Centre for Internet and Society

Models for Surveillance and Interception of Communications Worldwide

bedaavyasa — 2014-07-10T07:50:08Z

This is an evaluation of laws and practices governing surveillance and interception of communications in 9 countries. The countries evaluated represent a diverse spectrum not only in terms of their global economic standing but also their intrusive surveillance capabilities. The analysis is limited to the procedural standards followed by these countries for authorising surveillance and provisions for resolving interception related disputes.

Sl. No.	Country	Legislation	Model
1.	Australia	Telecommunications (Interceptions and Access) Act, 1979 Governs interception of communications Relevant provisions: S. 3, 7, 6A, 34, 46 Surveillance Devices Act, 2004 Establishes procedure for obtaining warrants and for use of surveillance devices Relevant Provisions: S.13, 14	Authorisation for surveillance is granted in the form of a warrant from a Judge or a nominated member of the Administrative Appeals Tribunal The warrant issuing authority must be satisfied that information obtained through interception shall assist in the investigation of a serious crime The Acts provide a list of prescribed offences for which interception of communication may be authorized The Acts also specify certain federal and state law enforcement agencies that may undertake surveillance
2.	Brazil	Federal Law No. 9,296, 1996: Regulates wiretapping	Authorisation for interception is granted on a Judge’s order for a period of 15 days at a time Interception is only allowed for investigations into serious offences like drug smuggling, corruption murder and kidnapping
3.	Canada	Criminal Code, 1985 Governs general rules of criminal procedure including search and seizure protocols Relevant Provision: §§ 184.2, 184.4	Grants power to intercept communication by obtaining authorisation from a provincial court judge or a judge of the superior court Before granting his authorisation, the judge must be satisfied that either the originator of the communication or the recipient thereof has given his/her consent to the interception Under exceptional circumstances, however, a police officer owing to the exigency of the situation may intercept communication without prior authorisation
4.	France	*Loi d'orientation et de programmation pour la performance de la sécurité intérieure* (LOPPSI 2), 2011: Authorises use of video surveillance and interception of communications Relevant Provisions: Article 36 *Loi de Programmation Militaire* (LPM), 2013: Authorises surveillance for protection of national security and prevention of terrorism	Interception of communication under LOPPSI 2 requires previous authorization from an investigating Judge after consultation with the Public Prosecutor Such authorization is granted for a period of 4 months which is further extendable by another 4 months Interception of communication under LPM does not require prior sanction from an investigating judge and is instead provided by the Prime Minister’s office Information that can be intercepted under LPM includes not only metadata but also content and geolocation services
5.	Germany	Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses (G10 Act), 2001 Imposes restrictions on the right to privacy and authorizes surveillance for protecting freedom and democratic order, preventing terrorism and illegal drug trade Relevant Provisions: §3 The German Code of Criminal Procedure (StPO), 2002 Lays down search and seizure protocol and authorizes interception of telecommunications for criminal prosecutions Relevant Provisions: §§ 97, 100a	Authorises warrantless surveillance by specific German agencies like the Bundesnachrichtendienst (Federal Intelligence Service) Lays down procedure that must be followed while undertaking surveillance and intercepting communications Authorises sharing of intercepted intelligence for criminal prosecutions Mandates ex post notification to persons whose privacy has been violated but no judicial remedies are available to such persons The Code of Criminal Procedure authorises interception of communication of a person suspected of being involved in a serious offence only on the order of a court upon application by the public prosecution office
6.	Pakistan	Pakistan Telecommunications Reorganisation Act, 1996: Controls the flow of false and fabricated information and protects national security Relevant Provisions: § 54 Investigation for Fair Trial Act, 2013: Regulates the powers of law enforcement and intelligence agencies regarding covert surveillance and interception of communications Relevant Provisions: §§ 6,7, 8, 9	Authorisation for interception is provided by the federal government. No formal legal structure to monitor surveillance exists Interception can be authorized in the interest of national security and on the apprehension of any offence Requests for filtering and blocking of content are routed through the Inter-Ministerial Committee for the Evaluation of Websites, a confidential regulatory body Under the Fair Trial Act, interception can only be authorised on application to the Fedral Minister for Interior who shall then permit the application to be placed before a High Court Judge The warrant shall be issued by a judge only on his satisfaction that interception will aid in the collection of evidence and that a reasonable threat of the commission of a scheduled offence exists
7.	South Africa	The Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 Regulates and authorizes monitoring and interception of telecommunications services Relevant Provisions: §§ 16, 22	Warrant for intercepting communications and installing surveillance devices is granted by a designated judge The warrant is issued on satisfaction of the judge that the investigation relates to a serious offence or that the information gathering is vital to public health or safety, national security or compelling national economic interests
8.	United Kingdom	Regulation of Investigatory Powers Act, 2000: Authorises interception of communications and surveillance Relevant Provisions: §§ 5, 6, 65	Authorisation for interception is granted in the form of a warrant by the Secretary of State or in certain special cases by a ‘senior officer’ Communications can be intercepted only it is necessary to do so in the interest of national security or for the purpose of preventing and detecting serious crimes Complaints of alleged illegal surveillance are heard by the Investigatory Powers Tribunal
9.	United States	Electronic Communications Privacy Act, 1986 (Title III, Omnibus Crime Control and Safe Streets Act) Governs authorisation for wiretapping and interception Relevant Provisions: §18	Authorisation for interception can be granted by a district court or federal appeals court on application by a law enforcement officer duly signed by the attorney general Application mandates obtaining the information through a service provider before invading upon individual’s privacy

For more details visit https://cis-india.org/internet-governance/blog/models-for-surveillance-and-interception-of-communications-worldwide

June 2014 Bulletin

praskrishna — 2014-07-14T10:05:11Z

Our newsletter for month of June is below:

Highlights

Nehaa Chaudhari participated in a Stakeholders Consultation organized by the Planning Commission and the Ministry of Human Resource Development in New Delhi, February 21, 2014, on Mapping Institutions of Intellectual Property. She blogged about the outcome in a two-part series. The first part discusses establishment of a National Institute of Intellectual Property Rights and the second part deals with the documents introduced at the Stakeholders’ Consultation for India’s National Programme on Intellectual Property.
For the first time in the history of Indian books, 10 Telugu books by a single author were released under Creative Commons license (CC-BY-SA 3.0). These books will be uploaded on Telugu Wikisource and converted into Unicode (searchable) text. This will ensure that these books are freely read, both online and offline in various formats like PDF, epub, mobi, text, etc. This is a major milestone initiative by CIS-A2K to make the sum of all knowledge in Telugu freely available to all Telugus over the internet.
ICANN published a call for public comments on "Enhancing ICANN Accountability" in the wake of the IANA stewardship transition spearheaded by ICANN and related concerns of ICANN's external and internal accountability mechanisms. CIS submitted its comments.
ICANN sought comments on the existing barriers to Registrar Accreditation and operation and suggestions on how these challenges might be mitigated. CIS sent its comments.
Vodafone, the world’s second largest mobile carrier released a report disclosing to what extent governments can request their customers’ data. Joe Sheehan analyses the report to tell us that if more companies were transparent about the level of government surveillance their customers were being subjected to then the public would press the government for stronger privacy safeguards and protections.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. We compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). We will be publishing this soon. The draft chapters along with the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA and eSpeak

►Monthly Update

Work Report for June (by Suman Dogra, June 30, 2014).

►Other

Blog Entry

For a Truly Inclusive Consultative Process (by Amba Salelkar, June 25, 2014).

Media Coverage

NISH Website to Help the Disabled (The New Indian Express, June 26, 2014).

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

►Analysis

Mapping Institutions of Intellectual Property (Part A): India's National Programme on Intellectual Property Management (by Nehaa Chaudhari, June 10, 2014). This discusses establishment of a National Institute of Intellectual Property Rights.
Mapping Institutions of Intellectual Property: Part B — India's National Program on Intellectual Property Management (by Nehaa Chaudhari, June 26, 2014). This deals with the documents introduced at the Stakeholders’ Consultation for India’s National Program on Intellectual Property

►Participation in Event

Yogyakarta Meeting on Open Culture and Critical Making (organized by organized by HONF Foundation, Catec, and r0g, June 12 – 15, 2014). Sharath Chandra Ram was a panelist.

Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

The following were done this month:

►Articles / Blog Entries

Twitter weekly Curation WeAreWikipedia brings one Wikipedian Every Week (by Diptiman Panigrahi, June 16, 2014).
This Twitter Account Puts a Face to the Unsung Volunteer Editors Behind Wikipedia (by Subhashish Panigrahi, Global Voices, June 18, 2014).
Odia Language gets a new Unicode Font Converter (by Subhashish Panigrahi, June 20, 2014).
Ten Telugu Books Re-released Under CC-BY-SA 3.0 License (by Rahmanuddin Shaik, June 22, 2014).

►Events Organized

Kannada Wikipedia Workshop for Kannada Book Lovers (co-organized by Navakarnataka Publications, Bangalore, June 4, 2014). Dr. U.B.Pavanaja conducted the workshop.
Knowledge and Openness in the Digital Era (co-organized by Andhra Loyola College and CIS, Vijaywada, June 24-25, 2014).

►News and Media Coverage
CIS gave its inputs to the following media coverage:

Knowledge and Openness in the Digital Era: Coverage in Sakshi (Sakshi, June 25, 2014).
Knowledge and Openness in the Digital Era: Coverage in Enadu (Enadu, June 25, 2014).
Loyola Faculty Enlightened About Open Edn Resources (The New Indian Express, June 25, 2014).

Internet Governance

Freedom of Expression

As part of our project on Freedom of Expression (funded through a grant from the MacArthur Foundation) to study the restrictions placed on freedom of expression online by the Indian government and contribute to the debates around Internet governance and freedom of expression at forums like ICANN, ITU, IGF, WSIS, etc., we bring you the following outputs:

►Submissions

CIS Comments: Enhancing ICANN Accountability (by Geetha Hariharan, June 10, 2014).
Comments to ICANN Supporting the DNS Industry in Underserved Regions (by Jyoti Panday, June 13, 2014).

►Blog Entries

Free Speech and Contempt of Court: Overview (by Gautam Bhatia, June 8, 2014).
Multi-stakeholder Models of Internet Governance within States: Why, Who & How? (by Geetha Hariharan, June 16, 2014).
UN Human Rights Council Urged to Protect Human Rights Online (by Geetha Hariharan, June 19, 2014).
Free Speech and Source Protection for Journalists (by Gautam Bhatia, June 19, 2014).
WSIS+10 High Level Event: A Bird's Eye Report (by Geetha Hariharan, June 20, 2014).
Understanding IANA Stewardship Transition (by Smarika Kumar, June 22, 2014).
IANA Transition: Suggestions for Process Design (by Smarika Kumar, June 22, 2014).
Free Speech and Civil Defamation (by Gautam Bhatia, June 25, 2014).
CIS Policy Brief: IANA Transition Fundamentals & Suggestions for Process Design (by Geetha Hariharan and Smarika Kumar, June 22, 2014).
An Evidence based Intermediary Liability Policy Framework: Workshop at IGF (by Jyoti Panday, June 30, 2014).

►FOEX Live
We are also posting a selection of news from across India implicating online freedom of expression and use of digital technology: June 8 – 15, 2014 and June 16 – 23, 2014.

Privacy

As part of our Surveillance and Freedom: Global Understandings and Rights Development (SAFEGUARD) project with Privacy International we are engaged in enhancing respect for the right to privacy in developing countries. We have produced the following outputs during the month:

►Blog Entries

A Review of the Functioning of the Cyber Appellate Tribunal and Adjudicatory Officers under the IT Act (by Divij Joshi, June 16, 2014).
Content Removal on Facebook — A Case of Privatised Censorship? (by Jessamine Mathew, June 16, 2014).
Vodafone Report Explains Government Access to Customer Data (by Joe Sheehan, June 16, 2014).

►Event Organized

Privacy and Surveillance Roundtable (co-organized with the Cellular Operators Association of India and the Council for Fair Business Practices, June 28, 2014, IMC Building, Churchgate, Mumbai).

►Participation in Events

Commonwealth Domain Name System Forum 2014 (organized by the CTO, hosted by ICANN, and supported by Nominet and the Public Interest Registry, London, June 19, 2014). Pranesh Prakash was a panelist. Jyoti Panday participated in the event.
Research Advisory Network Meeting (organized by the Global Commission on Internet Governance’s Research Advisory Network, OECD Headquarters, Paris, June 26-27, 2014). Sunil Abraham was a panelist.

►News & Media Coverage

CIS gave its inputs to the following media coverage:

Right to be forgotten poses a legal dilemma in India (by Leslie D' Monte, Livemint, June 5, 2014).
Stay connected even when you go underground (by Sunita Sekhar, The Hindu, June 12, 2014).

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

►Blog Entries

Not a Goodbye; More a ‘Come Again’: Thoughts on being Research Director at a moment of transition (by Nishant Shah, June 15, 2014).
Living in the Archival Moment (by P.P. Sneha, June 19, 2014).

Telecom

CIS is involved in promoting access and accessibility to telecommunications services and resources and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

►Newspaper Column

A Great Start (for the Modi government) (by Shyam Ponappa, Business Standard and Organizing India Blogspot, June 5, 2014).

About CIS

The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of ‘The Centre for Internet and Society’ and mail it to us at No. 194, 2nd ‘C’ Cross, Domlur, 2nd Stage, Bengaluru – 5600 71

► Request for Collaboration:

We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, at sunil@cis-india.org or Nishant Shah, Director – Research, at nishant@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/june-2014-bulletin

An Evidence based Intermediary Liability Policy Framework: Workshop at IGF

jyoti — 2014-07-04T06:41:10Z

CIS is organising a workshop at the Internet Governance Forum 2014. The workshop will be an opportunity to present and discuss ongoing research on the changing definition of intermediaries and their responsibilities across jurisdictions and technologies and contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards.

The Centre for Internet and Society, India and Centre for Internet and Society, Stanford Law School, USA, will be organising a workshop to analyse the role of intermediary platforms in relation to freedom of expression, freedom of information and freedom of association at the Internet Governance Forum 2014. The aim of the workshop is to highlight the increasing importance of digital rights and broad legal protections of stakeholders in an increasingly knowledge-based economy. The workshop will discuss public policy issues associated with Internet intermediaries, in particular their roles, legal responsibilities and related liability limitations in context of the evolving nature and role of intermediaries in the Internet ecosystem. distinct

Online Intermediaries: Setting the context

The Internet has facilitated unprecedented access to information and amplified avenues for expression and engagement by removing the limits of geographic boundaries and enabling diverse sources of information and online communities to coexist. Against the backdrop of a broadening base of users, the role of intermediaries that enable economic, social and political interactions between users in a global networked communication is ubiquitous. Intermediaries are essential to the functioning of the Internet as many producers and consumers of content on the internet rely on the action of some third party–the so called intermediary. Such intermediation ranges from the mere provision of connectivity, to more advanced services such as providing online storage spaces for data, acting as platforms for storage and sharing of user generated content (UGC), or platforms that provides links to other internet content.

Online intermediaries enhance economic activity by reducing costs, inducing competition by lowering the barriers for participation in the knowledge economy and fuelling innovation through their contribution to the wider ICT sector as well as through their key role in operating and maintaining Internet infrastructure to meet the network capacity demands of new applications and of an expanding base of users.

Intermediary platforms also provide social benefits, by empowering users and improving choice through social and participative networks, or web services that enable creativity and collaboration amongst individuals. By enabling platforms for self-expression and cooperation, intermediaries also play a critical role in establishing digital trust, protection of human rights such as freedom of speech and expression, privacy and upholding fundamental values such as freedom and democracy.

However, the economic and social benefits of online intermediaries are conditional to a framework for protection of intermediaries against legal liability for the communication and distribution of content which they enable.

Intermediary Liability

Over the last decade, right holders, service providers and Internet users have been locked in a debate on the potential liability of online intermediaries. The debate has raised global concerns on issues such as, the extent to which Internet intermediaries should be held responsible for content produced by third parties using their Internet infrastructure and how the resultant liability would affect online innovation and the free flow of knowledge in the information economy?

Given the impact of their services on communications, intermediaries find themselves as either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. Requiring intermediaries to monitor the legality of the online content poses an insurmountable task. Even if monitoring the legality of content by intermediaries against all applicable legislations were possible, the costs of doing so would be prohibitively high. Therefore, placing liability on intermediaries can deter their willingness and ability to provide services, hindering the development of the internet itself.

Economics of intermediaries are dependent on scale and evaluating the legality of an individual post exceeds the profit from hosting the speech, and in the absence of judicial oversight can lead to a private censorship regime. Intermediaries that are liable for content or face legal exposure, have powerful incentives, to police content and limit user activity to protect themselves. The result is curtailing of legitimate expression especially where obligations related to and definition of illegal content is vague. Content policing mandates impose significant compliance costs limiting the innovation and competiveness of such platforms.

More importantly, placing liability on intermediaries has a chilling effect on freedom of expression online. Gate keeping obligations by service providers threaten democratic participation and expression of views online, limiting the potential of individuals and restricting freedoms. Imposing liability can also indirectly lead to the death of anonymity and pseudonymity, pervasive surveillance of users' activities, extensive collection of users' data and ultimately would undermine the digital trust between stakeholders.

Thus effectively, imposing liability for intermediaries creates a chilling effect on Internet activity and speech, create new barriers to innovation and stifles the Internet's potential to promote broader economic and social gains. To avoid these issues, legislators have defined 'safe harbours', limiting the liability of intermediaries under specific circumstances.

Online intermediaries do not have direct control of what information is or information are exchanged via their platform and might not be aware of illegal content per se. A key framework for online intermediaries, such limited liability regimes provide exceptions for third party intermediaries from liability rules to address this asymmetry of information that exists between content producers and intermediaries.

However, it is important to note, that significant differences exist concerning the subjects of these limitations, their scope of provisions and procedures and modes of operation. The 'notice and takedown' procedures are at the heart of the safe harbour model and can be subdivided into two approaches:

a. Vertical approach where liability regime applies to specific types of content exemplified in the US Digital Copyright Millennium Act

b. Horizontal approach based on the E-Commerce Directive (ECD) where different levels of immunity are granted depending on the type of activity at issue

Current framework

Globally, three broad but distinct models of liability for intermediaries have emerged within the Internet ecosystem:

1. Strict liability model under which intermediaries are liable for third party content used in countries such as China and Thailand

2. Safe harbour model granting intermediaries immunity, provided their compliance on certain requirements

3. Broad immunity model that grants intermediaries broad or conditional immunity from liability for third party content and exempts them from any general requirement to monitor content.

While the models described above can provide useful guidance for the drafting or the improvement of the current legislation, they are limited in their scope and application as they fail to account for the different roles and functions of intermediaries. Legislators and courts are facing increasing difficulties, in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels user generated content and new kinds of and online intermediaries.

The nature and role of intermediaries change considerably across jurisdictions, and in relation to the social, economic and technical contexts. In addition to the dynamic nature of intermediaries the different categories of Internet intermediaries‘ are frequently not clear-cut, with actors often playing more than one intermediation role. Several of these intermediaries offer a variety of products and services and may have number of roles, and conversely, several of these intermediaries perform the same function. For example , blogs, video services and social media platforms are considered to be 'hosts'. Search engine providers have been treated as 'hosts' and 'technical providers'.

This limitations of existing models in recognising that different types of intermediaries perform different functions or roles and therefore should have different liability, poses an interesting area for research and global deliberation. Establishing classification of intermediaries, will also help analyse existing patterns of influence in relation to content for example when the removal of content by upstream intermediaries results in undue over-blocking.

Distinguishing intermediaries on the basis of their roles and functions in the Internet ecosystem is critical to ensuring a balanced system of liability and addressing concerns for freedom of expression. Rather than the highly abstracted view of intermediaries as providing a single unified service of connecting third parties, the definition of intermediaries must expand to include the specific role and function they have in relation to users' rights. A successful intermediary liability regime must balance the needs of producers, consumers, affected parties and law enforcement, address the risk of abuses for political or commercial purposes, safeguard human rights and contribute to the evolution of uniform principles and safeguards.

Towards an evidence based intermediary liability policy framework

This workshop aims to bring together leading representatives from a broad spectrum of stakeholder groups to discuss liability related issues and ways to enhance Internet users’ trust.

Questions to address at the panel include:

1. What are the varying definitions of intermediaries across jurisdictions?

2. What are the specific roles and functions that allow for classification of intermediaries?

3. How can we ensure the legal framework keeps pace with technological advances and the changing roles of intermediaries?

4. What are the gaps in existing models in balancing innovation, economic growth and human rights?

5. What could be the respective role of law and industry self-regulation in enhancing trust?

6. How can we enhance multi-stakeholder cooperation in this space?

Confirmed Panel:

Technical Community: Malcolm Hutty: Internet Service Providers Association (ISPA)
Civil Society: Gabrielle Guillemin: Article19
Academic: Nicolo Zingales: Assistant Professor of Law at Tilburg University
Intergovernmental: Rebecca Mackinnon: Consent of the Networked, UNESCO project
Civil Society: Anriette Esterhuysen: Association for Progressive Communication (APC)
Civil Society: Francisco Vera: Advocacy Director: Derechos Digitale
Private Sector: Titi Akinsanmi: Policy and Government Relations Manager, Google Sub-Saharan Africa
Legal: Martin Husovec: MaxPlanck Institute

Moderator(s): Giancarlo Frosio, Centre for Internet and Society (CIS) and Jeremy Malcolm, Electronic Frontier Foundation

Remote Moderator: Anubha Sinha, New Delhi

For more details visit https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework

Privacy and Surveillance Roundtable

praskrishna — 2014-06-29T14:50:20Z

The Centre for Internet and Society and the Cellular Operators Association of India invite you to a roundtable at the India International Centre, New Delhi on July 4, 2014.

Background and Context to the Roundtables

In India, lawful interception of communications may be conducted by the state in three ways: firstly, intercepting telephone calls and other telecommunications may take place under powers listed in the Telegraph Act, 1885 and procedure set out in the Telegraph Rules, 1951; secondly, intercepting written communications transmitted through the postal service or by private couriers may occur under the Post Office Act, 1898; and, thirdly, intercepting, de-crypting, and monitoring email messages and other electronic communications may take place under the Information Technology Act, 1950 and two sets of Rules issued in 2008.

The government’s intention to create a Central Monitoring System to automate the existing process of telephone tapping is significant for a number of reasons. It will bypass private telephone service providers; currently the active cooperation of TSPs is required and compelled in order to intercept and monitor a telephone conversation. This creates an extra layer of compliance activity for TSPs which is cumbersome and expensive. Interception orders from the state often do not comply with the procedure required by law. This uncertainty is compounded by the lack of an indemnity for TSPs.

However, while the CMS will release TSPs from legal liability, it will leave the government free to conduct telephone interceptions in absolute secrecy and without a credible system of oversight and checks and balances. Amongst the world’s major democratic countries, India is alone in refusing to overhaul its telephone tapping regime. The legal requirements of probable cause, judicial sanction, and warrant-based interception – which are followed with exceptions in democracies around the world – are not adequately protected in India. The same principles also apply to the interception of postal and electronic communications.

There are several intelligence and police agencies in India that conduct interceptions of communications without central coordination. Previous cases in the Supreme Court of India and a few Indian High Courts reveal many cases of improper and even illegal surveillance. The sheer number of interested state agencies, the concerns of inadequate oversight, the lack of a credible legal regime, the constant leaks of private communications, and the poor legal protection given to TSPs and ISPs must be legally addressed.

Information about the Roundtables

The Privacy and Surveillance Roundtables are a CIS initiative, in partnership with the Cellular Operators Association of India (COAI). From June 2014 – November 2014, CIS and COAI will host seven Privacy and Surveillance Roundtable discussions across multiple cities in India. The Roundtables will be closed-door deliberations involving multiple stakeholders. Through the course of these discussions we aim to deliberate upon the current legal framework for surveillance in India, and discuss possible frameworks for surveillance in India. The provisions of the draft CIS Privacy Bill 2013, the International Principles on the Application of Human Rights to Communication Surveillance, and the Report of the Group of Experts on Privacy will be used as background material and entry points into the discussion. The recommendations and dialogue from each roundtable will be compiled and submitted to the Department of Personnel and training.

The Report of the Group of Experts on Privacy

In January 2012 Justice A.P. Shah formed a committee to create a report of recommendations for privacy legislation in India. The committee met seven times from January 2012 to September 2012. The Report is made up of six chapters and begins by reviewing the international best practices around privacy and the relevant Indian jurisprudence. The Report then recommends nine National Privacy Principles to be adopted by each sector in India. The Nine National Privacy Principles reflect international standards, as well as taking into consideration the Indian context. Along with the National Privacy Principles, the Report lays out a regulatory framework for privacy including privacy commissioners at the regional and national level, self regulating organizations at the industry level, and a system of complaints. Finally the report demonstrates how the National Privacy Principles could be used to harmonize existing legislation and practices.

The Draft CIS Citizens Privacy (Protection) Bill 2013

The Centre for Internet and Society has been researching privacy in India since 2010 with the objective of raising public awareness, completing in depth research, and driving a privacy legislation in India. As part of this work, the Centre for Internet and Society has drafted the Privacy (Protection) Bill 2013. The Citizens Privacy Protection Bill contains provisions that speak to data protection, interception, and surveillance. The Bill also establishes the powers and functions of the privacy commissioner, and lays out offenses and penalties for contravention of the Act. The Bill represents a citizens’ version of a privacy legislation, and will be shared with civil society, industry, and government. It is hoped that the review and revision of the Bill will be a participatory process, and thus comments and feedback to it’s’ provisions will be included as annex’s to the Bill.

The International Principles on the Application of Human Rights to Communication Surveillance

These principles were defined in 2013 in response to rapidly changing technologies and surveillance practices. The principles are the outcome of a global consultation with civil society groups, industry and international experts in communications surveillance law, policy and technology, spearheaded by the Electronic Frontier Foundation US and Privacy International UK. As technologies that facilitate State surveillance of communications advance, States are failing to ensure that laws and regulations related to communications surveillance adhere to international human rights and adequately protect the rights to privacy and freedom of expression. These principles attempt to explain how international human rights law applies in the current digital environment, particularly in light of the increase in and changes to communications surveillance technologies and techniques. These principles can provide civil society groups, industry, States and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights.

Tentative Agenda

Time	Detail
10.00 11.00	Introduction
11.00 11.30	Tea
11.30 13.00	Discussion
13.00 14.00	Lunch
14.00 16.00	Discussion
16.00 16.15	Tea

Resources

For more details visit https://cis-india.org/internet-governance/events/privacy-and-surveillance-roundtable-new-delhi

PMA Policy and COAI Recommendations

dipankar — 2014-07-02T06:45:22Z

Introduction

The Ministry of Communications and Information Technology on the 10th of February, 2012 released a notification [1] in the Official Gazette outlining the Preferential Market Access [2] Policy for Domestically Manufactured Electronic Goods 2012. The Policy is applicable to procurement of telecom products by Government Ministries/Departments and to such electronics that had been deemed to having security concerns, thus making the policy applicable to private bodies in the latter half. The Notification reasoned that preferential access was to be given to domestically manufactured electronic goods predominantly for security reasons. Each Ministry or Department was to notify the products that had security implications, with reasons, after which the notified agencies would be required to procure the same from domestic manufacturers. This policy was also meant to be applicable to even procurement of electronic goods by Government Ministries/Agencies for Governmental purposes except Defence. Each Ministry would be required to notify its own percentage of such procurement, though it could not be less than 30%, and also had to specify the Value Addition that had to be made to a particular product to qualify it as a domestically manufactured product, with the policy again specifying the minimum standards. The policy was also meant for procurement of electronic hardware as a service from Managed Service Providers (MSPs).

The procurement was to be done as according to the policies of the each procuring agency. The tender was to be apportioned according to the procurement percentage notified and the preference part was to be allotted to the domestic manufacturer at the lowest bid price. If there were no bidders who were domestic manufacturers or if the tender was not severable, then it was to be awarded to the Foreign Manufacturer and the percentage adjusted as against other electronic procurement for that period.

Telecom equipment that qualifies as domestically manufactured telecom products for preferential market access include: encryption and UTM platforms, Core/Edge/Enterprise routers, Managed leased line network equipment, Ethernet Switches, IP based Soft Switches, Media gateways, Wireless/Wireline PABXs, CPE, 2G/3G Modems, Leased-line Modems, Set Top Boxes, SDH/Carrier Ethernet/Packet Optical Transport Eqiupments, DWDN systems, GPON equipments, Digital Cross connects, small size 2G/3G GSM based Base Station Systems, LTE based broadband wireless access systems, Wi-Fi based broadband wireless access systems, microwave radio systems, software defined radio cognitive radio systems, repeaters, IBS, and distributed antenna system, satellite based systems, copper access systems, network management systems, security and surveillance communication systems (video and sensors based), optical fiber cable.

The Policy also mentioned the creation of a self-certification system to declare domestic value addition to the vendor. The checks would be done by the laboratories accredited by the Department of Information Technology. The policy was to be in force for a period of 10 years and any dispute concerning the nature of product was to be referred to the Department of Information Technology.

International and Domestic Response to the Policy

There was a large scale opposition, usually from international sectors, towards the mooting of this policy. Besides business houses, even organizations like those of the United States Trades Representatives criticized the policy as being harmful to the global market and in violation of the World Trade Organization Guidelines.[3] Criticism also poured in from domestic bodies in terms of recommendations towards modification of the policy largely on three grounds: (i) the high domestic value addition requirement and the method of calculation of the same, (ii) the lack of a link between manufacturing and security and (iii) application of the policy to the private sector.

The Cellular Operations Association of India (COAI) in a letter dated March 15, 2012 to the Secretary of the Department Technology and Chairman of the Telecom Commission expressed its views on the telecom manufacturing in the country.[4]The COAI stated that such a development had to be done realistically and holistically so that the whole eco-system was developed as a comprehensive whole. In that regard it also forwarded a study that had been commissioned by COAI and conducted by M/s. Booz and Company titled “Telecom Manufacturing Policy – Developing an Actionable Roadmap”. The report was a comprehensive study of the telecom industry and outlined the challenges and opportunities that lay on its development trajectory. It also talked about Government involvement in the development process. The Report while citing the market share of Indian Telecom Industry which would be around 3% [5] of the Global Market highlighted the fact that no country could be self-sufficient in technology. It further talked about the development of local clusters in order to cut costs and encourage manufacturing, while ensuring that the PMA Policy was consistent with the WTO Guidelines. It further recommended opening up of foreign investments and making capital available to ensure growth of innovation. Finally it highlighted the lack of a connection between manufacturing and security and instead stressed upon proper certification, checks and development of a comprehensive CIIP framework across all sensitive networks for security purposes.

In a further letter to the Joint Secretary of the Department of Information and Technology dated April 25, 2012 the COAI expressed some reservations concerning the draft guidelines that had been published along with the notification.[6] While stressing upon the fact that a higher value addition would be impossible with the lack of basic manufacturing capabilities for the development of technological units, it also highlighted the need to redefine Bill of Materials which had been left ambiguous and subject to exploitation. It further highlighted the fact that allowing every Ministry to make its own specifications would lead to inconsistent definitions and an administrative challenge and hence such matters should be handled by a Central Body. Furthermore it opined that the calculation of BOMs and the Value Additions should be done using the concept of substantial transformation as has been given in the Booz Study. Furthermore, while discouraging the use of disincentives, it stated that one individual Ministry should be in charge of specifying such incentives to avoid confusion and for the sake of ease of business.

In another letter to a Member of the Department of Telecommunications dated July 12, 2012 the COAI stressed upon the futility of having high value additions as the same was impossible under the present scenario.[7] There was a lack of manufacturing sector which had to be comprehensively developed backed by fiscal incentives and comprehensive policies. In spite of that, it stressed that no country could become self-reliant and that such policies, like the PMA, were reminiscent of the “license and permit raj” era. It further said that such policies should be consistent with WTO Guidelines and should not give undue preference to domestic manufacturers to the detriment of other manufacturers. Countering the security aspect, it said that the same had been addressed by the DoT License Amendment of May 31, 2011 whereby all equipments on the network would have to comply with the “Safe to Connect” standard, and stressed upon the lack of any link between manufacturing and security. Furthermore for calculation of Value Addition it suggested an alternative to the method proposed by the Government as the same would lead to disclosures of sensitive commercial information which were contained in the BOMs. The COAI said that the three stages as laid out in the Substantial Transformation (as mentioned in the Booz Study) should be used for calculating the VA. It made several proposals to develop the telecom manufacturing industry in India including provision of fiscal incentives, development of telecom clusters and comprehensive policies which led to harmonization with laws and creation of SEZs among other such benefits.

In October 2012 the Government released a draft notification notifying products due to security consideration in furtherance of the PMA Policy.[8] The document outlined the minimum PMA and VA specification for a range of products. It also stated several security reasons for pursuing such a policy and stated that India had to be completely self-reliant for its active telecom products. It also contained data on the predicted growth of the telecom market in India. The COAI thereafter released a document commenting upon the draft notification of the Government.[9]

Besides highlighting the fact that the COAI still had not received a response to its former comments, it again stressed upon the lack of a link between security and manufacturing. It reiterated its point on the impossibility of a complete self-reliance on any nation’s part, and stressed upon the need of involving other stakeholders in the promulgation of such policies. It also made changes to the notified list of equipments, reclassifying it according to technology and only listing equipments which had volumes. Furthermore it also suggested changes towards the calculation of value addition to include materials sourced from local suppliers, in-house assemblage to be considered local material and the calculation to be done for complete order and not for each item in the order. It further recommended a study be conducted and the industry be involved while predicting demands as such were dated and needed revision. The Government thereafter released a revised notification[10] on October 5, 2012 but it did not contain much of the commented changes that the COAI had proposed.

Thereafter in April 2013, the DeitY released draft guidelines[11] for providing preference to domestically manufactured electronic products in Government Procurement in further of the second part of the PMA Policy. The guidelines besides containing definitions to several terms such as BOM also prescribed a minimum of 20% domestic procurement while leaving the specifications onto individual Ministries. It recommended the establishment of a technical committee by the concerned Ministry or Department that would recommend value addition to products. It followed a BOM based calculation of Value Addition while leaving the matter of certification to be dealt by DeitY certified laboratories that are notified for such purposes by the concerned Ministry/Department. DeitY was the nodal ministry for monitoring the implementation of the policy while particular monitoring was left to each Ministry or Department concerned. Among the annexures were indicative lists of generic and telecom products and a format for Self Certification regarding Domestic Value Addition in an Electronic Product.

The COAI thereafter released a revised draft containing its own comments on April 15, 2013.[12] The COAI pointed out faults in the definition of BOM. It highlighted the difficulty in splitting R&D according to countries, and also stressed upon the impractical usage of BOM in calculation of value addition as the same was confidential business information. As it had already suggested earlier, it reiterated the usage of the Substantial Transformation process for the calculation of Value Addition. While removing the lists of equipments mentioned, it further pointed out that the disqualification in the format for self-certification would be a very harsh disincentive and would result in driving away manufacturers. It suggested that there should be incentives for compliance instead.

The COAI along with the Association of Unified Telecom Service Providers of India sent a letter dated January 24, 2013 to the Secretary, DoT containing their inputs on Draft List of Security Sensitive Telecom Products for Preferential Market Access (PMA).[13] It again stressed upon the fact that security and manufacturing were not related and that the security aspect had been dealt by the “Safe to Connect” requirement mandated by the DoT License Amendment. It talked of the impossibility of arriving at VA figures until the same is defined to internationally accepted norms. Further it opined that if the Government had security concerns it should consider VA at a network level in the configurations as would be deployed in the network or its segments rather at element or subsystem levels as the latter would leave too many calculations open and the procurement entities will find it very difficult to ensure if they meet the PMA requirement or not. It further stressed upon the need to comply with WTO Guidelines while stressing upon the need to pay heed to certification standards than pursue the unavailable link between manufacturing and security through a PMA Policy. Finally it suggested a grouping of telecom products for the policy based on technology rather than individual products.

Pursuant to a Round Table Conference Organized by the Department of Information and Technology, AUSPI and COAI sent another letter dated April 15, 2013 to the Secretary, Department of Information and Technology.[14] It reiterated several points that both the AUSPI and COAI had been suggesting to the Government on the Telecom Manufacturing Policy. It cited the examples of other manufacturing nations to reiterate the fact that no country could be completely self-reliant in manufacturing electronics and such positions would only lead to creation of an environment that would not be conducive to global business. It further stressed upon the need to change the manner of calculation of VA while highlighting the fact that every Department should notify its list of products having security implications and the list of telecom equipment should be deleted from the draft guidelines being issued by DeitY to ensure better implementation.

A major change came in on July 8, 2013 when the Prime Minister’s Office made a press release withdrawing the PMA policy for review and withholding all the notifications that had been issued in that regard.[15] It said that he revised proposal will incorporate a detailed provision for project / product / sector specific security standards, alternative modes of security certification, and a roadmap for buildup of domestic testing capacity. It further noted that the revised proposal on PMA in the private sector for security related products will not have domestic manufacturing requirements, percentage based or otherwise and that the revised proposal will incorporate a mechanism for a centralised clearing house mechanism for all notifications under the PMA Policy.

The COAI thereafter on November 7, 2013 sent a letter to the DoT containing feedback on the list of items slated for Government procurement.[16] It noted that there were 23 products on which PMA was applicable. It pointed out that there were no local manufacturers for many of the products notified. It also asked the Government to take steps to ensure that fiscal incentives were given to encourage manufacturing sector which was beset by several costs such as landing costs which acted as impediments to its development. It stressed upon the tiered development of the industry needed to ensure that a holistic and comprehensive growth is attained which would result in manufacturing of local products. It requested that the Government "focus on right enablers (incentives, ecosystem, infrastructure, taxation) as the outcome materializes once all of these converge."

The COAI sent a further letter dated November 13, 2013 to the DoT concerning the investment required in the telecom manufacturing industry.[17] It noted the projected required investment of 152bn USD in the telecom sector and that the Government had projected that 92% of the investment would have to come from the Private Sector. COAI, while stressing upon the need of the Government and the Private Industry to work in tandem with each other, suggested that the Government devise methods to attract investments in the telecom sectors from international telecom players and that the Telecom Equipment Manufacturing Council meet to review and revise methods for attracting such investments.

Pursuant to the PMO directive, DeitY released a revised PMA Policy on the 23rd of December, 2014.[18] While there have been a few major changes, not all of recommendations by various bodies have been adhered to.[19] The major changes in the revised policy included the exemption of the private sector from the policy and the removal of PMA Policy to equipments notified for security reasons. The manner of calculation of the domestic value addition has not been changed though there has been a reduction in the percentage of value addition needed to qualify a product as domestic product. Another addition has been of a two-tiered implementation mechanism for the Policy. Tier-I includes a National Planning and Monitoring Council for Electronic Products which would design a 10-year roadmap for the implementation of the policy including notification of the products and subsequent procurement. Under Tier-II, the Ministries and Departments will be issuing notifications specifying products and the technical qualifications of the same, after approval by the Council. The former notifications under the 2012 Policy, including the notification of 23 telecom products by Department of Telecom,[20] are still valid until revised further.[21]

[1]. No. 8(78)/2010-IPHW. Available at http://www.dot.gov.in/sites/default/files/5-10-12.PDF (accessed 03 June, 2014).

[2]. Preferential Market Access

[3]. See The PMA Debate, DataQuest at http://www.dqindia.com/dataquest/feature/191001/the-pma-debate/page/1 (accessed June 2014).

[4]. The letter is available at http://www.coai.com/Uploads/MediaTypes/Documents/letter-to-dit-on-pma-notification.pdf (accessed June, 2014).

[5]. Around $17bn.

[6]. The letter is available at http://www.coai.com/Uploads/MediaTypes/Documents/letter-to-dit-on-pma-notification.pdf (accessed June, 2014).

[7]. The letter is available at http://www.coai.com/Uploads/MediaTypes/Documents/coai-to-dot-on-enhancing-domestic-manufacturing-of-telecom-equipment-bas.pdf (accessed June, 2014).

[8]. The notification no. 18-07/2010-IP can be found at http://www.coai.com/Uploads/MediaTypes/Documents/DoT-draft-notification-on-Policy-for-preference-to-domestically-manufactured-telecom-products-in-procurement-October-2012.pdf (accessed June, 2014).

[9]. The commented COAI draft can be found at http://www.coai.com/Uploads/MediaTypes/Documents/Annexure-1-Comments-on-draft-notification-by-DoT.pdf (accessed June, 2014).

[10]. Available at http://www.coai.com/Uploads/MediaTypes/Documents/dots-notification-on-telecom-equipment-oct-5,-2012.pdf (accessed June, 2014).

[11]. The draft guidelines can be found at http://www.coai.com/Uploads/MediaTypes/Documents/pma_draft-govt-procurement-guidelines-april-2013.pdf (accessed June, 2014).

[12]. The COAI commented draft can be found at http://www.coai.com/Uploads/MediaTypes/Documents/pma-draft-security-guidelines-15-april-2013.pdf (accessed June, 2014).

[13]. The letter can be found at http://www.coai.com/Uploads/MediaTypes/Documents/jac-007-to-dot-on-Januarys-list-of-telecom-products-final.pdf (accessed June, 2014).

[14]. The letter can be found at http://www.coai.com/Uploads/MediaTypes/Documents/jac-to-moc-on-pma.pdf (accessed June, 2014).

[15]. The press release can be found at http://www.coai.com/Uploads/MediaTypes/Documents/pmo-on-pma.pdfhttp://www.coai.com/Uploads/MediaTypes/Documents/pmo-on-pma.pdf (accessed June, 2014).

[16]. The letter can be found at http://www.coai.com/Uploads/MediaTypes/Documents/COAI-letter-to-DoT-on-Feedback-on-List-of-Items-for-Govt-Procurement.pdf (accessed June, 2014).

[17]. The letter can be found at http://www.coai.com/Uploads/MediaTypes/Documents/COAI-letter-to-DoT-on-Investments-Required-(TEMC)-Nov%2013-2013.pdf (accessed June, 2014).

[18]. The Notification No. 33(3)/2013-IPHW can be found at http://deity.gov.in/sites/upload_files/dit/files/Notification_Preference_DMEPs_Govt_%20Proc_23_12_2013.pdf (accessed June, 2014).

[19]. For more information, see http://electronicsb2b.com/policy-corner/revised-preferential-market-access-policy/# (accessed June, 2014).

[20]. The notification has been mentioned and discussed above.

[21]. A list of notifications dealing with electronic products except telecom products can be found on the website of DeitY at http://deity.gov.in/esdm/pma (accessed June, 2014).

For more details visit https://cis-india.org/internet-governance/blog/pma-policy-and-coai-recommendations

WSIS+10 High Level Event: A Bird's Eye Report

geetha — 2014-06-20T15:57:32Z

The WSIS+10 High Level was organised by the ITU and collaborative UN entities on June 9-13, 2014. It aimed to evaluate the progress on implementation of WSIS Outcomes from Geneva 2003 and Tunis 2005, and to envision a post-2015 Development Agenda. Geetha Hariharan attended the event on CIS' behalf.

The World Summit on Information Society (WSIS) +10 High Level Event (HLE) was hosted at the ITU Headquarters in Geneva, from June 9-13, 2014. The HLE aimed to review the implementation and progress made on information and communication technology (ICT) across the globe, in light of WSIS outcomes (Geneva 2003 and Tunis 2005). Organised in three parallel tracks, the HLE sought to take stock of progress in ICTs in the last decade (High Level track), initiate High Level Dialogues to formulate the post-2015 development agenda, as well as host thematic workshops for participants (Forum track).

The High Level Track:

Opening Ceremony, WSIS+10 High Level Event (Source)

The High Level track opened officially on June 10, 2014, and culminated with the endorsement by acclamation (as is ITU tradition) of two Outcome Documents. These were: (1) WSIS+10 Statement on the Implementation of WSIS Outcomes, taking stock of ICT developments since the WSIS summits, (2) WSIS+10 Vision for WSIS Beyond 2015, aiming to develop a vision for the post-2015 global information society. These documents were the result of the WSIS+10 Multi-stakeholder Preparatory Platform (MPP), which involved WSIS stakeholders (governments, private sector, civil society, international organizations and relevant regional organizations).

The MPP met in six phases, convened as an open, inclusive consultation among WSIS stakeholders. It was not without its misadventures. While ITU Secretary General Dr. Hamadoun I. Touré consistently lauded the multi-stakeholder process, and Ambassador Janis Karklins urged all parties, especially governments, to “let the UN General Assembly know that the multi-stakeholder model works for Internet governance at all levels”, participants in the process shared stories of discomfort, disagreement and discord amongst stakeholders on various IG issues, not least human rights on the Internet, surveillance and privacy, and multi-stakeholderism. Richard Hill of the Association for Proper Internet Governance (APIG) and the Just Net Coalition writes that like NETmundial, the MPP was rich in a diversity of views and knowledge exchange, but stakeholders failed to reach consensus on crucial issues. Indeed, Prof. Vlamidir Minkin, Chairman of the MPP, expressed his dismay at the lack of consensus over action line C9. A compromise was agreed upon in relation to C9 later.

Some members of civil society expressed their satisfaction with the extensive references to human rights and rights-centred development in the Outcome Documents. While governmental opposition was seen as frustrating, they felt that the MPP had sought and achieved a common understanding, a sentiment echoed by the ITU Secretary General. Indeed, even Iran, a state that had expressed major reservations during the MPP and felt itself unable to agree with the text, agreed that the MPP had worked hard to draft a document beneficial to all.

Concerns around the MPP did not affect the review of ICT developments over the last decade. High Level Panels with Ministers of ICT from states such as Uganda, Bangladesh, Sweden, Nigeria, Saudi Arabia and others, heads of the UN Development Programme, UNCTAD, Food and Agriculture Organisation, UN-WOMEN and others spoke at length of rapid advances in ICTs. The focus was largely on ICT access and affordability in developing states. John E. Davies of Intel repeatedly drew attention to innovative uses of ICTs in Africa and Asia, which have helped bridge divides of affordability, gender, education and capacity-building. Public-private partnerships were the best solution, he said, to affordability and access. At a ceremony evaluating implementation of WSIS action-lines, the Centre for Development of Advanced Computing (C-DAC), India, won an award for its e-health application MOTHER.

The Outcome Documents themselves shall be analysed in a separate post. But in sum, the dialogue around Internet governance at the HLE centred around the success of the MPP. Most participants on panels and in the audience felt this was a crucial achievement within the realm of the UN, where the Tunis Summit had delineated strict roles for stakeholders in paragraph 35 of the Tunis Agenda. Indeed, there was palpable relief in Conference Room 1 at the CICG, Geneva, when on June 11, Dr. Touré announced that the Outcome Documents would be adopted without a vote, in keeping with ITU tradition, even if consensus was achieved by compromise.

The High Level Dialogues:

Prof. Vladimir Minkin delivers a statement. (Source)

The High Level Dialogues on developing a post-2015 Development Agenda, based on WSIS action lines, were active on June 12. Introducing the Dialogue, Dr. Touré lamented the Millennium Development Goals as a “lost opportunity”, emphasizing the need to alert the UN General Assembly and its committees as to the importance of ICTs for development.

As on previous panels, there was intense focus on access, affordability and reach in developing countries, with Rwanda and Bangladesh expounding upon their successes in implementing ICT innovations domestically. The world is more connected than it was in 2005, and the ITU in 2014 is no longer what it was in 2003, said speakers. But we lack data on ICT deployment across the globe, said Minister Knutssen of Sweden, recalling the gathering to the need to engage all stakeholders in this task. Speakers on multiple panels, including the Rwandan Minister for CIT, Marilyn Cade of ICANN and Petra Lantz of the UNDP, emphasized the need for ‘smart engagement’ and capacity-building for ICT development and deployment.

A crucial session on cybersecurity saw Dr. Touré envision a global peace treaty accommodating multiple stakeholders. On the panel were Minister Omobola Johnson of Nigeria, Prof. Udo Helmbrecht of the European Union Agency for Network and Information Security (ENISA), Prof. A.A. Wahab of Cybersecurity Malaysia and Simon Muller of Facebook. The focus was primarily on building laws and regulations for secure communication and business, while child protection was equally considered.

The lack of laws/regulations for cybersecurity (child pornography and jurisdictional issues, for instance), or other legal protections (privacy, data protection, freedom of speech) in rapidly connecting developing states was noted. But the question of cross-border surveillance and wanton violations of privacy went unaddressed except for the customary, unavoidable mention. This was expected. Debates in Internet governance have, in the past year, been silently and invisibly driven by the Snowden revelations. So too, at WSIS+10 Cybersecurity, speakers emphasized open data, information exchange, data ownership and control (the right to be forgotten), but did not openly address surveillance. Indeed, Simon Muller of Facebook called upon governments to publish their own transparency reports: A laudable suggestion, even accounting for Facebook’s own undetailed and truncated reports.

In a nutshell, the post-2015 Development Agenda dialogues repeatedly emphasized the importance of ICTs in global connectivity, and their impact on GDP growth and socio-cultural change and progress. The focus was on taking this message to the UN General Assembly, engaging all stakeholders and creating an achievable set of action lines post-2015.

The Forum Track:

Participants at the UNESCO session on its Comprehensive Study on Internet-related Issues (Source)

The HLE was organized as an extended version of the WSIS Forum, which hosts thematic workshops and networking opportunities, much like any other conference. Running in parallel sessions over 5 days, the WSIS Forum hosted sessions by the ITU, UNESCO, UNDP, ICANN, ISOC, APIG, etc., on issues as diverse as the WSIS Action Lines, the future of Internet governance, the successes and failures of WCIT-2012, UNESCO’s Comprehensive Study on Internet-related Issues, spam and a taxonomy of Internet governance.

Detailed explanation of each session I attended is beyond the scope of this report, so I will limit myself to the interesting issues raised.

At ICANN’s session on its own future (June 9), Ms. Marilyn Cade emphasized the importance of national and regional IGFs for both issue-awareness and capacity-building. Mr. Nigel Hickson spoke of engagement at multiple Internet governance fora: “Internet governance is not shaped by individual events”. In light of criticism of ICANN’s apparent monopoly over IANA stewardship transition, this has been ICANN’s continual response (often repeated at the HLE itself). Also widely discussed was the role of stakeholders in Internet governance, given the delineation of roles and responsibilities in the Tunis Agenda, and governments’ preference for policy-monopoly (At WSIS+10, Indian Ambassador Dilip Sinha seemed wistful that multilateralism is a “distant dream”).

This discussion bore greater fruit in a session on Internet governance ‘taxonomy’. The session saw Mr. George Sadowsky, Dr. Jovan Kurbalija, Mr. William Drake and Mr. Eliot Lear (there is surprisingly no official profile-page on Mr. Lear) expound on dense structures of Internet governance, involving multiple methods of classification of Internet infrastructure, CIRs, public policy issues, etc. across a spectrum of ‘baskets’ – socio-cultural, economic, legal, technical. Such studies, though each attempting clarity in Internet governance studies, indicate that the closer you get to IG, the more diverse and interconnected the eco-system gets. David Souter’s diagrams almost capture the flux of dynamic debate in this area (please see pages 9 and 22 of this ISOC study).

There were, for most part, insightful interventions from session participants. Mr. Sadowsky questioned the effectiveness of the Tunis Agenda delineation of stakeholder-roles, while Mr. Lear pleaded that techies be let to do their jobs without interference. Ms. Anja Kovacs raised pertinent concerns about including voiceless minorities in a ‘rough consensus’ model. Across sessions, questions of mass surveillance, privacy and data ownership rose from participants. The protection of human rights on the Internet – especially freedom of expression and privacy – made continual appearance, across issues like spam (Question 22-1/1 of ITU-D Study Group 1) and cybersecurity.

Conclusion:

The HLE was widely attended by participants across WSIS stakeholder-groups. At the event, a great many relevant questions such as the future of ICTs, inclusions in the post-2015 Development Agenda, the value of muti-stakeholder models, and human rights such as free speech and privacy were raised across the board. Not only were these raised, but cognizance was taken of them by Ministers, members of the ITU and other collaborative UN bodies, private sector entities such as ICANN, technical community such as the ISOC and IETF, as well as (obviously) civil society.

Substantively, the HLE did not address mass surveillance and privacy, nor of expanding roles of WSIS stakeholders and beyond. Processually, the MPP failed to reach consensus on several issues comfortably, and a compromise had to be brokered.

But perhaps a big change at the HLE was the positive attitude to multi-stakeholder models from many quarters, not least the ITU Secretary General Dr. Hamadoun Touré. His repeated calls for acceptance of multi-stakeholderism left many members of civil society surprised and tentatively pleased. Going forward, it will be interesting to track the ITU and the rest of UN’s (and of course, member states’) stances on multi-stakeholderism at the ITU Plenipot, the WSIS+10 Review and the UN General Assembly session, at the least.

For more details visit https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-a-birds-eye-report

Privacy and Surveillance Roundtable

praskrishna — 2014-06-20T05:26:10Z

The Centre for Internet and Society and the Cellular Operators Association of India in collaboration with the Council for Fair Business Practices invite you to a "Privacy Roundtable" at IMC Building, IMC Marg, Churchgate, Mumbai on June 28, 2014, 10.00 a.m. to 4.00 p.m.

Time	Details
10:00 – 11:00	Introduction
11:00 - 11:30	Tea
11:30 - 13:00	Discussion
13:00 - 14:00	Lunch
14.00 - 16.00	Discussion
16.00 - 16.15	Tea

Background and Context to the Roundtables

Information about the Roundtables

The Report of the Group of Experts on Privacy

The Draft CIS Citizens Privacy (Protection) Bill 2013

The International Principles on the Application of Human Rights to Communication Surveillance

Tentative schedule for the Roundtables:

Mumbai – June 28th
New Delhi – July 4th
Ahmedabad/Hyderabad – August 1st
Bangalore – September 5th
New Delhi – October 3rd
Chennai – October 24th
New Delhi – November 7th

Resources

For more details visit https://cis-india.org/events/privacy-surveillance-roundtable

UN Human Rights Council urged to protect human rights online

geetha — 2014-06-19T13:28:32Z

63 civil society groups urged the UN Human Rights Council to address global challenges to freedom of expression, privacy and other human rights on the Internet. Centre for Internet & Society joined in the statement, delivered on behalf of the 63 groups by Article 19.

The 26th session of the United Nations Human Rights Council (UNHRC) is currently ongoing (June 10-27, 2014). On June 19, 2014, 63 civil society groups joined together to urge the United Nations Human Rights Council to protect human rights online and address global challenged to their realization. Centre for Internet & Society joined in support of the statement ("the Civil Society Statement"), which was delivered by Article 19 on behalf of the 63 groups.

In its consensus resolution A/HRC/20/8 (2012), the UNHRC affirmed that the "same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice". India, a current member of the UNHRC, stood in support of resolution 20/8. The protection of human rights online was also a matter of popular agreement at NETmundial 2014, which similarly emphasised the importance of protecting human rights online in accordance with international human rights obligations. Moreover, the WSIS+10 High Level Event, organised by the ITU in collaboration with other UN entities, emphasized the criticality of expanding access to ICTs across the globe, including infrastructure, affordability and reach.

The Civil Society Statement at HRC26 highlights the importance of retaining the Internet as a global resource - a democratic, free and pluralistic platform. However, the recent record of freedom of expression and privacy online have resulted in a deficit of trust and free, democratic participation. Turkey, Malaysia, Thailand, Egypt and Pakistan have blocked web-pages and social media content, while Edward Snowden's revelations have heightened awareness of human rights violations on the Internet.

At a time when governance of the Internet and its institutions is evolving, a human rights centred perspective is crucial. Openness and transparency - both in the governance of Internet institutions and rights online - are crucial to continuing growth of the Internet as a global, democratic and free resource, where freedom of expression, privacy and other rights are respected regardless of location or nationality. In particular, the Civil Society Statement calls attention to principles of necessity and proportionality to regulate targeted interception and collection of personal data.

The UNHRC, comprising 47 member states, is called upon to address these global challenges. Guided by resolutions A/HRC/20/8 and A/RES/68/167, the WSIS+10 High Level Event Outcome Documents (especially operative paragraphs 2, 8 and 11 of the Vision Document) and the forthcoming report of the UN High Commissioner for Human Rights regarding privacy in the digital age, the UNHRC as well as other states may gather the opportunity and intention to put forth a strong case for human rights online in our post-2015 development-centred world.

Civil Society Statement:

The full oral statement can be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/un-human-rights-council-urged-to-protect-human-rights-online

Vodafone Report Explains Government Access to Customer Data

joe — 2014-06-19T10:38:01Z

Vodafone Group PLC, the world’s second largest mobile carrier, released a report on Friday, June 6 2014 disclosing to what extent governments can request their customers’ data.

The Law Enforcement Disclosure Report, a section of a larger annual Sustainability Report began by asserting that Vodafone "customers have a right to privacy which is enshrined in international human rights law and standards and enacted through national laws."

However, the report continues, Vodafone is incapable of fully protecting its customers right to privacy, because it is bound by the laws in the various countries in which it operates. "If we do not comply with a lawful demand for assistance, governments can remove our license to operate, preventing us from providing services to our customers," The report goes into detail about the laws in each of the 29 nations where the company operates.

Vodafone’s report is one of the first published by a multinational service provider. Compiling such a report was especially difficult, according to the report, for a few reasons. Because no comparable report had been published before, Vodafone had to figure out for themselves, the “complex task” of what information they could legally publish in each country. This difficulty was compounded by the fact that Vodafone operates physical infrastructure and thus sets up a business in each of the countries where it provides services. This means that Vodafone is subject to the laws and operating licenses of each nation where it operates, unlike as a search engine such as Google, which can provide services across international borders but still be subject to United States law – where it is incorporated.

The report is an important step forward for consumer privacy. First, the Report shows that the company is aware of the conflict of interest between government authorities and its customers, and the pivotal position that the company can play in honoring the privacy of its users by providing information regarding the same in all cases where it legally can. Additionally, providing the user insight into challenges that the company faces when addressing and responding to law enforcement requests, the Report provides a brief overview of the legal qualifications that must be met in each country to access customer data. Also, Vodafone’s report has encouraged other telecom companies to disclose similar information to the public. For instance, Deutsche Telekom AG, a large European and American telecommunications company, said Vodafone’s report had led it consider releasing a report of it’s own.

Direct Government Access

The report revealed that six countries had constructed secret wires or “pipes” which allowed them access to customers’ private data. This means that the governments of these six countries have immediate access to Vodafone’s network without any due process, oversight, or accountability for these opaque practices. Essentially, the report reveals, in order to operate in one of these jurisdictions, a communications company must ensure that authorities have, real time and direct access to all personal customer data at any time, without any specific justification. The report does not name these six nations for legal reasons.

"These pipes exist, the direct access model exists,” Vodafone's group privacy officer, Stephen Deadman, told the Guardian. “We are making a call to end direct access as a means of government agencies obtaining people's communication data. Without an official warrant, there is no external visibility. If we receive a demand we can push back against the agency. The fact that a government has to issue a piece of paper is an important constraint on how powers are used."

Data Organization

Vodafone’s Report lists the aggregate number of content requests they received in each country where it operates, and groups these requests into two major categories. The first is Lawful Interceptions, which is when the government directly listens in or reads the content of a communication. In the past, this type of action has been called wiretapping, but now includes reading the content of text messages, emails, and other communications.

The second data point Vodafone provides for each country is the number of Communications Data requests they receive from each country. These are requests for the metadata associated with customer communications, such as the numbers they have been texting and the time stamps on all of their texts and calls.

It is worth noting that all of the numbers Vodafone reports are warrant statistics rather than target statistics. Vodafone, according to the report, has chosen to include the number of times a government sent a request to Vodafone to "intrude into the private affairs of its citizens, not the extent to which those warranted activities then range across an ever-expanding multiplicity of devices, accounts and apps."

Data Construction

However, in many cases, laws in the various companies in which Vodafone operates prohibit Vodafone from publishing all or part of the aforementioned data. In fact, this is the rule rather than the exception. The majority of countries, including India, prohibit Vodafone from releasing the number of data requests they receive. Other countries publish the numbers themselves, so Vodafone has chosen not to reprint their statistics either. This is because Vodafone wants to encourage governments to take responsibility for informing their citizens of the statistics themselves.

The report also makes note of the process Vodafone went through to determine the legality of publishing these statistics. It was not always straightforward. For example, in Germany, when Vodafone’s legal team went to examine the legislation governing whether or not they could publish statistics on government data requests, they concluded that the laws were unclear, and asked German authorities for advice on how to proceed. They were informed that publishing any such statistics would be illegal, so they did not include any German numbers in their report. However, since that time, other local carriers have released similar statistics, and thus the situation remains unresolved.

Other companies have also recently released reports. Twitter, a microblogging website, Facebook, a social networking website, and Google a search engine with social network capabilities have all released comparable reports, but their reports differ from Vodafone’s in a number of ways. While Twitter, Google, and Facebook all specified the percent of requests granted, Vodafone released no similar statistics. However, Vodafone prepared discussions of the various legal constraints that each country imposed on telecom companies, giving readers an understanding of what was required in each country for authorities to access their data, a component that was left out of other recent reports. Once again, Vodafone’s report differed from those of Google Facebook and Twitter because while Vodafone opens businesses in each of the countries where it operates and is subject to their laws, Google, Facebook, and Twitter are all Internet companies and so are only governed by United States law.

Google disclosed that it received 27,427 requests over a six-month period ending in December, 2013, and also noted that the number of requests has increased consistently each six-month period since data began being compiled in 2009, when fewer than half as many requests were being made. On the other hand Google said that the percentage of requests it complied with (64% over the most recent period) had declined significantly since 2010, when it complied with 76% of requests.

Google went into less detail when explaining the process non-American authorities had to go through to access data, but did note that a Mutual Legal Assistance Treaty was the primary way governments outside of the United States could force the release of user data. Such a treaty is an agreement between the United States and another government to help each other with legal proceedings. However, the report indicated that Google might disclose user information in situations when they were not legally compelled to, and did not go into detail about how or when it did that. Thus, given the difficulty of obtaining a Mutual Legal Assistance Treaty in addition to local warrants or subpoenas, it seems likely that Google complies with many more non-American data requests than it was legally forced to.

Facebook has only released two such reports so far, for the two six month periods in 2013, but they too indicated an increasing number of requests, from roughly 26,000 to 28,147. Facebook plans to continue issuing reports every six months.

Twitter has also seen an increase of 22% in government requests between this and the previous reporting period, six months ago. Twitter attributes this increase in requests to an increase in users internationally, and it does seem that the website has a similarly growing user base, according to charts released by Twitter. It is worth noting that while large nations such as the United States and India are responsible for the majority of government requests, smaller nations such as Bulgaria and Ecuador also order telecom and Internet companies to turn over data.

Vodaphone’s Statistics

Though Vodafone’s report didn’t print statistics for the majority of the countries the report covered, looking at the few numbers they did publish can shed some light on the behavior of governments in countries where publishing such statistics is illegal. For the countries where Vodafone does release data, the numbers of government requests for Vodafone data were much higher than for Google data. For instance, Italy requested Vodafone data 605,601 times, while requesting Google data only 896 times. This suggests that other countries such as India could be looking at many more customers’ data through telecom companies like Vodafone than Internet companies like Google.

Vodafone stressed that they were not the only telecom company that was being forced to share customers’ data, sometimes without warrants. In fact, such access was the norm in countries where authorities demanded it.

India and the Reports

India is one of the most proliferate requesters of data, second only to the United States in number of requests for data from Facebook and fourth after the United States, France and Germany in number of requests for data from Google. In the most recent six-month period, India requested data from Google 2,513 times, Facebook 3,598 times, and Twitter 19 times. The percentage of requests granted varies widely from country. For example, while Facebook complies with 79% of United States authorities’ requests, it only grants 50% of India’s requests. Google responds to 83% of US requests but only 66% of India’s.

Facebook also provides data on the number of content restrictions each country requests. A content restriction request is where an authority asks Facebook to take down a particular status, photo, video, or other web content and no longer display it on their site. India, with 4,765 requests, is the country that most often asks Facebook to remove content.

While Vodafone’s report publishes no statistics on Indian data requests, because such disclosure would be illegal, it does discuss the legal considerations they are faced with. In India, the report explains, several laws govern Internet communications. The Information Technology Act (ITA) of 2000 is the parent legislation governing information technology in India. The ITA allows certain members of Indian national or state governments order an interception of a phone call or other communication in real time, for a number of reasons. According to the report, an interception can be ordered “if the official in question believes that it is necessary to do so in the: (a) interest of sovereignty and integrity of India; (b) the security of the State; (c) friendly relations with foreign states; (d) public order; or (e) the prevention of incitement of offences.” In short, it is fairly easy for a high-ranking official to order a wiretapping in India.

The report goes on to detail Indian authorities’ abilities to request other customer data beyond a lawful interception. The Code of Criminal Procedure allows a court or police officer to ask Vodafone and other telecom companies to produce “any document or other thing” that the officer believes is necessary for any investigation. The ITA extends this ability to any information stored in any computer, and requires service providers to extend their full assistance to the government. Thus, it is not only legally simple to order a wiretapping in India; it is also very easy for authorities to obtain customer web or communication data at any time.

It is clear that Indian laws governing communication have very little protections in place for consumer privacy. However, many in India hope to change this reality. The Group of Experts chaired by Justice AP Shah, the Department of Personnel and Training, along with other concerned groups have been working towards the drafting of a privacy legislation for India. According to the Report of the Group of Experts on Privacy, the legislation would fix the 50 or so privacy laws in India that are outdated and unable to protect citizen’s privacy when they use modern technology.

On the other hand, the Indian government is moving forward with a number of plans to further infringe the privacy of civilians. For example, the Central Monitoring System, a clandestine electronic surveillance program, gives India’s security agencies and income tax officials direct access to communications data in the country. The program began in 2007 and was announced publicly in 2009 to little fanfare and muted public debate. The system became operational in 2013.

Conclusion

Vodafone’s report indicates that it is concerned about protecting its customer’s privacy, and Vodafone’s disclosure report is an important step forward for consumer web and communication privacy. The report stresses that company practice and government policy need to come together to protect citizen’s privacy and –businesses cannot do it alone. However, the report reveals what companies can do to effect privacy reform. By challenging authorities abilities to access customer data, as well as publishing information about these powers, they bring the issue to the government’s attention and open it up to public debate. Through Vodafone’s report, the public can see why their governments are making surveillance decisions. Yet, in India, there is still little adoption of transparent business practices such as these. Perhaps if more companies were transparent about the level of government surveillance their customers were being subjected to, their practices and policies for responding to requests from law enforcement, and the laws and regulations that they are subject to - the public would press the government for stronger privacy safeguards and protections.

For more details visit https://cis-india.org/internet-governance/blog/vodafone-report-explains-govt-access-to-customer-data

May 2014 Bulletin

praskrishna — 2014-07-04T04:59:03Z

Our newsletter for the month of May is below:

We at the Centre for Internet & Society (CIS) welcome you to the fifth issue of the newsletter (May) for the year 2014. Archives of our newsletters can be accessed at: http://cis-india.org/about/newsletters

Highlights

We have published a summary of the various landmark judgments given by the Supreme Court and some of the high courts in a blog post as part of our National Resource Kit project.
CIS submitted its comments on the Open Licensing Policy Guidelines to the National Mission on Education through Information and Communication Technology (NMEICT), Ministry of Human Resource Development, Government of India.
The Access to Knowledge team from CIS has signed a memorandum of understanding with Shri Dharmasthala Manjunatheshwara (SDM) College to introduce “Indian Language Wikipedias in the Indian Under Graduate and Post Graduate Classroom”.
Sunil Abraham wrote an article “Net Freedom Campaign Loses its Way” in the Hindu Businessline which analyses the recently concluded NETMundial.
Divij Joshi gives a comparative analysis of the United States of America and India with regards to search and seizure and the right to privacy in digital age.
Anirudh Sridhar has produced an essay “Binary Code Invades the Universal Problematic” looks at language as an archive and posits, through a reading of Foucault, Derrida, Saussure and Jakobson that the means of perceiving language in the digital has changed.
As part of its Making Change project CIS is holding a public exhibition of stories of change from all over Asia, where the first of its Production Sprints will take place. The exhibition will be held at CIS office in Bangalore on June 7, 2014.
Earlier this year (February 11 – 17) we organized the second Institute on Internet in Pune. A draft of the Knowledge Repository on Internet Access was presented at the event. We are uploading digital versions of the repository for archival purposes. Three units (The Body in Cyberspace, Access to Knowledge and Openness) have been published.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. We compiled the first draft of the kit (29 states and 6 union territories). The chapters along with the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA and eSpeak

Monthly Update

Work Report for May (by Suman Dogra, May 31, 2014).

National Resource Kit

Blog Entry

Summary of Judgements on Disability Rights (by CLPR, May 15, 2014).

Other

Blog Entries

The Road to Financial Inclusion (by Amba Salelkar, May 12, 2014).
Open House with George Abraham: Mainstreaming Persons with Disabilities (by Anandhi Viswanathan, May 22, 2014).

Event Organized

An Open House Session with George Abraham (co-organized by Ashoka India and CIS, Ashoka-Innovators for the Public, Bangalore, May 21, 2014).

Access to Knowledge

Submission

Comments on the Open Licensing Policy Guidelines of the National Mission on Education through Information and Communication Technology (by Sunil Abraham and Nehaa Chaudhari, May 28, 2014). The comments were submitted to the NMEICT, Ministry of Human Resource Development, Government of India.

Blog Entry

France, Greece, India and the European Union Sign the Marrakesh Treaty (by Nehaa Chaudhari, May 2, 2014).

Participation in Event

OGP Asia Pacific Regional Conference (co-organized by Web Foundation, World Bank, and UKP-PPP, Bali, May 6 – 7, 2014). Sunil Abraham was a speaker in the session on “Open Data in Asia-Pacific: a Cross-Country Learning Discussion”.

Media Coverage

WIPO: Scope and rights of potential broadcasting treaty clarified (by Alexandra Bhattacharya, SUNS – South-North Development Monitor, May 5, 2014 and cross-posted in Third World Network, May 6, 2014).
At WIPO, Authors, Civil Society Watchful of Rights for Broadcasters (by Catherin Saez, IP Watch, May 1, 2014).
Pushing the Boundaries in Open Governance: Insights from OGP Asia Pacific Regional Conference in Bali, Indonesia (Day 1) (by Michael Canares, Open Government Partnership, May 6, 2014 and cross-posted in Open Data Research Network, May 27, 2014).

Wikipedia

The following has been done under grant from the Wikimedia Foundation:

Announcement

CIS Signs MoU with Shri Dharmasthala Manjunatheshwara College (by Dr. U.B.Pavanaja, May 27, 2014): to introduce “Indian Language Wikipedias in the Indian Under Graduate and Post Graduate Classroom”. Dr. U.B. Pavanaja on behalf of the CIS-A2K team signed the MoU. The signing event took place earlier on April 21, 2014.

Articles

Books and More are Relicensed to Creative Commons (by Subhashish Panigrahi, Opensource.com, May 2, 2014).
GLAM in India: 10 tips for successful GLAM projects (by Subhashish Panigrahi, OpenGLAM, May 27, 2014).
Indic Language Wikipedias as Open Educational Resources (by Subhashish Panigrahi, Open Education Working Group, May 27, 2014).

Event Organized

Tulu Wikipedia Workshop (co-organized by CIS-A2K and the Regional Research Centre, MGM College, Udupi, May 25, 2014). Dr. U.B.Pavanaja conducted the workshop.

News and Media Coverage

Wikipedia in UG Education program at Christ University (Prajavani, May 15, 2014).
Subhashish Panigrahi joins Open GLAM Working Group: Subhashish recently joined the OpenGLAM Working Group (a global network of people who work to open up cultural data and content.) as a member and OpenGLAM Local (a local affiliate of OKFN's OpenGLAM project) as an ambassador for India. Both the positions will be voluntary.

Internet Governance

As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and International Development Research Centre (IDRC)) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on studying the restrictions placed on freedom of expression online by the Indian government.

FOEX Live

As part of our MacArthur project on free speech and expression we are posting a selection of news from across India implicating online freedom of expression and use of digital technology:

News Compilation

May 26-27, 2014; May 28-29, 2014

Articles

Net Freedom Campaign Loses its Way (by Sunil Abraham, Hindu Businessline, May 10, 2014).
Networks: What You Don’t See is What You (for)Get (by Nishant Shah, DML Central, April 17, 2014 and cross-posted in Hybrid Publishing Lab, May 13, 2014).

Blog Entries

European Court of Justice rules Internet Search Engine Operator responsible for Processing Personal Data Published by Third Parties (by Jyoti Panday, May 14, 2014).
Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy (by Gautam Bhatia, May 18, 2014).

Participation in Events

Freedom of Expression Scholars Conference 2 (organized by Yale Law School, May 2-4, 2014). Pranesh Prakash participated as a discussant in the session “Speech and Safety Laboratories”.
Re:publica 2014: Looking for Freedom (organized by Re:publica in partnership with DAIMLER, Global Innovation Gathering, Microsoft and Science: Lab, Berlin, May 6 – 8, 2014). Pranesh Prakash was a speaker at the session “The Architecture of Invisible Censorship: How Digital and Meatspace Censorship Differ”.
Does Size Matter? A Tale of Performing Welfare, Producing Bodies and Faking Identity (organized by the Berkman Center for Internet and Society, Harvard University, May 13, 2014). Malavika Jayaram gave a talk on “Does Size Matter? A Tale of Performing Welfare, Producing Bodies and Faking Identity”.
The Future of Cyber Governance (organized by Hague Institute for Global Justice in association with the Observer Research Foundation, Ministry of Foreign Affairs of Netherlands, and the Netherlands Institute for International Relations – Clingendael, The Hague, May 13 – 15, 2014). Sunil Abraham was a speaker in the session “Do users of major social media platforms have adequate protection of their rights to privacy and freedom of expression?” and “Expert Panel on the Future of Cyber Governance”.
WSIS+10 High-Level Event: Open Consultation Process (organized by ITU, UNESCO, United Nations and UNDP, WIPO Conference Room, Geneva, May 28 – 31, 2014). Jyoti Panday participated in this event.

Event Organized

National Elections 2014: How Technology Powered Campaigns (organized by HasGeek and CIS, Bangalore, May 23, 2014). Vijay Grover, founder of Bangalore Media Foundation, Viral Shah, part of Nandan Nilekani's campaign management team, and BG Mahesh, founder and managing director at Oneindia.in, made presentations.

Privacy

Articles

Filtering content on the internet (by Chinmayi Arun, The Hindu, May 6, 2014).
Legislating for Privacy - Part II (by Bhairav Acharya, The Hoot, May 20, 2014).

Blog Entry

Search and Seizure and the Right to Privacy in the Digital Age: A Comparison of US and India (by Divij Joshi, May 31, 2014).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Civil Society Pushes for Privacy Panel (by Laxmi Ajai Prasanna, The Times of India, May 6, 2014).
Students lead the way with apps for ideas (by Sruthy Susan Ullas, The Times of India, May 21, 2014).
India needs better cyber police (by Surabhi Agarwal, Business Standard, May 23, 2014).
Digital death: Log off in peace (by Purnima Sharma, The Times of India, May 25, 2014).

Digital Humanities

Blog Entry

Binary Code Invades the Universal Problematic (by Anirudh Sridhar, May 26, 2014).

Telecom

Newspaper Column

An Infrastructure Road Map (by Shyam Ponappa, Business Standard, April 30, 2014 and Organizing India Blogspot, May 1, 2014).

Knowledge Repository on Internet Access

As part of our research (with Ford Foundation) on the origins of the Internet in India, its impact on the Indian GDP and topics and debates surrounding the Internet in today's world we published the following units:

The Body in Cyberspace (by Nishant Shah, May 13, 2014).
Access to Knowledge (by Anirudh Sridhar, May 22, 2014).
Openness (by Prof. Subbiah Arunachalam and Anirudh Sridhar, May 30, 2014).

About CIS

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Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

► Request for Collaboration

For more details visit https://cis-india.org/about/newsletters/may-2014-bulletin

FOEX Live: June 1-7, 2014

geetha — 2014-06-07T13:33:45Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

Delhi NCR:

Following a legal notice from Dina Nath Batra, publisher Orient BlackSwan “set aside… for the present” Communalism and Sexual Violence: Ahmedabad Since 1969 by Dr. Megha Kumar, citing the need for a “comprehensive assessment”. Dr. Kumar’s book is part of the ‘Critical Thinking on South Asia’ series, and studies communal and sexual violence in the 1969, 1985 and 2002 riots of Ahmedabad. Orient BlackSwan insists this is a pre-release assessment, while Dr. Kumar contests that her book went to print in March 2014 after extensive editing and peer review. Dina Nath Batra’s civil suit led Penguin India to withdraw Wendy Doniger’s The Hindus: An Alternative History earlier this year.

The Delhi Police’s Facebook page aimed at reaching out to Delhi residents hailing from the North East proved to be popular.

Goa:

Shipbuilding engineer Devu Chodankar’s ordeal continued. Chodankar, in a statement to the cyber crime cell of the Goa police, clarified that his allegedly inflammatory statements were directed against the induction of the Sri Ram Sene’s Pramod Muthalik into the BJP. Chodankar’s laptop, hard-disk and mobile Internet dongle were seized.

Jammu & Kashmir:

Chief Minister Omar Abdullah announced the withdrawal of a four-year-old SMS ban in the state. The ban was instituted in 2010 following widespread protests, and while it was lifted for post-paid subscribers six months later, pre-paid connections were banned from SMSes until now.

Maharashtra:

In a move to contain public protests over ‘objectionable posts’ about Chhatrapati Shivaji, Dr. B.R. Ambedkar and the late Bal Thackeray (comments upon whose death led to the arrests of Shaheen Dhada and Renu Srinivasan under Section 66A), Maharashtra police will take action against even those who “like” such posts. ‘Likers’ may be charged under the Information Technology Act and the Criminal Procedure Code, say Nanded police.

A young Muslim man was murdered in Pune, apparently connected to the online publication of ‘derogatory’ pictures of Chhatrapati Shivaji and Bal Thackarey. Members of Hindu extremists groups celebrated his murder, it seems. Pune’s BJP MP, Anil Shirole, said, “some repercussions are natural”. Members of the Hindu Rashtra Sena were held for the murder, but it seems that the photographs were uploaded from foreign IP addresses. Across Maharashtra, 187 riotingcases have been registered against a total of 710 persons, allegedly in connection with the offensive Facebook posts.

On a lighter note, Bollywood hopes for a positive relationship with the new government on matters such as film censorship, tax breaks and piracy.

News & Opinion:

Shocking the world, Vodafone reported the existence of secret, direct-access wires that enable government surveillance on citizens. India is among 29 governments that sought access to its networks, says Vodafone.

I&B Minister Prakash Javadekar expressed his satisfaction with media industry self-regulation, and stated that while cross-media ownership is a matter for debate, it is the legality of transactions such as the Reliance-Network18 acquisition that is important.

Nikhil Pahwa of Medianama wrote of a ‘right to be forgotten’ request they received from a user in light of the recent European Court of Justice ruling. The right raises a legal dilemma in India, LiveMint reports. Medianama also comments on Maharashtra police’s decision to take action against Facebook ‘likes’, noting that at the very least, a like and a comment do not amount to the same thing.

The Hindu was scorching in its editorial on the Pune murder, warning that the new BJP government stands to lose public confidence if it does not clearly demonstrate its opposition to religious violence. The Times of India agrees.

Sanjay Hegde wrote of Section 66A of the Information Technology Act, 2000 (as amended in 2008) as a medium-focused criminalization of speech. dnaEdit also published its criticism of Section 66A.

Ajit Ranade of the Mumbai Mirror comments on India as a ‘republic of hurt sentiments’, criminalizing exercises of free speech from defamation, hate speech, sedition and Section 66A. But in this hurt and screaming republic, dissent is crucial and must stay alive.

A cyber security expert is of the opinion that the police find it difficult to block webpages with derogatory content, as servers are located outside India. But data localization will not help India, writes Jayshree Bajoria.

Dharma Adhikari tries to analyze the combined impact of converging media ownership, corporate patronage of politicians and elections, and recent practices of forced and self-censorship and criminalization of speech.

Elsewhere in the world:

In Pakistan, Facebook has been criticized for blocking pages of a Pakistani rock band and several political groups, primarily left-wing. Across the continent in Europe, Google is suffering from a popularity dip.

The National Council for Peace and Order, the military government in Thailand, has taken over not only the government,but also controls the media. The military cancelled its meetings with Google and Facebook. Thai protesters staged a quiet dissent. The Asian Human Rights Commission condemned the coup. For an excellent take on the coup and its dangers, please redirect here. For a round-up of editorials and op-eds on the coup, redirect here.

China has cracked down on Google, affecting Gmail, Translate and Calendar. It is speculated that the move is connected to the 25^th anniversary of the Tiananmen Square protests and government reprisal. At the same time, a Tibetan filmmaker who was jailed for six years for his film, Leaving Fear Behind, has been released by Chinese authorities. Leaving Fear Behind features a series of interviews with Tibetans of the Qinghai province in the run-up to the controversial Beijing Olympics in 2008.

Japan looks set to criminalize possession of child pornography. According to reports, the proposed law does not extend to comics or animations or digital simulations.

Egypt’s police is looking to build a social media monitoring system to track expressions of dissent, including “profanity, immorality, insults and calls for strikes and protests”.

Human rights activists asked Facebook to deny its services to the election campaign of Syrian President Bashar al-Assad, ahead of elections on June 3.

Call for inputs:

The Law Commission of India seeks comments from stakeholders and citizens on media law. The consultation paper may be found here. The final date for submission is June 19, 2014.

____________________________________________________________________________________________________________

For feedback and comments, Geetha Hariharan is available by email at geetha@cis-india.org or on Twitter, where her handle is @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-1-7-2014

CIS Cybersecurity Series (Part 14) – Menaka Guruswamy

purba — 2014-07-21T10:39:03Z

CIS interviews Menaka Guruswamy, lawyer at the Supreme Court of India, as part of the Cybersecurity Series.

"The courts have rarely used privacy to stop the Indian state from getting into someone's business. So jurisprudentially, it is a weak challenge when you mount a rights based or a privacy right challenge against surveillance by the state. Because the answer of the state to that has always been, and as has been Obama's answer in the United States, that there are national security concerns. And usually national security will trump individual privacy."

Centre for Internet and Society presents its fourteenth installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Menaka Guruswamy practices law at the Supreme Court of India. She was a Rhodes Scholar at Oxford University, and a Gammon Fellow at Harvard Law School, and a gold medalist from the National Law School of India. She has law degrees from all three schools, with a focus on Constitutional Law and Public International Law. Guruswamy has worked at the Office of the Attorney General of India, the highest office that represents the federal government of India in the Supreme Court of India.

http://youtu.be/GCDD6Z-UrGI

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/cis-cybersecurity-series-part-14-2013-menaka-guruswamy

WSIS +10 High Level Event: Open Consultation Process Multistakeholder Preparatory Platform: Phase Six: Fifth Physical Meeting

jyoti — 2014-10-12T05:31:48Z

The fifth physical meeting of the Multistakeholder Preparatory Platform (MPP-WSIS+10), was held from 28-31 May 2014 in Geneva as part as part of the sixth phase of the WSIS +10 High Level Event Open Consultation process. The meeting was aimed at developing draft agreed texts for the WSIS+10 Statement on Implementation on WSIS Outcomes and the Vision Beyond 2015.

Stakeholders including governments, private sector, civil society and international organizations participated in the meeting, which was chaired by Prof. Dr. V.Minkin (Russian Federation), Chairman of the Council Working Group on WSIS and the Vice Chairs of the meeting were Egypt, Switzerland and Saudi Arabia.

ITU Deputy Secretary General, Mr Houlin Zhao highlighted that WSIS+10 High Level Event as a joint effort of the UN family and re-emphasized on the commitment and hard work from all UN Agencies and the Secretariat that has processed up to 500 contributions till date. He further reiterated that this preparatory process builds upon several inputs including deliberations at WSIS Forums (2012 and 2013), WSIS+10 Visioning Challenge Initiative, 2013 WSIS+10 Multistakeholder Meeting in Paris, as well as outcomes of ITU Regional Development Forums held in six regions and led by BDT. Almost 500 multistakeholder contributions were processed by secretariat up to now.

Mr. C.Wachholz representing UNESCO and Ms. M. Kultamaa representing the CSTD Secretariat underlined the importance of the process being an important effort leading towards the Overall Review of the implementation of the WSIS outcomes by 2015. Ms. Kultamaa informed the meeting on the status of the discussions taking place at the UN General Assembly regarding the modalities of the Overall Review. She underlined that for the time being there is no consensus and discussions on this subject will continue.It is important to note that all UN organizations serve as secretariat to the preparatory process which is being coordinated by the ITU. All the Action Line Facilitators including, ITU, UNESCO, UNCTAD, UNDP, UNDESA, WMO, UNEP, WHO, UPU, ITC, ILO, FAO, and UN Regional Commissions,as well as WIPO, UN Women contributed towards the development of the Action line documents in the Vision, within their respective mandates. The meeting concluded with final agreed drafts for the WSIS+10 Statement and final agreed draft for WSIS+10 Vision Chapter A and B, with some pending issues in C.

Jyoti Panday representing CIS, participated in the meeting and intervened in the negotiations over the final agreed text. CIS made interventions on text related to increasing women's participation, freedom of expression, media rights, data privacy, network security and human rights. CIS also endorsed text on action line 'Media' which reaffirmed commitment to freedom of expression, data privacy and media rights offline and online including protection of sources, publishers and journalists.

WSIS+10 Statement on the Implementation of WSIS Outcomes

Ø Preamble, Chapter A (Agreed)

Ø Overview of the implementation of Action Lines, Chapter B (Agreed)

Ø Challenges-during implementation of Action Lines and new challenges that have emerged, Chapter C (Agreed)

WSIS+10 Vision for WSIS beyond 2015

Ø Preamble, Chapter A (Agreed)

Ø Priority areas to be addressed in the implementation of WSIS Beyond 2015, Chapter B (Agreed)

Ø Action Lines, Chapter C

С1. The role of public governance authorities and all stakeholders in the promotion of ICTs for development (Agreed)

С2. Information and communication infrastructure (Agreed)

C3. Access to information and knowledge (Agreed)

C4. Capacity building (Agreed)

C5. Building confidence and security in the use of ICTs (pending para g)

g) Continue to promote greater cooperation [among the governments and all other stakeholders,] at the United Nations and~~with all stakeholders at~~ all other appropriate ~~fora~~fora, respectively at ~~the~~ national, regional and international levels to enhance user confidence, build trust,and protect both data and network integrity as well as consider existing and potential threats to ICTs ; and address other information security and network security issues.]

Alt 1 : [ Continue to promote cooperation [among the governments [at the United Nations ]and with all other stakeholders at the United Nations and other appropriate ~~fora~~for a] to enhance user confidence, build trust, ~~and~~ protect ~~both~~ data, ~~and~~ network integrity and critical infrastructures; consider existing and potential threats to ICTs; security in the use of ICTs and address other information security and network security issues, while stressing the need to address [cybercrime and]cybersecurity issues. ~~at appropriate forums, together with all stakeholdersncluding cybersecurity, [and cybercrime]~~]

Alt 2 : [Continue to promote cooperation among the governments at the United Nations and other international organizations and with all other stakeholders at all appropriate fora to enhance user confidence, build trust, protect data, network integrity and critical infrastructures; consider existing and potential threats to ICTs; security in the use of ICTs [and address other information security ]and network security issues, while stressing the need to address cybersecurity issues. ]

Alt 3: [Continue to promote cooperation among the[ governments ~~[at the United Nations]]~~ and ~~with~~ all other stakeholders at ~~other~~ the United Nations and other appropriate fora to enhance user confidence, build trust, and protect both data and network integrity and critical infrastructure; consider existing and potential threats to ICTs; security in the use of ICTs and address other [information security] and network security issues, while stressing the need to address ~~cybercrime and~~ cybersecurity issues. ~~[at appropriate forums, together with all stakeholders], including cybersecurity, [and cybercrime]~~]

[including cybercrime] [including cybercrime and cybersecurity .][ including ICT aspects of cybercrime and cybersecurity]

[Cybercrime [and cybersecurity] should continue to be dealt with,[at the United Nations and other appropriate fora] [in appropriate forums , ]

C6. Enabling environment (Agreed)

C7. ICT Applications: (Agreed)

E-government

E-business

E-learning

E-health

E-employment

E-environment

E-agriculture

E-science

C8. Cultural diversity and identity, linguistic diversity and local content (agreed but pending para f)

f) [Reinforce [and [enhance] implement at the national level] the recommendations concerning the promotion and use of multilingualism [and universal access to cyberspace]].

C9. Media (meeting has developed three proposals that were requested to be reflected in the documents in a table format)

Discussion at the MPP Plenary meeting:	UK proposal, discussed with and supported by: Sweden, Australia, Spain, Germany, UNESCO, European Broadcasting Union, Switzerland, APIG, Centre for Internet and Society (India), Austria, Tunisia, IDEA, Cisco Systems, Mexico, United States, Japan, Canada, ICC BASIS, Intel, Internet Society, Health and Environment Program (HEP), Netherlands, and Microsoft. It was later supported by The Center for Democracy & Technology, Hungary, Czech Republic. International Federation of Library Associations, Portugal, Association for Progressive Communications, auDA (the ccTLD manager for Australia), Finland, Internet Democracy Project (India)	Proposal: Rwanda and Russia
Media will benefit from the broader and expanded role of ICTs that can enhance media’s contribution to the development goals of the post-2015 Sustainable Development Agenda. [The principles of freedom of expression and the free flow of information, ideas and knowledge are essential for the information and knowledge societies and beneficial to development with recognizing that the same rights that people have offline must also be protected online, including the right to privacy.]	Media will benefit from the broader and expanded role of ICTs that can enhance media's contribution to the development goals of the post-2015 Sustainable Development Agenda. The right to freedom of expression and the free flow of information, ideas and knowledge, and the protection of privacy, are essential for the information and knowledge societies and beneficial to development. The same rights that people have offline must also be protected online.	We reaffirm the continued relevance of all issues highlighted under action line C9 on Media (Geneva 2003) and the need for continued implementation of this action line.
1. 1. [Develop and update national ICT-Media legislation that guarantees the independence, objectivity, social responsibility, neutrality and plurality of the media according to international standards as well as the domestic needs.]	1. Develop and update national ICT-Media legislation that guarantees the independence, diversity and plurality of the media according to international standards.
2. [Continue to take appropriate measures — consistent with [international law][freedom of expression]— to combat illegal [content and to protect vulnerable groups , in particular children, from harmful content in media content] and harmful media content.]	2. Continue to take appropriate measures, consistent with international human rights law, to combat illegal media content.
3. Ensure that women and men equally access, participate and contribute to the media sector, including to decision-making processes. Alt: Work towards ensuring that women and men equally access, participate and contribute to the media sector, including to decision-making processes. Alt: Encourage that women and men access, participate and contribute on equal basis to the media sector, including to decision-making processes. [Alt: [Encourage][Ensure] [Strive] [ to leverage the potential of ICTs] to provide full and effective [equal ]opportunities to women and men to access, participate and contribute to the media sector, [including to decision-making processes]]	3. Encourage equal opportunities and the active participation of women in the media sector.
4. [Continue to encourage [independent] tradition [neutral, objective, responsible] nal media to bridge the knowledge divide and to facilitate [the freedom of expression] the flow of cultural content, particularly in rural and remote areas.]	4. Continue to encourage traditional media to bridge the knowledge divide and to facilitate the flow of cultural content, particularly in rural areas.
	5. Encourage online and offline mass media to play a more substantial role in capacity building for the information society.
5. Ensure the [safety[ and responsibility] of all journalists and media workers [and their accountability], [taking into account the provisions of article 19 of the International Convention on Civil and Political Rights (ICCPR)]. ,[ including [bloggers] social media producers, and their sources and facilitate the implementation of the UN Plan of action on the safety of journalists and the issue of impunity.] [To ensure the safety of journalists and address the issue of impunity in accordance to UNGA Resolution (A/RES/68/163)]	6. Ensure the safety of all journalists and media workers, including social media producers and bloggers, and their sources and facilitate the implementation of the UN Plan of Action on the safety of journalists and address the issue of impunity
6. We reaffirm our commitment to the principles of freedom of the press and freedom of information, as well as those of the independence, pluralism and diversity of media, which are essential to the Information Society. Freedom to seek, receive, impart and use information for the creation, accumulation and dissemination of knowledge is important to the Information Society. We call for the responsible use and treatment of information by the media in accordance with the highest ethical and professional standards. Traditional media in all their forms have an important role in the Information Society and ICTs should play a supportive role in this regard. Diversity of media ownership should be encouraged, in conformity with national law, and taking into account relevant international conventions. We reaffirm the necessity of reducing international imbalances affecting the media, particularly as regards infrastructure, technical resources and the development of human skills.

C10. Ethical dimensions of the Information Society (Agreed)

C11. International and regional cooperation (Agreed)

The Chapter C, Part III: The paras highlighted in yellow below did not receive consensus.

III [Action Lines beyond 2015: Looking to the Future

[We reaffirm that effective cooperation among governments, private sector, civil society and the United Nations and other international organizations, according to their different roles and responsibilities and leveraging on their expertise, is essential, taking into account the multifaceted nature of building the Information Society.]

[We emphasize great importance of continuation of the multistakeholder implementation at the international level, following the themes and action lines in the Geneva Plan of Action, and moderated/facilitated by UN agencies. The coordination of multistakeholder implementation activities would help to avoid duplication of activities. This should include, inter alia, information exchange, creation of knowledge, sharing of best practices, and assistance in developing multi-stakeholder and public-private partnerships.]

[We reaffirm importance of the United Nations Group on the Information Society (UNGIS) created by the UN-Chief Executives Board (CEB) upon guidance by Tunis Agenda (Para 103), as an efficient and effective inter-agency mechanism with the main objective to coordinate substantive and policy issues facing the United Nations’ implementation of the outcomes of the World Summit on the Information Society (WSIS).](HEP – delete)

We welcome holding of the annual WSIS Forum, which has become a key forum for multi-stakeholder debate on pertinent issues related to the Geneva Plan of Action and note that the Forum’s inclusiveness, openness, and thematic focus have strengthened responsiveness to stakeholders and contributed to increased physical and remote participation. [agreed]

We encourage all stakeholders to contribute to and closely collaborate with the Partnership on Measuring ICT for Development as an international, multi-stakeholder initiative to improve the availability and quality of ICT data and indicators, particularly in developing countries. [agreed]

[We emphasize/ recognize that the commitments to advance gender equality perspectives and undertake the necessary actions throughout the WSIS outcomes, as called for in Para 3 of Preamble under this document, should also be implemented, reviewed and monitored, consistent with other Action Lines, by UN Women in cooperation with other Action Line Facilitators.](HEP – delete)

We encourage all WSIS stakeholders to continue to contribute information on their activities to the public WSIS stocktaking database maintained by ITU. In this regard, we invite all countries to gather information at the national level with the involvement of all stakeholders, to contribute to the stocktaking. [agreed]

We also welcome continuation of the WSIS Project Prizes initiative that has been launched by ITU with involvement of all Action line facilitators as a competition that recognizes excellence in the implementation of projects and initiatives which further the WSIS goals of improving connectivity to ICTs), particularly within underserved communities, and provide a high-profile, international platform for recognizing and showcasing success stories and models that could be easily replicated. In this regard, the WSIS Stocktaking Database is of utmost importance in sharing best practices amongst WSIS Stakeholders. [agreed]

We emphasize on the importance of 17 May as World Information Society Day to help to raise awareness, on an annual basis, of the importance of this global facility, on the issues dealt with in the WSIS especially the possibilities that the use of ICTs can bring for societies and economies, as well as of ways to bridge the digital divide. [agreed]]

Vision Beyond 2015 Document

1. During the meeting, the participants agreed to replace Chapter E with the following three paragraphs and include them in Chapter B of the Vision:

34. Developing agreed goals and time-based measurable targets data and indicators along with enhanced monitoring and reporting. [agreed]

35. Encourage the ongoing assessment of progress towards the information society, as envisaged in the WSIS Outcomes, including through efforts such as the Partnership on Measuring ICT for Development which has been essential for evaluating the implementation of WSIS Action Lines. [agreed]

36. In this respect, it is necessary to continue to develop appropriate ways and means to make such measurements. [agreed]

2. A long discussion was held on the way forward. Some of the delegates expressed views that if text on WSIS Action Line C9 is not agreed, all Chapter C should not be considered as agreed, and refused to consider other items without reaching agreement on WSIS Action Line C9, while others were open to discuss further with the understanding that Chapter C is essential for the outcomes of the WSIS+10 High Level Event.

3. Some of the delegates requested for reflecting their statements in the Chairman’s Report (See Annex).

4. In conclusion the Chairman informed the meeting that the full text with all brackets will be reflected on the website and possibly forwarded to the consideration of the WSIS+10 High Level Event. He offered his availability on 9^th June 2014 for the meeting, if needed, with the aim of finalization of the text. He encouraged all stakeholders to conduct consultations to reach consensus for pending items prior to the Event.

Link to Documentation:

· Results of the pre-agreed Chapters during the Fifth Physical meeting: http://www.itu.int/wsis/review/mpp/pages/consolidated-texts.html

Background Documents: http://www.itu.int/wsis/review/mpp/#background

Annex

Statement by the Association for Proper Internet Governance
Regarding the 28-31 May Multistakeholder Preparatory Platform meeting
3 June 2014

The Association for Proper Internet Governance (APIG)[1] requests that this statement be annexed to the Chairman’s report of the Multistakeholder Preparatory Platform (MPP).

Introduction

APIG has attended all of the preparatory meetings and made numerous written and verbal submissions. Its representative has actively made constructive suggestions in order to help achieve consensus and APIG has withdrawn various proposals that it considered important when they were challenged by other participants, and this in order to find consensus. Some examples of such compromises made by APIG are presented below.

APIG is pleased that full consensus was reached regarding the Statement and parts A and B of the Vision, and that consensus was reached regarding most of part C of the Vision. However, APIG is disappointed that the rigid positions taken by some participants prevented full consensus from being reached regarding Action Lines C5 (Building confidence and security in the use of ICTs) and C9 (Media) in part C.

It must be recalled that the purpose of the discussions regarding part C was to identify action line items that would supplement the agreed action line items of the 2003 Geneva Plan of Action. The world has changed since 2003 and indeed the action lines need to be revisited and supplemented.

Agreement was reached on many supplements to the action lines. Action line C9 is related to the media, which has undergone dramatic changes since 2003. Many supplements to this action line are surely needed, but, given the complexity of the discussions, in particular regarding freedom of speech, it was not possible to reach consensus. Some participants took the view that, absent consensus on C9, none of the other supplements to the action lines could be considered to have been approved by consensus.

This is correct from a procedural point of view: nothing is agreed until everything is agreed. However, APIG is of the view that the supplements to all action lines except C9 and one item in C5 are acceptable as agreed and can be considered independently of C9 and the unresolved item in C5, while recognizing that important issues regarding C5 and C9 remain open and must continue to be discussed.

We present here the following:

1. Considerations on the multi-stakeholder process used during these preparatory meeting

2. Compromises made by APIG

3. Proposals for C5 and C9

3. Considerations on the multi-stakeholder process used during MPP meetings

The Multistakeholder Preparatory Platform (MPP) meetings were conducted on the basis of equal rights for all stakeholder and no restrictions on participation (except for registration). This allowed a wide variety of views to be heard and resulted in many valuable and diverse proposals being presented for consideration.

The leadership team (chairman and vice-chairmen) was very experienced and skilled, as was the secretariat.

Given the volume and diversity of the submitted inputs, it was APIG’s view that the leadership team should have been requested, already after the first MPP meeting, to propose compromise text. APIG regrets that many participants objected to this, and that the leadership team was tasked with proposing compromise text only at a very late state. This is particularly to be regretted because all participants agreed that the compromise text that was presented by the leadership at the end was excellent and formed an appropriate basis for further discussion and refinement. It is likely that progress would have been more rapid, and that full consensus might have been achieved, if the compromise proposals prepared by the leaderhsip had been presented at the earlier meetings of the MPP.

The meeting was conducted on the basis of unanimity. That is, no text was considered to have achieved consensus unless no participant objected to it. While this appears appealing at first sight, it can result in a small minority blocking progress towards a compromise text. And indeed this happened for some portions of the text of part C of the Vision.

If meetings are fully open, and all stakeholders have equal decision-making rights, then any stakeholder can block any proposal that, in its view, threatens its interests. Thus it will be difficult or impossible to reach consensus on delicate issues at such meetings, and this is indeed what happened at the MPP. Allowing private companies (which are stakeholders) to have the same power as other stakeholders with respect to public policy issues is problematic, see the Preamble of our submission[2] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet). It is also problematic to allow a small number of participants, even if they are governments, to block progress.

Thus, it should be recognized that multi-stakeholder meetings in which public policy decisions are made by unanimity are not appropriate if the goal is to reach consensus on difficult issues.

An alternative would be to apply “rough consensus” rather than unanimity. But this gives a great deal of power to the leadership team, and thus makes the selection of the leadership team a very delicate matter. Such “rough consensus” cannot be held to be democratic.

APIG is of the view that multi-stakeholder process must be democratic, again, see the Preamble of our cited submission to CWG-Internet.

2. Compromises made by APIG

3. APIG would have preferred that paragaph 2 of the Preambles of both the Statement and the Vision read as follows in order to recognize recent UN Resolutions that highlight the relevance of specific human rights in the context of the evolution of ICTs since 2005, recognizing the well-known legal principle that offline rights apply equally online (our additions are shown as revision marks):

We reaffirm the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; and we also reaffirm paragraphs 3, 4, 5 and 18 of the Geneva Declaration ; and we reaffirm the human rights mentioned in relevant UN Resolutions, including, but not limited to:

A/RES/68/147 . Rights of the child
A/RES/68/163. The safety of journalists and the issue of impunity
A/RES/68/167. The right to privacy in the digital age
A/RES/68/227 . Women in development
A/HRC/20/8. The promotion, protection and enjoyment of human rights on the Internet
A/HRC/RES/21/24. Human rights and indigenous People
A/HRC/RES/22/6 . Protecting human rights defenders
A/HRC/RES/ 23/2 . The role of freedom of opinion and expression in women’s empowerment
A/HRC/RES/23/3. Enhancement of international cooperation in the field of human rights
A/HRC/RES /23/10. Cultural rights and cultural diversity
A/HRC/RES/24/5 . The rights to freedom of peaceful assembly and of association
A/HRC/RES/25/11. Question of the realization in all countries of economic, social and cultural rights

APIG is disappointed that one participant (representing business) objected to inclusion in Action Line C2 (Information and Communication Infrastructure) of the following item, which is based on text agreed at the G20 St. Petersburg meeting[3]:

e) There is a need to identify the main difficulties that the digital economy poses for the application of existing international tax rules and develop detailed options to address these difficulties.

APIG would have preferred that the WSIS+10 recognize the dysfunctional nature of the current copyright regime for what concerns online issues and that an explicit call be included to reform that unworkable regime[4]. In particular, APIG would have preferred that item (f) of action line C6 (Enabling Environment) read as follows (changes with respect to the agreed version are shown as revision marks):

f) Foster an intellectual property rights framework that balances the interests of creators, implementers and users , by drastically reducing the length of copyright, by legalizing non-commercial downloads of copyright material, and by restricting what can be patented .

APIG would have preferred that the WSIS+10 explicitly call for the globalization of the IANA fundtion, by adding the following:

In section B (Priority areas) of the Vision, adding 37:

37) Accelerating the globalization of ICANN and IANA functions.

In action line C1 of the Vision, adding (f):

(f) Agree a formal framework that provides for all governments to participate, on an equal footing, in the governance and supervision of the ICANN and IANA functions, and that provides for effective supervision and accountability of these functions in accordance with paragraphs 29, 35, 36, 61 and 69 of the Tunis Agenda.

APIG would have preferred that (b) and (d) of C10 (Ethical Dimensions of the Information Society) read as follows (changes with respect to the agreed version are shown as revision marks):

(b) Promote respect of the fundamental ethical values in the use of ICTs and prevent their abusive usage , and in particular prevent mass surveillance.

(d) Continue to enhance the protection of privacy and personal data. Recognize that, i n the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. Any violations of privacy and any restrictions on the protection of personal data must be held to be necessary and proportionate by an independent and impartial judge.

See 11 of our submission[5] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) and recall that, as stated by the President of Brazil, DilmaRousseff, in her speech at the UN General Assembly on 24 September 2013:

“In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.”

3. Proposals for C5 and C9

APIG would prefer the following texts for (a) of C5 and for C9.

С5. Building confidence and security in the use of ICTs

a) Continue to promote cooperation among governments at the United Nations and other appropriate intergovernmental forums, and with all stakeholders at other appropriate forums, to enhance user confidence, build trust, and protect both data and network integrity; consider existing and potential threats to ICTs, in particular threats created by weakening or compromising encryption standards; and address other information security (this being understood as defending information from unauthorized access, use, disclosure, disruption, modification, perusal, inspection, recording or destruction) and network security issues, in particular mass surveillance.

a^bis) Address cybersecurity and cybercrime in appropriate forums.

In the interests of compromise, APIG could accept deletion of the parts highlighted in yellow above. It should be noted that the text in parenthesis after “information security” was not present in the 2003 version of this text, found in 12(a) of the Geneva Plan of Action. It has been added in order to make it clear that the term “information security” is used in its ordinary sense[6], and not in other senses.

C9. Media

Media will benefit from the broader and expanded role of ICTs that can enhance media’s contribution to the development goals of the post-2015 Sustainable Development Agenda.

The principles of freedom of expression and the free flow of information, ideas and knowledge, and the protection of privacy, are essential for the information and knowledge societies and beneficial to development, recognizing that the same rights that people have offline must also be protected online.

1. Develop and update national ICT-Media legislation that guarantees the independence, and plurality of the media according to international standards as well as the domestic needs.

2. Continue to take appropriate measures — consistent with freedom of expression— to combat media content that is both illegal and harmful. Any such measures must be held to be necessary and proportionate by an independent and impartial judge.

3. Continue to encourage traditional media to bridge the knowledge divide and to facilitate the flow of cultural content, particularly in rural areas.

4. Ensure the safety of all journalists and media workers, including social media producers and bloggers, and their sources (in particular whistle-blowers) and facilitate the implementation of the UN Plan of action on the safety of journalists and the issue of impunity.

5. Ensure the privacy of all media and the secrecy all communications, including E-Mail. Any violations of privacy or secrecy shall take place only if they are held to be necessary and proportionate by an independent and impartial judge. The privacy of all media and the secrecy of all communications shall be respected in accordance with the national laws of all concerned parties.

In the interests of compromise, APIG could accept deletion of the parts highlighted in yellow above. The first part, “recognizing that the same rights that people have offline must also be protected online”, is not necessary, since it affirms a well-known legal principle and since human rights are individible.

It should be noted that the text proposed for 2 clarifies the text of 24 (c)) of the Geneva Plan of Action. That text could be misunderstood to imply that one could combat content that is harmful but not illegal. But such is not the case, since content can only be restricted if it is illegal, pursuant to article 29(2) of the Universal Declaration of Human Rights and article 19(3) of the International Covenant on Civil and Political Rights. That is, the Geneva Plan of Action already enshrined the principle that there should be fewer restrictions on online freedom of speech than on offline freedom of speech, because the online content can be restricted only if it is “illegal and harmful”. In this respect, see 7.1 of our submission [7] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet).

Regarding 4 above, whistle-blowers are sources for journalists, so they are already included and their explicit mention can be omitted.

Regarding 5 above, see 11 of our cited submission to CWG-Internet.

We have omitted an action line regarding gender equality in media because we believe that a strong statement regarding gender equality should apply to all action lines and thus should appear as a chapeau before action line C1. We propose the following for this chapeau (the language is that proposed by UN Women for a potential new action line, slightly modified since it is not proposed here as an action line):

We commit to promote progress in implementing gender commitments enshrined in the WSIS outcome documents and forward-looking recommendations by pursuing practical and joint measures to advance women’s empowerment within the Information Society. The goal is to realize women’s meaningful access to ICTs and full integration of women’s needs and perspectives, and their equal participation as active agents, innovators and decision-makers. Also critical are connecting and heightening understanding of online and offline realities and addressing underlying factors that hinder women’s engagement in the Information society. Finally, we seek to develop more coherent approaches, as well as increase investments, attention and accountability measures.

1. Gender Analysis: Promote the use of “gender analysis” and associated tools and methodologies in the development of national, regional and related global frameworks, strategies and policies and their implementation, as well as better connect with women’s empowerment communities and frameworks.

2. Holistic Approaches and Structural Issues: Address underlying women’s empowerment issues in the information society, such as gender stereotypes, specific or pronounced threats to women, such as online violence, as well as provide analysis and actionable recommendations on gender issues that cut across action lines.

3. Support to Action Lines and Stakeholders: Work with and across Action Lines and specific stakeholder groups (e.g. private sector) to accelerate integration of gender equality within their remits through identification of overarching issues, programmatic opportunities, requisite investments, policy interventions, case studies and learning, and promote participation of women and gender equality stakeholders.

4. Data and Monitoring Progress: Prepare scorecards on Action Line and National level reporting on women’s empowerment. Support and promote the work of the Partnership on the Measurement of the Information Society Working Group on Gender.

[1] http://www.apig.ch

[2] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

[3] G20 Leaders, “Tax Annex to the St. Petersburg Declaration”, G20 (6 September 2013), Annex, Action 1 http://www.g20.org/news/20130906/782776427.html

[4] In this context, see 7.3 of http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf and its references.

[5] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

[6] http://en.wikipedia.org/wiki/Information_security

[7] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

For more details visit https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-open-consultation-process-multistakeholder-preparatory-platform-phase-six

Search and Seizure and the Right to Privacy in the Digital Age: A Comparison of US and India

divij — 2014-06-02T06:45:14Z

The development of information technology has transformed the way in which individuals make everyday transactions and communicate with the world around us. These interactions and transactions are recorded and stored – constantly available for access by the individual and the company through which the service was used.

For example, the ubiquitous smartphone, above and beyond a communication device, is a device which can maintain a complete record of the communications data, photos, videos and documents, and a multitude of other deeply personal information, like application data which includes location tracking, or financial data of the user. As computers and phones increasingly allow us to keep massive amounts of personal information accessible at the touch of a button or screen (a standard smartphone can hold anything between 500 MB to 64 GB of data), the increasing reliance on computers as information-silos also exponentially increases the harms associated with the loss of control over such devices and the information they contain. This vulnerability is especially visceral in the backdrop of law enforcement and the use of coercive state power to maintain security, juxtaposed with the individual’s right to secure their privacy.

American Law - The Fourth Amendment Protection against Unreasonable Search and Seizure

The right to conduct a search and seizure of persons or places is an essential part of investigation and the criminal justice system. The societal interest in maintaining security is an overwhelming consideration which gives the state a restricted mandate to do all things necessary to keep law and order, which includes acquiring all possible information for investigation of criminal activities, a restriction which is based on recognizing the perils of state-endorsed coercion and its implication on individual liberty. Digitally stored information, which is increasingly becoming a major site of investigative information, is thus essential in modern day investigation techniques. Further, specific crimes which have emerged out of the changing scenario, namely, crimes related to the internet, require investigation almost exclusively at the level of digital evidence. The role of courts and policy makers, then, is to balance the state’s mandate to procure information with the citizens’ right to protect it.

The scope of this mandate is what is currently being considered before the Supreme Court of the United States, which begun hearing arguments in the cases Riley v. California,[1] and United States v Wurie,[2]on the 29^th of April, 2014. At issue is the question of whether the police should be allowed to search the cell phones of individuals upon arrest, without obtaining a specific warrant for such search. The cases concern instances where the accused was arrested on account of a minor infraction and a warrantless search was conducted, which included the search of cell phones in their possession. The information revealed in the phones ultimately led to the evidence of further crimes and the conviction of the accused of graver crimes. The appeal is for a suppression of the evidence so obtained, on grounds that the search violates the Fourth Amendment of the American Constitution. Although there have been a plethora of conflicting decisions by various lower courts (including the judgements in Wurie and Riley),[3] the Federal Supreme Court will be for the first time deciding upon the issue of whether cell phone searches should require a higher burden under the Fourth Amendment.

At the core of the issue are considerations of individual privacy and the right to limit the state’s interference in private matters. The fourth amendment in the Constitution of the United States expressly grants protection against unreasonable searches and seizure,[4]however, without a clear definition of what is unreasonable, it has been left to the courts to interpret situations in which the right to non-interference would trump the interests of obtaining information in every case, leading to vast and varied jurisprudence on the issue. The jurisprudence stems from the wide fourth amendment protection against unreasonable government interference, where the rule is generally that any warrantless search is unreasonable, unless covered by certain exceptions. The standard for the protection under the Fourth Amendment is a subjective standard, which is determined as per the state of the bind of the individual, rather than any objective qualifiers such as physical location; and extends to all situations where individuals have a reasonable expectation of privacy, i.e., situations where individuals can legitimately expect privacy, which is a subjective test, not purely dependent upon the physical space being searched.[5]

Therefore, the requirement of reasonableness is generally only fulfilled when a search is conducted subsequent to obtaining a warrant from a neutral magistrate, by demonstrating probable cause to believe that evidence of any unlawful activity would be found upon such search. A warrant is, therefore, an important limitation on the search powers of the police. Further, the protection excludes roving or general searches and requires particularity of the items to be searched. The restriction derives its power from the exclusionary rule, which bars evidence obtained through unreasonable search or seizure, obtained directly or through additional warrants based upon such evidence, from being used in subsequent prosecutions. However, there have evolved several exceptions to the general rule, which includes cases where the search takes place upon the lawful arrest of an accused, a practice which is justified by the possibility of hidden weapons upon the accused or of destruction of important evidence.[6]

The appeal, if successful, would provide an exception to the rule that any search upon lawful arrest is always reasonable, by creating a caveat for the search of computer devices like smartphones. If the court does so, it would be an important recognition of the fact that evolving technologies have transmuted the concept of privacy to beyond physical space, and legal rules and standards that applied to privacy even twenty years ago, are now anachronistic in an age where individuals can record their entire lives on an iPhone. Searching a person nowadays would not only lead to the recovery of calling cards or cigarettes, but phones and computers which can be the digital record of a person’s life, something which could not have been contemplated when the laws were drafted. Cell phone and computer searches are the equivalent of searches of thousands of documents, photos and personal records, and the expectation of privacy in such cases is much higher than in regular searches. Courts have already recognized that cell phones and laptop computers are objects in which the user may have a reasonable expectation of privacy by making them analogous to a “closed container” which the police cannot search and hence coming under the protection of the Fourth Amendment.[7]

On the other hand, cell phones and computers also hold data which could be instrumental in investigating criminal activity, and with technologies like remote wipes of computer data available, such data is always at the risk of destruction if delay is occurred upon the investigation. As per the oral arguments, being heard now, the Court seems to be carving out a specific principle applicable to new technologies. The Court is likely to introduce subtleties specific to the technology involved – for example, it may seek to develop different principles for smartphones (at issue in Riley) and the more basic kind of cell-phones (at issue in Wurie), or it may recognize that only certain kinds of information may be accessed,[8]or may even evolve a rule that would allow seizure, but not a search, of the cell phone before a search warrant can be obtained.[9] Recognizing that transformational technology needs to be reflected in technology-specific legal principles is an important step in maintaining a synchronisation between law and technology and the additional recognition of a higher threshold adopted for digital evidence and privacy would go a long way in securing digital privacy in the future.

Search and Seizure in India

Indian jurisprudence on privacy is a wide departure from that in the USA. Though it is difficult to strictly compartmentalize the many facets of the right to privacy, there is no express or implicit mention of such a right in the Indian Constitution. Although courts have also recognized the importance of procedural safeguards in protecting against unreasonable governmental interference, the recognition of the intrinsic right to privacy as non-interference, which may be different from the instrumental rights that criminal procedure seeks to protect (such as misuse of police power), is sorely lacking. The general law providing for the state’s power of search and seizure of evidence is found in the Code of Criminal Procedure, 1973.

Section 93 provides for the general procedure of search. Section 93 allows for a magistrate to issue a warrant for the search of any “document or thing”, including a warrant for general search of an area, where it believes it is required for the purpose of investigation. The particularity of the search warrant is not a requirement under S. 93(2), and hence a warrant may be for general or roving search of a place. Section 100, which further provides for the search of a closed place, includes certain safeguards such as the presence of witnesses and the requirement of a warrant before a police officer may be allowed ingress into the closed place. However, under S. 165 and S. 51 of the code, the requirements of a search warrant are exempted. S. 165 dispenses with the warrant requirement and provides for an officer in charge of a police station, or any other officer duly authorized by him, to conduct the search of any place as long as he has reasonable grounds to believe that such search would be for the purpose of an investigation and a belief that a search warrant cannot be obtained without undue delay. Further, the officer conducting such search must as far as possible note down the reasons for such belief in writing prior to conducting the search. Section 51 provides another express exception to the requirement of search warrants, by allowing the search of a person arrested lawfully provided that the arrested person may not or cannot be admitted to bail, and requires any such seized items to be written in a search memo. As long as these conditions are fulfilled, the police has an unqualified authority to search a person upon arrest. Therefore, where the arrestee can be admitted to bail as per the warrant, or, in cases of warrantless arrest, as per the law, the search and seizure of such person may not be regular, and the evidence so collected would be subject to greater scrutiny by the court. However, besides these minimal protections, there is no additional procedural protection of individual privacy, and the search powers of the police are extremely wide and discretionary. In fact, there is a specific absence of the exclusionary rule as a protection as well, which means that, unlike under the Fourth Amendment, the non-compliance with the procedural requirements of search would not by itself vitiate the proceedings or suppress the evidence so found, but would only amount to an irregularity which must be simply another factor considered in evaluating the evidence.[10]

The extent of the imputation of the Fourth Amendment protection against unreasonable governmental interference in the Indian constitution is also uncertain. A direct imputation of the Fourth Amendment into the Indian Constitution has been disregarded by the Supreme Court.[11]Though the allusions to the Fourth Amendment have mostly been invoked on facts where unreasonable intrusions into the homes of persons were challenged, the indirect imputation of the right to privacy into the right under Article 21 of the Constitution, invoking the right to privacy as a right to non-interference and a right to live with dignity, would suggest that the considerations for privacy under the Constitution are not merely objective, or physical, but depend on the subjective facts of the situation, i.e. its effect on the right to live with dignity (analogous to the reasonable expectation of privacy test laid down in Katz).[12] Further, the court has specifically struck down provisions for search and seizure which confer particularly wide and discretionary powers on the executive without judicial scrutiny, holding that searches must be subject to the doctrine of proportionality, and that a provision probable cause to effect any search.[13] The Fourth Amendment protection against unreasonable interference in private matters by the state is a useful standard to assess privacy, since it imputes a concept of privacy as an intrinsic right as well as an instrumental one, i.e. privacy as non-interference is a good in itself, notwithstanding the rights it helps achieve, like the freedom of movement or speech.

Regarding digital privacy in particular, Indian law and policy has failed to stand up to the challenges that new technologies pose to privacy and has in fact been regressive, by engaging in surveillance of communications and by allowing governmental access to digital records of online communications (including emails, website logs, etc.) without judicial scrutiny and accountability.[14] In an age of transformative technology and of privacy being placed at a much greater risk, laws which were once deemed reasonable are now completely inadequate in guaranteeing freedom and liberty as encapsulated by the right to privacy. The disparity is even more pronounced in cases of investigation of cyber-crimes which rely almost exclusively on digital evidence, such as those substantively enumerated under the Information Technology Act, but investigated under the general procedure laid down in the Code of Criminal Procedure, which is already mentioned. The procedures for investigation of cyber-crimes and the search and seizure of digital evidence require special consideration and must be brought in line with changing norms. Although S.69 and 69B lay down provisions for investigation of certain crimes,[15] which requires search upon an order by competent authority, i.e. the Secretary to the Department of IT in the Government of India, the powers of search and seizure are also present in several other rules, such as rule 3(9) of the Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011 which allows access to information from intermediaries by a simple written order by any agency or person who are lawfully authorised for investigative, protective, cyber security or intelligence activity; or under rule 6 of the draft Reasonable Security Practices Rules, 2011 framed under Section 43A of the Information Technology Act, where any government agency may, for the prevention, detection, investigation, prosecution, and punishment of offences, obtain any personal data from an intermediate “body corporate” which stores such data. The rules framed for investigation of digital evidence, therefore, do not inspire much confidence where safeguarding privacy is concerned. In the absence of specific guidelines or amendments to the procedures of search and seizure of digital evidence, the inadequacies of applying archaic standards leads to unreasonable intrusions of individual privacy and liberties – an incongruity which requires remedy by the courts and legislature of the country.

[1]. http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf

[2]. http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-212_86qd.pdf

[3]. In Wurie, the motion to supress was allowed, while in Riley it was denied. Also see US v Jacob Finley, US v Abel Flores-Lopez where the motion to suppress was denied.

[4]. The Fourth Amendment to the Constitution of the United States of America: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[5]. Katz v United States, 389 U.S. 347, 352 (1967).

[6]. Stephen Saltzer, American Criminal Procedure

[7]. United States v Chan, 830 F. Supp. 531,534 (N.D. Cal. 1993).

[8]. A factor considered in US v Abel Flores-Lopez, where the court held that the search of call history in a cell phone did not constitute a sufficient infringement of privacy to require the burden of a warrant.

[9]. The decision in Smallwood v. Florida, No. SC11-1130, before the Florida Supreme Court, made such a distinction.

[10]. State Of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593; Radhakrishnan v State of UP, 1963 Supp. 1 S.C.R. 408

[11]. M.P. Sharma v Satish Chandra, AIR 1954 SC 300

[12]. Kharak Singh v State of UP, (1964) 1 SCR 332; Gobind v State of Madhya Pradesh, 1975 AIR 1378

[13]. District Registrar and Collector v. Canara Bank, AIR 2005 SC 186, which related to S.73 of the Andhra Pradesh Stamps Act which allowed ‘any person’ to enter into ‘any premises’ for the purpose of conducting a search.

[14]. S. 69 and 69B of the Information Technology (Amendment) Act, 2008.

[15]. Procedures and Safeguards for Monitoring and collecting traffic data or information rules 2009, available at http://cis-india.org/internet-governance/resources/it-procedure-and-safeguard-for-monitoring-and-collecting-traffic-data-or-information-rules-2009

For more details visit https://cis-india.org/internet-governance/blog/search-and-seizure-and-right-to-privacy-in-digital-age

Openness

Subbiah Arunachalam and Anirudh Sridhar — 2014-05-30T07:59:15Z

The philosophy of openness is one that concerns itself with shifting power from centralized authorities of knowledge like owners to the community with its varied components like users, producers or contributors.

Many people think of openness as being merely about the digitization of pre-existing knowledge or content but it is far more than that. Often, as Nishant Shah puts it in his article “Big Data, People's Lives, and the Importance of Openness”[1] “it (openness) is about claiming access to knowledge and information hidden behind paywalls and gateways that are often produced using public resources.” Openness is important for the same reasons that access to knowledge is important, but it takes many different forms. We will be discussing Open Content, Open Access, Open (Government) Data, Free and Open Source Software and Open Standards.

After a quick narration of what we mean by commons and contents, we move on to open access to science and scholarship. We distinguish openness of knowledge as it prevails today from the public libraries of the print era and then move on to developments that led to the open access movement. We then discuss the status of open access in India and end with the bright future awaiting open access.

The notion of the ‘commons’ (meaning open to all) has been in existence for a very long time. For example, as early as the 4^th Century B C, Aristotle commented “What is common to the greatest number gets the least care!” [1] Ecologist Garret Hardin developed this notion into the ‘tragedy of the commons’ for explaining the numerous environmental crises and ecological dilemmas we face today [2]

Commons is defined as "resources accessible to all members of a society“. A good example of the commons is the village greens in Great Britain around which people reside and have their church and school. Then there are grazing lands for their cattle, and water bodies, which no one owns but everyone can use. The moment someone has a title deed for a piece of land he ‘encloses’ it with a fence. Even here, if that piece of land has been used for long by people to cross to the other side, the owner keeps open a narrow footpath.

It is only three or four decades ago the commons became an object of serious study. The idea of the ‘knowledge commons’ draws upon the work of people like Elinor Orstom on ‘common pool resources,’ ‘natural resource commons’ and ‘public good’ such as forests, water systems, fisheries, grazing fields and the global atmosphere all of which are common-pool resources of immense importance for the survival of humans on this earth [3-5].Ostrom and her colleague Charlotte Hess also contributed to knowledge commons and in particular to our understanding of scholarly communication and cultural resources as commons. Their work brought out the essential role of collective action and self-governance in making commons work [6].

Definitions
Before talking about knowledge commons let us define these terms:

Knowledge includes all useful ideas, information and data in whatever form in which it is expressed or obtained, and useful knowledge can be indigenous, scientific, scholarly, or non-academic. It also includes music and the visual and theatrical arts – humanity’s literary, artistic and cultural heritage.
Ostrom and Hess define a commons as a resource shared by a group of people that is subject to social dilemmas.
Social dilemma in the context of knowledge includes enclosure by intellectual property (IP) regulations, loss due to inadequate preservation or simple neglect, and different laws being applied to print and digital forms.
Open Knowledge Definition defines openness in relation to content and data thus: A piece of content or data is open if anyone is free to use, reuse, and redistribute it without technical or legal restrictions, subject only, at most, to the requirement to attribute and/ or share-alike [http://opendefinition.org]. And ‘digital commons’ is defined as "information and knowledge resources that are collectively created and owned or shared between or among a community and that is (generally freely) available to third parties. Thus, they are oriented to favour use and reuse, rather than to exchange as a commodity."

Free and Open Software

Definition
Free and open-source software (FOSS) is software that is both free and open source. Free software is software for which the source code is released when it is distributed. The users are free to adapt study and distribute the software.[2]Most commercially available software is proprietary software so the free software is mostly developed cooperatively. The free software movement was launched in 1983 which was a social movement for the attaining these freedoms for software users. It basically draws upon the 1970’s hacker culture but the founder of the movement Richard Stallman started the GNU Project in 1983.[3] Open source software (OSS) is released with its source code and the license is one where the copyright holder extends the right for users to study, change and distribute the software to anyone and for any purpose. OSS is also often developed collaboratively in a public endeavor. Free software licenses and open-source licenses are often used by many software packages instead of proprietary software licenses which have restrictive copyrights. Usually all software and bug fixes under this are also made available under the same free and open licenses which creates a kind of living software. These types of software are essential for society moving forward because they help reduce costs, increases productivity, enhance security, and improve compliance standards. FOSS presents the lowest risk among software systems because they have the best long term investment protection.

UNESCO has recognized the importance of FOSS as a practical tool in development and in achieving the Millennium Development Goals (MDG).[4]

It recognizes that:

Software plays a crucial role in access to information and knowledge;
Different software models, including proprietary, open-source and free software, have many possibilities to increase competition, access by users, diversity of choice and to enable all users to develop solutions which best meet their requirements;
The development and use of open, interoperable, non-discriminatory standards for information handling and access are important elements in the development of effective infostructures;
The community approaches to software development has great potential to contribute to operationalize the concept of Knowledge Societies;
The Free and Open Source Software (FOSS) model provides interesting tools and processes with which people can create, exchange, share and exploit software and knowledge efficiently and effectively;
FOSS can play an important role as a practical instrument for development as its free and open aspirations make it a natural component of development efforts in the context of the Millennium Development Goals (MDGs);
Consistent support plays an important role in the success and sustainability of FOSS solutions;
All software choices should be based upon the solution's ability to achieve the best overall return on technology investments.[5]

Organizations[6]
There is no rule that excludes anyone who wants to support FOSS from doing so. Usually, however, the trend shows that non-profit organizations (NPO), academic institutions, developers and support/service businesses invest their time and resources in these projects. Here are some of the important organizations that have supported FOSS:

FLOSS Manuals -- FLOSS Manuals is a community that creates free manuals for free and open source software.
FOSS Learning Centre – They are an international NPO that is a center for information and training about FOSS.
GOSLING - "Getting Open Source Logic Into Governments" is a knowledge sharing community assist with the introduction and use of free/libre software solutions in the Canadian Federal and other government operations.
International Open Source Network -- "The vision is that developing countries in the Asia-Pacific Region can achieve rapid and sustained economic and social development by using effective FOSS ICT solutions to bridge the digital divide."
Open Source for America – This is a combination of NGO’s, academic institutions, associations, technology industry leaders that advocates and helps raise the awareness of FOSS in the US Government.
Open Source Initiative – This was the organization that first gave mass market appeal to the term “open source. They are the recognized certification authority for whether or not a given software license is FOSS.
Open Source Software Institute – This is another NPO that consists of government, academic and corporate representation and they encourage open-source solutions in U.S. government agencies and academic entities.
OSS Watch – This is a public institution in the UK which provides advice on the development and licensing of FOSS.
SchoolForge – They offer references to references to open texts and lessons, open curricula, and free open source software in education.

Types of Licenses[7]
Source Code: This is a code that is readable by humans. It has statements like:*Simple Hello Button () method.

When a computer is running, a source code is translated into binary code which is not readable or modifiable by humans. It reads something like:01011001101.

The licenses that will illuminate where FOSS licenses stand relatively are GPL licenses (that are the most restrictive) and BSD licenses (which are almost public domain). The primary distinction between these two is the way in which source code is treated as opposed to binary code.

The GPL license differed from prior ones because they stipulated that the source code has to be provided along with the binary code which meant that the licensees could use and change the source code. This requirement was an important part of the domino effect in driving innovation since old industrial standards did not apply to software. However, though this freedom with binaries produced exists, there are no requirements to make the source available. The prime difference between the two being that legally, the release of the BSD source is completely at the discretion of the releasing entity.

The following table compares different kinds of FOSS licenses. In order to be considered as such, the bare minimum is for the licenses to pass the first four tests in the table.[8]

	Source must be free	Must retain copyright notice	Can sell executable without restriction	Modifications covered under license	Prevented from use for software or data locking	Linked code covered under license	New updates to license will apply	Patent retaliation, loss of use if suit brought	Can sell source code
GPL V3	Y	Y	Y	Y	Y	N	Y	?	N
Mozilla (V1.1)	Y	Y	Y	Y	N	N	Y	Y	N
BSD	Y	Y	Y	Y	N	N	N	N	Y

Differences[9]
The most salient distinction between the two types of software comes from the principles behind them. For the “open source” movement, the idea that software should be open source is a practical one and isn’t concerned with the ethical dimensions behind the question. For the free software movement, the problem behind software licenses is a social one for which free software is the solution.


Openness poster depicting the 4 freedoms of Free and Open Source Software. By 2016 approximately 86% of all video content will be internet video.

FOSS in India

Many support groups like the Free Software Movement of India and various NGO’s have spawned in order to campaign for FOSS in India.[10]

The National Resource Centre for Free and Open Source Software (NRCFOSS) was an initiative by the DIT in 2005 in order to be the central point for all FOSS related activities in India. Through awareness campaigns, training programs and workshops a large collection of FOSS trained teacher and student communities have been formed across India.[11] In many curricula in technical institutes, FOSS is even offered as an elective. The Department of Electronics and Information Technology (DEITY) boasts of “BOSS – Bharat Operating System Solutions External website that opens in a new windowis a GNU/Linux based localized Operating System distribution that supports 18 Indian languages - Assamese, Bengali, Bodo, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili, Malayalam, Manipuri, Marathi, Oriya, Punjabi, Sanskrit, Tamil, Telegu and Urdu.”[12]

Case Study: Curoverse[13]
Open source software is a mainstream enterprise that can be both beneficial to society, academia and companies. This was the underlying assumption when $1.5 million was invested in an open source genomics tool project at Curoverse, Boston. The Personal Genome Project (PGP) endeavors to sequence 100,000 human genomes in the U.S. The storage of these massive amounts of data is facilitated by Arvados, which is an open source computational platform. Curoverse, which is a product of the PGP is planning to release its commercial products next year and in anticipation, Boston Global Ventures and Common Angels have invested $1.5 M. The PGP, according to George Church (the creator), the database needed to hold almost one Exabyte of data for the researchers to efficiently analyze the data. Some of the functions necessary were the ability to share the data between research centers and to make sure that complex analyses could be reproduced. In order to satisfy these requirements, the software had to open source. Although similar to the new age cloud computing the software Arvados was programmed to hold extremely high amounts of genetic data. It can run on both public and private cloud services, so it’ll be available both on Amazon and other cloud platforms. Although this software was developed in 2006, the project hadn’t officially taken off but this investment in open source software coming from high impact technology companies like Boston Global Ventures.

Case Study: Open-Sorcerers[14]
Many magical tricks can be protected by copyright. For example, Teller from Penn and teller fame is suing a Dutch magician for allegedly stealing his “shadow” illusion. Litigating on these matters is proving to be extremely difficult so magicians, like programmers are taking the route of open-source licenses. This doesn’t mean that they would just share magical secrets in violation of the Alliance of Magicians on a forum like YouTube. This is more congruous with what open source technology activists advocate which is the idea of collaboration. If magicians work with more technologists, artists, programmers, scientists and other magicians, there could be better illusions and a general cross-pollination of magical ideas among various disciplines. For this, the technology behind these illusions needs to be freely available and the licenses have to open up for open sorcerers. Techno-illusionist Marco Tempest and Kieron Kirlkland from a digital creativity development studio in Bristol are the main proponents of open source in magic. Tempest has stated that famous magicians in the status quo contract illusion engineers, technologists or other magicians to design new effects for their acts and make them all sign secrecy agreements and the creators have no ownership of what they have created. This has been detrimental to innovation and perfection of techniques as they are not allowed to refine their work over time. If the ownership is instead shared and freely available to the co-creators and developers, then it would lead to better illusions and speed up the process faster.

Open Standards

Definition
Interoperability has many social, technical and economic benefits and interoperability on the internet magnifies these benefits many fold. Interoperability, unlike a lot of other economically beneficial changes, was not a result of the adapting markets. It came about in what modest existence it has, through a concerted effort from processes and practices by the IETF, the W3C and the Interop conferences among others.[15]

Open standards are applicable to any application programming interface, a hardware interface, a file format, a communication protocol, a specification of user interactions, or any other form of data interchange and program control.[16]

The billions of dollars of capital investment in the past few years since the internet’s advent into the mainstream has come from an understanding of very basic laws of the market. Metcalfe’s law says the value of interoperability increases geometrically with the number of compatible participants. Reed’s law states that a network’s utility exponentially increases as the number of subgroups increase.The problem with having standards for this interoperability is that the open standard either needs to be most open or most inclusive and unlike in many other cases we have discussed, here it can’t be both. If it wants to be inclusive, it should have standards that permit any license that is free, closed or open. It should have standards that have any type of implementation under any implementor.[17] On the other hand, if it to support the idea of openness, the best practices will exclude certain practices in the market like proprietary standards. Though traditionally meant to incentivize compliance by claiming a set of standards to be best practices, under this, some try to be unique in the market by adding on additional properties that are not a part of the open standards but claim that they implement “open standards” for strategic advantage. Others even defy the logic of having standards by claiming that their new additions embody open standards better.

As we have seen, due to the various conceptions of the good in open standards, there isn’t a universally accepted definition of open standards. The FOSS community largely accepts the following definition with contention from the industry.

[S]ubject to full public assessment and use without constraints [royalty-free] in a manner equally available to all parties; without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an open standard themselves; free from legal or technical clauses that limit its utilization by any party or in any business model; managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties; available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties.[18]

A standard can be considered open if it does the job of achieving the following goals. It has to increase the market for a particular technology by facilitating investment in that technology by both consumers and suppliers. It has to do this by making sure these investors don’t have to pay monopoly rent or deal with trade secret, copyright, patent or trademark problems. In retrospect, we have learned that the only standards that have achieved these goals are ones that encourage an open-source philosophy.

Proprietary software manufacturers, vendors and their lobbyists often provide a definition of open standards that is not in line with the above definitions on two counts (Nah, 2006).

One, they do not think it is necessary for an open standard to be available on a royalty-free basis as long as it is available under a “reasonable and non-discriminatory” (RAND) licence. This means that there are some patents associated with the standard and the owners of the patents have agreed to license them under reasonable and non-discriminatory terms (W3C, 2002). One example is the audio format MP3, an ISO/IEC [International Organisation for Standardisation/International Electrotechnical Commission] standard where the associated patents are owned by Thomson Consumer Electronics and the Fraunhofer Society of Germany. A developer of a game with MP3 support would have to pay USD 2,500 as royalty for using the standard. While this may be reasonable in the United States (US), it is unthinkable for an entrepreneur from Bangladesh. Additionally, RAND licences are incompatible with most FOSS licensing requirements. Simon Phipps of Sun Microsystems says that FOSS “serves as the canary in the coalmine for the word ‘open’. Standards are truly open when they can be implemented without fear as free software in an open source community” (Phipps, 2007). RAND licences also retard the growth of FOSS, since they are patented in a few countries. Despite the fact that software is not patentable in most parts of the world, the makers of various distributions of GNU/Linux do not include reverse-engineered drivers, codecs, etc., in the official builds for fear of being sued. Only the large corporation-backed distributions of GNU/Linux can afford to pay the royalties needed to include patented software in the official builds (in this way enabling an enhanced out-of-the-box experience). This has the effect of slowing the adoption of GNU/Linux, as less experienced users using community-backed distributions do not have access to the wide variety of drivers and codecs that users of other operating systems do (Disposable, 2004). This vicious circle effectively ensures negligible market presence of smaller community-driven projects by artificial reduction of competition.

Two, proprietary software promoters do not believe that open standards should be “managed and further developed independently of any single vendor,” as the following examples will demonstrate. This is equally applicable to both new and existing standards.

Microsoft’s Office Open XML (OOXML) is a relatively new standard which the FOSS community sees as a redundant alternative to the existing Open Document Format (ODF). During the OOXML process, delegates were unhappy with the fact that many components were specific to Microsoft technology, amongst other issues. By the end of a fast-track process at the ISO, Microsoft stands accused of committee stuffing: that is, using its corporate social responsibility wing to coax non-governmental organisations to send form letters to national standards committees, and haranguing those who opposed OOXML. Of the twelve new national board members that joined ISO after the OOXML process started, ten voted “yes” in the first ballot (Weir, 2007). The European Commission, which has already fined Microsoft USD 2.57 billion for anti-competitive behaviour, is currently investigating the allegations of committee stuffing (Calore, 2007). Microsoft was able to use its financial muscle and monopoly to fast-track the standard and get it approved. In this way it has managed to subvert the participatory nature of a standards-setting organisation. So even though Microsoft is ostensibly giving up control of its primary file format to the ISO, it still exerts enormous influence over the future of the standard.

HTML, on the other hand, is a relatively old standard which was initially promoted by the Internet Engineering Task Force (IETF), an international community of techies. However, in 2002, seven years after the birth of HTML 2.0, the US Department of Justice alleged that Microsoft used the strategy of “embrace, extend, and extinguish” (US DoJ, 1999) in an attempt to create a monopoly among web browsers. It said that Microsoft used its dominance in the desktop operating system market to achieve dominance in the web-authoring tool and browser market by introducing proprietary extensions to the HTML standard (Festa, 2002). In other words, financial and market muscle have been employed by proprietary software companies – in these instances, Microsoft – to hijack open standards.

The Importance
There are many technical, social and ethical reasons for the adoption and use of open standards. Some of the reasons that should concern governments and other organisations utilising public money – such as multilaterals, bilaterals, civil society organisations, research organisations and educational institutions – are listed below.

Innovation/competitiveness: Open standards are the bases of most technological innovations, the best example of which would be the internet itself (Raymond, 2000). The building blocks of the internet and associated services like the world wide web are based on open standards such as TCP/IP, HTTP, HTML, CSS, XML, POP3 and SMTP. Open standards create a level playing field that ensures greater competition between large and small, local and foreign, and new and old companies, resulting in innovative products and services. Instant messaging, voice over internet protocol (VoIP), wikis, blogging, file-sharing and many other applications with large-scale global adoption were invented by individuals and small and medium enterprises, and not by multinational corporations.

Greater interoperability: Open standards ensure the ubiquity of the internet experience by allowing different devices to interoperate seamlessly. It is only due to open standards that consumers are able to use products and services from competing vendors interchangeably and simultaneously in a seamless fashion, without having to learn additional skills or acquire converters. For instance, the mail standard IMAP can be used from a variety of operating systems (Mac, Linux and Windows), mail clients (Evolution, Thunderbird, Outlook Express) and web-based mail clients. Email would be a completely different experience if we were not able to use our friends’ computers, our mobile phones, or a cybercafé to check our mail.

Customer autonomy: Open standards also empower consumers and transform them into co-creators or “prosumers” (Toffler, 1980). Open standards prevent vendor lock-in by ensuring that the customer is able to shift easily from one product or service provider to another without significant efforts or costs resulting from migration.

Reduced cost: Open standards eliminate patent rents, resulting in a reduction of total cost of ownership. This helps civil society develop products and services for the poor.

Reduced obsolescence: Software companies can leverage their clients’ dependence on proprietary standards to engineer obsolescence into their products and force their clients to keep upgrading to newer versions of software. Open standards ensure that civil society, governments and others can continue to use old hardware and software, which can be quite handy for sectors that are strapped for financial resources.

Accessibility: Operating system-level accessibility infrastructure such as magnifiers, screen readers and text-to-voice engines require compliance to open standards. Open standards therefore ensure greater access by people with disabilities, the elderly, and neo-literate and illiterate users. Examples include the US government’s Section 508 standards, and the World Wide Web Consortium’s (W3C) WAI-AA standards.

Free access to the state: Open standards enable access without forcing citizens to purchase or pirate software in order to interact with the state. This is critical given the right to information and the freedom of information legislations being enacted and implemented in many countries these days.

Privacy/security: Open standards enable the citizen to examine communications between personal and state-controlled devices and networks. For example, open standards allow users to see whether data from their media player and browser history are being transmitted along to government servers when they file their tax returns. Open standards also help prevent corporate surveillance.

Data longevity and archiving: Open standards ensure that the expiry of software licences does not prevent the state from accessing its own information and data. They also ensure that knowledge that has been passed on to our generation, and the knowledge generated by our generation, is safely transmitted to all generations to come.

Media monitoring: Open standards ensure that the voluntary sector, media monitoring services and public archives can keep track of the ever-increasing supply of text, audio, video and multimedia generated by the global news, entertainment and gaming industries. In democracies, watchdogs should be permitted to reverse-engineer proprietary standards and archive critical ephemeral media in open standards.

Principles[19]

Availability:Open Standards should be available for everyone to access.
Maximize End-User Choice:Open Standards should lead to a competitive and fair market and shouldn’t restrict consumer choices.
No Royalty:Open Standards should be free of cost for any entity to implement while there maybe some fee for certification of compliance.
No Discrimination:Open Standards should not show preference to one implementer over another as previously discussed except for the tautological reason of the compliance with the standard. The authorities that are certifying these implementers should offer a low or zero-cost implementation scheme.
Extension or Subset:Open Standards may be allowed in a subset or can allow for extensions form but certifying authorities can decline from certifying subset implementations and have specific conditions for extensions.


HTTP, HTML, TCP/IP, SSL, etc., are all royalty free open standards and are building blocks on the Internet.

OSI Criteria[20]
In addition, to make sure that the Open Standards also promote an open source philosophy, the Open Source Initiative (OSI), which is the steward of the open source definition, has a set of criteria for open standards.

“No Intentional Secrets: The standard MUST NOT withhold any detail necessary for interoperable implementation. As flaws are inevitable, the standard MUST define a process for fixing flaws identified during implementation and interoperability testing and to incorporate said changes into a revised version or superseding version of the standard to be released under terms that do not violate the OSR.
Availability: The standard MUST be freely and publicly available (e.g., from a stable web site) under royalty-free terms at reasonable and non-discriminatory cost.
Patents: All patents essential to implementation of the standard must:
- be licensed under royalty-free terms for unrestricted use, or
- be covered by a promise of non-assertion when practiced by open source software
No Agreements: There must not be any requirement for execution of a license agreement, NDA, grant, click-through, or any other form of paperwork to deploy conforming implementations of the standard.
No OSR-Incompatible Dependencies: Implementation of the standard must not require any other technology that fails to meet the criteria of this Requirement.”

W3C Criteria[21]
The W3C also has a list of criteria in order to be called “Open Standards”.

Transparency (due process is public, and all technical discussions, meeting minutes, are archived and referencable in decision making)
Relevance (new standardization is started upon due analysis of the market needs, including requirements phase, e.g. accessibility, multi-linguism)
Openness (anybody can participate, and everybody does: industry, individual, public, government bodies, academia, on a worldwide scale)
Impartiality and consensus (guaranteed fairness by the process and the neutral hosting of the W3C organization, with equal weight for each participant)
Availability (free access to the standard text, both during development and at final stage, translations, and clear IPR rules for implementation, allowing open source development in the case of Internet/Web technologies)
Maintenance (ongoing process for testing, errata, revision, permanent access)”

Case Study: Digital Colonialism
Imagine back to a world in which a foreign power leases out a piece of land and you grow crops on it. You have produced crops there for many seasons and used the sales to buy a nice windmill. One day, the lease expires and the foreign power come and seizes not only your crops but also your windmill. Now if we apply the same story in a proprietary standards regime, imagine you were to license a copy of Microsoft Office for 28 days. You have stored documents in .doc, .xls and .ppt format. On the day that the license expires, you will not only lose your ability to use Word, Excel and PowerPoint, you will in fact lose all your documents in .doc, .xls and .ppt formats!

Additional Readings

Internet Engineering Task Force, OpenStandards.net,http://www.openstandards.net/viewOSnet2C.jsp?showModuleName=Organizations&mode=1&acronym=IETF
Standards, W3C, http://www.w3.org/standards/
Open Standards, http://www.open-std.org/
Pranesh Prakash, “Report on Open Standards for GISW 2008”, Centre for Internet and Society, 2008, http://cis-india.org/publications-automated/cis/sunil/Open-Standards-GISW-2008.pdf/at_download/file
Sunil Abraham, “Response to the Draft National Policy on Open Standards for e-Governance”, Centre for Internet and Society, 2008, http://cis-india.org/openness/publications/standards/the-response
Pranesh Prakash, “Second Response to Draft National Policy on Open Standards for e-Governance”, Centre for Internet and Society, 2008,http://cis-india.org/openness/publications/standards/second-response
Definition of “Open Standards”, International Telecommunication Union, http://www.itu.int/en/ITU-T/ipr/Pages/open.aspx

Open Content

Definition
The premise of an Open Content license is that, unlike most copyright licenses, which impose stringent conditions on the usage of the work, the Open Content licenses enable users to have certain freedoms by granting them rights. Some of these rights are usually common to all Open Content licenses, such as the right to copy the work and the right to distribute the work. Depending on the particular license, the user may also have the right to modify the work, create derivative works, perform the work, display the work and distribute the derivative works.

When choosing a license, the first thing that you will have to decide is the extent to which you are willing to grant someone rights over your work. For instance, let us suppose you have created a font. If you do not have a problem if people create other versions of it, then you can choose a license that grants the user all rights. If, on the other hand, you are willing to allow people to copy the font and distribute it, but you do not want them to change the typeface or create versions of it, then you can choose a more restrictive license that only grants them the first two rights.

Most open content licenses share a few common features that distinguish them from traditional copyright licenses.

These can be understood in the following ways:

Basis of the license/ validity of the license. (Discussed above)
Rights granted. (Discussed above)
Derivative works.d. Commercial/ non-commercial usage.e. Procedural requirements imposed.
Appropriate credits.
They do not effect fair use rights.
Absence of warranty.
Standard legal clauses

Derivate Works
Any work that is based on an original work created by you is a derivative work. The key difference between different kinds of Open Content licenses is the method that they adopt to deal with the question of derivative works. This issue is an inheritance from the licensing issues in the Free Software environment. The GNU GPL, for instance, makes it mandatory that any derivative work created from a work licensed under the GNU GPL must also be licensed under the GNU GPL. This is a means of ensuring that no one can create a derivative work from a free work which can then be licensed with restrictive terms and conditions. In other words, it ensures that a work that has been made available in the public domain cannot be taken outside of the public domain.

On the other hand, you may have a license like the Berkeley Software Distribution (BSD) software license that may allow a person who creates a derivative work to license that derivative work under a proprietary or closed source license. This ability to control a derivative work through a license is perhaps the most important aspect of the Open Content licenses. They ensure, in a sense, a self perpetuity. Since a person cannot make a derivative work without your permission, your permission is granted on the condition that s/he also allows others to use the derivative work freely. In Open Content licenses, the right to create a derivative work normally includes the right to create it in all media. Thus, if I license a story under an Open Content license, I also grant the user the right to create an audio rendition of it. The obligation to ensure that the derivative work is also licensed under the terms and conditions of the Open Content license is not applicable, however, in cases where the work is merely aggregated into a collection / anthology / compilation. For instance, suppose that I have drawn and written a comic called X, which is being included in a general anthology. In such a case, the other comics in the anthology may be licensed under different terms, and the Open Content license is not applicable to them and will only be applicable to my comic X in the anthology.

Commercial / Non-Commercial Usage
Another important aspect of Open Content licenses is the question of commercial / non-commercial usages. For instance, I may license a piece of video that I have made, but only as long as the user is using it for non-commercial purposes. On the other hand, a very liberal license may grant the person all rights, including the right to commercially exploit the work.

Procedural Requirements Imposed
Most Open Content licenses require a very strict adherence to procedures that have to be followed by the end user if s/he wants to distribute the work, and this holds true even for derivative works. The licenses normally demand that a copy of the license accompanies the work, or the inclusion of some sign or symbol which indicates the nature of the license that the work is being distributed under, for instance, and information about where this license may be obtained. This procedure is critical to ensure that all the rights granted and all the obligations imposed under the license are also passed onto third parties who acquire the work.

Appropriate Credits
The next procedural requirement that has to be strictly followed is that there should be appropriate credits given to the author of the work. This procedure applies in two scenarios. In the first scenario, when the end user distributes the work to a third party, then s/he should ensure that the original author is duly acknowledged and credited. The procedure also applies when the end user wants to modify the work or create a derivative work. Then, the derivative work should clearly mention the author of the original and also mention where the original can be found.

The importance of this clause arises from the fact that, while Open Content licenses seek to create an alternative ethos of sharing and collaboration, it also understands the importance of crediting the author. Very often, in the absence of monetary incentive, other motivating factors such as recognition, reputation and honour become very important. Open Content licenses, far from ignoring the rights of the author, insist on strict procedures so that these authorial rights are respected. You may copy and distribute the Document in any medium, either commercially or non-commercially, provided that this License, the copyright notices, and the license notice saying this license applies to the document are reproduced in all copies, and that you add no other conditions whatsover to those of this License. You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute.

Open content licenses do not effect fair use rights
Under copyright law, there is an exception to infringement and this is known as the fair use exception. Fair use exceptions generally include using portions for critique or review, and certain non-commercial or educational academic uses etc. Open content licenses make it clear that 48 49the terms and conditions of the license do not affect your fair use rights. Thus even if someone is in disagreement with the terms and conditions, and refuses to enter into the open content license, s/he may still have the freedom to use the work to the extent that is allowed by the principles of his/her fair use rights.

Absence of warranty
Since more often than not the work is being made available at no financial cost and also gives the user certain freedoms, most open content licenses have a standard clause which states that the work is being provided without any warranty or on an ‘as is’ basis. The licensor cannot be in a position to provide any warranty on the work. A few licenses however provide the end-user the option of providing a warranty on services, or a warranty on the derivative work so long as that warranty is one between the licensee and the third party.

Standard legal clauses
A few other clauses that appear at the end of most open content licenses are the standard legal clauses that are included in most legal agreements, and you don’t have to worry too much about them while choosing a license.

These generally include:

Severability: This means that even if one portion of the license is held to be invalid the other portions will still continue to have effect.
Limitation on liability: The licenses normally state that the licensor will not be liable for anything arising from the use of the work. Thus, for instance, an end-user cannot claim that he suffered mental trauma as a result of the work.
The licenses do not allow you to modify any portion of the license while redistributing works, etc.
Termination: Most licenses state that the rights granted to the licensee are automatically terminated the moment s/he violates any obligation under the license.

Libraries as Content Providers and the Role of Technology
Content is for people’s use. First it was the library which facilitated access to knowledge for the use by the lay public. The first among the five laws enunciated by the famous Indian librarian Ranganathan [7] emphasizes this point: “Books are for use.” And it was technology which enabled large scale production of content in the form of books and subsequently facilitated ease of access.

Let us take text as content first. Before Gutenberg invented printing using movable types (c. 1436-1440) scribes used to write on vellum by hand. It was a painfully slow process and the reach was very limited. Gutenberg brought about probably the greatest game changing technology which within a very few years revolutionized many aspects of human life and history like never before. Peter Drucker has captured this revolution beautifully in an article in The Atlantic [8]

The public library became the content commons in the print era. Of course, long before Gutenberg there were some great libraries, e.g., Royal Library of Alexandria (Egypt), Taxila University Library, Nalanda University Library (Bihar, India), Bayt Al Hiqma (Baghdad, Iraq) and the Imperial Library of Library of Constantinople (in the capital of the Byzantine Empire). None of these could survive the ravages of time. Thanks to printing, the numbers increased rapidly and the library movement spread to far corners of the globe.

The major public libraries of today are performing a great job with huge collections. The US Library of Congress in Washington DC has 155 million items occupying 838 miles of shelf space, of which 35 million are print material, 68 million are manuscripts, and 5.4 million are maps. Besides these, LoC has 6.5 million pieces of sheet music, 13.6 million photographs and 3.4 million recordings.

The British Library in London has more than 150 million items with 3 million being added annually. If one reads 5 items a day, it will take 80,000 years to complete the current collection. The National Library of Russia stocks more than 36.4 million items. The Russian State Library, the legendary 'Leninka,' comprises a unique collection of Russian and foreign documents in 247 languages, stocking over 43 million items.

Now every major library emphasizes improved access. Here are some excerpts from Mission statements of some large institutions around the world.

British Library: “Enable access to everyone who wants to do research.”
National Library of the Netherlands: “Our core values are accessibility, sustainability, innovation and cooperation.”
German Federal Archives: “legal responsibility of permanently preserving the federal archival documents and making them available for use.”
Danish National Gallery: “Through accessibility, education, and exhibition.”
Victoria & Albert Museum: “To provide diverse audience with the best quality experience and optimum access to our collections, physically and digitally.”

I have included in this sample of galleries, archives, and museums as well as all of them deal with cultural content. Indeed the Open Knowledge Foundation has a major project called OpenGLAM.

In India the first network of public libraries covering a whole state was set up more than a hundred years ago by the Maharaja of Baroda (Sayaji Rao Gaekwad III), a truly benevolent king [9]. In the US though, the public library movement was essentially the gift of a ruthless industrialist who was believed to have been unfair to the workers in his steel mills. But the more than 2,000 libraries Andrew Carnegie helped set up are truly a democratizing force.

Today the Bill and Melinda Gates Foundation promotes libraries in the developing and emerging economies and through their Access to Knowledge award they leverage the use of ICT in libraries.

While public libraries opened up a vast treasure of knowledge to a large number of people many of whom could not have had an opportunity to read even a few of the books in their collections, they had not provided ‘open access.’ That has to wait a little longer.

The Internet era not only helped traditional libraries to introduce new services but also gave birth to many free and open libraries such as Internet Archive and Project Gutenberg. The Internet Archive aims to provide ‘universal access to all knowledge’ and includes texts, audio, moving images, and software as well as archived web pages, and provides specialized services for adaptive reading and information access for the blind and other persons with disabilities. Project Gutenberg encourages the creation of ebooks.

The best known examples of more recent initiatives are Europeana and the Digital Public Library of America (DPLA) both of which take full advantage of the possibilities offered by the Internet. Europeana provides access to 22.6 million objects (from over 2,000 institutions). These include 14.6 million images – paintings, photographs, etc. and 8.4 million books, magazines, newspapers, diaries, etc. DPLA is not even a year old but it already provides access to more than 5.4 million items from a number of libraries, archives and museums.

In India there are efforts to digitize print material, paintings, images, music, films, etc. The Digital Library of India (DLI) and the Indira Gandhi National Centre for Arts (IGCNA) are two examples. Currently, the Ministry of Culture is toying with the idea of a setting up a National Virtual Library.

Apart from libraries which provide electronic access to millions, a very large number of newspapers and magazines and websites also are freely accessible on the net.

Perhaps one of the most important development in Open Content that has affected people’s access to knowledge worldwide has been Wikipedia. Alexa rans it 6th among all websites globally and approximately 365 million users worldwide read Wikipedia content.

The Creative Commons System
Critiquing a system is merely one side of the coin. Offering viable alternatives or solutions to the lacunae identified in the status quo significantly buttresses critical claims. Alternatives have moved to the internet and understood the logic of its read-write culture. New media such as YouTube and platforms like WordPress have made each one of us not mere consumers of information but potential authors, film makers. Any viable alternative must contemplate this transformation of the read-only culture of the internet to the read-write culture.

Creative Commons (CC) is a non-profit organization that functions across the world to provide licensing tools to authors of creative works. The key distinguishing feature of this system is that the authors have the right to decide under what license they want to make their work available. The system was conceptualized by a number of individuals at the helm of the copyleft movement, of whom the most prominent was Professor Lawrence Lessig.

The creative commons system stands for ‘Some Rights Reserved’, a deviation from the ‘all rights reserved’ model of strict copyright law. The rights to be reserved are left to the discretion of the author.

Types of Licenses
1.    Attribution License – CC BY
2.    Attribution-ShareAlike : CC BY-SA
3.    Attribution-NoDerivatives License : CC BY-ND
4.    Attribution-NonCommercial License : CC BY-NC
5.    Attribution-NonCommercial-ShareAlike : CC BY-NC-SA
6.    Attribution-NonCommercial-NoDerivs- CC BY-NC-ND LICENSE

Exceptions to Open Content
There are two kinds of critiques that have been made about the limitations of Open Content initiatives. The first is a policy - level critique which argues that the voluntary nature of Open Content projects diverts from the larger issue of the need for urgent structural transformations in the global copyright regime. It is argued, for instance, that by relying on copyright, even in a creative variation of it, it still ends up strengthening the copyright system. The larger problem of access to knowledge and culture can only be solved through a long-term intervention in the global copyright regime from the Berne Convention to the TRIPS agreement.

Open Content has also been criticized on the grounds that it privileges the traditional idea of the author at the center of knowledge / culture at the costs of focusing on users. By giving authors the right to participate in a flexible licensing policy, Open Content initiatives end up privileging the notion of the desirability of creating property rights in expressions; cultural and literary products are considered as commodities, albeit ones that the creator can decide to make accessible (or not0, much like a person can decide whether or not to invite someone into his / her house.

A second-level critique asks the question of the relevance of Open Content projects, with their heavy reliance on the Internet. According to the Copysouth group:
It is unlikely that more than a tiny percentage of the works created on a global basis in any year will be available under Creative Commons (CC) licenses. Will the percentage be even less within the Southern Hemisphere? This seems likely. Hence, CC licenses will be of limited value in meeting the expansive access needs of the South in the near future. Nor do CC licenses provide access to already published works or music that are still restricted by copyright laws; these form the overwhelming majority of current material. Focusing on CC licenses may potentially sideline or detour people from analyzing how existing copyright laws block access and how policy changes on a societal level, rather than the actions of individual "good guys", are the key to improving access and the related problems of copyright laws and ideology which are discussed elsewhere in this draft dossier. Nor does it confront the fact that many creators (e.g. most musicians, most academic authors) may be required, because of unequal bargaining power, to assign copyright in their own work to a record company or publisher as a condition of getting their work produced or published.

Finally, a number of Open Content initiatives have an uncomfortable take on other modes through which most people in developing nations have access to knowledge and cultural commodities, namely, piracy, and its critical relation to infrastructure. The emphasis of Open Content on the creation of new content of course raises the question of who uses the new content, and what is the relationship between such content and the question of democratization of infrastructure?

In most cases, the reason for the fall in price of electronic goods, computers, great access to material, increase in photocopiers (the infrastructure of information flows), etc. is not caused in any manner through any radical revolution such as Free Software or Open Content, but really through the easier availability of standard mainstream commodities like Microsoft software and Hollywood. Open Content is unable to provide a solution to the problem of content that is locked up within current copyright regimes. As much as one would like to promote new artists, new books, etc., the fact remains that a bulk of the people do want the latest Hollywood / Bollywood films for a cheaper cost; they do want the latest proprietary software at a cheaper cost; and they do want to read Harry Potter without paying a ransom.

We can either take the moral higher ground and speak of their real information needs or provide crude theories of how they are trapped by false consciousness. Or, we can move away from these judgmental perspectives, and look at other aspects of the debate, such as the impact that the expansion of the grey market for these goods has on their general pricing, the spread of computer/IT culture, the fall in price of consumables such as blank CDs, DVDs, the growing popularity of CD-writing equipment, etc.

There is no point in having a preachy and messianic approach that lectures people on the kind of access that should be given. While in an ideal world, we would also use Free Software and Open Content, this cannot be linked in a sacrosanct manner to the question of spreading access.

Wikipedia

History of Wikipedia
January 15^th is known as Wikipedia Day to Wikipedians. On this day 13 years back in 2001, Jimmy Wales and Larry Sanger launched a wiki-based project after experimenting with another project called Nupedia. Nupedia was also a web-based project whose content was written by experts to have high quality articles comparable to that of professional encyclopedia. Nupedia approved only 21 articles in its first year, compared to Wikipedia posting 200 articles in the first month, and 18,000 in the first year.

In concept, Wikipedia was intended to compliment Nupedia by providing additional high quality articles. In practice, Wikipedia overtook Nupedia, becoming a global project providing free information in multiple languages.

As of January 2014, Wikipedia includes over 30.5mn articles written by 44 million registered users and numerous anonyms volunteers in 287 languages; including over 20 Indian languages.[1] Wikipedia is the world's sixth-most-popular internet property with about 450 mn unique visitors every month, according to Alexa Internet.[2]

Wikipedia in Indian Language
With one of the globe’s largest populations, world’s largest democracies, dozens of languages and hundreds of dialects, rich heritage, culture, religion, architecture, art, literature and music; India presents a remarkable opportunity for Wikipedia. For the Wikimedia movement, India represents a largely untapped opportunity to dramatically expand its impact and move toward the vision of a world where everyone can freely share in – and contribute to – the sum of human knowledge.

Although the Indian population makes up about 20% of humanity, Indians account for only 4.7% of global Internet users, and India represents only 2.0% of global pageviews and 1.6% of global page edits on Wikimedia's sites. Wikipedia projects in 20 Indic languages, will become increasingly important as the next 100 million Indians come onto the Internet, given that they are likely to be increasingly using the Internet in languages other than English. Demographically, Indic languages represent a good growth opportunity since estimates suggest only about 150 million of the total Indian population of 1.2 billion have working fluency in English.

To drive the growth of Indian language Wikipedias, WMF initiated Access to Knowledge Programme (A2K) with Centre for Internet & Society in 2012.

Challenges Faced by Indian Language Wikipedias
The current challenges of Indian language Wikipedias can be summarized as below:

1.    Indian language Wikipedia’s are under-represented in reader, editor & article counts.
2.    Editor base is relatively low.Further, growth in editors and articles is still relatively low, even on a small base.
3.    Technical barriers exist for use of Indian language Wikipedias, especially for editing.
4.    Internet penetration low (~150mn) – though growing rapidly, and projected to double by 2015. [3]
Hari Prasad Nadig; a Wikipedian since 2004, an active Kannada Wikipedian, sysop on both Kannada Wikipedia and Sanskrit Wikipedia, talks about challenges and opportunities of Indian Language Wikipedias in a video.[22]

Development of Indian Language Wikipedias
Between 2002-04, about 18 Indian language Wikipedias had started. As of Jan 2014, Hindi Wikipedia is the largest project with over 1-lakh articles and Malayalam Wikipedia has the best quality articles amongst all Indian language Wikipedia projects.

In India there are two main organisational bodies that are:

First is Wikimedia India Chapter which is an independent and not-for-profit organization that supports, promotes and educate the general Indian public about the availability and use of free and open educational content, which includes the ability to access, develop and contribute to encyclopaedias, dictionaries, books, images, etc.The chapter helps coordinate various Indian language Wikipedias & other Wikimedia projects and spread the word in India. Chapter's latest updates can be accessed from its official portal wiki.wikimedia.in.

Second is Access to Knowledge Programme at Centre for Internet & Society (CIS-A2K) that provides support to the Indian Wikimedia community on various community-led activities, including outreach events across the country, meetups, contests, conferences, and connections to GLAMs and other institutions. CIS-A2K's latest updates can be accessed from its official portal Wiki.[23]

Some ideas for development of India language Wikipedias (also adopted by India Chapter and CIS-A2K) are:

Content addition/donation in Indian languages
Particular emphasis is placed on generating and improving content in Indic languages. The Indian language Wikipedias can be strengthened by finding content that is relevant and useful to the Wikimedia movement that is (a) already in the public domain and (b) contributed to the movement under an acceptable copyright license. Such content will include, but not be limited to, dictionaries, thesauruses, encyclopedias and any other encyclopedia-like compilations.

A precedent for content addition/donation exists in the gift of an encyclopedia to the Wikimedia movement by Kerala government in 2008 and Goa government in 2013.

Institutional Partnerships
To partner with higher education institutions in developing thematic projects and create a network of academicians that will actively use Indian language Wikipedias as part of their pedagogy. Conduct outreach workshops mainly with an intention to spread awareness and to arrive at possibilities for long-term partnerships.

An example of this would be 1600 students of Christ University undergraduate courses who study a second language as part of the course are enrolled in a program where they are building content on Hindi, Kannada, Tamil, Sanskrit and Urdu Wikipedias.

Strengthening existing community
Facilitate more qualitative interactions amongst current contributors, with an aim to a) foster creation of new project ideas; b) periodic review and mitigation of troublesome issues; c) foster a culture of collective review of the expansion of Indian language Wikipedias.

This is currently been done by capacity building meet-up or advanced user trainings organized for existing Wikimedia volunteers from different language communities.

Tapping into User Interest Groups
Setting up smaller special interest groups by tapping into existing virtual (Facebook pages/groups, bloggers communities, other open source groups/mailing lists), and physical communities and supporting key Wikipedians to bring new Wikipedians on board.

Building ties with DiscoverBhubaneshwar in Odisa [4] and Goa.me in Goa [5], which are photographer’s communities. Useful pictures from different states can feed into Wikipedia articles there by enriching the content. Collaboration with Media lab at Jadhavpur University, Kolkota has helped create articles on Indian cinema and media, Indian film history etc.

Creating awareness
Creation of short online editing videos tutorials and editing guides to be published on Wikimedia commons, YouTube, Facebook and similar websites that could help us reach out to larger audiences. Production of videos in local language will avoid existing issues with global videos such as low comprehensions because of accents and relevance.

Hindi Wikipedia tutorial videos were produced in collaboration with the Christ University students, faculty and staff, as part of the Wikipedia-in-the-UG-Language-Classroom program. A total of 10 videos are thoughtfully produced to teach anyone how to edit Hindi Wikipedia.[24] Video tutorials on Kannada Wikipedia are currently in pipeline.

Technical support
Liaising between language communities and WMF & Language Committee in finding effective solutions for any script issue, input method issue, rendering issues or any bugs.

Case Study: Wikipedians Speak
Netha Hussain is a 21-year-old medical student from Kerala, India. She first began editing Wikipedia in May 2010, contributing to English Wikipedia and Malayalam Wikipedia along with uploading photos to Wikimedia Commons. She said “I started editing Wikipedia every day. In school, we studied subjects like microbiology, pathology, pharmacology and forensic medicine. After class, I'd go straight to Wikipedia. I'd review the information related to the day's lecture, and add a few more facts and sources. It was a lot of work, and I always went to bed tired, but it was worth it. Everybody reads Wikipedia. If they want to learn something, they turn to Wikipedia first. I know I’ve helped a little — maybe even a lot. And that’s the greatest feeling I know.”[25] Image Attribution:Netha Hussain by Adam Novak, under CC-BY-SA 3.0 Unported, from Wikimedia Commons. Poongothai Balasubramanian is a retired Math teacher from Tamil Nadu, India. She began editing Wikipedia in 2010. Since then, she's created 250 articles and recorded pronunciations for 6,000 words. She has created several articles on quadratic functions, probability, charts, graphs and more on Tamil Wikipedia. She has over 7,000 Wikipedia edits. She said, “As a teacher and a mother, I was always busy. But now that I'm retired and my children are grown, my time is my own — all 24 hours of it! And I spend every day on Wikipedia. I'm a volunteer. No one pays me. But helping edit Wikipedia has become my life's work. Even though I'm not in the classroom, I'm still doing what I care about most: helping a newgeneration of students learn, in the language I love.”[26] Image Attribution: Balasubramanian Poongothai by Adam Novak, under CC-BY-SA 3.0 Unported, from Wikimedia Commons.

Case Study: Wikipedians Speak

Netha Hussain is a 21-year-old medical student from Kerala, India. She first began editing Wikipedia in May 2010, contributing to English Wikipedia and Malayalam Wikipedia along with uploading photos to Wikimedia Commons. She said “I started editing Wikipedia every day. In school, we studied subjects like microbiology, pathology, pharmacology and forensic medicine. After class, I'd go straight to Wikipedia. I'd review the information related to the day's lecture, and add a few more facts and sources. It was a lot of work, and I always went to bed tired, but it was worth it. Everybody reads Wikipedia. If they want to learn something, they turn to Wikipedia first. I know I’ve helped a little — maybe even a lot. And that’s the greatest feeling I know.”[25]

Image Attribution:Netha Hussain by Adam Novak, under CC-BY-SA 3.0 Unported, from Wikimedia Commons.

Poongothai Balasubramanian is a retired Math teacher from Tamil Nadu, India. She began editing Wikipedia in 2010. Since then, she's created 250 articles and recorded pronunciations for 6,000 words. She has created several articles on quadratic functions, probability, charts, graphs and more on Tamil Wikipedia. She has over 7,000 Wikipedia edits. She said, “As a teacher and a mother, I was always busy. But now that I'm retired and my children are grown, my time is my own — all 24 hours of it! And I spend every day on Wikipedia. I'm a volunteer. No one pays me. But helping edit Wikipedia has become my life's work. Even though I'm not in the classroom, I'm still doing what I care about most: helping a newgeneration of students learn, in the language I love.”[26]

Image Attribution: Balasubramanian Poongothai by Adam Novak, under CC-BY-SA 3.0 Unported, from Wikimedia Commons.

Additional Reading

Geert Lovink and Nathaniel Tkacz (eds.), “Critical Point of View: A Wikipedia Reader”, Centre for Internet and Society and the Institute of Network Cultures, http://www.networkcultures.org/_uploads/%237reader_Wikipedia.pdf.
Links to 2 videos
Yochai Benkler

Open Access

Definition
Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions.

OA removes price barriers (subscriptions, licensing fees, pay-per-view fees) and permission barriers (most copyright and licensing restrictions). The PLoS shorthand definition —"free availability and unrestricted use"— succinctly captures both elements.

There is some flexibility about which permission barriers to remove. For example, some OA providers permit commercial re-use and some do not. Some permit derivative works and some do not. But all of the major public definitions of OA agree that merely removing price barriers, or limiting permissible uses to "fair use" ("fair dealing" in the UK), is not enough.

Here's how the Budapest Open Access Initiative put 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."

Here's how the Bethesda and Berlin statements put it: For a work to be OA, the copyright holder must consent in advance to let users "copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship...."

The Budapest (February 2002), Bethesda (June 2003), and Berlin (October 2003) definitions of "open access" are the most central and influential for the OA movement. Sometimes I refer to them collectively, or to their common ground, as the BBB definition.

When we need to refer unambiguously to sub-species of OA, we can borrow terminology from the kindred movement for free and open-source software. Gratis OA removes price barriers alone, andlibre OA removes price barriers and at least some permission barriers as well. Gratis OA is free of charge, but not free of copyright of licensing restrictions. Users must either limit themselves to fair use or seek permission to exceed it. Libre OA is free of charge and expressly permits uses beyond fair use. To adapt Richard Stallman's famous formulation (originally applied to software), gratis OA is free as in 'free beer', while libre OA is also free as in 'free speech'.

In addition to removing access barriers, OA should be immediate, rather than delayed, and should apply to full texts, not just abstracts or summaries.

It is true that many libraries and other content providing organizations provide free access to vast quantities of textual (and other kinds of) information. Today a variety of contents is thrown open by the creators and these include hundreds of educational courses, open government data, open monographs, open images and so on.

But when we talk of ‘open access’ the term is restricted to science and scholarship and especially to research publications and in particular journal articles. Unlike most newspaper publishers, not all publishers of professional journals are ready to allow free use of the material they publish. Indeed, they levy hefty subscription prices and some journals cost in the range of US $ 20-30 thousand per year. Large publishing houses earn a profit of upwards of 35%. ”Elsevier's reported margins are 37%, but financial analysts estimate them at 40–50% for the STM publishing division before tax” [10].

Publishers protect their ‘rights’ with copyright and are ever vigilant in protecting those rights.

Case Study: Aaron Swartz
Let us begin with an extreme example – the case of Aaron Swartz, the hacker-activist, who was forced to end his life early this year after being pursued by the US Department of Justice. What did Aaron do? He downloaded a very large number of full text papers from JSTOR, a database of scholarly journal articles, from an MIT server. Why should anyone think downloading scholarly research articles was a crime in the first place? “Why, twenty years after the birth of the modern Internet, is it a felony to download works that academics chose to share with the world?” asks Michael Eisen, a renowned biologist at UC Berekeley and cofounder of the Public Library of Science [11]. The most important component of the Internet, the World Wide Web, was invented by CERN researchers essentially to help scientists communicate and share their research. Today we can view thousands of videos on Indian weddings and pruning roses. But we are barred from downloading or reading research papers without paying a large sum! These are papers written by scientists, reviewed by scientists, their research often paid for by government agencies. And the knowledge therein is of relevance not only to other scientists but to the lay public as well. Especially, health related research. And yet, JSTOR, a not-for-profit organization founded with support from Andrew Mellon Foundation, and MIT were keen to go to court, and the prosecutor was keen to argue for the severest punishment.

Case Study: Rover Research
Recently, Michael Eisen placed in his website four research papers resulting from the Rover exploration of Mars published in the AAAS journal Science. This is something no one has done before. His logic: the research was funded by NASA, a US government agency, and most of the authors were working in government institutions, and therefore the citizens have the right to access. While everyone was expecting AAAS and the authors to drag Eisen to court for violating copyright, the authors also made the papers freely available on their institutions’ websites! But I wonder if Eisen could have got away so easily had he placed papers published in a journal published by Elsevier or Springer. Possibly not. Recently Elsevier had sent thousands of take down notices to Academia.edu for placing papers published in Elsevier journals (in the final PDF version) in their site. Elsevier had also sent similar missives to many individual scientists and universities including Harvard for a similar ‘offence’ [12].

Scientists do research and communicate results to other scientists. They build on what is already known, on what others have done – the ‘shoulders of giants’ as Newton said. Getting to know the work and results of others’ research is essential for the progress of knowledge. Any barrier, including cost barrier, will hurt science or for that matter production of knowledge in any field.

When it comes to information (and knowledge) scientists everywhere face two problems, viz. Access and Visibility. These problems are acutely felt by scientists in poorer countries.

They are unable to access what other scientists have done, because of the high costs of access. With the nation’s an annual per capita GDP of about US $3,500 (ppp) or even less, libraries in most developing countries cannot afford to subscribe to key journals needed by their users. Most scientists are forced to work in a situation of information poverty. Thanks to spiraling costs many libraries are forced to cancel subscription to several journals making the situation even worse.
Scientists elsewhere are unable to access what developing country researchers are publishing, leading to low visibility and low use of their work. Take for example India. As Indian scientists publish their own research in thousands of journals, small and big, from around the world, their work is often not noticed by other scientists. even within India, working in the same and related areas. Thus Indian work is hardly cited.

Both these handicaps can be overcome to a considerable extent if open access is adopted widely both within and outside the country.

Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities[27]
Due to the changes that have come about in the production and distribution of scientific and cutlural knowledge in the age of the internet, there needed to be an agreement to move towards a global and interactive representation of human knowledge with worldwide access guarunteed. The Berlin Declaration of 2003 was an attempt at just that and it was in accordance with the spirit of the Declaration of the Budapest Open Access Initiative, the ECHO Charter and the Bethesda Statement on Open Access Publishing. The declaration lays down the measures that need to be adopted by research institutions, funding agencies, libraries, archives and museums among others in order to utilize the internet for open access to knowledge. There are more than 450 signatories including various government, funding agencies, academic and other knowledge based institutions. According to the Declaration, open access contributions have to include:

"Original scientific research results, raw data and metadata, source materials, digital representations of pictorial and graphical materials and scholarly multimedia material.

Open access contributions must satisfy two conditions:The author(s) and right holder(s) of such contributions grant(s) to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship (community standards, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work, as they do now), as well as the right to make small numbers of printed copies for their personal use.
A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in an appropriate standard electronic format is deposited (and thus published) in at least one online repository using suitable technical standards (such as the Open Archive definitions) that is supported and maintained by an academic institution, scholarly society, government agency, or other well-established organization that seeks to enable open access, unrestricted distribution, inter operability, and long-term archiving."

Open Access – Green and Gold
With the Internet and the Web becoming ubiquitous, we need not suffer these problems. If science is about sharing, then the Net has the potential to liberate the world of science and scholarship and make it a level playing field.

Till a few decades ago scholarly communication was a quite affair. Scientists and professors did research in their laboratories and sent the papers they wrote to editors of refereed journals. These journals were often published by professional societies, academies and in some countries government departments devoted to science. Many societies gave the responsibility to bring out the journals to commercial publishing houses. These publishers found in journal publishing a great business opportunity and started raising subscription prices. Initially no one seemed to notice or bother. But from around 1980, the rise in the cost of journals outstripped the general inflation by a factor of 3 or 4. Members of the Association of Research Libraries felt the pinch; many academic libraries had to cut down on their purchase of books and monographs so as to be able to subscribe to as many journals as possible. Then they had to cut down on the number of journals. Their levels of service to their academic clients fell badly. The ‘serials crisis’ forced them to protest. By then web technologies and online sharing of information had sufficiently advanced. Together these two developments led to the open access movement.

There are two ways research papers published in journals can be made open access: Open access journals and open access repositories.

Open Access Journals - The journal can allow free downloading of papers by anyone, anywhere without paying for it. Such journals are called open access journals. Making papers open by this method is referred to as the Gold route to open access. Traditionally, journals used to charge a subscription fee from libraries (or individuals who may choose to take personal subscriptions) and not charge authors submitting papers for publication. Occasionally, some journals may request authors to pay a small fee to cover colour printing of illustrations. Many open access journals do charge a fee from the authors, which is often paid by the author’s institution. The APC collected by different journals varies from a few hundred dollars to a few thousands.

But not all OA journals levy an article publishing charge, e.g., journals published by the Indian Academy of Sciences, Council of Scientific and Industrial Research (CSIR-NISCAIR), Indian Council of Medical Research, and the Indian Council of Agricultural Research do not charge authors or their institutions.As of today, there are more than 9,800 OA journals published from 124 countries and these are listed in the Directory of Open Access Journals, [www.doaj.org], an authoritative database maintained at Lund University. On average four new journal titles are added to DOAJ every day.

Open Access Repositories - Authors of research papers may make them available to the rest of the world by placing them in archives or repositories. This is the ‘Green route’ to open access. There are two kinds of repositories: Central and distributed or institutional. arXiv is a good example of a central repository. Any researcher working in a relevant field can place his paper in arXiv and it can be seen almost instantaneously by other researchers worldwide. Developed in 1991 as a means of circulating scientific papers prior to publication, arXiv initially focused on e-Prints in High Energy Physics (HEP). In time, focus broadened to related disciplines. All content in arXiv is freely available to all users. Currently, it provides access to more than 900,000 “e-prints in Physics, Mathematics, Computer Science, Quantitative Biology, Quantitative Finance and Statistics.” There are other central repositories such as SSRN (Social Science Research Network;[28] abstracts on over 521,000 scholarly working papers and forthcoming papers and an Electronic Paper Collection of over 426,600 downloadable full text documents ), Research Papers in Economics[29] (and ideas.RePEc.org; 1.4 million items of which 1.3 million are downloadable full texts), and CiteSeerX (for computerand information science).[30]

Then there are institutional repositories. Registry of Open Access repositories[31] lists more than 2,900 repositories from around the world. The Directory of Open Access Repositories[32] lists more than 2,550 repositories, linking to more than 50 million items, growing at the rate of 21 thousand items per day, which can be searched through the Bielefeld Academic Search Engine search options. A database called SHERPA-RoMEO lists open access and self-archiving policies of journals.

These repositories are different from the usual websites that individual scientists may maintain. They have to use one of many standard software such as EPrints, DSpace, Fedora, or Greenstone. And they are all interoperable and ‘OAI-compliant’ which means that anyone searching for information need not know about a particular paper and the repository in which it is deposited; a mere keyword search will find the paper if it is relevant.

The Prophets of Open Access
The Net and the Web have not merely replaced print by speeding up things but have inherently changed the way we can do science (e.g. eScience and Grid computing), we can collaborate, we can datamine, and deal with datasets of unimaginable size. But the potential is not fully realized, largely because most of us are conditioned by our past experience and are inherently resistant to change. Our thinking and actions are conditioned by the print-on-paper era. Added to that is the apathy of science administrators.

Three individuals have made seminal contributions to realizing the potential of the Net in scholarly communication and may be considered pioneers in ushering in an era of open access. Tony Hey calls them ‘prophets of open access.’

Paul Ginsparg, creator of arXiv, an open access repository for preprints of much of the physics and astronomy literature.
Lipmann, Director of the NCBI, known for his leadership in making biomedical data and health information publicly and easily available to all, including scientists, medical professionals, patients, and students.By organizing and integrating genomic data for developing diagnostic and clinical applications, NCBI serves as a bridge from research to the medical community. Each day, more than 3 million users access NCBI's 40 interlinked genomic and bibliographic databases and download more than 30 terabytes of data. NCBI is home to PubMed Central and PubChem, two essential databases for biomedical researchers. PMC is a full text (ePrints) database of published research papers and PubChem is a database of about 31 million biologically important chemical compounds and their bioassays.
Stevan Harnad, author of the subversive proposal, founder of Cogprints and tireless evangelist for Green Open Access [13]. Harnad has been writing frequently on all aspects of scholarly communication and open access in his blog ‘Open Access Archivangelism,’ addressing conferences and answering questions sent to him. There are also some institutions which have contributed substantially and these include the Open Society Institute (OSI), now rechristened Open Society Foundations, which facilitated the formulation of Budapest Open Access Initiative and the Budapest Declaration, and Association of Research Libraries.Surprisingly, Microsoft, not a great admirer of open source software, is promoting eScience through its External Research Division, especially formed for this purpose under the leadership of Prof. Tony Hey, former dean of Southampton University.

Open Access in India
The situation with accessing overseas journals has improved considerably thanks to many consortia which facilitate access to large groups of scientists in India (especially those in CSIR laboratories, Indian Institutes of Technology and Indian Institute of Science). Many universities have benefited through INFLIBNET. ICMR labs and selected medical institutions have formed ERMED, their own consortium. Rajiv Gandhi Health Sciences University, Bangalaore, provides access to literature through HELINET Consortia to a number of medical colleges in the South.

But the increased availability has not been taken full advantage by our researchers. A study of IISc in 2008 showed that the faculty and students have not used not even half the journals subscribed in their work – either for publishing their research or for quoting papers published in them. We seem to be paying for journals we do not use. Many of these journals are published by commercial publishers and they make huge profits. Publishers force consortia to buy journals as packages (bundling).

On the open course ware front the NPTEL programme under which top notch IIT and IISc professors produce both web-based and video lessons in many subjects, which are available on YouTube as well, has a huge worldwide following.

Many physicists in the better-known institutions use arXiv, which has a mirror site in India, both for placing their preprints and postprints and for reading preprints of others. But many others are not aware of it. What we need is advocacy and more advocacy.

Open access is gaining traction in India. For example, professors at National Institute of Technology, Rourkela, the first Indian institution to mandate open access for all faculty (and student) research publications, have received invitations to attend international conferences and for collaboration after their papers were made available through the institutional repository. Indian journals which embraced open access model started recording higher impact factors, e.g. Indian Journal of Medical Research and Journal of Postgraduate Medicine. MedKnow, publisher of JPGM, and Bioline International, have plenty of data to show the advantages of going open access.

And yet many researchers are reluctant to embrace OA. They fear that the journal publishers may sue them if they deposit their published papers in IRs. They have concerns about copyright violation.

Organizations such as the Open Society Foundations, ARL, SPARC and JISC (UK) and the seven research councils of UK are championing open access. Unfortunately some professional societies, notably ACS, are trying to stall the march of open access.

The best way to promote open access in India is to encourage self-archiving.

As Alma Swan says, we can do that by highlighting the increased visibility and impact, requiringauthors to self-archive and requiring them to self-archive in an institutional repository [14].

Why an institutionalrepository? Because it fulfils an institution’s mission to engender, encourage and disseminate scholarly work; an institution can mandate self-archiving across all subject areas. It enables an institution to compile a complete record of its intellectual effort; it forms a permanent record of all digital output from an institution. It enables standardised online CVs for all researchers. It can be used as a marketing’ tool for institutions [14].

An institutional repository provides researchers with secure storage (for completed work and for work-in-progress). It provides a location for supporting data yet to be published. It facilitates one-input-many outputs (CVs, publications) [14].

First, we must help institutions build an archive and teach researchers including students how to deposit (do it for them in the beginning if necessary) [14].

Eventually, in fact pretty soon, OA will be accepted by the vast majority of scientists and institutions. For only with OA scientific literature and data can be fully used. OA, making scientific literature and data free, is the only way to liberate the immense energy of distributed production. The moral, economic and philosophical imperatives for open access are indeed strong.

Even pharmaceutical companies like Glaxo SmithKline, Novartis and Novo Nordisk have started sharing their hard earned data in the area of drug development.

The openness movement in science and scholarship does not end with OA journals and OA repositories – both central and distributed. It includes the open data initiatives, escience and open science.

To learn more about open access please visit the Open Access Tracking Project led by Peter Suber, EOS [www.openscholarship.org/] and OASIS <openoasis.org> and join the GOAL discussion group moderated by Richard Poynder.

To know more about open science, read the articles by Paul David and Tony Hey.

What is Already There?
Thanks to the initiatives taken by Prof. M S Valiathan, former President of the Indian National Science Academy, the journals published by INSA were made OA a few years ago.

The Academy also signed the Berlin declaration. The Indian Academy of Sciences converted all its eleven journals into OA. The Indian Medlars Centre at the National Informatics Centre brings out the OA version of about 40 biomedical journals published mostly by professional societies.

All journals published by CSIR- NISCAIR (17), ICAR (2), ICMR and AIIMS are OA journals. No one needs to pay either to publish or read papers in these journals.

A Bombay-based private company called MedKnow brings out more than 300 journals, most of them OA, on behalf of their publishers, mostly professional societies. This company was acquired by Wolter Kluwers and they have decided to keep the journals OA.

Current Science and Pramana, the physics journal of the Indian Academy of Sciences, were the first to go open access among Indian journals. In all, the number of Indian OA journals is about 650.

The Indian Institute of Science, Bangalore, was the first to set up an institutional repository in India. They use the GNU EPrints software. Today the repository has about 33,000 papers, not all of them full text. IISc also leads the Million Books Digital Library project's India efforts under the leadership of Pro f. N Balakrishnan.

Today there are about 60 repositories in India (as seen from ROAR and OpenDOAR) including those at National Institute of Oceanography, and the National Aerospace Laboratories, Central Marine Fisheries Research Institute, Central Food Technology Research Institute, CECRI and the Raman Research Institute. The National Institute of Technology, Rourkela, was the first Indian institution to have mandated OA for all faculty publications.

Both ICRISAT and NIO have also mandated OA.

A small team at the University of Mysore is digitizing doctoral dissertations from select Indian universities under a programme called Vidyanidhi.

Problems and the Future
Despite concerted advocacy and many individual letters addressed to policy makers, the heads of government's departments of science and research councils do not seem to have applied their minds to opening up access to research papers. The examples of the research councils in the UK, the Wellcome Trust, the Howard Hughes Medical Institute and NIH have had virtually no impact. Many senior scientists and directors of research laboratories and vice chancellors of universities do not have a clear appreciation of open access and its advantages and implications.

Among those who understand the issues, many would rather like to publish in high impact journals, as far as possible, and would not take the trouble to set up institutional archives.

Most Indian researchers have not bothered to look up the several addenda (to the copyright agreement forms) that are now available. Many scientists I spoke to are worried that a publisher may not publish their papers if they attach an addendum! Publishing firms work in subtle ways to persuade senior librarians to keep away from OA initiatives. There have been no equivalents of FreeCulture.org among Indian student bodies and no equivalent of Taxpayers‘ Alliance to influence policy at the political level.

Both the National Knowledge Commission and the Indian National Science Academy have recommended OA. IASc has set up a repository for publications by all its Fellows and it has more than 90,000 papers (many of them only metadata + abstracts). The Centre for Internet and Society has brought out a status report on OA in India. The Director General of CSIR has instructed all CSIR labs to set up and populate institutional repositories as soon as possible. Director general of ICAR has come up with an OA policy. Dr Francis Jayakanth of IISc is the recipient of the EPT Award for Advancing Open Access in the Developing World in its inaugural year. That should encourage many librarians to take to promoting OA.

The government should mandate by legislation self-archiving of all research output immediately upon acceptance for publication by peer-reviewed journals. The self-archiving should preferably be in the researcher's own institution's Institutional Repository.

The mandate should be by both institutions and funders.

Science journal publishers in the government and academic sectors should be mandated to make their journals OA (This can be achieved through adopting Open Journal Systems software developed at the University of British Columbia and Simon Fraser University and already in use by more than 10,000 journals. Expertise is available in India, or some journals can join Bioline International).

We should organize a massive training programme (in partnership with IISc, ISI-DRTC, NIC, etc.) on setting up OA repositories.

Authors should have the freedom to publish in journals of their choice; but they should be required to make their papers available through institutional repositories. In addition, they should use addenda suggested by SPARC, Science Commons, etc. while signing copyright agreements with journal publishers and not surrender copyright to (commercial) publishers. Some OA journals charge for publication. The Indian government or funders or institutions should definitely not offer to pay for journal publication charges.

Again, OA for all India's research output is covered by simply mandating OA self-archiving of all articles.

Brazil and the rest of Latin America have made great strides in open access. The excellent developments in Brazil, especially the government support (particularly in the state of Sao Paulo) and of the work of SciELO (for OA journals) and IBICT in supporting OA repository network are worthy of emulation in India and other developing countries.

Argentina has enacted a law that mandates OA to all research publications. India can follow their example.

Office of Science and Technology Policy Director John Holdren has issued a memorandum to make all research funded by major government funding agencies in the US insist on open access to government-funded research in USA. Indian funding agencies can do the same.

While our focus should be on digitizing and throwing open the current research papers and data, we may also make available our earlier work.

In particular, we may create an OA portal for the papers of great Indian scientists of the past: Ramanujan, J C Bose, S N Bose, M N Saha, K S Krishnan, Y Subba Rao, Sambhu Nath De, Mahalanobis, Maheshwari. C V Raman’s papers are already available on open access.

We may proactively advance OA in international forums such as IAP, IAC, ICSU and UNESCO. Two things can hasten the adoption of OA in India:

If the political left is convinced that research paid for by the government is not readily available to the people freely and what is worse the copyright to the research papers are gifted away to commercial publishers from the advanced countries, then they may act. The same way, the political right will come forward to support open access if we impress upon them that copyright to much of the knowledge generated in our motherland is gifted away to publishing houses in the West.
If the students are attracted to the idea that fighting for open access is the in thing to do, then they will form Free Culture like pressure groups and fight for the adoption of open access.

References

Aristotle, “Politics”, Book2, Part 3,Oxford: Clarendon Press, 1946, 1261b.
G. Hardin,“The Tragedy of the Commons”, Science, Dec 13, 1968.
Vincent Ostrom and Elinor Ostrom, “Public Goods and Public Choices,” in E. S. Savas (ed.), Alternatives for Delivering Public Services: Toward Improved Performance, Boulder, Co: Westview Press, 1977, p. 7–49.
Elinor Ostrom, “Governing the Commons: The Evolution of Institutions for Collective Action”, Cambridge University Press, 1990.
E. Ostrom, “The Rudiments of a Theory of the Origins, Survival, and Performance of Common Property Institutions”, in D W Bromley (ed.),Making the Commons work: Theory, practice and policy, San Francisco, ICS Press, 1992.
Charlotte Hess and Elinor Ostrom (eds.), “Understanding Knowledge as a Commons: From Theory to Practice”, MIT Press, 2006, http://mitpress.mit.edu/authors/charlotte-hessandhttp://mitpress.mit.edu/authors/elinor-ostrom.
S.R. Ranganathan, “Five Laws of Library Science”,Sarada Ranganathan Endowment for Library Science, Bangalore,1966.
Peter F. Drucker, “Beyond the Information Revolution”, The Atlantic, October 1, 1999.
M.L.Nagar “Shri Sayajirao Gaikwad, Maharaja of Baroda: The Prime Promoter of Public Libraries”, 1917.
Richard Van Noorden, “Open Access: The True Cost of Science Publishing”, Nature, 495 (issue 7442), 27 March 2013
Michael Eisen, “The Past, Present and Future of Scholarly Publishing”, It Is Not Junk, March 28, 2013, http://www.michaeleisen.org/blog/?p=1346
Kim-Mai Cutler, “Elsevier’s Research Takedown Notices Fan Out To Startups, Harvard, Individual Academics”,TechCrunch,December 19, 2013, http://techcrunch.com/author/kim-mai-cutler/, http://techcrunch.com/2013/12/19/elsevier/
S. Harnad, “A Subversive Proposal” in Ann Okerson and James O'Donnell (Eds.) Scholarly Journals at the Crossroads; A Subversive Proposal for Electronic Publishing,Association of Research Libraries, June 1995.
http://www.ecs.soton.ac.uk/~harnad/subvert.html
A. Swan, “Policy Guidelines for the Development and Promotion of Open Access”, UNESCO, Paris, 1995.
Glover Wright, Pranesh Prakash, Sunil Abraham and Nishant Shah, “Open Government Data Study”, Centre for Internet and Society and Transparency and Accountability Initiative, 2011, http://cis-india.org/openness/blog/publications/open-government.pdf

Open (Government) Data

Definition
“Open data is data that can be freely used, reused and redistributed by anyone – subject only, at most, to the requirement to attribute and share alike.”[33] This has become an increasingly important issue in the age of the internet when governments can gather unprecedented amount of data about citizens and store various kinds of data which can actually be made available to people in an easier fashion.

Types of Government Data

[34]

This does not necessarily mean that all the government’s data should open according to the definition laid out above. There have been many arguments articulated against this.

Since the government is responsible for the efficient use of tax payers money, data that is commissioned and useful only for a small subsection (eg: corporations) of society should be paid for by that subsection.
There may be privacy concerns that limit the use of data to particular users or sub-sets of data.
Often times, the data may not be usable without further processing and analysis that requires more investment from other sources. Groups that would usually commission such projects lose their incentive to do so because everyone has access to the information. Eg: Biological, medical and environmental data.

However, this kind of utilitarian calculus is not possible while deciding which data should be open and which ones should not. Some theorists make the argument that government data should be open.[35]

An open democratic society requires that its citizens should know what the government is doing and that there is a high level of transparency. Free access is essential for this and in order for that information to be intelligible; the data should be reusable as well so it can be analyzed further.
In the information age, commercial and even social activity requires data and having government data open can be a way to fuel economic and social activity within the society.
If public tax payer money was used to fund the government data, then the public should have access to it.

The open data handbook lays out the steps required in order to start making government data more open.[36] The summarized gist of it is to:

1.    Chose the data sets that need to be made open.
2.    Apply an open license:
a.    Find out what kind of intellectual property rights exist on that data.
b.    Select an appropriate open license that would incorporate all of the criteria (usability, reusability etc) discussed above.
3.    Make the data available either in bulk or in Application Programming Interface (API) formats.
4.    Make this open data discoverable by posting on the web or adding it to a list.
Application Programming Interface (API) vs. Bulk Data[37]

Bulk is the only way to ensure that the data is accessible to everyone.
Bulk access is a lot cheaper than providing API access. (API specifies how some software components should interact with each other) Therefore, it is acceptable for the provider to charge for API access as long as the data is also provided in bulk.
An API is not a guarantee of open access but it is good if it’s provided.

Open Government Data in India
At an annual summit in London recently where an open government data report was produced, India ranked 34th among 77 countries.

[38]

In India, open government data is currently about closing the loopholes and gaps in the Right to Information Act (RTI) and its promise of transparency as envisioned by the Knowledge Commission. In its 10th 5 year plan (2002-2007) the Indian Government announced its plan to become SMART (Simple, Moral, Accountable, Responsible and Transparent).[39]

In 2012, India launched an Open Government Platform, which is a software platform that attempted to enhance the public’s access to government data. This was jointly developed by India and the US as a part of their Open Government Initiative.[40] Data.gov.in is a platform under this which provides a single-point access to datasets and apps published by the government’s ministries, departments and organizations and it was in compliance with the National Data Sharing and Accessibility Policy (NDSAP).[41]

The Right to Information Act, 2005[42]
Around 82 countries around the world currently have laws in place that force the government to disclose information to its citizenry but this has been a rather recent phenomenon. In India, the RTI was passed in 2005 after a prolonged struggle from civil society. This act effectively replaces and overrides many state level RTI acts, the Freedom of Information Act (2002) and the Official Secrets Act, 1923. We have come to learn based on the responses of RTI requests that the government is not obliged to provide access to some pieces of information such as the minutes to a cabinet meeting.

The RTI Act defines information as:

‘Any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.’

This capacious vision of the Act indicated a shift in the government’s philosophy from secrecy to transparency. According to the Global Integrity report, in the category ‘public access to government information’ India went from 78 points to 90 points from 2006-2011. During the same time frame, the United States has only gone from 78 points to 79 points. However, according to a study conducted by PricewaterhouseCoopers, 75% of the respondents said they were dissatisfied with the information provided by the public authorities.

Government Copyright
The government owns the copyright to any work that is produced by the government or government employees in India as well any material produced by an Indian legislative or judicial body. This provision is laid down in the Copyright Act, 1957[43](section 17(d) read with 2(k)) which gives a lifespan of 60 years for the copyright (section 28). The exceptions to the copyright are small and laid down in section 52(1)(q):

‘52(1) The following acts shall not constitute an infringement of copyright, namely: (q) the reproduction or publication of — (i) any matter which has been published in any Official Gazette except an Act of a Legislature; (ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter; (iii) the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government; (iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be.’

Although this exception is small, in practice the government has rarely the government has rarely prosecuted to enforce copyright when data is requested by an individual or group even when the reason for request is commercial in nature.

IP Protection for the Government

Most of data compiled by or commissioned for by the government is raw data in the form of figures and statistics. Generally, non-original literary works are not protected by copyright law and this issue was decided upon in a landmark Supreme Court case in 2007. The standard of originality was changed from the labor expended on compiling the information (also known as the ‘sweat of the brow’ doctrine)[44] to the creativity, skill and judgment required in the process. This meant that most of the government’s data would not qualify as creative enough to hold a copyright.

Case Study: The Department of Agriculture, Maharashtra
The Department of Agriculture (DoA) in Pune started using ICTs in 1986 itself when it used a computerized system to process census data. The DoA currently uses ICT for internal administrative word and also for processing and disseminating data to farmers across Maharashtra both online and through SMSs. The website is bilingual in both Marathi (the local language of the State) and English. Some of the information available includes[45] The participation of Maharashtra farmers in the National Agriculture Insurance Scheme Annual growth rates of agriculture and animal husbandry Rainfall recording and analysis Soil and crop, horticultural, soil/water conservation, agricultural inputs, statistical and district-wise fertility maps. Farmers can sign up for SMS’s that give information specific to the crop requested. Even though information in 2010 was available on 43 different crops which was sent to 40,000 farmers, people don’t have the technology to access all this information. Usually this is because of a lack of reliable electricity, internet and mobile phone access. The question is whether the open data responsibility ends as long as the data is made available by the government. Sometimes, the government has to make a discretionary decision to not make certain data available to the common man in the interest of public order. An example is if there is a crop that is infested with a disease or a pest, then it could cause a mass panic not only among farmers but also among the general consumers.

Case Study: Indian Water Portal
The Indian Water Portal[46] in Bangalore claims that it is an open, inclusive, webbased platform for sharing water management knowledge amongst practitioners and the general public. It aims to draw on the rich experience of watersector experts, package their knowledge and add value to it through technology and then disseminate it to a larger audience through the Internet."[47] Based the recommendations of the National Knowledge Commission (NKC), the IWP has established the best practices. It has been running on the open source software Drupal Software since 2007, and it is available in Hindi, Kannada and English. This portal also has an educational aspect to it as it provides reading material to students who wish to learn about water issues. Although this website was set up with the support of the national government, it hasn’t gotten much support from ministries and departments which is problematic as they produce the most amount of information on water and sanitation. This is, however, a great example of a partnership between private and public that has led to accessible open government data. The only problem here is that it is only accessible to people with access to the web but that may be a problem better solved by increasing access to the web.

[2]. For more see GNU Operating System, “The Free Software Definition”, available at http://www.gnu.org/philosophy/free-sw.html, last accessed on January 26, 2014.

[4]. For more see Millennium Development Goals, United Nations, available at http://www.un.org/millenniumgoals/bkgd.shtml, last accessed on January 26, 2014.

[5]. For more see “Free and Open Source Software”, Communication and Information, UNESCO, available at http://www.unesco.org/new/en/communication-and-information/access-to-knowledge/free-and-open-source-software-foss/, last accessed on January 26, 2014.

[8]. See citation 6 above.

[9]. For more see GNU Operating System, Why “Free Software” is better than “Open Source” https://www.gnu.org/philosophy/free-software-for-freedom.html, last accessed on January 26, 2014.

[10]. For more see Free Software Movement of India, available at http://www.fsmi.in/, last accessed on January 26, 2014.

[11]. See the Department of Electronics and Information Technology, Ministry of Communications & Information Technology, Government of India, Free and Open Source Software available at http://deity.gov.in/content/free-and-open-source-software, last accessed on January 26, 2014.

[12]. See citation above.

[13]. For more see Curoverse Gets $1.5M to Develop Open Source Genomics Tool, available at http://www.xconomy.com/boston/2013/12/18/curoverse-gets-1-5m-develop-open-source-genomics-tool/2/, last accessed on January 26, 2014.

[14]. For more see The Open-Sorcerers, available at http://slate.me/18NNx4x, last accessed on January 24, 2014.

[15]. For more see “Open Standards Requirements for Software – Rationale”, Open Source Initiative, available at http://opensource.org/osr-rationale, last accessed on January 26, 2014.

[16]. See citation above.

[17]. Ibid.

[18]. For more see “An emerging understanding of Open Standards”, available at http://blogs.fsfe.org/greve/?p=160, last accessed on January 26, 2014.

[19]. http://perens.com/OpenStandards/Definition.html

[20]. For more see Open Standards Requirements for Software – Rationale, available at http://opensource.org/osr, last accessed on January 26, 2014.

[21]. See “Definition of Open Standards”, available at http://www.w3.org/2005/09/dd-osd.html, last accessed on January 27, 2014.

[22]. Hari Prasad Nadig talking about Wikipedia Community building at Train the Trainer Program organised by CIS, November 29, 2013, available at http://www.youtube.com/watch?v=scEZewFJXUU, last accessed on February 1, 2014.

[23]. India Access to Knowledge meta page available at http://meta.wikimedia.org/wiki/India_Access_To_Knowledge , last accessed on February 1, 2014.

[24]. What is Hindi Wikipedia?, CIS-A2K, available at http://www.youtube.com/watch?v=96Lzxglp5W4&list=PLe81zhzU9tTTuGZg41mXLXve6AMboaxzD, last accessed on February 1, 2014.

[25]. Interview with Netha Hussain at WikiWomenCamp in Buenos Aires 2012, available at http://commons.wikimedia.org/wiki/File:WWC-Netha-Hussain.ogv , last accessed on February 2, 2014.

[26]. See interview of Poongothai Balasubramanian at http://wikimediafoundation.org/wiki/Thank_You/Poongothai_Balasubramanian, last accessed on February 1, 2014.

[27]. For more see Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities, available at http://openaccess.mpg.de/286432/Berlin-Declaration, last accessed on February 1, 2014.

[28]. See Social Science Research Network, available at http://www.ssrn.com/, last accessed on January 27, 2014.

[29]. RePEc, available at http://www.repec.org/, last accessed on January 26, 2014.

[30]. Cite Seer X, available at http://citeseerx.ist.psu.edu/, last accessed on January 26, 2014.

[31]. Registry of Open Access Repositories, available at http://roar.eprints.org/, last accessed on January 26, 2014.

[32]. The Directory of Open Access Repositories, available at http://www.opendoar.org/, last accessed on January 26, 2014.

[33]. For more see Why Open Data, available at http://okfn.org/opendata/, last accessed on January 26, 2014.

[34]. Image obtained from http://okfn.org/opendata/

[35]. For more see Glover Wright, Pranesh Prakash, Sunil Abraham, Nishant Shah and Nisha Thompson, “Report on Open Government Data in India, Version 2 Draft”, Centre for Internet and Society, available at http://cis-india.org/openness/publications/ogd-draft-v2/, last accessed on January 25, 2014.

[36]. For more see Open Data Handbook, available at http://opendatahandbook.org/en/ , last accessed on January 29, 2014.

[37]. For more see Janet Wagner, “Government Data: Web APIs vs. Bulk Data Files”, programmable web, available at http://blog.programmableweb.com/2012/03/28/government-data-web-apis-vs-bulk-data-files/, last accessed on January 31, 2014.

[39]. For more see Glover Wright, Pranesh Prakash, Sunil Abraham and Nishant Shah, “Open Government Data Study: India”, Centre for Internet and Society, available at http://cis-india.org/openness/publications/open-government.pdf, last accessed on January 26, 2014.

[41]. Read the guidelines at http://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines-2.1.pdf

[42]. See the Right to Information Act, 2005, available at http://rti.gov.in/rti-act.pdf, last accessed on January 25, 2014.

[43]. See the Copyright Act, 1957, available at http://www.indiaip.com/india/copyrights/acts/act1957/act1957.htm, last accessed on January 25, 2014.

[44]. See note above.

[45]. See note above.

[46]. For more see Glover Wright, Pranesh Prakash, Sunil Abraham and Nishant Shah, “Open Government Data Study: India”, Centre for Internet and Society, available at http://cis-india.org/openness/publications/open-government.pdf, last accessed on January 26, 2014.

[47]. For more see India Water Portal, available at http://www.indiawaterportal.org/, last accessed on January 26, 2014.

For more details visit https://cis-india.org/telecom/knowledge-repository-on-internet-access/openness

Centre for Internet and Society

Models for Surveillance and Interception of Communications Worldwide

June 2014 Bulletin

Highlights

NVDA and eSpeak

Wikipedia

Freedom of Expression

Privacy

An Evidence based Intermediary Liability Policy Framework: Workshop at IGF

Privacy and Surveillance Roundtable

Background and Context to the Roundtables

Information about the Roundtables

The Report of the Group of Experts on Privacy

The Draft CIS Citizens Privacy (Protection) Bill 2013

The International Principles on the Application of Human Rights to Communication Surveillance

Tentative Agenda

Resources

PMA Policy and COAI Recommendations

Introduction

International and Domestic Response to the Policy

WSIS+10 High Level Event: A Bird's Eye Report

The High Level Track:

The High Level Dialogues:

The Forum Track:

Conclusion:

Privacy and Surveillance Roundtable

Background and Context to the Roundtables

Information about the Roundtables

The Report of the Group of Experts on Privacy

The Draft CIS Citizens Privacy (Protection) Bill 2013

The International Principles on the Application of Human Rights to Communication Surveillance

Tentative schedule for the Roundtables:

Resources

UN Human Rights Council urged to protect human rights online

Civil Society Statement:

Vodafone Report Explains Government Access to Customer Data

Direct Government Access

Data Organization

Data Construction

Vodaphone’s Statistics

India and the Reports

Conclusion

May 2014 Bulletin

Highlights

NVDA and eSpeak

National Resource Kit

Other

Wikipedia

FOEX Live

Privacy

Knowledge Repository on Internet Access

FOEX Live: June 1-7, 2014

CIS Cybersecurity Series (Part 14) – Menaka Guruswamy

WSIS +10 High Level Event: Open Consultation Process Multistakeholder Preparatory Platform: Phase Six: Fifth Physical Meeting

С5. Building confidence and security in the use of ICTs

C9. Media

Search and Seizure and the Right to Privacy in the Digital Age: A Comparison of US and India

American Law - The Fourth Amendment Protection against Unreasonable Search and Seizure

Search and Seizure in India

Openness

Free and Open Software

FOSS in India

Open Standards

Case Study: Digital Colonialism

Open Content

Wikipedia

Open Access

Open (Government) Data