The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 291 to 294.
Privacy, pornography, sexuality (a video)
https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/privacy-pornography-sexuality-a-video
<b>The video is an attempt to use the material collected for purposes of provoking a discussion around privacy, pornography, sexuality and technology. It focuses largely on an Indian context, which most viewers would be familiar with. The video is pegged around the ban of Savita Bhabhi – a pornographic comic toon – but uses that to open up a discussion on various incidents and concepts in relation to pornography and privacy across Asia.</b>
<p>
</p>
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<p align="right"><br /><object height="344" width="425"><param name="movie" value="http://www.youtube.com/v/RXKN_2Hbu1I&hl=en_GB&fs=1&"><param name="allowFullScreen" value="true"><param name="allowscriptaccess" value="always"><embed height="344" width="425" allowfullscreen="true" allowscriptaccess="always" type="application/x-shockwave-flash" src="http://www.youtube.com/v/RXKN_2Hbu1I&hl=en_GB&fs=1&"></embed></object></p>
<p> </p>
<p> </p>
<p> The project on pleasure and pornography will generate
outputs in different formats, but especially since it is meant to be
interdisciplinary (legal, critical, feminist, cybercultures, media and cinema
studies) it would be interesting to use different ways of communicating the
ideas that the project will develop. Several interviews have been conducted
(ranging from length of 30 mins to 2 hours) with contemporaries in India whose
work in different ways (quantitative research, historical research, filmmaking,
academic writings) intersects and relates to pornography – this includes Bharat
Murthy, Manjima Bhattacharjya, Nishant Shah, Ratheesh Radhakrishnan, Shohini
Ghosh and others.</p>
<p> </p>
<p>The video above is an attempt to use the material collected
for purposes of provoking a discussion around privacy, pornography, sexuality
and technology. It focuses largely on an Indian context, which most viewers
would be familiar with. The video is pegged around the ban of Savita Bhabhi – a
pornographic comic toon – but uses that to open up a discussion on various
incidents and concepts in relation to pornography and privacy across Asia. For
instance what is the role of technology and how has it altered or not altered
relations between the citizen and the State, what are the stakes of the State
in sexual subjectivity of the citizens and what are the relations of gender,
pornography and debates around privacy in public discourse.</p>
<p> </p>
<p>In this post I would gesture towards the last category that
has not been touched upon earlier, in relation to countries such as Malaysia
and Indonesia. It has become important during the course of this project to
draw connections to work done in the global South. In legal studies, comparative
work around legal concepts of obscenity, pornography, vulgarity are most often
only in relation to America and United Kingdom, either for a strong tradition
of free speech and expression in both countries and because of historical
connections to common and legislative law in UK. However it is important to
examine the trajectories of similar legal paradigms (Malaysia) and even
different legal paradigms (Indonesia)
across Asia to understand the mechanics of how pornography is constructed and
understood in legal and possibly cultural terms as well. </p>
<p> </p>
<p>Here we look at instances of material that are described as
pornography in legal terms and how that legal category avoids taking onto
itself what could be described as hard core pornography, and instead focuses on
material that in the Indian context are described as obscene (see <a href="https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/the-blindfolded-gaze-of-the-law-and-pornography" class="external-link">first blog post</a> on Indian law). In other parts of Asia, very often laws
that describe what is pornography play an important role in controlling women
and reinforcing gendered modes of access to media, information or to public
spaces. <br /></p>
<p><br /> </p>
<p>The Indonesian Anti-pornography law instead of protecting
the privacy of individuals, regulates and controls the ways in which women can
participate in the public sphere. The law deals with appropriate garb, behaviour,
forms of artistic and video practices under the broad umbrella of the term <em>pornoaksi</em> or pornographic action. In Indonesia as in other
parts of Asia, there has been over the last 4-5 years a flood of mobile and
webcam pornography uploaded by people themselves (couples and individuals),
which forms a large part of the erotic consumption in the country. The sheer
volume and circulation of these videos points to how technology is enmeshed in
sexual practices in even in the global South, contrary to what is written about
sexuality and technology that largely focuses on the phenomenon of
technology-sexuality in the global North around platforms such as Second Life<a name="_ednref1" href="#_edn1"><span class="MsoEndnoteReference">[i]</span></a>
or aspects of virtual reality. However the new law (passed in 2008) does not address this phenomenon directly even though that was the reason for promulgation of the law, but instead focuses of the dubious and vague category of pornoaksi.</p>
<p> </p>
<p>The law also allows for ordinary citizens to complain about obscene behaviour. According to gender and human rights activists in Indonesia, this gives a lot of leeway to the more socially conservative elements to complain and even attack film festivals, gatherings etc. In an article (unpublished) about the anti pornography law, Julia Suryakusuma (a columnist and writer in Indonesia) says -</p>
<p>
"But is the so-called ‘Anti-Pornography Law’ indeed aimed
against ‘pornography’, or is really directed against women and the freedoms won
through post-Soeharto democratization? The Law, I will argue, is, in fact,
based on a social construction of ‘morality’ and womanhood that masks as
religion but which is, in fact, a potent combination of social conservatism and
political opportunism."</p>
<p> </p>
<p>The video ends with a very moving press conference
by the Malaysian State Assemblywoman offering her resignation because intimate
(but not pornographic) pictures of her had been circulated without her consent
by her ex-boyfriend. The incident was a transparent ploy by an opposing
political party to denounce a formidable opponent and attempts to use public
discourse around obscenity, vulgarity to limit the politician’s participation
in the public sphere.</p>
<p> </p>
<p>The video was also part of a discussion around privacy,
agency and security organized at the recent Internet Governance Forum in Egypt
in November, 2009<a name="_ednref2" href="#_edn2"><span class="MsoEndnoteReference">[ii]</span></a> and was
screened at the beginning of the workshop to spear head a discussion between
varied participants. The workshop was organized by Alternative Law Forum, Association for Progressive Communication - Women's Networking Support Programme and Center for Internet and Society. The IGF saw an intense focus on issues of privacy
especially in relation to issues of data aggregation and control over private
and public data of individuals by corporate entities. The video and the session
was an attempt to bring into the focus of such discussions, issues more
pertinent from a feminist, queer or theoretical perspective.</p>
<p> </p>
<p> </p>
<div><br clear="all" />
<hr align="left" size="1" width="33%" />
<div id="edn1">
<p class="MsoEndnoteText"><a name="_edn1" href="#_ednref1"><span class="MsoEndnoteReference">[i]</span></a> Coming of
age in Second Life, Tom Boellstorff : An ethnography of Second Life that looks
at various aspects of practices online including friendship, sexuality,
marriage, aspirations and desires.</p>
</div>
<div id="edn2">
<p class="MsoEndnoteText"><a name="_edn2" href="#_ednref2"><span class="MsoEndnoteReference">[ii]</span></a> More
details of this workshop (concept note, speakers) are available on the IGF
website at <a href="http://www.intgovforum.org/cms/index.php/component/chronocontact/?chronoformname=WSProposals2009View&wspid=275">http://www.intgovforum.org/cms/index.php/component/chronocontact/?chronoformname=WSProposals2009View&wspid=275</a></p>
</div>
</div>
<p>
</p>
<p>
For more details visit <a href='https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/privacy-pornography-sexuality-a-video'>https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/privacy-pornography-sexuality-a-video</a>
</p>
No publishernamitaDigital subjectivitieswomen and internetCensorshipObscenity2011-08-02T08:37:19ZBlog EntryNegative of porn
https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/looking-closer-at-porn-with-x-ray-spectacles-savita-bhabhi-mms-video-and-others
<b>The post deals with what has been written about Savita Bhabhi in an attempt to make sense of her peccadiloes and with the seeming futility of Porn studies located in America to our different reality. I take the liberty of exploring my own experiential account of pornography since I feel that in that account (mine and others) when done seriously, certain aspects of pornography emerge that address questions that are about cinema, images, sex, philosophy and how desire works. The title is mischeviously inspired from Dr. Pek Van Andel's recent video of MRI images of people having sex.</b>
<p>Jonathan James McCreadie Lillie in his article “Cyberporn,
Sexuality and the Net Apparatus” while talking about academic engagement with
pornography (by Kipnis, Hunt, Waugh, Kendrick) points to how they share “a
common concern with analysing pornography within the various cultural
constructs and social spaces in which it appears, and in which people encounter
it”. He says that a new agenda for cyberporn research has to acknowledge that
“people have produced pornography in many different forms for many different
purposes, and the reasons why people use it or do not use it, and what meanings
they make of it, are equally diverse”. (1)</p>
<p> </p>
<p>Lillie points towards cyberporn reception studies – the
home/office terminal as a site of cyberporn reception – as a possible starting
point of further work on cyberporn. My interest is located in how does one
understand your own consumption of internet porn, located as it is in the
context that is not the global North and more specifically not male and not heterosexual.
Attempting to do that through the readings in porn studies (Porn studies,
edited by Linda Williams) (2), or specifically net porn studies (C’lick me –
Net Porn Reader) (3), has not been entirely fruitful though what is talked
about is highly interesting. One of the problems perhaps lies in what Lillie
says about the need for analyzing pornography within the various cultural
constructs and social spaces in which it appears, rather than separate or
floating above them. The Internet does not entirely make protean beings
(cyborgs?) of us after all, and the relevance of porn studies elsewhere can
only be partially relevant to a study here.</p>
<p> </p>
<p>[Curiously though the debates within feminism and the
women’s movement around pornography in the global North – the familiar rhetoric
of the causal links between pornography and violence, do have a resonance in
similar debates in the women’s movement here. At a roundtable discussion on the
role of media at the recent Courts of Women organized by Vimochana (4), many of
the sentiments expressed by activists and organizations see a causal link
between explicit sexual material, violence and its direct negative impact on
morals, attitudes and behaviour of people.]</p>
<p> </p>
<p>Linda Williams begins the volume on Porn Studies by stating that
there has been a movement from the deadlock of pro-censorship and sex positive
feminist discourse on pornography, to a stage where there is a veritable
explosion of sexual material that is crying out for analysis, and that sexually
explicit imagery is a fixture in popular culture today (obviously referring to
America but to some extent true for other contexts as well). In some ways there
is an attempt amongst academics, intellectuals, journalists and other writers
here to make sense of the pornographic material that has crept into our media
saturated cities. Many recent articles spawned by the ban on Savita Bhabhi
attempt to understand the unleashing of desire around Savita Bhabhi (from a
rock song to unashamed fandom) and to analyse the reasons for the ban or rather
what makes Savita Bhabhi threatening.</p>
<p> </p>
<p><strong>Savita Bhabhi, the [porn] [toon] [star] </strong></p>
<p>Itty Abraham undertakes a fairly detailed analysis of what
is happening in twelve episodes of Savita Bhabhi and perhaps unconvincingly
places the crux of the story of Savita Bhabhi on her cuckolded husband, Ashok
(5). He says “Their family life is relentless modern, nuclear, bourgeois, if
also gendered in familiar ways. The couple eats together (and at the same
time), they watch TV together in the evenings, and sleep in the same bed.” For
Abraham, the comic is about “these new sexual possibilities.. that begin from a
new kind of freedom to which the modern urban woman has access”. The article
suggests that we seem to be faced with a choice between the free untrammeled
Savita and her easy occupation of urban spaces protected by an aura of class
and her husband Ashok who is the hard worker earning enough to keep alive
her/our illusion of abundant urban neoliberal existence. Interestingly the
article is not attempting to make a point about pornography in relation to
ideas of culture, tradition, vulgarity or other familiar motifs in the debate
on obscenity.</p>
<p> </p>
<p>Shohini Ghosh’s article takes on the task to find out what
precisely is so transgressive about Savita Bhabhi (6). Savita Bhabhi is poised
between the family and husband and illegitimate desires (similar to themes in
Charulata, Hum aapke hain kaun). She points that the pleasure of the comic is
not just that there are hard core sexual scenes as much as that the husband or
a similar character cannot look at what you look at. The Indian erotica (or
pornographic text) scene too is replete with tales of incest and transgressions
with domestic workers or servants|maids as they are called in the stories.
Ghosh while acknowledging the harm-violence debate within feminism on
pornography, states that she is anti-censorship – that although it is obvious
that media, images have an impact (otherwise why would they be cause of study)
there is no neat causal link between porn and sexual violence. She ends by
saying that “pornography then is a phantasmatic arena. It does not reflect
people’s ‘real’ sex lives so much as it articulates the desires and aspirations
for imagined ones.”</p>
<p> </p>
<p>Both articles make important linkages to other and pre-existing
debates on neo-liberal agendas, occupation of urban spaces, feminism and
obscenity. Ghosh seems to also be referring to a broader category of Indian porn and the problems posed by it. She also gestures towards the problems that might be posed if Savita Bhabhi were a real person and not a comic, but by and large most journalistic writing/analysis of Savita Bhabhi flattens out the field – asking questions as if comic characters were real persons, and not taking into account aesthetics, technology (mode of delivery) or where and how it is viewed (reception) by people. There is a difference in the way I respond to a comic about sex than to an MMS or hidden camera porn where I am aware of
the ‘realness’ of atleast some aspects of the image I’m looking at.</p>
<p> </p>
<p>The ‘realness’ raises certain dilemmas – the anxiety is not
as severe and troubled as in the case of Mysore Mallige which is haunted by
urban legends of the couples or only the woman committing suicide, forced
marriage at a police station etc. Nonetheless to encounter the MMS video, when
the woman is looking directly at the camera often so it does not seem like a
hidden camera or non-consensual video, is to acknowledge the taking of pleasure
at the expense of someone else which may or may not bother you, but does render
the activity far more illicit and scary. My feeling of
fear|anxiety|secrecy|aloneness when surfing pornography, whether in the office,
home or anywhere where I can be discovered, is an added layer to the experience
even if the various aspects of violation of privacy, vulnerability of the woman
in the video or the existence of a pornography industry are not uppermost in
the mind when actually viewing the clips. One of the few works done that do
address this complicated set of affects that circulate and attach themselves to
pornography is Bharath Murthy’s film on Mysore Mallige ( the next post will be
on this film and interview with Bharath Murthy). (7)</p>
<p> </p>
<p>This is why I would insist that the comic is a different
space for a viewer – some things such as anxieties about who this person I’m
looking at is and what happened to her do disappear, while others such as a
comic is bright, colourful and highly visible on my computer screen (for
instance) become more important. It is harder to hide surfing Savita Bhabhi in
an office than reading erotica or even downloading and discreetly watching a
small video. The aspect of how
Savita Bhabhi being a comic/drawn character changes how a viewer relates to the
material is an area of study that needs to be looked at more closely, perhaps
with the help of existing work that looks at the manga, anime, hentaii
phenomenon in Japan and parts of South East Asia.</p>
<p> </p>
<p>The makers of Savita Bhabhi were anonymous till the ban and
after what seemed like a rather brief struggle with authority (SaveSavita
campaign on twitter and a blog) they vacated the public scene. As a consequence
of no real contest, the ban persists. But perhaps what is admirable is that
many people have learnt to use tools that allow them to still view Savita (and
to expose them here would be just foolhardy). In an interview online the makers
of Savita Bhabhi state .. “For one, it (comic) is a unique medium in the
context of Indian porn. We’ve had MMS’s, videos, stories, etc, but no porn
comics. Also a comic allows us to explore the fantasy in a much more vivid way
than any other medium.” This fantasy life however cannot be dismissed, as it is
indeed very real, or as they say – “based on real life fantasies of our authors
and fans. They are all something that a normal full blooded Indian male or
female would be fantasizing about on their commute to work or a lazy evening at
home.” In a short interview with the makers of the comic more recently and
subsequent to the ban they said that probably it was Savita Bhabhi’s popularity
that led to her downfall and that they set out to explore Indian sexuality,
which “obviously is a big No”.</p>
<p> </p>
<p>To return to Lillie’s call for a cyberporn reception studies
perhaps it is time in relation to looking at such material that we step away,
even if briefly, from these debates on feminism, vulgarity and obscenity in
Indian culture and others. In an interview dated 5th September, 2009, Ratheesh
Radhakrishnan says that what needs to be looked at when studying pornography,
is not the questions of Indian culture, religion, roles of women and gender (as
for questions related to obscenity) but the aesthetics of pornography. In his
own work Radhakrishnan deals precisely with this question in relation to the
category of ‘soft porn’ and how Shakeela becomes a star through soft porn
cinema – a star not entirely governed by the narrative of the film but
seemingly existing beyond the limit of the film itself. (8) By doing this, his
work deals with the question of how desire works in such films, which perhaps
is one of the more important question to ask about pornography. In the same
interview, he states that there is “something that takes place between the text
and the person watching” and that is what he is interested in.</p>
<p> </p>
<h1>Anti-porn</h1>
<p>Radhakrishnan’s position is interesting in relation to this
project as it opens up questions that are beyond the feminist deadlock on
pornography and also goes beyond rhetoric of the liberating potential of the
explosion of the polymorphous perverse online. The latter is where a lot of
porn studies undertaken in the global North seems to get lost. The breathless
recounting of the pornographic in the everyday, does not help since it becomes
very obvious that any analysis would not be relevant to a vastly different
context in India. (9)</p>
<p> </p>
<p>Walter Metz in his article on Open Water (10) challenges the
ethics of porn studies – though he acknowledges that pornography is more a
symptom rather than a cause of anti-social behaviours that it is often linked
to (violent rape, aggressive behaviour, sexism etc.), but still raises the
question as to whether there are significant reasons to put the brakes on a
rabid, radical celebration of the liberating potential of pornography. Metz
talks about the need, within porn studies, to look at the positive and negative
impact of pornography (possibly he would extend that to looking at violent
martial arts film and other strands of cinema/new media).</p>
<p> </p>
<p>Metz’s paper as such deals with Open Water as an
anti-pornographic film (here referring to the generic practice of pornography
rather than political positions) and this might be an interesting productive
mode to understand the affect produced by pornography. Though Metz qualifies
that he’s not using pornography as a genre, but rather “as a reading frame. If
one keeps thinking about pornography while watching a non-pornographic film,
what is the resulting interpretation?” Since I haven’t seen the film Open Water
perhaps my interest in such an analysis is misfounded. Metz describes the
frustration depicted in the film Open Water between the audience expectations
for a reasonably good looking, tanned, blonde couple to get-it-on and what
happens to their bodies instead in the open water of the sea and prey to
sharks, is similar to the disjuncture that takes place in one of the films part
of the Destricted project. (11)</p>
<p> </p>
<p>Destricted is an interesting artistic|intellectual|new
media|film experiments in the global North around pornography. It is a series
of short films that resulted from an invitation to seven well known artists and
filmmakers to try to respond to sex and especially the phenomenon of
pornography in the contemporary. One of the films Death Valley by Sam
Taylor-Wood borrows from the Biblical tale of Onan and places a man
masturbating in the heaving, throbbing landscape of the Death Valley (the
hottest place in the Western hemisphere where the earth’s crust is constantly
changing and shifting). For precisely 7 minutes and 58 seconds, the protagonist
of the film masturbates uncomfortably without reaching ejaculation and/or
release. The painful un-release of this film, perhaps is meant to be juxtaposed
with the assumed ease of pornography’s answer to desire. However peculiarly it actually
is probably an accurate description of the experiential account of pornography
– of looking, searching, finding, downloading on painfully low speeds, watching
short clips that are blurred, shot only from one angle, badly drawn comics or
looking at largely uninspiring material which is not acquired or found easily.</p>
<p> </p>
<p>In some ways the experience of watching either of these
films sounds similar to watching certain kinds of MMS video porn. For instance,
one video was of a couple doing oral sex in a toilet cubicle. The angle of the
camera was from the top and perhaps the intention behind this was to obscure
the faces of the two persons, since only the top of their heads are visible. It
did not seem like the couple were unaware of the video camera, as much as
performing for it almost unwillingly and only if the anonymity was preserved.
The video was low quality and highly blurred, to the point of any features
being indistinct beyond blackness of hair (maybe) and generic skin tone which
could be Indian, Iranian or generic South Asian. The resemblance to the
Destricted video is because again of the time it takes to reach ejaculation –
there is a painfully long uninspiring blowjob sequence. The video remains scary
and leaves one with a feeling of claustrophobia, discomfort and peculiarly
boredom or distance from what is happening. Yet perhaps it is here that the
question of realness and the affect it produces enters again. The question that
intrigues me is whether the affect produced by the video is because
there are certain gestures of the woman that seem recognizable, because she
seems like you (ethnically, racially ofcourse but also in sexual spaces she
occupies and behaviour). After having accomplished the task of coaxing semen
out of the uninspiring penis she is faced with, she folds her legs and speaks
indistinctly. In that moment she seems uncomfortably familiar, like watching a
friend having sex or maybe an aspect of yourself.</p>
<p> </p>
<p> It is perhaps
interesting that it is amateur pornography these days that seems to inspire the
most complicated set of affects (unlike the schooled|disciplined and
predictable response to cinema) – shocked recognition of yourself and desire to
see it again, titillation, boredom but yet unwilling to look away, love for
celebrities, pleasure of viewing a body like yours and even sometimes a
recognition that this is what you look like during sex, fear about your own
privacy, disgust for what seems unacceptable and provokes the
moral|visual|auditory sensibilities and contempt for the material and the
people who possibly are genuinely engaged with it. The article on Pam and
Tommy’s video in Porn Studies infact displays these varied affects and
underlines William’s assertion that this bracket of material, behaviour and
practices that get termed pornography/pornographic does indeed deserve
analysis, otherwise a potentially unique and interesting way of understanding
the contemporary would be lost for squeamishness. </p>
<p> </p>
<p>There are many aspects of the Minette Hillyer’s
analysis (12) that are specifically relevant only to the American contexts –
the notoriety of both the stars, the pre-existence and glorification of home
videos in most families and the acknowledgement of amateur couple porn as even
a healthy practice, perhaps suggested for couples with dull sex lives. In
India, it was infact unknown people who were catapulted into the public eye with the circulation of their video, online and offline that was later titled Mysore Mallige ; not just
the private spaces, holidays and fucking habits of already-celebrities like Pam
and Tommy.</p>
<p> </p>
<p>What might be relevant here from Hillyer’s analysis is the
pre occupation with the realness of amateur pornography. The article follows the travels of the Pam and Tommy home video
between different categories/genres, depending on different aspects of its
realness. The video as such, contains scenes from the normal domestic lives of
the stars and a eight minute sequence of sex in an almost fifty minute length
video. So the questions of realness are answered not by the sex in the video,
but the mundane recording of their lives, holidays, house and other details.
This question of what exactly it is – home video or pornography (domestic/private
or pornographic/public) is relevant to questions of legality (for damages upto
90 million dollars), how it circulates (a pornographic video of Pam and Tommy
without the domestic padding perhaps would not be considered real and saleable)
and genre which relates to some aspects of how people respond to the work. Ever since the advent of (cheap) video technology, pornography is rendered less
cinematic and more concerned with the presentational act (of sex) than its
representation (ibid). With MMS videos and hidden camera porn, though questions may no longer be about representation, they are still complicated questions about the aesthetics, reception of pornography and our relation to the technology that delivers it and for me viewing pornography today as only presentational does not help to understand the affects that surround and attach to it. Perhaps many strands of what is
explored in this article can be explored in relation to Mysore Mallige in the
next blog post.</p>
<p> </p>
<p>Just as I finish this piece, after an interview with Nishant Shah at Center for Internet and Society, another question enters the frame in relation to pleasure, moving it beyond those raised above. Is pleasure now a question that
is less about finding the corporeal thrill through pornography online, as much as
pleasure that comes from simulation and the added rush of simulating cities,
lives, personalities online. And is that pleasure, pornographic?</p>
<p> </p>
<p> </p>
<p>End notes:</p>
<p> </p>
<p>1. Jonathan James McCreadie
Lillie, “Cyberporn, Sexuality, and the Net Apparatus”, <em>Convergence</em> 2004; 10; 43</p>
<p> </p>
<p>2. Williams Linda (ed), <strong>Porn Studies,</strong> Duke University Press, London and Durham, 2004.</p>
<p> </p>
<p>3. Katrien Jacobs, Marije Janssen, Matteo Pasquinelli (eds),
<strong>C’lick Me: A Netporn Studies Reader</strong>,
Institute of Network Cultures, Amsterdam, 2007.</p>
<p> </p>
<p>4. Courts of Women, Vimochana Bangalore, 27-29 July, 2009.</p>
<p> </p>
<p>5. Itty Abraham, Sex in the Neo-liberal City: On Savita
Bhabhi, Available at The Fish Pond at <a href="http://thefishpond.in/itty/2009/on-savita-bhabhi/#comments">http://thefishpond.in/itty/2009/on-savita-bhabhi/#comments</a></p>
<p> </p>
<p>6. Shohini Ghosh, The politics of porn, Himal South Asian
Magazine, September 2009, Vol 22, No. 9.</p>
<p> </p>
<p>7. Bharath Murthy (director), Mysore Mallige, 2007.</p>
<p> </p>
<p>8. Ratheesh Radhakrishnan, “‘The
Mis-en-scene of desire’: Stardom and the case of soft porn cinema in Kerala!”
Unpublished work. Contact author for copy.</p>
<p> </p>
<p>9. Bloomingdale's now sells Tom of Finland shirts and
trousers, housewives celebrate their birthdays by piercing their geni- tals,
college students dance naked instead of waiting tables to pay their tuition,
and middle-level managers schedule a session with a dominatrix in their
favorite dungeon after a game of racquetball at their regular health club. From
Joseph W. Slade, Pornography and Sexual Representation: A Reference Guide,
Greenwood Publishing Group, 2001.</p>
<p> </p>
<p>10. Walter Metz, “Shark
Porn: Film Genre, Reception Studies, and Chris Kentis' Open Water” Film
Criticism, March 22, 2007</p>
<p> </p>
<p>11 Destricted: explicit films, Marina Abramovic, Matthew
Barney, Marco Brambilla, Larry Clark, Gaspar Noé, Richard Prince, Sam Taylor
Wood (directors), 2006.</p>
<p> </p>
<p>12 Minnette Hillyer, “Sex in the suburban: Porn, Home movies
and the Live Action Perofmance of Love in Pam and Tommy: Hardcore and
uncensored”, <strong>Porn Studies</strong>, Duke
University Press, London and Durham, 2004, p.50.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/looking-closer-at-porn-with-x-ray-spectacles-savita-bhabhi-mms-video-and-others'>https://cis-india.org/raw/histories-of-the-internet/blogs/law-video-technology/looking-closer-at-porn-with-x-ray-spectacles-savita-bhabhi-mms-video-and-others</a>
</p>
No publishernamitaFeaturedArtCensorship2011-08-02T08:35:34ZBlog EntryPrimer on the New IT Act
https://cis-india.org/internet-governance/blog/primer-it-act
<b>With this draft information bulletin, we briefly discuss some of the problems with the Information Technology Act, and invite your comments.</b>
<p align="justify">The latest amendments to
the Information Technology Act 2000, passed in December 2008 by the
Lok Sabha, and the draft rules framed under it contain several provisions
that can be abused and misused to infringe seriously on citizens'
fundamental rights and basic civil liberties. We have already <a href="https://cis-india.org/internet-governance/it-act/short-note-on-amendment-act-2008" class="internal-link" title="Short note on IT Amendment Act, 2008">written about some of the problems</a> with this Act earlier. With this information bulletin, drafted by Chennai-based advocate Ananth Padmanabhan, we wish to extend that analysis into the form of a citizens' dialogue highlighting ways in which the Act and the rules under it fail. Thus, we invite your comments, suggestions, and queries, as this is very much a work in progress. We will eventually consolidate this dialogue and follow up with the government on the concerns of its citizens.</p>
<h3 align="justify">Intermediaries
beware</h3>
<p align="justify">Internet service
providers, webhosting service providers, search engines, online
payment sites, online auction sites, online market places, and cyber
cafes are all examples of “intermediaries” under this Act. The
Government can force any of these intermediaries to cooperate with
any interception, monitoring or decryption of data by stating broad
and ambiguous reasons such as the “interest of the sovereignty or
integrity of India”, “defence of India”, “security of the
State”, “friendly relations with foreign States”, “public
order” or for “preventing incitement to” or “investigating”
the commission of offences related to those. This power can be abused
to infringe on the privacy of intermediaries as well as to hamper
their constitutional right to conduct their business without interference.</p>
<p align="justify">If a Google search on
“Osama Bin Laden” throws up an article that claims to have
discovered his place of hiding, the Government of India can issue a
direction authorizing the police to monitor Google’s servers to
find the source of this information. While Google can, of course,
establish that this information cannot be attributed directly to the
organization, making the search unwarranted, that would not help it
much. While section 69 grants the government these wide-ranging
powers, it does not provide for adequate safeguards in the form of having to show due cause or having an in-built right of appeal against a decision by the government. If Google refused
to cooperate under such circumstances, its directors would be liable
to imprisonment of up to seven years.</p>
<h3 align="justify">Pre-censorship<br /></h3>
<p align="justify">The State has been given
unbridled power to block access to websites as long as such blocking
is deemed to be in the interest of sovereignty and integrity of
India, defence of India, security of the State, friendly relations
with foreign States, and other such matters.</p>
<p align="justify">Thus, if a web portal or
blog carries or expresses views critical of the Indo-US nuclear deal,
the government can block access to the website and thus muzzle criticism
of its policies. While some may find that suggestion outlandish, it is very much possible under the Act. Since there is no right to be heard before your website is taken down nor is there an in-built mechanism for the website owner to appeal, the decisions made by the government cannot be questioned unless you are prepared to undertake a costly legal battle. </p>
<p align="justify">Again, if an intermediary (like Blogspot or an ISP like Airtel) refuses to cooperate, its directors may be personally liable to imprisonment for up to a period of seven years. Thus, being personally liable, the intermediaries are rid of any incentive to stand up for the freedom of speech and expression.</p>
<h3 align="justify">We need to monitor your computer: you have a virus<br /></h3>
<p align="justify">The government has been
vested with the power to authorize the monitoring and collection of
traffic data and information generated, transmitted, received or
stored in any computer resource. This provision is much too
widely-worded. </p>
<p align="justify">For instance, if the
government feels that there is a virus on your computer that can
spread to another computer, it can demand access to monitor your
e-mails on the ground that such monitoring enhances “cyber
security” and prevents “the spread of computer contaminants”.</p>
<h3 align="justify">Think before you click "Send"<br /></h3>
<p align="justify">If out of anger you send
an e-mail for the purpose of causing “annoyance” or
“inconvenience”, you may be liable for imprisonment up to three
years along with a fine. While that provision (section 66A(c)) was
meant to combat spam and phishing attacks, it criminalizes much more
than it should.</p>
<h3 align="justify">A new brand of "cyber terrorists" <br /></h3>
<p align="justify">The new offence of “cyber
terrorism” has been introduced, which is so badly worded that it
borders on the ludicrous. If a journalist gains
unauthorized access to a computer where information regarding
corruption by certain members of the judiciary is stored, she becomes
a “cyber terrorist” as the information may be used to cause
contempt of court. There is no precedent for any such definition of cyberterrorism. It is unclear what definition of terrorism the government is going by when even unauthorized access to defamatory material is considered cyberterrorism.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/primer-it-act'>https://cis-india.org/internet-governance/blog/primer-it-act</a>
</p>
No publisherpraneshIT ActDigital GovernancePublic AccountabilityIntermediary LiabilityCensorship2011-08-02T07:41:54ZBlog EntryComments on the Draft Rules under the Information Technology Act
https://cis-india.org/internet-governance/blog/comments-draft-rules
<b>The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.</b>
<h2><em>Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008</em></h2>
<p><em><strong>Submitted by the Centre for Internet and Society, Bangalore</strong></em></p>
<p><em><strong>Prepared by Ananth Padmanabhan, Advocate in the Madras High Court</strong></em></p>
<h2>Interception, Monitoring and Decryption</h2>
<h3>Section 69</h3>
<p>The section says:</p>
<ol><li>Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource. </li><li>The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.</li><li>The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-</li></ol>
<p> (a) provide access to or secure access to the computer resource
generating transmitting, receiving or storing such information; or</p>
<p>
(b) intercept, monitor, or decrypt the information, as the case may be; or</p>
(c) provide information stored in computer resource.
<ol><li>The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. <br /></li></ol>
<p><strong><br /></strong></p>
<p><strong>Recommendation #1</strong><br />Section 69(3) should be amended and the following proviso be inserted:</p>
<p class="callout">Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,</p>
<p class="callout">“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. </p>
<p><br />The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.</p>
<p>To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary. </p>
<p><br /><strong>Recommendation #2</strong><br />Section 69(4) should be repealed.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.</p>
<p>Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.</p>
<p>Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.</p>
<p>This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.</p>
<p> </p>
<h3>Draft Rules under Section 69 <br /></h3>
<p><strong>Rule 3</strong><br />Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:</p>
<p>Provided that in emergency cases – <br />(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or <br />(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;</p>
<p>the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be. </p>
<p><br /><strong>Recommendation #3</strong><br />In Rule 3, the following proviso may be inserted:</p>
<p class="callout">“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation </strong><br />Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.</p>
<p>Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.</p>
<p><br /><strong>Recommendation #4</strong><br />The following should be inserted after the last line in Rule 22:</p>
<p class="callout">The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation</strong><br />The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69. </p>
<p> </p>
<h2>Blocking of Access to Information</h2>
<h3>Section 69A</h3>
<p>The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section. <br />The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.</p>
<p> </p>
<p><strong>Section 69A(3)</strong><br />The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.</p>
<p> </p>
<p><strong>Recommendation #5</strong><br />The penalty for intermediaries must be lessened.</p>
<p> </p>
<p><strong>Reasons for Recommendations </strong><br />The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.</p>
<p>The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.</p>
<p> </p>
<h3>Draft Rules under Section 69A</h3>
<p><strong>Rule 22: Review Committee</strong><br />The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.</p>
<p><br /><strong>Recommendation #6</strong><br />A permanent Review Committee should be specially for the purposes of examining procedural lapses. </p>
<p><br /><strong>Reasons for Recommendation </strong><br />Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met. <br /><br /></p>
<h2>Monitoring and Collection of Traffic Data</h2>
<h3>Draft Rules under Section 69B</h3>
<p>The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.</p>
<p>The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.</p>
<p><br /><strong>Grounds for Monitoring </strong><br /><strong>Rule 4</strong><br />The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:<br />(a) forecasting of imminent cyber incidents;<br />(b) monitoring network application with traffic data or information on computer resource;<br />(c) identification and determination of viruses/computer contaminant;<br />(d) tracking cyber security breaches or cyber security incidents;<br />(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;<br />(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;<br />(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;<br />(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;<br />(i) any other matter relating to cyber security.</p>
<p><br /><strong>Rule 6</strong><br />No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).</p>
<p><br /><strong>Recommendation #7</strong><br />Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.</p>
<p><br /><strong>Reasons for Recommendations </strong><br />The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered. <br /><br /><strong>Rule 24: Disclosure of monitored data </strong><br />Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :<br />(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.</p>
<p><br /><strong>Recommendation #8</strong><br />Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi). </p>
<p><br /><strong>Reasons for Recommendations </strong><br />Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended. </p>
<p><br />The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.</p>
<p> </p>
<h2>Manner of Functioning of CERT-In</h2>
<h3>Draft Rules under Section 70B(5)</h3>
<p>Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.<br />The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:</p>
<p><br /><strong>Definitions</strong><br />In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.</p>
<p><br /><strong>Recommendation #9</strong><br />The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.</p>
<p><br /><strong>Reasons for Recommendation</strong><br />“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization. </p>
<p><br />Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.</p>
<p><br /><strong>Rule 13(4): Disclosure of Information </strong><br />Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.</p>
<p><br /><strong>Recommendation #10</strong><br />Burden of necessity for disclosure of information should be made heavier. </p>
<p><br /><strong>Reasons for the Recommendation</strong><br />Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required. </p>
<p><br /><strong>Rule 19: Protection for actions taken in Good Faith </strong><br />All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.</p>
<p><br /><strong>Recommendation #11</strong><br />CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for. </p>
<p><br /><strong>Reasons for the Recommendation </strong><br />Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.</p>
<p> </p>
<h3>Draft Rules under Section 52</h3>
<p>These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.</p>
<p><br /><strong>Recommendation #12</strong><br />Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.</p>
<p>Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.</p>
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<h3>Draft Rules under Section 54</h3>
<p>These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.</p>
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<h2>Penal Provisions</h2>
<h3>Section 66A</h3>
<p>Any person who sends, by means of a computer resource or a communication device,<br /> (a) any information that is grossly offensive or has menacing character; or<br /> (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,<br /> (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,<br />shall be punishable with imprisonment for a term which may extend to three years and with fine.<br />Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.</p>
<p>While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.</p>
<p><br /><strong>Recommendation #13</strong><br />The section should be amended and words which lead to ambiguity must be excluded.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary. </p>
<p><br /><strong>Recommendation #14</strong><br />A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc. </p>
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<p><strong>Reasons for the Recommendation </strong><br />The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.</p>
<p>Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.</p>
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<h3>Section 66F</h3>
<p>The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character. <br />Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision, <br />“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”</p>
<p>This provision suffers from several defects and hence ought to be repealed. </p>
<p><br /><strong>Recommendation #15</strong><br />Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:</p>
<p class="callout">“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”</p>
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<p><strong>Reasons for the Recommendation </strong><br />The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.</p>
<p>To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above. <br /><br /></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-draft-rules'>https://cis-india.org/internet-governance/blog/comments-draft-rules</a>
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No publisherpraneshIT ActEncryptionIntellectual Property RightsIntermediary LiabilityPublicationsCensorship2011-09-21T06:13:42ZBlog Entry