Centre for Internet and Society

Google Policy Fellowship Programme: Call for Applications

praskrishna — 2012-05-24T15:38:28Z

The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Fellowship Focus Areas

Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.
Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public.
Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.
Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.
Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.

Frequently Asked Questions

What is the Google Policy Fellowship program?
The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.

I am an International student can I apply and participate in the program? Are there any age restrictions on participating?
Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.

Are there citizenship requirements for the Fellowship?
For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?
In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.

I am an International student can I apply and participate in the program?
In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.
I graduate in the middle of the program. Can I still participate?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work?*

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates

What is the program timeline?

June 27, 2012	Student Application Deadline. Applications must be received by midnight.
July 18, 2012	Student applicants are notified of the status of their applications.
August 2012	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
September 2012	Mid-term evaluations; Google issues mid-term stipends.
October 2012	Final evaluations; Google issues final stipends.

For more details visit https://cis-india.org/internet-governance/google-policy-fellowship

Freedom of Expression Scholars Conference 2

praskrishna — 2014-06-04T04:48:22Z

Yale Law School organized the Freedom of Expression Scholars Conference 2 from May 2 to 4, 2014. Pranesh Prakash participated as a discussant in the session "Speech and Safety Laboratories".

Click to see the agenda here.

List of Participants

A
Tabatha Abu El-Haj - Associate Professor of Law, Drexel University School of Law
BJ Ard - Thomson Reuters Resident Fellow, Information Society Project, Yale Law School
Enrique Armijo - Associate Professor of Law, Elon University School of Law

B
Jack Balkin - Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Director, Yale Information Society Project
Derek Bambauer - Associate Professor of Law, University of Arizona College of Law
Jane Bambauer - Associate Professor of Law, University of Arizona College of Law
Vincent Blasi - Corliss Lamont Professor of Civil Liberties, Columbia Law School
Joseph Blocher - Associate Professor, Duke Law School
Nicholas Bramble - Senior Policy Fellow, Google
Kiel Brennan-Marquez - Resident Fellow, Information Society Project, Yale Law School

C
Alan Chen - Professor of Law, University of Denver College of Law
Danielle Citron - Professor of Law, University of Maryland Francis King Carey School of Law

D
Deven Desai - Associate Professor of Law, Thomas Jefferson School of Law

F
Stephen Feldman - Jerry W. Housel / Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming College of Law

G
Hillary Greene - Professor of Law, University of Connecticut School of Law
James Grimmelmann - Professor of Law, University of Maryland Francis King Carey School of Law

H
David Han - Associate Professor of Law, Pepperdine University School of Law
Thomas Healy - Professor of Law, Seton Hall University School of Law

I
John Inazu - Associate Professor of Law and Political Science, Washington University School of Law

K
Margot Kaminski - Executive Director, Information Society Project, Yale Law School
Leslie Kendrick - Associate Professor of Law, University of Virginia School of Law
Jeremy Kessler - David Berg Foundation Fellow, Tikvah Center for Law & Jewish Civilization, New York University
Randy Kozel -Associate Professor of Law, University of Notre Dame Law School

L
Laura Little - Charles Klein Professor of Law, Temple University Beasley School of Law

M
Greg Magarian - Professor of Law, Washington University Law School
Jonathan Manes -Associate Research Scholar in Law and Abrams Clinical Fellow, Informaiton Society Project, Yale Law School
Toni Massaro - Regents' Professor, University of Arizona, James E. Rogers College of Law
Kerry Monroe - Law Ph.D. Candidate, Yale Law School

N
Helen Norton - Associate Dean for Academic Affairs and Associate Professor of Law, University of Colorado School of Law

P
Mary-Rose Papandrea - Professor, Boston College Law School
Pranesh Prakash - Postgraduate Associate in Law and Access to Knowledge Fellow, Information Society Project, Yale Law School
Tamara Piety - Professor of Law, University of Tulsa College of Law

R
Neil Richards - Professor of Law, Washington University School of Law
Lee Rowland -Staff Attorney, ACLU Speech, Privacy and Technology Project

S
Esteve Sanz - Resident Fellow, Information Society Project, Yale Law School

T
David Thaw - Visiting Assistant Professor, University of Connecticut School of Law
Alexander Tsesis - Professor of Law, Loyola University School of Law
Andrew Tutt - Law Clerk and Visiting Fellow, Yale Information Society Project

W
Felix Wu - Associate Professor of Law, Cardozo School of Law

Z
Tim Zick - Mills E. Godwin, Jr. Professor of Law, Willian & Mary Law School

For more details visit https://cis-india.org/news/freedom-of-expression-scholars-conference-2

Re:publica 2014: Looking for Freedom

praskrishna — 2014-06-04T05:37:57Z

Re:publica in partnership with DAIMLER, Global Innovation Gathering, Microsoft and Science:Lab organized this conference at Berlin from May 6 to 8, 2014.

Pranesh Prakash was a speaker at the session "The Architecture of Invisible Censorship: How Digital and Meatspace Censorship Differ". Click to read the full list of speakers here.

For more details visit https://cis-india.org/news/re-publica-2014-looking-for-freedom

Should the censors tighten Savita Bhabhi’s hook?*

praskrishna — 2012-05-02T06:31:11Z

"Should the censors tighten Savita Bhabhi's hook, asks a blog entry published in Churumuri on May 1, 2012.

GAGAN KRISHNADAS writes from Bangalore: With the Information Technology (Intermediaries Guidelines) Rules, 2011 in place, internet censorship has gone high and degree of criminality has fallen down. Be it Kapil Sibal or Mamata Banerjee, the people at the helm of power are trying to gain a control over internet.

The effect of existing law: To put it in simple terms, if anybody finds a particular post on this blog illegal, he/she may bring it to the notice of the owners of this blog. If the blog owner does not take any action within 36 hours, the liability on the content immediately shifts to the owner of the blog.

If at all there are about 200 ‘take down’ requests in a day, the blog owner surely cannot ascertain the legality of the content within 36 hours. Surely, the owner will find it convenient to remove the content instead of contesting the claim.

Resistance: The resistance for the said rules was not strong until recently when Kapil Sibal became vocal on pre-censorship on internet.

On April 21, there was a press conference in New Delhi by Knowledge Commons, Software Freedom Law Center, Delhi Science Forum, Save Your Voice Campaigm, Internet Democracy Project, Center for Internet and Society, Free Software Movement India, IT for Change, and Alternative Law Forum.

Two events were organised in Bangalore on the same day to voice against Internet Censorship. Let me juxtapose how media professionals and Free Software Movement people respond on the issue.

Senior Journalist Paranjoy Guha Thakurtha said: “This is a matter of considerable concern. It is known to a relatively small section because; ordinary people do not understand the intricacies. It is a matter of freedom of speech and hence it concerns not just the netizen, but every citizen. At the legal and larger philosophy, Article 19 lays down reasonable restrictions like public order, national security and so on. But who decides these reasonable restrictions on the internet?”

Mahesh Murthy, went a step ahead to declare: “I feel there should be no censorship of any kind of information, be it Savitha Bhabi or pornography or a hate speech. All such information already exists in the society. By censoring them, you are not achieving any results. The Abhishek Manu Singhvi’s alleged sex video was removed from Youtube just within 5 hours, but if someone hosts it on Piratebay, it’s almost impossible to censor.”

Na Vijayashankar said that the internet cannot be left unregulated and at the same time the regulation should not take away the basic rights of the citizens. He recalled that right from the initial days of the internet, he advocated for an internet law made by the netizens themselves, because the lawmakers hardly understand the technology.

Soon after the meeting, I moved to the town hall to participate in a protest convened by the representatives of Free Software Movement of Karnataka (FSMK) along with Software Freedom Law Centre (SFLC). The crowd predominantly comprised of Engineers and Engineering students.

I was surprised that the Engineers also had acquired a good understanding of the rules which are in detriment of their interest. While the group of media persons was more worried about censorship and freedom of speech, the ambit of concerns was larger with the Freedom Software advocates.

Senthil from the Free Software Movement of Karnataka was skeptical about similar laws being passed in other jurisdictions. Recently, USA was on its way for passing the controversial SOPA/PIPA legislations which was halted due to public pressure.

People have used internet to question the established governments, be it wikileaks, networking during the Egypt revolution or Lokpal movement. Senthil feels that the intermediary guidelines would be a hindrance in taking technology to the people.

Member of Parliament, P. Rajeeve has introduced a motion in the Rajya Sabha calling for the Internet censorship law passed last year (“Intermediary Guidelines Rules”) to be annulled. This motion will be taken up once the Budget Session 2012 reconvenes, and will need the support of the majority of both Houses to be passed.

Until the Parliament meets again, we the netizens and citizens need to ask our MPs to support the motion when it is introduced.

(Gagan Krishnadas is a post-graduate student at the National Law School of India University, Bangalore)

Read the original post.

For more details visit https://cis-india.org/news/should-censors-tighten-savita-bhabi

Good Intentions, Recalcitrant Text - I: Why India’s Proposal at the ITU is Troubling for Internet Freedoms

geetha — 2014-11-02T15:13:45Z

The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.

At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled a draft proposal on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“Draft Resolution”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.

Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:

First, it is troubling for India that present network architecture has “security weaknesses” such as “camouflaging the identity of the originator of the communication”;[1] random IP address distribution also makes “tracing of communication difficult”;[2]
Second, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;[3]
Third, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;[4] similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.[5]

In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:

First, to develop and recommend a ‘traffic routing plan’ that can “effectively ensure the traceability of communication”;[6]
Second, to collaborate with relevant international and intergovernmental organisations to develop an “IP address plan” which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;[7]
Third, to develop and recommend “a public telecom network architecture” that localizes both routing[8] as well as address resolution[9] for local/domestic traffic to “within the country”.

Admittedly, our Draft Resolution is intended to pave a way for “systematic, fair and equitable allocation” of, inter alia, naming, numbering and addressing resources,[10] keeping in mind security and human rights concerns.[11] In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “concentration of control over Internet resources”, though “certain governments” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “roadmap for the systematization” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the Geneva Plan of Action, 2003.

Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. First, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s NSA files and the absence of adequate protections against government incursions or excesses into privacy,[12] either in international human rights law or domestic law, such text is troublesome. Second, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and finally, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.

In this post, I will address the first concern of human rights implications of our Draft Resolution.

Unintended Implications for Privacy and Freedom of Expression:

India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:

Pream. §(e): “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”;
Pream. §(h): “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. Snowden used Tor while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is reported to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were coerced into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the NSA and GCHQ have tried to break Tor; the Russian government has offered a reward to anyone who can.

Far be it from me to defend Tor blindly. There are reports suggesting that Tor is being used by offenders, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after Snowden’s revelations, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been recognized by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution The Right to Privacy in the Digital Age. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…”.

Erosion of privacy has a chilling effect on free speech [New York Times v. Sullivan, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s Information Technology (Guidelines for Cyber Cafe) Rules, 2011, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to dismantle the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in McIntyre v. Ohio Elections Commission [514 U.S. 334 (1995)].[13] Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, wrote Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).

So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and prima facie violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.

To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in Weber & Saravia v. Germany [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that enables surveillance without sufficient safeguards is prima facie unreasonable and disproportionate. Re: anonymity, in Delfi AS v. Estonia [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication” to test the validity of government’s restrictions.

The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for all IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been arbitrary, and traceability may give rise to a host of new worries.

In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of WHOIS records and registries with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a licence to operate and offer services.

If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as traceroute or IP look-up that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.

If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.

[1] Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.

[2] Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

[3] Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.

[4] Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.

[5] Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.

[6] Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.

[7] Op. §1, Draft Resolution; see note 3.

[8] Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.

[9] Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.

[10] Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”

[11] Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.

[12] See, for instance, Report of the Office of the High Commission for Human Rights (“OHCHR”), Right to Privacy in the Digital Age, A/HRC/27/37 (30 June 2014), ¶34-35, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. See esp. note 30 of the Report, ¶35.

[13] Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; ex. see Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.

For more details visit https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms

Arrested for tweeting: Legitimate or Curbing Free Speech?

praskrishna — 2012-11-02T06:09:57Z

As a man in Puducherry is arrested for allegedly posting on Twitter that MR Chidambaram's son had amassed wealth more than that of Robert Vadra, we discuss whether freedom of speech is absolute.

Sunil Abraham along with Shivam Vij, Journalist and Blogger, SB Mishra, Additional DCP, Census Wing, Economic Offence Wing, Delhi Police, and Sanjay Pinto, Advocate, Madras High Court participated in this discussion aired in NDTV on October 31, 2012.

Watch the full video on NDTV

For more details visit https://cis-india.org/news/ndtv-news-oct-31-2012-arrested-for-tweeting-legitimate-or-curbing-free-speech

Decline in web freedom steepest in India: Report

praskrishna — 2013-10-24T03:50:51Z

In a report on the state of internet in 60 countries, Freedom House, a US-based organization, said that in 2013 India saw the "most significant year-on-year decline" in terms of the web freedom.

The article by Javed Anwer was published in the Times of India on October 3, 2013. Sunil Abraham is quoted.

The report said that that the internet in India was "partly free". This is the same status that India had in 2012. But the country's score is now 47 points (higher means more censorship) in 2013 compared to 39 in 2012. The 8-point fall is the steepest Freedom House found among all 60 countries that the group surveyed. Freedom House said it recorded 5-point fall in Brazil, Venezuela and the US.

Despite mass surveillance revealed by Edward Snowden, a former contractor for National Security Agency in the US, Freedom House calls the web in the country "free".

The Freedom House report said that in 2013 India "suffered from deliberate interruptions of mobile and internet service to limit unrest, excessive blocks on content during rioting in northeastern states, and an uptick in the filing of criminal charges against ordinary users for posts of social media sites".

In 2013, India's commitment to the web freedom has not only been worse than developed countries but has also been inferior to countries like Malawi, Tunisia and Mexico.

In the case of India, Freedom House particularly singles out Central Monitoring System, which Indian government is putting in place to regulate and monitor the web usage within the country. "Surveillance (under CMS) requires no judicial oversight. While some of this activity might be justifiable, the lack of transparency surrounding the system, which was never reviewed by Parliament, is concerning," it notes in the report. "The system's potential for abuse is also disquieting, as is its inadequate legal framework.

The report cites the case of the girl who was arrested for liking a Facebook post in Maharashtra, blocking of some Twitter accounts belonging to Indian users, overly broad court directives that have resulted in blocking of websites and a general lack of transparency in how Indian government blocks or filters content reach a conclusion that Indians now have less freedom on how they use the web.

Sunil Abraham, director at Bangalore-based Centre for Internet and Society, says that Freedom House reports are not very accurate because they don't factor in censorship by copyright holders. But he agreed with its basic premise that in India conditions for web users are getting more difficult.

"The report is absolutely right in pointing out that censorship and surveillance in India is increasing. Despite protests from many quarters, it is a real pity that the government is not taking steps to amend the IT act and has joined other nation states in the global race to the bottom of the internet freedom," said Abraham.

Anja Kovacs, founder of Delhi-based Internet Democracy Project, agrees. "I have some issues with Freedom House reports due to how they are prepared and their methodologies. But yes I can say that last year has been very eventful and difficult," said. "But at the same time, there has also been a lot of push back from web users and activists. There have been conversations around the issue of web censorship, which is good."

Globally, the web surveillance is on the rise. "Broad surveillance, new laws controlling web content, and growing arrests of social-media users drove a worldwide decline in internet freedom in the past year," noted Freedom House.

Overall, 34 out of 60 countries part of the report saw a decline in the web freedom. "Vietnam and Ethiopia continued on a worsening cycle of repression; Venezuela stepped up censorship during presidential elections; and three democracies—India, the United States, and Brazil—saw troubling declines," noted the report.

Iceland and Estonia topped the list of countries with the greatest degree of internet freedom. China, Cuba, and Iran were found to be the most repressive countries.

For more details visit https://cis-india.org/news/times-of-india-october-3-2013-javed-anwer-decline-in-web-freedom-steepest-in-india

Third South Asian Meeting on the Internet and Freedom of Expression

praskrishna — 2013-01-17T07:16:58Z

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

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

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

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

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

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

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

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

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

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

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

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

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

Agenda

January 14, 2013

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

January 15, 2013

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

List of Participants

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

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

TV versus Social Media: The Rights and Wrongs

sunil — 2013-01-21T03:09:56Z

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

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

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

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

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

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

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

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

Statutory Motion Against Intermediary Guidelines Rules

pranesh — 2012-04-03T09:35:41Z

Rajya Sabha MP, Shri P. Rajeev has moved a motion that the much-criticised Intermediary Guidelines Rules be annulled.

Motion to Annul Intermediary Guidelines Rules

A motion to annul the Intermediary Guidelines Rules was moved on March 23, 2012, by Shri P. Rajeeve, CPI(M) MP in the Rajya Sabha from Thrissur, Kerala.

The motion reads:

"That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annuled; and

That this House recommends to Lok Sabha that Lok Sabha do concur on this Motion."

This isn't the first time that Mr. Rajeeve is raising his voice against the Intermediary Guidelines Rules. Indeed, even when the Rules were just in draft stage, he along with the MPs Kumar Deepak Das, Rajeev Chandrashekar, and Mahendra Mohan drew Parliamentarians' attention to the rules. Yet, the government did not heed the MPs' concern, nor the concern of all the civil society organizations that wrote in to them concerned about human rights implications of the new laws. On September 6, 2011, Lok Sabha MP Jayant Choudhary gave notice (under Rule 377 of the Lok Sabha Rules) that the Intermediary Guidelines Rules as well as the Reasonable Security Practices Rules need to be reviewed. Yet, the government has not even addressed those concerns, and indeed has cracked down even harder on online freedom of speech since then.

Fundamental Problems with Intermediary Guidelines Rules

The fundamental problems with the Rules, which deal with objectionable material online:

Shifting blame.

It makes the 'intermediary', including ISPs like BSNL and Airtel responsible for objectionable content that their users have put up.

No chance to defend.

There is no need to inform users before this content is removed. So, even material put up by a political party can be removed based on anyone's complaint, without telling that party. This was done against a site called *CartoonsAgainstCorruption.com". This goes against Article 19(1)(a).

Lack of transparency

No information is required to be provided that content has been removed. It's a black-box system, with no one, not even the government, knowing that content has been removed following a request. So even the government does not know how many sites have been removed after these Rules have come into effect.

No differentiation between intermediaries.

A one-size-fits-all system is followed where an e-mail provider is equated with an online newspaper, which is equated with a video upload site, which is equated with a search engine. This is like equating the post-office and a book publisher as being equivalent for, say, defamatory speech. This is violative of Article 14 of the Constitution, which requires that unequals be treated unequally by the law.

No proportionality.

A DNS provider (i.e., the person who gives you your web address) is an intermediary who can be asked to 'disable access' to a website on the basis of a single page, even though the rest of the site has nothing objectionable.

Vague and unconstitutional requirements.

Disparaging speech, as long as it isn't defamatory, is not criminalised in India, and can't be because the Constitution does not allow for it. Content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.

Allows private censorship.

The Rules do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request.

Presumption of illegality.

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court (if they ever discover that it has been removed). This is contrary to the presumption of validity of speech used by Indian courts, and is akin to prior restraint on speech. Courts have held that for content such as defamation, prior restraints cannot be put on speech, and that civil and criminal action can only be taken post-speech.

Government censorship, not 'self-regulation'.

The government says these are industry best-practices in existing terms of service agreements. But the Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service.

Problems Noted Early

We have noted in the past the problems with the Rules, including when the Rules were still in draft form:

Other organizations like the Software Freedom Law Centre also sent in scathing comments on the law, noting that they are unconstitutional.

We are very glad that Shri Rajeeve has moved this motion, and we hope that it gets adopted in the Lok Sabha as well, and that the Rules get defeated.

For more details visit https://cis-india.org/internet-governance/blog/statutory-motion-against-intermediary-guidelines-rules

Tangled Web

praskrishna — 2012-01-23T08:42:01Z

Government and social networking sites at loggerheads as debate rages over freedom of expression, writes Kumar Anshuman and Nikita Doval in this story published in the Week on Saturday, 21 January 2012.

Journalist-turned-activist Vinay Rai has succeeded where Information Technology Minister Kapil Sibal failed—putting the fear of law in the minds of India's bloating community of bloggers, surfers, plain e-wayfarers and inter(net)lopers.

Blogs haven't yet been blocked, but a Delhi High Court bench asked 21 internet firms, including Google, Facebook and YouTube, to look at China and have stringent checks on their content on January 19. It was enough to set the net on fire. Compulsive tweeter Shashi Tharoor, who lost his ministerial berth for over-tweeting, wondered whether phone companies could "be sued if someone sends a defamatory, obscene SMS". Said IT expert Niyam Bhushan: "If you fall on the ground and hurt your nose, you can't sue gravity. At a time when people in autocratic countries are using social media to bring in democracy, a democratic country like India is trying to restrict it!"

When the summons for the case was first sent to the companies in December, a number of respondents who were based outside India failed to answer. Said cyber crime expert Pavan Duggal: "Companies are observing the IT Act more in breach than in observance."

The debate was originally kick-started by Sibal last December when he summoned the chiefs of social networking sites and showed them offensive material from their sites. However, they pleaded helplessness. Sibal's subsequent press conference drew more flak, and he retreated saying, "The government does not believe in interfering in the freedom of the press, but we have to take care of the sensibilities of our people."

It was then that Rai petitioned a Delhi criminal court, accusing 21 social networking sites of hosting objectionable and inflammatory content which would create enmity and violence among religious communities. In a sealed envelope, he presented 62 items downloaded from different web sites and got three witnesses.

Though the companies were ordered to appear before court on January 13, they challenged the order in the Delhi High Court, saying that curbing the content is technically impossible. "Human interference is not possible, and it is not feasible to check such incidents given that billions of people across the globe are posting articles and other material on their web sites," argued Mukul Rohatgi, former additional solicitor general, representing Google India. "Certain keywords can be blocked or not allowed," said Yogesh Bansal, founder and CEO of ApnaCircle.com. "However, filtering or having 100 per cent control over the content posted is technically not possible."

According to the Information Technology (Intermediaries guidelines) Rules, 2011, if the companies receive complaints about unlawful or objectionable online material, they have 36 hours to remove it, failing which the aggrieved party can approach court or the Cyber Law Appellate Tribunal. "The rules purportedly try to regulate and control the intermediaries like interactive web sites and social media sites, but, in effect, regulate content generated or posted by users," said Prasanth Sugathan, legal counsel, Software Freedom Law Center.

The 'intermediaries', as defined in the Information Technology Act, 2000, include a broad list of players ranging from internet service providers like Airtel and MTNL to blogging platforms like Blogspot and WordPress to auction sites like eBay and search engines like Google to cyber cafes. The new rules mandate the intermediaries to impose a set of rules and regulations on users.

The rules specify the terms of regulations, which include a broad list of unlawful content—information that is grossly harmful, harassing, blasphemous, defamatory, obscene, related to paedophilia, libellous, invasive of privacy, hateful, racially objectionable, disparaging, encourages money laundering or otherwise unlawful in any manner whatever.

"These are very broad terms which have not been defined very well," said Duggal. "The service provider is not even required to come to a judgment. Only after they receive a complaint or are notified by the government can they act." According to Delhi-based cyber law consultant Karnika Seth, it will be helpful if illustrations are given to explain the nature of the crime, as in the Indian Penal Code. "This is missing in the IT Act which leaves terms like 'blasphemy' and 'obscenity' open to wide interpretations."

The companies claim they stick to the rules. "We have a review committee, which decides on complaints in case of any content posted on our sites," said a representative of one of the accused companies. In the current case, the official claimed that they were not shown the content presented before court. "The current accusation is baseless," he said.

There have been several instances in the past when social networking companies acted on complaints. In 2009, a young Keralite was booked for posting offensive remarks against Shiv Sena leader Bal Thackeray and his party on a social networking site and the material was removed. In May 2010, the controversial 'Everybody Draw Mohammed Day!' in Facebook was blocked in India, following protests from Muslims.

In August last year, the cyber wing of the Punjab Crime Branch charge-sheeted a Sunny Dhiman for allegedly uploading a pornographic video of a female student from Chandigarh on YouTube. Following complaints, the video was removed.

According to Sunil Abraham of the Centre for Internet and Society, the companies are over-compliant. "We did a policy sting operation wherein we sent fraudulent notices to big web sites," he said. "They never bothered to check the veracity of the complaints, but complied with everything we asked for. In one case where we asked for the removal of three comments, they removed all 13. So there is already a private censorship underway. The existing IT Act is draconian and has led to great dilution of privacy."

According to Google Transparency Report, Google received government requests for removing 358 items from its services between January and June last year. Fifty-one per cent of the requests were partially or fully complied with. "In addition, we received a request from a local law enforcement agency to remove 236 communities and profiles from Orkut that were critical of a local politician. We did not comply with it as the content did not violate our community standards or local law," said the report.

Both Duggal and Seth said the government's demand for pre-screening and monitoring content was not feasible. "In the IT Act there is not a single phrase which requires pre-screening or moderation under the law," said Duggal. The government has a right to stop a company from displaying content which it deems perverse to Indian standards. But, as Seth said, "How do you define Indian standards? They are ever changing."

Web sites can put certain filters in place, but even they have limitations. As the counsel for the companies argued in court, the word 'sex' even comes up in documents like ration cards and passports. So blocking them is not feasible.

Though freedom of expression is a fundamental right, it is not absolute. Article 19(2) states that the state may make a law imposing "reasonable restrictions” on the right to freedom of speech on eight grounds mentioned in Clause (2)—security of state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to an offence and sovereignty and integrity of India.

The evidence presented before court clearly points to violation of some of these rules. "Freedom of expression doesn't mean mutilating or morphing pictures of leaders of different religious beliefs,” said Zafaryab Jilani, a lawyer. “This is a crime and the persons responsible should be accused under Section 153(A)."

Said BJP leader Shahnawaz Hussain: "Anything hurting religious sentiments should not be allowed. But the government is trying to stop certain political viewpoints, which is wrong." Senior Congress leader Shakeel Ahmed said freedom of expression should be "in a proper, democratic way without demeaning anyone."

Team Anna member Kumar Vishwas blamed social networking sites for hosting his videos without consent. "The main part of my speech has been deliberately removed and hence it doesn't present the fact which I said." Though he has complained, the videos have not been removed. However, he said that social networking was the voice of young India and it shouldn't be curbed in any way.

According to columnist and social analyst Syed Mubin Zehra, "There should be a check or verification process to have an internet identity." However, she is against a total ban. "We are not China, and think about the good things which the internet has contributed to society."

The corporate sector is increasingly using social networking sites to build stronger ties with consumers. For brands like Airtel, having a Facebook page meant reaching out to Generation Y, who spend a large amount of time with computers. "With Facebook there is dialogue, it becomes a barometer of customer satisfaction level," said Marzin Shroff, CEO (direct sales) and senior vice-president (marketing), Eureka Forbes, which started using Facebook in 2010 and has more than 1.6 lakh 'likes' on its page.

Cleartrip.com, a major online travel company, heavily uses the social networking platform. "We have always been early adopters of social media tools with a blog, customer forum, Twitter presence and a Facebook page," said Hrush Bhatt, co-founder and director (product & strategy), Cleartrip. "There are multiple cases where extremely irate customers have been vocal on their blogs or Twitter and our team has successfully reached out to them, taken care of their problems and turned them from complainers to evangelists."

Corporate honchos are worried over the ongoing controversy. "Banning social networking sites will hurt business as social media is now becoming a source of business for many," said Mohandas Pai, former director (HR) at Infosys Ltd. The worry is equally troubling a real estate company like Prestige Group. "As we have a very strong NRI customer base, such sites also make it possible for us to address their every need and give them an opportunity to clarify their queries with us,” said Uzma Irfan, executive director, corporate communications, Prestige Group. “Hence, ban of any free media such as Facebook shall only create a void in the marketing efforts of companies."

Some experts, however, are of the opinion that a ban or restriction on social networking sites will only have a short-term impact on some companies as many of them will change their online advertising strategy to deal with the situation. "Companies are smart enough to design new innovative advertising strategies," said Sridhar Ramanujam, CEO of brand-comm, a Bangalore-based brand communications consultancy. "Take, for instance, the liquor companies. Though liquor advertisements are banned in different places, such companies are doing more and more of surrogate advertising in the form of mineral water."

The only kind of censorship that can work on the net is self-imposed and, perhaps, a few guidelines in netiquette might not be out of line, said Seth. "Netiquette culture needs to be developed. The common man has to be explained what is legal and illegal. Otherwise there will be rampant cyber crime without people even realising that they are indulging in it."
with Abhinav Singh and Sharmista Chaudhury

Sunil Abraham was quoted in this story.

Read the original published in the Week

For more details visit https://cis-india.org/news/tangled-web

Google V/s Kapil Sibal

praskrishna — 2011-12-09T11:12:58Z

Mr Kapil Sibal was quoted by the Hindu* today as saying that "he had been left with no choice" because the internet companies "refused to delete incendiary hate-speech."

In response, Google pointed to its Transparency Report which effectively demolishes Mr Sibal's claims, as it points out that out of 358 items requested to be removed in the period Jan-June 2011, only 8 requests pertained to hate speech, while there were as many as 255 complaints against "Government criticism".

Google also told Medianama:

“We believe that access to information is the foundation of a free society. Google Search helps spread knowledge, enabling people to find out about almost anything by typing a few words into a computer. And services like YouTube and Google+ help users to express themselves and share different points of view. Where content is illegal or breaks our terms of service we will continue to remove it.”

Mr Sibal's claims fail to stand up to scrutiny and are contradicted by another, yet unpublished, draft report by the Centre for Internet and Society (CIS) which shows that intermediaries are erring “on the side of caution” and "over-complying after complaints are filed" and that free speech on the Internet in India is already being curtailed in a “chilling” manner.

The NYT blog today points to two such examples of over-compliance from this CIS study:

The researcher objected to a comment below an article on a news Web site about the Telangana movement, which aims to create a separate state in Andhra Pradesh. The comment, which was well-written and not obscenity-laced, condemned the violence in the Telangana movement and called its leaders selfish, but supported the cause over all.

The researcher wrote the intermediary that the comment was “racially and ethnically objectionable” and “defamatory.” The researcher received no written response, but within 72 hours the intermediary had taken down not just the “offensive” comment, but all 15 comments that were published below the article.
The researcher sent a take-down notice to another intermediary, defined as a “host and information location tool,” asking that it remove three links provided on its search engine after entering the words “online gambling.” The links, the researcher complained, were “relating or encouraging money-laundering or gambling,” which is illegal under the April rules.

The intermediary wrote back to the complainant, saying that the intermediary’s search engine was a “mere conduit” with no control over the information passing through its platform.

But it subsequently removed the three links mentioned in the take-down notice, and all other URLs of the three Web sites, including their subdomains.

Citing the same as yet unpublished study, The Legally Indian blog notes:

The only response that was rejected outright was a facetious takedown request to a shopping portal that an ad for baby’s diapers “harmed minors” by potentially causing babies’ rashes.

"Of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them," stated the draft report on the research. "From the responses to the takedown notices, it can be reasonably presumed that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression."

"This is just the tip of the iceberg," commented Abraham, adding that he was told by at least one major international intermediary company operating in India that it was “constantly" receiving takedown requests.

"Our empirical research demonstrates that intermediaries are unable to make the subjective test that is required of them," he added. "They are highly risk averse and they often choose to completely comply with the person sending a takedown notice."

"There is clear anecdotal evidence that […] the recently notified rules have a chilling effect on freedom of speech and expression, and that there is no transparency or accountability."

"What we have is a private censorship regime that is alive and kicking in India."

At the CIS blogs, Pranesh Prakash points out how Online Pre-Censorship is Harmful and Impractical, after noting that there can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of the Constitution:

What he [Kapil Sibal]is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first...

The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech...

...Newspaper have editors who can take responsibility for content in the newspaper. They can afford to, because the number of articles in a newspaper are limited. Youtube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are.

...Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on Youtube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (*Janhit Manch* case) and Madras (*Karthikeyan R.* case) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech...

Pranesh Prakash goes on to say that the problem stems from the IT Rules that have been in force since April 2011:

While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the governments of Assam does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech.

Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity, till the 2012 budget session of Parliament, to reject these rules. Parliamentarians must act now to uphold their oaths to the Constitution.

This blog post by Sundeep Dougal was published in Outlookindia.com on 8 December 2011. Pranesh Prakash's work at CIS has been extensively quoted in this blog post.

* Kapil Sibbal was quoted by the Hindu in their article dated 7 December 2011.

For more details visit https://cis-india.org/news/google-vs-kapil

That’s the unkindest cut, Mr Sibal

sunil — 2011-12-12T04:59:00Z

There’s Kolaveri-di on the Internet over Kapil Sibal’s diktat to social media sites to prescreen users’ posts. That diktat goes far beyond the restrictions placed on our freedom of expression by the IT Act. But, says Sunil Abraham of the Centre for Internet and Society, India is not going to be silenced online.

Thanks to leaked reports about unpublicised meetings that communications minister Kapil Sibal had with social media operators – or Internet intermediaries, to use legalese — such as Facebook, Google and Indiatimes.com, censorship policy in India has gained public attention, and caused massive outrage.

According to The New York Times India Ink reportage, quoting unnamed sources from the Internet intermediaries, Mr Sibal demanded proactive and pre-emptive screening of posts that people make on social media sites, ostensibly to filter out or remove “offensive” content and hate speech. In a television interview, however, the minister denied he wanted to censor what Indians thought and shared with others online.

One is tempted to believe him. He was, after all, the amicus for the landmark People’s Union of Civil Liberties (PUCL) wiretapping judgment of 1996, which is pivotal to protecting our civil liberties when using communication technology in India.

Last week, though, Mr Sibal came out in public with his demands, saying that there was a lot of content that risked hurting the sensibilities of people and could lead to violence. “It was brought to my notice some of the images and content on platforms like Facebook, Twitter and Google are extremely offensive to the religious sentiments of people ...”We will not allow Indian sentiments and religious sentiments of large sections of the community to be hurt,” he said.

There was even a threat of state action if Internet companies did not comply with demands to screen content before it was posted online.

The NYT blogpost said, however, quoting executives from the Internet companies Mr Sibal had reportedly met, that the minister showed them a Facebook page that maligned Congress president Sonia Gandhi and told them, “This is unacceptable.”

Google responded to Mr Sibal by releasing its Transparency Report, saying that out of 358 items that it had been requested to remove between January and June 2011, only eight requests pertained to hate speech, while as many as 255 complaints were against “government criticism”.

Indian netizens raged against Mr Sibal, and very quickly #IdiotKapil Sibal was ‘trending’ on Twitter, with thousands posting comments against attempts to ‘censor’ Internet content. Much has changed, in Mr Sibal’s reckoning, between 1996 and 2011.

So, what’s all the fuss over ‘pre-screening’ and what’s at stake here? Critics of Mr Sibal say, our freedom of speech and expression is under threat. They see a pattern in the way the government has sought to impose rules and restrictions on Internet and telecommunications players, with demands on BlackBerry-maker RIM to give it access to its users’ email and messenger content, on telecom players to install electronic surveillance equipment and let the government eavesdrop as it sees fit, and on the likes of Google and Yahoo to part with email content and users’ details.

It all started with the amendments to the Information Tech-nology Act 2000 in 2008. Together, they constitute damaging consequences for citizens, including the creation of a multi-tier blanket surveillance regime, inappropriate security recommendations, and undermining freedom of speech and expression.

The amendments passed in 2008 — without any discussion in Parliament – did solve some existing policy concerns, but simultaneously introduced new ones. For instance, Section 66, introduced during this amendment, criminalises sending offensive messages through any ICT-based communication service.

Offensive messages are described as “grossly offensive, menacing character..... or causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.” These terms are not defined in the IT Act or in any other existing law, rules or case-law, except for a couple of exceptions such as what constitutes “criminal intimidation”. These limits on the freedom of expression go well beyond Article 19(2) of the Constitution, which only permits “reasonable restrictions...in 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.”

If Mr Sibal himself were to don his lawyer’s coat again and launch a legal challenge to Section 66, in all likelihood, courts in India would strike it down as unconstitutional.

Section 79, which was amended, brought into being an intermediary liability regime. This was in part precipitated by the arrest of Avnish Bajaj, the former CEO of bazee.com in December 2004 for the infamous Delhi Public School MMS clip which was being sold on his e-commerce platform. Policy-makers were, however, convinced to follow international best practices and grant intermediaries immunity under certain conditions.

Just as the postal department is not considered liable for the content of letters or telecom operators liable for the content of phone conversations, Internet intermediaries, too, were to be considered “dumb pipes” or “common carriers” of content produced and distributed by users. Intermediaries therefore earned immunity from legal action so long as they acted upon take-down notices, or written requests for deletion of illegal content.

Section 79 was further clarified in April this year when the Intermediaries Guidelines Rules were notified. Stakeholders from the technology industry, media and civil society had sent feedback to the Department of Information Technology under the Ministry of Communication and Information Technology in February, but DIT choose to ignore the feedback and finalised rules with serious flaws in them. For one, a standardised “Terms of Service” that focused on limits on free expression had to be implemented by all intermediaries – forcing a one-size-fits-all approach.

Content that was 'harmful to minors' was not permissible regardless of the target market of the website. All intermediaries were supposed to act upon take-down notices within 36 hours, something that a Google may be able to do, but an average blogger could not.

Two, the vague terms introduced in Section 66A were left undefined. Intermediaries were asked to sit on judgment on the question of whether an article, image or video was causing 'inconvenience'.

Three, all principles of natural justice were ignored – the person responsible for posting the content would not be informed, s/he would not be given an opportunity to file a counter-notice to challenge the intermediary’s decision in court.

Four, the rules left it open for economically or politically motivated actors to seriously damage opponents online using fraudulent take-down notices, instead of treating abuse of the take-down notice system as an offence.

How the take-down system terrorises free expression on the Internet was illustrated when the Centre for Internet and Society, where this author works, undertook a research project. A pro-bono independent researcher who led the exercise sent fraudulent take-down notices to seven Internet companies in India. These included some of the largest and most popular Indian and foreign search engines, news portals and social media platforms.

Although they all employ the most competent lawyers in the country, six of the seven intermediaries over-complied, confirming our worst fears. In one case, a news portal deleted not just the specific comment that was mentioned in the take-down notice but 14 other comments as well. Most importantly, it must be pointed out, the comment identified in the take-down notice was itself an excellent piece of writing that could not be construed as “offensive” by any stretch!

In the single exception to the rule, one e-commerce portal refused to act upon a take-down notice trying to prevent the sale of diapers on the grounds that it was “harmful to minors”, rightly dismissing the notice as frivolous. But that exception simply proved a rule: Private intermediaries use their best lawyers to protect their commercial interests, but are highly risk-averse and do not value freedom of expression, unless it affects their bottomline.

Proactive and pre-emptive screening of social media content, as Mr Sibal has demanded, will only further compromise online civil liberties in what’s already a dismal situation. In short, we move from a post-facto to a pre-emptive censorship regime.

In fact, given the magnitude of the task of pre-screening in a nation with a 100 million Internet users and growing, such an intense censorship regime will mean not only that what Indian citizens say or post will be censored by private companies, but those private companies will, in turn, use machines to screen what humans are saying and doing! After all, otherwise, companies would require armies of human censors to screen the millions of posts that are made on Twitter and Facebook every minute.

But the Supreme Court has held that even the executive arm of government cannot engage in censorship prior to publication, let alone ordering private companies to do so. In any case, it’s a policy that’s bound to fail, for both technical reasons and for its failure to take into account human motivations.

Machines, as we know, continue to be poor judges of the nuances of human expression and will likely cause massive damage to the idea of public debate. Humans, on the other hand, will begin to circumvent machine filters – for example, content labelled as PRON instead of PORN will go through.

Draconian crackdown on certain types of fringe content is likely to have the counterproductive result of the general society developing an unhealthy obsession for exactly such content. Despite the comprehensive censorship controls in Saudi Arabia, for instance, pornography consumption is rampant, usually accessed via pirated satellite TV and circulated using personal computing devices and mobile phones.

But all is not lost yet, perhaps. Faced with the barrage of criticism, Mr Sibal has now called for public consultations on the issue of pre-screening content. There’s hope yet for freedom of speech and expression in India. Thanks to the Internet, a throwback to 1975 simply does not look possible.

Sunil Abraham is executive director of the Centre for Internet and Society, Bengaluru. He wrote this article in the Deccan Chronicle on December 11, 2011. Read the original here

For more details visit https://cis-india.org/internet-governance/unkindest-cut-mr-sibal

Indian Internet Lawsuit Puts Spotlight on Freedom of Expression

praskrishna — 2012-01-19T08:59:15Z

In India, Internet giants such as Google and Facebook are fighting a lawsuit after the government authorized their prosecution for online content on their sites deemed to be offensive. The case has put the spotlight on free speech in the world’s largest democracy.

The criminal lawsuit filed by the editor of New Delhi-based Urdu weekly Akbari accuses 21 Internet companies of violating Indian law. Vinay Rai alleged that online material on their websites has the potential to incite religious conflict.

Rai said his colleagues brought to his attention images of Prophet Muhammad which could offend Muslims. He cited other images and text which could hurt sentiments of Hindus and Christians. Rai wants Internet companies to screen content before it is posted.

Google and Facebook have asked the Delhi High Court to dismiss the case against them. In an appeal, they said it is impossible to filter all content or stop individuals from posting material online.

Editor Rai filed the case after the government indicated its approval for the prosecution. The official go-ahead came weeks after the government also raised a similar demand.

Voluntary framework

Telecommunications Minister Kapil Sibal told Internet company representatives to come up with a voluntary framework to keep offensive material off the net. After confronting them with photos and material derogatory of Indian Prime Minister Manmohan Singh and Congress Party leader Sonia Gandhi, he said the companies had not cooperated.

Both the court case and the government’s demands have stoked fears of net censorship in the world’s largest democracy.

Advocacy groups say the dispute between authorities and websites began simmering last year when India tightened laws to block content which could be deemed offensive. Citizens and officials can ask sites to block objectionable material and failure to comply within 36 hours can attract penalties or imprisonment of up to seven years.

Sunil Abraham, with the Center for Internet and Society in India, said these rules have the potential to curtail debate and discussion on the net.

“These limits are vague. They allow for all sorts of subjective tests by private parties and we predicted they would have a chilling effect on freedom of expression online," Abraham said. "Policy in India has been headed in a very worrisome direction."

Abraham pointed out that one of his organization’s recent studies indicates that, faced with the threat of stiff penalties, most service providers removed content when asked to do so, even when it was not offensive or controversial.

Free media?

The government insists its objective is not to encroach on the fundamental right of free speech guaranteed by India’s democratic constitution. The clarification came from Minister Kapil Sibal after his meetings with Internet companies last month.

"This government does not believe in censorship," noted Sibal. "This government does not believe in either directly or indirectly interfering in the freedom of the press, and we have demonstrated that time and again."

India does have a vibrant free media and Internet access is largely free, unlike in China. But in a country with a history of religious violence, authorities have long tussled with the dilemma of balancing free speech with the need to not inflame sentiments among religious groups. India was one of the first countries to ban Salman Rushdie’s “The Satanic Verses.”

Other books and articles have also faced bans. Many are challenged in courts and several have been overturned. Now the focus is on the Internet and questions are being raised about whether the web should or can be policed.

Online freedom

In a remark widely quoted in the domestic media, a judge hearing the case had warned websites that like China, India might be compelled to block some of them if they did not create means to curb material seen as offensive.

However, Abraham from the Center of Internet and Society hopes that, as the latest case navigates its way through Indian courts, online freedom will come up the winner.

"I think the executive in India has always been very conservative in freedom of expression. It is usually the courts in India that protect freedom of expression, the precedent," Abraham said. "So we are every hopeful that the current case is in the appropriate venue, and we are confident that, as in the past, the judiciary in India will stand on the side of freedom of expression."

With 100 million people surfing the web, India has the world’s third largest number of Internet users after China and the United States.

Published in the Voice of America on 19 January 2012. Sunil Abraham is quoted in this.

For more details visit https://cis-india.org/news/indian-internet-lawsuit-puts-spotlight-on-freedom-of-expression

Clash of the cyberworlds

praskrishna — 2013-01-15T06:57:48Z

In an increasingly digital world, the issue of Internet freedom and governance has become hugely contested. Censorship and denial of access occur across the political spectrum of nations, even in liberal democracies.

The article by Latha Jishnu, Dinsa Sachan and Moyna was published in Down to Earth magazine's January 15, 2013 issue. Pranesh Prakash is quoted.

In run-up to the just-concluded World Conference on International Telecommunications in Dubai, there was a frenzied campaign to ensure that governments kept their hands off the Internet. It was feared the International Telecommunications Union, a UN body, was aiming to take control of the Internet. That hasn’t happened. But the outcome in Dubai has highlighted once again the double speak on freedom by countries that claim to espouse it and by corporations interested in protecting their interests, says Latha Jishnu, who warns that the major threat to the Internet freedom comes from the wide-ranging surveillance measures that all governments are quietly adopting. Dinsa Sachan speaks to institutions and officials to highlight the primacy of cyber security for nations, while Moyna tracks landmark cases that will have a bearing on how free the Net remains in India.

For months now a little-known UN agency, the International Telecommunication Union (ITU), has been looming large in cyberspace, portrayed as an evil force plotting to take over the Internet and threatening to destroy its freedom by rewriting archaic regulations. ITU, set up in 1865, is primarily a technical body that administers a 24-year-old treaty, International Telecommunication Regulations (ITRs), which are basic principles that govern the technical architecture of the global communication system.

	How did the 193-nation ITU, which regulates radio spectrum, assigns satellite orbits and generally works to improve telecom infrastructure in the developing world, turn into everyone’s favourite monster in the digital world? The provocation was ITU’s World Conference on International Telecommunications (WCIT) in Dubai, where ITRs were proposed to be revised. Leaked documents of the proposals made to ITU had shown that statist countries like Russia and China, known for their crackdown on Internet freedom, had put forward proposals to regulate digital “crime” and “security” aspects that are currently not regulated at the global level for want of consensus on balancing enforcement with protection of individual rights.

Other proposals were about technical coordination and the setting up of standards that enable all the devices, networks and software across the Internet to communicate and connect with one another. Although ITU secretary general Hamadoun I Touré had emphasised that the Dubai WCIT was primarily attempting to chart “a globally agreed-upon roadmap that offers future connectivity to all, and ensures sufficient communications capacity to cope with the exponential growth in voice, video and data”, there was widespread scepticism among developed countries.

Online subversion in India AT the seventh annual meeting of the Internet Governance Forum in Baku, Azerbaijan, last November, Minister for Communications and Information Technology Kapil Sibal was a star turn. He made an elevating speech about the need to put in place a “collaborative, consultative, inclusive and consensual” system for dealing with policies involving the Internet. India, with 125 million Internet users—a number that “is likely to grow to about half a billion over the next few years”—would be a key player in the cyberworld of tomorrow, he promised. According to the minister, Internet governance was an oxymoron because the concept of governance was for dealing with the physical world and had no relevance in cyberspace. These were high sounding words that crashed against the reality of India’s paranoia over online subversion. For starters, Sibal flew into a media blitz over Google’s transparency Report which ranked India second globally in accessing private details of its citizens. Even if it was a far second behind the US, it was an embarrassing revelation for the government which appears to have been rather enthusiastic in seeking information on the users of its various services. Such user data would include social networking profiles, complete gmail accounts and search terms used. In the first half of 2012, India made 2,319 requests related to 3,467 users compared with 7,969 requests by the US. Globally, Google clocked a total of 20,938 requests for user data. A few days down the line there was a public explosion over the arrest of two young women in Palghar, near Mumbai, for posting a prosaic comment on Facebook over Bal Thackeray’s death. Thanks to the deliberately vague wording of Section 66A of the IT Act, such arrests have become common and Rajya Sabha devoted a whole afternoon to discuss the impugned legislation and seek its withdrawal. Sibal’s response has been to issue guidelines on the use of this Section which civil society organisations say will do nothing to sort out matters. Then there are the IT (Intermediaries Guidelines) Rules, 2011, issued under Section 79 of the IT Act, which have been used indiscriminately by business interests to shut down websites, resulting in unbridled censorship of the Internet time and again. Although a motion for its annulment was moved in Parliament by Rajya Sabha member P Rajeeve, it was withdrawn after Sibal promised to talk to all stakeholders. A host of MPs have termed the rules a violation of right to freedom of speech besides going against the laws of natural justice. The promised meeting of stakeholders has not yielded any results and censorship on grounds of possible online piracy continues. In this regard, India is more restrained than the US which has pulled down huge numbers of domains on the ground they were violating intellectual property by selling pirated goods.

Western global powers, behemoth Internet companies, private telecom corporations and almost the entire pack of civil liberties organisations came together in a frenzied campaign to ensure that ITU kept its hands off the Internet. Massive online petitions were launched, backed by Internet companies such as search engine Google and social networking service Facebook. The Internet, they said, should not become an ITU remit because it would change the multi-stakeholder approach, which currently marks the way the Internet is governed, and replace it with government control that would curb digital freedom. Not only did the US administration oppose the revision of ITRs, the US Congress also passed a rare unanimous resolution against the WCIT proposals.

In the end, it was an anti-climax: nothing much came of these proposals. Although WCIT was marked by high drama—a walkout by the US and six European countries, a show of hands on a contested but innocuous resolution and an unexpected vote—the “final acts” (http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf) or the changes in ITRs make no mention of the I word. Not once. The 30-page document states at the outset that “these regulations do not address the content-related aspects of telecommunications” —an indirect reference to the Internet.

	Ultimately, it was a triumph of the US-led position even if 89 of the 144 eligible countries signed it. Most of the developed countries refused to sign it. Nor, unexpectedly, did India, and thereby hangs a curious tale. Officials who were privy to the negotiations told Down To Earth that India was all set to sign the new ITRs when its delegation got last-minute instructions from Delhi not to endorse them. “It was unexpected and a let-down for India and our global allies,” confesses an official of the Ministry of Communications & IT. “There was nothing in the final document that we had objections to.” According to the grapevine, Minister for Communications and Information Technology Kapil Sibal was facing pressure from two sides: the US Administration and domestically from civil society, Internet service providers and the private telecom players who had objected to India’s proposals on ITRs. The US is known to be keeping a close eye on what India decides to do on the new treaty which it can still ratify. In the Dubai treaty, the only ITR that does impinge on the Net is (Article 5B) on unsolicited bulk electronic communications or spam. But even here, what it merely states is that member-states should endeavour to take necessary measures to prevent the “propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.”

In many ways, what took place during the hectic days before and during the December 3-14 WCIT was in a broad sense a replay of the Cold War scenario of the good (freedom-loving countries) versus evil (authoritarian or autocratic regimes), although alliance may have shifted in the two blocs. What is clear is that a larger geopolitical fight is playing out with the Internet as disputed terrain. American analysts themselves have pointed out that the “US got most of what it wanted. But then it refused to sign the document and left in a huff.”

Even the innocuous Article 5A, which calls on members “to ensure the security and robustness of international telecommunication networks”, was interpreted by US delegation head Terry Kramer as a means that could be used by some governments to curb free speech!

As an outraged Saudi delegate said, “It is unacceptable that one party to the conference gets everything they want and everybody else must make concessions. And after having made many concessions, we are then asked to suppress the language which was agreed to. I think that that is dangerous. We are on a slippery slope.” The final outcome: all the contentious issues were relegated to resolutions, which have no legal basis.

Indeed, the US has managed to get its way on most issues: protecting the mammoth profits of its Internet companies and ensuring that control of the Internet address system, now done by a group based in the US, will not be shared with other ITU members. And, the likes of Google (2011 profit: $37.9 billion) and Facebook will not have to pay telecom companies for use of their networks to deliver content.

Challenges of securing cyberworld

E-commerce in India, where every tenth person is online, is on the rise—and, consequently, crime on the Internet. In 2011, the country’s nodal agency for handling cyber crime, Indian Computer Emergency Response Team, tackled 13,301 incidences of security breach. The incidents ran the gamut from website intrusions, phishing to network probing and virus attacks. Further, in 2009, 2010, 2011 and 2012 (until October), there were 201, 303, 308 and 294 cyber attacks respectively on sites owned by the Indian government. Most notably, hacker group Anonymous defaced the website of Union Minister of Communications and Information Technology, Kapil Sibal.

To beef up cyber security, the Union ministry plans to pump in Rs 45 crore in 2012-13. It also put up a draft cyber security policy for public comments in 2011. Currently, cases involving cyber security and crime are handled under the IT Act of 2000 (Amendment 2008) and the Indian Penal Code.

But will the government go about its business of securing the Net in a responsible manner? There is scepticism. Section 69 of the Act gives any government agency the right to “intercept, monitor or decrypt” information online. Chinmayi Arun, assistant professor of law at National Law University in Delhi, said at the Internet Governance Conference held at FICCI in October that crimes like defamation are not on the same page as cyber terrorism, and “we have to question whether they warranty invasion of privacy”. She added that the workings of the surveillance system has to be made more open to build public trust.

Pranesh Prakash, policy director at Centre for Internet and Society (CIS) in Bengaluru, draws attention to a fundamental flaw in the section. “Government is allowed to wire tap under the Telegraph Act, 1885. But the Act lays out specific guidelines for such an action. For example, you can only tap phones in the case of a ‘public emergency’ or ‘public safety’ situation. The IT Act does not put such limitations on interception of information,” he says.

Cyber security and ITU

A few months prior to the controversial World Conference on International Telecommunications in Dubai, countries, including Russia and Arab states, had proposed measures that would, through International Telecommunication Union (ITU), grant disproportional power to countries to control the Internet in the name of security measures. Several proposals, most notably those of India and Arab States, explicitly stated in the proposed Article 5A that countries should be able to “undertake appropriate measures, individually or in cooperation with other Member States” to tackle issues relating to “confidence and security of telecommunications/ICTs”. It raised alarm among civil society. US-based think tank Center for Democracy and Technology (CDT) said in its report dated September, 2012, that cyber security does not fall under the ambit of International Telecom Regulations, and some countries would misuse such privileges for “intrusive or repressive measures”.

The proposal by African member states recommended that nations should “harmonise their laws” on data retention. In other words, intermediaries would have to retain public data for a long period so that governments can access it whenever they please. With regard to this, CDT noted, “Not only do national laws on data retention vary greatly, but there is ongoing controversy about whether governments should impose data retention mandates at all.”

A clause in the Arab proposal on routing said, “A Member State has the right to know how its traffic is routed.” Currently, the way Internet works, senders and recipients do not know how data between their computers travels or is routed. However, enabling countries to have control over routing has its dangers. CDT notes, “(This) would simply not work and could fundamentally disrupt the operation of the Internet.” Internet traffic travels over an IP network. While travelling, it is fragmented into small packets. Packets generally take a different path across interconnected networks in many different countries before reaching the recipient’s computer. CDT notes providing routing information to countries would require “extensive network engineering changes, not only creating huge new costs, but also threatening the performance benefits and network efficiency of the current system”. Although routing was not part of India’s proposal, Ram Narain, deputy director general at the department of telecommunications, told Down To Earth it was one of the country’s concerns.

However, to civil society’s partial relief, such draconian cyber security clauses were not adopted in the new itr treaty. Two clauses added to the treaty, Article 5A and 5B, address some cyber security concerns. Titled “Security and robustness of networks”, Article 5A urges countries to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks”. Article 5B talks about keeping tabs on spam.

Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers, says while he would have preferred that the two clauses were kept out of the new treaty, they do not seem harmful. “They are a much toned down version of what Arab states and Russia had suggested,” he says.

This is one reason India, Brazil and other democracies from the developing world also want a change in ITRs. They want the Internet behemoths to pay for access to their markets so that such revenues can be used to build their own Internet infrastructure.

In the furious debate on keeping the Net free of international control even hawk-eyed civil society organisations prefer to ignore the monetary aspects of Net control. Some analysts believe that maintaining the status quo is not so much about protecting the values of the Internet as about safeguarding interests, both monetary and hegemonistic. Such an assessment may not be wide of the mark if one joins the dots. Google, says a Bloomberg report of December 10, “avoided about $2 billion in worldwide income taxes in 2011 by shifting $9.8 billion in revenues into a Bermuda shell company, almost double the total from three years before”. It also said that the French, Italian, British and Australian governments are probing Google’s tax avoidance in its borderless operations.

	What is clear, however, is that a number of countries for reasons springing from different motivations, appear determined to undermine America’s control of the outfits that now define how the Internet works. Although the US maintains that ICANN (Internet Corporation for Assigned Names and Numbers) is a private, non-profit corporation, it is overseen by the US Commerce Department. According to People’s Daily, what the US spouts about Net freedom is so much humbug. In an August 2012 report, the leading Chinese daily claimed the US “controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the US, leading to American hegemonic monopoly over the world’s Internet”. It also highlighted a fact that has slipped below the radar. During the Iraq invasion, the US government asked ICANN to terminate services to Iraq’s top-level domain name “.iq” and thereafter all websites with the domain name “.iq” disappeared overnight. It charges the US with having “taken advantage of its control over the Internet to launch an invisible war against disobedient countries and to intimidate and threaten other countries”. While this may be true, the irony is that China, with its great firewall of censorship, is in no shape to position itself as a champion of freedom. Like other authoritarian countries, it will do everything to police the Net and control it.

The right of countries and peoples to access the Net was highlighted in Dubai when some African countries raised the issue of US control of the global Internet. Some of these, such as Sudan, have long been complaining about Washington’s sanctions that entail denial of Internet services. ITU officials point out that Resolution 69, first passed in the 2008 meeting, invoked again in 2010 and dusted off once again for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecom/ ICT facilities, services and applications”. Says Paul Conneally, head of Communications & Partnership Promotion at ITU, “The real target of these resolutions are US sanctions imposed on nations that are deemed bad actors. These sanctions mean that people in those countries—not just the government, mind you, but everyone, innocent and guilty alike—are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc.”

The catalogue of Sudan’s complaints shows at least 27 instances in 2012 when companies from Google to Microsoft and Paypal to Oracle cut off their services to the African country. This might explain why major companies would be opposed to the resolution on a right to access Internet services. Such a right would allow countries to use ITRs to compel them to provide services they might otherwise have preferred not to. But so far all such sanctions appear to have been a decision of the US Administration.

The problem of the digital divide, in fact, did not get the headlines it should have. Africa accounts for just 7 per cent of the 2.4 billion people who use the Net worldwide and penetration in the region is just 15.6 per cent of the population. Compare this with North America where over 78 per cent are linked to the digital world and Touré’s logic about the ITU’s mandate appears reasonable.

When Apple censors the drone war NETIZENS know that the Internet suffers from the depredations of government, hackers and viruses. But not many are aware that companies are as prone to taking legitimate stuff off the Net on the flimsiest grounds. In the case of Apple it could have been misplaced patriotism or plain business sense that prompted it to block an app which monitors drone strike locations in November last year. The App Store rejected the product, calling it “objectionable and crude”. Drones+ (see photo) is an application that simply adds a location to a map every time a drone strike is reported in the media and added to a database maintained by the UK’s Bureau of Investigative Journalism. Josh Begley, a graduate student at New York University, who developed the app, says it shows no visuals of war or classified information. All it does is to keep its users informed about when and where drone attacks are taking place in Pakistan and Afghanistan. “This is behavior I would expect of a company in a repressive country like China, not an iconic American company in the heart of Silicon Valley,” says a petition to the company CEO. Did Apple’s censorship have anything to do with the fact that it received huge contracts from the Pentagon? US legislators have joined the protests against Apple. The most brazen act of corporate censorship occurred in August 2012 with NASA’s livestream coverage of the Curiosity rover’s landing on Mars in the space agency’s $2.5 billion mission. A news agency, Scripps, coolly claimed as its own the public domain video posted on NASA’s official YouTube channel that documented the epic landing (see our opening visuals). “This video contains content from Scripps Local News, who has blocked it on copyright grounds. Sorry about that,” said a message on NASA’s blackened screen. So much for the strict US laws aimed at curbing online piracy!

Touré noted that the revised ITRs would see greater transparency in global roaming charges, lead to “more investment in broadband infrastructure” and help those with disabilities. But he was hopeful that the new treaty signed in Dubai would make it possible for the 4.5 billion people still offline to be connected. “When all these people come online, we hope they will have enough infrastructure and connectivity so that traffic will continue to flow freely,” Touré said.

But should ITU govern the Net? Not in its entirety, according to experts. For one, ITU until the Dubai meeting was far from being transparent and does not allow participation of civil society or other stakeholders in its negotiations unless they are part of the official delegation of the member-states. In fact, even critics of the current system, who think the system is lopsided and hypocritical, believe ITU needs to reform itself and confine to the carrier/infrastructure layer of the Internet. Nor should it get into laying down standards which is done by Internet Engineering Task Force (IETF) and the naming and numbering that is managed by ICANN.

But Conneally counters this by asking what would happen if the US decided to deny domain name root zone to Iran because of its bad human rights record. “Suppose it ordered Verisign to remove .IR from the DNS root and make it non-functional. Would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?”

Who then should ensure that the Internet is run in a free and open manner? Should it be the Internet Governance Forum (IGF)? But IGF is to be an open consultative forum that cannot by itself govern. It brings in participation for any or all Internet-related policy processes but it by itself was never supposed to do policy or governance.

Parminder Jeet Singh, executive director of ItforChange, says whoever governs is the government for that purpose. “This truism is significant in the present context, because there is an attempt by those who really control/ govern the Internet at present, largely through illegitimate and often surreptitious ways, to confuse issues around Internet governance in all ways possible, including through abuse of established language and political principles and concepts.”

ITforChange is a Bengaluru institution working on information society theory and practice, especially from the standpoint of equity, social justice and gender equality, and it is that perspective which informs Singh’s suggestions. “What we need are safeguards as, for instance, with media regulation. The Internet, of course, is much more than media. It is today one of the most important factors that can and will influence distribution of economic, social and political power. Without regulation it will always be that those who currently dominate it will take away the biggest pie.

Surveillance club

Eight Indian companies are among the 700 members of European Telecommunications Standards Institute. The group works with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure. It also hosts regular meetings on lawful interception

Wipro Technologies	Associate Service Providers
• HCL Technologies Limited	• Associate Consultancy for Co./Partnership
• Accenture Services Pvt Ltd	• Observers
• CEWiT	• Associate Research Body
• Saankhya Labs Pvt Ltd	• Associate Manufacturers
• Sasken Communication	• Associate Manufacturers
• Technologies
• SmartPlay Technologies	Associate Consultancy for Co./Partnership
• TEJAS NETWORKS LTD	• Associate Manufacturers

Other critics of the current system concede that bringing governments on board, especially authoritarian and statist powers which the digital world threatens, would give them perverse incentives to control it. But this threat should be met not by insisting that the Internet needs no governance or regulation, but by safeguards that ensure equitable access and benefits, Singh stresses.

While the jury is out on the question whether the new ITRs will make any material difference to the way, and if at all, the Net will come under added government oversight and intervention, developments elsewhere show that ITU is not the main threat to digital freedom.

The irony is that while cyber security is contentious in ITU, other international organisations, such as the UN Office on Drugs and Crime (UNODC) and a clutch of influential telecom industry associations, are pushing for surveillance programmes that ensure policing of a high order with sophisticated infrastructure to monitor online communications. A host of countries already have such systems in place and are pressuring countries like India to fall in line.

A UNODC report, titled ‘The use of the Internet for terrorist purposes’, has detailed how countries can and should use new technology for online surveillance—all in the name of anti-terrorism. The report discusses sensitive issues such as blocking websites and using spyware to bypass encryption and also urges countries to cooperate on an agreed framework for data retention.

At the same time, powerful industry bodies, such as ATIS (Alliance for Telecommunications Industry Solutions) and the European Telecommunications Standards Institute (ETSI), are reported to be working with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure, according to Future Tense, a project which looks at emerging technologies and how these affect society, policy and culture. It says India is under pressure from another industry organisation, the Telecommunications Industry Association (TIA), “to adopt global standards for surveillance”, calling on the country’s government to create a “centralized monitoring system” and “install state-of-the-art legal intercept equipment”.

TIA is a Washington-based trade group which brings together companies such as Nokia, Siemens Networks and Verizon Wireless, and is focused on issues related to electronic surveillance and is developing standards for intercepting VOIP and data retention alongside with ETSI and ATIS. At least seven Indian companies are members of ETSI, which is said to hold international meetings on data interception thrice a year.

Add to this chilling list the International Chamber of Commerce. It is reported to be seeking the establishment of surveillance centre hubs of several countries to help governments intercept communications and obtain data that is stored in cloud servers in foreign jurisdictions. Given this backdrop why are the US and its cohorts creating a ruckus on ITRs?

It would also mean that by focusing on ITRs and ITU as a major threat to Internet freedom civil society may be jousting at windmills.

Malice and freedom of speech

Two suits highlight the challenge of treading between the two

Among the many legal cases in India related to the use and misuse of the world wide web, two stand out for involving web giants and provoking sharp reaction. These are the cases registered in Delhi district courts in December 2011, objecting to chunks of content—portraying prominent political figures and religious places among others in a certain light—hosted on websites. One was filed by a Delhi journalist, Vinai Rai, requesting the court to press criminal charges against 21 web agencies, including Google, Facebook and Yahoo! India. The other, filed by a social activist, M A A Qasmi, was a civil suit requesting action against 22 web agencies. Both mentioned that the content on the websites was inflammatory, threat to national integrity, unacceptable, and created enmity, hatred and communal discord.

A year on, tangible impact has not been much. The number of accused in the civil case has come down to seven web agencies and in the criminal case the government is yet to issue summons to the companies concerned (see ‘The case so far’). However, these litigations are seen as landmarks in the recent history of the Internet and its interaction with societies and governments. The cases—especially off-the-record comments by the judiciary suggesting blanket ban and pre-screening of all content—provoked a debate on the freedom of expression and Indian cyber laws.

The case so far

JANUARY 13, 2012: Delhi High Court dismisses petition by Google and Facebook asking to be absolved of criminal charges filed in district court

JANUARY 20: High Court asks for reply from Delhi Police in response to plea by Yahoo! India challenging district court summons

FEBRUARY 16: Court refuses to stay proceedings against Facebook and Google but allows them to be represented by counsel

MARCH: Court dismisses criminal charges against Yahoo! India and Microsoft but says the charges can be revived if new evidence comes to light. Sets aside summons

Malicious content exists on the web and may even need to be taken down, but the laws used to remove malicious content can also be used to curb political speech, thus, infringing on the right to freedom of expression, says Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers.

Some like Pranesh Prakash of non-profit Centre for Internet and Society believe the IT Rules are at odds with the IT Act and give powers for censorship. He explains that the IT Act, 2000, provides for protection of intermediaries; web browsers, social networking sites and websites cannot be held responsible for what a third party publishes on their forums—“similar to the way in which we cannot sue a telephone agency or a post office for someone else making use of these platforms to harass or defame another person”. But the IT rules of 2011 watered down this protection.

Supreme Court advocate and cyber law expert Pavan Duggal explains how. The Act states once a complaint is made against certain content, the web agency hosting it must notify the person who put up the content, verify the content and judge whether it needs to be removed. But the rules state that once the web agency is notified it must remove the content within 36 hours or it could be prosecuted for not acting on the complaint. The rules have gone beyond the Act’s scope, especially vis-a-vis privacy and data protection, leaving no scope for hearing out the accused, he says.

The disjunct between the Act and the rules is being contested in various spheres, including Parliament. But there is a bright side too. Duggal believes the cases have brought pertinent issues, like free speech and privacy concerns, into the public domain. Ramanjeet Chima, policy adviser for Google, says freedom of expression is paramount for Google but the recognition of local sentiments is also being given equal weightage.

Senior advocate Sidharth Luthra, who was representing Facebook in the Delhi High Court, wonders whether the existing Indian laws are in tune with the ever-changing online world. Unwilling to comment on the case, he says the law is limited in its scope, while technology is not. Refusing to comment on the cases, the Google adviser emphasised the need to use the existing provisions of big web agencies to address grievances regarding content.

The Internet “is not the wild wild west”; all content, users and viewers can be traced, Duggal cautions. Since the Internet can impact political issues government is increasingly looking for ways to control it. “There is no ideal solution but it is evident that some monitoring and regulation are required, and in all parts of the world all regimes are in the process of addressing this,” he says.

For more details visit https://cis-india.org/news/down-to-earth-latha-jishnu-dinsa-sachan-moyna-january-15-2013-clash-of-the-cyber-worlds