Centre for Internet and Society

Kapil Sibal & Co shoot down motion to kill IT Rules: cite terrorism, drugs

praskrishna — 2012-05-24T09:45:43Z

The Information Technology (Intermediaries Guidelines) Rules 2011 (The Rules) continue to breathe after the statutory motion to annul them moved by member of parliament (MP) from Kerala P Rajeeve was defeated by voice vote in the Rajya Sabha yesterday.

This blog post by Prachi Shrivastava was published in Legally India on May 18, 2012

Telecom Minister Kapil Sibal was heard on Rajya Sabha TV saying: “We are more liberal than US and Europe but let’s not cut our arms.”

Sibal countered Rajeeve’s annulment motion arguing that the government needs to be armed to meet the “new challenges” posed by “new media”, according to Mint.

"Kapil Sibal reminds me of badly briefed counsels fumbling in the High Court" tweeted Pranesh Prakash of the Centre for Internet and Society (CIS) as Sibal was mid-delivery in contending that online media not registered in India escaped the ambit of Indian legislation and thus created the peril of terrorism and increased drug peddling.

Another person tweeted: "The gist of Sibal’s argument was that we need to censor the internet because people are doing drugs."

Sibal’s answer to MP Ram Yadav’s attack on The Rules for being inconsistent with their parent act – the Information Technology Act 2000 (IT Act) – was that Rule 3(2) which prescribes “due diligence” to be observed by an internet intermediary, originates from Section 66A of the IT Act, thus making the rules consistent with the parent act.

Section 3(2) obligates the intermediary to take down content posted on a website, on the basis of several undefined criteria.

"Minister you have created perverse incentives for censoring speech through law. That is regulation, not merely a definition of due diligence” proclaimed Supreme Court advocate Apar Gupta in a tweet posted during Sibal’s defense of the rules.

Prakash tweeted: "The IT Rules don’t just prescribe ‘due diligence’ but create a takedown mechanism. That’s not the same thing Mr. Sibal."

Sibal went on to establish that the government’s motive was not censorious by stating: “It is your choice, you are free to work with the user who complains to an intermediary. Where does the government come in?”

To which quipped Prakash: “Government is not censoring. It has created a system by which anyone can censor with impunity.”

Jaitley in-perspective

Leader of the opposition senior advocate Arun Jaitley objected to The Rules holding that terms such as “disparaging”, ”libellous”, “defamatory” not defined in the Act or the Rules but enabling take-down of content, could be misused, according to Times of India.

IBN Live reported him as urging Sibal to "reconsider the language of restraints".

Sibal addressed the house inviting objections from MPs on specific “words” contained in The Rules which provide for control of speech over the internet, according to PTI.

He further proposed to call a meeting of “stakeholders” to discuss the MPs’ objections, and assured that the consensus that emerges from the meeting will be implemented.

Draconian Censorious Rules

Legally India reported last month how Rajeeve was trying to spread awareness among MPs about the draconian effect of the Rules which censor free speech and expression, by over-scrutinising users of the internet, over-authorising intermediaries to monitor content posted over the internet, and letting the government, individuals and institutions by-pass the due process of law.

The Rules in their present form require intermediaries - providers of internet, telecom, e-mail or blogging services, including cyber cafes - to publish terms of use prohibiting users from publishing content of the nature specified in the Rules.

Once the intermediaries have knowledge of posted content that is in violation of such terms of use, they are liable for compensation if they fail to initiate action for removal of the posted content.

Some of the categories of prohibited content specified in the Rules are undefined, are not an offence under existing law, and are claimed to be in violation of article 19(1) of the Constitution guaranteeing the freedom of speech and expression.

CIS uncovered an additional problem the rules pose - that of “over-complying” intermediaries who in order to minimize the risk of liability may block more content than required, adversely impacting the fundamental right guaranteed under article 19(1).

"By and large, the impression is that India is going in the direction of censorship," Mint reported cyber law expert and supreme court lawyer Pavan Duggal as saying, yesterday.

For more details visit https://cis-india.org/news/sibal-shoot-down-motion-to-kill-it-rules

Chilling Effects and Frozen Words

Lawrence Liang — 2012-04-30T07:32:17Z

What if the real danger is not that we lose our freedom of speech and expression but our sense of humour as a nation? Lawrence Liang's op-ed was published in the Hindu on April 30, 2012.

While freedom of speech and expression is an individual right, its actualisation often relies on a vast infrastructure of intermediaries.

In the offline world, this includes newspapers, television channels, public auditoriums, etc. It is often assumed that the internet has created a more robust public sphere of speech by doing away with many structural barriers to free speech. But the fact of the matter is that even if the internet enables a shift from a ‘few to many' to a ‘many to many' model of communication, intermediaries continue to remain important players in facilitating free speech. Can one imagine free speech on the internet being the same without Twitter, social networks or Youtube?

One way of thinking of the infrastructure of communication is in terms of ecology, and in the ecology of speech — as in the environment — an adverse impact on any component threatens the well-being of all. The idea of cyberspace as a commons is a much cherished myth and in the early days of the internet we were perhaps given a glimpse into its utopian possibility. But we would be deluding ourselves if we believed that the problems that plague free speech in the offline world (including ownership of the avenues of speech) are absent in cyberspace. Recall in recent times that one of the most effective ways in which various governments retaliated to the leaking of official secrets on WikiLeaks was by freezing Julian Assange's PayPal account.

Direct & Indirect Controls

It may be useful to distinguish between direct controls on free speech and indirect or structural controls on free speech. India has had a long history of battling direct and indirect controls on free speech and with a few exceptions the interests of the press have often coincided with the interests of a robust public sphere of debate and criticism.

In the late 1950s and early 1960s, a number of large media houses battled restrictions imposed on the press by way of control of the number of pages of a newspaper, regulation of the size of advertisements and the price of imported newsprint. On the face of it, some of these restrictions may have seemed like commercial disputes but the Supreme Court rightly recognised that indirect controls could adversely impact the individual's right to express himself or herself as well as to receive information freely.

In the online context, there has also been a similar recognition of the role of intermediaries in providing platforms of speech and it is with this view in mind that a number of countries have incorporated safe harbour provisions in their information technology laws.

Section 79 of the Information Technology Act is one such safe harbour provision in India which provides that intermediaries shall not be liable for any third party action if they are able to prove that the offence or contravention was committed without their knowledge or that they had exercised due diligence to prevent the commission of such offence or contravention. But this safe harbour has effectively been undone with the passing of the Information Technology (Intermediaries guidelines) Rules, 2011.

The rules clarify what standard of due diligence has to be met by intermediaries and Sec. 3(2) of the rules obliges intermediaries to have rules and conditions of usage which ensure that users do not host, display, upload, modify, publish, transmit, update or share any information that is in contravention of the Section. This includes the all too familiar ones (defamatory, obscene, pornographic content) but also a whole host of new categories which could be invoked to restrict speech (“grossly harmful,” “blasphemous,” “harassing,” “hateful”).

As is well known, any restriction on speech in India has to comply with both the test of reasonableness under Article 19(2) of the Constitution, as well as ensuring that the grounds of censorship are located within 19(2). Even though there are laws regulating hate speech in India, blasphemy is not a category under Art. 19(2) and has hitherto not been a part of Indian law. Some of the other categories such as “grossly harmful” suggest the people who drafted the rules seem to have taken a constitutional nap at the drafting board.

Sec. 3(4) of the rules provides that any intermediary who receives a notice by an aggrieved person about any violation of sub rule (2) will have to act within 36 hours and where applicable will ensure that the information is disabled. In the event that it fails to act or to respond, the intermediary cannot claim exemption for liability under Sec. 70 of the IT Act. It is worth noting that most intermediaries receive from hundreds to thousands of requests from individuals on a daily basis asking for the removal of objectionable material. The Centre for Internet and Society conducted a “sting operation” to determine whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on free expression.

In the course of the study, frivolous takedown notices were sent to seven intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled. The takedown notices which were sent by the researcher were intentionally defective as they did not establish how they were interested parties, did not specifically identify and discuss any individual URL on the websites, or present any cause of action, or suggest any legal injury. Of the seven intermediaries to which takedown notices were sent, six over-complied with the notices, despite the apparent flaws in them.

Caution

Even in cases where the intermediaries challenged the validity of the takedowns, they erred on the side of caution and took down the material. While a number of intermediaries would see themselves as allies in the fight against censorship, more often than not intermediaries are also large commercial organisations whose primary concern is the protection of their business interests. In the face of any potential legal threat, especially from the government, they prefer to err on the side of caution. The people whose content was removed were not told, nor was the general public informed that the content was removed.

The procedural flaws (subjective determination, absence of the right to be heard, the short response time) coupled with the vague grounds on which such takedowns can be claimed, clearly point to a highly flawed situation in which we will see many more trigger happy demands for offending materials to be taken down.

We have already slipped into a state of being a republic of over sensitivity where any politician, religious group or individual can claim their sentiments have been hurt or they have been portrayed disparagingly, as evidenced by the recent attack and subsequent arrest of Professor Ambikesh Mahapatra of Jadavpur University for posting cartoons lampooning Mamata Banerjee.

Nervous State

In the era of global outsourcing it was inevitable that the state censorship machinery would also learn a lesson or two from the global trends and what better way of ensuring censorship than outsourcing it to individuals and to corporations. The renowned anthropologist, Michael Taussig, once compared the state to a nervous system and it seems that the Intermediary rules live up to the expectations of a nervous state ever ready to respond to criticism and disparaging cartoons.

What if the real danger is not even that we lose our freedom of speech and expression but we lose our sense of humour as a nation?

The evident flaws of the rules have been acknowledged even by lawmakers, with P. Rajeeve, the CPI(M) M.P., introducing a motion for the annulment of the rules. The annulment motion is going to be debated in the coming weeks and one hopes that the parliamentarians will seriously reconsider the rules in their current form.

When faced with conundrums of the present it is always useful to turn to history and there is reason to believe that while censorship has a very respectable genealogy in Indian thought, it has also been accompanied in equal measure by a tradition of the right to offend.

In his delightful reading of the Arthashastra, Sibaji Bandyopadhay alerts us to the myriad restrictions that existed to control Kusilavas (the term for entertainers which included actors, dancers, singers, storytellers, minstrels and clowns). These regulations ranged from the regulation of their movement during monsoon to prohibitions placed on them, ensuring that they shall not “praise anyone excessively nor receive excessive presents”. While some of the regulations appear harsh and unwarranted, Bandyopadhay says that in contrast to Plato's Republic, which banished poets altogether from the ideal republic, the Arthashastra goes so far as to grant to Kusilavas what we could now call the right to offend. Verse 4.1.61 of the Arthashastra says, “In their performances, [the entertainers] may, if they so wish, make fun of the customs of regions, castes or families and the practices or love affairs (of individuals)”. One hopes that our lawmakers, even if they are averse to reading the Indian Constitution, will be slightly more open to the poetic licence granted by Kautilya.

Click for the original published in the Hindu on April 30, 2012. Lawrence Liang is a lawyer and researcher based at Alternative Law Forum, Bangalore. He can be contacted at lawrence@altlawforum.org

For more details visit https://cis-india.org/internet-governance/chilling-effects-frozen-words

Intermediary Liability in India: Chilling Effects on Free Expression on the Internet

Rishabh Dara — 2012-12-14T10:22:24Z

The Centre for Internet & Society in partnership with Google India conducted the Google Policy Fellowship 2011. This was offered for the first time in Asia Pacific as well as in India. Rishabh Dara was selected as a Fellow and researched upon issues relating to freedom of expression. The results of the paper demonstrate that the ‘Information Technology (Intermediaries Guidelines) Rules 2011’ notified by the Government of India on April 11, 2011 have a chilling effect on free expression.

Intermediaries are widely recognised as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. Most major jurisdictions around the world have introduced legislations for limiting intermediary liability in order to ensure that this wheel does not stop spinning. With the 2008 amendment of the Information Technology Act 2000, India joined the bandwagon and established a ‘notice and takedown’ regime for limiting intermediary liability.

On the 11th of April 2011, the Government of India notified the ‘Information Technology (Intermediaries Guidelines) Rules 2011’ that prescribe, amongst other things, guidelines for administration of takedowns by intermediaries. The Rules have been criticised extensively by both the national and the international media. The media has projected that the Rules, contrary to the objective of promoting free expression, seem to encourage privately administered injunctions to censor and chill free expression. On the other hand, the Government has responded through press releases and assured that the Rules in their current form do not violate the principle of freedom of expression or allow the government to regulate content.

This study has been conducted with the objective of determining whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on online free expression. In the course of the study, takedown notices were sent to a sample comprising of 7 prominent intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled.

The results of the paper clearly demonstrate that the Rules indeed have a chilling effect on free expression. Specifically, the Rules create uncertainty in the criteria and procedure for administering the takedown thereby inducing the intermediaries to err on the side of caution and over-comply with takedown notices in order to limit their liability; and as a result suppress legitimate expressions. Additionally, the Rules do not establish sufficient safeguards to prevent misuse and abuse of the takedown process to suppress legitimate expressions.

Of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them. From the responses to the takedown notices, it can be reasonably presumed that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression. Even if such intermediary has sufficient legal competence, it has a tendency to prioritize the allocation of its legal resources according to the commercial importance of impugned expressions. Further, if such subjective determination is required to be done in a limited timeframe and in the absence of adequate facts and circumstances, the intermediary mechanically (without application of mind or proper judgement) complies with the takedown notice.

The results also demonstrate that the Rules are procedurally flawed as they ignore all elements of natural justice. The third party provider of information whose expression is censored is not informed about the takedown, let alone given an opportunity to be heard before or after the takedown. There is also no recourse to have the removed information put-back or restored. The intermediary is under no obligation to provide a reasoned decision for rejecting or accepting a takedown notice.

The Rules in their current form clearly tilt the takedown mechanism in favour of the complainant and adversely against the creator of expression.

The research highlights the need to:

increase the safeguards against misuse of the privately administered takedown regime

reduce the uncertainty in the criteria for administering the takedown

reduce the uncertainty in the procedure for administering the takedown

include various elements of natural justice in the procedure for administering the takedown

replace the requirement for subjective legal determination by intermediaries with an objective test

Click to download the report [PDF, 406 Kb]

Appendix 2

The above documents have been sent to:

Shri Kapil Sibal, Minister of Human Resource Development and Minister of Communications and Information Technology
Shri Milind Murli Deora, Minister of State of Communications and Information Technology
Shri Sachin Pilot, Minister of State, Ministry of Communications and Information Technology
Dr. Anita Bhatnagar, Joint Secretary, Department of Electronics & Information Technology, Ministry of Communications & Information Technology
Dr. Ajay Kumar, Joint Secretary, Department of Electronics & Information Technology, Ministry of Communications & Information Technology
Dr. Gulshan Rai, Scientist G & Group Coordinator, Director General, ICERT, Controller Of Certifying, Authorities and Head of Division, Cyber Appellate Tribunal

For more details visit https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet

Private sector censors

praskrishna — 2012-04-26T13:30:47Z

If business decides what’s ‘good’ and ‘bad’ speech, it can lead to multiple interpretations and arbitrary decisions. The article by Salil Tripathi was published in LiveMint on April 25, 2012.

In Milan Kundera’s 1967 Czech novel, Žert (The Joke), Ludvik Jahn sends a postcard to an intense classmate who takes herself too seriously. In the card, he makes sarcastic comments against the Communist Party. Unsurprisingly, others don’t see the joke. He gets expelled from the party, conscripted and has to work in mines.

While The Joke was a work of fiction, in the real Soviet era as punishment for such actions, many people lost jobs, sometimes their homes; some went to jail, often betrayed by those they trusted. In Czechoslovakia (as the country was then known), the state ran the postal service and those who read the postcard were party members. In India, the private sector provides Internet access and others don’t have the legal right to see what’s being transmitted, unless they are intended recipients, or if the material is broadcast publicly. The state now wants the private sector to police and censor the Internet.

Under the draconian Information Technology (Intermediaries Guidelines) Rules, 2011, any intermediary (a search engine, a website, a domain name registry, a service provider, or a cyber café) must take down the “offending” material from its website within 36 hours. The intermediary need not inform the person who posted the material, nor would the creator get the right to respond. As Apar Gupta points out on the Indian Law and Technology Blog, in one recent case, based on these rules, an injunction has been granted.

These rules go significantly beyond the existing restraints on speech. The Constitution limits speech and sections of the criminal code impose further restrictions. To that, add the IT rules’ vaguely defined terms of what can’t be said—content which is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libelous, 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, harms minors in any way, or infringes any patent, trademark, copyright, or other proprietary right”. Who decides that? The intermediaries.

These rules make the private sector act like the state. Nobody elected business to play such a role; it does not have the expertise, capacity, legal training, or authority to act as the state. Censorship is bad; whether in state or private hands. If business decides what’s “good” and “bad” speech, it can lead to multiple interpretations and arbitrary decisions, without recourse to appeal. In a country where those who feel offended have often threatened violence, businesses will understandably take the cautious approach and not allow anyone to say anything that’s remotely controversial, even if it is an opinion about a film.

Decisions will be made on opaque criteria. Apple and Amazon have arbitrarily stopped some products from being sold on their electronic stores, citing “community standards”. Amazon stopped providing server space to WikiLeaks, even though no government had asked it to do so. Credit card companies stopped processing donations going to WikiLeaks, without any legal order. Even Google, which has admirably stood up to China’s bullying, has had to take down content when governments have required that it does so through proper legal channels. India’s record is poor: of the 358 complaints India lodged with Google, 255 were about content that was controversial or political, but not illegal.

To demonstrate the reach of the rules, the Centre for Internet and Society in Bangalore sent random notices to seven companies, asking them to take down content. Of them, six complied beyond what they were called upon to do—instead of the three pages that the centre asked for, one company blocked an entire website. A few legally worded letters were enough to get compliance from companies. The centre’s executive director, Sunil Abraham, told me recently: “Companies which have no interest in free speech are now taking these decisions. They have the power to do so and they are using it without any sense of responsibility.”

Aseem Trivedi knows this well. The cartoonist who ran a website called cartoonistsagainstcorruption.com, found that his site had disappeared after a complaint from an individual that the cartoons violated laws. Since then he has been campaigning for freedom on the Internet. Everyone’s freedom is at stake—whether you want to see cartoons of Sonia Gandhi, Narendra Modi, Ramdev, Kisan Hazare, Binayak Sen, Arundhati Roy, Sachin Tendulkar, Poonam Pandey and even Mamata Banerjee. And yet look at what happened to Ambikesh Mahapatra, the professor who sent a cartoon mocking Banerjee to some friends via the Internet. He was arrested and later roughed up. These rules chill speech.

Last year, Kapil Sibal, minister for information technology, asked companies to screen content manually and censor the Web. The demand was audacious. It showed lack of understanding of how the Internet works and revealed fundamental ignorance of the state’s role: it has to protect the rights of the one who wishes to express and not the one who claims offence.

In Parliament, P. Rajeev, member of Parliament (Rajya Sabha), wants to annul those rules. Everyone should support him.

Read the original in LiveMint here

For more details visit https://cis-india.org/news/private-sector-censors

Views | Why the Left may for once be right

praskrishna — 2012-04-25T11:48:50Z

The article by Pramit Bhattacharya was published in LiveMint on April 23, 2012.

India’s information technology (IT) minister, Kapil Sibal appears to be running into rough weather over IT rules framed last year, which curb freedom of expression on the internet. The rules have incensed India’s growing blogging community and piqued at least a few of his fellow parliamentarians.

On the opening day of the upcoming parliamentary session on Tuesday, the Rajya Sabha is set to vote on an annulment motion against the IT rules, moved by P. Rajeeve of the Communist Party of India (Marxist), a rediff.com report said. Ironically, the party that still treats Stalin as a hero (quoting him unfailingly in its political resolutions) has become the first to stand up for internet freedom.
Rajeeve is of course not the only parliamentarian to take exception to the rules. Jayant Choudhry, a member of parliament (MP) from the Rashtriya Lok Dal, was the first to draw attention to the draconian rules late last year, and MPs from other regional parties such as the Samajwadi Party and the Asom Gana Parishad criticized the rules in a parliamentary discussion in December.

Two sets of rules, one governing cyber cafes and the other relating to intermediaries have attracted most criticism. The rules relating to intermediaries such as internet service providers, search engines or interactive websites such as Twitter and Facebook are the most disturbing. Intermediaries are required under the current rules to remove content that anyone objects to, within 36 hours of receiving the complaint, without allowing content creators any scope of defence.

The criteria for deciding objectionable content, laid down in the rules, are subjective and vague. For instance, intermediaries are mandated to remove among other things, ‘grossly harmful’ content, whatever that may mean.

This is a unique form of ‘private censorship’ that will endanger almost all online content. In this age of easily offended sensibilities, it is virtually impossible to write anything that does not “offend” anyone. For instance, even this piece may be termed ‘grossly harmful’ to the CPI(M) party.

However far-fetched this may sound, this has already become a reality. A researcher working with the Bangalore-based Centre for Internet and Society (CIS) tried out such a strategy with several different intermediaries, and was successful in six out of seven times, always with frivolous and flawed complaints, Pranesh Prakash of CIS wrote in a January blog-post. It has become much easier in India to ban an e-book than a book, Prakash pointed out.

The rules regulating cyber cafes are no better. Cyber cafes are required to keep a log detailing the identity of users and their internet usage, which has negative implications for privacy and personal safety of users, analysis of the rules by PRS legislative research said.

Internet freedom in India has declined over time and is only ‘partly free’, a 2011 report on internet freedom by US-based think tank, Freedom House said. India has joined a growing club of developing nations where, “internet freedom is increasingly undermined by legal harassment, opaque censorship procedures, or expanding surveillance,” the report noted.

The only saving grace is that some of the IT rules are drafted in a language so arcane that anyone will find it hard to decipher them, leave alone implementing them. Sample this: “The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force: provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.”

The first task at hand for Sibal may be to explain to fellow lawmakers what the above rule is supposed to mean, before he defends such rules.

Click for the original, Pranesh Prakash is quoted in this article.

For more details visit https://cis-india.org/news/left-may-for-once-be-right

Campaign against curbs on websites gathers steam

praskrishna — 2012-04-25T11:19:29Z

For political cartoonist Aseem Trivedi and his blogger-cum-journalist friend Alok Dixit, who both ran a website against corruption, a tryst with the blind side of law triggered their mission against “gagging” of the new-age Indian Internet user.

The blog post by Arpan Daniel Varghese was published by IBN Live on April 23, 2012.

It all started when they were in Mumbai, taking part in the first public protest seeking a strong Lokpal led by social activist Anna Hazare. “During the course of the protest, we got word that our website had been taken off,” recalls Alok.

The Mumbai Police had banned the website without any prior notice, apparently after a complaint was filed by a Congress leader that some content on the site, CartoonsAgainstCorruption, was objectionable, he says.

“We then contacted Bigrocks, the domain provider, but they did not divulge the exact procedure to restore our website,” he adds.

Kerala High Court lawyer P Jacob, who has a masters in cyber law and is a researcher in the field, clarifies. “Let’s say that you are a website, blog or domain owner... As per the intermediary rules incorporated into the IT laws, introduced through an amendment in 2011, if a third person sends a complaint, be it a frivolous one, to you (the intermediary ) about some objectionable content, you will have to take off the said content within 36 hours.”

This could happen to any one and could be quite dangerous, points out Sunil Abraham, the executive director of The Centre for Internet and Society (CIS-India).� “If a company wants to target your organization’s social media network, they can keep sending fraudulent emails to you and you will have to keep deleting it unless you are ready to face litigation or government action. And then there is no penalty for abusing the provision. There is no transparency, the people who comment will not be told,” says Sunil.

It was this realization that drove Alok, who then quit his job as a reporter, and Aseem Trivedi to start a movement against such blind curbs. ‘Save Your Voice’ was thus born.

A research conducted by the CIS gave further credence to their fears that it was very “easy to ban any website in India.”

“We call it a policy sting operation,” details Sunil. “We sent out fraudulent take- down notices (or complaints) to seven of the largest intermediaries in India. They gladly over-complied and promptly took off the material in question. You can try this. You could look at a legitimate comment and complain that this is blasphemous, offensive or plain annoying. And without questioning your locus standi, the intermediary sites will have to take it off.”

For more details visit https://cis-india.org/news/campaign-against-curbs-on-websites

Expect anti-net censorship echo in house

praskrishna — 2012-04-25T11:07:43Z

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

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

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

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

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

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

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

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

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

Read the original here

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

Mobilising support for freedom on the Web

praskrishna — 2012-04-25T11:02:58Z

A motion in the Rajya Sabha has sought annulment of the IT intermediary guidelines, writes Deepa Kurup in this article published in the Hindu on April 22, 2012.

A research, or a sting operation, conducted by researchers at the Centre for Internet and Society in October 2011 — a few months after the Information Technology (Intermediary Guidelines) Rules were notified — revealed some inherent flaws in the guidelines laid down by the Indian government. The results of the study made news, particularly after Union Minister for IT, Kapil Sibal, asked Internet companies and Web service providers to screen content.

The study revealed that companies were only too eager to comply with take-down notices or requests, in order to avoid further hassles, particularly legal ones.

Rishab Dara, a researcher who was part of this ‘sting', pointed out that unless the content was commercial, or had potential commercial interest, companies preferred to err on the side of caution.

Addressing an audience at a panel discussion, titled ‘Resisting Internet censorship: strategies for furthering freedom of expression in India', held at the Bangalore International Centre, Mr. Dara pointed out that search engines did not invest enough resources to check how valid the claims were, before taking down over 2,000 URLs related to a random complaint or take-down notice sent by them. His study underlined the need for debate and discussion on the intermediary guidelines, locating this in the larger context of freedom on the Web.

The discussion, organised by the Centre for Internet and Society, was moderated by the former journalist and academic, Paranjoy Guha Thakurta. The audience and the panel comprised a diverse lot: from students, netizens and academics to those who were directly involved in the business of publishing content or hosting Web content. While a substantial part of the discussion dealt with the legal aspects of the notified rules, and how it may contradict the constitutional rights of citizens, a section of the debate also delved into whether the Web as a medium needed to be policed at all.

If panellist Mahesh Murthy, Chief Executive Officer of Pinstorm, argued vociferously for unfettered freedom on the Web and accused the government of being threatened by movements such as the anti-corruption campaign led by Anna Hazare (which he said was largely mobilised on the Web), another panellist Na. Vijayshankar, Cyber Law College, who claimed he was among those instrumental in bringing down the pornographic cartoon portal Savitabhabhi.com, argued that though these rules need to be withdrawn, there are “boundaries” to what can be posted and said on the Web.

Another section of the audience brought up the issues of hate speech on the Web, and pointed out that in some cases there was a need to pin liability on those who generate content that incites hatred.

Sudhir Krishnaswamy, Centre for Law and Policy Research, pointed out that currently the way the issue was being played out in court, the discourse was more about companies.

“The debate is not about users today. Companies are trying to duck liabilities, rather than deal with substantive issues of free speech,” he said, pointing to the complexities in locating liability for content.

Speaking from the publisher's perspective, B.G. Mahesh, OneIndia.in, an online news and entertainment portal, spoke of specific cases where his portal had been targeted by the Chennai Cybercrime cell for hosting a news story (syndicated from a news agency) that was declared defamatory. “We took it down, but there was no answer from them when we asked for an explanation,” he said, adding that in such cases there is tremendous pressure and harassment from authorities, leaving publishers with no choice but to comply.

Though the IT intermediary rules were notified in April 2011, the issue made headlines when Union Minister for Information and Communication Technology Kapil Sibal asked private companies or Web service providers to pre-screen content, a statement which he later withdrew.

Also discussed in detail were the complexities posed by a medium like the World Wide Web, and what were the reasonable restrictions to free speech on the Web. Does one need a separate legal dispensation to deal with this medium, Mr. Thakurta asked. While emphasising that the solution does not lie in “knee-jerk reactions”, such as the rules that have been proposed, he pointed out that the bid to control flow of information was a simple manifestation of the utter helplessness and inability of the government — and governments worldwide — to control the Web. Be it in West Bengal, where a professor is held for sharing a cartoon, or with the Union government that beckons corporates to pre-screen the Web, these acts are a manifestation of a “combination of arrogance and stupidity”, he said.

Subsequently, in February, Rajya Sabha member from Kerala, P. Rajeeve, moved a statutory motion in the Rajya Sabha seeking that these guidelines be annulled on the grounds that it allowed intermediaries protection from legal liability in return for trading away freedom of expression of users.

In the Parliamentary session that will start next week, this is likely to come up for discussion, and across the country, rights activists are mobilising support and lobbying with legislators to garner support for this annulment.

Read the original here

For more details visit https://cis-india.org/news/mobilising-support-for-freedom-on-web

MPs to be taught ‘draconian’ IT Act Rules as India.net support galvanises for annul motion

praskrishna — 2012-04-25T10:39:48Z

The blog post by Prachi Shrivastava was published in Legally India on April 23, 2012.

Rajya Sabha’s member of parliament (MP) from Kerala, P Rajeeve, whose statutory motion to annul the IT (Intermediaries Guidelines) Rules 2011 is slated for discussion in Parliament tomorrow, aims to convene a meeting of MPs, internet societies, and bloggers in the first week of May to create awareness against the draconian effect of the rules.

“Most of the MPs need to know about this,” Rajeeve told Legally India, explaining that statutory motions are generally not easy to pass. “Actually we are trying to create awareness by organizing a session. The issue will be the IT Rules 2011 and how it is against the constitution, how it is against natural justice, how it is against due process of law.”

“The motion has been accepted. The committee has allotted time for discussion on the twenty fourth. Thereafter it will come to the house. In this part of the session I am trying to coordinate other MPs to get support”, he said.

Rajeeve’s motion of 23 March 2012, as first reported by CIS-India, was not his first attempt at bringing the IT rules into the spotlight. When the rules were in draft stage, he had made a zero hour mention against them for being in violation of freedom of speech and expression, by over-scrutinising bloggers, over-authorising intermediaries, and letting the government, individuals and institutions by-pass the due process of law.

Rajeeve was one of the nine panelists in the open discussion on “Resisting Internet Censorship”, organised by the Centre for Internet and Society (CIS) and Foundation for Media Professionals, in Bangalore on Saturday, 21 April. The discussion, addressing an audience of 40, was moderated by veteran journalist Paranjoy Guha Thakurta.

Other panelists included Mahesh Murthy, founder of digital marketing website Pinstorm, Sudhir Krishnaswamy, founding member of Centre for Law and Policy Research, Na Vijayashankar, director of Cyber Law College, and Siddharth Narain from the Alternative Law Forum.

Also on the panel were Rishabh Dara, Google policy fellow who conducted a study last year on intermediary liability in India and its chilling effects on free expression, BG Mahesh, founder of Oneindia.com, Ram Bhat, co-founder of community media collective Maraa, and Pranesh Prakash, programme manager at CIS.

Prakash said that the discussion brought together different perspectives, even those of the entrepreneur, like BG Mahesh and Mahesh Murthy. “Transparency in the terms of censorship is good. We are not saying all censorship is bad, but that it should be transparent.”

Prakash told Legally India about the various experiences shared by panelists, of the lack of transparency in the present system of censorship. While one faced harassment by the police over trivial procedural compliances, there was complaint for defamation against an article syndicated by another from a different publication’s press release. “And we read the article over and over and over again but couldn’t find anything which was remotely defamatory.”

Legal experts on the panel, Kirshnaswamy and Vijayashankar, spoke about the constitutionalism behind free speech provisions. Narain shed light on the fact that while excessive energy has been expended on highlighting which content should not be banned, little has been spent on examining the operative procedures behind censorship.

Dara spoke about his research and how it not only revealed that content was being frivolously removed on complaints to intermediaries, but also that the people whose content was being removed were not being informed of the same. There was no public notice of the removal.

Bhat’s discourse drew attention to the history of censorship in India and elicited the fact that the Indian press has in fact been censored in an upsetting manner even since the revolt of 1857.

Murthy made the observation that statistically speaking, in India the number of internet users exceeds television watchers, which has made social media unfathomably important while the internet is no longer elitist.

A number of related Indian initiatives have been gathering momentum in recent months, such as signature campaigns for internet freedom, and offline protests such as the Free Software Movement in Karnataka and the Save your Voice in Delhi, are the order of the day. Other actions include writing to MPs, asking them to vote in favor of Rajeeve’s statutory motion for annulment of the IT rules.

Kerala-based advocate Shojan Jacob filed the first ever writ challenging the rules in the Kerala High Court last month.

The rules enable any individual or public or private institution to get content removed from websites, in most cases simply by notifying the website owners or intermediaries such as Google, Yahoo and others.

Takedown requests can be based on any of 15 vaguely drafted parameters, without stating any reasons or requiring any judicial or quasi-judicial order in support.

Click to read the original.

For more details visit https://cis-india.org/news/draconian-it-rules

Save Your Voice — A movement against Web censorship

praskrishna — 2012-03-13T11:44:27Z

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

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

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

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

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

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

Prometheus bound and gagged

praskrishna — 2012-02-14T04:47:46Z

Funny how a healthy person like me can collapse one day and end up in the hospital. The doctor who made me go through every lab test available, finally diagnosed the cause after a chat with me. Apparently, I collapsed because I’m getting angry, increasing my blood pressure. The only solution he said is to stop reading newspapers, as I’m getting agitated by headlines like ‘India can go the China way and block sites’, or by how the government says there’s no Internet censorship while all it’s actions point the other way.

The article by Adarsh Matham was published in the New Indian Express on 20 January 2012. Pranesh Prakash is quoted in this article.

Censorship is a word that is particularly abhorrent for someone like me, who grew up listening to tales of how people like Ramnath Goenka fought the censors during the Emergency. And to say that we’ll start blocking websites in India like China is doing, the most heart wrenching moment I’ve ever heard. While researching for this piece, I came across some information that is out in the open on the Internet, but which is not generating the level of debate it deserves. We seem to be immersed in discussing Kolaveri, while slowly sliding into an Orwellian nightmare. As an example, I didn’t know there are rules called ‘Intermediary Guidelines’ and ‘Cyber cafe rules’, and I bet you didn’t either. As Pranesh Prakash of Centre for Internet and Society (CIS) has pointed out in a blog post, these two rules alone, made up by the Department of IT in April 2011, give the government and citizens of India great powers at censoring the web by allowing them to get Internet firms to remove content that is ‘disparaging’, ‘doesn’t have rights to’, etc.

Killing freedom of speech is only the first crime of these rules as proved by the good people at CIS. To test these rules, they complained against some frivolous content to ISPs and Internet companies, which resulted in six out of seven listings being removed without informing posters or users. More alarmingly, of the 358 items the Government of India (and some states) has requested Google to remove, only eight were for hate speech, one for national security, and an astounding 255 for ‘government criticism’.

Since introducing these draconian rules, the tale only gets murkier. Not content with asking Internet firms to self-regulate, Kapil Sibal has introduced an amendment to the Copyright Act, which introduces section 52(1)(C ), that allows anyone to send a notice complaining about infringement of his copyright. While this sounds normal, the catch is that ‘the Internet company has to remove the content immediately without question, even if the notice is false or malicious’. This amendment is before Rajya Sabha, and considering how our Parliament passes bills without a debate, it’ll become a law very soon.

Baleful rules and people behind them fail to realise that such efforts will lead to the Streisand effect, whereby attempts to hide any information will lead to it being publicised more widely. Yes more widely, because you can take out some content, but India’s youth will re-post it in a million places within minutes, like they do with pirated movies. We play a lot of cunning games just to live peacefully in India already. Please don’t let us play them online too.

The writer is a tech geek.
Email: articles@theadarsh.net

For more details visit https://cis-india.org/news/prometheus-bound-and-gagged

Twitter’s Censorship Move Aimed at Regaining China?

praskrishna — 2012-01-30T04:54:51Z

Twitter, the popular social networking site for micro-blogging, has announced it is open to content censorship and region-based filtering, if required by law. The service boasts nearly 300 million users from across the world. Vinod Yalburgi writes this in the International Business Times.

In a Twitter post - "Tweets Must Still Flow", the service's management has stated: "Starting today, we give ourselves the ability to reactively withhold content from users in a specific country, while keeping it available in the rest of the world."

Twitter's drastic move comes in the wake of recent U.S. government allegations against Internet sites like Google, Yahoo and Facebook, regarding the need to regulate and filter controversial user-generated content. Both Google and Facebook have made similar commitments.

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However, it must be seen if either of the three do follow through with those commitments.

Meanwhile, experts quoted in a report by The Times of India, where too social networking Web sites are coming under the scanner, suggest the lack of clarity in laws in countries like India means Twitter can only act reactively; the situation in Germany or France, for example, where laws about pro-Nazi propaganda are codified, they can act proactively.

Another post by Twitter speaks of a new feature that will allow the site's administrators to enable region-based selective content blocking, thereby allowing region-sensitive information to remain hidden from users in those areas. The post also cited the example of Germany and France: "Some countries differ so much from our ideas that we will not be able to exist there. Others restrict certain types of content, such as France or Germany, which ban pro-Nazi content."

There is also speculation that one reason for this decision could be Twitter's plans to re-enter the Chinese market, where the micro-blogging service has been banned since 2009. Incidentally, China boasts the largest number of Internet users in the world, at this moment.

The hope, for Twitter, must be the promise to block sensitive tweets (or those the Chinese government deems offensive) without affecting the global audience. Twitter has rarely resorted to such censorship practices. However, the company does not seem unwilling to shy away from that responsibility.

"...if and when we are required to withhold a tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld," the company's statement said.

"The region-specific blocking was already being used on video hosting websites like Youtube and Hulu, where due to the wishes of copyright owners many videos are not available in India. Twitter is extending this technology to its tweets," said Pranesh Prakash at the Centre for Internet and Society in Bangalore, India.

"We have to take care of the sensibilities of our people. Cultural ethos is very important to us," Kapil Sibal, the Indian Telecom Minister, said last month, during his request to both Google and Facebook to filter offensive content.

The trend of social networking Web sites resisting censorship seems a thing of the past. Prakash recalls an incident in 2011, when the U.S. government sought detailed information about a Twitter user, only to be challenged, by the Internet company, in court.

Read the original published by International Business Times on 28 January 2012. Pranesh Prakash was quoted in it.

For more details visit https://cis-india.org/news/twitter2019s-censorship-move-aimed-at-regaining-china

Privacy Matters — Analyzing the Right to "Privacy Bill"

natasha — 2012-02-15T04:27:28Z

On January 21, 2012 a public conference “Privacy Matters” was held at the Indian Institute of Technology in Mumbai. It was the sixth conference organised in the series of regional consultations held as “Privacy Matters”. The present conference analyzed the Draft Privacy Bill and the participants discussed the challenges and concerns of privacy in India.

The conference was organized by Privacy India in partnership with the Centre for Internet & Society, International Development Research Centre, Indian Institute of Technology, Bombay, the Godrej Culture Lab and Tata Institute of Social Sciences. Participants included a wide range of stakeholders that included the civil society, NGO representatives, consumer activists, students, educators, local press, and advocates.

Comments to the Right to Privacy Bill

Welcome

Prashant Iyengar was the Lead Researcher with Privacy India, opened the conference with an explanation of Privacy India’s mandate to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. He summarized the five “Privacy Matters” series previously organised across India in Kolkata on January 23, 2011, in Bangalore on February 5, 2011, in Ahmedabad on March 26, 2011, in Guwahati on June 23, 2011 and in Chennai on August 6, 2011.

Keynote Address

Na. Vijayashankar (popularly known as Naavi), a Bangalore based e-business consultant, delivered the key note address on the quest of a good privacy law in India.

He described the essential features of good privacy legislation. In analyzing the Draft Privacy Bill’s definition of the right to privacy, he suggested it should be defined through the “right to personal liberty” rather than through what constitutes “infringements”. Mr. Vijayashankar went on to explain that the “privacy right” should be taken beyond “information protection” and defined as a “personal privacy or a sense of personal liberty without constraints by the society”. He explained the various classifications and levels of protection associated with the availability and disclosure of data. He expressed concerns regarding monitoring of data processors and suggested that data controllers have contractual agreements between data processors, so as to ensure an obligation of data security practices. He also called for the simplification and division of offences and suggested numerous reasons as to why the Cyber Appellate Tribunal would not be an ideal monitoring mechanism or authority. See Naavi's presenation here

Session I: Privacy and the Legal System

Dr. Sudhir Krishnaswamy, Assistant Professor at the National Law School of India

Dr. Krishnaswamy started off the presentation by questioning the normative assumptions the Draft Privacy Bill makes. He referred to the controversy of Newt Gingrich's second marriage, to question the range of moral interests that were involved. The Bill falls short in accounting for dignity in relation to privacy.

He described the Draft Privacy Bill as a reasonable advance, given where privacy laws were before. Although, he feels that it does fall short, in terms of a narrow position, on what privacy law should do. He also questioned if it satisfies constitutional standards. He stressed the importance of philosophical work around the Draft Privacy Bill considering that the nature of privacy is not neat and over-arching.

Privacy and the Constitutional Law

N S Nappinai, Advocate, High Court, Mumbai,

Nappinai spoke on the constitutional right to privacy. She explained the substantial development of Article 21 of the Constitution of India to include the ‘right to privacy’ with regards to its interpretation and application. She described the different shift of the application of the right to privacy in the West in comparison to India. The West has moved from the right to privacy pertaining to property to the right to privacy concerning personal rights, whereas India moved from personal rights to property rights. She outlined three aspects of privacy: dignity, liberty and property rights.

Ms. Nappinai dissected the Bill in its major components: interception, surveillance, method and manner of personal data, health information, collection, processing and use of personal data. Using these components, she questioned what precedence exists? What should be further protected or reversed? What lessons should legislators draw from?

Shortcomings of the Draft Right to Privacy Bill falls include:

The objects and reasons section in the Draft Privacy Bill declares the right to privacy to every citizen as well as delineates the collection and dissemination of data. Nappinai dismisses the need for this delineation on the grounds that data protection is an inherent part of the right to privacy, it is not exclusive.
Large focus on transmission of data. The provisions do not account for property rights pertaining to the right to privacy. Therefore, the ‘knock-and-enter’ rule, the ‘right to be left alone’ and the ‘right to happiness’ should be included.
Applicability of the Bill should extend to all persons as well as data residing within the territory. It would be self-defeating if it only includes citizens, considering that the Constitution extends to all persons within the territory.
The right to dignity is unaccounted for.

See Nappinai's presentation here

Session II: Privacy and Freedom of Expression

Apar Gupta, Advocate, Delhi

Apar Gupta is an advocate based in Delhi who specializes in IP and electronic commerce law, spoke predominantly on the interplay between privacy and freedom of expression. He used the example of an advocate tweeting about his criticism of a judges’ ruling, to illustrate how different realms of online anonymity enable freedom of speech. He went beyond the traditional realm of journalistic architecture such as television channels or newspapers and explained online community disclosure.

Mr. Gupta provided a practical example of Indian Kanoon, a popular online database of Indian court decisions. Because Indian Kanoon is linked to the Google search engine, many individuals involved in civil and criminal matters have requested Indian Kanoon to remove the court judgments, under privacy claims. This particularly occurs with individuals involved in matrimonial cases. However, as court judgment constitute public records India Kanoon only removes court judgments when requested by a court order.

He described the several ways legislators can define privacy and freedom of expression. Considering that the privacy of an individual may border upon freedom of speech and expression, he questioned whether or not privacy should override the right to freedom of speech and expression. In addition, Mr. Gupta discussed the debate on whether or not the Privacy Bill should override all existing provisions in other laws.

Additionally, he analyzed the provisions of the Draft Privacy Bill using three judgments. In these judgments, different entities sought of various forms of speech to be blocked under privacy claims. He spoke about the dangers of a statutory right for privacy that does not safeguard freedom of speech and expression. Considering that the privacy statute may allow for a form of civil action permitting private parties to approach courts to stop certain publications, he stressed the importance for legislators to ensure balanced privacy legislation inclusive of freedom of speech and expression.

Sexual Minorities and Privacy

Danish Sheikh, researcher at Alternative Law Forum

Danish examined the status of sexual minorities in the light of privacy framework in India. The tag of decriminalization has served to greatly alter the way institutions approach the question of privacy when it comes to sexual minorities. He used the Naz Foundation judgment as a chronological marker to map the developments in the right to privacy and sexual minorities over the years.

He outlined four key effects on the right to privacy due to the Naz Foundation judgment:

Prepared the understanding of privacy as a positive right and placed obligations on the state,
Discussed privacy as dealing with persons and not just places, it took into account decisional privacy as well as zonal privacy,
Connected privacy with dignity and the valuable worth of individuals, and
Included privacy on one’s autonomous identity.

He described various incidents that took place before the Naz Foundation judgment, pre-Naz, that altered the way we conceived of queer rights in general and privacy in particular, including the Lucknow incidents, transgender toilets, passport forms, the medical establishment and lesbian unions. Post-Naz, he described two incidents including the Allahabad Muslim University sting operation as well as the TV9 “Expose” that captured public imagination.

He concluded by asking: “What do these stories tell us about privacy?” The issues faced by the transgender community tell us that privacy doesn’t necessarily encompass a one-size-fits-all approach, and can raise as many questions as it answers. The issues faced by the Lucknow NGOs display the institutionalized disrespect for privacy and that has marginally more devastating consequences for the homosexual community by the spectre of outing. The issues faced by lesbian women evidence yet another need for breaching the public/private divide, demonstrating how the protection of the law might be welcome in the family sphere. Alternate sexual orientation and gender identity might bring the community under a common rubric, but distilling the components of that rubric is essential for engaging in any kind of useful understanding of the community and the kind of privacy violations it suffers – or engage with situations when the lack of privacy is empowering.

Session III: Privacy and National Security

Menaka Guruswamy, Advocate, Supreme Court of India

Menaka explored national security and its relationship to privacy. In her presentation, she compared the similar manner in which the courts approach national security and privacy issues. The courts feel national security and privacy issues are too complex to define, therefore, they take a case-by-case approach.

Ms. Guruswamy described three incidents that urged her to question national security and privacy. First, she was interested in the lack of regulation surrounding intelligence agencies and was involved in the introduction of the Regulations of Intelligence Agencies Bill as a private members bill. Second, national security litigation between the Salwa Judum judgment and the State of Chhattisgarh is an example of how national security triumphs constitutional rights and values. Third, privacy in the context of the impending litigation of Naz Foundation in the Supreme Court. She described the larger conversation of national security focus on values of equality and privacy. She discussed the following questions that serve in advancing certain conception of rights:

How do we posit privacy which necessarily, philosophically as well as judicially, is carved out as the right of an individual to be left alone?
What are the consequences when national security, which is posited as the rights of the nation, is in conflict with the right of the individual to be left alone?
Considering that constitutional rights are posited as a public facet of citizenship how does a right to privacy play in that context?

Privacy and UID

R. Ramakumar, professor at the Tata Institute of Social Sciences

Prof. Ramakumar spoke on UID, its collection of information and the threat to individual privacy. First, he provided a historical trajectory of national security that has led to increased identity card schemes. He described the concrete connection between UID and national security.

He briefed the gathering on the objectives of the UID project. He described several false claims as proposed by the UIDAI. He explicitly disproved the UIDAI claim that Aadhaar is voluntary. He did this by comparing various legislations associated with the National Population Registrar that had provisions mandating the inclusion of the UID number.

He went on to explain that the misplaced emphasis of technology to handle large populations remains unproven. He described two specific violations of privacy inherent in the UID system: convergence of information and consent. The UID database makes it possible for the linking or convergence of information across silos. In addition, consent is unaccounted for in the UID system. The UID enrollment form requires consent from a person to share their information. However, the software of the enrollment form automatically checks ‘yes’, therefore you are not asked. Even if you disagree, it automatically checks ‘yes’. Default consent raises the important question, “to what extent are we the owners of our information?” and “what are the privacy implications?”

Mr. Ramakumar was once asked, by Yashwant Sinha in a Parliamentary Standing Committee meeting, “Is the Western concept of privacy important in developing country like India?”. Using this question posed to him, he stressed the importance of privacy to be understood as a globally valued right, entitlement and freedom. He also referred to Amartya Sen’s work on individual freedoms.

Conclusion

During the daylong consultation numerous questions and themes relating to privacy were discussed:

How is the right to privacy defined?
How can the Draft Privacy Bill redefine the right to privacy?
How can reasonable deterrence mechanisms be included?
Does duplication of the right to privacy exists in different statutes?
Is the Cyber Appellate Tribunal an ideal monitoring mechanism or authority?
What are the circumstances under which authorized persons can exercise the Right of privacy invasion?
How can the Draft Privacy Bill account for the right to dignity?
How much information should the State be allowed to collect?
How can citizens become more informed about the use of their information and the privacy implications involved?
What would be the appropriate balance or trade-off between security and civil liberties?
What are the dangers with permitting the needs of national security to trump competing values?
What are the consequences for the homosexual community, when faced with institutionalized disregard for privacy?

For more details visit https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill

Google to change privacy policy to use personal info of users

praskrishna — 2012-01-30T05:03:55Z

It is a warning for users of Google and other Social Networking sites. Who are using these sites for searching anything they want to know and sharing their personal life with friends, colleagues and relatives. If you have ever used Google for searching any place, restaurant or shared information about your personal life with your friends on Google and other social networking sites, or you have watched adult stuff on YouTube, if your answer is yes, Google knows about it. And according to its new privacy policy Google is going to put this information to some use. Sheetal Ranga's article was published in Punjab Newsline on 27 January 2012.

It is claimed by the web enormous that according to new privacy policy, better service will be provided to its users, including more relevant search results. And other side the web experts have expressed their concerns over potential misuse of data and defy of privacy. Google's new privacy policy will come into effect from 1 March 2012, said by Google.

Google provide service which will be shorter and easier to read and something that will enable it to create spontaneous experience across Google. Google had allowed users to choose personalized services; “unlike” this time there is no option to pick for the users.

The new policy of Google has made some people anxious over their privacy issues. The new policy is being adopted by Google, SafeGov monitors security issues for federal, state and local government is not happy with it.

A security analyst, Jeff ( SafeGov) said, "Google should not be data-mining information in e-mails, text messages, searches and documents that workers are putting into Google services. It’s a matter of not making government workers unnecessarily exposed to hackers and to inadvertent disclosures of information."

The Vice President of Google ,Amit Singh claims that Google’s new privacy policy for consumer data is antiquated by data privacy provisions in contracts with government agencies and other organization that use the paid version of Google Apps. Google will maintain our endeavor customers’ data in conformity with the confidentiality and security obligations provided to their domain, he said.

The new policy of Google has made some people edgy over their privacy issues. SafeGov monitors security issues for federal, state and local government agencies are very unhappy with the new policy of Google. It is also said by Sunil Abraham, director of Centre for Internet and Society that the new changes are not good for a consumer's privacy.

Director of privacy Alma Whitten has given some example of how this information will be used. "We can make search better - figuring out what you really mean when you type in Apple, Jaguar or Pink. We can provide more relevant ads too," she wrote. "We can provide reminders that you're going to be late for a meeting based on your location, your calendar and an understanding of what the traffic is like that day. Or ensure that our spelling suggestions, even for your friends' names, are accurate because you've typed them before."

Other side after the cross-checked the contract between Google and the city of Los Angele by Gould, claimed that he didn’t think through the consequences for government users.

Punjab Newsline published this story. Sunil Abraham was quoted in it.

For more details visit https://cis-india.org/news/google-to-change-privacy-policy

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