articles hostage and releasing unchecked versions must have already caused irreparable damage to several researchers’ reputations. In this day of web-caching and -indexing facilities, one wonders if the researchers will ever be able to obliterate linkages to their unchecked manuscripts. Further, in the long run, this phenomenon will ruin or suppress promising careers – especially from developing countries. As a result, the present lack of diversity in top-rung academia may not be eliminated for a long time.

Such harmful, predatory practices have not escaped the FTC’s notice, and it has stated that it will pursue cases of similar nature to protect authors and consumers. This is the first time in the world when a governmental authority has taken cognisance of predatory practices in OA publishing. This will hopefully lead to an appropriate cleansing effect of the players in this field, and enhance the credibility of open access journals.

Thus, self-regulation and standard-setting remains an area for improvisation in the open access publishing community. At the cusp of the movement, proposed structures were mired in legal and economic arguments. It is yet to overcome the challenge of economic sustainability and mature into a stable as well as replicable business model. The movement will be celebrating the Open Access Week for the ninth year later this month. It has gifted scholars immeasurably and lent itself to the progress of science and arts. Here’s hoping the community will iron out the remaining challenges to further strengthen the movement soon.

For more details visit https://cis-india.org/openness/the-wire-anubha-sinha-october-12-2016-why-open-access-has-to-look-up-for-academic-publishing-to-look-up

Why NPCI and Facebook need urgent regulatory attention

sunil — 2018-06-12T02:07:42Z

The world’s oldest networked infrastructure, money, is increasingly dematerialising and fusing with the world’s latest networked infrastructure, the Internet.

The article was published in the Economic Times on June 10, 2018.

As the network effects compound, disruptive acceleration hurtle us towards financial utopia, or dystopia. Our fate depends on what we get right and what we get wrong with the law, code and architecture, and the market.

The Internet, unfortunately, has completely transformed from how it was first architected. From a federated, generative network based on free software and open standards, into a centralised, environment with an increasing dependency on proprietary technologies.

In countries like Myanmar, some citizens misconstrue a single social media website, Facebook, for the internet, according to LirneAsia research. India is another market where Facebook could still get its brand mistaken for access itself by some users coming online. This is Facebook put so many resources into the battle over Basics, in the run-up to India’s network neutrality regulation. an odd corporation.

On hand, its business model is what some term surveillance capitalism. On the other hand, by acquiring WhatsApp and by keeping end-toend (E2E) encryption “on”, it has ensured that one and a half billion users can concretely exercise their right to privacy. At the time of the acquisition, WhatsApp founders believed Facebook’s promise that it would never compromise on their high standards of privacy and security. But 18 months later, Facebook started harvesting data and diluting E2E.

In April this year, my colleague Ayush Rathi and I wrote in Asia Times that WhatsApp no longer deletes multimedia on download but continues to store it on its servers. Theoretically, using the very same mechanism, Facebook could also be retaining encrypted text messages and comprehensive metadata from WhatsApp users indefinitely without making this obvious.

My friend, Srikanth Lakshmanan, founder of the CashlessConsumer collective, is a keen observer of this space. He says in India, “we are seeing an increasing push towards a bank-led model, thanks to National Payments Corporation of India (NPCI) and its control over Unified Payments Interface (UPI), which is also known as the cashless layer of the India Stack.”

NPCI is best understood as a shape shifter. Arundhati Ramanathan puts it best when she says “depending on the time and context, NPCI is a competitor. It is a platform. It is a regulator. It is an industry association. It is a profitable non-profit. It is a rule maker. It is a judge. It is a bystander.”

This results in UPI becoming, what Lakshmanan calls, a NPCI-club-good rather than a new generation digital public good. He also points out that NPCI has an additional challenge of opacity — “it doesn’t provide any metrics on transaction failures, and being a private body, is not subject to proactive or reactive disclosure requirements under the RTI.”

Technically, he says, UPI increases fragility in our financial ecosystem since it “is a centralised data maximisation network where NPCI will always have the superset of data.” Given that NPCI has opted for a bank-led model in India, it is very unlikely that Facebook able to leverage its monopoly the social media market duopoly it shares with in the digital advertising market to become a digital payments monopoly.

However, NCPI and Facebook both share the following traits — one, an insatiable appetite for personal information; two, a fetish for hypercentralisation; three, a marginal commitment to transparency, and four, poor track record as a custodian of consumer trust. The marriage between these like-minded entities has already had a dubious beginning.

Previously, every financial technology wanting direct access to the NPCI infrastructure had to have a tie-up with a bank. But for Facebook and Google, as they are large players, it was decided to introduce a multi-bank model. This was definitely the right thing to do from a competition perspective. But, unfortunately, the marriage between the banks and the internet giant was arranged by NPCI in an opaque process and WhatsApp was exempted from the full NPCI certification process for its beta launch.

Both NPCI and Facebook need urgent regulatory attention. A modern data protection law and a more proactive competition regulator is required for Facebook. The NPCI will hopefully also be subjected to the upcoming data protection law. But it also requires a range of design, policy and governance fixes to ensure greater privacy and security via data minimisation and decentralisation; greater accountability and transparency to the public; separation of powers for better governance and open access policies to prevent anti-competitive behaviour.

For more details visit https://cis-india.org/internet-governance/blog/economic-times-june-10-2018-sunil-abraham-why-npci-and-facebook-need-urgent-regulatory-attention

Why It's Essential To Grow Indian-Language Wikipedias

subha — 2016-05-28T06:52:53Z

On 15 January, Wikipedia, the free online encyclopaedia celebrated its 15th birthday, meeting this milestone with 36 million articles in more than 290 languages (the English-language Wikipedia alone has crossed the 5-million article mark). But here I want to address some major questions that we need to ask as Indians.

This was published by Huffington Post on January 25, 2016. Also mirrored on Global Voices on February 26, 2016. The post was translated into Greek by Maria Souli. It was translated into Spanish by Daniela Diaz and into Russian by GV Russian

First, what is the state of Indian-language Wikipedia projects? What does India have to take from and give to Wikipedia?

With the growth of free and open source software in India, people are equipped with more freedom than ever. Especially with the recent federal policy-level changes, the nation is enjoying better collaboration with people of different cultures speaking different languages.

According to UNESCO, 197 of the total of 1652 Indian languages are dying despite having a long literary and linguistic heritage.

However, there is a huge gap in the access to knowledge on the internet domain. Of a population of about 1.26 billion only about 15-18% people are connected online, largely from mobile devices. A tiny fraction of this population comprises the technical community. It would be useful to have a metric on the percentage of this community's contribution to grow the languages of this country and its cultural heritage.

Wikipedia as a family

Wikipedia is not just an encyclopaedia. It is also a "family" of several other Open Knowledge members. Wikipedia itself is available in over 290 languages, but it also has other multilingual sister projects such as Wikisource (an online library of many public domain and other important texts), Wikimedia Commons (the world's largest repository of media files and documents), Wikibooks (a free library of educational textbooks), Wikivoyage (a free and open travel guide) and Wiktionary (a database of various languages).

These projects don't just house millions of images, videos, documents and texts, but allow anyone to contribute their knowledge to this ever deepening pool of information. Four Indian languages made an early entry to the Wiki-world back in 2002 -- Assamese, Malayalam, Odia and Punjabi.

Language neutrality

According to UNESCO, 197 of the total of 1652 Indian languages are dying despite having a long literary and linguistic heritage. It's quite shocking. In a blog post on content localisation, social entrepreneur Rajesh Ranjan asks if free and open source software can help save these dying languages. In the context of Wikipedia, there are already 23 South Asian-language projects. Out of these 20 are languages listed in the 8th schedule of the Constitution of India. Many might not have noticed that the "en" in the URL of Wikipedia that denotes the language code of English could be altered with "or" for Odia Wikipedia or "pa" for Punjabi Wikipedia.

Most Wikipedia projects in Indian language projects are relatively small compared to their counterparts. But the Wikimedia communities are thriving.

There are a fairly large number of native speakers waiting out there to access knowledge in their own languages.

When only parts of government websites are available in Hindi, the Hindi Wikipedia has crossed 10 million articles already. The Tamil and Malayalam Wikipedia communities have played a central part in implementing Wikipedia basics learning in the state-run school syllabus. Needless to say that these communities have played a significant role in implementing several free and open source software by pushing for policy-level change. Many Indian languages are in the pipeline to become active Wikipedia projects under the scope of the Wikimedia Incubator.

Maithili Wikipedia and Goan Konkani Wikipedia are the two Indian-language Wikipedias that have gone live in recent years. The world has seen how digital activism has brought a new life to the Hebrew language. There are a fairly large number of native speakers waiting out there to access knowledge in their own languages. Wikipedia could be a great tool for digital activism with openness and sharing.

Addressing gender bias in Wikipedia: Implications for India

India tops South Asia in the gender inequality index in the entire South Asia. The female literacy rate is an alarmingly low 65.46% as compared to 82.14% for men. This disparity is evident in many other sectors as well as in politics.

Digital India aims at digital literacy and availability of digital resources/services in Indian languages. This is closely aligned with the Wikimedia movement's goal....

But gender bias is not just a problem in India. The global free and open source software (FOSS) community has always been worried about the low presence of women contributors -- in the range of 2-5% range. Wikimedia Foundation's former executive director admitted that Wikipedia, like many other collaborative and open projects, does not have a conducive environment for women. But the Wikimedia community and Wikimedia Foundation are both working on improving this state of affairs. Indian-language Wikipedia projects are directly impacted by this global drive, be it the Women's History Month edit-a-thon where Wikipedia content largely related to women are improved every year or the Lilavati's Daughters project where biographies of Indian women scientists were created and enriched in Wikipedia projects.

Complementing Digital India

With a population of over 354 million netizens India still has a long way to go in increasing Indian language content on the web. The Government of India's new campaign Digital India aims at digital literacy and availability of digital resources/services in Indian languages. This is closely aligned with the Wikimedia movement's goal to provide free access to the sum of all human knowledge. In addition to Wikipedia, many other open educational resources and free knowledge projects that are not already a part of the Digital India campaign signal the need for the federal-run campaign to be more collaborative and open. Community-government collaborations like the NROER project to make NCERT books under Creative Commons licenses and IT@School project in the state of Kerala to provide education using free and open tools have gained massive traction and helped more Indian language content come online.

For more details visit https://cis-india.org/a2k/blogs/huffington-post-subhashish-panigrahi-january-25-2016-why-its-essential-to-grow-indian-language-wikipedias

Why India snubbed Facebook's free Internet offer

praskrishna — 2016-02-27T07:49:08Z

The social media giant wanted to give the people of India free access to a chunk of the Internet, but the people weren't interested.

The blog post by Daniel Van Boom was published by Cnet on February 26, 2016. Sunil Abraham was quoted.

Mark Zuckerberg's ambitious mission to provide free Internet access to rural India was rejected by the people it was intended to help long before the country's regulators banned it earlier this month.

Around the country, farmers, labourers and office workers scorned Facebook's offer. Called Free Basics, it provided only limited access to the Internet through a suite of websites and services that, unsurprisingly, included Facebook. They felt the limited service didn't follow the open nature of the Internet, where all sites and online destinations should be equally accessible, so they organized real-world protests and an online Save The Internet campaign, with the message that Zuckerberg's efforts weren't welcome.

You might think people would jump at the opportunity to access Facebook for free, especially since more than a billion people use the social network every day. But it's that hitch -- that they can't access everything else -- which is precisely the problem, said Sunil Abraham, the executive director of the Centre for Internet and Society India. "Even if somebody spends 90 percent of their time on Facebook, that 10 percent is equally as important."

Indian regulators sided with popular opinion and cut off Free Basics in the world's second-most populous country on February 8. The ruling by the Telecom Regulatory Authority of India (TRAI) forbids all zero-rating plans, meaning anyone offering customers free access to only a limited set of services of sites are banned. It was championed as a victory for Net neutrality, the principle that everyone should have equal access to all content on the Internet.

The decision was undoubtedly a blow for Facebook, which says it wants to connect the billions of have-nots around the world to the Internet through the program. While more than half the world's online population uses Facebook each month, the company's efforts to connect with the developing world -- with Free Basics also being available in over 30 other countries, such as Kenya and Iraq -- could be a boon for business.

"[The Internet] must remain neutral for everyone, individuals and businesses alike. Everyone must have equal access to it," said Rajesh Sawhney, a Mumbai-based tech entrepreneur, in support of TRAI's decision to reject Free Basics. He believes the zero-rating scheme can be misused by telcos and other companies to create divisive ecosystems, where certain brands or companies are included and others aren't.

The package wasn't without its supporters though, with some being disappointed with the government's intervention in the marketplace.

"It is generally assumed that there is something sinister behind violations of Net neutrality...but that is not always true," says software engineer Shashank Mehra. "ISPs trying to match consumer demand isn't something sinister, it is a market process."

The social media giant further defends itself by pointing out that Free Basics is open to any and all developers, including competitors Twitter and Google, as long as they meet the program's technical standards. This evidently wasn't enough to convince much of India.

The problem persists

Facebook disputes claims that its interest in India is commercial, saying its efforts are humanitarian. In speeches over the past few months, Zuckerberg has painted Internet access as a tool for global good. "The research has shown on this that for every 10 people who get access to the internet, about one person gets a new job, and about one person gets lifted out of poverty," he said at a Townhall Q&A in Delhi last October. "Connecting things in India is one of the most important things we can do in the world."

Zuckerberg appears to have taken the loss in stride. During a keynote address at the Mobile World Conference in Barcelona earlier this week, he admitted to being disappointed by the ruling, but added, "We are going to focus on different programs [in India]...we want to work with all the operators there." A Facebook spokesperson said the company "will continue our efforts to eliminate barriers and give the unconnected an easier path to the Internet and the opportunity it brings."

Those ideals could certainly help in India, where around 68 percent of its population -- about 880 million people -- live in rural conditions or poverty. The promise of free access to health, education, local and national news through an Internet connection could potentially improve quality of live. So what's the problem?

The service providers would also be granting free Facebook.

Peggy Wolff, a volunteer coordinator at education NGO Isha Vidhya, says Facebook is just the latest in a long line of international companies hoping to crack rural India, where the bulk of the country's poor live.

While admitting that low cost or free Internet is imperative in rural areas, that "smart villages" are needed to help ease the human burden on India's increasingly overcrowded cities, she says, "Free basics is just a bit suspicious to most people. There's just too much vested interest."

"The big question." Sawhney says, "is how do we give fast and free Internet to a large section of society in India?"

There are alternatives. United States-based Jana, for instance, developed an Android app called mCent that allows its growing userbase of 30 million to earn data by downloading and using certain apps or watching advertisements from sponsors. Unlike Free Basics, that data can be expended on any online destination.

Jana's CEO Nathan Eagle, like Zuckerberg, says his mission is to bring Internet connectivity to the next billion people. "Today, Internet connectivity in emerging markets is much more an issue of affordability, rather than access," he explains. "1.3 billion people in emerging markets now have Android phones...it's the cost of data that is prohibitive."

For more details visit https://cis-india.org/internet-governance/news/why-india-snubbed-facebooks-free-internet-offer

Why experts are worried about Aadhaar-based authentication

praskrishna — 2016-08-07T02:16:29Z

As private companies are increasingly using Aadhaar data, is the privacy and security of personal data really at risk? What do those defending Aadhaar have to say?

The post was published in Citizen Matters on August 2, 2016. Amber Sinha was quoted.

The Unique Identification numbers of Aadhaar card holders are being extensively used by government and private agencies for authentication purposes, as we have already seen in an earlier article.

There are 246 registered Authentication User Agencies in India, both government and private, which are helping organisations and individuals in executing the authentication process. In simple terms, they help the organisation that has placed the authentication request, to confirm the identity of a person during hiring, lending loans or while implementing welfare schemes.

But all does not seem well with the Aadhaar authentication process. Concerns have been raised about the privacy and security aspects and, loopholes in the law.

The amended Aadhaar Bill (now, Aadhaar Act) has a clause that allows the UIDAI to respond to any authentication query “with a positive, negative or any other appropriate response.” This move has drawn a lot of criticism from the activist fraternity. They have questioned the government on framing an Act that places the security and privacy of individual citizens at risk.

Even before the Bill was passed, legal scholar Usha Ramanathan had, in an article published in Scroll.in, expressed concern over private agencies using the Aadhaar database for authenticating the identity of an individual.

“Very little was heard about the interest private companies would have in this information data base. It is not until the 2016 Bill was introduced in Lok Sabha that we were told, expressly, that just about any person or company may draw on the Aadhaar system for its purposes. There are no qualifications or limits on who may use it and why. It depends on the willingness of the Unique Identification Authority of India, which is undertaking the project, to let them become a part of the Aadhaar system,” she wrote.

What’s crucial in the entire process is how the government is allowing private players to use Aadhaar-based information, putting the privacy of Aadhaar-holders at stake. The government is technically allowed to share the Aadhaar information with other agencies, only if the holder has given consent to sharing his information, during enrollment.

The guidelines for recording Aadhaar demographic data states: “Ask resident’s consent to whether it is alright with the resident if the information captured is shared with other organisations for the purpose of welfare services including financial services. Select appropriate circle to capture residents response as - Yes/No.”

In 2011, Citizen Matters had published a report on how people wanting to register for Aadhaar were not asked if they would agree to share their personal information. Citizens seemingly were unaware of the provision for sharing information with a third party and data operators had reportedly not asked them for their consent before marking ‘yes’ for the consent option.

There remains a regulatory vacuum

In less than four months of the enactment of the Aadhaar Act, the number of private agencies using Aadhaar database for identity authentication too has grown long. Amber Sinha, Programme Officer at the Center for Internet and Society expresses concern over the privacy implications that a project of this magnitude would lead to.

“The original idea of Aadhaar was to use it for providing services under welfare schemes. But the Aadhaar Act lets private agencies avail the Aadhaar authentication service. The scope of the Act itself doesn’t envisage sharing the data with private parties, but if any third party wants to authenticate the identity of an individual, they can use the UIDAI repository for the purpose,” he points out.

In the process, Amber says, the CIDR has to send a reply in ‘yes’ or ‘no’ format, for any request seeking to confirm the identity of an individual. The new legislation gives scope for the authorities to respond to a query with a positive, negative or any other appropriate response.

“The Aadhaar enrollment information includes demographic and biometric details. So at this stage, we do not know what that “other appropriate response” stands for. Further, while there are requirements to take the data subject’s consent under the Act, there is lack of clarity on the oversight mechanisms and control mechanisms in place when a private party collects information for authentication. The UIDAI is yet to frame the rules and the rules will probably determine this. Until the rules are framed, some of the issues will exist in regulatory vacuum,” Amber observes.

Under the current circumstances, Amber says, the responsible thing to do for UIDAI is not to make such services available until the rules are framed.

But why has the Authority then started the authentication process even before the rules have been framed? Assistant Director General of the Authentication and Application Division of UIDAI, Ajai Chandra says the rules when framed will have retrospective effect, from the date the Act was enacted.

Activists have also questioned the UIDAI for allowing private agencies to use and authenticate Aadhaar data, when the Supreme Court has restricted the use of Aadhaar. In its last order dated 15 October 2015, the Apex Court allowed the government to use Aadhaar in implementing selective welfare schemes such as PDS, LPG distribution, MGNREGS, pension schemes, PMJDY and EPFO. It makes no mention about the UIDAI using the Aadhaar data repository to provide services to private agencies.

“When the Supreme Court has restricted the use of Aadhaar number to a few specific government programmes only, how can UIDAI allow the data to be used for any other programmes, let alone by private agencies?” Amber asks.

In a very brief conversation, Reena Saha, Additional DG, UIDAI told Citizen Matters that UIDAI was acting as per the Supreme Court’s order dated October 15th. “We aren’t sharing the data with private agencies,” she said.

‘Authentication happening only with consent’

Srikanth Nadhamuni, CEO of Khosla Labs - a registered Authentication User Agency, who was also the Head of Technologies at UIDAI, rejects the accusations on the security aspect, saying that the authentication system is completely secure and foolproof.

“We have made a secure system so that there is no man in the middle taking the biometric information. The biometric information shared on the application is encrypted and neither the AUA nor the Authentication Service Agency (an intermediary between the AUA and the CIDR) can open it. Both the AUA and ASA will sign on the packet and forward it to the data repository as it is. There is no way that we can figure out what is inside the packet. Once the request reaches the data repository, they will unlock the signatures, run the authentication and reply in ‘yes’ or ‘no’ or with an error code,” Srikanth explains.

ADG Chandra says that at present the CIDR is replying to authentication requests in an “yes/no” format. “We aren’t sharing the data with any agencies. Upon receiving the request for authentication, be it demographic, biometric or one time pin (OTP), a notification is sent to the registered mobile / email address of the Aadhaar holder,” he says. So if the Aadhaar holder has changed the address, phone number, email ID etc after Aadhaar enrollment, he/she should update the data with UIDAI by placing a request online or through post. This will avoid any confusion that may occur during the authentication.

Ajai Chandra further clarifies, “the private agencies seeking authentication (the Authentication User Agency) are not given direct access to the database. On receiving the request, the intermediary Authentication Service Agencies first examine the format of the authentication request. The request is forwarded to the CIDR only if it complies with the format.”

Apart from authentication, the eKYC (Know Your Customer) option also allows companies to retrieve eKYC data of the Aadhaar holder. This data includes photo, name, address, gender and date of birth (excludes mobile number and email ID). But in this case too, “eKYC data can be retrieved only with the consent of the Aadhaar card holder, the person has to be adequately informed about the retrieval and the data cannot be shared with a third party,” says Chandra.

Though Aadhaar Act allows the UIDAI to perform authentication of Aadhaar number, subject to the requesting entity paying the fee, UIDAI at present is providing the service free of cost. “We will provide free service till December 2016 and may levy the fee thereafter,” the ADG says.

For more details visit https://cis-india.org/internet-governance/news/bangalore-citizen-matters-august-2-2016-akshatha-why-experts-are-worried-about-aadhaar-based-authentication

Why Do We Need Open Access to Science?: A Developing Country Perspective

admin — 2008-10-11T09:45:01Z

Prof. Arunachalam's paper presented at the A2k3 conference in Geneva.

For more details visit https://cis-india.org/openness/blog-old/uploads/Subbiah%20Arunachalam%20-%20Why%20Do%20We%20Need%20Open%20Access%20to%20Science

Why Data Localisation Might Lead To Unchecked Surveillance

pranesh — 2018-10-16T14:08:34Z

In recent times, there has been a rash of policies and regulations that propose that the data that Indian entities handle be physically stored on servers in India, in some cases exclusively. In other cases, only a copy needs to be stored.

The article was published in Bloomberg Quint on October 15, 2018 and also mirrored in the Quint.

In April 2018, the Reserve Bank of India put out a circular requiring that all “data relating to payment systems operated by them are stored in a system only in India” within six months. Lesser requirements have been imposed on all Indian companies’ accounting data since 2014 (the back-up of the books of account and other books that are stored electronically must be stored in India, the broadcasting sector under the Foreign Direct Investment policy, must locally store subscriber information, and the telecom sector under the Unified Access licence, may not transfer their subscriber data outside India).

The draft e-commerce policy has a wide-ranging requirement of exclusive local storage for “community data collected by Internet of Things devices in public space” and “data generated by users in India from various sources including e-commerce platforms, social media, search engines, etc.”, as does the draft e-pharmacy regulations, which stipulate that “the data generated” by e-pharmacy portals be stored only locally.

While companies such as Airtel, Reliance, PhonePe (majority-owned by Walmart) and Alibaba, have spoken up in support the government’s data localisation efforts, others like Facebook, Amazon, Microsoft, and Mastercard have led the way in opposing it.

Just this week, two U.S. Senators wrote to the Prime Minister’s office arguing that the RBI’s data localisation regulations along with the proposals in the draft e-commerce and cloud computing policies are “key trade barriers”. In her dissenting note to the Srikrishna Committee's report, Rama Vedashree of the Data Security Council of India notes that, “mandating localisation may potentially become a trade barrier and the key markets for the industry could mandate similar barriers on data flow to India, which could disrupt the IT-BPM (information technology-business process management) industry.”

Justification For Data Localisation

What are the reasons for these moves towards data localisation?

Given the opacity of policymaking in India, many of the policies and regulations provide no justification at all. Even the ones that do, don’t provide cogent reasoning.

The RBI says it needs “unfettered supervisory access” and hence needs data to be stored in India. However, it fails to state why such unfettered access is not possible for data stored outside of India.

As long as an entity can be compelled by Indian laws to engage in local data storage, that same entity can also be compelled by that same law to provide access to their non-local data, which would be just as effective.

What if they don’t provide such access? Would they be blacklisted from operating in India, just as they would if they didn’t engage in local data storage? Is there any investigatory benefit to storing data in India? As any data forensic expert would note, chain of custody and data integrity are what are most important components of data handling in fraud investigation, and not physical access to hard drives. It would be difficult for the government to say that it will block all Google services if the company doesn’t provide all the data that Indian law enforcement agencies request from it. However, it would be facile for the RBI to bar Google Pay from operating in India if Google doesn’t provide it “unfettered supervisory access” to data.

The most exhaustive justification of data localisation in any official Indian policy document is that contained in the Srikrishna Committee’s report on data protection. The report argues that there are several benefits to data localisation:

Effective enforcement,
Avoiding reliance on undersea cables,
Avoiding foreign surveillance on data stored outside India,
Building an “Artificial Intelligence ecosystem”

Of these, the last three reasons are risible.

Not A Barrier To Surveillance

Requiring mirroring of personal data on Indian servers will not magically give rise to experts skilled in statistics, machine learning, or artificial intelligence, nor will it somehow lead to the development of the infrastructure needed for AI.

The United States and China are both global leaders in AI, yet no one would argue that China’s data localisation policies have helped it or that America’s lack of data localisation polices have hampered it.

On the question of foreign surveillance, data mirroring will not have any impact, since the Srikrishna Committee’s recommendation would not prevent companies from storing most personal data outside of India.

Even for “sensitive personal data” and for “critical personal data”, which may be required to be stored in India alone, such measures are unlikely to prevent agencies like the U.S. National Security Agency or the United Kingdom’s Government Communications Headquarters from being able to indulge in extraterritorial surveillance.

In 2013, slides from an NSA presentation that were leaked by Edward Snowden showed that the NSA’s “BOUNDLESSINFORMANT” programme collected 12.6 billion instances of telephony and Internet metadata (for instance, which websites you visited and who all you called) from India in just one month, making India one of the top 5 targets.

This shows that technically, surveillance in India is not a challenge for the NSA.

So, forcing data mirroring enhances Indian domestic intelligence agencies’ abilities to engage in surveillance, without doing much to diminish the abilities of skilled foreign intelligence agencies.

As I have noted in the past, the technological solution to reducing mass surveillance is to use decentralised and federated services with built-in encryption, using open standards and open source software.

Reducing reliance on undersea cables is, just like reducing foreign surveillance on Indians’ data, a laudable goal. However, a mandate of mirroring personal data in India, which is what the draft Data Protection Bill proposes for all non-sensitive personal data, will not help. Data will stay within India if the processing happens within India. However, if the processing happens outside of India, as is often the case, then undersea cables will still need to be relied upon.

The better way to keep data within India is to incentivise the creation of data centres and working towards reducing the cost of internet interconnection by encouraging more peering among Internet connectivity providers.

While data mirroring will not help in improving the enforcement of any data protection or privacy law, it will aid Indian law enforcement agencies in gaining easier access to personal data.

The MLAT Route

Currently, many forms of law enforcement agency requests for data have to go through onerous channels called ‘mutual legal assistance treaties’. These MLAT requests take time and are ill-suited to the needs of modern criminal investigations. However, the U.S., recognising this, passed a law called the CLOUD Act in March 2018. While the CLOUD Act compels companies like Google and Amazon, which have data stored in Indian data centres, to provide that data upon receiving legal requests from U.S. law enforcement agencies, it also enables easier access to foreign law enforcement agencies to data stored in the U.S. as long as they fulfill certain procedural and rule-of-law checks.

While the Srikrishna Committee does acknowledge the CLOUD Act in a footnote, it doesn’t analyse its impact, doesn’t provide suggestions on how India can do this, and only outlines the negative consequences of MLATs.

Further, it is inconceivable that the millions of foreign services that Indians access and provide their personal data to will suddenly find a data centre in India and will start keeping such personal data in India. Instead, a much likelier outcome, one which the Srikrishna Committee doesn’t even examine, is that many smaller web services may find such requirements too onerous and opt to block users from India, similar to the way that Indiatimes and the Los Angeles Times opted to block all readers from the European Union due to the coming into force of the new data protection law.

The government could be spending its political will on finding solutions to the law enforcement agency data access question, and negotiating solutions at the international level, especially with the U.S. government. However it is not doing so.

Given this, the recent spate of data localisation policies and regulation can only be seen as part of an attempt to increase the scope and ease of the Indian government’s surveillance activities, while India’s privacy laws still remain very weak and offer inadequate legal protection against privacy-violating surveillance. Because of this, we should be wary of such requirements, as well as of the companies that are vocal in embracing data localisation.

For more details visit https://cis-india.org/internet-governance/blog/bloomberg-quint-pranesh-prakash-october-15-2018-why-data-localisation-might-lead-to-unchecked-surveillance

Why aren’t Indians using Wikipedia to hold the government to account?

praskrishna — 2016-02-14T11:07:49Z

Despite its popularity, the site's benefits are going unutilised.

Madhav Gadgil's post was published by Scroll.in on February 6, 2016. CIS work was quoted.

Thanks to modern science and technology, the treasury of human material as well as intellectual and cultural wealth is overflowing. Enormous quantities of information are exchanged today at lightning speed, and incredible numbers of people separated by great distances are in constant touch with one another. Two contrasts characterise this world: on the one hand, disparities are growing in material wealth, and on the other, there is growing equality in access to informational and cultural resources.

The inequities in material wealth has accelerated the rate of degradation of the natural world, but at the same time progressive laws flowing from equality in intellectual wealth are helping people combat the degradation. This is one reason why, as much as ever, a well-informed citizenry is the lifeblood of social progress. Ensuring that citizens have ready access to reliable information is the prime responsibility of all of us, including obviously of our governments.

Wayward rulers

Regrettably, the government machinery is failing to discharge its responsibility.

Consider, for instance, Maharashtra’s irrigation scam, in which thousands of crores were siphoned off or wasted on dud irrigation projects. The statistics provided at various times by the state’s agriculture and irrigation departments are inconsistent. It is probable that none of them reflect the ground reality. Most rivers in Maharashtra are polluted well beyond legally permissible levels, yet the Maharashtra Pollution Control Board hardly acknowledges this sorry state of affairs. Such pollution often results in mass deaths of fish, but neither the fisheries department nor the Pollution Control Board maintains reliable records.

Or consider these two examples. After the people of Kerala succeeded in moving the government machinery, a committee of the legislature reported that 90% of the stone crushers in the state were operating without permission from local panchayats or without registering with district collectors. Another time, when the Central government-appointed Western Ghats Ecology Expert Panel revealed similar irregularities with solid evidence, the Centre first suppressed its report and then, pushed by a Delhi High Court order, made only an English version available. To top it all, the Maharashtra government uploaded on its website a Marathi summary full of distortions.

Clearly then, with the government machinery failing, people must work on their own to bring to light the true state of affairs. Fortunately, our media provides a good deal of reliable information on issues of public interest. For instance, it was newspaper reports that forced the Goa Forest Department to accept the presence of tigers in the state. It is again the media that often records large-scale fish deaths in our rivers.

Such information gets recorded on social media too, but this remains scattered, barring systematic efforts like as the one launched by the Hyderabad-based “Save Our Urban Lakes” coalition. Besides, much of the material on social media like Facebook is often self-centred and prejudiced, making it difficult to ascertain the veracity. On the other hand, newspapers and TV channels are continually exposed to sceptical public scrutiny, ensuring that, by and large, they deliver reliable information.

On balance then, people at large can wean genuine, reliable information only by carefully collating it from newspapers and TV channels, official documents and scientific studies and systematically organising it through some responsible social media.

Starting a discussion

Wikipedia is just such a reliable social medium. It is an entirely voluntary, cooperative, web-based enterprise aimed at freely and readily delivering all the knowledge in the world to all the citizens of the world in their own languages. The platform started off in 2000 with a call to experts to contribute articles on the pattern of Encyclopaedia Britannica, but without any remuneration. When experts showed little interested, Wikipedia was thrown open to citizens in 2001, converting it into an anyone-can-edit enterprise. After all, experts too acquire much of their knowledge reading what others have written.

Wikipedia operates on the understanding that laypeople may make mistakes, but these can be eliminated by ensuring open scrutiny and giving full scope for additions, deletions and corrections. That this system has resulted in material of a quality on a par with expert-written encyclopaedias has been established by studies by respected scientific journals. Moreover, not being constrained by the page limits of a printed encyclopaedia, it has generated greater amount of material with a broader scope.

All this has been achieved due to the dedication of 50,000-odd voluntary editors improving existing and writing new articles. This community of editors follow a set of conventions arrived at over the years through consensus. It has been decided that Wikipedia will not include material based on original observations, but instead verifiable information compiled from published studies or reports. Wikipedia believes in a “neutral point of view” presenting the different perspectives, provided these are supported by good evidence. Besides reliability, Wikipedia articles aim for speed (Wiki means quick). For instance, the article on the December 2004 tsunami was composed in two days through contributions of some 1,000 editors largely relying on newspaper and TV reports.

Every Wikipedia article is accompanied by a “discussion” page, on which a variety of issues can be explored without the strict constraints of neutrality and verifiability. This is in addition to the “discussion” page accompanying the “User” page that automatically gets assigned to anyone who registers on the website as a user. On all these debating platforms the site imposes only one major discipline – that they will not be used for self-promotion or abusing others.

Because of these noteworthy conventions, the information on Wikipedia has acquired a special significance. For instance, in Europe and the United States, it has served to subject the performance of political leaders to careful scrutiny. Biographical articles on leaders often include documentation of the promises made before election and the extent to which these were fulfilled. In the past, whenever agents of these leaders tried to delete unfavourable content, they were caught out quickly because Wikipedia preserves all versions of any article, including a record of the IP address of the computer employed to make changes.

The grassroots

Since Wikipedia is unconstrained by governmental control and cannot be subjected to commercial pressures because of its donation-based ad-free model, it is an outstanding medium to document what is happening on the ground. This information can be accumulated through incremental, asynchronous micro-contributions. In India, it presents an excellent instrument for common citizens to document their experiences and issues of concern on the English and the 21 Indian language editions.

The articles could deal with specific geographical localities such as cities (e.g. Pune), wards in a city (e.g. Kothrud in Pune), villages (e.g. Warkhand in Pedne taluka of Goa), talukas (e.g. Dodoamarg in Maharashtra), districts (e.g. Kolhapur or North Goa), rivers (e.g. Panchaganga, Mula-Mutha, Zuari). All we need is some official information source to initiate such articles. The 2011 Census of India is one such excellent database. Every census locality in this database is assigned a unique Census Location Code.

To explain with an example: each of the many villages named Loni, Wadgaon or Mendha in Maharashtra has a different Census Location Code. Similarly, there is a district and a city in Madhya Pradesh as also a town and a taluka in Karnataka, all sharing the name Sagar. Again, these are assigned four different Census Location Codes. This facility permits us to refer unambiguously to any geographical locality at various spatial scales such as district, taluka or city or village. In addition, on their Wikipedia entries, one could readily add the latitude, longitude and altitude off Google Earth.

As it happens, there exists a code – developed by Prashant Pawar – to automatically generate base articles on census localities. Three such Marathi articles, on villages Haladi (Karavir), Rukadi (Hatkangale) and Parite in the Panchaganga basin of Kolhapur district, have been uploaded on the Marathi Wikipedia.

No less than 40,000 such articles were automatically uploaded on the English Wikipedia around 2003-’04 and were then quickly developed further by other interested citizens. However, that was not the norm. While Bollywood celebrates Wikipedia with Shah Rukh Khan singing Mere bareme Wikipediape padh lo, Indians participate little in editing or creating new Wikipedia articles. For instance, an article on the Pune Bus Rapid Transit System on the English Wikipedia is merely based on an official pamphlet. It ignores the vigorous discussion on the subject, including the many news reports in the past several years. The discussion page accompanying the article is almost blank. Surely, the more aware citizens of Pune could put the powerful medium to good use to provide a more detailed and balanced account of their city’s Rapid Transit System.

Bonding across languages

We could, of course, follow the American pattern of automatically generating articles on all Indian localities covered in the 2011 Census. But Wikipedia is not just an encyclopaedia – it is a community, and in the absence of awareness about the enterprise, this approach might not be fruitful. The communal effort was visible when the residents of Haladi in Maharashtra initiated a base article on their locality.

Besides creating base articles, interested citizens can upload photographs, audio and video clips on Wikimedia Commons under a Creative Commons license, permitting anybody to freely use or modify the material after giving due credit to the original creator. Aside from this, citizens can also augment information on issues of their concern through Right to Information queries or enquiries from forums like zilla parishads, municipalities, state legislatures or the Parliament. The Centre for Internet and Society has developed excellent resource material to support citizens taking up Wikipedia-related activities. A group of volunteers led by Subodh Kulkarni is also promoting this participation, as is Goa University.

Much could be accomplished if Indians become active participants on Wikipedia. People could use their articles and their discussion pages to draw the attention of journalists or scholars to their concerns. For instance, people in the command area of a dam could call attention to the fact that no canals have been constructed to bring water to them. A journalist could then investigate the issue and develop a news story, which in turn could provide a verifiable reference for a Wikipedia article. Such interaction could constitute an effective and transparent social audit. One can visualise an array of topics for a social audit, ranging from the status of wage payments in rural employment guarantee works, pending forest rights claims, encroachment of real estate on river beds, privatisation of public beaches, and availability of public toilets for women.

The newly emerging facility of Wikidata can strengthen this social audit. Wikidata permits integration of data not only from English but from multiple languages, such as Hindi, Marathi, Malayalam and Kannada. For instance, sacred groves – forest fragments that are communally protected – constitute a traditional conservation practice not only in India, but also in Bhutan, Myanmar and even Nigeria. This tradition is still relevant – indeed, new sacred groves have recently been constituted in villages granted Community Forest Rights such as Pachgaon in Chandrapur district of Maharashtra.

Using Wikidata and keywords such as Devari (Marathi), Devpan (Konkani), Nagarbana or Devarakadu (Kannada), Sarpakavu (Malayalam), Oran (Hindi), one can quickly compile quantitative information on this practice, helping bring together people from across the country. Similarly, using keywords in different languages for a phenomenon such as mass fish mortalities, one may compile systematic information on this phenomenon that Pollution Control Boards deliberately ignore.

Of course, the objective of the Wikipedia enterprise is to compile objective, verifiable information from a neutral point of view and the Wikipedia community will not be involved in any activism. Nevertheless, such an exercise of putting together information could serve a useful function of organising a social audit. This could help, say, scattered members of fishing communities that are adversely affected by pollution-related fish mortalities to organise themselves.

Democratic approach

This is a golden age for those fascinated by knowledge. And Wikipedia is a triumphant manifestation of the age, a progressive enterprise of good-faith collaboration with the noble objective of making all knowledge available to people all over the world. The English Wikipedia has taken giant strides towards such a goal. The key to this success of science has been the rejection of all authority other than empirical facts and logical inferences, and its aim is to engage all those interested in knowledge regardless of their social, economic or educational background. It is this democratic approach that has facilitated the rapid accumulation of knowledge. Yet there are continual attempts by so-called experts to monopolise knowledge.

It is the duty of true lovers of knowledge to resist such attempts. Knowledge has a vast canvas. Our environment, our social settings are legitimate subject matters of knowledge and every citizen can be involved in nurturing it. Wikipedia is an important step in the direction of bringing on board all citizens in the pursuit of knowledge. The ability of the Wikidata facility to bring together knowledge scattered in multiple Indian languages is one manifestation of this progressive development. All of us Indians should join hands in developing a reliable understanding of the nature around us and of our society, polity and economy. This enterprise of taking Wikipedia to the grassroots would be a worthy contribution to the cause of nation building.

For more details visit https://cis-india.org/a2k/news/scroll.in-february-6-2016-madhav-gadgil-why-arent-indians-using-wikipedia-to-hold-the-government-to-account

Whose Change is it Anyway?

praskrishna — 2013-07-02T15:41:46Z

For more details visit https://cis-india.org/digital-natives/blog/whose-change-is-it-anyway.pdf

Who Minds the Maxwell's Demon (Revisiting Communication Networks through the Lens of the Intermediary)

sharath — 2013-03-05T07:37:37Z

A holistic reflection on information networks and it’s regulatory framework is possible only when the medium-specific boundary that has often separated the Internet and Telecom networks begins to dissolve, to objectively reveal points of contention in the communication network where the dynamics of network security and privacy are at large – namely, within the historic role of the intermediary at data/signal switching and routing nodes.

It is unfair to contextualize the history of the Internet without looking at how analog information networks like cable and wireless telegraph and later, the telephone, almost coincidentally necessitated the invention of automated networks for remote machine control and peer-to- peer communication over the Internet that promised to drastically reduce intermediary overheads. While the whole world was fraught in patent wars over wired private networks, the first nodes of the ‘open’ internet were built in a two-week global meeting of computer scientists who were flown down to simply prepare for ‘a public exhibition’ of the ARPANET in 1971.

While India only received it’s first telephone in New Delhi late into the 20^th century, “Telegraph Laws” to most of the Indian working class always remained an ominously urgent telegram that brought the news of a dear one who had taken seriously ill. And so, on a lateral note, it is apt to bring to light the life of one Mr Almond Brown Strowger, wherein the idea of an automatic telephone exchange was given birth to by the ‘business of death’.

The Automatic Telephone Exchange

Almond Strowger was an undertaker based in Missouri, in a town where there was yet another undertaker, who’s wife incidentally was an operator in the then manual telephone exchange. Strowger came to believe the reason he received fewer phone calls was that his business competitor’s wife ended up preferentially routing all callers seeking Strowger’s funeral services to her undertaker husband instead. Strowger conceived the initial idea in 1888 and patented ‘The Automatic Telephone Exchange’ in 1891. http://goo.gl/oieIJ

Popularly known as the ‘Strowger Switch’, the Step-by Step switch (SXS switch) consisted of two interfaces – One at the customer’s end that used telegraph keys (and later a rotary dial) to send a train of electric current pulses corresponding to the digits 0 -9 all the way to the exchange. The actual Strowger switch at the exchange, used an electromechanical device that could move vertically to select one of 10 contacts, and then rotated to select one of another 10 in each row – a total of 100 choices. Consequently was formed in 1892, the Strowger Automatic Telephone Exchange Company at Indiana with about 75 subscribers. Strowger later sold his patents for $10,000 in 1898 to the Automatic Electric Company, a competitor of Bell System’s Western Electric. His patents were eventually acquired by Bell systems for $2.5 million in 1916, showing just how much growth and investor interest the telephone industry had gained by then.

Switching Paradigms

The architecture of global communication was headed towards different ideals and directions. Most media historians contrast these methodologies into ‘circuit switching’ and ‘packet switching’, or a connection-oriented fault intolerant system on one hand and another connection-less fault tolerant protocol respectively, both of which were being developed concurrently. In reality however, a major driving factor were the stakeholders backing the infrastructure of the rapidly growing communication industry, who were looking for growing returns on their investments. And hence these parallel ramifications may also be looked at through the lens of closed proprietary and medium specific networks versus an open, shared, medium in-specific paradigm of information theory.

Circuit switching relied on an assured dedicated connection between 2 nodes, and was especially patronized by the industry that saw telecommunication as the latest fad in urban luxury (a key factor in the distinction of suburban areas as the affluent moved into urban areas that were ‘connected’ by telephone). Owners and manufacturers of the hardware infrastructure became the most significant stakeholders. The revenue model was based on the amount of time the network was used and hence was popular in analog voice telephone networks. The entire bandwidth of the channel was made available for the duration of the session along with a fixed delay between communicating nodes. Therefore, even if there was no information being transmitted during a session, the channel would not be made available to anyone else waiting to use it unless released by the previous party. Early telephone exchanges relied on manual labour to facilitate switching until the automated exchange came about.

Packet switching on the other hand, leaned towards the paradigm of shared bandwidth and resources, and more importantly approached communication with complete disregard to the medium of transmission, be it wired or wireless. Furthermore, it also disregarded the content, modality and form of communication with an objectified data-centric approach. Information to be transmitted was divided into structured “packets” or “capsules”. These packets were all ‘thrown’ into the shared network pool consisting of numerous other such packets, each with its own destination, to be carefully buffered, stored and forwarded by intermediary routers in the network. Apart from occasional packet loss, the time taken to send a message is indeterminate and is dependent on the overall traffic load on the network at any given time.

INTERFACE MESSAGE PROCESSOR and the ICCC ‘Hackathon’

Plans forged on into the early 1960s towards the development of an open architecture to enable network communication between computer systems, culminating in the invention of the ‘interface message processor’ that promised to herald the coming of an era of packet switching by enabling the ARPANET (Advanced Research Projects Agency Network), the first wide area packet switched network – and precursor to the world wide web as we know it today.

While the Information Processing Techniques Office (IPTO) had previously contracted Larry Roberts who in 1965 developed the first packet switched network between two computers , the TX-2 at MIT with a Q-32 in California, a growing need was felt to have a centralized terminal with access to multiple sites that would enable any computer to connect to any site. The first IMP was commissioned to be built by the engineering firm BBN (Bolt, Beranek and Newman, a professor student trio from MIT).

(The very first Interface Message Processor by BBN: Courtesy: http://goo.gl/tvo8n)

By 1971, the four original nodes that connected the ARPANET (viz, UCLA, Stanford Research Institute, University of Utah and University of California at Santa Barbara) had expanded to 15 nodes, but the lack of a common host protocol meant that a full-scale implementation and adoption of the ARPANET was far from complete. The time had come to allow the public to engage with the promising future that the Internet held. What entailed was the organization of first public International Conference on Computer Communication (1972) (http://goo.gl/PFhtL) under the umbrella of the IEEE Computer Society at the Hilton Hotel, Washington D.C. In many ways the event was the original version of a modern day new media art ‘hackathon’ and involved about 50 computer scientists who were flown in from around the globe alongside the likes of Vint Cerf and Bob Metcalfe. The deadline of a public demonstration provided the much-needed impetus to drive the network to functional completion. Exhibits included a variety of networked applications like the famed dialogue between the ‘paranoid patient’ chatbot PARRY and doctor ELIZA, motion control of the LOGO ‘Turtle’ across the network and remote access of digital files that were printed on paper locally. A milestone in distributed packet switching had been achieved and the stage had been set to compete with the archaic paradigm of circuit switched networks, even as delegates from AT&T (incidentally one of the funders of the event) watched on with the hope that the demonstration would run into a fatal glitch.

Who Minds the Maxwell's Demon

It may not be boldly evident from the vast corpus of policy research surrounding the regulation of communication networks (be it the issues of network security, privacy, anonymity, surveillance or billing systems) that key-points in the control system where dynamics play at large, are at the interfacing nodes and data/signal switches at either transceiver nodes as well as intermediary nodes. This is further underlined by the historical fact that the invention of the automatic telephone exchange was fuelled by the necessity to ensure a paradigm of unbiased circuit switching within the context of a networked business.

Just a glimpse at the number of patents that directly or indirectly refer to the Automatic Telephone Exchange patent shall bring to light myriad applications that range from “Linking of Personal Information Management Data”, “Universal Data Aggregation”, “Flexible Billing Architecture”, ”Multiple Data Store Authentication” , “Managing User to User Contact using Inferred Presence Detection” to various paradigms surrounding distributed systems for cache defeat detection, most of which are part of PUSH technology services that manage networked smartphone applications from instant messaging to email access. Other proposed systems for spectrum management and dynamic bandwidth allocation, such as policy alternatives to spectrum auction that entail frequency hopping at the transmitter level shall invariably depend on a centralized automated intermediary who shall in theory have transparent access to data flow. The role of routing intermediaries with specialized access, poses many interesting questions with regards to policy issues that surround network privacy and security.

This brings us back to the seemingly comical reference that this article makes to a mysterious entity named the ‘Maxwell’s Demon’. A thought experiment proposed by James Clerk Maxwell, involved a chamber of gas molecules at equilibrium that was divided into two halves along with a ‘door’ controlled by the “Maxwell’s Demon”. The demon had the ability to ‘open’ the door to allow faster than average molecules to enter one side of the chamber while slower molecules ended up on the other side of the chamber, causing the former side to heat up while the other side gradually cooled down, thereby establishing a temperature difference without doing any work, and thus violating the 2^nd Law of Thermodynamics. The parallel drawn in this article between networked switching intermediaries and the Maxwell’s demon does not go beyond this simple functional similarity.

However for the ambitious reader, it maybe interesting to note that ever since the invention of digital computers, scientists have actively pursued the paradox of Maxwell’s demon to revisit physical fundamentals governing information theory and information processing, which has involved analyzing the thermodynamic costs of elementary information manipulation in digital circuits – A study that probably constantly engages Google as they pump water through steel tubes to cool their million servers.

We shall save all this for another day, but on yet another related note, everytime say an email sent to an invalid address bounces back to your inbox as a “Mailer Daemon”, let it be known that the “Daemon” in Operating System terminology that refers to an invisible background process that the user has no control over, infact directly owes it’s etymology to the paradox of ‘Maxwell’s Demon’.

For more details visit https://cis-india.org/telecom/blog/who-minds-the-maxwells-demon

Who Governs the Internet? Implications for Freedom and National Security

sunil — 2014-04-05T16:23:36Z

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

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

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

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

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

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

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

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

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

The Opportunity for India

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

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

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

What is the scope of Internet Governance?

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

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

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

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

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

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

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

So who really governs the Internet?

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

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

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

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

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

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

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

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

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

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

White Paper on RTI and Privacy V1.2

vipul — 2014-11-09T02:53:51Z

This white paper explores the relationship between privacy and transparency in the context of the right to information in India. Analysing pertinent case law and legislation - the paper highlights how the courts and the law in India address questions of transparency vs. privacy.

Introduction

Although the right to information is not specifically spelt out in the Constitution of India, 1950, it has been read into Articles 14 (right to equality), 19(1)(a) (freedom of speech and expression) and 21 (right to life) through cases such as Bennet Coleman v. Union of India,[1] Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd.,[2] etc. The same Articles of the Constitution were also interpreted in Kharak Singh v.State of U.P.,[3] Govind v. State of M.P., [4] and a number of other cases, to include within their scope a right to privacy. At the very outset it appears that a right to receive information -though achieving greater transparency in public life - could impinge on the right to privacy of certain people. The presumed tension between the right to privacy and the right to information has been widely recognized and a framework towards balancing the two rights, has been widely discussed across jurisdictions. In India, nowhere is this conflict and the attempt to balance it more evident than under the Right to Information Act, 2005 (the "RTI Act").

Supporting the constitutional right to information enjoyed by the citizens, is the statutorily recognized right to information granted under the RTI Act. Any potential infringement of the right to privacy by the provisions of the RTI Act are sought to be balanced by section 8 which provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual. This exception states that there is no obligation to disclose information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the larger public interest justifies the disclosure of such information. [5] The Act further goes on to say that where any information relating to or supplied by a third party and treated by that party as confidential, is to be disclosed, the Central Public Information Officer or State Public Information Officer has to give written notice to that party within five days of receiving such a request inviting such third party (within ten days) to make its case as to whether such information should or should not be disclosed.[6]

A plain reading of section 11 suggests that for the section to apply the following three conditions have to be satisfied, i.e. (i) if the PIO is considering disclosing the information (ii) the information relates to the third party or was given to a Public Authority by the third party in confidence; and (iii) the third party treated the information to be a confidential. It has been held that in order to satisfy the third part of the test stated above, the third party has to be consulted and therefore a notice has to be sent to the third party. Even if the third party claims confidentiality, the proviso to the section provides that the information cannot be withheld if the public interest in the disclosure outweighs the possible harm or injury that may be caused to the third party, except in cases of trade or commercial secrets.[7] The Courts have also held that section 11 should be read keeping in mind the exceptions contained in section 8 (discussed in detail later) and the exceptions contained therein. [8]

This principle of non disclosure of private information can be found across a number of common law jurisdictions. The United Kingdom's Freedom of Information Act, 2000 exempts the disclosure of information where it would violate the data protection principles contained in the Data Protection Act, 1998 or constitute an actionable breach of confidence.[9] The Australian Freedom of Information Act, 1982 categorizes documents involving unreasonable disclosure of personal information as conditionally exempt i.e. allows for their disclosure unless such disclosure would be contrary to public interest.[10] The Canadian Access to Information Act also has a provision which allows the authorities to refuse to disclose personal information except in accordance with the provisions of the Canadian Privacy Act. [11]

An overview of the RTI Act, especially sections 6 to 8 seems to give the impression that the legislature has tried to balance and harmonize conflicting public and private rights and interests by building sufficient safeguards and exceptions to the general principles of disclosure under the Act. [12] This is why it is generally suggested that section 8, when applied, should be given a strict interpretation as it is a fetter on not only a statutory right granted under the RTI Act but also a pre-existing constitutional right. [13] Logical as this argument may seem and appropriate in some circumstances, it does present a problem when dealing with the privacy exception contained in section 8(1)(j). That is because the right to privacy envisaged in this section is also a pre-existing constitutional right which has been traced to the same provisions of the Constitution from which the constitutional right of freedom of information emanates.[14] Therefore there is an ambiguity regarding the treatment and priority given to the privacy exception vs. the disclosure mandate in the RTI Act, as it requires the balancing of not only two competing statutory rights but also two constitutional rights.

The Privacy Exception

As discussed earlier, the purpose of the RTI Act is to increase transparency and ensure that people have access to as much public information as possible. Such a right is critical in a democratic country as it allows for accountability of the State and allows individuals to seek out information and make informed decisions. However, it seems from the language of the RTI Act that at the time of its drafting the legislature did realize that there would be a conflict between the endeavor to provide information and the right to privacy of individuals over the information kept with public authorities, which is why a privacy exception was carved into section 8(1)(j) of the Right to Information Act. The Act does not only protect the privacy of the third party who's information is at risk of being disclosed, but also the privacy of the applicant. In fact it has now been held that a private respondent need not give his/her ID or address as long as the information provided by him/her is sufficient to contact him/her.[15]

It is interesting to note that although the RTI Act gives every citizen a right to information, it does not limit this right with a stipulation as to how the information shall be used by the applicant or the reason for which the applicant wants such information. [16] This lack of a purpose limitation in the Act may have privacy implications as non sensitive personal information could be sought from different sources and processed by any person so as to convert such non-sensitive or anonymous information into identifiable information which could directly impact the privacy of individuals.

The exception in S. 8(1)(j) prohibits the disclosure of personal information for two reasons (i) its disclosure does not relate to any public activity or interest or (ii) it would be an unwarranted invasion into privacy. The above two conditions however get trumped if a larger public interest is satisfied by the disclosure of such information.

One interesting thing about the exception contained in section 8(1)(j) is that this exception itself has an exception to it in the form of a proviso. The proviso says that any information which cannot be denied to the central or state legislature shall not be denied to any person. Since the proviso has been placed at the end of sub-section 8(1) which is also the end of clause 8(1)(j), one might be tempted to ask whether this proviso applies only to the privacy exception i.e. clause 8(1)(j) or to the entire sub-section 8(1) (which includes other exceptions such as national interest, etc.). This issue was put to rest by the Bombay High Court when it held that since the proviso has been put only after clause 8(1)(j) and not before each and every clause, it would not apply to the entire sub-section 8(1) but only to clause 8(1)(j), thus ensuring that the exceptions to disclosure other than the right to privacy are not restricted by this proviso.[17]

Scope of Proviso to section 8(1)(j)
Though the courts have agreed that the proviso is applicable only to section 8(1)(j), the import of the proviso to section 8(1)(j) is a little more ambiguous and there are conflicting decisions by different High Courts on this point. Whereas the Bombay High Court has laid emphasis on the letter of the proviso and derived strength from the objects and overall scheme of the Act to water down the provisions of section 8(1)(j), [18] the Delhi High Court has disagreed with such an approach which gives "undue, even overwhelming deference" to Parliamentary privilege in seeking information. Such an approach would render the protection under section 8(1)j) meaningless, and the basic safeguard bereft of content.[19] In the words of the Delhi High Court:

" The proviso has to be only as confined to what it enacts, to the class of information that Parliament can ordinarily seek; if it were held that all information relating to all public servants, even private information, can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court. "

The interpretation given by the Delhi High Court thus ensures that section 8(1)(j) still has some effect, as otherwise the privacy exception would have gotten steamrolled by parliamentary privilege and all sorts of information such as Income Tax Returns, etc. of both private and public individuals would have been liable to disclosure under the RTI Act.

Unfortunately, the RTI Act does not describe the terms "personal information" or "larger public interest" used in section 8(1)(j), which leaves some amount of ambiguity in interpreting the privacy exception to the RTI Act. Therefore the only option for anyone to understand these terms in greater depth is to discuss and analyse the case laws developed by the Hon'ble Supreme Court and the High Courts which have tried to throw some light on this issue.

We shall discuss some of these landmark judgments to understand the interpretations given to these terms and then move on to specific instances where (applying these principles) information has been disclosed or denied.

Personal Information
The RTI Act defines the term information but does not define the term "personal information". Therefore one has to rely on judicial pronouncements to understand the term a more clearly. Looking at the common understanding and dictionary meaning of "personal" as well as the definition of "information" contained in the RTI Act it could be said that personal information would be information, information that pertains to a person and as such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest. At the same time, such personal information may, or may not, be private to the person. [20]

The Delhi High Court has tried to draw a distinction between the term "private information" which encompasses the personal intimacies of the home, the family, marriage, motherhood, procreation, child rearing and of the like nature and "personal information" which would be any information that pertains to an individual. This would logically imply that all private information would be part of personal information but not the other way round. [21] The term 'personal information' has in other cases, been variously described as "identity particulars of public servants, i.e. details such as their dates of birth, personal identification numbers",[22] and as including tax returns, medical records etc.[23] It is worth noting that just because the term used is "personal information" does not mean that the information always has to relate to an actual person, but may even be a juristic entity such as a trust or corporation, etc.[24]

Larger Public Interest
The term larger public interest has not been discussed or defined in the RTI Act, however the Courts have developed some tests to determine if in a given situation, personal information should be disclosed in the larger public interest.

Whenever a Public Information Officer is asked for personal information about any person, it has to balance the competing claims of the privacy of the third party on the one hand and claim of public interest on the other and determine whether the public interest in such a disclosure satisfies violating a person's privacy. The expression "public interest" is not capable of a precise definition and does not have a rigid meaning. It is therefore an elastic term and takes its colors from the statute in which it occurs, the concept varying with the time and the state of the society and its needs. This seems to be the reason why the legislature and even the Courts have shied away from a precise definition of "public interest". However, the term public interest does not mean something that is merely interesting or satisfies the curiosity or love of information or amusement; but something in which a class of the community have some interest by which their rights or liabilities are affected.[25]

There have been suggestions that the use of the word "larger" before the term "public interest" denotes that the public interest involved should serve a large section of the society and not just a small section of it, i.e. if the information has a bearing on the economy, the moral values in the society; the environment; national safety, or the like, the same would qualify as "larger public interest".[26] However this is not a very well supported theory and the usage of the term "larger public interest" cannot be given such a narrow meaning, for example what if the disclosure of the information could save the lives of only 10 people or even just 5 children? Would the information not be released just because it violates one person's right to privacy and there is not a significant number of lives at stake? This does not seem to be what all the cases on the right to privacy, right from Kharak Singh[27] all the way to Naz Foundation, [28] seem to suggest. Infact, in the very same judgment where the above interpretation has been suggested, the Court undermines this argument by giving the example of a person with a previous crime of sexual assault being employed in an orphanage and says that the interest of the small group of children in the orphanage would outweigh the privacy concerns of the individual thus requiring disclosure of all information regarding the employee's past.

In light of the above understanding of section 8(1)(j), there seem to be two different tests that have been proposed by the Courts, which seem to connote the same principle although in different words:

1. The test laid down by Union Public Service Commission v. R.K. Jain:

(i) The information sought must relate to „Personal information‟ as understood above of a third party. Therefore, if the information sought does not qualify as personal information, the exemption would not apply;

(ii) Such personal information should relate to a third person, i.e., a person other than the information seeker or the public authority; AND

(iii) (a) The information sought should not have a relation to any public activity qua such third person, or to public interest. If the information sought relates to public activity of the third party, i.e. to his activities falling within the public domain, the exemption would not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (b) The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure. [29]

2. The other test was laid down in Vijay Prakash v. Union of India, but in the specific circumstances of disclosure of personal information relating to a public official:

(i) whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization;

(ii) whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case; and

(iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources. [30]

Constitutional Restrictions
Since there is not extensive academic discussion on the meaning of the term "larger public interest" or "public interest" as provided in section 8(1)(j), one is forced to turn to other sources to get a better idea of these terms. One such source is constitutional law, since the right to privacy, as contained in section 8(1)(j) has its origins in Articles 14,[31] 19(1)(a) [32] and 21[33] of the Constitution of India. The constitutional right to privacy in India is also not an absolute right and various cases have carved out a number of exceptions to privacy, a perusal of which may give some indication as to what may be considered as 'larger public interest', these restrictions are:

a) Reasonable restrictions can be imposed on the right to privacy in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; ^{^[34]}

b) Reasonable restrictions can be imposed upon the right to privacy either in the interests of the general public or for the protection of the interests of any Scheduled Tribe;^{^[35]}

c) The right to privacy can be restricted by procedure established by law which procedure would have to satisfy the test laid down in the Maneka Gandhi case.^{^[36]}

d) The right can be restricted if there is an important countervailing interest which is superior; ^{^[37]}

e) It can be restricted if there is a compelling state interest to be served by doing so; ^{^[38]}

f) It can be restricted in case there is a compelling public interest to be served by doing so; ^{^[39]}

g) The Rajagopal tests - This case lays down three exceptions to the rule that a person's private information cannot be published, viz. i) person voluntarily thrusts himself into controversy or voluntarily raises or invites a controversy, ii) if publication is based on public records other than for sexual assault, kidnap and abduction, iii) there is no right to privacy for public officials with respect to their acts and conduct relevant to the discharge of their official duties. It must be noted that although the Court talks about public records, it does not use the term 'public domain' and thus it is possible that even if a document has been leaked in the public domain and is freely available, if it is not a matter of public record, the right to privacy can still be claimed in regard to it.^{^[40]}

Section 8(1)(j) in Practice

The discussion in the previous chapter regarding the interpretation of section 8(1)(j), though (hopefully) helpful still seems a little abstract without specific instances and illustrations to drive home the point. In this chapter we shall endeavor to briefly discuss some specific cases regarding information disclosure where the issue of violation of privacy of a third party was raised.

Private Information of Public Officials
Some of the most common problems regarding section 8(1)(j) come up when discussing information (personal or otherwise) regarding public officers. The issue comes up because an argument can be made that certain information such as income tax details, financial details, medical records, etc. of public officials should be disclosed since it has a bearing on their public activities and disclosure of such information in case of crooked officers would serve the interests of transparency and cleaner government (hence serving a larger public interest). Although section 8(1)(j) does not make any distinction between a private person and a public servant, a distinction in the way their personal information is treated does appear in reality due to the inherent nature of a public servant. Infact it has sometimes been argued that public servants must waive the right to privacy in favour of transparency.[41] However this argument has been repeatedly rejected by the Courts, [42] just because a person assumes public office does not mean that he/she would automatically lose their right to privacy in favour of transparency.

If personal information regarding a public servant is asked for, then a distinction must be made between the information that is inherently personal to the person and that which has a connection with his/her public functions. The information exempted under section 8(1)(j) is personal information which is so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of the third party.[43] In short, the Courts have concluded that there can be no blanket rule regarding what information can and cannot be disclosed when it comes to a public servant, and the disclosure (or lack of it) would depend upon the circumstances of each case.

Although the earlier thinking of the CIC as well as various High Courts of the country was that information regarding disciplinary proceedings and service records of public officials is to be treated as public information in order to boost transparency,[44] however this line of thinking took almost a U-turn in 2012 after the decision of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commissioner,[45] and now the prevailing principle is that such information is personal information and should not be disclosed unless a larger public interest is would be served by the disclosure.

It would also be helpful to look at a list of the type of information regarding public servants which has been disclosed in the past, gleaned from various cases, to get a better understanding of the prevailing trends in such cases:

(i) Details of postings of public servants at various points of time, since this was not considered as personal information; [46]

(ii) Copies of posting/ transfer orders of public servants, since it was not considered personal information; [47]

(iii) Information regarding transfers of colleagues cannot be exempted from disclosure, since disclosure would not cause any unwarranted invasion of privacy and non disclosure would defeat the object of the RTI Act;[48]

(iv) Information regarding the criteria adopted and the marks allotted to various academic qualifications, experience and interview in selection process for government posts by the state Public Service Commission;[49]

(v) Information regarding marks obtained in written test, interview, annual confidential reports of the applicant as well as the marks in the written test and interview of the last candidate selected, since this information was not considered as personal information; [50]

(vi) Information relating to the appointment and educational certificates of teachers in an educational institution (which satisfies the requirements of being a public authority) was disclosed since this was considered as relevant to them performing their functions. [51]

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. To understand this better below is a brief list of the type of information that has been considered by the Courts as personal information which is liable to be exempt from disclosure under section 8(1)(j):

(i) (a) Salary details, (b) show cause notice, memo and censure, (c) return of assets and liabilities, (d) details of investment and other related details, (e) details of gifts accepted, (f) complete enquiry proceedings, (g) details of income tax returns;[52]

(ii) All memos issued, show cause notices and orders of censure/punishment etc. are personal information. Cannot be revealed unless a larger public interest justifies such disclosure;[53]

(iii) Disciplinary information of an employee is personal information and is exempt under section 8(1)(j); [54]

(iv) Medical records cannot be disclosed due to section 8(1)(j) as they come under "personal information", unless a larger public interest can be shown meriting such disclosure;[55]

(v) Copy of personnel records and service book (containing Annual Confidential Reports, etc.) of a public servant is personal information and cannot be disclosed due to section 8(1)(j);[56]

(vi) Information regarding sexual disorder, DNA test between an officer and his surrogate mother, name of his biological father and step father, name of his mother and surrogate step mother and such other aspects were denied by the Courts as such information was considered beyond the perception of decency and was an invasion into another man's privacy.[57]

It is not just the issue of disclosure of personal details of public officials that raises complicated questions regarding the right to information, but the opposite is equally true, i.e. what about seemingly "public" details of private individuals. A very complicated question arose with regard to information relating to the passport details of private individuals.

Passport Information of Private Individuals
The disclosure of passport details of private individuals is complicated because for a long time there was some confusion because of the treatment to be given to passport details, i.e. would its disclosure cause an invasion of privacy since it contains personally identifying information, specially because photocopies of the passport are regularly given for various purposes such as travelling, getting a new phone connection, etc. The Central Information Commission used a somewhat convoluted logic that since a person providing information relating to his residence and identity while applying for a passport was engaging in a public activity therefore such information relates to a public activity and should be disclosed. This view was rejected by the Delhi High Court in the case of Union of India v. Hardev Singh,[58] and the view taken inHardev Singh was later endorsed and relied upon in Union of India v. Rajesh Bhatia, [59] while hearing a number of petitions to decide what details of a third party's passport should be disclosed and what should be exempt from disclosure.

A list of the Courts conclusions is given below:

Information that can be revealed:

(i) Name of passport holder;

(ii) Whether a visa was issued to a third party or not;

(iii) Details of the passport including dates of first issue, subsequent renewals, dates of application for renewals, numbers of the new passports and date of expiry;

(iv) Nature of documents submitted as proof;

(v) Name of police station from where verification for passport was done;

(vi) Whether any report was called for from the jurisdictional police;

(vii) Whether passport was renewed through an agent or through a foreign embassy;

(viii) Whether it was renewed in India or any foreign country;

(ix) Whether tatkal facility was availed by the passport holder;

Information that cannot be revealed:

(i) Contents of the documents submitted with the passport application;

(ii) Marital status and name and address of husband;

(iii) Whether person's name figures as mother/guardian in the passport of any minor;

(iv) Copy of passport application form;

(v) Residential address of passport holder;

(vi) Details of cases filed/pending against passport holder;

(vii) Copy of old passport;

(viii) Report of the police and CID for issuing the passport;

(ix) Copy of the Verification Certificate, if any such Verification Certificate was relied upon for the issue of the passport.

Other Instances

Apart from the above two broad categories of information that has been the subject of intense judicial discussion, certain other situations have also arisen where the Courts have had to decide the issue of disclosure under section 8(1)(j), a brief summary of such situations is given below:

(i) names and details of people who received money as donations from the President out of public funds was considered as information which has a definite link to public activities and was therefore liable to be disclosed;[60]

(ii) information regarding the religion practiced by a person, who is alleged to be a public figure, collected by the Census authorities was not disclosed since it was held that the quest to obtain the information about the religion professed or not professed by a citizen cannot be in any event; [61]

(iii) information regarding all FIRs against a person was not protected under section 8(1)(j) since it was already a matter of public record and Court record and could not be said to be an invasion of the person's privacy;[62]

(iv) information regarding the income tax returns of a public charitable trust was held not to be exempt under section 8(1)(j), since the trust involved was a public charitable trust functioning under a Scheme formulated by the District Court and registered under the Bombay Public Trust Act as such due to its character and activities its tax returns would be in relation to public interest or activities.[63]

Conclusion

A discussion of the provisions of section 8 and 11 of the RTI Act as well as the case laws under it reveals that the legislature was aware of the dangers posed to the privacy of individuals from such a powerful transparency law. However, it did not want the exceptions carved out to protect the privacy of individuals to nullify the objects of the RTI Act and therefore drafted the legislation to incorporate the principle that although the RTI Act should not be used to violate the privacy of individuals, such an exception will not be applicable if a larger public interest is to be served by the disclosure. This principle is in line with other common law jurisdictions such as the U.K, Austalia, Canada, etc. which have similar exceptions based on privacy or confidentiality.

However it is disappointing to note that the legislature has only left the legislation at the stage of the principle which has left the language of the exception very wide and open to varied interpretations. It is understandable that the legislature would try to keep specifics out of the scope of the section to make it future proof. It is obvious that it would be impossible for the legislature or the courts to imagine every single circumstance that could arise where the right to information and the right to privacy would be at loggerheads. However, such wide and ambiguous drafting has led to cases where the Courts and the Central Information Commission have taken opposing views, with the views of the Court obviously prevailing in the end. This was illustrated by the issue of disclosure of passport details of private individuals with a large number of CIC cases taking different views till the High Court of Delhi gave categorical findings on the issue in the Hardev Singh and Rajesh Bhatia cases. Similar was the issue of service details of public officials since before the decision of the Supreme Court in the case of Girish Ramchandra Deshpande in 2012 the prevailing thinking of the CIC was that details of disciplinary proceedings against public officials are not covered by section 8(1)(j), however this thinking has now taken a U-turn as the Supreme Court's understanding of the right to privacy has taken stronger roots and such information is now outside the scope of the RTI Act, unless a larger public interest in the disclosure can be shown.

The ambiguity that arises in application when trying to balance the right to privacy against the right to information is a drawback in incorporating only a principle and leaving the language ambiguous in any legislation. This paper does not advocate that the legislature try to list out all the instances of this problem that are possibly imaginable, this would be too time consuming and may even be counterproductive. However, it is possible for the legislature to adopt an accepted practice of legislative drafting and list certain instances where there is an obvious balancing required between the two rights and put them as "Illustrations" to the section. This device has been utilised to great effect by some of the most fundamental legislations in India such as the Contract Act, 1872 and the Indian Penal Code, 1860. An alternative to this approach could be to utilize the approach taken in the Australian Freedom of Information Act, where the Act itself gives certain factors which should be considered to determine whether access to a particular document would be in the public interest or not.

List of References

Primary Sources

1. Australia Freedom of Information Act, 1982.

2. Bennet Coleman v. Union of India, AIR 1973 SC 106.

3. Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

4. Calcutta High Court, WP (W) No. 33290 of 2013, dated 20-11-2013.

5. Canadian Access to Information Act.

6. Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667

7. Constitution of India, 1950.

8. Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

9. Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

10. Jamia Millia Islamia v. Sh. Ikramuddin, Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

11. Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

12. Kharak Singh v. State of U.P., AIR 1963 SC 129.

13. Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978.

14. Naz Foundation Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

15. P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

16. Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82.

17. President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

18. Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

19. R. Rajagopal v. Union of India, Supreme Court of India, dated 7-10-1994.

20. Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

21. Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

22. Right to Information Act, 2005

23. Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

24. Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

25. Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

26. Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

27. Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd., (1995) 5 SCC 139.

28. U.K. Freedom of Information Act, 2000.

29. UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

30. Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151

31. Union of India v. Hardev Singh WP(C) 3444 of 2012 dated 23-08-2013.

32. Union of India v. Rajesh Bhatia WP(C) 2232/2012 dated 17-09-2013.

33. Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

34. Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

Secondary Sources

1. "Country Report for U.K.", Privacy International, available at https://www.privacyinternational.org/reports/united-kingdom.

2. "Country Report for Australia", Privacy International, available at https://www.privacyinternational.org/reports/australia.

3. "Country Report for Canada", Privacy International, available at https://www.privacyinternational.org/reports/canada.

[1] AIR 1973 SC 106. This case held that the freedom of the press embodies in itself the right of the people to read.

[2] (1995) 5 SCC 139.

[3] AIR 1963 SC 129.

[4] Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[5] Section 8(1) in its entirety states as follows:

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

[6] Section 11 of the RTI Act.

[7] The Registrar General v. A. Kanagaraj, (Madras High Court, 14 June 2013, available at http://www.indiankanoon.org/doc/36226888/.

[8] Arvind Kejriwal v. Central Public Information Officer, (Delhi High Court, 30 September 2011, available at http://www.indiankanoon.org/doc/1923225/.

[9] Sections 40 and 41 of the U.K. Freedom of Information Act, 2000.

[10] Section 11A read with section 47-F of the Australia Freedom of Information Act, 1982.

[11] Section 19 of the Canadian Access to Information Act.

[12] Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

[13] Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

[14] Articles 14, 19(1)(a) and 21 of the Constitution of India, 1950.

[15] Calcutta High Court, WP(W) No. 33290 of 2013, dated 20-11-2013.

[16] Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

[17] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

[18] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom), para 14. Where the Court held that since the medical records of a convict cannot be denied to Parliament or State legislature therefore they cannot be exempted from disclosure under the Act.

[19] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[20] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[21] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[22] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[23] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[24] Jamia Millia Islamia v. Sh. Ikramuddin , Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

[25] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[26] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[27] AIR 1963 SC 129.

[28] Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

[29] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012. This ruling was overturned by a Division Bench of the High Court relying upon a subsequent Supreme Court ruling, however, it could be argued that the Division Bench did not per se disagree with the discussion and the principles laid down in this case, but only the way they were applied.

[30] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[31] Right to equality.

[32] Freedom of speech and expression.

[33] Right to life.

[34] Article 19(2) of the Constitution of India, 1950.

[35] Article 19(5) of the Constitution of India, 1950.

[36] Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978. The test laid down in this case is universally considered to be that the procedure established by law which restricts the fundamental right should be just, fair and reasonable.

[37] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[38] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[39] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975. However the Court later used phrases such as "reasonable restriction in public interest" and "reasonable restriction upon it for compelling interest of State" interchangeably which seems to suggest that the terms "compelling public interest" and "compelling state interest" used by the Court are being used synonymously and the Court does not draw any distinction between them. It is also important to note that the wider phrase "countervailing interest is shown to be superior" seems to suggest that it is possible, atleast in theory, to have other interests apart from public interest or state interest also which could trump the right to privacy.

[40] R. Rajagopal v. Union of India , Supreme Court of India, dated 7-10-1994. These tests have been listed as one group since they are all applicable in the specific context of publication of private information.

[41] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[42] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010. Also see Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[43] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667. This case also held that information cannot be denied on the ground that it would be too voluminous.

[44] Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151; Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012

[45] 2012 (119) AIC 105 (SC).

[46] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[47] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[48] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667.

[49] Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

[50] UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

[51] Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

[52] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[53] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[54] R.K. Jain v. Union Public Service Commission, Delhi High Court, LPA No. 618 of 2012, dated 12-11-2012.

[55] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[56] Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

[57] Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82. It must be mentioned that this case was not exactly under the procedure prescribed under the RTI Act but was a public interest litigation although the courts relied upon the provisions of the RTI Act.

[58] WP(C) 3444 of 2012 dated 23-08-2013.

[59] WP(C) 2232/2012 dated 17-09-2013.

[60] President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

[61] P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

[62] Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

[63] Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

For more details visit https://cis-india.org/internet-governance/blog/white-paper-on-rti-and-privacy-v-1.2

Where is the Regional Comprehensive Economic Partnership Headed?

sinha — 2016-09-17T14:15:05Z

The Regional Comprehensive Economic Partnership (RCEP) – the Asian answer to the Trans-Pacific Partnership (TPP) is still being furiously scripted.

The blog post was originally published in Spicy IP on September 7, 2016. It can be read here.

The US-led TPP and China-led RCEP were always touted as rivals racing to set global trade standards before the conclusion of the other. Well, TPP gunned ahead and is currently in the ratification phase, where as RCEP is yet to be concluded and talks may very well enter 2017. The latest round of RCEP talks ended last month and paints a worrisome picture for the global south, given that it will bring 3.5 billion people and 12% of world trade into its fold.

Free Trade Agreements (FTAs) do not enable zero-sum free trade. In fact, each country leaves with disproportionate gains and losses in their kitty, after the conclusion of the agreement. And the worst casualties are environment, public health, labour rights, SMEs and local markets. Since there is plenty of give and take occurring in a context of fluid foreign policy relations, it becomes imperative to locate the ‘barter’. Last month, Balaji wrote an excellent comparative analysis(I & II) of the RCEP IPR text, and this post complements that. I present a regional overview of negotiations and the impact on course of the agreement, as gathered from press coverage of the meetings and the leaks; and to provide a more wholesome picture of the barters, I discuss other relevant chapters at the end of this post. Further, as the negotiations are conducted in secrecy, different organisations and individuals have ‘leaked’ draft texts. KEI and bilaterals.org are two such organizations that regularly collate and release latest RCEP texts. I rely on RCEP’s IP Chapter(October 15, 2015 version) and Terms of Reference by the Working Group on Electronic Commerce(August 2015 version). Analysing the Telecommunications Services chapter is outside the scope of the post, and I link it here for the interest of our readers.

Impact on E-commerce

What is currently available are the terms for reference establishing the Working Group’s mandate on drafting a chapter on e-commerce. The document acknowledges the need for inclusion of a provision for special and differential treatment, and additional flexibilities to the least developed ASEAN countries. It draws a list of relevant elements for possible inclusion in the RCEP. I reproduce the list here (emphasis supplied is mine):

I. General Provisions

Cooperation
Electronic Supply of Services

II. Trade Faciliation

Paperless Trading
Electronic Signature and Digital Certification

III. Creating a Conducive Environment for Electronic Commerce

Online Consumer Protection
Online Personal Data Protection
Unsolicited Commercial E-mail
Domestic Regulatory Frameworks
Custom Duties
Non-Discriminatory Treatment of Digital Products

IV. Promoting Cross Border Electronic Commerce

Prohibition on Requirements Concerning the Location of Computing Facilities
Prohibition on Requirements Concerning Disclosure of Source Code
Cross- Border Transfer of Information by Electronic Means

While there is no clarity on customs duties, there is a mention of non-discriminatory treatment of digital products. While India has no law on non-discriminatory treatment of digital products, this may conflict with the Indian government’s policy on adoption of open source software for government use.

More alarmingly, the first prohibition restrains governments from mandating data localisation. The Trans-Pacific Partnership (TPP) and Trade in Services Agreement (TISA) also bar governments from making rules on data localisation, i.e. requiring physical situation of servers and storage in their countries’ territories. This is a worrisome provision because it may effectuate surreptitious surveillance. The prohibition on disclosure of source code is also troublesome and is aimed to stop examination and review of code in computing devices. This would effectively ban security researchers from finding security vulnerabilities in devices, and the if the provision is drafted like its counterpart in the TPP, there will also be prohibitions on checks by regulating authorities.

Re ‘Cross- Border Transfer of Information by Electronic Means’, the provision will be most likely drafted to favour big data and advertising companies’ operations enabling unrestricted transfer of personal data(like the TPP). If that is the case, then it will be in conflict with Rule 7 of the Information Technology (Reasonable security practices and sensitive personal data or information) Rules 2011, which permits cross-border flow of personal information only in situations where the recipient of the information complies with Indian data protection standards as a bare minimum.

Impact on farmer's seeds

RCEP is bound to hit farmers the worst: not only are countries reducing tariffs for increased import of agricultural products, there also exists an obligation to join the International Union for Protection of New Varieties of Plants (UPOV system), which would mandate members to introduce a new IPR: the breeders’ right over new plant varieties. Japan and Korea want RCEP members to join UPOV 1991, and Japan has proposed criminal penalties for the infringement of breeders’ rights.

While India has applied to become a member to the UPOV Convention, in 2001 it passed the Protection of Plant Varieties and Farmers’ Rights Act, and thereby built a sui generis system of protection (ambitiously trying to balance breeders’ rights and farmers’ rights). It will be naive to expect a similar attempt in balanced lawmaking by other countries. Furthermore, “…India’s current legislation is less stringent than UPOV 1991. It allows farmers to continue with their seed practices, except they cannot sell packaged seeds of protected varieties. The space for both small farmers and public breeders to freely work with seeds will be lost of RCEP goes the way of what Korea and Japan are proposing.” Using FTAs to reduce farmers’ freedom has been well documented, and you may read more on that here.

The text also desires all RCEP members to codify traditional knowledge and make it available to various patent offices. This push is widely regarded as problematic, as it is feared that documenting and digitization of existing knowledge may propel companies to use that information for commercial gains, to the detriment of the indigenous people and farming communities. On the other hand, it would be feasible to share such data in a confidential manner with patent offices, as India has done under the TKDL.

Massive reduction in tariffs

Tariffs emerged as an enormous sticking point in the August round, and there was pressure on India to eliminate tariffs completely. India proposed a differential tariff reduction plan, but countries kept pushing for a single-tier plan – particularly Japan. Finally, in what is seen as a big loss, India offered tariff cuts as high as 80% goods trade for all RCEP partners, except China. With China, India said that it was only comfortable with a 65% tariff cut initially, given the skewed trade deficit between China and India. It is worth noting that for India, RCEP will become the first FTA to forge trade partnerships with China, Australia,and New Zealand.

As a result of the heavy concession in tariffs, the Kerala Agriculture Minister has moved a cabinet note, and written a letter to the Centre expressing serious concerns on lowering of tariffs for agricultural products. He also requested to include Kerala in the RCEP pre-negotiation talks.

Staving off ISDS

Provisions on investor-to-state dispute settlement (ISDS) are being pushed by Japan and South Korea. Countries are not convinced about agreeing to this, especially India. In fact, India is in the process of rolling back on bilateral investment treaties, and has already moved for BIT termination with 57 countries. We’ve already seen ISDS being (mis)used by private entities against governments – there have been enough challenges to countries’ IPR laws and policies as well.

Mobilised Movements against the RCEP

Individuals and organizations are advocating for scrapping the RCEP, given the impact that it is expected to have on people’s rights and freedoms. A ‘People’s Strategy Meeting’ last month conducted large-scale sessions to inform civil society organizations, NGOs, trade unions, farmers groups and other peoples’ movements in the Asia-pacific region. Many have also been persistently calling out for a meeting with negotiators of their respective countries and for a public hearing on the RCEP. The Asia Pacific Research Network has released a policy brief on the RCEP, and you may read that here.

The road ahead

Looking at the larger picture, it is evident now that neo-FTAs’ focus on trade has descended into attacks on sovereign states’ economic and social policies.

With respect to the RCEP IPR text, India is trying to eliminate TRIPS plus provisions from the text. And after heavy concessions on the tariff front, it will be bargaining for liberalisation in services in the next rounds. India’s aim is to clinch a deal allowing for free-er movement of its workers and professionals. Further, the negotiations are going to proceed quickly now. Members are becoming desperate to lock down the text, and therefore, this year we will see more rounds than the usual scheduled ones. The urgency is driven largely by Japan and Korea – both of which wish to ratify the TPP soon and would like the RCEP to work in tandem.

In another worrisome development, Phillipines, Thailand and Indonesia have met with US trade officials on what they need to do to join the TPP, once it is implemented. These countries are considering making serious changes to their labour, environmental, IP, and other standards. Yesterday, US Prez. Obama arrived in Vietnam for the Asean summit, trying hard to sell the TPP. Japan and Korea are already TPP members, and if ASEAN countries come under TPP’s fold as well, we may see an upping of standards at the RCEP.

India will have to deploy serious negotiating chops at the upcoming rounds if it is remotely hopeful of steering the RCEP standards away from the TPP.

Author’s note: Added the sentence “On the other hand, it would be feasible to share such data in a confidential manner with patent offices, as India has done under the TKDL.”

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-september-7-2016-anubha-sinha-where-is-the-regional-comprehensive-economic-partnership-headed