Centre for Internet and Society

Shreya Singhal and 66A

sunil — 2015-04-19T08:09:42Z

Most software code has dependencies. Simple and reproducible methods exist for mapping and understanding the impact of these dependencies. Legal code also has dependencies --across court orders and within a single court order. And since court orders are not produced using a structured mark-up language, experts are required to understand the precedential value of a court order.

The article was published in the Economic and Political Weekly Vol-L No.15. Vidushi Marda, programme officer at the Centre for Internet and Society, was responsible for all the research that went into this article. PDF version here.

As a non–lawyer and engineer, I cannot authoritatively comment on the Supreme Court’s order in Shreya Singhal vs Union of India (2015) on sections of the Information Technology Act of 2000, so I have tried to summarise a variety of views of experts in this article. The Shreya Singhal order is said to be unprecedented at least for the last four decades and also precedent setting as its lucidity, some believe, will cause a ripple effect in opposition to a restrictive understanding of freedom of speech and expression, and an expansiveness around reasonable restrictions. Let us examine each of the three sections that the bench dealt with.

The Section in Question

Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the language used in this section was a pastiche of outdated foreign laws such as the UK Communications Act of 2003, Malicious Communications Act of 1988 and the US Telecommunications Act, 1996.¹ Since the amendment, this section has been misused to make public examples out of innocent, yet uncomfortable speech, in order to socially engineer all Indian netizens into self-censorship.²

Summary: The Court struck down Section 66A of the IT Act in its entirety holding that it was not saved by Article 19(2) of the Constitution on account of the expressions used in the section, such as "annoying," "grossly offensive," "menacing,", "causing annoyance." The Court justified this by going through the reasonable restrictions that it considered relevant to the arguments and testing them against S66A. Apart from not falling within any of the categories for which speech may be restricted, S66A was struck down on the grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts of the section could be saved, and then concluded that no part of S66A was severable and declared the entire section unconstitutional. When it comes to regulating speech in the interest of public order, the Court distinguished between discussion, advocacy and incitement. It considered the first two to fall under the freedom of speech and expression granted under Article 19(1)(a), and held that it was only incitement that attracted Article 19(2).

Between Speech and Harm

Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will have value for precipitating the ripple effect. According to him, there were two incompatible strands of jurisprudence which have been harmonised by collapsing tendency into imminence.³ The first strand, exemplified by Ramjilal Modi vs State of UP⁴ and Kedar Nath Singh vs State of Bihar,⁵ imported an older and weaker American standard, that is, the tendency test, between the speech and public order consequences. The second strand exemplified byRam Manohar Lohia vs State of UP,⁶ S Rangarajan vs P Jagjivan Ram,⁷ andArup Bhuyan vs Union of India,⁸ all require greater proximity between the speech and the disorder anticipated. In Shreya Singhal, the Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb speech that has a tendency to cause disorder. Other experts are of the opinion that Justice Nariman was doing no such thing, and was only sequentially applying all the tests for free speech that have been developed within both these strands of precedent. In legal activist Lawrence Liang's analysis, "Ramjilal Modi was decided by a seven judge bench and Kedarnath by a constitutional bench. As is often the case in India, when subsequent benches of a lower strength want to distinguish themselves from older precedent but are unable to overrule them, they overcome this constraint through a doctrinal development by stealth. This is achieved by creative interpretations that chip away at archaic doctrinal standards without explicitly discarding them."⁹

Compatibility with US Jurisprudence

United States (US) jurisprudence has been imported by the Indian Supreme Court in an inconsistent manner. Some judgments hold that the American first amendment harbours no exception and hence is incompatible with Indian jurisprudence, while other judgments have used American precedent when convenient. Indian courts have on occasion imported an additional restriction beyond the eight available in 19(2)-the ground of public interest, best exemplified by the cases of K A Abbas¹⁰ and Ranjit Udeshi.¹¹ The bench in its judgment-which has been characterised by Pranesh Prakash as a masterclass in free speech jurisprudence¹²-clarifies that while the American first amendment jurisprudence is applicable in India, the only area where a difference is made is in the "sub serving of general public interest" made under the US law. This eloquent judgment will hopefully instruct judges in the future on how they should import precedent from American free speech jurisprudence.

Article 14 Challenge

The Article 14 challenge brought forward by the petitioners contended that Section 66A violated their fundamental right to equality because it differentiated between offline and online speech in terms of the length of maximum sentence, and was hence unconstitutional. The Court held that an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered people a medium through which they can express views at negligible or no cost. Second, the Court likened the rate of dissemination of information on the internet to the speed of lightning and could potentially reach millions of people all over the world. Before Shreya Singhal, the Supreme Court had already accepted medium-specific regulation. For example in K A Abbas, the Court made a distinction between films and other media, stating that the impact of films on an average illiterate Indian viewer was more profound than other forms of communication. The pessimistic reading of Shreya Singhal is that Parliament can enact medium-specific law as long as there is an intelligible differentia which could even be a technical difference-speed of transmission. However, the optimistic interpretation is that medium-specific law can only be enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the executive adopts the pessimistic reading, then draconian sections like 66A will find their way back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and cyberbullying.

Section 79

Section 79 was partially read down. This section, again introduced during the 2008 amendment, was supposed to give legal immunity to intermediaries for third party content by giving a quick redressal for those affected by providing a mechanism for takedown notices in the Intermediaries Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked invisible censorship¹³ in India and has had a demonstrated chilling effect on speech¹⁴ because of the following reasons:

One, there are additional unconstitutional restrictions on speech and expression. Rule 3(2) required a standard "rules and regulation, terms and condition or user agreement" that would have to be incorporated by all intermediaries. Under these rules, users are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that falls into different content categories, a majority of which are restrictions on speech which are completely out of the scope of Article 19(2). For example, there is an overly broad category which contains information that harms minors in any way. Information that "belongs to another person and to which the user does not have any right to" could be personal information or could be intellectual property. A much better intermediary liability provision was introduced into the Copyright Act with the 2013 amendment. Under the Copyright Act, content could be reinstated if the takedown notice was not followed up with a court order within 21 days.¹⁵ A counter-proposal drafted by the Centre for Internet and Society for "Intermediary Due Diligence and Information Removal," has a further requirement for reinstatement that is not seen in the Copyright Act.¹⁶

Two, a state-mandated private censorship regime is created. You could ban speech online without approaching the court or the government. Risk-aversive private intermediaries who do not have the legal resources to subjectively determine the legitimacy of a legal claim err on the side of caution and takedown content.

Three, the principles of natural justice are not observed by the rules of the new censorship regime. The creator of information is not required to be notified nor given a chance to be heard by the intermediary. There is no requirement for the intermediary to give a reasoned decision.

Four, different classes of intermediaries are all treated alike. Since the internet is not an uniform assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the different classes of intermediaries perform different functions and therefore contribute differently to the causal chain of harm to the affected person. If upstream intermediaries like registrars for domain names are treated exactly like a web-hosting service or social media service then there will be over-blocking of content.

Five, there are no safeguards to prevent abuse of takedown notices. Frivolous complaints could be used to suppress legitimate expressions without any fear of repercussions and given that it is not possible to expedite reinstatement of content, the harm to the creator of information may be irreversible if the information is perishable. Transparency requirements with sufficient amounts of detail are also necessary given that a human right was being circumscribed. There is no procedure to have the removed information reinstated by filing a counter notice or by appealing to a higher authority.

The judgment has solved half the problem by only making intermediaries lose immunity if they ignore government orders or court orders. Private takedown notices sent directly to the intermediary without accompanying government orders or courts order no longer have basis in law. The bench made note of the Additional Solicitor General's argument that user agreement requirements as in Rule 3(2) were common practice across the globe and then went ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of reading this would be to say that the requirement for standardised "rules and regulation, terms and condition or user agreement" remains. The other more consistent way of reading this part of the order in conjunction with the striking down of 66A would be to say those parts of the user agreement that are in violation of Article 19(2) have also been read down.

This would have also been an excellent opportunity to raise the transparency requirements both for the State and for intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in consuming that speech, and (iii) the general public. It is completely unclear whether transparency in the case of India has reduced the state appetite for censorship. Transparency reports from Facebook, Google and Twitter claim that takedown notices from the Indian government are on the rise.¹⁷ However, on the other hand, the Department of Electronics and Information Technology (DEITY) claims that government statistics for takedowns do not match the numbers in these transparency reports.¹⁸ The best way to address this uncertainty would be to require each takedown notice and court order to be made available by the State, intermediary and also third-party monitors of free speech like the Chilling Effects Project.

Section 69A

The Court upheld S69A which deals with website blocking, and found that it was a narrowly-drawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality, unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process in India. Blocking under S69A has been growing steadily over the years. In its latest response to an RTI (right to information)¹⁹ query from the Software Freedom Law Centre, DEITY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014. On 30 December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria propaganda, among which were "pastebin" websites, code repository (Github) and generic video hosting sites (Vimeo and Daily Motion).²⁰ Analysis of leaked block lists and lists received as responses to RTI requests have revealed that the block orders are full of errors (some items do not exist, some items are not technically valid web addresses), in some cases counter speech which hopes to reverse the harm of illegal speech has also been included, web pages from mainstream media houses have also been blocked and some URLs are base URLs which would result in thousands of pages getting blocked when only a few pages might contain allegedly illegal content.²¹

Pre-decisional Hearing

The central problem with the law as it stands today is that it allows for the originator of information to be isolated from the process of censorship. The Website Blocking Rules provide that all "reasonable efforts" must be made to identify the originator or the intermediary who hosted the content. However, Gautam Bhatia offers an optimistic reading of the judgment, he claims that the Court has read into this "or" and made it an "and"-thus requiring that the originator must also be notified of blocks when he or she can be identified.²²

Transparency

Usually, the reasons for blocking a website are unknown both to the originator of material as well as those trying to access the blocked URL. The general public also get no information about the nature and scale of censorship unlike offline censorship where the court orders banning books and movies are usually part of public discourse. In spite of the Court choosing to leave Section 69A intact, it stressed the importance of a written order for blocking, so that a writ may be filed before a high court under Article 226 of the Constitution. While citing this as an existing safeguard, the Court seems to have been under the impression that either the intermediary or the originator is normally informed, but according to Apar Gupta, a lawyer for the People's Union for Civil Liberties, "While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing."²³ Even worse, block orders have been unevenly implemented by ISPs with variations across telecom circles, connectivity technologies, making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.

Rule 16 under S69A requires confidentiality with respect to blocking requests and complaints, and actions taken in that regard. The Court notes that this was argued to be unconstitutional, but does not state their opinion on this question. Gautam Bhatia holds the opinion that this, by implication, requires that requests cannot be confidential. Chinmayi Arun, from the Centre for Communication Governance at National Law University Delhi, one of the academics supporting the petitioners, holds the opinion that it is optimism carried too far to claim that the Court noted the challenge to Rule 16 but just forgot about it in a lack of attention to detail that is belied by the rest of the judgment.

Free speech researchers and advocates have thus far used the RTI Act to understand the censorship under S69A. The Centre for Internet and Society has filed a number of RTI queries about websites blocked under S69A and has never been denied information on grounds of Rule 16.²⁴ However, there has been an uneven treatment of RTI queries by DEITY in this respect, with the Software Freedom Law Centre²⁵ being denied blocking orders on the basis of Rule 16. The Court could have protected free speech and expression by reading down Rule 16 except for a really narrow set of exceptions wherein only aggregate information would be made available to affected parties and members of the public.

Conclusions

In Shreya Singhal, the Court gave us great news: S66A has been struck down; good news: S79(3) and its rules have been read down; and bad news: S69A has been upheld. When it comes to each section, the impact of this judgment can either be read optimistically or pessimistically, and therefore we must wait for constitutional experts to weigh in on the ripple effect that this order will produce in other areas of free speech jurisprudence in India. But even as free speech activists celebrate Shreya Singhal, some are bemoaning the judgment as throwing the baby away with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain vigilant.

Notes

1 G S Mudur (2012): "66A 'Cut and Paste Job,'" The Telegraph, 3 December, visited on 3 April, 2015, http://www.telegraphindia.com/1121 203/jsp/frontpage/story_16268138.jsp

2 Sunil Abraham (2012): "The Five Monkeys and Ice Cold Water," Centre for Internet and Society, 26 September, visited on 3 April 2015, http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-201...

3 Gautam Bhatia (2015): "The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again," Indian Constitutional Law and Philosophy, 26 March, visited on 4 April 2015, https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect...

4 Ramjilal Modi vs State of UP, 1957, SCR 860.

5 Kedar Nath Singh vs State of Bihar, 1962, AIR 955.

6 Ram Manohar Lohia vs State of UP, AIR, 1968 All 100.

7 S Rangarajan vs P Jagjivan Ram, 1989, SCC(2), 574.

8 Arup Bhuyan vs Union of India, (2011), 3 SCC 377.

9 Lawrence Liang, Alternative Law Forum, personal communication to author, 6 April 2015.

10 K A Abbas vs Union of India, 1971 SCR (2), 446.

11 Ranjit Udeshi vs State of Maharashtra,1965 SCR (1) 65.

12 Pranesh Prakash (2015): "Three Reasons Why 66A Verdict Is Momentous"/ Times of India/(29 March). Visited on 6 April 2015, http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Th...

13 Pranesh Prakash (2011): "Invisble Censorship: How the Government Censors Without Being Seen," The Centre for Internet and Society, 14 December, visited on 6 April 2015, http://cis-india.org/internet-governance/blog/invisible-censorship

14 Rishabh Dara (2012): "Intermediary Liability in India: Chilling Effects on Free Expression on the Internet," The Centre for Internet and Society, 27 April, visited on 6 April 2015, http://cis-india.org/internet-governance/chilling-effects-on-free-expres... .

15 Rule 75, Copyright Rules, 2013.

16 The Draft Counter Proposal is available at http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-i...

17 According to Facebook's transparency report, there were 4,599 requests in the first half of 2014, followed by 5,473 requests in the latter half. Available at https://govtrequests.facebook. com/country/India/2014-H2/ also see Google's transparency report available at http: //www.google. com/transparencyreport/removals/government/IN/?hl=en and Twitter's report, available at https:// transparency.twitter.com/country/in

18 Surabhi Agarwal (2015): "Transparency Reports of Internet Companies are Skewed: Gulashan Rai," Business Standard, 31 March, viewed on 5 April 2015, http://www.business-standard.com/article/current-affairs/transparency-re... .

19 http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reve...

20 "32 Websites Go Blank," The Hindu, 1 January 2015, viewed on 6 April 2015, http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/a...

21 Pranesh Prakash (2012): "Analysing Latest List of Blocked Sites (Communalism and Rioting Edition)," 22 August, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/analysing-blocked-sites-ri... . Also, see Part II of the same series at http://cis-india.org/internet-governance/analyzing-the-latest-list-of-bl... and analysis of blocking in February 2013, at http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-b...

22 Gautam Bhatia (2015): "The Supreme Court's IT Act Judgment, and Secret Blocking," Indian Constitutional Law and Philosophy, 25 March, viewed on 6 April 2015, https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act...

23 Apar Gupta (2015): "But What about Section 69A?," Indian Express, 27 March, viewed on 5 April 2015, http://indianexpress. com/article/opinion/ columns/but-what-about-section-69a/

24 Pranesh Prakash (2011): DIT's Response to RTI on Website Blocking, The Centre for Internet and Society, 7 April, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/rti-response-dit-blocking ). Also see http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-... and http://cis-india.org/internet-governance/resources/reply-to-rti-applicat...

25 http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-...

For more details visit https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a

Should the censors tighten Savita Bhabhi’s hook?*

praskrishna — 2012-05-02T06:31:11Z

"Should the censors tighten Savita Bhabhi's hook, asks a blog entry published in Churumuri on May 1, 2012.

GAGAN KRISHNADAS writes from Bangalore: With the Information Technology (Intermediaries Guidelines) Rules, 2011 in place, internet censorship has gone high and degree of criminality has fallen down. Be it Kapil Sibal or Mamata Banerjee, the people at the helm of power are trying to gain a control over internet.

The effect of existing law: To put it in simple terms, if anybody finds a particular post on this blog illegal, he/she may bring it to the notice of the owners of this blog. If the blog owner does not take any action within 36 hours, the liability on the content immediately shifts to the owner of the blog.

If at all there are about 200 ‘take down’ requests in a day, the blog owner surely cannot ascertain the legality of the content within 36 hours. Surely, the owner will find it convenient to remove the content instead of contesting the claim.

Resistance: The resistance for the said rules was not strong until recently when Kapil Sibal became vocal on pre-censorship on internet.

On April 21, there was a press conference in New Delhi by Knowledge Commons, Software Freedom Law Center, Delhi Science Forum, Save Your Voice Campaigm, Internet Democracy Project, Center for Internet and Society, Free Software Movement India, IT for Change, and Alternative Law Forum.

Two events were organised in Bangalore on the same day to voice against Internet Censorship. Let me juxtapose how media professionals and Free Software Movement people respond on the issue.

Senior Journalist Paranjoy Guha Thakurtha said: “This is a matter of considerable concern. It is known to a relatively small section because; ordinary people do not understand the intricacies. It is a matter of freedom of speech and hence it concerns not just the netizen, but every citizen. At the legal and larger philosophy, Article 19 lays down reasonable restrictions like public order, national security and so on. But who decides these reasonable restrictions on the internet?”

Mahesh Murthy, went a step ahead to declare: “I feel there should be no censorship of any kind of information, be it Savitha Bhabi or pornography or a hate speech. All such information already exists in the society. By censoring them, you are not achieving any results. The Abhishek Manu Singhvi’s alleged sex video was removed from Youtube just within 5 hours, but if someone hosts it on Piratebay, it’s almost impossible to censor.”

Na Vijayashankar said that the internet cannot be left unregulated and at the same time the regulation should not take away the basic rights of the citizens. He recalled that right from the initial days of the internet, he advocated for an internet law made by the netizens themselves, because the lawmakers hardly understand the technology.

Soon after the meeting, I moved to the town hall to participate in a protest convened by the representatives of Free Software Movement of Karnataka (FSMK) along with Software Freedom Law Centre (SFLC). The crowd predominantly comprised of Engineers and Engineering students.

I was surprised that the Engineers also had acquired a good understanding of the rules which are in detriment of their interest. While the group of media persons was more worried about censorship and freedom of speech, the ambit of concerns was larger with the Freedom Software advocates.

Senthil from the Free Software Movement of Karnataka was skeptical about similar laws being passed in other jurisdictions. Recently, USA was on its way for passing the controversial SOPA/PIPA legislations which was halted due to public pressure.

People have used internet to question the established governments, be it wikileaks, networking during the Egypt revolution or Lokpal movement. Senthil feels that the intermediary guidelines would be a hindrance in taking technology to the people.

Member of Parliament, P. Rajeeve has introduced a motion in the Rajya Sabha calling for the Internet censorship law passed last year (“Intermediary Guidelines Rules”) to be annulled. This motion will be taken up once the Budget Session 2012 reconvenes, and will need the support of the majority of both Houses to be passed.

Until the Parliament meets again, we the netizens and citizens need to ask our MPs to support the motion when it is introduced.

(Gagan Krishnadas is a post-graduate student at the National Law School of India University, Bangalore)

Read the original post.

For more details visit https://cis-india.org/news/should-censors-tighten-savita-bhabi

Several Indian Twitter users' accounts suspended due to tech glitch

praskrishna — 2014-12-05T00:17:15Z

Twitter denies conspiracy theory, blames technical glitch for account suspensions

The blog entry by Silky Malhotra was published on digit on November 3, 2014. Pranesh Prakash gave his inputs.

The accounts of several Twitter users were suspended for unknown reasons, setting off conspiracy theories that only the accounts of right-wing supporters had been targeted. However, Twitter has denied these rumors and instead blamed technical issues for the glitch.

Although Twitter blamed a technical glitch for the account suspension, several Twitter users responded by stating that there was a pattern to the suspension because 'suspended users' were asked to change their behavior to be able to continue using the micro-blogging site.

A message sent out to a Twitter user whose account was suspended read, "Twitter has automated systems that find and remove multiple automated spam accounts in bulk".

Twitter officials have denied blocking of accounts deliberately and added that the incident was an accident as part of spam cleaning process.

Twitter also apologized for the inconvenience but added, "Unfortunately, your account got caught in one of these spam groups by mistake. It is possible your account posted an update that appeared to be spam, so please be careful what you tweet... You will need to change your behavior to continue using Twitter. Repeat violations of the Twitter rules may result in the permanent suspension of your account."

However this statement has triggered outrage among users who called it Internet policing. Several users responded with humor, and one posted, "In the Twitter canteen you never get chicken wings in pairs because the right wing is blocked."

Pranesh Prakash, policy director, Centre for Internet and Society, stated that though there have been instances of 'privatisation of censorship' in the past, this incident may not have been that. "It doesn't look deliberate especially because even accounts such as eBay India were suspended."

For more details visit https://cis-india.org/internet-governance/news/digit-november-3-2014-silky-malhotra-several-indian-twitter-users-accounts-suspended-due-to-tech-glitch

Sense and Censorship

sunil — 2012-01-31T06:15:38Z

The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. This article by Sunil Abraham was published in the Indian Express on 20 January 2012.

In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

The writer is executive director of the Bangalore-based Centre for Internet and Society

Read the original published in the Indian Express

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

SECTION 66A: DELETE

praskrishna — 2015-03-30T01:32:18Z

The Supreme Court has killed a law that allowed the Government to control social media. What’s the Net worth of freedom hereafter?

The article by Kumar Anshuman was published in the Open Magazine on March 27, 2015. Sunil Abraham gave his inputs.

It was in 2009 that Section 66A was added as an amendment to India’s IT Act by the then UPA Government, but it took three years before it came to the notice of Shreya Singhal, a student of Law at Delhi University. By then, the Section had already earned itself a fair amount of notoriety for how much leeway it provided for the police and politicians to abuse the law.

The first time was in September 2011 when Musafir Baitha, a famous poet and government employee in Bihar, was suspended from his job because he criticised the state government on Facebook. An uproar followed, as people realised that freedom of speech in social media could now be construed as a criminal activity. Ambikesh Mahapatra, a professor at Jadavpur Unversity, became a target of the Mamata Banerjee government in April 2012 when he made cartoons of her. In September 2012, cartoonist Aseem Trivedi was arrested in Mumbai for a caricature of corruption under the UPA. But the case that caught Shreya Singhal’s attention was perhaps the most shocking of all. In November 2012, after Shiv Sena founder Bal Thackeray’s death, Shaheen Dhada, a Thane resident, posted a comment on her Facebook page criticising the near-total shutdown of Mumbai for the funeral. She wrote that Mumbai was shut not in respect, but fear, and that a leader should earn respect instead of forcing it out of people. Her friend Renu Srinivasan ‘liked’ this post. Hours later, both were arrested and booked under Section 66A. "I was shocked when I heard of this news," Singhal says, "I went and checked the post and there was nothing which could have provoked such an outrage." Her mother, Manali Singhal, a lawyer at the Supreme Court, advised her to file a Public Interest Litigation (PIL) against the Section.

The case continued for two years in the Supreme Court, while arbitrary arrests continued to be made. The UPA Government first defended 66A in court, taking the position that the current NDA Government took as well. It argued that the law would be used only in extreme cases where a person overreaches his or her online freedom to curtail the rights of others. Unconvinced, on 24 March, the apex court struck 66A down, saying that it could not allow such a law to exist on mere government assurances. The Court found several terms in the Act, such as ‘grossly offensive’ and ‘insult’, that were not clearly defined and could be interpreted arbitrarily to suit one’s convenience. ‘It is clear that Section 66A is unconstitutionally vague and it takes away a guaranteed freedom,’ observed the bench of Justice J Chelameswar and Justice Rohinton Nariman.

"We can celebrate the scrapping of Section 66A, but with caution," says Sunil Abraham, executive director at The Centre for Internet & Society in Bangalore. "[As for] those who are booked under Section 66A, the police also imposes different sections of the Indian Penal Code to justify their arrest." There are examples to support his statement, a recent one being the arrest of a Bareilly-based student, Gulrez Khan, who had posted a picture on Facebook of UP minister Azam Khan along with some derogatory comments about Hindus that he allegedly made. Gulrez Khan denied the comments, saying that his image was being maligned. The boy was arrested and booked. "People are making it out as a moment of triumph against the UP government. The fact is this boy had been arrested under Section 153A and 504 of the IPC along with Section 66A of the IT Act. We have said this even in the Supreme Court," says Gaurav Bhatia, a spokesperson of the Samajwadi Party and also a senior advocate.

But the import of scrapping Section 66A is that there is now one less law that can be misused, one that specifically stifles online freedom. "It’s an excellent judgment," says Lawrence Liang of Alternative Law Forum, Bangalore. “It couldn’t have been better than this. The fact that the apex court termed it ‘vague and overreaching’ signifies how important it was to scrap this."

Once the 122-page judgment arrived, there was a rush to welcome it—even by those who were responsible for Section 66A to begin with. Former Congress minister Kapil Sibal was one of them. "The Supreme Court has scrapped Section 66A to allow freedom of speech in cyberspace and we should welcome it,” he said. His former cabinet colleague P Chidambaram went to the extent of saying that it was poorly drafted. But the Congress as a party also warned of the possible misuse of this freedom, saying that it had woven various safeguards into Section 66A, including the condition that an arrest could only be made after an officer of the level of Inspector General or Superintendent of Police had okayed it. "The Supreme Court, it appears, has not found the safeguards sufficient," says Congress spokesperson and senior lawyer Abhishek Manu Singhvi. “It is now up to the current Government [to decide] how to strike the right balance between freedom of speech on one hand and [prevention of] abuse and hounding of groups or individuals through obscene or incorrigibly false information [on the other] to deter unbridled defamation in cyberspace." The Left parties, which were supporting the UPA Government back when Section 66A was imposed, have expressed happiness over the verdict. “The draconian provision of 66A was used to arrest people who express dissenting views against the Government and the State and to suppress criticism of those in power,” says senior CPM leader Sitaram Yechury.

The NDA Government has also welcomed the verdict. "The Government absolutely respects the right to freedom of speech and expression on social media and has no intention of curbing it," says Ravi Shankar Prasad, Union Minister for Information Technology.

But the scrapping of the Section leaves the Government with very little power to act against real abuse of online freedoms. Like Congress leader Milind Deora says, "An unregulated internet can be more dangerous than a regulated one." This argument is easily countered: there are enough provisions in existing laws that prevent a person from misusing freedom of speech. Says Apar Gupta, a senior lawyer, “Section 66A was a bailable section and arrests were made only with further imposition of IPC acts." While Article 19 (1) of the Constitution guarantees freedom of expression, at the same time Article 19 (2) provides a list of reasonable restrictions on freedom of speech. This is enough, experts believe, to curtail misuse of the internet. The court judgment also grants the Centre the freedom to enact any other law specific to the internet, provided it does not violate the provisions of freedom of speech as laid down by the Constitution of India.

This does, however, put a question mark on the necessity of Section 66A to begin with, if existing laws were quite enough to address freedom-of- speech abuses. "Section 66A of the IT Act, 2000, was enacted to prevent online abuse and hounding of groups and individuals, check the propagation of obscene or incorrigibly false information with the intent to create social divides and unrest, and deter unbridled defamation in cyberspace. This Act came into effect in 2008 when social media was yet evolving," says Singhvi. But experts disagree with this argument. "It is a perfect case of confusion and mixing up of facts,” says Sunil Abraham. “The purpose of this law was to curb unsolicited messages, spamming and harassing someone through fake identities in the internet space." He says that the Government claimed to borrow law provisions from the US, Canada and other countries, but the legislation was so poorly drafted that it didn’t have any teeth for action against spammers. "Even words like ‘unsolicited commercial mails’ were not included in the Act and that is the reason not a single person has been arrested in India for spam mails even after this Act came into being."

A section of the Indian legal fraternity believes that the country’s apex court should also have made a statement about the problem of spamming and harassment on the internet.

But there is bad news too. The same judgment that struck down Section 66A has upheld Section 69A of the IT Act as constitutionally valid. This allows the Government to block any website which it deems a direct threat to public order and security that might spread propaganda.

"In this case, the Government [can decide] to block a website without notifying [it with any] reason for it. If I am an internet user who wants to visit this site, I am also not notified why that website has been taken down. It is just the whims and fancies of a few officials in the Government, what to block and what not," says Apar Gupta. Using the section, the Union Government had blocked 32 websites just this January, saying that anti- national groups were using these websites for ‘jihadi propaganda’.

All major democracies have some form of legal net regulation. "Laws in foreign jurisdictions vary widely as per the guarantees of civil rights afforded to citizens in any legal system," adds Gupta. "The legislations of the United States, which borrowed certain phrases in Section 66A, have already been declared unconstitutional. In the United Kingdom, similar phrases have come under fierce critique and have been limited by guidelines issued by the office of prosecutions. In these jurisdictions, as in India, existing criminal law applies equally to online speech as much as to offline."

Also, while social media enthusiasts rejoice over their first big victory against restrictions on online freedom of speech, the internet is still a matter of great concern for any government, thanks to its reach and influence. The Union Government walks a thin line while dealing with instances of abuse on social media, and many believe India needs an IT Act drafted in proper consultation with all stakeholders.

For now, a young law student has found a place in the legal history of India. "It will always be remembered as Shreya Singhal vs Union of India," says Singhal.

INFORMATION TECHNOLOGY ACT

‘66A. Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device:

Any information that is grossly offensive or has menacing character; or
Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
Any electronic mail or message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages...

shall be punishable with imprisonment for a term which may extend to three years and with fine’

SUPREME COURT ORDER

‘In conclusion, we may summarise what has been held by us: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2)’

For more details visit https://cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete

Section 66A not for curbing freedom of speech, govt says

praskrishna — 2015-02-05T13:59:12Z

Section designed to fight cybercrime and protect the right to life, central government tells Supreme Court.

The article by Akansha Seth and Apoorva was published in Livemint on February 3, 2015. Sunil Abraham gave his inputs.

The central government on Tuesday clarified to the Supreme Court that penal provisions of the Information Technology (IT) Act, 2000, were not intended to curb freedom of speech.

Instead, the controversial Section 66A of the IT Act, challenged in the apex court, is designed to fight cybercrime and has nothing to do with any citizen’s freedom of speech and expression, the government said, adding that these provisions seek to protect the right to life of Indian citizens.

The government’s clarification, made in a written submission to the Supreme Court, is significant because the argument made so far in the court by opponents of the controversial section is that they are misused to curb freedom of expression.

The penal provisions deal with online criminal offences like phishing, vishing (voice phishing), spoofing, spamming, and spreading viruses that have a serious potential to not only damage and destroy the computer system of an individual citizen but also bring the functioning of vital organizations and, in extreme cases, even the country to a standstill.

The stand of the government is interesting because it comes on a petition filed when police arrested a 21-year-old girl for questioning on Facebook Mumbai’s shutdown after Shiv Sena leader Bal Thackeray’s funeral in 2012. Another girl who “liked” the comment was also arrested. Last May, five students were detained by police for spreading an anti-Narendra Modi photo on WhatsApp.

“If 66A, as the government argues does not set any additional limits on freedom of speech and expression, then it is wholly unnecessary, serves no purpose and should be struck down by the honourable court. After all it has never been used to tackle the problem of spam which was the original intent,” said Sunil Abraham, executive director, Centre for Internet and Society, a Bengaluru-based think tank.

The central government has clarified that the phrases annoyance, inconvenience, danger, or obstruction as used in Section 66A have no correlation or connection with any citizen’s freedom of speech and expression. Consequently, if as a result of a citizen exercising his or her freedom of speech and expression, annoyance, inconvenience, danger or obstruction is caused while sending anything by way of a computer resource or a communication device, it will not be a penal offence under section 66A.

The government has also argued that if an individual chooses to misuse the provision for a purpose for which it is not intended or resorts to the expressions inconvenience or annoyance in a casual manner, it would be a case of abuse of the process of law. However, it would not be a ground for declaring the provisions unconstitutional if they are otherwise found to be constitutional.

Additional solicitor general Tushar Mehta, appearing for the central government, argued that no one can file a criminal complaint on grounds that they received an information that caused annoyance, inconvenience, etc.—grounds mentioned under section 66A.

Mehta also suggested that the court could come up with guidelines on how to interpret the section, or such regulations could be framed under section 89 of the IT Act which empowers the controller to make regulations to carry out the purposes of the Act, in consistency with it, after consultation with the Cyber Regulations Advisory Committee and with the previous approval of the central government.

Mehta argued that authoritative discretion was required because a precise and concise definition of grossly offensive or menacing character—terms used in section 66A—was not possible. “Nobody can allege that they are annoyed by the exercise of someone’s freedom of speech,” he added.

Gaurav Mishra contributed to this story.

For more details visit https://cis-india.org/internet-governance/news/livemint-akansha-seth-apoorva-livemint-feb-3-2015-section-66a-not-for-curbing-freedom-of-speech-govt-says

Scared by a spoof? You’ve got to be kidding me!

praskrishna — 2012-06-05T05:24:09Z

Whether it is Mamata Banerjee's recent crackdown on a comic strip or the new legal guidelines that allow touchy readers to have objectionable content taken down, what you say online is under scrutiny. What, then, will happen to news satire websites?

The article by Dhamini Ratnam was published in the Times of India on June 3, 2012

"Meri site www.cartoonsagainstcorruption.com kabse band ho chuki hai (...) Humara sabse bada hathiyar humse chheena ja raha hai (...) Aaj chup rahe toh phir bolne ke liye zubaan bhi nahin bachegi." (My site www.cartoonsagainstcorruption.com has been shut down (...) Our biggest weapon is being taken away from us (...) If we remain silent, we won't be left with anything to articulate with").

That's the first thing you read on Kanpur-based blogger Aseem Trivedi's new site, www.cartoonsagainstcorruption.blogspot.in, on which he transferred all his satirical cartoons earlier this year, after he found that his website had been arbitrarily blocked based on a complaint lodged with the Mumbai Crime Branch last December.

In May, Trivedi went on a hunger strike. His point was simple. The police had no right to have his website taken down, under the Information Technology (Amendment) Act 2008, or even under the new Information Technology (intermediary guidelines) Rules, 2011. These rules came into effect last April, and give 36 hours to the intermediary (read Internet Service Provider) to take down content deemed 'objectionable'.

At the face of it, this may seem like a handing over of power to Internet users. But what does this hold out for news satire websites that routinely critique public figures, spoof politics and play an important role in raising public awareness through humour?

For one, in a surprising move, the editors are giving up being anonymous. Says Rahul Roushan, editor, Faking News, "I began this site under the pseudonym Pagal Patrakar in 2008. By the end of 2009, I didn't want to remain anonymous anymore."

Roushan, who is based in Gurgaon, felt readers weren't taking him seriously. "Unless there's a face to such sites, people will think you're spreading lies," says the 33-year-old former television news anchor. Yet, coming out wasn't a cakewalk. "A post I wrote about on the anti-people policy of Mr Thackeray received a comment that I am a Bihari, and therefore against Marathi manoos. Had he not known my name, the reader would never have written such a comment," says Roushan.

Yet, Roushan would rather have his readers - his blog gets 10 lakh page views a month - trust his judgement.

However, recent events, including Pashimbanga Chief Minister Mamata Banerjee's crackdown on a comic strip, and Union human resource development, communications and IT minister Kapil Sibal's suggestion to Internet giants to "regulate themselves" has left Roushan and other news satire website editors wary.The new IT guidelines, fears Roushan, will create an army of self-righteous people with "a lot of hurt sentiments".

"I'm scared of sentiments," he says, wryly.

T S Sudhir, editor of Tenali Rama Reports, a news spoof site that was started in September 2011, feels the trick to safeguard against such "sentiments" is to maintain a rigorous editorial policy. "No obscene, lewd or toilet humour," says the Hyderabadbased former journalist.

The recent fracas over Mamata's 'Maoist' concerns, for instance, elicited a light-hearted piece that said all dosa-eaters are Maoists, because 'mao' in Tamil means 'batter'. "India has a long-standing political tradition of satire, and readers are used to political cartoons with biting humour."

Mangalore-based political cartoonist Satish Acharya, however, has faced the brunt for his biting humour. In September 2011, a Mumbai Crime Branch officer asked him to take down a cartoon depicting Sharad Pawar in a red gown that Acharya had posted on his blog, after it was published in a Mumbaibased tabloid. "In political cartoons, what is the yardstick to measure what is objectionable," asks Acharya. "Can a policeman decide whether a political cartoon is objectionable and have it taken down?"

Programme manager at The Centre for Internet and Society, Bengaluru, Pranesh Prakash has a one word reply: No. Together with his teammates, Prakash is working on a set of guidelines that counters the Intermediary Rules and offers checks and balances without trampling on fundamental rights. For instance, says Prakash, after a complaint is made, the content owner - say the website editor, or cartoonist - should be allowed to reply. If the problem persists, the complainant can go to court.

If cartoons are an effective vehicle of critique online, so are videos. The UnReal Times, run by New Delhi-based IIM graduates C S Krishna and Karthik Laxman, shot to online fame last year after they released a video depicting the Prime Minister as Singham, the heroic character played by Ajay Devgn in a film.

"The best sort of satire," says Krishna, "is when you can't prove in the court of law that the piece is insulting." Krishna and Laxman, who do policy research work for BJP MP Uday Singh, insist that they are not card-holders for the party, and have taken pot-shots at the BJP, too. "Since political satire focuses on mocking the establishment, the UPA government is the subject of most our (satirical) pieces on politics," says Krishna. Tanay Sukumar, editor of News That Matters Not, feels that the content should be directed at a problematic policy, not person. Engineering students Sukumar and Sugandha, who founded the site in 2009, feel that a satirist needs to distinguish between what is necessary and what isn't. "Portraying a political figure using sexual innuendo might be funny for several readers, but would be "unnecessary" in most cases. Our job is to to critique governance." In the case of a crackdown, however, they are clear about what they'd do: they'll take down the 'offending' piece, and then write about having done so. "We will not offend them; we will wear them out," they say.

Want to start a news satire website? here's how:

Have a disclaimer page. Apologise in advance for "hurt sentiments", offer readers a chance to get in touch with you directly for redressal, explain why you're using satire as a tool to critique. If your ISP is asked to remove content, the current IT guidelines are such that they would need to obey. However, since the law doesn't require ISPs to keep track of content that has been removed, make noise about it. There'll be enough people online who will fight for your freedom of expression. Study satire - it's an effective tool - but learn to distinguish it from slander and falsehood. Keep the post grounded in a real event or phenomenon. Critique the agenda, not the person. Consult an IT lawyer if you are in doubt about a piece. It's always good to know your legal argument beforehand.

Pranesh Prakash is quoted in this article.

For more details visit https://cis-india.org/news/scared-by-a-spoof

SC has set a high threshold for tolerance: Lawrence Liang

praskrishna — 2015-03-28T16:18:18Z

Lawyer-activist Lawrence Liang on why SC upheld section 69A and the implications of striking down section 66A.

The article by Dhamini Ratnam was published in Livemint on March 28, 2015. Lawrence Liang gave his inputs.

Tuesday marked a landmark in the fight for free speech in our country, as the Supreme Court struck down the contentious section 66A of the Information Technology Act of 2000. The section, which was introduced through an amendment in 2009, penalized those who wrote messages online that could be deemed as being false or grossly offensive. However, the apex court turned down a plea to strike down sections 69A (procedure for blocking websites) and 79 (exemption from liability of intermediaries) of the same law. Lawrence Liang, a lawyer who co-founded the Alternative Law Forum in Bengaluru, a fellow at the Centre for Internet and Society, and author of The Public is Watching: Sex, Laws and Videotape and A Guide to Open Content Licenses, spoke in an interview on the wide-ranging implications of the judgement. Edited excerpts:

What was the impetus to fight section 66A?

Over the past few years, there have been numerous cases in which section 66A has been used in bad faith against individuals online. One of the cases that became well-known by virtue of just how ridiculous it was involved the arrest of Shaheen Dhada and her friend Renu Srinivasan (which led petitioner Shreya Singhal to file a public interest litigation in the Supreme Court that eventually led to this judgement), but there have been more, so it was inevitable that a law as draconian as section 66A would be challenged for its constitutional validity.

The judgement begins by noting a distinction between three forms of speech—discussion, advocacy and incitement—and says discussion and advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution (all citizens shall have the right to freedom of speech and expression). Only when they reach the level of incitement can they be legitimately prohibited. While the judgement does not provide a new definition of incitement, it affirms what was laid down in the Rangarajan test (1989), in which the courts had established that for censorship to be justified, the “expression of thought should be intrinsically dangerous to the public interest”. There should be an immediate and direct relation between speech and effect.

The court said that section 66A is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. The courts have also historically held that Article 19(1)(a) is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. However, I would say that the court missed an opportunity to consider the blocking of websites under section 69A.

Why did the court uphold section 69A, and which other parts of the IT Act did it examine?

If section 66A was found to be arbitrary, then the procedure for blocking websites, as laid out in section 69A, is also beset with similar problems. The court, however, upheld this section and the rules under the IT Act on the grounds that there are internal safeguards and reasonable procedures. This section allows the government to block any site or information that violates Article 19(2) of the Constitution (which enables the legislature to impose certain restrictions on free speech).

The problem is that often there is no hearing or notice given to the owner of information, there is no transparency since blocks can happen on a confidential basis and these can have serious implications for the right to receive information.

The court read down section 79, which used to provide an intermediary exemption from liability with the exception that if it received “actual knowledge” of any illegal content, it was obliged to act within 36 hours. A study by the Centre for Internet and Society showed that even on sending frivolous takedown notices, intermediaries tended to comply to be on the safe side. The court’s decision has read down section 79 now to mean that “actual knowledge” means either an order of a court or the government. It moves it away from a subjective determination by intermediaries.

The court could have, like it did with section 79, retained section 66A while clarifying a procedure that would maintain a balance between the need sometimes to block and public interest, and transparency.

What does the judgement open up for the free speech debate?

The judgement speaks of chilling effects, because if one is not careful, one runs the risk of endangering political discourse through self-censorship. This is terrible for a democratic culture, which is premised on the ability to debate and dissent. Much of the use of section 66A has been politically motivated to silence criticism, and the judgement goes a long way towards promoting a culture of critique.

As the first major Supreme Court case on free speech in the 21st century, it sets the tone on how we think of free speech in a context where every individual with a smartphone is potentially a writer, a publisher and a distributor. By setting a high threshold for what is tolerated in online speech, it ensures that the online space is not doomed to be infantilized.

What position must the law take to protect rights and minority identities?

I think it is important to distinguish between different effects of speech. The court has merely reaffirmed a position that has been held in India for a long time (such as through the Ram Manohar Lohia judgement of 1960, which interpreted what “restriction made in the interests of public order” in Article 19(2) means). In other words, if someone is inciting violence, especially if they have the power to effect such violence (such as a politician), then their speech can be regulated, but the court also held that the idea of threat to public order is often imaginary.

For instance, in what way would Shaheen Dhada’s post on Facebook have incited violence? (In November 2012, Dhada, then a student and based in Palghar, Maharashtra, had written a post on Facebook commenting on the state of shutdown that followed politician Bal Thackeray’s death. Her comment was liked by her friend Srinivasan, and both of them were charged under section 66A.) So, the court is distinguishing between speech that is critical and speech that is dangerous. There are laws that deal with the latter, such as 153A and 295A of the IPC (Indian Penal Code).

It must be noted, however, that provisions also suffer from the same vice of vagueness. What we need is a more nuanced understanding of hate speech that addresses speech that incites violence or hatred against a community, but one in which the test is not of subjective hurt sentiment. The problem with hate speech laws is that they collapse questions of law and order with questions of subjective hurt, and we run the risk of becoming a republic of hurt sentiments where anyone can claim that their sentiments are hurt, especially their religious sentiments.

What happens to existing cases that are being tried under section 66A, such as the one against the organizers and participants of the All India Bakchod Roast?

Court judgements do not necessarily have retrospective effect, so cases that have been filed will continue. We must also remember that the cases filed under section 66A were also accompanied by other provisions. Of course, a judgement as significant as this, which completely delegitimizes section 66A, will have a profound impact on the ongoing cases insofar as they relate to the offence under the section, but the other charges remain.

For more details visit https://cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance

Save Your Voice — A movement against Web censorship

praskrishna — 2012-03-13T11:44:27Z

‘Save Your Voice (SYV)’ is a movement against Web censorship and its main demand is the repealing of the Information Technology Act, said SYV founders, Aseem Trividi, a cartoonist, and Alok Dixit, a journalist, on Monday.

DNA Correspondent covered a press conference held on March 12, 2012 in Bangalore. Sunil Abraham was quoted in the story.

Trivedi’s website — www.cartoonistagainstcorruption.com — was banned during Anna Hazare’s movement. Trivedi said: “Mumbai police banned the website without any prior notice and cases of ‘treason’ were also filed. The website was banned without a judicial order and I haven’t received an explanation about the crime committed.”

Sunil Abraham, executive director, Centre for Internet and Society, said the private sector does not protect the freedom of expression.

Read the original published by Daily News & Analysis on March 13, 2012

For more details visit https://cis-india.org/news/save-your-voice-2014-a-movement-against-web-censorship

Ruling in India shields Web posts

praskrishna — 2015-03-27T00:38:34Z

The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.

This is the modified version of the article originally published by Washington Post and mirrored in Boston Globe. Sunil Abraham is quoted. Picture by Manjunath Kiran, AFP.

Supreme Court Judge Rohinton Fali Nariman wrote in the ruling that the section of the law, known as 66A, was unconstitutional, saying the vaguely worded legislation had wrongly swept up innocent people and had a ‘‘chilling’’ effect on free speech in the world’s most populous democracy.

‘‘Section 66A is cast so widely that virtually any opinion on any subject would be covered by it,’’ the judge wrote. ‘‘If it is to withstand the test of constitutionality, the chilling effect on free speech would be total.’’

India had first passed its Information Technology Act in 2000, but stricter provisions were added in 2008 and ratified in 2009 that gave police sweeping authority to arrest citizens for their personal posts on social media, a crime punishable for up to three years in jail and a fine.

Sunil Abraham, the executive director of the Center for Internet and Society in Bangalore, said that the section was originally intended to protect citizens from electronic spam, but it did not turn out that way.

‘‘Politicians who didn’t like what people were saying about them used it to crack down on online criticism,’’ he said.

In the end, there were more than 20 high-profile arrests, including a professor who posted an unflattering cartoon of a state political leader and an artist who drew a set of cartoons lampooning the government and Parliament.

The most well-known was the case of two young women arrested in the western town of Palghar after one of them posted a comment on Facebook that argued that the city of Mumbai should not have been shut down for the funeral of a famous conservative leader. A friend, who merely ‘‘liked’’ the post, was also arrested. After much outcry, the two were released on bail and the charges eventually dropped.

The case of the ‘‘Palghar Girls’’ inspired a young law student, Shreya Singhal, to take on the government’s law. Singhal became the chief petitioner for the case, along with other free speech advocates and an Indian information technology firm.

‘‘It’s a big victory,’’ Singhal said after the ruling. ‘‘The Internet is so far-reaching and so many people use it now, it’s very important for us to protect this right.’’

Singhal and other petitioners had also argued that another section of India’s technology act that allowed the government to block websites containing questionable material were also unconstitutional, but the court disagreed, saying there was a sufficient review process in place to avoid misuse.

Free speech in India is enshrined in the country’s constitution but has its limits. Books and movies are often banned or censored out of consideration for religious and minority groups.

In 2014, a conservative Hindu group persuaded Penguin India to withdraw a book on Hinduism by Wendy Doniger, a professor of religion at the University of Chicago, from the Indian market. And more recently, the government of India blocked a planned television debut of a documentary film on a 2012 gang rape case, ‘‘India’s Daughter.’’

Along with India, other nations have sharply increased monitoring and crackdowns on perceived insulting Web posts in recent years.

Across the Gulf Arab states, dozens of activists have been arrested for social media posts considered insulting to the country’s rulers or tarnishing the national image.

For more details visit https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts

Respite from Internet Censorship?

praskrishna — 2012-08-10T15:51:30Z

Of late, a lot of the blocked websites have started reappearing. So should we sit back and relax? We take a look at how it's not really the start of something beautiful...writes Nimish Sawant. Sunil Abraham is quoted.

Published in thinkdigit on June 2, 2012

In April, Chennai based Copyrights Labs got a John Doe order (An order against no one in particular) from Madras High Court which ordered ISPs to block several video hosting websites such as Vimeo and Dailymotion along with a string of torrent sites such as Isohunt and Pirate Bay. The motive was to prevent illegal sharing of the movies 3 and Dhammu. The ISPs went on this whole website blocking spree welcoming users with messages such as, “This website has been blocked as per instructions from the Department of Telecom (DoT)”.

In June, the Madras High Court issued an order which made it mandatory for complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site.

This order is definitely a relief for Indian internet users, who were facing a variety of blocked websites for a couple of months. In the May-June period there was a lot of media coverage around Internet censorship and then there was the much-hyped Anonymous protest (http://goo.gl/YCQod) that saw a not-so-great participation. Just like most media stories, it is slowly departing from the public conciousness. So does this mean our censorship woes are behind us?

Far from it.

The dark cloud of Intermediaries Guidelines
The Information Technology (Intermediaries Guidelines) Rules 2011 were added to the IT Act 2000. According to it, the intermediaries (website, domain registrar, blog owner and so on) guidelines allows the government to pull up any website that hosts “objectionable” content. It gives anyone the right to send “content removal notice” to an intermediary, asking it to be removed within 36 hours. Terms describing such content - grossly harmful, harassing, blasphemous, defamatory, obscene - are those that are open to interpretation. So, Facebook can be hauled up for derogatory content or pages on its site. Hell, even if you own a blog and someone else posts a derogatory comment, you can be pulled up.

This is a rather smart move by the government to force self-censorship down our throats. Just try imagining - Every 60 seconds: on YouTube there are 48 hours worth of videos uploaded; Wordpress users publish 347 blogs; Twitter users send over 100,000 tweets among others. (Source: http://goo.gl/U7qT8) How on earth is monitoring such a vast amount of data even possible?

Karnika Seth, Cyberlaw Expert	"Any content which is illegal can be blocked by ISP or on directions of a court.A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access. No specific section in IT Act entitles a person to sue in such cases . However freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court."

Karnika Seth, Cyberlaw Expert

"Any content which is illegal can be blocked by ISP or on directions of a court.A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access. No specific section in IT Act entitles a person to sue in such cases . However freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court."

Every site has internal checks and balances in the form of a 'Report Abuse' option, where users raise flags against content which they may find objectionable and the site takes a call. But with the intermediary rules, the content has to be removed within 36 hours. And here's the kicker – the content can be removed without informing the owner or giving him or her a chance to defend. A political cartoon website cartoonsagainstcorruption.com was a victim of such rules. In March this year, Rajya Sabha MP, P. Rajeeve, had moved a motion calling for the annulment of the intermediaries rules sometime in April. This motion, as would be expected, was defeated by a voice vote.

“Any content which is illegal can be blocked by the ISP or on directions of a court. A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access,” said cyberlaw expert Karnika Seth. When asked if there is a clause in the IT Act which enables a person to drag the government or the ISP for blocking access to their harmless content on the web, Seth said, “No specific section in the IT Act entitles a person to sue in such cases . However, freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court.”

So what should one do if his or her content is blocked due to the blanket ban on websites? “If I am blocked access to my content on the web (say by blocking sites such as Vimeo or Blogspot for instance) I should file an appeal against the John Doe order in the higher court or to the division bench of High court if earlier order has been passed by single bench of the same High court. These provisions are there for any citizen in Procedural Law of India. The IT Act, 2000 need not be invoked,” says Advocate Prashant Mali, President, Cyber Law Consulting.

Google Transparency report clearly established a link between internet censorship and the government. According to the report, between January and June 2011 Google received 1739 requests for disclosure of user data from the Indian government whereas from July to December 2011, the number of requests by the government went up to 2207. Thankfully Google's compliance rate has come down, but the requests will keep increasing. And this is just Google products we are talking about. Is it then right for just the government to go ahead and draft the rules regarding internet usage? Are there provisions for you, the user to play a part in drafting of these rules. According to Advocate Mali, laws are generally put up for debate on various Government websites. But in the case of the Intermediaries Guidelines, the government used the two-thirds majority to pass the rules.

According to Sunil Abraham, Director, Centre for Internet and Society – a Bangalore-based internet advocacy group, we are very far in terms of Internet policies. “Dr. Gulshan Rai of CERT-IN has not taken even the public feedback process seriously and does not hold public consultations. This is very unlike TRAI, the telecoms regulator that has a very sophisticated approach towards transparent and participatory policy formulation.” He says that in India there is little transparency in some areas of policy articulation and our representatives do not seem sufficiently interested in protecting the public interest.

Also according to Adv. Mali, the recent Madras High Court directive asking the ISPs to block only the ‘pirated content’ and not the entire website, is just half the battle won for the ISPs. “If ISP's feel they have won, then that's just half the victory, because if they don't implement the order with full might and even if one copyright gets infringed because of there weak enforcement, then it would amount to Contempt of Court which will land ISP's into soup,” he says.

“The Madras High Court judgement which essentially directs ISPs to block “pirated content”, and not the website as a whole, is a good judgment with respect to Internet users, but implementing it selectively would be a mammoth task for ISP's. If ISP's feel they have won, then it's just half the battle won, because if they don't implement the order with full might and even if one copyright gets infringed because of weak enforcement, then it would amount to Contempt of Court which will land ISP's into soup."

Advocate Prashant Mali, President, Cyber Law Consulting

Is the Anonymous way, the right way?
In June, we saw the global hactivist organisation - Anonymous attacking a string of Government websites and that of ISPs such as Reliance communications, which had blocked access to websites. On June 9, there was a street protest across various metros in India. While the participation was not very encouraging, the sympathy for what Anonymous hackers were doing to those opposing Internet censorship was immense.

According to Advocate Mali, though the agenda of Anonymous was good, their means of achieving that end were wrong. “One cannot put a gun on the Government’s head in a democracy. If they keep doing this, they will be outlawed. If Anonymous really wants to work for the netizens, they should find better ways to protest instead of those which are cognizable cyber crimes in India.” said Mali.

According to Abraham, Anonymous are embracing the civil disobedience movement to protest against unjust laws. He feels that it is pertinent for Anonymous to retain the moral high ground. “Breaking into servers, leaks of personal information and defacement of websites is both illegal and also unlikely to win them more supporters from within the policy formulation space,” concurs Abraham.

Sunil Abraham, Executive Director, Centre for Internet & Society

“The government ie. the government in power, does only frame subsidiary rules. For example – the draconian rules related to reasonable security measures, cyber cafes and intermediaries were drafted in April last year. The main Act in this case the Information Technology Act is framed in the Lok Sabha and Rajya Sabha. Even though the elected government may dominate the proceedings, if they have a clear majority, the opposition parties must debate every detail especially in laws that affect our civil liberties. Unfortunately, since the Internet is not used by the majority of the population it is politically still an insignificant issue. The private sector cannot frame laws that regulate itself – that would be a contradiction in terms. Citizens cannot be asked to vote in referendums each time laws have to be passed, that would just be too slow. Transparency representative democracy is the online option – unfortunately in India there is little transparency in some areas of policy articulation and our representatives don't seem to be sufficiently interested in protecting the public interest.”

Where do we go from here?
So it is safe to say that even though the issue of censorship is not making headlines everyday, it will never will be behind us. “This is just a temporary lull in the storm. Governments are always keen to crack down on free speech and privacy online,” feels Abraham. According to him, projects such as Unique Identification (UID) and National Intelligence Grid (NATGRID) means the death of anonymity and pseudonymity for Internet and mobile users in the country.

On the other hand, Adv. Mali says that so long as the Intermediaries guidelines are part of the IT Act, it will only mean bad news for regular netizens. “Till the rules are effective, censorship and blocking would be a weapon in the hands of the Government, even though it may violate certain Fundamental Rights enshrined by Indian Constitution to Indian Citizens,” he said.

“Indian Internet users have to be very vigilant – if not, we will loose all our rights and freedoms one by one,” warns Abraham.

We can just hope that the issue does not get completely out of hand.

For more details visit https://cis-india.org/news/www-thinkdigit-com-nimish-sawant-02-06-2012-respite-from-internet-censorship

Reply to RTI Application on Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

praskrishna — 2013-03-21T07:58:12Z

The Department of Telecommunications sent its reply to an RTI application from the Centre for Internet and Society. The application was sent on December 27, 2012 with reference to blocking of websites and Rule 419A of the Indian Telegraph Rules, 1951.

To
Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Dear Sir,
Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant: Centre for Internet & Society

2. Address of the Applicant

Mailing Address: Centre for Internet and Society
194, 2־C Cross,
Domlur Stage II,
Bangalore 560071

3. Details of the information required

It has come to our attention that Airtel Broadband Services ("Airtel") and Mahanagar Téléphoné Nigam Limited ("MTNL") have recently blocked access to a number of domain sites for all their users across the country. Airtel has blocked Fabulous Domains (http://www.fabulous.com/), BuyDomains (http://www.buvdomains.com/) and Sedo (http://sedo.co.uk/uk/home/welcome/). MTNL has blocked Sedo (http://sedo.co.uk/uk/home/welcQme/). Subscribers trying to access this website receive a message noting "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Télécommunications". In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department have powers to require an Internet Service Provider to block a website? If so, please provide a citation of the statute under which power is granted to the Department, as well as the safeguards prescribed to be in accordance with Article 19(1)(a) of the Constitution of India.
Did the Department order Airtel or MTNL to block any or all of the above mentioned websites? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel and MTNL for blocking of websites?
Has the Department ever ordered the blocking of any website? If so, please provide a list of addresses of all the websites that have been ordered to be blocked.
Please provide use the present composition of the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951, and copies of all their recommendations.

4. Years to which the above requests pertain: 2012

5. Designation and address of the PIO from whom the information is required

Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

To the best of my belief, the détails sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act ("RTI Act"), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

To the best of my knowledge the information sought does not fall within the restrictions contained in section 8 and 9 of the RTI Act, and any provision protecting such information in any other law for the time being in force is inapplicable due to section 22 of the RTI Act.

Please provide me this information in electronic form, via the e-mail address provided above. This to certify that I, Smitha Krishna Prasad, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of "Pay and Accounts Officer (HQ), Department of Telecom" payable at New Delhi.

Date. Monday November 26,2012
Place: Bengaluru, Karnataka

Below is the reply received from the Department of Telecommunications for the above RTI application

Government of India
Department of Télécommunications
Sanchar Bhawan, 20, Ashoka Road. New Delhi -110 001
(DS-CelI)

No. DIR(DS-II)/RTI/2009																		Dated:ll/01/2013

To,
Centre for Internet and Society,
No. 194, 2-C Cross,
Domlur Stage II,
Bangalore - 560 071

This has reference to RTI application dated 27/12/2012 with reference to Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

In this regard it is submitted that Internet Service licensees are to follow the provisions of Information Technology Act 2000 as amended from time to time. Under Information Technology Act 2000, "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" were notified on 27/10/2009.(Annexure) Aforesaid notified rules describes the "Designated Officer" for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under subsection (2) of Section 69(A) of the ACT. Wide Gazette Notification dated 20/01/2010 Group Coordinator , Cyber Law division, Department of Information Technology has been authorized and designated as "Designated Officer".

As per the directions of Group Coordinator, Cyber Law division, under Information Technology Act 2000, instructions for blocking/ unblocking of websites/URLs are issued to Internet Service Licensees.

As per the available information no instruction to Internet Service Providers has been issued for Blocking of http://www.fabulous.com/, http://www.buydomains.com/, http://sedo.co.uk/uk/home/welcome/ and http://sedo.co.uk/uk/home/welcome/ as mentioned in your RTI application.

Copies of Blocking order for which blocking instructions issued by DoT are not being provided are not provided as per Clause 16 of "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" which says "Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof."
With reference to information (Para 4 & 5 of RTI Aplication ) on Rule 419A of Indian Telegraph Rule, 1951 , the RTI is being forwarded to Dir (AS-III) & CPIO, DoT for providing the information.
The appeal, it any, may be made before Shri Nitin Jain, DDG(DS) & Appellate Authority, Department of Télécommunications, Room No. 1201, Sanchar Bhawan, 20 Ashoka Road, Nevy Delhi-110 001 within 30 days from the date of receipt of this letter.

Encl: As above
																							(Subodh Saxena) DIR (DS-II) 011-2303 6860 011-2335 9454

Copy to:

(I) Shri Rajiv Kumar, CPIO & Director (AS-III), DoT, New Delhi

NOTIFICATION
New Delhi, the 27th October, 2009

G.S.R. 781 (E). — In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, read with sub-section (2) of section 69A of the Information Technology Act 2000 (21 of 2000), the Central Government hereby makes the following rules, namely:

Short title and commencement — (1) These rules may be called the Information Technology (Procedure and Safeguards for Blocking for Access and Information by Public) Rules, 2009.
(2) They shall come into force on the date of their publication in the Official Gazette.
Definitions. — In these rules, unless the context otherwise requires. —
(a) "Act" means the Information Technology Act, 2000 (21 of 2000);
(b) "computer resource" means computer resource as defined in clause (k) of sub-section (1) of section 2 of the Act;
(c) "Designated Officer" means an officer designated as Designated Officer under rule 3;
(d) "Form" means a form appended to these rules;
(e) "intermediary" means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
(f) "nodal officer" means the nodal officer designated as such under rule 4;
(g) "organisation" means
(i) Ministries or Departments of the Government of India;
(ii) State Governments and Union Territories;
(iii) Any agency of the Central Government, as may be notified in the Official Gazette, by the Central Government
(h) "request" means the request for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource;
(i) "Review Committee" means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951.
Designated Officer — The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a Joint Secretary, as the "Designated Officer", for the purpose of issuing direction for blocking for access by the public any information generated, transmitted. received,, stored or hosted in any computer resource under sub-section (2) of section 69A of the Act.
Nodal officer or organisation.— Every organisation for the purpose of these rules, shall designate one of its officer as the Nodal Officer and shall intimate the same to the Central Government in the Department of Information Technology under the Ministry of Communications and Information Technotogy, Government of India and also publish the name of the said Nodal Officer on their website.
Direction by Designated Officer. — The Designated Officer may, on receipt of any request from the Nodal Officer of an organisation or a competent court, by order direct any Agency of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69A of the Act.
Forwarding of requests by organisation. — (1) Any person may send their complaint to the Nodal Officer of the concerned organisation for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource:
Provided that any request other than the one from the Nodal Officer of the organisation shall be sent with the approval of the Chief Secretary of the concerned State or Union territory to the Designated Officer.
Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory.
(2) The organisation shall examine the complaint received under sub-rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules.
(3) The Designated Officer shall not entertain any complaint or request for blocking of information directly from any person.
(4) The request shall be in writing on the letter head of the respective organisation, complete in all respects and may be sent either by mail or by fax or by e-mail signed with electronic signature of the Nodal Officer.
Provided that in case the request is sent by fax or by e-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail.
(5) On receipt, each request shall be assigned a number along with the date and time of its receipt by the Designated Officer and he shall acknowledge the receipt thereof to the Nodal Officer within a period of twenty four hours of its receipt.
Committee for examinatlon of request.— The request along with the printed sample content of the alleged offending information or part thereof shall be examined by a committee consisting of the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs. Information and Broadcasting and the Indian Computer Emergency Response Team appointed under sub-section (1) of section 70B of the Act.
Examination of request.— (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the informalion or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications, if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary.
(2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (I), before the committee on such specified date and time, the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or fax or e-mail signed with electronic signatures to such foreign entity or body corporate and any such foreign entity or body corporate shall respond to such a notice within the time specified therein, failing which the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(4) The committee referred to in rule 7 shall examine the request and printed sample information and consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act and that it is justifiable to block such information or part thereof and shall give specific recommendation in writing with respect to the request received from the Nodal Officer.
(5) The designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information along with the details sent by the Nodal Officer to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India (hereinafter referred to as the "Secretary, Department of Information Technology").
(6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Government or the intermediary to block the offending information generaled, transmitted, received, stored or hosted in their computer resource for public access within time limit specified in the direction:
Provided that in case the request of the Nodal Officer is not approved by the Secretary, Department of Information Technology, the Designated Officer shall convey the same to such Nodal Officer.
Blocking of Information in cases of emergency.— (1) Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
(2) In a case of emergency nature, tne Secretary. Department of Information Technology may, if he is satisfied that it is necessary or expedent and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
(3) The Designated Officer, at ihe earliest but not later than forty-eight hours of issue of direction under sub-rule 2, shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
(4) On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary. Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.
Process of order of court for blocking of Information — In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.
Expeditious disposal of request - The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.
Action for non-compliance of direction by Intermediary — In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.
Intermediary to designate one person to receive and handle directions — (1) Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
(2) The designated person of the intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.
Meeting of Review Commlttee — The Review Committee shall meet at least once in two months and record its findings whether the directions issued under these rules are in accordance with the provisions of sub-seclion (1) of section 69A of the Act and if is of the opinion that the directions are not in accordance with the provisions referred above, it may set aside the directions and issue order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.
Maintenance of records by Designated Officer — The Designated Officer shall maintain complete record of the request received and action taken thereof, in electronic database and also in register of the cases of blocking for public access of the information generated, transmitted, received, stored or hosted in a computer resource.
Requests and complaints to be confidential — Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.

FORM
(See rule 6(2))

A. Complaint

Name of the complainant: --_________________________________________________________________
(Person who has sent the complaint to the Ministry/Department/State Govt./Nodal Officer)
Address: ________________________________________________________________________________
________________________________________________________________________________
City: ______________________________ Pin Code: __________________
Telephone: ________________________ (prefix STD code)
Fax (if any): _______________________
Mobile (if any): ______________________
Email (if any): __________________________________

B. Details of website/computer resource/intermediary/offending information hosted on the website
(Please give details wherever known)
URL / web address: ____________________________________
IP Address: _______________________________________
Hyperlink: ________________________________________
Server/Proxy Server address: ________________________________________
Name of the Intermediary: _________________________________________
URL of the Intermediary: __________________________________________
(Please attach screenshot/printout of the offending information)
Address or location of intermediary in case the intermediary is telecom service provider, network service provider, internet service provider, web-hosting service provider and cyber cafe or other form of intermediary for which information under points (7), (8), (9), (10), (11) and (12) are not available.
___________________________________________________________
___________________________________________________________
___________________________________________________________
C. Details of Request for blocking
Recommendations/Comments of the Ministry/State Govt: ________________________
________________________________________________________________________
________________________________________________________________________
The level at which the comments/recommendation have been approved
(Please specify designation) ________________________________________________
Have the complaint been examined in Ministry / State Government: Y/N
If yes, under which of the following reasons it falls (please tick):
(i) Interest of sovereignty or integrity of India
(ii) Defence of India
(iii) Security of the State
(iv) Friendly relations with foreign states
(v) Public order
(vi) For preventing incitement to the commission of any cognisable offence relating to above
D. Details of the Nodal Officer, forwarding the complaint along with recommendation of the Ministry/State Govt. and related enclosures
Name of the Nodal Officer: ___________________________________________
Designation: ______________________________________________________
Organisation: _____________________________________________________
Address: ________________________________________________ _________

__________________________________________________________

City: __________________________ Pin Code: _________________
Telephone: ___________________________ (prefix STD code)
Fax (if any) _____________________
Mobile (if any) ______________________
Email (if any): ___________________________
E: Any other information:
F: Enclosures:

1.

2.

3.

Date Place Signature

[No. 9(16)J2004-EC]
N. RAVI SHANKER, Jt. Secy

3855GI/09-5

For more details visit https://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951

Reliance-Jio Users Complain Of Porn Websites Being Blocked; Company Yet To Issue Official Statement

Admin — 2018-10-29T02:35:43Z

Going by a lot of Jio network users, it seems that Mukesh Ambani’s Jio has banned hundreds of porn sites, in compliance with the order of the Department of Telecommunications.

The blog post was published by Logical Indian on October 27, 2018. Pranesh Prakash was quoted.

The order came after the Uttarakhand High Court on September 28, 2018, had directed the Centre to block over 850 pornographic websites. Many Jio users have taken to social media to show their protests. On Twitter, several users have threatened even to change their network if Jio doesn’t lift the ban.

However, the telecom operator has not issued an official statement confirming the ban or on the development so far. The complaints have come to notice after many users pointed out on social media platforms like Reddit and Twitter that several porn websites are no longer available on Jio network, as reported by the Financial Times.

The High Court’s Order

According to The Indian Express, the Uttarakhand High court’s order came after the alleged gang rape of a 16-year old girl by four students at her boarding school in Dehradun. It is alleged that the accused were “instigated by watching pornography” on their mobile phones before committing the crime.

In the order, the division bench of acting chief, justice Rajiv Sharma and justice Manoj Kumar Tiwari said, “There shall be a direction to all the Internet Service License Holders to punctually obey the notification dated 31st July 2015 and to block the publication or transmission of obscene material in any electronic form.” It further added that material containing sexually explicit act or conduct and also publishing or transmitting of material depicting children in sexually explicit acts should also be blocked.

Same crackdown in 2015

In 2015, the Department of Telecommunications had issued an order to block 857 porn websites. They had asked all the internet service providers to take compliance with the order and block the websites. A lot of people protested against this crackdown by the government. However, after receiving a huge criticism from the people, the government partially lifted the ban. But, following the rule, nothing had happened, and the porn sites were functioning as before, reported The Guardian.

An Indian think tank, Centre for Internet and Society member Pranesh Prakash said “It is illegitimate because it is not as though the government has found these websites unlawful … This is a blanket ban, and the government has not thought through the consequences,” reported by The Guardian.

The Logical Indian Take

Watching or not watching porn is a person’s liberty. India is a democratic nation, and according to our constitution, we are conferred with the freedom of expression and the right to personal liberty. So, this non-confirmed porn ban by Reliance Jio would be getting into the freedom of an individual.

After China, India has the second-largest number of internet users in the world. And, Reliance-Jio is just the third user base in India. The ban would not affect the population much but is definitely a threat to the user rights.

For more details visit https://cis-india.org/internet-governance/news/the-logical-indian-october-27-2018-reliance-jio-users-complain-of-porn-websites-being-blocked

Reliance Jio is using SNI inspection to block websites

Gurshabad Grover and Kushagra Singh — 2020-07-09T01:31:39Z

Reliance Jio, the most popular ISP in India, is employing a deep packet inspection technique to block websites for its users.

This blogpost was written by Gurshabad Grover and Kushagra Singh, and edited by Elonnai Hickok.

Background

In April this year, several Jio users were puzzled to find that Reddit and Telegram were being blocked by the ISP. Around the same time, Sushant Sinha was perplexed to note that those using Jio connections were unable to access IndianKanoon.com, the legal database he founded and runs.

These experiences of arbitrary web censorship are the natural conclusion of an opaque legal framework that allows the Government of India to order ISPs to block certain websites for its users. The Central Government draws such powers from sections 69A and 79 of the Information Technology (IT) Act and the rules issued thereunder. Notably, the “blocking rules” issued under Section 69A describe an executive-driven process, and further mandate the confidentiality of blocking orders issued to intermediaries. These rules have meant that it is next to impossible for netizens to know the complete list of websites blocked in India and the reasons for such blocking.

Pertinently, the blocking rules do not mandate ISPs to use any particular technical method to block websites. This has meant that Indian ISPs are at liberty to pick whatever filtering mechanism they wish, which has had implications for how internet users experience and circumvent web censorship. Researchers at IIIT-Delhi have already documented Indian ISPs are using two methods:

Domain Name System (DNS) based blocking
Users trying to access websites usually contact the ISP’s DNS directory to translate a human-parseable address like ‘example.com’ to its network address ‘93.184.216.34’. Some ISPs in India, like BSNL and MTNL, respond with incorrect network addresses to the users’ queries for websites they wish to block.
Hypertext Transfer Protocol (HTTP) header based blocking
HTTP is the most popular way to transmit web pages. Since classic HTTP communication is unencrypted, ISPs can monitor for the website’s name that is attached (the HTTP Host header field) to such traffic. ISPs like Jio, Airtel and Vodafone monitor this field for names of websites they wish to block, intercept such requests, and return anything they wish as a response.

Generally, ISPs’ use of either method directs users to a censorship notice when they find that the user is trying to access a ‘blocked’ website.

Image 1: The notice served by Jio (through HTTP-header based filtering and injected response) when a user tries to access a blocked website.

In this blogpost, we document how Jio is using, in addition to HTTP-based blocking, another censorship method: Server Name Indication (SNI) inspection. First, we explain what the SNI is. Then, we detail how you can independently confirm that Jio is using information in the SNI to block website access. In the end, we explain the implications of Jio’s decision.

SNI Inspection

Transport Layer Security (TLS) is a cryptographic protocol for providing communication confidentiality and authenticity, commonly used for encrypting web traffic (as done in HTTPS). The SNI, defined first in RFC 4366 and then in RFC 6066, is an extension to TLS designed to facilitate the hosting of multiple HTTPS websites on the same server. While establishing a secure connection (a TLS Client Hello), a client just fills in the SNI attribute with the hostname of the website it wishes to connect to.

SNI, unfortunately, travels on the network in cleartext, i.e. network operators can not only see the websites you’re visiting, but also filter traffic based on this information. The use of SNI inspection in state-directed web censorship was not very common until recently. Only this year, the use of SNI inspection to censor websites was documented in China and South Korea.

In the Indian context, the aforementioned paper, the researchers note that in Indian ISPs they investigated (including Jio), they “observed fewer than five instances of HTTPS filtering which were actually due to manipulated DNS responses [...], and not because of SNI field in TLS [...].” However, as the next section documents, Jio is now in fact using SNI-inspection based filtering.

The test

To run our tests, we can take advantage of the fact that Google's server is configured to respond successfully to TLS connection attempts even if we send an SNI with a website’s name that it does not host on that server.

Using OpenSSL's s_client utility, we attempt to establish a TLS 1.3 connection with an IP address (216.58.196.174) corresponding to google.com. However, instead of specifying 'google.com' in the SNI, we specify a potentially blocked website (PBW) 1337x.be.

openssl s_client -state -connect 216.58.196.174:443 -servername 1337x.be -tls1_3

Two important notes here:

We are not connecting to the PBW at all! This simple approach is allowing us to rule out other censorship methods (like DNS, HTTP, and even IP/TCP-level blocking) from interfering with our results.
We’re using TLS 1.3 to make our connections. This is because in older versions of TLS, the server passes its certificate to the client in cleartext. ISPs may also be using that information to block websites if older TLS versions are used. Using TLS 1.3 allows us to ensure that ISPs are indeed using SNI inspection to block websites.

We notice that when we specify a PBW in the SNI, we receive a TCP packet with the RST (reset) bit set almost immediately after the connection is established, which closes the established connection. Of course, a plausible explanation could be that the Google server itself might be resetting the connection upon realising that it does not host the PBW. However, this is neither the expected behaviour as per RFC 6066, nor do we notice the server doing so in all cases where we specify a SNI for a website that it is not hosted on the server. For example, when we specify facebook.com as the SNI, not only are we able to complete the TLS handshake but we're also able to make subsequent requests to the server after completing the handshake (albeit receiving an expected "not found" error in response).

You can find and compare the OpenSSL requests and responses for a PBW (1337x.be) and an uncensored website (facebook.com) here.

A caveat here is that we do not always notice such behaviour. For instance, while trying to detect such censorship, we found that connecting to one of Google’s IP address (216.58.196.174) resulted in connection resets. Whereas doing the same with a different IP address which google.com resolves to (172.217.161.14) resulted in successful connections. This seems to suggest that Jio has employed a limited number of middleboxes inspecting and filtering traffic based on the SNI.

Implications

The scale of users impacted by this technical choice is huge: according to data released by the Telecom Regulatory Authority of India last month, Jio is the most popular ISP in India. It currently serves 331.25 million internet subscribers in the country, which constitute 49.79% of internet subscribers in India. If Jio installs middleboxes at enough points across the regions it serves, all Jio customers potentially face SNI-based censorship.

The technical methods that ISPs use to implement website censorship have direct implications for how easily users can access blocked websites. Working around DNS spoofing, for example, can be fairly simple: one can change system settings to use to one of the many censorship-free DNS resolvers. The paper by IIIT-Delhi researchers also found that circumventing HTTP-based censorship is easy in India because of how ISPs are implementing the mechanism. The currently documented ways for clients to bypass SNI-based censorship is by either not specifying an SNI or specifying a modified SNI while connecting to the blocked website. However, both these approaches can be futile as the server hosting the website might close the connection upon observing such an SNI. To effectively circumvent SNI-based censorship, Jio users may have no choice but to resort to using Tor or VPNs to access blocked websites.

Another aspect is how the technical method chosen by ISPs can have implications for transparency in censorship. As pointed out in the beginning of the blogpost, the legal framework of web censorship in India lacks transparency, fails to make the Government accountable for its orders, and places no obligations on ISPs to be transparent about the websites they block or the methods they use for doing so. The choice of Jio to use SNI-inspection based filtering to implement web censorship aggravates this already-opaque system because it is technically impossible to serve censorship notices using this method. TLS is designed in a way that clients abort connections when they detect interception and on-path attacks. Thus, Jio can only create connection failures when it wishes to block websites using SNI inspection. Since users facing SNI-based censorship will not see censorship notices, they may be left confused as to whether the website they wish to access is unavailable, or being blocked by the ISP.

Image 2: Error users will face when Jio censors websites with SNI-based filtering.

The way forward

There is already ongoing work in the TLS working group at the Internet Engineering Task Force to encrypt the SNI. When there is wide deployment of encrypted SNI, we can expect SNI-inspection based filtering to be ineffective. However, the group currently faces several thorny design problems; of primary relevance in this context is how TLS connection attempts that use encrypted SNI should not “stick out”, i.e. such traffic should not be easily distinguishable from TLS connection attempts that use cleartext SNI. Traffic relying on implementations of encrypted SNI that “stick out” can be filtered out, as South Korean networks are doing already. Hopefully, we can expect that no Indian ISP will take such drastic measures.

For more details visit https://cis-india.org/internet-governance/blog/reliance-jio-is-using-sni-inspection-to-block-websites

Regulating the Internet by fiat

praskrishna — 2012-08-26T10:13:03Z

The Union government’s move to ban or block 310 online entities is worrisome.

This article by V Sridhar was published in the Hindu on August 26, 2012. Pranesh Prakash is quoted.

The unprecedented spike in the velocity of hateful, offensive and blatantly communal online content earlier this month, which reinforced rumour mongering on the ground that resulted in the exodus of people from the northeast from several Indian cities has been a classic example of how new technologies can be harnessed for old vices. But just as disturbing has been the manner in which the government yielded to the old itch of censoring, banning or blocking content. Between August 18 and August 21, the Department of Telecommunications (DoT), in four separate directives issued to all Internet service licensees, asked them to “block access” to a total of 310 URLs (Unique Resource Locators).

Directing ISPs

The number of URLs blocked does not quite convey the extent of the banned content because the list includes instances of entire websites, a single Web page in some cases, videos posted on YouTube, Twitter handles, Facebook entries, or even instances of links that would take the browser to an img tag (an individual image that is linked to an HTML page). Although the directives clearly stated that the service providers should block only the specific URLs leading to the main sites such as YouTube, Facebook or Twitter.

Airtel, the leading telecom and Internet service provider, blocked youtu.be, the short URL that Twitter and Facebook users normally use for sharing images and videos. A perusal of the four orders clearly shows that Airtel overreacted. Although the service provider subsequently corrected the error, worries about arbitrary disruptions remain.

Pranesh Prakash, Programme Manager, Centre for Internet and Society (CIS), who did the first analysis of the resources that were pulled out of the Web, said the list was only partial, because they related only to the URLs that ISPs were asked to block, not what action would have been initiated against those offering Web services.

A ragtag list

Net activists, even those who do not have an absolutist notion of the right to free speech, have expressed deep reservations about the manner in which the government has blocked 310 URLs. Although Mr. Prakash, who is also a lawyer, believes that “temporary curbs” of freedom of expression, in situations such as the unprecedented situation earlier this month may be necessary, he argued that the government acted carelessly and in a kneejerk manner. “It is a ragtag list, prepared in a haphazard manner,” he told The Hindu.

Logically, the rules applicable to hate content ought to be the same whether the offence is in print or whether it appears as online content. Mr. Prakash pointed to the fact that official agencies such as the police have not gone after those responsible for the content posted in the blocked URLs, which shows that the government’s approach is not backed by a resolve to bring to book those responsible for spreading hate.

The ban-first, examine-later approach is wrong for three sets of reasons, argued Mr. Prakash. First, because there are what he characterises as “egregious mistakes”. Second, he doubts whether regulations prescribing due process of enforcing and reviewing the ban were indeed followed. Third, the government ought to have acted smarter, by using the same media to debunk the rumours that were swirling in several Indian cities but also in the northeast. Mr. Prakash pointed to the case of a Canadian intern working at the CIS who received an SMS from a Canadian government agency that asked her not to heed the rumours. Although the Bangalore police did issue an SMS asking people not to heed such rumours, it came well after the rumour mongering had passed its peak.

“I generally believe that the government must exercise utmost caution in censoring,” said Mr. Prakash. He pointed out that in the list were sites and people who had done nothing to promote hate. He refered to the case of Amit Paranjpe, whose twitter handles were blocked. “If you go through his timeline, you will not find anything that is communal at all,” Mr. Prakash says. “I do not think the government acted responsibly by going after material that is not directly inflammatory, or contributes to the state of panic,” he argued. “I do not doubt the motives of the government, because I see that the overwhelming majority of the material it has blocked is stuff that has something to do with communalism or rioting, whether it is as reportage or as material that contributes to tension,” he observed. He also did not think the government used the crisis as an excuse to put down politically dissenting voices, which was what happened last October (critical references to Sonia Gandhi were removed then).

Cyber terror?

Significantly, the list of blocked domains did not match the government’s claim that a lot of the hate content were in the form of images with misleading captions, most of which came from Pakistan. Mr. Prakash pointed out that many of these images had “been floating around” in Pakistan for at least a month before the rumours hit their peak in mid-August. He noted that within Pakistan there had been debates about the authenticity of these images. “In fact, the reportage and the countering of the reportage in the Pakistani media has been much more sophisticated than in India,” he observed. Significantly, the debate was not even targeted at the Indian audience, but to Pakistani or a global audience. “This debunks the notion some sections of the media have propagated, that this is about cyber war or cyber terrorism,” he says. “I have not seen evidence that India has been targeted from Pakistan,” he observed.

Lack of transparency

It has also been done without abiding by the procedures that are clearly laid down. Mr. Prakash pointed out, the provisions of the Information Technology Act require that “persons or intermediaries” blocked ought to have been given an opportunity to explain their position within 48 hours. He doubted that this had been followed. Moreover, he argued that the people or companies hosting the offensive content, not the ISPs, ought to have been asked to remove them. After all, most of the large and popular intermediaries have clearly laid down conditions of usage, he said.

The lack of transparency in the manner in which the government blocked these websites — even if it is accepted that the content was hateful, abhorrent and aimed at stirring social tension — is worrisome because it sets a precedent for unchecked use of power, without proper sanction. Nor was it a smart way of addressing an innovatively virulent way of spreading chaos. While the government’s use of the sledgehammer may have got it out of the immediate crisis it found itself in, it may have fewer friends when faced with a similar outbreak later.

For more details visit https://cis-india.org/news/www-the-hindu-aug-26-v-sridhar-regulating-the-internet-by-fiat