Centre for Internet and Society

RTI and Third Party Information: What Constitutes the Private and Public?

Noopur Raval — 2011-11-24T09:21:20Z

The passing of the Right to Information Act, 2005 was seen as giving an empowering tool in the hands of the citizens of India, six years post its implementation, loopholes have surfaced with misuse of the many fundamental concepts, which have yet not been defined to allow for a consistent pattern of decisions. Among many problems that emerge with the Act, a major problem is defining the extent to which an individual has access to other people’s information. While most of us tend to think that asking for other people’s phone numbers, personal details like passport number or IT returns are private and would be kept so, under the RTI Act and as seen in the Central Information Commission (CIC) decisions, all of these details can be availed of by someone who doesn’t know you at all!

According to section 2 (n) of the RTI Act, 2005, 'third party' means a person other than the citizen making a request for information and includes a 'public authority'. This implies that the term 'third party' includes anyone other than the appellant or the respondent. In matters where an appellant is seeking information not regarding his or her own activities, or is asking for details of shared records that list details of several persons other than him or her, information cannot be provided until the ‘third party’ consents to disclosure and subsequently until the Central Public Information Office (CPIO), after considering the implications of such disclosure allows it. Section 11 (1) the Act provides the procedure to access third party information wherein the appellant needs to request for the third party’s consent after which the CPIO will produce a written request to the 'third party' and within a stipulated time period obtain their response. However, it is not the information bearer (third party) who holds the key to disclosure. The power, by the RTI Act, 2005, is vested in the public information officer who will then, either see a 'larger public interest', or otherwise allow disclosure based on the merits of the case.

In such a situation, it is interesting to see who the Central Information Commission (CIC) regards as 'third party'. While going through the judgments delivered by the CIC, one comes across several judgments that tell you who can and who cannot access your information. While a son or daughter naturally inherits his/her father’s wealth, land or other possessions, they do not inherit his position for obtaining information. This is just one instance. Similar holds true for access to information of a deceased kin. Unless the public information officer sees a ‘larger public interest’ in disclosure of such information, it cannot be revealed even to the deceased’s wife, husband or children unless they hold a power of attorney specifically to a right to access information.

This brings us to the question of ‘larger public interest’ and what information can be delved to anyone for this cause. While the RTI Act, 2005, clearly states that the appellant needs not a reason to ask for any information, it is largely based on the public information officer’s inference as to what the appellant may do with the data and hence, maybe deemed as acting in public interest or for personal gains. This also produces positions of potential criminality and the need for State subjects to prove themselves as ideal information seekers, void of malice in order for the public information officer to rule in their favour.

Third party position is a problematic one as it only goes so far as to define the state-mediated interaction between two subjects in relation to each other through legal machinery that holds massive discretionary powers to disclose or withhold information. Hence, while, in relation to ‘third party’, a subject may need to justify his larger benevolent interests, the State finds no problems revealing or disclosing information for its own good. In Shri Rajender Kumar Arya vs Dy. Commissioner of Police (DCP), (4 March 2009), the commission ruled that they now have the decision of the Madras High Court in the context of right to privacy in light of the RTI Act. The Madras High Court observed that with the advent of the Right to Information Act, section 3 of the Act entitles a citizen to the right of information. Section 4(2) of the said Act obliges a public authority to disclose information to common people. Even personal information or information, which may otherwise amount to an invasion of privacy, may also be disclosed if the larger public interest so warrants. The court in fact came to the conclusion that the right to privacy virtually fades out in front of the 'Right to Information' and 'larger public interest’. This tells us that ‘third party’ is a mere negotiating position from which the State itself regulates information flow to citizens and can revoke these privileges as and when needed.

Moreover, there is no clear definition to the ‘larger public interest’ or ‘invasion of privacy’. In several judgments, the committee upholds principles of natural justice to justify instance of public good but these cannot be upheld for all decisions. It is also interesting to see what comes under the purview of ‘public information’. It’s a misconception if you think that you hold the right to revealing your age, birth date, place you belong to, your marks, the rank that you hold, the salary you get, the returns you file or subsequently any of this information regarding your children. As upheld in Madhulika Rastogi vs Regional Passport Office, New Delhi, on 4 February 2009, M. Rajamannar vs PIO, AC Division, Indira Gandhi National Open University on 18 February 2009 and A.V.Subrahmanyam vs BSNL, Hyderabad on 16 February 2009 — the judgments illustrate that information submitted to public authorities at any point in time whether to get admitted to school, to get a license, to pass a public services examination or even file a divorce; all qualify for access to other people because they have been knowingly submitted to the public domain. A lot of sensitive information like passport details, telephone call records and medical records that can map intimate interactions of a person’s daily life can also be obtained if larger public interest is proven.

Hence, it becomes important to revise and rethink the commonly accepted notions of privacy, especially when information gains such strategic importance as well as fluidity through fast expanding platforms as well as tools such as RTI. While one may confidently think that information generated by the self, pertaining to one’s own business and life rightfully belongs to the private domain, it is very important to realize the constantly looming hold of the State to any information. In such a situation, what you can claim as private data totally depends on how much common interest it garners.

For more details visit https://cis-india.org/internet-governance/blog/rti-and-third-party-info

Round Table on Assessing the Efficacy of Information and Communication Technologies (ICTs) for Public Initiatives: A Report

sachia — 2011-08-20T22:28:55Z

Zainab Bawa reports on the Round Table on Assessing the Efficacy of Information and Communication Technologies for Public Initiatives, hosted by the Centre for Internet and Society, Bangalore, on 17 June 2009, in collaboration with the Liberty Institute, New Delhi.

In recent times, there has been an upsurge in the use of ICTs to provide information to people and to elicit participation. Individuals, corporate organisations, NGOs, civil society organisations, collectives, municipalities, political parties and politicians have been using the internet and other mediums to communicate with people. The round table was organised primarily to discuss two issues:

What is the effectiveness of the initiatives introduced in recent times?
How do we move forward in terms of partnerships/collaborations in the areas of data gathering, sharing, dissemination and architecture of information?

Given the constraints of time, however, we were only able to discuss a few issues with respect to efficacy of initiatives, rather than come up with a concrete action plan on how to measure effectiveness of many of the existing initiatives. This remains an agenda for subsequent meetings.

This round table was the first meeting of its kind. It brought together participants from diverse backgrounds to discuss key issues involved in leveraging ICTs towards various ends, and to collaborate with each other on ongoing initiatives. Participants included researchers, persons who have developed information platforms and databases, individuals working in the area of leveraging technology for streamlining processes in society and people who have been studying usage patterns of social media tools. Most of the participants were using ICTs to improve information access related to health issues, education, budgets, development of rural areas and recently, elections and governance. In the subsequent sections, I will briefly elaborate on some of the key themes around which discussions took place during the round table.

Building on Ideas: In the morning and pre-lunch sessions, one issue that featured prominently was the importance of developing ideas rather than trying to work out a perfect model that we believe will solve what we perceive to be people’s problems. Two of the participants explained that they started implementing ideas as they came to them, rather than trying to come up with a framework that they thought would work for the masses. They worked towards evolving their ideas, exploring what works and what does not. One of them further pointed out that such evolution cannot be observed as it happens; it only becomes apparent in hindsight. Hence, discussions such as the current round table are useful.

It is also important to note that we are still in a nascent stage of understanding how ICTs can impact people’s lives and deploying them accordingly. As a result, many efforts are likely to be in the stage of trial and error.

Key areas of interest and concern: Based on the input from participants in the morning session, we arrived at a list of areas that require more understanding and discussion.

Information gathering, dissemination, access – including information architecture, technology design: Here, three issues were discussed:

Who are we talking about when we refer to information access? It was pointed out that information is crucial particularly for people who do not have computers and for whom internet is not a priority. The intensity with which they seek information is remarkable. One of the participants argued that we undervalue the potential of information to make a difference to people’s lives.
How do we deliver information? Providing information is not enough.
Representativeness of the information for those who it is provided for.

Another issue that was referred to was whether language is a problem, i.e., most information is available only in English. One of the participants suggested that this is not the case because Google has found that a very small percentage of the population actually refers to material on the web in languages other than English.

Community mobilization: During the deliberations, we referred to the problem of replication of initiatives. Two observers of social media pointed out that replication happens because people are trying to create their own unique communities around their initiatives. This is an important insight for future efforts and also indicates the need to share databases and information that individuals and organisations have compiled. They also suggested that it is important to discover existing communities and spaces where conversations around issues of governance, education, health and development are taking place. This helps to plug into existing resource pools and to extend outreach.

Citizens’ participation: Initiatives that work and why they succeed - We briefly discussed the Jaagore campaign and India Vote Report, which were launched before the 2009 national elections in India to enable people to register on the electoral rolls and to report irregularities during elections respectively. Some people found it difficult to register themselves on the Jaagore website and some had difficulties in finding the local offices where they needed to follow-up with the process. It was also pointed out that Vote Report did not connect with the end user because it would have been easier to report irregularities and anomalies via SMS rather than trying to report them by logging on to the site. If one looks at the case of the Online Complaint Management System (OCMS) developed by Praja, the availability of the telephone hotline service through which citizens could register their complaints helped in widening usage. Thus, it appears that two issues are pertinent:

Whether the initiative connects with the people who are likely to use it;
Simplicity of design/system that enables more users.

Target Audience: One of the participants pointed out that some initiatives do not work because they are targeted towards the wrong audiences. For example, when it comes to voting and elections, poor groups are the ones who go out and vote in large numbers. Hence, information systems need to be tailored to provide them with the data that they need most. Access also has to be configured accordingly. In some instances, the target is too broad to reach out effectively.

It appears that there is a need to develop strategies on how platforms and databases that have been created to enhance access to information can be made known among the masses and how people can be made aware to use them. It is equally important to understand what constitutes ‘information’ and for whom. Here, the other issue to explore is how information links back to the people for who it is provided.

Technology: In this area, a key concern was the high costs involved in developing technologies and whether we could learn from each other’s experience of developing technologies instead of reinventing the wheel. We also discussed whether open source software helps to reduce costs of development. The other issue with respect to open source is whether there is enough assistance and support available to resolve problems that may crop up during use of technology from time to time.

Sharing of Data: Discussions also veered around the issue of whether appropriate technology and applications could be created to help with sharing existing databases and information pools. We did not discuss this issue in depth, but it remains relevant for subsequent meetings.

Back end integration: According to some of the participants, one of major problems is the interface between government and citizens, which remains weak. Technology can be used to enhance the interactions. Participants also pointed out the difficulty in obtaining data from government bodies that is important to create the interface between government and citizens. A participant involved with the Jaagore campaign referred to the problem of back-end integration during their efforts to help citizens register themselves with the election commission (EC) offices. A participant from Google similarly reported that they faced problems in obtaining election results from the EC’s offices as a result of which, they had to rely on their partners for this information. Here too, we could not deliberate on how to resolve this problem, but this could be a major theme for a subsequent meeting.

Performance (monitoring, evaluation): One of the themes that participants zeroed in on was the evaluation of the performance of elected representatives and making this evaluation available for people to see. Here, the debate was around the problem of evaluation being carried out according to the criteria we set which may not seem relevant to other sections of society. One of the suggestions that came up was to develop a matrix for evaluation and put out information accordingly. People can then use it to make their own judgments.

In the post-lunch session, some of the participants shared their experiences with implementation and also the work they and their organisations are currently engaged with. Towards the end of the round table, each one of the participants explained their respective projects and how they may wish to collaborate with other participants (who were present) in their initiatives. An e-group called “CIS-Info-Access” has been created to take these conversations and collaborations further.

Evaluation of the Round Table and Way Forward:

When invitations were sent out to people to participate in the round table, many of the invitees expressed a genuine and enthusiastic interest in being part of this effort. As mentioned above, one of the reasons for this enthusiasm was because this was the first meeting of its kind, bringing together individuals from the fields of technology, research and implementation. We invited a total of 35 people out of which 27 finally attended the meeting. The diversity of the participants was an asset in that a variety of issues were brought to the table. The drawback was that there was not enough time to discuss some of the pertinent issues in depth. Future meetings can be tailored to discuss one or two specific themes such as back-end integration and sharing of information, technology issues, ideas for mobilising citizens and communities, etc.

The possibilities of collaboration between participants in this meeting are immense and we hope that some of the synergies will materialise into concrete outcomes. Further, a few participants have expressed an interest in organising similar meetings in their cities/towns, perhaps focusing on a few issues instead of bringing people together under a broad theme. Of some of the issues discussed, participants have indicated that back-end integration with government and ideating on different ways of disseminating data can be further deliberated on in future. One of the participants also suggested that there is a need to make ‘data’ more relevant to people’s lives.

While the meeting was fruitful in many respects, one issue needs to be underlined. This concerns the imagination of internet and ICTs as mediums that can resolve all existing problems with respect to citizen-government interface, streamlining of processes and provision of information. Such an overarching imagination of technology overlooks the cultural, economic, social and political specificities of communities and contexts. Technology can also have negative implications in some circumstances. It also needs to be reinforced that technology is embedded in society and culture. Therefore we need to view technology as one of the avenues among others available which will facilitate interactions between people and their governments and the state. Democratisation is more likely to be realised through such a perspective.

For more details visit https://cis-india.org/events/event-blogs/round-table-assessing-efficacy

Role of the US Tech Companies in Government Surveillance: A Lecture by Christopher Soghoian

praskrishna — 2012-08-26T11:03:19Z

Christopher Soghoian will deliver a lecture on the role US tech companies play in assisting government surveillance at the Centre for Internet & Society office in Bangalore on August 27, 2012, from 5.00 p.m. to 7.00 p.m.

Your internet, phone and web application providers are all, for the most part, in bed with US and other foreign government agencies. They all routinely disclose their customers' communications and other private data to law enforcement and intelligence agencies. Worse, firms like Google and Microsoft specifically log data in order to assist the government. How many government requests does your ISP get for its customers' communications each year? How many do they comply with? How many do they fight? How much do they charge for the surveillance assistance they provide? Who knows? Most companies have a strict policy of not discussing such topics.

The differences in the privacy practices of the major players in the telecommunications and internet applications market are significant. Some firms retain identifying data for years, while others retain no data at all; some voluntarily provide the government access to user data, while other companies refuse to voluntarily disclose data without a court order; some companies charge government agencies when they request user data, while others disclose it for free. For an individual, later investigated by the police or intelligence services, the data retention practices adopted by their phone company or email provider can significantly impact their freedom.

Unfortunately, although many companies claim to care about end-user privacy, and some even that they compete on their privacy features, none seem to be willing to compete on the extent to which they assist or resist the government in its surveillance activities. Because information about each firms' practices is not publicly known, consumers cannot vote with their wallets, and pick service providers that best protect their privacy.

This talk will pierce the veil of secrecy surrounding these practices. Based upon a combination of Freedom of Information Act requests, off the record conversations with industry lawyers, and investigative journalism, the practices of many of these firms will be revealed.

Christopher's Personal Experience

In the year 2006, the Federal Bureau of Investigation (FBI) raided Christopher’s home at 2.00 a.m. seizing his personal documents and computers. Two attorneys, Stephen Braga and Jennifer Granick came to his defence. With their expert assistance, Christopher was able to get back his possessions within three weeks, and FBI’s criminal and TSA’s civil investigations were closed without any charges being filed.

Jennifer Granick came to Christopher’s assistance once again (joined by Steve Leckar) in 2010 after the Federal Trade Commission’s Inspector General investigated Christopher for using his government badge to attend a closed-door surveillance industry conference. It was at that event that Christopher recorded an executive from wireless carrier ‘Sprint’ bragging about the eight million times his company had obtained GPS data on its customers for law enforcement agencies in the previous years.

To know more, read Christopher Soghoian’s dissertation titled "The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance". [PDF, 1056 Kb]

About Christopher Soghoian

Christopher Soghoian is a privacy researcher and activist, working at the intersection of technology, law and policy. He is a Principal Technologist and Senior Policy Analyst at the American Civil Liberties Union and is based in Washington, D.C.

Soghoian completed his Ph.D. at Indiana University in 2012, which focused on the role that third party service providers play in facilitating law enforcement surveillance of their customers. In order to gather data, he has made extensive use of the Freedom of Information Act, sued the Department of Justice pro se, and used several other investigative research methods. His research has appeared in publications including the Berkeley Technology Law Journal and been cited by several federal courts, including the Ninth Circuit Court of Appeals.

Between the years, 2009-2010, he was the first ever in-house technologist at the Federal Trade Commission's Division of Privacy and Identity Protection, where he worked on investigations of Facebook, Twitter, MySpace and Netflix. Prior to joining the FTC, he co-created the Do Not Track privacy anti-tracking mechanism now adopted by all of the major web browsers.

He is a TEDGlobal 2012 Fellow, was an Open Society Foundations Fellow between the years, 2011-2012, and was a Student Fellow at the Berkman Center for Internet & Society, Harvard University between 2008 and 2009.

For more details visit https://cis-india.org/internet-governance/role-of-us-tech-companies-in-govt-surveillance

RightsCon 2018

Admin — 2018-02-28T15:15:06Z

Rohini Lakshané, Anubha Sinha, Vidushi Marda, and Amba Kak will be participating in the seventh event in the RightsCon Summit Series to be held in Toronto from May 16 - 18, 2018 as speakers.

Rohini's proposal “Cheap and chipper: IP in India's affordable smartphones” has been accepted!

As the world’s leading conference on human rights in the digital age, RightsCon brings together business leaders, policy makers, general counsels, government representatives, technologists, and human rights defenders from around the world to tackle pressing issues at the intersection of human rights and digital technology. This is where our community comes together to break down silos, forge partnerships, and drive large-scale, real-world change toward a more free, open, and connected world.

For more info click here

For more details visit https://cis-india.org/a2k/news/rightscon-2018

Right to Read Campaign - Kolkata

radha — 2013-02-04T06:47:59Z

The nationwide Right to Read campaign which began with its first road show at Loyola College, Chennai is now having its second road show at the West Bengal National University of Juridical Sciences, Kolkata. There will be half day events with publicity. Events shall comprise presentations, debates and demonstrations, book reading sessions and stalls where various accessibility tools will be demonstrated.

Problem Statement

Millions of Indians are unable to read printed material due to disabilities. There are technologies available which can help them read print if the material is converted into an alternate format such as large print, audio, Braille or any electronic format. While the Indian constitution guarantees the “right to read” as a fundamental right, the copyright regime does not permit the conversion of books into accessible formats for the benefit of persons with print impairment, as a result of which a “book famine” is created. International conventions that India is a party to specifically require India to amend its copyright laws for the benefit of persons with disabilities and to make available information and material to persons with disabilities on an equal basis as others. Publishers also do not make books available in accessible formats as a result of which less than 0.5% of books are available in accessible formats in India. As a result persons with print impairments get excluded from the education system and it impacts their career choices.
In addition to this, there are no national Policies or action plan to ensure that publications in accessible formats in all Indian languages are available to persons with print disabilities all over the country.

Objectives of the Right to Read Campaign

To accelerate change in copyright law
To raise public awareness on the issue
To gather Indian support for the Treaty for the Blind proposed by the World Blind Union at the World Intellectual Property Organisation (WIPO).

Your Support:

No campaign is complete without the endorsement of leaders in the field. We invite you to lend your name and support to this campaign in large numbers and help us make this campaign a success. If you wish to do so, please e-mail Nirmita Narasimhan: nirmita@cis-india.org.

Agenda

Declaration on the Right to Read

Cookie Jar - Glass Jar full of cookies. The jar is locked by chains and a lock. Caption below in large letters saying "Open the cookie jar for 70 million people". Right to Read logo. Wording below: The right to read campaign seeks to accelerate change in copyright law, raise public awareness on issues of access to reading for the print impaired. Support the campaign by turning up for the event at Kolkata. Venue, date and time given. To know more about the campaign and to join us in our endeavor visit our website. www.righttoread.in

Daffodils - Poem Daffodils by Wordsworth. Black strips across many of the lines of the poem as a result only some scattered words of the poem can be seen. Caption below in large letters saying "Not Quite Right? 70 million people agree". Right to Read logo. Wording below: The right to read campaign seeks to accelerate change in copyright law, raise public awareness on issues of access to reading for the print impaired. Support the campaign by turning up for the event at Kolkata. Venue, date and time given. To know more about the campaign and to join us in our endeavor visit our website. www.righttoread.in

Videos
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For more details visit https://cis-india.org/events/right-to-read-campaign-kolkata

Right to Information (RTI) Requests to BSNL and MTNL Regarding Security Equipment

maria — 2015-02-25T15:04:56Z

As part of research, on July 2, 2013, the Centre for Internet and Society (CIS) had sent Right to Information (RTI) requests to two of the largest internet service providers (ISPs) in India: Mahanagar Telephone Nigam Limited (MTNL) and Bharat Sanchar Nigam Limited (BSNL) requesting answers to some questions.

Answers to the following questions were requested:

Please list the companies from which MTNL/BSNL has bought all its security equipment.
What type of security equipment does MTNL/BSNL use to assist Indian law enforcement agencies in detecting and preventing crime, terrorism and all other illegal activity? Please provide the certification for all such equipment.
What malware does MTNL/BSNL test for? What does MTNL/BSNL use for testing malware in its networks?
Which proxy server does MTNL/BSNL use and is it used for filtering data? If so, what type of data is being filtered and for what purpose? Is authorisation required and if so, by whom?
Does MTNL/BSNL use FinFly ISP? If so, who authorises its use and under what conditions?

M. K. Sheda, the appellate authority of MTNL, responded to the above questions on August 3, 2013 with the following answers:

MTNL procures all its equipment through an open competitive bidding process and the details of all past tenders are available on the MTNL website. Equipment from multiple vendors are operational in GSM MTNL Packet-Core Network and specific names cannot be given due to security reasons.
MTNL uses the security equipment by the Department of Telecommunications, Government of India, to assist Indian law enforcement agencies. The details cannot be disclosed as the information is classified as "secret" as per MTNL IT Policy Revision 2.0 and also comes under Section -8 (1) (a) and (d) of the RTI Act 2005.
MTNL GSM Packet Core equipment for data access uses MTNL ISP as its interface with external entities. Thus information is pertaining to MTNL ISP and hence a reply may please be taken from the GM (Broadband) unit.
Same answer as "3" above.
Same answer as "3" above.

BSNL has still not responded to the above questions.

Click below to download the respective files:

For more details visit https://cis-india.org/internet-governance/blog/rti-requests-to-bsnl-mtnl-regarding-security-equipment

Right to Exclusion, Government Spaces, and Speech

TorShark — 2021-07-02T12:05:13Z

The conclusion of the litigation surrounding Trump blocking its critiques on Twitter brings to forefront two less-discussed aspects of intermediary liability: a) if social media platforms could be compelled to ‘carry’ speech under any established legal principles, thereby limiting their right to exclude users or speech, and b) whether users have a constitutional right to access social media spaces of elected officials. This essay analyzes these issues under the American law, as well as draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account.

This article first appeared on the Indian Journal of Law and Technology (IJLT) blog, and can be accessed here. Cross-posted with permission.

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Introduction

On April 8, the Supreme Court of the United States (SCOTUS), vacated the judgment of the US Court of Appeals for Second Circuit’s in Knight First Amendment Institute v Trump. In that case, the Court of Appeals had precluded Donald Trump, then-POTUS, from blocking his critics from his Twitter account on the ground that such action amounted to the erosion of constitutional rights of his critics. The Court of Appeals had held that his use of @realDonaldTrump in his official capacity had transformed the nature of the account from private to public, and therefore, blocking users he disagreed with amounted to viewpoint discrimination, something that was incompatible with the First Amendment.

The SCOTUS ordered the case to be dismissed as moot, on account of Trump no longer being in office. Justice Clarence Thomas issued a ten-page concurrence that went into additional depth regarding the nature of social media platforms and user rights. It must be noted that the concurrence does not hold any direct precedential weightage, since Justice Thomas was not joined by any of his colleagues at the bench for the opinion. However, given that similar questions of public import, are currently being deliberated in the ongoing Sanjay Hegde litigation in the Delhi High Court, Justice Thomas’ concurrence might hold some persuasive weightage in India. While the facts of these litigations might be starkly different, both of them are nevertheless characterized by important questions of applying constitutional doctrines to private parties like Twitter and the supposedly ‘public’ nature of social media platforms.

In this essay, we consider the legal questions raised in the opinion as possible learnings for India. In the first part, we analyze the key points raised by Justice Thomas, vis-a-vis the American legal position on intermediary liability and freedom of speech. In the second part, we apply these deliberations to the Sanjay Hegde litigation, as a case-study and a roadmap for future legal jurisprudence to be developed.

A flawed analogy

At the outset, let us briefly refresh the timeline of Trump’s tryst with Twitter, and the history of this litigation: the Court of Appeals decision was issued in 2019, when Trump was still in office. Post-November 2020 Presidential Election, where he was voted out, his supporters broke into Capitol Hill. Much of the blame for the attack was pinned on Trump’s use of social media channels (including Twitter) to instigate the violence and following this, Twitter suspended his account permanently.

It is this final fact that seized Justice Thomas’ reasoning. He noted that a private party like Twitter’s power to do away with Trump’s account altogether was at odds with the Court of Appeals’ earlier finding about the public nature of the account. He deployed a hotel analogy to justify this: government officials renting a hotel room for a public hearing on regulation could not kick out a dissenter, but if the same officials gather informally in the hotel lounge, then they would be within their rights to ask the hotel to kick out a heckler. The difference in the two situations would be that, “the government controls the space in the first scenario, the hotel, in the latter.” He noted that Twitter’s conduct was similar to the second situation, where it “control(s) the avenues for speech”. Accordingly, he dismissed the idea that the original respondents (the users whose accounts were blocked) had any First Amendment claims against Trump’s initial blocking action, since the ultimate control of the ‘avenue’ was with Twitter, and not Trump.

In the facts of the case however, this analogy was not justified. The Court of Appeals had not concerned itself with the question of private ‘control’ of entire social media spaces, and given the timeline of the litigation, it was impossible for them to pre-empt such considerations within the judgment. In fact, the only takeaway from the original decision had been that an elected representative’s utilization of his social media account for official purposes transformed only that particular space into a public forum where constitutional rights would find applicability. In delving into questions of ‘control’ and ‘avenues of speech’, issues that had been previously unexplored, Justice Thomas conflates a rather specific point into a much bigger, general conundrum. Further deliberations in the concurrence are accordingly put forward upon this flawed premise.

Right to exclusion (and must carry claims)

From here, Justice Thomas identified the problem to be “private, concentrated control over online content and platforms available to the public”, and brought forth two alternate regulatory systems — common carrier and public accommodation — to argue for ‘equal access’ over social media space. He posited that successful application of either of the two analogies would effectively restrict a social media platform’s right to exclude its users, and “an answer may arise for dissatisfied platform users who would appreciate not being blocked”. Essentially, this would mean that platforms would be obligated to carry all forms of (presumably) legal speech, and users would be entitled to sue platforms in case they feel their content has been unfairly taken down, a phenomenon Daphne Keller describes as ‘must carry claims’.

Again, this is a strange place to find the argument to proceed, since the original facts of the case were not about ‘dissatisfied platform users’, but an elected representative’s account being used in dissemination of official information. Beyond the initial ‘private’ control deliberation, Justice Thomas did not seem interested in exploring this original legal position, and instead emphasized on analogizing social media platforms in order to enforce ‘equal access’, finally arriving at a position that would be legally untenable in the USA.

The American law on intermediary liability, as embodied in Section 230 of the Communications Decency Act (CDA), has two key components: first, intermediaries are protected against the contents posted by its users, under a legal model termed as ‘broad immunity’, and second, an intermediary does not stand to lose its immunity if it chooses to moderate and remove speech it finds objectionable, popularly known as the Good Samaritan protection. It is the effect of these two components, combined, that allows platforms to take calls on what to remove and what to keep, translating into a ‘right to exclusion’. Legally compelling them to carry speech, under the garb of ‘access’ would therefore, strike at the heart of the protection granted by the CDA.

Learnings for India

In his petition to the Delhi High Court, Senior Supreme Court Advocate, Sanjay Hegde had contested that the suspension of his Twitter account, on the grounds of him sharing anti-authoritarian imagery, was arbitrary and that:

Twitter was carrying out a public function and would be therefore amenable to writ jurisdiction under Article 226 of the Indian Constitution; and
The suspension of his account had amounted to a violation of his right to freedom of speech and expression under Article 19(1)(a) and his rights to assembly and association under Article 19(1)(b) and 19(1)(c); and
The government has a positive obligation to ensure that any censorship on social media platforms is done in accordance with Article 19(2).

The first two prongs of the original petition are perhaps easily disputed: as previous commentary has pointed out, existing Indian constitutional jurisprudence on ‘public function’ does not implicate Twitter, and accordingly, it would be a difficult to make out a case that account suspensions, no matter how arbitrary, would amount to a violation of the user’s fundamental rights. It is the third contention that requires some additional insight in the context of our previous discussion.

Does the Indian legal system support a right to exclusion?

Suing Twitter to reinstate a suspended account, on the ground that such suspension was arbitrary and illegal, is in its essence a request to limit Twitter’s right to exclude its users. The petition serves as an example of a must-carry claim in the Indian context and vindicates Justice Thomas’ (misplaced) defence of ‘dissatisfied platform users’. Legally, such claims perhaps have a better chance of succeeding here, since the expansive protection granted to intermediaries via Section 230 of the CDA, is noticeably absent in India. Instead, intermediaries are bound by conditional immunity, where availment of a ‘safe harbour’, i.e., exemption from liability, is contingent on fulfilment of statutory conditions, made under section 79 of the Information Technology (IT) Act and the rules made thereunder. Interestingly, in his opinion, Justice Thomas had briefly visited a situation where the immunity under Section 230 was made conditional: to gain Good Samaritan protection, platforms might be induced to ensure specific conditions, including ‘nondiscrimination’. This is controversial (and as commentators have noted, wrong), since it had the potential to whittle down the US' ‘broad immunity’ model of intermediary liability to a system that would resemble the Indian one.

It is worth noting that in the newly issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, proviso to Rule 3(1)(d) allows for “the removal or disabling of access to any information, data or communication link [...] under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) [...]” without dilution of statutory immunity. This does provide intermediaries a right to exclude, albeit limited, since its scope is restricted to content removed under the operation of specific sub-clauses within the rules, as opposed to Section 230, which is couched in more general terms. Of course, none of this precludes the government from further prescribing obligations similar to those prayed in the petition.

On the other hand, it is a difficult proposition to support that Twitter’s right to exclusion should be circumscribed by the Constitution, as prayed. In the petition, this argument is built over the judgment in Shreya Singhal v Union of India, where it was held that takedowns under section 79 are to be done only on receipt of a court order or a government notification, and that the scope of the order would be restricted to Article 19(2). This, in his opinion, meant that “any suo-motu takedown of material by intermediaries must conform to Article 19(2)”.

To understand why this argument does not work, it is important to consider the context in which the Shreya Singhal judgment was issued. Previously, intermediary liability was governed by the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under section 79 of the IT Act. Rule 3(4) made provisions for sending takedown orders to the intermediary, and the prerogative to send such orders was on ‘an affected person’. On receipt of these orders, the intermediary was bound to remove content and neither the intermediary nor the user whose content was being censored, had the opportunity to dispute the takedown.

As a result, the potential for misuse was wide-open. Rishabh Dara’s research provided empirical evidence for this; intermediaries were found to act on flawed takedown orders, on the apprehension of being sanctioned under the law, essentially chilling free expression online. The Shreya Singhal judgment, in essence, reined in this misuse by stating that an intermediary is legally obliged to act only when a takedown order is sent by the government or the court. The intent of this was, in the court’s words: “it would be very difficult for intermediaries [...] to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”

In light of this, if Hegde’s petition succeeds, it would mean that intermediaries would now be obligated to subsume the entirety of Article 19(2) jurisprudence in their decision-making, interpret and apply it perfectly, and be open to petitions from users when they fail to do so. This might be a startling undoing of the court’s original intent in Shreya Singhal. Such a reading also means limiting an intermediary’s prerogative to remove speech that may not necessarily fall within the scope of Article 19(2), but is still systematically problematic, including unsolicited commercial communications. Further, most platforms today are dealing with an unprecedented spread and consumption of harmful, misleading information. Limiting their right to exclude speech in this manner, we might be exacerbating this problem.

Government-controlled spaces on social media platforms

On the other hand, the original finding of the Court of Appeals, regarding the public nature of an elected representative’s social media account and First Amendment rights of the people to access such an account, might yet still prove instructive for India. While the primary SCOTUS order erases the precedential weight of the original case, there have been similar judgments issued by other courts in the USA, including by the Fourth Circuit court and as a result of a lawsuit against a Texas Attorney General.

A similar situation can be envisaged in India as well. The Supreme Court has repeatedly held that Article 19(1)(a) encompasses not just the right to disseminate information, but also the right to receive information, including receiving information on matters of public concern. Additionally, in Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, the Court had held that the right of dissemination included the right of communication through any media: print, electronic or audio-visual. Then, if we assume that government-controlled spaces on social media platforms, used in dissemination of official functions, are ‘public spaces’, then the government’s denial of public access to such spaces can be construed to be a violation of Article 19(1)(a).

Conclusion

As indicated earlier, despite the facts of the two litigations being different, the legal questions embodied within converge startlingly, inasmuch that are both examples of the growing discontent around the power wielded by social media platforms, and the flawed attempts at fixing it.

While the above discussion might throw some light on the relationship between an individual, the state and social media platforms, many questions still continue to remain unanswered. For instance, once we establish that users have a fundamental right to access certain spaces within the social media platform, then does the platform have a right to remove that space altogether? If it does so, can a constitutional remedy be made against the platform? Initial commentary on the Court of Appeals’ decision had contested that the takeaway from that judgment had been that constitutional norms had a primacy over the platform’s own norms of governance. In such light, would the platform be constitutionally obligated to not suspend a government account, even if the content on such an account continues to be harmful, in violation of its own moderation standards?

This is an incredibly tricky dimension of the law, made trickier still by the dynamic nature of the platforms, the intense political interests permeating the need for governance, and the impacts on users in the instance of a flawed solution. Continuous engagement, scholarship and emphasis on having a human rights-respecting framework underpinning the regulatory system, are the only ways forward.

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The author would like to thank Gurshabad Grover and Arindrajit Basu for reviewing this piece.

For more details visit https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech

Right to Education and the Future of Our Languages

praskrishna — 2015-05-27T14:00:44Z

The Department of Linguistics, University of Mumbai and Dr. Rakhmabai Educational Resource and Research Centre in association with ICSSR (WRC) organized a National Symposium on Right to Education and the Future of Our Languages at Pherozeshah Mehta Bhavan from March 9 to 11, 2015. Tanveer Hasan was a speaker.

Prof. Ganesh Devy gave the inaugural address and Prof. Anita Rampal gave the keynote address. Tanveer Hasan spoke about the importance of Free and Open Resources of Knowledge and how these resources could be harnessed in providing access to knowledge and subsequently claim the right to education. The event was organized as an effort to understand the effect of RTE act on the primary and high school education standards across India with special reference to Maharashtra. The workshop also provided an opportunity to meet several like minded institutions and individuals.

More information on the event here.

For more details visit https://cis-india.org/openness/news/right-to-education-and-future-of-our-languages

Revisiting Per Se vs Rule of Reason in Light of Intel

Admin — 2017-10-04T13:00:38Z

For more details visit https://cis-india.org/internet-governance/files/revisiting-per-se-vs-rule-of-reason-in-light-of-intel.pdf

Reversing India's Downward Trajectory

Shyam Ponappa — 2012-03-01T05:30:58Z

The country can regain growth momentum with rate cuts and telecom reforms, writes Shyam Ponappa in this column published in the Business Standard on 5 January 2012.

The welter of confusing pulls and pushes on India’s political economy makes finding the way forward really difficult. The government apparently cannot sustain economic reform initiatives, and does not have the finances for a stimulus package. The private sector is sitting on cash, but cannot invest because it is facing slowing growth and reducing margins. Known problem areas in infrastructure cannot absorb investment despite critical shortages in output — power generation and distribution is an example. Is there really nothing that can be done but to wait and watch while everything slowly grinds down?

The circumstances are formidable: a cantankerous Opposition using scorched-earth tactics, an anarchic citizenry usurping law-making functions after the abdication by the government and the Opposition, and an administration stupefied by the CAG phantom and other witch-hunts, with media Rottweilers searching through the carnage for the scandal-of-the-day.

This article identifies critical factors at the heart of the matter, and suggests remedial action. Slowing growth is the primary problem, and can be reversed without political manoeuvring.

The Crux: Reverse Slowing Growth

Some underlying factors that drive everything else need to be recognised and dealt with. For India at this stage, growth is all-important. This is the issue to be recognised and addressed.

The slowdown is largely self-inflicted, by escalating interest rates in a misguided effort to counter inflation. Yes, there are many other problems, but unless we have high growth for years together, other problems will swamp not only the analysis, but all efforts at execution. The consequences could be devastating — not only because of the large numbers of people who are not adequately housed and fed, but because a flood of young people entering what could be a productive workforce may end up on the streets instead.

There are two aspects to India’s growth. The largest component (growth of six to seven per cent) is driven by domestic demand. On top of that, foreign investment can add one to three per cent, to take annual GDP growth to eight to nine per cent, or perhaps even more. One can quibble, but the relative proportions are from two-to-one to four-to-one. It needs to be understood, however, that the incremental growth is driven by foreign investment, which is attracted by existing growth, and builds on it. Absent domestic growth, foreign investment dries up; worse, it flows out when growth is seen to be decelerating. This in turn increases downward pressure on the rupee.

This is the situation we have been heading towards, and are now squarely in. If domestic growth continues to stall, an outflow of foreign portfolio investments could put more pressure on the rupee. Domestic growth, therefore, has to be revived. Immediate steps are possible in two areas.

Lower Interest Rates

The Reserve Bank of India (RBI) does not need the approval of our contentious politics, nor of the public. All it needs is the understanding and willingness to reduce interest rates. If this happens, large businesses can concentrate on domestic investment instead of being driven offshore to protect their future, while small and medium businesses are not emasculated by high interest. It’s hard enough dealing with poor productivity because of a lack of physical infrastructure. High interest rates – factors within the nation’s control, with no political headwinds – are the last straw.

Academics and theoreticians may argue that with inflation being high, real interest rates are only around three to four per cent, but anyone who has run a profit centre or dealt with practical finance knows that these arguments don’t hold. When margins are dropping and interest costs are high, businesses run down, reinforcing the downward momentum.

In this context, a recent article on these pages by Jaimini Bhagwati highlights an enduring problem: central banks’ lack of accountability (“How unaccountable are central banks?”, Business Standard, December 16: http://www.business-standard.com/india /news/jaimini-bhagwati-how-unaccountablecentral-banks/458599/). It’s as though central bankers play to their own coterie of other central bankers, holding tight while the ships go down. If you need convincing, consider Alan Greenspan’s assessment: “…the origination of subprime mortgages – as opposed to the rise in global demand for securitised subprime-mortgage interests – was not a significant cause of the financial crisis.” Collateralised debt obligations indeed triggered the crisis, but there can be little doubt that loans premised on mansions for everyone lead to disaster, like any pyramid scheme.

As for the RBI’s accountability, the “presumptive loss” from the reduced GDP because of interest rate increases could be two to three per cent a year. One per cent is around Rs 92,000 crore, making three per cent Rs 2,76,000 crore.

Telecom Reforms

Positive sentiments can and must be triggered by constructive reform in telecom, through extending the revenue-sharing approach to pay-for-use spectrum and network sharing. This, too, needs more applied logic and problem solving expertise rather than political finesse.

After an encouraging Draft National Telecom Policy-2011 (NTP-2011) last year, there are unsettling signs. One is recurring delays, with a new policy expected in June 2012.

Second, there’s the confusing juxtaposition of spectrum sharing in the draft policy with recent statements about more auctions. The draft policy mentions spectrum trading for “efficient and optimal utilisation”, but if spectrum sharing results in both, presumably the need for trading will arise only for holders to get the assets off their books. The realpolitik is that dominant operators want auctions to corner scarce spectrum for their exclusive use, while the others want auctions for a lucrative sell-out. But this ignores the public interest, comprising users who want good, affordable broadband services, and defence, security, and other government needs that are in our collective interests.

The government has a unique opportunity to clear up India’s telecom policies, although precipitated ignominiously by the scams. Now, the government must grasp the nettle by extending the revenue-sharing principle of NTP-99 through open access to spectrum and networks. Other necessary elements include:

compensation for dominant players for giving up their advantage, with
stakes in appropriately structured consortiums for Next Generation Networks, and
incentives for affordable broadband delivery.

Interest rates can be cut tomorrow. A sound telecom policy on the above lines could be formulated by June.

Read the original published in the Business Standard

For more details visit https://cis-india.org/telecom/reversing-downward-trajectory

Rethinking Privacy Principles

elonnai — 2017-09-11T02:17:02Z

For more details visit https://cis-india.org/internet-governance/files/rethinking-privacy-principles

Rethinking DNA Profiling in India

elonnai — 2012-10-29T08:00:01Z

DNA profile databases can be useful tools in solving crime, but given that the DNA profile of a person can reveal very personal information about the individual, including medical history, family history and so on, a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples needs included in the draft Human DNA Profiling Bill.

Elonnai Hickok's article was published in Economic & Political Weekly, Vol - XLVII No. 43, October 27, 2012

DNA evidence was first accepted by the courts in India in 1985,[1] and in 2005 the Criminal Code of Procedure was amended to allow for medical practitioners, after authorisation from a police officer who is not below the rank of sub-inspector, to examine a person arrested on the charge of committing an offence and with reasonable grounds that an examination of the individual will bring to light evidence regarding the offence. This can include

"the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples, and finger nail clippings, by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case."[2]

Though this provision establishes that authorisation is needed for collection of DNA samples, defines who can collect samples, creates permitted circumstances for collection, and lists material that can be collected, among other things, it does not address how the collected DNA evidence should be handled, and what will happen to the evidence after it is collected and analysed. These gaps in the provision indicate the need for a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples, including for crime-related purposes in India.

The initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology (DoB) established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling Bill 2006, which eventually became the Human DNA Profiling Bill 2007.[3] The 2007 draft Bill was prepared by the DoB along with the Centre for DNA Fingerprinting and Diagnostics (CDFD).[4]

The CDFD is an autonomous institution supported by the DoB. In addition to the CDFD, there are multiple Central Forensic Science Laboratories in India under the control of the Ministry of Home Affairs and the Central Bureau of Investigation,[5], along with a number of private labs [6] which analyse DNA samples for crime-related purposes.

In 2007, the draft Human DNA Profiling Bill was made public, but was never introduced in Parliament. In February 2012, a new version of the Bill was leaked. If passed, the Bill will establish state-level DNA databases which will feed into a national-level DNA database, and proposes to regulate the use of DNA for the purposes of

"enhancing protection of people in the society and the administration of justice."[7]

The Bill will also establish a DNA Profiling Board responsible for 24 functions, including specifying the list of instances for human DNA profiling and the sources of collection, enumerating guidelines for storage and destruction of biological samples, and laying down standards and procedures for establishment and functioning of DNA laboratories and DNA Data Banks.[8] The lack of harmonisation and clear policy indicates that there is a need in India for standardising the collection and use of DNA samples. Although DNA evidence can be useful for solving crimes, the current 2012 draft Bill is missing critical safeguards and technical standards essential to preventing the misuse of DNA and protecting individual rights.

Concerns that have been raised with regards to the Bill are both intrinsic, including problems with effectiveness of achieving the set objectives, and extrinsic, including concerns with the fundamental principles of the Bill. For example, the use of DNA material as evidence and the subsequent creation of a DNA database can be useful for solving crimes when the database contains DNA profiles from[9] from DNA samples[10] only from crime scenes, and is restricted to DNA profiles from individuals who might be repeat offenders. If a wide range of DNA profiles are added to the database, the effectiveness of the database decreases, and the likelihood of a false match increases as the ability to correctly identify a criminal depends on the number of crime scene DNA profiles on the database, and the number of false matches that occur is proportional to the number of comparisons made (more comparisons = more false matches).[11] This inverse relationship between the effectiveness of the DNA database and the size of the database was found in the UK when it was proven that the expansion of the UK DNA database did not help to solve more crimes, despite millions of profiles being added to the database.[12]

The current scope of the draft 2012 Bill is not limited to crimes for which samples can be taken and placed in the database. Instead the Bill creates indexes within every databank including: crime scene indexes, suspects index, offender’s index, missing persons index, unknown deceased persons’ index, volunteers’ index, and such other DNA indices as may be specified by regulations made by the Board.[13] How independent each of these indices are, is unclear. For example, the Bill does not specify when a profile is searched for in the database – if all indices are searched, or if only the relevant indices are searched, and the Bill requires that when a DNA profile is added to the databank, it must be compared with all the existing profiles.[14] The Bill also lists a range of offences for which DNA profiling will be applicable and DNA samples collected, and used for the identification of the perpetrator including, unnatural offences, individual identification, issues relating to assisted reproductive technologies, adultery, outraging the modesty of women etc.[15] Though the Bill is not incorrect in its list of offences where DNA profiling could be applicable, it is unclear if DNA profiles from all the listed offenses will be stored on the database. If it is the case that the DNA profiles will be stored, it would make the scope of the database too broad.

Unlike other types of identifiers, such as fingerprints, DNA can reveal very personal information about an individual, including medical history, family history and location.[16] Thus, having a DNA database with a broad scope and adding more DNA profiles onto a database, increases the potential for misuse of information stored on the database, because there is more opportunity for profiling, tracking of individuals, and access to private data. In its current form, the Bill protects against such misuse to a certain extent by limiting the information that will be stored with a DNA profile and in the indices,[17] but the Bill does not make it clear if the DNA profiles of individuals convicted for a crime will be stored and searched independently from other profiles. Additionally, though the Bill limits the use of DNA profiles and DNA samples to identification of perpetrators,[18] it allows for DNA profiles/DNA samples and related information related to be shared for creation and maintenance of a population statistics database that is to be used, as prescribed, for the purpose of identification research, protocol development, or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.”[19]

An indication of the possibility of how a DNA database could be misused in India can be seen in the CDFD’s stated objectives, where it lists "to create DNA marker databases of different caste populations of India."[20] CDFD appears to be collecting this data by requiring caste and origin of state to be filled in on the identification form that is submitted with any DNA sample.[21] Though an argument could be made that this information could be used for research purposes, there appears to be no framework over the use of this information and this objective. Is the information stored along with the DNA sample? Is it used in criminal cases? Is it revealed during court cases or at other points of time?

Similarly, in the Report of the Working Group for the Eleventh Five Year Plan, it lists the following as a possible use of DNA profiling technology:

"Human population analysis with a view to elicit profiling of different caste populations of India to use them in forensic DNA fingerprinting and develop DNA databases."[22]

This objective is based on the assumption that caste is an immutable genetic trait and seems to ignore the fact that individuals change their caste and that caste is not uniformly passed on in marriage. Furthermore, using caste for forensic purposes and to develop DNA databases could far too easily be abused and result in the profiling of individuals, and identification errors. For example, in 2011 the UK police, in an attempt to catch the night stalker Delroy Grant, used DNA to (incorrectly) predict that he originated from the Winward Islands. The police then used mass DNA screenings of black men. The police initially eliminated Delroy Grant as a suspect because another Delroy Grant was on the DNA database, and the real Delroy Grant was eventually caught when the police pursued more traditional forms of investigation.[23]

Other uses for DNA databases and DNA samples in India have been envisioned over the years. For example, in 2010 the state of Tamil Nadu sought to amend the Prisoners Identification Act 1920 to allow for the establishment of a prisoners’ DNA database – which would require that any prisoner’s DNA be collected and stored.[24] In another example, the home page of BioAxis DNA Research Centre (P) Limited, a private DNA laboratory offering forensic services states,

"In a country like India which is densely populated there is huge requirement for these type of databases which may help in stopping different types of fraud like Ration card fraud, Voter ID Card fraud, Driving license fraud etc. The database may help the Indian police to differentiate the criminals and non criminals."[25] Not only is this statement incorrect in stating that a DNA database will differentiate between criminals and non-criminals, but DNA evidence is not useful in stopping ration card fraud etc. as it would require that DNA be extracted and authenticated for every instance of service. In 2012, the Department of Forensic Medicine and Toxicology at AFMC Pune proposed to establish a DNA data bank containing profiles of armed forces personnel.[26] And in Uttar Pradesh, the government ordered mandatory sampling for DNA fingerprinting of dead bodies.[27] These examples raise important questions about the scope of use, collection and storage of DNA profiles in databases that the Bill is silent on.

The assumption in the Bill that DNA evidence is infallible is another point of contention. The preamble of the Bill states that, "DNA analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead with any doubt."[28]

This statement ignores the possibility of false matches, cross-contamination, and laboratory error[29] as DNA evidence is only as infallible as the humans collecting, analysing, and marshalling the evidence. These mistakes are not purely speculative, as cases that have relied on DNA as evidence in India demonstrate that the reliability of DNA evidence is questionable due to collection, analysis, and chain of custody errors. For example, in the Aarushi murder case the forensic expert who testified failed to remember which samples were collected at the scene of the crime[30] in the French diplomat rape case, the DNA report came out with both negative and positive results;[31] and in the Abhishek rape case the DNA sample had to be reanalysed after initial analysis did not prove conclusive.[32] Yet the Bill does not mandate a set of best practices that could help in minimising these errors, such as defining what profiling system will be used nationally, and defining specific security measures that must be taken by DNA laboratories – all of which are currently left to be determined by the DNA board.[33]

The assumption in the preamble that DNA can establish if a relationship exists between two individuals without a doubt is also misleading as it implies that the use of DNA samples and the creation of a database will increase the conviction rate, when in actuality the exact number of accurate convictions resulting purely from DNA evidence is unknown, as is the number of innocent people who are falsely accused of a crime based on DNA evidence in India. This misconception is reflected on the website of the Department of Biotechnology’s information page for CDFD where it states:

"…The DNA fingerprinting service, given the fact that it has been shown to bring about dramatic increase in the conviction rate, will continue to be in much demand. With the crime burden on the society increasing, more and more requests for DNA fingerprinting are naturally anticipated. For example, starting from just a few cases of DNA fingerprinting per month, CDFD is now handling similar number of cases every day."[34]

In addition to the claim that the DNA fingerprinting service has shown a dramatic increase in the conviction rate, is not supported by evidence in this article, according to the CDFD 2010-2011 annual report, the centre analysed DNA from 57 cases of deceased persons, 40 maternity/paternity cases, four rape and murder cases, eight sexual assault cases, and three kidney transplantation cases.[35] This is in comparison to the 2006 – 2007 annual report, which quoted 83 paternity/maternity dispute cases, 68 identification of deceased, 11 cases of sexual assault, eight cases of murder, and two cases of wildlife poaching.[36] From the numbers quoted in the CDFD annual report, it appears that paternity/maternity cases and identification of the deceased are the most frequent types of cases using DNA evidence.

Other concerns with the Bill include access controls to the database and rights of the individual. For example, the Bill does not require that a court order be issued for access to a DNA profile, and instead leaves it in the hand of the DNA bank manager to determine if communication of information relating to a match to a court, tribunal, law enforcement agency, or DNA laboratory is appropriate.[37]

Additionally, the Data Bank Manager is empowered to grant access to any information on the database to any person or class of persons that he/she considers appropriate for the purposes of proper operation and maintenance or for training purposes.[38] The low standards for access that are found in the Bill are worrisome as the possibility for tampering of evidence and analysis is increased.

The Bill is also missing important provisions that would be necessary to protect the rights of the individual. For example, individuals are not permitted a private cause of action for the unlawful collection, use, or retention of DNA, and individuals do not have the right to access their own information stored on the database.[39] These are significant gaps in the proposed legislation as it restricts the rights of the individual.

In conclusion, India could benefit from having a legislation regulating, standardising, and harmonising the use, collection, analysis, and retention of DNA samples for crime-related purposes. The current 2012 draft of the Bill is a step in the right direction, and an improvement from the 2007 DNA Profiling Bill. The 2012 draft draws upon best practices from the US and Canada, but could also benefit from drawing upon best practices from countries like Scotland. Safeguards missing from the current draft that would strengthen the Bill include: limiting the scope of the DNA database to include only samples from a crime scene for serious crimes and not minor offenses, requiring the destruction of DNA samples once a DNA profile is created, clearly defining when a court order is needed to collect DNA samples, defining when consent is required and is not required from the individual for a DNA sample to be taken, and ensuring that the individual has a right of appeal.

[1]. Law Commission of India. Review of the Indian Evidence Act 1872. Pg. 43 Available at: http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf. Last accessed: October 9th 2012.
[2]. Section 53. The Criminal Code of Procedure, 1973. Available at: http://www.vakilno1.com/bareacts/crpc/s53.htm. Last accessed October 9th 2012.
[3]. Department of Biotechnology. Ministry of Science & Technology GOI. Annual Report 2009 – 2010. pg. 189. Available at: http://dbtindia.nic.in/annualreports/DBT-An-Re-2009-10.pdf. Last Accessed October 9th 2012.
[4]. Chhibber, M. Govt Crawling on DNA Profiling Bill, CBI urges it to hurry, cites China. The Indian Express. July 12 2010. Available at: http://www.indianexpress.com/news/govt-crawling-on-dna-profiling-bill-cbi-urges-it-to-hurry-cites-china/645247/0. Last accessed: October 9th 2012.
[5]. Perspective Plan for Indian Forensics. Final report 2010. Table 64.1 -64.3 pg. 264-267. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012. And CBI Manual. Chapter 27. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012.
[6]. For example: International Forensic Sciences, DNA Labs India (DLI), Truth Labs and Bio-Axis DNA Research Centre (P) Limited.
[7]. Draft Human DNA Profiling Bill 2012. Introduction.
[8]. Id. section 12(a-z)
[9]. Id. Definition l. “DNA Profile” means results of analysis of a DNA sample with respect to human identification.
[10]. Id. Definition m. “DNA sample” means biological specimen of any nature that is utilized to conduct CAN analysis, collected in such manner as specified in Part II of the Schedule.
[11]. The UK DNA database and the European Court of Human Rights: Lessons India can learn from UK mistakes. PowerPoint Presentation. Dr. Helen Wallace, Genewatch UK. September 2012.
[12]. Hope, C. Crimes solved by DNA evidence fall despite millions being added to database. The Telegraph. November 12th 2008. Available at: http://www.telegraph.co.uk/news/uknews/law-and-order/3418649/Crimes-solved-by-DNA-evidence-fall-despite-millions-being-added-to-database.html. Last accessed: October 9th 2012
[13]. Draft Human DNA Profiling Bill 2012. Section 32 (4(a-g))
[14]. Id. Section 35
[15]. Id. Schedule: List of applicable instances of Human DNA Profiling and Sources of Collection of Samples for DNA Test.
[16]. Gruber J. Forensic DNA Databases. Council for Responsible Genetics. September 2012. Powerpoint presentation.
[17]. Draft Human DNA Profiling Bill 2012. Section 32 (5)- 6)(a)-(b^[+] . Indices will only contain DNA identification records and analysis prepared by the laboratory and approved by the DNA Board, while profiles in the offenders index will contain only the identity of the person, and other profiles will contain only the case reference number.
[18]. Id. Section 39
[19]. Id. Section 40(c)
[20]. CDFD. Annual Report 2010-2011. Pg19. Available at: http://www.cdfd.org.in/images/AR_2010_11.pdf. Last accessed: October 9th 2012.
[21]. Caste and origin of state is a field of information that is required to be completed when an ‘identification form’ is sent to the CDFD along with a DNA sample for analysis. Form available at: http://www.cdfd.org.in/servicespages/dnafingerprinting.html
[22]. Report of the Working Group for the Eleventh Five Year Plan (2007 – 2012). October 2006. Pg. 152. Section: R&D Relating Services. Available at: http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_subdbt.pdf. Last accessed: October 9th 2012
[23]. Evans. M. Night Stalker: police blunders delayed arrest of Delroy Grant. March 24th 2011. The Telegraph. Available at: http://www.telegraph.co.uk/news/uknews/crime/8397585/Night-Stalker-police-blunders-delayed-arrest-of-Delroy-Grant.html. Last accessed: October 10th 2012.
[24]. Narayan, P. A prisoner DNA database: Tamil Nadu shows the way. May 17th 2012. Available at: http://timesofindia.indiatimes.com/india/A-prisoner-DNA-database-Tamil-Nadu-shows-the-way/iplarticleshow/5938522.cms. Last accessed: October 9th 2012.
[25]. BioAxis DNA Research Centre (P) Limited. Website Available at: http://www.dnares.in/dna-databank-database-of-india.php. Last accessed: October 10th 2012.
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[27]. Siddiqui, P. UP makes DNA sampling mandatory with postmortem. Times of India. September 4th 2012. Available at:http://articles.timesofindia.indiatimes.com/2012-09-04/lucknow/33581061_1_dead-bodies-postmortem-house-postmortem-report. Last accessed: October 10th 2012.
[28]. Draft DNA Human Profiling Bill 2012. Introduction
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For more details visit https://cis-india.org/internet-governance/blog/epw-web-exclusives-oct-27-2012-elonnai-hickok-rethinking-dna-profiling-india

Rethinking Conditions of Access

sneha — 2015-11-13T05:35:00Z

P. P. Sneha explores the possibilities of redefining the idea of access through the channels of education and learning.

The advent and pervasive growth of the internet and digital technologies in the last couple of decades have caused several changes in the way we now imagine education and processes of learning, both within and outside the classroom. The increasing use of digital tools, platforms and methods in classroom pedagogy, and the access for students to resources through online and collaborative repositories such as Wikipedia have led to a change in not just teaching practices, but also in the learning environment, which has now become more open, iterative and participatory in nature. While increased access to the internet may be one factor contributing to this change, the conditions of such access – how it is made available, to whom and for what purpose – still remain contentious. As per recent statistics, India has more than 200 million internet users, but as several studies on online users have illustrated, the numbers are hardly indicative of the nature of online engagement. The problem of the ‘digital divide’, though much debated and addressed, still persists in India, as in several other countries, with lack of infrastructure and low broadband speed being two among several reasons for the slow move in bridging this gap.

Last year, the Digital Inclusion Index map indicated India as only BRICS country ‘at extreme risk’ on the ‘digital divide’

The problem of the digital divide itself has largely been understood as one of access to the internet and/or broadly digital technologies, but the conditions of this access, in terms of the nature of its use and adaptability to a dynamic and ever-changing technological landscape is something that needs to be looked at critically, in order to provide a more nuanced understanding of the problem itself, and its inherent conflicts. The technological landscape we inhabit today is quite diverse, and rather multi-layered, as a result of which conditions of access also differ across spaces and in degrees. The problematisation, therefore, will need to be more qualitative and nuanced, to take into account several variables spread over social, cultural and economic categories.

The assumption of the internet, as an open and accessible, therefore neutral space, has also been questioned time and again, with the latest debates around net neutrality being illustrative of this conflict. Though there is a growing interest in exploring and using the democratic potential that the internet offers, as demonstrated by several forms of online social activism and the growth of open access digital knowledge repositories and public archival spaces, there are also pertinent concerns about privacy, accessibility and the quality of online interaction and content. A large part of this uncertainty and the conflicts we see around access and regulation may be attributed to the fact that the nature of the internet, or the digital itself as concept, method or space has not been adequately explored or theorised. As a public sphere, it often reprises certain systemic forms of injustice and marginalisation seen offline, and conflates them with notions pertaining to the personal. As such, social, economic and linguistic barriers mediate the access we have to certain kinds and forms of discourse online, thereby making physical access the first step towards being part of the labyrinthian world that is the internet.

How can e-learning start, when the general access is very fragmented?

These conflicts are present in the classroom and other spaces and processes of learning as well, where traditionally there has been resistance to the use of technology, and particularly the internet as it is seen as a disturbance or a deterrent to learning. But technology has always been a part of the classroom, and now with the mobile phone becoming ubiquitous, it is indeed difficult to imagine that a student who has access to such a device would be disconnected from the internet, or not look toward other digital tools and methods to engage with, for educational or recreational purposes. However, indeed, how much of this engagement is effectively connected to learning is still a bone of contention, and is yet to be explored adequately.

What are the changes in the learning environment that the advent of digital technologies has produced? What challenges do they pose for both teachers and students? And what are the possible solutions that these areas of research are opening up? A more integrated and inclusive approach in designing methods and tools for use in the classroom could be one way of making issues and conflicts in this space more transparent. Several efforts in education technology and experiments in digital learning have focused precisely on this aspect. The sheer visibility and vastness of the internet offers several possibilities in terms of access to materials, tools and resources online. Several large-scale efforts in digitisation made by both the state and public organisations are attempts to utilise this potential, and they speak of the growing interest in making material available online for both classroom teaching and research.

The MOOCs are slowly challenging the universities. See the image full screen

The growth of Massive Open Online Courses (MOOCs) is an example of the fervour of online platforms of learning, which provide students across the world with an access to teaching and course material from some of the best institutions. However, there have been, at least in their earlier versions, several critiques of these platforms, as well, precisely because they replicate a certain classroom teaching model that is not accessible to students everywhere. This urges us to revisit the premise of such structures.

The ‘digital turn’ in the last couple of decades has engendered several changes in the way knowledge is now produced, disseminated and consumed by people located in different areas. It has also created a need to constantly rethink existing systems of learning we have in place, to plug the gaps that develop between people, skills and resources. It is only through more attempts to problematise the notion of access qualitatively, and to better understand the role of digital technologies and the internet in terms of changes in learning environments, that we may be able to understand and utilise its potential to the best.

P.P. Sneha works with the Researchers at Work (RAW) programme at the Centre for Internet and Society, Bangalore. She has a Master’s degree in English, and has previously worked in the area of higher education. This essay is a reflection on some of the learnings from projects on the quality of access to higher education and a mapping of the digital landscape and the growth of Digital Humanities in India, conducted by the Higher Education Innovation and Research Applications (HEIRA) programme at the Centre for the Study of Culture and Society (with support from the Ford Foundation), and the CIS. The original post can be read here.

For more details visit https://cis-india.org/raw/lila-inter-actions-october-14-2014-rethinking-conditions-of-access

Rethinking Data Exchange & Delivery Models pdf

pranav — 2021-04-08T05:06:10Z

For more details visit https://cis-india.org/internet-governance/rethinking-data-exchange-delivery-models-pdf

Responsible AI

Admin — 2019-09-20T14:50:05Z

For more details visit https://cis-india.org/internet-governance/files/responsible-ai