Centre for Internet and Society

A billion mobile users: new startup profiles and innovation insights from Mobile India 2016

praskrishna — 2016-01-17T15:13:42Z

The annual Mobile India conference, for which YourStory was the media partner, wrapped up recently in Bengaluru with a startup showcase and a wide range of insights on mobile innovation in India.

The blog post by Sneha Maselkar and Madanmohan Rao was first published in Your Story on January 14, 2016. Sunil Abraham was quoted.

Chaired by professors V. Sridhar of IIIT Bangalore and D. Manjunath of IIT Bombay, the event’s theme was ‘The App Economy.’ (See YourStory coverage of the earlier editions of this conference: 2015, 2014 and 2013).

Mobile innovators

New products were presented by innovators like Pravin Bhagwat, Founder and Chief Technology Officer, AirTight Networks. The company is creating an app store based on ‘social WiFi,’ riding on Google+ and Facebook. A number of interesting startups like IoTM2MSolutions were also at the event. Founded by Ismail Zabihullahh in 2009, the 15-member team has a range of offerings in home automation, RFID biometrics, street lighting and smart parking solutions.

Inaccel is a med-tech accelerator founded in 2014 by Siraj Dhanani, Vijayarajan and Dr. Jagish Chaturvedi. It address the needs, resource and skill gaps, and price-sensitivity of clinical markets, and helps startups conceptualise, design, engineer, and achieve regulatory certification. Its portfolio picks companies with a five-year horizon, in exchange for equity stakes.

Dataglen was formed in 2014 by Deva P. Seetharam, Tanuja Ganu, Sunil Ghai and Rajesh Kunnath. It provides Internet of Things (IoT) data collection and management services, and provides an API for users to develop applications on a variety of computing platforms. The startup charges for data management services based on the volume of transactions and for any required customisation services.

Czar Securities was founded in August 2013 by Shikhil Sharma and Ananda Krishna. Two employees Deepankar Tyagi and Nakul Gulati joined in quick succession. The cyber security solutions company secures corporate IT infrastructure from cyber attacks. Offerings include ASTRA, an intrusion prevention system, as well as penetration testing and security audit services.

Infilect was founded in April 2015 by Vijay Gabale and Anand Prabhu Subramanian. They are building an AI-enabled personalised fashion shopping assistant. The product, Photolect, helps in discovery, search and personalisation for online shoppers by parsing of photos. The product is in beta-test mode with several fashion experts evaluating its features.

Sattva Medtech was founded in 2014 by Vibhav Joshi and Sumedh Kaulgud. They are developing a next-generation fetal health monitoring device which leverages advanced sensors and algorithms. This device, called the Sattva Fetal Lite, has been designed and engineered for use in India and other low-and-mid-income countries; the team has raised an undisclosed amount in seed funding from InnAccel.

Coeo Labs was founded in October 2014 by Nitesh Kumar Jangir and Nachiket Deval. It is a medical device company, developing products in the field of emergency and critical care. Offerings include a device to reduce chances of acquiring ventilator-associated pneumonia (VAP), and a mechanical CPAP machine (mCPAP) for transport of neonates with troubled breathing, from a resource-constrained setting to a neonatal ICU.

IoT scenarios

Over a dozen experts from India and the US discussed the latest mobile trends in a day of packed panel sessions and keynotes. Interface design, usable security and systems integration are key success factors for IoT, according to Henning Schulzrinne, Professor at Columbia University, and CTO, United States Federal Communications Commission. Consumer and industrial IoT scenarios differ with respect to predictability, redundancy, energy consumption and interoperability.

He pointed out categories and uses cases of high IoT impacts: automation of manual data extraction (metering), remote maintenance (vending machines), extraction of additional information (thermostats) and software-defined mechanics (locks, switches).

“IoT networks won’t operate just on mobile carriers, but also on other networks such as Zigbee and Bluetooth,” Henning explained. The Internet itself will be transformed by IoT. “Protocols matter, programmability matters more,” he added. The Internet is becoming more than the Internet protocol; plug-and-play is becoming augmented by plug-and-programme in the IoT world.

The ‘DNA’ of apps

The proliferation of apps can lead to the rise of localised app stores in local languages, said Chinnu Senthilkumar, CTO, Exfinity Ventures, pointing to Korea as an example in this regard. “Many apps are local. How well do you know the digital literacy of your neighbourhood users,” he asked.

Most apps in India are of the ‘me-too’ type; developers need to incorporate better user experience (UX) and bring in more cross-disciplinary experience (see earlier insights from the UX India 2015 conference and NASSCOM NPC 2015). “Security is still an afterthought in app development,” cautioned Chinnu.

“You need to figure out the DNA of the mobile experience: Device, Network, App,” explained Amar Nagaram, Director, Mobile Engineering, Flipkart. The e-commerce giant classifies devices into four broad categories, and its app design factors in the app size, data stored on the device, and computational power of the device.

Battery requirements of the device and packet drop rates on mobile networks are major constraints on app performance in India. Online shopping lets users interact with catalogues as well as product experts.

“I had to unlearn a lot of things from the Internet world which may not apply in a similar manner to the app world. For example, not all older versions of apps need to be supported,” explained Amar.

“Ask yourself, what does your app do for consumers?” advised Pradeep Nair, Co-Founder and CEO, Confianzys. Developers should be looking not at product-market fit, but market-product fit. “Industries die because of their myopia; they focus on past products and not future consumer needs,” he said, urging developers to track-long term megatrends as well.

Telcos’ role in the App Economy

The telecommunications world is changing rapidly due to trends like IoT, new breeds of apps, video boom and Big Data, observed Ishwardutt Parulkar, Cisco Distinguished Engineer. Telcos are struggling to get new drivers for existing services, new revenue sources, and new sources of consumer loyalty.

“Telcos need to provide APIs to developers for embedding telco services and network analytics data. Telcos can also play a bigger role in mobile advertising, for example network-wide ad blocking, as in the case of Jamaica,” advised Ishwardutt. Telcos can exploit synergy with cloud services, and resell SaaS products bundled with telco products.

“We are witnessing major waves of disruptive innovation today: the rise from oblivion to the top is rapid – and so is the fall from the top,” said SR Raja, Associate Vice President, Persistent Systems. Many incumbents tend to suffer from ignorance, inertia, and the inability to do little more than tweak or tinker with existing offerings.

There is a Moore’s Law variant for all architecture components, including programming languages. Hence, telcos need to master new business models blending product and service, advised Raja. “Even regulated industries can be disrupted from outside – look at Uber and Tesla. Will telcos experiment with surge pricing like Uber, or become IoT solutions systems integrators,” he asked. For example, operator O2 has used mobile identity to launch its own messaging OTT app, and Vodafone is getting into IoT services.

Operators and Net Neutrality

The Mobile India conference took place with the backdrop of a heated battle over Net Neutrality between Facebook’s Free Basics and Internet activists from India, which has received a lot of media coverage in India and overseas.

This calls for the digital media community and entrepreneur ecosystem to pay attention to complex but important issues such as Internet governance. “The next billion users in India may be very different from the current billion, in terms of geography, language and access device,” observed Samiran Gupta, Head-India, Internet Corporation for Assigned Names and Numbers (ICANN).

ICANN’s objective is to maintain inter-operability of the Internet, and there is a unique opportunity for emerging economies to play a stronger role in Internet governance, in issues such as local languages and scripts.

Regulation and digital innovation

Regulators have major challenges ahead in juggling the needs of multiple stakeholders and demands for different slices of spectrum. “There are 43 different kinds of radio-communication services competing for spectrum,” said Pavan Garg, Former Wireless Adviser, GoI, and former Member, Radio Regulations Board, ITU, Geneva.

Regulators need to become much more savvy on the kind of collusions possible between industry heavyweights, according to Sunil Abraham, Executive Director, Centre for Internet and Society.

If India gets its IP regime correct, the local language content economy can be boosted, in addition to other civic benefits. For example, giving anonymised data access to independent researchers has helped LIRNEasia come up with better transportation design in Sri Lanka.

The discussion covered a wide range of interesting possibilities. In the EU, it is mandated that all mobile phones be able to display all European languages. Can India do the same for local languages? Will regulation promote support for Indic language technology on mobiles, or should this be left purely to the market? Organisations such as the Telecommunications Standards Development Society, India (TSDSI) is working on Indian language standards in ICTs.

The app economy can indeed be accelerated with proactive government intervention, said Parnil Urdhwareshe, Research Assistant at ICRIER and co-author of a report on ‘Impact of India’s App Economy.’ India’s app ecosystem could be worth Rs 2,000 crore in 2016; it created about 75,000 direct jobs in 2015, according to the report.

The government can pass regulations on apps covering privacy, Net Neutrality and safety, eg. SoS buttons, medical apps. The UK government has drawn up a range of app guidelines covering issues such as in-app purchases.

“Design in India is more important than Make In India,” said Vipin Tyagi, Executive Director, C-DOT, drawing attention to issues of participatory design and citizen-centric services rather than only one-way top-down initiatives from government and large industry players.

The road ahead

Broadband penetration in India is only 10 per cent. By 2018, video will be 62 per cent of India’s mobile data traffic, and there will be 526 million Internet users, according to Anil Kaushal, Member, Telecom Regulatory Authority of India (TRAI).

The government’s BharatNet initiative aims to connect 2,50,000 Gram Panchayats across the country. TRAI has given recommendations for Virtual Network Operators, wherein niche players can offer Smart City services.

In addition to regulators, operators and developers, success of the app economy also rests on responsible user behaviour, said Deepak Maheshwari, Head-Government Affairs, Symantec. “Be more active with respect to data encryption on your device. Use multi-factor authentication,” he advised.

Seventy per cent of India’s population lives in villages; digital innovation will help bring education and healthcare to them, said Vimal Wakhlu, Chairman & Managing Director, TCIL. There are also global extensions and markets for Indian innovations, such as the Pan-African E-Network targeted at 53 countries. There are major uses of ICTs across India, such as monitoring the cleaning of the Ganges as well as water gate management in Gujarat, Vimal added.

“India needs to mandate telecom infrastructure in real estate development and town planning. Digital media will change the way we learn and earn,” said T.R. Dua, Director General, Tower and Infrastructure Providers Association (TAIPA) India, and Co-Chair ITU APT Foundation of India.

For more details visit https://cis-india.org/telecom/news/yourstory-sneha-maselkar-and-madanmohan-rao-january-14-2016-a-billion-mobile-users

Transparency in Surveillance

vipul — 2016-01-23T15:11:18Z

Transparency is an essential need for any democracy to function effectively. It may not be the only requirement for the effective functioning of a democracy, but it is one of the most important principles which need to be adhered to in a democratic state.

Introduction

A democracy involves the state machinery being accountable to the citizens that it is supposed to serve, and for the citizens to be able to hold their state machinery accountable, they need accurate and adequate information regarding the activities of those that seek to govern them. However, in modern democracies it is often seen that those in governance often try to circumvent legal requirements of transparency and only pay lip service to this principle, while keeping their own functioning as opaque as possible.

This tendency to not give adequate information is very evident in the departments of the government which are concerned with surveillance, and merit can be found in the argument that all of the government's clandestine surveillance activities cannot be transparent otherwise they will cease to be "clandestine" and hence will be rendered ineffective. However, this argument is often misused as a shield by the government agencies to block the disclosure of all types of information about their activities, some of which may be essential to determine whether the current surveillance regime is working in an effective, ethical, and legal manner or not. It is this exploitation of the argument, which is often couched in the language of or coupled with concerns of national security, that this paper seeks to address while voicing the need for greater transparency in surveillance activities and structures.

In the first section the paper examines the need for transparency, and specifically deals with the requirement for transparency in surveillance. In the next part, the paper discusses the regulations governing telecom surveillance in India. The final part of the paper discusses possible steps that may be taken by the government in order to increase transparency in telecom surveillance while keeping in mind that the disclosure of such information should not make future surveillance ineffective.

Need for Transparency

In today's age where technology is all pervasive, the term "surveillance" has developed slightly sinister overtones, especially in the backdrop of the Edward Snowden fiasco. Indeed, there have been several independent scandals involving mass surveillance of people in general as well as illegal surveillance of specific individuals. The fear that the term surveillance now invokes, especially amongst those social and political activists who seek to challenge the status quo, is in part due to the secrecy surrounding the entire surveillance regime. Leaving aside what surveillance is carried out, upon whom, and when - the state actors are seldom willing and open to talk about how surveillance is carried out, how decisions regarding who and how to target, are reached, how agency budgets are allocated and spent, how effective surveillance actions were, etc. While there may be justified security based arguments to not disclose the full extent of the state's surveillance activities, however this cloak of secrecy may be used illegally and in an unauthorized manner to achieve ends more harmful to citizen rights than the maintenance of security and order in the society.

Surveillance and interception/collection of communications data can take place under different legal processes in different countries, ranging from court-ordered requests of specified data from telecommunications companies to broad executive requests sent under regimes or regulatory frameworks requiring the disclosure of information by telecom companies on a pro-active basis. However, it is an open secret that data collection often takes place without due process or under non-legal circumstances.

It is widely believed that transparency is a critical step towards the creation of mechanisms for increased accountability through which law enforcement and government agencies access communications data. It is the first step in the process of starting discussions and an informed public debate regarding how the state undertakes activities of surveillance, monitoring and interception of communications and data. Since 2010, a large number of ICT companies have begun to publish transparency reports on the extent that governments request their user data as well as requirements to remove content. However, governments themselves have not been very forthcoming in providing such detailed information on surveillance programs which is necessary for an informed debate on this issue.[1] Although some countries currently report limited information on their surveillance activities, e.g. the U.S. Department of Justice publishes an annual Wiretap Report (U.S. Courts, 2013a), and the United Kingdom publishes the Interception of Communications Commissioner Annual Report (May, 2013), which themselves do not present a complete picture, however even such limited measures are unheard of in a country such as India.

It is obvious that Governments can provide a greater level of transparency regarding the limits in place on the freedom of expression and privacy than transparency reports by individual companies. Company transparency reports can only illuminate the extent to which any one company receives requests and how that company responds to them. By contrast, government transparency reports can provide a much greater perspective on laws that can potentially restrict the freedom of expression or impact privacy by illustrating the full extent to which requests are made across the ICT industry. [2]

In India, the courts and the laws have traditionally recognized the need for transparency and derive it from the fundamental right to freedom of speech and expression guaranteed in our Constitution. This need coupled with a sustained campaign by various organizations finally fructified into the passage of the Right to Information Act, 2005, (RTI Act) which amongst other things also places an obligation on the sate to place its documents and records online so that the same may be freely available to the public. In light of this law guaranteeing the right to information, the citizens of India have the fundamental right to know what the Government is doing in their name. The free flow of information and ideas informs political growth and the freedom of speech and expression is the lifeblood of a healthy democracy, it acts as a safety valve. People are more ready to accept the decisions that go against them if they can in principle seem to influence them. The Supreme Court of India is of the view that the imparting of information about the working of the government on the one hand and its decision affecting the domestic and international trade and other activities on the other is necessary, and has imposed an obligation upon the authorities to disclose information.[3]

The Supreme Court, in Namit Sharma v. Union of India,[4] while discussing the importance of transparency and the right to information has held:

"The Right to Information was harnessed as a tool for promoting development; strengthening the democratic governance and effective delivery of socio-economic services. Acquisition of information and knowledge and its application have intense and pervasive impact on the process of taking informed decision, resulting in overall productivity gains .

……..

Government procedures and regulations shrouded in the veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning the officers handling their cases because of the latters snobbish attitude. Right to information should be guaranteed and needs to be given real substance. In this regard, the Government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded."

Although these statements were made in the context of the RTI Act the principle which they try to illustrate can be understood as equally applicable to the field of state sponsored surveillance. Though Indian intelligence agencies are exempt from the RTI Act, it can be used to provide limited insight into the scope of governmental surveillance. This was demonstrated by the Software Freedom Law Centre, who discovered via RTI requests that approximately 7,500 - 9,000 interception orders are sent on a monthly basis.[5]

While it is true that transparency alone will not be able to eliminate the barriers to freedom of expression or harm to privacy resulting from overly broad surveillance,, transparency provides a window into the scope of current practices and additional measures are needed such as oversight and mechanisms for redress in cases of unlawful surveillance. Transparency offers a necessary first step, a foundation on which to examine current practices and contribute to a debate on human security and freedom.[6]

It is no secret that the current framework of surveillance in India is rife with malpractices of mass surveillance and instances of illegal surveillance. There have been a number of instances of illegal and/or unathorised surveillance in the past, the most scandalous and thus most well known is the incident where a woman IAS officer was placed under surveillance at the behest of Mr. Amit Shah who is currently the president of the ruling party in India purportedly on the instructions of the current prime minister Mr. Narendra Modi.[7] There are also a number of instances of private individuals indulging in illegal interception and surveillance; in the year 2005, it was reported that Anurag Singh, a private detective, along with some associates, intercepted the telephonic conversations of former Samajwadi Party leader Amar Singh. They allegedly contacted political leaders and media houses for selling the tapped telephonic conversation records. The interception was allegedly carried out by stealing the genuine government letters and forging and fabricating them to obtain permission to tap Amar Singh's telephonic conversations. [8] The same individual was also implicated for tapping the telephone of the current finance minister Mr. Arun Jaitely.[9]

It is therefore obvious that the status quo with regard to the surveillance mechanism in India needs to change, but this change has to be brought about in a manner so as to make state surveillance more accountable without compromising its effectiveness and addressing legitimate security concerns. Such changes cannot be brought about without an informed debate involving all stakeholders and actors associated with surveillance, however the basic minimum requirement for an "informed" debate is accurate and sufficient information about the subject matter of the debate. This information is severely lacking in the public domain when it comes to state surveillance activities - with most data points about state surveillance coming from news items or leaked information. Unless the state becomes more transparent and gives information about its surveillance activities and processes, an informed debate to challenge and strengthen the status quo for the betterment of all parties cannot be started.

Current State of Affairs

Surveillance laws in India are extremely varied and have been in existence since the colonial times, remnants of which are still being utilized by the various State Police forces. However in this age of technology the most important tools for surveillance exist in the digital space and it is for this reason that this paper shall focus on an analysis of surveillance through interception of telecommunications traffic, whether by tracking voice calls or data. The interception of telecommunications actually takes place under two different statutes, the Telegraph Act, 1885 (which deals with interception of calls) as well as the Information Technology Act, 2000 (which deals with interception of data).

Currently, the telecom surveillance is done as per the procedure prescribed in the Rules under the relevant sections of the two statutes mentioned above, viz. Rule 419A of the Telegraph Rules, 1951 for surveillance under the Telegraph Act, 1885 and the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 for surveillance under the Information Technology Act, 2000. These Rules put in place various checks and balances and try to ensure that there is a paper trail for every interception request. [10] The assumption is that the generation of a paper trail would reduce the number of unauthorized interception orders thus ensuring that the powers of interception are not misused. However, even though these checks and balances exist on paper as provided in the laws, there is not enough information in the public domain regarding the entire mechanism of interception for anyone to make a judgment on whether the system is working or not.

As mentioned earlier, currently the only sources of information on interception that are available in the public domain are through news reports and a handful of RTI requests which have been filed by various activists.[11] The only other institutionalized source of information on surveillance in India is the various transparency reports brought out by companies such as Google, Yahoo, Facebook, etc.

Indeed, Google was the first major corporation to publish a transparency report in 2010 and has been updating its report ever since. The latest data that is available for Google is for the period between January, 2015 to June, 2015 and in that period Google and Youtube together received 3,087 requests for data which asked for information on 4,829 user accounts from the Indian Government. Out of these requests Google only supplied information for 44% of the requests.[12] Although Google claims that they "review each request to make sure that it complies with both the spirit and the letter of the law, and we may refuse to produce information or try to narrow the request in some cases", it is not clear why Google rejected 56% of the requests. It may also be noted that the number of requests for information that Google received from India were the fifth highest amongst all the other countries on which information was given in the Transparency Report, after USA, Germany, France and the U.K.

Facebook's transparency report for the period between January, 2015 to June, 2015 reveals that Facebook received 5,115 requests from the Indian Government for 6,268 user accounts, out of which Facebook produced data in 45.32% of the cases.[13] Facebook's transparency report claims that they respond to requests relating to criminal cases and "Each and every request we receive is checked for legal sufficiency and we reject or require greater specificity on requests that are overly broad or vague." However, even in Facebook's transparency report it is unclear why 55.68% of the requests were rejected.

The Yahoo transparency report also gives data from the period between January 1, 2015 to June 30, 2015 and reveals that Yahoo received 831 requests for data, which related to 1,184 user accounts from the Indian Government. The Yahoo report is a little more detailed and also reveals that 360 of the 831 requests were rejected by Yahoo, however no details are given as to why the requests were rejected. The report also specifies that in 63 cases, no data was found by Yahoo, in 249 cases only non content data[14] was disclosed while in 159 cases content [15] was disclosed. The Yahoo report also claims that "We carefully scrutinize each request to make sure that it complies with the law, and we push back on those requests that don't satisfy our rigorous standards."

While the Vodafone Transparency Report gives information regarding government requests for data in other jurisdictions, [16] it does not give any information on government requests in India. This is because Vodafone interprets the provisions contained in Rule 25(4) of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (Interception Rules) and Rule 11 of the IT (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 as well as Rule 419A(19) of the Indian Telegraph Rules, 1954 which require service providers to maintain confidentiality/secrecy in matters relating to interception, as being a legal prohibition on Vodafone to reveal such information.

Apart from the four major companies discussed above, there are a large number of private corporations which have published transparency reports in order to acquire a sense of trustworthiness amongst their customers. Infact, the Ranking Digital Rights Project has been involved in ranking some of the biggest companies in the world on their commitment to accountability and has brought out the Ranking Digital Rights 2015 Corporate Accountability Index that has analysed a representative group of 16 companies "that collectively hold the power to shape the digital lives of billions of people across the globe".

Suggestions on Transparency

It is clear from the discussions above, as well as a general overview of various news reports on the subject, that telecom surveillance in India is shrouded in secrecy and it appears that a large amount of illegal and unauthorized surveillance is taking place behind the protection of this veil of secrecy. If the status quo continues, then it is unlikely that any meaningful reforms would take place to bring about greater accountability in the area of telecom surveillance. It is imperative, for any sort of changes towards greater accountability to take place, that we have enough information about what exactly is happening and for that we need greater transparency since transparency is the first step towards greater accountability.

Transparency Reports

In very simplistic terms transparency, in anything, can best be achieved by providing as much information about that thing as possible so that there are no secrets left. However, it would be naïve to say that all information about interception activities can be made public on the altar of the principle of transparency, but that does not mean that there should be no information at all on interception. One of the internationally accepted methods of bringing about transparency in interception mechanisms, which is increasingly being adopted by both the private sector as well as governments, is to publish Transparency Reports giving various details of interception while keeping security concerns in mind. The two types of transparency reports that we require in India and what that would entail is briefly discussed below:

By the Government

The problem with India's current regime for interception is that the entire mechanism appears more or less adequate on paper with enough checks and balances involved in it to prevent misuse of the allotted powers. However, because the entire process is veiled in secrecy, nobody knows exactly how good or how rotten the system has become and whether it is working to achieve its intended purposes. It is clear that the current system of interception and surveillance being followed by the government has some flaws, as can be gathered from the frequent news articles which talk about incidents of illegal surveillance. However, without any other official or more reliable sources of information regarding surveillance activities these anecdotal pieces of evidence are all we have to shape the debate regarding surveillance in India. It is only logical then that the debate around surveillance, which is informed by such sketchy and unreliable news reports will automatically be biased against the current mechanism since the newspapers would also only be interested in reporting the scandalous and the extraordinary incidents. For example, some argue that the government undertakes mass surveillance, while others argue that India only carries out targeted surveillance, but there is not enough information publicly available for a third party to support or argue against either claim. It is therefore necessary and highly recommended that the government start releasing a transparency report such as the one's brought out by the United States and the UK as mentioned above.

There is no need for a separate department or authority just to make the transparency report and this task could probably be performed in-house by any department, but considering the sector involved, it would perhaps be best if the Department of Telecommunications is given the responsibility to bring out a transparency report. These transparency reports should contain certain minimum amount of data for them to be an effective tool in informing the public discourse and debate regarding surveillance and interception. The report needs to strike a balance between providing enough information so that an informed analysis can be made of the effectiveness of the surveillance regime without providing so much information so as to make the surveillance activities ineffective. Below is a list of suggestions as to what kind of data/information such reports should contain:

Reports should contain data regarding the number of interception orders that have been passed. This statistic would be extremely useful in determining how elaborate and how frequently the state indulges in interception activities. This information would be easily available since all interception orders have to be sent to the Review Committee set up under Rule 419A of the Telegraph Rules, 1954.
The Report should contain information on the procedural aspects of surveillance including the delegation of powers to different authorities and individuals, information on new surveillance schemes, etc. This information would also be available with the Ministry of Home Affairs since it is a Secretary or Joint Secretary level officer in the said Ministry which is supposed to authorize every order for interception.
The report should contain an aggregated list of reasons given by the authorities for ordering interception. This information would reveal whether the authorities are actually ensuring legal justification before issuing interception or are they just paying lip service to the rules to ensure a proper paper trail. Since every order of interception has to be in writing, the main reasons for interception can easily be gleaned from a perusal of the orders.
It should also reveal the percentage of cases where interception has actually found evidence of culpability or been successful in prevention of criminal activities. This one statistic would itself give a very good review of the effectiveness of the interception regime. Granted that this information may not be very easily obtainable, but it can be obtained with proper coordination with the police and other law enforcement agencies.
The report should also reveal the percentage of order that have been struck down by the Review Committee as not following the process envisaged under the various Rules. This would give a sense of how often the Rules are being flouted while issuing interception orders. This information can easily be obtained from the papers and minutes of the meetings of the Review Committee.
The report should also state the number of times the Review Committee has met in the period being reported upon. The Review Committee is an important check on the misuse of powers by the authorities and therefore it is important that the Review Committee carries out its activities in a diligent manner.

It may be noted here that some provisions of the Telegraph Rules, 1954 especially sub-Rules 17 and 18 of Rule 419A as well as Rules 22, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 may need to be amended so as to make them compliant with the reporting mechanism proposed above.

By the Private Sector

We have already discussed above the transparency reports published by certain private companies. Suffice it to say that reports from private companies should give as much of the information discussed under government reports as possible and/or applicable, since they may not have a large amount of the information that is sought to be published in the government reports such as whether the interception was successful, the reasons for interception, etc. It is important to have ISPs provide such transparency reports as this will provide two different data points for information on interception and the very existence of these private reports may act as a check to ensure the veracity of the government transparency reports.

As in the case of government reports, for the transparency reports of the private sector to be effective, certain provisions of the Telegraph Rules, 1954 and the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009, viz. sub-Rules 14, 15 and 19 of Rule 419A of the Telegraph Rules, 1954 and Rules 20, 21, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009.

Overhaul of the Review Committee

The Review Committee which acts as a check on the misuse of powers by the competent authorities is a very important cog in the entire process. However, it is staffed entirely by the executive and does not have any members of any other background. Whilst it is probably impractical to have civilian members in the Review Committee which has access to potentially sensitive information, it is extremely essential that the Committee has wider representation from other sectors specially the judiciary. One or two members from the judiciary on the Review Committee would provide a greater check on the workings of the Committee as this would bring in representation from the judicial arm of the State so that the Review Committee does not remain a body manned purely by the executive branch. This could go some ways to ensure that the Committee does not just "rubber stamp" the orders of interception issued by the various competent authorities.

Conclusion

It is not in dispute that there is a need for greater transparency in the government's surveillance activities in order to address the problems associated with illegal and unauthorised interceptions. This paper is not making the case that greater transparency in and by itself will be able to solve the problems that may be associated with the government's currency interception and surveillance regime, however it is not possible to address any problem unless we know the real extent of it. It is essential for an informed debate and discussion that the people participating in the discussion are "informed", i.e. they should have accurate and adequate information regarding the issues which are being discussed. The current state of the debate on interception is rife with individuals using illustrative and anecdotal evidence which, in the absence of any other evidence, they assume to be the norm.

A more transparent and forthcoming state machinery which regularly keeps its citizens abreast of the state of its surveillance regime would be likely to get better suggestions and perhaps less criticisms if it does come out that the checks and balances imposed in the regulations are actually making a difference to check unauthorized interceptions, and if not, then it is the right of the citizens to know about this and ask for reforms.

[1] James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", International Journal of Communication 9(2015), Feature 3450-3459, 2015.

[2] Id.

[3] Namit Sharma v. Union of India, http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566.

[4] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566 . Although the judgment was overturned on review, however this observation quoted above would still hold as it has not been specifically overturned.

[5] http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf .

[6] James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", International Journal of Communication 9 (2015), Feature 3450-3459, 2015.

[7] http://gulail.com/the-stalkers/ .

[8] http://timesofindia.indiatimes.com/india/Amar-Singh-phone-tap-accused-tracked-Arun-Jaitleys-mobile/articleshow/18582508.cms .

[9] http://ibnlive.in.com/news/arun-jaitley-phonetapping-case-all-accused-get-bail/394997-37-64.html .

[10] For a detailed discussion of the Rules of interception please see Policy Paper on Surveillance in India, by Vipul Kharbanda, http://cis-india.org/internet-governance/blog/policy-paper-on-surveillance-in-india .

[11] As an example please see http://cis-india.org/internet-governance/resources/rti-on-officials-and-agencies-authorized-to-intercept-telephone-messages-in-india .

[12] https://www.google.com/transparencyreport/userdatarequests/countries/ .

[13] https://govtrequests.facebook.com/country/India/2015-H1/ .

[14] Non-content data (NCD) such as basic subscriber information including the information captured at the time of registration such as an alternate e-mail address, name, location, and IP address, login details, billing information, and other transactional information (e.g., "to," "from," and "date" fields from email headers).

[15] Data that users create, communicate, and store on or through Yahoo. This could include words in a communication (e.g., Mail or Messenger), photos on Flickr, files uploaded, Yahoo Address Book entries, Yahoo Calendar event details, thoughts recorded in Yahoo Notepad or comments or posts on Yahoo Answers or any other Yahoo property.

[16] https://www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement/country_by_country.html .

For more details visit https://cis-india.org/internet-governance/blog/transparency-in-surveillance

National IG Mechanisms – Looking at Some Key Design Issues

praskrishna — 2012-12-09T00:50:46Z

The Centre for Internet & Society is coorganizing this workshop along with Brazilian Internet Steering Committee, Institute for System Analysis, Russian Academy of Sciences, et.al., at the seventh Internet Governance Forum 2012 in Azerbaijan. The workshop will be held in Conference Room 4, from 2.30 p.m. to 4.00 p.m. Pranesh Prakash is a panelist for this workshop.

Workshop Theme:
Other
Theme Question:
It is a workshop on national level IG mechanisms, and does not directly address any main theme questions

Concise Description of Workshop:

Such is the unique nature of the Internet that its governance often calls for institutional innovations. The proposed workshop will look at a range of national level IG mechanisms across the world. While the discussion will refer to good models and practices in different countries, it will not be organized around simple show-casing of different national IG mechanisms. The discussion will centre around key contexts, requirements, challenges and possibilities. It will be directed towards examining key institutional design issues, functions and outcomes with regard to national level IG mechanisms with the purpose to help countries make appropriate decisions in their specific contexts. Some of these are; - How should the national commons of Internet resources be managed?- What kinds of mechanisms are appropriate for technical matters, what for those that are partly technical and partly social, and what for larger public policy matters, requiring more political responses? - Should there be a common single mechanism to address all the above kinds of issues, or different ones? How to coordinate different mechanisms, and different parts of the national governance machinery dealing with different aspects or kinds of IG issues? - How to ensure meaningful participation of all stakeholders in a manner that focuses on public interest?- How can the surplus from domain name registration fees etc collected by national IG agencies be employed for public interest purposes, especially, for taking up Internet related research.

Organiser(s) Name:

Centre for Internet and Society, Bangalore - Civil SocietyBrazilian Internet Steering Committee - National level governance bodyInstitute for System Analysis, Russian Academy of Sciences - Academic InsitutionCentre for Community Informatics Research, Development and Training (CCIRDT), Vancouver, BC CANADA - Civil Society Instituto NUPEF , Rio de Janeiro - Civil SocietyIT for Change, Bangalore - Civil Society.

Previous Workshop(s):

See in the workshops section in IGF 2011IG4D Workshop 183: A Possible Framework for Global Net Neutrality.

Submitted Workshop Panelists:

Carlos Afonso, Insituto NUPEF, Board Member, Brazilian Steering CommiteeEmily Taylor, Independent Consultant, Formerly with NOMINETAlice Munya, Chairperson, Kenya Internet Steering CommiteeVictor Tishchenko, Institute of Advanced Systems, Russian Academy of Sciences,Sunil Abraham, Centre for Internet and Society,Moderator, Micheal Gurstein, Centre for Community Informatics Research, Development and Training, Canada.

Name of Remote Moderator(s):

Ginger Paque

Read the original published on the IGF website here

For more details visit https://cis-india.org/internet-governance/national-ig-mechanisms

Anti-harassment app wins hackathon for women

praskrishna — 2015-05-20T13:25:33Z

A team of four young women coders from Porta Allegra in Brazil has won the IGNITE International Girls Hackathon with an anti-harassment app called Não Me Calo, which means “I will not shut up”.

The blog entry was published in Sci Dev Net on May 15, 2015. Rohini Lakshané gave her inputs.

Não Me Calo allows users to review restaurants based on how they treat women. The data then helps other patrons decide which restaurants are safest for women, and publicly encourages restaurant owners and government officials to fix harassment hotspots.

The team competed against coders from India, Taiwan and the United States to create the best app addressing the challenge of creating safe spaces for women. They will now work with partners from the Global Fund for Women, which organised the hackathon, to fully develop the app.

Catherine King, the executive producer of the Global Fund for Women, says that the hackathon is meant to address the gender gap in access to information technology, and to encourage women to create and shape technologies.

“If girls aren’t accessing the internet and aren’t creating culture themselves online and using their own voices online, then that means other people are doing that,” Sara Baker, the coordinator of Take Back the Tech!, a global campaign to get more women online, told SciDev.Net.

The hackathon, which gave teams 24 hours to create their app, took place in February, and the winners were announced last month.

King says that the teams’ responses to the challenge were influenced by experiences in their own communities. For example, teams from India designed apps for learning self-defence and sex education.

Women’s safety apps or features are becoming increasingly popular, particularly in India where they are seen as a way to respond to public violence against women. Earlier this year, Uber, the taxi-hailing app, added a new ‘SOS button’ to their Indian version after a driver raped a passenger in December 2014.

But Rohini Lakshané, a researcher at the Centre for Internet and Society in India, points out that these technologies can only go so far towards preventing violence against women, and must be part of a broader approach that also addresses the underlying social and cultural causes of gender inequality.

She adds that many apps fail to protect women because they are designed by men who don’t understand the intricacies of women’s safety.

For more details visit https://cis-india.org/internet-governance/news/anti-harassment-app-wins-hackathon-for-women

Digital India: PM Modi to launch BJP's flagship programme likely in July

pranesh — 2015-08-22T16:45:33Z

The article by Jochelle Mendonca and Neha Alawadhi was published in the Economic Times on May 29, 2015.

The Modi government, which completed one year at the Centre, is preparing for a big-ticket launch of Digital India, taking technology to the villages and block levels, through merchandise, hackathons and games spread over a week-long initiative across the country.

The National e-Governance Division (NeGD), under the Department of Electronics and Information Technology (DeitY), has empanelled agencies for a messaging campaign, gamification, printing and merchandise, advertising and creatives, including advertising for rural outreach and social media.

Working directly with the Prime Minister's Office, NeGD has been tasked with preparing for the launch since February. Though no formal dates have been fixed yet, the Digital India Week (DIW) is likely to take off in July, and will involve stakeholders across state governments and ministries, and is expected to be the flagship programme for the second year of the BJP government, EThas learnt.

"They really want to make this the biggest programme of the second year. The idea is that many things have been done in the digital space that need to get highlighted," an individual with knowledge of the plans told ET.

The event is certainly being planned on a grand scale, according to the tender documents issued by the government. The government has asked for merchandise such as t-shirts, caps, trophies, pen drives and leather cloth and plastic bags. A gamification agency will work on the portals, mobile applications and social media handles to boost participation.

The messaging agency must be able to carry out, track, record and analyse 50 lakh to one crore messages a day. The event will be launched by the Prime Minister through a radio address on "Mann ki Baat", which will be followed by events at gram panchayats, block and sub divisional headquarters, district and state levels, eventually culminating in a national event, according to a presentation seen by ET.

As part of the run-up to the DIW, events such as hackathons, training programmes and webinars would be held in schools and colleges, followed by crowdsourcing ideas through the government's portal MyGov, as well as a new Digital India portal that is being designed. "It is a typical BJP-style campaign.

The Prime Minister does not want to hold the final day event in Delhi and the location is being finalised. All state and line ministries have been involved, and are being asked to showcase e-services and best practices, along with the launch of some programmes like digital locker," said another person familiar with the plans being rolled out for the DIW. The watch words of the campaign will be "inform, educate and engage", which will include taking the message of Digital India to the masses through educational institutions, industry and government agencies.

"It will educate people on various important services such as digital literacy, cyber hygiene and e-waste management, and also look at engaging a large number of people, especially youth on a continuous basis," said a person familiar with the ongoing preparation.

NeGD is looking at using the principles of gamification to gather feedback. Experts on e-governance say this is a good move as most e-governance projects, across the world, fail because there's not enough buy-in from stakeholders or the goals aren't communicated widely to the public.

"E-governance needs evangelising. That is what this campaign looks like it will do. Some parts are dated — such as posters and the print elements. But this is a good idea. Whether it works or not depends on the participation they see at the end," Sunil Abraham, director at the Centre for Internet and Society, said.

For more details visit https://cis-india.org/internet-governance/news/economic-times-may-29-2015-jochelle-mendonca-and-neha-alawadhi-digital-india

The Transformative Power of Online Activism

praskrishna — 2015-06-18T16:00:52Z

Rohini Lakshané was a panelist at this event organized by Hertie School of Governance on May 4, 2015.

Panelists

Alissa Wahid, National coordinator of the GUSDURian Network Indonesia
Renata Avila, Member of Creative Commons Board of Directors and a member of the Web Index Science Council, Guatemala
Rohini Lakshané, Researcher at the Centre for Internet and Society, India
Georgia Popplewell, Writer and media producer from Trinidad and Tobago

Moderation: Dilek Kurban J.D., Marie Curie Fellow, Hertie School of Governance

The lightning spread of communication technologies has enabled the dissemination of information and ideas that mainstream media have been unwilling or unable to publish. While the Internet empowers individuals to engage in advocating, mobilizing and reacting on behalf of the disempowered, it also raises significant issues of privacy and hate speech when used by the wrong people for the wrong reasons.

Are we at a stage where we can argue that online activism challenges the balance of power between governments and citizens, giving rise to a new form of deliberative and participatory democracy? Or is the transformative power of virtual civil disobedience blown out of proportion? To what extent is the Internet a level playing field where gender, ethnicity or class do not matter? What kinds of legal and political instruments are available to governments and corporations in their efforts to control the Internet? This panel discussion will bring together four female jury members of The BOBS Award 2015 who will seek answers to these and other questions regarding Internet activism, citizen journalism and grassroots mobilization.

re:thinking tomorrow is a discussion series hosted by Deutsche Welle and the Hertie School of Governance.

For more information see here.

For more details visit https://cis-india.org/internet-governance/news/the-transformative-power-of-online-activism

re:thinking tomorrow

praskrishna — 2015-06-19T14:12:08Z

The lightning spread of communication technologies has enabled the dissemination of information and ideas that mainstream media have been unwilling or unable to publish.

While the Internet empowers individuals to engage in advocating, mobilising and reacting on behalf of the disempowered, it also raises significant issues of privacy and hate speech when used by the wrong people for the wrong reasons.

Rohini Lakshané was a panelist at this event organized by Hertie School of Governance at Berlin on May 4, 2015. For more see the event brochure.

For more details visit https://cis-india.org/internet-governance/news/re-thinking-tomorrow

IANA Transition Stewardship & ICANN Accountability (II)

jyoti — 2015-07-31T15:47:20Z

This paper is the second in a multi-part series, in which we provide an overview of submitted proposals and highlight areas of concern that will need attention moving forward. The series is a work in progress and will be updated as the processes move forward. It is up for public comments and we welcome your feedback.

The discussions and the processes established for transition plan have moved rapidly, though not fast enough—given the complicated legal and technical undertaking it is. ICG will be considering the submitted proposals and moving forward on consultations and recommendations for pending proposals. ICANN53 saw a lot of discussion on the implementation of the proposals from the numbers and protocols community, while the CWG addressed the questions related to the 2^nd draft of the names community proposal. The Protocol Parameters (IANA PLAN Working Group) submitted to ICG on 6 January 2015, while the Numbering Resources (CRISP Team) submitted on 15 January 2015. The Domain Names (CWG-Stewardship) submitted its second draft to ICG on 25 June 2015. The ICG had a face-to-face meeting in Buenos Aires and their proposal to transition the stewardship of the IANA functions is expected to be out for public comment July 31 to September 8, 2015. Parallelly, the CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015 and organised two working sessions at ICANN'53. More recently, the CCWG met in Paris focusing on the proposed community empowerment mechanisms, emerging concerns and progress on issues so far.

Number and Protocols Proposals

The numbering and the protocol communities have developed and approved their plans for the transition. Both communities are proposing a direct contractual relationship with ICANN, in which they have the ability to end the contract on their terms. The termination clause has seen push back from ICANN and teams involved in the negotiations have revealed that ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for IANA functions in perpetuity.[1] The emerging contentious negotiations on the issue of separability i.e., the ability to change to a different IANA functions operator, is an important issue.[2] As Milton Mueller points out, ICANN seems to be using these contract negotiations to undo the HYPERLINK "http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045"community process and that ICANN’s staff members are viewing themselves, rather than the formal IANA transition process shepherded by the ICG, as the final authority on the transition.[3] The attempts of ICANN Staff to influence or veto ideas regarding what solutions will be acceptable to NTIA and the Congress goes beyond its mandate to facilitate the transition dialogue. The ARIN meeting[4] and the process of updating MoU with IETF which mandates supplementary SLAs[5] are examples of ICANN leveraging its status as the incumbent IANA functions operator, with which all three operational communities must negotiate, to ensure that the outcome of the IANA transition process does not threaten its control.

Names Proposal

Recently, the CWG working on recommendations for the names related functions provided an improved 2nd draft of their earlier complex proposal which attempts to resolve the internal-external debate with a middle ground, with the creation of Post-Transition IANA (PTI). PTI a subsidiary/affiliate of the current contract-holder, ICANN, will be created and handed the IANA contract and its related technology and staff. Therefore, ICANN takes on the role of the contracting authority and PTI as the contracted party will perform the names-related IANA functions. Importantly, under the new proposal CWG has done away altogether with the requirement of “authorisation” to root zone changes and the reasons for this decision have not been provided. The proposal also calls for creation of a Customer Standing Committee (CSC) to continuously monitor the performance of IANA and creation a periodic review process, rooted in the community, with the ability to recommend ICANN relinquishing its role in names-related IANA functions, if necessary. A key concern area is the external oversight mechanism Multistakeholder Review Team– has been done away with. This is a significant departure from the version placed for public comment in December 2014. It is expected that clarification will be sought from the CWG on how it has factored in inputs from the first round of public comments.

Consensus around the CWG 2nd Draft

There is a growing consensus around the model proposed—the numbers community has commented on the proposal that it does "not foresee any incompatibility between the CWG's proposal”.[6] On the IANA PLAN list, members of the protocols community have also expressed willingness to accept the new arrangement to keep all the IANA functions together in PTI during the transition and view this as merely a reorganization.[7] However, acceptance of the proposal is pending till clarification related to how the PTI will be set up and its legal standing and scope are provided.

Structure of PTI

Presently, two corporate forms are being considered for the PTI, a nonprofit public benefit corporation (PBC) or a limited liability corporation (LLC), with a single member, ICANN, at its outset. Milton Mueller has advocated for the incorporation of PTI as a PBC rather than as a LLC, with its board composed of a mix of insiders and outsiders.[8] He is of the view that LLC form makes the implementation of PTI much more complex and risky as the CWG would need to debate mechanisms of control for the PTI as part of the transition process. The choice of structure is important as it will define the limitations and responsibilities that will be placed on the PTI Board—an important and necessary accountability mechanism.

Broadly, the division of views is around selection of the Board Members that is if they should be chosen either by IANA's customers or representative groups within ICANN or solely by the Board. The degree of autonomy which the PTI has given the existing ICANN structure is also a key developing question. Debate on autonomy of PTI are broadly centered around two distinct views of PTI being incorporated in a different country, to prevent ICANN from slowly subsuming the organization. The other view endorsed by ICANN states that a high degree of autonomy risks creates additional bureaucracy and process for no discernible improvement in actual services.

Functional Separability

Under the CWG-Stewardship draft proposal, ICANN would assume the role currently fulfilled by NTIA (overseeing the IANA function), while PTI would assume the role currently played by ICANN (the IANA functions operator). A divisive area here is that the goal of “functional separation” is defeated with PTI being structured as an “affiliate” wholly owned subsidiary, as it will be subject to management and policies of ICANN. From this view, while ICANN as the contracting party has the right of selecting future IANA functions operators, the legal and policy justification for this has not been provided. It is expected that ICANN'53 will see discussions around the PTI will focus on its composition, legal standing and applicability of the California law.

Richard Hill is of the view that the details of how PTI would be set up is critical for understanding whether or not there is "real" separation between ICANN and PTI leading to the conclusion of a meaningful contract in the sense of an agreement between two separate entities.[9] This functional separation and autonomy is granted by the combination of a legally binding contract, CSC oversight, periodic review and the possibility of non-renewal of the contract.[10]

Technical and policy roles - ICANN and PTI

The creation of PTI splits the technical and policy functions between ICANN and PTI. The ICANN Board comments on CWG HYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"PrHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"oHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"posal also confirm PTI having no policy role, nor it being intended to in the future, and that while it will have control of the budget amounts ceded to it by ICANN the funding of the PTI will be provided by ICANN as part of the ICANN budgeting process.[11] The comments from the Indian government on the proposal states this as an issue of concern, as it negates ICANN's present role as a merely technical coordination body. The concerns stem from placing ICANN in the role of the perpetual contracting authority for the IANA function makes ICANN the sole venue for decisions relating to naming policy as well as the entity with sole control over the PTI under the present wholly subsidiary entity.[12]

Key areas of work related to the distinction between the PTI and ICANN policy and technical functions include addressing how the new PFI Board would be structured, what its role would be, and what the legal construction between it and ICANN. The ICANN Board too has sought some important clarifications on its relationship as a parent body including areas where the PTI is separate from ICANN and areas where CWG sees shared services as being allowable (shared office space, HR, accounting, legal, payroll). It also sought clarification on the line of reporting, duties of the PTI Directors and alignment of PTI corporate governance with that of ICANN.

The Swedish government has commented that the next steps in this process would be clarification of the process for designing the PTI-IANA contract, a process to establish community consent before entering the contract, explicit mention of whom the contracting parties are and what their legal responsibilities would be in relation to it.[13]

Internal vs External Accountability

The ICANN Board, pushing for an internal model of full control of IANA Functions is of the view that a more independent PTI could somehow be "captured" and used to thwart the policies developed by ICANN. However, others have pointed out that under proposed structure PTI has strong ties to ICANN community that implements the policies developed by ICANN.[14] With no funding and no authority other than as a contractor of ICANN, if PTI is acting in a manner contrary to its contract it would be held in breach and could be replaced under the proposal.

Even so, as the Indian government has pointHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf"edHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf" out from the point of view of institutional architecture and accountability, this model is materially worse off than the status quo.[15]

The proposed PTI and ICANN relationship places complete reliance on internal accountability mechanisms within ICANN, which is not a prudent institutional design. The Indian government anticipates a situation where, in the event there is customer/ stakeholder dissatisfaction with ICANN’s role in naming policy development, there would be no mechanism to change the entity which fulfils this role. They feel that the earlier proposal for the creation of a Contract Co, a lightweight entity with the sole purpose of being the repository of contracting authority, and award contracts including the IANA Functions Contract provided a much more effective mechanism for external accountability. While the numbers and protocol communities have proposed a severable contractual relationship with ICANN for the performance of its SLAs no such mechanism exists with respect to ICANN's role in policy development for names.

Checks and Balances

Under the current proposal the Customer Standing Committee (CSC) has the role, of constantly reviewing the technical aspects of the naming function as performed by PTI. This, combined with the proposed periodic IANA Function Review (IFR), would act as a check on the PTI. The current draft proposal does not specify what will be the consequence of an unfavourable IANA Functions Review.

Some other areas of focus going forward relate to the IFR team inclusion in ICANN bylaws along the lines of the AOC established in 2009.[16] Also, ensuring the IFR team clarifies the scope of separability. The circumstances and procedures in place for pulling the IANA contract away if it has been established that ICANN is not fulfilling it contractual agreements. This will be a key accountability mechanism and deterrent for ICANN controlling the exercise of its influence.

CCWG Accountability

Work Stream (WS1): Responsible for drafting a mechanism for enhancing ICANN accountability, which must be in place before the IANA stewardship transition.

Work Stream (WS2): Addressing long term accountability topics which may extend beyond the IANA Stewardship Transition.

The IANA transition was recognized to be dependent on ICANN’s wider accountability, and this has exposed the trust issues between community and leadership and the proposal must be viewed in this context. The CCWG Draft Proposal attempts 4 significant new undertakings:

A. Restating ICANN’s Mission, Commitments, and Core Values, and placing those into the ICANN Bylaws. The CCWG has recommended that some segments of the Affirmation of Commitments (AOC)– a contract on operating principles agreed upon between ICANN and the United States government – be absorbed into the Corporation’s bylaws.

B. Establishing certain bylaws as “Fundamental Bylaws” that cannot be altered by the ICANN Board acting unilaterally, but over which stakeholders have prior approval rights;

C. Creating a formal “membership” structure for ICANN, along with “community empowerment mechanisms”. Some of the community empowerment mechanisms including (a) remove individual Board members, (b) recall the entire Board, (c) veto or approve changes to the ICANN Bylaws, Mission Statement, Commitments, and Core Values; and (d) to veto Board decisions on ICANN’s Strategic Plan and its budget;

D. Enhancing and strengthening ICANN's Independent Review Process (IRP) by creating a standing IRP Panel empowered to review actions taken by the corporation for compliance both with stated procedures and with the Bylaws, and to issue decisions that are binding upon the ICANN Board.

The key questions likely to be raised at ICANN 53 on several of these proposals will likely concern how these empowerment mechanisms affect the “legal nature” of the community.

Membership and Accountability

At the heart of the distrust between the ICANN Board and the community is the question of membership. ICANN as a corporation is a private sector body that is largely unregulated, with no natural competitors, cash-rich and directly or indirectly supports many of its participants and other Internet governance processes. Without effective accountability and transparency mechanisms, the opportunities for distortion, even corruption, are manifold. In such an environment, placing limitations on the Board’s power is critical to invoke trust. Three keys areas of accountability related to the Board include: no mechanisms for recall of individual board directors; the board’s ability to amend the company’s constitution (its bylaws), and the track record of board reconsideration requests.[17]

With no membership, ICANN’s directors represent the end of the line in terms of accountability. While there is a formal mechanism to review board decisions, the review is conducted by a subset of the same people. The CCWG’s proposal to create SOs/ACs as unincorporated “members” with Articles of Association has met with a lot of discussion, especially in the Governmental Advisory Council (GAC).[18] The GAC has posed several critical questions on this set up, some of which are listed here:

Can a legal person created and acting on behalf of the GAC become a member of ICANN, even though the GAC does not appoint Board members?
If GAC does not wish to become a member, how could it still be associated to the exercise of the 6 (community empowerment mechanisms) powers?
It is still unclear what the liability of members of future “community empowered structures” would be.
What are the legal implications on rights, obligations and liabilities of an informal group like the GAC creating an unincorporated association (UA) and taking decisions as such UA, from substantial (like exercising the community powers) to clerical (appointing its board, deciding on its financing) and whether there are implications when the members of such an UA are Governments?

Any proposal to strengthen accountability of ICANN needs to provide for membership so that there is ability to remove directors, creates financial accountability by receiving financial accounts and appointing editors and can check the ICANN’s board power to change bylaws without recourse to a higher authority.

Constitutional Undertaking

David Post and Danielle Kehl have pointed out that the CCWG correctly identifies the task it is undertaking – to ensure that ICANN’s power is adequately and appropriately constrained – as a “constitutional” one.[19] Their interpretation is based on the view that even if ICANN is not a true “sovereign,” it can usefully be viewed as one for the purpose of evaluating the sufficiency of checks on its power. Subsequently, the CCWG Draft Proposal, and ICANN’s accountability post-transition, can be understood and analyzed as a constitutional exercise, and that the transition proposal should meet constitutional criteria. Further, from this view the CCWG draft reflects the reformulation of ICANN around the broadly agreed upon constitutional criteria that should be addressed. These include:

A clear enumeration of the powers that the corporation can exercise, and a clear demarcation of those that it cannot exercise.
A division of the institution’s powers, to avoid concentrating all powers in one set of hands, and as a means of providing internal checks on its exercise.
Mechanism(s) to enforce the constraints of (1) and (2) in the form of meaningful remedies for violations.

Their comments reflect that they support CCWG in their approach and progress made in designing a durable accountability structure for a post-transition ICANN. However, they have stressed that a number of important omissions and/or clarifications need to be addressed before they can be confident that these mechanisms will, in practice, accomplish their mission. One such suggestion relates to ICANN’s policy role and PTI technical role separability. Given ICANN’s position in the DNS hierarchy gives it the power to impose its policies, via the web of contracts with and among registries, registrars, and registrants, on all users of the DNS, a constitutional balance for the DNS must preserve and strengthen the separation between DNS policy-making and policy-implementation. Importantly, they have clarified that even if ICANN has the power to choose what policies are in the best interest of the community it is not free to impose them on the community. ICANN's role is a critical though narrow one: to organize and coordinate the activities of that stakeholder community – which it does through its various Supporting Organizations, Advisory Committees, and Constituencies – and to implement the consensus policies that emerge from that process. Their comments on the CCWG draft call for stating this clarification explicitly and institutionalizing separability to be guided by this critical safeguard against ICANN’s abuse of its power over the DNS.

An effective implementation of this limitation will help clarify the role mechanisms being proposed such as the PTI and is critical for creating sustainable mechanisms, post-transition. More importantly, clarifying ICANN’s mission would ensure that in the post-transition communities could challenge its decisions on the basis that it is not pertaining to the role outlined or based on strengthening the stability and security of the DNS. Presently, it is very unclear where ICANN can interfere in terms of policymaking and implementation.

Other Issues

Other issues expected to be raised in the context of ICANN's overall accountabiltiy will likey concern the following:

Strengthening financial transparency and oversight

Given the rapid growth of the global domain name industry, one would imagine that ICANN is held up to the same standard of accountability as laid down in the right to information mechanisms countries such as India. CIS has been raising this issue for a while and has managed to received the list of ICANN’s current domain name revenues.[20]

By sharing this information, ICANN has shown itself responsive to repeated requests for transparency however, the shared revenue data is only for the fiscal year ending June 2014, and historical revenue data is still not publicly available. Neither is a detailed list (current and historical) of ICANN’s expenditures publicly available. Accountability mechanisms and discussions must seek that ICANN provide the necessary information during its regular Quarterly Stakeholder Reports, as well as on its website.

Strengthening transparency

A key area of concern is ICANN's unchecked influence and growing role as an institution in the IG space. Seen in the light of the impending transition, the transparency concerns gain significance and given ICANN's vocal interests in maintaining the status quo of its role in DNS Management. While financial statements (current and historic) are public and community discussions are generally open, the complexity of the contractual arrangements in place tracking the financial reserves available to ICANN through these processes are not sufficient.

Further, ICANN as a monopoly is presently constrained only by the NTIA review and few internal mechanisms like the Documentary Information Disclosure Policy (DIDP)[21], Ombudsman[22], Reconsideration and Independent Review[23] and the Accountability and Transparency Review (ATRT)[24]. These mechanisms are facing teething issues and some do not conform to the principles of natural justice. For example, a Reconsideration Request can be filed if one is aggrieved by an action of ICANN’s Board or staff. Under ICANN’s By-laws, it is the Board Governance Committee, comprising ICANN Board members, that adjudicates Reconsideration Requests.[25]

Responses to the DIDP requests filed by CIS reveal that the mechanism in its current form, is not sufficient to provide the transparency necessary for ICANN’s functioning. For instance, in the response to DIDP pertaining to the Ombudsman Requests[26], ICANN cites confidentiality as a reason to decline providing information as making Ombudsman Requests public would violate ICANN Bylaws, toppling the independence and integrity of the Ombudsman. Over December ’14 and January ’15, CIS sent 10 DIDP requests to ICANN with an aim was to test and encourage discussions on transparency from ICANN. We have received responses for 9 of our requests, and in 7 of those responses ICANN provides very little new information and moving forward we would stress the improvements of existing mechanisms along with introduction of new oversight and reporting parameters towards facilitating the transition process.[27]

[1]John Sweeting and others, 'CRISP Process Overview' (ARIN 35, 2015) https://regmedia.co.uk/2015/04/30/crisp_panel.pdf

[2]Andrew Sullivan, [Ianaplan] Update On IANA Transition & Negotiations With ICANN (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html

[3]Milton Mueller, ‘ICANN WANTS AN IANA FUNCTIONS MONOPOLY – WILL IT WRECK THE TRANSITION PROCESS TO GET IT?’ (Internet Governance Project, 28 April 2015) http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045

[4]Tony Smith, 'Event Wrap: ICANN 52' (APNIC Blog, 20 February 2015) http://blog.apnic.net/2015/02/20/event-wrap-icann-52/

[5]Internet Engineering Task Force, 'IPROC – IETF Protocol Registries Oversight Committee' (2015) https://www.ietf.org/iana/iproc.html

[6]Axel Pawlik, Numbers Community Proposal Contact Points With CWG’S Draft IANA Stewardship Transition Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00003.html

[7]Jari Arkko, Re: [Ianaplan] CWG Draft And Its Impact On The IETF (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01843.html

[8]Milton Mueller, Comments Of The Internet Governance Project (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00021.html

[9]Richard Hill, Initial Comments On CWG-Stewardship Draft Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00000.html

[10]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonp

[11]ICANN Board Comments On 2Nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions (20 May 2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf

[12]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[13]Anders Hektor, Sweden Comments To CWG-Stewardship (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00016.html

[14]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation |' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonprofit-public-benefit-corporation/

[15]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[16]Kieren McCarthy, 'Internet Kingmakers Drop Ego, Devise Future Of DNS, IP Addys Etc' (The Register, 24 April 2015) http://www.theregister.co.uk/2015/04/24/internet_kingmakers_drop_ego_devise_future_of_the_internet/

[17]Emily Taylor, ICANN: Bridging The Trust Gap (Paper Series No. 9, Global Commission on Internet Governance March 2015) https://regmedia.co.uk/2015/04/02/gcig_paper_no9-iana.pdf

[18]Milton Mueller, 'Power Shift: The CCWG’S ICANN Membership Proposal' (Internet Governance Project, 4 June 2015) http://www.internetgovernance.org/2015/06/04/power-shift-the-ccwgs-icann-membership-proposal/

[19]David Post, Submission Of Comments On CCWG Draft Initial Proposal (2015), Email http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00050.html

[20] Hariharan, 'ICANN reveals hitherto undisclosed details of domain names revenues', 8 December, 2014 See: http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014

[21] ICANN, Documentary Information Disclosure Policy See: https://www.icann.org/resources/pages/didp-2012-02-25-en

[22] ICANN Accountability, Role of the Ombudsman https://www.icann.org/resources/pages/accountability/ombudsman-en

[23] ICANN Reconsideration and independent review, ICANN Bylaws, Article IV, Accountability and Review https://www.icann.org/resources/pages/reconsideration-and-independent-review-icann-bylaws-article-iv-accountability-and-review

[24] ICANN Accountability and Transparency Review Final Recommendations https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf

[25] ICANN Bylaws Article iv, Section 2 https://www.icann.org/resources/pages/governance/bylaws-en#IV

[26] ICANN Response to DIDP Ombudsman https://www.icann.org/resources/pages/20141228-1-ombudsman-2015-01-28-en

[27] Table of CIS DIDP Requests See: http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file

For more details visit https://cis-india.org/internet-governance/blog/iana-transition-stewardship-and-icann-accountability-2

Anti-Spam Laws in Different Jurisdictions: A Comparative Analysis

Rakshanda Deka — 2015-07-02T16:21:01Z

This paper is divided into three sections. The first section puts forth a comparative table of the spam laws of five different countries - the United States of America, Australia, Canada, Singapore and the United Kingdom - based on eight distinct parameters- jurisdiction of the legislation, definition of ‘spam’, understanding of consent, labelling requirements, types of senders covered, entities empowered to sue, exceptions made and penalties prescribed. The second section is a brief background of the problem of spam and it attempts to establish the context in which the paper is written. The third section is a critical analysis of the laws covered in the first section. In an effort to spot the various loopholes in these laws and suggest effective alternatives, this section points out the distinctions between the various legislations and discusses briefly their respective advantages and disadvantages.

Note:- This analysis is a part of a larger attempt at formulating a model anti-spam law for India by analyzing the existing spam laws across the world.

	CAN-SPAM Act, 2003	Spam Act, 2003 (Australia)	Spam Control Act, 2007 (Singapore)	Canada's Anti-Spam Legislation, 2014	The Privacy and Electronic Communications (EC Directive) Regulations, 2003 (United Kingdom)
Jurisdiction	National Jurisdiction. The defendant must be either an inhabitant of the United States or have a physical place of business in the US.[1]	National Jurisdiction. Must have an "Australian link" i.e. (a) the message originates in Australia; or (b) the individual or organisation who sent the message, or authorised the sending of the message, is: (i) an individual who is physically present in Australia when the message is sent; or (ii) an organisation whose central management and control is in Australia when the message is sent; or (c) the computer, server or device that is used to access the message is located in Australia; or (d) the relevant electronic account-holder is: (i) an individual who is physically present in Australia when the message is Spam Act, 2003, § 7 Spam Control Act, 2007, § 7(2) Canada's Anti-Spam Legislation, 2014, §accessed; or (ii) an organisation that carries on business or activities in Australia when the message is accessed; or (e) if the message cannot be delivered because the relevant electronic address does not exist-assuming that the electronic address existed, it is reasonably likely that the message would have been accessed using a computer, server or device located in Australia.[2]	National Jurisdiction. Must have a "Singapore link" An electronic message has a Singapore link in the following circumstances: (a) the message originates in Singapore; (b) the sender of the message is - (i) an individual who is physically present in Singapore when the message is sent; or (ii) an entity whose central management and control is in Singapore when the message is sent; © the computer, mobile telephone, server or device that is used to access the message is located in Singapore; the recipient of the message is- (i) an individual who is physically present in Singapore when the message is accessed; or (ii)an entity that carries on business or activities in Singapore when the message is accessed; or (e) if the message cannot be delivered because the relevant electronic address has ceased to exist (assuming that the electronic address existed), it is reasonably likely that the message would have been accessed using a computer, mobile telephone, server or device located in Singapore.[3]	Extends to cases where the mail originates in a foreign state but is accessed in Canada Section 6 of the CASL prohibits the sending of unsolicited CEMs.[4] As per Section 12 of the CASL, A person contravenes section 6 only if a computer system located in Canada is used to send or access the electronic message. CASL applies to CEMs sent from, or accessed in, Canada.[5] So, if a CEM is sent to Canadians from another jurisdiction, CASL will apply. Notably, there is an exception where the person sending the message "reasonably believes" that the message will be accessed in one of a list of prescribed jurisdictions with anti-spam laws thought to be 'substantially similar' to CASL and the message complies with the laws of that jurisdiction.	European Union These regulations can be enforced against a person or a company anywhere in the European Union who violates the regulations.
Definition Of Spam	"unsolicited, commercial, electronic mail"[6], where a commercial electronic mail is "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service"[7]	"unsolicited commercial electronic messages" where electronic message means a message sent "using an internet carriage service or any other listed carriage service; and to an electronic address in connection with: an e-mail account; or an instant messaging account; or a telephone account; or a similar accounts."[8]	"unsolicited commercial electronic message sent in bulk", where a CEM is unsolicited if the recipient did not- i) request to receive the message; or ii)consent to the receipt of the message;[9] and CEMs shall be deemed to be sent in bulk if a person sends, causes to be sent or authorizes the sending of- a) more than 100 messages containing the same subject matter during a 24-hour period; b) more than 1,000 messages containing the same subject matter during a 30-day period; c) more than 10,000 messages containing the same subject matter during a one-year period.	"unsolicited, commercial, electronic message"[10] where, an "electronic message" means a message sent by any means of telecommunication, including a text, sound, voice or image message.[11]	These rules apply to all unsolicited direct marketing communications by automatic call machines[12], fax[13], calls[14] or e-mail[15]. Where, "direct marketing" is defined as "the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals"[16] The UK used its discretion to include voice-to-voice telephone calls as well.
Consent Requirement	Opt-out	Opt-in	Opt-out	Opt-in	Opt-in
Consent Requirement	CEMs are unlawful unless the message provides- (i)clear and conspicuous identification that the message is an advertisement or solicitation; (ii)clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.[17]	Section 16 prohibits the sending of unsolicited commercial electronic messages. However, where a recipient has consented to the sending of the message, the said prohibition does not apply.[18] Consent means: (a) express consent; or (b) consent that can reasonably be inferred from: (i) the conduct; and (ii) the business and other relationships; of the individual or organisation concerned.[19]	CEMs are unlawful unless the message contains- 1 a) an electronic mail address, an Internet location address, a telephone number, a facsimile number or a postal address that the recipient may use to submit an unsubscribe request; and b) a statement the above information may be utilized to send an unsubscribe request. 2. Where the unsolicited CEM is received by text or multimedia message sent to a mobile telephone number, the CEM must include a mobile telephone number to which the recipient may send an unsubscribe request. [20]	Under the CASL, it is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless, (a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and (b) The message must- (i) set out prescribed information that identifies the person who sent the message and the person - if different - on whose behalf it is sent; (ii) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (i); and (iii) set out an unsubscribe mechanism in accordance with subsection 11(1) of CASL.[21]	Under Section 19 , A person shall neither transmit, nor instigate the transmission of, communications comprising recorded matter for direct marketing purposes by means of an automated calling system except in the circumstances where the called line is that of a subscriber who has previously notified the caller that for the time being he consents to such communications being sent by, or at the instigation of, the caller on that line. Under Section 20 , A person shall neither transmit, nor instigate the transmission of, unsolicited communications for direct marketing purposes by means of a facsimile machine where the called line is that of an individual or a company except in the circumstances where the individual subscriber has previously notified the caller that he consents for the time being to such communications being sent by, or at the instigation of, the caller. Under Section 21, A person shall neither use, nor instigate the use of, a public electronic communications service for the purposes of making unsolicited calls for direct marketing purposes where the called line is that of a subscriber who has previously notified the caller that such calls should not for the time being be made on that line. Under Section 22 , a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
Labelling Requirements	Warning Labels mandatory on e-mails containing pornographic content No person may send to a protected computer, any commercial electronic mail message that includes sexually oriented material and- (a) fail to include in subject heading for the electronic mail message the marks or notices prescribed by the law; or (B) fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only- (i) material which the recipient has consented to; (ii) the identifier information required to be included in pursuance Section 5(5); and (iii) Instructions on how to access, or a mechanism to access, the sexually oriented material.[22]	Not Applicable.	True e-mail title and clear identification of advertisements with "ADV" label Every unsolicited CEM must contain- a) where there is a subject field, a title which is not false or misleading as to the content of the message; b) the letters "<ADV>" with a space before the title in the subject field or if there is no subject field, in the words first appearing in the message to clearly identify that the message is an advertisement; c) header information that is not false or misleading; and d) an accurate and functional e-mail address or telephone number by which the sender can be readily contacted.[23]	Not Applicable.	Not Applicable.
Other Banned/Restricted Activities	Illegal Access- Prohibition Against Predatory and Abusive Commercial E-Mail- "Whoever, in or affecting interstate or foreign commerce, knowingly- (1) accesses a protected computer without authorization, and intentionally initiates the transmission of multiple CEMs from or through such computer, (2) uses a protected computer to relay or retransmit multiple CEMs, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages, (3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages, (4) registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names, or (5) falsely represents oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses, and intentionally initiates the transmission of multiple commercial electronic mail messages from such addresses, or conspires to do so, shall be punished as provided for in the Act.[24]	Supply of address harvesting software and harvested‑address lists "A person must not supply or offer to supply: (a) address‑harvesting software; or (b) a right to use address‑harvesting software; or (c) a harvested address list; or (d) a right to use a harvested‑address list; to another person if: (e) the supplier is: (i) an individual who is physically present in Australia at the time of the supply or offer; or (ii) a body corporate or partnership that carries on business or activities in Australia at the time of the supply or offer; or (f) the customer is: (i) an individual who is physically present in Australia at the time of the supply or offer; or (ii) a body corporate or partnership that carries on business or activities in Australia at the time of the supply or offer."	Dictionary Attacks and Address harvesting software "No person shall send, cause to be sent, or authorize the sending of, an electronic message to electronic addresses generated or obtained through the use of- a) a dictionary attack; b) address harvesting software.[25] Where, "dictionary attack" means the method which by which the electronic address of a recipient is obtained using an automated means that generates possible electronic addresses by combining names, letters, numbers, punctuation marks or symbols into numerous permutations.[26] And, "address harvesting software" means software that is specifically designed or marketed for use for- a)searching the Internet for electronic addresses; and, b) collecting, compiling, capturing or otherwise harvesting those electronic addresses."[27]	Altering Transmission Data "It is prohibited, in the course of a commercial activity, to alter or cause to be altered the transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender, unless (a) the alteration is made with the express consent of the sender or the person to whom the message is sent, and the person altering or causing to be altered the data complies with subsection 11(4) of CASL; or (b) the alteration is made in accordance with a court order.[28] Installation of Computer Program A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person's computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless (a) the person has obtained the express consent of the owner or an authorized user of the computer system and complies with subsection 11(5) of the CASL; or (b) the person is acting in accordance with a court order. (2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions."[29]	Electronic mail for direct marketing purposes where the identity or address of the sender is concealed A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail- (a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or (b)where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided.
Types of Senders Covered	Spammers and beneficiaries- the term ''sender'', when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message."[30]	Spammers and beneficiaries- A person must not send, or cause to be sent, a commercial electronic message that: (a) has an Australian link; and (b) is not a designated commercial electronic message.[31]	Spammers, beneficiaries, and providers of support services "sender" means a person who sends a message, causes the message to be sent, or authorizes the sending of the message.[32] Further, persons aiding or abetting the offences under Section 9 or 11 are also punishable under the Act.[33]	Spammers and beneficiaries- Under Section 6, it is prohibited to send or cause or permit to be sent to an electronic address a CEM. Under Section 7, It is prohibited, in the course of a commercial activity, to alter or cause to be altered the transmission data in a CEM. Under Section 8, A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person's computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system.	Spammers and beneficiaries- The texts of Sections 19, 20, 21 and 22 all prohibit the transmission as well as the instigation of the transmission of, communications for direct marketing purposes without the consent of the recipient.
Who Can Sue	FTC[34], Attorney Generals[35], ISPs and IAPs[36] and most recently even companies/private entities[37]	Australian Communications and Media Agency (ACMA)[38]	Any injured party, including individual users.[39]	Any injured party, including individual users.[40]	Any person who suffers damage by reason of any contravention of any of the requirements of these Regulations.[41]
Exceptions	Transactional or Relationship Messages [42] where, The term ''transactional or relationship message'' means an electronic mail message the primary purpose of which is- (i) to facilitate, complete, or confirm a commercial transaction; (ii) to provide warranty information, product recall information, etc. with respect to a commercial product or service used or purchased by the recipient; (iii) to provide notifications- (I) concerning a change in the terms or features of; (II) of a change in the recipient's standing or status with respect to; or (III) information with respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender; (iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.	Designated Commercial Electronic Message (DCEM). A DCEM is a message containing purely factual information, any related comments of non-commercial nature and some limited commercial information as to the identity of the sender company/individual.[43] A message is a DCEMs if- a) the sending of the message is authorized by any of the following bodies: (i) a government body; (ii) a registered political party; (iii) a religious organization; (iv) a charity or charitable institution; and (b) the message relates to goods or services; and (c) the body is the supplier, or prospective supplier, of the goods or services concerned.[44] Messages from educational institutions: an electronic message is a *DCEM* if: (a) the sending of the message is authorised by an educational institution; and (b) either or both of the following subparagraphs applies: (i) the relevant electronic account‑holder is, or has been, enrolled as a student in that institution; (ii) a member or former member of the household of the relevant electronic account‑holder is, or has been, enrolled as a student in that institution; and (c) the message relates to goods or services; and (d) the institution is the supplier, or prospective supplier, of the goods or services concerned.	Electronic Messages authorized by the Government[45] The Act does not apply to any electronic message where the sending of the message is authorized by the Government or a statutory body on the occurrence of any public emergency, in the public interest or in the interests of public security or national defence.[46] A certificate signed by the Minister shall be conclusive evidence of existence of a public emergency and the other above stated matters.[47]	Family and Personal relationships, where "Family relationship" is a relationship between two people related through marriage, a common law partnership, or any legal parent-child relationship who have had direct, voluntary two-way communications; and "personal relationship" means a relationship between two people who have had direct, voluntary two-way communications where it would be reasonable to conclude that the relationship is personal.[48] Mails sent to an individual who practices a particular commercial activity with the mail containing solely an inquiry or application related to that activity[49]. A mail which - provides a quote or estimate for the supply of a product, goods, a service, etc. if requested by the recipient; · facilitates, completes or confirms a commercial transaction that the recipient previously agreed to enter into with the sender; · provides warranty information, product recall information etc. about a product, goods or a service that the recipient uses, has used or has purchased; · provides notification of factual information about- (i) the ongoing use or ongoing purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender, or · provides information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, is currently participating or is currently enrolled; · delivers a product, goods or a service, including updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that they have previously entered into with the sender.[50] · Telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.[51] · CEMs which are two-way voice communication between individuals sent by means of a facsimile or a voice recording sent to a telephone account.[52]	A person may send or instigate the sending of electronic mail for the purposes of direct marketing where - (a) the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; (b) the direct marketing is in respect of that person's similar products and services only; and (c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.[53]
Penalties	Civil and Criminal Statutory damages- Amount calculated by multiplying the number of violations by up to $250. Total amount of damages may not exceed $2,000,000. [54] Imprisonment- upto 5 years.[55] Forfeiture from the offender, of- i) any property, real or personal, constituting or traceable to gross proceeds obtained from such offense; ii) any equipment, software, or other technology used or intended to be used to commit or to facilitate the commission of such offense.[56]	Civil only For a body corporate without prior record, for upto 2 contraventions, civil penalty should not exceed i) 100 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 50 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 2000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 1000 penalty units in any other case. For a body corporate with prior record, for upto 2 contravention, civil penalty should not exceed i) 500 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 250 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 10,000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 5,000 penalty units in any other case. For a person without prior record, for upto 2 contraventions, civil penalty should not exceed i) 20 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 10 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 400 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 200 penalty units in any other case. For a person with prior record, for upto 2 contravention, civil penalty should not exceed i) 100 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 50 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 2,000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 1,000 penalty units in any other case.[57]	Civil only i) Injunction ii) Damages- calculated in terms of loss suffered as a direct or indirect result of the contravention of the Act. ii) Statutory Damages not exceeding $25 for each CEM; and not exceeding in the aggregate $1 million, unless the plaintiff proves that his actual loss from such CEMs exceeds $1 million.[58] iii)Costs of litigation to the plaintiff.[59]	Civil only Administrative Monetary Penalty , the purpose of which is to promote compliance with the Act and not to punish.[60] The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.[61]	Civil on private action; Criminal for non-compliance with IC's notice A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage.[62] The enforcement authority for these regulations is Britain's Information Commissioner who oversees both the Act and the Regulations, and investigates complaints and makes findings in the form of various types of notices.[63] Failure to comply with any notice issued by the Information Commissioner is a criminal offence and is punishable with a fine of upto £5000 in England and Wales and £10,000 Scotland.[64]

THE PROBLEM OF SPAM -WHY IT PERSISTS

As per a study conducted by Kaspersky Lab in 2014, 66.34% of all messages exchanged over the internet were spam.[65] Over the 2000s, several countries recognized the threats posed by spam and enacted specific legislations to tackle the same. The ones taken into consideration in this paper are the CAN-SPAM Act, 2003 of the United States, Canada's Anti-Spam Legislation, 2014, The Spam Act, 2003 of Australia, Singapore's Spam Control Act, 2007 and The Privacy and Electronic Communications (EC Directive) Regulations, 2003 (United Kingdom). As will be analyzed in the course of this paper, none of these laws have evolved to become comprehensive mechanisms for combating spam yet. Nevertheless, post the enactment of these laws, spam has reduced as a percentage of the net email traffic; however, the absolute quantity of spam has increased owing to the exponential growth of email traffic universally.[66]

Who Benefits from Spam?

1. Commercial establishments - Spamming is one of the most cost-effective means of promoting products and services to a large number of potential customers. Spams are not necessarily duplicitous and often contain legitimate information to which a fraction of the recipients respond positively. As per a recent study, for spam to be profitable, only 1 in 25,000 spam recipients needs to open the email, get enticed, and make a gray-market purchase.[67]

2. Non-commercial establishments benefitting from advertisements - Many seemingly non-profit messages benefit from revenue generated through advertisements when recipients visit their site. Advertisers pay these sites either per click or per impression.

3. Spammers - The costs incurred by spammers largely include the cost of e-mail/phone number harvesting and the cost of paying botnet operators. As compared to the revenue generated as a percentage of profits earned by the merchant on whose behalf spam messages are sent, these costs are negligible.[68]

Thus, spamming proves to be an activity that involves minimal investment and often yields some response from prospective clients.

The impact of spam is clearly widespread. Presently, India lacks a specific anti-spam legislation. In consideration of the swelling growth of spam across the globe and the increasing number of Indian users, it is of utmost urgency that a specific legislation is formulated to tackle the issue.

OBSERVATIONS AND ANALYSIS

1. Definition of Spam

a. 'Spam' must be defined in a technologically neutral manner

The legislations analyzed in this paper deal with either one or a cluster of modes of communication through which spam may be sent. However, it is essential that 'spam' is defined in a manner that is technologically neutral. Most commercial spam is aimed at promoting products and services to a large number of prospective customers. Thus, making only spam e-mails illegal, like the CAN-SPAM Act does, fails to address the issue wholly as companies would always retain the option of sending unsolicited messages through other communicative devices. It becomes an issue of merely switching modes of communication without there being any actual deterrence to spamming. Thus, a narrow understanding of spam, limiting it to one or few modes of communication, is problematic and for a model law, a broader definition that discourages unsolicited messages sent via any network is warranted.

b. Non-commercial spam must also be addressed

The five legislations examined in this paper address only the issue of unsolicited 'commercial' mails/messages. For instance, under the CAN-SPAM, a commercial mail means " any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service". Singapore's Spam Control Act defines a commercial message in a similar fashion but more elaborately. CASL, while limiting the scope of the law to commercial mail, additionally prescribes that such communication need not have a profit motive. Australia's Spam Act defines a commercial message as a message that has the purpose of offering, advertising or promoting goods or services or the supplier or prospective supplier of goods or services. Under the EC Directive, the term used is 'marketing communication'; however, in essence, it includes only commercial communications.[69] These definitions suffer from an obvious exclusion error. It is known from experience that not all unsolicited messages received are in pursuance of commercial interests. Often, unsolicited mails and messages are received with explicit sexual content as well as promoting political and religious agendas sent by party volunteers.

Thus, it would be in higher consonance with the greater aim of curbing spam to broaden the scope of these legislations to address both commercial as well as non-commercial messages.

c. Bulk requirement and its quantification

The Singaporean law makes 'sent in bulk' a mandatory requirement for spam. However, deciding what quantity of a particular message qualifies it as bulk is difficult. If an objective threshold is set, say 100 messages in 24 hours, then anything short of that, say even 99 messages, go unaddressed simply because it does not meet the statutory requirement of being in bulk. This enables spammers to misuse the law by marginally falling short of the threshold and still continuing to spam. The issue here is comparable to the one faced in setting age as bar to criminal culpability. No matter what, any number arrived at is likely to be arbitrary and consequently subject of criticism. A possible way to tackle this would be to strengthen the unsubscribe mechanisms by virtue of which individuals are able to, at the very least, stop receiving unsolicited mails. For the determination of threshold for State action and its feasibility, a much more detailed study is merited.

2. Consent Requirement

	Opt- out Model	Opt-in Model	Double Opt-in Model
Countries following the model	United States of America and Singapore	Canada, Australia and the United Kingdom	None at present.
When messages may be sent	At all times until recipient voluntarily opts out/unsubscribes.	Only after the recipient voluntarily opts-in/subscribes to receive messages by submitting his/her contact details to be part of a particular mailing list.	Only after the recipient responds in the affirmative to the confirmation mail sent by the sender on receiving an opt-in request from the recipient.
Specific requirements	1. The mail/message must bear a clear identifier of its content. E.g. marked as 'ADVT' for advertisements; 2. An 'unsubscribe' option must be provided in the message which may be utilized by the recipient to express his/her disinterest in the message; and 3. The message must conspicuously bear a valid physical postal address.	N/A	N/A
Advantages	Promotes commercial speech rights- Since the default position presumes the right to market, average collection rates are considerably higher as more emails can be sent to more people.	1. Reduction in unsolicited messages- Commercial messages are not sent until the recipient voluntarily consents to receiving such messages by submitting his/her contact information. 2. Availability of unsubscribe option- Even after a recipient voluntarily opts in, he/she still has the right to withdraw from such messages by unsubscribing.	1. Ensures people are entering their information correctly, which equals a cleaner list and lowers bounce rates. 2. Reduces the probability of spam complaints because subscribers have had to take the extra step to confirm their consent.
Disadvantages	1. This merely places the burden of reduction of spam on the recipients. 2. The functionality of the 'unsubscribe' link is itself questionable. Very often these links themselves are fraudulent. In such a case, the recipient is further harmed before any opting-out can even take place. 3. In the absence of any strict regulatory oversight, there exists no incentive for the senders to strictly address unsubscribe requests.	1. Consent may be obtained in fact but not in spirit through inconspicuous pre-ticked check boxes. 2. E-mail addresses may be added to a list by spambots. Where, the person 'opted-in' may not actually be the person opting in. 3. Errors may be made when entering emails; a typo may result in someone submitting an address that is not theirs. 4. Legitimate addresses may be added by someone who does not own the address.	1. Genuine subscribers may not understand clearly the confirmation process and fail to click the verification link. 2. Confirmation emails may get stuck in spam filters.

The comparison above highlights that the opt-out model as well as the opt-in model may leave loopholes. The opt-in model has been advocated for as the better model as compared to the opt-out model as it prohibits the sending of messages unless the recipient consents to receiving such messages. However, as pointed out above, in this model consent may be given by entities other than the owner of the contact details. In such a situation, a double opt-in model may be a viable option to contemplate as it is the only model where it can be ensured that only the addressee is enabled to successfully opt-in.[70]

Presently, the double opt-in model has not been adopted by any of the countries discussed in this paper. Nonetheless, it seems to have the potential to aid the fight against spam more effectively than the existing models. Its real efficacy however, shall be proven only on practical implementation.

3. Exceptions

a. Family and Personal Relationships

Under the CASL, an exception is made for 'personal relationships' and 'family relationship'. However, these terms are defined quite narrowly. For instance, family relationship is defined as 'a relationship between two people related through marriage, a common law partnership, or any legal parent-child relationship and those individuals have had direct, voluntary, two-way communication'.^[71] This implies that in a situation where an individual wants to send a message offering to sell something to an individual in his extended family, say his cousins, doing so without obtaining their consent first, would qualify his mail as spam under the CASL. This would become especially problematic in the Indian context where comparatively larger family structures prevail.

In the anti-spam legislations of the other four countries, no such exceptions are made. Quite obviously, these exceptions are of crucial significance and must be provided in any anti-spam legislation; however, it is important that they are defined in a manner such that their actual purpose i.e. of exclusion of familial and personal relationships from regulations applicable to spammers, is effectively achieved and the law does not become a creator for unnecessary litigation.

b. Transactional Messages

The term 'transactional messages' is used only under the CAN-SPAM Act of the USA. It basically covers messages sent when the recipient stands in an existing transactional relationship with the sender and the mail contains information specific to the recipient. It also includes employment relationships. In CASL, a similar exception is made under Section 6(6). The section is worded almost identically as the CAN-SPAM provision, though the term 'transactional messages' is not used. In the UK laws, messages for the purpose of direct marketing may be sent where the contact information of the recipient is received in the course of the sale or negotiations for the sale of a product or service to that recipient, thus implying an existing transactional relationship. One added proviso under the UK law is that the recipient must be clearly and distinctively given the opportunity to object, free of charge and in an easy manner, to the use of the e-mail address when collected and on the occasion of each message in case the customer has not initially refused such use.[72]

An exception for transactional messages is essential to ensure freedom of commercial speech rights even while effectively tackling spam. In the formulation of a model law, a combination of the American and the English laws may be workable.

c. Governmental Messages

The Spam Act, 2003 of Australia makes an exemption for 'designated commercial electronic message (DCEM)'. This exemption is to avoid any unintended restriction on communication between the government and the community.^[73] In order to be a DCEM, a message must-

1. Be authorized by the government;

2. Contain purely factual information and any related comments of non-commercial nature; and

3. Contain some information as to the identity of the sender company/individual.

DCEMs need not always be sent by government bodies and may also be sent by third parties authorized by the government.^[74] Such messages are exempt from the consent requirement as well as the unsubscribe option requirement but must comply with the identifier requirement. However, where government bodies are operating in a competitive environment, the provisions of the act would apply normally to them.^[75]

Similarly, Singapore's Spam Control Act does not apply to any electronic message where the sending of the message is authorized by the Government or a statutory body on the occurrence of any public emergency, in public interest or in the interests of public security or national defence.

These exemptions are essential in order to enable free communication of important information between the government and the citizens. The Singaporean wording of the exception is rather broad and would give the government immense space for misusing the law. Such a wording might be more effective if supplemented with the Australian proviso wherein governmental communications operating in a competitive environment are excluded.

4. Penalties

a. Penalties must be higher than benefit from spamming

If the penalty prescribed itself is too low, such that loss suffered from paying penalties is lower than net benefit from spamming, the spammer is not sufficiently deterred. Four out of the five countries analyzed in this paper prescribe only civil penalties in the form of fines for spamming. Recently, a Facebook spammer was found to have made a profit of $200 million in a year.[76] For instance, as noted above, the Australian law sets a limit for penalty at $1 million. Thus, such a penalty would constitute a small fraction of the profit from spamming and would not deter a spammer.

b. High penalty does not imply effective deterrence where probability of prosecution is low.

The CAN-SPAM Act prescribes the harshest penalties including both civil as well as criminal penalties. However, it has been rather ineffective in reducing spam. This is for the reason that this Act is more about how to spam legally than anything else. It is more like- ' you can spam but do not use false headers.'[77] As a consequence, unintentional spam from ignorant commercial establishments has reduced. However, due to easy compliance standards, the 'real' spammers still go undetected to a large extent.[78] Thus, even moderate penalties may serve as good deterrents where the probability of prosecution is high.

c. Effective enforcement is the key to effective deterrence.

The cornerstone of an effective spam law is effective enforcement. Penalties must be enforced in a manner that the cost of punishment is always higher than the benefit from spamming and the probability of conviction is high. In order to implement legislative measures effectively, governments should also undertake an information campaign on spam issues targeting users, business communities, private sector groups and other stakeholders as the one primary reason for sustenance of spam is the response received from certain recipients. Such supplementary activities would also facilitate the preservation of commercial rights as excessive penalties could inhibit regular commercial activities.

CONCLUSION

The observations made in this paper are crucial to the formulation of a model anti-spam law for India. The most important part of any ant-spam legislation would be the definition of 'spam' which, as established above, must be technologically neutral in order to be able to address as much unsolicited communication as possible. On the question of consent, a double opt-in is what this paper would propose. This model has been contemplated and recommended by academic and policy researchers as a possibly more effective consent model for spam laws; however, it has not been codified as a legal regime till date. It could be a rather groundbreaking approach that India could adopt as this clearly is the only model where 'opting-in' is realized in fact and in spirit. Further, exceptions are necessary in order to prevent the abuse of laws making certain such exceptions do not suffer from inclusive or exclusion errors. A combination of the exceptions under the Australian and the American laws seems ideal at this stage of research. In terms of penalty, this paper observed that only prescribing harsh penalties is not sufficient to effectively deter spammers but efficient modes of enforcement have to be formulated to ensure actual deterrence. Lastly, while a well-drafted national anti-spam legislation is clearly the need of the hour for India; additional steps have to be taken towards sensitizing citizens to the fact that the problem of spam is real and a costly threat to the communications infrastructure of the country and combat has to begin at the individual level.

[1] CAN-SPAM Act, § 7706(f) (7).

[2] Spam Act, 2003, § 7

[3] Spam Control Act, 2007, § 7(2)

[4] Canada's Anti-Spam Legislation, 2014, § 6.

[5] Canada's Anti-Spam Legislation, 2014, § 12.

[6] 15 U.S.C. § 7701 (2003).

[7] CAN-SPAM Act, Section 3 (2)(A)

[8] Spam Act, 2003, § 6

[9] Spam Control Act, 2007, § 5(1)

[10] Canada's Anti-Spam Legislation, 2014, § 6

[11] Canada's Anti-Spam Legislation, 2014, § 1(1)

[12] Regulation 19, EC Directives, 2003

[13] Regulation 20, EC Directives, 2003

[14] Regulation 21, EC Directives, 2003

[15] Regulation 22, EC Directives, 2003

[16] Section 11, Data Protection Act, 1998

[17] CAN-SPAM Act, Section 5(5)

[18] Spam Act, 2003, § 16(2)

[19] Spam Act, 2003, Schedule 2 (2)

[20] Spam Control Act, 2007 Section 11, Schedule 2(2)

[21] Canada's Anti-Spam Legislation, 2014, Section 6

[22] CAN-SPAM Act, 2003, Section 5(d)

[23] Spam Control Act, 2007, Schedule 2, 3(1), Section 11

[24] Chapter 47 of title 18, U.S.C., § 1037, inserted through an amendment by the CAN-SPAM Act, § 4(a) (1); '§ 5(A)(1).

[25] Spam Control Act, 2007, '§ 9

[26] Spam Control Act, 2007, '§ 2

[27] Spam Control Act, 2007, '§ 2

[28] Canada's Anti-Spam Legislation, 2014, § 7

[29] Canada's Anti-Spam Legislation, 2014, § 8

[30] CAN-SPAM Act, 2003, § 3(16)(A)

[31] Spam Act, 2003, Section 16(1), Section 8

[32] Spam Control Act, 2007, § 2

[33] Spam Control Act, 2007, § 12

[34] CAN-SPAM Act, 2003, § 7(a)(c)(d)

[35] CAN-SPAM Act, 2003, § 7(f)

[36] CAN-SPAM Act, 2003, § 7(g)

[37] MySpace, Inc. v. The Globe.com, Inc., 2007 WL 1686966 (C.D. Cal., Feb. 27, 2007)

[38] Spam Act, 2003, § 26(1)

[39] Spam Control Act, 2007, § 13

[40] Canada's Anti-Spam Legislation, § 47

[41] Regulation 30(1), EC Directives, 2003

[42] CAN-SPAM Act, 2003, § 3(2)(B)

[43] Spam Act, 2003, Schedule 1, § 2

[44] Spam Act, 2003, Schedule 1, § 3

[45] Spam Control Act, 2007, § 7(3)

[46] Spam Control Act, 2007, First Schedule Clause (1)

[47] Spam Control Act, 2007, First Schedule Clause (2)

[48] Canada's Anti-Spam Legislation, § 6(5a)

[49] Canada's Anti-Spam Legislation, § 6(5b)

[50] Canada's Anti-Spam Legislation, § 6(6)

[51] Canada's Anti-Spam Legislation, § 7

[52] Canada's Anti-Spam Legislation, § 8

[53]Section 22(3), EC Directives, 2003

[54] CAN-SPAM Act, § 7 (f)(3)(A).

[55] CAN-SPAM Act, § 4 (b)

[56] CAN-SPAM Act, § 4 (c)

[57] Spam Act, 2003, Sections 24, 25

[58] Spam Control Act, 2007, § 14

[59] Spam Control Act, 2007, § 15

[60] Canada's Anti-Spam Legislation, 2014, § 20(2)

[61] Canada's Anti-Spam Legislation, 2014, § 20(4)

[62] Regulation 30(1), EC Directive, 2003

[63] Regulations 31-32, EC Directive, 2003

[64] Section 47 and 60, Data Protection Act, 1998

[65] Spam and Phishing Statistics Report Q1-2014, Kaspersky Lab

http://usa.kaspersky.com/internet-security-center/threats/spam-statistics-report-q1-2014#.VVQxNndqN5I (last accessed 29^th May, 2015)

[66] Snow and Jayakar, Krishna, Can We Can Spam? A Comparison of National Spam Regulations, August 15, 2013. TPRC 41: The 41st Research Conference on Communication, Information and Internet Policy.

[67] Justin Rao and David Reiley, The Economics of Spam, Vol. 26, No. 3 The Journal of Economic Perspectives (2012), p. 104.

[68] Supra n. 66; p. 7

[69] Refer Table in Section 1.

[70] Dr. Ralph F. Wilson, Spam, Spam Bots, and Double Opt-in E-mail Lists, April 21, 2010; available at http://webmarketingtoday.com/articles/wilson-double-optin/ (last accessed 29^th May 2015).

[71] Section 2(a), Electronic Commerce Protection Regulations, http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html (last accessed 29^th May 2015)

[72] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam Through Legislation: A Comparative Analysis Of US And European Approaches, available at http://ceas.cc/2005/papers/146.pdf

[73] Spam Act 2003- A Practical Guide for Government, Australian Communications Authority, available at- http://www.acma.gov.au/webwr/consumer_info/spam/spam_act_pracguide_govt.pdf (last accessed 29^th May 2015)

[74] Ibid

[75] Id

[76] Charles Arthur, Facebook spammers make $200m just posting links, researchers say, The Guardian, 28^th August 2013, http://www.theguardian.com/technology/2013/aug/28/facebook-spam-202-million-italian-research (last accessed 29^th May, 2015)

[77] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam Through Legislation: A Comparative Analysis Of US And European Approaches, available at http://ceas.cc/2005/papers/146.pdf

[78] Carolyn Duffy Marsan, CAN-SPAM: What went wrong?, 6^th October 2008, available at

http://www.networkworld.com/article/2276180/security/can-spam--what-went-wrong-.html (last accessed 29^th May, 2015)

For more details visit https://cis-india.org/internet-governance/blog/anti-spam-laws-in-different-jurisdictions

'IRCTC’s Aadhaar play can violate SC order and derail National Security'

praskrishna — 2015-07-07T15:10:08Z

Your online railway bookings are going to become a wee bit more difficult if they aren’t already so.

The blog entry by Shubhra Rishi was published by CIO.IN on July 1, 2015. Sunil Abraham gave his inputs.

That is, if the IRCTC makes Aadhaar card compulsory during the registration process for e-ticketing. The move, according to a recent announcement by IRCTC, will ensure that users registering on the IRCTC website are properly identified of their identity and address through the Aadhaar card number verification.

So in case, you already have an Aadhaar card, then you need not worry. For those who don't have it yet or are reluctant to apply for it, are in for a tough time.

According to Sandip Dutta, public relations officer at IRCTC, the plan, although still in the preliminary state, is to make Aadhaar compulsory which will prevent touts from further exploiting the e-ticketing platform.

IRCTC which already has around three crore registered users, adds 15,000 new registrations every day. Just to give you the scale of an IRCTC website, a 15-minute tatkal window has about 1,000,000 people trying to log on to the IRCTC website. This means a new user won't be able to book a railway ticket on the IRCTC site until he owns an Aadhaar card.

Also Read: Indian CISO don’t trust UID with their data

"This is a complete overkill and will only result in harassment of an ordinary citizen," says Sunil Abraham, executive director at The Centre for Internet & Society. "Aadhaar, he says, should be used to prevent politicians and bureaucrats from engaging in big-ticket fraud or whole-sale corruption. It should be used to make the state more accountable to citizens and not the other way around. It is unfortunate that techno-utopians are using biometric technology to fight retail corruption or small-ticket fraud.

If IRCTC makes Aadhaar mandatory for user registrations, they will be in direct violation of the Supreme Court's interim order of September 23, 2013 where it has ordered that no person should suffer for not getting the Aadhaar card in spite of the authority making it mandatory, since government says it is voluntary.

On March 24, 2014 again, the Supreme Court reiterated its earlier order of 2013 and directed all government authorities and departments to modify their forms/circulars, etc., so as to not compulsorily require an Aadhaar number. In the same order the Supreme Court also restrained the UIDAI from transferring any biometric data to any agency without the consent of the person in writing as an interim measure.

According to cyber law expert and Supreme Court Lawyer, Pavan Duggal, till the time Aadhaar has been brought to a legislative sanctity, no government agency must make it compulsory and if they do so, they will be in gross violation of the order and will be held for contempt of court. "The National Identification Authority of India Bill that intends to give statutory backing to UIDAI (introduced in Rajya Sabha in 2010) is yet to be passed by the Parliament. Aadhaar is also non-compliant with the Information Technology Act 2000," says Duggal. Aadhaar, he says, is the unwanted child that hasn't proven legitimacy yet.

The illegitimacy, which continues to prevail due to several anomalies in the UIDAI’s Aadhaar allotment process. In March this year, about 20 million people enrolled in Delhi for an Aadhaar identification number, according to Census. However, the UIDAI generated about 17.7 million unique numbers in Delhi, about a million more than the city population.

In another incident, Aadhaar numbers were assigned to adult residents in 13 of the country's 36 states, and union territories surpassed their respective population as per 2011 census figures. However, the UIDAI blames that ‘gaps’ in census evaluation may have resulted in inaccuracy of the population data.

There have also been bizarre instances in the past where some Aadhaar cards displayed pictures of an empty chair, a tree, and a dog instead of the actual applicant.

So how does it aid unscrupulous elements in misusing the flaws of the Aadhaar card system?

To start with, Aadhaar captures biometrics of a user, which is neither permanent nor immovable, says Dr. Anupam Saraph, innovator, professor and an advisor in governance, informatics and strategic planning.

"Biometrics change during the life of a person, sometimes even within a year, or without warning. Biometrics can be easily stolen, replicated or misused as has been demonstrated by instances of fingerprints and iris scans of high profile targets being hacked. The enrollment agencies that have captured the biometric have the entire demographic and biometric database in their possession and as such it can be misused or stolen. Once the biometric fails or is stolen, all the functions that have crept to link access to the biometric are denied with little or no recourse to the victim," says Saraph.

“Another benign scenario may be large scale fake bookings to make tickets pricier, the malignant scenario will be entire trains used to transfer armies of anti-nationals and terrorists. Therefore, the Railway Minister must rise to cancel any such plans," says Saraph, and the Home Minister and Defence Minister must immediately scrap the linkage of Aadhaar to any database, require that the entire UID is destroyed as was done in the UK. “This kind of compromise requires the initiation of a time-bound judicial probe by a retired CAG and Supreme Court Judge supported by the CBI to investigate the exposure of the country to serious threats to national security due to UID,” he says.

And therefore, the bigger question isn't whether Aadhaar should be made compulsory or not, but whether it is a foolproof method to validate someone's identity. If it isn’t, then why is IRCTC playing the Aadhaar card?

For more details visit https://cis-india.org/internet-governance/news/cio-july-1-2015-irctc-aadhaar-play-can-violate-sc-order-and-derail-national-security

Regulatory Perspectives on Net Neutrality

pranesh — 2015-07-18T02:46:30Z

In this paper Pranesh Prakash gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation.

With assistance by Vidushi Marda (Programme Officer, Centre for Internet and Society) and Tarun Krishnakumar (Research Volunteer, Centre for Internet and Society). I would like to specially thank Vishal Misra, Steve Song, Rudolf van der Berg, Helani Galpaya, A.B. Beliappa, Amba Kak, and Sunil Abraham for extended discussions, helpful suggestions and criticisms. However, this paper is not representative of their views, which are varied.

Today, we no longer live in a world of "roti, kapda, makaan", but in the world of "roti, kapda, makaan aur broadband". ^{^[1]} This is recognized by the National Telecom Policy IV.1.2, which states the need to "recognise telecom, including broadband connectivity as a basic necessity like education and health and work towards 'Right to Broadband'."^{^[2]} According to the IAMAI, as of October 2014, India had 278 million internet users. ^{^[3]} Of these, the majority access Internet through their mobile phones, and the WEF estimates only 3 in 100 have broadband on their mobiles.^{^[4]} Thus, the bulk of our population is without broadband. Telecom regulation and net neutrality has a very important role in enabling this vision of Internet as a basic human need that we should aim to fulfil.

1. Why should we regulate the telecom sector?

All ICT regulation should be aimed at achieving five goals: achieving universal, affordable access; ^{^[5]} ensuring and sustaining effective competition in an efficient market and avoiding market failures; protecting against consumer harms; ensuring maximum utility of the network by ensuring interconnection; and addressing state needs (taxation, security, etc.). Generally, all these goals go hand in hand, however some tensions may arise. For instance, universal access may not be provided by the market because the costs of doing so in certain rural or remote areas may outweigh the immediate monetary benefits private corporations could receive in terms of profits from those customers. In such cases, to further the goal of universal access, schemes such as universal service obligation funds are put in place, while ensuring that such schemes either do not impact competition or very minimally impact it.

It is clear that to maximise societal benefit, effective regulation of the ICT sector is a requirement, which otherwise, due to the ability of dominant players to abuse network effect to their advantage, is inherently prone towards monopolies. For instance, in the absence of regulation, a dominant player would charge far less for intra-network calls than inter-network calls, making customers shift to the dominant network. This kind of harm to competition should be regulated by the ICT regulator. However, it is equally true that over-regulation is as undesirable as under-regulation, since over-regulation harms innovation - whether in the form of innovative technologies or innovative business models. The huge spurt of growth globally of the telecom sector since the 1980s has resulted not merely from advancements in technology, but in large part from the de-monopolisation and deregulation of the telecom sector.^{^[6]} Similarly, the Internet has largely flourished under very limited technology-specific regulation. For instance, while interconnection between different telecom networks is heavily regulated in the domestic telecom sector, interconnection between the different autonomous systems (ASes) that make up the Internet is completely unregulated, thereby allowing for non-transparent pricing and opaque transactions. Given this context, we must ensure we do not over-regulate, lest we kill innovation.

2. Why should we regulate Net Neutrality? And whom should we regulate?

We wouldn't need to regulate Net Neutrality if ISPs were not "gatekeepers" for last-mile access. "Gatekeeping" occurs when a single company establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach the customers of the telecom network without passing through the telecom network. The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in "transit agreements", a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is not possible in the last mile.

This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice. This is why we believe that promoting the five goals mentioned above would require regulation of last-mile telecom operators to prevent unjust discrimination against end-users and content providers.

Thus, net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

Discriminatory practices at the level of access to the Internet raises the following set of concerns:

1. Freedom of speech and expression, freedom of association, freedom of assembly, and privacy.

2. Harm to effective competition

a. This includes competition amongst ISPs as well as competition amongst content providers.

b. Under-regulation here may cause harm to innovation at the content provider level, including through erecting barriers to entry.

c. Over-regulation here may cause harm to innovation in terms of ISP business models.

3. Harm to consumers

a. Under-regulation here may harm consumer choice and the right to freedom of speech, expression, and communication.

b. Over-regulation on this ground may cause harm to innovation at the level of networking technologies and be detrimental to consumers in the long run.

4. Harm to "openness" and interconnectedness of the Internet, including diversity (of access, of content, etc.)

a. Exceptions for specialized services should be limited to preserve the open and interconnectedness of the Internet and of the World Wide Web.

It might help to think about Net Neutrality as primarily being about two overlapping sets of regulatory issues: preferential treatment of particular Internet-based services (in essence: content- or source-/destination-based discrimination, i.e., discrimination on basis of 'whose traffic it is'), or discriminatory treatment of applications or protocols (which would include examples like throttling of BitTorrent traffic, high overage fees upon breaching Internet data caps on mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic it is').

Situations where the negative or positive discrimination happens on the basis of particular content or address should be regulated through the use of competition principles, while negative or positive discrimination at the level of specific class of content, protocols, associated ports, and other such sender-/receiver-agnostic features, should be regulated through regulation of network management techniques . The former deals with instances where the question of "in whose favour is there discrimination" may be asked, while the latter deals with the question "in favour of what is there discrimination".

In order to do this, a regulator like TRAI can use both hard regulation - price ceilings, data cap floors, transparency mandates, preventing specific anti-competitive practices, etc. - as well as soft regulation - incentives and disincentives.

3.1.1 Net Neutrality and human rights

Any discussion on the need for net neutrality impugns the human rights of a number of different stakeholders. Users, subscribers, telecom operators and ISPs all possess distinct and overlapping rights that are to be weighed against each other before the scope, nature and form of regulatory intervention are finalised. The freedom of speech, right to privacy and right to carry on trade raise some of the most pertinent questions in this regard.

For example, to properly consider issues surrounding the practice of paid content-specific zero-rating from a human rights point of view, one must seek to balance the rights of content providers to widely disseminate their 'speech' to the largest audiences against the rights of consumers to have access to a diverse variety of different, conflicting and contrasting ideas.

This commitment to a veritable marketplace or free-market of ideas has formed the touchstone of freedom of speech law in jurisdictions across the world as well as finding mention in pronouncements of the Indian Supreme Court. Particular reference is to be made to the dissent of Mathew, J. inBennett Coleman v. Union of India^{^[7]} and of the majority Sakal Papers v. Union of India^{^[8]} which rejected the approach.

Further, the practice of deep-packet inspection, which is sometimes used in the process of network management, raises privacy concerns as it seeks to go beyond what is "public" information in the header of an IP packet, necessary for routing, to analysing non-public information. ^{^[9]}

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

While the principles relating to Net Neutrality remain the same in all countries (i.e., trying to prevent gatekeepers from unjustly exploiting their position), the severity of the problem varies depending on competition in the market, on the technologies, and on many other factors. One way to measure fair or stable allocation of the surplus created by a network - or a network-of-networks like the Internet - is by treating it as a convex cooperation game and thereupon calculating that game's Shapley value:^{^[10]} in the case of the Internet, this would be a game involving content ISPs, transit ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending on the number of competitors there are in the market: thus, the fair/stable allocation when there's vibrant competition in the market is different from the fair/stable allocation in a market without such competition. That goes to show that a desirable approach when an ISP tries to unjustly enrich itself by charging other network-participants may well be to increase competition, rather than directly regulating the last-mile ISP. Further, it shows that in a market with vibrant last-mile competition, the capacity of the last-mile ISP to unjustly are far diminished.

In countries which are remote and have little international bandwidth, the need to conserve that bandwidth is high. ISPs can regulate that by either increasing prices of Internet connections for all, or by imposing usage restrictions (such as throttling) on either heavy users or bandwidth-hogging protocols. If the amount of international bandwidth is higher, the need and desire on part of ISPs to indulge in such usage restrictions decreases. Thus, the need to regulate is far higher in the latter case, than in the former case.

The above paragraphs show that both the need for regulation and also the form that the regulation should take depend on a variety of conditions that aren't immediately apparent.

Thus, the framework that the regulator sets out to tackle issues relating to Net Neutrality are most important, whereas the specific rules may need to change depending on changes in conditions. These conditions include:

● last-mile market

○ switching costs between equivalent service providers

○ availability of an open-access last-mile

○ availability of a "public option" neutral ISP

○ increase or decrease in the competition, both in wired and mobile ISPs.

● interconnection market

○ availability of well-functioning peering exchanges

○ availability of low-cost transit

● technology and available bandwidth

○ spectrum efficiency

○ total amount of international bandwidth and local network bandwidth

● conflicting interests of ISPs

○ do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

3.3 How should we deal with anti-competitive practices?

Anti-competitive practices in the telecom sector can take many forms: Abuse of dominance, exclusion of access to specific services, customer lock-in, predatory pricing, tying of services, cross-subsidization, etc., are a few of them. In some cases the anti-competitive practice targets other telecom providers, while in others it targets content providers. In the both cases, it is important to ensure that ensure that telecom subscribers have a competitive choice between effectively substitutable telecom providers and an ability to seamlessly switch between providers.

3.3.1 Lowering Switching Costs

TRAI has tackled many of these issues head on, especially in the mobile telephony space, while competitive market pressures have helped too:

● Contractual or transactional lock-in. The easiest way to prevent shifting from one network to another is by contractually mandating a lock-in period, or by requiring special equipment (interoperability) to connect to one's network. In India, this is not practised in the telecom sector, with the exception of competing technologies like CDMA and GSM. Non-contractual lock-ins, for instance by offering discounts for purchasing longer-term packages, are not inherently anti-competitive unless that results in predatory pricing or constitutes an abuse of market dominance. In India, switching from one mobile provider to another, though initiated 15 years into the telecom revolution, is in most cases now almost as easy as buying a new SIM card.^{^[11]} TRAI may consider proactive regulation against contractual lock-in.

● Number of competitors. Even if switching from one network to another is easy, it is not useful unless there are other equivalent options to switch to. In the telecom market, coverage is a very important factor in judging equivalence. Given that last mile connectivity is extremely expensive to provide, the coverage of different networks are very different, and this is even more true when one considers wired connectivity, which is difficult to lay in densely-populated urban and semi-urban areas and unprofitable in sparsely-populated areas. The best way to increase the number of competitors is to make it easier for competitors to exist. Some ways of doing this would be through enabling spectrum-sharing, lowering right-of-way rents, allowing post-auction spectrum trading, and promoting open-access last-mile fibre carriers and to thereby encourage competition on the basis of price and service and not exclusive access to infrastructure.

● Interconnection and mandatory carriage. The biggest advantage a dominant telecom player has is exclusive access to its customer base. Since in the telecom market, no telco wants to not connect to customers of another telco, they do not outright ban other networks. However, dominant players can charge high prices from other networks, thereby discriminating against smaller networks. In the early 2000s, Airtel-to-Airtel calls were much cheaper than Airtel-to-Spice calls. However, things have significantly changed since then. TRAI has, since the 2000s, heavily regulated interconnection and imposed price controls on interconnection ("termination") charges.^{^[12]} Thus, now, generally, inter-network calls are priced similarly to intra-network calls. And if you want cheaper Airtel-to-Airtel calls, you can buy a special (unbundled) pack that enables an Airtel customer to take advantage of the fact that her friends are also on the same network, and benefits Airtel since they do not in such cases have to pay termination charges. Recently, TRAI has even made the interconnection rates zero in three cases: landline-to-landline, landline-to-cellular, and cellular-to-landline, in a bid to decrease landline call rates, and incentivise them, allowing a very low per call interconnection charges of 14 paise for cellular-to-cellular connections. ^{^[13]}

○ With regard to Net Neutrality, we must have a rule that no termination charges or carriage charges may be levied by any ISP upon any Internet service. No Internet service may be discriminated against with regard to carriage conditions or speeds or any other quality of service metric. In essence all negative discrimination should be prohibited. This means that Airtel cannot forcibly charge WhatsApp or any other OTT (which essentially form a different "layer") money for the "privilege" of being able to reach Airtel customers, nor may Airtel slow down WhatsApp traffic and thus try to force WhatsApp to pay. There is a duty on telecom providers to carry any legitimate traffic ("common carriage"), not a privilege. It is important to note that consumer-facing TSPs get paid by other interconnecting Internet networks in the form of transit charges (or the TSP's costs are defrayed through peering). There shouldn't be any separate charge on the basis of content (different layer from the carriage) rather than network (same layer as the carriage). This principle is especially important for startups, and which are often at the receiving end of such discriminatory practices.

● Number Portability. One other factor that prevents users from shifting between one network and another is the fact that they have to change an important aspect of their identity: their phone number (this doesn't apply to Internet over DSL, cable, etc.). At least in the mobile space, TRAI has for several years tried to mandate seamless mobile number portability. The same is being tried by the European Commission in the EU. ^{^[14]} While intra-circle mobile number portability exists in India - and TRAI is pushing for inter-circle mobile number portability as well^{^[15]} - this is nowhere as seamless as it should be.

● Multi-SIM phones. The Indian market is filled with phones that can accommodate multiple SIM cards, enabling customers to shift seamlessly between multiple networks. This is true not just in India, but most developing countries with extremely price-sensitive customers. Theoretically, switching costs would approach zero if in a market with full coverage by n telecom players every subscriber had a phone with n SIM slots with low-cost SIM cards being available.

The situation in the telecom sector with respect to the above provides a stark contrast to the situation in the USA, and to the situation in the DTH market. In the USA, phones get sold at discounts with multi-month or multi-year contracts, and contractual lock-ins are a large problem. Keeping each of the above factors in mind, the Indian mobile telecom space is far more competitive than the US mobile telecom space.

Further, in the Indian DTH market, given that there is transactional lock-in (set-top boxes aren't interoperable in practice, though are mandated to be so by law^{^[16]}), there are fewer choices in the market; further, the equivalent of multi-SIM phones don't exist with respect to set-top boxes. Further, while there are must-carry rules with respect to carriage, they can be of three types: 1) must mandatorily provide access to particular channels^{^[17]} (positive obligation, usually for government channels); 2) prevented from not providing particular channels (negative obligation, to prevent anti-competitive behaviour and political censorship); and 3) must mandatorily offer access to at least a set number of channels (positive obligation for ensuring market diversity). ^{^[18]} Currently, only (1) is in force, since despite attempts by TRAI to ensure (3) as well.^{^[19]}

If the shifting costs are low and transparency in terms of network practice is reported in a standard manner and well-publicised, then that significantly weakens the "gatekeeper effect", which as we saw earlier, is the reason why we wish to introduce Net Neutrality regulation. This consequently means, as explained above in section 3.2, that despite the same Net Neutrality principles applying in all markets and countries, the precise form that the Net Neutrality regulations take in a telecom market with low switching costs would be different from the form that such regulations would take in a market with high switching costs.

3.3.2 Anti-competitive Practices

Some potential anti-competitive practices, which are closely linked, are cross-subsidization, tying (anti-competitive bundling) of multiple services, and vertical price squeeze. All three of these are especial concerns now, with the increased diversification of traditional telecom companies, and with the entry into telecom (like with DTH) of companies that create content. Hence, if Airtel cross-subsidizes the Hike chat application that it recently acquired, ^{^[20]} or if Reliance Infocomm requires customers to buy a subscription to an offering from Reliance Big Entertainment, or if Reliance Infocomm meters traffic from another Reliance Big Entertainment differently from that from Saavn, all those would be violative of the principle of non-discrimination by gatekeepers. This same analysis can be applied to all unpaid deals and non-commercial deals, including schemes such as Internet.org and Wikipedia Zero, which will be covered later in the section on zero-rating.

While we have general rules such as sections 3 and 4 of the Competition Act, we do not currently have specific rules prohibiting these or other anti-competitive practices, and we need Net Neutrality regulation that clearly prohibit such anti-competitive practices so that the telecom regulator can take action for non-compliance . We cannot leave these specific policy prescriptions unstated, even if they are provided for in section 3 of the Competition Act. These concerns are especial concerns in the telecom sector, and the telecom regulator or arbitrator should have the power to directly deal with these, instead of each case going to the Competition Commission of India. This should not affect the jurisdiction of the CCI to investigate and adjudicate such matters, but should ensure that TRAI both has suo motu powers, and that the mechanism to complain is made simple (unlike the current scenario, where some individual complainants may fall in the cracks between TRAI and TDSAT).

3.3.3 Zero-rating

Since a large part of the net neutrality debate in India involves zero-rating practices, we deal with that in some length. Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer . The motivations for zero-rating may also be varied, as we shall see below. Further, depending on the circumstances, zero-rating could be competitive or anti-competitive. All forms of zero-rating result in some form of discrimination, but not all zero-rating is harmful, nor does all zero-rating need to be prohibited.

While, as explained in the section on interconnection and carriage above, negative discrimination at the network level should be prohibited, that leaves open the question of positive discrimination. It follows from section 3.1 that the right frame of analysis of this question is harm to competition, since the main harm zero-rating is, as we shall see below, about discriminating between different content providers, and not discrimination at the level of protocols, etc.

Whether one should allow for any form of positive discrimination at the network level or not depends on whether positive discrimination of (X) has an automatic and unfair negative impact on all (~X). That, in turn, depends on whether (~X) is being subject to unfair competition. As Wikipedia notes, "unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust." Thus, positive discrimination that has a negative impact on effective competition shall not be permitted, since in such cases it is equivalent to negative discrimination ("zero-sum game") . Positive discrimination that does not have a negative impact on effective competition may be permitted, especially since it results in increased access and increases consumer benefit, as long as the harm to openness and diversity is minimized .

While considering this, one should keep in mind the fact that startups were, 10-15 years ago, at a huge disadvantage with regard to wholesale data purchase. The marketplaces for data centres and for content delivery networks (which speed up delivery of content by being located closer, in network terms, to multiple last-mile ISPs) were nowhere near as mature as they are today, and the prices were high. There was a much higher barrier to startup entry than there is today, due to the prices and due to larger companies being able to rely on economies of scale to get cheaper rates. Was that unfair? No. There is no evidence of anti-competitive practices, nor of startups complaining about such practices. Therefore, that was fair competition, despite specific input costs that were arguably needed (though not essential) for startups to compete being priced far beyond their capacity to pay.

Today the marketplace is very different, with a variety of offerings. CDNs such as Cloudflare, which were once the preserve of rich companies, even have free offerings, thus substantially lowering barriers for startups that want faster access to customers across the globe.

Is a CDN an essential cost for a startup? No. But in an environment where speed matters and customers use or don't use a service depending on speed; and where the startup's larger competitors are all using CDNs, a startup more or less has to. Thankfully, given the cheap access to CDNs these days, that cost is not too high for a startup to bear. If the CDN market was not competitive enough, would a hypothetical global regulator have been justified in outright banning the use of CDNs to 'level' the playing field? No, because the hypothetical global regulator instead had the option to (and would have been justified in) regulating the market to ensure greater competition.

A regulator should not prohibit an act that does not negatively impact access, competition, consumer benefit, nor openness (including diversity), since that would be over-regulation and would harm innovation.

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

There exist multiple instances where there is no commercial transaction between the OTT involved and the telecom carrier, in which zero-priced zero-rating of specific Internet content happens. We know that there is no commercial transaction either through written policy (Wikipedia Zero) or through public statements (Internet.org, a bouquet of sites). In such cases, the telecom provider would either be providing such services out of a sense of public interest, given the social value of those services, or would be providing such services out of self-interest, to showcase the value of particular Internet set the same time.

The apprehended risk is that of such a scheme creating a "walled garden", where users would be exposed only to those services which are free since the search and discovery costs of non-free Internet (i.e., any site outside the "walled garden") would be rather high. This risk, while real, is rather slim given the fact that the economic incentives for those customers who have the ability to pay for "Internet packs" but currently do not find a compelling reason to do so, or out of both a sense of public interest and self-interest of the telecom providers works against this.

In such non-commercial zero-priced zero-rating, a telecom provider would only make money if and only if subscribers start paying for sites outside of the walled garden. If subscribers are happy in the walled garden, the telecom provider starts losing money, and hence has a strong motivation to stop that scheme. If on the other hand, enough subscribers start becoming paying customers to offset the cost of providing the zero-priced zero-rated service(s) and make it profitable, that shows that despite the availability of zero-priced options a number of customers will opt for paid access to the open Internet and the open Web, and the overall harms of such zero-priced zero-rating would be minimal. Hence, the telecom providers have an incentive to keep the costs of Internet data packs low, thus encouraging customers who otherwise wouldn't pay for the Internet to become paying customers.

There is the potential of consumer harm when users seek to access a site outside of the walled garden, and find to their dismay that they have been charged for the Internet at a hefty rate, and their prepaid balance has greatly decreased. This is an issue that TRAI is currently appraised of, and a suitable solution would need to be found to protect consumers against such harm.

All in all, given that the commercial interests of the telecom providers align with the healthy practice of non-discrimination, this form of limited positive discrimination is not harmful in the long run, particularly because it is not indefinitely sustainable for a large number of sites. Hence, it may not be useful to ban this form of zero-priced zero-rating of services as long as they aren't exclusive, or otherwise anti-competitive (a vertical price-squeeze, for instance), and the harm to consumers is prohibited and the harm to openness/diversity is minimized.

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

Suppose, for instance, an OTT uses a CDN located, in network distance terms, near an eyeball ISP. In this case, the ISP has to probably pay less than it would have to had the same data been located in a data centre located further away, given that it would have fewer interconnection-related charges.

Hence the monetary costs of providing access to different Web destinations are not equal for the ISP. This cost can be varied either by the OTT (by it locating the data closer to the ISP - through a CDN, by co-locating where the ISP is also present, or by connecting to an Internet Exchange Point which the ISP is also connected to - or by it directly "peering" with the ISP) or by the ISP (by engaging in "transparent proxying" in which case the ISP creates caches at the ISP level of specific content (usually by caching non-encrypted data the ISP's customers request) and serves the cached content when a user requests a site, rather than serving the actual site). None of the practices so far mentioned are discriminatory from the customer's perspective with regard either to price or to prioritization, though all of them enable faster speeds to specific content. Hence none of the above-mentioned practices are considered even by the most ardent Net Neutrality advocates to be violations of that principle. ^{^[21]} However, if an ISP zero-rates the content to either pass on its savings to the customer^{^[22]} or to incentivize the customer to access services that cost the ISP less in terms of interconnection costs, that creates a form of price discrimination for the customer, despite it benefiting the consumer.

The essential economic problem is that the cost to the ISP is variable, but the cost to the customer is fixed. Importantly, this problem is exacerbated in India where web hosting prices are high, transit prices are high, peering levels are low, and Internet Exchange Points (IXPs) are not functioning well. ^{^[23]} These conditions create network inefficiencies in terms of hosting of content further away from Indian networks in terms of network distance, and thus harms consumers as well as local ISPs. In order to set this right, zero-rating of this sort may be permitted as it acts as an incentive towards fixing the market fundamentals. However, once the market fundamentals are fixed, such zero-rating may be prohibited.

This example shows that the desirability or otherwise of discriminatory practices depends fully on the conditions present in the market, including in terms of interconnection costs.

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

Since at least early 2014, mobile operators have been marketing special zero-rating "packs". These packs, if purchased by the customer, allow capped or in some instances uncapped, zero-rating of a service such as WhatsApp or Facebook, meaning traffic to/from that service will not be counted against their regular Internet usage.

For a rational customer, purchasing such a pack only makes sense in one of two circumstances:

● The person has Internet connectivity on her Internet-capable phone, but has not purchased an "Internet data pack" since she doesn't find the Internet valuable. Instead, she has heard about "WhatsApp", has friends who are on it, and wishes to use that to reduce her SMS costs (and thereby eat into the carriage provider's ability to charge separately for SMSes). She chooses to buy a WhatsApp pack for around ₹25 a month instead of paying ₹95 for an all-inclusive Internet data pack.

● The person has Internet connectivity on her Internet-capable phone, and has purchased an "Internet data pack". However, that data pack is capped and she has to decide between using WhatsApp and surfing web sites. She is on multiple WhatsApp groups and her WhatsApp traffic eats up 65% of her data cap. She thus has to choose between the two, since she doesn't want to buy two Internet data packs (each costing around ₹95 for a month). She chooses to buy a WhatsApp pack for ₹25 a month, paying a cumulative total of ₹120 instead of ₹190 which she would have had to had she bought two Internet data packs. In this situation, "unbundling" is happening, and this benefits the consumer. Such unbundling harms the openness and integrity of the Internet.

If users did not find value in the "special" data packs, and there is no market demand for such products, they will cease to be offered. Thus, assuming a telco's decision to offer such packs is purely customer-demand driven - and not due to deals it has struck with service providers - if Orkut is popular, telcos would be interested in offering Orkut packs and if Facebook is popular, they would be interested in offering a Facebook pack. Thus, clearly, there is nothing anti-competitive about such customer-paid zero-rating packs, whereas they clearly enhance consumer benefit. Would this increase the popularity of Orkut or Facebook? Potentially yes. But to prohibit this would be like prohibiting a supermarket from selectively (and non-collusively) offering discounts on popular products. Would that make already popular products even more popular? Potentially, yes. But that would not be seen as a harm to competition but would be seen as fair competition. This contravenes the "openness" of the Internet (i.e., the integral interconnected diversity that an open network like the Internet embodies) as an independent regulatory goal. The Internet, being a single gateway to a mind-boggling variety of services, allows for a diverse "long tail", which would lose out if the Internet was seen solely as a gateway to popular apps, sites, and content. However, given that this is a choice exercised freely by the consumer, such packs should not be prohibited, as that would be a case of over-regulation.

The one exception to the above analysis of competition, needless to say, is if that these special packs aren't purely customer-demand driven and are the product of special deals between an OTT and the telco. In that case, we need to ensure it isn't anti-competitive by following the prescriptions of the next section.

3.3.3.1.4 Earning Additional Revenues from Content Providers

With offerings like Airtel Zero, we have a situation where OTT companies are offering to pay for wholesale data access used by their customers, and make accessing their specific site or app free for the customer. From the customer's perspective, this is similar to a toll-free number or a pre-paid envelope or free-to-air TV channel being offered on a particular network.

However, from the network perspective, these are very different. Even if a customer-company pays Airtel for the toll-free number, that number is accessible and toll-free across all networks since the call terminates on Airtel networks and Airtel pays the connecting network back the termination charge from the fee they are paid by the customer-company. This cannot happen in case of the Internet, since the "call" terminates outside of the reach of the ISP being paid for zero-rating by the OTT company; hence unless specific measures are taken, zero-rating has to be network-specific.

The comparison to free-to-air channels is also instructive, since in 2010 TRAI made recommendations that consumers should have the choice of accessing free-to-air channels à-la-carte, without being tied up to a bouquet.^{^[24]} This would, in essence, allow a subscriber to purchase a set-top box, and without paying a regular subscription fee watch free-to-air channels. ^{^[25]} However, similar to toll-free numbers, these free-to-air channels are free-to-air on all MSO's set-top boxes, unlike the proposed Airtel Zero scheme under which access to a site like Flipkart would be free for customers on Airtel's network alone.

Hence, these comparisons, while useful in helping think through the regulatory and competition issues, should not be used as instructive exact analogies, since they aren't fully comparable situations.

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

As noted above, a competitive marketplace already exists for wholesale data purchase at the level of "content ISPs" (including CDNs), which sell wholesale data to content providers (OTTs). This market is at present completely unregulated. The deals that exist are treated as commercial secrets. It is almost certain that large OTTs get better rates than small startups due to economies of scale.

However, at the eyeball ISP level, it is a single-sided market with ISPs competing to gain customers in the form of end-users. With a scheme like "Airtel Zero", this would get converted into a double-sided market, with a gatekeeper without whom neither side can reach the other being in the middle creating a two-sided toll. This situation is ripe for market abuse: this situation allows the gatekeeper to hinder access to those OTTs that don't pay the requisite toll or to provide preferential access to those who pay, apart from providing an ISP the opportunity to "double-dip".

One way to fix this is to prevent ISPs from establishing a double-sided market. The other way would be to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP's ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn't lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn't there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

However, all forms of competitive Internet service-paid zero-priced zero-rating, even when they don't harm competition, innovation amongst content providers, or consumers, will necessarily harm openness and diversity of the Internet. For instance, while richer companies with a strong presence in India may pay to zero-rate traffic for their Indian customers, decentralized technologies such as XMPP and WebRTC, having no central company behind them, would not, leading to customers preferring proprietary networks and solutions to such open technologies, which in turn, thanks to the network effect, leads to a vicious cycle. These harms to openness and diversity have to be weighed against the benefit in terms of increase in access when deciding whether to allow for competitive OTT-paid zero-priced zero-rating, as such competition doesn't exist in a truly level playing field . Further, it must be kept in mind that there are forms of zero-priced zero-rating that decrease the harm to openness / diversity, or completely remove that harm altogether: that there are other options available must be acknowledged by the regulator when considering the benefit to access from competitive OTT-paid zero-priced zero-rating.

3.3.3.1.6 Other options for zero-rating

There are other models of zero-priced zero-rating that either minimize the harm is that of ensuring free Internet access for every person. This can take the form of:^{^[26]}

● A mandatorily "leaky" 'walled garden':

○ The first-degree of all hyperlinks from the zero-rated OTT service are also free.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers during specified hours.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers based on amount on usage of the OTT service.^{^[27]}

● Zero-rating of all Web traffic

○ In exchange for viewing of advertisements

○ In exchange for using a particular Web browser

○ At low speeds on 3G, or on 2G.

3.3.3.2. What kinds of zero-rating are good

The majority of the forms of zero-rating covered in this section are content or source/destination-based zero-rating. Only some of the options covered in the "other options for zero-rating" section cover content-agnostic zero-rating models. Content-agnostic zero-rating models are not harmful, while content-based zero-rating models always harm, though to varying degrees, the openness of the Internet / diversity of OTTs, and to varying degrees increase access to Internet-based services. Accordingly, here is an hierarchy of desirability of zero-priced zero-rating, from most desirable to most harmful:

1. Content- & source/destination-agnostic zero-priced zero-rating.^{^[28]}

2. Content- & source/destination-based non-zero-priced zero-rating, without any commercial deals, chosen freely & paid for by users. ^{^[29]}

3. Content- & source/destination-based zero-priced zero-rating, without any commercial deals, with full transparency. ^{^[30]}

4. Content- & source/destination-based zero-priced zero-rating, on the basis of commercial deal with partial zero-priced access to all content, with non-discriminatory access to the same deal by all with full transparency.^{^[31]}

5. Content- & source/destination-based zero-priced zero-rating, on the basis of a non-commercial deal, without any benefits monetary or otherwise, flowing directly or indirectly from the provider of the zero-rated content to the ISP, with full transparency. ^{^[32]}

6. Content- & source-destination-based zero-priced zero-rating, across all telecom networks, with standard pricing, non-discriminatory access, and full transparency.

7. Content- & source-destination-based zero-priced zero-rating, with standard pricing, non-discriminatory access, and full transparency.

8. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and full transparency.

9. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and transparency to the regulator.

10. Content- & source-destination-based zero-priced zero-rating, without any regulatory framework in place.

3.3.4 Cartels and Oligopoly

While cartels and oligopolies may have an impact on Net Neutrality, they are not problems that any set of anti-discrimination rules imposed on gatekeepers can fix. Further, cartels and oligopolies don't directly enhance the ability of gatekeepers to unjustly discriminate if there are firm rules against negative discrimination and price ceilings and floors on data caps are present for data plans. Given this, TRAI should recommend that this issue be investigated and the Competition Commission of India should take this issue up.

3.4 Reasonable Network Management Principles

Reasonable network management has to be allowed to enable the ISPs to manage performance and costs on their network. However, ISPs may not indulge in acts that are harmful to consumers in the name of reasonable network management. Below are a set of guidelines for when discrimination against classes of traffic in the name of network management are justified.

● Discrimination between classes of traffic for the sake of network management should only be permissible if:

○ there is an intelligible differentia between the classes which are to be treated differently, and

○ there is a rational nexus between the differential treatment and the aim of such differentiation, and

○ the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP^{^[33]}, and

○ the network management practice is the least harmful manner in which to achieve the aim.

● Provision of specialized services (i.e., "fast lanes") is permitted if and only if it is shown that

○ The service is available to the user only upon request, and not without their active choice, and

○ The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or

○ The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

These principles are only applicable at the level of ISPs, and not on access gateways for institutions that may in some cases be run by ISPs (such as a university network, free municipal WiFi, at a work place, etc.), which are not to be regulated as common carriers.

These principles may be applied on a case-by-case basis by a regulator, either suo motu or upon complaint by customers.

^{^[1]} Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, (19 May 2011), http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

^{^[2]} Available at http://www.trai.gov.in/WriteReadData/userfiles/file/NTP%202012.pdf.

^{^[3]} IAMAI, India to Cross 300 million internet users by Dec 14, (19 November, 2014), http://www.iamai.in/PRelease_detail.aspx?nid=3498&NMonth=11&NYear=2014.

^{^[4]} World Economic Forum, The Global Information Technology Report 2015, http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf.

^{^[5]} http://www.ictregulationtoolkit.org/4.1#s4.1.1

^{^[6]} See R.U.S. Prasad, The Impact of Policy and Regulatory Decisions on Telecom Growth in India (July 2008), http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/SCID361.pdf.

^{^[7]} 1973 AIR 106

^{^[8]} 1962 AIR 305

^{^[9]} "When ISPs go beyond their traditional use of IP headers to route packets, privacy risks begin to emerge." Alissa Cooper, How deep must DPI be to incur privacy risk? http://www.alissacooper.com/2010/01/25/how-deep-must-dpi-be-to-incur-privacy-risk/

^{^[10]} Richard T.B. Ma & Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network Neutrality, http://dna-pubs.cs.columbia.edu/citation/paperfile/200/netneutrality.pdf

^{^[11]} Mobile number portability was launched in India on January 20, 2011 in the Haryana circle. See http://indiatoday.intoday.in/story/pm-launches-nationwide-mobile-number-portability/1/127176.html . Accessed on April 24, 2015.

^{^[12]} For a comprehensive list of all TRAI interconnection regulations & subsequent amendments, see http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[13]} See Telecommunication Interconnection Usage Charges (Eleventh Amendment) Regulations, 2015 (1 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[14]} Article 30 of the Universal Service Directive, Directive 2002/22/EC.

^{^[15]} See Telecommunication Mobile Number Portability (Sixth Amendment) Regulations, 2015 (3 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[16]} The Telecommunication (Broadcasting and Cable) Services (Seventh) (The Direct to Home Services) Tariff Order, 2015 (2 of 2015).

^{^[17]} Section 8, Cable Television Networks Act, 1995.

^{^[18]} TRAI writes new rules for Cable TV, Channels, Consumers, REAL TIME NEWS, (August 11, 2014), http://rtn.asia/rtn/233/1220_trai-writes-new-rules-cable-tv-channels-consumers.

^{^[19]} An initial requirement for all multi system operators to have a minimum capacity of 500 channels was revoked by the TDSAT in 2012. For more details, see http://www.televisionpost.com/cable/msos-not-required-to-have-500-channel-headends-tdsat/.

^{^[20]} Aparna Ghosh, Bharti SoftBank Invests $14 million in Hike, LIVE MINT, (April 2, 2014), http://www.livemint.com/Companies/nI38YwQL2eBgE6j93lRChM/Bharti-SoftBank-invests-14-million-in-mobile-messaging-app.html.

^{^[21]} Mike Masnick, Can We Kill This Ridiculous Shill-Spread Myth That CDNs Violate Net Neutrality? They Don't, https://www.techdirt.com/articles/20140812/04314528184/can-we-kill-this-ridiculous-shill-spread-myth-that-cdns-violate-net-neutrality-they-dont.shtml.

^{^[22]} Mathew Carley, What is Hayai's stance on "Net Neutrality"?, https://www.hayai.in/faq/hayais-stance-net-neutrality?c=mgc20150419

^{^[23]} Helani Galpaya & Shazna Zuhyle, South Asian Broadband Service Quality: Diagnosing the Bottlenecks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1979928

^{^[24]} DTH players told to offer pay channels on la carte basis, HINDU BUSINESS LINE (July 22, 2010), http://www.thehindubusinessline.com/todays-paper/dth-players-told-to-offer-pay-channels-on-la-carte-basis/article999298.ece.

^{^[25]} The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010.

^{^[26]} These suggestions were provided by Helani Galpaya and Sunil Abraham, based in some cases on existing practices.

^{^[27]} This is what is being followed by the Jana Loyalty Program: http://www.betaboston.com/news/2015/05/06/with-a-new-loyalty-program-mobile-app-marketplace-jana-pushes-deeper-into-the-developing-world/

^{^[28]} Example: free Internet access at low speeds, with data caps.

^{^[29]} Example: special "packs" for specific services like WhatsApp.

^{^[30]} Example: zero-rating of all locally-peered settlement-free traffic.

^{^[31]} Example: "leaky" walled gardens, such as the Jana Loyalty Program that provide limited access to all of the Web alongside access to the zero-rated content.

^{^[32]} Example: Wikipedia Zero.

^{^[33]} A CGNAT would be an instance of such a technology that poses network limitations.

For more details visit https://cis-india.org/internet-governance/blog/regulatory-perspectives-on-net-neutrality

Freedom of Expression in a Digital Age

Geetha Hariharan and Jyoti Panday — 2015-07-15T14:42:23Z

The Centre for Internet & Society, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania organized this conference on April 21, 2015 in New Delhi.

This report was edited by Elonnai Hickok

Effective research, policy formulation, and the development of regulatory frameworks in South Asia

Inside this Report

BACKGROUND TO THE CONFERENCE

THE ORGANIZERS

CONFERENCE PROGRAMME

WELCOME ADDRESS

SESSION 1: LEARNINGS FROM THE PAST

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Smarika Kumar, Alternative Law Forum

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Questions & Comments

SESSION 2: CURRENT REALITIES

Cherian George, Associate Professor, Hong Kong Baptist University

Zakir Khan, Article 19, Bangladesh

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)

Raman Jit Singh Chima, Asia Consultant, Access Now

Questions & Comments

SESSION 3: LOOKING AHEAD

Sutirtho Patranobis, Assistant Editor, Hindustan Times

Karuna Nundy, Advocate, Supreme Court of India

Geeta Seshu, The Hoot

Pranesh Prakash, Policy Director, Centre for Internet & Society

Questions & Comments

Conclusion

Background to the Conference

As the Internet expands and provides greater access and enables critical rights such as freedom of expression and privacy, it also places censorship and surveillance capabilities in the hands of states and corporations. It is therefore crucial that there exist strong protections for the right to freedom of expression that balance state powers and citizen rights. While the Internet has thrown up its own set of challenges such as extremist/hate speech, the verbal online abuse of women, and the use of the Internet to spread rumours of violence, the regulation of cont ent is a question that is far from being settled and needs urgent attention. These are compounded by contextual challenges. What role can and should the law play? When is it justified for the government to intervene? What can be expected from intermediaries, such as social networks and Internet Service Providers (ISPs)? And what can users do to protect the right to free speech - their own and that of others?

Balancing freedom of expression with other rights is further complicated by the challenges of fast paced and changing technologies and the need for adaptable and evolving regulatory frameworks. By highlighting these challenges and questioning the application of existing frameworks we aim to contribute to further promoting and strengthening the right to freedom of expression across South Asia.

The Organizers

Centre for Internet & Society

Established in 2008, the Centre for Internet and Society (CIS) is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open standards and open government data). CIS also engages in scholarly research on the budding disciplines of digital natives and digital humanities. CIS has offices in Bangalore and New Delhi.

Observer Research Foundation

ORF, established in 1990, is India's premier independent public policy think tank and is engaged in developing and discussing policy alternatives on a wide range of issues of national and international significance. The fundamental objective of ORF is to influence the formulation of policies for building a strong and prosperous India in a globalised world. It hosts India's largest annual cyber conference - CyFy: the India Conference on Cyber Security and Internet Governance

The Annenberg School for Communication, The Centre for Global Communication Studies & the Internet Policy Observatory (U. Penn.)

The Annenberg School of Communication (ASC) at the University of Pennsylvania produces research that advances the understanding of public and private communications. The Center for Global Communication Studies (CGCS) is a focused academic center at ASC and a leader in international education and training in comparative media law and policy. It affords students, academics, lawyers, regulators, civil society representatives and others the opportunity to evaluate and discuss international communications issues. The Internet Policy Observatory (IPO) was started by CGCS to research the dynamic technological and political contexts in which Internet governance debates take place. The IPO serves as a platform for informing relevant communities of activists, academics, and policy makers, displaying collected data and analysis.

Conference Programme

'Freedom of Expression in a Digital Age' Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia
April 21^st, 2015 - 11 a.m. to 6 p.m.

The Observer Research Foundation

20, Rouse Avenue Institutional Area

New Delhi - 110 002, INDIA

About the Conference

The conference will be a discussion highlighting the challenges in promoting and strengthening online freedom of expression and evaluating the application of existing regulatory frameworks in South Asia

Agenda

Learnings from the past		Current Realities		Looking ahead
11:00 - 1:00	1:00 - 2:00	2:00 - 4:00	4:00- 4:15	4:15 - 6:00
Overview of online FoEx policy and regulatory models across South Asia		Enabling FOEX in South Asia		Challenges associated with formulating regulation for online FoEx
Definitions of FoEx across South Asia		Ways in which FoEx is, or may be, curtailed online		Ways forward to bridge existing gaps between policy formation and policy implementation with respect to FOEX online
Impact of technology and markets on FoEx across South Asia		Balancing FoEx and other digital rights		Exploring emerging regulatory questions for FoEx online
Challenges to FoEx online across South Asia		The impact of jurisdiction, multi-national platforms, and domestic regulation on FoEx online		Impacting and influencing the development and implementation of Internet regulation through research
Effective research techniques and online FoEx		Role and responsibility of intermediaries in regulating online speech across South Asia		Exploration of the future role and interplay of technology and policy in enabling FOEX online

Ms. Mahima Kaul, Head (Cyber & Media Initiative), Observer Research Foundation (ORF), introduced the conference and its context and format, as well as the organisers. In three sessions, the Conference aimed to explore historical lessons, current realities and future strategies with regard to freedom of expression on the Internet in India and South Asia.

Mr. Manoj Joshi, Distinguished Fellow, ORF, provided the welcome address. Mr. Joshi highlighted the complexities and distinctions between print and electronic media, drawing on examples from history. He stated that freedom of expression is most often conceived as a positive right in the context of print media, as restrictions to the right are strictly within the bounds of the Constitution. For instance, during the riots in Punjab in the 1980s, when hate speech was prevalent, constitutionally protected restrictions were placed on the print media. When efforts were made to crack down on journalists with the introduction of the Defamation Bill in the 1980s, journalists were lucky that the Bill also included proprietors as those liable for defamation. This created solidarity between journalists and proprietors of newspapers to fight the Bill, and it was shelved.

Freedom of expression is necessary in a democratic society, Mr. Joshi stated, but it is necessary that this freedom be balanced with other rights such as privacy of individuals and the protection against hate speech. In the absence of such balance, speech becomes one-sided, leaving no recourse to those affected by violative speech.

In the digital age, however, things become complex, Mr. Joshi said. The freedom available to speech is enhanced, but so is the misuse of that freedom. The digital space has been used to foment riots, commit cybercrime, etc. Online, in India the restrictions placed on freedom of speech have become draconian. Section 66A and the incidents of arrests under it are an example of this. It is, therefore, important to consider the kind of restrictions that should be placed on free speech online. There is also the question of self-regulation by online content-creators, but this is rendered complex by the fact that no one owns the Internet. This conference, Mr. Joshi said, will help develop an understanding of what works and what frameworks we will need going forward.

Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society (CIS), introduced the speakers for the first session. Mr. Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance, Jamia Millia Islamia University, would first share his views and experience regarding the various ways of curtailing freedom of expression by the State, markets and civil society. Ms. Smarika Kumar of theAlternative Law Forum (ALF) would then expand on structural violations of freedom of expression. Mr. Bhairav Acharya, Advocate with the Delhi Bar and Consultant for CIS, would throw light on the development of free speech jurisprudence and policy in India from the colonial era, while Prof. Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University, was to speak about his arrest and charges under Section 66A of the Information Technology Act, 2000 (am. 2008), providing insight into the way Section 66A was misused by police and the West Bengal government.

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Mr. Parthasarathi began his talk with an anecdote, narrating an incident when he received a call from a print journalist, who said "TV people can get away with anything, but we can't, and we need to do something about it." The notion of news institutions getting away with non-kosher actions is not new - and has been a perception since the 19^th century. He stressed that there have always been tensions between Freedom of Expression, access, and other rights. Curtailment happens not just by the state, but by private parties as well - market and civil society. Indeed, a large number of non-state actors are involved in curtailing FoE. Subsequently a tension between individual FoE and commercial speech freedom is emerging. This is not a new phenomenon. Jurisprudence relating to free speech makes a distinction between the persons in whom the right inheres: individuals on the one hand (including journalists and bloggers), and proprietors and commercial entities on the other.

In India, freedom of speech cases - from 1947 - relate primarily to the rights of proprietors. These cases form the legal and constitutional basis for issues of access, transmission and distribution, but are not necessarily favourable to the rights of individual journalists or newsreaders. At the individual level, the freedom to receive information is equally important, and needs to be explored further. For entities, it is crucial to consider the impact of curtailment of speech (or threats of curtailment) on entities of different sizes and kinds.

Mr. Parthasarathi further explained that online, freedom of expression depends on similar structural conditions and stressed that scholarship must study these as well. For example, intermediaries in the TV industry and online intermediaries will soon come together to provide services, but scholarship does not link them yet. The law is similarly disjointed. For instance, 'broadcasting' falls in the Union List under Schedule VII of the Constitution, and is centrally regulated. However, distribution is geographically bounded, and States regulate distribution. In order to have a cohesive broadcast regulation, he raised the point that the placement of 'broadcasting' in the Union List may need to be re-thought.

According to Mr. Parthasarathi, the underlying conceptual basis - for the interlinked scholarship and regulation of intermediaries (online and broadcast), of commercial speech and individual access to information, and censorship (State and private, direct and structural) - lies in Article 19(1)(a). He noted that there is a need to rethink the nature of this freedom. For whom do we protect freedom of speech? For individuals alone, or also for all private entities? From what are we protecting this freedom? For Mr. Parthasarathi, freedom of speech needs to be protected from the State, the market, civil society and those with entrenched political interests. Additionally, Mr. Parthasarathi raised the question of whether or not in the online context freedom of the enterprise becomes antithetical to universal access

Mr. Parthasarathi also highlighted that it is important to remember that freedom of expression is not an end in itself; it is a facilitator - the 'road'- to achieve crucial goals such as diversity of speech. But if diversity is what freedom of expression should enable, it is important to ask whether institutional exercise of freedom has led to enhanced diversity of speech. Do media freedom and media diversity go together? For Mr. Parthasarathi, media freedom and media diversity do not always go together. The most vivid example of this is the broadcast environment in India, following the deregulation of broadcast media beginning from the mid 1990s - much of which was done through executive orders on an ad hoc basis.

This led to infrastructural censorship, in addition to the ex-post curtailment of content. Increasingly the conditions on which content is produced are mediated i.e. which entities are eligible to obtain licenses, what type of capital is encouraged or discouraged, how is market dominance measured, accumulation of interests across content and carriage, or various carriage platforms? Mediating the conditions of producing speech, or infra censorship, is primarily operationalised through regulatory silences, as illustrated in the absence of any coherent or systematic anti-competitive measures.

Indian courts are champions in protecting the freedom of expression of 'outlets' - of proprietors and entities. But this has not led to diversity of speech and media. Perhaps there is a need to rethink and reformulate ideas of freedom. He pointed out that it is not enough merely to look at ex post curtailment of speech (i.e., the traditional idea of censorship). Instead the conditions in which speech is made and censored need to be explored; only then can our understanding expand. Mr Parthasarathi ended his talk by stressing that a proactive understanding of freedom of expression can highlight architectural curtailment of speech through the grant of licenses, competition and antitrust laws, media ownership and concentration across carriage and content, etc. This is essential in a digital age, where intermediaries play a crucial, growing role in facilitating freedom of speech.

Smarika Kumar, Alternative Law Forum
Beginning where Mr. Parthasarathi left off, the focus of Ms. Kumar's presentation was the curtailment of speech and the conditions under which speech is produced. At the outset, she sought from the audience a sense of the persons for whom freedom of speech is protected: for government-controlled media, the markets and commercial entities, or for civil society and citizens? Ms. Kumar aimed to derive ideas and conceptual bases to understand freedom of speech in the digital space by studying judicial interpretations of Article 19(1)(a) and its limitations. Towards this end, she highlighted some Indian cases that clarify the above issues.

Ms. Kumar began with Sakal Papers v. Union of India [AIR 1962 SC 305]. In Sakal Papers, the issue concerned the State's regulation of speech by regulation of the number of permitted pages in a newspaper. This regulation was challenged as being in violation of Article 19(1)(a) of the Constitution. The rationale for such regulation, the State argued, was that newsprint, being imported, was a scarce commodity, and therefore needed to be equitably distributed amongst different newspapers - big or small. Further, the State defended the regulation citing its necessity for ensuring equal diversity and freedom of expression amongst all newspapers. The petitioners in the case argued that such a regulation would negatively impact the newspapers' right to circulation by reducing the space for advertisements, and thus forcing the newspaper to increase selling prices. Readers of the newspaper additionally argued that such increase in prices would affect their right to access newspapers by making them less affordable, and hence such regulation was against the readers' interests. Ultimately, the Supreme Court struck down the regulation. The Constitution Bench noted that if the number of pages of a newspaper were to be limited and regulated, the space available for advertisements would reduce. Were advertisements to reduce, the cost of newspapers would increase, affecting affordability and access to information for the citizens. Ultimately, newspaper circulation would suffer; i.e., the State's regulation affected the newspapers' right of circulation which would amount to a violation of freedom of expression as the right extends to the matter of speech as well as the ability to circulate such speech.

Apart from the number of pages, the Indian government has sought to regulate newsprint in the past. In Bennett Coleman and Co. & Ors. v. Union of India [AIR 1973 SC 106], a Constitution Bench of the Supreme Court considered whether regulation of the number of pages permitted in a newspaper constituted an unreasonable restriction on freedom of expression. Towards this, the Government of India set forth a Newsprint Policy in 1972, under the terms of which the number of pages of all papers were to be limited to ten; where there were small newspapers that did not achieve the ten-page limit, a 20% increase was permitted; and finally, new newspapers could not be started by common ownership units. The Newsprint Order aimed to regulate a scarce resource (newsprint), while the Newsprint Policy sought to promote small newspapers, encourage equal diversity among newspapers and prevent monopolies. The Supreme Court upheld the Newsprint Order, stating that newsprint was indeed a scarce resource, and that the matter of import and distribution of newsprint was a matter of government policy. The Court would not interfere unless there was evidence of mala fides. However, the Court struck down the Newsprint Policy for reasons similar to Sakal Papers ; that the rights afforded to newspapers under Article 19(1)(a) - including circulation - could not be abridged for reasons of protecting against monopolies.

In his dissenting opinion, Justice Mathew stated that in conceiving freedom of expression, it is important to also consider the hearer (the reader). For Justice Mathew, Meiklejohn's view the "what is essential is not that everyone shall speak, but that everything worth saying shall be said" cannot be affected if, because of concentration of media ownership, media are not available for most speakers. In such a situation, " the hearers [cannot] be reached effectively". However, the imperative is to maximise diversity of speech. For this, we need to balance the rights of citizens against those of the press; i.e., the rights of the reader against those of the speaker.

Ms. Kumar pointed out that this was the first case to consider the right of readers to access a diversity of speech. Justice Mathew distinguished curtailment of speech by the state, and by the market - and that this is crucial in the digital age, where information is predominantly accessible through and because of intermediaries. Ms. Kumar further stressed that especially in an age where 'walled gardens' are a real possibility (in the absence of net neutrality regulation, for instance), Justice Mathew's insistence on the rights of readers and listeners to a diversity of speech is extremely important.

Ms. Kumar went on to explain that though judges in the Supreme Court recognised the rights of readers/listeners (us, the citizens) for the purposes of news and print media, a similar right is denied to us in the case of TV. In Secretary, Ministry of Broadcasting v. Cricket Association of Bengal [AIR 1995 SC 1236], the issue surrounded private operators' right to use airwaves to broadcast. The Supreme Court considered whether government agencies and Doordarshan, the government broadcaster, " have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them", and whether Doordarshan could claim to be the single host broadcaster for all events, including those produced or organised by the company or by anybody else in the country or abroad. The Supreme Court held that the TV viewer has a right to a diversity of views and information under Article 19(1)(a), and also that the viewer must be protected against the market. The Court reasoned that " airwaves being public property, it is the duty of the state to see that airwaves are so utilised as to advance the free speech right of the citizens, which is served by ensuring plurality and diversity of views, opinions and ideas ".

If every citizen were afforded the right to use airwaves at his own choosing, "powerful economic, commercial and political interests" would dominate the media. Therefore, instead of affirming a distinct right of listeners, the Court conflated the interests of government-controlled media with those of the listeners, on the ground that government media fall under public and parliamentary scrutiny. According to Ms. Kumar this is a regressive position that formulates State interest as citizen interest. Ms. Kumar argued that in order to ensure freedom of speech there is a need to frame citizens' interests as distinct from those of the market and the government.

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS
Mr. Acharya's presentation focused on the divergence between the jurisprudence and policy surrounding freedom of expression in India. According to him, the policies of successive governments in India - from the colonial period and thereafter - have developed at odds with case-law relating to freedom of expression. Indeed, it is possible to discern from the government's actions over the last two centuries a relatively consistent narrative of governance which seeks to bend the individual's right to speech to its will. The defining characteristics of this narrative - the government's free speech policy - emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet. Thus, there has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Today, free speech scholarship (including digital speech) fails to take into account this consistent divergence between jurisprudence and policy. Mr. Acharya pointed out that we think of digital speech issues as new, whereas there is an immense amount of insight to gain by studying the history of free speech and policy in India.

Towards this, Mr. Acharya highlighted that to understand dichotomy between modern and native law and free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal's hinterland to begin the long process of displacing traditional law to create a modern legal system. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Mr. Acharya explained that this myopia in Indian policy research is similar social censorship (i.e., social custom as creating limits to free speech). Law and society scholars have long studied the social censorship phenomenon, but policy research rejects this as a purely academic pursuit. But the truth is that free speech has been regulated by a dual policy of law and social custom in India since colonial times. The then-Chief Justice of the Calcutta High Court Elijah Impey required officers to respect local customs, and this extended to free speech as well. But as colonial courts did not interpret Hindu law correctly; interpretations of freedom of speech suffered as well. Mr. Acharya noted that the restrictions on freedom of speech introduced by the British continue to affect individuals in India today. Prior to British amendments, India had drawn laws from multiple sources - indeed customs and laws were tailored for communities and contexts, and not all were blessed with the consistency and precedent so familiar to common law. Since the British were unable to make sense of India's law and customs, they codified the principles of English customary law.

The Indian Penal Code (IPC) saw the codification of English criminal law (the public offences of riots, affray, unlawful assembly, etc., and private offences such as criminal intimidation). In Macaulay's initial drafts, the IPC did not contain sedition and offences of hurting religious sentiments, etc. Sections 124A ("Sedition") and 295A (" Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs") were added to the IPC in 1860, and changes were made to the Code of Criminal Procedure as well. Today, these sections are used to restrict and criminalise digital speech.

The Right to Offend :

Mr. Acharya then considered the history of the "right to offend", in light of the controversies surrounding Section 66A, IT Act. Before the insertion and strengthening of Section 295A, citizens in India had a right to offend others within the bounds of free speech. He clarified that in 1925 a pamphlet " Rangila Rasool" was published by Lahore-based Mahashe Rajpal (the name(s) of the author(s) were never revealed). The pamphlet concerned the marriages and sex life of the Prophet Mohammed, and created a public outcry. Though the publisher was acquitted of all charges and the pamphlet was upheld, the publisher was ambushed and stabbed when he walked out of jail. Under pressure from the Muslim community, the British enacted Section 295A, IPC. The government was seeking to placate and be sensitive to public feeling, entrenching the idea that the government may sacrifice free speech in the face of riots, etc. The death of India's "right to offend" begins here, said Mr. Acharya.

A prior restraint regime was created and strengthened in 1835, then in 1838, etc. At this time, the press in India was largely British. Following the growth of Indian press after the 1860s, the British made their first statutory attempt at censorship in 1867: a prior sanction was required for publication, and contravention attracted heavy penalties such as deportation and exile. Forfeiture of property, search and seizures and press-inspections were also permitted by the government under these draconian laws. Mr. Acharya noted that it is interesting that many leaders of India's national movement were jailed under the press laws.

Independence and After :

Mr. Acharya further explained that the framers of the Constitution deliberately omitted "freedom of the press" from the text of Article 19(1)(a) and that Jawaharlal Nehru did not think the press ought to be afforded such a right. This is despite a report of the Law Commission of India, which recommended that corporations be provided an Article 19 right. But why distrust the press, though citizens are granted the freedom of speech and expression under Article 19(1)(a)? In Mr. Acharya's opinion, this is evidence of the government's divergent approach towards free speech policy; and today, we experience this as a mistrust of the press, publications, and of online speech.

Mr. Acharya also explained that statutory restrictions on free speech grew at odds with judicial interpretation in the 1950s. Taking the examples ofRomesh Thapar v. the State of Madras [AIR 1950 SC 124] and Brij Bhushan v. the State of Delhi [(1950) Supp. SCR 245], Mr. Acharya showed how the judiciary interpreted Article 19 favourably. Despite the government's arguments about a public order danger, the Supreme Court refused to strike down left wing or right wing speech ( Romesh Thapar concerned a left wing publication; Brij Bhushan concerned right wing views), as "public order" was not a ground for restricting speech in the Constitution. The government reacted to the Supreme Court's judgement by enacting the First Amendment to the Constitution: Article 19(2) was amended to insert "public order" as a ground to restrict free speech. Thus, it is possible to see the divergence between free speech jurisprudence and policy in India from the time of Independence. Nehru and Sardar Vallabhbhai Patel had supported the amendment, while B.R. Ambedkar supported Romesh Thapar and Brij Bhushan. On the other hand, then-President Rajendra Prasad sought Constitutional protection for the press.

Why Study Free Speech History?

Mr. Acharya noted how the changes in free speech policy continue to affect us, including in the case of content restrictions online. In the 1950s, then-Prime Minister Nehru appointed the First Press Commission, and the newspaper National Herald was established to promote certain (left wing) developmental and social goals. Chalapati Rao was the editor of the National Herald, and a member of the First Press Commission.

At that time, the Commission rejected vertical monopolies of the press. However, today, horizontal monopolies characterize India's press. The First Press Commission also opposed 'yellow journalism' (i.e., sensational journalism and the tabloid press), but this continues today. Decades later, Prime Minister Indira Gandhi called for a "committed bureaucracy, judiciary and press", taking decisive steps to ensure the first two. For instance, Justice Mathew (one of the judges in the Bennett Coleman case) was an admirer of Indira Gandhi. As Kerala's Advocate General, he wanted the Press Registrar to have investigative powers similar to those given in colonial times; he also wanted the attacks on government personalities to be criminalized. The latter move was also supported by M.V. Gadgil, who introduced a Bill in Parliament that sought to criminalise attacks on public figures on the grounds of privacy. Mr. Acharya noted that though Indira Gandhi's moves and motives with regard to a "committed press" are unclear, the fact remains that India's regional and vernacular press was more active in criticizing the Emergency than national press.

Demonstrating the importance of understanding a contexts history - both social and legislative, following the striking down of 66A in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), elements in the government have stated their wish to introduce and enact a new Section 66A. Mr. Acharya explained that such moves from elements in the government shows that despite the striking down of 66A, it is still possible for the repressive and mistrustful history of press policy to carry forward in India. This possibility is supported by colonial and post-Independence press history and policy that has been developed by the government. When looking at how research can impact policy, greater awareness of history and context may allow for civil society, academia, and the public at large to predict and prepare for press policy changes.

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Prof. Mahapatra introduced himself as a victim of the West Bengal administration and ruling party. He stated that though India's citizens have been granted the protection of fundamental rights after Independence, these rights are not fully protected; his experience with the West Bengal ruling party and its abuse of powers under the Information Technology Act, 2000 (am. 2008) ("IT Act") highlights this.

On March 23, 2012, Prof. Mahapatra had forwarded a cartoon to his friends by email. The cartoon poked fun at West Bengal Chief Minister Mamata Banerjee and her ruling party. On the night of April 12, 2012, individuals not residing in the Professor's housing colony confronted him, dragging him to the colony building and assaulting him. These individuals forced Prof. Mahapatra to write a confession about his forwarding of the cartoon and his political affiliations. Though the police arrived at the scene, they did not interfere with the hooligans. Moreover, when the leader of the hooligans brought the Professor to the police and asked that he be arrested, they did so even though they did not have an arrest warrant. At the police station, the hooligans filed a complaint against him. The Professor was asked to sign a memo mentioning the charges against him (Sections 114 and 500, Indian Penal Code, 1860 & Section 66A, IT Act). Prof. Mahapatra noted that the police complaint had been filed by an individual who was neither the receiver nor the sender of the email, but was a local committee member with the Trinamool Congress (the West Bengal ruling party).

The arrest sparked a series of indignant responses across the country. The West Bengal Human Rights Commission took suo motu cognizance of the arrest, and recommended action against the high-handedness of the police. Fifty six intellectuals appealed to the Prime Minister of India to withdraw the arrest; the former Supreme Court judge Markandey Katju was among those who appealed. Thirty cartoonists' organisations from across the world also appealed to the President and the Prime Minister to withdraw the case.

The West Bengal government paid no heed to the protests, and Chief Minister Mamata Banerjee publicly supported the actions of the police - making public statements against Justice Katju and A.K. Ganguly, former judge of the Supreme Court and head of the West Bengal Human Rights Commission respectively. A charge sheet was framed against Prof. Mahapatra and others, with Section 66A as one of the charges.

The case has been going on for over two years. Recently, on March 10, 2015, the Calcutta High Court upheld the recommendations of the West Bengal Human Rights Commission, and directed the government to implement them. The West Bengal government has preferred an appeal before a division bench, and the case will continue. This is despite the fact that Section 66A has been struck down (by the Supreme Court in Shreya Singhal & Ors. v. Union of India).

Though noting that he was not an expert, Prof. Mahapatra put forward that it seemed that the freedom of expression of the common man depends on the whims of the ruling parties and the State/Central governments. It is of utmost importance, according to him, to protect the common man's freedom of speech, for his recourse against the government and powerful entities is pitifully limited.

Questions & Comments

Q. A participant stated that the core trouble appears to lie in the power struggle of political parties. Political parties wish to retain power and gather support for their views. Despite progressive laws, it is the Executive that implements the laws. So perhaps what is truly required is police and procedural reforms rather than legislative changes.

A. Members of the panel agreed that there is a need for more sensitivity and awareness amongst the law enforcement agencies and this might be long overdue and much needed step in protecting the rights of citizens.

Q. A participant was interested in understanding how it might be possible to correct the dichotomy between FoE policy and doctrine? The participant also wanted the panel to comment on progressive policy making if any.

A. Members of the panel stated that there is no easy way of correcting this dichotomy between custom and law. Scholars have also argued that the relationship between custom and pernicious social censorship is ambiguous. Towards this, more studies are required to come to a conclusion.

Q. A participant requested clarity on what rights can be created to ensure and support a robust right to freedom of expression, and how this might affect the debates surrounding net neutrality?

A. Members of the panel noted that the Internet allows citizens and corporations to regulate speech on their own (private censorship), and this is problematic. Members of the panel also responded that the existing free speech right does not enable diversity of speech. Social and local customs permit social censorship, and this network effect is clearly visible online; individuals experience a chilling effect. Finally, in the context of net neutrality, the interests of content-producers (OTTs, for instance) are different from those of users. They may benefit economically from walled gardens or from non-interference with traffic-routing, but users may not. Therefore, there is a need for greater clarity before coming to a conclusion about potential net neutrality regulation.

Session 2: Current Realities

Dr. Cherian George, Associate Professor, Hong Kong Baptist University
Dr. George began his talk by highlighting how there is no issue as contentious as offensive speech and how it should be dealt with. The debate around free speech is often framed as a battle between those who support democracy and those who oppose it. Yet, this is also a tension within democracy. Citizens should not be unjustly excluded from participating in democracy (companion rights in Article 19 and 20, ICCPR). Relevant UN institutions and Article 19 have come up with reports and ideals that should be universally adopted - norms that apply to many areas including speech. These norms are different from traditional approaches. For example:

Human Rights Norms	Traditional Approach
Regulate incitement of violence (discrimination, hate, etc.)	Law protects people's feelings from speech that offends
Protect minorities as they are more vulnerable to exploitation and uprooting of their values	Law sides with the majority, to protect mainstream values over minority values
Allow robust criticism of ideas, religions, and beliefs	Law protects religion, beliefs, and ideas from criticism
Strive for balance between liberty and equality	Aims for order and maintenance of status quo
Promote harmony through the media	Enforces harmony by the state

Commenting on the traditional approach, Dr. George noted that if the state protects feelings of offence against speech, it allows groups to use such protection as a political weapon: "hate spin", which is the giving or taking of offence as a political strategy. Hate spin is normally framed as a "visceral, spontaneous reaction" to a video, writing, or speech, etc. Yet, the spontaneous reaction of indignation to speech or content can consistently be revealed to result from conscious manipulation by middlemen for political purposes.

South Asia is similar to West Asia - as the legal frameworks provide immunity for dangerous speech. In practice, this allows for the incitement of discrimination, hostility, and violence. At the same time, the legal frameworks allow for excessive sympathy for wounded feelings, and often the taking of offence turns into a political strategy. Power enters the equation here. The law allows the powerful to take offence and use hate speech against those not in powerful positions.

Dr. George highlighted a number of legal quandaries surrounding freedom of expression including:

Enforcement gaps: There is a lack of enforcement of existing laws against incitement.
Non-regulated zones: Socio-political research demonstrates that many problems cannot be regulated, and yet the law can only deal with what can be regulated. Hate speech is one of these as hate speech is not in the speech itself, but in the meaning that is produced in the mind of those saying/listening.
Verdict-proof opportunities: Political entrepreneurs can use legislative and judicial processes to mainstream hateful views, regardless of how legislature and courts ultimately act. The religious right, for instance, can always pit themselves morally against "secular" decisions of apex authorities (SC, etc.). For example, in the context of the US and Islamophobia - the State legislature in Alabama introduced an anti-Shariah law. Yet, the law is against a non-existent threat and appears to be a ploy to normalize anti-Muslim sentiments, including in political rhetoric. While focusing on winning battles in courts or legislature, the intolerant groups do not need to win a legal court case to introduce and entrench language of intolerance in public discourse and discussion. This demonstrates that there is a need to begin moving away from a purely legal analysis (interpretation or development) of the laws, and a need to begin studying these issues through a sociological lens.

Zakir Khan, Article 19, Bangladesh
Mr. Khan introduced Article 19 and its work in Bangladesh and the rest of South Asia. He noted that Article 19 is involved in documenting and analysing laws and regulations affecting freedom of expression, including in Bangladesh. Article 19 also campaigns for changes in law and policy, and responds from a policy perspective to particular instances of government overreach.

Mr. Khan explained that India has the Information Technology Act, 2000 (am. 2008) ("IT Act"), and in Bangladesh, the equivalent legislation is the Information and Communication Technology Act, 2006 ("ICT Act"). The ICT Act was enacted to bring Bangladeshi law in conformity with international law; i.e. in accordance with the UNCITRAL model law on e-commerce and online transactions. The ICT Act deals with hacking, crimes committed with the use of a computer system, breach of data, breach of computer system, and hardware.

Like the IT Act in India, Bangladesh's ICT Act also criminalizes speech and expression online. For instance, Section 57, ICT Act, criminalizes the publication of "fake, obscene or defaming information in electronic form". Similarly, bringing damage to "the state's image" online is criminalized. In 2013, the Bangladesh Ministry of Law amended the ICT Act to increase penalties for online offences, and allow for the detention of suspected offenders, warrantless arrests and indefinite detention without bail. Bloggers and activists have been protesting these changes, and have been targeted for the same.

Mr. Khan noted that Article 19 has developed a tool to report violations online. Individuals who have experienced violations of their rights online can post this information onto a forum, wherein Article 19 tracks and reports on them, as well as creating awareness about the violation. Any blogger or online activist can come and voice concerns and report their stories. Mr. Khan also highlighted that given the ICT Act and the current environment, online activists and bloggers are particularly threatened. Article 19 seeks to create a safe space for online bloggers and activists by creating anonymity tools, and by creating awareness about the distinctions between political agenda and personal ideology.

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)
Ms. Arun began by noting that usually conversations around freedom of expression look at the overlap between FoE and content i.e. the focus is on the speaker and the content. Yet, when one targets the mediator - it shifts the focus as it would be approaching the issue from the intermediary's perspective. When structural violation of free speech happens, it either places the middleman in the position of carrying through the violation, or creates a structure through which speech violations are incentivized.

An example of this is the Bazee.com case. At the time of the case the law was structured in such a way that not only perpetrators of unlawful content were punished, but so were the bodies/persons that circulated illegal content. In regulatory terms this is known as "gatekeeper liability". In the Bazee.com case, a private party put obscene content up for sale and Bazee.com could and did not verify all of the content that was for sale. In the case, the Delhi HC held Avnish Bajaj, the CEO of Bazee.com, liable on the precedent of strict liability for circulation of obscene content. The standard of strict liability was established under Ranjit Udeshi case. The standard of strict liability is still the norm for non-online content, but after Bazee.com, a Parliament Standing Committee created a safe harbour for online intermediaries under Section 79 of the IT Act. As per the provision, if content has been published online, but an intermediary has not edited or directly created the content, it is possible for them to seek immunity from liability for the content. The Parliament Standing Committee then stated that intermediaries ought to exercise due diligence. Thus, the Indian legal regime provides online intermediaries with immunity only if content has not been published or edited by an intermediary and due diligence has been exercised as defined by Rules under the Act. While developing India's legal regime for intermediary liability the Parliamentary Standing Committee did not focus on the impact of such regulation on online speech.

To a large extent, present research and analysis of Freedom of Expression is focused on the autonomy of the speaker/individual. An alternative formulation and way of understanding the right, and one that has been offered by Robert Post through his theory of democratic self governance, is that Freedom of Expression is more about the value of the speech rather than the autonomy of the speaker. In such a theory the object of Freedom of Expression is to ensure diversity of speech in the public sphere. The question to ask then is: "Is curtailment affecting democratic dialogue?" The Supreme Court of India has recognized that people have a right to know/listen/receive information in a variety of cases. Ms. Arun explained that if one accepts this theory of speech, the liability of online intermediaries will be seen differently.

Ms. Arun further explained that in Shreya Singhal, the notice-and-takedown regime under section 79 of the IT Act has been amended, but the blocking regime under section 69A has not. Thus, the government can still use intermediaries as proxies to take down legitimate content, and not provide individuals with the opportunity to to challenge blocking orders. This is because as per the Act, blocking orders must be confidential. Though the blocking regime has not been amended, the Supreme Court has created an additional safeguard by including the requirement that the generator of content has to be contacted (to the extent possible) before the government can pass and act upon a blocking order. Mr. Arun noted that hopefully, when implemented, this will provide a means of recourse for individuals and counter, to some extent, the mandated secrecy of content blocking orders.

Raman Jit Singh Chima, Asia Consultant, Access Now
Mr. Chima began his presentation by noting that the Internet is plagued by a few founding myths. Tim Goldsmith and Jack Wu (in Who Controls the Internet: Illusions of a Borderless World) name one: that no laws apply to the Internet; that, because of the borderless nature of the Internet - data flows through cables without regard for State borders - and thus countries' laws do not affect the Internet. These cyber-anarchists, amongst whom John Perry Barlow of the Electronic Frontier Foundation (EFF) is inspiring, also argue that regulation has no role for the Internet.

Mr. Chima countered these 'myths', arguing that the law affects the Internet in many ways. The US military and Science departments funded the invention of the Internet. So the government was instrumental in the founding of the Internet, and the US Department of Commerce has agreements with ICANN (Internet Corporation for Assigned Names and Numbers) to govern the Domain Names System. So the law, contracts and regulation already apply to the Internet.

Mr. Chima further explained that today organisations like EFF and civil society in India argue for, and seek to influence, the creation of regulation for the protection of journalists against unfair and wrongful targeting by the government. This includes moves to protect whistleblowers, to ensure the openness of the Internet and its protection from illegitimate and violative acts against freedom of expression, access and other rights. Some governments, like India, also place conditions in the licenses granted to Internet Service Providers (ISPs) to ensure that they bring access to the rural, unconnected areas. Such law and regulation are not only common, but they are also good; they help the population against virtual wrongdoing.

Mr. Chima pointed out that when States contemplate policy-making for the Internet, they look to a variety of sources. Governments draw upon existing laws and standards (like India with the virtual obscenity offence provision Section, 67 and 67A, IT Act, which is drawn from the real-world penal provision Section 292, IPC) and executive action (regulation, by-laws, changes to procedural law) to create law for the Internet. Additionally, if a government repeats a set of government actions consistently over time, such actions may take on the force of law. Mr. Chima also spoke of web-developers and standards-developers (the technical community), who operate by rules that have the force of law, such as the 'rough consensus and running code' of the IETF (Internet Engineering Task Force). Governments also prescribe conditions ("terms of use") that companies must maintain, permitting or proscribing certain kinds of content on websites and platforms.

Finally, Mr. Chima highlighted international legal and policy standards that play a role in determining the Internet's law and regulation. ICANN, the administrator of the Internet Assigned Numbers Authority (IANA) functions and governing body for the Domain Names System, functions by a set of rules that operate as law, and in the creation of which, the international legal community (governments, companies, civil society and non-commercial users, and the technical community) play a role. The ITU (International Telecommunications Union) and organisations like INTERPOL also play a role.

Mr. Chima explained that when one wants to focus on issues concerning freedom of expression, multiple laws also apply. Different States set different standards. For instance, in the US, the main standards for the Internet came from issues relating to access to certain types of online content. In Reno v. ACLU (1997), the US Supreme Court considered what standards should be created to access obscene and indecent content on the Internet. The judges held that the Internet, as a medium of unprecedented dynamism, deserved the higher protection from governmental overreach.

In Asia, the main legal standards for the Internet came from Internet commerce: the UNCITRAL model law, which prescribed provisions best suited to the smoother commercial utilization of a fast and growing medium, became the foundation for Internet-related law in Asian states. Predictably, this did not offer the strongest rights protections, but rather, focused on putting in place the most effective penalties. But when Asian states drew from the European UNCITRAL law, many forgot that European states are already bound by the European Convention for Human Rights, the interpretation of which has granted robust protections to Internet-related rights.

Mr. Chima provided the example of Pakistan's new Cybercrime Bill. The Bill has troubling provisions for freedom of expression, and minimal to no due process protections. While drafting the law, Pakistan has drawn largely from model cybercrime laws from the Council of Europe, which are based on the Budapest Convention. In Europe and the US, States have strong parallel protections for rights, but States in Asia and Africa do not.

Mr. Chima concluded that when one talks of freedom of expression online, it is important to also remember the roles of intermediaries and companies. The ISPs can be made liable for content that flows through their wires, through legal mechanisms such as license provisions. ISPs can also be made to take further control over the networks, or to make some websites harder to access (like the Internet Watch Foundation's blacklist). When policy organisations consider this, it is critical that they ask whether industry bodies should be permitted to do this without public discussion, on the basis of government pressure.

Questions & Comments

Q. Participants asked for panel members to talk about the context in which bloggers find themselves in danger in Bangladesh.

A. Panel members stated that the courts are not fair to bloggers as often they side with government. It was added that courts have labelled bloggers as atheist, and subsequently all bloggers are being associated with the label. Further, it was added that most people who are outraged, do not even know what blogging is, and people associate blogging with blasphemy and as opposing religious beliefs. It was also noted that in Bangladesh, while you see violations of FoE from the State, you see more violations of blogger rights from non-state actors.

Q. Participants asked if there is anything specific about the Internet that alters how we should consider hate speech online and their affective/visceral impact.

A. Pa nel members noted that they are still grappling with the question of what difference the Internet makes, but noted that it has indeed complicated an already complex issue as there is always the question about political entrepreneurs using convenient content to foment fires.

Q. Participants questioned panel members about how the right to offend is protected in jurisdictions across Asia where there is still tension between classical liberalism and communitarian ideologies, and where the individuated nature of rights is not clearly established or entrenched.

A. Panel members responded by stating that when one compares the US, Indonesia and India, the US seems to be able to strike a balance between free speech and other competing interests as they are committed to free speech and committed to religious tolerance and plurality of competing interests. Panel members also added that the fabric of civil society also has an impact. For example, Indonesian civil society is simultaneously religious and secular and pro-democracy. In India, there seems to be a tension between secular and religious groups. In Indonesia, people are moving to religion for comfort, while still seeking a world that is religious and secular.

Q. Participants asked for clarification on ways to approach regulation of hate speech given that hate speech is not just about a particular kind of threatening speech, but encompasses rumours and innuendos.

A . Panel members acknowledged that more research needs to be done in this area and added that applying the socio-cultural lens on such issues would be beneficial.

Q. Participants asked if panel members had a framework for a regulating the content practices of private actors, who are sometimes more powerful than the state and also enforcing censorship.

A. Panel members responded that private censorship is an important issue that needs to be reflected upon in some depth, though a framework is far from being developed even as research is ongoing in the space.

Session 3: Looking Ahead

The third and final session of the conference aimed to find principles and methods to achieve beneficial and effective regulation of the Internet. One of the core aims was the search for the right balance between the dangers of the Internet (and its unprecedented powers of dissemination) and the citizens' interest in a robust right to freedom of expression. Mr. Sutirtho Patranobis, Assistant Editor with the Hindustan Times (Sri Lanka desk, previously China correspondent), shared his experience with governmental regulation of online free speech in China and Sri Lanka. Ms. Karuna Nandy,Advocate, Supreme Court of India, analysed the Indian Supreme Court's decision in Shreya Singhal v. Union of India (March 24, 2015), and sought to draw lessons for the current debate on net neutrality in India. Ms. Geeta Seshu, founder and editor of the online magazine The Hoot, offered an expanded definition of freedom of speech, focusing on universal access as the imperative. Finally, Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society, offered his views on net neutrality and the issue of zero-rating, as well as arguing for an increased, cooperative role of civil society in creating awareness on issues relating to the Internet.

Sutirtho Patranobis, Assistant Editor, Hindustan Times
During his career, Mr. Patranobis was the China correspondent for the Hindustan Times. Mr. Patranobis began his presentation by sharing his experiences in China. In China, multiple online platforms have become sources of news for citizens. Chinese citizens, especially the urban young, spend increasing amounts of time on their mobile phones and the Internet, as these are the major sources of news and entertainment in the country.

The Chinese government's attitude towards freedom of expression has been characterized by increasing control over these online platforms. The includes control over global companies like Google and Facebook, which have negotiated with the Chinese government to find mutually acceptable operating rules (acceptable to the government and the company, but in most cases unfavourable to the citizens) or have faced being blocked or filtered from the country. Mr. Patranobis noted that free speech regulation in China has evolved into a sophisticated mechanism for control and oppression, and the suppression of dissent. Not only China, but Sri Lanka has also adopted similar approaches to dealing with freedom of expression.

In China, free speech regulations have evolved with an aim to curtail collective action and dissent. China's censorship programmes work towards silencing expression that can represent, reinforce or spur social mobilisation. Mr. Patranobis explained that these programmes aim to put an end to all collective activities (current or future) that may be at odds with government policies. Therefore, any online activity that exposes government action as repressive, corrupted or draconian is meted out harsh treatment. Indeed it is possible to see that there are sharp increases in online censorship and crackdowns when the government implements controversial policies offline.

Mr. Patranobis went on to discuss the nature of objectionable content, and the manner in which different jurisdictions deal with the same. Social and cultural context, governmental ideologies, and political choices dictate the nature of objectionable content in States such as China and Sri Lanka. On the flipside, media literacy, which plays a big role in ensuring an informed and aware public, is extremely low in Sri Lanka, as well as in many other States in South Asia.

Mr. Patranobis raised the question of how the Internet can be regulated while retaining freedom of expression - noting that the way forward is uncertain. In Sri Lanka, for instance, research by UNESCO shows that the conflicting policy objectives are unresolved; these first need to be balanced before robust freedom of expression can be sustained. The Internet is a tool, after all; a tool that can connect people, that can facilitate the spread of knowledge and information, to lift people from the darkness of poverty. The Internet can also be a tool to spread hate and to divide societies and peoples. Finding the right balance, contextualised according to the needs of the citizens and the State, is key to good regulation.

Karuna Nundy, Advocate, Supreme Court of India
Ms. Nandy focused her presentation on two issues currently raging in India's free speech debates: the Supreme Court's reasoning on Sections 66A and 69A, IT Act, in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), and issues of access and innovation in the call for a net neutrality regulation. She stated that the doctrine of the "marketplace of ideas" endorsed by Justices Nariman and Chelameswar in Shreya Singhal speaks to the net neutrality debate.

Ms. Nandy held that a law can be challenged as unconstitutional if it prohibits acts that are legitimate and constitutional. Such an argument refers to the impugned law's "overbroad impact". For instance, the Supreme Court struck down Section 66A, IT Act, on the ground (among others) that the impugned section leads to the prohibition and criminalisation of legitimate and protected speech. Cases such asChintaman Rao v. State of Madhya Pradesh [(1950) SCR 759] and Kameshwar Prasad v. State of Bihar [1962 Supp. (3) SCR 369] speak to this principle. They expand the principle of overbreadth to include the notion of "chilling effect" - i.e., situations where overbroad blocking leads to the prohibition of legitimate constitutional speech. In such situations, citizens are unsure what constitutes protected speech and what does not, leading to a chilling effect and self-censorship for fear of reprisals.

In Shreya Singhal, the Supreme Court also considered the "reasonable person" doctrine that has been developed under the law of obscenity. India had initially adopted the Hicklin test, under which the test to determine what is obscene depended on whether prurient minds (minds that have a tendency to be corrupted) would find the impugned material lascivious and corrupting. This test, laid down in Ranjit Udeshi v. State of Maharashtra [AIR 1965 SC 881] and altered/refined by decades of jurisprudence, was put to rest in Aveek Sarkar v. State of West Bengal [AIR 2014 SC 1495]. In Aveek Sarkar, the Supreme Court adopted the "community standards" test to determine obscene content. According to Ms. Nandy, the "community standards" test rests on the doctrine of reasonable persons. Ms. Nandy noted that in effect there is a need for more police officers to protect those who produce legitimate content from hecklers.

Quoting from the U.S. decision of Whitney v. California [71 L. Ed. 1095], Ms. Nandy submitted that:

" It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. "

On the issue of website blocking and the Supreme Court's reasoning on Section 69A, IT Act, in Shreya Singhal, Ms. Nandy explained that the Additional Solicitor General had conceded a number of points during the oral arguments. She further explained that website blocking can be applied when the Central Government is satisfied that there is a necessity for it. However, reasons must be recorded in writing. Also, according to the Supreme Court's interpretation of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (" Blocking Rules"), both the intermediary and the originator of the communication (the content-creator) have to be given a chance to be heard.

Rule 16 of the Blocking Rules, which mandates confidentiality of all blocking requests and orders, was also discussed in Shreya Singhal. Though some confusion has arisen about the Rule's interpretation, Ms. Nandy submitted that Rule 16 has been read down. There is no longer a strict, all-encompassing requirement of confidentiality. While the identity of the complainant and the exact nature of the complaint must be kept confidential, the blocking order and the reasoning behind the order are no longer bound by Rule 16. This is because in §109 of the judgment, the Supreme Court accepts that writ petitions can lie on the basis of blocking orders. In order for writs to lie, affected parties must first be aware of the existence and content of the blocking order. Therefore, Ms. Nandy explained, the effect of the Supreme Court's reasoning is that the confidentiality requirement in Rule 16 has been read down.

On net neutrality, Ms. Nandy argued that zero-rating is an efficient solution to providing universal access to the Internet. Services like Internet.org are not strictly market-driven. This is because there is not a large demand for Facebook or specific over-the-top (OTT) service providers. In speaking about the marketplace for ideas in Shreya Singhal, the Supreme Court did not indirectly outlaw services seeking to balance access with diversity of speech. Ms. Nandy held that price discrimination in the provision of telecom, broadband and mobile Internet services already exists. In light of this, the focus should the provision of these services on the basis of consumer choice.

Geeta Seshu, The Hoot
Ms. Seshu began her presentation by noting that one's perspective on online censorship cannot be the same as that on traditional censorship. Traditional censorship cuts off an individual's access to the censored material, but on the Internet, material that is censored in traditional media finds free and wide distribution. One's conceptualisation of freedom of expression and curtailment of this right must include access to the medium as a crucial part. To this end, it is important to not forget that access to the Internet is controlled by a limited number of Internet service and content providers. Thus, a large section of the population in India cannot exercise their right to free speech because they do not have access to the Internet.

In this context, it is important to understand the way in which the digital rollout is happening in India. Ms. Seshu explained that the rollout process lacks transparency, and noted the example of the 4G/LTE rollout plan in India. There is, of course, a diversity of content: those that have access to the Internet have the ability to exercise their right to free speech in diverse ways. However, introducing access into the free speech universe highlights many inequalities that exist in the right; for instance, Dalit groups in India have limited access to the Internet, and some kinds of content receive limited airtime.

Importantly, Ms. Seshu argued that the government and other entities use technology to regulate content availability. Policymakers exploit the technology and architecture of the networks to monitor, surveil and censor content. For instance, one may see the UID scheme as an adaptation of technology to facilitate not only service-provision, but also as a move towards a Big Brother state. Civil society and citizens need to study and respond to the ways in which technology has been used against them. Unfortunately, the debates surrounding regulation do not afford space for Internet users to be part of the discussion. In order to turn this around, it is important that citizens' and users' rights are developed and introduced into the regulatory equation.

Pranesh Prakash, Policy Director, Centre for Internet & Society
Taking up where Ms. Seshu left off, Mr. Prakash wished to explore whether the Internet was merely an enabler of discussion - allowing, for instance, a ruckus to be raised around the consultation paper of the Telecom Regulatory Authority in India (TRAI) on Over-The-Top (OTT) services and net neutrality - or whether the Internet positively adds value. The Internet is, of course, a great enabler. The discussions surrounding OTTs and net neutrality are an example: in response to the TRAI consultation, a campaign titled "Save the Internet" resulted in over 9.5 lakh comments being submitted to the TRAI. It is inconceivable that such a widespread public discussion on so complex a topic (net neutrality) could take place without the Internet's facilitation.

But, Mr. Prakash held, it is important to remember that the Internet is the tool, the platform, for such mobilisation. Campaigns and conversations such as those on net neutrality could not take place without the organisations and people involved in it. Civil society organisations have played prominent roles in this regard, creating awareness and well-informed discussions. For Mr. Prakash, civil society organisations play their role best when they create such public awareness, and it is important, to play to a stakeholders strengths. Some organisations are effective campaigners, while others (such as CIS) are competent at research, analysis and dissemination.

According to Mr. Prakash, it is equally important to remember that successful discussions, campaigns or debates (such as the ongoing one on net neutrality) do not occur solely because of one organisation's strengths, or indeed because of civil society alone. Networks are especially critical in successful campaigns and policy changes. As researchers, we may not always know where our work is read, but sometimes they reach unexpected venues. For instance, one of Mr. Prakash's papers was used by the hacker collective Anonymous for a local campaign, and he was made aware of it only accidentally. Mr. Prakash noted that civil society has to also accept its failures, pointing to the controversy surrounding the Goondas Act in Karnataka. Where there are strong counter-stakeholders (such as the film lobby in south Indian states), civil society's efforts alone may not lead to success.

On net neutrality, Mr. Prakash noted the example of a strategy employed by the Times of India newspaper, when it undercut its competitors by slashing its own prices. Such moves are not unknown in the market, and they have their benefits. Consumers benefit from the lowered prices. For instance, were a Whatsapp or Facebook pack to be introduced by a telecom operator, the consumers may choose to buy this cheap, limited data pack. This is beneficial for consumers, and also works to expand access to the Internet. At the same time, diversity of speech and consumer choice is severely restricted, as these companies and telecom operators can create 'walled gardens' of information and services. Mr. Prakash put forth that if we can facilitate competitive zero-rating, and ensure that anti-competitive cross-subsidization does not occur, then perhaps zero-rated products can achieve access without forcing a trade off between diversity and choice.

Finally, on the issue of website blocking and takedowns under Sections 69A and 79, IT Act, Mr. Prakash noted that the Shreya Singhal judgment does nothing to restrict the judiciary's powers to block websites. According to Mr. Prakash, at the moment, the Shreya Singhal judgment relieves intermediaries of the responsibility to take down content if they receive private complaints about content. After the judgment, intermediaries will lose their immunity under Section 79, IT Act, only if they refuse to comply with takedown requests from government agencies or judicial orders.

But, as Mr. Prakash explained, the judiciary is itself a rogue website-blocker. In the past few years, the judiciary has periodically ordered the blocking of hundreds of websites. Such orders have resulted in the blocking of a large number of legitimate websites (including, at one point, Google Drive and Github). To ensure that our freedom of expression online is effectively protected, Mr. Prakash argued that ways to stop the judiciary from going on such a rampage must be devised.

Questions & Comments

A. Participants and panel members commented that researchers and commentators err by making analogies between the Internet and other media like newspapers, couriers, TV, satellite, cable, etc. The architecture of the Internet is very different even from cable. On the Internet, traffic flows both ways, whereas cable is not bi-directional. Moreover, pricing models for newspapers have nothing in common with those on the Internet. The comparisons in net neutrality debates stand the danger of incorrectness, and we must guard against that. Zero-rating and net neutrality issues in high-access countries are very different from the issues in low-access countries like India.

B. Participants and panel members commented that access and availability must play a predominant role in thinking about freedom of expression. In India, we are technologically far behind other states, though we have potential. The real end-goal of this is the convergence of services and information, with the user at the centre of the ecosystem. Our technological capabilities include satellite and spectrum; the best spectrum bands are lying vacant and can be re-framed. For this, the government must be educated.

C. Participants and panel members commented that in high-access states, the net neutrality issues surround competition and innovation (since there is no or very little ISP competition and switching costs are not low), while in India and France, where there is already competition amongst providers, access plays a crucial role. On the Internet, the networking or engineering aspects can disrupt the content carried over the network, so that is also a concern.

D. Participants and panel members commented that zero-rating is both a blessing and a curse. Zero-rating would not be detrimental in a market with perfect information and competition. But the reality is information asymmetry and imperfect competition. If today, we were to allow zero-rating, diversity would suffer and we would be left with 'walled gardens'.

Conclusion

The conference addressed a range of issues characteristic of debates surrounding freedom of expression in India and South Asia. Beginning with the conceptual understanding of freedom of expression, panellists advocated an expanded definition, where the right to free speech is teleological. The panellists considered freedom of speech as a tool to ensure diversity of speech, both horizontally and vertically. Towards this end, panellists gave several suggestions:

First , policymakers and scholars must understand freedom of speech as a right of both the speaker and the listener/reader, and carve out a separate listeners' right. Panellists expanded upon this to show the implications for the debate on net neutrality, cross-media ownership and website-blocking, for instance.

Second , there is a need for scholars to examine the historical dichotomy between the policy and jurisprudence of free speech in India and other contexts across South Asia. Such an approach to scholarship and policy research would help predict future government policy (such as in the case of the Indian government's stance towards Section 66A following the Supreme Court's decision in Shreya Singhal v. Union of India) and strategize for the same.

Third , particularly with regard to the Internet, there is a need for policy advocates and policy makers to "bust" the founding myths of the Internet, and look to various domestic and international sources of law and regulation. Studies of regulation of freedom of speech on the Internet in different jurisdictions (Bangladesh, China, Sri Lanka) indicate differing government approaches, and provide examples to learn from. The interpretation and consequences of Shreya Singhal on website-blocking and intermediary liability in India provide another learning platform.

Fourth , panellists discussed the possibilities of cooperation and strategies among civil society and policy organisations in India. Taking the example of the Save the Internet campaign surrounding net neutrality in India, panellists speculated on the feasibility of using the Internet itself as a tool to campaign for governance and policy reform. Together with the audience, the panellists identified several areas that are ripe for research and advocacy, such as net neutrality and zero-rating, and citizens' free speech right as being separate from governmental and corporate interests.

For more details visit https://cis-india.org/internet-governance/blog/freedom-of-expression-in-a-digital-age

CIS Cybersecurity Series (Part 24) – Shantanu Ghosh

purba — 2015-07-15T14:58:50Z

CIS interviews Shantanu Ghosh, Managing Director, Symantec Product Operations, India, as part of the Cybersecurity Series.

“Remember that India is also a land where there are a lot of people who are beginning to use computing devices for the first time in their lives. For many people, their smartphone is their first computing device because they have never had computers in the past. For them, the challenge is how do you make sure that they understand that that can be a threat too. It can be a threat not only to their bank accounts, with their financial information, but even to their private lives.”

Centre for Internet and Society presents its twenty fourth installment of the CIS Cybersecurity Series.”

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Shantanu Ghosh is the Managing Director of Symantec Product Operations, India. He also runs the Data Centre Security Group for Symantec globally.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/blog/cis-cybersecurity-series-part-24-2013-shantanu-ghosh

Corporate push to Modi’s Rs.4.5-billion digital dream

praskrishna — 2015-07-16T02:26:24Z

Prime Minister Narendra Modi’s Rs. 4.5-billion digital dream seems to find favour with the corporate world, which calls it a “very progressive step” and “massive tech push”.

The article by Rakesh Kumar was published in the Statesman on July 13, 2015. Sumandro Chattapadhyay was quoted.

Modi shared his dreams at the recent Digital India Week in the capital and the event saw big names from the business world—Reliance Industries Ltd chairman Mukesh Ambani, Tata group chairman Cyrus Mistry, Wipro Ltd chairman Azim Premji, among others—supporting the initiative.

Showing its faith in Modi’s dream, Reliance Industries is all set to invest over Rs.2.5 lakh crore in the initiative that would focus on cloud computing and mobile applications, empowering every citizen with access to digital services, knowledge and information.

The initiative could boost the IT sector, which according to NASSCOM witnesses a robust growth in 2015, with the calculated revenue for FY 2015 at $147 billion, and a growth of 13 per cent from the corresponding period 2014.

“From an IT perspective, this is a sincere approach to problem solving with growth, realism and long-term transformation at the core,” said Manish Sharma, president, Consumer Electronics and Appliances Manufacturers Association (CEAMA) and managing director, Panasonic India, in an exclusive interview to thestatesman.com.

“Empowering citizens with the use of IT, we believe Digital India is a massive tech push to provide electronic governance and universal phone connectivity across the country,” he added.

CEAMA and Panasonic are willing to contribute to Digital India through technological expertise and commitment.

The Indian information Technology (IT) industry is reportedly pegged at $118-billion and DS Rawat, secretary general, ASSOCHAM, feels the Digital India initiative could be a “game-changer”.

Commenting on PM’s pledge to bring Internet connectivity to all Indians, Rawat told thestatesman.com: “The initiative is possible, provided the implementation of the schemes is done in a mission mode.”

“The business and industry will be the major beneficiary in terms of quality of governance, which is possible through digital initiative. Besides, the industry itself has to prepare to deal with new emerging business models such as e-commerce,” he added.

Modi, at the Digital India launch, said that “e-governance will be quickly changed into m-governance, and ‘M’ does not mean Modi governance, it means mobile governance.”

Both, big corporate houses and small players hailed the PM’s remark.

“It is good initiative for the railway sector in terms of passenger amenities, online procurement and technological up gradation,” said Amit Goel of Aggarwal Engineers in an interview to thestatesman.com.

The company is active in the railway sector.

When asked how Digital India initiative would help small companies, Goel said: “It will help us in many ways. By adopting e-governance, small companies can check and bid for the online procurement and will be able to interact with the concerned department through digital technology.”

Anil Valluri of NetApp India said: “Digital India is one of the most significant transformations the country will witness by eventually connecting over a billion people of India, with technology as its focal point.”

When it comes to IT transformation, cyber security emerges as a vital issue.

Sumandro Chattapadhyay, Research Director, The Centre for Internet and Society (CIS), described the issue of digital security as the key to the “operationalisation and sustainability of the Digital India initiative”. “We expect the government not only to build administrative structures for ensuring cyber-security of the information systems, but also enable legal frameworks for protecting citizens from unlawful and unforeseen abuses of their digital identities as well as their digital assets.” Having said that, he praised the PM’s move, saying it will bring together various existing and new initiatives for building “network infrastructures for expanded public access, electronic governance systems for effective delivery of services, under the national policy umbrella of 'Digital India’”.

Rajiv Kapur, managing director, Broadcom India, pointed out another benefit of the ubiquitous broadband sector, which according to a report, faces certain challenges such as low rural penetration, stagnant data usage over the years and limited broadband services.

“It will help bring parity between the rural and urban India,” he said and added: “Today, we need solutions that allow the majority of rural Indian population to continue to stay at their homes, and not migrate to cities.”

In a knowledge economy, the biggest difference that will make an impact is education.

"Healthcare is another area where having connectivity can make big difference in quality of life," he said.

“E-delivery of governance and services is important for the efficient use of government resources, and allows for collaborative, transparent and more efficient governance," the Broadcom managing director added.

For more details visit https://cis-india.org/internet-governance/news/the-statesman-rakesh-kumar-july-13-2015-corporate-push-modis-billion-digital-dream

A Dissent Note to the Expert Committee for DNA Profiling

elonnai — 2016-07-21T11:01:44Z

The Centre for Internet and Society has participated in the Expert Committee for DNA Profiling constituted by the Department of Biotechnology in 2012 for the purpose of deliberating on and finalizing the draft Human DNA Profiling Bill and appreciates this opportunity. CIS respectively dissents from the January 2015 draft of the Bill.

Click for DNA Bill Functions, DNA List of Offences, and CIS Note on DNA Bill. A modified version was published by Citizen Matters Bangalore on July 28.

Based on the final draft of the Human DNA Profiling Bill that was circulated on the 13th of January 2015 by the committee, the Centre for Internet and Society is issuing this note of dissent on the following grounds:

The Centre for Internet and Society has made a number of submissions to the committee regarding different aspects of the Bill including recommendations for the functions of the board, offences for which DNA can be collected, and a general note on the Bill. Though the Centre for Internet and Society recognizes that the present form of the Bill contains stronger language regarding human rights and privacy, we do not find these to be adequate and believe that the core concerns or recommendations submitted to the committee by CIS have not been incorporated into the Bill.

The Centre for Internet and Society has foundational objections to the collection of DNA profiles for non-forensic purposes. In the current form the DNA Bill provides for collection of DNA for the following non forensic purposes:

Section 31(4) provides for the maintenance of indices in the DNA Bank and includes a missing person’s index, an unknown deceased person’s index, a volunteers’ index, and such other DNA indices as may be specified by regulation.
Section 38 defines the permitted uses of DNA profiles and DNA samples including: identifying victims of accidents or disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases listed in Part I of the Schedule or for other purposes as may be specified by regulation.
Section 39 defines the permitted instances of when DNA profiles or DNA samples may be made available and include: for the creation and maintenance of a population statistics Data Bank that is to be used, as prescribed, for the purposes of identification research, protocol development or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.
Part I of the schedule lists laws, disputes, and offences for which DNA profiles and DNA samples can be used. These include, among others, the Motor Vehicles Act, 1988, parental disputes, issues relating to pedigree, issues relating to assisted reproductive technologies, issues relating to transplantation of human organs, issues relating to immigration and emigration, issues relating to establishment of individual identity, any other civil matter as may be specified by the regulations, medical negligence, unidentified human remains, identification of abandoned or disputed children.

While rejecting non-forensic use entirely, we have specific substantive and procedural objections to the provisions relating to forensic profiling in the present version of the Bill. These include:

Over delegation of powers to the board: The DNA Board currently has vast powers as delegated by Section 12 including:
“authorizing procedures for communication of DNA profiles for civil proceedings and for crime investigation by law enforcement and other agencies, establishing procedure for cooperation in criminal investigation between various investigation agencies within the country and with international agencies, specifying by regulations the list of applicable instances of human DNA profiling and the sources and manner of collection of samples in addition to the lists contained in the Schedule, undertaking any other activity which in the opinion of the Board advances the purposes of this Act.”

Section 65 gives the Board the power to make regulations for a number purposes including: “other purposes in addition to identification of victims of accidents, disasters or missing persons or for purposes related to civil disputes and other civil matters and other offences or cases lists in Part I of the Schedule for which records or samples may be used under section 38, other laws, if any, to be included under item (viii) of para B of Part I of the Schedule, other civil matters, if any, to be included under item (vii) of para C of Part I of the Schedule, and authorization of other persons, if any, for collection of non intimate body samples and for performance of non-intimate forensic procedures, under Part III of the Schedule.

Ideally these powers would lie with the legislative or judicial branch. Furthermore, the Bill establishes no mechanism for accountability or oversight over the functioning of the Board and section 68 specifically states that “no civil court shall have jurisdiction to entertain any suit or proceeding in respect to any matter which the Board is empowered by or under this Act to determine.”

The above represents only a few instances of the overly broad powers that have been given to the Board. Indeed, the Bill gives the Board the power to make regulations for 37 different aspects relating to the collection, storage, use, sharing, analysis, and deletion of DNA samples and DNA profiles. As a result, the Bill establishes a Board that controls the entire ecosystem of DNA collection, analysis, and use in India without strong external oversight or accountability.
Key terms undefined: Section 31 (5) states that the “indices maintained in every DNA Data Bank will include information of data based on DNA analysis prepared by a DNA laboratory duly approved by the Board under section 1 of the Act, and of records relating thereto, in accordance with the standards as may be specified by the regulations.”

The term’ DNA analysis’ is not defined in the Act, yet it is a critical term as any information based on such an analysis and associated records can be included in the DNA Database.
Low standards for sharing of information: Section 34 empowers the DNA Data Bank Manager to compare a received DNA profile with the profiles stored in the databank and for the purposes of any investigation or criminal prosecution, communicate the information regarding the received DNA profile to any court, tribunal, law enforcement agencies, or DNA laboratory which the DNA Data Bank Manager considers is concerned with it.

The decision to share compared profiles and with whom should be made by an independent third party authority, rather than the DNA Bank Manager. Furthermore, this provision isvague and although the intention seems to be that the DNA profiles should be matched and the results communicated only in certain cases, the generic wording could take into its ambit every instance of receipt of a DNA profile. For eg. the regulations envisaged under section 31(4)(g) may prescribe for a DNA Data Bank for medical purposes, but section 34 as it is currently worded may include DNA profiles of patients to be compared and their information released to various agencies by the Data Bank Manager as an unintentional consequence.
Missing privacy safeguards: Though the Bill refers to security and privacy procedures that labs are to follow, these have been left to be developed and implemented by the DNA Board. Thus, except for bare minimum standards and penalties addressing the access, sharing, and use of data – the Bill contains no privacy safeguards.

In our interactions with the committee we have asked that the Bill be brought in line with the nine national privacy principles established by the Report of the Group of Experts on Privacy submitted to the Planning Commission in 2012. This has not been done.

For more details visit https://cis-india.org/internet-governance/blog/dna-dissent