Centre for Internet and Society

Net Neutrality: India is a Keybattle Ground

praskrishna — 2015-09-20T07:08:42Z

Hardnews talks to Sunil Abraham, the executive director of the Centre for Internet and Society (CIS), about the future of the Internet in India.

The article by Abeer Kapoor was published in Hardnews on August 10, 2015.

There are competing definitions of net neutrality. What do you think an Indian definition of net neutrality should be?
It should be driven by an empirical understanding of the harms and benefits for Indian consumers. Any regulation should be based on evidence of harm. Forbearance should be the first option for any regulator. The second option is mandating transparency. The third option, as (Managing Director of the World Dialogue on Regulation for Network Economies Programme) William Melody says, should be raising competition before we consider other more intrusive regulatory measures such as price regulation, mandatory registration and licensing, etc. Telling network administrators how to run their networks should be the very last option we consider. Ideally, the Competition Commission of India should have started an investigation into the competition harms emerging from network neutrality violations. There are other harms emerging from network neutrality violations, such as free speech harms, diversity harms, innovation harms and privacy harms. These residual elements should have been the focus of the TRAI (Telecom Regulatory Authority of India) consultation paper process, the DoT (Department of Telecommunications) panel process and the consultations of the parliamentary standing committee.

There are certain rights that are essential, like privacy. How do you think the right to privacy will play into the definition of Indian net neutrality?
Deep packet inspection – which is a method that is used to manage Internet traffic and walled garden access via mobile applications – causes significant privacy harms and gives rise to a range of security vulnerabilities. These cannot be directly addressed in network neutrality policy. On privacy and security, it is not clear that the Indian situation is different from the global trend, so it is unlikely that we will have an India-specific privacy language in our network neutrality policy.

Privacy harms caused by network neutrality violations have to be addressed by enacting the privacy bill into law. The Department of Personnel and Training (DoPT) has been working on this Bill for the last five or six years. The latest draft has implemented the recommendations of the Justice AP Shah Committee. The last leak of the privacy Bill revealed that the DoPT has included the nine principles identified by the Shah Committee Report on Privacy. We hope that the government will introduce this Bill at the earliest. Section 43A of the IT Act may also need to be amended to address all the nine privacy principles.

The report drafted by DoT on net neutrality is ambiguous and almost reluctant to take a stand. What are the key points of this report?
The DoT panel report does take a stand. It clearly identifies network neutrality as a policy goal. Unfortunately, the panel did not provide its own definition of network neutrality, but instead quoted a definition submitted by civil society activists who testified before it without explicitly adopting it. The panel report examines zero rating and legitimate traffic management in quite a bit of detail and does prescribe some regulatory decision trees to the policymakers. When it comes to specialised services and walled gardens there could have been more detailed and specific recommendations. The biggest disappointment in the report is the call for licensing of those OTT (Over the Top) service providers that provide equivalent services to those provided by telcos. While the need to address regulatory arbitrage from the perspective of privacy and surveillance law may be virtuous, it may not be technically feasible to do so, especially if there is end-to-end encryption. Also, regulatory arbitrage could be addressed by reducing regulations for telcos rather than increasing them for OTT providers.

Do you think licensing and regulation of OTT services such as Google and WhatsApp are a necessity?
It is a myth that they exist in a regulatory vacuum. Many regulations do apply to them and a few of them do comply with Indian authorities on issues like speech regulation, legal interception and also data access. With competition law and taxation there is very little compliance. The trouble is not that there are regulatory vacuums, but rather that these services operate from foreign jurisdictions. Without offices, servers and human resources within the Indian jurisdiction it is very difficult for the courts to implement their orders, and for law enforcement to ensure compliance with Indian laws. This jurisdictional challenge affects most developing countries and not just India, and can only be solved by harmonising procedural and substantive law across jurisdictions, through the spread of soft norms, development of self-regulatory mechanisms using the multi-stakeholder models and through the creation of international law through various multilateral and pluri-lateral bodies.

The report reduces the neutrality debate to ‘access.’ Do you think this approach is reductive?
Access is very important in the Indian context so I don’t see how that is reductive. Many observers believe that the next round in the war for network neutrality will happen in the global South. India is a key battleground – what happens here will have global impact and implications. Network neutrality policies need to consider free speech, privacy, competition, diversity and innovation goals of the markets they seek to regulate. If we are not being doctrinaire about network neutrality we could adopt what (Professor of Internet & Media Law at the University of Sussex) Chris Marsden calls forward-looking “positive net neutrality” wherein “higher QoS (Quality of Service) for higher prices should be offered on fair, reasonable and non-discriminatory [FRAND] terms to all comers”. FRAND, according to Prof. Marsden, is well understood by the telcos and ISPs (Internet Service Providers) as it is the basis of common carriage. This understanding of network neutrality allows for technical and business model innovation by ISPs and telcos without the associated harms. There are zero-rating services being launched by Mozilla, Jaana, Mavin and others that are attempting to do this. I do not believe that they violate network neutrality principles, unlike Airtel Zero or Internet.org.

While this report attempts to arrive at a middle ground between the TSPs and the OTTs, how is this going to reflect in the government’s ‘Digital India’ programme?
We know we have a policy solution when all stakeholders are equally unhappy. But we also need an elegant solution that is easy to implement. Scholars like (Associate Professor of Computer Science at Columbia University) Vishal Mishra have a theoretical solution based on the Shapley Value, that assumes a multi-sided market model, but this may not work in real life. Professor V. Sridhar of the International Institute of Information Technology, Bengaluru (IIITB) has a very elegant idea of setting a ceiling and floor for price and speed and also for insisting on a minimum QoS of the whole of the Internet. These ideas I have not heard in the American and European debate around network neutrality. I remain hopeful that the Indian middle ground will be qualitatively different, given that the structure and constraints of the Indian telecom sector are very different from that in developed countries. Ensuring network neutrality is essential to the success of Digital India. Unfortunately, the Digital India plans that we have heard so far don’t make this explicitly clear.

The Internet was never meant to be monetised. Do you think that private players are eating into a public good that is absolutely necessary for development?
I have never heard that statement before. The Internet, after its early history, has been completely built using private capital. The public Internet has always been monetised. Collectively, the individual entrepreneurs and enterprises that build and run the components of the Internet have created a common public good – which is the globally interconnected network. But the motivation for private capital behind maintaining and building their corner or component of this network has also been profit maximisation.

What has contributed to the growing need to regulate and administer the Internet?
Technical advancements and business model innovations have resulted in both benefits and harms and therefore there could be a rationale for regulation. But more regulation per se is not a virtue and does not serve the interest of citizens and consumers. Expanding the regulatory scope of government infinitely will only result in failure, given the limited capacity and resources of the State. Therefore, whenever the State enters a new area of regulation it should ideally stop regulating in another area. In other words, there is no clear case that the regulation of the Internet is needed to keep growing exponentially – as evolving technologies may require specific regulation – if the resultant harms cannot be addressed using existing law. In most cases, traditional law is sufficient to deal with crimes and offences online.

This story is from the print issue of Hardnews: August 2015

For more details visit https://cis-india.org/internet-governance/news/hardnewsmedia-august-10-2015-abeer-kapoor-net-neutrality-india-is-a-keybattle-ground

Net nanny meets muscular law

Admin — 2018-10-02T05:48:32Z

India’s new human-trafficking bill could criminalise sex workers and curtail free speech.

The article by Laxmi Murthy was published in Himal South Asian on September 26, 2018.

When conservative morality is armed with the law and prejudice is given legal validity, the state is transformed into a wet nurse cum security guard. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, passed on 26 July in the lower house of the Indian Parliament, represents a growing trend of increased state surveillance and control, and a carceral approach to dealing with non-compliance with overbroad and vague laws laced with prudery.

Trafficking in persons, as defined by the United Nations, is “the recruitment, transportation, transfer, harbouring or receipt of persons” by coercion, deception or the abuse of power or position for the purpose of exploitation. Human trafficking is considered to be a form of modern-day slavery and is outlawed in most countries.

Following the ratification of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others in 1949, India enacted the Suppression of Immoral Traffic in Women and Girls Act 1956. However, nowhere was trafficking clearly defined in the law. The acronym of this law, SITA, seemingly deliberately modelled after Sita, the chaste wife of Rama from the epic Ramayana, reinforced the moralism already codified into law. Moving from suppression to prevention of ‘immoral’ trafficking took three decades, but the Immoral Traffic (Prevention) Act (ITPA), as the act was renamed in 1986, continued to prioritise morality over human rights, focusing its attention on raiding brothels and “rescuing and rehabilitating” sex workers, whether or not they wanted such intervention. Though sex work is not illegal per se in India – with some notable exceptions with respect to soliciting in public places – the ITPA views consensual adult sex work as a misnomer and approaches all women in sex work as victims in need of rescue. This ultimately criminalises even consenting adult sex workers by treating solicitation, brothel ownership and procurement as criminal activity.

Unfortunately, the 2018 trafficking bill has been drafted with this very mindset, and goes on to widen the scope to cover “aggravated” forms of trafficking, including trafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones for early sexual maturity among other things. It also includes in its ambit trafficking for the purpose of surrogacy, at a time when questions around commercial surrogacy and consent of surrogates have yet to be settled in Indian law.

The bill also aims to unify existing criminal law provisions on trafficking. The definition of trafficking in the Indian law is drawn primarily from Section 370 of the Indian Penal Code (IPC), which includes ‘any act’ of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude. Trafficking under this bill also includes begging and domestic work. However, critics of the bill, including a collective of sex-worker-rights groups and organisations working with bonded labour, children and adolescents under the banner of the Coalition for an Inclusive Approach on the Trafficking Bill, say that the bill, with its criminalised approach, will further stigmatise sex workers, transgender persons and beggars. The supposed ‘victims’ of trafficking would, therefore, be forcibly rescued, rehabilitated and repatriated, and denied their chosen residence as well as their means of livelihood. The elaborate anti-trafficking bureaucracy to be set up at district, state and national levels seems unwieldy and without representation of the communities it purports to protect.

Cross-purposes

The anti-trafficking bill embodies a constitutional conundrum: in attempting to fulfil the mandate under Article 23 of the Constitution – to protect persons from exploitation inherent in human trafficking – it can potentially violate fundamental freedoms, in particular, the freedom of speech and expression, a core protection guaranteed by Article 19.

According to Section 39 (2) of the bill, “Whoever solicits or publicises electronically, taking or distributing obscene photographs or videos or providing materials or soliciting or guiding tourists or using agents or any other form which may lead to the trafficking of a person shall be punished (emphasis added)”.

This provision, while intending to criminalise online soliciting, casts a wide net and prescribes penalties – rigorous imprisonment for a term of five to ten years and a fine between INR 50,000 (USD 700) and INR 100,000 (USD 1400) – for vaguely defined acts which may lead to trafficking. It is not necessary, as per this provision, to prove a direct causal link between these acts – such as distributing obscene photographs or providing materials – and the actual crime of trafficking. Such a broad brush is highly problematic and violates well-established tenets of criminal jurisprudence which require criminal intention (mens rea) along with the actual criminal act (actus reus). That is, a criminal act must be accompanied by a criminal intention. Without any burden to prove a causal link, anything deemed to potentially lead to trafficking can be proscribed – for example, any artistic work, academic publication or cinematic representation.

Sexually explicit content – text, audio and visual – has evoked deeply contentious opinions right from the time of the Kamasutra and the erotic sculptures of the Khajuraho temples. There is no one single position on pornography or obscenity among feminists, despite their shared concern about enhancing women’s rights and stopping exploitation. On the one hand, American feminist Robin Morgan’s famous pronouncement back in 1974, that pornography is the theory and rape is the practice, implying that pornography was directly responsible for violence and sexual abuse of women, influenced early feminists the world over, and continues to hold sway among sections of women’s rights advocates. However, while images undoubtedly impact on the human psyche, the causal links between pornography and rape are not established firmly enough to warrant censorship and bans. On the other hand, sex-positive feminists who celebrate varied expressions of sexual desire, especially female sexuality, advocates of feminist pornography (which is not seen as a contradiction in terms), adult entertainers and sex workers have practiced and theorised sexual desire and its many manifestations in ways that are undergirded by consent, respect, agency and autonomy, but not necessarily confined to contemporary social mores. Conversations around sexuality and desire have moved beyond criminalisation of what is considered deviant, but echoes of these conversations do not seem to have been heard in the corridors of the Parliament.

With the prevalent moral disapproval of pornography and adult entertainment, the phrase “taking or distributing obscene photographs or videos or providing materials” can easily be misinterpreted as leading to trafficking. The word ‘obscene’ is itself too subjective and culturally loaded a term to withstand rigorous legal scrutiny. It is a no-brainer that deciding what is aesthetically pleasing erotica and what is unacceptable pornography is in the eye of the beholder and is, therefore, subjective. Where there is no requirement to prove intention, or mens rea, any image or video deemed to be obscene can be censored. This could bring into its ambit online material, articles, literature, magazines as well as artists and their work, and consenting adult sexual interactions in the digital space including adult dating apps like Tinder or OkCupid.

It was only as recently as 2014 that India’s Supreme Court jettisoned the archaic Hicklin Test, which was developed in an 1868 case in England to determine whether specific material could “deprave and corrupt those whose minds are open to such influences”. This outdated standard was applied, for instance, in the landmark case of Udeshi v State of Maharashtra in 1964 to uphold the ban on the D H Lawrence classic Lady Chatterley’s Lover and to convict Ranjit Udeshi, a bookseller, under Section 292 of the IPC for distributing “obscene” material.

Half a century on, in 2014, Anand Bazaar Patrika, publishers of Sportsworld, a magazine which reprinted a nude photograph of tennis champion Boris Becker and his fiancée, won the case in the apex court which rejected the Hicklin Test. However, the court adopted a ‘community standards’ test derived from the 1957 Roth v United States case that determined what was obscene and was, therefore, unprotected by the First Amendment to the American Constitution that protects freedom of speech. The ‘community standards’ test has itself been challenged for its vagueness, since what is considered to have social importance is itself variable. In addition, the Supreme Court in the Sportsworld case allowed the nude photograph because, in the court’s view, it did not have “a tendency to arouse feeling or reveal an overt sexual desire”. The nude photograph of a white-skinned Becker with his dark-skinned fiancée was deemed to be in the public interest, as its intention was to cast a spotlight on racism and apartheid. However, the justification that the photo did not arouse sexual desire and was, therefore, acceptable, is both highly subjective and problematic in its criminalisation of sexual desire, in that it allows – without any evidence whatsoever – the dangerous possibility of nudity having a causal effect on violence.

Stormy seas and safe harbours

The Trafficking Bill 2018 in its “offences related to media” chapter, continues in its inexorable march towards criminalisation on the basis of vague definitions. According to Section 36, a person is said to be engaged in trafficking of person even if that person “advertises, publishes, prints, broadcasts or distributes, or causes the advertisement, publication, printing or broadcast or distribution by any means, including the use of information technology or any brochure, flyer or any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner.”

However, since “promoting trafficking or exploitation” has not been clearly defined, it makes room for different interpretations of liability. There is little in this provision that attempts to impose a clear, rigorous standard of evidence that could demonstrate direct cause. The Bengaluru-based non-profit Centre for Internet and Society (CIS) cautions that, under this clause, the likelihood of authors of adult material, videographers, filmmakers and internet sites being charged with promoting trafficking or exploitation is quite high, since the clause might build a legal link between hosting or producing pornography and trafficking.

Clamping down on internet freedom on the basis of obscenity is not new. In July 2015, the government banned 857 websites that it considered pornographic. This followed the Kamlesh Vaswani case in the Supreme Court where the then chief justice of India expressed his inability to order a ban as it would go against the right to personal liberty guaranteed in Article 21 of the Constitution. In their submission challenging the ban, and underlining the subjectivity in viewing and interpreting content, the Internet Service Providers Association of India (ISPAI) said, “one man’s pornography is another man’s high art”, making it impossible for them to ban any sites. The ISPs were later told that they should ban only sites showing child pornography, but they submitted that they neither created content nor owned it and that it was not possible for them to view content before hosting it. And therein lies one of the most controversial features of the trafficking bill.

The most pernicious provision of the bill, Section 41 (2), displays a complete lack of understanding of the manner in which the digital space functions. The section penalises anyone who “distributes, or sells or stores, in any form in any electronic or printed form showing incidence of sexual exploitation, sexual assault, or rape for the purpose of exploitation or for coercion of the victim or his family members, or for unlawful gain.”

As the CIS critique of the bill points out, digital infrastructure requires third party intermediaries to handle information during transmission, storage or display. As it is not always desirable or even practically possible to verify the legality of every bit of data that gets transferred or stored by the intermediary, the CIS points out, the law provides ‘safe harbours’ to protect intermediaries from liability, ensuring that entities that act as architectural requirements and intermediary platforms are able to operate smoothly and without fear. It must be noted that users who upload and initiate transfer of information online, are not always the same parties who are directly involved in transmission of content.

In India, immunity from liability or a ‘safe harbour’ for intermediaries involved with transmission or temporary storage of content is currently provided by Section 79 of the Information Technology Act 2000 (IT Act), on condition that they: (i) act as a mere ‘conduit’ and do not initiate the transmission, select the receiver of the transmission, or select or modify the information contained in the transmission and (ii) exercise due diligence, which has been defined under the law. The provision for safe harbours has also been tested in court, notably in the case of the virtual market Baazee.com (later acquired by eBay), which had hosted an advertisement for an ‘obscene’ video for two days before it was taken down. The court held that the IT Act would prevail over the IPC, and the managers could not be held liable for the content of the advertisement.

With Section 59 of the proposed trafficking bill set to override existing legislation, the provision of safe harbours under the IT Act will be in jeopardy. Notably, this move to prosecute internet intermediaries is in keeping with a worldwide trend. In April 2018, the United States President Donald Trump signed into law two controversial pieces of legislation aimed to tackle human trafficking online, which have grave implications for free speech. The US Congress bill, the Fight Online Sex Trafficking Act (FOSTA), and the Senate bill, the Stop Enabling Sex Traffickers Act (SESTA), have been welcomed by some as a victory for victims of sex trafficking. Alarmingly, however, the bills, better known by their acronyms FOSTA-SESTA, create an exception to the safe harbour rule, ie Section 230 of the 1996 Communications Decency Act (CDA). This provision, which is regarded as a landmark protection, says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” For over two decades, in the spirit of actualising the immense potential of the digital space to share information, ideas and opinions, this section has provided immunity for intermediaries, allowing users to freely generate content without making platforms and ISPs accountable for such content.

Under FOSTA-SESTA, however, websites are liable to be penalised for advertisements promoting consensual adult sex work, dating or escort services (such as Backpage.com or Craigslist) which could be deemed to promote trafficking. Sex-worker-rights activists in the US posit that such an unwarranted clampdown on these avenues through which adult sex workers could safely screen clients and avoid potentially dangerous situations, is putting them at risk.

Despite the protests against the impact of FOSTA-SESTA on the internet and free expression, parliamentarians in the United Kingdom seem set to follow a similar regulatory route. An All-Party Parliamentary Group (APPG) on Prostitution and the Global Sex Trade in July 2018 called for a ban on “prostitution websites”, by which they mean virtual advertising sites such as Vivastreet and Adultwork which host adult advertisements. Anticipating the same fallout as in the US, Amnesty UK tweeted, “Taking down these platforms will push sex workers deeper underground exposing them to greater risks of violence, exploitation and trafficking.”

Beyond criminalisation

According to Interpol, trafficking in human beings is a multi-billion-dollar international criminal industry, which is usually carried out for forced labour, sexual exploitation or for harvesting of tissue, cells and organs. Despite this recognition of the different motives for trafficking, the crime has largely been linked – in the popular imagination, media and, unfortunately, even law enforcement – to sexual exploitation. The thrust of anti-trafficking efforts in India, post-Independence, set the stage for decades of human-rights violations in the name of anti-trafficking, using an ineffective law that penalised victims more than traffickers. The proposed bill, with its ill-conceived criminalised regime, is likely to do more harm than good, and give rise to a repressive regime that is not in the interests of marginalised populations most vulnerable to traffickers. Not only is the bill unlikely to make any dent in the organised trafficking networks, but the fallout of its provisions policing the internet is also likely to hamper freedom of expression and consensual, adult sexual activity mediated through the digital space.

For more details visit https://cis-india.org/internet-governance/news/himal-south-asian-laxmi-murthy-net-nanny-meets-muscular-law

Net Freedom Campaign Loses its Way

sunil — 2014-05-27T11:07:04Z

A recent global meet was a victory for governments and the private sector over civil society interests.

The article was published in the Hindu Businessline on May 10, 2014.

One word to describe NetMundial: Disappointing! Why? Because despite the promise, human rights on the Internet are still insufficiently protected. Snowden’s revelations starting last June threw the global Internet governance processes into crisis.

Things came to a head in October, when Brazil’s President Dilma Rousseff, horrified to learn that she was under NSA surveillance for economic reasons, called for the organisation of a global conference called NetMundial to accelerate Internet governance reform.

The NetMundial was held in São Paulo on April 23-24 this year. The result was a statement described as “the non-binding outcome of a bottom-up, open, and participatory process involving … governments, private sector, civil society, technical community, and academia from around the world.” In other words — it is international soft law with no enforcement mechanisms.

The statement emerges from “broad consensus”, meaning governments such as India, Cuba and Russia and civil society representatives expressed deep dissatisfaction at the closing plenary. Unlike an international binding law, only time will tell whether each member of the different stakeholder groups will regulate itself.

Again, not easy, because the outcome document does not specifically prescribe what each stakeholder can or cannot do — it only says what internet governance (IG) should or should not be. And finally, there’s no global consensus yet on the scope of IG. The substantive consensus was disappointing in four important ways:

Mass surveillance : Civil society was hoping that the statement would make mass surveillance illegal. After all, global violation of the right to privacy by the US was the raison d'être of the conference.

Instead, the statement legitimised “mass surveillance, interception and collection” as long as it was done in compliance with international human rights law. This was clearly the most disastrous outcome.

Access to knowledge: The conference was not supposed to expand intellectual property rights (IPR) or enforcement of these rights. After all, a multilateral forum, WIPO, was meant to address these concerns. But in the days before the conference the rights-holders lobby went into overdrive and civil society was caught unprepared.

The end result — “freedom of information and access to information” or right to information in India was qualified “with rights of authors and creators”. The right to information laws across the world, including in India, contains almost a dozen exemptions, including IPR. The only thing to be grateful for is that this limitation did not find its way into the language for freedom of expression.

Intermediary liability: The language that limits liability for intermediaries basically provides for a private censorship regime without judicial oversight, and without explicit language protecting the rights to freedom of expression and privacy. Even though the private sector chants Hillary Clinton's Internet freedom mantra — they only care for their own bottomlines.

Net neutrality: Even though there was little global consensus, some optimistic sections of civil society were hoping that domestic best practice on network neutrality in Brazil’s Internet Bill of Right — also known as Marco Civil, that was signed into law during the inaugural ceremony of NetMundial — would make it to the statement. Unfortunately, this did not happen.

For almost a decade since the debate between the multi-stakeholder and multilateral model started, the multi-stakeholder model had produced absolutely nothing outside ICANN (Internet Corporation for Assigned Names and Numbers, a non-profit body), its technical fraternity and the standard-setting bodies.

The multi-stakeholder model is governance with the participation (and consent — depending on who you ask) of those stakeholders who are governed. In contrast, in the multilateral system, participation is limited to nation-states.

Civil society divisions

The inability of multi-stakeholderism to deliver also resulted in the fragmentation of global civil society regulars at Internet Governance Forums.

But in the run-up to NetMundial more divisions began to appear. If we ignore nuances — we could divide them into three groups. One, the ‘outsiders’ who are best exemplified by Jérémie Zimmermann of the La Quadrature du Net. Jérémie ran an online campaign, organised a protest during the conference and did everything he could to prevent NetMundial from being sanctified by civil society consensus.

Two, the ‘process geeks’ — for these individuals and organisations process was more important than principles. Most of them were as deeply invested in the multi-stakeholder model as ICANN and the US government and some who have been riding the ICANN gravy train for years.

Even worse, some were suspected of being astroturfers bootstrapped by the private sector and the technical community. None of them were willing to rock the boat. For the ‘process geeks’, seeing politicians and bureaucrats queue up like civil society to speak at the mike was the crowning achievement.

Three, the ‘principles geeks’ perhaps best exemplified by the Just Net Coalition who privileged principles over process. Divisions were also beginning to sharpen within the private sector. For example, Neville Roy Singham, CEO of Thoughtworks, agreed more with civil society than he did with other members of the private sector in his interventions.

In short, the ‘outsiders’ couldn't care less about the outcome and will do everything to discredit it, the ‘process geeks’ stood in ovation when the outcome document was read at the closing plenary and the ‘principles geeks’ returned devastated.

For the multi-stakeholder model to survive it must advance democratic values, not undermine them.

This will only happen if there is greater transparency and accountability. Individuals, organisations and consortia that participate in Internet governance processes need to disclose lists of donors including those that sponsor travel to these meetings.

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-business-line-may-10-2014-sunil-abraham-net-freedom-campaign-loses-its-way

NCAER Parallel Imports Report

praskrishna — 2014-04-01T10:39:46Z

For more details visit https://cis-india.org/a2k/blogs/ncaer-parallel-imports-report.pdf

National workshop on Web Accessibility - Thiruvananthapuram (Report)

radha — 2011-08-17T08:45:16Z

The third National Workshop on Web Accessibility for Web developers was organised by CIS at Thiruvananthapuram in collaboration with SPACE.

(CIS) and Society for Promotion of Alternative Computing and Employment (SPACE) organized a workshop on web accessibility for web developers from the public and private sector on September 25 to 26, 2009. The workshop took place at Christ Nagar International School, Kowdiar, Thiruvananthapuram.

About the Host Organizations

The Centre for Internet and Society
The Centre for Internet and Society (CIS) is a Bangalore based non-profit, bringing together a team of practitioners, theoreticians, researchers and artists to work on the emerging field of Internet and Society in order to critically engage with concerns of digital pluralism, public accountability and pedagogic practices, with particular emphasis on South-South dialogues and exchange. We focus on areas such as Anonymity/Privacy, Censorship, Surveillance, Free and Open Source Software, Open Standards, Open Access, Family, Sexual practices, Addiction, Intellectual Property Rights and Trade, Piracy, ICT4D, Digital and Participation Divide and Digital Communities and Movements.

Society For Promotion of Alternative Computing and Employment
Society For Promotion of Alternative Computing and Employment (SPACE) is a registered society that has members from academia, the IT industry, professional societies such as IEEE and Computer Society of India, and the IT Administration of the Government of Kerala. The vision of SPACE is to promote the use of Free and Open Source Software (FOSS) in academics, governance, corporate and individual use, and to support the use FOSS for employment generation in Kerala. The primary thrust are of the intervention are:

Promote the use of FOSS in the public, private, and governmental sectors as well as for personal/home use
Develop a model for FOSS- based employment generation that is appropriate to Kerala's context, by identifying appropriate business opportunities and providing support services including training and micro business incubation
Carry out R & D activities for the development of essential prototypes that bridge existing gaps in software, so as to enable widespread use of FLOSS
Ensure that Kerala is able to develop sufficient numbers of high-quality human resources in the FLOSS domain

Kerala State IT Mission

Kerala State Information Technology Mission (KSITM) is a Society registered under the Travancore Cochin Literary Scientific & Charitable Societies Registration Act. It is an autonomous nodal IT implementation agency for Department of Information Technology, Government of Kerala which provides managerial support to various initiatives of the Department.

About the Resource Persons

Rahul Gonsalves
Rahul has been building accessible websites since 2005 (sample work at http://rahulgonsalves.com/projects/ [1] ). He has been activiely involved in promoting web and accessibility standards. He spoke at the first international accessibility and technology conference in India, Techshare 2008, where he made out a case for accessibility and conducted a workshop on retrofitting accessibility to existing websites, a concern for most large institutions with an existing online presence (slides available at http://www.barrierbreak.com/events-conference/techshare_presentations200... [2])

In September 2008, he presented a paper examining ways in which People with various impairments - both physical and mental - engage with online content, and demonstrated practical ways in which authors can make online content accessible at the National Conference on ICT for Differently Abled People. He is a supporter of the push for having a national policy for governing electronic accessibility in India.

Srinivasu Chakravartula
Srinivasu Chakravarthula - graduated in Computer Science and is certified in 'assistive technologies'. He started his career as Head of the Braille Production Unit at National Association for the Blind, Bangalore. He then moved on and taught Computer Science at the Manik Public School, Bidar and also set up the Computer Training Centre at Hyderabad and Maniknagar, Bidar.

In the year 2005, he began to specialize in accessibility and started working for Net Systems Informatics and its subsidiary - BarrierBreak Technologies, Mumbai. During his stint at Net Systems, he was instrumental in setting up an accessibility process, imparting accessibility training to Corporates, creating awareness about accessibility and assistive technologies. Srinivasu played an innovative role in organizing Techshare India 2008 - India's 1st Accessibility and Assistive Technologies Conference and Exhibition. He was also Program Coordinator for Magazine, a3 that talked about Ability, Accessibility and Adaptability.

Srinivasu is currently working for Yahoo! India as Accessibility Manager and is responsible to lead and evangelize accessibility and its initiatives across Yahoo! India and South East Asia. He is also a member of the core committee for Yahoo! Employee Foundation India (YEFI). Srinivasu is associated with the social sector through the National Association for the Blind, India; Enable India, Shri Manik Prabhu Sikshan Samiti and Success World. His hobbies include blogging, tweeting, listening to classical music, playing chess and swimming.

Schedule of the Workshop

Day I

Introductory Session

Disability - 5 major types
The W3C and the WCAG
How people with disabilities use computers

Group Exercise/Discussion

Split participants into small groups and give them questions/problems to talk about and solve
Example: If your friend is deaf, how do you make sure that she/he understands what a video is about? OR How does someone who can't see or hear answer/check their email? OR X lost his hands in a car accident. How does he do a Google search?

Session 1 - Building an Accessible Website

Laying Accessible Foundations
Table-less layouts
Well-structured markup
Valid Code

Lecture/Demonstration of Accessibility Features under GNU/Linux by Arky

Lecture/Demonstration of NVDA Screen Reader

Lunch

Session 2 - Building an Accessible Website

Removing Barriers
Guideline 1 - Perception
Non-text content
Audio/Visual content
Adaptability
Contrast

Group Exercise: Guideline 1 - Translate a offline newspaper into an online one, and ensure that structure and information are retained when the content is adapted.

Wrap Session - Feedback and Clarifications

Day II

Lecture/Demonstration of ARIA features on selected websites

Session 3 - Guideline 2

Operable
Keyboard Access
Enough Time
Seizures
Navigable

LUNCH

Session 4 - Guideline 3 and 4

Understandable
Natural Language
Predictable
Input Assistance
Robust
Compatible

Session 5 - Accessibility Testing

Automated Testing + Tools
Manual Testing

Wrap Session - Feedback and Clarifications

Participants List

1. Mr. Vibeesh P - Team Leader, Rainconcert

2. Mr. Sunil S - Computer Programmer, ANERT

3. Mr. Vineet Pratap - Parallel Programmer, NIIST

4. Mr. Binsun N T - Software Engineer, Keltron

5. Mr. M.L. Antony - Manager (Software/Web Services), Keltron

6. Mr. Rojilal M. L - Programmer, KSEB

7. Ms. Dhanya Balakrishnan - Graduate Apprentice, Kerala State IT Mission

8. Ms. Indu Reghunath - Developer, SPACE

9. Mr. Jithin Babu B - Web Programmer, Freelance

10. Mr. Hareesh Mohan - Developer, SPACE

11. Mr. Sujith Sureshan - Developer, SPACE

12. Mr. Vinu C R - Web Programmer, IT@School

13. Mr. Cherian P Thomas - Programmer, KSEB

14. Mr. B Vijayakumar - Programmer, KSEB

15. Mr. Sunil Kumar - Governement Employee, Kerala Khadi and Village Industries Board

16. Mr. Anil Kumar - Akshaya, PA-MIS

17. Mr. Shanavas Khan - Programmer, Freelance

18. Ms. Shatti Raj - Scientist 'C', National Informatics Center

19. Ms. Rameena M - Developer, SPACE

20. Ms. Gita Brajesh - PSA, National Informatics Center

21. Ms. Indusekhar M S - System Analyst, National Informatics Center

22. Ms. Somi P Thomas - Scientist 'B', National Informatics Center

23. Ms. Nissy George - System Analyst, National Informatics Center

24. Ms. Susy M - Software Development, National Informatics Center

25. Ms. Jisy V K - Technical Apprentice, Kerala State IT Mission

26. Ms. Sandhya Devi T - Project Associate, IT@School

27. Ms. Saritha D R - Project Associate Executive, IT@School

28. Mr. Shaik Mohamed - System Analyst, National Informatics Center

29. Mr. Shibin Shah K J - Student, RSCS

30. Mr. Aneesh Bhadran - Student. RIT

31. Mr. Thomas K S - Assistant Manager, Camputec

32. Mr. Anil S - Member, SDS

33. Mr. John Panicker - Website Designer

34. Ms. Teenamol L - Information Kerala Mission

35. Mr. Shine A R - Information Kerala Mission

36. Mr. Jayahari K V

37. Mr. Naveen P L

38. Mr. Jijo Mathew

39. Mr. Antony Rodrugues

40. Mr. Satheeh S

41. Mr. Sajeevan C - Student, INSIGHT

Feedback

Session I

Title: Building an Accessible Website

Topics Covered: Laying Accessible Foundations, Table-less layouts, Well-structured markup, Valid Code

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	11	12	0	1
Practical to my needs and interest	9	11	3	1
Well Organized	12	9	1	2
Presented at the right level	14	9	0	1
Use Visual Aids	12	10	0	2

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	20	3	0	1
Instructor's Presentation Style	16	7	0	1
Instructor Covered Materials Clearly	12	11	0	1
Instructor Responded Well to questions	18	5	0	1

Title: Lecture/Demonstration of Accessibility Features under GNU/Linux by Arky

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	12	8	1	3
Practical to my needs and interest	7	13	2	2
Well Organized	12	10	0	2
Presented at the right level	11	11	0	2
Use Visual Aids	9	11	1	3

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	13	10	0	1
Instructor's Presentation Style	9	14	0	1
Instructor Covered Materials Clearly	9	14	0	1
Instructor Responded Well to questions	13	10	0	1

Title : Lecture/Demonstration of NVDA Screen Reader

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	7	14	1	2
Practical to my needs and interest	7	10	3	4
Well Organized	8	11	2	3
Presented at the right level	8	10	3	3
Use Visual Aids	7	12	3	2

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	10	12	0	2
Instructor's Presentation Style	9	11	1	3
Instructor Covered Materials Clearly	7	14	1	2
Instructor Responded Well to questions	11	10	0	3

Session II

Title : Building an Accessible Website

Topics Covered : Removing Barriers, Guideline 1 - Perception, Non-text content, Audio/Visual content, Adaptability, Contrast

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	12	10	1	1
Practical to my needs and interest	11	11	1	1
Well Organized	12	9	2	1
Presented at the right level	15	8	0	1
Use Visual Aids	12	10	1	1

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	15	7	0	2
Instructor's Presentation Style	11	11	0	2
Instructor Covered Materials Clearly	11	11	0	2
Instructor Responded Well to questions	13	9	0	2

Session III

Title :Guideline 2

Topics Covered: Operable, Keyboard Access, Enough Time, Seizures, Navigable

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	11	10	0	3
Practical to my needs and interest	10	11	0	3
Well Organized	9	12	0	3
Presented at the right level	8	12	1	3
Use Visual Aids	9	11	1	3

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	12	9	0	3
Instructor's Presentation Style	10	11	0	3
Instructor Covered Materials Clearly	9	11	1	3
Instructor Responded Well to questions	11	10	0	3

Session IV

Title : Guideline 3 and 4

Topics Covered : Understandable, Natural Language, Predictable, Input Assistance, Robust, Compatible

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	10	11	2	1
Practical to my needs and interest	9	13	0	2
Well Organized	12	11	0	1
Presented at the right level	14	8	0	2
Use Visual Aids	12	10	1	1

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	13	8	0	3
Instructor's Presentation Style	11	10	0	3
Instructor Covered Materials Clearly	12	9	0	3
Instructor Responded Well to questions	13	8	0	3

Session V

Title :Accessibility Testing

Topics Covered: Automated Testing + Tools, Manual Testing

Content

	Excellent	Good	Need Improvement	Not Applicable
Covered Useful Materials	15	9	0	0
Practical to my needs and interest	14	9	1	0
Well Organized	13	11	0	0
Presented at the right level	13	11	0	0
Use Visual Aids	14	9	1	0

Presentation

	Excellent	Good	Need Improvement	Not Applicable
Instructor's Knowledge	17	7	0	3
Instructor's Presentation Style	14	10	0	3
Instructor Covered Materials Clearly	14	9	0	1
Instructor Responded Well to questions	16	7	1	3

Workshop Organizers

Ms Nirmita Narsimhan (Programme Manager)
The Centre for Internet and Society
No. D2, 3rd Floor, Sheriff Chambers
14, Cunningham Road, Bangalore,
Karnataka 560052,
India

Phone: (+91)-080-4092-6283‎
Fax: (+91)-080-4114-8130
Email: nirmita@cis-india.org

Mr. Thomas Abraham (Training Coordinator)
Society for Promotion of Alternative Computing and Employment
C-11, Elankom Gardens,
Vellayambalam, Thiruvananthapuram
Kerala, India

Mobile: +91 94964 13317 Office Phone: +91 47123 18997
Email: tomuhs@gmail.com, contact@space-kerala.org

Consolidated Expenses of Web Accessibility Workshop, Trivandrum

Budget Head		Amount (Rs.)

Rent of lab and set up		15200
Accomodation		4963
Stationery		10285
Communication		507
Food		7535
Travel		6235
Coordination		10000
Total		54725

Please click here for the complete report.

For more details visit https://cis-india.org/accessibility/blog/workshop-thiruvananthapuram-report

National Conference on ICTs for the differently- abled/under privileged communities in Education, Employment and Entrepreneurship 2009 - (NCIDEEE 2009)

radha — 2011-08-31T10:48:22Z

A national level conference on the use of Information and Communication Technology for the differently abled / under privileged community in education, employment and entrepreneurship.

The management, staff and students of Loyola College and the Centre for Internet and Society (CIS), Bangalore (in association with department of IT, Government of India and pioneers in educating differently abled and professional bodies like NASSCOM, CSI-Chennai chapter), are proud to announce that we will be hosting a national level conference on the use of Information and Communication Technology for the differently abled / under privileged community in education, employment and entrepreneurship. This conference which will be a momentous occasion will be held from the 1^st to the 3^rd of December and will be attended by individuals from all walks of life including representatives of the differently abled and under privileged community, government officials, educationalists, researchers, program managers, representatives of international business missions, NGOs and students etc.

The main aim of this conference is to devise a successful formula through which the lesser privileged people of our society can be provided the opportunity to use the Information and Communication Technology to grow on par with the modernized world. The program will be a three day event ending on the 3^rd which happens to be e-accessibility day and the World Disability Day and hence in addition to the specific topics with the opinions, ideas and criticisms of each and every individual which will be heard, discussed and analyzed carefully, we will also be recognizing the many individuals who have contributed their tireless efforts in making Information and Communication technology accessible to all.

Some of the main aims and themes of this conference would be the Institutional and national responses to technological change, the intersections of Political economy and educational technology. The architecture of learning, Pedagogy in the evolving tech environment, Informal and formal adult education, Multi-grade education, Instructional design and delivery, evaluation and assessment, Strategies and tools for teaching and learning, simulations and gaming, Effects on training institutions and industry, Impacts on educational institutions: effects on faculty, staff, administration, and students; curriculum and program development Intellectual property, Building communities of teachers/educators, e-governance and leadership and so on.

The focus would be on the various problems faced by the differently abled and the under privileged people in our society especially with respect to education and the use of Information and Communication Technology for their development and tools for language learning especially English, Tamil and Hindi. During the conference, discussions would be made on the ways to implement data mining in such a way that it includes multimedia facilities such as voice over, Globalization and ICT in the labour market, ICT applications and systems contributing to desirable goals, learning, knowledge growth and career patterns in ICT, leadership roles, human needs, skills and competencies needed for proper growth and its effects, etc. These problems and solutions would be discussed on every possible front including the political, the educational the financial level with its usefulness and effects on the under privileged in mind.

We would also strive with our utmost effort to reach our desired goals such as humanization, bridging the digital gap, freedom of expression, peace, sustainability, human welfare and quality of life. The most important of them all will be the devising of important decisions and strategies that could be implemented in order to help the differently abled people use Information and Communication Technology for their employment by means of introduction of newly devised hardware and software that could benefit them and enable them to develop further.

It is hoped that this conference will be a memorable experience for both the participants as well as the hosts resulting in decisions that are aimed at making life better and easier for all the differently abled and under privileged throughout the country.

Registration

About Loyola College:

Loyola College, Chennai is one of the leading colleges not only in the state of Tamilnadu alone but also in India. It has been rated A+ by the NAAC for several years in a row and is also one among the top ten colleges in the country. All this is proof enough that the college takes utmost interest in the development of students. The main aim of the college is not to provide the highest quantity of education but the highest quality of education to its students. To carry out its aim, the college arranges for several conferences, seminars, educational tours, Industrial visits etc. in order to make sure that the knowledge of the students is not limited within the classroom alone. Hence the great support that the college provides to the staff and students of the various departments is quite evident in the many successful conferences, seminars and other such programs that have been conducted in the past and this is sure to continue in the future.

Organizers

RCDA: The Resource centre for differently abled (RCDA) started in the year 2006 as one of the Centers of Excellence at Loyola College has successfully carried out the task of making education and learning an accessible tool for the less privileged members of our society. As a joint venture with some of the departments of the College, the resource center has decided to organize the National Conference on ICTs for the differently- abled/ under privileged communities in Education, Employment and Entrepreneurship 2009 (NCIDEEE 2009).

http://www.loyolacollege.edu/rcda.html

The Centre for Internet and Society (CIS) is a Bangalore based non-profit organization, bringing together a team of practitioners, theoreticians, researchers and artists to work on the emerging field of Internet and Society in order to critically engage with concerns of digital pluralism, public accountability and pedagogic practices, with particular emphasis on South-South dialogues and exchange.

We focus on areas such as Anonymity/Privacy, Censorship, Surveillance, Free and Open Source Software, Open Standards, Open Access, Family, Sexual practices, Addiction, Intellectual Property Rights and Trade, Piracy, ICT4D, Digital and Participation Divide and
Digital Communities and Movements.

Website: www.cis-india.org

Program

The conference will be divided into four tracks which will be running simaltaneously ,, except for the main session and the concluding session on the first and last days which are to be common for all participants. The tentative schedule for the different tracks is as follows:

Track 1:

Day 1. Presentations of papers

Day 2. OCR Round Table- Deployment of OCR technologies in Indian languages: present state and road ahead

Day 3. TTS Round Table: Assessing the state of TTS in Indian languages: current position and future road map.

Track 2

Workshop on Web Accessibility for web developers- Web developers and designers from various sectors will be initiated into the need for and the techniques of compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 formulated by the World Wide Web Consortium (W3C). The tentative schedule for this track is given below:

WCAG Training Session Plan (2 Day)

Day 1
14:00-15:30 - Introductory Session

Disability - 5 major types
The W3C and the WCAG
How people with disabilities use computers (could use a movie here)

Group Exercise/Discussion

Split participants into small groups and give them questions/problems to talk about and solve
Example: If your friend is deaf, how do you make sure that s/he understands what a video is about? OR How does someone who can't see or hear answer/check their email? OR X lost his hands in a car accident. How does he do a Google search?

15:30-16:00- coffee/tea break
16:00-17:30

Session 1 - Building an Accessible Website

Laying Accessible Foundations
Table-less layouts
Well-structured markup
Valid Code

Day 2

09:30-11:00 Group Exercise
11:00-11:30- tea/coffee break
11:30-13:00

Session 2 - Building an Accessible Website

Removing Barriers
Guideline 1 - Perception
Non-text content
Audio/Visual content
Adaptability
Contrast

13:00-14:00 Lunch
14:00-15:30 Group Exercise
15:30-16:00-tea/coffee break
16:00-17:30

Session 3 - Guideline 2

Operable
Keyboard Access
Enough Time
Seizures
Navigable

Wrap Session - Feedback and Clarifications

Day 3

09:30-11:00 - Session 4 - Guideline 3 and 4

Understandable
Natural Language
Predictable
Input Assistance
Robust
Compatible

11:00-11:30- tea/coffee break
11:30-13:00

Session 5 - Accessibility Testing

Automated Testing + Tools
Manual Testing

13:00-14:00 Lunch break
14:00-15:30 Concluding session- feedback, clarification and action points of participants
15:30-16:00 tea/coffee break

Track 3

Capacity building for persons with visual impairments

This track is designed to equip students with visual impairments with skills and information required to face the employment world. It has courses such as goal orientation, soft skills and etiquettes and managing challenges in the work environment. It informs the students on what to expect when they go out to look for jobs and how to deal with potential logistic and attitudinal barriers. This is a very popular module which is currently being offered by Enable India Solutions,Bangalore and is being replicated in two days for the benefit of college students in Chennai.

The tentative sessionwise schedule for this track is given below:

Sessions

14:00-15:30- Why/How to be a finished product
15:30-16:00- Tea/coffee
16:00-17:30- Awareness on different jobs

Day 2

09:30-11:00- Goal orientation session
11:00-11:30- Tea/coffee break
13:30-13:00Employability awareness session 1 – Case studies of jobs and skills

Employability awareness session 2 – Computer skills (efficiency / quality)

13:00-14:00- Lunch
14:00-15:30- Employability awareness session 3 – Understand the real world perspective (& sighted point of view)
15:30-16:00- Tea/coffee break
16:00-17:30- Employability awareness session 4 - Importance of mobility
16:00-17:30- Employability awareness session 5 – Case studies on problem solving, workplace solutions, employed visually impaired

Day 3

Equipping for the employment world: Sessions

09:30-11:00
Soft skills including Social skills and etiquettes
Independent living skills
Emerging technologies - GPS, Mobile based OCr etc

11:00-11:30- tea/coffee break
11:30-13:00 Working in the corporate world- Managing challenges in work environment

Track 4

Capacity building for NGOs

This track is designed for general capacity building and information dissemination. It will cover topics like legal challenges, special needs for different disabilities, setting up resource centres, experimenting with new pedagogic techniques and using ICTs to impart education, presentation of case studies and so on.

For more details visit https://cis-india.org/events/ncideee-2009

Myanmar Digital Rights Forum Agenda

praskrishna — 2016-12-17T00:32:46Z

For more details visit https://cis-india.org/internet-governance/files/myanmar-digital-rights-forum-agenda.pdf

Moving Towards a Surveillance State

atreya — 2013-07-15T05:57:15Z

The cyberspace is a modern construct of communication and today, a large part of human activity takes place in cyberspace. It has become the universal platform where business is executed, discourse is conducted and personal information is exchanged. However, the underbelly of the internet is also seen to host activities and persons who are motivated by nefarious intent.

Note: The original tender document of the Assam Police dated 28.02.2013 along with other several other tender documents for procurement of Internet and Voice Monitoring Systems is attached as a zip folder.

As highlighted in the International Principles on the Application of Human Rights to Communications Surveillance, logistical barriers to surveillance have decreased in recent decades and the application of legal principles in new technological contexts has become unclear. It is often feared that in light of the explosion of digital communications content and information about communications, or "communications metadata," coupled with the decreasing costs of storing and mining large sets of data and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Communications surveillance in the modern environment encompasses the monitoring, interception, collection, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person's communications in the past, present or future.[*] These fears are now turning into a reality with the introduction of mass surveillance systems which penetrate into the lives of every person who uses any form of communications. There is ample evidence in the form of tenders for Internet Monitoring Systems (IMS) and Telecom Interception Systems (TCIS) put out by the Central government and various state governments that the Indian state is steadily turning into an extensive surveillance state.

While surveillance and intelligence gathering is essential for the maintenance of national security, the creation and working of a mass surveillance system as it is envisioned today may not necessarily be in absolute conformity with the existing law. A mass surveillance system like the Central Monitoring System (CMS) not only threatens to completely eradicate any vestige of the right to privacy but in the absence of a concrete set of procedural guidelines creates a tremendous risk of abuse.

Although information regarding the Central Monitoring System is quite limited on the public forum at the moment it can be gathered that a centralized system for monitoring of all communication was first proposed by the Government of India in 2009 as indicated by the press release of the Ministry of Communications & Information. Implementation of the system started subsequently as indicated by another government press release and the Center for Development of Telematics (C-DOT) was entrusted with the responsibility of implementing the system. As per the C-DOT annual report 2011-12, research, development, trials and progressive scaling up of a Central Monitoring System were conducted by the organization in the past 4 years and the requisite hardware and CMS solutions which support voice and data interception have been installed and commissioned at various Telecom Service Providers (TSP) in Delhi and Haryana as part of the pilot project. Media reports indicate that the project will be fully functional by 2014. While an extensive surveillance system is being stealthily introduced by the state, several concerns with regard to its extent of use, functioning, and real world impact have been raised owing to ambiguities and wide gaps in procedure and law. Moreover, the lack of a concrete privacy legislation coupled with the absence of public discourse indicates the lack of interest of the state over the rights of an ordinary citizen. It is under these circumstances that awareness must first be brought regarding the risks of the mass surveillance on civil liberties which in the absence of established procedures protecting the rights of the citizens of the state can result in the abuse of powers by the state or its agencies and lead to the demise of civil freedoms even in democratic states.

The architecture and working of a proposed Internet Monitoring System must be examined in an attempt to better understand the functioning, capabilities and possible impact of a Central Monitoring System on our society and lives. This can perhaps allow more open discourse and a committed effort to preserve the rights of the citizens especially the right to privacy can be made while allowing for the creation of strong procedural guidelines which will help maintain legitimate intelligence gathering and surveillance.

Internet Monitoring System: Setup and Working
Very broadly, The Internet Monitoring System enables an agency of the state to intercept and monitor all content which passes through the Internet Service Provider’s (ISP) server which includes all electronic correspondence (emails, chats or IM’s, transcribed call logs), web forms, video and audio files, and other forms of internet content. The electronic data is stored and also subject to various types of analysis. While Internet Monitoring Systems are installed locally and their function is limited to specific geographic region, the Central Monitoring System will consolidate the data acquired from the different voice and data interception systems located across the country and create a centralized architecture for interception, monitoring and analysis of communications. Although the exact specifications and functions of the central monitoring system still remain unclear and ambiguous, some parallels regarding the functioning of the CMS can be drawn from the the specifications revealed in the Assam Police tender document for the procurement of an Internet Monitoring System.

Setup
The deployment architecture of an Internet Monitoring System (IMS) contains probe servers which are installed at the Internet Service Provider’s (ISP) premises and the probes are installed at various tapping points within the entire ISP network. A collection server is also installed and hosted at the site of the ISP. The collection server is used to either collect, analyze, filter or simple aggregate the data from the ISP servers and the data is transferred to a master aggregation server located a central data center. The central data center may also contain more servers specifically for analysis and storage. This type of architecture is being referred to as a ‘high availability clustered setup’ which is supposed to provide security in case of a failure or outage.

The Assam Police Internet Monitoring System tender document specifically indicates that the deployment in the state of Assam shall require 8 taps or probes to be installed at different ISPs, out of which 6 taps/probes shall be of 10 GBPS and 2 taps are of 1 GBPS. The document however mentions that the specifications are preliminary and subject to change.

Types of data
The proposed internet monitoring system of the Assam state can provide network traffic interception and a variety of internet protocols including Hypertext Transfer Protocol (HTTP), File Transfer Protocol (FTP), Simple Mail Transfer Protocol (SMTP), Internet Message Access Protocol (IMAP) and Session Initiation Protocol (SIP), Voice over Internet Protocol (VoIP) can be intercepted and monitored. The system can also support monitoring of Internet Relay Chat and various other messaging applications (such as Google Talk, Yahoo Chat, MSN Messenger, ICQ, etc.). The system can be equipped to capture and display multiple file types like text (.doc, .pdf), zipped (.zip) and executable applications (.exe). Further, information regarding login details, login pattern, login location, DNS address, routing address can be acquired along with the IP address and other details of the user.

Web crawling capabilities can be installed on the system which can provide data from various data sources like social networking sites, web based communities, wikis, blogs and other forms of web content. Social media websites (such as Twitter, Facebook, Orkut, MySpace etc.), web pages and data on hosted applications can also be intercepted, monitored and analyzed. The system also allows capture of additional pages if updated; log periodical updates and other changes. This allows the monitoring agencies the capability of gathering internet traffic based on several parameters like Protocols, Keywords, Filters and Watch lists. Keyword matching is achieved by including phonetically similar words in various languages including local languages.

More specific functions of the IMS can include complete email extraction which will disclose the address book, inbox, sent mail folder, drafts folder, personal folders, delete folders, custom folders etc. and can also provide identification of dead drop mails. The system can also be equipped to allow country wise tracking of instant messages, chats and mails.

Regarding retention and storage of data, the tender document specifies that the system shall be technically capable of retaining the metadata of Internet traffic for at least one year and the defined traffic/payload/content is to be retained in the storage server at least for a week. However, the data may be retained for a longer period if required. The metadata and qualified data after analysis are integrated to a designated main intelligence repository for storage.

Types of Analysis
The Internet Monitoring System apart from intercepting all the data generated through the Internet Service Providers is essentially equipped for various types of data analysis. The solutions that are installed in the internet monitoring system provide the capability for real time as well as historical analysis of network traffic, network perimeter devices and internal sniffers. The kinds of analysis based on ‘slicing and dicing of data’ range from text mining, sentiment analysis, link analysis, geo-spatial analysis, statistical analysis, social network analysis, transaction analysis, locational analysis and fusion based analysis, CDR analysis, timeline analysis and histogram based analysis from various sources.

The solutions installed in the IMS can enable monitoring of specific words or phrases (in various languages) in blogs, websites, forums, media reports, social media websites, media reports, chat rooms and messaging applications, collaboration applications and deep web applications. Phone numbers, addresses, names, locations, age, gender and other such information from content including comments and such can also be monitored. Specifically with regard to social media, the user’s profile and information related to it can be extracted and a detailed ontology of all the social media profiles of the user can be created.

Based on the information, the analysis supposed to provide the capability to identify suspicious behavior based on existing and new patterns as they emerge and are continuously applied to combine incoming and existing information on people, profiles, transactions, social network, type of websites visited, time spent on websites, type of content download or view and any other type of gatherable information. The solutions on the system are also supposed to create single or multiple or parallel scenario build-ups that may occur in blogs, social media forums, chat rooms, specific web hosting server locations or URL, packet route that may be defined from time to time and such scenario build-ups can be based on parameters like sentiments, language or expressions purporting hatred or anti-national expressions, and even emotions like expression of joy, compassion and anger, which as may be defined by the agency depending on operational and intelligence requirement. Based on these parameters, automated alerts can be generated relating to structured or unstructured data (including metadata of contents), events, pattern discovery, phonetically similar words or phrases or actions from users.

Based on the data analysis, reports or dossiers can be generated and visual analysis allowing a wide variety of views can be created. Further, real time visualization showing results from real-time data can be generated which allows alerts, alert categories or discoveries to be ranked (high, medium, and low priority, high value asset, low value asset, moderate value asset, verified information, unverified information, primary evidence, secondary evidence, circumstantial evidence, etc.) based on criteria developed by the agency. The IMS solutions can also be capable of offering web-intelligence and open source intelligence and allow capabilities like simultaneous search capabilities which can be automated providing a powerful tool for exploration of the intercepted data.

Another important requirement mentioned in the tender document is the systems capability to integrate with other interception and monitoring systems for 2G, 3G/UMTS and other evolving mobile carrier technologies including fixed line and Blackberry services and encrypted IP services like Skype services.

Conclusion
It is clear that a system like IMS with its extensive interception and analysis capabilities gives complete access to an agency or authority of all information that is accessed or transmitted by a person on the internet including information which is private and confidential such as email and instant messages. Although the state has the power to issue directions for interception or monitoring of information under the Information Technology Act, 2000 and certain rules are prescribed under section 69B, they are wholly inadequate compared to the scope and extent of the Internet Monitoring System and its scale of operations. The interception and monitoring systems that are either proposed or already in place effectively bypass the existing procedures prescribed under the Information Technology Act.

The issues, concerns and risks are only compounded when it comes to the Central Monitoring System. The solutions installed in present day interception and monitoring systems give the state unprecedented powers to intercept, monitor and analyze all the data of any person who access the internet. Tools like deep packet inspection and extensive data mining solutions in the absence of concrete safeguards and when deployed through a centralized system can be misused to censor any content including legitimate discourse. Also, the perception that access to a larger amount of data or all data can help improve intelligence can also be sometimes misleading and it must be asked whether the fundamental rights of the citizens of the state can be traded away under the pretext of national security. Furthermore, it is essential for the state to weigh the costs of such a project both economically and morally and balance it with sufficient internal measures as well as adequate laws so that the democratic values are persevered and not endangered by any act of reckless force.

Reiterating what has been said earlier, while it is important for the state to improve its intelligence gathering tools and mechanisms, it must not be done at the cost of a citizen’s fundamental right. It is the duty of the democratic state to endure and maintain a fine balance between national interest and fundamental rights through timely creation of equitable laws.

[*]. http://necessaryandproportionate.net/#_edn2

For more details visit https://cis-india.org/internet-governance/blog/moving-towards-surveillance-state

More than a Hundred Global Groups Make a Principled Stand against Surveillance

elonnai — 2013-07-31T14:26:38Z

For some time now there has been a need to update understandings of existing human rights law to reflect modern surveillance technologies and techniques.

Nothing could demonstrate the urgency of this situation more than the recent revelations confirming the mass surveillance of innocent individuals around the world.

To move toward that goal, today we’re pleased to announce the formal launch of the International Principles on the Application of Human Rights to Communications Surveillance. The principles articulate what international human rights law – which binds every country across the globe – require of governments in the digital age. They speak to a growing global consensus that modern surveillance has gone too far and needs to be restrained. They also give benchmarks that people around the world can use to evaluate and push for changes in their own legal systems.

The product of over a year of consultation among civil society, privacy and technology experts, including the Centre for Internet and Society (read here, here, here and here), the principles have already been co-signed by over hundred organisations from around the world. The process was led by Privacy International, Access, and the Electronic Frontier Foundation. The process was led by Privacy International, Access, and the Electronic Frontier Foundation.

The release of the principles comes on the heels of a landmark report from the United Nations Special Rapporteur on the right to Freedom of Opinion and Expression, which details the widespread use of state surveillance of communications, stating that such surveillance severely undermines citizens’ ability to enjoy a private life, freely express themselves and enjoy their other fundamental human rights. And recently, the UN High Commissioner for Human Rights, Nivay Pillay, emphasised the importance of applying human right standards and democratic safeguards to surveillance and law enforcement activities.

"While concerns about national security and criminal activity may justify the exceptional and narrowly-tailored use of surveillance programmes, surveillance without adequate safeguards to protect the right to privacy actually risk impacting negatively on the enjoyment of human rights and fundamental freedoms," Pillay said.

The principles, summarised below, can be found in full at necessaryandproportionate.org. Over the next year and beyond, groups around the world will be using them to advocate for changes in how present laws are interpreted and how new laws are crafted.

We encourage privacy advocates, rights organisations, scholars from legal and academic communities, and other members of civil society to support the principles by adding their signature.

To sign, please send an email to rights@eff.org, or visit https://www.necessaryandproportionate.org/about

Summary of the 13 principles

Legality: Any limitation on the right to privacy must be prescribed by law.
Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.
Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users’ rights and to other competing interests.
Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
Due process: States must respect and guarantee individuals' human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.
Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.
Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.
Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public and private actors.

For more details visit https://cis-india.org/internet-governance/blog/more-than-hundred-global-groups-make-principled-stand-against-surveillance

Modi Govt compromising privacy of individuals: Cong

Admin — 2018-04-18T01:10:42Z

Charging the Narendra Modi Governemt with compromising the privacy of individuals by leaking user information on the Narendra Modi app, the Congress on Monday said the counter allegations by the BJP that the Opposition party was indulging in 'data theft' were an attempt to divert attention from the issue.

This was published by United News of India on March 26, 2018.

Talking to reporters here, AICC spokesperson Abhishek Manu Singhvi said, 'we have said repeatedly that the biggest assault on individual privacy has occurred under the watch of the Narendra Modi Government. Not only people’s money, but people’s privacy is also in question.

Even as startling revelations that the Narendra Modi app, run by the BJP is sharing data of millions of users with American companies emerge, the Modi Government mocks and flouts the ‘Right to Privacy’ with brazen impunity. While the Prime Minister’s Office, PMO India app, asks users to voluntarily part with their identity on 14 data points, the NaMo app asks for a sweeping access to 22 data points. The NaMo app records audio, video, contacts of your friends and family and even tracks your location via GPS. No wonder, Modi ji is like the ‘Bigg Boss’ who with brazenness likes to spy on Indians. The BJP whose IT (Identity Theft?) Minister does daily press conferences on the issue of data security and democracy, has much to answer to the people of India on the unscrupulous means by which Shri Narendra Modi’s personal app is accessing data and passing on data of more than 50 lakh Indians,' he alleged.

Describing the BJP allegations that the Congress was indulging in 'data theft' through its mobile app, Mr Singhvi said. 'the Modi Government is resorting to deflectionary and diversionary tactics. The Congress application had just 15,000 downloads against the 50 lakh Indians who downloaded the NaMo app. Also, the Congress application was discontinued as most of the users wanted to register offline.'

Accusing Mr Modi of misusing the Prime Minister’s position to build personal database with data on millions of Indians via the NaMo app promoted by the government, Mr Singhvi said, 'Why does Mr Modi, in his own book ‘Exam Warriors’ urge you to download the NaMo app. Is he now planning to snoop in on minors? Mr Modi is misusing the Prime Minister’s position to build personal database with data on millions of Indians via the NaMo app promoted by Government. If as PM he wants to use tech to communicate with India, there is no problem in that. But use the official PMO app for it, not the NaMo app. This data belongs to India, not to Mr Modi.

Shockingly, data of atleast 13 lakh NCC cadets which include personal mobile phone numbers and email ID’s are being given to the Prime Minister’s Office for an interaction.'

Citing in this regard the report of a committee of experts appointed by the government on the issue of data protection, Mr Singhvi said, 'importantly, a Government appointed Committee of Experts (CoE) to look into a framework for data protection, headed by Justice (retd) BN Srikrishna has made scathing observations in a paper released in November 2017, against the Government and has shockingly implied (according to the media reports) that the Modi Government is collecting personal data illegally. The committee, which is currently in the process of conducting consultations, has also considered the SC judgment on privacy, says in its paper “The public and private sector are collecting and using personal data on an unprecedented scale. While data can be put to beneficial use, unregulated and arbitrary use of data, especially personal data, raise concerns relating to centralisation of databases, profiling of individuals, increased surveillance and a consequent erosion of individual autonomy.”

Alleging that under the Modi Government, not only the personal data of citizens was under serious threat, but there were multiple reports of data breaches in banks, Mr Singhvi said, 'astonishingly, under the Modi Government, not only the personal data of citizens is under serious threat, but multiple breaches in the banks. In an atmosphere where every single day there has been a bank fraud worth thousands of crores of rupees being reported, have resulted in one single question - how safe is our money in banks?

Banks and PSU’s have reported multiple breaches in recent past. A newspaper report on Monday said two online security experts have claimed that the Aadhaar database of two public-sector enterprises leaked select data and the vulnerability was fixed only a month after attention was drawn to it. This exposes their names, the 12-digit Aadhaar number and information of the services they have linked their Aadhaar card to. These services include bank details, policy details and other private information. This was corroborated by the UIDAI statement released on Sunday.

“It was left up there for more than a month — even though it had been reported to them directly,” claim the security experts. On February 23, 2018 a report had claimed that there was a data breach which had hit the the Punjab National Bank, whereby sensitive credit, debit card details of 10,000 customers were leaked. Quick Heal, a reputed software company in October 2017 had also claimed that there was a massive data breach in 6,000 government offices including banks. Earlier in 2016, as per media reports -- 32 lakh debit/credit cards of various Indian banks were compromised. The worst-hit was the State Bank of India along with certain private banks.'

He also charged the present Government of breach of Aadhaar data of individuals.

'In April 2014, the then Gujarat Chief Minister Narendra Modi had attacked Aadhaar and the UPA Government on its possible ‘security threat’. Life has now come full circle for the BJP. Just like numerous other issues, their blatant hypocrisy on Aadhaar is exposed. In January, this year, when a reputed newspaper in a sting exposed how 1 crore Aadhaar details can be accessed in just 10 minutes, by paying just Rs 500 in Chandigarh, the UIDAI had then filed an FIR against the reporter. Now the editor of the reputed media house has also been replaced.

We have seen it in May 4, 2017, when the Modi Government is on record in Supreme Court, accepting data breach in the Aadhaar scheme. Now the Attorney General in Supreme Court, while arguing that Aadhaar data remains safe and secure, says that the Aadhaar data remains secure behind a complex that has 13-ft high and five-feet thick walls, which is laughable and ludicrous, to say the least. On November 20, 2017, the UIDAI had accepted on record that –“More than 210 central and state government websites publicly displayed details such as names and addresses of Aadhaar beneficiaries”. Earlier too, ‘Centre for Internet and Society’, a Bengaluru-based organisation (CIS) in a study published on May 1, 2017, had found that data of more than 130 million Aadhaar card holders has been leaked from just four government websites. Therefore this is a serious issue. Clearly, neither our money, nor our Aadhaar details or our personal details are secure under the Modi Government.'

For more details visit https://cis-india.org/internet-governance/news/united-news-of-india-march-26-2018-modi-govt-compromising-privacy-of-individuals-congress

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

Mock-Calling – Ironies of Outsourcing and the Aspirations of an Individual

Sreedeep — 2015-08-06T05:00:33Z

This post by Sreedeep is part of the 'Studying Internets in India' series. He is an independent photographer and a Fellow at the Centre for Public Affairs and Critical Theory, Shiv Nadar University, Delhi. In this essay, Sreedeep explores the anxieties and ironies of the unprecedented IT/BPO boom in India through the perspective and experiences of a new entrant in the industry, a decade ago. The narrative tries to capture some of the radical hedonistic consequences of the IT-burst on our lifestyles, imagination and aspirations delineated and fraught with layers of conscious deception and prolonged probation.

best start (the advertisement)

In the darkest hours of night, they remain awake serving some other continent across the oceans.
The sparkling exterior complements the sleeplessness.

Colorful half-pagers listing job openings in dedicated sections of dailies for the ‘educated’ and ‘experienced’ have been common in post liberalized India. When the eyes cruise through the various logos and offerings of the MNCs in these over populated pages, one gets reminded of a decade when the front, back, and inside pages of newspaper supplements overflowed with job offerings in the lowest ranks of the IT. BPO vacancies which littered the folios primarily sought to lure fresh college pass-outs ‘proficient in English’. Back then, one was yet getting familiar with names such as ‘Convergys’, ‘Daksh’, ‘Global-Vantage’, ‘EXL’, ‘Vertex’. It made one wonder why they needed so many people to ‘walk-in’ week after week, and how they made thousands of ‘on the spot offers’ with ‘revised salaries’ following ‘quick and easy interviews’ and ‘fastest selection processes’. What these selected people actually did, once they got in, was another mystery altogether.

Some of these MNCs promising nothing short of a ‘best start’ to one’s career, that too with the ‘best starting salaries for a fresher’, often came to college campuses for recruitment. They conducted large scale interviews and generously granted immediate offer-letters to final-year students, at the end of each academic year. I happily overlooked the (fine) print, the text, design, and all the other details of these BPO ads. In fact, I never bothered to figure out what the acronym meant till such time when I was in desperate need for a gadget make-over. My age old Range-Finder camera deserved to be disposed and displaced by a Digital SLR. That was the summer of 2003...

The iconic ship building of Convergys – one of the first amongst the many that stood alone fifteen years ago, surrounded by far-‐away sketches of multistoried constructions and a cyber-‐hub that was yet to be born and the eight lane highway leading to Jaipur, about to be built beside it.

say something more about yourself (the interview)

Call flow and traffic flow is fast and furious both inside and outside such centers of info-exchange and mega-data transmissions every second every day.

“You have mentioned in this form that your aim is to ‘do something different’. How would you relate that to your decision to work in a call center?” I was asked.

I had given more than couple of interviews, to get rejected on both occasions, and by then had realized what exactly they preferred to hear and the kind of profile that they wanted to hire. I was in no mood to miss my lunch and waste another day in the scorching heat traveling to one of these hotels where the interviews were conducted. I was tired of waiting for hours sipping cold water and looking at formally dressed men and women being dumped from one room to another – going through a series of eliminating rounds before reaching the interview stage, when they politely conveyed “…thank you very much, you may leave for now, we’ll get back to you…”, especially, to all those lacking a ‘neutral English accent'.

On the first occasion, I took great pleasure and interest in observing every bit of it. On the second, I was getting a hang of it. On the third, I felt like a school kid appearing for an oral examination at the mercy of the schoolmaster and was perennially requested at every step to say something (more) about oneself. But, I had no grudges. Neither the posh ambience nor the polite attitude of the employers towards hundreds of candidates walking-in everyday was comparable with the interview-scene of Ray’s ‘Pratidwandi’ [1]. The scene was acting out in reverse. Now they needed us (in bulk) more than we needed them. Any English-speaking dude eager to believe in the promises of the new-age-profession, even with less or ordinary qualifications, or with no desires to seek further qualifications, was in great demand, like never before.

On the fourth occasion, I thought that I had my answers ready.

“Well, your CV suggests something else. Why don’t you contemplate choosing a creative profession?”

The extra curricular activities’ column on my CV was getting reduced in size with each passing interview that I chose to face. Later I felt that I could have said something else instead of answering, “Madam, I am from a middle-class family, where creativity is not given much space beyond a point.”

I was reminded that I should use her first name instead of uttering ‘Madam’ repeatedly. “But, most of the creative minds come from the middle-class background”, she refuted.

“May be I don’t have much of confidence in my creative abilities.”

The conversation continued for quite long. I did not fall short of sentences to cover up this process of conscious deception. She was busy evaluating my English and was possibly overlooking the content of my answers while making points on a piece of paper as she kept asking questions regarding hobbies, movies, etc. I was asked to listen to men talking in American accent and was instructed to choose between options that summarized the probable conclusion of their conversation. Then I was asked me to wait outside.

The interview with the Senior Process Manager from Pune was supposedly the last round, I was told. A charming voice from across the table made me feel as if he had been waiting to hear from me since the time we met long ago, “So, how is life?”

“Great Sir”.

“Great? You don’t get to hear that too often. Okay, please say something about your self.”

There seemed to be no end to this essential inquiry about ‘the self’ at any stage! I started with my name and ended with my ambition, which was to make a career in a call center.

He must have found it useless to discuss the work profile with me. Truly, I had no idea about what I was supposed to do on the deck. But, I did not miss any chance to convey how keen I was to learn and deliver. This was followed by a discussion on salary, which was short, because as a fresher, I was in no position to bargain.

While passing the offer letter, the HR lady formally made a point to emphasize the formal dress code in the office. Looking back, I presume it was my appearance that prompted her to state the code. With the hair almost touching the shoulders, and a face not shaven for more than a month, the loose fit denims incapable of keeping the shirt tucked, I must have made a sufficient impression to instigate concern in her mind, although unknowingly. Jaswindar (the man who thought smoking bidi in the lawns of the corporate cathedral is quite cool) replied, “I don’t have any formal wear. Does the company pay any advance for buying some?”

Cyber Hub @ midnight – the nerve centre of several corporates.

what if they find out (the first day)

Even sky is not the limit. The exchange of information and its pace defies border – political or physical.

A cold current ran through the spine of several candidates, especially the first timers, with every signature they put on the bottom left of each page of the agreement of the terms and conditions that required them to be graduates. Obviously, quite a few of them were not graduates. What if they found out that they were not? But they did not. I guess, they never cared to verify the certificates enclosed in the pink file. Nor did they care to figure out what happened to those tax-forms, provident fund forms, insurance forms signed and submitted by the 124 employees joining job on the 9th of June. Lengthy spells of instructions related to form-filling on the first day were forgotten, as most of them were happily distracted or disinterested. The crowd was busy checking out each other – the vending machine and its options, the fancy phone and its features – also enquiring or narrating previous call center experiences, the hassle in missing or getting the first pick-up for the day...

While these strangers were desperate to know or let the others know ‘something more about themselves’, the junior officials instructing us ‘where to tick’, ‘what to remember’, ‘how to write’, ‘when to stop’ were not in a position to exhibit how irritated they were with the tough task of managing so many recruits. Things got even worse with the daylong induction lectures on training, transport, finance, assets, ‘our motifs’ and ‘your expectations’, ‘your contribution’ and ‘our expectations’. Thankfully, there was good lunch, free internet access (quite unthinkable in those days of expensive cyber cafes) and AC cabs to follow. I fancied my relief from the heat and hostel food for the next few weeks of my paid holiday without any sense of remorse.

The Convergys building (now taken over by Vedanta) on a full moon night. The plush lawns used to be a breeding ground for generating dust haze. The compound is highly protected/exclusive zone. Epitome of global connectivity ensures complete disconnection with the local surroundings.

my camera vs their camera (getting trained)

The ever-expanding city with all its imposed notions of urbanity on an area essentially rural leaves no scope for the evolution of the public space. On the contrary, any space outside the strict confines of these gated nations/notions invite threats of the highest order or at least it is perceived to be so.

What if they find out? No, they didn’t.

For the next one and a half months, we loitered around in the mornings, nights, evenings, and graveyard shifts of the classrooms and cafés (though not in every corner as mobility was highly restricted and under severe surveillance), at times enjoying and at times sleeping through the training sessions, impatiently waiting for the salary to get transferred to the Citi Bank account which they had opened for us to be swiped-out the moment the money arrived. Their surveillant eyes were not technologically advanced enough to guess the respective reasons to take up the job casually and remain appointed before absconding. A host of young fellas kept counting the number of day remaining:

While the trainer with 3 kids in 7 years (now needing one more) with a ‘do it or I’ll make you do it’ attitude reminded us that prostitution is oldest customer care service, and the role of a customer care executive is one of the most prestigious ones and definitely not deplorable just because we work at night (as do the docs and cops).
While listening to the trainees whose primary interests varied from stock exchange to cooking for the wife to horse breeding and extending till the ‘search for truth in Himalayas’. In a free speech session in VNA (Voice and Accent Training), fitness was synonymous with Baba Ramdev for some folks and euthanasia meant mass-killing. And what about capital-punishment? “Would have known if I attended the college debates”, someone proudly said. The trainer was kind to say “Then talk about censorship”. The girl with colored hair was quick to question, “Is that an automated cruise?”
While cruising through the consonants, diphthongs, vowel sounds, and imported ‘modules’, rapid ‘mock-calls’ and learning to intonate. We bit the ‘B’s, kissed the ‘W’s and by the time we rolled the ‘R’s, reached the soft ‘T’s and faded ‘P’s, I felt that the next big revolution was here. Tongue, lip, throat, teeth tried their level best to ape the ones across the Atlantic to the norms of their phonetic culture.
While obviously not uttering the obvious that this entire system was a consequence of service being subcontracted to places where establishment and labour costs were way more cheaper.

Walls can guard the flow of trespassers but the walls can rarely be guarded against the practice of public urination. An employee relieves himself in the middle of a graveyard shift on his way back after a quick smoke during the miserly half an hour break.

keeping balance (the absconding case & the attrition list)

The building came first as isolated blocks of self-sufficient units generating its own electricity and meeting its own needs. The infrastructure external and essential to its sustenance is still in its nascent stage.

In between the lines of the Punjabi beats in the moving cab or Pearl Jam playing on the i-pod in full volume to resist the former; before and after ‘hi bro’, ‘hey dude’, ‘yo man’, ‘yap buddy’; from weekend masti to an inspirational night-out, we constantly juggled with call-center jargon and silently yapped about:

How to revolt against ‘IST’ (Indian Stretchable Time)
Why the ‘pick-up time’ hadn’t been SMSed yet
Why the fucking cab driver did not come fucking five fucking minutes earlier
How often to ‘login’ early and ‘logout’ late
Why the ‘systems were running slow’
What should be the perfect ‘call-opening’ and ‘call ending’
How to handle ‘high call flow’
How to ‘sale’ a product to the ‘disinterested customer’
How to ‘appease’ the dissatisfied ‘enquiring consumers’
How to ‘empathize’ with an ‘irate customer’
How to keep the ‘call control’ while making the customer feel empowered
How to avoid ‘escalating’ the call
How to make full use of the two ‘fifteen minutes breaks’ and one ‘half hour break’
Why not to say – “I am sorry to hear that” – to a recently divorced customer
Whom to give the extra food coupons
What to do to in order to know when your calls are being monitored
How to reduce the ‘AHT’ (Average Handling Time)
How to increase the ‘C.Sac’ (Customer Satisfaction) scores
Why not to take two ‘consecutive weekend-offs’
What to write in the ‘feed-back forms’
Which friend should be referred to get compensated for the ‘referral’ before leaving the job
What else could be done to maximize ‘P4P’ (Pay for Performance)

Soon after swiping the card and clearing the balance, many of us became what they called, ‘an absconding case’ and added our names to the ‘attrition list’. The ‘cost-effective-labour’ (not ‘cheap labor’), stopped coming to office just before ‘hitting the (production) floor’ without bothering to formally say a bye, and without multiplying the hundreds of dollars that their clients had invested in our training and maintenance. Some of us had to get back to our colleges, which had re-opened. The others either complained about the team-leader or the work pressure till the time they got a call from some other call-center across the road offering a slight increment, but the same work. Others changed jobs as they habitually did twice or thrice a year to acquire a new ambience and acquaintances only to get bored yet again. One chap was smart enough to hold two offices simultaneously. The rest either perished without a trace or sat on the same chair hoping to climb the ‘vertical ladder’ by pleasing the bosses and putting more working hours while executing the ‘communicative tools’ and ‘navigation skills’ that they remembered from the training days. They were the ones the industry hoped to retain. They were also the ones too particular about their performance. Habitual consumption and consistent conflicts between the personal mornings/mourning and the professional nights took a consistent toll.

The city sleeps. Metros come to halt. Signs of human existence disappear. But thousands of people continue with the calls in each floor of these buildings answering queries and collecting unpaid amounts catering to a different time zone altogether.

Different floors and different corners of the same floor cater to different clients across the globe.

after-call wrap-up (remains of the flirtatious feed-back)

I-cards hung like nameplates around the neck all the time along with codes that were generated from the distant land. Punching these plastic cards ensured automated entry, strictly confined to those floors where we had some business. Forgetting to carry them required prolonged human intervention to convince the security that we did deserve to get in. Losing it lead to penalty. Hiding/absconding beneath one of the many call center note-pads I found the Separation Clause 4b: “upon separation from the company, you will be required to immediately return to the company, all assets and property including documents, files, book, papers and memos in your possession.”

The termination clause 6.b.i. of one of the appointment letters stated - “During the probation period you are liable to be discharged from the company’s service at any time without any notice and without assigning any reason”. But I guess the employees left the company more often without any notice or assigning any reasons. The company, most often, had no answers for this unwanted discharge to its owners across the oceans. IT abroad/onboard was not advanced enough to predict/prevent people who made the industry look like a make-shift arrangement; a probation that would rarely lead to permanence.

A common sight of fleet of cabs (a service which is outsourced to external vendors) outside the building waiting for scheduled drops and pick-ups.

is there anything else that I can do to help you/me

As the piling debris suggest infrastructural work perennially in progress.

Between the cafeteria cleaned once every hour and the adjacent murky road side dhaba; between the latest cars in the parking lot and the rickshaws waiting for those who couldn’t yet afford to pay the car-installment; between the fiber-glass windows and the jhopris (visible once the curtains were lifted) – new heights were achieved and new targets were set that were globally connected, locally disconnected.

In a site, which is otherwise devoid of consistent water supply, electricity and public transport (running it servers on generators 24X7), the vertical-limits of the translucent fiber glass and false roofs prepare the suburbs. The soothing cubicles confirm to the global standards of ‘how a city ought to look’ from a distance.

Just like the enormous demands of the IT industry, which has created its support sectors (catering, security, transport, house-keeping etc) to stray around the BPOs trying to extract their share of profit, I moved around its orbit as well for some time. Why and how there is a bit of BPO in most my creative endeavors and in the purchase of digital devices between 2003-2008 doesn’t require any further explanation.

I got better and better with my mock-calls.

Surrounded by the debris of development and standing tall with its emphatic presence, such an imposing architecture seems like a myth that constantly challenges the harsh realities that envelop it. The pillared peak is so representative of its desire to remain connected with the ‘distant-impossible’ 24x7.

Endnote

[1] The protagonist in the film violently revolted against the lack of basic amenities in the interview-space and against the idea of calling so many people for just a couple of vacancies, when people were expected to be selected not on the basis of merit, anyway.

The post, including the text and the photographs, is published under Creative Commons Attribution 4.0 International license, and copyright is retained by the author.

For more details visit https://cis-india.org/raw/blog_mock-calling

MLATs and the proposed Amendments to the US Electronic Communications Privacy Act

Vipul Kharbanda and Elonnai Hickok — 2016-12-28T01:09:34Z

In continuance of our blog post on mutual legal assistance treaties (MLATs), we examine a new approach to international bilateral cooperation being suggested in the United States, by creating a mechanism for certain foreign governments to directly approach the data controllers.

Published under Creative Commons License CC BY-SA. Anyone can distribute, remix, tweak, and build upon this document, even for commercial purposes, as long as they credit the creator of this document and license their new creations under the terms identical to the license governing this document.

In the previous article on MLATs we discussed, in some detail, what MLATs are and why they are needed. One area which was briefly focused upon in that article was the limitations and criticisms of the MLAT mechanism, of which one of the main criticisms being the problems caused due to different legal standards in various jurisdictions as well as the time taken to process a request for information sent from one country to another. Talking specifically about the United States, where most internet companies are headquartered and hold large amounts of data, it typically takes months to process requests under MLATs and foreign governments often struggle to comprehend and comply with the legal standards in the United States for obtaining data for use in their investigations.[1] The requirement that a foreign government should take permission from, and comply with the requirements of a foreign government simply because the data needed happens to be controlled by a service provider based in a foreign country strikes many foreign law enforcement officials as damaging to security and law enforcement efforts, especially when they are requesting data pertaining to a crime between two of their own citizens that primarily took place on their soil.[2]

These inefficiencies of the MLAT process lead to further problems of foreign governments attempting to apply their search and surveillance laws in an extraterritorial manner for example in 2014 the UK passed the Data Retention and Investigatory Powers Act, 2014 with gives the government the power to directly access data from foreign service providers if sought for specific purposes and the request is approved by the Secretary of State or other specified executive branch official.[3] Another response that may occur is if, frustrated by such inefficiencies of the existing systems, courts in foreign states start assuming extra territorial jurisdiction, as happened when a District Court in Vishakhapatnam restrained Google from complying with a subpoena issued by the Superior Court of California, ordering Google to share the password of the Gmail account belonging to an Indian citizen residing in Vishakhapatnam.[4]

Solution proposed in the United States

In order to overcome these inefficiencies, at least in the American context, the Department of Justice has proposed a legislation which seeks to make the process of foreign governments getting information from US based entities more streamlined by amending the provisions of the Electronic Communications Privacy Act (ECPA) of the United States (the “Amendment”). These amendments have been proposed primarily for the US and UK to effectuate a proposed bilateral agreement whereby the UK government will be able to approach US companies directly with requests for information without going through the MLAT process or getting an order from a US court.

The Amendment seeks to ensure that requests from foreign governments for information from US entities get answered in a smooth manner by including those requests in the process for seeking information under the ECPA itself. This move would no doubt, make it easier for foreign governments to access data in the US, but such a move can be criticized on the ground that it would then allow all states, irrespective of their legal standards of privacy, etc. to get access to such information. This problem has been overcome in the amendment by adding a new section to Title 18 which would allow the Attorney General, with the concurrence of the Secretary of State to certify to the Congress that the legal standards in the contracting state which is being given access to the mechanism under the ECPA satisfies certain requirements specified in the chapter (and discussed below). Only after such a certification has been received by the Congress, a contracting state would be able to receive the benefits sought to be granted under the Amendment.

It is important to note that the US administration is looking to use the US-UK Agreement as a standard to be followed for similar potential agreements with a number of other countries wherein the agencies in those countries could request information from US based entities through court orders through a properly specified legal framework. Though to our knowledge India has not been formally approached by the US government to enter into such an agreement, it is important to ask the question viz. if approached:

Does India's present legal system meet the standards laid down in the amendment to the ECPA?
And if they do, should India also seek to enter into such an Agreement with the United States?
And if India does, what could be the implications for citizens and for countries in a similar position as India?

We hope to be able to answer the above three questions, or at least throw some light on them, in the conclusion of this paper by relying upon the discussions contained herein.

Criticisms of the Amendment

While such a mechanism may be very effective in addressing the needs of security agencies in investigation and prevention of criminal activities, one cannot accept such an overarching change in cross border enforcement without analyzing the consequences that such a proposal will have on the right to privacy. Some of these consequences have been highlighted by experts responding to the amendment:

Lack of Judicial Authorisation: The Amendment requires that the foreign governments have a process whereby a person could seek post-disclosure review by an independent entity instead of a warrant by a court.[5] Although a court order is not the norm for interception even in Indian law, however under American law such protection is given to data held by American companies even though the data may belong to Indian citizens and this protection will no longer be available if the Amendment is passed.

Vague Standard for requests: Under the domestic law of any state there is usually a large amount of jurisprudence regarding when search orders can be issued, such as the “probable cause” standard that is followed in the United States or similar standards that may be followed in other jurisdictions. This ensures that even when the wording of the law is not precise, which it cannot be for such a subjective issue, there is still some amount of clarity around when and under what circumstances such warrants may be issued. In contrast, the Amendment requires that the orders be based on “requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation.” Although the language here may seem reasonable but in the absence of any jurisprudence backing it, it becomes very vague and susceptible to misuse. Disclosure without a Warrant: Under the current MLAT process as followed in the United States, a judge in the U.S. must issue a warrant based on probable cause in order for a U.S. company to turn over content to a foreign government. This requirement protects individuals abroad by requiring their governments to meet certain standards when seeking information held by U.S. companies. The Amendment seeks to remove this essential safeguard for a judicial warrant. The Amendment does not require requests from foreign governments to be based on a prior judicial authorization, since a large number of countries (including India) do not always require judicial orders for such orders.[6]

Allows Real Time Surveillance by Foreign Governments: American privacy rights activists have raised the concern that the Amendment would allow foreign governments to conduct ongoing surveillance by asking American companies to turn over data in real time. The requirements that the foreign governments would have to fulfill to execute such an order are less stringent than those which have to be fulfilled by the American security agencies if they want to indulge in similar activities. When the U.S. government wants to conduct real-time surveillance, it must comply with the Wiretap Act, which imposes heightened privacy protections.[7] The court orders for this purpose also require minimization of irrelevant information, are strictly time-limited, only available for certain serious crimes, etc.[8] In Indian law any such request, apart from being time limited and being available only for certain specified purposes, also has to satisfy that interception is the only reasonable option to acquire such information.

Process to determine which countries can make demands is not credible: Under the Amendment, the Attorney General and the Secretary of State, would decide whether the laws and practices of the foreign government adequately meet the standards set forth in the legislation for entering into a bilateral agreement. Their decisions would not be liable to be reviewed by a court or in any administrative procedure. They could make their determinations based on information which is not available to the public and the criteria for making the decision are vague and flexible. Further these criteria have been described as “factors” and not “requirements”[9] so that even if some of them are not satisfied, the certification process can still be completed.

Companies do not have the resources to determine if a request complies with the terms of the agreement: The Amendment does not provide any oversight to ensure that technology companies are only turning over information permitted in a specific bilateral agreement. For example, a bilateral agreement may permit disclosure of information only in response to orders that do not discriminate on the basis of religion, however, it may not be possible for the companies receiving the request to determine whether a particular request complies with that condition or not. The Amendment does not require that individual companies put in place requisite processes to weed out requests that may be non compliant with the provisions of the agreement; nor are there periodic audits to ensure that companies are properly responding to foreign government information requests.[10]

Non compliance with Human Rights Standards: Under international human rights law, governments are allowed to conduct surveillance only based on individualized and sufficient suspicion; authorized by an independent and impartial decision-maker; necessary and proportionate to achieve a legitimate aim, including by being the least intrusive means possible.[11] However the mechanism proposed by the Amendment falls woefully short of these standards.[12]

One must not lose sight of the fact that most of the criticisms of the proposal that have been discussed above have been made in the context of, and based on the standards of privacy protection that are available to American citizens. If we look at it from an Indian perspective most of those protections are not available to Indian citizens in any case since independent judicial oversight is not a sine qua non for access to information by the security agencies in India. Although the Amendment leaves open the question of how a request would be made by the foreign government to the individual Agreements, it may be safe to assume that were India to enter into such an Agreement with the United States, it would require the orders for access to comply with the standards laid down under Indian law before the relevant authorities send the request to the US based data controllers. At the least, this would ensure that the rights of Indian citizens currently guaranteed under Indian law, howsoever flawed they might be, would in all likelihood be safeguarded as per Indian law.

Certification from the Attorney General to the US Congress

In the above background if India were to enter into the agreement with the U.S Government apart from actually negotiating and signing that Agreement, the Indian government will also have to ensure (if the Amendment is passed) that the Attorney General of the United States, with the concurrence of the Secretary of State gives a certificate to the Congress that Indian law satisfies the requirements set forth in the proposed section XXXX of Title 18.

It must be kept in mind that if the negotiations between India and the United States in this regard reach such a mature stage that the certification from the Attorney General is required, then that would mean that there is enough political will on both sides to ensure that such an arrangement actually comes to fruition. In this context it would not be unfair to assume that the Attorney General may have a slight bias towards opining that Indian laws do conform to the requirements of the Amendment, as the Attorney General would want to support the decision taken by the administration, and our analysis shall have a similar bias in order to be more contextual.

The certification would, inter alia, contain the determination of the Attorney General:

That the domestic law of India affords robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the Indian government that will be subject to the agreement.It should be noted that the Amendment specifies various factors that should be taken into account to reach such a determination, which include whether the Indian government:

(i) has adequate substantive and procedural laws on cybercrime and electronic evidence, as demonstrated through accession to the Budapest Convention on Cybercrime, or through domestic laws that are consistent with definitions and the requirements set forth in Chapters I and II of that Convention; Although India is not a signatory to the Budapest Convention the Information Technology Act, 2000 (which is the main legislation dealing with cybercrime) has penal provisions which have borrowed heavily from the provisions of the Budapest Convention.

demonstrates respect for the rule of law and principles of nondiscrimination;

The provisions of Article 14 as well as Article 21 of the Constitution of India demonstrates that the legal regime in India is committed to the rule of law and principles of non discrimination.

adheres to applicable international human rights obligations and commitments or demonstrates respect for international universal human rights (including but not limited to protection from arbitrary and unlawful interference with privacy; fair trial rights; freedoms of expression, association and peaceful assembly; prohibitions on arbitrary arrest and detention; and prohibitions against torture and cruel, inhuman, or degrading treatment or punishment);

India is a signatory to a number of international human rights conventions and treaties, it has acceded to the International Covenant on Civil and Political Rights (ICCPR), 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965, with certain reservations, signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 with certain reservations, Convention on the Rights of the Child (CRC), 1989 and signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984. Further the right to life guaranteed under Article 21 of the Constitution takes within its fold a number of human rights such as the right to privacy. Freedom of expression, right to fair trial, freedom of assembly, right against arbitrary arrest and detention are all fundamental rights guaranteed under the Constitution of India.

has clear legal mandates and procedures governing those entities of the foreign government that are authorized to seek data under the executive agreement, including procedures through which those authorities collect, retain, use, and share data, and effective of oversight of these activities;

India has a number of legislations which govern the interception and request for information such as the Information Technology Act, 2000, the Indian Telegraph Act, 1885, Code of Criminal Procedure, 1973, etc. which put in place mechanisms governing the authorities and entities which can ask for information.

has sufficient mechanisms to provide accountability and appropriate transparency regarding the government’s collection and use of electronic data; and

The Right to Information Act, 2005 provides the citizens the right to access any public document unless access to the same is prohibited due to the specific exemptions provided in the Act. It may be noted here that the provisions of the Right to Information Act are often frustrated by the bureaucracy by using exceptions such as “national security”, but for the purposes of this write up we are already assuming a bias towards fulfillment of these factors/conditions and therefore as long as there is even some evidence of compliance, the conditions will be considered as fulfilled by the Attorney General for the purposes of his certificate.

demonstrates a commitment to promote and protect the global free flow of information and the open, distributed, and interconnected nature of the Internet.

The Telecom Regulatory Authority of India, which regulates telecom services in India has also issued the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 which prohibits service providers from charging discriminatory tariffs for data services on the basis of content.

Other than Indian law, the certificate from the Attorney General will also have to certify certain issues which would have to be addressed in the bilateral agreement itself, viz.:

That the Indian government has adopted appropriate procedures to minimize the acquisition, retention, and dissemination of information concerning United States persons subject to the agreement.
That the agreement requires the following with respect to orders subject to the agreement:

(i) The Indian government may not intentionally target a United States person or a person located in the United States, and must adopt targeting procedures designed to meet this requirement;

(ii) The Indian government may not target a non–United States person located outside the United States if the purpose is to obtain information concerning a United States person or a person located in the United States;

(iii) The Indian government may not issue an order at the request of or to obtain information to provide to the United States government or a third-party government, nor shall the Indian government be required to share any information produced with the United States government or a third-party government;

(iv) Orders issued by the Indian government must be for the purpose of obtaining information relating to the prevention, detection, investigation, or prosecution of serious crime, including terrorism;

(v) Orders issued by the Indian government must identify a specific person, account, address, or personal device, or any other specific identifier as the object of the Order;

(vi) Orders issued by the Indian government must be in compliance with the domestic laws of India, and any obligation for a provider of an electronic communications service or a remote computing service to produce data shall derive solely from Indian law;

(vii) Orders issued by the Indian government must be based on requirements for a reasonable justification based on articulable and credible facts, particularity, legality, and severity regarding the conduct under investigation;

(viii) Orders issued by the Indian government must be subject to review or oversight by a court, judge, magistrate, or other independent authority;

(ix) Orders issued by the Indian government for the interception of wire or electronic communications, and any extensions thereof, must be for a fixed, limited duration; interception may last no longer than is reasonably necessary to accomplish the approved purposes of the order; and orders may only be issued where that same information could not reasonably be obtained by another less intrusive method;

(x) Orders issued by the Indian government may not be used to infringe freedom of speech;

(xi) The Indian government must promptly review all material collected pursuant to the agreement and store any unreviewed communications on a secure system accessible only to those trained in applicable procedures;

(xii) The Indian government must segregate, seal, or delete, and not disseminate material found not to be information that is, or is necessary to understand or assess the importance of information that is, relevant to the prevention, detection, investigation, or prosecution of serious crime, including terrorism, or necessary to protect against a threat of death or seriously bodily harm to any person;

(xiii) The Indian government may not disseminate the content of a communication of a U.S. person to U.S. authorities unless the communication (a) may be disseminated pursuant to Section 4(a)(3)(xii) and (b) relates to significant harm, or the threat thereof, to the United States or U.S. persons, including but not limited to crimes involving national security such as terrorism, significant violent crime, child exploitation, transnational organized crime, or significant financial fraud;

(xiv) The Indian government must afford reciprocal rights of data access to the United States government;

(xv) The Indian government must agree to periodic review of its compliance with the terms of the agreement by the United States government; and

(xvi) The United States government must reserve the right to render the agreement inapplicable as to any order for which it concludes the agreement may not properly be invoked.

Conclusion

It is clear from the discussion above that the proposed Amendment is a controversial piece of legislation which will affect the way law enforcement is carried out in the internet. While there is no doubt that proposing an alternate mechanism to the existing inefficient MLAT structure is definitely the need of the hour, whether the mechanism proposed in the proposed Amendment, with all the negative implications on privacy, is the right way forward is far from certain.

As for the three questions that we had sought out to answer in the beginning of this paper, we would not like to say that Indian law definitely conforms to all the requirements listed in the Amendments, but it can safely be said that it appears that if the governments of India and the United States so wish, it would not be difficult for the Attorney General of the United States to be able to give a certification to the Congress as required in the proposed Amendment.

The other two questions as to whether India should try to opt for such an arrangement if given a chance and what would be the consequence for its people are somewhat related, in the sense that it is only by examining the consequences on its citizens that we will arrive at an answer as to whether India should opt for such an arrangement or not. The level of protections offered to Indian citizens under India law in terms of protection of their private data from government surveillance is lower than that which is offered to American citizens under American law. The growing influence of the internet is changing the citizen-state dynamic giving rise to increasing incidents where the government has to approach private actors for permission in order to carry out their governmental functions of providing security. This is because more and more private data of individual citizens is being uploaded on to the internet and controlled by private actors such as telecom companies, social media sites, etc. and the governments have to approach these private actors in case they want access to this information. The fact that the government has to approach private actors to get access to data gives private citizens some leverage to ask for better privacy protections in the context of state surveillance.

Although this proposed Amendment may not affect the local surveillance laws in India, however it would definitely have an effect on the way that citizens’ data is protected and accessed by the government.

[1] Explanation by the Assistant Attorney General attached to the proposed Amendment.

[2] https://www.justsecurity.org/24145/u-s-u-k-data-sharing-treaty/

[3] https://www.justsecurity.org/24145/u-s-u-k-data-sharing-treaty/

[4] http://spicyip.com/2012/04/clash-of-courts-indian-district-court.html

[5] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[6] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[7] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[8] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[9] https://www.justsecurity.org/32529/foreign-governments-tech-companies-data-response-jennifer-daskal-andrew-woods/

[10] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[11] International Covenant on Civil and Political Rights, art. 17, Dec. 19, 1966, U.N.T.S 999, cf. https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

[12] https://www.aclu.org/letter/aclu-amnesty-international-usa-and-hrw-letter-opposing-doj-proposal-cross-border-data-sharing

For more details visit https://cis-india.org/internet-governance/blog/mlats-and-the-proposed-amendments-to-the-us-electronic-communications-privacy-act

MLAT Report

Admin — 2018-09-27T15:53:24Z

For more details visit https://cis-india.org/internet-governance/files/mlat-report

Misuse of Surveillance Powers in India (Case 1)

pranesh — 2013-12-06T09:37:24Z

In this series of blog posts, Pranesh Prakash looks at a brief history of misuse of surveillance powers in India. He notes that the government's surveillance powers have been freqently misused, very often without any kind of judicial or political redressal. This, he argues, should lead us as concerned citizens to demand a scaling down of the government's surveillance powers and pass laws to put it place more robust oversight mechanisms.

Case 1: Unlawful Phone-tapping in Himachal Pradesh

In December 2012, the government changed in Himachal Pradesh. The Bharatiya Janata Party (BJP) went out of power, and the Indian National Congress (INC) came into power. One of the first things that Chief Minister Virbhadra Singh did, within hours of taking his oath as Chief Minister on December 25, 2012, was to get a Special Investigation Team (SIT) to investigate phone tapping during the BJP government’s tenure.

On December 25th and 26th, 12 hard disk drives were seized from the offices of the Crime Investigation Department (CID) and the Vigilance Department (which is supposed to be an oversight mechanism over the rest of the police). These hard disks showed that 1371¹ phone numbers were targetted and hundreds of thousands of phone conversations were recorded. These included conversations of prominent leaders “mainly of” the INC but also from the BJP, including three former cabinet ministers and close relatives of multiple chief ministers, a journalist, and many senior police officials, including the Director General of Police.

Violations of the Law

While the law required the state’s Home Secretary to grant permission for each person that was being tapped, the Home Secretary had legitimately only granted permission in 34² cases. This leaves over a thousand cases where phones were tapped illegally, in direct violation of the law. The oversight mechanism provided in the law, namely the Review Committee under Rule 419A of the Indian Telegraph Rules, was utterly powerless to check this. Indeed, the internal checks for the police, namely the Vigilance Department, also seems to have failed spectacularly.

Every private telecom company cooperated in this unlawful surveillance, even though the people who were conducting it did so without proper legal authority. Clearly we need to revise our interception rules to ensure that these telecom companies do not cooperate unless they are served with an order digitally signed by the Home Secretary.

While all interception recordings are required to be destroyed within 6 months as per Rule 419A of the Indian Telegraph Rules, that rule was also evidently ignored and conversations going back to 2009 were being stored.

Concluding Concerns

What should concern us is not merely that such a large number of politicians/police officers were tapped, but that no criminal charges were brought about on the basis of these phone taps, indicating that much of it was being used for political purposes.

What should concern us is that the requirement under Section 5 of the Indian Telegraph Act, which covers phone taps, of the existence of a “public emergency” or endangerment of “public safety”, which is a prerequisite of phone taps as per the law and as emphasised by the Supreme Court in 1996 in the PUCL judgment, were blatantly ignored.

What should concern us is that it took a change in government to actually uncover this sordid tale.

1385 according to a Hindustan Times report [1]: http://indiatoday.intoday.in/story/himachal-pradesh-police-registers-first-fir-in-phone-tapping-scandal/1/285698.html↩
A Zee News report states 34 while it’s 171 according to a Mail Today report ↩

For more details visit https://cis-india.org/internet-governance/blog/misuse-surveillance-powers-india-case1