Centre for Internet and Society

If all goes well, Indian IT Act may enter 21st century

praskrishna — 2016-10-06T16:49:12Z

The government is aiming to refresh the main law governing information technology by giving it a revamp which it hopes will bring it in tune with the times and address criticisms about its weaknesses, a senior official said on condition of anonymity.

The article by Surabhi Agarwal was published in the Economic Times on October 6, 2016. Sunil Abraham was quoted.

The move is triggered by the realisation that the Information Technology Act passed in 2000 and last amended eight years ago may be wanting in many respects due to advances in technology and its ubiquitousness in nearly every aspect of life.

The government will take a first step by constituting a committee whose job will be to make suggestions to refresh the law. The magnitude of fraud, terrorism, bullying and stalking in cyber space has grown along with advances in technology and its adoption, and these are some of the areas where the law could do with an update.

The government's massive push on Digital India is also leading to significant digitisation of government services and records. In 2000, when the Act was first passed, there were a mere 5 million internet users in the country. India has surpassed the US to become the second-largest Internet market with 436 million users as of June 2016.

"It has been realised that we need more provisions on things such as mobile security, internet of things," the official said. "The last amendment came in 2008, so almost a decade has passed." This person said that there is confusion among various law enforcement agencies regarding the ambit of the IT Act.

Fresh provisions are also required in fields such as how long agencies – both state as well as private – should hold citizens' information, which has been shared by them, for any kind of authentication through means such as emails. Supreme Court advocate and cyber security expert Pavan Duggal called the IT Act an "outdated" piece of legislation.

"The Act and the amendments are in the pre-social media era. Current realities, challenges and the policy aspects of cyberspace have not been addressed," he said. There are no provisions, for instance, for mandatory reporting of cyber-crime and cyber-security breaches, he said. Besides, there are the challenges posed by the dark net where everything from weapons to drugs are being peddled.

"Cyber bullying is the number one problem in Indian schools and universities which is not addressed in the Act. There have been no convictions for cyber stalking which is extremely prevalent in India," Duggal said, suggesting measures such as the setting up of special courts for cyber crime and terror.

In the past couple of years, the government has come under fire for several attempts to bring in laws on encryption, contain pornography and the spread of obscene material online. The Internet and Mobile Association of India (IAMAI) said that while the move to change the Act is welcome, it should be done in an "inclusive" manner with the "widest possible public consultation" and not by a committee which consists only of government representatives.

Subho Ray, president of IAMAI said that while the definition of intermediaries needs to be reviewed and the list expanded, citizens' fundamental rights need to kept in mind while trying to bring back a modified form of Section 66A (it dealt with offences on the internet), which was struck down by the Supreme Court as unconstitutional.

The ministry of electronics and IT is currently trying to form a committee with experts from the private sector, the source said, and cautioned about the prospect of a "long-haul" before changes come about. Sunil Abraham, director of the Centre for Internet and Society (CIS) said that India's data protection laws under Section 43A of the IT Act must be upgraded and this would help Indian companies which export IT-enabled services.

"We also need to apply the principle of equivalence more clearly, which says that if something is illegal offline, it should also be illegal online," said Abraham.

For more details visit https://cis-india.org/internet-governance/news/economic-times-surabhi-agarwal-october-6-2016-if-all-goes-well-indian-it-act-may-enter-twenty-first-century

I dare you, I double dare you: Social media celebrates Sec 66A verdict

praskrishna — 2015-03-26T16:33:55Z

Users across social media platforms on Tuesday welcomed the Supreme Court's scrapping of the controversial Section 66A of the Information Technology Act, hailing it as a measure that will strengthen freedom of expression online.

The article by Vishakha Saxena published in the Hindustan Times on March 25, 2015 quotes Pranesh Prakash.

"This is the first SC judgment since the 60s to plainly strike down a law for free expression violation! #66A," tweeted Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.

Prakash, who tweeted "I AM ECSTATIC!!" minutes after the judgement, was one of the most vocal critics of Section 66A - which made offensive comments online punishable with jail terms - and played a key role in creating awareness about freedom of expression.

Apar Gupta, a representative of the People's Union for Civil Liberties (one of the parties that petitioned the Supreme Court against section 66A), also took to Twitter to jubilantly declare victory.

"My TL is a little crazy right now…This decision means a lot to me. Thank you. I am smiling." he posted.

Supreme Court advocate Karuna Nundy, who too represents PUCL, expressed her happiness on Facebook.

The top court struck down the provision, described as draconian by many internet rights activists, describing it as "unconstitutional" and a "restriction on free speech".

Section 66A, incorporated through an amendment of the IT Act in 2009, prohibited the sending of information of a "grossly offensive" or "menacing" nature through communication devices. It was used by several states to arrest people over posts on social media that officials claimed were "seditious" or "communally sensitive".

Discussions on social media against the provision had gained pace hours ahead of the court's ruling. Twitter, in fact, was abuzz as thousands used the hashtag #No66A to voice their opinions.

Reddit, known for being unabashed with opinion and language, wasn’t far behind. The first post announcing the verdict was upvoted 96% and garnered 460 points within four hours.

"Supreme Court zindabad! Now can we abuse Azam Khan without any fear?" commented user Apunebolatumerilaila.

Another user, Indian_galileo, wrote, "FINALLY, SOME SENSE HAS PREVAILED PRAISE THE OVERLORDS AT SC THANK YOU SC THANK YOU VERY VERY MUCH."

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you

Historic day for freedom of speech and expression in India

vidushi — 2015-03-26T02:19:17Z

In a petition that finds its origin in a simple status message on Facebook, Shreya Singhal vs Union of India marks a historic reinforcement of the freedom of speech and expression in India.

The article by Vidushi Marda was published in Bangalore Mirror on March 25, 2015.

Hearing a batch of writ petitions, the bench comprising Justices Rohinton F Nariman and J Chelameswar considered the constitutionality of three provisions of the Information Technology Act, 2000. The provisions under consideration were Section 66A, dealing with punishment of sending offensive messages through communication services, Section 69A which discusses website blocking and Section 79, dealing with intermediary liability.

The intent behind Section 66A was originally to regulate spam and cyber stalking, but in the last seven years not a single spammer has been imprisoned.

Instead, innocent academics have been arrested for circulating caricatures. The Court struck down the section in its entirety, declaring it unconstitutional.

It held that the language of the section was "nebulous" and "imprecise" and did not satisfy reasonable restrictions under A. 19(2) of the Constitution of India.

Section 79 was meant to result in the blossoming of free speech since it stated that intermediaries will not be held liable for content created by their users unless they refused to act on take-down notices. Unfortunately, intermediaries were unable to decide whether content was legal or illegal, and when the Centre for Internet and Society in 2011 sent flawed take-down notices to seven prominent national and international intermediaries, they erred on the side of caution and over-complied, often deleting legitimate content. By insisting on a court order, the Supreme Court has eliminated the chilling effect of this Section.

Block orders issued by the Indian government to telecom operators and ISPs were shrouded in opacity.

The process through which such orders were developed and implemented was not within public scrutiny. When a film is banned, it becomes part of public discourse, but website blocking does not enjoy the same level of transparency. The person whose speech has been censored is not notified or given an opportunity to be heard as part of the executive process. Unfortunately, in dealing with Section 69A, the Court chose to leave it intact, stating that it is a "narrowly drawn provision with several safeguards."

On balance, this is a truly a landmark judgment as it is the first time since the 1960s that the Supreme Court has struck down any law in its entirety for a violation of free speech.

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-vidushi-marda-march-25-2015-historic-day-for-freedom-of-speech-and-expression-in-india

Hacktivists deface BSNL website

praskrishna — 2012-12-14T05:20:56Z

The Bharat Sanchar Nigam Limited (BSNL) website, www.bsnl.co.in, was hacked and defaced on Thursday afternoon.

The article by Kim Arora was published in the Times of India on December 13, 2012. Sunil Abraham is quoted.

A message on the home page said the attack was carried out by the hacktivist group, Anonymous India, as a protest against section 66 A of the IT Act and in support of cartoonist Aseem Trivedi, on an indefinite hunger strike at Jantar Mantar since Dec 8 for the same. The website was restored around 7 pm.

Trivedi said he had received a call from Anonymous around 1.30 in the afternoon informing him that the website has been defaced. On being asked if such a form of protest was valid, Trivedi said, "When the government doesn't pay heed to people's protests against its laws and arrests innocent people for Facebook posts, then such a protest is absolutely valid."

For most of the afternoon and early evening, the BSNL website wasn't available directly. A cached version of the BSNL home page showed an image of cartoonist Trivedi with text that read "Hacked by Anonymous India. support Aseem trivedi (cartoonist) and alok dixit on the hunger strike. remove IT Act 66a databases of all 250 bsnl site has been d Hacked by Anonymous India (sic)". While this message was repeated over and over on the page, it ended with the line "Proof are (sic) here" followed by a link to a page containing the passwords to BSNL databases. BSNL officials were unaware of the attack until Thursday evening.

Late in the evening, Anonymous India tweeted from their account @opindia_revenge: "BSNL Websites hacked, passwords and database leaked... Anonymous India demands withdrawal of Sec 66A of IT Act."

In an open letter to the Government of India posted on alternate media website Kafila in June this year, Anonymous had explained they only carried out Distributed Denial of Service (DDoS) attacks on Indian government websites, which is different from the act of hacking per se.

Contrary views too exist. Sunil Abraham, executive director, Centre for Internet and Society, says the attack was unwarranted. "Speech regulation in India is not a lost cause, the Minister is holding consultations, MPs are raising the issue in Parliament, courts have been approached and there is massive public outcry on social media. Therefore I would request Anonymous India to desist from defacing websites," said Abraham. A group of MPs, including Baijayant Jay Panda from Odisha, are scheduled to present a motion in Parliament on Friday morning for the amendment of section 66A of the IT Act.

Last month, two young girls were arrested in Palghar, Maharashtra, for criticizing on Facebook the bandh that followed the death of Shiv Sena supremo Balasaheb Thackeray. Before that, Karti Chidambaram, son of finance minister P Chidambaram, took a man to court for commenting on his financial assets on Twitter. In both cases, the complainant 'used' section 66 A of the IT Act. The section and the Act have since come in for wide debate regarding freedom of speech.

For more details visit https://cis-india.org/news/times-of-india-india-times-december-13-2012-kim-arora-hacktivists-deface-bsnl-website

Guilty until Proven Innocent: Pirates, Pornographers, Terrorists and the IT Act in India

praskrishna — 2013-08-28T10:19:23Z

The Research Center of Media and Communication at the University of Hamburg organized the Summer School 2013 at Hamburg, Germany from July 29 to August 2, 2013. Dr. Nishant Shah was a panelist in the session on "Guilty until Proven Innocent: Pirates, Pornographers, Terrorists and the IT Act in India".

The Summer School Book of Abstracts/Information brochure can be downloaded here

This year’s Summer School offered by the Research Center of Media and Communication at the University of Hamburg picked up upon a crucial issue for current media development – a topic relevant to academia, media practice and media policy. In the age of digitisation, the landscape of media and communications is being increasingly influenced by phenomena that can be viewed as reappropriations of previously published media communications. The Summer School pursued central questions about the kinds of reappropriated media communications that were being developed and the relationship between ‘old’ and ‘new’ shaping them. This repurposing was analysed from four different perspectives: repurposing as recombination, as reactualisation, as piracy and as plagiarism.

For more details visit https://cis-india.org/news/repeat-remix-remediate-summer-school-2013

Govt likely to issue guidelines to clarify IT rules soon

praskrishna — 2012-12-20T05:24:14Z

Norms relate to the role of intermediaries such as telcos, Web service providers, others on hosting content online, writes Surabhi Agarwal.

The article was first published in LiveMint on December 16, 2012.

After the government issued guidelines on the controversial Section 66A of the Information Technology Act, it is expected to soon come out with similar guidelines to clarify the Information Technology (Intermediaries Guidelines) Rules, 2011, that have also been heavily criticised.

A senior official of the department of electronics and information technology said that even though the government is not looking at amending the overall Act as the legislative process for that would be time consuming, it is hoping to issue guidelines within a week.

The rules were notified in April 2011 with the aim of clearly defining the role of intermediaries—including telcos, Internet and web-hosting service providers and search engines—while hosting content on their networks and websites along with ensuring some level of due diligence by them.

However, this led to outrage among the Internet community as the rules mandated hosts or owners of the websites to take action against “objectionable content” within 36 hours of receiving a complaint. Experts argued that the rules could lead to censorship attempts with some intermediaries complying with illegitimate requests to remove content from websites in a bid to avoid litigation.

The government official said that there had been some confusion about what it meant to take action within 36 hours.

“While the intent was to ensure that intermediaries take cognizance of the request and initiate some proceeding on it, it has been misconstrued as removing content within 36 hours in some cases,” this person said.

The official added that the government was looking at clarifying issues such as this. “We are currently studying the representations sent by different stakeholders on the rules.”

Subho Ray, president, Internet and Mobile Association of India (IAMAI), said that the term “act” should be replaced by “acknowledge” to ensure that it is not wrongly interpreted as removing content within 36 hours.

“We have also requested the time period to be extended to 72 hours as 36 hours is sometimes too short a period if it falls during the weekend,” he said.

While only some clauses address issues such as national interest, public order and security restrictions under which content can be removed, “the remainder of grounds includes private claims such as content which ‘belongs to another person’, or otherwise infringes proprietary rights, or is ‘defamatory’,” said Bangalore-based think tank Centre for Internet and Society (CIS) in its representation, of which Mint has a copy. Moreover, other terms, such as ‘grossly harmful’, ‘harassing’ and ‘disparaging’, are “terminologically indeterminate and purely subjective”, the representation said. It also said that “the intermediary guidelines create a two-track system by which private censorship is legitimized online”.

IAMAI’s recommendations include clearly defining who can qualify as the ‘affected person’ eligible to post a complaint on content, which has currently been left to the discretion and determination of the intermediary.

Ray’s representation also said the rules put the burden of interpretation and acting upon third-party content on the intermediary. “This, we believe is the function of the judiciary and not the intermediaries,” it said.

Guidelines, while bringing some initial clarity, may not be enough, said an executive at a top technology firm who did not want to be identified. “To ensure long-term solutions to some of the issues highlighted, the Act needs to be amended eventually,” he said.

Late last month, the government promised to issue guidelines to the states that complaints under the controversial Section 66A of the IT Act, which criminalizes “causing annoyance or inconvenience” online or electronically, can be registered only with the permission of an officer at or above the rank of deputy commissioner of police, and inspector general in metro cities. However, even in the case of Section 66A, it did not amend the terms in the Section that are said to be vague and subject to interpretation.

For more details visit https://cis-india.org/news/livemint-december-16-2012-surabhi-agarwal-govt-likely-to-issue-guidelines-to-clarify-it-rules-soon

Government to hold talks with stakeholders on Internet censorship

praskrishna — 2012-09-04T03:39:32Z

In an unprecedented move, the government, through the Department of Telecommunications and the Department of Electronics and Information Technology, has agreed to initiate dialogue on Internet censorship with mega Internet companies, social media giants such as Google and Facebook, members of civil society, technical community, media, ISPs and legal experts.

This article by Shalini Singh was published in the Hindu on September 4, 2012. Pranesh Prakash's analysis is quoted.

The triggers for the discussion, which will be held on Wednesday, are the riots in Assam, Mumbai and Uttar Pradesh, as well as the mass exodus of north-east Indians from Bangalore, which resulted in bringing the government, civil society organisations and the media to a flashpoint.

Two of India’s seniormost officers in the area of Internet censorship, DoT Secretary R. Chandrashekhar and Director General, CERT-IN, Gulshan Rai will engage with a range of stakeholders in a two-hour meeting titled ‘Legitimate Restrictions on Freedom of Online Speech: The need for balance – from Deadlock to Dialogue.’

Other panellists include representatives from Google and Facebook; Pranesh Prakash from the Centre for Internet and Society (a civil society group); Prabir Purkayasta, Delhi Science Forum (technical community); Paranjoy Guha Thakurta, president, Foundation for Media Professionals; Rajesh Chharia, president, Internet Service Providers Association of India; and Apar Gupta, an advocate dealing with cyber issues.

One analysis by the CIS has shown that 309 specific items, including URLs, Twitter accounts, IMG tags, blog posts and blogs were blocked. Complaints arose when blocking a page resulted in the blocking of an entire website — which has scores or hundreds of web pages. The government maintained that this was necessary as there was a sense of crisis. Home Minister Sushil Kumar Shinde insisted that the government was “taking strict action only against those accounts or people which are causing damage or spreading rumours.” However, the collateral damage of the move was the Twitter accounts of several people, including journalists like Kanchan Gupta, being blocked.

“Mass censorship is like killing a fly with a sledgehammer. Rather than blocking the sites, the government should have used the same media, Facebook, Twitter and Google to counter terrorism and hate speech. I am glad that they are now open to dialogue,” says Mr. Thakurta.

“It is an extremely productive move as it will generate awareness among content providers, government and users. In the absence of any dialogue, everyone was just sticking to their own positions without listening to the other stakeholders’ point of view,” says Mr. Chharia.

The meeting is to bring several stakeholders in dialogue on a single platform.

Nearly 50 other experts from industry, mobile service providers, Internet companies, intermediaries, academia and some international organisations as well as multilaterals are expected to join the conference, which will be held at 2.30 p.m. on September 4 at FICCI.

While this is seen as a brave attempt by some, there are an equal number of sceptics who believe that the discussion may not yield the desired result given the national security objectives governing law enforcement agencies on the one hand and the desire of users, media and civil society to preserve free speech on the other. Clearly, ISPs, Internet companies and social media are in a tough spot since they face legal obligations on legitimate orders for blocking on one hand while needing to protect their user privacy and rights to unhindered access to information.

If successful, it is possible that this dialogue will ensure that legitimate restrictions do not slide into illegitimate censorship.

For more details visit https://cis-india.org/news/www-the-hindu-com-shalini-singh-sep-4-2012-govt-to-hold-talks-with-stakeholders-on-internet-censorship

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:12:16Z

This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania

Download the Note here (PDF, 103 Kb)

Preliminary

There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.

Case Law and Government Policy

India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.

India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Dichotomy between Modern and Native Law

To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.

In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Criminal Law and Free Speech in the Colony

In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.

Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.

Loss of the Right to Offend

The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.

Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.

Protest and Community Honour

The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.

Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.

The Censorious Post-colony

Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.

Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.

Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.

How to regulate permissible speech?

Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.

After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.

The contours of future Internet regulation

The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.

I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.

For more details visit https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation

FOEX Live: May 28-29, 2014

geetha — 2014-05-29T08:58:47Z

A selection of news from across India with a bearing on online freedom of expression and use of digital technology

Media focus on the new government and its ministries and portfolios has been extensive, and to my knowledge, few newspapers or online sources have reported violations of freedom of speech. However, on his first day in office, the new I&B Minister, Prakash Javadekar, acknowledged the importance of press freedom, avowing that it was the “essence of democracy”. He has assured that the new government will not interfere with press freedom.

Assam:

A FICCI discussion in Guwahati, attended among others by Microsoft and Pricewaterhouse Coopers, focused on the role of information technology in governance.

Goa:

Following the furore over allegedly inflammatory, ‘hate-mongering’ Facebook posts by shipping engineer Devu Chodankar, a group of Goan netizens formed a ‘watchdog forum’ to police “inappropriate and communally inflammatory content” on social media. Diana Pinto feels, however, that some ‘compassion and humanism’ ought to have prompted only a stern warning in Devu Chodankar’s case, and not a FIR.

Karnataka:

Syed Waqar was released by Belgaum police after questioning revealed he was a recipient of the anti-Modi MMS. The police are still tracing the original sender.

Madhya Pradesh:

The cases of Shaheen Dhada and Rinu Srinivasan, and recently of Syed Waqar and Devu Chodankar have left Indore netizens overly cautious about “posting anything recklessly on social media”. Some feel it is a blow to democracy.

Maharashtra:

In Navi Mumbai, the Karjat police seized several computers, hard disks and blank CDs from the premises of the Chandraprabha Charitable Trust in connection with an investigation into sexual abuse of children at the Trust’s school-shelter. The police seek to verify whether the accused recorded any obscene videos of child sexual abuse.

In Mumbai, even as filmmakers, filmgoers, artistes and LGBT people celebrated the Kashish Mumbai International Queer Film Festival, all remained apprehensive of the new government’s social conservatism, and were aware that the films portrayed acts now illegal in India.

Manipur:

At the inauguration of the 42nd All Manipur Shumang Leela Festival, V.K. Duggal, State Governor and Chairman of the Manipur State Kala Akademi, warned that the art form was under threat in the digital age, as Manipuri films are replacing it in popularity.

Rajasthan:

Following the lead of the Lok Sabha, the Rajasthan state assembly has adopted a digital conference and voting system to make the proceedings in the House more efficient and transparent.

Seemandhra:

Seemandhra Chief Minister designate N. Chandrababu Naidu promised a repeat of his hi-tech city miracle ‘Cyberabad’ in Seemandhra.

West Bengal:

West Bengal government has hired PSU Urban Mass Transit Company Limited to study, install and operationalize Intelligent Transport System in public transport in Kolkata. GPS will guide passengers about real-time bus routes and availability. While private telecom operators have offered free services to the transport department, there are no reports of an end-date or estimated expenditure on the project.

News and Opinion:

Over a week ago, Avantika Banerjee wrote a speculative post on the new government’s stance towards Internet policy. At Fair Observer, Gurpreet Mahajan laments that community politics in India has made a lark of banning books.

India’s Computer Emergency Response Team (CERT-In) has detected high-level virus activity in Microsoft’s Internet Explorer 8, and recommends upgrading to Explorer 11.

Of the projected 400 million users that Twitter will have by 2018, India and Indonesia are expected to outdo the United Kingdom in user base. India saw nearly 60% growth in user base this year, and Twitter played a major role in Elections 2014. India will have over 18.1 million users by 2018.

Elsewhere in the world:

Placing a bet on the ‘Internet of Everything’, Cisco CEO John Chambers predicted a “brutal consolidation” of the IT industry in the next five years. A new MarketsandMarkets report suggests that the value of the ‘Internet of Things’ may reach US $1423.09 billion by 2020 at an estimated CAGR of 4.08% from 2014 to 2020.

China’s Xinhua News Agency announced its month-long campaign to fight “infiltration from hostile forces at home and abroad” through instant messaging. Message providers WeChat, Momo, Mi Talk and Yixin have expressed their willingness to cooperate in targeting those engaging in fraud, or in spreading ‘rumours’, violence, terrorism or pornography. In March this year, WeChat deleted at least 40 accounts with political, economic and legal content.

Thailand’s military junta interrupted national television broadcast to deny any role in an alleged Facebook-block. The site went down briefly and caused alarm among netizens.

Snowden continues to assure that he is not a Russian spy, and has no relationship with the Russian government.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-may-28-29-2014

FOEX Live: May 26-27, 2014

geetha — 2014-05-27T12:42:51Z

A selection of news from across India implicating online freedom of expression and use of digital technology

Media reports across India are focusing on the new government and its Cabinet portfolios. In the midst of the celebration of and grief over the regime change, we found many reports indicating that civil society is wary of the new government’s stance towards Internet freedoms.

Andhra Pradesh:

Andhra MLA and All India Majlis-e-Ittihad ul-Muslimin member Akbaruddin Owaisi has been summoned to appear before a Kurla magistrate’s court on grounds of alleged hate speech and intention to harm harmony of Hinduism and Islam. Complainant Gulam Hussain Khan saw an online video of a December 2012 speech by Owaisi and filed a private complaint with the court. “I am prima facie satisfied that it disclosed an offence punishable under Section(s) 153A and 295A of the Indian Penal Code,” the Metropolitan Magistrate said.

Goa:

A Goa Sessions Judge has dismissed shipbuilding diploma engineer Devu Chodankar’s application for anticipatory bail. On the basis of an April 26 complaint by CII state president Atul Pai Kane, Goa cybercrime cell registered a case against Chodankar for allegedly posting matter on a Facebook group with the intention of promoting enmity between religious groups in view of the 2014 general elections. The Judge noted, inter alia, that Sections 153A and 295A of the Indian Penal Code were attracted, and that it is necessary to find out whether, on the Internet, “there is any other material which could be considered as offensive or could create hatred among different classes of citizens of India”.

Karnataka:

Syed Waqas, an MBA student from Bhatkal pursuing an internship in Bangalore, was picked up for questioning along with four of his friends after Belgaum social activist Jayant Tinaikar filed a complaint. The cause of the complaint was a MMS, allegedly derogatory to Prime Minister Narendra Modi. After interrogation, the Khanapur (Belgaum) police let Waqas off on the ground that Waqas was not the originator of the MMS, and that Mr. Tinaikar had provided an incorrect mobile phone number.

In another part of the country, Digvijaya Singh is vocal about Indian police’s zealous policing of anti-Modi comments, while they were all but visible when former Prime Minister Dr. Manmohan Singh was the target of abusive remarks.

Kerala:

The Anti-Piracy Cell of Kerala Police plans to target those uploading pornographic content on to the Internet and its sale through memory cards. A circular to this effect has been issued to all police stations in the state, and civil society cooperation is requested.

In other news, Ernakulam MLA Hibi Eden inaugurated “Hibi on Call”, a public outreach programme that allows constituents to reach the MLA directly. A call on 1860 425 1199 registers complaints.

Maharashtra:

Mumbai police are investigating pizza delivery by an unmanned drone, which they consider a security threat.

Tamil Nadu:

Small and home-run businesses in Chennai are flourishing with the help of Whatsapp and Facebook: Mohammed Gani helps his customers match bangles with Whatsapp images, Ayeesha Riaz and Bhargavii Mani send cakes and portraits to Facebook-initiated customers. Even doctors spread information and awareness using Facebook. In Madurai, you can buy groceries online, too.

Opinion:

Chethan Kumar fears that Indian cyberspace is strangling freedom of expression through the continued use of the ‘infamous’ Section 66A of the Information Technology Act, 2000 (as amended in 2008). Sunil Garodia expresses similar concerns, noting a number of arrests made under Section 66A.

However, Ankan Bose has a different take; he believes there is a thin but clear line between freedom of expression and a ‘freedom to threaten’, and believes Devu Chodankar and Syed Waqar may have crossed that line. For more on Section 66A, please redirect here.

While Nikhil Pahwa is cautious of the new government’s stance towards Internet freedoms, given the (as yet) mixed signals of its ministers, Shaili Chopra ruminates on the new government’s potential dive into a “digital mutiny and communications revolution” and wonders about Modi’s social media management strategy. For Kashmir Times reader Hardev Singh, even Kejriwal’s arrest for allegedly defaming Nitin Gadkari will lead to a chilling effect on freedom of expression.

Elsewhere, the Hindustan Times is intent on letting Prime Minister Narendra Modi know that his citizens demand their freedom of speech and expression. Civil society and media all over India express their concerns for their freedom of expression in light of the new government.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-may-26-27-2014

FOEX Live: June 1-7, 2014

geetha — 2014-06-07T13:33:45Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

Delhi NCR:

Following a legal notice from Dina Nath Batra, publisher Orient BlackSwan “set aside… for the present” Communalism and Sexual Violence: Ahmedabad Since 1969 by Dr. Megha Kumar, citing the need for a “comprehensive assessment”. Dr. Kumar’s book is part of the ‘Critical Thinking on South Asia’ series, and studies communal and sexual violence in the 1969, 1985 and 2002 riots of Ahmedabad. Orient BlackSwan insists this is a pre-release assessment, while Dr. Kumar contests that her book went to print in March 2014 after extensive editing and peer review. Dina Nath Batra’s civil suit led Penguin India to withdraw Wendy Doniger’s The Hindus: An Alternative History earlier this year.

The Delhi Police’s Facebook page aimed at reaching out to Delhi residents hailing from the North East proved to be popular.

Goa:

Shipbuilding engineer Devu Chodankar’s ordeal continued. Chodankar, in a statement to the cyber crime cell of the Goa police, clarified that his allegedly inflammatory statements were directed against the induction of the Sri Ram Sene’s Pramod Muthalik into the BJP. Chodankar’s laptop, hard-disk and mobile Internet dongle were seized.

Jammu & Kashmir:

Chief Minister Omar Abdullah announced the withdrawal of a four-year-old SMS ban in the state. The ban was instituted in 2010 following widespread protests, and while it was lifted for post-paid subscribers six months later, pre-paid connections were banned from SMSes until now.

Maharashtra:

In a move to contain public protests over ‘objectionable posts’ about Chhatrapati Shivaji, Dr. B.R. Ambedkar and the late Bal Thackeray (comments upon whose death led to the arrests of Shaheen Dhada and Renu Srinivasan under Section 66A), Maharashtra police will take action against even those who “like” such posts. ‘Likers’ may be charged under the Information Technology Act and the Criminal Procedure Code, say Nanded police.

A young Muslim man was murdered in Pune, apparently connected to the online publication of ‘derogatory’ pictures of Chhatrapati Shivaji and Bal Thackarey. Members of Hindu extremists groups celebrated his murder, it seems. Pune’s BJP MP, Anil Shirole, said, “some repercussions are natural”. Members of the Hindu Rashtra Sena were held for the murder, but it seems that the photographs were uploaded from foreign IP addresses. Across Maharashtra, 187 riotingcases have been registered against a total of 710 persons, allegedly in connection with the offensive Facebook posts.

On a lighter note, Bollywood hopes for a positive relationship with the new government on matters such as film censorship, tax breaks and piracy.

News & Opinion:

Shocking the world, Vodafone reported the existence of secret, direct-access wires that enable government surveillance on citizens. India is among 29 governments that sought access to its networks, says Vodafone.

I&B Minister Prakash Javadekar expressed his satisfaction with media industry self-regulation, and stated that while cross-media ownership is a matter for debate, it is the legality of transactions such as the Reliance-Network18 acquisition that is important.

Nikhil Pahwa of Medianama wrote of a ‘right to be forgotten’ request they received from a user in light of the recent European Court of Justice ruling. The right raises a legal dilemma in India, LiveMint reports. Medianama also comments on Maharashtra police’s decision to take action against Facebook ‘likes’, noting that at the very least, a like and a comment do not amount to the same thing.

The Hindu was scorching in its editorial on the Pune murder, warning that the new BJP government stands to lose public confidence if it does not clearly demonstrate its opposition to religious violence. The Times of India agrees.

Sanjay Hegde wrote of Section 66A of the Information Technology Act, 2000 (as amended in 2008) as a medium-focused criminalization of speech. dnaEdit also published its criticism of Section 66A.

Ajit Ranade of the Mumbai Mirror comments on India as a ‘republic of hurt sentiments’, criminalizing exercises of free speech from defamation, hate speech, sedition and Section 66A. But in this hurt and screaming republic, dissent is crucial and must stay alive.

A cyber security expert is of the opinion that the police find it difficult to block webpages with derogatory content, as servers are located outside India. But data localization will not help India, writes Jayshree Bajoria.

Dharma Adhikari tries to analyze the combined impact of converging media ownership, corporate patronage of politicians and elections, and recent practices of forced and self-censorship and criminalization of speech.

Elsewhere in the world:

In Pakistan, Facebook has been criticized for blocking pages of a Pakistani rock band and several political groups, primarily left-wing. Across the continent in Europe, Google is suffering from a popularity dip.

The National Council for Peace and Order, the military government in Thailand, has taken over not only the government,but also controls the media. The military cancelled its meetings with Google and Facebook. Thai protesters staged a quiet dissent. The Asian Human Rights Commission condemned the coup. For an excellent take on the coup and its dangers, please redirect here. For a round-up of editorials and op-eds on the coup, redirect here.

China has cracked down on Google, affecting Gmail, Translate and Calendar. It is speculated that the move is connected to the 25^th anniversary of the Tiananmen Square protests and government reprisal. At the same time, a Tibetan filmmaker who was jailed for six years for his film, Leaving Fear Behind, has been released by Chinese authorities. Leaving Fear Behind features a series of interviews with Tibetans of the Qinghai province in the run-up to the controversial Beijing Olympics in 2008.

Japan looks set to criminalize possession of child pornography. According to reports, the proposed law does not extend to comics or animations or digital simulations.

Egypt’s police is looking to build a social media monitoring system to track expressions of dissent, including “profanity, immorality, insults and calls for strikes and protests”.

Human rights activists asked Facebook to deny its services to the election campaign of Syrian President Bashar al-Assad, ahead of elections on June 3.

Call for inputs:

The Law Commission of India seeks comments from stakeholders and citizens on media law. The consultation paper may be found here. The final date for submission is June 19, 2014.

____________________________________________________________________________________________________________

For feedback and comments, Geetha Hariharan is available by email at geetha@cis-india.org or on Twitter, where her handle is @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-1-7-2014

Fear, Uncertainty and Doubt

sunil — 2015-04-17T01:44:39Z

Much confusion has resulted from the Section 66A verdict. Some people are convinced that online speech is now without any reasonable restrictions under Article 19 (2) of the Constitution. This is completely false.

There are many other provisions within the IT Act that still regulate speech online, for example the section on obscenity (Sec. 67) and also the data protection provision (Sec. 43A). Additionally there are provisions within the Indian Penal Code and other Acts that regulate speech both online and offline. For example, defamation remains a criminal offence under the IPC (Sec. 499), and disclosing information about children in a manner that lowers their reputation or infringes their privacy is also prohibited under the Protection of Children from Sexual Offences Act, 2012 (Sec. 23).

Others are afraid that the striking down of Section 66A results in a regulatory vacuum where it will be possible for bad actors to wreak havoc online because the following has been left unaddressed by the IT Act.

Criminal Intimidation: The phrase "criminal intimidation" was included in Sec. 66A(b), but the requirement was that intimidation should be carried out using "information which he knows to be false". Sec. 506 of the IPC which punishes criminal intimidation does not have this requirement and is therefore a better legal route for affected individuals, even though the maximum punishment is a year shorter than the three years possible under the IT Act.
Cyber-stalking: A new section for stalking - Sec. 345 D - was added into the IPC in 2013 which also recognised cyber stalking. The definition within Sec.345D is more precise compared to the nebulous phrasing in Sec. 66A, which read - "monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking".
Phishing: Sec. 66A (c) dealt with punishment to people who "deceive or mislead the addressee or recipient about the origin of such messages". Sec.66D, which will be the operative section after this verdict, deals with "cheating by impersonation" and forms a more effective safeguard against phishing.

Cyber-bulling of children is arguably left unaddressed. Most importantly, spam, the original intention behind 66A, now cannot be tackled using any existing provision of the law. However, the poorly drafted section made it impossible for law enforcement to crack down on spammers. A 2005 attempt by the ITU to produce model law for spam based on a comparative analysis of national laws resulted in several important best practices that were ignored during the 2008 Amendment of the Act. For example, the definition of spam must cover the following characteristics - mass, unsolicited and commercial. All of which was missing in 66A.

Good quality law must be drafted by an open, participatory process where all relevant stakeholders are consulted and responded to before bills are introduced in parliament.

A scanned copy of the article was published in the Deccan Chronicle on March 26, 2015.

For more details visit https://cis-india.org/internet-governance/blog/deccan-chronicle-march-26-2015-sunil-abraham-fear-uncertainty-doubt

Facebook launches FB Newswire for journalists; loses part of its immunity under IT Act 2000

praskrishna — 2014-05-06T05:41:03Z

A bus accident in California, a fire in New Jersey and another in Vasant Kunj, NASA's successful test flight of its vertical take-off and landing craft, a ceremony to honour the sherpas who died during an avalanche at the Everest last week, and, Israel's suspension of talks with Palestinian authorities. These were some of the news that were disseminated on the first day of Facebook's newest social tool: a newswire to aid journalists and newsrooms.

The article was published in DNA on April 26, 2014. Sunil Abraham is quoted.

In a tie-up with News Corp's Storyful, Facebook launched the Newswire late on Thursday to function as a tool to aid journalists and newsrooms to "find, share and embed newsworthy content from Facebook in the media they produce". Apart from Facebook, the tool is also accessible on twitter at @FBNewswire.

"FB Newswire aggregates newsworthy content shared publicly on Facebook by individuals and organisations across the world for journalists to use in their reporting. This will include original photos, videos and status updates posted by people on the front lines of major events like protests, elections and sporting events," said Andy Mitchell, director of news and global media partnerships at Facebook, via a Facebook blog post.

Facebook has been in the centre of the internet security debate for a while; claiming immunity from legal provisions citing its non-curatorial approach and also denying responsibility for the news the social media network produces. "With the launch of this new tool, Facebook is not only curating information, it also directs knowledge of the content its produces through the newswire. That makes it legally responsible under the Information Technology Act (2000)", says Sunil Abraham, director of the Centre for Internet and Society (CIS).

The move is also seen as Facebook attempting to reach out to journalists, and eat away into the space that Twitter has occupied in the dissemination of information. Facebook has largely been operating as a social media network; and its move into the new-making space is seen as an expansion in that direction.

"There might be some competition for journalists and traditional media outlets. But largely, Facebook's tie-ups with broadcasters and political parties, where it has been promoting content in exchange for compensation, has not been transparent," says Abraham.

With more than a billion users, Facebook is considered the largest social media network. In a statement on April 24, Facebook revealed that more than half of the world's internet population now uses the social media network and recorded a 72% increase in its revenues in the first quarter of the year.

For more details visit https://cis-india.org/news/dna-amrita-madhukalya-april-26-2014-facebook-launches-fb-newswire-for-journalists-loses-part-of-its-immunity-under-it-act-2000

Encryption policy would have affected emails, operating systems, WiFi

praskrishna — 2015-09-25T01:23:10Z

Our email data would have to be stored. If we connect to a WiFi, that data would have to be stored, and that's plain ridiculous. There is a problem when the government tries to target citizens to ensure national security, said Pranesh Prakash, policy director at the Bangalore-based Centre for Internet and Society.

The article by Amrita Madhukalya was published in DNA on September 23, 2015.

The Draft National Policy on Encryption, withdrawn by the Department of Electronics and Information Technology (DeiTY) after it created a furore on privacy issues, would have had allowed the government access to any form of digital data that required encryption. Not limited to just WhatsApp or Viber data, it would have affected email services, WiFi, phone operating systems, etc.

"Our email data would have to be stored. If we connect to a WiFi, that data would have to be stored, and that's plain ridiculous. There is a problem when the government tries to target citizens to ensure national security," said Pranesh Prakash, policy director at the Bangalore-based Centre for Internet and Society.

The government, criticised heavily for the policy, withdrew it on Tuesday afternoon. It said that a new policy will be brought in its place.

Nikhil Pahwa of internet watchdog Medianama said that data about normal day-to-day activities would have to be stored if the policy was implemented. "The policy would have affected everyday business to consumer data.
This would mean that if a doctor or lawyer had your data digitised, they will be open to access, and would have to be kept for at least 90 days," said Pahwa.

However, he added that a robust encryption is needed. "It is believed that companies like Google, Facebook allow the NSA to access user data in the US, putting our personal security, and the national security largely, at risk," said Pahwa.

For more details visit https://cis-india.org/internet-governance/news/dna-september-23-2015-amrita-madhukalya-encryption-policy-would-have-affected-emails-operating-systems-wifi

Draft nonsense

pranesh — 2012-12-03T09:08:10Z

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

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

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

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

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

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

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

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

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