Centre for Internet and Society

Google Policy Fellowship Programme: Call for Applications

praskrishna — 2012-05-24T15:38:28Z

The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Fellowship Focus Areas

Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.
Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public.
Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.
Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.
Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.

Frequently Asked Questions

What is the Google Policy Fellowship program?
The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.

I am an International student can I apply and participate in the program? Are there any age restrictions on participating?
Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.

Are there citizenship requirements for the Fellowship?
For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?
In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.

I am an International student can I apply and participate in the program?
In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.
I graduate in the middle of the program. Can I still participate?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work?*

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates

What is the program timeline?

June 27, 2012	Student Application Deadline. Applications must be received by midnight.
July 18, 2012	Student applicants are notified of the status of their applications.
August 2012	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
September 2012	Mid-term evaluations; Google issues mid-term stipends.
October 2012	Final evaluations; Google issues final stipends.

For more details visit https://cis-india.org/internet-governance/google-policy-fellowship

Girl's arrest draws flak on social media

praskrishna — 2012-11-20T11:04:27Z

The arrest of a 21-year-old girl by Mumbai police for criticizing the shutting down of the city following the death of Bal Thackeray come under fire from netizens.

Arun Dev's article was published in the Times of India on November 20, 2012. Pranesh Prakash is quoted.

Many tweets and Facebook posts popped up soon after the news of her arrest played on TV and social media networks, some even reposting what she first posted on her page.

Pranesh Prakash, programme manager, Centre for Internet and Society, told TOI this case was a clear case of misapplication of Section 295A of the Indian Penal Code. "This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book, 'Shivaji: Hindu King in Islamic India', happened this section. The ban was subsequently deemed unlawful by both the Bombay high court and the Supreme Court. Indeed, Section 295A has not been applied in cases where it's more apparent," he said.

On the CIS blog, he commented, "Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically sending ... any information that is grossly offensive or has menacing character".

"It is absolutely ridiculous. Regardless of the fact she was given bail, she was sent to 14 days of judicial custody for a mere comment. We have allowed our social media to be free and open but we have laws which are ancient," said Lawrence Liang, a lawyer working on media laws with the Alternative Law Forum in Bangalore. "Such cases don't stand a chance in a court of law. We need procedural safeguards which will ensure cases which are not relevant are not be allowed to be filed," he added.

The open letter to the chief minister of the Maharashtra by Justice Katju, Chairman, Press Council of India, and former Judge, Supreme Court of India too was widely circulated on social media. Some posted this excerpt: "We are living in a democracy, not a fascist dictatorship. In fact this arrest itself appears to be a criminal act since under sections 341 and 342 it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime."

For more details visit https://cis-india.org/news/times-of-india-arun-dev-nov-20-2012-girl-arrest-draws-flak-on-social-media

Free Speech Online in India under Attack?

praskrishna — 2012-03-02T03:03:24Z

When the Union Minister for Communications and Information Technology, Mr. Kapil Sibal suggested pre-censorship for a range of popular online platforms and social networking sites, the suggestion was met by a barrage of criticism, which soon forced him to back down. Yet Sibal’s suggestion is not the only threat to free speech on the Internet in India today. Legislation such as the Intermediary Due Diligence Rules and Cyber Café Rules (also jointly known as the IT Rules) issued in April 2011 is equally dangerous for free speech online.

Achal Prabhala, Anja Kovacs and Lawrence Liang will join Sunil Abraham to discuss in more detail some of the direct threats to freedom of expression online in India today including the larger legal and social context of freedom of expression and censorship, control and resistance in which they have to be understood and the steps that can be taken to ensure that substantive protections for freedom of expression online will be put into place.

The Speakers

Achal Prabhala

Achal is based in Bangalore, Karnataka. He is a researcher, activist and writer in the areas of access to knowledge and access to medicine besides being a member of the Advisory board of the Wikimedia Foundation.

Anja Kovacs

Anja works with the Internet Democracy Project, which engages in research and advocacy on the promises and challenges that the Internet poses for democracy and social justice in the developing world.

Lawrence Liang

Lawrence is a researcher and lawyer based in Bangalore, who is known for his legal campaigns on issues of public concern. He is a co-founder of the Alternative Law Forum and works on the intersection of law, technology and culture. He has worked closely with filmmakers and artists in a number of anti-censorship campaigns.

The Moderator

Sunil Abraham

Sunil is the Executive Director of the Centre for Internet and Society, a Bangalore-based non-profit organization. He is also a social entrepreneur and Free Software advocate. He founded Mahiti in 1998 which aims to reduce the cost and complexity of Information and Communication Technology for the Voluntary Sector by using Free Software.

This event is jointly organised by the Internet Democracy Project and the Centre for Internet and Society. Join us at the Centre for Internet and Society in Bangalore, on Wednesday 21 December, at 5.30 pm.

VIDEOS

For more details visit https://cis-india.org/internet-governance/free-speech-online-in-india-under-attack

Fixing India’s anarchic IT Act

pranesh — 2012-11-30T06:33:58Z

Section 66A of the Information Technology (IT) Act criminalizes “causing annoyance or inconvenience” online, among other things. A conviction for such an offence can attract a prison sentence of as many as three years.

Pranesh Prakash's article was published in LiveMint on November 28, 2012.

How could the ministry of communications and information technology draft such a loosely-worded provision that’s clearly unconstitutional? How could the ministry of law allow such shoddy drafting with such disproportionate penalties to pass through? Were any senior governmental legal officers—such as the attorney general—consulted? If so, what advice did they tender, and did they consider this restriction “reasonable”? These are some of the questions that arise, and they raise issues both of substance and of process.

When the intermediary guidelines rules were passed last year, the government did not hold consultations in anything but name. Industry and non-governmental organizations (NGOs) sent in submissions warning against the rules, as can be seen from the submissions we retrieved under the Right to Information Act and posted on our website. However, almost none of our concerns, including the legality of the rules, were paid heed to.

Earlier this year, parliamentarians employed a little-used power to challenge the law passed by the government, leading communications minister Kapil Sibal to state that he would call a meeting with “all stakeholders”, and will revise the rules based on inputs. A meeting was called in August, where only select industry bodies and members of Parliament were present, and from which a promise emerged of larger public consultations. That promise hasn’t been fulfilled.

Substantively, there is much that is rotten in the IT Act and the various rules passed under it, and a few illustrations—a longer analysis of which is available on the Centre for Internet and Society (CIS) website—should suffice to indicate the extent of the malaise.

Some of the secondary legislation (rules) cannot be passed under the section of the IT Act they claim as their authority. The intermediary guidelines violate all semblance of due process by not even requiring that a person whose content is removed is told about it and given a chance to defend herself. (Any content that is complained about under those rules is required to be removed within 36 hours, with no penalties for wilful abuse of the process. We even tested this by sending frivolous complaints, which resulted in removal.)

The definition of “cyber terrorism” in section 66F(1)(B) of the IT Act includes wrongfully accessing restricted information that one believes can be used for defamation, and this is punishable by imprisonment for life. Phone-tapping requires the existence of a “public emergency” or threat to “public safety”, but thanks to the IT Act, online surveillance doesn’t. The telecom licence prohibits “bulk encryption” over 40 bits without key escrow, but these are violated by all, including the Reserve Bank of India, which requires that 128-bit encryption be used by banks. These are but a few of the myriad examples of careless drafting present in the IT Act, which lead directly to wrongful impingement of our civil and political liberties. While we agree with the minister for communications, that the mere fact of a law being misused cannot be reason for throwing it out, we believe that many provisions of the IT Act are prone to misuse because they are badly drafted, not to mention the fact that some of them display constitutional infirmities. That should be the reason they are amended, not merely misuse.

What can be done? First, the IT Act and its rules need to be fixed. Either a court-appointed amicus curiae (who would be a respected senior lawyer) or a committee with adequate representation from senior lawyers, Internet policy organizations, government and industry must be constituted to review and suggest revisions to the IT Act. The IT Act (in section 88) has a provision for such a multi-stakeholder advisory committee, but it was filled with mainly government officials and became defunct soon after it was created, more than a decade ago. This ought to be reconstituted. Importantly, businesses cannot claim to represent ordinary users, since except when it comes to regulation of things such as e-commerce and copyright, industry has little to lose when its users’ rights to privacy and freedom of expression are curbed.

Second, there must be informal processes and platforms created for continual discussions and constructive dialogue among civil society, industry and government (states and central) about Internet regulation (even apart from the IT Act). The current antagonism does not benefit anyone, and in this regard it is very heartening to see Sibal pushing for greater openness and consultation with stakeholders. As he noted on the sidelines of the Internet Governance Forum in Baku, different stakeholders must work together to craft better policies and laws for everything from cyber security to accountability of international corporations to Indian laws. In his plenary note at the forum, he stated: “Issues of public policy related to the Internet have to be dealt with by adopting a multi-stakeholder, democratic and transparent approach” which is “collaborative, consultative, inclusive and consensual”. I could not have put it better myself. Now is the time to convert those most excellent intentions into action by engaging in an open reform of our laws.

Pranesh Prakash is policy director at the Centre for Internet and Society.

For more details visit https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act

Facebook, Google deny spying access

praskrishna — 2013-07-02T10:18:48Z

The CEOs of Facebook and Google on Saturday categorically denied that the US National Security Agency had "direct access" to their company servers for snooping on Gmail and Facebook users. But both acknowledged that the companies complied with the 'lawful' requests made by the US government and shared user data with sleuths.

The article by Javed Anwer was published in the Times of India on June 9, 2013. Pranesh Prakash is quoted.

In a post titled "What the ...?" Google's official blog, CEO Larry Page wrote, "We have not joined any program that would give the US governmentâ€”or any other governmentâ€”direct access to our servers. We had not heard of a program called PRISM until yesterday."

A few hours later, Facebook CEO Mark Zuckerberg responded. "Facebook is not and has never been part of any program to give the US or any other government direct access to our servers... We hadn't even heard of PRISM before yesterday," he wrote on his page at the social media site.

According to a few PowerPoint slides allegedly leaked by an NSA official, nine technology companies - Google, AOL, Apple, Yahoo, Microsoft, Skype, Facebook, YouTube and PalTalk - are providing the US government easy access to user data. While all companies have denied being part anything called PRISM, Facebook and Google have been most vocal about it.

A few hours after Facebook and Google statements, the New York Times said in a report that technology companies had "opened discussions with national security officials about developing technical methods to more efficiently and securely share the personal data of foreign users".

"In some cases, they (companies) changed their computer systems to do so," noted the NYT report.

The statements by the CEOs have done little to allay privacy fears. "The denials from the companies look highly coordinated, including similar phrases in all their responses. I don't think they are lying outright, though the NYT report suggests that they are telling a half-truth. They may not provide the US government 'direct access' to all their servers, but may be providing indirect access, or may just be responding to very broad FISA orders," said Pranesh Prakash, a policy director with Centre for Internet and Society in India.

On Friday US president Barack Obama had tacitly acknowledged NSA surveillance programmes aimed at non-US citizens. "You can't have a hundred per cent security and also then have a hundred per cent privacy and zero inconvenience. You know, we're going to have to make some choices as a society," he told reporters in the US.

Page and Zuckerberg also called on the governments to be more open about surveillance programmes. "The level of secrecy around the current legal procedures undermines the freedoms we all cherish," wrote Page.

Added Zuckerberg, "We strongly encourage all governments to be much more transparent about all programs aimed at keeping the public safe. It's the only way to protect everyone's civil liberties and create the safe and free society we all want over the long term."

For more details visit https://cis-india.org/news/times-of-india-javed-anwer-june-9-2013-facebook-google-deny-spying-access

Facebook's Delicate Dance With Delhi On Censorship

praskrishna — 2012-09-03T04:39:45Z

At the end of last week, a hashtag briskly rose across India: #Emergency2012. It was a reference to the 21-month stint, beginning in the summer of 1975, when then PM Indira Gandhi determined democracy an inconvenience.

Contributed by Mark Bergen, the post was published in Forbes on August 29, 2012. Sunil Abraham is quoted.

This time around, the government launched a jumbled attempt, following ethnic violence in the northeast, to stem rumors behind a panicked exodus. They blocked over 300 sites and axed at least 16 Twitter accounts, including those of political opponents and journalists. Many of us found our cell phone texts suddenly, with no announcement, cut off after five missives.

It was hardly the Emergency of 1975. The government’s actions were far less draconian than three decades ago. But, back then, there were no foreign internet companies to complicate matters—and, it seems, absolve the government.

In response to the recent charges, Delhi claimed that there was “no censorship at all.” As the communications minister, Kapil Sibal, put it, “Facebook and Google are cooperating with us.”

Under the circumstances, shutting down the incendiary hate speech online was warranted, explained Sunil Abraham, the director of the Centre for Internet and Society (CIS) in Bangalore. The process was just incredibly inept. “There were so many things they did wrong,” he told me when I asked about the government’s response. And the reaction can be tacked onto a very recent history of Delhi issuing sweeping, usually empty, threats of censoring U.S. internet companies.

“Perhaps the Indian government has wasted, frittered a way goodwill,” Abraham continued. “It has cried ‘wolf’ so many times that this time the internet intermediaries are not taking them as seriously as they should.”

His group analyzed the sites shut down last week, pointing out the “numerous mistakes and inconsistencies that make blocking pointless and ineffectual.” It’s clear that the censorship was also opportunistic—used to stamp out political parody Twitter accounts—and counterproductive. Among the sites blocked was a Pakistani blog debunking the rumors behind the whole exodus episode.

Abraham criticized the government for coming to the intermediaries with broad demands first, rather than directly to Twitter, Facebook and Google. That approach, coupled with earlier censorship demands, may strain the trust between the ruling coalition and the web giants.

Still, Facebook has every reason to keep Delhi happy. This year, the number of users in India hit 32 million—a 85 percent jump from the last. The total is expected to nearly double next year, leap-frogging Indonesia for the title of second largest market. An overwhelming chunk of that growth will come from mobile users. As this solid report from Forbes India shows, the company is still struggling here, as it is in the U.S., to turn those new users into ad revenue:

Indian businesses spent Rs 2,850 crore on digital advertising as of March 2012, a number that’s expected to grow to Rs 4,391 crore next year, according to a report by the Internet Mobile Association of India/Indian Market Research Bureau (IAMAI/IMRB).

…But Facebook has not been able to capture much of this share. Mahesh Murthy reckons that businesses spent about Rs 150 crore on Facebook marketing, but only a third went to Facebook’s own kitties in the form of ad revenues. The rest went to social media marketing firms which handle Facebook accounts.

That’s not to say that the company will discontinue its aggressive efforts. It likely will not be deterred by policies that attack free speech—Zuckerberg’s empire has long been accused of complacency with censorship. It’s India’sinfamously unpredictable tax policies toward foreign entities that would conceivably slow the company’s expansion.

There’s little reason to suspect, then, that Facebook, Google and the western web behemoths will not continue to cooperate with Delhi moving forward. And much of that cooperation should come not as blatant censorship but covert surveillance. According to the Google Transparency Report, India has made over 2,000 data requests and 100 removal requests, third only to the States and Brazil. As the mobile revolution soars, that number will surely rise.

On Monday evening, Christopher Soghoian, a D.C.-based privacy analyst, spoke at the CIS before a crowd of young Indian law students and activists. Despite the shoddy security default of internet firms, he said, they can impose limits on government surveillance. “When these companies receive requests from where they don’t have an office,” he claimed, “they refuse.” Two years ago, Facebook India opened its first office in Hyderabad.

Soghoian advised his audience to push for privacy and transparency standards in India. He shared the story of the long-fought battle for encryption protection with Facebook in the U.S. Yet, he admitted that security provisions can falter when a government is bent on policing the internet—and a company is bent on cooperation. “If you can force companies to hand over the keys,” he said, “then encryption is useless.”

For more details visit https://cis-india.org/news/www-forbes-com-mark-bergen-aug-29-2012-facebooks-delicate-dance-with-delhi-on-censorship

Expect anti-net censorship echo in house

praskrishna — 2012-04-25T11:07:43Z

For the anti-Internet censorship movement in the country, hope is now in sight. Their fight against the intermediary provisions (section 79) of the IT laws, according to which, an intermediary (website, domain owner) would have to take off content that a third party (or complainant) finds ‘objectionable,’ without any room for appeal, has now garnered the attention of the government itself. What is at stake is our fundamental rights, warns CPM Member of Parliament P Rajeeve, who was perhaps the first at the government level to realise that there was a gaping hole in the provision, and took up the matter in the Rajya Sabha.

This blog post by Arpan Daniel Varghese was published in IBN Live on April 25, 2012

“A discussion on the annulment of the IT Act 2011 itself is likely to figure in the budget session of the Parliament on April 24. I am trying to mobilise other MPs. We have decided to convene a meeting of organizations, representatives of political parties and MPs to discuss this issue in detail,” says MP Rajeeve.

Noted Twitteratti and former Minister of State for External Affairs Shashi Tharoor too is concerned, particularly about the onus this places on Internet Service Providers.

“If a newspaper publishes something, you go after the newspaper, not the delivery boy. Yes, you can ask the delivery boy to stop delivering the newspaper, but that is such an extreme step that few democracies would contemplate. But what we are trying to do seems to go unacceptably far in this direction and needs further reconsideration,” Tharoor says, adding that he too is planning to raise the issue in the Lok Sabha.

Both Alok Dixit from ‘Save Your Voice’ and Sunil Abraham, the executive director of the Centre for Internet And Society (CIS), say they are speaking to MPs and others in the government and trying to initiate an motion in the Rajya Sabha against the intermediary provisions. And support has been pouring in from all quarters, be it cyber space or through the pan-India protests, including the recent one at the Marina Beach in Chennai that ‘Save Your Voice’ has been holding.

Alok, Sunil and scores of activists across the country are now pinning their hopes on the annulment motion introduced by MP Rajeeve, which is likely to be taken up during the second half of the Parliament session on Tuesday.
The main hassle, however, is ignorance. “People don’t even know about the laws. They are not aware of their rights. So, the kind of support we are getting is quite less,” says Alok.

The legal fraternity and the administration too face the same roadblock, agrees Kerala High Court advocate Jacob. “This is a new area and people are just learning the theoretical side of it. There are not many cases. Trained professionals are not there to train the legal fraternity itself,” he rues.

The fundamental question is, according to Sunil, “why should freedom of speech and expression be any different on the Internet?”
“Remember, this is the same Internet which brought out Kolaveri and structured the Anna movement. So, it affects you,” Alok signs off.

Read the original here

For more details visit https://cis-india.org/news/anti-net-censorship-echo-in-house

Draft nonsense

pranesh — 2012-12-03T09:08:10Z

Seriously flawed and dodgily drafted provisions in the IT Act provide the state a stick to beat its citizens with.

Pranesh Prakash's op-ed was published in the Times of India on November 24, 2012.

Section 66A of the Information Technology Act once again finds itself in the middle of a brewing storm. It has been used in cases ranging from the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti Chidambaram case, the Chinmayi case, to the current Bal Thackeray-Facebook comments case. In all except the Karti Chidambaram case (which is actually a case of defamation where 's. 66A' is inapplicable), it was used in conjunction with another penal provision, showing that existing laws are more than adequate for regulation of online speech. That everything from online threats wishing sexual assault (the Chinmayi case) to harmless cartoons are sought to be covered under this should give one cause for concern. Importantly, this provision is cognisable (though bailable), meaning an arrest warrant isn't required. This makes it a favourite for those wishing to harass others into not speaking.

Section 66A prohibits the sending "by means of a computer resource or a communication device" certain kinds of messages. These messages are divided into three sub-parts : (a) anything that is "grossly offensive or has menacing character";(b) information known to be false for the purposes of "causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" and is sent persistently;or (c) "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages". This carries with it a punishment of up to three years in jail and a fine without an upper limit. As even non-lawyers can see, these are very broadly worded, with use of 'or' everywhere instead of 'and', and the punishment is excessive. The lawyers amongst the readers will note that while some of the words used are familiar from other laws (such as the Indian Penal Code), they are never used this loosely. And all should hopefully be able to conclude that large parts of section 66A are plainly unconstitutional.

If that is so obvious, how did we end up getting this law? We copied (and badly at that) from the UK. The sad part is that the modifications that were introduced while copying are the bits that cause the most trouble. The most noteworthy of these changes are the increase in term of punishment to 3 years (in the UK it's 6 months); the late introduction (on December 16, 2008 by A Raja) of sub-section (c), meant as an anti-spam provision, but covering everything in the world except spam;and the mangling up of sub-section (b) to become a witches brew of all the evil intentions in this world.

Further, we must recognise that our Constitution is much stronger when it comes to issues like free speech than the UK's unwritten constitution, and our high courts and Supreme Court have the power to strike down laws for being unconstitutional, unlike in the UK where Parliament reigns supreme. The most the courts can do there is accommodate the European Convention on Human Rights by 'reading down' laws rather than striking them down.

Lastly, even if we do decide to engage in policy-laundering, we need to do so intelligently. The way the government messed up section 66A should serve as a fine lesson on how not to do so. While one should fault the ministry of communications and IT for messing up the IT Act so badly, it is apparent that the law ministry deserves equal blame as well for being the sleeping partner in this deplorable joint venture. For instance, wrongfully accessing a computer to remove material which one believes can be used for defamation can be considered 'cyber-terrorism'. Where have all our fine legal drafters gone? In a meeting, former SEBI chairman M Damodaran noted how bad drafters make our policies seem far dumber than they are. We wouldn't be in this soup if we had good drafters who clearly understand the fundamental rights guaranteed by our constitution.

There are a great many things flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the 2008 winter session of Parliament. For far too long the Indian government has spoken about "multi-stakeholder" governance of the internet at international fora (meaning that civil society and industry must be seen as equal to governments when it comes to policymaking for the governance of the internet). It is about time we implemented multi-stakeholder internet governance domestically. The way to go forward in changing this would be to set up a multi-stakeholder body (including civil society and industry) which can remedy this and other ridiculously unconstitutional provisions of our IT Act.

For more details visit https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense

Details emerge on government blockade of websites

praskrishna — 2012-08-28T09:51:01Z

Facebook pages, Twitter handles among 300 unique web addresses blocked by ISPs.

Pranesh Prakash's analysis is quoted in this article published in the Hindu on August 24, 2012.

Over the past week, the Ministry of Communications and IT has sent out orders to ISPs (Internet service providers) to block over 300 unique addresses on the Web, cracking down on websites, Facebook pages, YouTube videos and even Twitter handles, ostensibly to prevent incitement to communal tension and rioting.

But a closer look at the specific URLs (web addresses) blocked by the government has given rise to doubts whether the government may have acted high-handedly, in some instances cracking down on parody Twitter handles.

Through four orders, one issued a day from August 18 to 21, the government sent out lists of specific URLs to be blocked by the Internet service providers.

An analysis of the leaked government orders by blogger Pranesh Prakash of the Center for Internet and Society (www.cis-india.org) revealed the extent of the government missive: in specific cases, it had asked for blocking of some portions of a website — like Facebook pages or Twitter handles — and in other instances asked for entire websites.

The government orders carried no specific reasons for the blockades. But in the backdrop of the paranoia surrounding the exodus of northeast people from South Indian cities, it appears that it may have been to disallow the use of the Web for spreading information that incites communal violence and rioting.

Cyber law expert N. Vijayashankar said though the government seemed to have acted within the Rules of IT Act 2008, the onus fell on it to justify the reasons why the specific websites were blocked and dispel doubts that there may have been some political motives at least pertaining to specific sites, especially in the blocking of some parody Twitter accounts spoofing the official Twitter account of the Prime Minister’s office (@PMOIndia).

“No website can be blocked permanently. Any blocked website must be taken up for review by a committee in a span of two months,” Mr. Vijayashankar added. “But sadly the review committee does not have any public representatives. It comprises only the secretaries to government.”

If the websites had indeed been blocked considering the emergency of the situation and keeping in mind national security, then the responsibility for preparing the list falls with the Home Ministry.

“Whatever be the case, this cannot pave the way for clamping down on websites at one swipe,” Mr. Vijayashankar added.

The news about the clampdown set the social networks abuzz through Thursday. Popular humour Twitter account holder Ramesh Srivats tweeted: “Am slightly worried that some government guy will notice that all the offending sites have “http” in them, and then go ban that.”

For more details visit https://cis-india.org/news/www-the-hindu-com-aug-24-2012-details-emerge-on-govt-blockade-of-websites

Debate on Section 66A rages on

praskrishna — 2012-12-10T09:44:31Z

Last week, a reputed BPO in Chennai took down its Facebook page and introduced stricter moderation for posts on its bulletin board.

Vasudha Venugopal's article was published in the Hindu on December 10, 2012. Pranesh Prakash is quoted.

The measure, an official said, was aimed at avoiding any "callous remark by any employee." "We have discussions on many raging topics here, and we are just making sure the content is clean with no intended defamation."

The need to present only ‘unobjectionable content’ is just one off-shoot of a controversy that has gripped the country after at least five persons were arrested in recent months for posting their views online. But what started as an outcry by a few voices against the IT Act has now turned into a campaign against the constitutional validity of the Act itself. Last week also saw concerted protests to demand the repeal of Section 66A of the IT Act, under which most of the accused were booked. Human chains and protests were conducted in Chennai, Bangalore, Pune, Hyderabad, Guntur, Kakinada, Vijaywada, Visakhapatnam, Pune, Kozhikode and Kannur, among others.

In the past few months, the debate on the use of Section 66A in particular, and the Act in general, has gathered momentum. The arrests of Jadavpur University professor Ambikesh Mahapatra for circulating a cartoon lampooning West Bengal Chief Minister Mamata Banerjee; cartoonist Aseem Trivedi; businessman Ravi Srinivasan for tweets against Union Finance Minister P. Chidambaram’s son Karti Chidambaram; and the two girls in Maharashtra for criticising the bandh after Shiv Sena leader Bal Thackeray’s death have sparked popular anger.

“Public anger and media attention have been so strong that the government has been forced to retreat, which is a good first step,” says Alagunambi Welkin, president of the Free Software Foundation Tamil Nadu, which organised the protests in Chennai. "The next step would be to plug the loopholes in the IT Act. After all, this same government has declared in various international forums that it is all for promoting openness online."

Activists say that along with the increased pressure on the government, collecting information on cases of the misuse of the Act are the tasks that have to be fulfilled immediately. Human rights activist A. Marx, who has filed a public interest litigation petition against Section 66A, says the selective application of the law is very troubling. From a broader perspective though, this is also an issue of global proportions. Recently, a man in the U.K. was jailed for 18 months after he was found guilty of posting abusive messages on an online memorial. In July this year, a young Moroccan was arrested in Casablanca on the charge of posting “insulting caricatures of the Prophet Mohammed on Facebook.”

As recently as Tuesday, a Shenzen resident was arrested for posting a letter online, accusing a senior village official of corruption, and last week, a man in Kent was arrested for posting an image of a burning poppy on a social network site.

However, Pranesh Prakash, policy director, Centre For Internet And Society, Bangalore, notes that the more problematic parts in India’s laws are ones that result from adaptation. India’s own adaptation of the U.K. law, for instance, considerably increases punishment from six months to three years. However, if it is any consolation, there are voices worldwide being raised on this issue. Till last week, Google’s search page had a message: "Love the free and open Internet? Tell the world’s governments to keep it that way," and a link for comments directed to the Dubai conference, which will see a wide-ranging discussions and key decisions on global internet governance.

For more details visit https://cis-india.org/news/the-hindu-sci-tech-internet-december-10-2012-vasudha-venugopal-debate-on-section-66a

Criticism mounts over India censorship

praskrishna — 2012-08-27T06:38:51Z

India’s government is facing fierce criticism from privacy groups, political opponents and irate internet users accusing it of an excessive and poorly targeted censorship drive as it seeks to contain social alarm triggered by communal unrest.

This article written by James Crabtree in Mumbai and Tim Bradshaw in San Francisco was published in Financial Times on August 24, 2012. Pranesh Prakash is quoted.

Following panicked scenes among groups from the nation’s troubled north-east and fearing an escalation of urban violence between Muslim and Hindu groups, the administration this week instructed internet companies, including Facebook and Google, to block more than 300 web pages and more than a dozen Twitter accounts it claimed were inflaming communal tensions.

But by Friday the order was being assailed as an example of administrative incompetence, as internet analysts revealed that many of the pages contained seemingly harmless material from foreign media organisations, political columnists and critics of India’s government.

Pranesh Prakash, a legal expert at the Bangalore-based Centre for Internet and Society, said: “I am not questioning their original motives, but I do think this is excessive and incompetent censorship.”

Political opponents also accused the government of over-reach, including Narendra Modi, the controversial chief minister of the state Gujarat and a member of the Hindu nationalist BJP party, who on Friday used a Twitter post to call the moves a “crackdown on freedom of speech”.

The government denies it is being heavy handed. “We are only taking strict action against those accounts or people which are causing damage or spreading rumours,” said Kuldeep Dhatwalia, an Indian home ministry spokesman. “We are not taking action against other accounts, be it on Facebook, Twitter or even SMSes.”

Twitter found itself at the centre of the growing controversy, as government spokespeople accused the US-based social networking site of failing to respond to requests to block users, some of which involved accounts appearing to impersonate Manmohan Singh, the prime minister.

Twitter responded by suspending a number of impersonator accounts and is now in discussions with the prime minister’s office in an attempt to defuse the row, according to people familiar with the matter. A spokesperson for Twitter declined to comment.

Angry users also used the site to attack the restrictions using the hashtags #GOIblocks and #Emergency2012, the latter a highly charged reference to prime minister Indira Gandhi’s two-year period of rule by decree in the late 1970s.

India has a long history of censorship measures designed to prevent communal violence, ranging from restrictions introduced under the British Raj in the early 20th century to more recent edicts banning Salman Rushdie’s novel The Satanic Verses and restricting derogatory portrayals of religious figures in Bollywood movies.

“Blocking content to help mitigate a volatile situation involving civilian security could be justified,” says Meenakshi Ganguly, South Asia director at Human Rights Watch. “But when the government expresses equal concern about fake Twitter handles or criticism of political leaders, it begins to look like censorship.”

The online restrictions followed related measures restricting to five the number of text messages that could be sent from most Indian mobile phones, although this was lifted to 20 on Thursday.

They also came during a week of deepening political crisis in the world’s largest democracy, as opposition leaders repeatedly halted parliamentary proceedings and called for Mr Singh’s resignation in the aftermath of a critical report from India’s government auditor.

“These threats to social harmony are real, but like almost everything the Indian state is doing at present, the restrictions incompetently deal with a few symptoms rather than addressing causes,” says Pratap Bhanu Mehta of the Centre for Policy Research, a think tank in New Delhi. “They are simply exacerbating a crisis of trust, not solving it.”

For more details visit https://cis-india.org/news/www-ft-com-aug-24-2012-james-crabtree-tim-bradshaw-criticism-mounts-over-india-censorship

CPOV : Wikipedia Research Initiative

nishant — 2011-08-23T02:52:25Z

The Second event, towards building the Critical Point of View Reader on Wikipedia, brings a range of scholars, practitioners, theorists and activists to critically reflect on the state of Wikipedia in our contemporary Information Societies. Organised in Amsterdam, Netherlands, by the Institute of Network Cultures, in collaboration with the Centre for Internet and Society, Bangalore, the event builds on the debates and discussions initiated at the WikiWars that launched off the knowledge network in Bangalore in January 2010. Follow the Live Tweets at #CPOV

Second international conference of the CPOV Wikipedia Research Initiative :: March 26-27, 2010 :: OBA (Public Library Amsterdam, next to Amsterdam central station), Oosterdokskade 143, Amsterdam.

Wikipedia is at the brink of becoming the de facto global reference of dynamic knowledge. The heated debates over its accuracy, anonymity, trust, vandalism and expertise only seem to fuel further growth of Wikipedia and its user base. Apart from leaving its modern counterparts Britannica and Encarta in the dust, such scale and breadth places Wikipedia on par with such historical milestones as Pliny the Elder’s Naturalis Historia, the Ming Dynasty’s Wen-hsien ta- ch’ eng, and the key work of French Enlightenment, the Encyclopedie. The multilingual Wikipedia as digital collaborative and fluid knowledge production platform might be said to be the most visible and successful example of the migration of FLOSS (Free/ Libre/ Open Source Software) principles into mainstream culture. However, such celebration should contain critical insights, informed by the changing realities of the Internet at large and the Wikipedia project in particular.

The CPOV Research Initiative was founded from the urge to stimulate critical Wikipedia research: quantitative and qualitative research that could benefit both the wide user-base and the active Wikipedia community itself. On top of this, Wikipedia offers critical insights into the contemporary status of knowledge, its organizing principles, function, and impact; its production styles, mechanisms for conflict resolution and power (re-)constitution. The overarching research agenda is at once a philosophical, epistemological and theoretical investigation of knowledge artifacts, cultural production and social relations, and an empirical investigation of the specific phenomenon of the Wikipedia.

Conference Themes: Wiki Theory, Encyclopedia Histories, Wiki Art, Wikipedia Analytics, Designing Debate and Global Issues and Outlooks.

Follow the live tweets on http://twitter.com/#search?q=%23CPOV

Confirmed speakers: Florian Cramer (DE/NL), Andrew Famiglietti (UK), Stuart Geiger (USA), Hendrik-Jan Grievink (NL), Charles van den Heuvel (NL), Jeanette Hofmann (DE), Athina Karatzogianni (UK), Scott Kildall (USA), Patrick Lichty (USA), Hans Varghese Mathews (IN), Teemu Mikkonen (FI), Mayo Fuster Morell (IT), Mathieu O’Neil (AU), Felipe Ortega (ES), Dan O’Sullivan (UK), Joseph Reagle (USA), Ramón Reichert (AU), Richard Rogers (USA/NL), Alan Shapiro (USA/DE), Maja van der Velden (NL/NO), Gérard Wormser (FR).

Editorial team: Sabine Niederer and Geert Lovink (Amsterdam), Nishant Shah and Sunil Abraham (Bangalore), Johanna Niesyto (Siegen), Nathaniel Tkacz (Melbourne). Project manager CPOV Amsterdam: Margreet Riphagen. Research intern: Juliana Brunello. Production intern: Serena Westra.

The CPOV conference in Amsterdam will be the second conference of the CPOV Wikipedia Research Initiative. The launch of the initiative took place in Bangalore India, with the conference WikiWars in January 2010. After the first two events, the CPOV organization will work on producing a reader, to be launched early 2011. For more information or submitting a reader contribution.

Buy your ticket online (with iDeal), or register by sending an email to: info (at) networkcultures.org. One day ticket: €25, students and OBA members: €12,50. Full conference pass (2 days): €40, students and OBA members: 25.

Organized by the Institute of Network Cultures Amsterdam, in cooperation with the Centre for Internet and Society in Bangalore, India.

For more details visit https://cis-india.org/research/conferences/conference-blogs/cpov

Contestations of Data, ECJ Safe Harbor Ruling and Lessons for India

jyoti — 2015-10-14T14:40:08Z

The European Court of Justice has invalidated a European Commission decision, which had previously concluded that the 'Safe Harbour Privacy Principles' provide adequate protections for European citizens’ privacy rights for the transfer of personal data between European Union and United States. The inadequacies of the framework is not news for the European Commission and action by ECJ has been a long time coming. The ruling raises important questions about how the claims of citizenship are being negotiated in the context of the internet, and how increasingly the contestations of personal data are being employed in the discourse.

The European Court of Justice (ECJ) has invalidated a European Commission (EC) decision¹ which had previously concluded that the 'Safe Harbor Privacy Principles'² provide adequate protections for European citizens’ privacy rights³ for the transfer of personal data between European Union and United States. This challenge stems from the claim that public law enforcement authorities in America obtain personal data from organisations in safe harbour for incompatible and disproportionate purposes in violation of the Safe Harbour Privacy Principles. The court's judgment follows the advice of the Advocate General of the Court of Justice of the European Union (CJEU) who recently opined⁴ that US practices allow for large-scale collection and transfer of personal data belonging to EU citizens without them benefiting from or having access to judicial protection under US privacy laws. The inadequacies of the framework is not news for the Commission and action by ECJ has been a long time coming. The ruling raises important questions about how increasingly the contestations of personal data are being employed in asserting claims of citizenship in context of the internet.

As the highest court in Europe, the ECJ's decisions are binding on all member states. With this ruling the ECJ has effectively restrained US firms from indiscriminate collection and sharing of European citizens’ data on American soil. The implications of the decision are significant, because it shifts the onus of evaluating protections of personal data for EU citizens from the 4,400 companies⁵ subscribing to the system onto EU privacy watchdogs. Most significantly, in addressing the rights of a citizen against an established global brand, the judgement goes beyond political and legal opinion to challenge the power imbalance that exists with reference to US based firms.

Today, the free movement of data across borders is a critical factor in facilitating trade, financial services, governance, manufacturing, health and development. However, to consider the ruling as merely a clarification of transatlantic mechanisms for data flows misstates the real issue. At the heart of the judgment is the assessment whether US firms apply the tests of ‘necessity and proportionality’ in the collection and surveillance of data for national security purposes. Application of necessity and proportionality test to national security exceptions under safe harbor has been a sticking point that has stalled the renegotiation of the agreement that has been underway between the Commission and the American data protection authorities.⁶

For EU citizens the stake in the case are even higher, as while their right to privacy is enshrined under EU law, they have no administrative or judicial means of redress, if their data is used for reasons they did not intend. In the EU, citizens accessing and agreeing to use of US based firms are presented with a false choice between accessing benefits and giving up on their fundamental right to privacy. In other words, by seeking that governments and private companies provide better data protection for the EU citizens and in restricting collection of personal data on a generalised basis without objective criteria, the ruling is effectively an assertion of ‘data sovereignty’. The term ‘data sovereignty’, while lacking a firm definition, refers to a spectrum of approaches adopted by different states to control data generated in or passing through national internet infrastructure.⁷ Underlying the ruling is the growing policy divide between the US and EU privacy and data protection standards, which may lead to what is referred to as the balkanization⁸ of the internet in the future.

US-EU Data Protection Regime

The safe harbor pact between the EU and US was negotiated in the late 1990s as an attempt to bridge the different approaches to online privacy. Privacy is addressed in the EU as a fundamental human right while in the US it is defined under terms of consumer protection, which allow trade-offs and exceptions when national security seems to be under threat. In order to address the lower standards of data protection prevalent in the US, the pact facilitates data transfers from EU to US by establishing certain safeguards equivalent to the requirements of the EU data protection directive. The safe harbor provisions include firms undertaking not to pass personal information to third parties if the EU data protection standards are not met and giving users right to opt out of data collection.⁹

The agreement was due to be renewed by May 2015¹⁰ and while negotiations have been ongoing for two years, EU discontent on safe harbour came to the fore following the Edward Snowden revelations of collection and monitoring facilitated by large private companies for the PRISM program and after the announcement of the TransAtlantic Trade and Investment Partnership (TTIP).¹¹ EU member states have mostly stayed silent as they run their own surveillance programs often times, in cooperation with the NSA. EU institutions cannot intervene in matters of national security however, they do have authority on data protection matters. European Union officials and Members of Parliament have expressed shock and outrage at the surveillance programs unveiled by Snowden's 2013 revelations. Most recently, following the CJEU Advocate General’s opinion, 50 Members of European Parliament (MEP) sent a strongly worded letter the US Congress hitting back on claims of ‘digital protectionism’ emanating from the US¹². In no uncertain terms the letter clarified that the EU has different ideas on privacy, platforms, net neutrality, encryption, Bitcoin, zero-days, or copyright and will seek to improve and change any proposal from the EC in the interest of our citizens and of all people.

Towards Harmonization

In November 2013, as an attempt to minimize the loss of trust following the Snowden revelations, the European Commission (EC) published recommendations in its report on 'Rebuilding Trust is EU-US Data Flows'.¹³ The recommendations revealed two critical initiatives at the EU level—first was the revision of the EU-US safe harbor agreement¹⁴ and second the adoption of the 'EU-US Umbrella Agreement¹⁵'—a framework for data transfer for the purpose of investigating, detecting, or prosecuting a crime, including terrorism. The Umbrella Agreement was recently initialed by EU and US negotiators and it only addresses the exchange of personal data between law enforcement agencies.¹⁶ The Agreement has gained momentum in the wake of recent cases around issues of territorial duties of providers, enforcement jurisdictions and data localisation.¹⁷ However, the adoption of the Umbrella Act depends on US Congress adoption of the Judicial Redress Act (JRA) as law.¹⁸

Judicial Redress Act

The JRA is a key reform that the EC is pushing for in an attempt to address the gap between privacy rights and remedies available to US citizens and those extended to EU citizens, including allowing EU citizens to sue in American courts. The JRA seeks to extend certain protections under the Privacy Act to records shared by EU and other designated countries with US law enforcement agencies for the purpose of investigating, detecting, or prosecuting criminal offenses. The JRA protections would extend to records shared under the Umbrella Agreement and while it does include civil remedies for violation of data protection, as noted by the Center for Democracy and Technology, the present framework does not provide citizens of EU countries with redress that is at par with that which US persons enjoy under the Privacy Act.¹⁹

For example, the measures outlined under the JRA would only be applicable to countries that have outlined appropriate privacy protections agreements for data sharing for investigations and ‘efficiently share’ such information with the US. Countries that do not have agreements with US cannot seek these protections leaving the personal data of their citizens open for collection and misuse by US agencies. Further, the arrangement leaves determination of 'efficiently sharing' in the hands of US authorities and countries could lose protection if they do not comply with information sharing requests promptly. Finally, JRA protections do not apply to non-US persons nor to records shared for purposes other than law enforcement such as intelligence gathering. JRA is also weakened by allowing heads of agencies to exercise their discretion to seek exemption from the Act and opt out of compliance.

Taken together the JRA, the Umbrella Act and the renegotiation of the Safe Harbor Agreement need considerable improvements. It is worth noting that EU’s acceptance of the redundancy of existing agreements and in establishing the independence of national data protection authorities in investigating and enforcing national laws as demonstrated in the Schrems and in the Weltimmo²⁰ case point to accelerated developments in the broader EU privacy landscape.

Consequences

The ECJ Safe Harbor ruling will have far-reaching consequences for the online industry. Often, costly government rulings solidify the market dominance of big companies. As high regulatory costs restrict the entrance of small and medium businesses the market, competition is gradually wiped out. Further, complying with high standards of data protection means that US firms handling European data will need to consider alternative legal means of transfer of personal data. This could include evolving 'model contracts' binding them to EU data protection standards. As Schrems points out, “Big companies don’t only rely on safe harbour: they also rely on binding corporate rules and standard contractual clauses.”²¹

The ruling is good news for European consumers, who can now approach a national regulator to investigate suspicions of data mishandling. EU data protection regulators may be be inundated with requests from companies seeking authorization of new contracts and with consumer complaints. Some are concerned that the ruling puts a dent in the globalized flow of data²², effectively requiring data localization in Europe.²³ Others have pointed out that it is unclear how this decision sits with other trade treaties such as the TPP that ban data localisation.²⁴ While the implications of the decision will take some time in playing out, what is certain is that US companies will be have to restructure management, storage and use of data. The ruling has created the impetus for India to push for reforms to protect its citizens from harms by US firms and improve trade relations with EU.

The Opportunity for India

Multiple data flows taking place over the internet simultaneously and that has led to ubiquity of data transfers o ver the Internet, exposing individuals to privacy risks. There has also been an enhanced economic importance of data processing as businesses collect and correlate data using analytic tools to create new demands, establish relationships and generate revenue for their services. The primary concern of the Schrems case may be the protection of the rights of EU citizens but by seeking to extend these rights and ensure compliance in other jurisdictions, the case touches upon many underlying contestations around data and sovereignty.

Last year, Mr Ram Narain, India Head of Delegation to the Working Group Plenary at ITU had stressed, “respecting the principle of sovereignty of information through network functionality and global norms will go a long way in increasing the trust and confidence in use of ICT.”²⁵ In the absence of the recognition of privacy as a right and empowering citizens through measures or avenues to seek redressal against misuse of data, the demand of data sovereignty rings empty. The kind of framework which empowered an ordinary citizen in the EU to approach the highest court seeking redressal based on presumed overreach of a foreign government and from harms abetted by private corporations simply does not exist in India. Securing citizen’s data in other jurisdictions and from other governments begins with establishing protection regimes within the country.

The Indian government has also stepped up efforts to restrict transfer of data from India including pushing for private companies to open data centers in India.²⁶ Negotiating data localisation does not restrict the power of private corporations from using data in a broad ways including tailoring ads and promoting products. Also, data transfers impact any organisation with international operations for example, global multinationals who need to coordinate employee data and information. Companies like Facebook, Google and Microsoft transfer and store data belonging to Indian citizens and it is worth remembering that the National Security Agency (NSA) would have access to this data through servers of such private companies. With no existing measures to restrict such indiscriminate access, the ruling purports to the need for India to evolve strong protection mechanisms. Finally, the lack of such measures also have an economic impact, as reported in a recent Nasscom-Data Security Council of India (DSCI) survey²⁷ that pegs revenue losses incurred by the Indian IT-BPO industry at $2-2.5 billion for a sample size of 15 companies. DSCI has further estimated that outsourcing business can further grow by $50 billion per annum once India is granted a “data secure” status by the EU.²⁸ EU’s refusal to grant such a status is understandable given the high standard of privacy as incorporated under the European Union Data Protection Directive a standard to which India does not match up, yet. The lack of this status prevents the flow of data which is vital for Digital India vision and also affects the service industry by restricting the flow of sensitive information to India such as information about patient records.

Data and information structures are controlled and owned by private corporations and networks transcend national borders, therefore the foremost emphasis needs to be on improving national frameworks. While, enforcement mechanisms such as the Mutual Legal Assistance Treaty (MLAT) process or other methods of international cooperation may seem respectful of international borders and principles of sovereignty,²⁹ for users that live in undemocratic or oppressive regimes such agreements are a considerable risk. Data is also increasingly being stored across multiple jurisdictions and therefore merely applying data location lens to protection measures may be too narrow. Further it should be noted that when companies begin taking data storage decisions based on legal considerations it will impact the speed and reliability of services.³⁰ Any future regime must reflect the challenges of data transfers taking place in legal and economic spaces that are not identical and may be in opposition. Fundamentally, the protection of privacy will always act as a barrier to the free flow of information even so, as the Schrems case ruling points out not having adequate privacy protections could also restrict flow of data, as has been the case for India.

The time is right for India to appoint a data controller and put in place national frameworks, based on nuanced understanding of issues of applying jurisdiction to govern users and their data. Establishing better protection measures will not only establish trust and enhance the ability of users to control data about themselves it is also essential for sustaining economic and social value generated from data generation and collection. Suggestions for such frameworks have been considered previously by the Group of Experts on Privacy constituted by the Planning Commission.³¹ By incorporating transparency in mechanisms for data and access requests and premising requests on established necessity and proportionality Indian government can lead the way in data protection standards. This will give the Indian government more teeth to challenge and address both the dangers of theft of data stored on servers located outside of India and restrain indiscriminate access arising from terms and conditions of businesses that grant such rights to third parties.

1 Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (notified under document number C(2000) 2441) (Text with EEA relevance.) Official Journal L 215 , 25/08/2000 P. 0007 -0047 2000/520/EC: http ://eur -lex .europa .eu /LexUriServ /LexUriServ .do ?uri =CELEX :32000 D 0520:EN :HTML

2 Safe Harbour Privacy Principles Issued by the U.S. Department of Commerce on July 21, 2000 http ://www .export .gov /safeharbor /eu /eg _main _018475.asp

3 Megan Graham, Adding Some Nuance on the European Court ’s Safe Harbor Decision , Just security

https ://www .justsecurity .org /26651/adding -nuance -ecj -safe -harbor -decision /

4 Advocate General’s Opinion in Case C-362/14 Maximillian Schrems v Data Protection Commissioner Court of Justice of the European Union, Press Release, No 106/15 Luxembourg, 23 September 2015 http ://curia .europa .eu /jcms /upload /docs /application /pdf /2015-09/cp 150106 en .pdf

5 Jennifer Baker, ‘EU desperately pushes just-as-dodgy safe harbour alternatives’, The Register, October 7, 2015 http ://www .theregister .co .uk /2015/10/07/eu _pushes _safe _harbour _alternatives /

6 Draft Report, General Data Protection Regulation, Committee on Civil Liberties, Justice and Home Affairs, European Parliament, 2009-2014 http ://www .europarl .europa .eu /meetdocs /2009_2014/documents /libe /pr /922/922387/922387 en .pdf

7 Dana Polatin-Reuben, Joss Wright, ‘An Internet with BRICS Characteristics: Data Sovereignty and the Balkanisation of the Internet’, University of Oxford, July 7, 2014 https ://www .usenix .org /system /files /conference /foci 14/foci 14-polatin -reuben .pdf

8 Sasha Meinrath, The Future of the Internet: Balkanization and Borders, Time, October 2013 http ://ideas .time .com /2013/10/11/the -future -of -the -internet -balkanization -and -borders /

9 Safe Harbour Privacy Principles, Issued by the U.S. Department of Commerce, July 2001 http ://www .export .gov /safeharbor /eu /eg _main _018475.asp

10 Facebook case may force European firms to change data storage practices, The Guardian, September 23, 2015 http ://www .theguardian .com /us -news /2015/sep /23/us -intelligence -services -surveillance -privacy

11 Privacy Tracker, US-EU Safe Harbor Under Pressure, August 2, 2013 https ://iapp .org /news /a /us -eu -safe -harbor -under -pressure

12 Kieren McCarthy, Privacy, net neutrality, security, encryption ... Europe tells Obama, US Congress to back off, The Register, 23 September, 2015 http ://www .theregister .co .uk /2015/09/23/european _politicians _to _congress _back _off /

13 Communication from the Commission to the European Parliament and the Council, Rebuilding Trust in EU-US Data Flows, European Commission, November 2013 http ://ec .europa .eu /justice /data -protection /files /com _2013_846_en .pdf

14 Safe Harbor on trial in the European Union, Access Blog, September 2014 https ://www .accessnow .org /blog /2014/11/13/safe -harbor -on -trial -in -the -european -union

15 European Commission - Fact Sheet Questions and Answers on the EU-US data protection "Umbrella agreement", September 8, 2015 http ://europa .eu /rapid /press -release _MEMO -15-5612_en .htm

16 McGuire Woods, ‘EU and U.S. reach “Umbrella Agreement” on data transfers’, Lexology, September 14, 2015 http ://www .lexology .com /library /detail .aspx ?g =422 bca 41-2 d 54-4648-ae 57-00 d 678515 e 1 f

17 Andrew Woods, Lowering the Temperature on the Microsoft-Ireland Case, Lawfare September, 2015 https ://www .lawfareblog .com /lowering -temperature -microsoft -ireland -case

18 Jens-Henrik Jeppesen, Greg Nojeim, ‘The EU-US Umbrella Agreement and the Judicial Redress Act: Small Steps Forward for EU Citizens’ Privacy Rights’, October 5, 2015 https ://cdt .org /blog /the -eu -us -umbrella -agreement -and -the -judicial -redress -act -small -steps -forward -for -eu -citizens -privacy -rights /

19 Ibid 18.

20 Landmark ECJ data protection ruling could impact Facebook and Google, The Guardian, 2 October, 2015 http ://www .theguardian .com /technology /2015/oct /02/landmark -ecj -data -protection -ruling -facebook -google -weltimmo

21 Julia Powles, Tech companies like Facebook not above the law, says Max Schrems, The Guardian, Octover 9, 2015 http ://www .theguardian .com /technology /2015/oct /09/facebook -data -privacy -max -schrems -european -court -of -justice

22 Adam Thierer, Unintended Consequences of the EU Safe Harbor Ruling, The Technology Liberation Front, October 6, 2015 http ://techliberation .com /2015/10/06/unintended -consequenses -of -the -eu -safe -harbor -ruling /#more -75831

23 Anupam Chander, Tweeted ECJ #schrems ruling may effectively require data localization within Europe, https ://twitter .com /AnupamChander /status /651369730754801665

24 Lokman Tsui, Tweeted, “If the TPP bans data localization, but the ECJ ruling effectively mandates it, what does that mean for the internet?” https ://twitter .com /lokmantsui /status /651393867376275456

25 Statement from Indian Head of Delegation, Mr Ram Narain for WGPL, Indian statement on ITU and Internet at the Working Group Plenary November 4, 2014 https ://ccgnludelhi .wordpress .com /author /asukum 87/page /2/

26 Sounak Mitra, Xiaomi bets big on India despite problems, Business Standard, December 2014 http ://www .business -standard .com /article /companies /xiaomi -bets -big -on -india -despite -problems -114122201023_1.html

27 Neha Alawadi, Ruling on data flow between EU & US may impact India’s IT sector, Economic Times,October 7, 2015 http ://economictimes .indiatimes .com /articleshow /49250738.cms ?utm _source =contentofinterest &utm _medium =text &utm _campaign =cppst

28 Pranav Menon, Data Protection Laws in India and Data Security- Impact on India and Data Security-Impact on India - EU Free Trade Agreement, CIS Access to Knowledge, 2011 http ://cis -india .org /a 2 k /blogs /data -security -laws -india .pdf

29 Surendra Kumar Sinha, India wants Mutual Legal Assistance treaty with Bangladesh, Economic Times, October 7, 2015 http ://economictimes .indiatimes .com /articleshow /49262294.cms ?utm _source =contentofinterest &utm _medium =text &utm _campaign =cppst

30 Pablo Chavez, Director, Public Policy and Government Affairs, Testifying before the U.S. Senate on transparency legislation, November 3, 2013 http ://googlepublicpolicy .blogspot .in /2013/11/testifying -before -us -senate -on .htm

31 Report of the Group of Experts on Privacy (Chaired by Justice A P Shah, Former Chief Justice, Delhi High Court), Planning Commission, October 2012 http ://planningcommission .nic .in /reports /genrep /rep _privacy .pdf

For more details visit https://cis-india.org/internet-governance/blog/contestations-of-data-ecj-safe-harbor-ruling-and-lessons-for-india

Collaborative Projects Programme

nishant — 2011-08-23T03:04:56Z

The Centre for Internet and Society recognises collaboration and consultation as its primary mode of engaging with research and intervention. The Collaborative Projects Programme (CPP) is CIS’ platform for partnering (intellectually, logistically, financially, and administratively) with other organisations, individuals and practitioners in projects which are of immediate concern to the work that CIS is committed to.

The Collaborative Projects Programme also expands the scope of research to produce a synergy between research and praxis. The CPP is, in many ways, the in-house research that CIS undertakes, in collaboration and consultation with other organisations, institutions and individuals who have a stake and a say in the field of Internet and Society. The CPP is not bound by any theme of programmatic modalities and is envisioned more as a way for CIS to extend its field and establish a strong network with other exciting spaces in the Global South.

The Collaborative Projects Programme can include, but is not limited to, organising of large conferences or workshops; developing tools for better research and advocacy; data mining towards a specific goal that complements CIS’ vision; producing original monographs/publications/books targeted at different audiences; experimenting with new technologies to affect policy and usage; implementing pilot studies and instances of existing ideas; developing schemes to integrate education and technology; public intervention and awareness campaigns geared towards particular outcomes; celebrating certain aspects of internet technologies; engaging with digital natives; and creating new environments of learning and participation online.

The CPP is NOT a grant making programme. However, we are interested in partnering on new and innovative ideas and would welcome conversations with people and organisations in the field. If you have an interesting idea that you think fits our larger vision, please contact us and we can begin the discussions.

List of Projects under the Collaborative Projects Programme:

1. The Promise of Invisibility: Technology and the City - A seven month research project initiated by Nishant Shah, in collaboration with the Centre for Contemporary Cultural Studies, Shanghai University, enabled by a grant from the Asia Scholarship Foundation, Bangkok.

2. Disability, Learning and Digital Participation - in partnership with Inclusive Planet

For more details visit https://cis-india.org/research/grants/collaborative-projects-programme

Clash of the cyberworlds

praskrishna — 2013-01-15T06:57:48Z

In an increasingly digital world, the issue of Internet freedom and governance has become hugely contested. Censorship and denial of access occur across the political spectrum of nations, even in liberal democracies.

The article by Latha Jishnu, Dinsa Sachan and Moyna was published in Down to Earth magazine's January 15, 2013 issue. Pranesh Prakash is quoted.

In run-up to the just-concluded World Conference on International Telecommunications in Dubai, there was a frenzied campaign to ensure that governments kept their hands off the Internet. It was feared the International Telecommunications Union, a UN body, was aiming to take control of the Internet. That hasn’t happened. But the outcome in Dubai has highlighted once again the double speak on freedom by countries that claim to espouse it and by corporations interested in protecting their interests, says Latha Jishnu, who warns that the major threat to the Internet freedom comes from the wide-ranging surveillance measures that all governments are quietly adopting. Dinsa Sachan speaks to institutions and officials to highlight the primacy of cyber security for nations, while Moyna tracks landmark cases that will have a bearing on how free the Net remains in India.

For months now a little-known UN agency, the International Telecommunication Union (ITU), has been looming large in cyberspace, portrayed as an evil force plotting to take over the Internet and threatening to destroy its freedom by rewriting archaic regulations. ITU, set up in 1865, is primarily a technical body that administers a 24-year-old treaty, International Telecommunication Regulations (ITRs), which are basic principles that govern the technical architecture of the global communication system.

	How did the 193-nation ITU, which regulates radio spectrum, assigns satellite orbits and generally works to improve telecom infrastructure in the developing world, turn into everyone’s favourite monster in the digital world? The provocation was ITU’s World Conference on International Telecommunications (WCIT) in Dubai, where ITRs were proposed to be revised. Leaked documents of the proposals made to ITU had shown that statist countries like Russia and China, known for their crackdown on Internet freedom, had put forward proposals to regulate digital “crime” and “security” aspects that are currently not regulated at the global level for want of consensus on balancing enforcement with protection of individual rights.

Other proposals were about technical coordination and the setting up of standards that enable all the devices, networks and software across the Internet to communicate and connect with one another. Although ITU secretary general Hamadoun I Touré had emphasised that the Dubai WCIT was primarily attempting to chart “a globally agreed-upon roadmap that offers future connectivity to all, and ensures sufficient communications capacity to cope with the exponential growth in voice, video and data”, there was widespread scepticism among developed countries.

Online subversion in India AT the seventh annual meeting of the Internet Governance Forum in Baku, Azerbaijan, last November, Minister for Communications and Information Technology Kapil Sibal was a star turn. He made an elevating speech about the need to put in place a “collaborative, consultative, inclusive and consensual” system for dealing with policies involving the Internet. India, with 125 million Internet users—a number that “is likely to grow to about half a billion over the next few years”—would be a key player in the cyberworld of tomorrow, he promised. According to the minister, Internet governance was an oxymoron because the concept of governance was for dealing with the physical world and had no relevance in cyberspace. These were high sounding words that crashed against the reality of India’s paranoia over online subversion. For starters, Sibal flew into a media blitz over Google’s transparency Report which ranked India second globally in accessing private details of its citizens. Even if it was a far second behind the US, it was an embarrassing revelation for the government which appears to have been rather enthusiastic in seeking information on the users of its various services. Such user data would include social networking profiles, complete gmail accounts and search terms used. In the first half of 2012, India made 2,319 requests related to 3,467 users compared with 7,969 requests by the US. Globally, Google clocked a total of 20,938 requests for user data. A few days down the line there was a public explosion over the arrest of two young women in Palghar, near Mumbai, for posting a prosaic comment on Facebook over Bal Thackeray’s death. Thanks to the deliberately vague wording of Section 66A of the IT Act, such arrests have become common and Rajya Sabha devoted a whole afternoon to discuss the impugned legislation and seek its withdrawal. Sibal’s response has been to issue guidelines on the use of this Section which civil society organisations say will do nothing to sort out matters. Then there are the IT (Intermediaries Guidelines) Rules, 2011, issued under Section 79 of the IT Act, which have been used indiscriminately by business interests to shut down websites, resulting in unbridled censorship of the Internet time and again. Although a motion for its annulment was moved in Parliament by Rajya Sabha member P Rajeeve, it was withdrawn after Sibal promised to talk to all stakeholders. A host of MPs have termed the rules a violation of right to freedom of speech besides going against the laws of natural justice. The promised meeting of stakeholders has not yielded any results and censorship on grounds of possible online piracy continues. In this regard, India is more restrained than the US which has pulled down huge numbers of domains on the ground they were violating intellectual property by selling pirated goods.

Western global powers, behemoth Internet companies, private telecom corporations and almost the entire pack of civil liberties organisations came together in a frenzied campaign to ensure that ITU kept its hands off the Internet. Massive online petitions were launched, backed by Internet companies such as search engine Google and social networking service Facebook. The Internet, they said, should not become an ITU remit because it would change the multi-stakeholder approach, which currently marks the way the Internet is governed, and replace it with government control that would curb digital freedom. Not only did the US administration oppose the revision of ITRs, the US Congress also passed a rare unanimous resolution against the WCIT proposals.

In the end, it was an anti-climax: nothing much came of these proposals. Although WCIT was marked by high drama—a walkout by the US and six European countries, a show of hands on a contested but innocuous resolution and an unexpected vote—the “final acts” (http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf) or the changes in ITRs make no mention of the I word. Not once. The 30-page document states at the outset that “these regulations do not address the content-related aspects of telecommunications” —an indirect reference to the Internet.

	Ultimately, it was a triumph of the US-led position even if 89 of the 144 eligible countries signed it. Most of the developed countries refused to sign it. Nor, unexpectedly, did India, and thereby hangs a curious tale. Officials who were privy to the negotiations told Down To Earth that India was all set to sign the new ITRs when its delegation got last-minute instructions from Delhi not to endorse them. “It was unexpected and a let-down for India and our global allies,” confesses an official of the Ministry of Communications & IT. “There was nothing in the final document that we had objections to.” According to the grapevine, Minister for Communications and Information Technology Kapil Sibal was facing pressure from two sides: the US Administration and domestically from civil society, Internet service providers and the private telecom players who had objected to India’s proposals on ITRs. The US is known to be keeping a close eye on what India decides to do on the new treaty which it can still ratify. In the Dubai treaty, the only ITR that does impinge on the Net is (Article 5B) on unsolicited bulk electronic communications or spam. But even here, what it merely states is that member-states should endeavour to take necessary measures to prevent the “propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.”

In many ways, what took place during the hectic days before and during the December 3-14 WCIT was in a broad sense a replay of the Cold War scenario of the good (freedom-loving countries) versus evil (authoritarian or autocratic regimes), although alliance may have shifted in the two blocs. What is clear is that a larger geopolitical fight is playing out with the Internet as disputed terrain. American analysts themselves have pointed out that the “US got most of what it wanted. But then it refused to sign the document and left in a huff.”

Even the innocuous Article 5A, which calls on members “to ensure the security and robustness of international telecommunication networks”, was interpreted by US delegation head Terry Kramer as a means that could be used by some governments to curb free speech!

As an outraged Saudi delegate said, “It is unacceptable that one party to the conference gets everything they want and everybody else must make concessions. And after having made many concessions, we are then asked to suppress the language which was agreed to. I think that that is dangerous. We are on a slippery slope.” The final outcome: all the contentious issues were relegated to resolutions, which have no legal basis.

Indeed, the US has managed to get its way on most issues: protecting the mammoth profits of its Internet companies and ensuring that control of the Internet address system, now done by a group based in the US, will not be shared with other ITU members. And, the likes of Google (2011 profit: $37.9 billion) and Facebook will not have to pay telecom companies for use of their networks to deliver content.

Challenges of securing cyberworld

E-commerce in India, where every tenth person is online, is on the rise—and, consequently, crime on the Internet. In 2011, the country’s nodal agency for handling cyber crime, Indian Computer Emergency Response Team, tackled 13,301 incidences of security breach. The incidents ran the gamut from website intrusions, phishing to network probing and virus attacks. Further, in 2009, 2010, 2011 and 2012 (until October), there were 201, 303, 308 and 294 cyber attacks respectively on sites owned by the Indian government. Most notably, hacker group Anonymous defaced the website of Union Minister of Communications and Information Technology, Kapil Sibal.

To beef up cyber security, the Union ministry plans to pump in Rs 45 crore in 2012-13. It also put up a draft cyber security policy for public comments in 2011. Currently, cases involving cyber security and crime are handled under the IT Act of 2000 (Amendment 2008) and the Indian Penal Code.

But will the government go about its business of securing the Net in a responsible manner? There is scepticism. Section 69 of the Act gives any government agency the right to “intercept, monitor or decrypt” information online. Chinmayi Arun, assistant professor of law at National Law University in Delhi, said at the Internet Governance Conference held at FICCI in October that crimes like defamation are not on the same page as cyber terrorism, and “we have to question whether they warranty invasion of privacy”. She added that the workings of the surveillance system has to be made more open to build public trust.

Pranesh Prakash, policy director at Centre for Internet and Society (CIS) in Bengaluru, draws attention to a fundamental flaw in the section. “Government is allowed to wire tap under the Telegraph Act, 1885. But the Act lays out specific guidelines for such an action. For example, you can only tap phones in the case of a ‘public emergency’ or ‘public safety’ situation. The IT Act does not put such limitations on interception of information,” he says.

Cyber security and ITU

A few months prior to the controversial World Conference on International Telecommunications in Dubai, countries, including Russia and Arab states, had proposed measures that would, through International Telecommunication Union (ITU), grant disproportional power to countries to control the Internet in the name of security measures. Several proposals, most notably those of India and Arab States, explicitly stated in the proposed Article 5A that countries should be able to “undertake appropriate measures, individually or in cooperation with other Member States” to tackle issues relating to “confidence and security of telecommunications/ICTs”. It raised alarm among civil society. US-based think tank Center for Democracy and Technology (CDT) said in its report dated September, 2012, that cyber security does not fall under the ambit of International Telecom Regulations, and some countries would misuse such privileges for “intrusive or repressive measures”.

The proposal by African member states recommended that nations should “harmonise their laws” on data retention. In other words, intermediaries would have to retain public data for a long period so that governments can access it whenever they please. With regard to this, CDT noted, “Not only do national laws on data retention vary greatly, but there is ongoing controversy about whether governments should impose data retention mandates at all.”

A clause in the Arab proposal on routing said, “A Member State has the right to know how its traffic is routed.” Currently, the way Internet works, senders and recipients do not know how data between their computers travels or is routed. However, enabling countries to have control over routing has its dangers. CDT notes, “(This) would simply not work and could fundamentally disrupt the operation of the Internet.” Internet traffic travels over an IP network. While travelling, it is fragmented into small packets. Packets generally take a different path across interconnected networks in many different countries before reaching the recipient’s computer. CDT notes providing routing information to countries would require “extensive network engineering changes, not only creating huge new costs, but also threatening the performance benefits and network efficiency of the current system”. Although routing was not part of India’s proposal, Ram Narain, deputy director general at the department of telecommunications, told Down To Earth it was one of the country’s concerns.

However, to civil society’s partial relief, such draconian cyber security clauses were not adopted in the new itr treaty. Two clauses added to the treaty, Article 5A and 5B, address some cyber security concerns. Titled “Security and robustness of networks”, Article 5A urges countries to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks”. Article 5B talks about keeping tabs on spam.

Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers, says while he would have preferred that the two clauses were kept out of the new treaty, they do not seem harmful. “They are a much toned down version of what Arab states and Russia had suggested,” he says.

This is one reason India, Brazil and other democracies from the developing world also want a change in ITRs. They want the Internet behemoths to pay for access to their markets so that such revenues can be used to build their own Internet infrastructure.

In the furious debate on keeping the Net free of international control even hawk-eyed civil society organisations prefer to ignore the monetary aspects of Net control. Some analysts believe that maintaining the status quo is not so much about protecting the values of the Internet as about safeguarding interests, both monetary and hegemonistic. Such an assessment may not be wide of the mark if one joins the dots. Google, says a Bloomberg report of December 10, “avoided about $2 billion in worldwide income taxes in 2011 by shifting $9.8 billion in revenues into a Bermuda shell company, almost double the total from three years before”. It also said that the French, Italian, British and Australian governments are probing Google’s tax avoidance in its borderless operations.

	What is clear, however, is that a number of countries for reasons springing from different motivations, appear determined to undermine America’s control of the outfits that now define how the Internet works. Although the US maintains that ICANN (Internet Corporation for Assigned Names and Numbers) is a private, non-profit corporation, it is overseen by the US Commerce Department. According to People’s Daily, what the US spouts about Net freedom is so much humbug. In an August 2012 report, the leading Chinese daily claimed the US “controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the US, leading to American hegemonic monopoly over the world’s Internet”. It also highlighted a fact that has slipped below the radar. During the Iraq invasion, the US government asked ICANN to terminate services to Iraq’s top-level domain name “.iq” and thereafter all websites with the domain name “.iq” disappeared overnight. It charges the US with having “taken advantage of its control over the Internet to launch an invisible war against disobedient countries and to intimidate and threaten other countries”. While this may be true, the irony is that China, with its great firewall of censorship, is in no shape to position itself as a champion of freedom. Like other authoritarian countries, it will do everything to police the Net and control it.

The right of countries and peoples to access the Net was highlighted in Dubai when some African countries raised the issue of US control of the global Internet. Some of these, such as Sudan, have long been complaining about Washington’s sanctions that entail denial of Internet services. ITU officials point out that Resolution 69, first passed in the 2008 meeting, invoked again in 2010 and dusted off once again for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecom/ ICT facilities, services and applications”. Says Paul Conneally, head of Communications & Partnership Promotion at ITU, “The real target of these resolutions are US sanctions imposed on nations that are deemed bad actors. These sanctions mean that people in those countries—not just the government, mind you, but everyone, innocent and guilty alike—are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc.”

The catalogue of Sudan’s complaints shows at least 27 instances in 2012 when companies from Google to Microsoft and Paypal to Oracle cut off their services to the African country. This might explain why major companies would be opposed to the resolution on a right to access Internet services. Such a right would allow countries to use ITRs to compel them to provide services they might otherwise have preferred not to. But so far all such sanctions appear to have been a decision of the US Administration.

The problem of the digital divide, in fact, did not get the headlines it should have. Africa accounts for just 7 per cent of the 2.4 billion people who use the Net worldwide and penetration in the region is just 15.6 per cent of the population. Compare this with North America where over 78 per cent are linked to the digital world and Touré’s logic about the ITU’s mandate appears reasonable.

When Apple censors the drone war NETIZENS know that the Internet suffers from the depredations of government, hackers and viruses. But not many are aware that companies are as prone to taking legitimate stuff off the Net on the flimsiest grounds. In the case of Apple it could have been misplaced patriotism or plain business sense that prompted it to block an app which monitors drone strike locations in November last year. The App Store rejected the product, calling it “objectionable and crude”. Drones+ (see photo) is an application that simply adds a location to a map every time a drone strike is reported in the media and added to a database maintained by the UK’s Bureau of Investigative Journalism. Josh Begley, a graduate student at New York University, who developed the app, says it shows no visuals of war or classified information. All it does is to keep its users informed about when and where drone attacks are taking place in Pakistan and Afghanistan. “This is behavior I would expect of a company in a repressive country like China, not an iconic American company in the heart of Silicon Valley,” says a petition to the company CEO. Did Apple’s censorship have anything to do with the fact that it received huge contracts from the Pentagon? US legislators have joined the protests against Apple. The most brazen act of corporate censorship occurred in August 2012 with NASA’s livestream coverage of the Curiosity rover’s landing on Mars in the space agency’s $2.5 billion mission. A news agency, Scripps, coolly claimed as its own the public domain video posted on NASA’s official YouTube channel that documented the epic landing (see our opening visuals). “This video contains content from Scripps Local News, who has blocked it on copyright grounds. Sorry about that,” said a message on NASA’s blackened screen. So much for the strict US laws aimed at curbing online piracy!

Touré noted that the revised ITRs would see greater transparency in global roaming charges, lead to “more investment in broadband infrastructure” and help those with disabilities. But he was hopeful that the new treaty signed in Dubai would make it possible for the 4.5 billion people still offline to be connected. “When all these people come online, we hope they will have enough infrastructure and connectivity so that traffic will continue to flow freely,” Touré said.

But should ITU govern the Net? Not in its entirety, according to experts. For one, ITU until the Dubai meeting was far from being transparent and does not allow participation of civil society or other stakeholders in its negotiations unless they are part of the official delegation of the member-states. In fact, even critics of the current system, who think the system is lopsided and hypocritical, believe ITU needs to reform itself and confine to the carrier/infrastructure layer of the Internet. Nor should it get into laying down standards which is done by Internet Engineering Task Force (IETF) and the naming and numbering that is managed by ICANN.

But Conneally counters this by asking what would happen if the US decided to deny domain name root zone to Iran because of its bad human rights record. “Suppose it ordered Verisign to remove .IR from the DNS root and make it non-functional. Would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?”

Who then should ensure that the Internet is run in a free and open manner? Should it be the Internet Governance Forum (IGF)? But IGF is to be an open consultative forum that cannot by itself govern. It brings in participation for any or all Internet-related policy processes but it by itself was never supposed to do policy or governance.

Parminder Jeet Singh, executive director of ItforChange, says whoever governs is the government for that purpose. “This truism is significant in the present context, because there is an attempt by those who really control/ govern the Internet at present, largely through illegitimate and often surreptitious ways, to confuse issues around Internet governance in all ways possible, including through abuse of established language and political principles and concepts.”

ITforChange is a Bengaluru institution working on information society theory and practice, especially from the standpoint of equity, social justice and gender equality, and it is that perspective which informs Singh’s suggestions. “What we need are safeguards as, for instance, with media regulation. The Internet, of course, is much more than media. It is today one of the most important factors that can and will influence distribution of economic, social and political power. Without regulation it will always be that those who currently dominate it will take away the biggest pie.

Surveillance club

Eight Indian companies are among the 700 members of European Telecommunications Standards Institute. The group works with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure. It also hosts regular meetings on lawful interception

Wipro Technologies	Associate Service Providers
• HCL Technologies Limited	• Associate Consultancy for Co./Partnership
• Accenture Services Pvt Ltd	• Observers
• CEWiT	• Associate Research Body
• Saankhya Labs Pvt Ltd	• Associate Manufacturers
• Sasken Communication	• Associate Manufacturers
• Technologies
• SmartPlay Technologies	Associate Consultancy for Co./Partnership
• TEJAS NETWORKS LTD	• Associate Manufacturers

Other critics of the current system concede that bringing governments on board, especially authoritarian and statist powers which the digital world threatens, would give them perverse incentives to control it. But this threat should be met not by insisting that the Internet needs no governance or regulation, but by safeguards that ensure equitable access and benefits, Singh stresses.

While the jury is out on the question whether the new ITRs will make any material difference to the way, and if at all, the Net will come under added government oversight and intervention, developments elsewhere show that ITU is not the main threat to digital freedom.

The irony is that while cyber security is contentious in ITU, other international organisations, such as the UN Office on Drugs and Crime (UNODC) and a clutch of influential telecom industry associations, are pushing for surveillance programmes that ensure policing of a high order with sophisticated infrastructure to monitor online communications. A host of countries already have such systems in place and are pressuring countries like India to fall in line.

A UNODC report, titled ‘The use of the Internet for terrorist purposes’, has detailed how countries can and should use new technology for online surveillance—all in the name of anti-terrorism. The report discusses sensitive issues such as blocking websites and using spyware to bypass encryption and also urges countries to cooperate on an agreed framework for data retention.

At the same time, powerful industry bodies, such as ATIS (Alliance for Telecommunications Industry Solutions) and the European Telecommunications Standards Institute (ETSI), are reported to be working with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure, according to Future Tense, a project which looks at emerging technologies and how these affect society, policy and culture. It says India is under pressure from another industry organisation, the Telecommunications Industry Association (TIA), “to adopt global standards for surveillance”, calling on the country’s government to create a “centralized monitoring system” and “install state-of-the-art legal intercept equipment”.

TIA is a Washington-based trade group which brings together companies such as Nokia, Siemens Networks and Verizon Wireless, and is focused on issues related to electronic surveillance and is developing standards for intercepting VOIP and data retention alongside with ETSI and ATIS. At least seven Indian companies are members of ETSI, which is said to hold international meetings on data interception thrice a year.

Add to this chilling list the International Chamber of Commerce. It is reported to be seeking the establishment of surveillance centre hubs of several countries to help governments intercept communications and obtain data that is stored in cloud servers in foreign jurisdictions. Given this backdrop why are the US and its cohorts creating a ruckus on ITRs?

It would also mean that by focusing on ITRs and ITU as a major threat to Internet freedom civil society may be jousting at windmills.

Malice and freedom of speech

Two suits highlight the challenge of treading between the two

Among the many legal cases in India related to the use and misuse of the world wide web, two stand out for involving web giants and provoking sharp reaction. These are the cases registered in Delhi district courts in December 2011, objecting to chunks of content—portraying prominent political figures and religious places among others in a certain light—hosted on websites. One was filed by a Delhi journalist, Vinai Rai, requesting the court to press criminal charges against 21 web agencies, including Google, Facebook and Yahoo! India. The other, filed by a social activist, M A A Qasmi, was a civil suit requesting action against 22 web agencies. Both mentioned that the content on the websites was inflammatory, threat to national integrity, unacceptable, and created enmity, hatred and communal discord.

A year on, tangible impact has not been much. The number of accused in the civil case has come down to seven web agencies and in the criminal case the government is yet to issue summons to the companies concerned (see ‘The case so far’). However, these litigations are seen as landmarks in the recent history of the Internet and its interaction with societies and governments. The cases—especially off-the-record comments by the judiciary suggesting blanket ban and pre-screening of all content—provoked a debate on the freedom of expression and Indian cyber laws.

The case so far

JANUARY 13, 2012: Delhi High Court dismisses petition by Google and Facebook asking to be absolved of criminal charges filed in district court

JANUARY 20: High Court asks for reply from Delhi Police in response to plea by Yahoo! India challenging district court summons

FEBRUARY 16: Court refuses to stay proceedings against Facebook and Google but allows them to be represented by counsel

MARCH: Court dismisses criminal charges against Yahoo! India and Microsoft but says the charges can be revived if new evidence comes to light. Sets aside summons

Malicious content exists on the web and may even need to be taken down, but the laws used to remove malicious content can also be used to curb political speech, thus, infringing on the right to freedom of expression, says Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers.

Some like Pranesh Prakash of non-profit Centre for Internet and Society believe the IT Rules are at odds with the IT Act and give powers for censorship. He explains that the IT Act, 2000, provides for protection of intermediaries; web browsers, social networking sites and websites cannot be held responsible for what a third party publishes on their forums—“similar to the way in which we cannot sue a telephone agency or a post office for someone else making use of these platforms to harass or defame another person”. But the IT rules of 2011 watered down this protection.

Supreme Court advocate and cyber law expert Pavan Duggal explains how. The Act states once a complaint is made against certain content, the web agency hosting it must notify the person who put up the content, verify the content and judge whether it needs to be removed. But the rules state that once the web agency is notified it must remove the content within 36 hours or it could be prosecuted for not acting on the complaint. The rules have gone beyond the Act’s scope, especially vis-a-vis privacy and data protection, leaving no scope for hearing out the accused, he says.

The disjunct between the Act and the rules is being contested in various spheres, including Parliament. But there is a bright side too. Duggal believes the cases have brought pertinent issues, like free speech and privacy concerns, into the public domain. Ramanjeet Chima, policy adviser for Google, says freedom of expression is paramount for Google but the recognition of local sentiments is also being given equal weightage.

Senior advocate Sidharth Luthra, who was representing Facebook in the Delhi High Court, wonders whether the existing Indian laws are in tune with the ever-changing online world. Unwilling to comment on the case, he says the law is limited in its scope, while technology is not. Refusing to comment on the cases, the Google adviser emphasised the need to use the existing provisions of big web agencies to address grievances regarding content.

The Internet “is not the wild wild west”; all content, users and viewers can be traced, Duggal cautions. Since the Internet can impact political issues government is increasingly looking for ways to control it. “There is no ideal solution but it is evident that some monitoring and regulation are required, and in all parts of the world all regimes are in the process of addressing this,” he says.

For more details visit https://cis-india.org/news/down-to-earth-latha-jishnu-dinsa-sachan-moyna-january-15-2013-clash-of-the-cyber-worlds