Centre for Internet and Society

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

The Online Video Environment in India - A Survey Report

pranesh — 2011-10-03T09:31:30Z

iCOMMONS, the OPEN VIDEO ALLIANCE, and the CENTRE FOR INTERNET AND SOCIETY have initiated a research project which seeks to survey the online video environment in India and the opportunities this new medium presents for creative expression and civic engagement. This report seeks to define key issues in the Indian context and begins to develop a short-term policy framework to address them.

The basic assumption of this paper is that the online video medium should support creative and technical innovation, competition, and public participation, and that open source technology can help develop these traits. These assumptions are not elaborated upon here. Instead, this report looks at questions of “openness” that are not strictly technological; that are specific to video in India; and that provide points of entry to a simple policy framework.

The paper is organized in the following parts:

The first chapter, THE NATIONAL CHARACTER OF INDIAN VIDEO, provides a brief historical timeline of events from the first screening of the Lumiere Brothers films in India in 1896, through the beginning of the twenty-first century. This chapter traces the traditional channels of dissemination of video content in India, and establishes the close and unique bond that the visual medium has formed with Indian society.
The second chapter, DIGITAL MEDIA AND NETWORK TRANSFORMATIONS, looks at recent media transformations like the rise of the Internet and peer-to-peer networking, the proliferation of telecommunications, and other developments which form the backbone of the emerging online video medium. Peer-to-peer and associative networking provides a new means of content circulation throughout the country.
The third chapter, MAPPING CONTENT ON THE INTERNET, traces the various types of visual content visible over these new networks, exploring case studies of videos circulating on the Internet which have raised new questions of censorship, freedom of speech, and the openness of the medium.
The fourth chapter, THE ‘OPEN VIDEO’ QUESTION, creates a judgment-based framework to assess the openness of the medium. This chapter lays out a series of questions around the broad spectrum of openness, viewed from various perspectives of access, participation, open source technology, and availability, with the intent of mapping the circumstances under which online video operates in India. Moreover, the chapter focuses on the structural limitations to video which can be addressed by policy, or even an absence of policy.

Whereas the report consciously makes an effort to explore not only transitory web videos but also films, the terms ‘video’ and ‘film’, in many parts are treated interchangeably. Although films and videos represent different traditional mediums of recording, the interest of this report in examining the ‘online video’ content in India, consists of both types of material—accessed perhaps with little distinction.

The scope of this paper is extremely broad and touches upon a wide variety of issues in India, where each area has a peculiar specificity of its situation—urban or rural, geographic, and so on. Links and references have been provided in the footnotes for background readings of these issues.

Click here to download the report. [PDF, 1.22 MB]

For more details visit https://cis-india.org/openness/online-video-environment-in-india

India's Broken Internet Laws Need a Shot of Multi-stakeholderism

pranesh — 2012-04-26T13:45:25Z

Cyber-laws in India are severely flawed, with neither lawyers nor technologists being able to understand them, and the Cyber-Law Group in DEIT being incapable of framing fair, just, and informed laws and policies. Pranesh Prakash suggests they learn from the DEIT's Internet Governance Division, and Brazil, and adopt multi-stakeholderism as a core principle of Internet policy-making.

(An edited version of this article was published in the Indian Express as "Practise what you preach" on Thursday, April 26, 2012.)

The laws in India relating to the Internet are greatly flawed, and the only way to fix them would be to fix the way they are made. The Cyber-Laws & E-Security Group in the Department of Electronics and Information Technology (DEIT, who refer to themselves as 'DeitY' on their website!) has proven itself incapable of making fair, balanced, just, and informed laws and policies. The Information Technology (IT) Act is filled with provisions that neither lawyers nor technologists understand (not to mention judges). (The definition of "computer source code" in s.65 of the IT Act is a great example of that.)

The Rules drafted under s.43A of the IT Act (on 'reasonable security practices' to be followed by corporations) were so badly formulated that the government was forced to issue a clarification through a press release, even though the clarification was in reality an amendment and amendments cannot be carried out through press releases. Despite the clarification, it is unclear to IT lawyers whether the Rules are mandatory or not, since s.43A (i.e., the parent provision) seems to suggest that it is sufficient if the parties enter into an agreement specifying reasonable security practices and procedures. Similarly, the "Intermediary Guidelines" Rules (better referred to as the Internet Censorship Rules) drafted under s.79 of the Act have been called "arbitrary and unconstitutional" by many, including MP P. Rajeev, who has introduced a motion in the Rajya Sabha to repeal the Rules ("Caught in a net", Indian Express, April 24, 2012). These Rules give the power of censorship to every citizen and allow them to remove any kind of material off the Internet within 36 hours without anybody finding out. Last year, we at the Centre for Internet and Society used this law to get thousands of innocuous links removed from four major search engines without any public notice. In none of the cases (including one where an online news website removed more material than the perfectly legal material we had complained about) were the content-owners notified about our complaint, much less given a chance to defend themselves.

Laws framed by the Cyber-Law Group are so poorly drafted that they are misused more often than used. There are too many criminal provisions in the IT Act, and their penalties are greatly more than that of comparable crimes in the IPC. Section 66A of the IT Act, which criminalizes "causing annoyance or inconvenience" electronically, has a penalty of 3 years (greater than that for causing death by negligence), and does not require a warrant for arrest. This section has been used in the Mamata Banerjee cartoon case, for arresting M. Karthik, a Hyderabad-based student who made atheistic statements on Facebook, and against former Karnataka Lokayukta Santosh Hegde. Section 66A, I believe, imperils freedom of speech more than is allowable under Art. 19(2) of the Constitution, and is hence unconstitutional.

While s.5 of the Telegraph Act only allows interception of telephone conversations on the occurrence of a public emergency, or in the interest of the public safety, the IT Act does not have any such threshold conditions, and greatly broadens the State's interception abilities. Section 69 allows the government to force a person to decrypt information, and might clash with Art.20(3) of the Constitution, which provides a right against self-incrimination. One can't find any publicly-available governmental which suggests that the constitutionality of provisions such as s.66A or s.69 was examined.

Omissions by the Cyber-Law Group are also numerous. The Indian Computer Emergency Response Team (CERT-In) has been granted very broad functions under the IT Act, but without any clarity on the extent of its powers. Some have been concerned, for instance, that the broad power granted to CERT-In to "give directions" relating to "emergency measures for handling cyber security incidents" includes the powers of an "Internet kill switch" of the kind that Egypt exercised in January 2011. Yet, they have failed to frame Rules for the functioning of CERT-In. The licences that the Department of Telecom enters into with Internet Service Providers requires them to restrict usage of encryption by individuals, groups or organisations to a key length of only 40 bits in symmetric key algorithms (i.e., weak encryption). The RBI mandates a minimum of 128-bit SSL encryption for all bank transactions. Rules framed by the DEIT under s.84A of the IT Act were to resolve this conflict, but those Rules haven't yet been framed.

All of this paints a very sorry picture. Section 88 of the IT Act requires the government, "soon after the commencement of the Act", to form a "Cyber Regulations Advisory Committee" consisting of "the interests principally affected or having special knowledge of the subject-matter" to advise the government on the framing of Rules, or for any other purpose connected with the IT Act. This body still has not been formed, despite the lag of more than two and a half years since the IT Act came into force. Justice Markandey Katju’s recent letter to Ambika Soni about social media and defamation should ideally have been addressed to this body.

The only way out of this quagmire is to practise at home that which we preach abroad on matters of Internet governance: multi-stakeholderism. Multi-stakeholderism refers to the need to recognize that when it comes to Internet governance there are multiple stakeholders: government, industry, academia, and civil society, and not just the governments of the world. This idea has gained prominence since it was placed at the core of the "Declaration of Principles" from the first World Summit on Information Society in Geneva in 2003, and has also been at the heart of India's pronouncements at forums like the Internet Governance Forum. Brazil has an "Internet Steering Committee" which is an excellent model that practices multi-stakeholderism as a means of framing and working national Internet-related policies. DEIT's Internet Governance Division, which formulates India's international stance on Internet governance, has long recognized that governance of the Internet must be done in an open and collaborative manner. It is time the DEIT's Cyber-Law and E-Security Group, which formulates our national stance on Internet governance, realizes the same.

For more details visit https://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism

Surveillance and the Indian Constitution - Part 3: The Public/Private Distinction and the Supreme Court’s Wrong Turn

pranesh — 2014-03-06T23:02:45Z

After its decision in Gobind, the Supreme Court's privacy floodgates opened; a series of claims involving private parties came before its docket, and the resulting jurisprudence ended up creating confusion between state-individual surveillance, and individual-individual surveillance.

Gautam Bhatia's blog post was originally published on Indian Constitutional Law and Philosophy Blog

We have seen that Gobind essentially crystallized a constitutional right to privacy as an aspect of personal liberty, to be infringed only by a narrowly-tailored law that served a compelling state interest. After the landmark decision in Gobind, Malak Singh v State of P&H was the next targeted-surveillance history-sheeter case to come before the Supreme Court. In that case, Rule 23 of the Punjab Police Rules was at issue. Its vires was not disputed, so the question was a direct matter of constitutionality. An order of surveillance was challenged by two individuals, on the ground that there were no reasonable bases for suspecting them of being repeat criminals, and that their inclusion in the surveillance register was politically motivated. After holding that entry into a surveillance sheet was a purely administrative measure, and thus required no prior hearing (audi alteram partem), the Court then embarked upon a lengthy disquisition about the scope and limitations of surveillance, which deserves to be reproduced in full:

“But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court’s protection which the court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly R.23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobstrusive and within bounds. Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance. There is no order as to costs.”

Three things emerge from this holding: first, the Court follows Gobind in locating the right to privacy within the philosophical concept of individual dignity, found in Article 21’s guarantee of personal liberty. Secondly, it follows Kharak Singh, Malkani and Gobind in insisting that the surveillance be targeted, limited to fulfilling the government’s crime-prevention objectives, and be limited – not even to suspected criminals, but – repeat offenders or serious criminals. And thirdly, it leaves open a role for the Court – that is, judicial review – in examining the grounds of surveillance, if challenged in a particular case.

After Malak Singh, there is another period of quiet. LIC v Manubhai D Shah, in 1993, attributed – wrongly – to Indian Express Newspapers the proposition that Article 19(1)(a)’s free expression right included privacy of communications (Indian Express itself had cited a UN Report without incorporating it into its holding).

Soon afterwards, R. Rajagopal v State of TN involved the question of the publication of a convicted criminal’s autobiography by a publishing house; Auto Shankar, the convict in question, had supposedly withdrawn his consent after agreeing to the book’s publication, but the publishing house was determined to go ahead with it. Technically, this wasn’t an Article 21 case: so much is made clear by the very manner in which the Court frames its issues: the question is whether a citizen of the country can prevent another person from writing his biography, or life story. (Paragraph 8) The Court itself made things clear when it held that the right of privacy has two aspects: the tortious aspect, which provides damages for a breach of individual privacy; and the constitutional aspect, which protects privacy against unlawful governmental intrusion. (Paragraph 9) Having made this distinction, the Court went on to cite a number of American cases that were precisely about the right to privacy against governmental intrusion, and therefore – ideally – irrelevant to the present case (Paras 13 – 16); and then, without quite explaining how it was using these cases – or whether they were relevant at all, it switched to examining the law of defamation (Para 17 onwards). It would be safe to conclude, therefore, in light of the clear distinctions that it made, the Court was concerned in R. Rajagopal about an action between private parties, and therefore, privacy in the context of tort law. It’s confusing observations, however, were to have rather unfortunate effects, as we shall see.

We now come to a series of curious cases involving privacy and medical law. In Mr X v Hospital Z, the question arose whether a Hospital that – in the context of a planned marriage – had disclosed the appellant’s HIV+ status, leading to his social ostracism – was in breach of his right to privacy. The Court cited Rajagopal, but unfortunately failed to understand it, and turned the question into one of the constitutional right to privacy, and not the private right. Why the Court turned an issue between two private parties – adequately covered by the tort of breach of confidentiality – into an Article 21 issue is anybody’s guess. Surely Article 21 – the right to life and personal liberty – is not horizontally applicable, because if it was, we might as well scrap the entire Indian Penal Code, which deals with exactly these kinds of issues – individuals violating each others’ rights to life and personal liberty. Nonetheless, the Court cited Kharak Singh, Gobind and Article 8 of the European Convention of Human Rights, further muddying the waters, because Article 8 – in contrast to American law – embodies a proportionality test for determining whether there has been an impermissible infringement of privacy. The Court then came up with the following observation:

“Where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. Akali’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay.”

With respect, this is utterly bizarre. If there is a clash of two rights, then that clash must be resolved by referring to the Constitution, and not to the Court’s opinion of what an amorphous, elastic, malleable, many-sizes-fit “public morality” says. The mischief caused by this decision, however, was replicated in Sharda v Dharmpal, decided by the Court in 2003. In that case, the question was whether the Court could require a party who had been accused of unsoundness of mind (as a ground for divorce under the wonderfully progressive Hindu Marriage Act) to undergo a medical examination – and draw an adverse inference if she refused. Again, whether this was a case in which Article 21 ought to be invoked is doubtful; at least, it is arguable, since it was the Court making the order. Predictably, the Court cited from Mr X v Hospital Z extensively. It cited Gobind (compelling State interest) and the ECHR (proportionality). It cited a series of cases involving custody of children, where various Courts had used a “balancing test” to determine whether the best interests of the child overrode the privacy interest exemplified by the client-patient privilege. It applied this balancing test to the case at hand by balancing the “right” of the petitioner to obtain a divorce for the spouse’s unsoundness of mind under the HMA, vis-à-vis the Respondent’s right to privacy.

In light of the above analysis, it is submitted that although the outcome in Mr X v Hospital Z and Sharda v Dharmpal might well be correct, the Supreme Court has misread what R. Rajagopal actually held, and its reasoning is deeply flawed. Neither of these cases are Article 21 cases: they are private tort cases between private parties, and ought to be analysed under private law, as Rajagopal itself was careful to point out. In private law, also, the balancing test makes perfect sense: there are a series of interests at stake, as the Court rightly understood, such as certain rights arising out of marriage, all of a private nature. In any event, whatever one might make of these judgments, one thing is clear: they are both logically and legally irrelevant to the Kharak Singh line of cases that we have been discussing, which are to do with the Article 21 right to privacy against the State.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-3

India's Internet Jam

pranesh — 2014-03-20T12:41:58Z

As authorities continue to clamp down on digital freedom, politicians and corporations are getting a taste for censorship too. Pranesh Prakash reports.

The article was published in Index on Censorship in August 2012. This is an unedited version of the article.

In a matter of three days, in August 2012, India’s central government ordered internet service providers to block around 309 pieces of online content – mostly individual web pages, YouTube videos and Facebook groups. The blocking orders came days after people originally from north-eastern India living in Bangalore began fleeing the city in fear of attack. Rumours that some Muslims in the city were planning violence in retaliation for recent clashes between the indigenous Bodo tribe and Muslim settlers in Assam spread quickly via text messages and through the media. The Nepali migrant community in Bangalore also received text messages from their families, warning them that they might be mistaken for north-eastern Indians and also be targeted. Indian Railway, catering to the huge demand, organised special trains to Assam for the crowds of people.

Freedom of speech is enshrined in the Constitution of India, which came into force in 1952, and specifically in Article 19(1)(a), which guarantees that ‘all citizens shall have the right to freedom of speech and expression’. While in the United States, it wasn’t until the 1920s that the Supreme Court struck down a law or governmental action on freedom of speech grounds, in India, just one year after the constitution was adopted, government actions against both left- and right-wing political speech were struck down for violating Article 19(1)(a). Enraged, the Congress government then amended Article 19, expanding the list of restrictions to the right to free expression. These included speech pertaining to ‘friendly relations with foreign states’, ‘public order’ and ‘incitement to an offence’. In 1963, in response to the 1962 war with China, the ‘sovereignty and integrity of India’ was also added, taking the number of categories of permissible restrictions up to eight. While the constitution categorically stipulates that no further restrictions should be imposed, courts have on occasion added to the list (privacy, for instance) through judicial interpretation without explicitly stating that they are doing so. Comparisons are often drawn between the constitution’s ‘reasonable restrictions’ and the categorical prohibition enshrined in the US Constitution’s First Amendment: ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – a meaningless comparison as there are indeed many categories of speech that are seen as being protected under the US constitution and even speech that is protected may be restrained in a number of ways.

Today, there are a number of laws that regulate freedom of speech in India, from the Indian Penal Code (IPC), the Victorian legislation meant to codify crimes, to the Information Technology Act, which was amended in 2008 and in some cases makes behaviour that is perfectly legal offline into a criminal activity when online.

Sedition and social harmony

The Indian Penal Code criminalises sedition; speech intended to cause enmity between communities; speech intended to ‘outrage religious feelings of any class’; selling, singing or displaying anything obscene; and defamation. It also prohibits ‘causing someone, by words or gestures, to believe they’re the target of divine displeasure’. Each of these provisions has been misused, as there are indeed many catagories of speech that are not seen as being protected under thw US constitution, and even speech that is protected may be restrained in a number of ways.

In recent years, sedition charges have been brought against human rights activists (Binayak Sen and Arundhati Roy), journalists (Seema Azad), cartoonists (Aseem Trivedi) and protesters (thousands of villagers in Koodankulam and neighbouring villages who demonstrated against a nuclear reactor in their area). It is usually the higher judiciary that dismisses such cases, while the lower judiciary seems to be supplicant to the bizarre claims of government, the police and complainants. Similarly, the higher judiciary has had to intervene in cases where books and films have been banned for ‘causing enmity between communities’ or for intentionally hurting the sentiments of a religious group.

Of the last six books banned by the Maharashtra government, all but one (RV Bhasin’s Islam: A Concept of Political World Invasion by Muslims) have been overturned by the Mumbai High Court. In one case, the court criticised the government for using a violent protest (organised by the Sambhaji Brigade, one of many right-wing political groups that frequently stage demonstrations) as reason enough for banning an academic book on the Maratha king Shivaji. In its decision, the judge pointed out that it is the government’s job to provide protection against such violence. Given India’s history of communal violence there is indeed a need for the law to address incitement to violence – but these laws should be employed at the actual time of incitement, not after the violence has already taken place. But, as recent events have shown, the government is willing to censor ‘harmful’ books and films and less likely to take action against individuals who incite violence during demonstrations.

Online speech and the law

There are regular calls for the government to introduce legislation that deals specifically with online behaviour, despite the fact that the vast majority of the laws regarding sedition and social harmony apply online as well as offline. One example is the recent move to introduce amendments to the Indecent Representation of Women Act (1986) so that it applies to ‘audiovisual media and material in electronic form’.

But the government’s attempts to control online speech began long before the introduction of any internet-specific legislation. Indeed, when state-monopoly internet service provider VSNL censored content, it did so under the terms of a contract it had entered with its customers, not under any law. In 1998, a mailing list called Middle East Socialist Network was blocked on national security grounds. In 1999, Pakistani newspaper Dawn’s website was blocked during the Kargil conflict. In both of the latter cases, the government relied on the Indian Telegraph Act (1885) to justify its actions, though that act contains no explicit provisions for such censorship.

In 2000, the Information Technology (IT) Act was passed and the Indian Computer Emergency Response Team (CERT-In) was created, which (unlawfully) assumed the role of official online censor. Importantly, while the IT Act did
make the publication of obscene content online illegal (though it already was under the IPC), it did not grant permission for authorities to block websites. Despite this, an executive order passed on 27 February 2003 granted CERT-In the power to block. Had this been challenged in a court, it may well have been deemed unconstitutional since, in the absence of a statutory law, an executive order cannot reverse the freedom granted under Article 19. And although the telecommunications sector in India was being liberalised around this time, as part of their licence agreements, all internet service providers (ISPs) have to agree to block links upon being requested to do so by the government. In 2008, when the IT Act was amended, it clearly stated that the government can block websites not only when it deems it necessary to do so but also when it is deemed expedient in relation to matters of public interest, national security and with regard to maintaining friendly relations with foreign states. The power to block does not, however, extend to obscenity or defamation offences. At the same time, further categories of speech crimes were introduced, along with other new offences, including the electronic delivery of ‘offensive messages through communication services’ or anything ‘for the purpose of causing annoyance or inconvenience’. This has often been abused, including by the chief minister of West Bengal, who issued proceedings against a professor for forwarding an email containing a cartoon that mocked him. Under this draconian and unconstitutional provision, the police do not need an arrest warrant and the punishment can be as much as three years’ imprisonment, longer than even the punishment for causing death by negligence. The amendment also granted the government extensive powers to monitor and intercept online speech and data traffic, greatly extending the powers provided under colonial laws such as the Indian Telegraph Act (1885). As legislation has been introduced, the penalties for online offences have increased significantly. For example, the penalty for the first-time publication of an obscene ebook is up to five years in prison and a 1,000,000 rupee (US$18,800) fine, compared with two years’ imprisonment and a 2,000 rupee (US$38) fine as stipulated in the IPC for publishing that same material in print version. New laws introduced in 2009 pertain specifically to blocking (section 69a), interception, decryption and monitoring (69 and 69b) and are in accordance with the constitution. However, the amendments were brought in without any attempt at transparency or accountability.

Power in the hands of intermediaries

In April 2011, despite critical submissions received during its public consultation, the government announced new ‘intermediary guidelines’ and ‘cyber cafe rules’, both of which have adverse effects on freedom of expression. The rules, which were issued by the Department of Information and Technology (DIT), grant not only the government but citizens significant powers to censor the internet. They require all intermediaries – companies that handle content, including web hosts, telecom companies, domain name providers and other such intermediaries – to remove ‘disparaging’ content that could ‘harm minors in any way’. They prohibit everything from jokes (if the person sharing the joke does not own copyright to it) to anything that is disparaging. In a recent case, in December 2011, thousands of people used the hashtag #=IdiotKapilSibal on Twitter to criticise the minister of communications and information technology, Kapil Sibal, who had requested that officials from Google, Microsoft, Yahoo! and Facebook in India pre-screen online content. These guidelines and rules are badly drafted and unconstitutional, as they go beyond the limits allowed under Article 19 in the constitution. And do so in a manner that lacks any semblance of due process and
fairness. They are inconsistent with offline laws, too: for example, because the guidelines also refer to gambling, the government of Sikkim can publish advertisements for its PlayWin lottery in newspapers but not online. It’s far easier to persuade officials to remove online material than it is to persuade them to remove books from a bookstore or artwork from a gallery. Police are only empowered to seize books if the government or a court has been persuaded that it violates a law and issues such an order. This fact is always recorded, in government or legal records, police files or in the press. By contrast, web content can be removed on the basis of one email complaint; intermediaries are required to ‘disable’ the relevant content within 36 hours of the complaint. A court order is not required, nor is there a requirement to notify the owner of the content that a complaint has been received or that material has been removed. The effect is that of almost invisible censorship.

This assertion – that it only takes one complaint – may seem far-fetched. But a researcher from the Centre for Internet and Society sent complaints to several intermediaries on a number of occasions, resulting in content being removed in a majority of cases. If intermediaries choose not to take action, they risk losing their immunity against punishment for content. In essence, the law is the equivalent of punishing a post office for the letters that people send via the postal service.

The amendments were brought in without any attempt at transparency or accountability

In 1984, Indira Gandhi was forced to sue Salman Rushdie for defamation in a London court in order to ensure one sentence was expurgated from his novel Midnight’s Children. Today Gandhi wouldn’t need to win a lawsuit against publishers. She would merely have to send a complaint to websites selling the book and it would have to be removed from sale. It is easier to block Akbari.in – the online newspaper run by Vinay Rai, who filed a criminal complaint against multiple internet companies in December 2011 for all manner of materials – than it is to prevent its print publication. There is no penalty for frivolous complaints, such as those sent by researchers from the Centre for Internet and Society, nor is there any requirement for records to be kept of who has removed what. Such great powers of censorship without any penalties for abuse of these powers are a sure-fire way of moving towards greater intolerance, with the internet – that republic of opinions and expressions – being a casualty.

Censorship outside the law

Since 2011, governments and private companies alike have increasingly engaged in internet censorship. In April 2011, in response to a right to information request, the DIT released a list of 11 websites that had been officially blocked under the IT Act since 2009, when the amended act came into force. But, according to a recent Google Transparency Report, government requests for the removal of material far exceeds that number. The report reveals that the government (including state governments) requested that Google remove 358 items from January 2011 to June 2011. Of this number, only eight were considered to be hate speech and only one item was related to concerns over national security. The remaining material, 255 items (71 per cent of all requests), was taken down because of ‘government criticism’. Criticism of the government is protected under the country’s constitution but, nonetheless, Google complied with take-down requests 51 per cent of the time. It’s clear, then, that governmental censorship is far more widespread than officially acknowledged.

In July 2011, Reliance Entertainment obtained a ‘John Doe’ order to protect its intellectual property rights with regard to its film Singham, which was scheduled for release that month. The order prohibited both online and offline infringement of copyright for the film and was sent to a number of ISPs, which then blocked access to file-sharing websites, even though there was no proof of the film having been available on any of them. According to Reliance Entertainment, they merely asked ISPs ‘not to make the film available’ on their networks, even though the order did not authorise it. But a right to information request pertaining to a similar case dealing with the distribution of the film Dhammu showed that the entertainment company’s lawyers had in fact asked for dozens of websites – not just deep-link URLs to infringing content – to be blocked, despite publicly claiming otherwise. If web users encountered any information at all about why access to the sites was blocked, it was that the Department of Telecom had ordered the blocking, which was plainly untrue. In February 2012, following a complaint from the Indian Music Industry (a consortium of 142 music companies), the Calcutta High Court ordered 387 ISPs to block 107 websites for music piracy. At least a few of those, including Paktimes.com and Filmicafe.com, were general interest entertainment sites. The most famous of these sites, Songs.pk, re-emerged shortly after the block as Songspk.pk, highlighting the pointlessness of the block. And outside the realm of copyright, in December 2011, the domain name CartoonsAgainstCorruption.com was suspended based on an unlawful complaint from the Mumbai police requesting its suspension, despite there being no powers for them to do so under any law.

Between August and November 2011, the DIT also went to great efforts to compel big internet companies including Indiatimes, Facebook, Google, Yahoo!, and Microsoft, to ‘self-regulate’. This revealed the department’s desire to gain ever greater powers to control ‘objectionable’ content online, effectively bypassing the IT Act. It’s obvious, too, that by encouraging internet companies to ‘self-regulate’ the government will avoid embarrassing statistics such as those revealed by Google’s Transparency Report.

New dangers

A way forward, at least for internet-specific laws, could be to rekindle the Cyber Regulations Advisory Committee – a multi-stakeholder committee required by the IT Act – and to practise at home what we preach abroad on matters of internet governance: the value of a multi-stakeholder system, which includes industry, academia and civil society and not just governments. The idea of a multi-stakeholder framework has gained prominence since it was placed at the core of the ‘Declaration of Principles’ at the first World Summit on Information Society in Geneva in 2003. It has also been at the heart of India’s pronouncements at the Internet Governance Forum and the India-Brazil-South Africa Dialogue Forum. The Internet Governance Division, which formulates the country’s international stance on internet governance, has long recognised that these decisions must be taken in an open and collaborative manner. It is time the DIT’s Cyber-Law and ESecurity Group, which formulates the country’s national stance on the internet, realises the same.

Freedom of speech means nothing in a democratic society if it does not allow everyone to speak. Despite the internet being a very elite space, the number of people who have used it to express themselves since its introduction in India in 1994 is vast, especially when compared to the number of people in India who have expressed themselves in print since 1947 when the country won its independence. Online speech is indeed a big shift from edited and usually civil discussions in the world of print media. Perhaps this gives us some indication of why there is some support among the mass media for government regulations on speech. Too many discussions of online speech laws in India descend into arguments about the lack of civility online. However, the press – and all of us – would do well to remember that civility and decency in speech, while desirable in many contexts, cannot be the subject of legislation. But in India, the greatest threat to freedom of expression is not a government clampdown on dissent but threats from political and corporate powers with a range of tools at their disposal, including fostering a climate of selfcensorship. The government has passed bad laws that have given way to private censorship. And many of these laws are simply a result of gross ineptitude.

We cannot take sufficient comfort in the fact that, in India, censorship is limited and nowhere on the scale that it is in China or Iran. It is crucial that, from a legal, cultural and technological standpoint we do not open the door for further censorship. And currently, we are failing.

Pranesh Prakash is Policy Director at the Centre for Internet and Society in Bangalore. Part of this article appeared in a blog by the author on the centre’s website, cis-india.org, in January 2012

For more details visit https://cis-india.org/internet-governance/blog/index-on-censorship-august-2012-pranesh-prakash-indias-internet-jam

CIS Statement at ICANN 49's Public Forum

pranesh — 2014-06-04T05:31:44Z

This was a statement made by Pranesh Prakash at the ICANN 49 meeting (on March 27, 2014), arguing that ICANN's bias towards the North America and Western Europe result in a lack of legitimacy, and hoping that the IANA transition process provides an opportunity to address this.

Good afternoon. My name is Pranesh Prakash, and I'm with the Yale Information Society Project and the Centre for Internet and Society.

I am extremely concerned about the accountability of ICANN to the global community. Due to various decisions made by the US government relating to ICANN's birth, ICANN has had a troubled history with legitimacy. While it has managed to gain and retain the confidence of the technical community, it still lacks political legitimacy due to its history. The NTIA's decision has presented us an opportunity to correct this.

However, ICANN can't hope to do so without going beyond the current ICANN community, which while nominally being 'multistakeholder' and open to all, grossly under-represents those parts of the world that aren't North America and Western Europe.

Of the 1010 ICANN-accredited registrars, 624 are from the United States, and 7 from the 54 countries of Africa. In a session yesterday, a large number of the policies that favour entrenched incumbents from richer countries were discussed. But without adequate representation from poorer countries, and adequate representation from the rest of the world's Internet population, there is no hope of changing these policies.

This is true not just of the business sector, but of all the 'stakeholders' that are part of global Internet policymaking, whether they follow the ICANN multistakeholder model or another. A look at the boardmembers of the Internet Architecture Board, for instance, would reveal how skewed the technical community can be, whether in terms of geographic or gender diversity.

Without greater diversity within the global Internet policymaking communities, there is no hope of equity, respect for human rights -- civil, political, cultural, social and economic --, and democratic funtioning, no matter how 'open' the processes seem to be, and no hope of ICANN accountability either.

For more details visit https://cis-india.org/internet-governance/blog/icann49-public-forum-statement

Free and Open Source Software

pranesh — 2010-01-11T10:57:14Z

Free and open source software (FOSS) is a good thing from both the perspective of programmer and user freedoms as well as from the perspective of better and more efficient software production. Also, FOSS forms the backbone of the Internet (BIND/NSD for DNS servers, Apache for web servers, sendmail/postfix/qmail for mail servers, Asterisk for VoIP servers, etc.), and the Internet as we know it would not exist without FOSS.

For more details visit https://cis-india.org/openness/publications/foss/FLOSS

Free and Open Source Software

pranesh — 2010-01-11T10:59:01Z

For more details visit https://cis-india.org/openness/publications/foss

Photos

pranesh — 2008-12-01T13:17:32Z

Photographs of Open Access Day

For more details visit https://cis-india.org/openness/publications/content-access/photos

Second Response to Draft National Policy on Open Standards for e-Governance

pranesh — 2009-07-07T16:49:37Z

Another draft (labelled "version 2", dated May 26, 2009) of the draft national policy on open standards for e-governance was made available to Fosscomm, while many software companies were speaking out against NASSCOM's position on the policy. CIS drafted a second response addressing both the allegations against NASSCOM as well as the few shortcomings we perceive in the draft policy.

To
Shri Shankar Aggrawal
Joint Secretary (e-Governance)
Department of Information Technology
Ministry of Communications and Information Technology

Tuesday, July 7, 2009

Dear Sir,

Sub: Comments on Draft National Policy on Open Standards for e-Governance (version 2)

I am writing on behalf of the Centre for Internet and Society, which is a Bangalore-based civil society organization involved both in research and policy advocacy. Public accountability and digital pluralism are two of our core concerns, and it is for this that we are writing to you today. As a natural corollary of our mission, we aim at representing the concerns of citizens and consumers. You would recall that we had submitted comments to the call for comments you had put out for the draft National Policy on Open Standards for e-Governance last year (archived at <http://cis-india.org/advocacy/os/iosp/the-response/>).

We have recently received what appears to be a newer draft (version 2) of the National Policy on Open Standards for e-Governance, dated May 26, 2009. We are yet again very pleased to note the progressive nature of this document and wish to congratulate the government on its decision to promote the interests of the citizens of India over the narrow partisan interests of a few companies which wish to promote proprietary standards.

It has brought to our notice by some in the software industry that the National Association of Software and Services Companies (NASSCOM) has argued for the dilution of the definition of open standards by including standards licensed under “reasonable and non-discriminatory” terms to be considered “open”, and has also called for multiple standards in the same domain to be considered valid as a rule under the policy. We believe both these demands go against the interest of consumers of standards — which in this case is the Indian government — and are thus against the interest of citizens as well, since the Indian government handles data on behalf of its citizens.

Even “reasonable and non-discriminatory” terms of licensing of standards are in fact discriminatory as they prevent the development of free/libre/open source software based on those standards. And while having multiple implementations of a standard is beneficial as it increases consumer (i.e., governmental) choice, having multiple incompatible standards is detrimental to the government's interest as the policy itself recognizes in paragraph 4.2, and the very purpose (as enumerated in paragraphs 1, 3, and 4) of having standards is defeated. Even if the multiple standards are bi-directionally interoperable, additional costs are incurred in having concurrent multiple standards.

Thus, one hopes that the the threshold of “national interest” mentioned in paragraph 6.4.1 is set to a high level. Lastly, the views put forth by NASSCOM seem not to be truly legitimate as it has been the complaint of some that NASSCOM did not hold an open consultation with its own members before formulating its views. There are software giants, including IBM, Sun, and Red Hat, that have openly criticized the NASSCOMM position on open standards. More importantly, NASSCOM's position does not concur with what we believe is in the best interest of small and medium software enterprises, which constitute the bulk of the Indian software industry. We pray that you shall keep this in mind while considering NASSCOM's views.

We believe that apart from the technical reasons to favour open standards, there are many public interest reasons as well. We believe that the adoption of open standards is a step towards the promotion of equitable access to knowledge to all the people of our country. We further believe that public accountability will be served greatly by adoption of an open standards policy by the Central and State governments. While even developed countries (such as those of the EU) are mandating open standards in all governmental departments, processes, and interactions, it is developing countries that stand to gain most from open standards. Proprietary standards place a larger burden on developing economies than developed as developing economies have a greater need to participate in the global network by using standards, but do have lesser capabilities than developed economies in terms of paying for royalties.

On the document itself, while there are many reasons to hail it, we believe there are still a few shortcomings which we wish to bring to your notice.

Issue 1: Possibility of following letter of policy while violating its spirit

Explanation
Sometimes private companies can interfere with the standardisation process by exerting undue influence on the members of the standard setting body. That such undue influence have been sought to be applied even in India recently shows that this is not mere conjecture or idle speculation. Given this background, the document should note this as a problem and note that remedial measures could be undertaken in the event such undue influence comes to light.

Resolution
Introduce language, such as that used in the EU EIF, stating:
“Practices distorting the definition and evolution of open standards must be addressed immediately to protect the integrity of the standardisation process.”

Issue 2: Patenting and licensing of government-developed standards

Explanation
Paragraph 6.3 of the draft policy allows the government to opt for the development of a new standard by a Government of India-identified agency in case no standard is found to meet the government's functional requirements. However, it is not clear under what terms this standard will be available.

Resolution
Introduce a paragraph 6.3.1 stating:
“Any standard developed by or on behalf of the government shall be patent-free and the specifications of such a standard will be published online and will be available to all for no cost. Along with the standard, the government shall also provide, or shall cause to be provided, a free/libre/open source reference implementation of that standard.”

Issue 3: No framework provided for review or phasing out interim standards

Explanation
Paragraph 6.2 permits the government to adopt a non-open “interim” standard (one which does not fulfil all the mandatory requirements of open standards as laid out in 5.1) if no open standard exists in the specific domain for which the standard is required. This however does not have a clause necessitating the phasing out of such an interim standard.

Resolution
A review mechanism should be provided for periodic evaluation of all standards selected by the government, especially those designated as interim standards. A new paragraph 7.1.1 could be added:
“All standards selected through the processes outlined in this policy shall undergo an annual review by the Apex Body on e-Governance Standards, and all those designated as interim standards shall be reviewed biannually.”

Issue 4: Problematic definition in the glossary

Explanation
In Appendix A, the definition of “patents” (A.12) states: “The additional qualification 'utility patents' is used in countries such as the United States to distinguish them from other types of patents but should not be confused with utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.” Many of these references are U.S.-specific and are not valid forms of patents in India (e.g. biological patents, business method patents, and software patents).

Resolution
Delete the last two sentences in A.12

We once again wish to compliment the government on developing such a strong policy on open standards, and hope that our suggestions are incorporated into the text of the final version. We further hope that the policy will be notified at the earliest, as there has already been considerable opportunity for the public and industry to comment on the draft versions of the policy.

Yours sincerely,

Pranesh Prakash
Programme Manager
Centre for Internet and Society

For more details visit https://cis-india.org/openness/publications/standards/second-response

Agreement on Procurement

pranesh — 2008-12-08T06:08:19Z

On December 6, 2008, at the closing of the third Internet Governance Forum in Hyderabad, India, the Dynamic Coalition on Open Standards (DCOS) released an agreement entitled the "Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards".

Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards

Third Internet Governance Forum (IGF)

Hyderabad, India

6 December 2008

Preamble

The Contracting Parties,

Recalling the World Summit on the Information Society (WSIS) Declaration of Principles which states that "[i]nternational standards aim to create an environment where consumers can access services worldwide regardless of underlying technology,"

Recognizing that standards are increasingly global concerns, involving goods and services that move in international trade across borders,

Aware that current competition and legal remedies may not be enough to solve the inherent tensions that routinely arise in the realm of patents and standards,

Desirous of encouraging procurement policies that require evaluation of multiple, competing products based on open ICT standards in order to ensure a level playing field for vendors, governments and consumers,

Cognizant of the need for procurement policies for software programs that are predicated upon an open standard,

Open Standards

Given the multiplicity of interpretations of the term open standards, for the purpose of this document we endorse as an acceptable definition the position contained in the European Union's draft European Interoperability Framework:

1) The open standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.).
2) The open standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.
3) The intellectual property - i.e. patents possibly present - of (parts of) the open standard is made irrevocably available on a royalty free basis.
4) There are no constraints on the re-use of the standard.

(IDABC EIF v2 draft (http://ec.europa.eu/idabc/en/document/7728))

As noted in the European Interoperability Framework cited above, open standards or technical specifications must allow all interested parties to implement the standards and to compete on quality and price. The goal is to have a competitive and innovative industry, not to protect market shares by raising obstacles to newcomers. Thus, open standards or technical specifications must be possible to implement in software distributed under the most commonly used open source licences, with no limitations arising from IPR associated with the standard in question.

In addition to the above requirements, it is recommended that there should be multiple independent implementations of the standard.

Governments, publicly funded and non-profit institutions agree to implement the following policies.

Governments, publicly funded and non-profit institutions

Hereby agree to the following measures in order to promote interoperability and accessibility through the use of open standards.

1. To create a policy statement on interoperability and open standards, to be available to employees and the public.

2. By 2010, procurement of all software should be vendor neutral and implement open standards

3. By 2010, tender specifications for hardware (including peripherals and mobile devices) should require that manufacturers provide the driver and interface information necessary to work with a reasonable range of proprietary and free operating system platforms.

4. By 2010, all public facing web pages should conform to W3C standards for structure, presentation and accessibility.

5. By 2010, tenders for the supply of web based services (for example, online reservations) must specify the requirements of point 4.

6. By 2010, agencies should implement policies regarding the storage and archiving of government data and records to ensure that data is stored in open data and document formats.

Signed by:

Aslam Raffee, Government IT Officers' Council, OSS Working Group, Republic of South Africa

Association for Progressive Communications (APC)

Bob Jolliffe, Freedom To Innovate, South Africa

Centre for Internet and Society, India

Hamid Rabiee, Sharif University of Technology, Iran

Knowledge Ecology International

Moving Republic, India

Shuttleworth Foundation, South Africa

Swathanthra Malayalam Computing, India

Endorsed by:

Bangladesh Friendship Education Society, Bangladesh

Indian Social Action Forum (INSAF), India

Foundation for Media Alternatives, Philippines

OpenForum Europe

For more details visit https://cis-india.org/openness/publications/standards/dynamic-coalition-on-open-standards-dcos-agreement-on-procurement

Open Standards

pranesh — 2010-01-11T10:52:23Z

The Centre for Internet and Society promotes Open Standards, i.e., standards that are technically and legally free to study, free to use, developed and managed in an open manner, with a complete implementation available to all. Open standards help all -- government and citizens, industry and consumers -- by allowing greater interoperability and choice (since they are necessary for free and open source software), greater competition, reduction in costs, and greater long-term reliability. As part of our work on Open Standards, we have been providing the comments to the Indian government's Draft National Policy on Open Standards for e-Governance, and have been working as a member of the Dynamic Coalition on Open Standards at the UN-sponsored Internet Governance Forum.

For more details visit https://cis-india.org/openness/publications/standards/standards

Report on Open Standards for GISW2008

pranesh — 2009-01-05T06:52:54Z

In this report, Sunil Abraham lays out the importance and the policy implications of Open Standards.

[PDF copy]

Most computer users today remain “digitally colonised” (Bhattacharya, 2008) due to our unquestioning use of proprietary standards. As users of proprietary standards we usually forget that we lose the right to access our own files the moment the licence for the associated software expires. For example, if I were to store data, information or knowledge in .doc, .xls or .ppt format, my ability to read my own files expires the moment the licence for my copy of Microsoft Office expires.

Definition

Unlike the terms “free software” or “open source software”, the term “open standard” does not have a universally accepted definition. The free and open source software (FOSS) community largely believes that an open standard is:

[S]ubject to full public assessment and use without constraints [royalty-free] in a manner equally available to all parties; without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an open standard themselves; free from legal or technical clauses that limit its utilisation by any party or in any business model; managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties; available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties (Greve, 2007).

The controversy

Proprietary software manufacturers, vendors and their lobbyists often provide a definition of open standards that is not in line with the above definition on two counts (Nah, 2006).

One, they do not think it is necessary for an open standard to be available on a royalty-free basis as long as it is available under a “reasonable and non-discriminatory” (RAND) licence. This means that there are some patents associated with the standard and the owners of the patents have agreed to license them under reasonable and non-discriminatory terms (W3C, 2002). One example is the audio format MP3, an ISO/IEC [International Organisation for Standardisation/International Electrotechnical Commission] standard where the associated patents are owned by Thomson Consumer Electronics and the Fraunhofer Society of Germany. A developer of a game with MP3 support would have to pay USD 2,500 as royalty for using the standard. While this may be reasonable in the United States (US), it is unthinkable for an entrepreneur from Bangladesh. Additionally, RAND licences are incompatible with most FOSS licensing requirements. Simon Phipps of Sun Microsystems says that FOSS “serves as the canary in the coalmine for the word ‘open’. Standards are truly open when they can be implemented without fear as free software in an open source community” (Phipps, 2007). RAND licences also retard the growth of FOSS, since they are patented in a few countries. Despite the fact that software is not patentable in most parts of the world, the makers of various distributions of GNU/Linux do not include reverse-engineered drivers, codecs, etc., in the official builds for fear of being sued. Only the large corporation-backed distributions of GNU/Linux can afford to pay the royalties needed to include patented software in the official builds (in this way enabling an enhanced out-of-the-box experience). This has the effect of slowing the adoption of GNU/Linux, as less experienced users using community-backed distributions do not have access to the wide variety of drivers and codecs that users of other operating systems do (Disposable, 2004). This vicious circle effectively ensures negligible market presence of smaller community-driven projects by artificial reduction of competition.

Two, proprietary software promoters do not believe that open standards should be “managed and further developed independently of any single vendor,” as the following examples will demonstrate. This is equally applicable to both new and existing standards.

Microsoft’s Office Open XML (OOXML) is a relatively new standard which the FOSS community sees as a redundant alternative to the existing Open Document Format (ODF). During the OOXML process, delegates were unhappy with the fact that many components were specific to Microsoft technology, amongst other issues. By the end of a fast-track process at the ISO, Microsoft stands accused of committee stuffing: that is, using its corporate social responsibility wing to coax non-governmental organisations to send form letters to national standards committees, and haranguing those who opposed OOXML. Of the twelve new national board members that joined ISO after the OOXML process started, ten voted “yes” in the first ballot (Weir, 2007). The European Commission, which has already fined Microsoft USD 2.57 billion for anti-competitive behaviour, is currently investigating the allegations of committee stuffing (Calore, 2007). Microsoft was able to use its financial muscle and monopoly to fast-track the standard and get it approved. In this way it has managed to subvert the participatory nature of a standards-setting organisation. So even though Microsoft is ostensibly giving up control of its primary file format to the ISO, it still exerts enormous influence over the future of the standard.

HTML, on the other hand, is a relatively old standard which was initially promoted by the Internet Engineering Task Force (IETF), an international community of techies. However, in 2002, seven years after the birth of HTML 2.0, the US Department of Justice alleged that Microsoft used the strategy of “embrace, extend, and extinguish” (US DoJ, 1999) in an attempt to create a monopoly among web browsers. It said that Microsoft used its dominance in the desktop operating system market to achieve dominance in the web-authoring tool and browser market by introducing proprietary extensions to the HTML standard (Festa, 2002). In other words, financial and market muscle have been employed by proprietary software companies – in these instances, Microsoft – to hijack open standards.

The importance

There are many technical, social and ethical reasons for the adoption and use of open standards. Some of the reasons that should concern governments and other organisations utilising public money – such as multilaterals, bilaterals, civil society organisations, research organisations and educational institutions – are listed below.

Innovation/competitiveness: Open standards are the bases of most technological innovations, the best example of which would be the internet itself (Raymond, 2000). The building blocks of the internet and associated services like the world wide web are based on open standards such as TCP/IP, HTTP, HTML, CSS, XML, POP3 and SMTP. Open standards create a level playing field that ensures greater competition between large and small, local and foreign, and new and old companies, resulting in innovative products and services. Instant messaging, voice over internet protocol (VoIP), wikis, blogging, file-sharing and many other applications with large-scale global adoption were invented by individuals and small and medium enterprises, and not by multinational corporations.
Greater interoperability: Open standards ensure the ubiquity of the internet experience by allowing different devices to interoperate seamlessly. It is only due to open standards that consumers are able to use products and services from competing vendors interchangeably and simultaneously in a seamless fashion, without having to learn additional skills or acquire converters. For instance, the mail standard IMAP can be used from a variety of operating systems (Mac, Linux and Windows), mail clients (Evolution, Thunderbird, Outlook Express) and web-based mail clients. Email would be a completely different experience if we were not able to use our friends’ computers, our mobile phones, or a cybercafé to check our mail.
Customer autonomy: Open standards also empower consumers and transform them into co-creators or “prosumers” (Toffler, 1980). Open standards prevent vendor lock-in by ensuring that the customer is able to shift easily from one product or service provider to another without significant efforts or costs resulting from migration.
Reduced cost: Open standards eliminate patent rents, resulting in a reduction of total cost of ownership. This helps civil society develop products and services for the poor.
Reduced obsolescence: Software companies can leverage their clients’ dependence on proprietary standards to engineer obsolescence into their products and force their clients to keep upgrading to newer versions of software. Open standards ensure that civil society, governments and others can continue to use old hardware and software, which can be quite handy for sectors that are strapped for financial resources.
Accessibility: Operating system-level accessibility infrastructure such as magnifiers, screen readers and text-to-voice engines require compliance to open standards. Open standards therefore ensure greater access by people with disabilities, the elderly, and neo-literate and illiterate users. Examples include the US government’s Section 508 standards, and the World Wide Web Consortium’s (W3C) WAI-AA standards.
Free access to the state: Open standards enable access without forcing citizens to purchase or pirate software in order to interact with the state. This is critical given the right to information and the freedom of information legislations being enacted and implemented in many countries these days.
Privacy/security: Open standards enable the citizen to examine communications between personal and state-controlled devices and networks. For example, open standards allow users to see whether data from their media player and browser history are being transmitted along to government servers when they file their tax returns. Open standards also help prevent corporate surveillance.
Data longevity and archiving: Open standards ensure that the expiry of software licences does not prevent the state from accessing its own information and data. They also ensure that knowledge that has been passed on to our generation, and the knowledge generated by our generation, is safely transmitted to all generations to come.
Media monitoring: Open standards ensure that the voluntary sector, media monitoring services and public archives can keep track of the ever-increasing supply of text, audio, video and multimedia generated by the global news, entertainment and gaming industries. In democracies, watchdogs should be permitted to reverse-engineer proprietary standards and archive critical ephemeral media in open standards.

Policy implications

Corporations have a right to sell products based on proprietary standards just as consumers have a right to choose between products that use open standards, proprietary standards, or even a combination of such standards. Governments, however, have a responsibility to use open standards, especially for interactions with the public and where the data handled has a direct impact on democratic values and quality of citizenship. In developing countries, governments have greater responsibility because most often they account for over 50% of the revenues of proprietary software vendors. Therefore, by opting for open standards, governments can correct an imbalanced market situation without needing any additional resources. Unfortunately, many governments lack the expertise to counter the campaigns of fear, uncertainty and doubt unleashed by proprietary standards lobbyists with unlimited expense accounts.

Most governments from the developing world do not participate in international standard-setting bodies. On the other hand, proprietary software lobbyists like the Business Software Alliance (BSA) and Comptia attend all national meetings on standards. This has forced many governments to shun these forums and exacerbate the situation by creating more (totally new) standards. Therefore, governments need the support of academic and civil society organisations in order to protect the interests of the citizen. For example, the Indian Institute of Technology in Kanpur (IIT-K) helped the government of India develop the open standard Smart Card Operating System for Transport Applications (SCOSTA) for smart card-based driving licences and vehicle registration documents. Proprietary vendors tried to jettison the move by saying that the standard was technically not feasible. IIT-K developed a reference implementation on FOSS to belie the vendor's claims. As a consequence, the government of India was able to increase the number of empanelled smart-card vendors from four to fifteen and reduce the price of a smart card by around USD 7 each (UNDP, 2007a). This will hopefully result in enormous savings during the implementation of a national multi-purpose identification card in India.

In some instances, proprietary standards are technically superior or more universally supported in comparison to open standards. In such cases the government may be forced to adopt proprietary and de facto standards in the short and medium term. But for long-term technical, financial and societal benefits, many governments across the world today are moving towards open standards. The most common policy instruments for implementation of open standards policy are government interoperability frameworks (GIFs). Governments that have published GIFs include the United Kingdom, Denmark, Brazil, Canada, the European Union, Malaysia, Hong Kong, Malaysia, New Zealand, and Australia (UNDP, 2007b).

While challenges to the complete adoption of open standards in the public sector and civil society remain, one thing is certain: the global march towards openness, though slow, is irreversible and inevitable.

References

Bhattacharya, J. (2008) Technology Standards: A Route to Digital Colonization. Open Source, Open Standards and Technological Sovereignty. .
Available at:
knowledge.oscc.org.my/practice-areas/‌government‌/oss-seminar-putrajaya-2008/technology-standards-a-route-to-digital/at_download/file

Calore, M. (2007) Microsoft Allegedly Bullies and Bribes to Make Office an International Standard. Wired, 31 August.
Available at: www.wired.com/software/coolapps/news/2007/08/ooxml_vote

Disposable (2004) Ubuntu multimedia HOWTO.
Available at: www.oldskoolphreak.com/tfiles/‌hack/‌ubuntu.txt

Festa, P. (2002) W3C members: Do as we say, not as we do. CNET News, 5 September.
Available at: news.cnet.com/2100-1023-956778.html

Greve, G. (2007) An emerging understanding of open standards.
.
Available at: www.fsfe.org/‌fellows‌/greve/freedom_bits/an_emerging_understanding_of_open_standards

Nah, S.H. (2006) FOSS Open Standards Primer. New Delhi: UNDP-APDIP.
Available at: www.iosn.net/open-standards/foss-open-standards-primer/foss-openstds-withnocover.pdf

Phipps, S. (2007) Roman Canaries..
Available at: blogs.sun.com/webmink/entry/‌roman_canaries‌

Raymond, E.S. (2000) The Magic Cauldron.
Available at: www.catb.org/~esr/writings/‌cathedral-‌bazaar/‌magic-‌cauldron/‌index.html

Toffler, A. (1980) The Third Wave. New York: Bantam.

UNDP (United Nations Development Programme) (2007a) e-Government Interoperability: A Review of Government Interoperability Frameworks in Selected Countries.
Available at: www.apdip.net/projects/gif/gifeprimer

UNDP (2007b) e-Government Interoperability: Guide.
Available at: www.apdip.net/projects/gif/GIF-Guide.pdf

US DoJ (Department of Justice) (1999) Proposed Findings of Fact – Revised.
Available at: www.usdoj.gov/‌atr/‌cases/‌f2600/v-a.pdf

W3C (World Wide Web Consortium) (2002) Current patent practice.
Available at: www.w3.org/TR/patent-practice#def-RAND

Weir, R. (2007) How to hack ISO.
Available at: www.robweir.com/blog/2007/09/how-to-hack-iso.html

For more details visit https://cis-india.org/openness/publications/standards/report-on-open-standards-for-gisw2008

National Public Meeting on Software Patents

pranesh — 2011-04-05T04:45:10Z

This meeting will feature the following speakers: Nagarjuna G. (Free Software Foundation of India), Prabir Purkayastha (Delhi Science Forum), Prashant Iyengar (Alternative Law Forum), Venkatesh Hariharan (Red Hat) and Sudhir Krishnaswamy (National Law School)

Agenda

1000–1100	Presentation on the principles of patent law and software patents	Sudhir Krishnaswamy (National Law School)
		Prabir Purkayastha (Delhi Science Forum)
		Nagarjuna G. (Free Software Foundation of India)
1100–1130	Discussion on software patents in the Indian context: Indian Patent Act, and the draft patent manual	Prashant Iyengar (Alternative Law Forum)
		Venkatesh Hariharan (Red Hat)
1130–1150	Tea break
1150–1240	Discussion on patents and the development sector (freedom of speech, open standards, healthcare, biotech, agro-sector, etc.)	Sunil Abraham (Centre for Internet and Society)
		Anivar Aravind (Movingrepublic)
		Others
1240–1300	Presentation on the software patents that have been granted so far in India	Pranesh Prakash (Centre for Internet and Society)
1300–1400	Lunch break
1400–1700	Open House	Joseph Mathew (IT Adviser to the Chief Minister of Kerala)
		T. Ramakrishna (National Law School)
		Abhas Abhinav (DeepRoot Linux)
		Sreekanth S. Rameshaiah (Mahiti Infotech)
		Vinay Sreenivasa (IT for Change)
		Any others who wish to speak

Documents

Other information

For more details visit https://cis-india.org/openness/publications/software-patents/national-public-meeting-on-software-patents

Response of Free Software Foundation of India

pranesh — 2008-09-21T14:40:57Z

The FSFI's draft response to the Patent Office

This is with reference to the Draft Patents Manual on which your office has invited comments. On behalf of Free Software Foundation of India (http://www.gnu.org.in/) I hereby submit our response and comments pertaining to the relevant sections that refer to computer programs.

Computer programs (software) is not patentable as per the Clause 3(k) of the Indian Patent Act. This point is clearly stated in the manual. However, the section 4 of the Draft Manual makes an attempt to inform the inventors and potential Patent applicants that while software per se is not patentable, software in combination with hardware can be patented. The draft appears to make a room for this possibility. This is important to recollect that an amendment to this effect was suggested in the Presidential Ordinance tabled in the parliament in December 2005, and the house rejected this amendment. Therefore, what the policy of the land rejected cannot be enabled through instructions in a manual, subverting the legal framework already laid. In what follows we demonstrate how the draft manual is enabling this possibility.

4.11.2 does not preclude a computer program embedded in a ROM as what constitutes a computer program. According to 4.11.2 a computer program "may be expressed in various forms e.g., a series of verbal statements, a flowchart, an algorithm, or other coded form and maybe presented in a form suitable for direct entry into a particular computer, or may require transcription into a different format (computer language). It may merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it maybe permanently recorded in a control store forming part of a computer. " (4.11.2)

It is very important to state that computer program can be encoded in various kinds of digital media including those that are invented as well as those that may in future be invented. E.g. ROM, EPROM or BIOS are also embedded memories where computer programs can be embedded. Mere inclusion of data or computer programs in such chips on the board are also not patentable. Such chips are often present on the board of a digital device should therefore be explicitly mentioned in the manual as one of the forms in which a computer programs can be encoded and hence excluded from patentable invention.

Since such a statement is absent in the draft manual, we suggest, it must be explicitly included in 4.11.2. A sample statement that we propose can be as follows:

A computer program may be encoded or stored in the form of an electronic chip or read only memory (ROM) or in component that can be embedded as a part of an electronic circuit. Since this is a mere extension of a recordable surface of code over which any digitized data can be stored including a computer program, mere inclusion of a software or data in such electronic chip or ROM will not be considered as a hardware innovation, therefore not allowed.

4.11.3 again indicates that "The source/pseudo/object codes may be incorporated in the description optionally." When the law clearly states that source code (a computer program), pseudo code (an algorithm) or not patentable, how can an invention be described in that form. 4.11.3 should be removed completely since hardware or process patents are not covered under 3(k). This point opens up a room for patenting software in combination with hardware or process patents. This should be forbidden, unless the law says that software can be patented in combination with hardware and processes. Since the law does not say so, this makes no sense to tell an inventor to provide code.

4.11.4 is a clarification on what constitutes a prior art, which done elsewhere in the document. Specifically mentioning this under this section gives a clear indication that it is about patenting hardware. But, the objective of the section is not to clarify what is patentable. Hardware inventions are already covered under technical inventions and do not need a separate mention under the chapter whose objective is to tell what is not patentable.

4.11.5 mentions that there can be three kinds of computer inventions. Once computer programs are separated out, what remains in the computer is innovations pertaining to electronics and communication. Therefore, talking about them in this context only opens up a room for people to think that patenting software in combination with hardware is possible. First: method or procedure in the context of a computer is nothing but a program which is not patentable. Second: inventing an apparatus or a system is patentable and therefore should not be included in this section. Including in this section only helps inventors to interpret that apparatus or a system in combination with software is patentable.

The following statement from 4.11.6 clearly brings out what the draft manual is trying to achieve: "Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the "software per se" is differentiated from the software having its technical application in the industry is about "technical applicability of the software claimed as a method or a process claim."

This is an attempt to explain what can be the meaning of "per se" in the clause 3(k). It relegates software to be a mere expression, for an expression does not have any technical application, except that a human interpreter trained in coding can read and understand. Therefore, what this draft is informing the community is clear. Since, all software can have technical application, so when we file for patents we have spell out the intended application of the software, and there is a novelty in applying the software patents can be granted. So, here the innovation is to think of a novel application even if the software per se is not novel. This is where the absurdity of the elaboration comes from.

The implication is that if a software, let us say an email client, in combination with a special gadget, say some USB pendrive, which in turn can be combined with say a bluetooth communication device, etc., can be claimed for a patent since no such innovation is a prior art. This is absurd, since here each of the three are performing independently of each other and mere combination is not an innovation. This is a mere exploration of making what is possible. One may say that the output of one device becomes an input for the other device. The innovation consists in linking these two devices as one. But this idea of linking input output devices is known art as old as human culture.

This way the domain of patentable art increases by several folds. We understand that the wealth of Patent's office enhances as well as a section of the industry due to this. This should not be the objective of the patent's office. The office should on hte other hand exclude such mere combinations as an art of the possible and clearly state in this section that such a combination art is not patentable. This will encourage more innovators so that very large smaller workshops across the country belonging to small and medium scale industries and young entrepreneurs can perform these combinations and come up with innovations without becoming a victim of the big patent hungry corporations.

The other danger is that big corporations will hire people explore all the logical possibilities of these combinations and claim patents on all of them. This should be prevented, if the patent office is really interested in encouraging a large number of individuals to enjoy the benefits of science and technology. If people at large do not participate in such combination art, science and technology will not percolate to people at large. People should have the right to implement ideas, and should not be living in a world where there will always be threat that some company will kill him for their innovations.

Another major problem of this section consists in relegating software per se has no technical use just because it has not been combined with any device so far.

The terms "software claimed as a process" and "software claimed as a method", (Cf. 4.11.5 and 4.11.6) are not clearly defined in the law. Therefore such terms cannot be brought in the manual. 4.11.9 is a very serious threat to a innovating society. A draft manual has no right to bring in such a blatant back door entry of a rejected statement by the house of the country. This kind of amendment was attempted in 2005 through a presidential ordinance, and Parliament rejected it. The patent's office has no right to bring it back without first making an amendment.

FSF India, as well as the whole world reacted strongly to this amendment. Since the draft manual makes an attempt to reintroduce this possibility by explicitly stating that software in combination with hardware (embedded systems) (Cf.4.11.9) is patentable, it is important to reiterate the arguments, which are as follows:

Any software can be embedded into a hardware by using either flash or ROM or some some rule set embedded in the circuit. E.g., a large number of mathematical, graphic and audio manipulations which were at one time performed by software are all currently available as embedded solutions within the integrated boards. Each such integration should not be considered patentable.

All hardware that does symbolic manipulations can also be simulated in a software. E.g., if a computer does not have a direct 3D rendering as a part of a VGA card, such computer can perform 3D rendering by using a software library.

This clearly indicates that the entire domain of symbolic and datamanipulation must be kept completely out of the domain of patentability. That is clearly the wisdom of 3(k) where all the innovations that happen in the domain of mathematics, algorithms, computer programs are kept out of the domain of patentability.

The most important ontological issue here is that there does not exist any software that can be made to work independently of any hardware. Some active media, either hardware or wetware (a living human or intelligent being), is required for performing the symbolic manipulation (executing instructions). Therefore, all software--since all software works only in combination with some hardware--is patentable.

Allowing software in combination with hardware multiplies the domain of what is patentable by several folds. The demonstration of this very simple. Software A in combination with hardware A, hardware B, hardware C etc. are all independently patentable for each of the combination is an innovation. The popular demand from the big industry players who wanted this kind of amendment all over the world is therefore clear. What they want is to increase somehow the domain of patentable innovations, so that they can continue to twist the arms of small time innovators.

We therefore request that these sections that explicitly encourage innovators to claim "software in combination with hardware" be not only be removed, but explicitly inform the community that they are not patentable. This will encourage innovators to work out the art of the possible and a healthy competitive world will result in this domain since no fear exists among the innovators and even small time innovators could venture. The objective of the patent's office should be not to enhance the domain of patentability, but to limit, since in this case it is very clear that such a provision restricts the participation of community at large to participate in the innovation.

In this section 4.11, which is a guide to 3(k), it should be clearly mentioned that "A mathematical or business method or a computer programme per se or algorithms are not patentable" because as such such methods are already protected under the copyright act. Therefore the desirable interpretation of 3(k) should be, computer programs per se are not allowed under patents act and are only allowed under copyright since a computer program per se is nothing but an expression, and expressions are protected under copyright and expressions are not innovations and so not patentable.

Combining an expression (mathematical or computer programs or algorithms) with different variety of hardware is an art of the possible and therefore such a combination art is not considered an innovation. All industries small or big should be encouraged to participate in combining them innovately without any fear of stepping on a land mine.

Free(dom) software (popularly known as free and open source software coming out from GNU, Gnome, KDE, Apache, Mozilla, freeBSD, RedHat, Ubuntu, and such projects) is increasingly getting embedded in several embedded (hardware) devices and their usage is increasing by several folds every day. Our community is concerned about the recurring enthusiasm our Patent's office has in finding a way to make software related innovations and bring them to allowable category. On behalf of FSF India, a representative of a global community of free software community, requests the office to redo the elaborations of 3(k). FSF India can enthusiastically help in re-drafting this portion if the office gives us a chance. As an important stakeholder of a very large free software community globally, neglecting our serious objections will not help the industry and community at large to take the full benifit of free software.

Considering that the ICT revolution took place without allowing software patents, there is no need for expanding the domain of patentable innovations.

Even if other countries made such provisions, India as world's largest democracy should not create an atmosphere of anti-innovation. As a country with large human resource, we have a bigger challenge of harnessing more creativity among the country, and that will happen by bringing each and every citizen under creative participation and not by bringing each and every thing under allowable patents category. India should lead the rest of the world by clearly stating in the manual that computer programs are not patentable in India by any other way and are per se protected only under copyright.

The practical advantage of not allowing software patents in India will enable Indians to work with those ideas that are otherwise patented elsewhere.

For more details visit https://cis-india.org/openness/publications/software-patents/response-of-free-software-foundation-of-india