Centre for Internet and Society

CYFY 2014 Event Programme

praskrishna — 2014-10-13T06:59:09Z

For more details visit https://cis-india.org/internet-governance/blog/cyfy-2014-event-programme.pdf

Training for Internet Governance Activists

praskrishna — 2014-11-07T00:38:55Z

Geetha Hariharan attended a training session for Internet rights activists in Cambridge, organised by Global Partners Digital, UK on September 23 and 24, 2014.

Day 1. Final session was on privacy, surveillance and data protection by Mike Rispoli and Alexandrine Pirlot de Corbion from PI. Got caught up in the discussion, so no notes from that. Of interest is session on communication by Mike - a nine-step process he's outlined (in bold at the very end), and the problem tree and stakeholder mapping approach that Alex spoke of.

Day 2. Great session on the ITU and on lobbying by lobbyist Matthew McDermott of Access Partners. The ITU is a complex beast with activity at multiple levels and different levels of effectiveness at different levels. From conversations, I gathered that any effective strategy for any policy change in Internet governance at the ITU will involve lobbying national governments, and then at sub-regional, regional and global levels.

Day 3. Tim Maurer's session on cyber security. Issues of terminology and politicisation discussed. Also info on in what forums cyber security debate is taking place. The Netherlands is hosting the Global Conference on Cyber Space in April 2015.

Resources

Unedited notes from the meeting can be downloaded here (Zip File, 739 Kb)

For more details visit https://cis-india.org/internet-governance/news/training-for-internet-governance-activists

Big Data and Positive Social Change in the Developing World

praskrishna — 2014-10-01T03:49:58Z

For more details visit https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change.pdf

CPDP 2015

praskrishna — 2014-09-30T09:52:52Z

The eighth international conference on computers, privacy and data protection will be held in Brussels from January 21 to 23, 2015. The Centre for Internet and Society is a moral supporter of CPDP.

CPDP is a non-profit platform originally founded in 2007 by research groups from the Vrije Universiteit Brussel, the Université de Namur and Tilburg University and has grown into a platform carried by 20 academic centers of excellence from the EU, the US and beyond. As a world-leading multidisciplinary conference CPDP offers the cutting edge in legal, regulatory, academic and technological development in privacy and data protection. Within an atmosphere of independence and mutual respect, CPDP gathers academics, lawyers, practitioners, policy-makers, computer scientists and civil society from all over the world in Brussels offering them an arena to exchange ideas and discuss the latest emerging issues and trends. This unique multidisciplinary formula has served to make CPDP one of the leading data protection and privacy conferences in Europe and around the world. CPDP2014 welcomed 854 guests including 343 speakers from 43 different countries dispersed over more than 60 panels which took place during three full days. It attracted another 500 people in several public evening events including debates, a pecha kucha evening and an art exhibition. CPDP2015 aims to repeat the success of last year and will stage panels within the following main topical themes: Data Protection Reform: European and Global Developments, Mobility (mobile technologies, wearable technologies, border surveillance), EU-US developments concerning the regulation of government surveillance, Health, privacy and data protection, Love and lust in the digital age, Internet governance and privacy.

In 2015 CPDP will take place from January 21 to 23, 2015 in the Halles de Schaerbeek, Brussels, Belgium. Registrations are already open: http://www.cpdpconferences.org/Registration.html. For more details see here.

For more details visit https://cis-india.org/internet-governance/news/cpdp-2015

Fighting battles online

praskrishna — 2014-09-16T04:19:55Z

Internet policy maverick Sunil Abraham feels that accessibility is key to democratising the Internet space.

The article by Nikhil Varma was published in the Hindu on September 2, 2014.

Forty-year-old Sunil Abraham essays many roles, of a social entrepreneur, free software advocate and as policy director of the Bangalore-based Centre for Internet and Society that focuses on accessibility, access to knowledge, internet governance, telecom and digital humanities.

When he finished his engineering degree and was job hunting in Bangalore, the internet was an entity he had heard about, but never worked on.

“Family constraints meant that I had to look for jobs that paid me more than the salaries offered by industries for a 9 to 6 job. I decided to knock doors in the non profit sector. I met T. Pradeep, who ran Samuha, an NGO in Northern Karnataka that focused on integrated rural development.

Sunil says, “He offered me a job provided I learnt to work on the Internet. My job was to set up the organisation’s website. By 1998, I became the head of the IT department. Many spinoffs from Samuha were also becoming very successful. Pradeep gave us Rs.14 lakh and asked us to spin off and create a new organisation called Mahiti, with a mandate to serve non profits and provide them with affordable IT services. I just came into the picture to fulfil someone else’s dream. We provided email services to non-profit organisations at affordable rates. We ran a bulletin board service and also offered a free webpage for select NGOs.”

In 99, Sunil was offered an Ashoka fellowship. “It is a US non-profit that that supports social entrepreneurs. The idea that won me the fellowship was exploring the democratic potential of the internet. It is very similar to the work that I do at the CIS. The internet remains a tool that can be used for empowering and disempowering purposes that could have hegemonic implications for society. I also worked with the UNDP, after giving a speech about free and open software at one of their meetings. I was hired as a consultant.”

Till June 07’, Sunil worked with the UNDP, managing the open-source network spanning 42 countries. “I cut my policy teeth in the UN and learnt to work with governments and had a better idea of free software and open content. I made a lot of contacts in the course of my work.”

It was at the end of the UN stint that philanthropist Anurag Dikshit decided to set up the Centre for Internet and society in India and Sunil decided to take up the assignment. “Anurag has been a great help from the start. His funds have been very vital for the organization.”

CIS deals with a host of issues, ranging from making the internet and mobile phones disabled friendly to creating more Wikipedia pages in Indic languages and enhancing internet penetration in rural India. The organization is also

With government surveillance taking on newer dimensions in the internet Sunil says, “Surveillance is like adding salt in cooking. It is essential in small quantities, but counter productive even if it is slightly in excess. While surveillance may be a good idea to keep public servants occupying high office under scrutiny, employing mass surveillance on everybody may not work well.”

He adds, “A rational approach is needed. We believe that privacy is inversely proportional to the power a person yields, while transparency is directly proportional to the power a person yields.”

Sunil is deeply apprehensive about some of the steps governments take to stem the flow of information. “A couple of years ago, the government had banned text messages beyond a certain limit to prevent rumours from circulating. This resulted in people moving to Whatsapp, which is more difficult to monitor. The government agencies ended up being the actual losers. The more unrestricted surveillance, better chances that it could be compromised.”

Another vital issue that plagues our times are the limits to free speech and expression. “Different countries have different sets of laws and traditions that govern all aspects of life. We have not managed to arrive on a consensus on food habits, mankind is a long way from developing a uniform policy about internet usage. In India, there are some limits on free speech.”

He says, “If something is illegal offline, it is bound to illegal online. I do not think we need specific laws to police the internet. If you try to ban something, it may end up getting more consumed. It happened in the case of Wendy Doniger’s book being withdrawn by Penguin. The sales of the book skyrocketed when it was published by another publisher.”

Sunil adds, “It is an important that good laws are made and these laws have been enforced properly. Enforceability must also be taken into account during framing laws.”

A scanned version of the article published in the newspaper can be found below:

For more details visit https://cis-india.org/internet-governance/news/the-hindu-nikhil-varma-september-2-2014-fighting-battles-online

Roundtable on Indian Privacy Law and Policy

bhairav — 2014-12-27T14:18:16Z

This event was hosted by the Centre for Law and Development of the National University of Advanced Legal Studies (NUALS) in Kochi. It was attended by members of the faculty of NUALS, some students from the 2nd year, 3rd year, 4th year, and 5th year.

The meeting began with a talk by Bhairav Acharya on the origin of privacy law, its jurisprudential evolution, and the current context in which privacy is being debated in India and around the world.

Bhairav began by talking about the nature of privacy law around the world. Privacy has, until recently, never been a right in English common law. Indeed, the tort of invasion of privacy is also relatively incomplete. Privacy is protected through other torts, including the torts of nuisance, trespass, and others. European treaty requirements have foisted a right to privacy upon the British legal system; the contours of this right remain unclear.

American courts, on the other hand, have been more receptive to claims of the right to privacy. There is much in the American political and legal tradition that has contributed to the easy acceptability of privacy claims. Not least among these are the strong emphasis on the individual as the fundamental unit of governance and sovereignty, and the American libertarian tradition of autonomy.

Bhairav then spoke of the right to privacy in India. Early cases in the Supreme Court of India see privacy as a negotiation between the liberties of citizens and the power of the state. In a legal tradition deeply influenced by colonialism, Indian courts readily accepted claims against physical police surveillance and other related rights in the criminal justice process – public rights against the state that were once denied to Indian subjects of colonial rule, but held short of viewing privacy as a necessary individual protection against society. This has resulted in dichotomous privacy jurisprudence.

Bhairav then talked about the contexts in which privacy claims arise in India today. Specifically, he spoke about increasingly sophisticated surveillance techniques and large-scale personal data collection and processing. There are many complexities in both these fields and a lot of time and questions were spent going over them. Surveillance is older than the nation-state; privacy law does not seek the end of surveillance, but only its optimal use. There are many kinds of surveillance, the contemporary debate deals solely with wiretapping and electronic surveillance. Privacy law cannot be blind to the many other kinds of surveillance, including old-fashioned physical surveillance on the road.

Data collection, too, cannot be ended, nor should it for it forms the basis of modern commerce and is tied to India’s economic growth. There were questions and discussion on ‘big data’, data mining, analytics, business models, and other related areas. In India, however, in the absence of an innovative IT industry, the dominant business model is of receiving foreign personal data, usually of Europeans and Americans, to provide cheap processing services. This model depends entirely on comparatively lower Indian wages. Hence, it is not surprising that the first personal data protection rules issued by the Indian government in 2011 applied solely to foreign data that was outsourced to India.

Bhairav then introduced the 2011 draft Right to Privacy Bill that was proposed by the Department of Personnel and Training of the Indian government, as well as the Personal Data Protection Rules issued under the Information Technology Act, 2000. These measures were studied clause-by-clause.

Similarly, Indian law in respect of communications surveillance was analysed in detail. The Indian Telegraph Act 1885, the Indian Telegraph Rules 1951 (including the amendments of 1961, 1999, 2007, and 2014) were looked at in detail. These laws were compared to the Indian Post Office Act 1898 and the Information Technology Act 2000. The 1968 report of the Law Commission of India that examined the wiretapping power and suggested possible overreach was also examined.

Bhairav reviewed Indian law in respect of wiretapping. All Supreme Court case law, especially the cases of Hukum Chand and Peoples Union for Civil Liberties, were analysed. Finally, the group looked at how the legal principles applicable to wiretapping have been extended to electronic and Internet surveillance. Over here, the group studied the two sets of 2011 Rules under the IT Act that enable Internet and email surveillance of both content and metadata.

After a lunch break, the group spoke about possible models for privacy regulation and protection in India. In respect of surveillance, a lot of time was spent discussing the merits and demerits of judicial warranting of surveillance, as opposed to executive authorisations. The consensus of the group, with a few exceptions, was that judicial warranting would not be a suitable model for Indian surveillance, due to several systemic weaknesses. The group also rejected several of the principles proposed by Justice A. P. Shah in the 2012 Report that was commissioned by the Planning Commission.

After a discussion on legislative models, the group discussed, clause-by-clause, the CIS proposal on privacy that was read through by Bhairav. This discussion lasted several hours, and covered many areas.

For more details visit https://cis-india.org/internet-governance/blog/roundtable-on-indian-privacy-law-and-policy

September 2014 Bulletin

praskrishna — 2015-01-02T01:26:03Z

Welcome you to the ninth issue of the newsletter (September 2014).

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

Highlights

Nishant Shah was part of a working group writing a white paper on big data and social change, over the last six months. This white paper produced by a group of activists, researchers and data experts was published by Oxford.
As part of the Pervasive Technologies project Maggie Huang interviewed Semiconductor Industry Professionals in Taiwan on the trends and changes in technology and understanding mobile chip manufacturing.

CIS entered into a memorandum of understanding with the Andhra Loyola College for a period of 5 years to enhance Telugu Wikipedia through increased contributions to Wikipedia and make it available under free license.
CIS-A2K signed a memorandum of understanding with Nirmala Institute of Education, Goa to enhance digital literacy in Konkani in the education sector across Goa.
Tejaswini Niranjana and Tanveer Hasan wrote a report on the workshop Developing Digital Open Knowledge Resources in Indian Languages for which CIS-A2K was one of the organizers.

CIS joined the Dynamic Coalition for Platform Responsibility towards creating due diligence recommendations for online platforms.
CIS organized a workshop on an evidence-based framework for intermediary liability at the IGF held in Istanbul on September 3, 2014. Jyoti Panday coordinated the workshop in collaboration with Stanford Centre for Internet & Society.
Elonnai Hickok contributed a thematic chapter on Intermediary Liability and Surveillance in the GISWatch Report.
The Supreme Court of India revised the law on electronic evidence in the case of Anvar v. P. K. Basheer. Bhairav Acharya has done an analysis on this. It was published by Law and Policy in India and subsequently mirrored on our website.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The updated draft is being reviewed by the Office of the Chief Commissioner for Persons with Disabilities. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA and eSpeak

Monthly Update

Work Report for September (Suman Dogra; August 31, 2014).

Blog Entry

Study on Budget Allocation and Expenditure by States on Schemes for Persons with Disabilities (Anandhi Viswanathan; September 29, 2014).

Access to Knowledge

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

Pervasive Technologies

Interviews with Semiconductor Industry Professionals in Taiwan: Trends and Changes in Technology (Maggie Huang; September 26, 2014).
Interviews with Semiconductor Industry Professionals in Taiwan: Understanding Mobile Chip Manufacturing (Maggie Huang; September 30, 2014).

Wikipedia

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

Event Report

Developing Digital Open Knowledge Resources in Indian Languages (Tejaswini Niranjana and Tanveer Hasan; September 30, 2014). The workshop was organized by Krantijyoti Savitribai Phule Women's Studies Centre, University of Pune (KSPWSC), Centre for Indian Languages in Higher Education (CILHE), Tata Institute of Social Sciences, Mumbai and CIS-A2K.

Blog Entries

NIE Steps in to Grow Konkani Wikipedia (T. Vishnu Vardhan; September 6, 2014).
Expanding the World of Telugu Wikipedia - CIS-A2K and ALC join hands (T. Vishnu Vardhan and Rahmanuddin Shaik; September 17, 2014).

The following were published in August and mirrored on our website in September:

OpenGLAM at Wikimania 2014 (Subhashish Panigrahi; OpenGLAM; August 27, 2014).
We are Wikipedia (By Subhashish Panigrahi; Wikimedia Deutschland; August 25, 2014). Wikimedia Deutchland has included a paragraph about WeAreWikipedia on their blog.

Event Organized

Kannada Wikipedia Workshop for Students (Tumkur University; Tumkur; September 27, 2014). Dr. U.B.Pavanaja conducted the workshop. Fifty people participated in the event.

Event Co-organized

Kannada Wikipedia Workshop (Organized by Basaveshwara Science College and CIS-A2K; September 20, 2014). Dr. U.B.Pavanaja conducted the workshop.

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Implementation of IT in Kannada (Prajavani; September 21, 2014).
105 Kannada books released under Creative Commons (Shyam Prasad S; Bangalore Mirror; September 29, 2014).

Participation in Events

State Level Seminar on "Odia alphabet and order teaching in primary education" (Co-organized by Institute of Odia Studies and Research and Odia Bhasa Pratisthan, Bhubaneswar; September 14, 2014). Subhashish Panigrahi participated in the event and discussed about the applied aspects of Odia language in the context of primary education and need for reforms in the total number and order in the character-set citing problems with computer and internet.
Publishing Next (Organized by CinnamonTeal Publishing; Goa; September 19 - 20, 2014). T. Vishnu Vardhan was a panelist at the 5th edition of Publishing Next the annual conference on the future of publishing. He spoke on Open Access, Copyright and Copyleft.

Internet Governance

Privacy

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

Note: The White Paper below is not a part of the SAFEGUARD project .

White Paper

Big Data and Positive Social Change in the Developing World: A White Paper for Practitioners and Researchers (Nishant Shah; Oxford: Oxford Internet Institute; September 30, 2014). Nishant Shah was part of a group of activists, researchers and data experts in producing this white paper.

Analysis

Anvar v. Basheer and the New (Old) Law of Electronic Evidence (Bhairav Acharya; September 30, 2014).

Announcement

CIS joins the Dynamic Coalition for Platform Responsibility (Jyoti Panday; September 23, 2014).

Blog Entries

The Aadhaar Case (Vipul Kharbanda; September 5, 2014).
UID: A Data Subject's Registration Tale (Mukta Batra; September 11, 2014).
Biometrics: An 'Angootha Chaap' nation? (Mukta Batra; September 19, 2014).
UID and NPR: Towards Common Ground (September 19, 2014): This is an anonymous post.

CIS @ IGF

The ninth Internet Governance Forum ("IGF2014") was hosted by Turkey in Istanbul from September 2 to 5, 2014. A BestBits pre-event, which saw robust discussions on renewal of the IGF mandate, the NETmundial Initiative and other live Internet governance processes, flagged off a week of many meetings and sessions. CIS participated in multiple workshops and panels:

WS112: Implications of post-Snowden Internet localization proposals (Organized by Center for Democracy and Technology, Istanbul, September 2, 2014). Sunil Abraham was a speaker at this IGF workshop.
WS63: Preserving a universal Internet: Costs of fragmentation (Organized by OECD and Centre for International Governance Innovation; September 3, 2014). Sunil Abraham was a speaker at this IGF workshop.
WS2 Mobile, Trust and Privacy (Organized by GSM Association; September 4, 2014). Sunil Abraham was a speaker.
Transparency reporting as a tool for Internet governance (Organized by Global Network Initiative; September 3, 2014). Pranesh Prakash was a panelist.
WS149: Aligning ICANN policy with the privacy rights of users (Organized by Yale ISP; September 5, 2014). Pranesh Prakash was a moderator.

Other Participation

Launch of the GISWatch Report (Association for Progressive Communications and the Humanist Institute for Cooperation with Developing Countries (Hivos). Elonnai Hickok contributed a thematic chapter on Intermediary Liability and Surveillance to this report.

Participation in Events

Re-Wiring Women's Rights Debates in the Digital Age (Organized by IT for Change in partnership with Kutch Mahila Vikas Sangathan and ANANDI; September 13 - 14, 2014). Rohini Lakshane was a speaker.
Workshop on Enabling Information Systems for Local Governance (Organized by Jamia Milla Islamia, Tagore Hall; New Delhi; September 18, 2014). Sunil Abraham was a participant.
National Consultation on Media Law (Organized by Law Commission of India and the National University, Delhi; India Habitat Centre, New Delhi; September 27 - 28, 2014). Nehaa Chaudhari, Jyoti Panday and Anubha Sinha participated in the event.

Upcoming Event

CPDP 2015 : The eighth international conference on computers, privacy and data protection will be held in Brussels from January 21 to 23, 2015. CIS is a moral supporter of CPDP.

News & Media Coverage

CIS gave its inputs to the following media coverage:

Fighting battles online (Nikhil Varma; The Hindu; September 2, 2014).
Colonial yoke or bureaucratic insouciance? (Vidya Venkat with additional reporting by K.T. Sangameswaran in Chennai; The Hindu; September 7, 2014).
Social Media Aids Rescue Efforts in Flood-Hit Kashmir (Anjana Pasricha, September 10, 2014).
Google aims to win 40% of India with Android One (Varun Aggarwal; Economic Times; September 11, 2014).

Digital Humanities

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

Event Organized

Consultation on New Figures of Learning in the Digital Context (CIS, Bangalore, September 22, 2014). P.P. Sneha wrote a report on the event.

About CIS

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

Follow us elsewhere

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

Support Us

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

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

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

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

Colonial yoke or bureaucratic insouciance?

praskrishna — 2014-09-08T04:21:23Z

‘Blame the British’ is an oft-invoked argument when the subject of India’s outdated laws comes up for discussion. But 68 years since Independence, can we still afford to parrot that old line?

The article by Vidya Venkat (With additional reporting by K.T. Sangameswaran in Chennai) was published in the Hindu on September 7, 2014. Pranesh Prakash gave his inputs.

Moiz Tundawala, a doctoral researcher in law at the London School of Economics and Political Science, feels that it is unfair to blame just the colonial hangover when several opportunities for reforming the legal system in India have been wasted by bureaucrats and judges. He points to Section 377 of the Indian Penal Code (IPC) as an example.

“This law pronounces illegal carnal intercourse against the order of nature, making criminals of gays and transgender persons. But why was a progressive judgment of the Delhi High Court, which struck off this section, upturned later by the Supreme Court? If we continue to bear the burden of colonial era laws, we only have ourselves to blame,” he said.

Though the Constitution-making exercise in India was inspired by the British and other western systems, it was nevertheless an independent process. But the same did not happen with the laws in India that were handed down from the British, Mr. Tundawala said. He felt that several laws enacted in the post-colonial era smacked of a colonial mindset. “Take for instance laws such as the Terrorist and Disruptive Activities (Prevention) Act, the Unlawful Activities Prevention Act, or the Armed Forces Special Powers Act. All of them aim to control and subjugate a population with little regard for their democratic aspirations. So what this country needs is a radical overhaul of the judicial and criminal justice system.”

If we continue to bear the burden of colonial era laws, we only have ourselves to blame.

The Indian Telegraph Act, 1885, continues to presume the state to be the primary owner of telecommunications networks, though the sector was privatised long ago. “The provisions on surveillance in this Act are from a colonial era and are heavy-handed, allowing for spying even without a court warrant. Up until 1998, it spoke of ‘the Provinces’ in some provisions instead of ‘India,’” Pranesh Prakash, Policy Director, Centre for Internet and Society, said.

The Police Act, 1861, is another law that has often been criticised for perpetuating colonial-era institutional practices. Despite numerous commissions and Supreme Court orders advocating reform measures, progress in changing this law has been slow. Lawyer-activist Maja Daruwala, who heads the Commonwealth Human Rights Initiative, New Delhi, said those in establishment were very comfortable with the policing law and the power that it gave them. “When governments find it convenient to use policing as a means to hold down the population, why would they bother to amend it?”

Ms. Daruwala said the main fault lay with the definition of police duties and the overall structure and the spirit of the law itself. “The police in India are often accused of bias against certain communities, such as Dalits and tribal people. This is because the issue of need for diversity in policing in a democratic country such as India has not been addressed by the law. In the U.K., the design of the policing law changed gradually with the changing needs of the population, but this has not been the case here,” she said.

Section 124-A of the IPC on sedition is another provision in the statute book that is seen as promoting the colonial mindset. Several instances of the abuse of sedition law exist in independent India. In 2010, for instance, the BJP government in Chhattisgarh used the law against activist Binayak Sen for which he was imprisoned, only to be let off by the Supreme Court later which found him innocent. S. Prabakaran, Member, Bar Council of India, and president of the Tamil Nadu Advocates’ Association, said it was shameful that India continued to keep the law that was decried by none other than Mahatma Gandhi. “This law was brought in by the British to quell the Independence movement in India. Why have we not bothered to repeal it?”

Efforts to reform the criminal justice system have been fraught with challenges. The Justice Malimath committee, set up in 2000, had recommended reforms in the system, which were met with resistance from the human rights lobby. Cautioning the present government against any sweeping changes that would tinker with the basic structure of the law, V. Suresh, national general secretary, People’s Union for Civil Liberties, said: “The Malimath committee failed in its mission because it involved an effort to change the entire structure of the law itself, which upholds presumption of innocence, burden of proof on the state, and rules on admissible evidence, in order to improve conviction rates. No doubt, it was met with resistance by the legal fraternity as the idea was to do away with essential checks and balances in the legal system.”

For more details visit https://cis-india.org/internet-governance/news/vidya-venkat-the-hindu-september-7-2014-colonial-yoke-or-bureaucratic-insouciance

CIS@IGF 2014

geetha — 2014-10-08T10:31:47Z

The ninth Internet Governance Forum (“IGF2014”) was hosted by Turkey in Istanbul from September 2 to 5, 2014.

A BestBits pre-event, which saw robust discussions on renewal of the IGF mandate, the NETmundial Initiative and other live Internet governance processes, flagged off a week of many meetings and sessions. At IGF2014, the ICANN-led processes of IANA transition and ICANN accountability found strong presence. Human rights online, access and net neutrality were also widely discussed. Centre for Internet and Society, India participated in multiple workshops and panels.

Workshops and Panel Discussions

WS206: An evidence-based framework for intermediary liability
CIS organized a workshop on developing an evidence-based framework for intermediary liability in collaboration with the Stanford Center for Internet and Society. By connecting information producers and consumers, intermediaries serve as valuable tool for growth and innovation, and also a medium for realisation of human rights. The workshop looked to a concerted approach to understanding intermediaries’ impact on human rights demands our urgent attention. Jyoti Panday of CIS was contributed to the workshop’s background paper and organisation. Elonnai Hickok of CIS was a speaker. At this workshop, a zero-draft of international principles for intermediary liability was released. The zero-draft is the interim outcome of an ongoing, global intermediary liability project, undertaken by CIS in collaboration with Article 19 and Electronic Frontier Foundation. See the video.

WS112: Implications of post-Snowden Internet localization proposals
Organised by ISOC and Center for Democracy and Technology, this panel questioned the distinctions between Internet-harmful and Internet-beneficial Internet and data localization. As a speaker at this workshop, Sunil Abraham of CIS identified state imperatives for Internet localization, such as taxation, network efficiency and security. See video.

WS63: Preserving a universal Internet: Costs of fragmentation
Internet and Jurisdiction Project organized this workshop to explore potential harms to Internet architecture, universality and openness as a result of Internet balkanisation. Sunil Abraham was one of the speakers.

WS2: Mobile, trust and privacy
Organised by GSMA, this panel discussed methods, benefits and harms of use of mobile transaction generated information and data. Sunil Abraham was a speaker. See video.

WS188: Transparency reporting as a tool for Internet governance
This GNI workshop examined transparency reporting by Internet intermediaries and companies, and sought to identify its strengths and shortcomings as a tool for Internet governance. Pranesh Prakash of CIS was a speaker. See video.

WS149: Aligning ICANN policy with the privacy rights of users
This Yale ISP panel examined ICANN’s obligations for data protection, in light of international standards and best practices. This discussion is particularly relevant as ICANN’s WHOIS policy, Registrar Accreditation Agreement, and other policies have attained the status of a global standard for the handling of personal data. Pranesh Prakash moderated this panel.

Other Participation

Launch of the GISWatch Report

Association for Progressive Communications (APC) and the Humanist Institute for Cooperation with Developing Countries (Hivos) released the Global Information Society Watch Report (GISWatch) on national and global mass surveillance. The report “explores the surveillance of citizens in today's digital age by governments with the complicity of institutions and corporations”. Elonnai Hickok of CIS contributed a thematic chapter on Intermediary Liability and Surveillance to this report.

For more details visit https://cis-india.org/internet-governance/blog/cis-at-igf-2014

Implications of post-Snowden Internet Localization Proposals

praskrishna — 2014-10-05T08:59:27Z

Sunil Abraham was a speaker in this workshop organized by Center for Democracy and Technology on September 2, 2014.

Following the 2013-2014 disclosures of large-scale pervasive surveillance of Internet traffic, various proposals to "localize" Internet users' data and change the path that Internet traffic would take have started to emerge.

Examples include mandatory storage of citizens' data within country, mandatory location of servers within country (e.g. Google, Facebook), launching state-run services (e.g. email services), restricted transborder Internet traffic routes, investment in alternate backbone infrastructure (e.g. submarine cables, IXPs), etc.

Localization of data and traffic routing strategies can be powerful tools for improving Internet experience for end-users, especially when done in response to Internet development needs. On the other hand, done uniquely in response to external factors (e.g. foreign surveillance), less optimal choices may be made in reactive moves.

How can we judge between Internet-useful versus Internet-harmful localisation and traffic routing approaches? What are the promises of data localization from the personal, community and business perspectives? What are the potential drawbacks? What are implications for innovation, user choice and the availability of online services in the global economy? What impact might they have on a global and interoperable Internet? What impact (if any) might these proposals have on user trust and expectations of privacy?

The objective of the session is to gather diverse perspectives and experiences to better understand the technical, social and economic implications of these proposals.

For full details see the IGF website.

For more details visit https://cis-india.org/internet-governance/news/implications-of-post-snowden-internet-localization-proposals

August 2014 Bulletin

praskrishna — 2014-10-04T06:09:57Z

Eighth issue of the newsletter (August 2014) below:

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

Highlights

CIS published a policy guide on Privacy in Healthcare that seeks to understand the legal regulations governing data flow in the health sector - particularly hospitals, and how these regulations are implemented.
Nehaa Chaudhari wrote two articles on the Karnataka Goondas Act in Spicy IP. The first one is an overview on the various provisions of the law and discusses the potential impact of the amendment . The second one is a note on legislative competence .

Andhra Loyola College and CIS entered into a memorandum of understanding (MoU) to steward the growth of Telugu Wikipedia and to make available free knowledge in Telugu to all Telugus across the globe.
In July 2014, the Department of Biotechnology and the Department of Science, Ministry of Science and Technology, Government of India released a draft Open Access Policy. CIS participated in discussions along with experts brought on board by the Drafting Committee to develop and review the open access policy. As a follow-up, CIS prepared comments to the draft Policy .

Anandini K. Rathore wrote a report on the second privacy and surveillance roundtable held in New Delhi at the India International Centre on July 4, 2014.
As part of its project on mapping cyber security experts in Asia with funding from Citizen's Lab, CIS interviewed Tibetan monkGyanak Tsering and Saumil Shah, security expert.

Published a white paper on content removal best practices and put it up for feedback. The draft paper has been created to frame the discussion towards the creation of a set of principles for intermediary liability in consultation with groups of Internet-focused NGOs and the academic community.
Shyam Ponappa's monthly column Transformation, or Drift? published in Business Standard and Organizing India Blogspot was mirrored on the CIS website.
P.P. Sneha blogged on the emergence of the phenomenon of the alt-academy in the West and the nuances and possibilities of such a space in the Indian context .

Accessibility and Inclusion

NVDA and eSpeak

Monthly Update

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

Blog Entry

Smartphones and the Return to Dependency (by Anandhi Viswanathan, August 30, 2014).

Participation in Event

Towards an Accessible Internet for People with Disabilities (organized by International Centre for Free and Open Source Software and ISOC Australia, Delhi, August 4, 2014). Sunil Abraham was a speaker at this workshop organized as part of APrIGF.

Access to Knowledge

Blog Entries

Preventive Detention for Copyright Violation: Karnataka Amends the 'Goondas' Act (by Nehaa Chaudhari, August 13, 2014).

Karnataka Goondas Act - A note on Legislative Competence (by Nehaa Chaudhari, August 28, 2014).

Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype - Part II (by Samantha Cassar, August 14, 2014).

Openness

Submission

Comments on the Department of Biotechnology and Department of Science Open Access Policy (by Anubha Sinha, August 22, 2014).

Participation in Event

Connecting the Next Two Billion: The Role of FOSS (organized by ICFOSS, Noida, August 4, 2014). Sunil Abraham was a speaker at this workshop held as part of the APrIGF.

Wikipedia

Announcement

Andhra Loyola College and the Centre for Internet & Society sign MoU for Better Net Access (by Rahmanuddin Shaik, August 19, 2014): Ten theosophical books authored by Rev. Fr. P. Jojaiah, SJ were released under free license (CC-BY-SA-4.0); For the first time an educational institution in the state of Andhra Pradesh is signing an MoU with CIS-A2K to work collaboratively to qualitatively improve Telugu Wikipedia; ALC faculty and students will create free e-content in Telugu on Telugu Wikipedia; Digital content from the fields of Botany, Physics, Chemistry, Telugu, Statistics, Ethics and Religion, Music and Dance will be produced on Telugu Wikipedia.

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Now, Christ students will contribute to Wikipedia (by H.M.Shruthi, Deccan Herald, August 5, 2014).

CIS-A2K Signs MoU with Andhra Loyola College in Vijayawada (Eenadu, August 15, 2014).

ALC signs MoU for better net access (The Hindu, August 15, 2014).

Participation in Event

Konkani Global Enclave (organized by Jagotik Konknni Songhotton, Kalaangann, Shaktinagar, August 24, 2014). T. Vishnu Vardhan participated in the event.

Internet Governance

Privacy

Policy Guide

Privacy in Healthcare: Policy Guide (by Tanvi Mani, August 26, 2014).

Event Report

Second Privacy and Surveillance Roundtable (by Anandini K Rathore, August 6, 2014).

Blog Entries

Surat's Massive Surveillance Network Should Cause Concern, Not Celebration (by Joe Sheehan, August 3, 2014).

Learning to Forget the ECJ's Decision on the Right to be Forgotten and its Implications (by Divij Joshi, August 14, 2014).

Participation in Events

Learning Event - The Internet and Economic, Cultural and Social Rights (organized by the International Development Research Centre and Association for Progressive Communications, August 8 - 10, 2014). Sunil Abraham was a remote participant.

Understanding Surveillance and Privacy in India (organized by Jamia Millia Islamia, New Delhi, August 28, 2014). Bhairav Acharya delivered a lecture.

Free Speech

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

White Paper

Zero Draft of Content Removal Best Practices White Paper (by Jyoti Panday, August 31, 2014).

News & Media Coverage

CIS gave its inputs to the following media coverage:

'I'm going to ruin you, dear' (by Prasun Chaudhuri with additional reporting by Varuna Verma in Bangalore, August 3, 2014).
We the goondas (by Shyam Prasad, Bangalore Mirror, August 4, 2014).
Sunil Abraham | The online warrior (by Anirban Sen, Livemint, August 9, 2014).
Dot Bharat domain to roll out on August 21 (originally published by IANS and mirrored in FirstPost, August 19, 2014).
The Uncertain Future of India's Plan to Biometrically Identify Everyone (by Jessica Mckenzie, TechPresident, August 28, 2014).
Will domain dot भारत spur the growth of Indian languages on the internet? (by Rohan Venkataramakrishnan, August 29, 2014).
SC seeks govt reply on PIL challenging powers of IT Act (by Shreeja Sen, Livemint, August 30, 2014).

Cyber Stewards

As part of its project on mapping cyber security actors in South Asia and South East Asia with the Citizen Lab, Munk School of Global Affairs, University of Toronto and the International Development Research Centre, Canada, CIS conducted 2 new interviews. With this it has finished a total of 21 interviews:

Video Interviews

Saumil Shah (August 30, 2014).

Gyanak Tsering (August 31, 2014).

Telecom

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

Newspaper Column

Transformation, or Drift? (by Shyam Ponappa, Business Standard, August 6, 2014 and Organizing India Blogspot, August 7, 2014).

Blog Entry

"OTTs Eating Into Our Revenue": Telcos in India (by Geetha Hariharan, August 7, 2014).

Digital Humanities

Blog Entry

Digital Humanities and the Alt-Academy (by P.P. Sneha, August 19, 2014).

About CIS

► Follow us elsewhere

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

► Support Us

► Request for Collaboration:

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

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

Understanding Surveillance and Privacy in India

praskrishna — 2014-09-08T06:08:49Z

Bhairav Acharya delivered a lecture at the Jamia Millia Islamia in New Delhi on August 28, 2014.

Abstract
While privacy seems intuitive to most people, its legal codification and protection is complex. This is because varying expectations of privacy exist in different social contexts demanding different forms and degrees of protection. In India, an unambiguous and enforceable constitutional right to privacy does not exist. The Supreme Court of India has, intermittently and unconvincingly, recognised a limited right to privacy in certain situations. Recent debates on privacy focus primarily on two areas: surveillance, and data protection. The interception of communications – phone calls, emails, and letters, – which is a type of surveillance, is statutorily regulated in India in an uneven way. A colonial law permits and regulates wiretaps in India. A derivative law governs emails and electronic communications. Both these laws suffer serious shortcomings. Indian law permits executive authorisations – by bureaucrats – of wiretaps without an independent audit and oversight mechanism. No legal provisions exist to redress improper wiretaps or information leaks – the Radia tapes controversy illustrates this. These lacunae remain unaddressed even as large-scale techno-utopian projects, such as the Central Monitoring System, move forward. However, the recent governmental push for privacy law does not stem from surveillance concerns but from international commerce in personal data. There is also a growing domestic constituency that is alarmed by the state’s collection of personal data without regulatory safeguards.

About the Speaker
Bhairav Acharya is a constitutional lawyer in India who joined the Bar in 2004 after graduating from the National Law School of India University, Bangalore. From 2004 - 2009, he was the Deputy Director of the Public Interest Legal Support and Research Centre (PILSARC), an organisation established to provide institutional legal support and credible research to popular movements, and to ideas and communities marginalised by law. He headed a UNHCR project to draft a refugee protection law for India and is a member of the NHRC’s National Experts Group on Refugee Law. He litigated – mostly constitutional law – in the chambers of a senior counsel in the Supreme Court of India, where he became especially interested in free speech law. From 2009 - 2010, he advised a leading Indian multinational information technology major on privacy law and data protection. At present, he independently advises the Centre for Internet and Society, Bangalore, on privacy law, and is drafting a proposed privacy statute to regulate data protection and surveillance in India to provide a participatory and consensus - based legal submission to the Indian government.

Event Details
Venue: CCMG Network Governance Lab,
Date: Thursday, August 28, 2014
Time: 11.30 a.m.

For more details visit https://cis-india.org/internet-governance/news/understanding-privacy-and-surveillance-in-india

Surveillance and Privacy Law Roundtable

praskrishna — 2014-08-25T15:08:33Z

The Centre for Internet and Society, COAI and Vahura invite you to a privacy roundtable at the India International Centre in New Delhi on September 1, 2014.

Download the Invite (PDF, 1207 Kb)

Recent legislative developments regarding privacy law in India
In 2010, the European Union commissioned an assessment of the adequacy of Indian data protection laws in light of the transfer of personal data of European data subjects into India for processing. That assessment made adverse findings on the adequacy and preparedness of Indian privacy law to safeguard personal data. Consequently, in 2011, the Department of Personnel and Training (DoPT) proposed draft privacy legislation called the ‘Right to Privacy Bill, 2011’. The DoPT Bill contained provisions for the regulation of personal data, interception of communications, visual surveillance and direct marketing. Simultaneously, the Ministry of Communications and Information Technology issued the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 to give effect to section 43A of the Information Technology Act, 2000.

The Justice Shah Group of Experts on Privacy and the National Privacy Principles
Aware of the need for privacy laws to enable economic growth, the Planning Commission constituted a Group of Experts under the chairmanship of Justice Ajit P. Shah to make specific proposals for future Indian privacy law. The Group of Experts submitted its Report to the Planning Commission in October 2012 wherein it proposed the adoption of nine National Privacy Principles. These are the principles of notice, choice and consent, collection limitation, purpose limitation, disclosure of information, security, openness, and accountability. The Report recommended the application of these principles in future privacy law.

Surveillance law in India
The cases of Kharak Singh v. State of Uttar Pradesh (1963) and Gobind v. State of Madhya Pradesh (1975) first brought the questions of permissibility and limits of surveillance to the Supreme Court for judicial review. The regime governing the interception of telecommunications is contained in section 5(2) of the Indian Telegraph Act, 1885 read with rule 419A of the Indian Telegraph Rules, 1951. The Telegraph Rules were twice amended to give effect to certain procedural safeguards laid down by the Supreme Court in PUCL v. Union of India (1996). In addition, further subordinate legislation issued to fulfil the provisions of sections 69(2) and 69B(3) of the Information Technology Act permit the interception and monitoring of electronic communications to collect traffic data and to intercept, monitor, and decrypt such communications.

About these roundtable consultations
These roundtable consultations are hosted by the Centre for Internet & Society (CIS), COAI and Vahura. They are a series of national roundtables to focus on surveillance regulation and interception of communications in relation to telecom service providers, internet service providers, internet access providers, and internet-based service providers. These roundtables are designed to elicit comments on legal proposals to regulate surveillance. The text of these legal proposals has been drafted at CIS and continues to be modified to reflect the opinions and consensus at each roundtable consultation. The objective of these meetings is gain a stakeholder-based, participatory, and democratic consensus on the future of Indian surveillance and privacy law.

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

Surveillance and Privacy Law Roundtable Invite

praskrishna — 2014-08-25T09:24:31Z

For more details visit https://cis-india.org/internet-governance/blog/surveillance-privacy-roundtable-invite.pdf

Learning to Forget the ECJ's Decision on the Right to be Forgotten and its Implications

divij — 2014-08-19T05:24:00Z

“The internet never forgets” is a proposition which is equally threatening and promising.

The phrase reflects the dichotomy presented by the extension on the lease of public memory granted by the internet – as information is more accessible and more permanent, letting go of the past is becoming increasingly difficult. The question of how to govern information on the internet – a space which is growing increasingly important in society and also one that presents a unique social environment - is one that persistently challenges courts and policy makers. A recent decision by the European Court of Justice, the highest judicial authority of the European Union, perfectly encapsulates the way the evolution of the internet is constantly changing our conceptions of individual privacy and the realm of information. On the 13^th of May, 2014, the ECJ in its ruling in Google v Costeja,[1] effectively read a “right to be forgotten” into existing EU data protection law. The right, broadly, provides that an individual may be allowed to control the information available about them on the web by removing such information in certain situations - known as the right to erasure. In certain situations such a right is non-controversial, for example, the deletion of a social media profile by its user. However, the right to erasure has serious implications for the freedom of information on the internet when it extends to the removal of information not created by the person to whom it pertains.

Privacy and Perfect Memory

The internet has, in a short span, become the biggest and arguably the most important tool for communication on the planet. However, a peculiar and essential feature of the internet is that it acts as a repository and a reflection of public memory – usually, whatever is once made public and shared on the internet remains available for access across the world without an expiry date. From public information on social networks to comments on blog posts, home addresses, telephone numbers and candid photos, personal information is disseminated all across the internet, perpetually ready for access - and often without the possibility of correcting or deleting what was divulged. This aspect of the internet means that the internet is a now an ever-growing repository of personal data, indexed and permanently filed. This unlimited capacity for information has a profound impact on society and in shaping social relations.

The core of the internet lies in its openness and accessibility and the ability to share information with ease – most any information to any person is now a Google search away. The openness of information on the internet prevents history from being corrupted, facts from being manipulated and encourages unprecedented freedom of information. However, these virtues often become a peril when considering the vast amount of personal data that the internet now holds. This “perfect memory” of the internet means that people are perpetually under the risk of being constantly scrutinized and being tied to their pasts, specifically a generation of users that from their childhood have been active on the internet.[2] Consider the example of online criminal databases in the United States, which regularly and permanently upload criminal records of convicted offenders even after their release, which is accessible to all future employers;[3] or the example of the Canadian psychotherapist who was permanently banned from the United States after an internet search revealed that he had experimented with LSD in his past; [4] or the cases of “revenge porn” websites, which (in most cases legally) publically host deeply private photos or videos of persons, often with their personal information, for the specific purpose of causing them deep embarrassment. [5]

These examples show that, due to the radically unrestricted spread of personal data across the web, people are no longer able to control how and by whom and in what context their personal data is being viewed. This creates the vulnerability of the data collectively being “mined” for purposes of surveillance and also of individuals being unable to control the way personal data is revealed online and therefore lose autonomy over that information.

The Right to be Forgotten and the ECJ judgement in Costeja

The problems highlighted above were the considerations for the European Union data protection regulation, drafted in 2012, which specifically provides for a right to be forgotten, as well as the judgement of the European Court of Justice in Google Spain v Mario Costeja Gonzalves.

The petitioner in this case, sought for the removal of links related to attachment proceedings for his property, which showed up upon entering his name on Google’s search engine. After refusing to remove the links, he approached the Spanish Data Protection Agency (the AEPD) to order their removal. The AEPD accepted the complaints against Google Inc. and ordered the removal of the links. On appeal to the Spanish High Court, three questions were referred to the European Court of Justice. The first related to the applicability of the data protection directive (Directive 95/46/EC) to search engines, i.e. whether they could be said to be “processing personal data” under Article 2(a) and (b) of the directive,[6] and whether they can be considered data controllers as per Section 2(d) of the directive. The court found that, because the search engines retrieve, record and organize data, and make it available for viewing (as a list of results), they can be said to process data. Further, interpreting the definition of “data controller” broadly, the court found that ‘ It is the search engine operator which determines the purposes and means of that activity and thus of the processing of personal data that it itself carries out within the framework of that activity and which must, consequently, be regarded as the ‘controller’ ’[7] and that ‘ it is undisputed that that activity of search engines plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name, including to internet users who otherwise would not have found the web page on which those data are published.’[8] The latter reasoning highlights the particular role of search engines, as indexers of data, in increasing the accessibility and visibility of data from multiple sources, lending to the “database” effect, which could allow the structured profiling of an individual, and therefore justifies imposing the same (and even higher) obligations on search engines as on other data controllers, notwithstanding that the search engine operator has no knowledge of the personal data which it is processing.

The second question relates to the territorial scope of the directions, i.e. whether Google Inc., being the parent company based out of the US, came within the court’s jurisdiction – which only applies to member states of the EU. The court held that even though it did not carry on the specific activity of processing personal data, Google Spain, being a subsidiary of Google Inc. which promotes and sells advertisement for the parent company, was an “establishment” in the EU and Google Inc., and, because it processed data “in the context of the activities” of the establishment specifically directed towards the inhabitants of a member state (here Spain), came under the scope of the EU law. The court also reaffirmed a broad interpretation of the data protection law in the interests of the fundamental right to privacy and therefore imputed policy considerations in interpreting the directive. [9]

The third question was whether Google Spain was in breach of the data protection directive, specifically Articles 12(b) and 14(1)(a), which state that a data subject may object to the processing of data by a data controller, and may enforce such a right against the data controller, as long as the conditions for their removal are met. The reasoning for enforcing such a claim against search engines in particular can be found in paragraphs 80 and 84 of the judgement, where the court holds that “(a search engine) enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him.” and that “ Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.” In fact, the court seems to apply a higher threshold for search engines due to their peculiar nature as indexes and databases. [10]

Under the court’s conception of the right of erasure, search engines are mandated to remove content upon request by individuals, when the information is deemed to be personal data that is “ inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes,” [11] notwithstanding that the publication itself is lawful and causes no prejudice to the data subject. The court reasoned that when the data being projected qualified on any of the above grounds, it would violate Article 6 of the directive, on grounds of the data not being processed “ fairly and lawfully’, that they are ‘collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes’, that they are ‘adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed’, that they are ‘accurate and, where necessary, kept up to date’ and, finally, that they are ‘kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed’.” [12] Therefore, the court held that, due to the nature of the information, the data subject has a right to no longer have such information linked to his or her name on a list of results following a search made on their name. The grounds laid down by the court, i.e. relevancy, inadequacy, etc. are very broad, yet such a broad conception is necessary in order to effectively deal with the problems of the nature described above.

The judgement of the ECJ concludes by applying a balancing test between the rights of the data subject and both the economic rights of the data controller as well as the general right of the public to information. It states that generally, as long as the information meets the criteria laid down by the directive, the right of the data subject trumps both these rights. However, it adds an important caveat – such a right is inapplicable “ the in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.” This crucial point on the balancing of two rights directly hit by the judgement was only summarily dealt with by the ECJ, without effectively giving any clarity as to what standards to apply or laying down any specific guidelines for the application of the new rule. [13] Doing so, it effectively left the decision to determine what was in the public interest and how the rights are to be balanced to the search engines themselves. Delegating such a task to a private party takes away from the idea of the internet as a common resource which should be developed for the benefit of the larger internet community as a whole, by allowing it to be governed and controlled by private stakeholders, and therefore paves an uncertain path for this crucial aspect of internet governance.

Implications of the ECJ ruling

The decision has far reaching consequences on both privacy and on freedom of information on the internet. Google began implementing the decision through a form submission process, which requires the individual to specify which links to remove and why, and verifies that the request comes from the individual themselves via photo identification, and has also constituted an expert panel to oversee its implementation (similar to the process for removing links which infringe copyright law).[14] Google has since received more than 91,000 requests for removal, pertaining to 328,000 links of which it has approved more than half.[15] In light of such large volumes of data to process, the practical implementation of the ruling has been necessarily problematic. The implementation has been criticized both for implicating free speech on the internet as well as disregarding the spirit of the right to be forgotten. On the first count, Google has been criticized for taking down several links which are clearly are in public interest to be public, including several opinion pieces on politicians and corporate leaders, which amounts to censorship of a free press.[16] On the second count, EU privacy watchdogs have been critical of Google’s decision to notify sources of the removed content, which prompts further speculation on the issue, and secondly, privacy regulators have challenged Google’s claim that the decision is restricted to the localised versions of the websites, since the same content can be accessed through any other version of the search engine, for example, by switching over to “Google.com”.[17]

This second question also raises complicated questions about the standards for free speech and privacy which should apply on the internet. If the EU wishes for Google Inc. to remove all links from all versions of its search engine, it is, in essence, applying the balancing test of privacy and free speech which are peculiar to the EU (which evolved from a specific historical and social context, and from laws emerging out of the EU) across the entire world, and is radically different from the standard applicable in the USA or India, for example. In spirit, therefore, although the judgement seeks to protect individual privacy, the vagueness of the ruling and the lack of guidelines has had enormous negative implications for the freedom of information. In light of these problems, the uproar that has been caused in the two months since the decision is expected, especially amongst news media sites which are most affected by this ruling. However, the faulty application of the ruling does not necessarily mean that a right to be forgotten is a concept which should be buried. Proposed solutions such as archiving of data or limited restrictions, instead of erasure may be of some help in maintaining a balance between the two rights.[18] EU regulators hope to end the confusion through drafting comprehensive guidelines for the search engines, pursuant to meetings with various stakeholders, which should come out by the end of the year. [19] Until then, the confusion will most likely continue.

Is there a Right to be Forgotten in India?

Indian law is notorious for its lackadaisical approach towards both freedom of information and privacy on the internet. The law, mostly governed by the Information Technology Act, is vague and broad, and the essence of most laws is controlled by the rules enacted by non-legislative bodies pursuant to various sections of the Act. The “right to be forgotten” in India can probably be found within this framework, specifically under Rule 3(2) of the Intermediary Guideline Rules, 2011, under Section 79 of the IT Act. Under this rule, intermediaries are liable for content which is “invasive of another’s privacy”. Read with the broad definition of intermediaries under the same rules (which includes search engines specifically) and of “affected person”, the applicable law for takedown of online content is much more broad and vague than the standard laid down in Costeja. It remains to be seen whether the EU’s interpretation of privacy and the “right to be forgotten” would further the chilling effect caused by these rules.

[1] Google Spain v Mario Costeja Gonzalves, C‑131/12, Available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=264438.

[2] See Victor Mayer-Schonberger, Delete: The Virtue of Forgetting in the Digital Age, (Princeton, 2009).

[3] For example, See http://mugshots.com/; and http://www.peoplesearchpro.com/resources/background-check/criminal-records/

[4] LSD as Therapy? Write about It, Get Barred from US, (April, 2007) available at

http://thetyee.ca/News/2007/04/23/Feldmar/

[5] It’s nearly impossible to get revenge porn of the internet, (June, 2014), available t http://www.vox.com/2014/6/25/5841510/its-nearly-impossible-to-get-revenge-porn-off-the-internet

[6] Article 2(a) - “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

Article 2(b) - “ processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

[7] ¶36, judgment.

[8] The court also recognizes the implications on data profiling through the actions of search engines organizing results in ¶37.

[9] ¶74 judgment.

[10] In ¶83, the court notes that the processing by a search engine affect the data subject additionally to publication on a webpage; ¶87 - Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.

[11] ¶92, judgment.

[12] ¶72, judgment.

[13] ¶81, judgment.

[14] The form is available at https://support.google.com/legal/contact/lr_eudpa?product=websearch

[15] Is Google intentionally overreacting on the right to be forgotten? (June, 2014), available at http://www.pcpro.co.uk/news/389602/is-google-intentionally-overreacting-on-right-to-be-forgotten.

[16] Will the right to be forgotten extend to Google.com?, (July, 2014), available at http://www.pcpro.co.uk/news/389983/will-right-to-be-forgotten-extend-to-google-com.

[17] The right to be forgotten is a nightmare to enforce, (July, 2014), available at http://www.forbes.com/sites/kashmirhill/2014/07/24/the-right-to-be-forgotten-is-a-nightmare-to-enforce.

[18] Michael Hoven, Balancing privacy and speech in the right to be forgotten, available ati http://jolt.law.harvard.edu/digest/privacy/balancing-privacy-and-speech-in-the-right-to-be-forgotten#_edn15

[19] EU poses 26 questions on the right to be forgotten, (July, 2014), available at http://www.cio-today.com/article/index.php?story_id=1310024135B0

For more details visit https://cis-india.org/internet-governance/blog/learning-to-forget-ecj-decision-on-the-right-to-be-forgotten-and-its-implications