Centre for Internet and Society

We Truly are the Product being Sold

vidushi — 2016-09-01T02:08:37Z

WhatsApp has announced it will begin sharing user data such as names, phone numbers, and other analytics with its parent company, Facebook, and with the Facebook family of companies. This change to its terms of service was effected in order to enable users to “communicate with businesses that matter” to them. How does this have anything to do with Facebook?

The article was published in the Hindustan Times on August 31, 2016.

WhatsApp clarifies in its blog post, “... by coordinating more with Facebook, we’ll be able to do things like track basic metrics about how often people use our services and better fight spam on WhatsApp. And by connecting your phone number with Facebook’s systems, Facebook can offer better friend suggestions and show you more relevant ads if you have an account with them.”

WhatsApp’s further clarifies that it will not post your number on Facebook or share this data with advertisers. This means little because it will share your number with Facebook for advertisement. It is simply doing indirectly, what it has said it won’t do directly. This new development also leads to the collapsing of different personae of a user, even making public their private life that they have so far chosen not to share online. Last week, Facebook published a list of 98 data points it collects on users. These data points combined with your WhatsApp phone number, profile picture, status message, last seen status, frequency of conversation with other users, and the names of these users (and their data) could lead to a severely uncomfortable invasion of privacy.

Consider a situation where you have spoken to a divorce lawyer in confidence over WhatsApp’s encrypted channel, and are then flooded with advertisements for marriage counselling and divorce attorneys when you next log in to Facebook at home. Or, you are desperately seeking loans and get in touch with several loan officers; and when you log in to Facebook at work, colleagues notice your News Feed flooded with ads for loans, articles on financial management, and support groups for people in debt.

It is no secret that Facebook makes money off interactions on its platform, and the more information that is shared and consumed, the more Facebook is benefitted. However, the company’s complete disregard for user consent in its efforts to grow is worrying, particularly because Facebook is a monopoly. In order for one to talk to friends and family and keep in touch, Facebook is the obvious, if not the only, choice. It is also increasingly becoming the most accessible way to engage with government agencies. For example, Indian embassies around the world have recently set up Facebook portals, the Bangalore Traffic Police is most easily contacted through Facebook, and heads of states are also turning to the platform to engage with people. It is crucial that such private and collective interactions of citizens with their respective government agencies are protected from becoming data points to which market researchers have access.

Given Facebook’s proclivity for unilaterally compromising user privacy, the Federal Trade Commission (FTC) in 2011 charged the company for deceiving consumers by misleading them about the privacy of their information. Following these charges, Facebook reached an agreement to give consumers clear notice and obtain consumers’ express consent before extending privacy settings that they had established. The latest modification to WhatsApp’s terms of service seems to amount to a clear violation of this agreement and brings out the grave need to treat user consent more seriously.

There is a way to opt out of sharing data for Facebook ads targeting that is outlined by WhatsApp on its blog, which is the best example for a case of invasion-of-privacy-by-design. WhatsApp plans to ask the users to untick a small green arrow, and then click on a large green button that says “Agree” (which is the only button) so as to indicate that they are opting-out. The interface of the notice seems to be consciously designed to confuse users by using the power of default option. For most users, agreeing to terms and conditions is a hasty click on a box and the last part of an installation process. Predictably, most users choose to go with default options, and this specific design of the opt-out option is not meaningful at all.

In 2005, Facebook’s default profile settings were such that anyone on Facebook could see your name, profile picture, gender and network. Your photos, wall posts and friends list were viewable by people in your network. Your contact information, birthday and other data could be seen by friends and only you could view the posts that you liked. Fast forward to 2010, and the entire internet, not just all Facebook users, can see your name, profile picture, gender, network, wall posts, photos, likes, friends list and other profile data. There hasn’t been a comprehensive study since 2010, but one can safely assume that Facebook’s privacy settings will only get progressively worse for users, and exponentially better for Facebook’s revenues. The service is free and we truly are the product being sold.

For more details visit https://cis-india.org/internet-governance/blog/hindustan-times-vidushi-marda-august-31-2016-we-truly-are-the-product-being-sold

Facebook Free Basics: Gatekeeping Powers Extend to Manipulating Public Discourse

vidushi — 2016-01-09T13:43:56Z

15 million people have come online through Free Basics, Facebook's zero rated walled garden, in the past year. "If we accept that everyone deserves access to the internet, then we must surely support free basic internet services. Who could possibly be against this?" asks Facebook founder Mark Zuckerberg, in a recent op-ed defending Free Basics.

The article was published in Catchnews on January 6, 2015. For more info click here.

This rhetorical question however, has elicited a plethora of answers. The network neutrality debate has accelerated over the past few weeks with the Telecom Regulatory Authority of India (TRAI) releasing a consultation paper on differential pricing.

While notifications to "Save Free Basics in India" prompt you on Facebook, an enormous backlash against this zero rated service has erupted in India.

The policy objectives that must guide regulating net neutrality are consumer choice, competition, access and openness. Facebook claims that Free Basics is a transition to the full internet and digital equality. However, by acting as a gatekeeper, Facebook gives itself the distinct advantage of deciding what services people can access for free by virtue of them being "basic", thereby violating net neutrality.

Amidst this debate, it's important to think of the impact Facebook can have on manipulating public discourse. In the past, Facebook has used it's powerful News Feed algorithm to significantly shape our consumption of information online.

In July 2014, Facebook researchers revealed that for a week in January 2012, it had altered the news feeds of 689,003 randomly selected Facebook users to control how many positive and negative posts they saw. This was done without their consent as part of a study to test how social media could be used to spread emotions online.

Their research showed that emotions were in fact easily manipulated. Users tended to write posts that were aligned with the mood of their timeline.

Another worrying indication of Facebook's ability to alter discourse was during the ALS Ice Bucket Challenge in July and August, 2014. Users' News Feeds were flooded with videos of individuals pouring a bucket of ice over their head to raise awareness for charitable cause, but not entirely on its merit.

The challenge was Facebook's method of boosting its native video feature which was launched at around the same time. Its News Feed was mostly devoid of any news surrounding riots in Ferguson, Missouri at the same time, which happened to be a trending topic on Twitter.

Each day, the news feed algorithm has to choose roughly 300 posts out of a possible 1500 for each user, which involves much more than just a random selection. The posts you view when you log into Facebook are carefully curated keeping thousands of factors in mind. Each like and comment is a signal to the algorithm about your preferences and interests.

The amount of time you spend on each post is logged and then used to determine which post you are most likely to stop to read. Facebook even keeps into account text that is typed but not posted and makes algorithmic decisions based on them.

It also differentiates between likes - if you like a post before reading it, the news feed automatically assumes that your interest is much fainter as compared to liking a post after spending 10 minutes reading it.

Facebook believes that this is in the best interest of the user, and these factors help users see what he/she will most likely want to engage with. However, this keeps us at the mercy of a gatekeeper who impacts the diversity of information we consume, more often than not without explicit consent. Transparency is key.

(Vidushi Marda is a programme officer at the Centre for Internet and Society)

For more details visit https://cis-india.org/internet-governance/blog/catchnews-january-6-2016-vidushi-marda-facebook-free-basics-gatekeeping-powers-extend-to-manipulating-public-discourse

First draft of Technology Business Incubators: An Indian Perspective and Implementation Guidance Report

vidushi — 2015-07-25T16:14:44Z

The Centre for Internet and Society presents the first draft of its analysis on technology business incubators("TBI") in India. The report prepared by Sunil Abraham, Vidushi Marda, Udbhav Tiwari and Anumeha Karnatak looks at operating procedures, success stories and lessons that can be learnt from TBIs in India.

A technology business incubator (TBI) is an organisational setup that nurtures technology based and knowledge driven companies by helping them survive during the startup period in the company’s history, which lasts around the initial two to three years. Incubators do this by providing an integrated package of work space, shared office services, access to specialized equipment along with value added services like fund raising, legal services, business planning, technical assistance and networking support. The main objective of the technology business incubators is to produce successful business ventures that create jobs and wealth in the region, along with encouraging an attitude of innovation in the country as a whole.

The primary aspects that this report shall go into are the stages of a startup, the motivational factors behind establishing incubators by governments & private players, the process followed by them in selecting, nurturing talent as well as providing post incubation support. The report will also look at the role that incubators play in the general economy apart from their function of incubating companies, such as educational or public research roles. A series of case analysis of seven well established incubators from India shall follow which will look into their nurturing processes, success stories as well as lessons that can be learnt from their establishment. The final section shall look into challenges faced by incubators in developing economies and the measures taken by them to overcome these challenges.

Download the full paper

For more details visit https://cis-india.org/internet-governance/blog/technology-business-incubators

Submission by the Centre for Internet and Society on Draft New ICANN By-laws

vidushi — 2016-05-31T02:49:45Z

The Centre for Internet & Society sent its comments on the Draft New ICANN Bylaws. The submission was prepared by Pranesh Prakash, Vidushi Marda, Udbhav Tiwari and Swati Muthukumar. Special thanks to Sunil Abraham for his input and feedback.

We at the Centre for Internet and Society are grateful for the opportunity to comment on the draft new ICANN by-laws. Before we comment on specific aspects of the Draft by-laws, we would like to make a few general observations:

Broadly, there are significant differences between the final form of the by-laws and that which has been recommended by the participants in the IANA transition process through the ICG and the CCWG. They have been shown to be unnecessarily complicated, lopsided, and skewed towards U.S.-based businesses in their past form, which continues to reflect in the current form of the draft by-laws.

The draft by-laws are overwrought, but some of that is not the fault of the by-laws, but of the CCWG process itself. Instead of producing a broad constitutional document for ICANN, the by-laws read like the worst of governmental regulations that go into unnecessary minutiae and create more problems than they solve. Things that ought not to be part of fundamental by-laws — such as the incorporating jurisdiction of PTI, on which no substantive agreement emerged in the ICG — have been included as such.

Simplicity has been seen as a sin and has made participation in this complicated endeavour an even more difficult proposition for those who don’t choose to participate in the dozens of calls held every month. On specific substantive issues, we have the following comments:

Jurisdiction of ICANN’s Principal Office

Maintaining by-law Article XVIII, which states that ICANN has its principal office in Los Angeles, California, USA, these Draft by-laws make an assumption that ICANN’s jurisdiction will not change post transition, even though the jurisdiction of ICANN and its subsidiary bodies is one of the key aspects of post transition discussion to be carried out in Work Stream 2 (WS2). Despite repeated calls to establish ICANN as an international community based organisation (such as the International Red Cross or International Monetary Fund), the question of ICANN's future jurisdiction was deferred to WS2 of the CCWG-Accountability process. All of the new proposed by-laws have been drafted with certainty upon ICANN's jurisdiction remaining in California. Examples of this include the various references to the California Civil Code in the by-laws and repeated references to entities and structures (such as public benefit corporations) in the fundamental by-laws of the ICANN that can only be found in California.

This would make redundant any discussion in WS2 regarding jurisdiction, since they cannot be implemented without upending the decisions relating to accountability structures made in WS1, and embedded in the by-laws.

CIS suggests an provision expressly be inserted in the by-laws to allow changes to the by-laws in WS2 insofar as matters relating to jurisdiction and other WS2 issues are concerned, to make it clear that there is a shared understanding that WS2 decisions on jurisdiction are not meant to be redundant.

Jurisdiction of the Post-Transition IANA Authority (PTI)

The structure of the by-laws and the nature of the PTI in Article 16 make its Californian jurisdiction integral to the very organisation as a whole and control all its operations, rights and obligations. This is so despite this issue not having been included in the CWG report (except for footnote 59 in the CWG report, and as a requirement proposed by ICANN’s lawyers, to be negotiated with PTI’s lawyers, in Annex S of the CWG report). The U.S. government’s requirement that the IANA Functions Operator be a U.S.-based body is a requirement that has historically been a cause for concern amongst civil society and governments. Keeping this requirement in the form of a fundamental by-law is antithetical to the very idea of internationalizing ICANN, and is not something that can be addressed in Work Stream 2.

CIS expressed its disagreement with the inclusion of the U.S-jurisdiction requirement in Annex S in its comments to the ICG. Nothing in the main text of the CWG or ICG recommendations actually necessitate Californian jurisdiction for the PTI. Thus, clearly the draft by-laws include this as a fundamental by-law despite it not having achieved any form of documented consensus in any prior process. This being a fundamental by-law would make shifting the PTI’s registered and principal office almost impossible once the by-laws are passed.

No reasoning or discussion has been provided to justify the structure, location and legal nature of the PTI. The fact that the revenue structure, by-laws and other details have not even been hinted at in the current document, indicate that the true rights and obligations of PTI have been left at the sole discretion of the ICANN while simultaneously granting it fundamental by-law protection. This is not only deeply problematic on front of delegation of excessive responsibility for a key ICANN function without due oversight but also leads to situation where the community is agreeing to be bound to a body whose fundamental details have not even been created yet, and yet is a fundamental by-law.

CIS would therefore suggest that the PTI related clauses in the by-laws be solely those on which existing global Internet community consensus can be shown, and the PTI’s jurisdiction is not something on which such consensus can be shown to exist. Therefore the by-laws should be rewritten to make them agnostic to PTI’s jurisdiction. Further, CIS suggests that the law firm appointed for PTI be non-American, since U.S.-based law firms capable law firms in Brazil, France, and India.

We would also like to note that we have previously proposed that PTI’s registered office and ICANN’s registered office be in different jurisdictions to increase jurisdictional resilience against governmental and court-based actions.

Grandfathering Agreements Clause

A fair amount of discussion has taken place both in the CCWG mailing list about Section 1.1 (d)(ii), which concerns the inclusion of certain agreements into the scope of protection granted to ICANN from its Mission and Objective statement goals. CIS largely agrees with the positions taken by the IAB and CCWG in their comments of demanding the removal of parts B, C, D E and F of Section 1.1(d)(ii) as all of these are agreements that were not included in the scope of the CCWG Proposal and a fair few of these agreements (such as the PTI agreement) have not even been created yet. This leads to practical and legal issues for the ICANN as well as the community as it restricts possible accountability and transparency measures that may be taken in the future.
CIS as its suggestion therefore agrees with the IAB and CCWG in this regard and supports the request by them that demand by these grandfathering provisions be removed.

Inspection Rights

Section 22.7 severely limits the transparency of ICANN’s functioning, and we believe it should be amended.

(a) It limits Inspection Requests to Decisional Participants and does not allow for any other interested party to make a request for inspection. While the argument has been made that Californian law requires inspection rights for decisional participants, neither the law nor CCWG’s recommendations require restricting the inspection rights to decisional participants. CIS’s suggestion is to allow for any person in the public to make a request for examination, but to have to declare the nature of the public interest behind requests for non-decisional participants, so that an undue number of requests are not made for the purpose of impairing the operations of the organisation.

(b) The unclear but extremely limited definition of ‘permitted scope’, which does not allow one to question any ‘small or isolated aspect’ of ICANN’s functioning, where there is no explicit definition of what constitutes the scope of matters relevant to operation of ICANN as a whole, leaving a loophole for potential exploitation. CIS suggests the removal of this statement and to allow only for limitations listed in Section 22.7 (b) for Inspection Requests.

(3) There is no hard deadline provided for the information to be made available to the querying body, thus allowing for inordinate delays on the part of the ICANN, which is open to abuse. CIS suggests the removal of the clause ‘or as soon as reasonably practicable thereafter’ in this section.

(4) The need for insisting that the material be used only for restricted purposes. CIS suggests that as a step towards ICANN’s transparency, it is essential that they allow the use of the information for any reason deemed necessary by the person demanding inspection. There is no clear reason to require restriction to EC proceedings for non-confidential material. This requirement should be removed.

Work Stream 2 Topics

Section 27.2, which covers necessary topics for WS2, currently does not include key aspects such as PTI documents, jurisdictional issues, etc. In this light, we suggest that they be included and a clause be inserted to indicate that this list of topics is indicative and the CCWG can expand the scope of items to be worked on in WS2 as well as make changes to work completed in WS1 (such as these by-laws) to meet WS2 needs as well.

FOI-HR

Section 27.3 (a) requires the FOI-HR to be approved by "(ii) each of the CCWG-Accountability’s chartering organizations..” which is inconsistent with the CCWG proposal that forms the basis for these by-laws. The requirement of formal approval from every Chartering Organisation in the current draft is inconsistent with Annex 6 of the CCWG proposal, that has no such requirement.

CIS strongly advocates for a change in the bylaw text to align with the intent of the CCWG Accountability report, and to reflect that the process of developing the FOI-HR shall follow the same procedure as Work Stream 1.

Contracts with ICANN

Section 27.5 currently states that “Notwithstanding the adoption or effectiveness of the New by-laws, all agreements, including employment and consulting agreements, entered by ICANN shall continue in effect according to their terms.”

As the section currently stands, there is a possibility that prior to the creation of by-laws, agreements that may be in contravention of the by-laws may be brought forth intentionally before the commencement of the operation of ICANN’s Mission statement in the said by-laws. The clause may be updated as follows to avoid this —

“Notwithstanding the adoption or effectiveness of the New by-laws, all agreements, including employment and consulting agreements, entered by ICANN shall continue in effect according to their terms, provided that they are in accordance with ICANN’s Mission Statement.”

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-draft-new-icann-bylaws

UN Special Rapporteur Report on Freedom of Expression and the Private Sector: A Significant Step Forward

vidushi — 2016-06-08T17:27:22Z

On 6 June 2016, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, released a report on the Information and Communications Technology (“ICT”) sector and freedom of expression in the digital age. Vidushi Marda and Pranesh Prakash highlight the most important aspects of the report.

Background

Today, the private sector is more closely linked to the freedom of expression than it has ever been before. The ability to speak to a mass audience was at one time a privilege restricted to those who had access to mass media. However, with digital technologies, that privilege is available to far more people than was ever possible in the pre-digital era. As private content created on these digital networks is becoming increasingly subject to state regulation, it is crucial to examine the role of the private sector in respect of the freedom of speech and expression.

The first foray by the Special Rapporteur into this broad area has resulted in a sweeping report, that covers almost every aspect of freedom of expression within the ICT sector, except competition which we will elaborate on later in this post.

Introduction

The report aims to “provide guidance on how private actors should protect and promote freedom of expression in a digital age”. It identifies the relevant international legal framework as Article 19 of the International Covenant on Civil and Political Rights, and Article 19 of the Universal Declaration of Human Rights. The UN “Protect, Respect and Remedy” Framework and Guiding Principles, also known as the Ruggie Principles provide the framework for private sector responsibilities on business and human rights.

The report categorises different roles of the private sector in organising, accessing, regulating and populating the internet. This is important because the manner in which the ICT sector affects the freedom of expression is far more complicated than traditional communication industries. The report identifies the distinct impact of internet service providers, hardware and software companies, domain name registries and registrars, search engines, platforms, web hosting services, platforms, data brokers and e-commerce facilities on the freedom of expression.

Legal and Policy Issues

The Special Rapporteur discusses four distinct legal and policy issues that find relevance in respect of this problem statement: Content Regulation, Surveillance and Digital Security, Transparency and Remedies.

Content Regulation

The report identifies two main channels through which content regulation takes place: the state, and internal processes.

Noting that digital content made on private networks is increasingly subject to State regulation, the report highlights the competing interests of intermediaries who manage platforms and States which demand for regulation of this content on grounds of defamation, blasphemy, protection of national security etc. This tension is demonstrated through vague laws that compel individuals and private corporations to over-comply and err on the side of caution “in order to avoid onerous penalties, filtering content of uncertain legal status and engaging in other modes of censorship and self-censorship.” Excessive intermediary liability forces intermediaries to over-comply with requests in order to ensure that local access to their platforms are not blocked. States attempt at regulating content outside the law through extra legal restrictions, and push private actors to take down content on their own initiative. Filtering content is another method, wherein States block and filter content through the private sector. Government blacklists, illegal content and suspended accounts are methods employed, and these have sometimes raised concerns of necessity and proportionality. Network or service shutdowns are classified as a “particularly pernicious” method of content regulation. Non neutral networks also are a method of content regulation with the possibilities of internet service providers throttling traffic. Zero rating is a potential issue, although the report acknowledges that “it remains a subject of debate whether they may be permissible in areas genuinely lacking Internet access”.

The other node of content regulation has been identified as internal policies and practices of the private sector. Terms of service restrictions are often tailored to the jurisdiction’s laws and policies and don’t always address the needs and interests of vulnerable groups. Further, the report notes, design and engineering choices of how private players choose to curate content are algorithmically determined and increasingly control the information that we consume.

Transparency

The report notes that transparency enables those entities subject to internet regulation to take informed decisions about their responsibilities and liabilities in a digital sphere and points out, that there is a severe lack of transparency about government requests to restrict or remove content. Some states even prohibit the publication of such information, with India being one example. In respect of the private sector, content hosting platforms sometimes at least reveal the circumstances under which content is removed due to a government request, although this is rather erratic. The report recognises the need to balance transparency with competing concerns like security and trade secrecy, and this is a matter of continued debate.

Surveillance and Digital Security

Freedom of expression concerns arise as data transmitted on private networks is gradually being subjected to surveillance and interference from the State and private actors. The report finds that several internet companies have reported an increase in government requests for customer data and user information. According to the Special Rapporteur, effective resistance strategies include inclusion of human rights guarantees, restrictively interpreting government requests negotiations. Private players also make surveillance and censorship equipment that enable States to intercept communications. Covert surveillance has been previously reported, with States tapping into communications as and when necessary. When private entities become aware of interception and covert surveillance, their human rights responsibilities arise. As private entities work towards enhancing encryption, anonymity and user security, states respond by compelling companies to create loopholes for them to circumvent such privacy and security enhancing technology.

Remedies

Unlawful content removal, opaque suspensions, data security breaches are commonplace occurrences in the digital sphere. The ICCPR guarantees that all people whose rights have been violated must have an effective remedy, and similarly, the Ruggie principles require that remedial and grievance mechanisms must be provided by corporations. There is some ambiguity on how these complaint or appeal mechanisms should be designed and implemented, and the nature and structure of these mechanisms is also unclear. The report states that it is necessary to investigate the role of the state in supplementing/regulating corporate mechanisms, its role in ensuring that there is a mechanism for remedies, and its responsibility to make sure that more easily and financially accessible alternatives exist for remedial measures.

Special Rapporteur’s priorities for future work and thematic developments

Investigating laws, policies and extralegal measures that equip governments to impose restrictions on the provision of telecommunications and internet services. Examining the responsibility of companies to respond in a way that respects human rights, mitigates harm, and provides avenues for redress.
Evaluating content restrictions under terms of service and community standards. Private actors face substantial pressure from governments and individuals to restrict expression, and a priority is to evaluate the interplay of private and state actions on freedom of expression in light of human rights obligations and responsibilities.
Focusing on the legitimacy of rationales for intermediary liability for content hosting, restrictions, conditions for removing third party content.
Exploring censorship and surveillance within the human rights framework, and encouraging greater scrutiny before using these technologies for purposes that undermine the freedom of expression.
Identifying ways to balance an increasing scope of freedom of expression with the need to address governmental interests in national security and public order.
Internet access - Future work will explore issues around access and private sector engagement and investment in ensuring affordability and accessibility, particularly considering marginalized groups.
Internet governance - Internet governance frameworks and reform efforts are sensitive to the needs of women, sexual minorities and other vulnerable communities. Throughout this future work, the Special Rapporteur will pay particular attention to legal developments (legislative, regulatory, and judicial) at national and regional levels.

Conclusions and Recommendations

States: The report recommends that states should not pressurise the private sector to interfere with the freedom of speech and expression in a manner that does not meet the condition of necessary and proportionate principles. Any request to take down content or access customer information must be based on validly enacted law, subject to oversight, and demonstrate necessary and proportionate means of achieving the aims laid down in Article 19(3) of the ICCPR.
Private Actors: The Special Rapporteur recommends that private actors develop and implement transparent human rights assessment procedures, and develop policies keeping in mind their human rights impact. Apart from this, private entities should integrate commitments to the freedom of expression into internal processes and ensure the “greatest possible transparency”.
International Organisations: The report recommends that organisations make resources and educational material on internet governance publicly accessible. The Special Rapporteur also recommends encouraging meaningful civil society participation in multi-stakeholder policy making and standard setting processes, with an increased focus on sensitivity to human rights.

CIS Comments

CIS strongly agrees with the expansion of the Special Rapporteur’s scope that this report represents. He is no longer looking solely at states but at the private sector too.
CIS also notes that competition is an important aspect of the freedom of expression, but has not been discussed in this report. Viable alternatives to platforms, networks, internet service providers etc., will ensure a healthy, competitive marketplace, and will have a positive impact in resolving the issues identified above.
Our work has called for maintaining a balanced approach to liability of intermediaries for their users’ actions, since excessive liability or strict liability would lead to over-caution and removal of legitimate speech, while having no liability at all would make it difficult to act effectively against harmful speech, e.g., revenge porn.
CIS’ work on network neutrality has highlighted the importance of neutrality for freedom of speech, and has advocated for an evidence-based approach that ensures there is neither under-regulation, nor over-regulation. The Special Rapporteur suggests that ‘Zero-Rating’ practices always violate Net Neutrality, but the majority of the definitions of Net Neutrality proposed by academics and followed by regulators across the world often do not include Zero-Rating. Similarly, he suggests that the main exception for Zero-Rating is for areas genuinely lacking access to the Internet, whereas the potential for some forms of Zero-Rating to further freedom of expression, especially of minorities, even in areas with access to the Internet, provides sufficient reason for the issue to merit greater debate.

(Pranesh Prakash was invited by the Special Rapporteur to provide his views and took part in a meeting that contributed to this report)

For more details visit https://cis-india.org/internet-governance/un-special-rapporteur-report-on-freedom-of-expression-and-the-private-sector-a-significant-step-forward

Submission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior

vidushi — 2016-06-30T06:07:37Z

Prepared by Vidushi Marda, with inputs from Dr. Nirmita Narasimhan and Sunil Abraham.

We at the Centre for Internet and Society (“CIS”) are grateful for the opportunity to comment on the proposed revisions to ICANN’s Expected Standards of Behavior (“Standards”).

Before providing specific comments on the proposed revisions, CIS would like to state for the record our extreme disappointment while noting that there is no indication of the intention to draft and adopt a dedicated anti - harassment policy. We are of the firm opinion that harassment, and particularly sexual harassment, is not only a sensitive topic, but also a deeply complex one. Such a policy should consider scope, procedural questions, redressal and remedies in cases of harassment in general and sexual harassment in particular. A mere change in language to these Standards, however well intentioned, cannot go too far in preventing and dealing with cases of harassment in the absence of a framework within which such instances can be addressed.

Some of the issues that arose at ICANN55 were confusion surrounding the powers and limits of the Ombudsman’s office in dealing with cases of harassment, the exact procedure to be followed for redressal surrounding such incidents, and the appropriate conduct of parties to the matter. There will be no clarity in these respects, even if these proposed changes are to be adopted.

Specifically, the proposed language is problematic and completely inadequate for the following reasons:

Vague

Terms like “professional conduct” and “appropriate behavior” mean little in the absence of a definition that entails such conduct. These terms could mean vastly different things to each community member and such language will only encourage a misalignment of expectation of conduct between community members. The “general” definition of harassment is at best, an ineffective placeholder, as it does not encompass exactly what kind of behavior would fall under its definition.
Fails to consider important scenarios

The proposed language fails to consider situations where some attempts or advances at communication, sexual or otherwise, occur. For example, consider a situation in which one community member stalks another online, and catalogues his/her every move. This is most certainly foreseeable, but will not be adequately covered by the proposed language. Further, terms like “speech or behavior that is sexually aggressive or intimidates” could or could not include types of speech such as art, music, photography etc, depending on who you ask. It also does not explain the use of the word behavior - physical, emotional, professional, online behavior are all possible, but the scope of this term would depend on the interpretation one chooses to apply. In part 4 below, we will demonstrate how ICANN has applied a far more detailed framework for harassment elsewhere.
Ignores complexity

In discussions surrounding the incident at ICANN55, a number of issues of arose. These included, inter alia, the definition of harassment and sexual harassment, what constituted such conduct, the procedure to be followed in such cases, the appropriate forum to deal with such incidents and the conduct that both parties are expected to maintain. These questions cannot, and have not been answered or addressed in the proposed change to the Standards. CIS emphasizes the need to understand this issue as one that must imbibe differences in culture, expectation, power dynamics, and options for redressal. If ICANN is to truly be a safe space, such issues must be substantively and procedurally fair for both the accused and the victim. This proposed definition is woefully inadequate in this regard.
Superficial understanding of harassment, sexual harassment

The proposed changes do not define harassment, and sexual harassment in an adequate fashion. The change currently reads, “Generally, harassment is considered unwelcome hostile or intimidating behavior -- in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.” These are subject to broad interpretation, and we have already highlighted the issues that may arise due to this in 1, above. Here, we would like to point to a far more comprehensive definition.

ICANN’s own Employment Policy includes within the scope of sexual harassment “verbal, physical and visual conduct that creates an intimidating, offensive or hostile working environment, or interferes with work performance.” The policy also states:

Harassing conduct can take many forms and includes, but is not limited to, the following:

Slurs, jokes, epithets, derogatory comments, statements or gestures;

Assault, impeding or blocking another’s movement or otherwise physically interfering with normal work;

Pictures, posters, drawings or cartoons based upon the characteristics mentioned in the first paragraph of this policy.
Sexually harassing conduct includes all of the above prohibited actions, as well as other unwelcome conduct, such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.”

This definition is not perfect, it does not comprehensively consider advances or attempts at communication, sexual or otherwise, which are unwelcome by the target. Nonetheless, CIS believes that this is a far more appropriate definition that does not include vague metrics that the proposed changes do. Since it is one ICANN has already adopted, it can act as an important stepping stone towards a comprehensive framework.

Like ICANN, UNESCO’s organisational approach has been to adopt a comprehensive Anti-Harassment Policy which lays down details of definition, prevention, complaint procedure, investigations, sanctions, managerial responsibility, etc. Acknowledging the cultural sensitivity of harassment particularly in international situations, the policy also recognizes advances or attempts at communication, sexual or otherwise. Most importantly, it states that for conduct to come within the definition of sexual harassment, it “must be unwelcome, i.e. unsolicited and regarded as offensive or undesirable by the victim.”

Conclusion

In conclusion, we would like to reiterate the importance of adopting and drafting a dedicated anti-harassment policy and framework. The benefits of safety, certainty and formal redressal mechanisms in cases of harassment cannot be over emphasized.

Importantly, such measures have already been taken elsewhere. The IETF has adopted an instrument to address issues of harassment that occur at meetings, mailing lists and social events. This instrument contemplates in detail, problematic behavior, unacceptable conduct, the scope of the term harassment, etc. It further envisages a framework for redressal of complaints, remediation, and even contemplates issues that may arise with such remediation. It is particularly important to note that while it provides a definition of harassment, it also states that "[a]ny definition of harassment prohibited by an applicable law can be subject to this set of procedures, recognising harassment as a deeply personal and subjective experience, and thus encouraging members to take up issues of harassment as per their cultural norms and national laws, which are then considered as per procedures laid down."

A similar effort within the ICANN community is critical.

For more details visit https://cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior