Centre for Internet and Society

Tweets and twits

praskrishna — 2012-08-25T07:45:43Z

The orders issued by the Ministry of Communication and IT to block more than 300 items on the Internet, including Twitter handles, Facebook pages, YouTube videos, blogposts, pages of certain websites, and in some cases entire websites, tell a revealing story of a government that has simply not applied its mind to the issue of how to deal with hate speech, both cyber and traditional.

Published in the Hindu on August 25, 2012. Pranesh Prakash's blog post is quoted.

There can be no argument against taking down material that can incite violence, and some of the targeted content rightly needed to be blocked. But this should have been done transparently, with judicial oversight. In the present case, it is not clear what laws have been invoked to block the items specified in the four orders issued from August 18 to 21. Certainly, the orders themselves do not make reference to any law. As pointed out by the Centre for Internet and Society (http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism), if the government had acted under the Information Technology Act, the host servers of the affected sites should have been notified and given 48 hours to respond under the IT Rules of 2009; and if it used the emergency provision in the Rules, which are themselves opaque, the orders should have come up before an ‘examination of request’ committee within 48 hours. Another serious problem is that the orders do not mention the duration of the blocks.

Especially disturbing is the decision to block the Twitter handles of right-wing agitators and one pro-Hindutva journalist. Bad taste, warped logic and chauvinist comment do not, by themselves, add up to hate speech or criminal incitement. If an individual is really spreading hate through speech, print or the Internet, let the government proceed against him or her under the Indian Penal Code — where the courts will have the final word — rather than indulging in censorship that is pre-emptive and arbitrary. And mindless too: among the sites blocked is an anti-hate page on a Pakistani website which was one of the first to expose how fake photographs had been used to whip up Islamist passion on the Rakhine clashes in Myanmar. A London School of Economics-Guardian study of the 2011 London riots documents how Twitter was used extensively in a positive way, to organise community clean-up operations after the riots. On the other hand, their analysis of 2.5 million tweets showed, the response to messages inciting riots was ‘overwhelmingly negative’. The lesson from this is that it is possible to counter hate on social media through the same platform. This is really what the government should be doing, instead of the Sisyphean task of trying to block noxious content that will always find other ways of bubbling to the surface.

For more details visit https://cis-india.org/news/www-thehindu-com-opinion-editorial-aug-25-2012-tweets-and-twits

TV versus Social Media: The Rights and Wrongs

sunil — 2013-01-21T03:09:56Z

For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a toilet, and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Sunil Abraham's guest column was published in the Tribune on January 20, 2013.

Many in traditional media, especially television, look at social media with a mixture of envy and trepidation. They have been at the receiving end of various unsavoury characters online and consequently support regulation of social media. A common question asked by television anchors is "shouldn't they be subject to the same regulation as us?" This is because they employ the 'principle of equivalence', according to which speech that is illegal on broadcast media should also be illegal on social media and vice versa. According to this principle, criticising a bandh on national TV or in a newspaper op-ed or on social media should not result in jail time and, conversely, publishing obscene content, in either new or old media, should render you a guest of the state.

Given that Section 66-A of the Information Technology Act, 2000, places more draconian and arguably unconstitutional limits on free speech when compared to the regulation of traditional and broadcast media, those in favour of civil liberties may be tempted to agree with the 'principle of equivalence' since that will mean a great improvement from status quo. However, we must remember that this compromise goes too far since potential for harm through social media is usually very limited when compared to traditional media, especially when it comes to hate speech, defamation and infringement of privacy. A Facebook update or 'like' or a tweet from an ordinary citizen usually passes completely unnoticed. On rare occasion, an expression on social media originating from an ordinary citizen goes viral and then the potential for harm increases dramatically. But since this is the fringe case we cannot design policy based on it. On the other hand, public persons (those occupying public office and those in public life), including television journalists, usually have tens and hundreds of thousands friends and followers on these social networks and, therefore, can more consistently cause harm through their speech online. For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a public or residential toilet and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Ideally speech regulation should address the asymmetries in the global attention economy by constantly examining the potential for harm. This applies to both 'speech about' public persons and also 'speech by' them. Since 'speech about' public persons is necessary for transparent and accountable governance and public discourse, such speech must be regulated less than 'speech about' ordinary citizens. Let us understand this using two examples: One, a bunch of school kids referring to a classmate as an idiot on a social network is bullying, but citizens using the very same term to criticise a minister or television anchor must be permitted. Two, an ordinary citizen should be allowed to photograph or video-record the acts of a film or sports star at a public location and upload it to a social network, but this exception to the right of privacy based on public interest will not imply that the same ordinary citizen can publish photographs or videos of other ordinary citizens. Public scrutiny and criticism is part of the price to be paid for occupying public office or public life. If speech regulation is configured to prevent damage to the fragile egos of public persons, then it would have a chilling effect on many types of speech that are critical in a democracy and an open society.

When it comes to 'speech by' those in public office or in public life - given the greater potential for harm - they should be held more liable for their actions online. For example, an ordinary citizen with less than 100 followers causes very limited harm to the reputation of a particular person through a defamatory tweet. However, if the very same tweet is retweeted by a television anchor with millions of followers, there can be more severe damage to that particular person's reputation.

Many in television also wish to put an end to anonymous and pseudonymous speech online. They would readily agree with Nandan Nilekani's vision of tagging all - visits to the cyber cafe, purchases of broadband connections and SIM cards and, therefore, all activities from social media accounts with the UID number. I have been following coverage of the Aadhaar project for the past three years. Often I see a 'senior official from the UIDAI' make a controversial point. If anonymous speech is critical to protect India's identity project then surely it is an important form of speech. But, unlike the print media, which more regularly uses anonymous sources for their stories, television doesn't see clearly the connection between anonymous speech and free media. This is because many of the trolls that harass them online often hide behind pseudonymous identities. Television forgets that anonymous speech is at the very foundation of our democracy, i.e., the electoral ballot.

For more details visit https://cis-india.org/internet-governance/blog/sunday-tribune-january-20-2013-sunil-abraham-tv-vs-social-media

Trending Hate Against Muslims: Is Twitter Complicit?

Puja Bhattacharjee — 2019-10-23T00:54:41Z

Twitter claimed that it had ‘prevented’ the Hashtag while it had not.

The blog post by Puja Bhattacharjee was published in News Central on October 21, 2019. Pranesh Prakash was quoted in it.

In 2009, Twitter took down a trending hashtag. The hashtag in question started in South Africa and had the word “darkie” in it. That word is not a slur in South Africa, but it was used as a slur against the African Americans community in the USA. On receiving complaints, Twitter immediately removed that from trending topics though it was a clash of meanings between two different places.

On Sunday evening, a hashtag of more insidious nature was trending in India. The hashtag #मुस्लिमो_का_संपूर्ण_बहिष्कार, translated literally means “Total boycott of Muslims”. The incident is ominous given rising apprehension across the world that India is now in the grip of a violent form of Hindu Nationalism. The tweets in support of the hashtags were mostly from right-wing accounts, some of which not only called for the boycott of Muslims but also celebrated the persecution of Uighurs in China.

Speaking to NewsCentral24x7.com, a Twitter spokesperson claimed that it had ‘prevented’ the hashtag from trending: “There are Rules for trends and we have prevented this hashtag from trending as it is in violation of the Twitter Rules”. (Full statement at the end of the story)

However this was patently false since many users pointed out that the hashtag continued to trend even after Twitter’s statement. In Delhi, the hashtag continues to trend at number one. More disturbingly, as reported by The Wire some of the accounts tweeting in support of the hashtags are followed by the Prime Minister and several cabinet ministers.

Also Read: Need To Change Name To Save Myself From Sword Of Hate: Muslim Bureaucrat From M.P. On The Atmosphere Of Hate In Modi II

Pranesh Prakash, co-founder of Centre for Internet and Society, says that Twitter usually does not ban a hashtag. “They can remove it from trending and if people use it offensively, then they can ban that person or that tweet…. Twitter should put out a statement apologizing for and condemning this given they condemn white nationalists in the US.” he says.

The hashtag was started ostensibly in retaliation of the murder Kamlesh Tiwari, 45, the president of the Hindu Samaj Party. Over the weekend, the police arrested five people in connection to the murder.

However, Kamlesh Tiwari in his last Facebook Live video before his murder protested the removal of his security by the Yogi Adityanath government and trying to hatch a conspiracy to kill him. His mother echoed his sentiments and has come out to say that there is no communal angle to his murder.

The matter once again raises questions about the responsibility Big-Tech platforms like Twitter need to discharge in monitoring and combating hate speech. Many organizations in the USA, UK and Australia such as the Anti-Defamation League (ADL), the Women, Action and the Media (WAM!), Online Hate Prevention Institute and Sentinel Groups for Genocide Prevention have become increasingly invested in combating hate speech online by targeting Internet intermediaries and asking them to take greater responsibility in moderating content, in addition to raising awareness among users.

An interactive map showing the trends of the hashtag from October 20 evening till October 21 morning in the sub-continent.

However, in India, the government’s proposed changes to Section 79 of the IT Act for restricting hate speech has led to fears of widespread censorship. The Internet Freedom Foundation published a comprehensive blog on why such an amendment is undesirable.

In a report released in 2017, the Law Commission of India recommended broadening the existing provisions of hate speech to include other criteria that are based on their gender and sexuality.

“It does not look at underlying reforms. Like understanding the link to violence and whether it should only be a provision which should apply to members of a minority community -linguistic, caste, religion,” says Apar Gupta, executive director, Internet Freedom Foundation

He says if lawmakers are unwilling to substantively tinker with definitions in a very real and substantial way, they should come up with procedural safeguards instead.

Twitter or any social media company has two levels of obligation – its own obligations towards its users which is under the terms of service contract under which it can proactively take down a speech if there is a violation of those standards. “They have a degree of discretion to do it as well. This is where most of the content takedowns happen which also results in a certain amount of criticism because they lack the consistency desired by people,” says Gupta.

The second level of compliance is when a legal notice is sent by a judicial or executive authority. If they do not comply, their online immunity from liability for the content posted by the user can be removed and they can be prosecuted as an accessory or abettor to the content published on their platform. “Twitter can block the hashtag but what we are looking for is a much more credible law enforcement response based on the content of each tweet,” Gupta adds.

In her book, HATE: Why We Should Resist it With Free Speech, Not Censorship by Nadine Strossen, the author argues that that censorial measures are ineffective and do not promote equality. Instead, Strossen, recommends forceful counter-speech and activism.

“In 2016, a report was issued about counterspeech on Twitter, coauthored by a group of scholars from the United States and Canada. The report, which included the first review of the “small body” of existing research about online counterspeech, concluded that hateful and other “extremist” speech was most effectively “undermined” by counterspeech rather than by removing it,” she writes.

Editors Note: The hashtag discussed above is absolutely horrifying and historically widespread calls for ‘boycott’ have preceded genocide. While on one hand we cannot allow hate speech to become an excuse for governments to curb non-harmful, legal speech, the censor or counter debate cannot be allowed to become a veil for big-tech to wash its hands off the matter. There is now significant reportage which shows that hate speech essentially benefits social media platforms and therefore they are unwilling to curb it. In this specific case the double standards twitter has displayed in being prompt in one country while unresponsive in other is also a very disturbing aspect.

Full statement by Twitter:

“At Twitter our singular goal is to improve the health of the public conversation, including ensuring the safety of people who use our service. As outlined in our Hateful Conduct Policy, we do not tolerate the abuse or harassment of people on the basis of religion. As per our Help Center, there are Rules for trends and we have prevented this hashtag from trending as it is in violation of the Twitter Rules. If people on Twitter see something that violates the Twitter Rules, the most important thing they can do is report it, by clicking the drop down arrow at the top of the Tweet and selecting “Report Tweet.”

For more details visit https://cis-india.org/internet-governance/news/news-central-october-21-2019-puja-bhattacharjee-trending-hate-against-muslims

To regulate Net intermediaries or not is the question

sunil — 2012-08-26T06:12:48Z

Given the disruption to public order caused by the mass exodus of North-Eastern Indians from several cities, the government has had for the first time in many years, a legitimate case to crackdown on Internet intermediaries and their users.

Sunil's column was published in the Deccan Herald on August 26, 2012.

There was, of course, much room for improvement in the manner in which the government conducted the censorship. But the policy question that becomes most pertinent now is: do we need to regulate Internet intermediaries further? The answer is yes and no.

There are areas where these intermediaries need to be regulated in order to protect citizen and consumer interest. But to deal with rumour-mongering and hate speech, there is sufficient provisions in Indian law to deal with the current disruption in public order and any similar disruptions in the future.

It is a common misunderstanding to assume that all civil society organisations that advocate civil liberties on networked technologies are regulatory doves that wish to dismantle regulation of the private sector and allow them complete free hand for innovation and, perhaps, causing harm to public interest.

The opposite is also not necessarily true. We are not hawks, those that believe in maximal regulation of the private sector. The state should regulate the private sector in areas where the citizens are unable to protect their own interest and self-regulation is inadequate. But there are many other areas where regulation needs to be dismantled in the interests of citizen and public interest.

Dr Rohan Samarajiva, founder of a Colombo-based regional policy think tank LIRNEasia, explains this best using the ‘law of soft toys’. When his daughter was young he told her that in Sri Lanka there was a law which mandated that every time she got a new soft toy, she would have to necessarily give away another one.

The regulatory lesson here is: the mandate for regulation cannot keep endlessly expanding. As the government moves into new areas of regulation, it should also exit other older areas where regulatory rupee is providing limited returns. These decisions should be based on evidence of harm caused to citizens and consumers. The following are a list of areas where regulation is required for Internet intermediaries:

Privacy: India needs the office of the privacy commissioner established and an articulation of national privacy principles through the enactment of the long awaited Privacy Act. This privacy commissioner should be able to investigate complaints against intermediaries, proactively investigate companies, order remedial action and fine companies that violate the principles and other policies in force. Remedial action could require change in policies, features, data retention policies and services etc.

Competition: Many of these intermediaries have been taken to court on anti-trust complaints, fined and subjected to remedial action by regulators in America and Europe.

Earlier this year, BharatMatrimony.com has filed a complaint against Google at the Competition Commission of India (CCI) alleging anti-competitive practices in its Adwords program. In addition, based on a report submitted by Consumer Unity & Trust Society (CUTS), a civil society organisation, CCI has initiated an investigation into Google's search engine for anti-competitive practices. If they are found guilty of breaking competition law they could be fined up to 10 per cent of their turnover.

Speech: Article 19(2) of the Constitution permits Parliament to enact laws that place eight categories of reasonable restrictions on speech. Unfortunately, the Information Technology Act and its associated rules attempts to expand these restrictions and in addition does not comply with the principles of natural justice. Ideally, all those impacted by the censorship should be informed and should be able to seek redress and reinstatement for the censured speech.

The policy sting operation conducted by the Centre for Internet and Society (CIS) last year demonstrated that intermediaries are risk-averse and tend to over-comply with takedown notices. There is a clear chilling effect on speech online and it is important that the Act and rules be amended at the earliest.

Intellectual Property: Policies that fall under this inappropriate umbrella term for many differently configured laws make the yet unproven fundamental assumption that granting limited monopolies to rights holders, usually corporations, will result in greater innovation. However, citizen and consumer interest is protected through provisions for exceptions and limitations in laws such as copyright, patent, trademarks etc. Some examples of these safeguards that guarantee access to knowledge in Indian law include compulsory licences, patent opposition, fair-dealing etc.

There are many other areas where special treatment may be required for intermediaries. For example tax law needs to handle evasion techniques like the Double Irish and the Dutch Sandwich. Given my lengthy wish-list of regulation of Internet intermediaries, why then has CIS become an NGO member of the Global Network Initiative?

This is because I believe that technological development happen too quickly for us to purely depend on government regulation. Self-regulation has an important role to play in keeping up with these rapid changes. As self-regulatory norms mature they could be formalised into policy by the government.

Therefore, I consider it a privilege that CIS has been accepted as a member of this self-regulatory initiative and we influence GNI norms using our Indian perspective. However, when self-regulation fails to protect public interest, then the government must step in to regulate Internet intermediaries.

For more details visit https://cis-india.org/internet-governance/www-deccan-herald-aug-26-2012-to-regulate-net-intermediaries-or-not-is-the-question

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

Through the looking glass: Analysing transparency reports

Torsha Sarkar, Suhan S and Gurshabad Grover — 2019-11-02T05:48:59Z

An analysis of companies' transparency reports for government requests for user data and content removal

Over the past decade, a few private online intermediaries, by rapid innovation and integration, have turned into regulators of a substantial amount of online speech. Such concentrated power calls for a high level of responsibility on them to ensure that the rights of the users online, including their rights to free speech and privacy, are maintained. Such responsibility may include appealing or refusing to entertain government requests that are technically or legally flawed, or resisting gag orders on requests. For the purposes of measuring a company’s practices regarding refusing flawed requests and standing up for user rights, transparency reporting becomes useful and relevant.Making information regarding the same public also ensures that researchers can build upon such data and recommend ways to improve accountability and enables the user to understand information about when and how governments are restricting their rights.

For some time in the last decade, Google and Twitter were the only major online platforms that published half-yearly transparency reports documenting the number of content take down and user information requests they received from law enforcement agencies. In 2013 however, that changed, when the Snowden leaks revealed, amongst other things, that these companies were often excessively compliant with requests from US’ intelligence operations, and allowed them backdoor surveillance access to user information. Subsequently, all the major Silicon Valley internet companies have been attempting to publish a variance or other of transparency reports, in hopes of re-building their damaged goodwill, and displaying a measure of accountability to its users.

The number of government requests for user data and content removal has also seen a steady rise. In 2014, for instance Google noted that in the US alone, they observed a 19% rise for the second half of the year, and an overall 250% jump in numbers since Google began providing this information. As per a study done by Comparitech, India sent the maximum number of government requests for content removal and user data in the period of 2009 - 2018.8 This highlights the increasing importance of accessible transparency reporting.

Initiatives analysing the transparency reporting practices of online platforms, like The Electronic Frontier Foundation (EFF)’s Who Has Your Back? reports, for instance, have developed a considerable body of work tracing these reporting practices, but have largely focused at them in the context of the United States (US). In our research, we found that the existing methodology and metrics to assess the transparency reports of online platforms developed by organisations like the EFF are not adequate in the Indian context. We identify two reasons for developing a new methodology:

Online platforms make available vastly different information for US and India. For instance, Facebook breaks up the legal requests it receives for US into eight different classes (search warrants, subpoenas, etc.). Such a classification is not present for India. These differences are summarised in Annexure
The legal regimes and procedural safeguards under which states can compel platforms to share information or take content down also differ. For instance, in India, an order for content takedown can be issued either under section 79 and its allied rules or under section 69A and its rules, each having their own procedures and relevant authorities. A summary of such provisions for Indian agencies is given in Annexure 3.

These differences may merit differences in the methodology for research into understanding the reporting practices of these platforms, depending on each jurisdiction’s legal context.

In this report, we would be analyzing the transparency reports of online platforms with a large Indian user-base, specifically focusing on data they publish about user information and takedown requests received from Indian governments’ and courts.

First, we detail our methodology for this report, including how we selected platforms whose transparency reports we analyse, and then specific metrics relating to information available in those reports. For the latter, we collate relevant metrics from existing frameworks, and propose a standard that can be applicable for our research.

In the second part, we present company-specific reports. We identify general trends in the data published by the company, and then compare the available data to the best practices of transparency reporting that we proposed.

Download the full report. The report was edited by Elonnai Hickok. Research assistance by Keying Geng and Anjanaa Aravindan.

For more details visit https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass

Three reasons why 66A verdict is momentous

pranesh — 2015-03-29T16:22:51Z

Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.

The article was published in the Times of India on March 29, 2015.

It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.

The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.

The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.

There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.

Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.

Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.

For more details visit https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous

Thousands go online against 66A

praskrishna — 2012-11-30T06:40:38Z

An online petition aimed at amending section 66A of the Information Technology (IT) Act and re-examining internet laws has garnered 3,000 signatures since it began on Tuesday — two days before Kapil Sibal, telecom and IT minister, chairs a meeting with the cyber regulation advisory committee.

This article by Apoorva Dutt was published in DNA on November 29, 2012. Pranesh Prakash is quoted.

The petition, anchored on Change.org, a platform for social initiatives, was started by Bangalore-based advocate Gautam John after two girls were arrested for their Facebook post on imposing a bandh in the city on the day Shiv Sena chief Bal Thackeray was cremated. Following their arrests, Shaheen Dhada has deleted her Facebook account while her friend Rini Srinivasan who merely liked the post has opened a new account on the social networking site. However, she has vowed to refrain from making political statements.

John is blunt about the legislative effect an online petition can have. l Turn to p8.

“Honestly, I don’t believe that a petition can change laws, but it gives concerned citizens a platform for documenting their concern in such troubling scenarios. To some extent, this sort of petition can represent a civil society’s point of view. No more can a government authority say ‘only NGOs care about an issue’. Now they know – thousands of ordinary people care,” John said.

Pranesh Prakash, policy director at the Centre For Internet and Society in Bangalore, points out the flaws in section 66A that have been exploited in cases like the Palghar incident. “Section 66A is very broadly-worded and the punishment (three years imprisonment) is excessive,” he said. “The law was borrowed – that too badly – from a British law. There are many a things greatly flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the winter session of Parliament.”

The petition also aims to organise a meeting of the civil society stakeholders to look into these concerns. A similar meeting was scheduled to be held in August, but it did not take place.

Sudarshan Balachandran of Change.org is the lead campaigner and organiser of the petition. He hopes to hand over a copy of the petition to Sibal during the meeting on Thursday. “Sibal has gone on record to say that they will examine the law, and if they feel it doesn’t work, it will be junked. So I am hopeful,” said Balachandran.

For more details visit https://cis-india.org/news/dnaindia-nov-29-2012-apoorva-dutt-thousands-go-online-against-66a

Third South Asian Meeting on the Internet and Freedom of Expression

praskrishna — 2013-01-17T07:16:58Z

Internet Democracy Project, Voices for Interactive Choice & Empowerment and Global Partners & Associates are organizing this event in Dhaka on January 14 - 15, 2013.

Pranesh Prakash is moderating the session on "Understanding cyber security and surveillance in South Asia today". Chinmayi Arun is speaking in this panel.

The Third South Asian Meeting on the Internet and Freedom of Expression seeks to address the question of how freedom of expression on the Internet is best protected by taking as its starting point two of the biggest challenges for freedom of expression online in South Asia today: hate speech online on the one hand, and cyber security and surveillance on the other.

The meeting seeks to investigate how these challenges affect freedom of expression on the Internet as well as how they can be addressed most effectively while protecting free speech online. It will also touch briefly on the important question of what kind of Internet governance processes are most likely to ensure the desired outcomes materialise.

A very short history of the South Asian Meeting on the Internet and Freedom of Expression
The first South Asian Meeting on the Internet and Freedom of Expression took place in March 2011 in Delhi, and mapped the many challenges for free speech online in our region, as an input into the report on the Internet and freedom of expression of UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue.

The second South Asian Meeting, in Kathmandu in November 2011, assessed the extent to which policy and regulation in the South Asian countries complied with the recommendations Mr. La Rue made in his report.

This third meeting will now build on these earlier efforts by bringing together experts from civil society, business, the research community and other stakeholder groups from across the region to discuss two of the biggest shared challenges for freedom of expression online in South Asia today in detail: the rising visibility of hate speech on the one hand, and the impact of discourses regarding cyber security and surveillance on the other.

Why focus on hate speech and security/surveillance now?
Since UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue, presented his report on the Internet and freedom of expression to the UN Human Rights Council in June 2011, the complexity of this topic has received growing recognition. However, not all trends that La Rue had pointed out as directly affecting freedom of expression online – from access to the Internet to cyber attacks – are equally important in the South Asian region. Detailed analysis in several South Asian countries has shown that, though Internet penetration rates remain fairly low, most countries do possess, for example, the political will crucial to improve these figures. The two trends that seem to be of greatest concern in our region are that of the fight against hate speech, and the impact on freedom of expression of cyber security and surveillance measures. The latter is foregrounded for a variety of reasons ranging from the safety of individual users to national security.

Incidentally, across the region, as in many parts of the world, hate speech and cyber security have also been among the most important reasons governments have quoted to justify greater government control over the Internet. At the national level, this has at times manifested itself through the approval and implementation of legislation that has far-reaching consequences for freedom of speech online, without consulting many of the stakeholders who are affected at any point in time. At the global level, we see a growing number of proposals by governments that would effectively expand their collective powers to regulate the Internet, though with varying levels of involvement of other stakeholders envisioned.

Yet while governments' intentions when imposing censorship or approving surveillance measures may at times be in doubt, it is difficult to deny that the Internet has facilitated a new proliferation of hate speech, as well as that it has thrown up new security challenges that couldn't even be imagined before.

It is therefore our contention that the challenges of hate speech online and of ensuring cyber security in our region are real, and need to be addressed head-on if we are to strengthen and protect the right to freedom of expression online. For this reason, the meeting seeks to investigate both the precise nature of these challenges and what Internet governance mechanisms we need to evolve to ensure that they can be addressed most effectively whilst upholding and strengthening the right to freedom of expression. If we are to take the challenges the threats of hate speech and cyber security policy embody seriously yet also aim to uphold and strengthen the right to freedom of expression online, then what are the solutions we require? And who will need to be responsible for implementing them?

Participants
Taking into account the many parallels in the shape problems of hate speech and cyber security and surveillance take across the South Asian region as a result of shared cultures and historical legacies alike, participants will be invited from Bangladesh, India, Nepal, Pakistan, Afghanistan, Sri Lanka and the Maldives. Moreover, as solutions to these problems will invariably require collaboration among various stakeholders in the Internet governance field in order to be effective, participants will be drawn from a wide variety of stakeholder groups, including civil society, business, government, academia and the media from across the region. In this way, the meeting hopes tofacilitate a South Asia wide, multistakeholder dialogue, to learn, discuss and evolve more detailed thinking on these topics for one and a half days. The meeting will come to an end with a public event at the end of the second day.

The meeting will use a variety of formats, including key note presentations, panel discussions, case studies and small group conversations.

Agenda

January 14, 2013

9.00-09.45	Welcome and introductions to participants
09.45-10.15	Introduction to the meeting: the challenge that hate speech online and cyber security/surveillance pose to freedom of expression on the Internet – Dixie Hawtin Intro: Internet governance and human rights issues in general Why is this event focussed on hate speech and surveillance?
10.15-10.45	Tea/coffee break
10.45-12.15	The challenge of hate speech on the Internet in South Asia Strengthening the right to freedom of expression to curtail hate speech (Anja Kovacs) Three country perspectives, from the Maldives (Mariyath Mohamed), Pakistan (tbc), and Bangladesh (Salim Khan) Moderator: Bishakha Datta
12.15-13:30	Lunch
13.30-14.00	Keynote: Thinking about a rights-based approach to cyber security and surveillance as it relates to speech – KS Park
14.00-15.30	Understanding cyber security and surveillance in South Asia today With Three country perspectives from Bangladesh (Mohammad Rahman), Nepal (Kailash Prasad Neupane) and India (Chinmayi Arun). Moderator: Pranesh Prakash
15.30-16:00	Tea/coffee break
16.00-17.30	Legal and ethical questions and challenges when addressing cyber security and surveillance: two case studies – Rohan Samarajiva

January 15, 2013

9.00-9.15	Introduction to day 2
9.15-9.45	Cybersecurity, surveillance and hate speech online – key issues that need to be addressed in governance in order to protect Internet freedom of expession. This session will discuss particular issues that have relevance for both cyber security debates and hate speech issues in greater depth. Four topics that will be addressed are: The question of anonimity (KS Park) Cross-border cooperation and other jurisdictional issues in context of cloud computing and crossborder data flows and storage (Aditya Rao) Domain Names and registration (Babu Ram Aryal) Intermediaries as law enforcers (Suman Pradhan) Moderator: Shahzad Ahmed
10.45-11.00	Tea/coffee break
11.00-13.00	What kind of solutions could a rights-based approach throw up to the challenges raised so far in the meeting? Open discussion in groups and plenary, following key note speaker, Bulbul Monjurul Ahsan
13.00-13.30	Summing up and thank you
13.30-15.00	Lunch
15:00 – 16:00	Meeting participants move to venue for public meeting, tea/coffee break and arrival of wider public
16.00-18.30	PUBLIC EVENT: The Internet and freedom of expression Confirmed speakers include: Abu Taher, Info Commissioner; Iftekharuzzaman, Executive Director, Transparency International Bangladesh; Sarah Hossain, Lawyer and Honorary Executive Director, BLAST; Shaheen Anam, Executive Director, Manusher Jonno Foundation; Monjurul Ahsan Bulbul, eminent journalist and CEO, Boishakhi Television; and Rohan Samarajiva, Chair and CEO, LIRNEasia.

List of Participants

Aditya Rao, Senior Associate, Amarchand Mangaldas, India
Ahmed Swapan, Executive Director, VOICE, Bangladesh
Amrit Pant, General Secretary, Computer Association of Nepal & President, Information Technology Development Society, Nepal
Anja Kovacs, Project Director, Internet Democracy Project, India
Babu Ram Aryal, President, Internet Society, Nepal Chapter, Nepal
Binaya Guragain, Coordinator of Programs, Equal Access, Nepal
Bishakha Datta, Wikimedia Foundation Board Member & Co-founder, Point of View, India
Chinmayi Arun, Assistant Professor, National Law University Delhi & Fellow, Centre for Internet and Society, India.
Dixie Hawtin, Project Manager for Digital Communications and Freedom of Expression, Global Partners and Associates, UK
Farhana Rumki, Associate Programme Coordinator, VOICE, Bangladesh
Kailash Prasad Neupane, Chief of Legal Section, Spokesperson, Secretary and Registrar, Nepal Telecommunications Authority, Nepal
Khairuzzaman Kamal, Founder Secretary General of Bangladesh Manobadhikar Sangbadik Forum & Senior Reporter at Bangladesh Sangbad Sangstha, Bangladesh
Khawaza Mainuddin, Executive Editor, ICE Business Times Magazine, Bangladesh
K S Park, Executive Director, the PSPD Public Interest Law Center & Professor, Korea University Law School, South Korea
Mariyath Mohamed, Journalist, Minivan News, Maldives
Mohammad Nazmuzzaman Bhuian Emon, Associate Professor, Department of Law, University of Dhaka, Bangladesh
Mohammad Shahriar Rahman, Assistant Professor, Department of Computer Science and Engineering, University of Asia Pacific & Head, Center for IT Security and Privacy, Bangladesh
Moiyen Zalal Chowdhury, Community Manager, Somewhere.In & Norad Fellow,Bangladesh
Monjurul Ahsan Bulbul, Chair, International Press Institute & Editor-in-chief and CEO,Boiskakhi TV, Bangladesh
Pranesh Prakash, Policy Director, Centre for Internet and Society, India
Prasanth Sunganathan, Counsel, Software Freedom Law Centre, India
Rezaur Rahman Lenin, Research Fellow, VOICE, Bangladesh
Richa Kaul Padte, Writer, India
Rohan Samarajiva, Chair and CEO, LIRNEasia, Sri Lanka
Saleem Samad, Columnist & Correspondent at Reporters without Borders, Bangladesh
Salimullah Khan, Writer and Professor, Stamford University, Bangladesh
Sana Saleem, Director, Bolo Bhi, Pakistan
Santosh Sigdel, Advocate and Vice President, Internet Society, Nepal Chapter, Nepal
Shahzad Ahmed, Country Director, Bytes for All, Pakistan
Shehla Rashid Shora, Project Officer, Internet Democracy Project, India
Shehnaz Banu, Media and Communication Officer, Alliance for Social Dialogue, Bangladesh
Soheil Zafar, Editor, Unmochan Blog & TV Producer and Researcher, 71 Television, Bangladesh
Suman Lal Pradhan, CEO, Websurfer, Nepal
Sushma Luthra, Event Coordinator, India
Syeda Fedous Jana, Managing Director and Co-Founder of Somewhere.In, Bangladesh
Tahmina Rahman, Director Bangladesh and South Asia Region, Article 19, Bangladesh
Vasana Wickremasena, Executive Director, Centre for Integrated Communication Research and Advocacy, Sri Lanka

For more details visit https://cis-india.org/news/third-south-asian-meeting-on-internet-and-freedom-of-expression

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?

jyoti — 2015-04-17T23:59:34Z

Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.

The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.

Conditions qualifying intermediary for exemption and obligations not related to exemption

The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a “marketplace of ideas”. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.

S. 69A grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The 2009 rules allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.

There are two key aspects of both these provisions that must be noted:

a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”

b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes “intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.” The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.

Subjective Determination of Knowledge

The provisions for exemption laid down in S. 79 do not apply when they receive “actual knowledge” of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down “upon obtaining knowledge by itself” and “brought to actual knowledge” under Rule 3(4) in the same manner as 79(3)(b).

Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term “unlawful acts” and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, “the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”

By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with takedown requests from non-government entities and has made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2).

Procedural Safeguards

The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order.

Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices.

Accountability

The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.

Transparency

The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India.

The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content.

The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists.

For more details visit https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability

The state. And the rage of the cyber demon

praskrishna — 2012-09-03T11:03:53Z

The Internet might be a Pandora’s box. But should the government be wasting time regulating the cacophony?

Shougat Dasgupta's article was published in Tehelka, Vol 9, Issue 36, Dated September 8, 2012. Pranesh Prakash is quoted.

SOME YEARS ago a cartoon was doing the rounds that caught in a few sharp strokes the selfimportance and self-righteousness of the Internet warrior. A man sits hunched at his computer, the keyboard lit with his fervour. Not looking away from the screen, he has a terse, impatient exchange with his partner off-panel: ‘Are you coming to bed?’ ‘I can’t. This is important.’ ‘What?’ ‘Someone is wrong on the Internet.’ It is the anonymous exchange that gives cyber debates their peculiar animus; that anonymity coupled with the low stakes, as is famously said of academic politics, is what makes the sniping so bitter and vicious. The complaints about social media like Twitter or the comment sections on blogs have mostly centred on the incivility of the discourse, on ‘trolls’ too eager to throw rotting vegetables at journalists, politicians, celebrities unused to such irreverence. But action taken by the government in the last fortnight to block content from over 300 websites and a dozen Twitter accounts imputes a far more vitiating effect on society than the mere puncturing of already overinflated egos.

Kapil Sibal, Minister for Communications & Information Technology, has said in interviews that the government’s intent was to “protect the victims” from these “mischievous acts happening through these sites and blogs”. There is, by now, little doubt that the threats and fake pictures of slain Muslims spread through mobile phones and social media, “disseminating misinformation” in the minister’s phrase, helped exacerbate tensions and fears. There is equally little doubt that what action the government took was both late and clumsy: blocking blogs that debunked the rumours and morphed images that the government held responsible for causing panic; blocking web pages of international news organisations such as The Telegraph and Al-Jazeera; blocking Twitter accounts of journalists, the government’s political opponents, accounts parodying the prime minister, even people who tweeted mostly about information technology and cricket. Like a giant in clown shoes chasing a sprite, the government has looked lumbering and foolish, led a merry dance by light-footed ‘netizens’, while the rest of us pointed and laughed.

Can the government’s actions be at all justified? Appearing on NDTV’s ‘We the People’, R Chandrashekhar, Secretary, Department of Information Technology, argued that “once a law enforcement agency has made an assessment you act first and then make corrections as you go along”. In essence, extraordinary times call for extraordinary measures, which along with concern for ‘national security’ is trotted out by every democratic government accused of ignoring civil liberties. Congress spokesperson Manish Tewari, on the same programme, claimed that the “mandate of section 69a of the Information Technology Act and the rules with regard to safeguards and blocking is fairly clear and rule 9 allows the government, if it thinks that there’s an expedient situation in order to protect the sovereignty of the State or public order, to go ahead with this blocking on an interim basis”.

We will discuss the section being referred to and the 2011 guidelines for intermediaries later but for now let’s accept the government’s argument that it acted in the face of a clear and present danger, to borrow from Oliver Wendell Holmes, the famous 19th-century US Supreme Court Justice. Kharan Thapar, citing another of Holmes’s shopworn phrases, wrote that “[ j]ust as it’s not acceptable to shout fire in a crowded cinema hall for the fun of it, it cannot be permitted to deliberately frighten helpless innocent people who, for whatever reason, believe you and panic”. Thapar is making the point that free speech is not without its responsibilities. He does so, however, using a long discredited cliché and compounds this error with condescension, refusing to grant people (“helpless”, “innocent”, like babies) their full agency. Besides, the government only acted from 18 August to limit text messaging, already months after initial images of supposed Burmese atrocities against Muslims had been widely circulated to stir anger. It also chose to block webpages and Twitter handles, some for spurious, even mystifying reasons. The result has been embarrassment. Acting arbitrarily in the name of communal harmony to prevent damage after terrible damage has already been done, does little to convince the people you are supposedly protecting that you have the situation in hand.

The government has left itself open to being serially lectured about free speech by the US government, by journalists (particularly Kanchan Gupta, whose apparently blocked Twitter account has made him a patron saint of free speech), by hysterical twitterers (ok, ‘tweeple’) drawing an entirely ridiculous parallel to the Emergency, and most egregiously by Narendra Modi. Presumably, Modi, by blackening his display picture was not commenting on the black irony of a man who bans books mourning constraints on freedom of speech. Pranesh Prakash of the Bengaluru-based Centre for Internet and Society (CIS), a trenchant critic of the government’s recent blocks (social media not coal) and the “horrendously drafted” legislation that permits the leeway for such indiscriminate action, says that “people [were] losing a sense of reality”.

	He points to the criticism of the government’s blocking of parodies of the prime minister’s Twitter account. “An underreported part of this whole controversy,” he says,“is Twitter’s own terms of service and one parody account in particular violates those terms.” He confesses to “having to look quite closely” to tell the PMO account from PMO, which substitutes a zero for the letter ‘o’. Also, according to sources, a letter sent last year by the government to the likes of Google and Facebook asking them to screen for offensive content specifically excepted parody and satire. If accurate, this underscores that the Prime Minister’s Office did not have a problem with parody but a genuine, if peculiar, fear of misinformation stemming from the six accounts it asked Twitter to remove.

He points to the criticism of the government’s blocking of parodies of the prime minister’s Twitter account. “An underreported part of this whole controversy,” he says,“is Twitter’s own terms of service and one parody account in particular violates those terms.” He confesses to “having to look quite closely” to tell the PMO account from PMO, which substitutes a zero for the letter ‘o’. Also, according to sources, a letter sent last year by the government to the likes of Google and Facebook asking them to screen for offensive content specifically excepted parody and satire. If accurate, this underscores that the Prime Minister’s Office did not have a problem with parody but a genuine, if peculiar, fear of misinformation stemming from the six accounts it asked Twitter to remove.

NONE OF this is to say that the government, in its haste, acted with reason. Certainly, it has since last year been working assiduously to exert at least some control over online content. The rules from April last year updating sections of the Information Technology Act, 2000, requires “due diligence” from companies like Twitter, or Facebook, to not “host, display, upload, modify, publish, transmit, update or share any information that… is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever…” Disparaging? Encouraging gambling? Well, gambling, at least in casinos, is lawful in Goa and Sikkim. No wonder Kapil Sibal felt he was on firm legal ground when he complained in December about “derogatory pictures” of Sonia Gandhi and Manmohan Singh that the government had culled from Facebook accounts.

Prakash, of the CIS, describes the Information Technology Act, particularly sections 69a and 66 as “having issues and being badly worded”. The powers it gives the government are too intrusive and that the prison sentences for offenders “are greater than those for death by negligence”. What he finds most troubling is how little transparency exists around issues of censorship; how, for instance, there is no easily accessible central list of banned books. “How,” he asks, “are people even supposed to know if their website or Twitter account is blocked if the government won’t issue proper notices and lists?” Our democratically elected government appears fond of the aristocratic maxim to never contradict, never explain, never apologise, as if hauteur and bluster are adequate substitutes for communication and we are subjects rather than citizens.

Seen in isolation, the blocking of websites and rationing of text messages is just a comical bungle by an unwieldy, Luddite administration. In the context of the last 12 months though, the government’s recent actions are a logical extension of its drive to bring the Internet to heel. The unregulated nature of the Internet is a particular bugbear of this government. It had already made a proposal to the United Nations in October last year, at the 66th session of the General Assembly, for the institution of a Committee for Internet- Related Policies. This 50-nation body would be tasked not to control the Internet, “or allow Governments to have the last word in regulating the Internet, but to make sure that the Internet is governed not unilaterally, but in an open, democratic, inclusive and participatory manner, with the participation of all stakeholders”. For all the incompetence the government has displayed, both most recently and in previous attempts to censor Internet content, it asks an important question about the future of Internet regulation, about the need for multilateral debate and international consensus.

TEHELKA, as cyber chatter about the blocked sites grew increasingly frenzied, asked its online readers to define the forum provided by social media. Most agreed that Twitter, for instance, was a public space, a place to give vent to private thoughts publicly with, if wanted or needed, the comfort of anonymity. The metaphor used is often that of a public square or town hall. I’ve always thought of Twitter as a carnival — a space, as defined by the Russian literary theorist Mikhail Bakhtin, where the existing social order is overturned, where social pieties are profaned. Twitter, like carnival, appeared to me an exhilarating space. This is utterly naïve. The fact is that Twitter is not a public space, it is privately owned and its investors are in the business of revenue generation and profit. This means Twitter’s terms of service are subject to change, as is its cooperation with governments over the private information it controls and owns.

Rahul Bose, the actor, told me in a conversation about social media that he thinks individual freedom is increasingly an “illusion”, that the very idea has become “laughable”. We live our lives, particularly our online lives, under the unblinking gaze of government: “You don’t need a close circuit camera at Flora Fountain to know you’re being watched, that every piece of information is on a file somewhere.” (This is probably not quite true of our dozy government.) It is indisputable that private entities such as Facebook and Twitter hold enormous amounts of information about individuals. In that light, surely, the Indian government is correct about the need for multilateral oversight of a system currently beholden in significant ways to the United States. ICANN, the Internet Corporation for Assigned Names and Numbers, for instance, still makes only a token gesture at global participation and any question of greater United Nations involvement is generally met with US suspicion.

Arguably, the Indian government doesn’t go far enough in its call for greater inclusivity in the governance of the Internet. The academic Jeremy Malcolm, an influential figure in discussions about Internet governance, has written that the World Summit on the Information Society has “established at the level of principle that governance of the Internet should be a transparent, democratic and multilateral process, with the participation of governments, private sector, civil society and international organisations, in their respective roles”. More immediate, perhaps, is the question of how a democratic country, committed to free speech, should regard social media.

This is not a discussion confined to India. During the August 2012 London riots, David Cameron threatened to ban people suspected of planning criminal activity from using Facebook, Twitter, and Blackberry Messenger. In words similar to those used by Sibal, Cameron spoke about reminding these companies of their responsibilities. In an interview with TEHELKA, Congress General Secretary Digvijaya Singh held close to the party line, insisting that “anything that incites violence is problematic, as is anything that is factually incorrect, and must be removed”. He envisages a future where online exchanges are governed by the same rules as public life, governed by similar cultural codes and basic civility. This is, it has to be said, an optimistic view of public life.

There are, as discussed earlier, as many different ways to see online exchanges as there are Internet users. The Internet’s shapelessness, its Moby Dick-like vast blankness, makes it impossible to apply the same standards to conversation on Twitter or Facebook, even if it is in print and in public, as you might apply to a magazine article. Pranesh Prakash points out that “while some people may see Twitter as akin to friends talking in the pub, others use the service as a bulletin board”. When I propose to Prakash the idea of an ombudsman to monitor online dialogue in the same way an independent press commission might monitor newspaper reports, he makes a cogent rebuttal: “There is no ombudsman for regular speech, or to outline what you can or cannot say from a podium. Besides, there are laws that deal with defamation, slander and unless there is a requirement for an extra-legal authority I cannot see the need for an ombudsman.”

Much of the debate over the last couple of weeks has devolved, as so much debate in all our media, mainstream or online, does, into grandstanding — in this instance about ‘freedom of speech’ versus the national security imperative. This is to miss the woods for the trees. For all its heavy-handedness, the Indian government is correct to be concerned about oversight of the Internet and correct that not enough stakeholders are currently involved in its governance. Cant about freedom of speech cannot change the fact that the government is also correct that in a precariously held together democracy comprising various, widely different cultures and religions, certain standards of respectful speech are necessary. Of course, we can and should argue those standards and there needs to be a national conversation about the strictures of Internet legislation in India. Still, let us not pretend that the mob mentality of political discourse on the Internet is not a cause for worry and is not, as are all mobs, subject to manipulation.

With inputs from Ajachi Chakrabarti.
Shougat Dasgupta is an Assistant Editor with Tehelka.

For more details visit https://cis-india.org/news/www-tehelka-com-vol-9-issue-36-sep-8-2012-shougat-dasgupta-the-state-and-the-rage-of-the-cyber-demon

The State of Secure Messaging

divyank — 2020-07-17T08:12:15Z

A look at the protections provided by and threats posed to secure communication online.

This blogpost was edited by Gurshabad Grover and Amber Sinha.

The current benchmark for secure communication online is end-to-end encrypted messaging. It refers to a method of encryption wherein the contents of a message are only readable by the devices of the individuals, or endpoints, participating in the communication. All other Internet intermediaries such as internet service providers, internet exchange points, undersea cable operators, data centre operators, and even the messaging service providers themselves cannot read them. This is achieved through cryptographic mechanisms that allow independent devices to establish a shared secret key over an insecure communication channel, which they then use to encrypt and decrypt messages. Common examples of end-to-end encrypted messaging are applications like Signal and WhatsApp.

This post attempts to give at-risk individuals, concerned citizens, and civil society at large a more nuanced understanding of the protections provided and threats posed to the security and privacy of their communications online.

Threat Model

The first step to assessing security and privacy is to identify and understand actors and risks. End-to-end encrypted messaging applications consider the following threat model:

Device compromise: Can happen physically through loss or theft, or remotely. Access to an individual’s device could be gained through technical flaws or coercion (legal, or otherwise). It can be temporary or be made persistent by installing malware on the device.
Network monitoring and interference: Implies access to data in transit over a network. All Internet intermediaries have such access. They may either actively interfere with the communication or passively observe traffic.
Server compromise: Implies access to the web server hosting the application. This could be achieved through technical flaws, insider access such as an employee, or through coercion (legal, or otherwise).

End-to-end encrypted messaging aims to offer complete message confidentiality and integrity in the face of server and network compromise, and some protections against device compromise. These are detailed below.

Protections Provided

Secure messaging services guarantee certain properties. For mature services that have received adequate study from researchers, we can assume them to be sound, barring implementation flaws which are described later.

Confidentiality: The contents of a message are kept private and the ciphers used are practically unbreakable by adversaries.

Integrity: The contents of a message cannot be modified in transit.

Deniability: Aims to mimic unrecorded real-world conversations where an individual can deny having said something. Someone in possession of the chat transcript cannot cryptographically prove that an individual authored a particular message. While some applications feature such off-the-record messaging capabilities, the legal applicability of such mechanisms is debatable.

Forward and Future Secrecy: These properties aim to limit the effects of a temporary compromise of credentials on a device. Forward secrecy ensures messages collected over the network, which were sent before the compromise, cannot be decrypted. Future secrecy ensures messages sent post-compromise are protected. These mechanisms are easily circumvented in practice as past messages are usually stored on the device being compromised, and future messages can be obtained by gaining persistent access during compromise. These properties are meant to protect individuals aware of these limitations in exceptional situations such as a journalist crossing a border.

Shortcomings

While secure messaging services offer useful protections they also have some shortcomings. It is useful to understand these and their mitigations to minimise risk.

Metadata: Information about a communication such as who the participants are, when the messages are sent, where the participants are located, and what the size of a message is can offer important contextual information about a conversation. While some popular messaging services attempt to minimize metadata generation, metadata leakage, in general, is still considered an open problem because such information can be gleaned by network monitoring as well as from server compromise. Application policies around whether such data is stored and for how long it is retained can improve privacy. There are also experimental approaches that use techniques like onion routing to hide metadata.

Authentication: This is the process of asserting whether an individual sending or receiving a message is who they are thought to be. Current messaging services trust application servers and cell service providers for authentication, which means that they have the ability to replace and impersonate individuals in conversations. Messaging services offer advanced features to mitigate this risk, such as notifications when a participant’s identity changes, and manual verification of participants’ security keys through other communication channels (in-person, mail, etc.).

Availability: An individual’s access to a messaging service can be impeded. Intermediaries may delay or drop messages resulting in what is called a denial of service attack. While messaging services are quite resilient to such attacks, governments may censor or completely shut down Internet access.

Application-level gaps: Capabilities offered by services in addition to messaging, such as contact discovery, online status, and location sharing are often not covered by end-to-end encryption and may be stored by the application server. Application policies around how such information is gathered and retained affect privacy.

Implementation flaws and backdoors: Software or hardware flaws (accidental or intentional) on an individual’s device could be exploited to circumvent the protections provided by end-to-end encryption. For mature applications and platforms, accidental flaws are difficult and expensive to exploit, and as such are only accessible to Government or other powerful actors who typically use them to surveil individuals of interest (and not for mass surveillance). Intentional flaws or backdoors introduced by manufacturers may also be present. The only defence against these is security researchers who rely on manual inspection to examine software and network interactions to detect them.

Messaging Protocols and Standards

In the face of demands for exceptional access to encrypted communication from governments, and risks of mass surveillance from both governments and corporations, end-to-end encryption is important to enable secure and private communication online. The signal protocol, which is open and adopted by popular applications like WhatsApp and Signal, is considered a success story as it brought end-to-end encryption to over a billion users and has become a de-facto standard.

However, it is unilaterally developed and controlled by a single organisation. Messaging Layer Security (or MLS) is a working group within the Internet Engineering Task Force (IETF) that is attempting to standardise end-to-end encryption through participation of individuals from corporations, academia, and civil society. The draft protocol offers the standard security properties mentioned above, except for deniability which is still being considered. It incorporates novel research that allows it to scale efficiently for large groups up to thousands of participants, which is an improvement over the signal protocol. MLS aims to increase adoption further by creating open standards and implementations, similar to the Transport Layer Security (TLS) protocol used to encrypt much of the web today. There is also a need to look beyond end-to-end encryption to address its shortcomings, particularly around authentication and metadata leakage.

For more details visit https://cis-india.org/internet-governance/blog/the-state-of-secure-messaging

The Quixotic Fight to Clean up the Web

sunil — 2012-01-26T20:53:02Z

The ongoing attempt to pre-screen online content won’t change anything. It will only drive netizens into the arms of criminals, writes Sunil Abraham in this article published in Tehelka Magazine, Vol 9, Issue 04, Dated 28 Jan 2012.

GOOGLE AND Facebook’s ongoing case in the Delhi High Court over offensive online content is curious in three ways. First, the complaint does not mention the IT Act, 2000. Prior to the 2008 amendment, intermediaries (in this case, Google, Facebook, etc) had no immunity. But after the amendment, intermediaries have significant immunity and are not considered liable unless takedown notices are ignored.

Second, it is curious that the complaint does not mention specific individuals or groups directly responsible for authoring the allegedly offensive material. Only intermediaries have been explicitly named. If specific content items have been submitted in court then it is curious that specific accounts and users have not been charged with the same offences.

Three, Delhi-based journalist Vinay Rai claims that takedown notices and requests for user information were ignored by the intermediaries. As yet, unpublished research at the Centre for Internet and Society has reached the exact opposite conclusion. We sent fraudulent takedown notices to seven of the largest intermediaries in India as part of a policy sting operation. Six of them over-complied and demonstrated no interest in protecting freedom of expression. Our takedown notices were complied with even though they were largely nonsensical. It is therefore curious that Rai’s takedown notices were ignored.

Under Section 79 of the IT Act, the intermediary must not “initiate the transmission”, “select the receiver of the transmission” and “select or modify the information contained in the transmission”. In other words, they must not possess “actual knowledge” of the content. This would be absolutely true if intermediaries acted as “dumb pipes” or “mere conduits”. But today, they have reactive “human filters” ensuring conformance to community guidelines that often go beyond constitutional limits on freedom of expression.

For example, Facebook deletes breastfeeding photographs if a certain proportion of the breast is visible, despite numerous protests. Intermediaries also use proactive “machine filters” to purge their networks of pornography and copyright infringing content. In order to retain immunity under the IT Act, intermediaries would have to demonstrate that they have no “actual knowledge”. This would also imply that they cannot proactively filter or pre-screen content without becoming liable for illegal content.

More sophisticated “machine filters” will continue to be built for social media platforms as computing speeds increase and costs decrease dramatically. But there will be significant collateral damage — the vibrancy of online Indian communities will be diminished as legitimate content will be removed and this in turn will retard Internet adoption rates. Free media, democratic governance, research and development, culture and the arts will all be fundamentally undermined. So whether pre-censorship is technically feasible is an irrelevant question. The real question is what limits on freedom of expression are reasonable in the Internet age.

The legal tussle is yet another chance for reflecting on the shortcomings of the IT Act

Censorship is like prohibition, illegal content will persist, the mafia will profit and ordinary citizens will be implicated in criminal networks. Use of anonymising proxies, circumvention tools and encryption technologies will proliferate, frustrating network optimisation efforts and law enforcement activities.

This is yet another opportunity for reflecting on the shortcomings of the ITAct. A lot of the confusion and anxiety today emerges from vague language, unconstitutional limits on freedom of expression, multi-tiered blanket surveillance provisions, blunt security policy measures contained in the statute and its associated rules. The next Parliament session is the last opportunity for MPs to ask for the rules for intermediaries, cyber cafes and reasonable security practices to be revisited. The MP who musters the courage to speak will be dubbed a superhero.

As told to Shonali Ghosal. Sunil Abraham is Executive director, centre for internet and society and can be contacted at sunil@cis-india.org. The original article was published in Tehelka.

Illustration by Sudeep Chaudhuri

For more details visit https://cis-india.org/internet-governance/quixotic-fight-to-clean-the-web

The Privatisation of Censorship: The Online Responsibility to Protect Free Expression

praskrishna — 2012-12-09T01:48:13Z

Pranesh Prakash was a panelist at this workshop organised on November 5, 2012. It was organized by Index on Censorship.

Much is known about state censorship, but increasingly private corporations are implementing censorship either at the behest of governments, or as part of a ‘walled garden’ approach. This censorship takes many guises: whether the proactive take-down of entirely legal material, the blocking of websites by overly zealous ISPs, mobile filters that cut access to websites such as Index on Censorship and the use of surveillance technology on behalf of autocratic states. The combination of state-led censorship with the privatisation of censorship requires a debate on the responsibilities of corporations and the framework needed to protect free expression online.

This side session will focus on two key areas:
1. Take-down, blocking and filtering of content
2. The export of surveillance technology, privacy

The panel will explore the ways in which the above can affect free expression online, and how civil society, governments and corporations can and should approach these issues, addressing the following questions:

1. Whether, why and in what ways censorship and surveillance is either as or more pervasive, intrusive and chilling than offline, and the impact on free speech and press freedom?
2. The inappropriate, intrusive or excessive use of filters and firewalls including how these impact directly and indirectly on access to media and the nature of news provision
3. Criminalisation of free speech and free expression – chilling use of takedown requests (impacting on public online debates, on media freedom including investigative journalism), and constraints on comment and debate (twitter, trolls, comment threads etc);
4. Excessive and blanket surveillance and data-gathering
5. Regulations and laws including intermediary responsibility that curtail digital free speech

Chair:
Michael Harris, Head of Advocacy, Index on Censorship

Panelists:

Dr Hosein Badran, Regional Chief Technology Officer, Cisco Systems International, covering MENA
Pranesh Prakash, Policy Director at the Centre for Internet and Society
Abhilash Nair, Northumbria University, UK
Camino Manjon Sierra, International Relations Policy Officer, Directorate General for Communications Networks, Content and Technology, European Commission
Andrew Puddephatt, Global Partners and Associates

For more details visit https://cis-india.org/news/privatisation-of-censorship

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

anja — 2011-08-02T07:22:24Z

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the original here

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