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Information Disorders and their Regulation
https://cis-india.org/internet-governance/blog/information-disorders-and-their-regulation
<b>The Indian media and digital sphere, perhaps a crude reflection of the socio-economic realities of the Indian political landscape, presents a unique and challenging setting for studying information disorders. </b>
<p style="text-align: justify; ">In the last few years, ‘fake news’ has garnered interest across the political spectrum, as affiliates of both the ruling party and its opposition have seemingly partaken in its proliferation. The COVID-19 pandemic added to this phenomenon, allowing for xenophobic, communal narratives, and false information about health-protective behaviour to flourish, all with potentially deadly effects. This report maps and analyses the government’s regulatory approach to information disorders in India and makes suggestions for how to respond to the issue.</p>
<p style="text-align: justify; ">In this study, we gathered information by scouring general search engines, legal databases, and crime statistics databases to cull out data on a) regulations, notifications, ordinances, judgments, tender documents, and any other legal and quasi-legal materials that have attempted to regulate ‘fake news’ in any format; and b) news reports and accounts of arrests made for allegedly spreading ‘fake news’. Analysing this data allows us to determine the flaws and scope for misuse in the existing system. It also gives us a sense of the challenges associated with regulating this increasingly complicated issue while trying to avoid the pitfalls of the present system.</p>
<p style="text-align: justify; ">Click to download the <a class="external-link" href="http://cis-india.org/internet-governance/files/information-disorder-their-regulation.pdf/">full report here</a>.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/information-disorders-and-their-regulation'>https://cis-india.org/internet-governance/blog/information-disorders-and-their-regulation</a>
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No publisherTorsha Sarkar, Shruti Trikanad, and Anoushka SoniInformation DisordersAccess to KnowledgeInternet GovernanceInformation SecurityInformation Technology2024-01-31T14:20:20ZBlog EntryComments to the proposed amendments to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
https://cis-india.org/internet-governance/blog/comments-to-proposed-amendments-to-it-intermediary-guidelines-and-digital-media-ethics-code-rules
<b>This note presents comments by the Centre for Internet and Society (CIS), India, on the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“proposed amendments”). We thank Isha Suri for her review of this submission.</b>
<h2 style="text-align: justify; ">Preliminary</h2>
<p style="text-align: justify; ">In these comments, we examine the constitutional validity of the proposed amendments, as well as whether the language of the amendments provide sufficient clarity for its intended recipients. This commentary is in-line with CIS’ previous engagement with other iterations of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.</p>
<h2 style="text-align: justify; ">General Comments</h2>
<h3 style="text-align: justify; ">Ultra vires the parent act</h3>
<p style="text-align: justify; ">Section 79(1) of the Information Technology (IT) Act states that the intermediary will not be held liable for any third-party information if the intermediary complies with the conditions laid out in Section 79(2). One of these conditions is that the intermediary observe “<i>due diligence while discharging his duties under this Act and also observe such other guidelines as the Central Government may prescribe in this behalf.</i>” Further, Section 87(2)(zg) empowers the central government to prescribe “<i>guidelines to be observed by the intermediaries under sub-section (2) of section 79.</i>”</p>
<p style="text-align: justify; ">A combined reading of Section 79(2) read with Section 89(2)(zg) makes it clear that the power of the Central Government is limited to prescribing guidelines related to the due diligence to be observed by the intermediaries while discharging its duties under the IT Act. However, the proposed amendments extend the original scope of the provisions within the IT Act.</p>
<p style="text-align: justify; ">In particular, the IT Act does not prescribe for any classification of intermediaries. Section 2(1) (w) of the Act defines intermediaries as “<i>with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes</i>”. Intermediaries are treated and regarded as a single monolithic entity with the same responsibilities and obligations.</p>
<p style="text-align: justify; ">The proposed amendments have now established a new category of intermediaries, namely online gaming intermediary. This classification comes with additional obligations, codified within Rule 4A of the proposed amendments, including enabling the verification of user-identity and setting up grievance redressal mechanisms. The additional obligations placed on online gaming intermediaries find no basis in the IT Act, which does not specify or demarcate between different categories of intermediaries.</p>
<p style="text-align: justify; ">The 2021 Rules have been prescribed under Section 87(1) and Section 87(2)(z) and (zg) of the IT Act. These provisions do not empower the Central Government to make any amendment to Section 2(w) or create any classification of intermediaries. As has been held by the Supreme Court in <i>State of Karnataka and Another v. Ganesh Kamath & Ors</i> that: “<i>It is a well settled principle of interpretation of statutes that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.</i>” In this light, we argue that the proposed amendment cannot go beyond the parent act or prescribe policies in the absence of any law/regulation authorising them to do so.</p>
<h3 style="text-align: justify; ">Recommendation</h3>
<p style="text-align: justify; ">We recommend that a regulatory intervention seeking to classify intermediaries and prescribe regulations specific to the unique nature of specific intermediaries should happen through an amendment to the parent act. The amendment should prescribe additional responsibilities and obligations of online gaming intermediaries.</p>
<h3 style="text-align: justify; ">A note on the following sections</h3>
<p style="text-align: justify; ">Since the legality of classifying intermediaries into further categories is under question, our subsequent discussions on the language of the provisions related to online gaming intermediary are recommended to be taken into account for formulating any new legislations relating to these entities.</p>
<h2 style="text-align: justify; ">Specific comments</h2>
<h3 style="text-align: justify; ">Fact checking amendment</h3>
<p style="text-align: justify; ">Amendment to Rule 3(1)(b)(v) states that intermediaries are obligated to ask their users to not host any content that is, <i>inter alia, </i>“<i>identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking</i>”.</p>
<p style="text-align: justify; ">Read together with Rule 3(1)(c), which gives intermediaries the prerogative to terminate user access to their resources on non-compliance with their rules and regulations, Rule 3(1)(b)(v) essentially affirms the intermediary’s right to remove content that the Central government deems to be ‘fake’. However, in the larger context of the intermediary liability framework of India, where intermediaries found to be not complying with the legal framework of section 79 lose their immunity, provisions such as Rule 3(1)(b)(v) compel intermediaries to actively censor content, on the apprehension of legal sanctions.</p>
<p style="text-align: justify; ">In this light, we argue that Rule 3(1)(b)(v) is constitutionally invalid, inasmuch that Article 19(2), which prescribes grounds under which the government restrict the right to free speech, does not permit restricting speech on the ground that it is ostensibly “<i>fake or false</i>”. In addition, the net effect of this rule would be that the government would be the ultimate arbiter of what is considered ‘truth’, and every contradictions to this narrative would be deemed to be false. In a democratic system like India’s, this cannot be a tenable position, and would go against a rich jurisprudence of constitutional history on the need for plurality.</p>
<p style="text-align: justify; ">For instance, in <i>Indian Express Newspapers v Union of India,</i> the Supreme Court had held that <i>‘the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.</i>’ Applying this interpretation to the present case, it could be said that the government’s monopoly on directing what constitutes “<i>fake or false</i>” in the online space would prevent citizens from accessing dissenting voices and counterpoints to government policies .</p>
<p style="text-align: justify; ">This is problematic when one considers that in the Indian context, freedom of speech and expression has always been valued for its instrumental role in ensuring a healthy democracy, and its power to influence public opinion. In the present case, the government, far from facilitating any such condition, is instead actively indulging in guardianship of the public mind (Sarkar et al, 2019).</p>
<p style="text-align: justify; ">Other provisions in the IT Act which permit for censorship of content, including section 69A, permit the government to only do so when content is relatable to grounds enumerated in Article 19(2) of the Constitution. In addition, in the case of <i>Shreya Singhal vs Union of India</i>, where, the constitutionality of section 69A was challenged, the Supreme Court upheld the provision because of the legal safeguards inherent in the provision, including offering a hearing to the originator of the impugned content and reasons for censoring content to be recorded in writing.</p>
<p style="text-align: justify; ">In contrast, a fact check by the Press Information Bureau or by another authorised agency provides no such safeguards, and does not relate to any constitutionally recognized ground for restricting speech.</p>
<h3 style="text-align: justify; ">Recommendation</h3>
<p style="text-align: justify; ">The proposed amendment to Rule 3(1)(b)(v) is unconstitutional, and should be removed from the final draft of the law.</p>
<h2 style="text-align: justify; ">Clarifications are needed for online games rules definitions</h2>
<p style="text-align: justify; ">The definitions of an "online game" and "online gaming intermediary" are currently extremely unclear and require further clarification.</p>
<p style="text-align: justify; ">As the proposed amendments stand, online games are characterised by the user's “<i>deposit with the expectation of earning winnings</i>”. Both deposit and winnings can be “<i>cash</i>” or “<i>in kind</i>", which does not adequately draw a boundary on the type of games this amendment seeks to cover. Can the time invested by the player in playing a game be answered under the “in kind” definition of deposit? If the game provides a virtual in-game currency that can be exchanged for internal power ups, even if there are no cash or gift cards used as payout, is that considered to be an “in kind” winnings? The rules, as currently drafted, are vague in their reference towards “in kind” deposits and payouts.</p>
<p style="text-align: justify; ">This definition of online games also does not differentiate between single or multiplayer games, and traditional games like chess which have found an audience online such as Candy Crush (single player), Minecraft (multiplayer collaborative) or chess (traditional). It is unclear whether these games were intended to fall within the purview of these amendments to the rules, and if they are all subjected to the same due diligence requirements as pay-to-play games. This, in conjunction with the proposed rule 6A which allows the Ministry to term any other game as an online game for the purposes of the rules, also provides them with broad, unpredictable powers . This ambiguity hinders clear comprehension of the expectations among the target stakeholders, thus affecting the consistency and predictability of the implementation of the rules.</p>
<p style="text-align: justify; ">Similarly, "online gaming intermediaries" are also defined very broadly as "<i>intermediary that offers one or more than one online game</i>". As defined, any intermediary that even hosts a link to a game is classified as an online gaming intermediary since the game is now "offered" through the intermediary. As drafted, there does not seem to be a material distinction between an "intermediary" as defined by the act and "online gaming intermediary" as specified by these rules.</p>
<h3 style="text-align: justify; ">Recommendation</h3>
<p style="text-align: justify; ">We recommend further clarification on the definitions of these terms, especially for “in kind” and “offers” which are currently extremely vague terms that provide overbroad powers to the Ministry.</p>
<h2 style="text-align: justify; ">Intermediaries and Games</h2>
<p style="text-align: justify; ">"Online gaming intermediaries" are defined very broadly as "<i>intermediary that offers one or more than one online game</i>". Intermediaries are defined in the Act as "<i>any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message</i>".</p>
<p style="text-align: justify; ">According to the media coverage (Barik, 2023) around these amendments, it seems that there is an effort to classify gaming companies as "online gaming intermediaries" but the language of the drafted amendments do not support this. An “intermediary” status is given to a company due to its functional role in primarily offering third party content. It is not a classification for different types of internet companies that exist and thus must not be used to make rules for entities that do not perform this function.</p>
<p style="text-align: justify; ">Not all gaming companies present a collection of games for their users to play. According to the drafted definition multiple platforms where games might be present like, an app stores where multiple game developers can publish their games for access by users, a website that lists links to online games, a social media platform that acts as an intermediary between two users exchanging links to games, as well as websites that host games for users to directly access may all be classified as an "online gaming intermediary" since they "offer" games to users. These are a rather broad range of companies and functions to be singularly classified an "online gaming intermediary".</p>
<h3 style="text-align: justify; ">Recommendation</h3>
<p style="text-align: justify; ">We recommend a thoroughly researched legislative solution to regulating gaming companies that operate online rather than through amendments to intermediary rules. If some companies are indeed to be classified as “online gaming intermediaries”, there is a need for further reasoning on which type of gaming companies and their functions are intermediary functions for the purposes of these Rules.</p>
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<p>Comments can be <b><a href="https://cis-india.org/internet-governance/it-rules-amendment" class="internal-link">downloaded here</a></b></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-to-proposed-amendments-to-it-intermediary-guidelines-and-digital-media-ethics-code-rules'>https://cis-india.org/internet-governance/blog/comments-to-proposed-amendments-to-it-intermediary-guidelines-and-digital-media-ethics-code-rules</a>
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No publisherDivyansha Sehgal and Torsha SarkarDigital MediaInternet GovernanceInformation TechnologyIT Act2023-02-07T15:21:47ZBlog EntryComments to the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
https://cis-india.org/internet-governance/blog/comments-to-draft-amendments-to-the-it-rules-2021
<b>The Centre for Internet & Society (CIS) presented its comments on the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘the rules’), which were released on 6 June, 2022 for public comments.</b>
<p style="text-align: justify; ">These comments examine whether the proposed amendments are in adherence to established principles of constitutional law, intermediary liability and other relevant legal doctrines. We thank the Ministry of Electronics and Information Technology (MEITY) for allowing us this opportunity. Our comments are divided into two parts. In the first part, we reiterate some of our comments to the existing version of the rules, which we believe holds relevance for the proposed amendments as well. And in the second part, we provide issue-wise comments that we believe need to be addressed prior to finalising the amendments to the rules.</p>
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<p style="text-align: justify; ">To access the full text of the Comments to the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, <a href="https://cis-india.org/internet-governance/blog/comments-to-draft-amendments-to-it-rules-2021.pdf" class="internal-link">click here</a></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-to-draft-amendments-to-the-it-rules-2021'>https://cis-india.org/internet-governance/blog/comments-to-draft-amendments-to-the-it-rules-2021</a>
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No publisherAnamika Kundu, Digvijay Chaudhary, Divyansha Sehgal, Isha Suri and Torsha SarkarDigital MediaInternet GovernanceIntermediary LiabilityInformation Technology2022-07-07T02:39:28ZBlog EntryRight to Exclusion, Government Spaces, and Speech
https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech
<b>The conclusion of the litigation surrounding Trump blocking its critiques on Twitter brings to forefront two less-discussed aspects of intermediary liability: a) if social media platforms could be compelled to ‘carry’ speech under any established legal principles, thereby limiting their right to exclude users or speech, and b) whether users have a constitutional right to access social media spaces of elected officials. This essay analyzes these issues under the American law, as well as draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account.</b>
<p> </p>
<p>This article first appeared on the Indian Journal of Law and Technology (IJLT) blog, and can be accessed <a class="external-link" href="https://www.ijlt.in/post/right-to-exclusion-government-controlled-spaces-and-speech">here</a>. Cross-posted with permission. </p>
<p>---</p>
<h2><span class="s1">Introduction</span></h2>
<p class="p2"><span class="s1">On April 8, the Supreme Court of the United States (SCOTUS), vacated the judgment of the US Court of Appeals for Second Circuit’s in <a href="https://int.nyt.com/data/documenthelper/1365-trump-twitter-second-circuit-r/c0f4e0701b087dab9b43/optimized/full.pdf%23page=1"><span class="s2"><em>Knight First Amendment Institute v Trump</em></span></a>. In that case, the Court of Appeals had precluded Donald Trump, then-POTUS, from blocking his critics from his Twitter account on the ground that such action amounted to the erosion of constitutional rights of his critics. The Court of Appeals had held that his use of @realDonaldTrump in his official capacity had transformed the nature of the account from private to public, and therefore, blocking users he disagreed with amounted to viewpoint discrimination, something that was incompatible with the First Amendment.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">The SCOTUS <a href="https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf"><span class="s2">ordered</span></a> the case to be dismissed as moot, on account of Trump no longer being in office. Justice Clarence Thomas issued a ten-page concurrence that went into additional depth regarding the nature of social media platforms and user rights. It must be noted that the concurrence does not hold any direct precedential weightage, since Justice Thomas was not joined by any of his colleagues at the bench for the opinion. However, given that similar questions of public import, are currently being deliberated in the ongoing <em>Sanjay Hegde</em> <a href="https://www.barandbench.com/news/litigation/delhi-high-court-sanjay-hegde-challenge-suspension-twitter-account-hearing-july-8"><span class="s2">litigation</span></a> in the Delhi High Court, Justice Thomas’ concurrence might hold some persuasive weightage in India. While the facts of these litigations might be starkly different, both of them are nevertheless characterized by important questions of applying constitutional doctrines to private parties like Twitter and the supposedly ‘public’ nature of social media platforms.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">In this essay, we consider the legal questions raised in the opinion as possible learnings for India. In the first part, we analyze the key points raised by Justice Thomas, vis-a-vis the American legal position on intermediary liability and freedom of speech. In the second part, we apply these deliberations to the <em>Sanjay Hegde </em>litigation, as a case-study and a roadmap for future legal jurisprudence to be developed.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">A flawed analogy</span></h2>
<p class="p2"><span class="s1">At the outset, let us briefly refresh the timeline of Trump’s tryst with Twitter, and the history of this litigation: the Court of Appeals decision was <a href="https://int.nyt.com/data/documenthelper/1365-trump-twitter-second-circuit-r/c0f4e0701b087dab9b43/optimized/full.pdf%23page=1"><span class="s2">issued</span></a> in 2019, when Trump was still in office. Post-November 2020 Presidential Election, where he was voted out, his supporters <a href="https://indianexpress.com/article/explained/us-capitol-hill-siege-explained-7136632/"><span class="s2">broke</span></a> into Capitol Hill. Much of the blame for the attack was pinned on Trump’s use of social media channels (including Twitter) to instigate the violence and following this, Twitter <a href="https://blog.twitter.com/en_us/topics/company/2020/suspension"><span class="s2">suspended</span></a> his account permanently.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">It is this final fact that seized Justice Thomas’ reasoning. He noted that a private party like Twitter’s power to do away with Trump’s account altogether was at odds with the Court of Appeals’ earlier finding about the public nature of the account. He deployed a hotel analogy to justify this: government officials renting a hotel room for a public hearing on regulation could not kick out a dissenter, but if the same officials gather informally in the hotel lounge, then they would be within their rights to ask the hotel to kick out a heckler. The difference in the two situations would be that, <em>“the government controls the space in the first scenario, the hotel, in the latter.” </em>He noted that Twitter’s conduct was similar to the second situation, where it “<em>control(s) the avenues for speech</em>”. Accordingly, he dismissed the idea that the original respondents (the users whose accounts were blocked) had any First Amendment claims against Trump’s initial blocking action, since the ultimate control of the ‘avenue’ was with Twitter, and not Trump.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">In the facts of the case however, this analogy was not justified. The Court of Appeals had not concerned itself with the question of private ‘control’ of entire social media spaces, and given the timeline of the litigation, it was impossible for them to pre-empt such considerations within the judgment. In fact, the only takeaway from the original decision had been that an elected representative’s utilization of his social media account for official purposes transformed </span><span class="s3">only that particular space</span><span class="s1"><em> </em>into a public forum where constitutional rights would find applicability. In delving into questions of ‘control’ and ‘avenues of speech’, issues that had been previously unexplored, Justice Thomas conflates a rather specific point into a much bigger, general conundrum. Further deliberations in the concurrence are accordingly put forward upon this flawed premise.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Right to exclusion (and must carry claims)</span></h2>
<p class="p2"><span class="s1">From here, Justice Thomas identified the problem to be “<em>private, concentrated control over online content and platforms available to the public</em>”, and brought forth two alternate regulatory systems — common carrier and public accommodation — to argue for ‘equal access’ over social media space. He posited that successful application of either of the two analogies would effectively restrict a social media platform’s right to exclude its users, and “<em>an answer may arise for dissatisfied platform users who would appreciate not being blocked</em>”. Essentially, this would mean that platforms would be obligated to carry <em>all </em>forms of (presumably) legal speech, and users would be entitled to sue platforms in case they feel their content has been unfairly taken down, a phenomenon Daphne Keller <a href="http://cyberlaw.stanford.edu/blog/2018/09/why-dc-pundits-must-carry-claims-are-relevant-global-censorship"><span class="s2">describes</span></a> as ‘must carry claims’.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">Again, this is a strange place to find the argument to proceed, since the original facts of the case were not about ‘<em>dissatisfied platform users’,</em> but an elected representative’s account being used in dissemination of official information. Beyond the initial ‘private’ control deliberation, Justice Thomas did not seem interested in exploring this original legal position, and instead emphasized on analogizing social media platforms in order to enforce ‘equal access’, finally arriving at a position that would be legally untenable in the USA.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">The American law on intermediary liability, as embodied in Section 230 of the Communications Decency Act (CDA), has two key components: first, intermediaries are <a href="https://www.eff.org/issues/cda230"><span class="s2">protected</span></a> against the contents posted by its users, under a legal model <a href="https://www.article19.org/wp-content/uploads/2018/02/Intermediaries_ENGLISH.pdf"><span class="s2">termed</span></a> as ‘broad immunity’, and second, an intermediary does not stand to lose its immunity if it chooses to moderate and remove speech it finds objectionable, popularly <a href="https://intpolicydigest.org/section-230-how-it-actually-works-what-might-change-and-how-that-could-affect-you/"><span class="s2">known</span></a> as the Good Samaritan protection. It is the effect of these two components, combined, that allows platforms to take calls on what to remove and what to keep, translating into a ‘right to exclusion’. Legally compelling them to carry speech, under the garb of ‘access’ would therefore, strike at the heart of the protection granted by the CDA.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Learnings for India</span></h2>
<p class="p2"><span class="s1">In his petition to the Delhi High Court, Senior Supreme Court Advocate, Sanjay Hegde had contested that the suspension of his Twitter account, on the grounds of him sharing anti-authoritarian imagery, was arbitrary and that:<span class="Apple-converted-space"> </span></span></p>
<ol style="list-style-type: lower-alpha;" class="ol1"><li class="li2"><span class="s1">Twitter was carrying out a public function and would be therefore amenable to writ jurisdiction under Article 226 of the Indian Constitution; and</span></li><li class="li2"><span class="s1">The suspension of his account had amounted to a violation of his right to freedom of speech and expression under Article 19(1)(a) and his rights to assembly and association under Article 19(1)(b) and 19(1)(c); and</span></li><li class="li2"><span class="s1">The government has a positive obligation to ensure that any censorship on social media platforms is done in accordance with Article 19(2).<span class="Apple-converted-space"> </span></span></li></ol>
<p class="p3"><span class="s1"></span></p>
<p class="p5"><span class="s1">The first two prongs of the original petition are perhaps easily disputed: as previous <a href="https://indconlawphil.wordpress.com/2020/01/28/guest-post-social-media-public-forums-and-the-freedom-of-speech-ii/"><span class="s2">commentary</span></a> has pointed out, existing Indian constitutional jurisprudence on ‘public function’ does not implicate Twitter, and accordingly, it would be a difficult to make out a case that account suspensions, no matter how arbitrary, would amount to a violation of the user’s fundamental rights. It is the third contention that requires some additional insight in the context of our previous discussion.<span class="Apple-converted-space"> </span></span></p>
<h3><span class="s1">Does the Indian legal system support a right to exclusion?<span class="Apple-converted-space"> </span></span></h3>
<p class="p2"><span class="s1">Suing Twitter to reinstate a suspended account, on the ground that such suspension was arbitrary and illegal, is in its essence a request to limit Twitter’s right to exclude its users. The petition serves as an example of a must-carry claim in the Indian context and vindicates Justice Thomas’ (misplaced) defence of ‘<em>dissatisfied platform users</em>’. Legally, such claims perhaps have a better chance of succeeding here, since the expansive protection granted to intermediaries via Section 230 of the CDA, is noticeably absent in India. Instead, intermediaries are bound by conditional immunity, where availment of a ‘safe harbour’, i.e., exemption from liability, is contingent on fulfilment of statutory conditions, made under <a href="https://indiankanoon.org/doc/844026/"><span class="s2">section 79</span></a> of the Information Technology (IT) Act and the rules made thereunder. Interestingly, in his opinion, Justice Thomas had briefly visited a situation where the immunity under Section 230 was made conditional: to gain Good Samaritan protection, platforms might be induced to ensure specific conditions, including ‘nondiscrimination’. This is controversial (and as commentators have noted, <a href="https://www.lawfareblog.com/justice-thomas-gives-congress-advice-social-media-regulation"><span class="s2">wrong</span></a>), since it had the potential to whittle down the US' ‘broad immunity’ model of intermediary liability to a system that would resemble the Indian one.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">It is worth noting that in the newly issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, proviso to Rule 3(1)(d) allows for “<em>the removal or disabling of access to any information, data or communication link [...] under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) [...]</em>” without dilution of statutory immunity. This does provide intermediaries a right to exclude, albeit limited, since its scope is restricted to content removed under the operation of specific sub-clauses within the rules, as opposed to Section 230, which is couched in more general terms. Of course, none of this precludes the government from further prescribing obligations similar to those prayed in the petition.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">On the other hand, it is a difficult proposition to support that Twitter’s right to exclusion should be circumscribed by the Constitution, as prayed. In the petition, this argument is built over the judgment in <a href="https://indiankanoon.org/doc/110813550/"><span class="s2"><em>Shreya Singhal v Union of India</em></span></a>, where it was held that takedowns under section 79 are to be done only on receipt of a court order or a government notification, and that the scope of the order would be restricted to Article 19(2). This, in his opinion, meant that “<em>any suo-motu takedown of material by intermediaries must conform to Article 19(2)</em>”.</span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">To understand why this argument does not work, it is important to consider the context in which the <em>Shreya Singhal </em>judgment was issued. Previously, intermediary liability was governed by the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under section 79 of the IT Act. Rule 3(4) made provisions for sending takedown orders to the intermediary, and the prerogative to send such orders was on ‘<em>an affected person</em>’. On receipt of these orders, the intermediary was bound to remove content and neither the intermediary nor the user whose content was being censored, had the opportunity to dispute the takedown.</span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">As a result, the potential for misuse was wide-open. Rishabh Dara’s <a href="https://cis-india.org/internet-governance/intermediary-liability-in-india.pdf"><span class="s2">research</span></a> provided empirical evidence for this; intermediaries were found to act on flawed takedown orders, on the apprehension of being sanctioned under the law, essentially chilling free expression online. The <em>Shreya Singhal</em> judgment, in essence, reined in this misuse by stating that an intermediary is legally obliged to act <em>only when </em>a takedown order is sent by the government or the court. The intent of this was, in the court’s words: “<em>it would be very difficult for intermediaries [...] to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.</em>”<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p5"><span class="s1">In light of this, if Hegde’s petition succeeds, it would mean that intermediaries would now be obligated to subsume the entirety of Article 19(2) jurisprudence in their decision-making, interpret and apply it perfectly, and be open to petitions from users when they fail to do so. This might be a startling undoing of the court’s original intent in <em>Shreya Singhal</em>. Such a reading also means limiting an intermediary’s prerogative to remove speech that may not necessarily fall within the scope of Article 19(2), but is still systematically problematic, including unsolicited commercial communications. Further, most platforms today are dealing with an unprecedented spread and consumption of harmful, misleading information. Limiting their right to exclude speech in this manner, we might be <a href="https://www.hoover.org/sites/default/files/research/docs/who-do-you-sue-state-and-platform-hybrid-power-over-online-speech_0.pdf"><span class="s2">exacerbating</span></a> this problem. <span class="Apple-converted-space"> </span></span></p>
<h3><span class="s1">Government-controlled spaces on social media platforms</span></h3>
<p class="p2"><span class="s1">On the other hand, the original finding of the Court of Appeals, regarding the public nature of an elected representative’s social media account and First Amendment rights of the people to access such an account, might yet still prove instructive for India. While the primary SCOTUS order erases the precedential weight of the original case, there have been similar judgments issued by other courts in the USA, including by the <a href="https://globalfreedomofexpression.columbia.edu/cases/davison-v-randall/"><span class="s2">Fourth Circuit</span></a> court and as a result of a <a href="https://knightcolumbia.org/content/texas-attorney-general-unblocks-twitter-critics-in-knight-institute-v-paxton"><span class="s2">lawsuit</span></a> against a Texas Attorney General.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">A similar situation can be envisaged in India as well. The Supreme Court has <a href="https://indiankanoon.org/doc/591481/"><span class="s2">repeatedly</span></a> <a href="https://indiankanoon.org/doc/27775458/"><span class="s2">held</span></a> that Article 19(1)(a) encompasses not just the right to disseminate information, but also the right to <em>receive </em>information, including <a href="https://indiankanoon.org/doc/438670/"><span class="s2">receiving</span></a> information on matters of public concern. Additionally, in <a href="https://indiankanoon.org/doc/539407/"><span class="s2"><em>Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal</em></span></a>, the Court had held that the right of dissemination included the right of communication through any media: print, electronic or audio-visual. Then, if we assume that government-controlled spaces on social media platforms, used in dissemination of official functions, are ‘public spaces’, then the government’s denial of public access to such spaces can be construed to be a violation of Article 19(1)(a).<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Conclusion</span></h2>
<p class="p2"><span class="s1">As indicated earlier, despite the facts of the two litigations being different, the legal questions embodied within converge startlingly, inasmuch that are both examples of the growing discontent around the power wielded by social media platforms, and the flawed attempts at fixing it.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">While the above discussion might throw some light on the relationship between an individual, the state and social media platforms, many questions still continue to remain unanswered. For instance, once we establish that users have a fundamental right to access certain spaces within the social media platform, then does the platform have a right to remove that space altogether? If it does so, can a constitutional remedy be made against the platform? Initial <a href="https://indconlawphil.wordpress.com/2018/07/01/guest-post-social-media-public-forums-and-the-freedom-of-speech/"><span class="s2">commentary</span></a> on the Court of Appeals’ decision had contested that the takeaway from that judgment had been that constitutional norms had a primacy over the platform’s own norms of governance. In such light, would the platform be constitutionally obligated to <em>not </em>suspend a government account, even if the content on such an account continues to be harmful, in violation of its own moderation standards?<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">This is an incredibly tricky dimension of the law, made trickier still by the dynamic nature of the platforms, the intense political interests permeating the need for governance, and the impacts on users in the instance of a flawed solution. Continuous engagement, scholarship and emphasis on having a human rights-respecting framework underpinning the regulatory system, are the only ways forward.<span class="Apple-converted-space"> </span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"><br /></span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space">---</span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"><br /></span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"></span></span></p>
<p>The author would like to thank Gurshabad Grover and Arindrajit Basu for reviewing this piece. </p>
<div> </div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech'>https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech</a>
</p>
No publisherTorSharkFreedom of Speech and ExpressionIntermediary LiabilityInformation Technology2021-07-02T12:05:13ZBlog EntrySubmission to the Facebook Oversight Board in Case 2021-008-FB-FBR: Brazil, Health Misinformation and Lockdowns
https://cis-india.org/internet-governance/blog/submission-to-the-facebook-oversight-board-in-case-2021-008-fb-fbr-brazil-health-misinformation-and-lockdowns
<b>In this note, we answer questions set out by the Board, pursuant to case 2021-008-FB-FBR, which concerned a post made by a Brazilian sub-national health official, and raised questions on health misinformation and enforcement of Facebook's community standards. </b>
<h1 style="text-align: justify;" dir="ltr">Background </h1>
<p dir="ltr">The <a href="https://about.fb.com/news/tag/oversight-board/">Oversight Board</a> is an expert body created to exercise oversight over Facebook’s content moderation decisions and enforcement of community guidelines. It is entirely independent from Facebook in its funding and administration and provides decisions on questions of policy as well as individual cases. It can also make recommendations on Facebook’s content policies. Its decisions are binding on Facebook, unless implementing them could violate the law. Accordingly, Facebook <a href="https://transparency.fb.com/oversight/oversight-board-cases/">implements</a> these decisions across identical content with parallel context, when it is technically and operationally possible to do so. </p>
<p dir="ltr">In June 2021, the Board made an <a href="https://oversightboard.com/news/170403765029629-announcement-of-case-2021-008-fb-fbr/">announcement</a> soliciting public comments on case 2021-008-FB-FBR, concerning a Brazilian state level medical council’s post questioning the effectiveness of lockdowns during the COVID-19 pandemic. Specifically, the post noted that lockdowns (i) are ineffective; (ii) lead to an increase in mental disorders, alcohol abuse, drug abuse, economic damage etc.; (iii) are against fundamental rights under the Brazilian Constitution; and (iv) are condemned by the World Health Organisation (“WHO”). These assertions were backed up by two statements (i) an alleged quote by Dr. Nabarro (WHO) stating that “the lockdown does not save lives and makes poor people much poorer”; and (ii) an example of how the Brazilian state of Amazonas had an increase in deaths and hospital admissions after lockdown. Ultimately, the post concluded that effective COVID-19 preventive measures include education campaigns about hygiene measures, use of masks, social distancing, vaccination and extensive monitoring by the government — but never the decision to adopt lockdowns. The post was viewed around 32,000 times and shared over 270 times. It was not reported by anyone. </p>
<p dir="ltr">Facebook did not take any action against the post, since it had opined that the post is not violative of its community standards. Moreover, WHO has also not advised Facebook to remove claims against lockdowns. In such a scenario, Facebook referred the case to the Oversight Board citing its public importance. </p>
<p dir="ltr">In its announcement, the Board sought answers on the following points: </p>
<ol><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">Whether Facebook’s decision to take no action against the content was consistent with its Community Standards and other policies, including the Misinformation and Harm policy (which sits within the rules on <a href="https://www.facebook.com/communitystandards/credible_violence">Violence and Incitement</a>). </p>
</li><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">Whether Facebook’s decision to take no action is consistent with the company’s stated values and human rights commitments. </p>
</li><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">Whether, in this case, Facebook should have considered alternative enforcement measures to removing the content (e.g., the <a href="https://www.facebook.com/communitystandards/false_news">False News</a> Community Standard places an emphasis on “reduce” and “inform,” including: labelling, downranking, providing additional context etc.), and what principles should inform the application of these measures. </p>
</li><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">How Facebook should treat content posted by the official accounts of national or sub-national level public health authorities, including where it may diverge from official guidance from international health organizations. </p>
</li><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">Insights on the post’s claims and their potential impact in the context of Brazil, including on national efforts to prevent the spread of COVID-19. </p>
</li><li style="list-style-type: decimal;" dir="ltr">
<p dir="ltr">Whether Facebook should create a new Community Standard on health misinformation, as recommended by the Oversight Board in case decision <a href="https://oversightboard.com/decision/FB-XWJQBU9A/">2020-006-FB-FBR</a>.</p>
</li></ol>
<h1 style="text-align: justify;" dir="ltr">Submission to the Board</h1>
<p dir="ltr">Facebook’s decision to take no action against the post is consistent with its (i) <a href="https://www.facebook.com/communitystandards/credible_violence">Violence and Incitement</a> community standard read with the <a href="https://www.facebook.com/help/230764881494641">COVID-19 Policy Updates and Protections</a>; and (ii) <a href="https://www.facebook.com/communitystandards/false_news">False News</a> community standard. Facebook’s<a href="https://about.fb.com/news/2018/08/hard-questions-free-expression/"> website</a> as well as all of the Board’s <a href="https://oversightboard.com/decision/FB-6YHRXHZR/">past</a> <a href="https://oversightboard.com/decision/FB-QBJDASCV/">decisions</a> refer to the International Covenant on Civil and Political Rights’ (ICCPR) jurisprudence based <a href="https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf">three-pronged test</a> of legality, legitimate aim, and necessity and proportionality in determining violations of Facebook’s community standards. Facebook must apply the same principles to guide the use of its enforcement actions too, keeping in mind the context, intent, tone and impact of the speech. </p>
<p dir="ltr">First, none of Facebook’s aforementioned rules contain explicit prohibitions on content questioning lockdown effectiveness. There is nothing to indicate that “misinformation”, which is undefined, includes within its scope information about the effectiveness of lockdowns. The World Health Organisation has also not advised against such posts. Applying the principle of legality, any person cannot reasonably foresee that such content is prohibited. Accordingly, Facebook’s community standards have not been violated, </p>
<p dir="ltr">Second, the post does not meet the threshold of causing “imminent” harm stipulated in the community standards. Case decision <a href="https://oversightboard.com/decision/FB-XWJQBU9A/">2020-006-FB-FBR</a>, notes that an assessment of “imminence” is made with reference to factors like context, speaker credibility, language etc. Presently, the post’s language and tone, including its quoting of experts and case studies, indicate that its intent is to encourage informed, scientific debate on lockdown effectiveness. </p>
<p dir="ltr">Third, Facebook’s false news community standard does contain any explicit prohibitions. Hence there is no question of its violation. Any decision to the contrary may go against the standard’s stated policy logic of not stifling public discourse, and create a chilling effect on posts questioning the lockdown efficacy. This will set a problematic precedent that Facebook will be mandated to implement.</p>
<p dir="ltr">Presently, Facebook cannot remove the post since no community standards have been violated. Facebook must not reduce the post’s circulation since this may stifle public discussion around lockdown effectiveness. Further, its removal would have resulted in violation of the user’s right to freedom of opinion and expression, as guaranteed by the Universal Declaration of Human Rights (UDHR) and the ICCPR, which are in turn part of Facebook’s Corporate Human Rights Policy. </p>
<p dir="ltr">Instead, Facebook can provide additional context along with the post through its “<a href="https://about.fb.com/news/2018/04/inside-feed-article-context/">related articles</a>” feature, by showing fact checked articles talking about the benefits of lockdown. This approach is the most beneficial since (i) it is less restrictive than reducing circulation of the post; (ii) it balances interests better than not taking any actions by allowing people to be informed about both sides of the debate on lockdowns so that they can make an informed assessment. </p>
<p dir="ltr">Further, Facebook’s treatment of content posted by official accounts of national or sub-national health authorities should be circumscribed by its updated <a href="https://transparency.fb.com/features/approach-to-newsworthy-content/">Newsworthy Content Policy</a>, and the Board’s decision in the <a href="https://oversightboard.com/decision/FB-691QAMHJ/">2021-001-FB-FBR</a>, which had adopted the <a href="https://www.ohchr.org/en/issues/freedomopinion/articles19-20/pages/index.aspx">Rabat Plan of Action</a> to determine whether a restriction on freedom of expression is required to prevent incitement. The Rabat Plan of Action proposes a six-prong test, that considers: a) the social and political context, b) status of the speaker, c) intent to incite the audience against a target group, d) content and form of the speech, e) extent of its dissemination and f) likelihood of harm, including imminence. Apart from taking these factors into consideration, Facebook must <a href="https://transparency.fb.com/features/approach-to-newsworthy-content/">perform</a> a balancing test to determine whether the public interest of the information in the post outweighs the risks of harm. </p>
<p dir="ltr">In the Board’s decision in <a href="https://oversightboard.com/decision/FB-XWJQBU9A/">2020-006-FB-FBR</a>, it was recommended to Facebook to: a) set out a clear and accessible Community Standard on health misinformation, b) consolidate and clarify existing rules in one place (including defining key terms such as misinformation) and c) provision of "detailed hypotheticals that illustrate the nuances of interpretation and application of [these] rules" to provide further clarity for users. Following this, Facebook has <a href="https://assets.documentcloud.org/documents/20491921/covid-19-response-full.pdf">notified</a> its implementation measures, where it has fully implemented these recommendations, thereby bringing it into compliance.</p>
<p dir="ltr">Finally, Brazil is one of the <a href="https://www.bbc.com/news/world-51235105">worst affected</a> countries in the pandemic. It has also been <a href="https://www.ft.com/content/ea62950e-89c0-4b8b-b458-05c90a55b81f">struggling </a>to combat the spread of fake news during the pandemic. President Bolsanaro has been <a href="https://www.hrw.org/news/2021/01/28/brazil-crackdown-critics-covid-19-response">criticised</a> for <a href="https://www.theguardian.com/commentisfree/2020/feb/07/democracy-and-freedom-of-expression-are-under-threat-in-brazil">curbing free speech</a> by using a dictatorship-era <a href="http://www.iconnectblog.com/2021/02/undemocratic-legislation-to-undermine-freedom-of-speech-in-brazil/">national security law</a>., and questioned on his handling of the pandemic, including his own controversial <a href="https://www.bbc.com/news/world-latin-america-56479614">statements </a>questioning lockdown effectiveness. In such a scenario, the post may be perceived in a political colour rather than as an attempt at scientific discussion. However, it is unlikely that the post will lead to any-knee jerk reactions, since people are already familiar with the lockdown debate on which much has already been said and done. A post like this which merely reiterates one side of an ongoing debate is not likely to cause people to take any action to violate lockdown.</p>
<p dir="ltr">For detailed explanation on these questions, please see <a class="external-link" href="https://cis-india.org/internet-governance/facebook-oversight-board-submission-brazil">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/submission-to-the-facebook-oversight-board-in-case-2021-008-fb-fbr-brazil-health-misinformation-and-lockdowns'>https://cis-india.org/internet-governance/blog/submission-to-the-facebook-oversight-board-in-case-2021-008-fb-fbr-brazil-health-misinformation-and-lockdowns</a>
</p>
No publisherTanvi Apte and Torsha SarkarInternet FreedomMisinformationIntermediary LiabilityInformation Technology2021-07-01T07:34:09ZBlog EntryOn the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
<b>This note examines the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The analysis is consistent with previous work carried out by CIS on issues of intermediary liability and freedom of expression. </b>
<p><span id="docs-internal-guid-6127737f-7fff-b2eb-1b4a-ff9009a1050f"></span></p>
<p dir="ltr">On 25 February 2021, the Ministry of Electronics and Information Technology (Meity) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter, ‘the rules’). In this note, we examine whether the rules meet the tests of constitutionality under Indian jurisprudence, whether they are consistent with the parent Act, and discuss potential benefits and harms that may arise from the rules as they are currently framed. Further, we make some recommendations to amend the rules so that they stay in constitutional bounds, and are consistent with a human rights based approach to content regulation. Please note that we cover some of the issues that CIS has already highlighted in comments on previous versions of the rules.</p>
<p dir="ltr"> </p>
<p dir="ltr">The note can be downloaded <a class="external-link" href="https://cis-india.org/internet-governance/legality-constitutionality-il-rules-digital-media-2021">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021'>https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021</a>
</p>
No publisherTorsha Sarkar, Gurshabad Grover, Raghav Ahooja, Pallavi Bedi and Divyank KatiraFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityInternet FreedomInformation Technology2021-06-21T11:52:39ZBlog EntryTwitter's India troubles show tough path ahead for digital platforms
https://cis-india.org/internet-governance/news/dw-june-21-2021-aditya-sharma-twitter-india-troubles-show-tough-path-ahead-for-digital-platforms
<b>Twitter is in a standoff with Indian authorities over the government's new digital rules. Critics see the rules as an attempt to curb free speech, while others say more action is needed to hold tech giants accountable.
</b>
<p style="text-align: justify; ">The blog by Aditya Sharma <a class="external-link" href="https://www.dw.com/en/twitters-india-troubles-show-tough-path-ahead-for-digital-platforms/a-57980916">was published by DW</a> on 21 June 2021. Torsha Sarkar was quoted.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/Intermediary.jpg/@@images/08eb8de3-4fd6-408f-94d2-3f202da0e730.jpeg" alt="Intermediary" class="image-right" title="Intermediary" /></p>
<p style="text-align: justify; ">Twitter holds a relatively low share of India's social media market. But, since 2017, the huge nation has emerged as Twitter's fastest-growing market, becoming critical to its global expansion plans.</p>
<p style="text-align: justify; ">In February, the Indian government <a href="https://www.dw.com/en/india-targets-twitter-whatsapp-with-new-regulatory-rules/a-56708566">introduced new guidelines</a> to regulate digital content on rapidly growing social media platforms.</p>
<p style="text-align: justify; ">The so-called Intermediary Guidelines are aimed at regulating content on internet platforms such as Twitter and Facebook, making them more accountable to legal requests for the removal of posts and sharing information about the originators of messages.</p>
<p style="text-align: justify; ">Employees at these companies can be held criminally liable for not complying with the government's requests.</p>
<p style="text-align: justify; ">Large social media firms must also set up mechanisms to address grievances and appoint executives to liaise with law enforcement under the new rules, as well as appoint an India-based compliance officer who would be held criminally liable for the content on their platforms.</p>
<p style="text-align: justify; ">The Indian government says the rules empower "users who become victims of defamation, morphed images, sexual abuse," among other online crimes. It also said that the rules seek to tackle the problem of disinformation.</p>
<p style="text-align: justify; ">But critics fear that the rules could be used to target government opponents and make sure dissidents don't use the platforms.</p>
<p style="text-align: justify; ">Social media companies were expected to comply with the new rules by May 25.</p>
<p style="text-align: justify; ">Some Indian media reports have recently said that Twitter lost its status as an "intermediary" and the legal protection that came with it, due to its failure to comply with the new rules.</p>
<h3 style="text-align: justify; ">Failure to comply and serious implications</h3>
<p style="text-align: justify; ">Apar Gupta, the executive director of the Internet Freedom Foundation, a New Delhi-based digital rights advocacy group, says failure to comply with the rules could threaten Twitter's India operations.</p>
<p style="text-align: justify; ">"Not complying with the rules would pose a real risk to Twitter's operational environment," he told DW.</p>
<p style="text-align: justify; ">"It will need to go to court to defend itself each time criminal prosecutions are launched against it," he added.</p>
<p style="text-align: justify; ">The first case against Twitter was filed last week, where it was charged with failing to stop the spread of a video on its platform that allegedly incited "hate and enmity" between two religious groups.</p>
<p style="text-align: justify; "><span>'Heavy censorship'</span></p>
<p style="text-align: justify; ">Gupta says adhering to all the government's demands would substantially change Twitter.</p>
<p style="text-align: justify; ">"Absolute compliance would mean heavy censorship of individual tweets, removal of the manipulated media tags, and blocking/suspension of accounts at the government's behest," he said.</p>
<p style="text-align: justify; ">Torsha Sarkar, policy officer at the Bengaluru-based Centre for Internet and Society, fears that Twitter might at times be compelled to overcomply with government demands, threatening user rights.</p>
<p style="text-align: justify; ">"This can be either by over-complying with flawed information requests, thereby selling out its users, or taking down content that offends the majoritarian sensibilities," she told DW.</p>
<p style="text-align: justify; ">Last week, three special rapporteurs appointed by a top UN human rights body expressed "serious concerns" that certain parts of the guidelines "may result in the limiting or infringement of a wide range of human rights."</p>
<p style="text-align: justify; ">They urged New Delhi to review the rules, adding that they did not conform to India's international human rights obligations and could threaten the digital rights of Indians.</p>
<h3 style="text-align: justify; ">Twitter's balancing act</h3>
<p style="text-align: justify; ">It is not the first time that Twitter has been accused of giving in to government pressure to censor content on its platform.</p>
<p style="text-align: justify; ">At the height of the long-running farmer protests, <a href="https://www.dw.com/en/farmer-protests-india-blocks-prominent-twitter-accounts-detains-journalists/a-56411354">Twitter blocked hundreds of tweets</a> and accounts, including the handle of a prominent news magazine. It subsequently unblocked them following public outrage.</p>
<p style="text-align: justify; ">The US company stopped short of complying with demands to block the accounts of activists, politicians and journalists, arguing that such a move would "violate their fundamental right to free expression under Indian law."</p>
<p style="text-align: justify; ">According to local media reports, Twitter's Indian executives were reportedly threatened with fines and imprisonment if the accounts were not taken down.</p>
<h3 style="text-align: justify; ">Special police notify Twitter offices</h3>
<p style="text-align: justify; ">Last month, the labeling of a tweet by a politician from the ruling BJP as "manipulated media" prompted a special unit of the <a href="https://www.dw.com/en/india-police-visit-twitter-offices-over-manipulated-tweet/a-57650193">Delhi police to visit Twitter's offices</a> in the capital and neighboring Gurgaon. Police notified the offices about an investigation into the labeling of the post.</p>
<p style="text-align: justify; ">Twitter India's managing director, Manish Maheswari, was said to have been asked to appear before the police for questioning, according to media reports.</p>
<p style="text-align: justify; ">Some Twitter employees have refused to talk about the ongoing tensions for fear of government reprisals.</p>
<p style="text-align: justify; ">"Such kind of intimidation does not happen every day. (But) Everyone at Twitter India is terrified," people familiar with the matter told DW on the condition of anonymity.</p>
<h3 style="text-align: justify; ">Big Tech VS sovereign power?</h3>
<p style="text-align: justify; ">Those calling for better regulation of tech giants say transnational <a href="https://www.dw.com/en/india-social-media-conflict/a-57702394">social media companies like Twitter lack accountability</a>, blaming them for the alleged inaction against online abuse and disinformation campaigns.</p>
<p style="text-align: justify; ">"The problem with these rules is that they centralize greater power toward the government without providing for the objective benefit of rights toward users," Gupta said.</p>
<p style="text-align: justify; ">"If Twitter were to comply with these rules, it would make a bad situation worse," he said.</p>
<p style="text-align: justify; ">Twitter is unlikely to ditch a major market such as India.</p>
<p style="text-align: justify; ">Sarkar from the Centre for Internet and Society said "It might be difficult to say how the powers of big tech are going to collide with sovereign nations, especially in light of flawed legal interventions around the world."</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/dw-june-21-2021-aditya-sharma-twitter-india-troubles-show-tough-path-ahead-for-digital-platforms'>https://cis-india.org/internet-governance/news/dw-june-21-2021-aditya-sharma-twitter-india-troubles-show-tough-path-ahead-for-digital-platforms</a>
</p>
No publisherAditya SharmaSocial MediaInternet GovernanceIntermediary LiabilityInformation Technology2021-06-26T02:54:19ZNews ItemCIS Seminar Series: Information Disorder
https://cis-india.org/internet-governance/blog/cis-seminar-series-information-disorder
<b>The Centre for Internet and Society is announcing the launch of a seminar series to showcase research around digital rights and technology policy, with a focus on the Global South.</b>
<p style="text-align: justify;">The CIS seminar series will be a venue for researchers to share works-in-progress, exchange ideas, identify avenues for collaboration, and curate research. We also seek to mitigate the impact of Covid-19 on research exchange, and foster collaborations among researchers and academics from diverse geographies. Every quarter we will be hosting a remote seminar with presentations, discussions and debate on a thematic area.</p>
<p style="text-align: justify;"><strong> </strong></p>
<h3><strong>Seminar format</strong></h3>
<p style="text-align: justify;"><strong> </strong></p>
<p style="text-align: justify;">We are happy to welcome abstracts for one of two tracks:</p>
<h3>Working paper presentation</h3>
<p style="text-align: justify;"> A working paper presentation would ideally involve a working draft that is presented for about 15 minutes followed by feedback from workshop participants. Abstracts for this track should be 600-800 words in length with clear research questions, methodology, and questions for discussion at the seminar. Ideally, for this track, authors should be able to submit a draft paper two weeks before the conference for circulation to participants.</p>
<h3> Coffee-shop conversations</h3>
<p style="text-align: justify;">In contrast to the formal paper presentation format, the point of the coffee-shop conversations is to enable an informal space for presentation and discussion of ideas. Simply put, it is an opportunity for researchers to “think out loud” and get feedback on future research agendas. Provocations for this should be 100-150 words containing a short description of the idea you want to discuss.</p>
<p style="text-align: justify;">We will try to accommodate as many abstracts as possible given time constraints. We welcome submissions from students and early career researchers, especially those from under-represented communities.</p>
<p style="text-align: justify;"><em>All discussions will be private and conducted under the Chatham House Rule. Drafts will only be circulated among registered participants.</em></p>
<p style="text-align: justify;">Please send all abstracts to <a href="mailto:workshops@cis-india.org">workshops@cis-india.org</a>.</p>
<h3>Theme for the first seminar (to be held on an online platform)</h3>
<p style="text-align: justify;"><strong> </strong></p>
<p style="text-align: justify;">The first seminar will be centered around the theme of ‘Information Disorder<strong>: <em>Mis-, Dis- and Malinformation</em>.’</strong> While the issue of information disorder, colloquially termed as ‘fake news’, has been in the political forefront for the last five years, the flawed attempts at countering the ‘infodemic’ brought about by the pandemic proves that there still continues to be substantial gaps in the body-of-knowledge on this issue. This includes research that proposes empirical, replicable methods of understanding the types, forms or nature of information disorder or research that attempts to understand regulatory approaches, the layers of production and the roles played by different agents in the spread of ‘fake news’.</p>
<p style="text-align: justify;">Accordingly, we invite submissions that address these gaps in knowledge, including those that examine the relationship between digital technology and information disorder across a spectrum of fields and disciplines. Areas of interest include but are not limited to:</p>
<ol style="text-align: justify;">
<li>Information disorders during COVID-19</li>
<li>Effects of coordinated campaigns on marginalised communities</li>
<li>Journalism, the State, and the trust in media </li>
<li>Platform responsibility in information disorder </li>
<li>Information disorder in international law/constitutional/human rights law</li>
<li>Information disorder as a geopolitical tool</li>
<li>Sociopolitical and cultural factors in user engagement</li></ol>
<p style="text-align: justify;"><strong><br /></strong></p>
<p style="text-align: justify;"><strong>Timeline</strong></p>
<ol style="text-align: justify;">
<li>Abstract Submission Deadline: August 25th</li>
<li>Results of Abstract review: September 8th</li>
<li>Full submissions (of draft papers): September 30th</li>
<li>Seminar date: Tentatively October 7th</li></ol>
<div style="text-align: justify;"> </div>
<h3><strong>Contact details</strong></h3>
<p style="text-align: justify;">For any queries please contact us at <a href="mailto:workshops@cis-india.org">workshops@cis-india.org</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cis-seminar-series-information-disorder'>https://cis-india.org/internet-governance/blog/cis-seminar-series-information-disorder</a>
</p>
No publisheramanDigital EconomyDigital AccessInternet GovernanceDigital DisruptionInformation Technology2021-08-11T11:17:57ZPageParticipation in the meeting of LITD 17 at BIS
https://cis-india.org/internet-governance/news/participation-in-the-meeting-of-litd-17-at-bis
<b>On September 25, 2019, Gurshabad Grover along with Elonnai Hickok and Karan Saini attended the meeting of the Information Systems Security & Privacy Sectional Committee (LITD17) of the Bureau of Indian Standards (BIS).</b>
<p>Some agenda points:</p>
<div id="_mcePaste" style="text-align: justify; ">
<ul>
<li>Elonnai, Karan and Gurshabad had submitted comments on two standards related to infomration security of biometrics systems: (i) ISO/IEC 24745: 2011 <span>Information Technology – Security techniques – Biometric information protection; (ii) Doc. No. LITD 17 (3595) ISO/IEC 19792: 2009 Information </span><span>Technology – Security techniques – Security evaluation of biometrics. Gurshabad Grover is now serving in a panel with BIS and MeitY representatives to discuss </span><span>how the standards compare to UIDAI's standards and governing regulations.</span></li>
<li><span>Gurshabad </span>updated the committee with my plan of participation at the ISO/IEC JTC 1 SC 27 meetings (which were held earlier this month in Paris).</li>
<li>Gurshabad will be joining a panel to discuss and further develop a draft mobile phone security standard for India.</li>
</ul>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/participation-in-the-meeting-of-litd-17-at-bis'>https://cis-india.org/internet-governance/news/participation-in-the-meeting-of-litd-17-at-bis</a>
</p>
No publisherAdminInternet GovernanceInformation Technology2019-11-02T06:30:29ZNews ItemFuture of Work in the ASEAN
https://cis-india.org/internet-governance/blog/future-of-work-in-the-asean
<b>A literature review of the future of work in automotive manufacturing and IT services in the ASEAN region, authored by Aayush Rathi, Vedika Pareek, Divij Joshi, and Pranav M B.</b>
<p> </p>
<h4>Read the research paper: <a href="https://cis-india.org/internet-governance/pdf-asean-literature-review" class="internal-link" title="PDF ASEAN Literature Review">Download</a> (PDF)</h4>
<p>Authored by Aayush Rathi, Vedika Pareek, Divij Joshi, and Pranav Bidare</p>
<p>Research assistance by Sankalp Srivastava and Anjanaa Aravindan</p>
<p>Edited by Elonnai Hickok and Ambika Tandon</p>
<p>Supported by Tides Foundation</p>
<hr />
<h2>Introduction</h2>
<p style="text-align: justify;">The world of work, and its future, have attracted a lot of attention in recent times. The discussion has been provoked by the confluence of recent technological breakthroughs that portend to have wide-ranging implications on work and livelihoods. In what has been termed the “Fourth Industrial Revolution” or “Industry 4.0” , the discussion has engaged numerous stakeholders. However, no shared understanding of what this future of work will look like has materialised. Historical scholarship around technological change and its impact on the labour market was focussed in the context of high-income countries. Contemporaneously, however, research is being produced that outlines the possible futures of work in low and middle-income contexts. It is exigent to generate scholarship dedicated to low and middle-income contexts given that in addition to technological drivers, the future of work will be mediated through region and country specific factors such as socioeconomic,geopolitical and demographic change.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/future-of-work-in-the-asean'>https://cis-india.org/internet-governance/blog/future-of-work-in-the-asean</a>
</p>
No publisheraayushFuture of WorkInternet GovernanceAutomotive ManufacturingInformation Technology2020-03-05T19:22:50ZBlog EntryImpact of Industrial Revolution 4.0 - IT and Automotive Sector in India by the Dialogue and FES
https://cis-india.org/internet-governance/news/impact-of-industrial-revolution-4-0-it-and-automotive-sector-in-india-by-the-dialogue-and-fes
<b>On August 21, 2019, Aayush Rathi, attended a report launch event and focus group discussion on the "Impact of Industrial Revolution 4.0 - IT and Automotive Sector in India". Research conducted by the Dialogue in collaboration with the Friedrich-Ebert-Stiftung (FES) were being presented. </b>
<p class="moz-quote-pre" style="text-align: justify; ">At CIS, we have previously produced research on the future of work in these sectors. Aayush attended the event to understand how other researchers are approaching the subject of the future of work in terms of the methodological approach and the questions being asked and policy responses being proposed. In what may be treated as validation of our research design, FES and the Dialogue have addressed similar questions and adopted an empirical+desk based approach to do so as well.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/impact-of-industrial-revolution-4-0-it-and-automotive-sector-in-india-by-the-dialogue-and-fes'>https://cis-india.org/internet-governance/news/impact-of-industrial-revolution-4-0-it-and-automotive-sector-in-india-by-the-dialogue-and-fes</a>
</p>
No publisherAdminIndustry 4.0Internet GovernanceInformation TechnologyArtificial Intelligence2019-08-27T00:13:32ZNews ItemPycon India 2019
https://cis-india.org/internet-governance/news/pycon-india-2019
<b>K. Bhuvana Meenakshi gave a talk at BangPypers organized by Python Software Society in Bangalore on August 25, 2019. She spoke on Let the world experience WebXR!</b>
<p>For more info, <a class="external-link" href="https://www.meetup.com/BangPypers/events/kswpqqyzlbwb/">click here</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/pycon-india-2019'>https://cis-india.org/internet-governance/news/pycon-india-2019</a>
</p>
No publisherAdminInternet GovernanceInformation Technology2019-08-27T00:04:03ZNews ItemLeveraging Web Application Vulnerabilities for Reconnaissance and Intelligence Gathering
https://cis-india.org/internet-governance/news/leveraging-web-application-vulnerabilities-for-reconnaissance-and-intelligence-gathering
<b>Karan Saini gave a talk at the JSFoo Conference at the GRD College of Science in Coimbatore, Tamil Nadu on July 5, 2019. The event was organized by Has Geek.</b>
<p>Click to <a class="external-link" href="http://cis-india.org/internet-governance/files/jsfoo-talk">view Karan's presentation</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/leveraging-web-application-vulnerabilities-for-reconnaissance-and-intelligence-gathering'>https://cis-india.org/internet-governance/news/leveraging-web-application-vulnerabilities-for-reconnaissance-and-intelligence-gathering</a>
</p>
No publisherAdminInternet GovernanceInformation Technology2019-07-22T01:39:14ZNews ItemWebinar on counter-comments to the draft Intermediary Guidelines
https://cis-india.org/internet-governance/news/webinar-on-counter-comments-to-the-draft-intermediary-guidelines
<b>CCAOI and the ISOC Delhi Chapter organised a webinar on February 11 to discuss the comments submitted to the Information Technology [Intermediary Guidelines (Amendment) Rules] 2018, and counter-comments that were due by February 14. </b>
<p>The agenda of the discussion was:</p>
<ul>
<li>A brief introduction to the counter comment process [Shashank Mishra]</li>
<li>Invited stakeholders comment on key issues and perspectives on the submissions and the points to be countered.</li>
</ul>
<p>The following people participated:</p>
<ul>
<li>Amba Kak, Mozilla</li>
<li>Rajesh Chharia, ISPAI</li>
<li>Gurshabad Grover, CIS</li>
<li>Priyanka Chaudhari, SFLC</li>
<li>Divij Joshi, Vidhi Centre for Legal Policy</li>
</ul>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/webinar-on-counter-comments-to-the-draft-intermediary-guidelines'>https://cis-india.org/internet-governance/news/webinar-on-counter-comments-to-the-draft-intermediary-guidelines</a>
</p>
No publisherAdminInternet GovernanceIntermediary LiabilityInformation Technology2019-02-22T01:51:19ZNews ItemIs the new ‘interception’ order old wine in a new bottle?
https://cis-india.org/internet-governance/blog/newslaundry-elonnai-hickok-vipul-kharbanda-shweta-mohandas-and-pranav-bidare-december-27-2018-is-the-new-interception-order-old-wine-in-a-new-bottle
<b>The government could always authorise intelligence agencies to intercept and monitor communications, but the lack of clarity is problematic.</b>
<p style="text-align: justify; ">An opinion piece co-authored by Elonnai Hickok, Vipul Kharbanda, Shweta Mohandas and Pranav M. Bidare was published in <a class="external-link" href="https://www.newslaundry.com/2018/12/27/is-the-new-interception-order-old-wine-in-a-new-bottle">Newslaundry.com</a> on December 27, 2018.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">On December 20, 2018, through an <a href="http://egazette.nic.in/WriteReadData/2018/194066.pdf" target="_blank">order</a> issued by the Ministry of Home Affairs (MHA), 10 security agencies—including the Intelligence Bureau, the Central Bureau of Investigation, the Enforcement Directorate and the National Investigation Agency—were listed as the intelligence agencies in India with the power to intercept, monitor and decrypt "any information" generated, transmitted, received, or stored in any computer under Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, framed under section 69(1) of the IT Act.</p>
<p style="text-align: justify; ">On December 21, the Press Information Bureau published a <a href="http://www.pib.nic.in/PressReleseDetail.aspx?utm_campaign=fullarticle&utm_medium=referral&PRID=1556945" target="_blank">press release</a> providing clarifications to the previous day’s order. It said the notification served to merely reaffirm the existing powers delegated to the 10 agencies and that no new powers were conferred on them. Additionally, the release also stated that “adequate safeguards” in the IT Act and in the Telegraph Act to regulate these agencies’ powers.</p>
<p style="text-align: justify; ">Presumably, these safeguards refer to the Review Committee constituted to review orders of interception and the prior approval needed by the Competent Authority—in this case, the secretary in the Ministry of Home Affairs in the case of the Central government and the secretary in charge of the Home Department in the case of the State government.</p>
<p style="text-align: justify; ">As noted in the press release, the government has always had the power to authorise intelligence agencies to submit requests to carry out the interception, decryption, and monitoring of communications, under Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, framed under section 69(1) of the IT Act.</p>
<p style="text-align: justify; ">When considering the implications of this notification, it is important to look at it in the larger framework of India’s surveillance regime, which is made up of a set of provisions found across multiple laws and operating licenses with differing standards and surveillance capabilities.</p>
<p style="text-align: justify; ">- Section 5(2) of the Indian Telegraph Act, 1885 allows the government (or an empowered authority) to intercept or detain transmitted information on the grounds of a public emergency, or in the interest of public safety if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence. This is supplemented by Rule 419A of the Indian Telegraph Rules, 1951, which gives further directions for the interception of these messages.</p>
<p style="text-align: justify; ">- Condition 42 of the <a href="http://www.dot.gov.in/sites/default/files/DOC270613-013.pdf" target="_blank">Unified Licence for Access Services</a>, mandates that every telecom service provider must facilitate the application of the Indian Telegraph Act. Condition 42.2 specifically mandates that the license holders must comply with Section 5 of the same Act.</p>
<p style="text-align: justify; ">- Section 69(1) of the Information Technology Act and associated Rules allows for the interception, monitoring, and decryption of information stored or transmitted through any computer resource if it is found to be necessary or expedient to do in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence.</p>
<p style="text-align: justify; ">- Section 69B of the Information Technology Act and associated Rules empowers the Centre to authorise any agency of the government to monitor and collect traffic data “to enhance cyber security, and for identification, analysis, and prevention of intrusion, or spread of computer contaminant in the country”.</p>
<p style="text-align: justify; ">- Section 92 of the CrPc allows for a Magistrate or Court to order access to call record details.</p>
<p style="text-align: justify; ">Notably, a key difference between the IT Act and the Telegraph Act in the context of interception is that the Telegraph Act permits interception for preventing incitement to the commission of an offence on the condition of public emergency or in the interest of public safety while the IT Act permits interception, monitoring, and decryption of any cognizable offence relating to above or for investigation of any offence. Technically, this difference in surveillance capabilities and grounds for interception could mean that different intelligence agencies would be authorized to carry out respective surveillance capabilities under each statute. Though the Telegraph Act and the associated Rule 419A do not contain an equivalent to Rule 4—<a href="https://mha.gov.in/MHA1/Par2017/pdfs/par2013-pdfs/ls-110214/294.pdf" target="_blank">nine Central Government agencies and one State Government agency</a> have previously been authorized under the Act. The Central Government agencies authorised under the Telegraph Act are the same as the ones mentioned in the December 20 notification with the following differences:</p>
<p style="text-align: justify; ">- Under the Telegraph Act, the Research and Analysis Wing (RAW) has the authority to intercept. However, the 2018 notification more specifically empowers the Cabinet Secretariat of RAW to issue requests for interception under the IT Act.</p>
<p style="text-align: justify; ">- Under the Telegraph Act, the Director General of Police, of concerned state/Commissioner of Police, Delhi for Delhi Metro City Service Area, has the authority to intercept. However, the 2018 notification specifically authorises the Commissioner of Police, New Delhi with the power to issue requests for interception.</p>
<p style="text-align: justify; ">That said, the<a href="https://cis-india.org/internet-governance/resources/it-procedure-and-safeguard-for-monitoring-and-collecting-traffic-data-or-information-rules-2009" target="_blank"> IT (Procedure and safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009 </a>under 69B of the IT Act contain a provision similar to Rule 4 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 - allowing the government to authorize agencies that can monitor and collect traffic data. In 2016, the Central Government <a href="http://meity.gov.in/writereaddata/files/69B%20Notification%20-April%202016.pdf" target="_blank">authorised</a> the Indian Computer Emergency Response Team to monitor and collect traffic data, or information generated, transmitted, received, or stored in any computer resource. This was an exercise of the power conferred upon the Central Government by Section 69B(1) of the IT Act. However, this notification does not reference Rule 4 of the IT Rules, thus it is unclear if a similar notification has been issued under Rule 4.</p>
<p style="text-align: justify; ">While it is accurate that the order does not confer new powers, areas of concern that existed with India’s surveillance regime continue to remain including the question of whether 69(1) and 69B and associated Rules are <a href="https://thewire.in/government/narendra-modi-snooping-it-act-home-ministry" target="_blank">constitutionally</a> valid, the lack of t<a href="https://cis-india.org/internet-governance/blog/transparency-in-surveillance" target="_blank">ransparency</a> by the government and the prohibition of transparency by service providers, <a href="https://cis-india.org/internet-governance/blog/yahoo-october-23-2013-what-india-can-learn-from-snowden-revelations" target="_blank">heavy handed </a>penalties on service providers for non-compliance, and a lack of legal backing and <a href="https://cis-india.org/internet-governance/blog/policy-brief-oversight-mechanisms-for-surveillance" target="_blank">oversight</a> mechanisms for intelligence agencies. Some of these could be addressed if the draft Data Protection Bill 2018 is enacted and the Puttaswamy Judgement fully implemented.</p>
<p style="text-align: justify; "><b>Conclusion</b></p>
<p style="text-align: justify; ">The MHA’s order and the press release thereafter have served to publicise and provide needed clarity with respect to the powers vested in which intelligence agencies in India under section 69(1) of the IT Act. This was previously unclear and could have posed a challenge to ensuring oversight and accountability of actions taken by intelligence agencies issuing requests under section 69(1) .</p>
<p style="text-align: justify; ">The publishing of the list has subsequently served to raise questions and create a debate about key issues concerning privacy, surveillance and state overreach. On <a href="https://barandbench.com/ministry-of-home-affairs-surveillance-order-challenged-in-supreme-court/" target="_blank">December 24</a>, the order was challenged by advocate ML Sharma on the grounds of it being illegal, unconstitutional and contrary to public interest. Sharma in his contention also stated the need for the order to be tested on the basis of the right to privacy established by the Supreme Court in Puttaswamy which laid out the test of necessity, legality, and proportionality. According to this test, any law that encroaches upon the privacy of the individual will have to be justified in the context of the right to life under Article 21.</p>
<p style="text-align: justify; ">But there are also other questions that exist. India has multiple laws enabling its surveillance regime and though this notification clarifies which intelligence agencies can intercept under the IT Act, it is still seemingly unclear which intelligence agencies can monitor and collect traffic data under the 69B Rules. It is also unclear what this order means for past interceptions that have taken place by agencies on this list or agencies outside of this list under section 69(1) and associated Rules of the IT Act. Will these past interceptions possess the same evidentiary value as interceptions made by the authorised agencies in the order?</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/newslaundry-elonnai-hickok-vipul-kharbanda-shweta-mohandas-and-pranav-bidare-december-27-2018-is-the-new-interception-order-old-wine-in-a-new-bottle'>https://cis-india.org/internet-governance/blog/newslaundry-elonnai-hickok-vipul-kharbanda-shweta-mohandas-and-pranav-bidare-december-27-2018-is-the-new-interception-order-old-wine-in-a-new-bottle</a>
</p>
No publisherElonnai Hickok, Vipul Kharbanda, Shweta Mohandas and Pranav M. BidareIT ActPrivacyInternet GovernanceCyber SecurityInformation Technology2018-12-29T16:02:00ZBlog Entry