Centre for Internet and Society

Consilience 2019

Admin — 2019-06-05T07:25:08Z

The Law and Technology Society at the National Law School of India University, Bangalore organised Consilience on May 25, 2019.

Gurshabad Grover was a panelist on the discussion on 'Online Content Regulation: Global Perspectives and Solutions'. The other panelists were Jyoti Panday (Telecom Centre of Excellence) and Alok Prasanna Kumar (Vidhi Centre for Legal Policy). The session was moderated by Divij Joshi. Gurshabad's contributions centered around the interplay of content moderation, regulation and competition issues. He also discussed the disharmony between the recommendations of the UN Special Rapporteur on FoE and developing legal norms of regulation. Akriti Bopanna gave her inputs to Gurshabad Grover.

For more details visit https://cis-india.org/internet-governance/news/consilience-2019

CIS Response to ICANN's proposed renewal of .org Registry

akriti — 2019-04-28T02:16:40Z

We thank ICANN for the opportunity to comment on this issue of its proposed renewal of the .org Registry Agreement with the operator, Public Interest Registry (PIR). Supporting much of the community , we too find severe issues with the proposed agreement. These centre around the removal of price caps and imposing obligations being currently deliberated in an ongoing Policy Development Process (PDP).

Presumption of Renewal

CIS has, in the past, questioned the need for a presumption of renewal in registry contracts and it is important to emphasize this within the context of this comment as well. We had, also, asked ICANN for their rationale on having such a practice with reference to their contract with Verisign to which they responded saying:

“Absent countervailing reasons, there is little public benefit, and some significant potential for disruption, in regular changes of a registry operator. In addition, a significant chance of losing the right to operate the registry after a short period creates adverse incentives to favor short term gain over long term investment.”

This logic can presumably be applied to the .org registry, as well, yet a re-auction of ,even, legacy top-level domains can only serve to further a fair market, promote competition and ensure that existing registries do not become complacent.

These views were supported in the course of the PDP on Contractual Conditions - Existing Registries in 2006 wherein competition was seen useful for better pricing, operational performance and contributions to registry infrastructure. It was also noted that most service industries incorporate a presumption of competition as opposed to one of renewal.

Download the file to access our full response.

For more details visit https://cis-india.org/internet-governance/blog/akriti-bopanna-april-28-2019-cis-response-to-icanns-proposed-renewal-of-org-registry

To preserve freedoms online, amend the IT Act

gurshabad — 2019-04-16T10:09:41Z

Look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.

The article by Gurshabad Grover was published in the Hindustan Times on April 16, 2019.

The issue of blocking of websites and online services in India has gained much deserved traction after internet users reported that popular services like Reddit and Telegram were inaccessible on certain Internet Service Providers (ISPs). The befuddlement of users calls for a look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.

Among other things, Section 69A of the Information Technology (IT) Act, which regulates takedown and blocking of online content, allows both government departments and courts to issue directions to ISPs to block websites. Since court orders are in the public domain, it is possible to know this set of blocked websites and URLs. However, the process is much more opaque when it comes to government orders.

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, issued under the Act, detail a process entirely driven through decisions made by executive-appointed officers. Although some scrutiny of such orders is required normally, it can be waived in cases of emergencies. The process does not require judicial sanction, and does not present an opportunity of a fair hearing to the website owner. Notably, the rules also mandate ISPs to maintain all such government requests as confidential, thus making the process and complete list of blocked websites unavailable to the general public.

In the absence of transparency, we have to rely on a mix of user reports and media reports that carry leaked government documents to get a glimpse into what websites the government is blocking. Civil society efforts to get the entire list of blocked websites have repeatedly failed. In response to the Right to Information (RTI) request filed by the Software Freedom Law Centre India in August 2017, the Ministry of Electronics and IT refused to provide the entire of list of blocked websites citing national security and public order, but only revealed the number of blocked websites: 11,422.

Unsurprisingly, ISPs do not share this information because of the confidentiality provision in the rules. A 2017 study by the Centre for Internet and Society (CIS) found all five ISPs surveyed refused to share information about website blocking requests. In July 2018, the Bharat Sanchar Nagam Limited rejected the RTI request by CIS which asked for the list of blocked websites.

The lack of transparency, clear guidelines, and a monitoring mechanism means that there are various forms of arbitrary behaviour by ISPs. First and most importantly, there is no way to ascertain whether a website block has legal backing through a government order because of the aforementioned confidentiality clause. Second, the rules define no technical method for the ISPs to follow to block the website. This results in some ISPs suppressing Domain Name System queries (which translate human-parseable addresses like ‘example.com’ to their network address, ‘93.184.216.34’), or using the Hypertext Transfer Protocol (HTTP) headers to block requests. Third, as has been made clear with recent user reports, users in different regions and telecom circles, but serviced by the same ISP, may be facing a different list of blocked websites. Fourth, when blocking orders are rescinded, there is no way to make sure that ISPs have unblocked the websites. These factors mean that two Indians can have wildly different experiences with online censorship.

Organisations like the Internet Freedom Foundation have also been pointing out how, if ISPs block websites in a non-transparent way (for example, when there is no information page mentioning a government order presented to users when they attempt to access a blocked website), it constitutes a violation of the net neutrality rules that ISPs are bound to since July 2018.

While the Supreme Court upheld the legality of the rules in 2015 in Shreya Singhal vs. Union of India, recent events highlight how the opaque processes can have arbitrary and unfair outcomes for users and website owners. The right to access to information and freedom of expression are essential to a liberal democratic order. To preserve these freedoms online, there is a need to amend the rules under the IT Act to replace the current regime with a transparent and fair process that makes the government accountable for its decisions that aim to censor speech on the internet.

For more details visit https://cis-india.org/internet-governance/blog/hindustan-times-april-16-2019-gurshabad-grover-to-preserve-freedoms-online-amend-it-act

DIDP #33 On ICANN's 2012 gTLD round auction fund

akriti — 2019-07-09T15:51:47Z

This DIDP was filed to inquire about the state of the funds ICANN received from the last gTLD auctions.

In 2012, after years of deliberation ICANN opened the application round for new top level domains and saw over 1930 applications. Since October 2013, delegation of these extensions commenced with it still going on. However, 7 years since the round was open there has been no consensus on how to utilize the funds obtained from the auctions. ICANN until its last meeting was debating on the legal mechanisms/ entities to be created who will decide on the disbursement of these funds. There is no clear information on how those funds have been maintained over the years or its treatments in terms of whether they have been set aside or invested etc. Thus, our DIDP questions ICANN on the status of these funds and can be found here.

The response to the DIDP received on 24th April, 2019 states that that even though the request asked for information, rather than documentation, our question was answered. Reiterating that the DIDP mechanism was developed to provide documentation rather than information. It stated that on 25 October 2018, Resolution 2018.10.25.23 was passed that compels the President and CEO to allocate $36 million to the Reserve Fund. The gTLD auction proceeds were allocated to separate investment accounts, and the interest accruing from the proceedings was in accordance with the new gTLD Investment Policy.

For more details visit https://cis-india.org/internet-governance/blog/akriti-bopanna-april-4-2019-didp-33-on-icann-s-2012-gtld-round-auction-fund

Just Net Coalition Workshop on Equity and Social Justice in a Digital World

Admin — 2019-04-05T14:22:07Z

Anubha Sinha participated in a JNC workshop organized by Just Net Coalition Workshop on Equity and Social Justice in a Digital World and its partners in Bangkok from March 25 to 27, 2019.

Background

Digital is increasingly the substratum of much of social, economic and political activities, marking the advent of what has been called as the digital society and economy. While it does promise the advancement of human civilisation in many ways – enabling unimagined efficiencies of resource utilisation and new forms of intelligent social and economic organisation and functioning, these gains are not automatic. This is especially so regarding whether the benefits of a digital society and economy will be equitably distributed, or if data enabled pervasive digital intelligence will get employed by the powerful to further entrench their controls over the rest. It is a telling fact that the last decade and half of the rise of the Internet and digital were also the times of one of the fastest ever worsening of inequality worldwide. If the deep social, economic and political troubles currently faced by the world are any evidence, we may not be employing the newly available digitally intelligent means for better management of our societies and economies.

Governments, that are supposed to ensure appropriate economic distribution and social justice, are completely at a loss with regard to the digital society/economy phenomenon, and leave it to big – mostly global – business to advice and lead them. Even among civil society, while there exist many groups and networks advocating for the very important civil and political rights in a digital era, there is hardly any presence and work related to corresponding economic and social rights and justice. This has resulted in a singular homogeneous global digital economy discourse which is not just hegemonic – as admittedly happens in other areas as well – but also remains almost entirely uncontested, without any alternatives articulated even at its peripheries. It is underpinned by the neoliberal tenets of seamless techno-enabled economic globalisation, open unregulated markets (but actually monopoly corporate controls), and individual merit and personal responsibility. Productivity and inclusion are both sold as assured outcomes of imbibing digital technologies into everything.

For more info, click here

For more details visit https://cis-india.org/internet-governance/news/just-net-coalition-workshop-on-equity-and-social-justice-in-a-digital-world

Proposed Intermediary Liability Rules threat to privacy and free speech, global coalition tells MeitY

Zaheer Merchant — 2019-03-20T15:56:51Z

“We respectfully call on you to withdraw the draft amendments proposed to the Information Technology (Intermediary Guidelines) Rules in December. As published, the draft amendments would erode digital security and undermine the exercise of human rights globally.”

The blog post by Zaheer Merchant was published by Medianama on March 18, 2019.

A global coalition of 31 civil society organizations and technology experts has called on MeitY to reconsider the proposed amendments to the Intermediary Liability Rules, terming them a threat to privacy and free speech. In a letter to the ministry dated March 15, the coalition said that the proposed amendments “would harm fundamental rights and the space for a free internet, without necessarily addressing the problems that the ministry aims to resolve.” Some of the signatories are Centre for Internet and Society, SFLC.in, Internet Freedom Foundation, Government Accountability Project and Human Rights Watch, among others (A copy of the letter is attached at the bottom). The letter breaks down its reasons for opposing the proposed amendments:

1. Traceability would undermine security, lead to surveillance

Under the proposed guidelines, intermediaries would have to ensure ‘traceability’ of messages by providing information related to its originator and receivers. This, the letter argues, would force intermediaries to undermine the security of of their platforms and create a surveillance regime. “Undermining security features to ensure traceability would affect all users of that platform, not just those that are the subjects of the information request,” the letter reads. “… such wide and ambiguous powers… on interception of communications would directly harm the fundamental right to privacy of Indians and facilitate unchecked surveillance.”

2. Data retention antithetical to privacy, must go

The letter also states that the data retention mandate included in the draft guidelines is antithetical to privacy. The guidelines state that intermediaries must preserve content requested by law enforcement for 180 days or longer. This open-ended data retention, the letter argues, contradicts the principle of ‘Storage Limitation’ recommended by the Srikrishna Committee. “Provisions regarding storage limitation and data retention must not be included within the fold of the Intermediary Guidelines, and should be subject to parliamentary law-making,” the letter reads.

3. Proactive monitoring contradicts SC’s Shreya Singhal judgment, would result in censorship

The letter also criticizes the requirement that intermediaries proactively monitor and automatically delete ‘unlawful content’. “[This] would directly conflict with the legal standard laid down by the Supreme Court of India in the Shreya Singhal judgment, which holds that intermediaries should only be legally compelled to take down content on the basis of court orders or legally empowered government agencies,” the letter reads. It could also cause intermediaries to err in favor of takedowns, resulting in unnecessary censorship.

“With the upcoming General Elections in India and the imposition of the Model Code of Conduct on new policy decisions in place, we urge the government to not push through these amended regulations given their impact on fundamental rights and secure communications,” the letter concludes.

The proposed amendments to Intermediary Liability Rules

Released at the end of December 2018, the proposed amendments to the Intermediary Guidelines would modify guidelines under the Information Technology Act concerning intermediaries, ostensibly to prevent misuse of social media platforms and check the spread of fake news. Under India’s Information Technology Act, any entity, person or platform that receives, stores, processes, or transmits electronic information on behalf of another is considered an intermediary. These include social media platforms, cloud services, internet service providers, email service providers and more. For an intermediary to avoid liability for its users’ actions, it must comply with the proposed guidelines which are being amended to the following:

Traceability, and information within 72 hours: The new rules require platforms to introduce traceability to find where a piece of information originated. For this, platforms may have to break end-to-end encryption. The rules require the intermediary to hand over information or assistance to government bodies in 72 hours, including in matters of security or cybersecurity, and for investigative purposes. [Rule 3(5)]
Platforms with more than 50 lakh users are required to be registered under the Companies Act, have a physical address in the country, have a nodal officer who will cooperate with law enforcement agencies, etc. [Rule 3(7)]
Platforms have to pull down unlawful content within a shorter duration of 24 hours from the earlier 36 hours. They also have to keep records of the “unlawful activity” for 180 days – double the period of 90 days in the 2011 rules – as required by the court or government agencies [Rule 3(8)]
Platforms have to deploy tools to proactively identify, remove and disable public access to unlawful information or content. [Rule 3(9)]
The new rules insert a monthly requirement on platforms to inform users of the platforms’ right to terminate usage rights and to remove non-compliant information at their own discretion. [Rule 3(4)]

For more details visit https://cis-india.org/internet-governance/news/medianama-march-18-2019-zaheer-merchant-proposed-intermediary-liability-rules-threat-privacy-and-free-speech

Resurrecting the marketplace of ideas

basu — 2019-02-22T02:18:53Z

There is no ‘silver bullet’ for regulating content on the web. It requires a mix of legal and empirical analysis.

The article by Arindrajit Basu was published in Hindu Businessline on February 19, 2019.

A century after the ‘marketplace of ideas’ first found its way into a US Supreme Court judgment through the dissenting opinion of Justice Oliver Wendell Holmes Jr (Abrams v United States, 1919), the oft-cited rationale for free speech is arguably under siege.

The increasing quantity and range of online speech hosted by internet platforms coupled with the shock waves sent by revelations of rampant abuse through the spread of misinformation has lead to a growing inclination among governments across the globe to demand more aggressive intervention by internet platforms in filtering the content they host.

Rule 3(9) of the Draft of the Information Technology [Intermediary Guidelines (Amendment) Rules] 2018 released by the Ministry of Electronics and Information Technology (MeiTy) last December follows the interventionist regulatory footsteps of countries like Germany and France by mandating that platforms use “automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.”

Like its global counterparts, this rule, which serves as a pre-condition for granting immunity to the intermediary from legal claims arising out of user-generated communications, might not only have an undue ‘chilling effect’ on free speech but is also a thoroughly uncooked policy intervention.

Censorship by proxy

Rule 3(9) and its global counterparts might not be in line with the guarantees enmeshed in the right to freedom of speech and expression for three reasons. First, the vague wording of the law and the abstruse guidelines for implementation do not provide clarity, accessibility and predictability — which are key requirements for any law restricting free speech .The NetzDG-the German law, aimed at combating agitation and fake news, has attracted immense criticism from civil society activists and the UN Special Rapporteur David Kaye on similar grounds.

Second, as proved by multiple empirical studies across the globe, including one conducted by CIS on the Indian context, it is likely that legal requirements mandating that private sector actors make determinations on content restrictions can lead to over-compliance as the intermediary would be incentivised to err on the side of removal to avoid expensive litigation.

Finally, by shifting the burden of determining and removing ‘unlawful’ content onto a private actor, the state is effectively engaging in ‘censorship by proxy’. As per Article 12 of the Constitution, whenever a government body performs a ‘public function’, it must comply with all the enshrined fundamental rights.

Any individual has the right to file a writ petition against the state for violation of a fundamental right, including the right to free speech.

However, judicial precedent on the horizontal application of fundamental rights, which might enable an individual to enforce a similar claim against a private actor has not yet been cemented in Indian constitutional jurisprudence.

This means that any individual whose content has been wrongfully removed by the platform may have no recourse in law — either against the state or against the platform.

Algorithmic governmentality

Using automated technologies comes with its own set of technical challenges even though they enable the monitoring of greater swathes of content. The main challenge to automated filtering is the incomplete or inaccurate training data as labelled data sets are expensive to curate and difficult to acquire, particularly for smaller players.

Further, an algorithmically driven solution is an amorphous process.

Through it is hidden layers and without clear oversight and accountability mechanisms, the machine generates an output, which corresponds to assessing the risk value of certain forms of speech, thereby reducing it to quantifiable values — sacrificing inherent facets of dignity such as the speaker’s unique singularities, personal psychological motivations and intentions.

Possible policy prescriptions

The first step towards framing an adequate policy response would be to segregate the content needing moderation based on the reason for them being problematic.

Detecting and removing information that is false might require the crafting of mechanisms that are different from those intended to tackle content that is true but unlawful, such as child pornography.

Any policy prescription needs to be adequately piloted and tested before implementation. It is also likely that the best placed prescription might be a hybrid amalgamation of the methods outlined below.

Second, it is imperative that the nature of intermediaries to which a policy applies are clearly delineated. For example, Whatsapp, which offers end-to-end encrypted services would not be able to filter content in the same way internet platforms like Twitter can.

The first option going forward is user-filtering, which as per a recent paper written by Ivar Hartmann, is a decentralised process, through which the users of an online platform collectively endeavour to regulate the flow of information.

Users collectively agree on a set of standards and general guidelines for filtering. This method combined with an oversight and grievance redressal mechanism to address any potential violation may be a plausible one.

The second model is enhancing the present model of self-regulation. Ghonim and Rashbass recommend that the platform must publish all data related to public posts and the processes followed in a certain post attaining ‘viral’ or ‘trending’ status or conversely, being removed.

This, combined with Application Programme Interfaces (APIs) or ‘Public Interest Algorithms’, which enables the user to keep track of the data-driven process that results in them being exposed to a certain post, might be workable if effective pilots for scaling are devised.

The final model that operates outside the confines of technology are community driven social mechanisms. An example of this is Telengana Police Officer Remi Rajeswari’s efforts to combat fake news in rural areas by using Janapedam — an ancient form of story-telling — to raise awareness about these issues.

Given the complex nature of the legal, social and political questions involved here, the quest for a ‘silver-bullet’ might be counter-productive.

Instead, it is essential for us to take a step back, frame the right questions to understand the intricacies in the problems involved and then, through a mix of empirical and legal analysis, calibrate a set of policy interventions that may work for India today.

For more details visit https://cis-india.org/internet-governance/blog/hindu-businessline-february-19-2019-arindrajit-basu-resurrecting-the-marketplace-of-ideas

Internet Speech: Perspectives on Regulation and Policy

akriti — 2019-04-01T16:38:54Z

The Centre for Internet & Society and the University of Munich (LMU), Germany are jointly organizing an international symposium at India Habitat Centre in New Delhi on April 5, 2019

Click to download the agenda

For more details visit https://cis-india.org/internet-governance/events/internet-speech-perspectives-on-regulation-and-policy

Response to the Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018

Gurshabad Grover, Elonnai Hickok, Arindrajit Basu, Akriti — 2019-02-07T08:06:41Z

In this response, we aim to examine whether the draft rules meet tests of constitutionality and whether they are consistent with the parent Act. We also examine potential harms that may arise from the Rules as they are currently framed and make recommendations to the draft rules that we hope will help the Government meet its objectives while remaining situated within the constitutional ambit.

This document presents the Centre for Internet & Society (CIS) response to the Ministry of Electronics and Information Technology’s invitation to comment and suggest changes to the draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018 (hereinafter referred to as the “draft rules”) published on December 24, 2018. CIS is grateful for the opportunity to put forth its views and comments. This response was sent on the January 31, 2019.

In this response, we aim to examine whether the draft rules meet tests of constitutionality and whether they are consistent with the parent Act. We also examine potential harms that may arise from the Rules as they are currently framed and make recommendations to the draft rules that we hope will help the Government meet its objectives while remaining situated within the constitutional ambit.

The response can be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/response-to-the-draft-of-the-information-technology-intermediary-guidelines-amendment-rules-2018

India should reconsider its proposed regulation of online content

gurshabad — 2019-01-24T16:59:07Z

The lack of technical considerations in the proposal is also apparent since implementing the proposal is infeasible for certain intermediaries. End-to-end encrypted messaging services cannot “identify” unlawful content since they cannot decrypt it. Presumably, the government’s intention is not to disallow end-to-end encryption so that intermediaries can monitor content.

The article was published in the Hindustan Times on January 24, 2019. The author would like to thank Akriti Bopanna and Aayush Rathi for their feedback.

Flowing from the Information Technology (IT) Act, India’s current intermediary liability regime roughly adheres to the “safe harbour” principle, i.e. intermediaries (online platforms and service providers) are not liable for the content they host or transmit if they act as mere conduits in the network, don’t abet illegal activity, and comply with requests from authorised government bodies and the judiciary. This paradigm allows intermediaries that primarily transmit user-generated content to provide their services without constant paranoia, and can be partly credited for the proliferation of online content. The law and IT minister shared the intent to change the rules this July when discussing concerns of online platforms being used “to spread incorrect facts projected as news and designed to instigate people to commit crime”.

On December 24, the government published and invited comments to the draft intermediary liability rules. The draft rules significantly expand “due diligence” intermediaries must observe to qualify as safe harbours: they mandate enabling “tracing” of the originator of information, taking down content in response to government and court orders within 24 hours, and responding to information requests and assisting investigations within 72 hours. Most problematically, the draft rules go much further than the stated intentions: draft Rule 3(9) mandates intermediaries to deploy automated tools for “proactively identifying and removing [...] unlawful information or content”.

The first glaring problem is that “unlawful information or content” is not defined. A conservative reading of the draft rules will presume that the phrase means restrictions on free speech permissible under Article 19(2) of the Constitution, including that relate to national integrity, “defamation” and “incitement to an offence”.

Ambiguity aside, is mandating intermediaries to monitor for “unlawful content” a valid requirement under “due diligence”? To qualify as a safe harbour, if an intermediary must monitor for all unlawful content, then is it substantively different from an intermediary that has active control over its content and not a safe harbour? Clearly, the requirement of monitoring for all “unlawful content” is so onerous that it is contrary to the philosophy of safe harbours envisioned by the law.

By mandating automated detection and removal of unlawful content, the proposed rules shift the burden of appraising legality of content from the state to private entities. The rule may run afoul of the Supreme Court’s reasoning in Shreya Singhal v Union of India wherein it read down a similar provision because, among other reasons, it required an intermediary to “apply [...] its own mind to whether information should or should not be blocked”. “Actual knowledge” of illegal content, since then, has held to accrue to the intermediary only when it receives a court or government order.

Given the inconsistencies with legal precedence, the rules may not stand judicial scrutiny if notified in their current form.

The lack of technical considerations in the proposal is also apparent since implementing the proposal is infeasible for certain intermediaries. End-to-end encrypted messaging services cannot “identify” unlawful content since they cannot decrypt it. Internet service providers also qualify as safe harbours: how will they identify unlawful content when it passes encrypted through their network? Presumably, the government’s intention is not to disallow end-to-end encryption so that intermediaries can monitor content.

Intermediaries that can implement the rules, like social media platforms, will leave the task to algorithms that perform even specific tasks poorly. Just recently, Tumblr flagged its own examples of permitted nudity as pornography, and Youtube slapped a video of randomly-generated white noise with five copyright-infringement notices. Identifying more contextual expression, such as defamation or incitement to offences, is a much more complex problem. In the lack of accurate judgement, platforms will be happy to avoid liability by taking content down without verifying whether it violated law. Rule 3(9) also makes no distinction between large and small intermediaries, and has no requirement for an appeal system available to users whose content is taken down. Thus, the proposed rules set up an incentive structure entirely deleterious to the exercise of the right to freedom of expression. Given the wide amplitude and ambiguity of India’s restrictions on free speech, online platforms will end up removing swathes of content to avoid liability if the draft rules are notified.

The use of draconian laws to quell dissent plays a recurring role in the history of the Indian state. The draft rules follow India’s proclivity to join the ignominious company of authoritarian nations when it comes to disrespecting protections for freedom of expression. To add insult to injury, the draft rules are abstruse, ignore legal precedence, and betray a poor technological understanding. The government should reconsider the proposed regulation and the stance which inspired it, both of which are unsuited for a democratic republic.

For more details visit https://cis-india.org/internet-governance/blog/hindustan-times-gurshabad-grover-january-24-2019-india-should-reconsider-its-proposed-regulation-of-online-content

Webinar on the draft Intermediary Guidelines Amendment Rules

Admin — 2019-01-18T02:13:23Z

CCAOI and the ISOC Delhi Chapter organised a webinar on January 10 to discuss the draft "The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018". Gurshabad Grover was a discussant in the panel.

The agenda of the discussion was:

A brief introduction to the draft highlighting the key issues[Shashank Mishra]
Invited experts sharing their view on the paper and questions asked [Nehaa Chaudhari, Paul Brooks, Arjun Sinha, Gurshabad Grover]
Open Discussion Q&A
Summarizing the session

A recording of the session can be accessed here

For more details visit https://cis-india.org/internet-governance/news/webinar-on-the-draft-intermediary-guidelines-amendment-rules

Internet Freedom at Crossroads - Common Paths towards Strengthening Human Rights Online

Admin — 2018-12-04T16:11:52Z

The 2018 Freedom Online Conference took place from 28 to 30 November 2018 in Berlin. Elonnai Hickok participated as a speaker.

Elonnai attended the Freedom Online Coalition Advisory Network meeting and larger Freedom Online Coalition conference. The agenda can be found here.

For more details visit https://cis-india.org/internet-governance/news/internet-freedom-at-crossroads-common-paths-towards-strengthening-human-rights-online

Community Standards Roundtable Conversations

Admin — 2018-10-16T14:01:55Z

Ambika Tandon was a participant in a roundtable organized by Facebook, School of Media & Cultural Studies, and Tata Institute of Social Sciences in Bengaluru on October 7, 2018.

The agenda for the roundtable was to discuss their community standards, particularly hate speech and harassment, and receive feedback from a feminist and gendered lens. Click to read more.

For more details visit https://cis-india.org/internet-governance/news/community-standards-roundtable-conversations

Net nanny meets muscular law

Admin — 2018-10-02T05:48:32Z

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

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

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

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

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

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

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

Cross-purposes

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

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

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

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

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

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

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

Stormy seas and safe harbours

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

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

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

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

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

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

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

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

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

Beyond criminalisation

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

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

India’s post-truth society

swaraj — 2018-09-12T12:16:31Z

The proliferation of lies and manipulative content supplies an ever-willing state a pretext to step up surveillance.

The op-ed was published in Hindu Businessline on September 7, 2018.

After a set of rumours spread over WhatsApp triggered a series of lynchings across the country, the government recently took the interesting step of placing the responsibility for this violence on WhatsApp. This is especially noteworthy because the party in power, as well as many other political parties, have taken to campaigning over social media, including using WhatsApp groups in a major way to spread their agenda and propaganda.

After all, a simple tweet or message could be shared thousands of times and make its way across the country several times, before the next day’s newspaper is out. Nonetheless, while the use of social media has led to a lot of misinformation and deliberately polarising ‘news’, it has also helped contribute to remarkable acts of altruism and community, as seen during the recent Kerala floods.

While the government has taken a seemingly techno-determinist view by placing responsibility on WhatsApp, the duality of very visible uses of social media has led to others viewing WhatsApp and other internet platforms more as a tool, at the mercy of the user. However, as historian Melvin Kranzberg noted, “technology is neither good nor bad; nor is it neutral”. And while the role of political and private parties in spreading polarising views should be rigorously investigated, it is also true that these internet platforms are creating new and sometimes damaging structural changes to how our society functions. A few prominent issues are listed below:

Fragmentation of public sphere

Jurgen Habermas, noted sociologist, conceptualised the Public Sphere as being “a network for communicating information and points of view, where the streams of communication are, in the process, filtered and synthesised in such a way that they coalesce into bundles of topically specified public opinions”.

To a large extent, the traditional gatekeepers of information flow, such as radio, TV and mainstream newspapers, performed functions enabling a public sphere. For example, if a truth-claim about an issue of national relevance was to be made, it would need to get an editor’s approval.

In case there was a counter claim, that too would have to pass an editorial check. Today however, nearly anybody can become a publisher of information online, and if it catches the right ‘influencer’s attention, it could spread far wider and far quicker than it would’ve in traditional media. While this does have the huge positive of giving space to more diverse viewpoints, it also comes with two significant downsides.

First, that it gives a sense of ‘personal space’ to public speech. An ordinary person would think a few times, do some research, and perhaps practice a speech before giving it before 10,000 people. An ordinary person would also think for perhaps five seconds before putting out a tweet on the very same topic, despite now having a potentially global audience.

Second, by having messages sent directly to your hand-held device, rather than open for anyone to fact-check and counter, there is less transparency and accountability for those who send polarising material and misinformation. How can a mistaken and polarising view be countered, if one doesn’t even know it is being made? And if it can’t be countered, how can its spread by contained?

The attention market

Not only is that earlier conception of public sphere being fragmented, these new networked public spheres are also owned by giant corporations. This means that these public spheres where critical discourse is being shaped and spread, are actually governed by advertisement-financed global conglomerates. In a world of information overflow, and privately owned, ad-financed public spheres, the new unit of currency is attention.

It is in the direct interest of the Facebooks and Googles of the world, to capture user attention as long as possible, regardless of what type of activity that encourages. It goes without saying that neither the ‘mundane and ordinary’, nor the ‘nuanced and detailed’ capture people’s attention nearly as well as the sensational and exciting.

Nearly as addicting, studies show, are the headlines and viewpoints which confirm people’s biases. Fed by algorithms that understand the human desire to ‘fit in’, people are lowered into echo chambers where like-minded people find each other and continually validate each other. When people with extremist views are guided to each other by these algorithms, they not only gather validation, but also now use these platforms to confidently air their views — thus normalising what was earlier considered extreme. Needless to say, internet platforms are becoming richer in the process.

Censorship by obfuscation

Censorship in the attention economy, no longer requires blocking of views or interrupting the transmission of information. Rather, it is sufficient to drown out relevant information in an ocean of other information. Fact checking news sites face this problem. Regardless of how often they fact-check speeches by politicians, only a minuscule percentage of the original audience comes to know about, much less care about the corrections.

Additionally, repeated attacks (when baseless) on credibility of news sources causes confusion about which sources are trustworthy. In her extremely insightful book “Twitter and Tear Gas”, Prof Zeynep Tufekci rightly points out that rather than traditional censorship, powerful entities today, (often States) focus on overwhelming people with information, producing distractions, and deliberately causing confusion, fear and doubt. Facts, often don’t matter since the goal is not to be right, but to cause enough confusion and doubt to displace narratives that are problematic to these powers.

Viewpoints from members of groups that have been historically oppressed, are especially harangued. And those who are oppressed tend to have less time, energy and emotional resources to continuously deal with online harassment, especially when their identities are known and this harassment can very easily spill over to the physical world.

Conclusion

Habermas saw the ideal public sphere as one that is free of lies, distortions, manipulations and misinformation. Needless to say, this is a far cry from our reality today, with all of the above available in unhealthy doses. It will take tremendous effort to fix these issues, and it is certainly no longer sufficient for internet platforms to claim they are neutral messengers. Further, whether the systemic changes are understood or not, if they are not addressed, they will continue to create and expand fissures in society, giving the state valid cause for intervening through backdoors, surveillance, and censorship, all actions that states have historically been happy to do!

For more details visit https://cis-india.org/internet-governance/blog/hindu-businessline-swaraj-paul-barooah-september-7-2018-indias-post-truth-society