Centre for Internet and Society

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

The Indian government wants to censor the Internet without being seen to be censoring the Internet. This article by Pranesh Prakash shows how the government has been able to achieve this through the Information Technology Act and the Intermediary Guidelines Rules it passed in April 2011. It now wants methods of censorship that leave even fewer traces, which is why Mr. Kapil Sibal, Union Minister for Communications and Information Technology talks of Internet 'self-regulation', and has brought about an amendment of the Copyright Act that requires instant removal of content.

Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium where anybody can directly share their thoughts with billions of other people in an instant. People who would never have any chance of being published in a newspaper now have the opportunity to have a blog and provide their thoughts to the world. This also means that thoughts that many newspapers would decide not to publish can be published online since the Web does not, and more importantly cannot, have any editors to filter content. For many dictatorships, the right of people to freely express their thoughts is something that must be heavily regulated. Unfortunately, we are now faced with the situation where some democratic countries are also trying to do so by censoring the Internet.

Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet. These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'. When was the last time you checked wither you had 'rights' to a joke before forwarding it? Did you share a Twitter message containing the term "#IdiotKapilSibal", as thousands of people did a few days ago? Well, that is 'disparaging', and Twitter is required by the new law to block all such content. The government of Sikkim can run advertisements for its PlayWin lottery in newspapers, but under the new law it cannot do so online. As you can see, through these ridiculous examples, the Intermediary Guidelines are very badly thought-out and their drafting is even worse. Worst of all, they are unconstitutional, as they put limits on freedom of speech that contravene Article 19(1)(a) and 19(2) of the Constitution, and do so in a manner that lacks any semblance of due process and fairness.

Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The people whose content was removed were not told, nor was the general public informed that the content was removed. If we hadn't kept track, it would be as though that content never existed. Such censorship existed during Stalin's rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India. Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A of the Information Technology Act (which can be revealed using RTI), or it has to send requests to the Internet companies to get content removed. Google has released statistics of government request for content removal as part of its Transparency Report. While Mr. Sibal uses the examples of communally sensitive material as a reason to force censorship of the Internet, out of the 358 items requested to be removed from January 2011 to June 2011 from Google service by the Indian government (including state governments), only 8 were for hate speech and only 1 was for national security. Instead, 255 items (71 per cent of all requests) were asked to be removed for 'government criticism'. Google, despite the government in India not having the powers to ban government criticism due to the Constitution, complied in 51 per cent of all requests. That means they removed many instances of government criticism as well.

'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to 'self-regulate' reveals a desire to gain ever greater powers to bypass the IT Act when censoring Internet content that is 'objectionable' (to the government). Mr. Sibal also wants to avoid embarrassing statistics such as that revealed by Google's Transparency Report. He wants Internet companies to 'self-regulate' user-uploaded content, so that the government would never have to send these requests for removal in the first place, nor block sites officially using the IT Act. If the government was indeed sincere about its motives, it would not be talking about 'transparency' and 'dialogue' only after it was exposed in the press that the Department of Information Technology was holding secret talks with Internet companies. Given the clandestine manner in which it sought to bring about these new censorship measures, the motives of the government are suspect. Yet, both Mr. Sibal and Mr. Sachin Pilot have been insisting that the government has no plans of Internet censorship, and Mr. Pilot has made that statement officially in the Lok Sabha. This, thus seems to be an instance of censoring without censorship.

Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a straightforward manner, they are trying to do so surreptitiously, through the back door. Mr. Sibal's latest proposed amendment to the Copyright Act, which is before the Rajya Sabha right now, has a provision called section 52(1)(c) by which anyone can send a notice complaining about infringement of his copyright. The Internet company will have to remove the content immediately without question, even if the notice is false or malicious. The sender of false or malicious notices is not penalized. But the Internet company will be penalized if it doesn't remove the content that has been complained about. The complaint need not even be shown to be true before the content is removed. Indeed, anyone can complain about any content, without even having to show that they own the rights to that content. The government seems to be keen to have the power to remove content from the Internet without following any 'due process' or fair procedure. Indeed, it not only wants to give itself this power, but it is keen on giving all individuals this power.

It's ultimate effect will be the death of the Internet as we know it. Bid adieu to it while there is still time.

The article was translated to Marathi and featured in Lokmat

For more details visit https://cis-india.org/internet-governance/invisible-censorship

Press Coverage of Online Censorship Row

pranesh — 2011-12-08T11:31:30Z

We are maintaining a rolling blog with press references to the row created by the proposal by the Union Minister for Communications and Information Technology to pre-screen user-generated Internet content.

Monday, December 5, 2011

India Asks Google, Facebook to Screen Content | Heather Timmons (New York Times, India Ink)

Tuesday, December 6, 2011

Sibal warns social websites over objectionable content | Sandeep Joshi (The Hindu)

Hate speech must be blocked, says Sibal | Praveen Swami & Sujay Mehdudia (The Hindu)

Won't remove material just because it's controversial: Google | (Press Trust of India)

Any Normal Human Being Would Be Offended | Heather Timmons (New York Times, India Ink)

After Sibal, Omar too feels some online content inflammatory | (Press Trust of India)

Online uproar as India seeks social media screening | Devidutta Tripathy and Anurag Kotoky (Reuters)

Kapil Sibal for content screening: Facebook, Twitter full of posts against censorship | (IANS)

India May Overstep Its Own Laws in Demanding Content Filtering | John Ribeiro (IDG)

Kapil Sibal warns websites: Mixed response from MPs | (Press Trust of India)

Websites must clean up content, says Sibal | (NewsX)

Kapil Sibal warns websites; Google says won't remove material just because it's controversial | Press Trust of India

Censorship By Any Other Name... | Yamini Lohia (Mint)

Kapil Sibal: We have to take care of sensibility of our people | Associated Press

Kapil Sibal gets backing of Digvijaya Singh over social media screening | Press Trust of India

Sibal Gets What He Set Out To Censor | (Hindustan Times, Agencies)

Objectionable Matter Will Be Removed, Censorship Not in Picture Yet: Kapil Sibal | Amar Kapadia (News Tonight)

Wednesday, December 7, 2011

Kapil Sibal Doesn't Understand the Internet | Shivam Vij (India Today)

'Chilling' Impact of India's April Internet Rules | Heather Timmons (New York Times, India Ink)

Screening, not censorship, says Sibal | (Business Standard)

Chandni Chowk to China | Salil Tripathi (Mint)

Kapil Sibal vs the internet | Sandipan Deb (Mint)

No Need for Censorship of the Internet: Cyber Law Experts | (Times News Network)

Protest with flowers for Sibal | (The Hindu)

Kapil Sibal cannot screen this report | Team DNA, Blessy Chettiar & Renuka Rao (Daily News and Analysis)

Kapil Sibal warns websites, but experts say prescreening of user content not practical | (Reuters)

Sibal's Remarks Brought Disgust | Hitesh Mehta (News Tonight)

BJP backs mechanism to curb objectionable content on websites | (The Hindu)

Move to regulate networking sites should be discussed in Parliament: BJP | (Press Trust of India)

Sibal under attack in cyberspace | (Press Trust of India)

Kapil Sibal's web censorship: Indian govt wanted 358 items removed, says Google | (Press Trust of India)

Kapil Sibal gets BJP support but with rider | (Indo-Asian News Service)

Sibal's way of regulating web not okay, says BJP | (Indo-Asian News Service)

Censorship in Blasphemy's Clothings | Gautam Chikermane (Hindustan Times, Just Faith)

India wants Google, Facebook to screen content | Sharon Gaudin (Computer World)

Should we be taming social media? | Swati Prasad (ZDNet, Inside India)

Kapil Sibal gets lampooned for views on Web control | (Daily News and Analysis)

'We don't need no limitation' | Asha Prakash (Times of India)

Five reasons why India can't censor the internet | Prasanto K. Roy (Indo-Asian News Service)

We Are the Web | (Indian Express)

Thursday, December 8, 2011

Kapil Sibal under attack in cyberspace, (Press Trust of India)

Speak Up for Freedom | Pranesh Prakash (Indian Express)

Newswallah: Censorship | Neha Thirani (New York Times, India Ink)

No Question of Censoring the Internet, Says Sachin Pilot | (NDTV)

Mind Your Netiquette, or We'll Mind it for You | A.A.K. (The Economist)

Take Parliament's view to regulate social networking sites, BJP tells govt | (Times News Network)

India wanted 358 items removed | Priscilla Jebaraj (The Hindu)

Indian Government v Social Networking sites: Expert Views | (Bar & Bench News Network)

Can Government Muzzle Websites? | Priyanka Joshi & Piyali Mandal (Business Standard)

US concerned over internet curbs, sidesteps India move | (Indo-Asian News Service)

Why Internet Companies Are Upset with Kapil Sibal | (Rediff)

Why Censor Facebook When You Don't Censor Sunny Leone? | (Indo-Asian News Service)

Online content issue: Talks with India on, says U.S. | (Press Trust of India)

US calls for Internet freedom amid India plan | Agence France-Presse

For more details visit https://cis-india.org/internet-governance/blog/press-coverage-online-censorship

Online Pre-Censorship is Harmful and Impractical

pranesh — 2011-12-12T17:00:50Z

The Union Minister for Communications and Information Technology, Mr. Kapil Sibal wants Internet intermediaries to pre-censor content uploaded by their users. Pranesh Prakash takes issue with this and explains why this is a problem, even if the government's heart is in the right place. Further, he points out that now is the time to take action on the draconian IT Rules which are before the Parliament.

Mr. Sibal is a knowledgeable lawyer, and according to a senior lawyer friend of his with whom I spoke yesterday, greatly committed to ideals of freedom of speech. He would not lightly propose regulations that contravene Article 19(1)(a) [freedom of speech and expression] of our Constitution. Yet his recent proposals regarding controlling online speech seem unreasonable. My conclusion is that the minister has not properly grasped the way the Web works, is frustrated because of the arrogance of companies like Facebook, Google, Yahoo and Microsoft. And while he has his heart in the right place, his lack of knowledge of the Internet is leading him astray. The more important concern is the IT Rules that have been in force since April 2011.

Background

The New York Times scooped a story on Monday revealing that Mr. Sibal and the MCIT had been in touch with Facebook, Google, Yahoo, and Microsoft, asking them to set up a system whereby they would manually filter user-generated content before it is published, to ensure that objectionable speech does not get published. Specifically, he mentioned content that hurt people's religious sentiments and content that Member of Parliament Shashi Tharoor described as 'vile' and capable of inciting riots as being problems. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.

Concerns

One need not give lectures on the benefits of free speech, and Mr. Sibal is clear that he does not wish to impinge upon it. So one need not point out that freedom of speech means nothing if not the freedom to offend (as long as no harm is caused). There can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of our Constitution. My problem lies elsewhere.

Secrecy

It is unfortunate that the New York Times has to be given credit for Mr. Sibal addressing a press conference on this issue (and he admitted as much). What he is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first.

Making intermediaries responsible

The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech. I believe that "to make the intermediary liable for the user violating that code would, I think, not serve the larger interests of the market." Mr. Sibal said that in May this year in an interview with the Wall Street Journal. The intermediaries (that is, all persons and companies who transmit or host content on behalf of a third party), are but messengers just like a post office and do not exercise editorial control, unlike a newspaper. (By all means prosecute Facebook, Google, Yahoo, and Microsoft whenever they have created unlawful content, have exercised editorial control over unlawful content, have incited and encouraged unlawful activities, or know after a court order or the like that they are hosting illegal content and still do not remove it.) Newspapers have editors who can take responsibility for content published in the newspaper. They can afford to, because the number of articles in a newspaper is limited. YouTube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are. Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on YouTube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (Janhit Manch v. Union of India) and Madras (R. Karthikeyan v. Union of India) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.

IT Rules, 2011

In this regard, the IT Rules published in April 2011 are great offenders. While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the government of Sikkim does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech. Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity to reject these rules until the end of the 2012 budget session. Parliamentarians must act now to uphold their oaths to the Constitution.

For more details visit https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

Analysis of DIT's Response to Second RTI on Website Blocking

pranesh — 2011-12-02T09:26:11Z

In this blog post, Pranesh Prakash briefly analyses the DIT's response to an RTI request on website blocking alongside the most recent edition of Google's Transparency Report, and what it tells us about the online censorship regime in India.

What the DIT's Response Tells Us, and What It Doesn't

We at the Centre for Internet and Society had sent in a right to information request to the Department of Information Technology (DIT) asking for more information about website blocking in India. The response we got from the DIT was illuminating in many ways. The following are the noteworthy points, in brief:

Six government officials, and one politician have so far made requests for 'disabling access' to certain online content under s.69A of the Information Technology (IT) Act.
68 individual items have been requested to be blocked, those being 64 websites (domain-level blocking), 1 sub-domain, and 3 specific web pages. Seemingly, none of these requests have been accepted.
The data provided by the government seemingly conflicts with the data released by the likes of Google (via its Transparency Report).
India's law enforcement agencies are circumventing the IT Act, the Indian Penal Code (IPC), and ultimately the Constitution, by not following proper procedure for removal of online content.
Either the DIT is not providing us all the relevant information on blocking, or is not following the law.

Conflicting Data on Censorship Requests

The latest Google Transparency Report, released on October 25, 2011, shows that there were 68 written requests (imaginably taking the form of forceful requests/orders) from Indian law enforcement agencies for removal of 358 items from Google's various. If you take the figures since January 2010, it adds up to over 765.

However, the official government statistics show only eight separate requests having been made to the DIT (which, under the IT Act, is the only authority that can order the blocking of online content), adding up to a total of 64 websites (domain-level), 1 sub-domain, and 3 specific web pages. Of these only 3 are for Google's services (2 for Blogger, and 1 for YouTube).

If classified according to presumable reason for seeking of the block, that would be 61 domains hosting adult content; 1 domain (tamil.net.in), 1 sub-domain (ulaginazhagiyamuthalpenn.blogspot.com), and 2 specific pages (video of a speech by Bal Thackeray on YouTube and Wikipedia page for Sukhbir Singh Badal) for political content; 1 for religious content (a blog post titled "Insults against Islam" in Malay); and 1 domain hosting online gambling (betfair.com). It is unclear for why one of the requests was made (topix.net).¹

Content Removal vs. Content Blocking

Section 69A of the IT Act provides the Central Government the power to "direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource". The only person through whom this power can be exercised is the 'Designated Officer' (currently Dr. Gulshan Rai of the DIT), who in turn has to follow the procedure laid down in the rules drafted under s.69A ("Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009", the 'Blocking Rules').

Because of this, we see everyone from the Secretary of the Public Law and Order Department of Tamil Nadu to the Joint Commissioner of Police of Mumbai and the State President of the Bharatiya Janata Minority Morcha approaching the Designated Officer for blocking of websites.

However, as the data from Google shows, there are many times more requests being sent to remove content. The only explanation for this is that an order to 'block for access... or cause to be blocked for access by the public' is taken to be different from an order for removal of content. Nothing in the IT Act, nor in the Blocking Rules actually address this issue.²

Thus, there is a possibility that the forcible removal of content is treated separately from blocking of content. That would mean that while blocking is regulated by the IT Act, forcible removal of content is not. Thus, it would seem that forcible removal of online content is happening without clear regulation or limits.³

Role of the Indian Penal Code and Code of Criminal Procedure

There are existing provisions in the Indian Penal Code that provide the government the power to censor book, pamphlets, and other material on varied grounds, including obscenity, causing of enmity between communities, etc. The police is provided powers to enforce such governmental orders. Section 95 of the Code of Criminal Procedure allows the State Government to declare (through an official notification) certain publications which seem to violate the Indian Penal Code as 'forfeited to the Government' and to issue search warrants for the same. After this the police can enforce that notification.

It is clear that this is not the case for any of the content removal requests that were sent to Google.

Police Are Defeating the Constitution and the IT Act

Therefore, it would seem that law enforcement agencies are operating outside the bounds set up under the Indian Penal Code, the Code of Criminal Procedure, as also the Information Technology Act, when they send requests for removal of content to companies like Google. While a company might comply with it because it appears to them to violate their own terms of service (which generally include a wide clause about content being in accordance with all local laws), community guidelines, etc., it would appear that it is not required under the law to do so if the order itself is not legal.

However, anecdotal evidence has it that most companies comply with such 'requests' even when they are not under any legal obligation to do so.

This way the intention of Parliament in enacting s.69A of the IT Act—to regulate government censorship of the Internet and bring it within the bounds laid down in the Constitution—is defeated.

DIT Either Evasive or Not Following Rules

The DIT did not provide answers on:

Whether any block ordered by the DIT has ever been revoked
On what basis DIT decides which intermediary (web host, ISP, etc.) to send the order of blocking to

It also provided the minutes for only one meeting⁴ of the committee that decides whether to carry out a block, when we had requested for minutes of all the meetings it has ever held. That committee (the Committee for Examination of Requests, constituted under Rule 8(4) of the Blocking Rules) has to consider every single item in every single request forwarded to the Designated Officer, and 68 items were sent to the Designated Officer in 6 requests. Quite clearly something doesn't add up. Either the Committee is not following the Blocking Rules or the DIT is not providing a full reply under the RTI Act.

A request was made to block http://www.topix.net, by the 'Commmissioner, Maharashtra State, Colaba, Mumbai—400001', presumably the Commissioner of State Intelligence Department of Maharashtra, whose office is located in Colaba. ↩
However, the Blocking Rules require the person or the hosting intermediary being contacted for a response. This provides the person/intermediary the opportunity to remove the content voluntarily or to oppose the request for blocking.

"Rule 8. Examination of request: (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary." ↩
While it is possible to imagine that the Indian Penal Code and the Code of Criminal Procedure lay down limits, it is clear from the Google Transparency Report that the requests from removal are not coming based only on court orders, but from the executive and the police. The police have no powers under the IPC or the CrPC to request removal of content without either a public notification issued by the State Government or a court order. ↩
The minutes of the meeting held on August 24, 2010, on the request for blocking of www.betfair.com were sent as 'Annexure III' of the DIT response. This request was not granted. ↩

For more details visit https://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking

Text of DIT's Response to Second RTI on Website Blocking

pranesh — 2011-10-28T14:37:34Z

CIS had filed a request under the Right to Information Act with the government, asking a number of questions relating to blocking of content under the IT Act. We have reproduced below the response we got from the government.

Government of India
Ministry of Communications & Information Technology
Department of Information Technology
Electronics Niketan, 6 CGO Complex,
New Delhi-110003

No: 14(12)/2011-ESD
10.6.2011

Shri Pranesh Prakash,
Centre for Internet and Society,
194, 2C Cross, Domlur Stage II,
Bangalore - 560071

Subject: Request for information under RTI Act, 2005.

Sir,
Reference your request dated 13 May 2011, which was received in this office on 18.5.2011 on the above subject.

The information as received from the custodian of information is attached herewith (Annexure-I, II and III).

Yours faithfully,
(A.K.Kaushik)
Additional Director & CPIO
Cyber Laws & E-Security Division
Tel: 011-24364803

Annexure I

Reply to Shri Pranesh Prakash

How many orders have been issued for blocking of computer resources prior to the coming into force of the Information Technology (Amendment) Act, 2008 (i.e., before October 27, 2009) under the Information Technology Act, 2000, or any other law for the time being in force.

Reply - Five orders were issued for blocking access to web content.

Please provide a list of all the websites for which the DIT has issued blocking orders and the dates on which each website was blocked.

Reply - The following websites have been blocked pursuant to court orders

Sl	Website	Date of issuing direction by designated officer
1.	www.zone-h.org	08.03.2010
2.	http://donotdiall00.webs.com (IP 216.52.115.50)	08.08.2010
3.	www.bloggernews.net/124029	15.11.2010
4.	http://www.google.co.in/#hl=en&source=hp&biw=-1276&bih=843&=dr+babasaheb+ambedkar+wallpaper&aq=4&aqi=gl0&aql=&oq=dr+babas& gs_ rfai=&fp=e791fe993fa412ba	20.12.2010
5.	http://www.cinemahd.net/desktopenhancements/wallpaper/23945-wallpapers-beautiful-girl-wallpaper.html	20.12.2010
6.	http://www.chakpak.com/find/images/kamasutra-hindi-movie	20.12.2010
7.	http://www.submitlink.khatana.net/2010/09/jennifer-stano-is-engaged-to.html	20.12.2010
8.	http://www.result.khatana.net/2010/11/im-no-panty-girl-yana-gupta-wardrobe.html	20.12.2010
9.	http://www.facebook.com/pages/I-Hate-Ambedkar/172025102828076	25.02.2011
10.	www.indybay.org	17.03.2011
11.	www.arizona.indymedia.org	17.03.2011

Please provide a list of all the persons to whom such orders were issued.

Reply - The directions were issued to Department of Telecommunications.
Please provide a list of all the requests for blocking of information that have been received by the Designated Officer under the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 ("Rules").
Please provide a list of all persons/authorities from whom the Designated Officer under the Rules has received requests for blocking of information and the dates these requests were received.

Reply 4 & 5 - The details are given in Annexure-II.
Please provide the files on all the complaints and requests that have been rejected, including file noting.
Please provide the files on all the complaints and requests that have been accepted, including file noting.
Please provide the files on all the complaints and requests that are still being processed (e.g. more information has been sought on the request), including file notings.

Reply 6,7 & 8 - Files are available in section and can be viewed.
Please provide us copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules.
Please provide copies of all the recommendations of the Committee for Examination of requests under Rule 8(4) of the Rules.

Reply 9 & 10 - Copy of the minutes/recommendation of the meeting of the Committee is at Annexure III.
Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules to periodically review the blocked resources.
Please provide us copies of all the findings of the Review Committee.
If the Review Committee has not met, please provide us the reason for the meetings not happenings as per the requirement of Rule 14 of the Rules.

Reply 11, 12 & 13 - This meeting is coordinated by Department of Telecommunications and DIT is not in possession of details.
Does "intermediary" in Rule 13 include intermediaries not located in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Has any block ordered by the DIT ever been revoked by the DIT or any other governmental authority?

Reply - Such questions are not permitted under RTI Act as per DOPT OM No. 1 /7/2009 IR dated 1st June 2009.
On what basis does the DIT decide whether the appropriate intermediary is the person who has put up content, the web host, or the different Internet service providers in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Does Rule 16 of the Rules override the Right to Information Act?

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
If the answer to the previous question is yes, please provide any correspondence with any legal officer who provided the DIT advice that it could override the Right to Information Act through delegated legislation.

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.

Annexure II

Request received by Designated Officer

Website	Date of receipt of request	Request by
www.tamil.net.in	29.03.2010	Secretary Public (Law & Order) Deptt. Secretariat, Chennai 600 009
www.betfair.com	28.06.2010	Sr. Inspector, Cyber Crime Cell, Mumbai
http://www.youtube.com/ch?watv=tHUNESaC0E4	05.07.2010	Jt. Commissioner of Police (Crime), Mumbai
http://ulaginazhagiyamuthalpenn.blogspot.com	21.07.2010	Principal Secretary, IT Department, Chennai–600 009
en.wikipedia.org/Wiki/Sukhbir Singh Badal	11.08.2010	Principal Secretary to Govt. of Punjab, Dept. of IT, Chandigarh
http://www.exbii.com http://www.topix.net	05.10.2010	Commissioner, Maharashtra State, Colaba, Mumbai–400 001
http://ashsyumul.blogspot.com/2009/12/penginaan-terhadap-islam.html	20.08.2010	Shri Haneef Ali, State President, Bharatiya Janata Minority Morcha, Andhra Pradesh
http://www.angelsofindia.com/ http://www.adult-gals.com/ http://www.indianangels.net/ http://www.arabexposed.com/ http://indiamafia.com/ http://www.indianasfuckers.com http://www.indianpronvideos.in/ http://www.peterporntube.com http://www.bollywood-sex.net/ http://www.indianworldsex.com/ http://indianhomevideo.com/ http://indian-pakistani-girls.com http://indianvidz.com http://indianparadise.net/ http://bollywoodscandals.net/ http://indiansexpics.net/ http://www.indian-hardcore-movies.com/ http://www.bollywoodnudesex.net/ http://www.bangmyindianwife.com/ http://www.indian-angel-teens.com/ http://south-indian-sex.com/ http://www.indianseduction.com/ http://www.indiansexuniversity.com http://www.indianpassion.com/ http://fuckmyindianass.com http://indiansexwebcams.com/ http://exoticpics4u.com/ http://www.indianfreesexmovies.com/ http://www.newsindiansexmovies.com/ http://www.peterporn.net/ http://www.3xindianmovies.com/ http://www.amateur-indian-girls.com/ http://www.bollywoodhardcore.net http://www. indiansexpost.com/ http://www.desi-amateurs.com/ http://www.3xasianmovies.com/ http://allindiansex.com/ http://www.indiapornmovies.com http://www.3xindiansex.com/ http://www.indianxclips.com/ http://indiansexvideos.org http://www.pureindianporn.com/ http://indian-porn-sex.com http://www.newsindianpornmovies.com http://juicyindiangirls.com http://www/hardcoreindiansex.net http://bollywoodboobs.com http://indianmovietgp.com/ http://www.365indian.com http://www.indian-sex-hoes.com/ http://www.indian-sex-photos.net/ http://www.indian-free-sex.com/ http://www.indian-sex-movies.org http://ww.tamil-sex-movies.net/ http://www.indianteens.org/ http://www.sexyindianbooty.com http://www.indianposing.com http://www.pornhub.com/ http://www.indianpornhub.com/ http://www.exvideos.com	25.11.2010	Jt.Commissioner of Police (Crime), Mumbai

Annexure III

Minutes of the meeting held on 24-08-2010 for the request for blocking of website www.betfair.com

A meeting of "Committee for examination of request" constituted under the provisions of Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 under section 69A of the Information Technology Act, 2000 was held on 24.08.2010 at Electronics Niketan. New Delhi to examine the Request sent by Government of Maharashtra to block the website www.betfair.com. The meeting was participated by the following members:

Dr. Gulshan Rai, Group Coordinator, Department of Information Technology
Shri Dharmendra Sharma, Joint Secretary, Ministry of Home Affairs
Shri Arvind Kumar, Joint Secretary, Ministry of Information & Broadcasting
Shri Ashok C. Prakash, Additional L.A., Department of Legal Affairs
Shri B.J. Srinath, Sr. Director, CERT-In

The Committee discussed the case and observed that Govt. of Maharashtra has requested for blocking of website www.betfair.com on the grounds of "public order". The Committee also noted the reply from Cyber Crime Cell, Mumbai that no case has been registered against www.betfair.com. Further, no details suggesting the "impact" of the said site on public order has been made available by the State Government.

Keeping in view the directions of the Hon'ble High Court to dispose the application strictly as per law, the Committee assessed that based on the data/facts/details provided by Government of Maharashtra and Cyber Crime Cell, Mumbai, violation of section 69A of the Information Technology Act, 2000 is not being established.

Download a scanned version of the letter received from the DIT office here [PDF, 1.74 MB]

For more details visit https://cis-india.org/internet-governance/dit-response-2nd-rti-blocking

The Present — and Future — Dangers of India's Draconian New Internet Regulations

anja — 2011-08-02T07:22:24Z

The uproar surrounding India's Internet Control Rules makes clear that in the Internet age, as before, the active chilling of freedom of expression by the state is unacceptable in a democracy. Yet if India's old censorship regimes are to be maintained in this new context, the state will have little choice but to do just that. Are we ready to rethink the ways in which we deal with free speech and censorship as a society? Asks Anja Kovacs in this article, published in Caravan, 1 June 2011.

WHAT ACTUALLY DEFINES A DEMOCRACY? It is a trickier question than it first seems, and yet it is worthwhile, at least every now and then, to remind ourselves of what constitutes the political system we hold so dear. Free and fair elections; an independent legislative, executive and judiciary; and freedom of the press—these are all vital ingredients. But what may be democracy’s defining element, or at least its sine qua non, is the right to freedom of opinion and expression: without this equal right to “seek, receive and impart information”, as the universal declaration of Human Rights frames it, a system of governance of the people, for the people and by the people simply remains meaningless. Without a free flow of information, democracy does not exist.

It is with good reason, then, that bloggers, tech enthusiasts and watchdogs from civil society have been up in arms over two new sets of rules, notified in April 2011, that will impact every Indian’s Internet use. Formulated by the Central Government under powers conferred to it by the IT (Amendment) Act 2008, one set governs what is known as the liability of intermediaries. This determines in which cases, and to what extent, companies ranging from Google and Facebook to local Internet service providers (ISPs) are legally responsible for the content that you upload.

The second set of rules pertains to cybercafes. In a manner reminiscent of the licence Raj, there are new registration standards for these establishments, which go beyond the usual requirements for commercial enterprises and include detailed procedures to identify all users. Cybercafes will be required to maintain and submit, on a monthly basis, logs that detail the use of all computers in the cafe and to keep backups of all users’ browser histories, to be maintained for at least one year.

There is much that is wrong with these rules, but what makes them such a particular threat to freedom of expression? Some effects are likely to be indirect: for example, the Internet has the potential to emerge as an important avenue for young people from disadvantaged backgrounds to express and discuss concerns so rarely taken into account by the mainstream media. But by putting into place stringent identification requirements for cybercafe users, who are likely to be less well-off, the access of underprivileged users in particular will be further constrained. Moreover, the combination of the need for identification with the requirement for cybercafes to keep a log of every user’s browser history means that anonymity online is now effectively made impossible in India. For whistleblowers, artists, writers or anyone desiring anonymity, there is no longer a place in Indian cyberspace.

But the most troubling impact on freedom of expression of the new mandates remains direct: in their attempt to delineate the liability of Internet providers and websites, the new rules for “intermediary due diligence” actually add important new curbs on freedom of expression to Indian law. India’s Constitution recognises a fairly extensive list of so-called “reasonable restrictions” and these are more or less replicated in the Rules: “the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. But the Rules, which were never vetted by Parliament, do not limit themselves to these Constitutional provisions. Rather surprisingly, they add a whole new slew of qualifications, many of which are so vague, moreover, that they leave the door wide open to abuse. Thus, for example, the Rules impose a blanket ban on impersonation and make it illegal to share any information that is “grossly harmful”, “harassing”, “blasphemous”, “disparaging” or “insulting any other nation”. None of these terms have been explained or defined.

Lacking the precision that would allow citizens to precisely regulate their behaviour in line with the law, overly broad regulations such as these are widely believed to have a chilling effect: in order not to violate the law, people begin to censor themselves—to keep quiet rather than protesting or engaging. But in this particular case, the effects are likely to be particularly pernicious because of a second provision made by the Rules: wherever an intermediary receives a complaint claiming that any information they store, host or publish contravenes the provisions of the Rules, the intermediary is required to take down this information within 36 hours. Censorship, in other words, will effectively be privatised.

The prospect is all the more depressing because the intermediaries have little incentive to resist participating in such censorship. Given the restrictions on free speech that are effectively enforced within Indian society by vigilante groups, especially in the last two decades, the possible impact of these rules is even more frightening. If Facebook has little reason to uphold your right to maintain a page that is critical of say, Gandhiji, what prevents vigilante groups from policing our lives online even more than they do offline? The only recourse available to the owner of the confiscated information will be going to court—meaning that defending one’s own freedom of speech online will require endless litigation.

These are worrying omens, in other words, for those who believe that freedom of expression is the cornerstone of democracy. But to what extent do these new provisions represent a radical break with India’s existing restrictions on free speech? Since its founding, the independent Indian nation-state has wielded censorship as a tool to both contain the conflicts that emanate from India’s tremendous diversity and to ensure its homogeneous social, moral and political development. If the list of reasonable restrictions in the Constitution is fairly long, this is because the country’s lawmakers were clear at the time of Independence that freedom of expression would need to be subordinated to the social reforms necessary to put the country on Nehru’s path to development. India’s far-reaching anti-hate speech laws, too, derive from the desire to combat ill will and disharmony. Since the Internet now makes it so much easier to publish opinions that are hurtful, or indeed “grossly harmful” or “disparaging”, the new Rules can in many ways be seen as an attempt to continue this strategy in the Internet age.

The problem, however, is that irrespective of the merits of such a strategy in the past, within the radically altered communicative context of the Internet, it is simply no longer feasible. As the Internet guru Clay Shirky has argued, earlier systems of media and communication worked on a “filter, then publish” principle. Because publishing a newspaper, for example, is expensive, editors and journalists take upon themselves the role of filtering out the “worthwhile” from the “not-so-worthwhile”. Without them making that vital differentiation between “news” and “information” on the one hand and “drivel” on the other, newspapers would simply not be viable. In the Internet age, however, this principle has been reversed. The arrival of social media especially has made it so easy and cheap for anyone to share their opinions that the mantra now is: first publish, then filter. The gatekeeper role of the traditional media stands much reduced.

For the Indian government’s strategy of using censorship as a tool to mitigate social conflict, this shift has two important consequences. The first one is quantitative: it means that there are now far more speech acts to police. That undoubtedly has made the state’s task much more difficult. But there is also a second, qualitative difference: it also means that whether the government approves of this or not, there will now be a far wider range of people who will make their voices heard, and thus, a far wider range of opinions that will be expressed in the public sphere. And it is precisely to stop such a diversity from emerging that much censorship in India has been justified over the years. As a 1980 report of the Working Group on National Film Policy argued: “if the overall objective of censorship is to safeguard generally accepted standards of morality and decency, in addition to the well recognised interests of the State, the standards of censorship applicable to freedom of expression cannot be very much ahead of the standards of behaviour commonly accepted in society. Censorship can become liberal only to the extent society itself becomes genuinely liberal”.

What such statements conveniently elide, of course, is the enormous diversity within Indian society itself. Whose standards of behaviour are they thinking of? Kashmiri, Manipuri, Chhattisgarhi? Gandhian, feminist, communist? Adivasi, Muslim, Dalit? Who represents this community of the nation? Censorship always benefits the status quo, and the Indian case has been no different. The rise of the Internet has merely revealed, with increasing frequency, cracks in the supposedly uniform moral, social and political development of India that the government envisioned. If the old censorship regime is to nevertheless be maintained in this new context, it will therefore increasingly require the active chilling of freedom of expression on the part of the state. What the uproar surrounding the Internet Control Rules makes clear is that in the Internet age, as before, this is an unacceptable route for a modern democracy. A new model to deal with diversity and dissent is urgently required.

What makes our democracy? With the undeniable challenges that the Internet throws to our established ways of operating, it is time to reopen this debate as a society, rather than leaving it to politicians and bureaucrats. The open forum of the Internet may often offend, or rattle our sensibilities and beliefs, but it also presents new possibilities for engagement and debate. Will we take this opportunity?

Read the original here

For more details visit https://cis-india.org/internet-governance/blog/the-present-and-future-dangers-of-indias-draconian-new-internet-regulations

You Have the Right to Remain Silent

anja — 2011-08-02T07:55:22Z

India has a long history of censorship that it justifies in the name of national security. But new laws governing the Internet are unreasonable and — given the multitude of online voices — poorly thought out, argues Anja Kovacs in this article published in the Sunday Guardian on 17 April 2011.

In March 2011, Indian media - both social and traditional - was ablaze with fears that a new set of rules, proposed to complement the IT (Amendment) Act 2008, would thwart the freedom of expression of India's bloggers: contrary to standard international practice, the Intermediary Due Dilligence Rules seemed intent on making bloggers responsible for comments made by readers on their site. Only a few weeks earlier, the threat of online censorship had manifested itself in a different form: although the block was implemented unevenly, mobile applications market space Mobango, bulk SMS provider Clickatell, hacking-related portal Zone-H.com and blogs hosted on Typepad were suddenly no longer accessible for most Indian netizens, without warning or explanation.

Censorship in India is nothing new. At the time of Independence, there was widespread fear among its lawmakers that unrestricted freedom of expression could become a barrier to the social reforms necessary to put the country on Nehru's path to development – particularly as the memory of Partition continued to be vivid. Although freedom of expression is guaranteed by the Constitution, it is therefore subject to a fairly extensive list of so-called "reasonable" restrictions: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. But while this long list might have made sense at the time of Partition, in the mature democracy that India has now become, its existence, and the numerous opportunities for censorship and surveillance that it has enabled or justified, seems out of place. Indeed, though all these restrictions in themselves are considered acceptable internationally, there are few other democratic states that include all of them in the basic laws of their land.

An appetite for censorship does not only exist among India's legislature and judiciary, however. Especially since the early nineties, instances of vigilante groups destroying art, preventing film screenings, or even attacking offending artists, writers and editors have become noteworthy for their regularity. But it is worth noting that even more progressive sections of society have not been averse to censorship: for example, section of the Indian feminist movement have voiced strong support for the Indecent Representation of Women Act that seeks to censor images of women which are derogatory, denigrating or likely to corrupt public morality.

What connects all these efforts? A belief that suppressing speech and opinions makes it possible to contain the conflicts that emanate from India's tremendous diversity, while simultaneously ensuring its homogenous moral as much as political development. But if the advent of satellite television already revealed the vulnerabilities of this strategy, the Internet has made clear that in the long term, it is simply untenable. It is not just that the authors of a speech act may not be residents of India; it is that everybody can now become an author, infinitely multiplying the number of expressions that are produced each year and that thus could come within the Law's ambit. In this context, even if it may still have a role, suppression clearly can no longer be the preferred or even dominant technology of choice to manage disagreements. What is urgently needed is the building of a much stronger culture of respectful disagreement and debate within and across the country's many social groups. If more and more people are now getting an opportunity to speak, what we need to make sure is that they end up having a conversation.

Yet the government of India so far has mostly continued on the beaten track, putting into place a range of legislations and policies to meticulously monitor and police the freedom of expression of netizens within its borders. Thus, for example, section 66F(1)(B) of the IT (Amendment) Act 2008 defines "cyberterrorism" so broadly as to include the unauthorised access to information on a computer with a belief that that information may be used to cause injury to...decency or morality. The suggested sentence may extend to imprisonment for life. The proposed Intermediary Due Dilligence Rules 2011 privatise the responsibility for censorship by making intermediaries responsible for all content that they host or store, putting unprecedented power over our acts of speech into the hands of private bodies. The proposed Cyber Cafe Rules 2011 order that children who do not possess a photo identity card need to be accompanied by an adult who does, constraining the Internet access of crores of young people among the less advantaged sections of society in particular. And while the US and other Western countries continue to debate the desireability of an Internet Kill Switch, the Indian government obtained this prerogative through section 69A of the IT (Amendment Act) 2008 years ago.

Such measures are given extra teeth by being paired with unprecedented systems of surveillance. For example, there are proposals on the table that make it obligatory for telecommunication carriers and manufacturers of telecommunications equipment to ensure their equipment and services have built-in surveillance capabilities. While at present, records are only kept if there is a specific requirement by intelligence or security agencies, the Intelligence Bureau has proposed that ISPs keep a record of all online activities of all customers for at least six months. The IB has also suggested putting into place a unique identification system for all Internet users, whereby they would be required to submit some form of online identification every time they go online.

Proponents of such legislation often point to the new threats to safety and security that the Internet poses to defend these measures, and it is indeed a core obligation of any state to ensure the safety of its citizens. But the hallmark of a democracy is that it carefully balances any measures to do so with the continued guarantee of its citizens' fundamental rights. Despite the enormous changes and challenges that the Internet brings for freedom of expression everywhere, such an exercise seems to sadly not yet have been systematically undertaken in India so far.

The recent blocking of websites with which we started this article reflects the urgent need to do so. In response to RTI applications by the Centre for Internet and Society and Medianama, the Department of Information Technology, which is authorised to order such blocks, admitted to blocking Zone-H, but not any of the other websites affected earlier this year. In an interview with The Hindu, the Department of Telecommunication too had denied ordering the blocking of access, despite the fact that some users trying to access Typepad had reported seeing the message "this site has been blocked as per request by Department of Telecom" on their screen. In the mean time, Clickatell and Mobango remain inaccessible for this author at the time of writing. That we continue to be in the dark as to why this is so in the world's largest democracy deserves to urgently become a rallying point.

For more details visit https://cis-india.org/internet-governance/blog/your-right-to-remain-silent

DIT's Response to RTI on Website Blocking

pranesh — 2011-08-02T07:13:47Z

For the first time in India, we have a list of websites that are blocked by order of the Indian government. This data was received from the Department of Information Technology in response to an RTI that CIS filed. Pranesh Prakash of CIS analyzes the implications of these blocks, as well as the shortcomings of the DIT's response.

Quick Analysis of DIT's Response to the RTI

Blocked websites

The eleven websites that the DIT acknowledges are blocked in India are:

Of the eleven blocked websites, one was still accessible on a Tata Communications DSL connection. Two of the blocked websites are grassroots news organizations connected to the Independent Media Centre: IndyBay (San Francisco Bay Area IMC) and the Arizona Indymedia website. The Bloggernews.net page that is on the blocked list is in fact an article by N. Vijayashankar (Naavi) from March 12, 2010 titled "Is E2 labs right in getting zone-h.org blocked?", criticising the judicial blocking of Zone-H.org by E2 Labs (with E2 Labs being represented by lawyer Pawan Duggal). The Zone-H.org case is still going through the judicial motions in the District Court of Delhi, but E2 Labs managed to get an ex parte (i.e., without Zone-H being heard) interim order from the judge asking Designated Officer (Mr. Gulshan Rai of DIT) to block access to Zone-H.org.

As has happened in the past, the government (or the court) accidentally ordered the blocking of all of website host webs.com, instead of blocking only http://donotdial100.webs.com (which subdomain apparently hosted 'defamatory' and 'abusive' information about mafia links within the Maharashtra police and political circles).

It is interesting to note that for most of the websites on most ISPs one gets a 'request timed out' error while trying to access the blocked websites, and not a sign saying: "site blocked for XYZ reason on request dated DD-MM-YYYY received from the DIT". On Reliance broadband connections, for some of the above websites an error message appears, which states: "This site has been blocked as per instructions from Department of Telecom".

Judicial blocking

As per the response of the government, all eleven seem to have been blocked on orders received from the judiciary. While they don't state this directly, this is the conclusion one is led to since the Department admits to blocking eleven websites and also notes that there have been eleven requests for blocking from the judiciary. Normally the judiciary is often thought of as a check on the executive's penchant for banning (seen especially in the recent book banning cases in Maharashtra, for instance, where the Bombay High Court has overturned most of the government's banning orders). However, in these cases the ill-informed lower judiciary seem to be manipulated by lawyers to suppress freedom of speech and expression, even going to the extent of blocking grassroots activist news organizations like the Independent Media Centre.

Websites not blocked by DIT

The DIT also notes that the blocks on Typepad.com was not authorized by it (nor, according to the RTI response received by Nikhil Pahwa of Medianama was the Mobango.com block authorised by the DIT). Typepad.com, Mobango.com, and Clickatell.com don't seem to be blocked currently. However, as was reported by Medianama, for a while when they were being blocked, some sites and ISPs (such as Typepad.com on Bharti Airtel DSL) showed a message stating that the website was blocked on request from the Department of Telecom, which we don't believe has the authority to order blocking of websites. While we still await a response from the Department of Telecom to the RTI we filed with them on this topic, in a letter to the Hindu, the Department of Telecom has clarified that it did not order any block on Typepad.com or any of the other websites. This leaves us unsure as to who ordered these blocks. Further, it points out a lacuna in our information policy that ISPs can suo motu block websites without justifications (such as violation of terms of use), proper notice to customers, or any kind of repercussions for wrongful blocking.

Insufficient information on Committee for Examination of Requests

All requests for websites blocking (except those directly from the judiciary) must be vetted by the Committee for Examination of Requests (CER) under Rule 8(4) of the Rules under s.69A of the IT Act. Given that the DIT admits that the Designated Officer (who carries out the blocking) has received 21 requests to date, there should be at least 21 recommendations of the CER. However, the DIT has not provided us with the details of those 21 requests and the 21 recommendations. We are filing another RTI to uncover this information.

Text of the DIT's Response

Government of India
Ministry of Communications & Information Technology
Department of Information Technology
Electronics Niketan, 6 CGO Complex,
New Delhi-110003

No : 14(3)/2011-ESD

Shri Pranesh Prakash
Centre for Internet and Society
194, 2-C Cross,
Domulur Stage II,
Bangalore- 560071.

Subject: Request for information under RTI Act,

Sir,
Reference your request dated 28lh February 2011 on the above subject.
The point wise information as received from the custodian of Information is enclosed for your reference and records.

sd/-
(A.K.Kaushik)
Additional Director & CPIO
Tel: 011-24364803

Subject : RTI on website blocking requested by Shri Pranesh Prakash

(i) Did the Department order Airtel to block TypePad under S.69A of the Information Technology Act ("IT Act"), 2000 read with the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 ("Rules") or any other law for the time being in force? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites in contravention of S.69A of the IT Act?

Reply - This Department did not order Airtel to block the said site.

(ii) Has the Department ever ordered a block under s.69A of the IT Act? If so, what was the information that was ordered to be blocked?

Reply - The Department has issued directions for blocking under section 69A for the following websites:
(a) www.zone-h.org.
(b) http://donotdial100.webs.com (IP 216.52.115.50)
(c) www.bloggernews.net/124029
(d) http://www.google.co.in/#h 1 =en&source=hp& biw=1276&bih=843&=dr+babasaheb+ambedkar+ wallpaper&aq=4&aqi=g10&aql =&oq=dr+ babas& gs_rfai=&fp=e791 fe993fa412ba
(e) http://www.cinemahd.net/desktop-enhancements/wallpaper/23945- wallpapers-beautiful-girl-wallpaper.html
(f) http://www.chakpak.com/find/images/ kamasutra-hindi-movie
(g) http://www.submitlink.khatana.net/2010/09/jennifer-stano-is-engaged- to.html
(h) http://www.result.khatana.net/2010/11/im-no-panty-girl-yana-gupta- wardrobe.html.
(i) http://www.facebook.com/pages/l-Hate-Ambedkar/172025102828076
(j) www.indybay.org
(k) www.arizona.indymedia.org

(iii) How many requests for blocking of information has the Designated Officer received, and how many of those requests have been accepted and how many rejected? How many of those requests were for emergency blocking under Rule 9 of the Rules?

Reply - Designated Officer received 21 request for blocking of information. 11 websites have been blocked on the basis of orders received from court of law. One request has been rejected. For other requests, additional input/information has been sought from the Nodal Officer.

No request for emergency blocking under rule 9 of the Rules have been received.

(iv) Please provide use the present composition of the Committee for Examination of Requests constituted under Rule 7 of the Rules.

Reply - The present composition of the Committee is :
(a) Designated Officer (Group Coordinator - Cyber Law)
(b) Joint Secretary, Ministry of Home Affairs
(c) Joint Secretary, Ministry of Information and Broadcasting
(d) Additional Secretary and Ministry of Law & Justice
(e) Senior Director, Indian Computer Emergency Response Team

(v) Please provide us the dates and copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules, and copies of their recommendations.

Reply - The Committee had met on 24-08-2010 with respect to request for blocking of website www.betfair.com.

(vi) Please provide us the present composition of the Review Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
(vii) Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules, and copies of all orders issued by the Review Committee.

Reply - This Department do not have details for above. The said information may be available with Department of Telecommunications.

For more details visit https://cis-india.org/internet-governance/blog/rti-response-dit-blocking

The Making of an Asian City

nishant — 2012-08-10T08:33:48Z

Nishant Shah attended the conference on 'Pluralism in Asia: Asserting Transnational Identities, Politics, and Perspectives' organised by the Asia Scholarship Foundation, in Bangkok, where he presented the final paper based on his work in Shanghai. The paper, titled 'The Making of an Asian City', consolidates the different case studies and stories collected in this blog, in order to make a larger analyses about questions of cultural production, political interventions and the invisible processes that are a part of the IT Cities.

The Promise of Invisibility: The Making of an Asian IT City

Abstract: This paper understands that in emerging Asian contexts, the proliferation and adoption of Internet technologies leads to two distinct changes in the material (re)construction of the city:

1. Built Form of the City: The physical and material aspects of the city are restructured, redesigned and realigned to house the infrastructure of Internet Technology economies.

2. Governance and Administration: The technologies of governance (and also, the governance of technologies) that reconfigure the city for better control, regulation and containment of the subjects of the state.

These changes are articulated and understood, in contemporary scholarship and discourse, through the tropes of Access and Transparency, which propose Technology as neutral. These studies also locate technology as outside of the changing socio-political transformations that the city undergoes in its attempt to emerge as an IT City. The framework, by contextualising technology differently – in larger narratives of continuity and disruption – opens up a dialogue between cybercultures and social sciences to look at conditions of change It also shows how the It demonstrates how such an approach to technology studies enables new and nuanced forms of social sciences inquiry into processes like Dislocation and Migration, which have never addressed the technology question as central to the phenomena.

Context

The 21^st Century has seen accelerated urbanisation and spatial restructuration of cities in emerging information societies around the world. These cities are created as global hubs that shall not only house the Information and Communication Technology (ICT) infrastructure, but also embody the aesthetics, politics, practices and lifestyles that the global cultural revolutions are bringing in. The technologies are significantly involved in the production of the dominant, the hegemonic and the coercive, all under the rubric of economic growth and development, and have affected domains of life, labour and language (Foucault,1998) in different contexts. It is easy to trace the ways in which lifestyle, cultural expression (Bagga, 2005), texture of social interaction and mobilisation, and political and administrative reorganisation (Roy, 2005) have changed in emerging contexts like India and China.

The efforts at creating ‘global countries’ (Kalam, 2004) that can harness the powers of ICT, have lead to three distinct forms of changes. These changes can be seen in the built form of the city, in structures of governance and administration, and in attitudes and Imagination of technologies as they emerge in popular discourse and cultural production. Each of these changes is articulated and explained through the tropes of Transparency and Access. The paper has a specific interest in looking at sites of dislocation and migration, to illustrate the arguments it seeks to make. The paper relies on secondary and tertiary literature (often in translation), unstructured interviews and participant observation to make an argument about how the aesthetics, mechanics and political [i] imaginaries of technology are a part of the physically changing and transforming IT cities in Asia. In order to make the argument, however, a brief context that explains the material signification of these three kinds of changes, is necessary to be explicated.

Beyond the Blogosphere

There has been an equal amount of optimism and scepticism when it comes to talking about the new public spheres that emerge with the Internet. Clubbed under the short-hand ‘Blogosphere’, both the evangelists and the critics of the blogosphere, have explored the Habermassian notion of the engaging public that is crafted with the emergence of new technologies of literacy, expression and participation. In many ways, the governance structures that have been discussed earlier, also endorse the positions taken by these interlocutors. However, much of the discourse, understands the blogosphere as contained in the digital domains. While a cause-and-effect model is often posited, the chief interest and focus remains on the new public, new voices and new spaces within the virtualities of the World Wide Web. This paper challenges such narrow definitions of the public sphere, and in fact, goes back to Habermass to locate technologies and public spaces within a certain historical context. In fact, this paper proposes that the increasing need for the faith in the blogosphere and the clamour that surrounds it is symptomatic of how the physical and built public spaces, in most Asian IT cities, is slowly diminishing.

In Shanghai, it is the loss of a political public space of socialist capital and industry that marks the beginning of this disappearance. 20 years ago, the announcer on every passenger train entering Shanghai would introduce the city as “the largest industrial city in China.” When W. E. B. Du Bois, an African-American writer, visited Shanghai in 1959, he was particularly invited to visit the balcony of Shanghai Mansion, which sits at the mouth of the Suzhou River and was the tallest building of its time, to catch a bird’s eye view of the new urban socialist landscape and the innumerable factory chimneys that speared the sky (Zhang, 2002).[ii] Indeed, an abundant number of factories, warehouses and dockyards cropped up in the three decades after 1950, and, together with the existing industrial constructions, made Shanghai a “new metropolis.” Some of them were clustered in suburban areas, more were scattered in the city area. Some were even squeezed into Longtangs (the narrow alleyways of old Shanghai). The industrial constructions include not only factory buildings but also workers’ residential buildings in factory-concentrated areas. The workers’ residential buildings were targeted primarily at the senior or skilled workers among the industrial population. Life in the residential buildings became an extension of factory life since neighbours were most probably co-workers in the same factory. It is precisely the great number of old and new industrial constructions and the rhythmic life going on in them that composed the socialist industrial space of Shanghai. Needless to say, it was the fastest growing space in the forty years after 1949.

However, nine out of ten such spaces have been wiped out during the fifteen-year urban renewal project, which is perhaps embodied in the restructuring of the Bund as a space of tourist attraction, and eventually the building of the Pudong skyline that has now become the iconic face of the city (Yatsko, 1996, pp 59).[iii] Factories—let alone warehouses—within the Inner Ring Road have either closed down or been removed. With the closing of the factories, the workers also have no place to work anymore. Dr. Wang XiaoMing, in his essay on the changing public space mentions how, once the factory he worked in “had its signboard removed in 1997, the workers have no place to work anymore. The inhabitants of Caoyang New Village have thrown away the signboard off the gate a long time ago and could barely remember that the place was once called the “Workers New Village.” Large factories located on the outskirts of the city are mostly shut down and the places are as quiet as cemeteries” (forthcoming, 2010).

As Americanised industrial parks sprout up in places such as the Pudong District of Shanghai, and Kunshan and Suzhou to the north of Shanghai, the socialist industrial space is shrinking rapidly both within and without Shanghai. Another space that has significantly diminished is the public political space. One of the most important requirements socialism places on urban space is to be able to facilitate large-scale political rallies and parades (Kewen 2006 and Liang 1959).[iv]

Therefore, apart from industrial constructions, the most eye-catching constructions in Shanghai’s new urban constructions from the 1950s to the 1960s were squares and large meeting halls, which include the People’s Square, the Sino-Russian Friendship Building, the Cultural Plaza, and so on.[v] Moreover, government agencies of all levels and factories endeavoured to build conference halls of various sizes for political meetings by transforming theatre halls or building new ones. In the past, tens of thousands of people have paraded down the People’s Square to pay tribute to the officials perched high above on reviewing stands. People rallying in various meeting halls, changing slogans to express joy, and echoing the instructions from the speakers on stage, were frequent occurrences. During the Cultural Revolution, the Rebels staged the final resistance here; in the late 1980s, fervent university students had swarmed into People’s Square to turn it into a place of revelry (Feuchtwang, 2004).

In the blink of an eye, these histories have faded from the public memory and been completely erased from the city’s architectural space. Sino-Russia Friendship Building is renamed Shanghai Exhibition Center, which hosts a constant blur of Expos. After repeated segmentation, People’s Square is now only a nominal square with a long and narrow driveway and most of its space has been occupied by new buildings such as the majestic Shanghai Grand Theatre, the Shanghai Museum, the sunken commercial street and a parking lot. Cultural Plaza was first transformed into a large flower market which was later torn down and pushed to a corner to make way for the new “Music Plaza.” With mass meetings completely eradicated from the life of Shanghai’s residents, the numerous assembly halls and meeting places of various sizes have naturally been restructures for other purposes. People participate with zeal in large assemblies such as concerts, performance competitions, and so on, which have nothing to do with public politics. It is even possible to say that the audience’s shrieks in the stadium symbolize the massive decrease of the public political space in both architectural and spiritual sense (Tang, 2009, pp 327).

Another cluster of spaces that have significantly disappeared are the gossip centres concentrated in areas such as the mouth of NongTang, Lao Hu Zhao [vi], variety store and lane. It is a cultural given that the Shanghainese like to strike up a conversation with strangers and to engage in gossip; this is indeed one of the city’s hallmarks. The Shanghainese can always spare time for gossip: no matter how busy the atmosphere is, there are always some people who loiter around with hands in pockets; even the working class who work from dawn to dusk like to exchange a few words with their neighbours after work. It so happened that the living space was very cramped for the Shanghainese after the 1950s.[vii] The rich can idle away their time in places such as cinemas whereas the low-income people can only manage to find a free space of leisure near their residences. The first choice is the mouth of NongTang adjacent to the footpath, from which all the comings and goings of residents and the traffics on the streets could be perceived. There will always be a Lao Hu Zhao near the mouth of a big NongTang, where you can sit for a whole afternoon and exchange hearsays with neighbours coming for hot water over a cup of tea; or there is a family-run variety store whose female boss is quite fond of trading rumours and gossip with customers across the narrow counter. In times of local or national crises, this is always the first place where the news is spread and gets distorted.

Things have now changed. Lao Huo Zhaos are gone. Variety stores are quickly replaced by different kinds of convenience stores (Huang, 2004, pp 49-50). Although many similar or even smaller family-run variety stores are opened at the newly-formed district bordering the city, a stable communication space cannot form in these stores since the male or female boss is mostly “non-native population”[viii], who not only is unable to blend in with the local residents but also may move away at any time. Although being one of the hallmarks of old Shanghai houses, the nongtangs have been pulled down in large numbers. Those narrow, winding streets have been either diverted, or straightened and widened. Shabby houses on both sides of the streets have disappeared. Also gone are the hustle and bustle, the interfusion of public and private space, and street gossips, which have been replaced by heavy traffic with exhaust gas and noise. With the increasingly neat arrangement of construction space within the city, the influx of transient population, residents increasingly accustomed to shutting doors to the world and to their neighbours, the overwhelming clamour in the media, and the young people’s addiction to internet and game bars, the space where rumours and gossips are spread via mouths and pointing fingers is naturally contracted (Yeung, 1996, pp. 78-84).

These old spaces of early Shanghainese modernity are quickly replaced by three new built forms. The first are the various above-ground, underground, and overhead expressways. Intersecting and intertwining together, they make the whole city look as if it were trapped in a python’s nest. The second thing that comes to the mind is commercial space.[ix] Shopping malls[x] line both the sides of the streets in downtown Shanghai, whereas hypermarkets cluster at the periphery of the city (Diao, 2006)[xi]. With the speedy expansion of space (Li, 2006)[xii], the style of constructions are increasingly uniform: nearly all of them name themselves “squares”; shopping malls are lined with chain stores on every level; chain supermarkets create mazes of different sizes with dense goods shelves; in office buildings, glass doors and plastic boards partition the office into many honeycomb-like cubicles, making the people working in them increasingly look like worker bees; the hospitality industry is overwhelmed with chain hotels of similar facilities and styles, even customers often forget which hotel they stay in last time (Fulong, 1999). The accelerated standardization process in Shanghai’s space highlights a tendency to obtain the standard outlook of the imagined “international metropolis” and an urgency to erase the distinct features inherited from the past.

Thirdly, the office space of governments and state monopolies expands in a unique sense: although the floor area has increased significantly[xiii], it is the upgrading and the move towards luxury that marks the change. Since the early 1990s, luxurious office buildings with halls paved with marble floor, central air conditioning system, shiny wood floors, CEO office suite with separate bathroom, were built first by banks, then revenue departments, telecommunication agencies, newspapers offices, television stations, courts, and police stations of different levels, and at last governments of municipal, district and even lower levels.[xiv] Not only the connotation of “work” has been enriched, but also other business spaces outside the office have expanded with restaurants, coffee bars, official reception hotels, training centers and vacation centers located in the office buildings or on the outskirts of town or other cities (Leaf, 1997, pp. 156-159).

The changes in the built form of the new IT City that has emerged, are particularly important because they signal the ways in which certain kinds of populations are made redundant in the city as it grows physically more hostile to their life in it. The erasure of histories, of public spaces, of spaces of political negotiation is symptomatic of the new ideologies, policies and dreams that Shanghai-Pudong embody. Most of the studies that look at these changes, concentrate only on the physical and material aspects of it, and ignore the aesthetics, politics, and changes that Internet technologies are bringing in, not only in the imagination of what constitutes a city, but also in the material and lived practices of the people in it (Appadurai, 1990). Government policies that ignore technologies, come to dead-ends in their intervention, as they fail to recognise the new geographies and terrains that the technology users navigate through. Interventions by the Development Sector or the Civil Society Movements often fail to recognise the structures of governance as informed by internet technologies, thus perpetrating the very evils that they fight against. Dislocation and Migration, which are complex issues, get reduced to only geography and physical places – leading to a simplified structure of rehabilitation, largely propelled by the vocabulary of the market and the state. Remunerations, economic rights and livelihood are the only questions addressed. In the process Community rights, structures of communication and networking, relationships within families and societies, ineffable ties and bonds that keep the communities coherent – these affective categories which are dislocated and forced to migrate because of the presence of technologies, fail to register either in the scholarship or in the practices in these areas.

This is where the blogosphere needs to be located – as not merely producing a new space of engagement, but helping in recovering the lost spaces of public participation and community communication. The blogosphere is not merely the invention of a technology marked digital native or the discovery of groups seeking alternative narratives. It is recognition of the fact that the regular mainstream public discourse, interacts with the social transformations and politics of our time and depend on the sustenance of public spheres for the socio-cultural categories like communities, neighbourhoods, public space, etc. to survive. The blogosphere, in the quickly changing, hyper-real landscape of Shanghai-Pudong’s geography is the new variety store, the new location for the Lao Hu Zhao and the space that the labyrinthine networks of nongtangs are mapped on.

e-Governance and its discontents

The change in the physical reorganisation of the city is not only a pragmatic decision. This disappearance of the public space of gossip, information dissemination and distortion, of informal conversations and deliberations tied in closely to the three levels of government in Shanghai – district government, street office and alley office – being able to increasingly control the leisure life of the Shanghainese through administrative planning and organisation (Zhang, 2004). There is a clear link between the government’s imagination of its own territory, the notion of the citizen who is to occupy these spaces, and the material practices that happen in these technology marked spaces (Feuchtwang, 2004). While it is an acknowledged fact that the Chinese government does not follow the structures and paradigms that a North-Western Democratic Liberal ideology that has produced the category of Nation-State in most contemporary discourse, there are still two specific forms of technology inflected governance structures which China seems to share with other contexts which might be geo-politically different.

The e-Governance models, which find resonances in most emerging contexts in the Global South, seem to develop two simultaneous and often ironically related approaches towards citizenship and administration, especially in the context of China. With its already forked governance policies, which treat HongKong – its colonial success story – differently from the rest of Mainland China (and the added complication of Taiwan) the governance structures are marked by technology in significant ways. These structures are suffused with irony, because of the tropes of transparency and invisibility that they use to articulate their rationale and processes.

The first is the approach of Rural Development through ICT networks, positing an access based model of participatory citizenship (Tarlo, 2003) and continuing the Development rhetoric of uplift and reform of the deprived citizen. This particular kind of governance structure re-imagines the beneficiary of state/government processes as existing in a condition of invisibility, and outside of the folds of technology. The particular emphasis on e-government, while it is located in the urban settings, is actually intended for reaching the citizen in the remote parts of the country, who does not have any engagement or direct interaction with processes of governance. Despite China’s three tiered government structure, the imagination of e-governance hold a strong currency because it makes visible, the people, practices and communities which otherwise exist in the subliminal and grey areas which were hitherto not in the focus of the government. Fuelling the rhetoric of e-government is the premium on information dissemination and transparent administration in order to enhance the domains of life and labour in the rural parts of the country.

This approach draws its strength from the Development agenda of reform and uplift as it markedly emphasises the distance between the ‘haves and the have-nots’. However, the valourisation of transparency goes hand-in-glove with the production of the invisible (but cognisable) citizen who needs to be reproduced within the paradigms of technology. The peasant, who has been at the back-bone of China’s socialist political ideology, under this new articulation of transparency, becomes invisible – robbed of the historicity, the cultural iconoclasms and the empowerment that such policies earlier provided. Instead, the peasant becomes a worker who needs to be rehabilitated into the changing geographies of Pudong, the new IT city that requires a worker equipped with new skills and lifestyles. This approach draws its strength from the Developmental agenda of reform and uplift as it markedly emphasises the distance between the ‘haves and the have-nots’ (Jaswal, 2005) and offers ICT enabled development as the panacea for the problems of unemployment, illiteracy, chronic poverty, etc. This approach is made manifest in the establishment of Telecentre kiosks, rural BPOs, e-literacy schools and mobile vans, setting up of mobile and internet technology centres, digitisation of the state’s resources, digital access centres to important data-sets, initiation of projects like ‘One Home One Computer’, the e-literacy campaigns, and the building of special economic zones (SEZ) and IT Corridors under the aegis of e-governance (Hawks, 2009).

The second approach is invested in the massive restructuration of the urban spaces to create infrastructure that attracts foreign investment and ICT enabled multinational corporations. This approach uses the language of creating a S.M.A.R.T. (Smart, Moral, Accountable, Responsive, Transparent) State, modelling the new spaces and politics around the new models of capital modernity (Appadurai, 1996) like Singapore, Shanghai, Tokyo and Taipei. This model is nuanced by a vocabulary of ‘global citizenship and globalised economy’ (Abbas, 1997), glorifying the new economic opportunities, flows of foreign capital, enhancement of lifestyle, and the promise of hypervisibility in the globalisation networks. The building up of network-neighbourhoods (Doheny-Farina, 1996), spaces of incessant commercial consumption, post modern digitalised aesthetics of living and housing, (Mitchell, 1996) infrastructure for ICT augmented lifestyles, spaces for sculpting hyperspatial bodies, and recreational zones that offer apolitical aesthetics of living (Chua, 2000), are all a part of this restructuration.

Contemporary analyses that deploy both these approaches are often contained within the language and the universes created by these approaches. Studies on e-governance concentrate on the processes of infrastructure development, the economic parameters of efficient administration, questions of rights and transparency and impact analyses of the public private partnership which is at the basis of most e-governance projects in India. Urban restructuration has found critique from disciplines that focus largely upon the promissory implementation of State policies, on the imbalance in the urban eco-systems, the new patterns of migration in the city, the cultural and class mobility that the new economies offer, and the emergence of the new middle class that becomes the figurehead of the IT revolution (Huang, 2005). Most studies look upon technology as incidental or instrumental; a tool towards an end. The relationship between ICTs and the State, and the kind of technosocial evolution they produce are generally zones of silence in most discourse. Both these discourses produce a certain hyper-visual citizen subject who is either the champion of the new Information societies or the victim of the digital divide that has ensued.

ICTs are often posited as neutral and transparent because they allow us to look at these two kinds of citizenships on the opposite end of the digital spectrum. It can be argued that the divides of ICTs are transparent and hence it offers clearly defined spaces of intervention and uplift. The development sector around the world has accepted this as a given and hence, along with the Governments, they have also been urging a blanket development of infrastructure of access to technology for a particular section of the society, in an attempt to ‘cure’ certain long standing problems. As in the case of India, China is also fuelled by this transparency rhetoric, which allows for the production of the power-user versus the un-networked and has pinned its hopes on the transformative powers of Internet Technologies. With more than two decades of ICT development in the country, and especially in spaces like Shanghai-Pudong, behind them, China seems to be facing a moment of crisis. On the one hand is its promotion and adoption of internet and digital technologies, which encourages younger users entering in “schools, colleges, universities and workforces to transform the economic conditions” (Heng, 2006). On the other hand is the imagination of these IT forces as transgressive, uncontrollable and in need of constant supervision in order to retain existing government-citizenship relationships and power structures. In the middle of this crisis, is another factor that the obvious suspects and users of technology, who are more under the radar, are not the people who are deploying technologies for political negotiation and using technology platforms for political mobilisation. Despite the efforts at green-washing its technologies and the production of the infamous Great Fire-wall of China, there has been a sustained use of internet technologies for resistance and subversion.

The spaces for subversion rises from the fact that with the making of the IT city, there has been a complex phenomenon of dislocation and migration, as several communities were made redundant in the logic of the IT City and were removed from the city. Many people from these communities re-entered the city as the new IT workforce after going through a ‘rehabilitation’ and ‘skill building’ to not only be a part of the IT labour groups but also to support the IT industry in the construction of the physical infrastructure. Moreover, there has been a steady flow of anonymous ‘outsiders’ who have found homes in the older nontangs and factories, and are in the subliminal zones of regulation. As the city is re-formed to make these people invisible (Abbas, 1997), their leisure space and time shrink and they find themselves increasingly forming the new prosumers of internet in Shanghai. However, in the transparency discourse that unfolds, these populations remain invisible and find spaces of resistance and political negotiation that their invisible status provides them. The promise of Invisibility that treats them as Wetware (the biological combination of a network consisting of Software and Hardware), allows for hope in the otherwise diminishing spaces of political articulation in a growing authoritarian regime in China.

Invisibility, Transparency and the Internet

The paper ends by re-formulating the relationship between the making of an IT City and the way in which transparency as a rhetoric and technology-as-instrumental method fail to account for the different kinds of changes that accompany the restructuring of these cities. On the one hand, there is shrinkage of physical space and built form, as new forms of technology infrastructure, global lifestyle and late capitalistic economies expand to fill up the spaces which were earlier available for political mobilisation, organisation and inhabitation. On the other, there is a diminishing political landscape, where, with the integration of the government with the market, there is a tendency to establish larger regulation and censorship in order to retain the status quo relationship between the government and the citizen, in the face of massive governance transition. Both these conditions are produced by the rise and spread of Information Technologies.

In the process, there are also only two kinds of citizenships that are addressed by the e-governance structures which work on a double edge: Firstly, they make the direct access (defined either by abundance or lack of access) citizenships hyper-visual, robbing them of nuances and looking upon them as implicated only in the discursive practices of Internet technologies. Second, they render invisible, the other supporting structures in order to highlight and focus on the economic development and growth propelled by the rise of the IT industries. In other words, they make the citizens who are central to the discourse, invisible, by treating them as embodiments of the new economic markets and aspirations, removing them from their traditional contexts, histories and spaces. Moreover, they make invisible/transparent, populations who are not marked by the aura of the Internet technologies, in order to bring into focus, the extraordinary changes – both in the physical built form as well as in the realms of governance – that have been initiated and accomplished with the making of the IT City Shanghai-Pudong.

References:

Abbas, Ackbar. 1997. Hong Kong: Culture and the Politics of Disappearance. Hong Kong: Hong Kong University press.

Appadurai, Arjun. 1990. "The Coming Community." In Global Culture, edited by Michael Featherstone. London: Sage.

Feuchtwang, Stephen. 2004. Making Place: State Projects, Globalisation and Local Responses in China. New York: Routledge Cavendish

Hawks, F.L. 2009. A Short History of Shanghai: Being an account of the growth and development of the international settlement. Beijing: China Intercontinental Press.

Hiibbard, Peter. 2008. The Bund Shanghai : China Faces the West. Odyssey Books and Guides.

Huang, Tsung-yi Michelle. 2004. Walking Between Slums and Skyscrapers : Illusions of open space in HK, Tokyo and Shanghai. Hong Kong: Hong Kong University Press.

Leaf, Michael. 1998. ‘Urban planning and urban reality under Chinese economic reforms’, Journal of Planning Education and Research. 18(2): 145–153.

Li, Heng. 2006. “Behind the Spectacle of Commercial Real Estate,” Xinmin Weekly, 3rd issue (2006)

Mirsky, Jonathan. 2008. The Britannica Guide to Modern China : A comprehensive introduction to the world’s new economic giant. London: Constable and Robinson Ltd.

Diao Wenjun, “Analysis of the Present situation and Development Trend of Hypermarkets in Shanghai,” Shanghai Articles, 3rd issue (2006)

(STSN) Shanghai Times Square Newsletter. 2008. Issue No. 4. Shanghai.

Shu, Kewen. 2006. “the dynastic History of Tiananmen Square”, Life Week, Issue 11. 27^th March.

Sicheng, Liang. 1959. “Tiananmen Square”, Architectural Journal Issue 9-10. pp. 12.

SSY (Shanghai Statistical Yearbook) 1986, Shanghai Statistics Bureau, (September, 1986), p18, p412.

SSY(a) (shanghai Statistical Yearbook) 2005. Shanghai Statistics Bureau. China Statistics Press. August 2005.

Stanat, Michael. 2005. China’s Generation Y: Understanding the Future Leaders of the World’s Next Superpower. NY: Homa and Sekey Books.

Tang, Shih-che. 2009. ‘The club and the carrot of China’s globalization.’ Inter-Asia Cultural Studies. Volume 10, Number 2. Delhi: Routledge Journals.

Wu, Fulong. 1999. ‘The global and local dimensions of place-making: remaking Shanghai as a world city’. Urban Studies, 37(8): 1359–1377.

Xixian, Xu and Xu JianRong. 2004. A Changing Shanghai. Shangai: Shanghai People’s Fine Arts Publishing House.

Yeung, Yue-man. 1996. Shanghai: Transformation and Modernization Under China's Open Policy. Shanghai: Chinese University Press.

Zhang, Jishun. , “The Linong of Shanghai: the political mobilization of grass-roots and the trend of national social integration (1950-1955),” Chinese Social Sciences Today, 2nd issue, 2004

Zhang, Xudong. 2002. “The Construct of Shanghai: Criticism of Urban Idols, Non-mainstream Writing and the Diminishment of Modern Myths” Literary Review, the 5th edition

[i] The project wants to emphasize that it is not attempting a historiography of the building of the IT City of Shanghai-Pudong. Instead, by drawing selectively, different ways in which the technology imaginaries (technopolises, intellectual labour, globally homogenous geographies and time-lines, bodies marked by technology in their material practices, etc ) of the Internet, find structure and form in the emerging IT cities in Asia.

[ii] Zhang Chunqiao, Secretary of the Culture and Education Department of the Shanghai Municipal Committee who accompanied DuBois to Shanghai Mansion, specially mentioned DuBois’ visit in an article entitled “To Climb the New Summit of Victory.”.

[iii] In 1994, one Shanghai government officer stated, “the government plans to remove or close down two thirds of the factories located within [the range of] 106 square kilometers from the city centre, namely, within the Inner Ring Road.”. Due to different reasons (one of the main reasons is the increase of transferee cost because unsolved problems, such as the proper placement of a large number of former workers, have been bundled with the factory buildings and factory land), some factories still remain in their original places, although most of them have already stopped manufacturing and the workers dismissed. The industrial life/space has disappeared with the disappearance of the factories. Ruins of this life/space become some sort of commodity only because the land under the ruins still has some value.

[iv] On the day (1 October 1949) of the founding of the People’s Republic of China, Mao Zedong suggested rebuilding Tiananmen Square and making it a “grand and magnificent square.” See (Kewen, 2006). Liang Sicheng, who always insisted on preserving the old Beijing and opposed massive makeover, finally realized that the makeover was never about architecture but about politics: “As for the scale of Tiananmen Square … apart from considering the scale of man as a biological being and the scale of construction appropriate to the man’s physiology, we should also take into account the scale for the great collective requested by the political men in the new society.” Liang, 1959, pp 12).

[v] The People’s Square, transformed in 1953 from the original racecourse (which was nationalized in 1951 by the Municipal Military Control Commission), surrounded by woods, and paved with tiled and cemented floor, is the largest public space in Shanghai and can accommodate over one million people. The Sino-Russian Friendship Building, which was built in 1955 and was covering an area of 80,000 square meters, was the city’s largest building after the liberation of Shanghai and still ranks top in terms of its indoor space in today’s Shanghai. The Cultural Plaza, transformed in 1952 from the Greyhound Racecourse, had 12,500 seats and was the largest indoor hall in Shanghai.

[vi] It is a unique store that sells boiled water in Shanghai.

[vii] Shanghai’s housing shortage started in the early 20th century instead of the 1950s. The living space within Shanghai city is 16,100,000 square meters in total but 3.9 square meters per capita. During the 32 years from 1952 to 1985, 21,720,000 square meters of housing were built within the city and the registered population increased from 5,300,000 to 6,980,000. The housing shortage was still serious since by 1985, the living space had only reached 5.4 square meters per capita. (SSY, 1986). What needs to be clarified is that the statics of 1949 does not include the shabby slum houses commonly referred to as “gun di long.”

[viii] This is an increasingly popular new word in Shanghai over the last 20 years, which refers to the people who come from other provinces, especially the rural areas, and live in Shanghai but do not have permanent residence in Shanghai. According to the Shanghai Statistics Bureau’s report on March 2006, the immigrating labor population in Shanghai was 3,750,000. 2,840,000 of this population is in the manufacturing, construction, retail, and catering industry and engaged in low-income manual work. The immigrating population should be over 4 million if the large number of people (such as those in the household service business) and their children be taken into calculation.

[ix] In Shanghai, the floor area of shops has increased seven-fold from 4,030,000 square meters in 1990 to 2,857,000 square meters in 2004 and that of hotels has increased three-fold from 6,580,000 square meters in 1990 to 2,204,000 square meters in 2004. The increase of commercial space is even greater if that of commercial office buildings is calculated as well. (SSY(a), 2005, pp. 198)

[x] Take the area around Zhongshan Park for example, although it was one of the earliest developed leisure areas in Shanghai, there was only one small department store in the mid-1980s and the retail business developed slowly. However, within these ten years, with the completion of Zhongshan Park Station along the subway line 2 and light rail line 3, five multi-story shopping malls have been built, all within a radius of 500 meters. The newest among them is a 58-storey building with four levels of basement and nine levels of shopping mall.

[xi] By the end of 2005, hypermarkets measuring over 5000 square meters within Shanghai have reached 97 and 28 more have chosen their locations and would be opened soon. Because of a large number of hypermarkets and the intense competition brought about, a considerable number of them mainly profit from land appreciation rather than from retail.

[xii] By the end of 2005, the commercial real estate in Shanghai has reached a total of 2,900,000 square meters with 2.6 square meters per capita, far exceeding Hong Kong’s 1.2 square meters per capita.

[xiii] Barely 6 million square meters in 1990, the floor area of office buildings in Shanghai reached a total of 4,012,000 square meters in 2004. See Shanghai Statistical Yearbook 2005. Edited by Shanghai Statistics Bureau, published by China Statistics Press in August 2005, p 198. The statistical material on the increase of floor area of commercial office building cannot be found for the present. Even if the material were obtained, it would not be enough since a large area of commercial office building has been rented by many state-owned monopoly agencies. However, the expansion of government office space is great even if it take up only one tenth of the space of office buildings.

[xiv] Such phenomenon exists not only in Shanghai but all over the country, especially in cities and towns of low economic level. The towering and luxurious government, bank, taxation, and police buildings create an ironic contrast with the low and shabby constructions close by.

For more details visit https://cis-india.org/research/grants/the-promise-of-invisibility-technology-and-the-city/finalpaper

Privacy, pornography, sexuality (a video)

namita — 2011-08-02T08:37:19Z

The video is an attempt to use the material collected for purposes of provoking a discussion around privacy, pornography, sexuality and technology. It focuses largely on an Indian context, which most viewers would be familiar with. The video is pegged around the ban of Savita Bhabhi – a pornographic comic toon – but uses that to open up a discussion on various incidents and concepts in relation to pornography and privacy across Asia.

The project on pleasure and pornography will generate outputs in different formats, but especially since it is meant to be interdisciplinary (legal, critical, feminist, cybercultures, media and cinema studies) it would be interesting to use different ways of communicating the ideas that the project will develop. Several interviews have been conducted (ranging from length of 30 mins to 2 hours) with contemporaries in India whose work in different ways (quantitative research, historical research, filmmaking, academic writings) intersects and relates to pornography – this includes Bharat Murthy, Manjima Bhattacharjya, Nishant Shah, Ratheesh Radhakrishnan, Shohini Ghosh and others.

The video above is an attempt to use the material collected for purposes of provoking a discussion around privacy, pornography, sexuality and technology. It focuses largely on an Indian context, which most viewers would be familiar with. The video is pegged around the ban of Savita Bhabhi – a pornographic comic toon – but uses that to open up a discussion on various incidents and concepts in relation to pornography and privacy across Asia. For instance what is the role of technology and how has it altered or not altered relations between the citizen and the State, what are the stakes of the State in sexual subjectivity of the citizens and what are the relations of gender, pornography and debates around privacy in public discourse.

In this post I would gesture towards the last category that has not been touched upon earlier, in relation to countries such as Malaysia and Indonesia. It has become important during the course of this project to draw connections to work done in the global South. In legal studies, comparative work around legal concepts of obscenity, pornography, vulgarity are most often only in relation to America and United Kingdom, either for a strong tradition of free speech and expression in both countries and because of historical connections to common and legislative law in UK. However it is important to examine the trajectories of similar legal paradigms (Malaysia) and even different legal paradigms (Indonesia) across Asia to understand the mechanics of how pornography is constructed and understood in legal and possibly cultural terms as well.

Here we look at instances of material that are described as pornography in legal terms and how that legal category avoids taking onto itself what could be described as hard core pornography, and instead focuses on material that in the Indian context are described as obscene (see first blog post on Indian law). In other parts of Asia, very often laws that describe what is pornography play an important role in controlling women and reinforcing gendered modes of access to media, information or to public spaces.

The Indonesian Anti-pornography law instead of protecting the privacy of individuals, regulates and controls the ways in which women can participate in the public sphere. The law deals with appropriate garb, behaviour, forms of artistic and video practices under the broad umbrella of the term pornoaksi or pornographic action. In Indonesia as in other parts of Asia, there has been over the last 4-5 years a flood of mobile and webcam pornography uploaded by people themselves (couples and individuals), which forms a large part of the erotic consumption in the country. The sheer volume and circulation of these videos points to how technology is enmeshed in sexual practices in even in the global South, contrary to what is written about sexuality and technology that largely focuses on the phenomenon of technology-sexuality in the global North around platforms such as Second Life[i] or aspects of virtual reality. However the new law (passed in 2008) does not address this phenomenon directly even though that was the reason for promulgation of the law, but instead focuses of the dubious and vague category of pornoaksi.

The law also allows for ordinary citizens to complain about obscene behaviour. According to gender and human rights activists in Indonesia, this gives a lot of leeway to the more socially conservative elements to complain and even attack film festivals, gatherings etc. In an article (unpublished) about the anti pornography law, Julia Suryakusuma (a columnist and writer in Indonesia) says -

"But is the so-called ‘Anti-Pornography Law’ indeed aimed against ‘pornography’, or is really directed against women and the freedoms won through post-Soeharto democratization? The Law, I will argue, is, in fact, based on a social construction of ‘morality’ and womanhood that masks as religion but which is, in fact, a potent combination of social conservatism and political opportunism."

The video ends with a very moving press conference by the Malaysian State Assemblywoman offering her resignation because intimate (but not pornographic) pictures of her had been circulated without her consent by her ex-boyfriend. The incident was a transparent ploy by an opposing political party to denounce a formidable opponent and attempts to use public discourse around obscenity, vulgarity to limit the politician’s participation in the public sphere.

The video was also part of a discussion around privacy, agency and security organized at the recent Internet Governance Forum in Egypt in November, 2009[ii] and was screened at the beginning of the workshop to spear head a discussion between varied participants. The workshop was organized by Alternative Law Forum, Association for Progressive Communication - Women's Networking Support Programme and Center for Internet and Society. The IGF saw an intense focus on issues of privacy especially in relation to issues of data aggregation and control over private and public data of individuals by corporate entities. The video and the session was an attempt to bring into the focus of such discussions, issues more pertinent from a feminist, queer or theoretical perspective.

[i] Coming of age in Second Life, Tom Boellstorff : An ethnography of Second Life that looks at various aspects of practices online including friendship, sexuality, marriage, aspirations and desires.

[ii] More details of this workshop (concept note, speakers) are available on the IGF website at http://www.intgovforum.org/cms/index.php/component/chronocontact/?chronoformname=WSProposals2009View&wspid=275

For more details visit https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/privacy-pornography-sexuality-a-video

Negative of porn

namita — 2011-08-02T08:35:34Z

The post deals with what has been written about Savita Bhabhi in an attempt to make sense of her peccadiloes and with the seeming futility of Porn studies located in America to our different reality. I take the liberty of exploring my own experiential account of pornography since I feel that in that account (mine and others) when done seriously, certain aspects of pornography emerge that address questions that are about cinema, images, sex, philosophy and how desire works. The title is mischeviously inspired from Dr. Pek Van Andel's recent video of MRI images of people having sex.

Jonathan James McCreadie Lillie in his article “Cyberporn, Sexuality and the Net Apparatus” while talking about academic engagement with pornography (by Kipnis, Hunt, Waugh, Kendrick) points to how they share “a common concern with analysing pornography within the various cultural constructs and social spaces in which it appears, and in which people encounter it”. He says that a new agenda for cyberporn research has to acknowledge that “people have produced pornography in many different forms for many different purposes, and the reasons why people use it or do not use it, and what meanings they make of it, are equally diverse”. (1)

Lillie points towards cyberporn reception studies – the home/office terminal as a site of cyberporn reception – as a possible starting point of further work on cyberporn. My interest is located in how does one understand your own consumption of internet porn, located as it is in the context that is not the global North and more specifically not male and not heterosexual. Attempting to do that through the readings in porn studies (Porn studies, edited by Linda Williams) (2), or specifically net porn studies (C’lick me – Net Porn Reader) (3), has not been entirely fruitful though what is talked about is highly interesting. One of the problems perhaps lies in what Lillie says about the need for analyzing pornography within the various cultural constructs and social spaces in which it appears, rather than separate or floating above them. The Internet does not entirely make protean beings (cyborgs?) of us after all, and the relevance of porn studies elsewhere can only be partially relevant to a study here.

[Curiously though the debates within feminism and the women’s movement around pornography in the global North – the familiar rhetoric of the causal links between pornography and violence, do have a resonance in similar debates in the women’s movement here. At a roundtable discussion on the role of media at the recent Courts of Women organized by Vimochana (4), many of the sentiments expressed by activists and organizations see a causal link between explicit sexual material, violence and its direct negative impact on morals, attitudes and behaviour of people.]

Linda Williams begins the volume on Porn Studies by stating that there has been a movement from the deadlock of pro-censorship and sex positive feminist discourse on pornography, to a stage where there is a veritable explosion of sexual material that is crying out for analysis, and that sexually explicit imagery is a fixture in popular culture today (obviously referring to America but to some extent true for other contexts as well). In some ways there is an attempt amongst academics, intellectuals, journalists and other writers here to make sense of the pornographic material that has crept into our media saturated cities. Many recent articles spawned by the ban on Savita Bhabhi attempt to understand the unleashing of desire around Savita Bhabhi (from a rock song to unashamed fandom) and to analyse the reasons for the ban or rather what makes Savita Bhabhi threatening.

Savita Bhabhi, the [porn] [toon] [star]

Itty Abraham undertakes a fairly detailed analysis of what is happening in twelve episodes of Savita Bhabhi and perhaps unconvincingly places the crux of the story of Savita Bhabhi on her cuckolded husband, Ashok (5). He says “Their family life is relentless modern, nuclear, bourgeois, if also gendered in familiar ways. The couple eats together (and at the same time), they watch TV together in the evenings, and sleep in the same bed.” For Abraham, the comic is about “these new sexual possibilities.. that begin from a new kind of freedom to which the modern urban woman has access”. The article suggests that we seem to be faced with a choice between the free untrammeled Savita and her easy occupation of urban spaces protected by an aura of class and her husband Ashok who is the hard worker earning enough to keep alive her/our illusion of abundant urban neoliberal existence. Interestingly the article is not attempting to make a point about pornography in relation to ideas of culture, tradition, vulgarity or other familiar motifs in the debate on obscenity.

Shohini Ghosh’s article takes on the task to find out what precisely is so transgressive about Savita Bhabhi (6). Savita Bhabhi is poised between the family and husband and illegitimate desires (similar to themes in Charulata, Hum aapke hain kaun). She points that the pleasure of the comic is not just that there are hard core sexual scenes as much as that the husband or a similar character cannot look at what you look at. The Indian erotica (or pornographic text) scene too is replete with tales of incest and transgressions with domestic workers or servants|maids as they are called in the stories. Ghosh while acknowledging the harm-violence debate within feminism on pornography, states that she is anti-censorship – that although it is obvious that media, images have an impact (otherwise why would they be cause of study) there is no neat causal link between porn and sexual violence. She ends by saying that “pornography then is a phantasmatic arena. It does not reflect people’s ‘real’ sex lives so much as it articulates the desires and aspirations for imagined ones.”

Both articles make important linkages to other and pre-existing debates on neo-liberal agendas, occupation of urban spaces, feminism and obscenity. Ghosh seems to also be referring to a broader category of Indian porn and the problems posed by it. She also gestures towards the problems that might be posed if Savita Bhabhi were a real person and not a comic, but by and large most journalistic writing/analysis of Savita Bhabhi flattens out the field – asking questions as if comic characters were real persons, and not taking into account aesthetics, technology (mode of delivery) or where and how it is viewed (reception) by people. There is a difference in the way I respond to a comic about sex than to an MMS or hidden camera porn where I am aware of the ‘realness’ of atleast some aspects of the image I’m looking at.

The ‘realness’ raises certain dilemmas – the anxiety is not as severe and troubled as in the case of Mysore Mallige which is haunted by urban legends of the couples or only the woman committing suicide, forced marriage at a police station etc. Nonetheless to encounter the MMS video, when the woman is looking directly at the camera often so it does not seem like a hidden camera or non-consensual video, is to acknowledge the taking of pleasure at the expense of someone else which may or may not bother you, but does render the activity far more illicit and scary. My feeling of fear|anxiety|secrecy|aloneness when surfing pornography, whether in the office, home or anywhere where I can be discovered, is an added layer to the experience even if the various aspects of violation of privacy, vulnerability of the woman in the video or the existence of a pornography industry are not uppermost in the mind when actually viewing the clips. One of the few works done that do address this complicated set of affects that circulate and attach themselves to pornography is Bharath Murthy’s film on Mysore Mallige ( the next post will be on this film and interview with Bharath Murthy). (7)

This is why I would insist that the comic is a different space for a viewer – some things such as anxieties about who this person I’m looking at is and what happened to her do disappear, while others such as a comic is bright, colourful and highly visible on my computer screen (for instance) become more important. It is harder to hide surfing Savita Bhabhi in an office than reading erotica or even downloading and discreetly watching a small video. The aspect of how Savita Bhabhi being a comic/drawn character changes how a viewer relates to the material is an area of study that needs to be looked at more closely, perhaps with the help of existing work that looks at the manga, anime, hentaii phenomenon in Japan and parts of South East Asia.

The makers of Savita Bhabhi were anonymous till the ban and after what seemed like a rather brief struggle with authority (SaveSavita campaign on twitter and a blog) they vacated the public scene. As a consequence of no real contest, the ban persists. But perhaps what is admirable is that many people have learnt to use tools that allow them to still view Savita (and to expose them here would be just foolhardy). In an interview online the makers of Savita Bhabhi state .. “For one, it (comic) is a unique medium in the context of Indian porn. We’ve had MMS’s, videos, stories, etc, but no porn comics. Also a comic allows us to explore the fantasy in a much more vivid way than any other medium.” This fantasy life however cannot be dismissed, as it is indeed very real, or as they say – “based on real life fantasies of our authors and fans. They are all something that a normal full blooded Indian male or female would be fantasizing about on their commute to work or a lazy evening at home.” In a short interview with the makers of the comic more recently and subsequent to the ban they said that probably it was Savita Bhabhi’s popularity that led to her downfall and that they set out to explore Indian sexuality, which “obviously is a big No”.

To return to Lillie’s call for a cyberporn reception studies perhaps it is time in relation to looking at such material that we step away, even if briefly, from these debates on feminism, vulgarity and obscenity in Indian culture and others. In an interview dated 5th September, 2009, Ratheesh Radhakrishnan says that what needs to be looked at when studying pornography, is not the questions of Indian culture, religion, roles of women and gender (as for questions related to obscenity) but the aesthetics of pornography. In his own work Radhakrishnan deals precisely with this question in relation to the category of ‘soft porn’ and how Shakeela becomes a star through soft porn cinema – a star not entirely governed by the narrative of the film but seemingly existing beyond the limit of the film itself. (8) By doing this, his work deals with the question of how desire works in such films, which perhaps is one of the more important question to ask about pornography. In the same interview, he states that there is “something that takes place between the text and the person watching” and that is what he is interested in.

Anti-porn

Radhakrishnan’s position is interesting in relation to this project as it opens up questions that are beyond the feminist deadlock on pornography and also goes beyond rhetoric of the liberating potential of the explosion of the polymorphous perverse online. The latter is where a lot of porn studies undertaken in the global North seems to get lost. The breathless recounting of the pornographic in the everyday, does not help since it becomes very obvious that any analysis would not be relevant to a vastly different context in India. (9)

Walter Metz in his article on Open Water (10) challenges the ethics of porn studies – though he acknowledges that pornography is more a symptom rather than a cause of anti-social behaviours that it is often linked to (violent rape, aggressive behaviour, sexism etc.), but still raises the question as to whether there are significant reasons to put the brakes on a rabid, radical celebration of the liberating potential of pornography. Metz talks about the need, within porn studies, to look at the positive and negative impact of pornography (possibly he would extend that to looking at violent martial arts film and other strands of cinema/new media).

Metz’s paper as such deals with Open Water as an anti-pornographic film (here referring to the generic practice of pornography rather than political positions) and this might be an interesting productive mode to understand the affect produced by pornography. Though Metz qualifies that he’s not using pornography as a genre, but rather “as a reading frame. If one keeps thinking about pornography while watching a non-pornographic film, what is the resulting interpretation?” Since I haven’t seen the film Open Water perhaps my interest in such an analysis is misfounded. Metz describes the frustration depicted in the film Open Water between the audience expectations for a reasonably good looking, tanned, blonde couple to get-it-on and what happens to their bodies instead in the open water of the sea and prey to sharks, is similar to the disjuncture that takes place in one of the films part of the Destricted project. (11)

Destricted is an interesting artistic|intellectual|new media|film experiments in the global North around pornography. It is a series of short films that resulted from an invitation to seven well known artists and filmmakers to try to respond to sex and especially the phenomenon of pornography in the contemporary. One of the films Death Valley by Sam Taylor-Wood borrows from the Biblical tale of Onan and places a man masturbating in the heaving, throbbing landscape of the Death Valley (the hottest place in the Western hemisphere where the earth’s crust is constantly changing and shifting). For precisely 7 minutes and 58 seconds, the protagonist of the film masturbates uncomfortably without reaching ejaculation and/or release. The painful un-release of this film, perhaps is meant to be juxtaposed with the assumed ease of pornography’s answer to desire. However peculiarly it actually is probably an accurate description of the experiential account of pornography – of looking, searching, finding, downloading on painfully low speeds, watching short clips that are blurred, shot only from one angle, badly drawn comics or looking at largely uninspiring material which is not acquired or found easily.

In some ways the experience of watching either of these films sounds similar to watching certain kinds of MMS video porn. For instance, one video was of a couple doing oral sex in a toilet cubicle. The angle of the camera was from the top and perhaps the intention behind this was to obscure the faces of the two persons, since only the top of their heads are visible. It did not seem like the couple were unaware of the video camera, as much as performing for it almost unwillingly and only if the anonymity was preserved. The video was low quality and highly blurred, to the point of any features being indistinct beyond blackness of hair (maybe) and generic skin tone which could be Indian, Iranian or generic South Asian. The resemblance to the Destricted video is because again of the time it takes to reach ejaculation – there is a painfully long uninspiring blowjob sequence. The video remains scary and leaves one with a feeling of claustrophobia, discomfort and peculiarly boredom or distance from what is happening. Yet perhaps it is here that the question of realness and the affect it produces enters again. The question that intrigues me is whether the affect produced by the video is because there are certain gestures of the woman that seem recognizable, because she seems like you (ethnically, racially ofcourse but also in sexual spaces she occupies and behaviour). After having accomplished the task of coaxing semen out of the uninspiring penis she is faced with, she folds her legs and speaks indistinctly. In that moment she seems uncomfortably familiar, like watching a friend having sex or maybe an aspect of yourself.

It is perhaps interesting that it is amateur pornography these days that seems to inspire the most complicated set of affects (unlike the schooled|disciplined and predictable response to cinema) – shocked recognition of yourself and desire to see it again, titillation, boredom but yet unwilling to look away, love for celebrities, pleasure of viewing a body like yours and even sometimes a recognition that this is what you look like during sex, fear about your own privacy, disgust for what seems unacceptable and provokes the moral|visual|auditory sensibilities and contempt for the material and the people who possibly are genuinely engaged with it. The article on Pam and Tommy’s video in Porn Studies infact displays these varied affects and underlines William’s assertion that this bracket of material, behaviour and practices that get termed pornography/pornographic does indeed deserve analysis, otherwise a potentially unique and interesting way of understanding the contemporary would be lost for squeamishness.

There are many aspects of the Minette Hillyer’s analysis (12) that are specifically relevant only to the American contexts – the notoriety of both the stars, the pre-existence and glorification of home videos in most families and the acknowledgement of amateur couple porn as even a healthy practice, perhaps suggested for couples with dull sex lives. In India, it was infact unknown people who were catapulted into the public eye with the circulation of their video, online and offline that was later titled Mysore Mallige ; not just the private spaces, holidays and fucking habits of already-celebrities like Pam and Tommy.

What might be relevant here from Hillyer’s analysis is the pre occupation with the realness of amateur pornography. The article follows the travels of the Pam and Tommy home video between different categories/genres, depending on different aspects of its realness. The video as such, contains scenes from the normal domestic lives of the stars and a eight minute sequence of sex in an almost fifty minute length video. So the questions of realness are answered not by the sex in the video, but the mundane recording of their lives, holidays, house and other details. This question of what exactly it is – home video or pornography (domestic/private or pornographic/public) is relevant to questions of legality (for damages upto 90 million dollars), how it circulates (a pornographic video of Pam and Tommy without the domestic padding perhaps would not be considered real and saleable) and genre which relates to some aspects of how people respond to the work. Ever since the advent of (cheap) video technology, pornography is rendered less cinematic and more concerned with the presentational act (of sex) than its representation (ibid). With MMS videos and hidden camera porn, though questions may no longer be about representation, they are still complicated questions about the aesthetics, reception of pornography and our relation to the technology that delivers it and for me viewing pornography today as only presentational does not help to understand the affects that surround and attach to it. Perhaps many strands of what is explored in this article can be explored in relation to Mysore Mallige in the next blog post.

Just as I finish this piece, after an interview with Nishant Shah at Center for Internet and Society, another question enters the frame in relation to pleasure, moving it beyond those raised above. Is pleasure now a question that is less about finding the corporeal thrill through pornography online, as much as pleasure that comes from simulation and the added rush of simulating cities, lives, personalities online. And is that pleasure, pornographic?

End notes:

1. Jonathan James McCreadie Lillie, “Cyberporn, Sexuality, and the Net Apparatus”, Convergence 2004; 10; 43

2. Williams Linda (ed), Porn Studies, Duke University Press, London and Durham, 2004.

3. Katrien Jacobs, Marije Janssen, Matteo Pasquinelli (eds), C’lick Me: A Netporn Studies Reader, Institute of Network Cultures, Amsterdam, 2007.

4. Courts of Women, Vimochana Bangalore, 27-29 July, 2009.

5. Itty Abraham, Sex in the Neo-liberal City: On Savita Bhabhi, Available at The Fish Pond at http://thefishpond.in/itty/2009/on-savita-bhabhi/#comments

6. Shohini Ghosh, The politics of porn, Himal South Asian Magazine, September 2009, Vol 22, No. 9.

7. Bharath Murthy (director), Mysore Mallige, 2007.

8. Ratheesh Radhakrishnan, “‘The Mis-en-scene of desire’: Stardom and the case of soft porn cinema in Kerala!” Unpublished work. Contact author for copy.

9. Bloomingdale's now sells Tom of Finland shirts and trousers, housewives celebrate their birthdays by piercing their geni- tals, college students dance naked instead of waiting tables to pay their tuition, and middle-level managers schedule a session with a dominatrix in their favorite dungeon after a game of racquetball at their regular health club. From Joseph W. Slade, Pornography and Sexual Representation: A Reference Guide, Greenwood Publishing Group, 2001.

10. Walter Metz, “Shark Porn: Film Genre, Reception Studies, and Chris Kentis' Open Water” Film Criticism, March 22, 2007

11 Destricted: explicit films, Marina Abramovic, Matthew Barney, Marco Brambilla, Larry Clark, Gaspar Noé, Richard Prince, Sam Taylor Wood (directors), 2006.

12 Minnette Hillyer, “Sex in the suburban: Porn, Home movies and the Live Action Perofmance of Love in Pam and Tommy: Hardcore and uncensored”, Porn Studies, Duke University Press, London and Durham, 2004, p.50.

For more details visit https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/looking-closer-at-porn-with-x-ray-spectacles-savita-bhabhi-mms-video-and-others

Primer on the New IT Act

pranesh — 2011-08-02T07:41:54Z

With this draft information bulletin, we briefly discuss some of the problems with the Information Technology Act, and invite your comments.

The latest amendments to the Information Technology Act 2000, passed in December 2008 by the Lok Sabha, and the draft rules framed under it contain several provisions that can be abused and misused to infringe seriously on citizens' fundamental rights and basic civil liberties. We have already written about some of the problems with this Act earlier. With this information bulletin, drafted by Chennai-based advocate Ananth Padmanabhan, we wish to extend that analysis into the form of a citizens' dialogue highlighting ways in which the Act and the rules under it fail. Thus, we invite your comments, suggestions, and queries, as this is very much a work in progress. We will eventually consolidate this dialogue and follow up with the government on the concerns of its citizens.

Intermediaries beware

Internet service providers, webhosting service providers, search engines, online payment sites, online auction sites, online market places, and cyber cafes are all examples of “intermediaries” under this Act. The Government can force any of these intermediaries to cooperate with any interception, monitoring or decryption of data by stating broad and ambiguous reasons such as the “interest of the sovereignty or integrity of India”, “defence of India”, “security of the State”, “friendly relations with foreign States”, “public order” or for “preventing incitement to” or “investigating” the commission of offences related to those. This power can be abused to infringe on the privacy of intermediaries as well as to hamper their constitutional right to conduct their business without interference.

If a Google search on “Osama Bin Laden” throws up an article that claims to have discovered his place of hiding, the Government of India can issue a direction authorizing the police to monitor Google’s servers to find the source of this information. While Google can, of course, establish that this information cannot be attributed directly to the organization, making the search unwarranted, that would not help it much. While section 69 grants the government these wide-ranging powers, it does not provide for adequate safeguards in the form of having to show due cause or having an in-built right of appeal against a decision by the government. If Google refused to cooperate under such circumstances, its directors would be liable to imprisonment of up to seven years.

Pre-censorship

The State has been given unbridled power to block access to websites as long as such blocking is deemed to be in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States, and other such matters.

Thus, if a web portal or blog carries or expresses views critical of the Indo-US nuclear deal, the government can block access to the website and thus muzzle criticism of its policies. While some may find that suggestion outlandish, it is very much possible under the Act. Since there is no right to be heard before your website is taken down nor is there an in-built mechanism for the website owner to appeal, the decisions made by the government cannot be questioned unless you are prepared to undertake a costly legal battle.

Again, if an intermediary (like Blogspot or an ISP like Airtel) refuses to cooperate, its directors may be personally liable to imprisonment for up to a period of seven years. Thus, being personally liable, the intermediaries are rid of any incentive to stand up for the freedom of speech and expression.

We need to monitor your computer: you have a virus

The government has been vested with the power to authorize the monitoring and collection of traffic data and information generated, transmitted, received or stored in any computer resource. This provision is much too widely-worded.

For instance, if the government feels that there is a virus on your computer that can spread to another computer, it can demand access to monitor your e-mails on the ground that such monitoring enhances “cyber security” and prevents “the spread of computer contaminants”.

Think before you click "Send"

If out of anger you send an e-mail for the purpose of causing “annoyance” or “inconvenience”, you may be liable for imprisonment up to three years along with a fine. While that provision (section 66A(c)) was meant to combat spam and phishing attacks, it criminalizes much more than it should.

A new brand of "cyber terrorists"

The new offence of “cyber terrorism” has been introduced, which is so badly worded that it borders on the ludicrous. If a journalist gains unauthorized access to a computer where information regarding corruption by certain members of the judiciary is stored, she becomes a “cyber terrorist” as the information may be used to cause contempt of court. There is no precedent for any such definition of cyberterrorism. It is unclear what definition of terrorism the government is going by when even unauthorized access to defamatory material is considered cyberterrorism.

For more details visit https://cis-india.org/internet-governance/blog/primer-it-act

Comments on the Draft Rules under the Information Technology Act

pranesh — 2011-09-21T06:13:42Z

The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.

Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008

Submitted by the Centre for Internet and Society, Bangalore

Prepared by Ananth Padmanabhan, Advocate in the Madras High Court

Interception, Monitoring and Decryption

Section 69

The section says:

Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.
The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.
The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-

(a) provide access to or secure access to the computer resource generating transmitting, receiving or storing such information; or

(b) intercept, monitor, or decrypt the information, as the case may be; or

The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

Recommendation #1
Section 69(3) should be amended and the following proviso be inserted:

Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.

Reasons for the Recommendation
In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,

“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.

To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary.

Recommendation #2
Section 69(4) should be repealed.

Reasons for the Recommendation
The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.

Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.

Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.

This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.

Draft Rules under Section 69

Rule 3
Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:

Provided that in emergency cases –
(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;

the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be.

Recommendation #3
In Rule 3, the following proviso may be inserted:

“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”

Reasons for the Recommendation
Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.

Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.

Recommendation #4
The following should be inserted after the last line in Rule 22:

The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.

Reasons for the Recommendation
The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69.

Blocking of Access to Information

Section 69A

The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section.
The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.

Section 69A(3)
The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

Recommendation #5
The penalty for intermediaries must be lessened.

Reasons for Recommendations
The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.

The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.

Draft Rules under Section 69A

Rule 22: Review Committee
The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.

Recommendation #6
A permanent Review Committee should be specially for the purposes of examining procedural lapses.

Reasons for Recommendation
Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met.

Monitoring and Collection of Traffic Data

Draft Rules under Section 69B

The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.

The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.

Grounds for Monitoring
Rule 4
The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:
(a) forecasting of imminent cyber incidents;
(b) monitoring network application with traffic data or information on computer resource;
(c) identification and determination of viruses/computer contaminant;
(d) tracking cyber security breaches or cyber security incidents;
(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;
(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;
(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;
(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;
(i) any other matter relating to cyber security.

Rule 6
No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).

Recommendation #7
Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.

Reasons for Recommendations
The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered.

Rule 24: Disclosure of monitored data
Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :
(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.

Recommendation #8
Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi).

Reasons for Recommendations
Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended.

The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.

Manner of Functioning of CERT-In

Draft Rules under Section 70B(5)

Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.
The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:

Definitions
In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Recommendation #9
The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.

Reasons for Recommendation
“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.

Rule 13(4): Disclosure of Information
Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.

Recommendation #10
Burden of necessity for disclosure of information should be made heavier.

Reasons for the Recommendation
Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required.

Rule 19: Protection for actions taken in Good Faith
All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.

Recommendation #11
CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for.

Reasons for the Recommendation
Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.

Draft Rules under Section 52

These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.

Recommendation #12
Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.

Reasons for the Recommendation
It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.

Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.

Draft Rules under Section 54

These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.

Penal Provisions

Section 66A

Any person who sends, by means of a computer resource or a communication device,
    (a) any information that is grossly offensive or has menacing character; or
    (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
    (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.

While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.

Recommendation #13
The section should be amended and words which lead to ambiguity must be excluded.

Reasons for the Recommendation
A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary.

Recommendation #14
A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc.

Reasons for the Recommendation
The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.

Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.

Section 66F

The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character.
Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision,
“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”

This provision suffers from several defects and hence ought to be repealed.

Recommendation #15
Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:

“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”

Reasons for the Recommendation
The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.

To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above.

For more details visit https://cis-india.org/internet-governance/blog/comments-draft-rules