Centre for Internet and Society

Internet Analysts Question India’s Efforts to Stem Panic

praskrishna — 2012-09-04T11:46:03Z

The Indian government’s efforts to stem a weeklong panic among some ethnic minorities has again put it at odds with Internet companies like Google, Facebook and Twitter.

This article by Vikas Bajaj was published by New York Times on August 21, 2012. Sunil Abraham is quoted. This was reposted in NDTV on August 22, 2012.

Officials in New Delhi, who have had disagreements with the companies over restrictions on free speech, say the sites are not responding quickly enough to their requests to delete and trace the origins of doctored photos and incendiary posts aimed at people from northeastern India. After receiving threats online and on their phones, tens of thousands of students and migrants from the northeast have left cities like Bangalore, Pune and Chennai in the last week.

The government has blocked 245 Web pages since Friday, but still many sites are said to contain fabricated images of violence against Muslims in the northeast and in neighboring Myanmar meant to incite Muslims in cities like Bangalore and Mumbai to attack people from the northeast. India also restricted cellphone users to five text messages a day each for 15 days in an effort to limit the spread of rumors.

Officials from Google and industry associations said they were cooperating fully with the authorities. Some industry executives and analysts added that some requests had not been heeded because they were overly broad or violated internal policies and the rights of users.

The government, used to exerting significant control over media like newspapers, films and television, has in recent months been frustrated in its effort to extend similar and greater regulations to Web sites, most of which are based in the United States. Late last year, an Indian minister tried to get social media sites to prescreen content created by their users before it was posted. The companies refused and the attempt failed under withering public criticism.

While just 100 million of India’s 1.2 billion people use the Internet regularly, the numbers are growing fast among people younger than 25, who make up about half the country’s population. For instance, there were an estimated 46 million active Indian users on Facebook at the end of 2011, up 132 percent from a year earlier.

Sunil Abraham, an analyst who has closely followed India’s battles with Internet companies, said last week’s effort to tackle hate speech was justified but poorly managed. He said the first directive from the government was impractically broad, asking all Internet “intermediaries” — a category that includes small cybercafes, Internet service providers and companies like Google and Facebook — to disable all content that was “inflammatory, hateful and inciting violence.”

“The Internet intermediaries are responding slowly because now they have to trawl through their networks and identify hate speech,” said Mr. Abraham, executive director of the Center for Internet and Society, a research and advocacy group based in Bangalore. “The government acted appropriately, but without sufficient sophistication.”

In the days since the first advisory went out on Aug. 17, government officials have asked companies to delete dozens of specific Web pages. Most of them have been blocked, but officials have not publicly identified them or specified the sites on which they were hosted. Ministers have blamed groups in Pakistan, a neighbor with which India has tense relations, for creating and uploading many of the hateful pages and doctored images.

A minister in the Indian government, Milind Deora, acknowledged that officials had received assistance from social media sites but said officials were hoping that the companies would move faster.

“There is a sense of importance and urgency, and that’s why the government has taken these out-of-the-way decisions with regards to even curtailing communications,” Mr. Deora, a junior minister of communications and information technology, said in a telephone interview. “And we are hoping for cooperation from the platforms and companies to help us as quickly as possible.”

Indian officials have long been concerned about the power of modern communications to exacerbate strife and tension among the nation’s many ethnic and religious groups. While communal violence has broadly declined in the last decade, in part because of faster economic growth, many grievances simmer under the surface. Most recently, fighting between the Bodo tribe and Muslims in the northeastern state of Assam has displaced about half a million people and, through text messages and online posts, affected thousands more across India.

Officials at social media companies, speaking on the condition of anonymity to avoid offending political leaders, said that they were moving as fast as they could but that policy makers must realize that the company officials have to follow their own internal procedures before deleting content and revealing information like the Internet protocol addresses of users.

“Content intended to incite violence, such as hate speech, is prohibited on Google products where we host content, including YouTube, Google Plus and Blogger,” Google said in a statement. “We act quickly to remove such material flagged by our users. We also comply with valid legal requests from authorities wherever possible.”

Facebook said in a statement that it also restricts hate speech and “direct calls for violence” and added that it was “working through” requests to remove content. Twitter declined to comment on the Indian government’s request.

Telecommunications company executives criticized the government’s response to the crisis as being excessive and clumsy. There was no need to limit text messages to just five a day across the country when problems were concentrated in a handful of big cities, said Rajan Mathews, director general of the Cellular Operators Association of India.

“It could have been handled much more tactically,” he said.

Others said the government could have been more effective had it quickly countered hateful and threatening speech by sending out its own messages, which it was slow to do when migrants from the northeast began leaving Bangalore on Aug. 15.

“It has to also reach out on social networking and Internet platforms and dismantle these rumors,” Mr. Abraham said, “and demonstrate that they are false.”

A version of this article appeared in print on August 22, 2012, on page B4 of the New York edition with the headline: Internet Moves by India to Stem Rumors and Panic Raise Questions.

For more details visit https://cis-india.org/news/www-nytimes-vikas-bajaj-aug-21-2012-internet-analysts-question-indias-efforts-to-stem-panic

India limits social media after civil unrest

praskrishna — 2012-09-04T11:59:01Z

Indian officials have gone too far in limiting text messages and pressuring local Internet firms as well as Twitter and others to block accounts, critics say.

This article by Mark Magnier was published in Los Angeles Times on August 23, 2012 and re-posted in Channel 6 News on August 24, 2012. Sunil Abraham is quoted.

Has the Indian government lost its sense of humor?

That's what some in India were asking as word spread that authorities had pressured Twitter into blocking several accounts parodying the prime minister after civil unrest that saw dozens of people from northeastern India killed and thousands flee in panic.

This week, the government also imposed a two-week limit of five text messages a day — raised Thursday to 20 — potentially affecting hundreds of millions of people, and pressured local Internet companies as well as Facebook, Twitter and Google to block hundreds of websites and user accounts.

Although journalists, free speech advocates and bloggers said the effort to squelch rumors may be justified, several criticized the actions as excessive.

"You cannot burn the entire house to kill one mischievous mouse," said Gyana Ranjan Swain, a senior editor at Voice & Data, a networking trade magazine. "You're in the 21st century. Their thinking is still 50 years old. It's just 'kill the messenger.'"

Comedians said Indian political humor is evolving and there's more leeway to make fun of politicians than a decade ago, but the nation's mores still call for greater respect than in the West.

"If I tried something like South Park, I'd be put behind bars tomorrow," said Rahul Roushan, founder of Faking News website, which satirizes Indian current events.

Faking News has lampooned the recent corruption scandals, including specious stories about theme restaurants (where customers must bribe waiters or go hungry); and a tongue-in-cheek report that India has banned the zero because too many of them appear nowadays in auditors' reports, after recent coal and telecommunications scandals each allegedly involving more than $30 billion.

Roushan, whose site isn't blocked, said he hopes low-level officials misinterpreted government directives.

"I'm still in a state of disbelief," he said. "I don't think the government is so stupid that it can ask that parody accounts get taken down. If they did, God help this country."

A spokesman for the prime minister's office said the blocking of six fake Twitter accounts attributed to the prime minister has been in the works for months and wasn't related to the recent crisis. He said the move was in response to tweets containing hate language and caste insults that readers could easily mistake as the Indian leader's. A dozen Twitter accounts and about 300 websites were blocked, according to news reports.

"We have not lost our sense of humor," said Pankaj Pachauri, the prime minister's spokesman. "We started a procedure to take action against people misrepresenting themselves."

But some Twitter users whose accounts are frozen, including media consultant Kanchan Gupta, counter that the government may be using the crisis to muzzle critics.

"I'm very clear in my mind this is a political decision," said Gupta, who has been critical of corruption and the government's policy drift. "If they were openly confrontational of me, they'd go nowhere, so they're trying this."

Attempts to access his Twitter page Thursday were met with the message: "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications."

Even Britain's Queen Elizabeth II has numerous parody accounts so India needs to lighten up, consultant Gupta said.

He's received several messages from worried Pakistani friends since the news broke. "They ask if I'm all right, say they hope they haven't frog-marched you to jail," he said. "What irony."

The restrictions are the latest chapter of a crisis that started in July when Muslims and members of the Bodo tribal community in northeastern India clashed over land, jobs and politics. The result: 75 people killed and 300,000 displaced.

Muslims in Mumbai, formerly Bombay, staged a sympathy demonstration last week; two more people were killed and dozens injured.

Rumors, hate messages and altered photos of supposed atrocities against Muslims soon spread on social media sites, and several people from northeastern India were beaten in Bangalore and other cities, prompting the crackdown.

New Delhi has accused Pakistani websites of fanning the online rumors. (Islamabad said it would investigate if there's any proof.) But Indian news media also reported that 20% of the websites blocked contained inflammatory material uploaded by Hindu nationalist groups in India that were apparently trying to stir up sectarian trouble.

The Twitter community has responded with derision and humor to limits on text messages on prepaid cellphones.

"Feeling deeply insulted that I still have not been blocked," tweeted user @abhijitmajumder. "Victim of govt apathy."

Sunil Abraham, head of the Bangalore civic group Center for Internet and Society, said this week's restrictions are the latest in a series of regulations and recommendations aimed at tightening Internet control.

For more details visit https://cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest

Counter-proposal by the Centre for Internet and Society: Draft Information Technology (Intermediary Due Diligence and Information Removal) Rules, 2012

pranesh — 2016-04-24T11:48:49Z

Any restriction on freedom of speech should embody and be guided by the following principles, as identified by the UN Special Rapporteur on Freedom of Opinion and Expression

For more details visit https://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf

Rebuttal of DIT's Misleading Statements on New Internet Rules

pranesh — 2012-07-11T13:18:04Z

The press statement issued on May 11 by the Department of Information Technology (DIT) on the furore over the newly-issued rules on 'intermediary due diligence' is misleading and is, in places, plainly false. We are presenting a point-by-point rebuttal of the DIT's claims.

In its press release on Wednesday, May 11, 2011, the DIT stated:

The attention of Government has been drawn to news items in a section of media on certain aspects of the Rules notified under Section 79 pertaining to liability of intermediaries under the Information Technology Act, 2000. These items have raised two broad issues. One is that words used in Rules for objectionable content are broad and could be interpreted subjectively. Secondly, there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner.

There are actually more issues than merely "subjective interpretation" and "arbitrary governmental regulation".

The Indian Constitution limits how much the government can regulate citizens’ fundamental right to freedom of speech and expression. Any measure afoul of the constitution is invalid.
Several portions of the rules are beyond the limited powers that Parliament had granted the Department of IT to create interpretive rules under the Information Technology Act. Parliament directed the Government to merely define what “due diligence” requirements an intermediary would have to follow in order to claim the qualified protection against liability that Section 79 of the Information Technology Act provides; these current rules have gone dangerously far beyond that, by framing rules that insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a complaint, keep records of a users' details and provide them to law enforcement officials.

The Department of Information Technology (DIT), Ministry of Communications & IT has clarified that the Intermediaries Guidelines Rules, 2011 prescribe that due diligence need to be observed by the Intermediaries to enjoy exemption from liability for hosting any third party information under Section 79 of the Information Technology Act, 2000. These due diligence practices are the best practices followed internationally by well-known mega corporations operating on the Internet. The terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website.

We are not aware of any country that actually goes to the extent of deciding what Internet-wide ‘best practices’ are and actually converting those ‘best practices’ into law by prescribing a universal terms of service that all Internet services, websites, and products should enforce.
The Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service. As long as the terms of service of an intermediary are not unlawful or bring up issues of users’ rights (such as the right to privacy), there is no reason for the government to jump in and dictate what the terms of service should or should not be.
The DIT has not offered any proof to back up its assertion that 'most' intermediaries already have such terms. Google, a ‘mega corporation’ which is an intermediary, does not have such an overarching policy. Indiatimes, another ‘mega corporation’ intermediary, does not either. Just because a company like Rediff and Blizzard's World of Warcraft have some of those terms does not mean a) that they should have all of those terms, nor that b) everyone else should as well.

In attempting to take different terms of service from different Internet services and products—the very fact of which indicate the differing needs felt across varying online communities—the Department has put in place a one-size-fits-all approach. How can this be possible on the Internet, when we wouldn't regulate the post-office and a book publisher under the same rules of liability for, say, defamatory speech.
There is also a significant difference between the effect of those terms of service and that of these Rules. An intermediary-framed terms of service suggest that the intermediary may investigate and boot someone off a service for violation, while the Rules insist that the intermediary simply has to mandatorily remove content, keep records of users' details and provide them to law enforcement officials, else be subject to crippling legal liability.

So to equate the effect of these Rules to merely following ‘existing practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service agreements. We now don’t.“In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a Court of Law. The Government or any of its agencies have no power to intervene or even interpret. DIT has reiterated that there is no intention of the Government to acquire regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.”

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court. Why not just invert that, and presume that all complaints need to be proven first, and the correctness of the complaints (instead of the take-downs) be disputed in court?

Indeed, the courts have insisted that presumption of validity is the only constitutional way of dealing with speech. (See, for instance, Karthikeyan R. v. Union of India, a 2010 Madras High Court judgment.)

Further, only constitutional courts (namely High Courts and the Supreme Court) can go into the question of the validity of a law. Other courts have to apply the law, even if it the judge believes it is constitutionally invalid. So, most courts will be forced to apply this law of highly questionable constitutionality until a High Court or the Supreme Court strikes it down.

What the Department has in fact done is to explicitly open up the floodgates for increased liability claims and litigation - which runs exactly counter to the purpose behind the amendment of Section 79 by Parliament in 2008.

“The Government adopted a very transparent process for formulation of the Rules under the Information Technology Act. The draft Rules were published on the Department of Information Technology website for comments and were widely covered by the media. None of the Industry Associations and other stakeholders objected to the formulation which is now being cited in some section of media.”

This is a blatant lie.

Civil society voices, including CIS, Software Freedom Law Centre, and individual experts (such as the lawyer and published author Apar Gupta) sent in comments. Companies such as Google, E2E Networks, and others had apparently raised concerns as well. The press has published many a cautionary note, including editorials, op-ed and articles in the Hindu, the Hoot, Medianama.com, and Kafila.com, well before the new rules were notified. We at CIS even received a 'read notification' from the email account of the Group Coordinator of the DIT’s Cyber Laws Division—Dr. Gulshan Rai—on Thursday, March 3, 2011 at 12:04 PM (we had sent the mail to Dr. Rai on Monday, February 28, 2011). We never received any acknowledgement, though, not even after we made an express request for acknowledgement (and an offer to meet them in person to explain our concerns) on Tuesday, April 5, 2011 in an e-mail sent to Mr. Prafulla Kumar and Dr. Gulshan Rai of DIT.

The process can hardly be called 'transparent' when the replies received from 'industry associations and other stakeholders' have not been made public by the DIT. Those comments which are public all indicate that serious concerns were raised as to the constitutionality of the Rules.

The Government has been forward looking to create a conducive environment for the Internet medium to catapult itself onto a different plane with the evolution of the Internet. The Government remains fully committed to freedom of speech and expression and the citizen’s rights in this regard.

The DIT has limited this statement to the rules on intermediary due diligence, and has not spoken about the controversial new rules that stifle cybercafes, and restrict users' privacy and freedom to receive information.

If the government is serious about creating a conducive environment for innovation, privacy and free expression on the Internet, then it wouldn’t be passing Rules that curb down on them, and it definitely will not be doing so in such a non-transparent fashion.

For more details visit https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries

The Present — and Future — Dangers of India's Draconian New Internet Regulations

anja — 2011-08-02T07:22:24Z

The uproar surrounding India's Internet Control Rules makes clear that in the Internet age, as before, the active chilling of freedom of expression by the state is unacceptable in a democracy. Yet if India's old censorship regimes are to be maintained in this new context, the state will have little choice but to do just that. Are we ready to rethink the ways in which we deal with free speech and censorship as a society? Asks Anja Kovacs in this article, published in Caravan, 1 June 2011.

WHAT ACTUALLY DEFINES A DEMOCRACY? It is a trickier question than it first seems, and yet it is worthwhile, at least every now and then, to remind ourselves of what constitutes the political system we hold so dear. Free and fair elections; an independent legislative, executive and judiciary; and freedom of the press—these are all vital ingredients. But what may be democracy’s defining element, or at least its sine qua non, is the right to freedom of opinion and expression: without this equal right to “seek, receive and impart information”, as the universal declaration of Human Rights frames it, a system of governance of the people, for the people and by the people simply remains meaningless. Without a free flow of information, democracy does not exist.

It is with good reason, then, that bloggers, tech enthusiasts and watchdogs from civil society have been up in arms over two new sets of rules, notified in April 2011, that will impact every Indian’s Internet use. Formulated by the Central Government under powers conferred to it by the IT (Amendment) Act 2008, one set governs what is known as the liability of intermediaries. This determines in which cases, and to what extent, companies ranging from Google and Facebook to local Internet service providers (ISPs) are legally responsible for the content that you upload.

The second set of rules pertains to cybercafes. In a manner reminiscent of the licence Raj, there are new registration standards for these establishments, which go beyond the usual requirements for commercial enterprises and include detailed procedures to identify all users. Cybercafes will be required to maintain and submit, on a monthly basis, logs that detail the use of all computers in the cafe and to keep backups of all users’ browser histories, to be maintained for at least one year.

There is much that is wrong with these rules, but what makes them such a particular threat to freedom of expression? Some effects are likely to be indirect: for example, the Internet has the potential to emerge as an important avenue for young people from disadvantaged backgrounds to express and discuss concerns so rarely taken into account by the mainstream media. But by putting into place stringent identification requirements for cybercafe users, who are likely to be less well-off, the access of underprivileged users in particular will be further constrained. Moreover, the combination of the need for identification with the requirement for cybercafes to keep a log of every user’s browser history means that anonymity online is now effectively made impossible in India. For whistleblowers, artists, writers or anyone desiring anonymity, there is no longer a place in Indian cyberspace.

But the most troubling impact on freedom of expression of the new mandates remains direct: in their attempt to delineate the liability of Internet providers and websites, the new rules for “intermediary due diligence” actually add important new curbs on freedom of expression to Indian law. India’s Constitution recognises a fairly extensive list of so-called “reasonable restrictions” and these are more or less replicated in the Rules: “the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. But the Rules, which were never vetted by Parliament, do not limit themselves to these Constitutional provisions. Rather surprisingly, they add a whole new slew of qualifications, many of which are so vague, moreover, that they leave the door wide open to abuse. Thus, for example, the Rules impose a blanket ban on impersonation and make it illegal to share any information that is “grossly harmful”, “harassing”, “blasphemous”, “disparaging” or “insulting any other nation”. None of these terms have been explained or defined.

Lacking the precision that would allow citizens to precisely regulate their behaviour in line with the law, overly broad regulations such as these are widely believed to have a chilling effect: in order not to violate the law, people begin to censor themselves—to keep quiet rather than protesting or engaging. But in this particular case, the effects are likely to be particularly pernicious because of a second provision made by the Rules: wherever an intermediary receives a complaint claiming that any information they store, host or publish contravenes the provisions of the Rules, the intermediary is required to take down this information within 36 hours. Censorship, in other words, will effectively be privatised.

The prospect is all the more depressing because the intermediaries have little incentive to resist participating in such censorship. Given the restrictions on free speech that are effectively enforced within Indian society by vigilante groups, especially in the last two decades, the possible impact of these rules is even more frightening. If Facebook has little reason to uphold your right to maintain a page that is critical of say, Gandhiji, what prevents vigilante groups from policing our lives online even more than they do offline? The only recourse available to the owner of the confiscated information will be going to court—meaning that defending one’s own freedom of speech online will require endless litigation.

These are worrying omens, in other words, for those who believe that freedom of expression is the cornerstone of democracy. But to what extent do these new provisions represent a radical break with India’s existing restrictions on free speech? Since its founding, the independent Indian nation-state has wielded censorship as a tool to both contain the conflicts that emanate from India’s tremendous diversity and to ensure its homogeneous social, moral and political development. If the list of reasonable restrictions in the Constitution is fairly long, this is because the country’s lawmakers were clear at the time of Independence that freedom of expression would need to be subordinated to the social reforms necessary to put the country on Nehru’s path to development. India’s far-reaching anti-hate speech laws, too, derive from the desire to combat ill will and disharmony. Since the Internet now makes it so much easier to publish opinions that are hurtful, or indeed “grossly harmful” or “disparaging”, the new Rules can in many ways be seen as an attempt to continue this strategy in the Internet age.

The problem, however, is that irrespective of the merits of such a strategy in the past, within the radically altered communicative context of the Internet, it is simply no longer feasible. As the Internet guru Clay Shirky has argued, earlier systems of media and communication worked on a “filter, then publish” principle. Because publishing a newspaper, for example, is expensive, editors and journalists take upon themselves the role of filtering out the “worthwhile” from the “not-so-worthwhile”. Without them making that vital differentiation between “news” and “information” on the one hand and “drivel” on the other, newspapers would simply not be viable. In the Internet age, however, this principle has been reversed. The arrival of social media especially has made it so easy and cheap for anyone to share their opinions that the mantra now is: first publish, then filter. The gatekeeper role of the traditional media stands much reduced.

For the Indian government’s strategy of using censorship as a tool to mitigate social conflict, this shift has two important consequences. The first one is quantitative: it means that there are now far more speech acts to police. That undoubtedly has made the state’s task much more difficult. But there is also a second, qualitative difference: it also means that whether the government approves of this or not, there will now be a far wider range of people who will make their voices heard, and thus, a far wider range of opinions that will be expressed in the public sphere. And it is precisely to stop such a diversity from emerging that much censorship in India has been justified over the years. As a 1980 report of the Working Group on National Film Policy argued: “if the overall objective of censorship is to safeguard generally accepted standards of morality and decency, in addition to the well recognised interests of the State, the standards of censorship applicable to freedom of expression cannot be very much ahead of the standards of behaviour commonly accepted in society. Censorship can become liberal only to the extent society itself becomes genuinely liberal”.

What such statements conveniently elide, of course, is the enormous diversity within Indian society itself. Whose standards of behaviour are they thinking of? Kashmiri, Manipuri, Chhattisgarhi? Gandhian, feminist, communist? Adivasi, Muslim, Dalit? Who represents this community of the nation? Censorship always benefits the status quo, and the Indian case has been no different. The rise of the Internet has merely revealed, with increasing frequency, cracks in the supposedly uniform moral, social and political development of India that the government envisioned. If the old censorship regime is to nevertheless be maintained in this new context, it will therefore increasingly require the active chilling of freedom of expression on the part of the state. What the uproar surrounding the Internet Control Rules makes clear is that in the Internet age, as before, this is an unacceptable route for a modern democracy. A new model to deal with diversity and dissent is urgently required.

What makes our democracy? With the undeniable challenges that the Internet throws to our established ways of operating, it is time to reopen this debate as a society, rather than leaving it to politicians and bureaucrats. The open forum of the Internet may often offend, or rattle our sensibilities and beliefs, but it also presents new possibilities for engagement and debate. Will we take this opportunity?

Read the original here

For more details visit https://cis-india.org/internet-governance/blog/the-present-and-future-dangers-of-indias-draconian-new-internet-regulations

CIS Para-wise Comments on Intermediary Due Diligence Rules, 2011

pranesh — 2012-07-11T10:27:26Z

On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website (The Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011) in exercise of the powers conferred by Section 87(2)(zg), read with Section 79(2) of the Information Technology Act, 2000. Comments were invited from the public before February 25th 2011. Accordingly, Privacy India and Centre for Internet and Society, Bangalore have prepared the following para-wise comments for the Ministry’s consideration.

A. General Objections

A number of the provisions under these Rules have no nexus with their parent provision, namely s.79(2). Section 79(1) provides for exemption from liability for intermediaries. Section 79(2) thereupon states:

79. Intermediaries not to be liable in certain cases—

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

Therefore, by not observing any of the provisions of the Rules, the intermediary opens itself up for liability for actions of its users. However, many of the provisions of the Rules have no rational nexus with due diligence to be observed by the intermediary to absolve itself from liability.

B. Specific Objections

Rule 2(b), (c), and (k)

(b) “Blog” means a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Usually blog is a shared on-line journal where users can post diary entries about their personal experiences and hobbies;

(c) “Blogger” means a person who keeps and updates a blog;

(k) “User” means any person including blogger who uses any computer resource for the purpose of sharing information, views or otherwise and includes other persons jointly participating in using the computer resource of intermediary

Comments

It is unclear why it is necessary to specifically target bloggers as users, leaving out other users such as blog commenters, social network users, microbloggers, podcasters, etc. It makes the rules technologically non-neutral.

Recommendation

We recommend that these 3 sub-rules be deleted.

Rule 3(2)

3. Due Diligence observed by intermediary.— The intermediary shall observe following due diligence while discharging its duties.

(2) The intermediary shall notify users of computer resource not to use, display, upload, modify, publish, transmit, update, share or store any information that : —

(a) belongs to another person;

(b) is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) discloses sensitive personal information of other person or to which the user does not have any right to;

(g) causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(h) impersonate another person;

(i) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

Comments

Firstly, such ‘standard’ terms of use [1] might make sense for one intermediary, but not for all. For instance, an intermediary such as site with user-generated content (e.g., Wikipedia) would need different terms of use from an intermediary such as an e-mail provider (e.g., Hotmail), because the kind of liability they accrue are different. This is similar to how the liability that a newspaper publisher accrues is different from that accrued by the post office. However, forcing standard terms of use negates this difference. Thus, these are impractical.

Secondly, read with the legal obligation of the intermediary to remove such information (contained in rule 3(3)), they vest an extraordinary power of censorship in the hands of the intermediary, which could easily lead to the stifling of the constitutionally guaranteed freedom of speech online. Analogous restrictions do not exist in other fields, e.g., against the press in India or against courier companies, and there is no justification to impose them on content posted online. Taken together, these provisions make it impossible to publish critical views about anything without the risk of being summarily censored.

Thirdly, while it is possible to apply Indian law to intermediaries, it is impracticable to require all intermediaries (whether in India or not) to have in their terms of use India-specific clauses such as rule 3(2)(j). Instead, it is better to merely require them to ask their users to follow all relevant laws.

Individual instances of how these rules are overly broad are contained in an appendix to this submission.

Recommendation

We strongly recommend the deletion of this sub-rule, except clause (e).

Rule 3(3)

(3) The intermediary shall not itself host or publish or edit or store any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2).

Comments

This sub-rule is ultra vires s.79 of the IT Act, which does not require intermediaries not to “host or publish or edit or store any information”. If fact, s.79(2) merely states that by violating the provisions of s.79(2), the intermediary loses the protection of s.79(1). It does not however make it unlawful to violate s.79(2), as rule 3(3) does. This makes rule 3(3) ultra vires the Act.

Recommendation

This sub-rule should be deleted.

Rule 3(4)

(4) The intermediary upon obtaining actual knowledge by itself or been brought to actual knowledge by an authority mandated under the law for the time being in force in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act expeditiously to work with user or owner of such information to remove access to such information that is claimed to be infringing or to be the subject of infringing activity. Further the intermediary shall inform the police about such information and preserve the records for 90 days

Comments

This rule is also ultra vires s.69A of the IT Act as well as the Constitution of India. Section 69A states all the grounds on which an intermediary may be required to restrict access to information [2]. It does not allow for expansion of those grounds, because it has been carefully worded to maintains its constitutional validity vis-a-vis Articles 19(1)(a) and 19(2) of the Constitution of India. The rules framed under s.69A prescribe an elaborate procedure before such censorship may be ordered. The rules under s.69A will be rendered nugatory if any person could get content removed or blocked under s.79(2).

This rule requires an intermediary to immediately take steps to remove access to information merely upon receiving a written request from “any authority mandated under the law”. Thus, for example, any authority can easily immunize itself from criticism on the internet by simply sending a written notice to the intermediary concerned. This is directly contrary to, and completely subverts the legislative intent expressed in Section 69B which lays down an elaborate procedure to be followed before any information can be lawfully blocked.

If any person is aggrieved by information posted online, they may seek their remedies—including the relief of injunction—from courts of law, under generally applicable civil and criminal law. Inserting a rule such as this one would take away the powers of the judiciary in India to define the line dividing permissible and impermissible speech, and vest it instead in the whims of each intermediary. This can only have a chilling effect on debates in the public domain (of which the Internet is a part) which is the foundation of any democracy.

Recommendation

This rule should modified so that an intermediary is obliged to take steps towards removal of content only when (a) backed by an order from a court or (b) a direction issued following the procedure prescribed by the rules framed under Section 69A.

Rule 3(5) & (7) & (8) & (10)

(5) The Intermediary shall inform its users that in case of non-compliance with terms of use of the services and privacy policy provided by the Intermediary, the Intermediary has the right to immediately terminate the access rights of the users to the site of Intermediary;

(7) The intermediary shall not disclose sensitive personal information;

(8) Disclosure of information by intermediary to any third party shall require prior permission or consent from the provider of such information, who has provided such information under lawful contract or otherwise;

(10) The information collected by the intermediary shall be used for the purpose for which it has been collected.

Comments

These sub-rules have no nexus with intermediary liability or non-liability under s.79(2). For instance, it is unreasonable to say that an intermediary may be held liable for the actions of its users if it does not inform its users about its right to terminate access by the user to its services. Furthermore, not all intermediaries need be websites, as sub-rule 5 assumes. An intermediary can even be an “internet service provider” or a “cyber cafe” or a “telecom service provider”, as per rule 2(j) read with s.2(1)(w) of the IT Act.

The requirements under sub-rules (7), (8), and (10) are rightfully the domain of s.43A and the rules made thereunder, and not s.79(2) nor these rules.

Recommendation

These sub-rules should be deleted, and sub-rules (7), (8), and (10) may placed instead in the rules made under s.43A.

Rule 3(9)

(9) Intermediary shall provide information to government agencies who are lawfully authorised for investigative, protective, cyber security or intelligence activity. The information shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a written request stating clearly the purpose of seeking such information.

Comments

This provision is ultra vires ss.69 and 69B. Rules have already been issued under ss.69 and 69B which stipulate the mechanism and procedure to be followed by the government for interception, monitoring or decrypting information in the hands of intermediaries. Thus under the Interception Rules 2009 framed under Section 69, permission must first be obtained from a “competent authority” before an intermediary can be directed to provide access to its records and facilities. The current rule completely removes the safeguards contained in s.69 and its rules, and would make intermediaries answerable to virtually any request from any government agency. This is contrary to the legislative intent expressed in Section 69.

Recommendation

We recommend this sub-rule be deleted.

Rule 3(12)

(12) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

Comments

The rules relating to how and when the Indian Computer Emergency Response Team may request for information from intermediaries is rightfully the subject matter of s.70B(5) [3] and the rules made thereunder by virtue of the rule making power granted by s.87(2)(yd). The subject matter of rule 3(12) is not liability of intermediaries for third-party actions, hence there is no nexus between the rule-making power, and the rule.

Recommendations

We recommend that this sub-rule be deleted.

Rule 3(14)

(14) The intermediary shall publish on its website the designated agent to receive notification of claimed infringements.

Comments

It is unclear what “infringements” are being referred to in this sub-rule. Neither s.79 nor these rules provide for “infringements”. The same reasoning applied for rule 3(4) would also apply here. It would be better to require the intermediary to publish on its website a method of providing judicial notice.

Recommendations

Delete, and replace with a requirement for the intermediary to publish on its website a method of providing judicial notice.

Footnotes

For instance, the Section B(1) of the World of Warcraft Code of Conduct “When engaging in Chat, you may not: (i) Transmit or post any content or language which, in the sole and absolute discretion of Blizzard, is deemed to be offensive, including without limitation content or language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable.
It is only “in the interest of sovereignty and integrity of India. defence 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” that intermediaries may be issued directions to block access to information.
70B(5) sates that the The manner of performing functions and duties of the agency referred to in sub-section (1) shall be such as may be prescribed.

For more details visit https://cis-india.org/internet-governance/blog/intermediary-due-diligence

RTI Applications on Blocking of Websites

pranesh — 2012-12-21T06:34:27Z

In recent weeks, an increasing number of incidents have come to light on government-ordered blocking of websites. In one case involving Zone-H.org, it is clear who has ordered the block (a Delhi district court judge, as an interim order), even though the block itself is open to constitutional challenge. In all others cases, including the TypePad case, it is unclear who has ordered the block and why. We at CIS have sent in two right to information requests to find out.

While under the law (i.e., s.69A of the Information Technology Act), the Department of Information Technology (DIT) has the power to order blocks (via the 'Designated Officer'), in some cases it has been noted that the ISPs have noted that the order to block access to the websites have come from the Department of Telecom (DoT). Due to this, we have sent in RTI applications to both the DIT and the DoT.

RTI Application to Department of Information Technology

Shri B.B.Bahl,
Joint Director and PIO (RTI)
Office of PIO (RTI)
Room No 1016, Electronics Niketan
Department of Information Technology (DIT)
Ministry of Communications and Information Technology
6, CGO Complex, New Delhi

Dear Sir,

Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant:
Pranesh Prakash

2. Address of the Applicant:
E-mail Address:
pranesh[at]cis-india.org

Mailing Address:
Centre for Internet and Society
194, 2-C Cross,
Domlur Stage II,
Bangalore – 560071

3. Details of the information required:

It has come to our attention that Airtel Broadband Services (“Airtel”) has recently blocked access to a blog host called TypePad (http://www.typepad.com) (“TypePad”) for all its users across the country. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Did the Department order Airtel to block TypePad under s.69A of the Information Technology Act (“IT Act”), 2000 read with the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 (“Rules”) or any other law for the time being in force? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites in contravention of s.69A of the IT Act?
Has the Department ever ordered a block under s.69A of the IT Act? If so, what was the information that was ordered to be blocked?
How many requests for blocking of information has the Designated Officer received, and how many of those requests have been accepted and how many rejected? How many of those requests were for emergency blocking under Rule 9 of the Rules?
Please provide use the present composition of the Committee for Examination of Requests constituted under Rule 7 of the Rules.
Please provide us the dates and copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules, and copies of their recommendations.
Please provide us the present composition of the Review Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules, and copies of all orders issued by the Review Committee.

4. Years to which the above requests pertain:
2008-2011

5. Designation and Address of the PIO from whom the information is required:

To the best of my belief, the details sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act (“RTI Act”), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

To the best of my knowledge the information sought does not fall within the restrictions contained in section 8 and 9 of the RTI Act, and any provision protecting such information in any other law for the time being in force is inapplicable due to section 22 of the RTI Act.

Please provide me this information in electronic form, via the e-mail address provided above.

This to certify that I, Pranesh Prakash, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Pay and Accounts Officer, Department of Information Technology” payable at New Delhi.

Date: Monday, February 28, 2011
Place: Bengaluru, Karnataka

(Pranesh Prakash)

RTI Application to Department of Telecom

Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II)
Room No 1006, Sanchar Bhawan
Department of Telecommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Dear Sir,

Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant:
Pranesh Prakash

2. Address of the Applicant:
E-mail Address:
pranesh[at]cis-india.org

Mailing Address:
Centre for Internet and Society
194, 2-C Cross,
Domlur Stage II,
Bangalore – 560071

3. Details of the information required:

It has come to our attention that Airtel Broadband Services (“Airtel”) has recently blocked access to a blog host called TypePad (http://www.typepad.com) (“TypePad”) for all its users across the country. Airtel subscribers trying to access this website receive a message noting “This site has been blocked as per request by Department of Telecom”. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department have powers to require an Internet Service Provider to block a website? If so, please provide a citation of the statute under which power is granted to the Department, as well as the the safeguards prescribed to be in accordance with Article 19(1)(a) of the Constitution of India.
Did the Department order Airtel to block TypePad or any blog hosted by TypePad? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites?
Has the Department ever ordered the blocking of any website? If so, please provide a list of addresses of all the websites that have been ordered to be blocked.
Please provide use the present composition of the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951, and copies of all their recommendations.

4. Years to which the above requests pertain:
2005-2011

5. Designation and Address of the PIO from whom the information is required:
Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II)
Room No 1006, Sanchar Bhawan
Department of Telecommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Please provide me this information in electronic form, via the e-mail address provided above.

This to certify that I, Pranesh Prakash, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Pay and Accounts Officer (HQ), Department of Telecom” payable at New Delhi.

Date: Monday, February 28, 2011
Place: Bengaluru, Karnataka

(Pranesh Prakash)

For more details visit https://cis-india.org/internet-governance/blog/rtis-on-website-blocking

You Have the Right to Remain Silent

anja — 2011-08-02T07:55:22Z

India has a long history of censorship that it justifies in the name of national security. But new laws governing the Internet are unreasonable and — given the multitude of online voices — poorly thought out, argues Anja Kovacs in this article published in the Sunday Guardian on 17 April 2011.

In March 2011, Indian media - both social and traditional - was ablaze with fears that a new set of rules, proposed to complement the IT (Amendment) Act 2008, would thwart the freedom of expression of India's bloggers: contrary to standard international practice, the Intermediary Due Dilligence Rules seemed intent on making bloggers responsible for comments made by readers on their site. Only a few weeks earlier, the threat of online censorship had manifested itself in a different form: although the block was implemented unevenly, mobile applications market space Mobango, bulk SMS provider Clickatell, hacking-related portal Zone-H.com and blogs hosted on Typepad were suddenly no longer accessible for most Indian netizens, without warning or explanation.

Censorship in India is nothing new. At the time of Independence, there was widespread fear among its lawmakers that unrestricted freedom of expression could become a barrier to the social reforms necessary to put the country on Nehru's path to development – particularly as the memory of Partition continued to be vivid. Although freedom of expression is guaranteed by the Constitution, it is therefore subject to a fairly extensive list of so-called "reasonable" restrictions: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. But while this long list might have made sense at the time of Partition, in the mature democracy that India has now become, its existence, and the numerous opportunities for censorship and surveillance that it has enabled or justified, seems out of place. Indeed, though all these restrictions in themselves are considered acceptable internationally, there are few other democratic states that include all of them in the basic laws of their land.

An appetite for censorship does not only exist among India's legislature and judiciary, however. Especially since the early nineties, instances of vigilante groups destroying art, preventing film screenings, or even attacking offending artists, writers and editors have become noteworthy for their regularity. But it is worth noting that even more progressive sections of society have not been averse to censorship: for example, section of the Indian feminist movement have voiced strong support for the Indecent Representation of Women Act that seeks to censor images of women which are derogatory, denigrating or likely to corrupt public morality.

What connects all these efforts? A belief that suppressing speech and opinions makes it possible to contain the conflicts that emanate from India's tremendous diversity, while simultaneously ensuring its homogenous moral as much as political development. But if the advent of satellite television already revealed the vulnerabilities of this strategy, the Internet has made clear that in the long term, it is simply untenable. It is not just that the authors of a speech act may not be residents of India; it is that everybody can now become an author, infinitely multiplying the number of expressions that are produced each year and that thus could come within the Law's ambit. In this context, even if it may still have a role, suppression clearly can no longer be the preferred or even dominant technology of choice to manage disagreements. What is urgently needed is the building of a much stronger culture of respectful disagreement and debate within and across the country's many social groups. If more and more people are now getting an opportunity to speak, what we need to make sure is that they end up having a conversation.

Yet the government of India so far has mostly continued on the beaten track, putting into place a range of legislations and policies to meticulously monitor and police the freedom of expression of netizens within its borders. Thus, for example, section 66F(1)(B) of the IT (Amendment) Act 2008 defines "cyberterrorism" so broadly as to include the unauthorised access to information on a computer with a belief that that information may be used to cause injury to...decency or morality. The suggested sentence may extend to imprisonment for life. The proposed Intermediary Due Dilligence Rules 2011 privatise the responsibility for censorship by making intermediaries responsible for all content that they host or store, putting unprecedented power over our acts of speech into the hands of private bodies. The proposed Cyber Cafe Rules 2011 order that children who do not possess a photo identity card need to be accompanied by an adult who does, constraining the Internet access of crores of young people among the less advantaged sections of society in particular. And while the US and other Western countries continue to debate the desireability of an Internet Kill Switch, the Indian government obtained this prerogative through section 69A of the IT (Amendment Act) 2008 years ago.

Such measures are given extra teeth by being paired with unprecedented systems of surveillance. For example, there are proposals on the table that make it obligatory for telecommunication carriers and manufacturers of telecommunications equipment to ensure their equipment and services have built-in surveillance capabilities. While at present, records are only kept if there is a specific requirement by intelligence or security agencies, the Intelligence Bureau has proposed that ISPs keep a record of all online activities of all customers for at least six months. The IB has also suggested putting into place a unique identification system for all Internet users, whereby they would be required to submit some form of online identification every time they go online.

Proponents of such legislation often point to the new threats to safety and security that the Internet poses to defend these measures, and it is indeed a core obligation of any state to ensure the safety of its citizens. But the hallmark of a democracy is that it carefully balances any measures to do so with the continued guarantee of its citizens' fundamental rights. Despite the enormous changes and challenges that the Internet brings for freedom of expression everywhere, such an exercise seems to sadly not yet have been systematically undertaken in India so far.

The recent blocking of websites with which we started this article reflects the urgent need to do so. In response to RTI applications by the Centre for Internet and Society and Medianama, the Department of Information Technology, which is authorised to order such blocks, admitted to blocking Zone-H, but not any of the other websites affected earlier this year. In an interview with The Hindu, the Department of Telecommunication too had denied ordering the blocking of access, despite the fact that some users trying to access Typepad had reported seeing the message "this site has been blocked as per request by Department of Telecom" on their screen. In the mean time, Clickatell and Mobango remain inaccessible for this author at the time of writing. That we continue to be in the dark as to why this is so in the world's largest democracy deserves to urgently become a rallying point.

For more details visit https://cis-india.org/internet-governance/blog/your-right-to-remain-silent

ICANN 65

Admin — 2019-07-06T01:08:36Z

Akriti Bopanna attended ICANN 65 in Marrakech, Morocco from 24 - 27 June 2019.

Akriti spoke on ICANN and Human Rights at a session organized by the At-Large and Non-Commercial Users Constituency.
The Government Advisory Council discussed how government representatives can get involved in the Human Rights Impact Assessment work which the working party that she co-chairs on Human Rights at ICANN has been conducting. Akriti spoke on the feasibility of organizing a High Interest Session on Human Rights at ICANN66.
Akriti participated in a public meeting of ICANN's Board on their Anti-Harassment Policy and my suggestions/remarks on improving the samte were received well.

For more details visit https://cis-india.org/internet-governance/news/icann-65

Chilling Effects and Frozen Words

Lawrence Liang — 2012-04-30T07:32:17Z

What if the real danger is not that we lose our freedom of speech and expression but our sense of humour as a nation? Lawrence Liang's op-ed was published in the Hindu on April 30, 2012.

While freedom of speech and expression is an individual right, its actualisation often relies on a vast infrastructure of intermediaries.

In the offline world, this includes newspapers, television channels, public auditoriums, etc. It is often assumed that the internet has created a more robust public sphere of speech by doing away with many structural barriers to free speech. But the fact of the matter is that even if the internet enables a shift from a ‘few to many' to a ‘many to many' model of communication, intermediaries continue to remain important players in facilitating free speech. Can one imagine free speech on the internet being the same without Twitter, social networks or Youtube?

One way of thinking of the infrastructure of communication is in terms of ecology, and in the ecology of speech — as in the environment — an adverse impact on any component threatens the well-being of all. The idea of cyberspace as a commons is a much cherished myth and in the early days of the internet we were perhaps given a glimpse into its utopian possibility. But we would be deluding ourselves if we believed that the problems that plague free speech in the offline world (including ownership of the avenues of speech) are absent in cyberspace. Recall in recent times that one of the most effective ways in which various governments retaliated to the leaking of official secrets on WikiLeaks was by freezing Julian Assange's PayPal account.

Direct & Indirect Controls

It may be useful to distinguish between direct controls on free speech and indirect or structural controls on free speech. India has had a long history of battling direct and indirect controls on free speech and with a few exceptions the interests of the press have often coincided with the interests of a robust public sphere of debate and criticism.

In the late 1950s and early 1960s, a number of large media houses battled restrictions imposed on the press by way of control of the number of pages of a newspaper, regulation of the size of advertisements and the price of imported newsprint. On the face of it, some of these restrictions may have seemed like commercial disputes but the Supreme Court rightly recognised that indirect controls could adversely impact the individual's right to express himself or herself as well as to receive information freely.

In the online context, there has also been a similar recognition of the role of intermediaries in providing platforms of speech and it is with this view in mind that a number of countries have incorporated safe harbour provisions in their information technology laws.

Section 79 of the Information Technology Act is one such safe harbour provision in India which provides that intermediaries shall not be liable for any third party action if they are able to prove that the offence or contravention was committed without their knowledge or that they had exercised due diligence to prevent the commission of such offence or contravention. But this safe harbour has effectively been undone with the passing of the Information Technology (Intermediaries guidelines) Rules, 2011.

The rules clarify what standard of due diligence has to be met by intermediaries and Sec. 3(2) of the rules obliges intermediaries to have rules and conditions of usage which ensure that users do not host, display, upload, modify, publish, transmit, update or share any information that is in contravention of the Section. This includes the all too familiar ones (defamatory, obscene, pornographic content) but also a whole host of new categories which could be invoked to restrict speech (“grossly harmful,” “blasphemous,” “harassing,” “hateful”).

As is well known, any restriction on speech in India has to comply with both the test of reasonableness under Article 19(2) of the Constitution, as well as ensuring that the grounds of censorship are located within 19(2). Even though there are laws regulating hate speech in India, blasphemy is not a category under Art. 19(2) and has hitherto not been a part of Indian law. Some of the other categories such as “grossly harmful” suggest the people who drafted the rules seem to have taken a constitutional nap at the drafting board.

Sec. 3(4) of the rules provides that any intermediary who receives a notice by an aggrieved person about any violation of sub rule (2) will have to act within 36 hours and where applicable will ensure that the information is disabled. In the event that it fails to act or to respond, the intermediary cannot claim exemption for liability under Sec. 70 of the IT Act. It is worth noting that most intermediaries receive from hundreds to thousands of requests from individuals on a daily basis asking for the removal of objectionable material. The Centre for Internet and Society conducted a “sting operation” to determine whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on free expression.

In the course of the study, frivolous takedown notices were sent to seven intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled. The takedown notices which were sent by the researcher were intentionally defective as they did not establish how they were interested parties, did not specifically identify and discuss any individual URL on the websites, or present any cause of action, or suggest any legal injury. Of the seven intermediaries to which takedown notices were sent, six over-complied with the notices, despite the apparent flaws in them.

Caution

Even in cases where the intermediaries challenged the validity of the takedowns, they erred on the side of caution and took down the material. While a number of intermediaries would see themselves as allies in the fight against censorship, more often than not intermediaries are also large commercial organisations whose primary concern is the protection of their business interests. In the face of any potential legal threat, especially from the government, they prefer to err on the side of caution. The people whose content was removed were not told, nor was the general public informed that the content was removed.

The procedural flaws (subjective determination, absence of the right to be heard, the short response time) coupled with the vague grounds on which such takedowns can be claimed, clearly point to a highly flawed situation in which we will see many more trigger happy demands for offending materials to be taken down.

We have already slipped into a state of being a republic of over sensitivity where any politician, religious group or individual can claim their sentiments have been hurt or they have been portrayed disparagingly, as evidenced by the recent attack and subsequent arrest of Professor Ambikesh Mahapatra of Jadavpur University for posting cartoons lampooning Mamata Banerjee.

Nervous State

In the era of global outsourcing it was inevitable that the state censorship machinery would also learn a lesson or two from the global trends and what better way of ensuring censorship than outsourcing it to individuals and to corporations. The renowned anthropologist, Michael Taussig, once compared the state to a nervous system and it seems that the Intermediary rules live up to the expectations of a nervous state ever ready to respond to criticism and disparaging cartoons.

What if the real danger is not even that we lose our freedom of speech and expression but we lose our sense of humour as a nation?

The evident flaws of the rules have been acknowledged even by lawmakers, with P. Rajeeve, the CPI(M) M.P., introducing a motion for the annulment of the rules. The annulment motion is going to be debated in the coming weeks and one hopes that the parliamentarians will seriously reconsider the rules in their current form.

When faced with conundrums of the present it is always useful to turn to history and there is reason to believe that while censorship has a very respectable genealogy in Indian thought, it has also been accompanied in equal measure by a tradition of the right to offend.

In his delightful reading of the Arthashastra, Sibaji Bandyopadhay alerts us to the myriad restrictions that existed to control Kusilavas (the term for entertainers which included actors, dancers, singers, storytellers, minstrels and clowns). These regulations ranged from the regulation of their movement during monsoon to prohibitions placed on them, ensuring that they shall not “praise anyone excessively nor receive excessive presents”. While some of the regulations appear harsh and unwarranted, Bandyopadhay says that in contrast to Plato's Republic, which banished poets altogether from the ideal republic, the Arthashastra goes so far as to grant to Kusilavas what we could now call the right to offend. Verse 4.1.61 of the Arthashastra says, “In their performances, [the entertainers] may, if they so wish, make fun of the customs of regions, castes or families and the practices or love affairs (of individuals)”. One hopes that our lawmakers, even if they are averse to reading the Indian Constitution, will be slightly more open to the poetic licence granted by Kautilya.

Click for the original published in the Hindu on April 30, 2012. Lawrence Liang is a lawyer and researcher based at Alternative Law Forum, Bangalore. He can be contacted at lawrence@altlawforum.org

For more details visit https://cis-india.org/internet-governance/chilling-effects-frozen-words

Proposed Intermediary Liability Rules threat to privacy and free speech, global coalition tells MeitY

Zaheer Merchant — 2019-03-20T15:56:51Z

“We respectfully call on you to withdraw the draft amendments proposed to the Information Technology (Intermediary Guidelines) Rules in December. As published, the draft amendments would erode digital security and undermine the exercise of human rights globally.”

The blog post by Zaheer Merchant was published by Medianama on March 18, 2019.

A global coalition of 31 civil society organizations and technology experts has called on MeitY to reconsider the proposed amendments to the Intermediary Liability Rules, terming them a threat to privacy and free speech. In a letter to the ministry dated March 15, the coalition said that the proposed amendments “would harm fundamental rights and the space for a free internet, without necessarily addressing the problems that the ministry aims to resolve.” Some of the signatories are Centre for Internet and Society, SFLC.in, Internet Freedom Foundation, Government Accountability Project and Human Rights Watch, among others (A copy of the letter is attached at the bottom). The letter breaks down its reasons for opposing the proposed amendments:

1. Traceability would undermine security, lead to surveillance

Under the proposed guidelines, intermediaries would have to ensure ‘traceability’ of messages by providing information related to its originator and receivers. This, the letter argues, would force intermediaries to undermine the security of of their platforms and create a surveillance regime. “Undermining security features to ensure traceability would affect all users of that platform, not just those that are the subjects of the information request,” the letter reads. “… such wide and ambiguous powers… on interception of communications would directly harm the fundamental right to privacy of Indians and facilitate unchecked surveillance.”

2. Data retention antithetical to privacy, must go

The letter also states that the data retention mandate included in the draft guidelines is antithetical to privacy. The guidelines state that intermediaries must preserve content requested by law enforcement for 180 days or longer. This open-ended data retention, the letter argues, contradicts the principle of ‘Storage Limitation’ recommended by the Srikrishna Committee. “Provisions regarding storage limitation and data retention must not be included within the fold of the Intermediary Guidelines, and should be subject to parliamentary law-making,” the letter reads.

3. Proactive monitoring contradicts SC’s Shreya Singhal judgment, would result in censorship

The letter also criticizes the requirement that intermediaries proactively monitor and automatically delete ‘unlawful content’. “[This] would directly conflict with the legal standard laid down by the Supreme Court of India in the Shreya Singhal judgment, which holds that intermediaries should only be legally compelled to take down content on the basis of court orders or legally empowered government agencies,” the letter reads. It could also cause intermediaries to err in favor of takedowns, resulting in unnecessary censorship.

“With the upcoming General Elections in India and the imposition of the Model Code of Conduct on new policy decisions in place, we urge the government to not push through these amended regulations given their impact on fundamental rights and secure communications,” the letter concludes.

The proposed amendments to Intermediary Liability Rules

Released at the end of December 2018, the proposed amendments to the Intermediary Guidelines would modify guidelines under the Information Technology Act concerning intermediaries, ostensibly to prevent misuse of social media platforms and check the spread of fake news. Under India’s Information Technology Act, any entity, person or platform that receives, stores, processes, or transmits electronic information on behalf of another is considered an intermediary. These include social media platforms, cloud services, internet service providers, email service providers and more. For an intermediary to avoid liability for its users’ actions, it must comply with the proposed guidelines which are being amended to the following:

Traceability, and information within 72 hours: The new rules require platforms to introduce traceability to find where a piece of information originated. For this, platforms may have to break end-to-end encryption. The rules require the intermediary to hand over information or assistance to government bodies in 72 hours, including in matters of security or cybersecurity, and for investigative purposes. [Rule 3(5)]
Platforms with more than 50 lakh users are required to be registered under the Companies Act, have a physical address in the country, have a nodal officer who will cooperate with law enforcement agencies, etc. [Rule 3(7)]
Platforms have to pull down unlawful content within a shorter duration of 24 hours from the earlier 36 hours. They also have to keep records of the “unlawful activity” for 180 days – double the period of 90 days in the 2011 rules – as required by the court or government agencies [Rule 3(8)]
Platforms have to deploy tools to proactively identify, remove and disable public access to unlawful information or content. [Rule 3(9)]
The new rules insert a monthly requirement on platforms to inform users of the platforms’ right to terminate usage rights and to remove non-compliant information at their own discretion. [Rule 3(4)]

For more details visit https://cis-india.org/internet-governance/news/medianama-march-18-2019-zaheer-merchant-proposed-intermediary-liability-rules-threat-privacy-and-free-speech

DIDP #33 On ICANN's 2012 gTLD round auction fund

akriti — 2019-07-09T15:51:47Z

This DIDP was filed to inquire about the state of the funds ICANN received from the last gTLD auctions.

In 2012, after years of deliberation ICANN opened the application round for new top level domains and saw over 1930 applications. Since October 2013, delegation of these extensions commenced with it still going on. However, 7 years since the round was open there has been no consensus on how to utilize the funds obtained from the auctions. ICANN until its last meeting was debating on the legal mechanisms/ entities to be created who will decide on the disbursement of these funds. There is no clear information on how those funds have been maintained over the years or its treatments in terms of whether they have been set aside or invested etc. Thus, our DIDP questions ICANN on the status of these funds and can be found here.

The response to the DIDP received on 24th April, 2019 states that that even though the request asked for information, rather than documentation, our question was answered. Reiterating that the DIDP mechanism was developed to provide documentation rather than information. It stated that on 25 October 2018, Resolution 2018.10.25.23 was passed that compels the President and CEO to allocate $36 million to the Reserve Fund. The gTLD auction proceeds were allocated to separate investment accounts, and the interest accruing from the proceedings was in accordance with the new gTLD Investment Policy.

For more details visit https://cis-india.org/internet-governance/blog/akriti-bopanna-april-4-2019-didp-33-on-icann-s-2012-gtld-round-auction-fund

To preserve freedoms online, amend the IT Act

gurshabad — 2019-04-16T10:09:41Z

Look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.

The article by Gurshabad Grover was published in the Hindustan Times on April 16, 2019.

The issue of blocking of websites and online services in India has gained much deserved traction after internet users reported that popular services like Reddit and Telegram were inaccessible on certain Internet Service Providers (ISPs). The befuddlement of users calls for a look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.

Among other things, Section 69A of the Information Technology (IT) Act, which regulates takedown and blocking of online content, allows both government departments and courts to issue directions to ISPs to block websites. Since court orders are in the public domain, it is possible to know this set of blocked websites and URLs. However, the process is much more opaque when it comes to government orders.

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, issued under the Act, detail a process entirely driven through decisions made by executive-appointed officers. Although some scrutiny of such orders is required normally, it can be waived in cases of emergencies. The process does not require judicial sanction, and does not present an opportunity of a fair hearing to the website owner. Notably, the rules also mandate ISPs to maintain all such government requests as confidential, thus making the process and complete list of blocked websites unavailable to the general public.

In the absence of transparency, we have to rely on a mix of user reports and media reports that carry leaked government documents to get a glimpse into what websites the government is blocking. Civil society efforts to get the entire list of blocked websites have repeatedly failed. In response to the Right to Information (RTI) request filed by the Software Freedom Law Centre India in August 2017, the Ministry of Electronics and IT refused to provide the entire of list of blocked websites citing national security and public order, but only revealed the number of blocked websites: 11,422.

Unsurprisingly, ISPs do not share this information because of the confidentiality provision in the rules. A 2017 study by the Centre for Internet and Society (CIS) found all five ISPs surveyed refused to share information about website blocking requests. In July 2018, the Bharat Sanchar Nagam Limited rejected the RTI request by CIS which asked for the list of blocked websites.

The lack of transparency, clear guidelines, and a monitoring mechanism means that there are various forms of arbitrary behaviour by ISPs. First and most importantly, there is no way to ascertain whether a website block has legal backing through a government order because of the aforementioned confidentiality clause. Second, the rules define no technical method for the ISPs to follow to block the website. This results in some ISPs suppressing Domain Name System queries (which translate human-parseable addresses like ‘example.com’ to their network address, ‘93.184.216.34’), or using the Hypertext Transfer Protocol (HTTP) headers to block requests. Third, as has been made clear with recent user reports, users in different regions and telecom circles, but serviced by the same ISP, may be facing a different list of blocked websites. Fourth, when blocking orders are rescinded, there is no way to make sure that ISPs have unblocked the websites. These factors mean that two Indians can have wildly different experiences with online censorship.

Organisations like the Internet Freedom Foundation have also been pointing out how, if ISPs block websites in a non-transparent way (for example, when there is no information page mentioning a government order presented to users when they attempt to access a blocked website), it constitutes a violation of the net neutrality rules that ISPs are bound to since July 2018.

While the Supreme Court upheld the legality of the rules in 2015 in Shreya Singhal vs. Union of India, recent events highlight how the opaque processes can have arbitrary and unfair outcomes for users and website owners. The right to access to information and freedom of expression are essential to a liberal democratic order. To preserve these freedoms online, there is a need to amend the rules under the IT Act to replace the current regime with a transparent and fair process that makes the government accountable for its decisions that aim to censor speech on the internet.

For more details visit https://cis-india.org/internet-governance/blog/hindustan-times-april-16-2019-gurshabad-grover-to-preserve-freedoms-online-amend-it-act

Stockholm Internet Forum 2019

Admin — 2019-06-05T04:15:00Z

Swedish International Development Agency (Sida) organized the Stockholm Internet Forum 2019 in Stockholm from 16 - 17 May 2019. Gurshabad Grover was a panelist in the discussion on 'Influencing Internet Governance' co-organised by Article 19. The other panelists were Sylvie Coudray (UNESCO), Grace Githaiga (Kictanet), J. Carlos Lara (Derechos Digitales) and Charles Bradley (GPD). The discussion was moderated by Mallory Knodel (Article 19).

Gurshabad's primary contributions were around the motivations for civil society organisations to participate in technical internet governance fora, and how their role has matured at such fora in the last couple of years. Gurshabad extends his thanks to the inputs of Akriti Bopanna and Arindrajit Basu primarily for their contributions around the motivations for civil society organisations to participate in technical internet governance fora, and how their role has matured at such fora in the last couple of years.

Click to view the agenda. See the concept note here

For more details visit https://cis-india.org/internet-governance/news/stockholm-internet-forum-2019

The Bapsybanoo Marchioness of Winchester Lectures

praskrishna — 2013-06-09T03:35:38Z

Chinmayi Arun was a speaker at the Bapsybanoo Marchioness of Winchester Lectures on 'India's Politics of Free Expression' in the University of Oxford on May 31 2013, in the session on 'media and security'.

The Asian Studies Centre, Free Speech Debate, the Oxford India Society and Ideas for India Oxbridge Exchange were the co-sponsors for this event.

Theme: India's Politics of Free Expression
Date: May 31, 2013
Time: 10.00 a.m. to 6.15 p.m.
Venue: Nissan Lecture Theatre, St. Antony's College, Oxford

More details can be found here.

For more details visit https://cis-india.org/news/sant-ox-ac-uk-may-31-2013-bapsybanoo-marchioness-winchester-lectures