Centre for Internet and Society

Comparison of the Manila Principles to Draft of The Information Technology [Intermediary Guidelines(Amendment) Rules], 2018

Akriti Bopanna and Gayatri Puthran — 2020-06-01T07:48:17Z

This paper looks at the Manila Principles intermediary liability framework in comparison to the amended draft Information Technology [Intermediaries Guidelines (Amendment)] Rules, 2018 introduced by the Ministry of Electronics and Information Technology (MeitY) in December, 2018.

Introduction

In December 2018, the Ministry of Electronics and Information Technology (MeitY) introduced amendments to the draft Information Technology [Intermediaries Guidelines (Amendment)] Rules, 2018 [“the 2018 Rules”]. The proposed changes ranged from asking intermediaries to proactively filter content using automated technology to prohibiting promotion of substances such as cigarettes and alcohol. In CIS's submission to the Government, we highlighted our various concerns with the proposed rules. Building on the same, this paper aims to assess how the new draft rules measure up to the best practices on Intermediary Liability as prescribed in the Manila Principles. These principles were formulated in 2015 by a coalition of civil society groups and experts, including CIS, in order to establish best practice to guide policies pertaining to intermediary liability.

Depending on their function, intermediaries have a varying hand in hosting activism and discourse that are integral to a citizen’s right to freedom of speech and expression. The Manila Principles are an attempt at articulating best practices that lead to the development of intermediary liability regimes which respect human rights.

Consequently, the paper examines the draft rules to assess their compatibility with the Manila Principles. It provides recommendations such that, where needed, the rules are aligned with the aforementioned principles. The assessment is done based on the insight into the rationale of the Manila Principles provided in its Background Paper.

Disclosure: CIS is a recipient of research grants from Facebook India.

Click to download the research paper which was edited by Elonnai Hickok and reviewed by Torsha Sarkar.

For more details visit https://cis-india.org/internet-governance/blog/akriti-bopanna-and-gayathri-puthran-comparison-of-manila-principles-to-draft-it-intermediary-guidelines-rules

Designing a Human Rights Impact Assessment for ICANN’s Policy Development Processes

Collin Kure, Akriti Bopanna and Austin Ruckstuhl — 2019-10-03T14:43:28Z

As co-chairs of Cross Community Working Party on Human Rights (CCWP-HR) at International Corporation of Names and Numbers (ICANN), Akriti Bopanna and Collin Kurre executed a Human Rights Impact Assessment for ICANN's processes. It was the first time such an experiment was conducted, and unique because of being a multi-stakeholder attempt.

This report outlines the iterative research-and-design process carried out between November 2017 and July 2019, focusing on successes and lessons learned in anticipation of the ICANN Board’s long-awaited approval of the Work Stream 2 recommendations on Accountability. The process, findings, and recommendations will be presented by Akriti and Austin at CCWP-HR’s joint session with the Government Advisory Council at ICANN66 in Montreal during 2nd-8th November.

Click to download the full research paper here.

For more details visit https://cis-india.org/internet-governance/blog/designing-a-human-rights-impact-assessment-for-icann2019s-policy-development-processes

Dystopia vs development: The Kashmir paradox

Asmita Bakshi — 2019-10-20T06:31:00Z

On 26 July, Azmat Ali Mir, 26, landed in her hometown, Srinagar. A day later, uncertainty and panic gripped the Kashmir valley—the Amarnath yatris (pilgrims) and other tourists were being evacuated, there was heavy military deployment and news reports claimed that there could be a threat to the border.

The article by Asmita Bakshi was published by Livemint on October 19, 2019. Ambika Tandon was quoted.

But Mir had a lot of work to do—she had events planned as part of her startup Manzar Experience Curators, which promotes Kashmiri art, culture and fashion made and produced locally for audiences outside the state, particularly Bengaluru, where she now lives. “We are so used to things like this, we were like, ‘these things will keep happening, curfew laga denge (they will impose a curfew), that means you need to have ration in your home. But until then, you have to do your work’," Mir tells me over the phone from Bengaluru. “I had very little time, my tickets were already booked for 5 August, there was so much work, I had no time to think. I was going around, signing contracts, getting things done."

But soon, it became clear that things would be different this time. By August 1, fear and tension had escalated. Rumours of war grew louder, and additional troops were flown in. “The guy who heads the agency that was to help with online promotions for my event said things don’t seem okay and we should wait and see how this goes," says Mir. “Our lives, both personal and professional, are governed around the political calendar of Kashmir."

Across town, on 26 July, Sheikh Samiullah, 28, from downtown Srinagar was at a café called ZeroBridge Fine Dine along with his team and representatives from the state administration, including deputy commissioner Shahid Choudhary, to launch the Android app for his company FastBeetle. The logistics startup, launched last year by Samiullah and co-founder Abid Rashid Lone, is often called “Kashmir’s Dunzo", and provides door-to-door delivery services for businesses ranging from online grocers and retail commerce to pharmacies and individuals.

The launch of their iOS app was scheduled for 13 August, the day after Eid. But this had to be cancelled a few days later due to the prevailing situation in the valley. Today, FastBeetle’s operations—which run on the internet—have ceased. “I invested all my savings in this company. For me, it’s not possible to run this again. It is like starting from the beginning. I have a massive liability on my head," Samiullah tells me in Delhi, where he has gone from running a profitable business to being unemployed and now searching for work.

Over the same period, Qazi Zaid, 30, who runs and edits the news platform Free Press Kashmir, was in overdrive. “As journalists living in Kashmir, we aren’t just reporting the conflict, we are also living the conflict. We are members of the same society," he says. “One of the last stories we did was on the panic—how panic is being manufactured and the standard response of people who are scared and entering panic mode. That’s what happened with us as well." Free Press Kashmir, which is primarily an online news portal, has not published for close to three months. And now Zaid is in the Capital, exploring ways to save his news portal from complete closure and prevent the 15 young journalists he employs from being rendered jobless.

These young Kashmiris and their organizations have been driven into a state of near-obscurity since 5 August, when the Union government abrogated Article 370 of the Constitution, which granted the state of Jammu and Kashmir its special status, and subsequently sent the valley into a communication blackout. Two and a half months later, only landlines and post-paid mobile services (excluding SMS) have been restored. Internet and data services remain closed.

With thousands of arrests, instances of violence from both militants and the Armed Forces reported in the international press, the impact of this shutdown has been immense. But it has also inflicted a huge monetary cost. A report in the BBC, published on 8 October, stated that “the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (around ₹9,800 crore), and thousands of jobs have been lost".

Shutting down of startups

In a region ridden with decades of armed conflict and the presence of the Indian armed forces in large numbers, entrepreneurship is no easy feat. Kashmiris have typically chosen public sector jobs, but the valley’s entrepreneurs agree that over the last decade or so, young and resilient men and women from the valley had been working to change this with online and offline ventures.

In fact, the startup ecosystem in Kashmir seemed to have been poised for growth. Notably, in September last year, the Jammu and Kashmir Entrepreneurship Development Institute (JKEDI), established by the state government, released the J&K Startup Policy 2018, which aimed to boost the startup ecosystem by granting founders a monthly allowance of up to ₹12,000 for a period of one year during incubation. Recognized startups would be provided with one-time assistance of up to ₹12 Lakh for product research and development, marketing and publicity.

It was around this time that Samiullah started FastBeetle. He had noticed that though logistics companies existed, they catered largely to big organizations like Amazon. FastBeetle tied up with smaller businesses, including close to 200 women in the valley who were making and selling apparel and other wares on Instagram. “They would have trouble going out every day on multiple deliveries since it is a conservative society," he says. FastBeetle had over 30 merchants within its first month of operations. Over the first five months, they had grown to making 100 deliveries per day, employed a team of six, got an office space and two bikes. In a year, they had generated a positive cash flow despite numerous internet shutdowns imposed in the valley.

Since August 5, the company has been plunged into what Samiullah believes is an interminable downturn. He estimates monetary losses at approximately ₹15 lakh, not considering the ₹4 lakh he invested in the Android app and another ₹3 lakh on the iOS app that never took off. In the unlikely event that restrictions are lifted immediately and business as usual resumes in the valley, it will cost him another ₹10 lakhs to restart the company.

Financial losses aside, he says, it is the time and passion he had invested in the business that won’t come back. And his young employees face an uncertain future as well. One of his delivery boys, Arsalan Shabir Bhat, 21, doesn’t know what the future holds both for him or the valley. “The salary of ₹10,000 for me was good, I was satisfied. “Aage ka nahi pata par haalaat bohot kharab hai. Filhaal toh baithe hi hai ghar pe (I don’t know about the future but the current situation is grim. For now, I am sitting at home)," he says.

Through all this, the state administration and Union government are trying to push the narrative of development. In late September, minister of state for finance and corporate affairs Anurag Thakur, told news outlets: “Our government has taken a historic decision to abrogate Article 370. Now, J&K will witness massive development." Yet, the 33 startups registered with the JKEDI and 70 with the Startup India portal in J&K, among others that run on private funding and bootstrapping models, have been struggling since this decision was taken. Earlier this week, militants attacked two non-local apple traders in the valley, casting doubt on the claim that Kashmir is safe for business.

It was to assess conflicting claims such as these, by providing an insight into the lives of people in the valley, that Zaid restarted Free Press Kashmir in 2017 (it was previously shut down in 2014), using investments from his family business. “It’s all the more important now. Because authentic voices from Kashmir are not coming out," says Zaid. He says that while the international media focuses on Kashmir from a breaking news perspective and some of the Indian press takes a nationalistic line, human perspectives from the valley largely remained unheard.

“There was a gap of a human narrative coming out of Kashmir, which we saw and filled," he says. “If we were to relaunch right now, I don’t think there would be a lot of positive stories. There would be stories of struggle, survival, trauma, pain, hardship. That’s what we would be reporting right now."

With a civil curfew reportedly in place in the valley as a means of protest, even businesses that could have provided financial assistance to these startups are not in operation.

“The economy is so badly hit and it will take another year or two years or more—no idea how long—to recover. Because right now advertisers will take some time to recover as well," says Zaid. “I don’t think we can sustain that long. Our business was at 50% of sustenance and now it’s down to 0. Traffic is down to 0 form 350,000-500,000 hits."

Some investors like Asmat Ashai, who runs the US-based non-profit organization Funkar International, would provide financial assistance to young Kashmiri artists, nevertheless maintain that the difficult situation will not deter them from providing support. “I will continue to help anyone who asks me for help because we cannot give up and we will not be broken. We will stay the course and save whatever we have in spite of the abrogation of all the articles. That is paperwork. Kashmiris will not be broken."

Lost hope

According to the Software Freedom Law Foundation, a legal services organization working to protect digital freedom, Kashmir has had the maximum number of internet shutdowns in the country—55, of varying durations and extents, in 2019 alone, and a total of 180 since 2015. This time however, the shutdown was far more severe—all media and communication platforms, including landlines, internet, news publications and certain television services were suspended. “A large majority of businesses today rely on the internet for some part if not all of their function," says Ambika Tandon, policy officer, Centre for Internet and Society (CIS), Bengaluru.

CIS published a digital book titled Internet Shutdown Stories in May 2018 which tracked how internet blockades impact lives and livelihoods in India. “We collected stories from Internet Service Providers (ISPs) and digital marketing firms in Kashmir that were on the brink of closing down due to the frequency of shutdowns in the valley. The reporters spoke to musicians who used YouTube as a means to earn a livelihood and popularity, and were doubly upset with the effect on their income and their freedom of expression. Given the absence of any public notice before shutdowns, or information regarding the extent and duration of shutdowns, the government definitely has the minimal responsibility of compensating direct losses incurred by those who cannot afford it," says Tandon.

Take the example of Furqan Qureshi, who set up KartFood, popularly called “Kashmir’s Zomato", when he was still pursuing a commerce degree from Islamia College, Srinagar. He started in 2017 and would take orders on call. Once the response grew, Qureshi had a website and application built. But for two months thereafter, in May and June 2017, there was a clampdown on the internet. “I suffered a loss of close to ₹1.5 lakh and that time I had no investment, but I had employed people and was responsible for them, so I persevered and started again from July. It’s always about working from scratch in Kashmir. Whenever there is a shutdown, you start from zero," he says on the phone from Bengaluru.

Qureshi says they always fought the odds and remained in business through internet shutdowns during which the team, which stood at 25-30 as on 5 August, would call customers and coordinate deliveries on the phone.

This dedication is what eventually resulted in his first round of investment in February 2018, from a local Kashmiri businessman. “I upgraded the app, included more restaurants, added delivery tracking features and was creating jobs."

Since 5 August, however, not only have communication channels been hit, initially there was complete restriction on movement within the valley. “I had to leave Kashmir around six or seven days after the clampdown, since I live in an area where there was stone-pelting every day and the police was entering homes and picking up boys. My parents were scared and said it was better to go to Bengaluru and stay here," he says, now hoping he can set up a small restaurant in the city, using whatever he has managed to save.

As young entrepreneurs leave, the JKEDI remains hopeful that the startup ecosystem will bounce back once normalcy returns. “I think as soon as the internet starts working again we will push the things here as well, with the policy we are trying to give some incentive to these people, so that we can get these startups back and they can inspire other people to start their own," says Irtif Lone, in-charge, Centre for Innovation Incubation and Business Modelling, JKEDI.

“It is difficult for people to choose to pursue a startup and these situations make it even tougher. We will be pushing all the startups that have made a mark and are now suffering due to the financial constraints. They will be given an incentive as soon as possible so that none of them are starved for finances."

But there are doubts about whether such promises can be fulfilled. In any case, it may already be too late. Shayan Nabi, 29, who ran a digital marketing company and had invested in other ventures of his own such as KashmirCalling (to coordinate private carpooling), has given up hope. As he waits for his employees to receive the emails he has sent asking them to look for alternative opportunities, he himself is facing professional uncertainty in Delhi. “I have been very vocal about providing internet freedom in Kashmir. It’s a basic human right. But it always falls on deaf ears." He adds: “I had ideas about making Kashmir digital. But I am sorry, not any more. Not after all the humiliation we have been through."

The road to recovery from here is paved with crippling debt, unemployment and loss of morale. What was once seen as an act of resilience amidst conflict, has today crumbled due to a State diktat, paradoxically executed with promises of peace and prosperity.

When Mir finally landed in Bengaluru on the morning of 5 August, she broke down when she finally heard the news. Today, with payments stuck with vendors and Mir’s inability to reach her artisans and wazas (Kashmiri cooks) in the valley, the Manzar website reads, “All verticals of Manzar Experience Curators... are currently unoperational due to the unprecedented lockdown in Kashmir". She fears that her venture, which set out to create conversations about Kashmir around the country, has lost all meaning and purpose. “I am not someone who set out with hate, I set out with love and passion and this idea of changing things," she says.

“Do you think with the kind of environment that this country has created for a Kashmiri today, I can go out and do what I do? Is it safe for someone like me to take a place somewhere in Bengaluru to open a place that serves authentic Kashmiri food? I am scared it could be burnt down the next day."

The question she now asks herself transcends the uncertainty of business in the valley, and straddles a precariousness both political and personal: “Where do I go from here?"

For more details visit https://cis-india.org/internet-governance/news/livemint-asmita-bakshi-october-18-2019-dystopia-vs-development

Through the looking glass: Analysing transparency reports

Torsha Sarkar, Suhan S and Gurshabad Grover — 2019-11-02T05:48:59Z

An analysis of companies' transparency reports for government requests for user data and content removal

Over the past decade, a few private online intermediaries, by rapid innovation and integration, have turned into regulators of a substantial amount of online speech. Such concentrated power calls for a high level of responsibility on them to ensure that the rights of the users online, including their rights to free speech and privacy, are maintained. Such responsibility may include appealing or refusing to entertain government requests that are technically or legally flawed, or resisting gag orders on requests. For the purposes of measuring a company’s practices regarding refusing flawed requests and standing up for user rights, transparency reporting becomes useful and relevant.Making information regarding the same public also ensures that researchers can build upon such data and recommend ways to improve accountability and enables the user to understand information about when and how governments are restricting their rights.

For some time in the last decade, Google and Twitter were the only major online platforms that published half-yearly transparency reports documenting the number of content take down and user information requests they received from law enforcement agencies. In 2013 however, that changed, when the Snowden leaks revealed, amongst other things, that these companies were often excessively compliant with requests from US’ intelligence operations, and allowed them backdoor surveillance access to user information. Subsequently, all the major Silicon Valley internet companies have been attempting to publish a variance or other of transparency reports, in hopes of re-building their damaged goodwill, and displaying a measure of accountability to its users.

The number of government requests for user data and content removal has also seen a steady rise. In 2014, for instance Google noted that in the US alone, they observed a 19% rise for the second half of the year, and an overall 250% jump in numbers since Google began providing this information. As per a study done by Comparitech, India sent the maximum number of government requests for content removal and user data in the period of 2009 - 2018.8 This highlights the increasing importance of accessible transparency reporting.

Initiatives analysing the transparency reporting practices of online platforms, like The Electronic Frontier Foundation (EFF)’s Who Has Your Back? reports, for instance, have developed a considerable body of work tracing these reporting practices, but have largely focused at them in the context of the United States (US). In our research, we found that the existing methodology and metrics to assess the transparency reports of online platforms developed by organisations like the EFF are not adequate in the Indian context. We identify two reasons for developing a new methodology:

Online platforms make available vastly different information for US and India. For instance, Facebook breaks up the legal requests it receives for US into eight different classes (search warrants, subpoenas, etc.). Such a classification is not present for India. These differences are summarised in Annexure
The legal regimes and procedural safeguards under which states can compel platforms to share information or take content down also differ. For instance, in India, an order for content takedown can be issued either under section 79 and its allied rules or under section 69A and its rules, each having their own procedures and relevant authorities. A summary of such provisions for Indian agencies is given in Annexure 3.

These differences may merit differences in the methodology for research into understanding the reporting practices of these platforms, depending on each jurisdiction’s legal context.

In this report, we would be analyzing the transparency reports of online platforms with a large Indian user-base, specifically focusing on data they publish about user information and takedown requests received from Indian governments’ and courts.

First, we detail our methodology for this report, including how we selected platforms whose transparency reports we analyse, and then specific metrics relating to information available in those reports. For the latter, we collate relevant metrics from existing frameworks, and propose a standard that can be applicable for our research.

In the second part, we present company-specific reports. We identify general trends in the data published by the company, and then compare the available data to the best practices of transparency reporting that we proposed.

Download the full report. The report was edited by Elonnai Hickok. Research assistance by Keying Geng and Anjanaa Aravindan.

For more details visit https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass

Should online political advertising be regulated?

P.J. George — 2019-11-13T15:12:46Z

Micro-targeting could have potentially damaging results in the context of political advertising.

The article by P.J. George was published in the Hindu on November 8, 2019. Pranesh Prakash was interviewed.

On October 31, Twitter announced that it will no longer carry political advertisements as the power of Internet advertising “brings significant risks to politics, where it can be used to influence votes”. On the other hand, Facebook has said it will not fact-check political advertisements as it does not want to stifle free speech. In a conversation moderated by P.J. George, Pranesh Prakash (board member, The Centre for Internet and Society) and Kiran Chandra (General Secretary, Free Software Movement of India) discuss how platforms and constitutional authorities can deal with the challenges posed by online political advertising to democracies. Edited excerpts:

We have always had political advertising. What is it that makes online political advertisements different or maybe even problematic?

Pranesh Prakash: There are two things that make online political advertising different. One is targeting. Online advertising allows, especially on social networks, for a kind of targeting that wasn’t possible at the same level before. Earlier, if you wanted to target a particular segment of people for your political messaging, you could find out what kind of magazines they subscribe to and put fliers in those magazines. But you couldn’t engage in personalised targeting based on multiple attributes that is possible through platforms like Facebook and Twitter. The second is the invisibility of this kind of advertising. If there’s a billboard in the real world, everyone gets to see it. However, if there’s targeted advertising on a social media platform, not everyone gets to know of it.

Kiran Chandra: App-based organisations have designed advertisement models to specifically allow targeting. Facebook, for instance, allowed you to choose a person from a particular caste and also from a particular class in the same caste. If somebody wants to look at an advertisement for an Audi, they can go to one class of newspapers or look at billboards in some localities; the very existence of the product is not opaque to society. But targeted advertising makes it possible for two people connected to the Internet from the same source, using the same equipment, studying in the same school or college, working in the same workplace, and living in the same habitat to get two different advertisements. And micro-targeting has got potentially damaging results in the context of political advertising, particularly for elections. These platforms make it possible to go from manufacturing consent to manipulating consent. A person is continuously fed with information to vote for a particular party.

Twitter said it will no longer carry political advertisements, considering the repercussions seen in the U.S. in the past elections. On the contrary, Facebook says political advertisements are necessary and that people should see if their politicians are lying. How culpable is a platform in the case of a problematic online political advertisement?

KC: Platforms, particularly Facebook, have been washing their hands of the issue saying they are only intermediaries providing space; that the content is being generated by the people to be consumed by the people, and they have no role to play. But this is false. If you look at the complete business model of Facebook, Google, or any of the platforms, they clearly provide micro-targeting, or allow people to be manipulated for a particular purpose. So, these platforms can’t just wash their hands of the issue. In the Maharashtra election, you saw a lot of advertisements coming out which are untraceable. How can this happen without the platform itself allowing for such a possibility? The Election Commission (EC) needs to step in on all these issues. These corporations need to be very transparent in the context of elections. They need to bring out all the ways in which advertisements are displayed and also the money associated with it.

When somebody publishes it [an ad] on a Facebook wall, it is as good as publishing it in a newspaper. So, all the legislation that apply now for reasonable restrictions and freedom of speech and the freedom of press also apply to these platforms. These platforms are culpable when the very intent of their business model allows such subversion of the democratic process. They need to be brought in line to ensure that Indian democracy is safe.

PP: I completely disagree with Kiran on a number of points. For instance, those who are running a platform shouldn’t automatically be liable for what people are seeing on those platforms. The people who are actually saying things should be liable, not necessarily those who are carrying it without knowing what they’re carrying most of the time. Kiran also mentioned manipulation. The job of all advertising is to manipulate. The job of newspapers is to manipulate public opinion. And there’s always money associated with this. Newspapers carry advertisements as well. You don’t necessarily know who has paid for each ad in the newspaper. What online platforms are able to provide is actually greater transparency in this regard, at least based on what Facebook is attempting to do with its ad library. Calling this manipulation doesn’t quite work. Because then you have to specify why certain categories of things you think of as manipulating, while other categories you think of as influencing.

Second, as far as I know, Facebook does not ask for your caste. Nor does it actually allow advertisers to use caste as a category for advertising. To address the larger question of whether to carry political advertisements or not, I don’t think there are simple answers. For instance, in different jurisdictions there are different rules as to whether different kinds of media are allowed to carry political advertisements or not. In the U.S., all broadcasters are required by law not to censor on the basis of the content of political advertising. Which means that broadcasters in the U.S. cannot say to a candidate, ‘this advertisement that you’ve sent to us contains a lie and we’re not going to associate ourselves with the lie and we’re not going to carry it’. Now, when a platform like Facebook says that it will voluntarily adopt a similar standard as applies to broadcast organisations by law, all hell breaks loose. And again, there might be good reasons for it. But to say that political advertising should not contain lies, and hence should be censored, is not a viable opinion across the board.

KC: I would like to clarify one thing here. There is a clear distinction between Facebook asking your caste and Facebook allowing you to micro-target people based on their caste and class. In 2016, I created an advertisement with a tag called Brahmin bags and it allowed inclusion and exclusion based on caste and economic status. And now, after this had been made an issue for the last three years, Facebook says that advertisers can select topics that are specific to a particular caste. For instance, Dalit topics, Iyengar topics, etc. So Facebook, in its design, allows such kind of sensitivities to be used for micro-targeting. And one should not confuse general advertising with political advertising. If the advertisement is just about manipulating for buying a particular product, that has something to do with the business houses; even if one agrees with it or not. But when you speak about political advertising, when people come to participate and engage in a democratic process, the EC and The Representation of the People Act (RPA) mandate that people should be allowed to take a very clear stand, to look at what has happened in the last five years, and decide how to vote, freely and fairly. That is why the RPA clearly lists a certain set of things for free and fair elections, where even the use of money and manipulation should not be allowed to happen. Yes, the U.S. has a different context. American democracy is different from Indian democracy. We have got our own statute. This methodology in which these platforms have got their business models and are engaging deeply in subverting the Indian democratic process is a serious cause of concern. The EC should come up with new methodologies, if the existing ones are not sufficient.

Can you elaborate on how the EC can play a role in this?

KC: We brought these issues to the notice of the EC prior to the 2019 general election. The EC said it does not have enough manpower to deal with this situation for now. The EC does not have power over the police or the administration; but once the elections are on, it has the capability to take in different departments and ensure that such subversion of the democratic process does not happen. A fundamental problem with the EC’s method is that it said it was in discussion with the digital platforms to make more people vote in the election. And that itself is problematic. How is it going to be done? The EC should make public the way in which this advertising is being conducted, the money associated with it, and the people who are being reached with it. For instance, if we look at TV channels for ads during primetime, there is a mechanism, like TRP ratings, which allows them to understand and evaluate the target sections. If you look at the Maharashtra election, the advertiser itself is not known. Have people been sent communal messages? Have people been targeted based on caste, which can disqualify the contestant? The EC should reach out to the Government of India and look at the departments that are capable of handling this. If they don’t exist, it should start creating infrastructure that will be able to look into all these aspects. Also, concrete guidelines should be given to these digital platforms. And whatever comes in contradiction, or comes in the way of implementing the RPA, the EC should stop the platforms from doing it.

PP: For me, it’s not clear to what extent I would draw a distinction between advertising and other things which the EC has not been able to curtail, such as paid news and political ownership of media, which allow for very skewed viewpoints to be expressed. But insofar as what can be done about online platforms — and again, only online platforms which deal in advertising — the biggest source of online political messaging in India is WhatsApp. So, excluding the elephant in the room from this discussion, what the EC could do is bring the largest platforms together to get transparency commitments from them. Then this information needs to be made publicly available, so that the invisibility which happens with targeting gets countered. The second thing... Given that elections are geographical in nature in India, if you want to engage in advertising, you have to do it on the basis of geography, not on the basis of specific kinds of attributes of a person. And let’s also be aware that most of these attributes or guesses about people that these platforms are making are based on what people post on social media platforms, what they click. So, the one thing that can be done on a global level is transparency and restrictions on various targeting but anything else such as limitations on, say, lying in political advertising, I don't think that can or should be sold on a global level. It’s dependent far too much on each country and their models and how they interpret freedom of expression.

For more details visit https://cis-india.org/internet-governance/news/hindu-pj-george-november-8-2019-should-online-political-advertising-be-regulated

Internet Rights and Wrongs

pranesh — 2016-09-22T23:36:14Z

With a rise in PIL's for unwarranted censorship, do we need to step back and inspect if it's about time unreasonable trends are checked?

The article was published in India Today on September 1, 2016. The original piece can be read here.

Over the last few weeks, there have been a number of cases of egregious censorship of websites in India. Many people started seeing notices that (incorrectly) gave an impression that they may end up in jail if they visited certain websites. However, these notices weren't an isolated phenomenon, nor one that is new. Worryingly, the higher judiciary has been drawn into these questionable moves to block websites as well.

Since 2011, numerous torrent search engines and communities have been blocked by Indian internet service providers (ISPs). Torrent search engines provide the same functionality for torrents that Google provides for websites. Are copyright infringing materials indexed and made searchable by Google? Yes. Do we shut down Google for this reason? No. However, that is precisely what private entertainment companies have done over the past five years in India. Companies hired by the producers of Tamil movies Singham and 3 managed to get video-sharing websites like Vimeo, Dailymotion and numerous torrent search engines blocked even before the movies released, without showing even a single case of copyright infringement existed on any of them. During the FIFA World Cup, Sony even managed to get Google Docs blocked. In some cases, these entertainment companies have abused 'John Doe' orders (generic orders that allow copyright enforcement against unnamed persons) and have asked ISPs to block websites. The ISPs, instead of ignoring such requests as instances of private censorship, have also complied. In other cases (like Sony's FIFA World Cup case), courts have ordered ISPs to block hundreds of websites without any copyright infringement proven against them. High court judges haven't even developed a coherent theory on whether or how Indian law allows them to block websites for alleged copyright infringement. Still they have gone ahead and blocked.

In 2012, hackers got into Reliance Communications servers and released a list of websites blocked by them. The list contained multiple links that sought to connect Satish Seth-a group MD in Reliance ADA Group-to the 2G scam: a clear case of secretive private censorship by RCom. Further, visiting some of the YouTube links which pertained to Satish Seth showed that they had been removed by YouTube due to dubious copyright infringement complaints filed by Reliance BIG Entertainment. Did the department of telecom, whose licences forbid ISPs from engaging in private censorship, take any action against RCom? No. Earlier this year, Tata Sky filed a complaint against YouTube in the Delhi High Court, noting that there were videos on it that taught people how to tweak their set-top boxes to get around the technological locks that Tata Sky had placed. The Delhi HC ordered YouTube "not to host content that violates any law for the time being in force", presuming that the videos in question did in fact violate Indian law. They cite two sections: Section 65A of the Copyright Act and Section 66 of the Information Technology Act. The first explicitly allows a user to break technological locks of the kind that Tata Sky has placed for dozens of reasons (and allows a person to teach others how to engage in such breaking), whereas the second requires finding of "dishonesty" or "fraud" along with "damage to a computer system, etc", and an intention to violate the law-none of which were found. The court effectively blocked videos on YouTube without any finding of illegality, thus once again siding with censorial corporations.

In 2013, Indore-based lawyer Kamlesh Vaswani filed a PIL in the Supreme Court calling for the government to undertake proactive blocking of all online pornography. Normally, a PIL is only admittable under Article 32 of the Constitution, on the basis of a violation of a fundamental right (which are listed in Part III of our Constitution). Vaswani's petition-which I have had the misfortune of having read carefully-does not at any point complain that the state is violating a fundamental right by not blocking pornography. Yet the petition wants to curb the fundamental right to freedom of expression, since the government is by no means in a position to determine what constitutes illegal pornography and what doesn't.

The larger problem extends to the now-discredited censor board (headed by the notorious Pahlaj Nihalani), as also the self-censorship practised on TV by the private Indian Broadcasters Federation (which even bleeps out words and phrases like 'Jesus', 'period', 'breast cancer' and 'beef'). 'Swachh Bharat' should not mean sanitising all media to be unobjectionable to the person with the lowest outrage threshold. So who will file a PIL against excessive censorship?

For more details visit https://cis-india.org/internet-governance/blog/india-today-september-1-2016-pranesh-prakash-internet-rights-and-wrongs

Is India’s website-blocking law constitutional? – I. Law & procedure

geetha — 2014-12-11T11:02:01Z

Section 69A of the Information Technology Act, 2000, along with its corresponding Rules, set out the procedure for blocking of websites in India. Over two posts, Geetha Hariharan examines the constitutional validity of Section 69A and the Blocking Rules.

Introduction:

The Information Technology Act, 2000 (“IT Act”) is no stranger to litigation or controversy. Since its enactment in 2000, the IT Act has come under stringent criticism, both for the alleged Constitutional infirmities of its provisions and Rules, as well as for the way it is implemented. In recent years, Sections 66A (re: criminal liability for offensive, annoying or inconveniencing online communications), 67A (re: obscene 69A (re: website-blocking) and 79 (re: intermediary liability) have all come under attack for these reasons.

Today, these Sections and several others have been challenged before the Supreme Court. A total of ten cases, challenging various Sections of the IT Act, are being heard together by the Supreme Court. This is a welcome occasion, for the IT Act desperately needs judicial review. Nikhil Pahwa over at Medianama provides an update and the list of cases.

Among the challenged provisions are Section 66A, Section 79 and Section 69A. Section 66A was and continues to be used wantonly by the State and police. A student was recently arrested for a Twitter comment regarding Cyclone Hudhud, while anti-Modi comments led to several arrests earlier in the year (see here, here and here). At CIS, we have previously subjected Section 66A to constitutional analyses. Pranesh Prakash traced the genealogy of the Section and its import in targeting offensive, annoying and inconveniencing communications and spam, while Gautam Bhatia examined the Section’s overbreadth and vagueness. The casual wording and potential for misuse of Section 79 and the Information Technology (Intermediaries Guidelines) Rules, 2011 led Ujwala Uppaluri to offer strong arguments regarding their violation of Part III of the Constitution.

Similar infirmities also handicap Section 69A and its Rules. This provision empowers the Central government and officers authorised by it to order the blocking of websites or webpages. Website-blocking is permissible for reasons enumerated in Section 69A, and in accordance with the process laid out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public (sic)) Rules, 2009 (“Blocking Rules”). In our view, Section 69A and the Blocking Rules are also unconstitutional, and liable to be declared as such by the Supreme Court. We provide our analysis in this post and the next.

Section 69A, IT Act:

Section 69A and the Blocking Rules provide for website-blocking in accordance with enumerated reasons and process. The Section reads as follows:

69A. Power to issue directions for blocking for public access of any information through any computer resource.-

(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

As you will notice, the Central government may block any information that is “generated, transmitted, received, stored or hosted” in any computer. This will extend, clearly, to any webpage available and/or hosted in India. The Government can order website-blocks if it is satisfied of the necessity or expedience for this on the basis of (any of) six reasons. These reasons are:

Sovereignty and integrity of India,
Defense of India,
Security of the State,
Friendly relations with foreign states,
Public order,
Preventing incitement to the commission of any cognizable offence relating to above.

If the Central government is convinced it has a valid reason, then it must follow the blocking procedure set out in the Blocking Rules, which were notified on 27 October 2009. Before entering into an analysis of the Blocking Rules, let us understand the blocking procedure.

The Blocking Procedure:

I will explain the blocking procedure in 4 steps: (1) Relevant designations and committees; (2) Procedure to make and examine a blocking request, and issue blocking direction; (3) Blocking in special circumstances; and (4) Review of blocking directions.

(1) Relevant designations and committees:

Designated Officer (“DO”): The Central government notifies an officer not below the rank of Joint Secretary as the Designated Officer, who will issue the blocking direction ot the relevant intermediary or agency [Rule 3]. By a notification dated 20 January 2010, the DO is the Group Coordinator, Cyberlaw Division, Department of Information Technology (DIT). Unfortunately, I was unable to locate the Group Coordinator, Cyberlaw Division on the website of the Department of Electronics and Information Technology (DeitY, the name to which DIT was renamed in 2012). I am also unable to find a notification updating the designation of the DO. Presumably, Dr. Gulshan Rai, Director General (Cyberlaws & E-security), DeitY, continues to be the DO.

Nodal Officer (“NO”): Every organization designates one of its officers as a Nodal Officer, who will receive blocking requests and forward them to the DO [Rule 4]. ‘Organisation’ is defined in Rule 2(g) as Ministries or Departments of the Government of India, State governments and Union Territories, and any Agency of the Central government notified in the Official Gazette. I am unable to find on the DeitY website a notification explaining which government Agencies are ‘organisations’ under Rule 2(g).

Intermediary Contact: Every intermediary also designates one person to receive and handle blocking directions from the DO [Rule 13].

Committee for Examination of Request (“CER”): The 5-membered CER comprises the DO as Chairman, along with officers not below the rank of Joint Secretary from the Ministries of Law & Justice, Home Affairs, Information & Broadcasting and CERT-In [Rule 7]. The CER examines each blocking request, before issuing recommendations to the DO to block or not to block. Regrettably, I am unable to identify the current membership of the CER, as no document is available that gives this information. However, the CER’s composition in 2010 may be gleaned (see Annexure III).

Review Committee (“RC”): Rule 2(i) defines the RC as the body set up under Rule 419A, Indian Telegraph Rules, 1951. As per Rule 419A(16), the Central RC is constituted by the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom).

(2) Blocking procedure:

The Blocking Rules stipulate that the entire blocking procedure, from examining a blocking request to issuing a blocking direction, must be carried out within 7 days from the date on which the DO receives the blocking request from the NO [Rule 11].

(a) Making a blocking request: Any person may send a request for a website-block to an NO of any ‘organisation’ (“outside request”). Alternatively, the NO may himself raise a blocking request. The organization has to examine each outside request and be satisfied that it meets the requirements of Section 69A(1), IT Act. Once it is satisfied, the NO forwards the blocking request to the DO. Outside requests must be approved by the Chief Secretary of the State or Union Territory, before they are sent to the DO. [See Rule 6 for this procedure]

(b) Examining a blocking request: Once the DO receives a blocking request, he/she places it before the CER. The DO tries to identify the person/intermediary hosting the troubling information, and if identified, issues a notice seeking their representation before the CER. Foreign entities hosting the information are also informed over fax/email. The person/intermediary has 48 hours from the date of receiving the DO’s notice to make its representation.

After this, the CER will examine the blocking request. It will “consider whether the request is covered within the scope of Section 69A(1)”, and whether it is justifiable to block [Rule 8(4)].

(c) Blocking direction: The DO then places the CER’s recommendation to block or not to block before the Secretary (DeitY) for his/her approval. If and once approval is granted, the DO directs the relevant Agency or intermediary to block the website/page.

(3) Blocking in special circumstances:

(a) Emergencies [Rule 9]: In an emergency “when no delay is acceptable”, the DO passes over the blocking procedure described above. With written recommendations, the DO directly approaches the Secretary (DeitY) for approval of blocking request. If satisfied, the Secretary (DeitY) issues the blocking direction as an interim measure. Nevertheless, the DO is required to place the blocking request before the CER at the earliest opportunity (in any case, not later than 48 hours after blocking direction).

(b) Court orders [Rule 10]: If a court has ordered a website-block, the DO follows a procedure similar to an Emergency situation. He/she submits the certified copy of order to the Secretary (DeitY), and then initiates action as ordered by the court.

(4) Review of blocking directions:

The RC is to meet once in 2 months to evaluate whether blocking directions issued under the Blocking Rules are in compliance with Section 69A(1) [Rule 14]. No other review or appeal mechanism is provided under the Blocking Rules. Nor are aggrieved parties afforded any further opportunities to be heard. Also note that Rule 16 mandates that all requests and complaints received under the Blocking Rules are to the kept strictly confidential.

In the next post, I will subject Section 69A and the Blocking Rules to a constitutional analysis.

Blocking procedure poster:

CIS has produced a poster explaining the blocking procedure (download PDF, 2.037MB).

For more details visit https://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure

Overview of the Constitutional Challenges to the IT Act

pranesh — 2014-12-19T09:01:50Z

There are currently ten cases before the Supreme Court challenging various provisions of the Information Technology Act, the rules made under that, and other laws, that are being heard jointly. Advocate Gopal Sankaranarayanan who's arguing Anoop M.K. v. Union of India has put together this chart that helps you track what's being challenged in each case.

PENDING MATTERS	CASE NUMBER	PROVISIONS CHALLENGED
Shreya Singhal v. Union of India	W.P.(CRL.) NO. 167/2012	66A
Common Cause & Anr. v. Union of India	W.P.(C) NO. 21/2013	66A, 69A & 80
Rajeev Chandrasekhar v. Union of India & Anr.	W.P.(C) NO. 23/2013	66A & Rules 3(2), 3(3), 3(4) & 3(7) of the Intermediaries Rules 2011
Dilip Kumar Tulsidas Shah v. Union of India & Anr.	W.P.(C) NO. 97/2013	66A
Peoples Union for Civil Liberties v. Union of India & Ors.	W.P.(CRL.) NO. 199/2013	66A, 69A, Intermediaries Rules 2011 (s.79(2) Rules) & Blocking of Access of Information by Public Rules 2009 (s.69A Rules)
Mouthshut.Com (India) Pvt. Ltd. & Anr. v. Union of India & Ors.	W.P.(C) NO. 217/2013	66A & Intermediaries Rules 2011
Taslima Nasrin v. State of U.P & Ors.	W.P.(CRL.) NO. 222/2013	66A
Manoj Oswal v. Union of India & Anr.	W.P.(CRL.) NO. 225/2013	66A & 499/500 Indian Penal Code
Internet and Mobile Ass'n of India & Anr. v. Union of India & Anr.	W.P.(C) NO. 758/2014	79(3) & Intermediaries Rules 2011
Anoop M.K. v. Union of India & Ors.	W.P.(CRL.) NO. 196/2014	66A, 69A, 80 & S.118(d) of the Kerala Police Act, 2011

For more details visit https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact

NGOs, individuals urge state CMs to curb Internet shutdown

praskrishna — 2017-04-07T02:43:39Z

Amid rising instances of Internet curbs, a group of individuals and organisations have urged the chief ministers of 12 states to only restrict specific online content rather than resort to complete shutdown.

The article was published in the Times of India on April 4, 2017.

SFLC.in, a Delhi-based not-for-profit organisation, along with various Internet-related firms have sent letters in this regard to the chief ministers of these states impacted by Internet shutdowns.

The letters have been written to the chief ministers of Uttar Pradesh, Nagaland, Manipur, Maharashtra, J&K, Jharkhand, Rajasthan, Meghalaya, Arunachal Pradesh, Bihar, Gujarat and Haryana.

"The Internet shutdowns are imposed using state power under Section 144 by these specific states and not by the Union Government. The central government is bound to follow the process under Section 69 IT act.

"These letters to the chief ministers of all 12 states, which have been affected by Internet shutdowns till date, are an effort by us to address the source of the problem," SFLC.in President and Legal Director Mishi Choudhary told .

As per Internet Shutdown tracker of SFLC, there have been 28 incidents of Internet closure in Jammu & Kashmir, 9 cases each in Gujarat and Haryana, 8 in Rajasthan, 3 Nagaland, 2 cases each in Uttar Pradesh, Bihar and Manipur and 1 incident each in Maharashtra, Jharkhand, Meghalaya and Arunachal Pradesh since 2012.

As per the tracker, far India has experienced a record number of 66 such incidents since 2012, with the number increasing more than two-fold from 14 in 2015 to 31 in 2016.

The letters sent to the chief ministers urge them to "take requisite action that would prohibit the issuance of orders that make Internet services entirely inaccessible for a particular area, and rather recommend that Section 69A and the procedure established by the rules therein be applied to limit the restriction to certain specific online content."

The signatories of the letters include the Centre for Internet and Society, Digital Empowerment Foundation, Internet Democracy Project, IT for Change and Society for Knowledge Commons, individuals like Anivar Aravind (Executive Director, Indic Project), IIT Bombay professor Kannan Moudgalya and others.

"We are hopeful that our efforts will make the government take in account the enormous effects of Internet shutdowns on the social-economic condition of our citizens and understand their plight," Choudhary said. PRS MKJ

For more details visit https://cis-india.org/internet-governance/news/times-of-india-april-4-2017-ngos-individuals-urge-state-cms-to-curb-internet-shutdown

India bans social media in Kashmir for one month

praskrishna — 2017-04-27T16:09:56Z

Authorities in Indian-controlled Kashmir have banned 22 social media sites including Facebook, WhatsApp and Twitter in an effort to calm tensions in the disputed region.

The article was published in the Telegraph on April 27, 2017. Pranesh Prakash was quoted.

The government said Wednesday that the one-month ban was necessary for public safety because social media were being "misused by anti-national and anti-social elements." Videos depicting the alleged abuse of Kashmiris by Indian forces fueled protests have been shown on social media in recent days.

"It's being felt that continued misuse of social networking sites and instant messaging services is likely to be detrimental to the interests of peace and tranquility in the state," the public order said.

The sites remained online Thursday as the local telecom company struggled to block them.

Pranesh Prakash, policy director for the Indian advocacy group the Center for Internet and Society, called the ban a "blow to freedom of speech" and "legally unprecedented in India."

An official with Kashmir's state-owned telecom company, Bharat Sanchar Nigam, said engineers were still working on shutting down the 22 sites, including Facebook and Twitter, but so far had been unable to do so without freezing the internet across the Himalayan region. The official spoke on condition of anonymity because he was not authorized to give technical details of the effort to the media.

Meanwhile, 3G and 4G cellphone service has been suspended for more than a week, but slower 2G service is still available.

Residents of Srinagar, the region's main city, were busily downloading documents, software and applications onto their smartphones which would likely be able to circumvent the social media block once it goes into effect. Many expressed relief to still have internet access Thursday morning.

"It was a welcome surprise," said Tariq Ahmed, a 24-year-old university student. "It appears they've hit a technical glitch to block social media en mass."

While the government has halted internet service in Kashmir in previous attempts to prevent anti-India demonstrations, this is the first time they have done so in response to the circulation of videos and photos showing alleged military abuse.

Others mocked the government. A Facebook post by Kashmiri writer Arif Ayaz Parrey said the ban showed "the Indian government has decided to take on the collective subversive wisdom of cyberspace humanity."

Indian police and paramilitary officials accuse agitators of using social media to instigate violence.

An international journalists' rights group urged Indian authorities to immediately revoke the "sweeping censorship of social media," saying it "will bring neither peace nor order" in the region.

"Such broad censorship clearly violates the democratic ideals and human rights India purports to uphold," said Steven Butler, Asia Program coordinator at the New York-based Committee to Protect Journalists.

Kashmiris have been uploading videos and photos of alleged abuse for some years, but several recently posted clips, captured in the days surrounding a violence-plagued local election on April 9, have proven to be especially powerful and have helped to intensify anti-India protests.

One video shows a stone-throwing teenage boy being shot by a soldier from a few meters (yards) away. Another shows soldiers making a group of young men, held inside an armored vehicle, shout profanities against Pakistan while a soldier kicks and slaps them with a stick.

The video pans to a young boy's bleeding face as he cries. Yet another clip shows three soldiers holding a teenage boy down with their boots and beating him on his back.

The video that drew the most outrage was of young shawl weaver Farooq Ahmed Dar tied to the hood of an army jeep as it patrolled villages on voting day. A soldier can be heard saying in Hindi over a loudspeaker, "Stone throwers will meet a similar fate," as residents look on aghast.

Protests and clashes are an almost daily occurrence in Indian-administered Kashmir, where anti-India sentiment runs deep among the mostly Muslim population after decades of military crackdowns. Disputes over control of the Kashmir region, claimed by both India and Pakistan, have sparked two wars between the nations since 1947.

For more details visit https://cis-india.org/internet-governance/news/the-telegraph-april-27-2017-india-bans-social-media-in-kashmir-for-one-month

Can India Trust Its Government on Privacy?

pranesh — 2013-07-15T10:35:33Z

In response to criticisms of the Centralized Monitoring System, India’s new surveillance program, the government could contend that merely having the capability to engage in mass surveillance won’t mean that it will. Officials will argue that they will still abide by the law and will ensure that each instance of interception will be authorized.

Pranesh Prakash's article was published in the New York Times on July 11, 2013.

In fact, they will argue that the program, known as C.M.S., will better safeguard citizens’ privacy: it will cut out the telecommunications companies, which can be sources of privacy leaks; it will ensure that each interception request is tracked and the recorded content duly destroyed within six months as is required under the law; and it will enable quicker interception, which will save more lives. But there are a host of reasons why the citizens of India should be skeptical of those official claims.

Cutting out telecoms will not help protect citizens from electronic snooping since these companies still have the requisite infrastructure to conduct surveillance. As long as the infrastructure exists, telecom employees will misuse it. In a 2010 report, the journalist M.A. Arun noted that “alarmingly, this correspondent also came across several instances of service providers’ employees accessing personal communication of subscribers without authorization.” Some years back, K.K. Paul, a top Delhi Police officer and now the Governor of Meghalaya, drafted a memo in which he noted mobile operators’ complaints that private individuals were misusing police contacts to tap phone calls of “opponents in trade or estranged spouses.”

India does not need to have centralized interception facilities to have centralized tracking of interception requests. To prevent unauthorized access to communications content that has been intercepted, at all points of time, the files should be encrypted using public key infrastructure. Mechanisms also exist to securely allow a chain of custody to be tracked, and to ensure the timely destruction of intercepted material after six months, as required by the law. Such technological means need to be made mandatory to prevent unauthorized access, rather than centralizing all interception capabilities.

At the moment, interception orders are given by the federal Home Secretary of India and by state home secretaries without adequate consideration. Every month at the federal level 7,000 to 9,000 phone taps are authorized or re-authorized. Even if it took just three minutes to evaluate each case, it would take 15 hours each day (without any weekends or holidays) to go through 9,000 requests. The numbers in Indian states could be worse, but one can’t be certain as statistics on surveillance across India are not available. It indicates bureaucratic callousness and indifference toward following the procedure laid down in the Telegraph Act.

In a 1975 case, the Supreme Court held that an “economic emergency” may not amount to a “public emergency.” Yet we find that of the nine central government agencies empowered to conduct interception in India, according to press reports — Central Board of Direct Taxes, Intelligence Bureau, Central Bureau of Investigation, Narcotics Control Bureau, Directorate of Revenue Intelligence, Enforcement Directorate, Research & Analysis Wing, National Investigation Agency and the Defense Intelligence Agency — three are exclusively dedicated to economic offenses.

Suspicion of tax evasion cannot legally justify a wiretap, which is why the government said it had believed that Nira Radia, a corporate lobbyist, was a spy when it defended putting a wiretap on her phone in 2008 and 2009. A 2011 report by the cabinet secretary pointed out that economic offenses might not be counted as “public emergencies,” and that the Central Board of Direct Taxes should not be empowered to intercept communications. Yet the tax department continues to be on the list of agencies empowered to conduct interceptions.

India has arrived at a scary juncture, where the multiple departments of the Indian government don’t even trust each other. India’s Department of Information Technology recently complained to the National Security Advisor that the National Technical Research Organization had hacked into National Informatics Center infrastructure and extracted sensitive data connected to various ministries. The National Technical Research Organization denied it had hacked into the servers but said hundreds of e-mail accounts of top government officials were compromised in 2012, including those of “the home secretary, the naval attaché to Tehran, several Indian missions abroad, top investigators of the Central Bureau of Investigation and the armed forces,” The Mint newspaper reported. Such incidents aggravate the fear that the Indian government might not be willing and able to protect the enormous amounts of information it is about to collect through the C.M.S.

Simply put, government entities have engaged in unofficial and illegal surveillance, and the C.M.S. is not likely to change this. In a 2010 article in Outlook, the journalist Saikat Datta described how various central and state intelligence organizations across India are illegally using off-the-air interception devices. “These systems are frequently deployed in Muslim-dominated areas of cities like Delhi, Lucknow and Hyderabad,” Mr. Datta wrote. “The systems, mounted inside cars, are sent on ‘fishing expeditions,’ randomly tuning into conversations of citizens in a bid to track down terrorists.”

The National Technical Research Organization, which is not even on the list of entities authorized to conduct interception, is one of the largest surveillance organizations in India. The Mint reported last year that the organization’s surveillance devices, “contrary to norms, were deployed more often in the national capital than in border areas” and that under new standard operating procedures issued in early 2012, the organization can only intercept signals at the international borders. The organization runs multiple facilities in Mumbai, Bangalore, Delhi, Hyderabad, Lucknow and Kolkata, in which monumental amounts of Internet traffic are captured. In Mumbai, all the traffic passing through the undersea cables there is captured, Mr. Datta found.

In the western state of Gujarat, a recent investigation by Amitabh Pathak, the director general of police, revealed that in a period of less than six months, more than 90,000 requests were made for call detail records, including for the phones of senior police and civil service officers. This high a number could not possibly have been generated from criminal investigations alone. Again, these do not seem to have led to any criminal charges against any of the people whose records were obtained. The information seems to have been collected for purposes other than national security.

India is struggling to keep track of the location of its proliferating interception devices. More than 73,000 devices to intercept mobile phone calls have been imported into India since 2005. In 2011, the federal government asked various state governments, private corporations, the army and intelligence agencies to surrender these to the government, noting that usage of any such equipment for surveillance was illegal. We don’t know how many devices were actually turned in.

These kinds of violations of privacy can have very dangerous consequences. According to the former Intelligence Bureau head in the western state of Gujarat, R.B. Sreekumar, the call records of a mobile number used by Haren Pandya, the former Gujarat home minister, were used to confirm that it was he who had provided secret testimony to the Citizens’ Tribunal, which was conducting an independent investigation of the 2002 sectarian riots in the state. Mr. Pandya was murdered in 2003.

The limited efforts to make India’s intelligence agencies more accountable have gone nowhere. In 2012, the Planning Commission of India formed a group of experts under Justice A.P. Shah, a retired Chief Justice of the Delhi High Court, to look into existing projects of the government and to suggest principles to guide a privacy law in light of international experience. (Centre for Internet and Society, where I work was part of the group). However, the government has yet to introduce a bill to protect citizens’ privacy, even though the governmental and private sector violations of Indian citizens’ privacy is growing at an alarming rate.

In February, after frequent calls by privacy activists and lawyers for greater accountability and parliamentary oversight of intelligence agencies, the Centre for Public Interest Litigation filed a case in the Supreme Court. This would, one hopes, lead to reform.

Citizens must also demand that a strong Privacy Act be enacted. In 1991, the leak of a Central Bureau of Investigation report titled “Tapping of Politicians’ Phones” prompted the rights groups, People’s Union of Civil Liberties to file a writ petition, which eventually led to a Supreme Court of India ruling that recognized the right to privacy of communications for all citizens as part of the fundamental rights of freedom of speech and of life and personal liberty. However, through the 2008 amendments to the Information Technology Act, the IT Rules framed in 2011 and the telecom licenses, the government has greatly weakened the right to privacy as recognized by the Supreme Court. The damage must be undone through a strong privacy law that safeguards the privacy of Indian citizens against both the state and corporations. The law should not only provide legal procedures, but also ensure that the government should not employ technologies that erode legal procedures.

A strong privacy law should provide strong grounds on which to hold the National Security Advisor’s mass surveillance of Indians (over 12.1 billion pieces of intelligence in one month) as unlawful. The law should ensure that Parliament, and Indian citizens, are regularly provided information on the scale of surveillance across India, and the convictions resulting from that surveillance. Individuals whose communications metadata or content is monitored or intercepted should be told about it after the passage of a reasonable amount of time. After all, the data should only be gathered if it is to charge a person of committing a crime. If such charges are not being brought, the person should be told of the incursion into his or her privacy.

The privacy law should ensure that all surveillance follows the following principles: legitimacy (is the surveillance for a legitimate, democratic purpose?), necessity (is this necessary to further that purpose? does a less invasive means exist?), proportionality and harm minimization (is this the minimum level of intrusion into privacy?), specificity (is this surveillance order limited to a specific case?) transparency (is this intrusion into privacy recorded and also eventually revealed to the data subject?), purpose limitation (is the data collected only used for the stated purpose?), and independent oversight (is the surveillance reported to a legislative committee or a privacy commissioner, and are statistics kept on surveillance conducted and criminal prosecution filings?). Constitutional courts such as the Supreme Court of India or the High Courts in the Indian states should make such determinations. Citizens should have a right to civil and criminal remedies for violations of surveillance laws.

Indian citizens should also take greater care of their own privacy and safeguard the security of their communications. The solution is to minimize usage of mobile phones and to use anonymizing technologies and end-to-end encryption while communicating on the Internet. Free and open-source software like OpenPGP can make e-mails secure. Technologies like off-the-record messaging used in apps like ChatSecure and Pidgin chat conversations, TextSecure for text messages, HTTPS Everywhere and Virtual Private Networks can prevent Internet service providers from being able to snoop, and make Internet communications anonymous.

Indian government, and especially our intelligence agencies, violate Indian citizens’ privacy without legal authority on a routine basis. It is time India stops itself from sleepwalking into a surveillance state.

For more details visit https://cis-india.org/internet-governance/blog/new-york-times-july-11-2013-can-india-trust-its-government-on-piracy

Fake News, Rumors & Online Content Regulation

praskrishna — 2017-02-28T02:46:13Z

Medianama and Mint organized #NAMApolicy open house on 'Fake News, Rumors & Online Content Regulation' on February 22, 2017 at the India Habitat Centre. Japreet Grewal and Amber Sinha attended the event.

The discussions broadly covered the impact of Fake News on democratic processes, Legal status of online content regulation in India & administrative challenges with Fake News, Responsibility and accountability of online platforms, while addressing challenges of identification of sources of Fake News, Potential legal and non-legal ways of addressing Fake News, etc.

Agenda

06:30 to 07:00 pm - Registration
07:00 to 07:10 pm - Introductory note
07:10 to 09:00 pm - Round-table discussion moderated by Nikhil Pahwa
09:00 pm onwards - Networking dinner

For more details visit https://cis-india.org/internet-governance/news/fake-news-rumors-online-content-regulation

Other Than Women: Exploring Harassment and Difference Online

praskrishna — 2017-03-27T16:11:30Z

A satellite session at RightsCon in Brussels is being organized by the Tactical Technology Collective on March 28, 2017. Rohini Lakshané is a speaker at this event.

Tactical Tech is interested in the problem of online harassment as a barrier to political participation in quantified societies, and in terms of the harm it causes those targeted. We have been working to customise tactics of resistance and support to communities/individuals who are working online and are exposed to, or are at risk of, harassment.

This Satellite Session at Rightscon is fashioned as an intervention into ongoing advocacy, research, and practical support efforts, and seeks to interrogate a wide range of possible framings of (as well as responses to) online harassment.

For more info, click here

For more details visit https://cis-india.org/internet-governance/news/other-than-women-exploring-harassment-and-difference-online

Vinay Rai v. Facebook India and Ors. | Summons Order

pranesh — 2012-03-15T07:53:05Z

This is Judge Sudesh Kumar's summons order (dated December 23, 2011) by which he notes there is enough prima facie evidence to proceed with trial against the intermediaries named and their senior officials. In the order he notes that, "It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network. It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same."

IN THE COURT OF SUDESH KUMAR, METROPOLITAN MAGISTRATE PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No. 136 of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A. First Floor. Pritvi Raj Road
New Delhi

...Complainant

Versus

...Accused

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at: 4th Floor, Building-14. OPUS Towers,
Mindspace. Cyberabad, APIIC SW Unit Layout.
Madhapur. Hyderabad-500081
kirthiga@fb.com 07799021119
Facebook
Through its chairman
Donald Edward Graham —
Facebook Corporate Office
1601 S. California Ave. Palo Alto. CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors. Tower — C, Building No.8,
DLF Cyber City, Gurgaon - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO, Larry Page — CEO
1600, Amphitheatre, Parkway, Mountain View,
CA 94043, USA
Yahoo India (P) Ltd
Shri Arun Tadanki
Building No.8, Tower-C,
DLF Cyber CityPhase-2 Gurgaon-
Yahoo
Through Roy J. Bostock — Chairman
Yahoo! Inc. 701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Sri Bhaskar Pramanik 7th Floor,
Cyber Green Tower-A, DLF Cyber City, Phase-3
Gurgaon – 122002
Microsoft
Through Steve Ballmer — CEO
Microsoft Corporation, One Microsoft Way
Redmond, WA 98052-7329 USA
Zombie Time
DNS Services, 1650-302 Margaret St #332
Jacksonville, FL 32204-3869, US
Exbii
BoardReader.com
700 Tower Drive, Suite 140
Troy, Michigan 48098 US
Through its CEO/CHAIRMAN
IMC India
Through Sh. K.M. Gala-CEO, IMC India (Head Office)
418, Swastik Chambers, Sion Trombay Road
Chembur, Mumbai - 400 071 (Maharashtra)
My Lot
Through its CEO/CHAIRMAN
MyLot LLC, 7415 W 130th St
Suite #100, Overland Park, KS 66213, US
Shyni Blog
Through Sri Rajan Anandan
C/o Google India (P) Ltd
8th and 9th Floors. Tower—C, Building No 8,
DLF Cyber City Gurgaon—122002.
Topix
Through its CEO/CHAIRMAN
TOPIX.COM.P.O. Box 821650
Vancouver, WA 98682, US

IN THE COURT OF SH. SUDESH KUMAR

Ld. METROPOLITAN MAGISTRATE / PATIALA HOUSE COURTS / NEW DELHI

CC No. 136/1
Vinay Rai Vs. Facebook
PS Tughlak Road
23.12.2011

Order on Summoning:

The complainant in the present case is a Senior Journalist and Editor of Urdu Weekly namely Akbari. He has filed the present complaint U/s 200 Cr. PC r/w 156 (3) Cr. PC therein praying that the accused persons be summoned for having committed offences punishable U/ s 153-A, 153-B, 292, 293, 295 (A), 298, 109, 500 and 120-B of IPC. The complainant has submitted that the accused persons are the publishers and service providers of the electronic content in question in the present complaint and also responsible for the management and control of online site and internet content and the accused includes those who used, posted and uploaded the material on the site through the internet. It is alleged by the complainant that the content in question has been hosted on various websites which is per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities: is demeaning, degrading and obscene, and it will corrupt minds and adversely affect religious sentiments. It is further submitted that the complainant had received some information in this regard and while going through the contents in the above said websites realized that the same were unacceptable to the secular fabric provided by the Constitution of India and would be intolerable to any community or religion. It is further alleged that on a bare perusal of the contents it is clear that the same would certainly corrupt young minds below the age of 18 and even elders, it is highly provocative and which may even lead to consequences effecting communal harmony. The complainant has mentioned the names of the websites allegedly hosting the said objectionable content in the memo of parties and provided the alleged objectionable material in a sealed envelope. The complainant has further stated that the Social Networking Websites are meant only for providing content with respect to educational, historical, research material and entertainment work etc. as part of their commercial activities for social purposes. However, the objectionable content available on these social networking websites may lead to communal riots. It is further alleged that Government authorities have turned a blind eye to the same and do not have any established procedure or rules and guidelines to control and regulate the same. It is averred that the Government is least bothered and as usual waiting for some mishappening before taking some appropriate actions. Neither police officials nor the Government have initiated any action to curb or check these activities sou moto and failed to register any case against the above named accused persons under any law to remove such contents from there. The complainant has further alleged that the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zombie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. It is alleged that the accused persons knowingly allowed these contents and materials to be hosted in the websites which is dangerous to communal harmony with common and malfide intentions and have failed to remove the objectionable content for their wrongful gain. The complainant further stated that he has provided the said contents to the Court, in a sealed cover with request for directions not to publicize the offensive and inflammatory material which may lead to communal disharmony under his social responsibility. It is further stated by the complainant that the said contents available and hosted on the these sites are per-se unacceptable and clearly established the offences punishable under various provisions mentioned in the IPC and in case no action is taken against the accused person the same will cause serious prejudice to our society and social values provided and protected under the Constitution of India. It is further submitted that as a member of the community the complainant is not only individually hurt but also believes that it such content is allowed to continue on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. It is alleged that all those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material with malice to defame the country and with intent to spread communal violence to destabilise the country with undisclosed persons and are liable to be prosecuted and punished for offences U/s 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B IPC.

It is further averred that the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony as is quite apparent on a bare look at the material available on these social networking websites. It is further stated that the content which has been shown on these websites amount to imputations, assertions, which are prejudicial to national integration. It is alleged that the contents which are available on these social networking websites are obscene may lead to creation of obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites affecting the minds of children and was harmful for social harmony and may lead to increase in crime against women also.

That the contents which are clearly mentioned and annexed in the sealed cover show the malafide intentions of these social networking websites hosting such content in these websites is an act of malice intended to outrage, religious feelings of classes of citizens by insulting their religion or religious beliefs. It is averred that the cause of action for filing the present complaint has risen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to the knowledge of the complainant while sitting at his above stated residence and still continuing.

The complainant prays that the above said accused persons alongwith undisclosed persons are liable to be prosecuted and punished U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC.

The complainant has thereafter examined four witness in support of his complaint. Complainant Mr. Vinay Rai has examined himself as CW 1 in pre summoning evidence and he deposed on oath that he has gone through the contents which have been posted on various social networking websites as alleged and the documents downloaded from those sites are original as these have been downloaded directly from those websites. He produced Ex. CW 1/A-1 to Ex. CW 1/A-16 which have been downloaded from the website named as www.zombietime.com. He further deposed that Ex. CW 1/A-17 has been downloaded from Orkut which is arrayed as accused no.4 and 10. He also proved on record Ex. CW 1/A-18 downloaded from website mylot.com, which is a pre-se defamatory to all politicians. He further stated that Ex. CW 1/A-19 to Ex. CW 1/A-22 were downloaded from the post of topix.com and the contents are dangerous for our social structure and community. He further deposed that Ex. CW 1/A-23 to Ex. CW 1/A-36 which are posted by the service provider youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. He deposed that Youtube shown as accused no.5 and 8 provided the internet service and allowed to post these defamatory contents on websites and same is available to people below 18 years of age also which was also alarming danger to our society and Country. He deposed that such contents are against the secular fabric of our society, religion and culture. The witness has further stated that Ex. CW 1/A-37 to Ex. CW 1/A-48 are taken from the website facebook.com. He further proved on record Ex. CW 1/A-49 to Ex. CW 1/A-52 as provided by the blogspot.com, which is arrayed as accused at number 6 & 10 in the complaint and these documents are obscene and against the culture of our Country. He further stated that the blogspot is being managed by googleindia and googleinternational who have already been arrayed as accused in his complaint. He further stated that Ex. CW 1/A-53 has been taken from the website exbii.com, which provides services through google.com. The contents of the said exhibit are dangerous to our society and same has also been shown as political conspiracy to destabilize our Country. He further stated that Ex. CW 1/A-54 has been taken from website indymedia.org and same has been shown as a article posted by imcindia.org, which is against the Hinduism and defamatory to our religion. He further stated that the Ex. CW 1/A-55 provided by broadreader.com which is defamatory to Indian politicians and the Ex. CW 1/A-56 and Ex. CW 1/A-57 have been taken from the service provider blogspot.com which has been provided by the websites Further more, the complainant has deposed on the lines of his complaint. It is further prayed by the complainant that said accused persons alongwith certain undisclosed person were liable to be prosecuted U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC. It is further deposed by the complainant that all the contents were clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony.

Complainant thereafter examined Mr. Rohit Mammen Alex as CW 2 in pre summoning evidence, who deposed on oath that he was not only a practicing Orthodox Christian but is an extremely secular person and has seen and found extremely shocking some of the contents on the websites in question. He further stated that the present complaint is filed by the complainant not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever user and post the material on the site through internet. CW 2 further deposed that the contents of the website in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that on bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequences. He deposed that the contents prima facie appear to be dangerous to society and communal harmony. He stated that the exhibited documents clearly show the malafide intentions of the these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused persons and same may be treated as original of their respective documents.

Thereafter Dr. Aziz Ahmad Khan was examined as CW 3, who also deposed on oath that he is a scholar and P.HD. in Urdu but is an extremely secular person and has seen and found extremely shocking some of the contents of the websites in question. He also deposed that the complainant has filed the present complaint not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused person are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He also deposed that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that the on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to dangerous consequences. He submitted that these contents prima facie appear to be dangerous to society and communal harmony. He deposed that if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further deposed that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further deposed that all the documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

Mr. Rahul Agrawal was examined as CW 4 in pre summoning evidence by the complainant, who also deposed on oath that he is a Journalist and running a News Agency and he is a secular person and believe to maintain peace and harmony amongst the society and Country. He stated that he felt offended when he had seen and found extremely shocking some of the contents of the websites in question. He further stated that accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He further stated that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further stated that even on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequence. He further stated that the contents as exhibited prima facie appear to be dangerous to society and communal harmony and if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further stated that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that the contents hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

No other Complainant witness was examined in pre summoning evidence and the pre summoning evidence was closed. As the addresses of most of the respondents are beyond the jurisdiction of this court, an enquiry report U/s 202 Cr. PC was sought from the SHO concerned regarding the authenticity of documents as filed in the court.

SHO PS Tughlak Road has furnished this enquiry report on 17.12.2011. Today, the matter has been fixed for Orders on summoning. The complainant has furnished about 60 internet generated print outs alongwith the complaint in a sealed cover. The sealed cover was opened during pre summoning evidence. I have gone through each and every internet generated print out. Today, complainant has also furnished a CD submitting that the same contained the vulgar and obscene data available on the networks of the proposed accused and print outs of which were placed on record vide Annexure-A.

To my mind the printouts as furnished and exhibited on bare perusal are found to be obscene, lascivious, indecent and shocking. The printouts shown are totally degrading and demeaning. Some of the printouts are showing various religious idols in a very degrading, demeaning and obscene way which are certainly unacceptable to any person professing such religion and also to civilized society as a whole. There are obscene picture and derogatory articles pertaining to Prophet Mohammed, Jesus and various Hindu God and Godesses. There are defamatory and obscene articles pertaining to various Indian political leaders. The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of the religious people whether Hindu, Muslim or Christian. There are certain degrading and obscene photographs of various political leaders belonging to different political parties and the photographs pasted and the language used is also obscene, filthy and degrading.

Prima facie, I am satisfied that the material produced on record will promote enmity between different religious sections and groups and a feeling of hatred and ill-will between them would be promoted if the offensive material was allowed to be publicised as such. The documents are certainly prejudicial to the maintenance of harmony between different religious groups. They tend to promote feeling of insecurity amongst members of some religion. The documents are obscene and could certainly corrupt the minds of the young. Most of the obscene pictures produced on record are tending to hurt the feelings of different religions. In my considered view, the said contents are certainly prejudicial to national harmony and integration. The publication of such offensive and inflammatory material which has tendency to inflame minds cannot be considered to be an expression of freedom of speech by any stretch of imagination in civil society. Having gone through the record, I am satisfied that the said contents produced on record by the complainant and which were available on various websites are not protected by the doctrine of free speech of expression under our Constitution. In fact much content fell foul of Provisions of Article 19 (1) (a) of the Constitution of India.

The Counsel for complainant has further argued vehemently that the offensive material as placed on record was just a part of a very large bunch of such content which was available on these networks. He further argued that it was impossible that availability of such content in such large quantity was publicised without the knowledge and connivance of the accused persons. He further alleged that all the accused persons in connivance with each other and some unknown persons have intentionally and knowingly permitted such content to be publicised just for the sake of commercial gains.

Having gone through the record, I find force in the arguments advanced on behalf of the complainant. All the accused persons are involved in the business of publication and are providing service of the electronic contents to users. They are certainly doing it for commercial gain. The accused persons having full control over the working of their sites it seems have purposely promoted and publicised offensive material for their commercial gains. It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network.

It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same. It is also evident that such contents are continuously openly and freely available to every one who is using the said network irrespective of their age and even the persons under the age of 18 years have full and uncensored access to such obscene contents.

From the above, it is clear that there is prima facie material on record against the accused persons for committing offences U/s 292/293/120 IPC and they are liable to be summoned for facing trial for the same.

However, from the testimony of these witnesses examined on record belonging to three different religions alongwith the material produced on record, it is evident that the same promotes enmity between different groups and religions, which is certainly prejudicial to the maintenance of peace and communal harmony. The accused persons through the publication and promotion of the offensive material as produced on record seem to be promoting disharmony, feeling of enmity, hatred or ill-will between different religions. The act / omission on part of the accused person as alleged certainly tends to prejudice the maintenance of harmony between different groups and religions. The imputations and assertions and publications as produced on record are prejudicial to the national interest.

The contents as produced by the complainant are insulting and outrageous to the religious feelings of various classes of people.

From the above as argued vehemently by the Ld. Counsel for the complainant. I find, prima facie, that the accused persons are liable to be summoned for offences U/s 153-A, 153-B and 295-A IPC. However, owing to the embargo under section 196 Cr. PC which prohibits taking of cognizance under the said Provisions except with the previous sanction of the Central Government or State Government or District Magistrate, the accused persons are not summoned for the said offences. All the accused persons however, be summoned for facing trial U/s 292, 293 and 120-B IPC for 13.01.2012 on filing of PF.

Ld. Counsel for complainant has also vehemently argued that even the Government of India seems to have turned a blind eye to the offensive, degrading and demeaning content on these websites which is outrageous and also against national integration. In the facts and circumstances of the case, taking into consideration the submissions made on behalf of the complainant, let a copy of this Order be also sent to the Government of India through the Secretary (Information and Technology), Secretary (Home) and Secretary (Law) for taking the immediate appropriate steps in this regard and file a report on the next date of hearing i.e. 13.01.2012.

Sudesh Kumar / MM / ND / 23.12.2011.

For more details visit https://cis-india.org/internet-governance/resources/vinay-rai-v-facebook-summons-order-2011-12-23

Kashmir: Telecom firms struggle to block 22 banned social media sites

praskrishna — 2017-05-04T02:29:04Z

A BSNL official says engineers are still working on shutting down the 22 social media sites but so far had been unable to do so without freezing the Internet across Kashmir.

The article by Aijaz Hussain was published in Livemint on May 4, 2017. Pranesh Prakash was quoted.

The government has banned 22 social media sites in an effort to calm tensions in parts of the disputed region of Kashmir, after several viral videos depicting the alleged abuse of Kashmiris by Indian law enforcement fuelled protests. But the sites remained online Thursday morning as the local telecom company struggled to block them.

The government said on Wednesday that the restrictions, to be in effect for one month, were necessary for public safety. “It’s being felt that continued misuse of social networking sites and instant messaging services is likely to be detrimental to the interests of peace and tranquillity in the state,” the public order reads.

Pranesh Prakash, policy director for the Indian advocacy group the Centre for Internet and Society, called the ban a “blow to freedom of speech” and “legally unprecedented in India.”

An official with Kashmir’s state-owned telecom company, Bharat Sanchar Nigam Ltd (BSNL), said engineers were still working on shutting down the 22 sites, including Facebook and Twitter, but so far had been unable to do so without freezing the internet across the Himalayan region. The official spoke on condition of anonymity, because he was not authorized to give technical details of the effort to the media.

Meanwhile, 3G and 4G cellphone service has been suspended for more than a week, but the slower 2G service was still running.

Residents in Srinagar, the region’s main city, were busily downloading documents, software and applications onto their smartphones, which would likely be able to circumvent the social media block once it goes into effect. Many expressed relief to still have internet access Thursday morning.

“It was a welcome surprise,” said Tariq Ahmed, a 24-year-old university student. “It appears they’ve hit a technical glitch to block social media en mass.”

While the government has halted internet service in Kashmir in previous attempts to prevent anti-India demonstrations, this is the first time they have done so in response to the circulation of videos and photos showing alleged military abuse.

Others mocked the government. One Facebook post by Kashmiri writer Arif Ayaz Parrey said that the ban showed “the Indian government has decided to take on the collective subversive wisdom of cyberspace humanity.”

Kashmiris have been uploading videos and photos of alleged abuse for some years, but several recently posted clips, captured in the days surrounding a violence-plagued local election 9 April, have proven to be especially powerful and have helped to intensify anti-India protests.

One video shows a stone-throwing teenage boy being shot by a soldier from a few metres (yards) away. Another shows soldiers making a group of young men, held inside an armoured vehicle, shout profanities against Pakistan while a soldier kicks and slaps them with a stick. The video pans to a young boy’s bleeding face as he cries. Yet another clip shows three soldiers holding a teenage boy down with their boots and beating him on his back.

The video that drew the most outrage was of young shawl weaver Farooq Ahmed Dar tied to the hood of an army jeep as it patrolled villages on voting day. A soldier can be heard saying in Hindi over a loudspeaker, “Stone throwers will meet a similar fate,” as residents look on aghast.

For more details visit https://cis-india.org/internet-governance/news/livemint-may-4-2017-aijaz-hussain-kashmir-telecom-firms-struggle-to-block-22-banned-social-media-sites