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Five Frequently Asked Questions about the Amended ITRs
https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs
<b>This piece discusses the five major questions that have been the subject of debate after the World Conference on International Telecommunications 2012 (WCIT). The politics surrounding the WCIT are not discussed here but it must be kept in mind that they have played a significant role in the outcome of the conference and in some of the debates about it.</b>
<p style="text-align: justify; ">Each question is discussed with reference to the text of the treaty, to the minutes of the plenary sessions (which are available via the <a href="http://www.itu.int/en/pages/default.aspx">ITU website</a>), a little international law and a few references to other people’s comments on the treaty.</p>
<p><b>1. Do the ITRs apply to content on the internet?</b></p>
<p style="text-align: justify; ">Article 1.1 (a) has been amended to add the sentence “These Regulations do not address the content-related aspects of telecommunications”. Although some discussions about the <a href="http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf">International Telecommunication Regulations (ITRs)</a> and content have ignored this altogether, others seem concerned about its interpretation.</p>
<p style="text-align: justify; ">The ITU Secretary General has issued <a href="http://www.itu.int/en/wcit-12/Pages/statement-toure.aspx">a statement</a> in which he has clarified that “The new ITR treaty does NOT cover content issues and explicitly states in the first article that content-related issues are not covered by the treaty”.</p>
<p style="text-align: justify; ">Commentators like <a href="http://tryingtoreason.wordpress.com/2012/12/15/yes-the-new-itrs-do-cover-content-and-the-internet/">Chuan-Zheng Lee</a> however, continue to view the treaty with suspicion, on the basis that it is necessary to examine content in order to tell whether it is spam (Lee and <a href="http://globalvoicesonline.org/2013/01/02/wcit-and-its-relationship-to-the-internet-what-lies-ahead/">Chaparro</a> differ on this question). However, others like <a href="http://www.nytimes.com/2012/12/15/technology/in-a-huff-a-telling-us-walkout.html?pagewanted=all&_r=0">Eric Pfanner</a> have pointed to this paragraph in their skepticism about the US refusal to sign.</p>
<p style="text-align: justify; "><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">The Chairman proposed the addition to Article 1.1(a) at the tenth plenary session. He did this to address concerns that the ITRs text could be interpreted to apply to content on the Internet. The original formulation that he proposed was ‘These regulations do not address and cannot be interpreted as addressing content’. This text was suggested in the middle of an extended discussion on Article 5A.</p>
<p style="text-align: justify; ">Many countries were skeptical of this insertion. Sudan argued that content could not be avoided in telecommunication networks “because it will always be in transit.” The United Arab Emirates seemed concerned about international interference in states’ existing regulation of content, and said “maybe we could actually say this in the minutes of the meeting that this regulation should not be interpreted as on alteration to Member States content regulation”.</p>
<p style="text-align: justify; ">Concerns about what the term ‘content’ means and whether it would apply broadly were raised by more than one country, including Saudi Arabia. For instance, it was argued that the text proposed by the Chairman might interfere with parts of the treaty that require operators to send tariff information correspondence. More than one country that felt that the insertion of this text would impact several parts of the treaty, and that it would be difficult to determine what amounted to dealing with content. The primary issue appeared to be that the term ‘content’ was not defined, and it therefore remained unclear what was being excluded. In response to these concerns, the Chairman withdrew his proposal for the amendment excluding content.</p>
<p style="text-align: justify; ">However, several states then spoke up in favour of the Chairman’s proposal, suggesting that the proposed amendment to Article 1.1 influenced their acceptance of Article 5A (on security and robustness of networks – discussed in detail below). Brazil suggested that an answer to the definitional concerns may be found in the work by Study Group 17, which had a definition available.</p>
<p style="text-align: justify; ">Following this, the next day, at the twelfth plenary, the Chairman brought back the Article 1.1 amendment excluding content. He stated explicitly that this amendment might be the way to get Articles 5A and 5B approved. The text he read out was insertion of the words <i>“</i>to the exclusion of their content”, after ‘’services’ at the end of 1.1A. Interestingly however, the term ‘content’ was never defined.</p>
<p style="text-align: justify; ">At the next plenary session, Iran raised the objection that this phrase was overbroad, and proposed the following formulation instead: “These Regulations do not address the content-related aspects of telecommunications”. This formulation found its way into the amended ITRs as the treaty stands today.</p>
<p><b>2. Does Article 5A on network security legitimize surveillance of Internet content?</b></p>
<p style="text-align: justify; ">Article 5A deals with ‘security and robustness of networks’ and requires member states to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks...”. This may have given rise to concerns about interpretations that may extend the security of networks to malware or viruses, and therefore to content on the Internet. However, Article 5A has to be read with Article 1.1(a), and therefore must be interpreted such that it does not ‘address the content-related aspects of telecommunications’.</p>
<p style="text-align: justify; ">Some commentators continue to see Article 5A as problematic. Avri Doria <a href="http://avri.doria.org/post/38641776703/wcit">has argued</a> that the use of the word ‘security’ in addition to ‘robustness’ of telecommunication infrastructure suggests that it means Internet security. However Emma Llansó of the Centre for Democracy and Technology <a href="https://www.cdt.org/blogs/emma-llanso/2012making-sense-wcit-it%E2%80%99s-complicated">has noted</a> that the language used in this paragraph is “ far too vague to be interpreted as a requirement or even a recommendation that countries surveil users on their networks in order to maintain security”. Llansó has suggested that civil society advocates make it clear to countries which attempt to use this article to justify surveillance, that it does not lend itself to such practices.</p>
<p style="text-align: justify; "><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Article 5A was one of the most controversial parts of the ITRs and was the subject of much debate.</p>
<p style="text-align: justify; ">On December 11<sup>th</sup>, in the Chairman’s draft that was being discussed, Article 5A was titled ‘security of networks’, and required members to endeavour to ensure the “security and robustness of international telecommunication networks”. The Chairman announced that this was the language that came out of Committee 5’s deliberations, and that ‘robustness’ was inserted at the suggestion of CEPT.</p>
<p style="text-align: justify; ">Several countries like Poland, Australia, Germany and the United States of America were keen on explicitly stating that Article 5A was confined to the physical or technical infrastructure, and either wanted a clarification that to this effect or use of the term ‘robustness’ instead of security. Many other countries, such as Russia and China, were strongly opposed to this suggestion and insisted that the term security must remain in the document (India was one of the countries that preferred to have the document use the term ‘security’).</p>
<p style="text-align: justify; ">It was in the course of this disagreement, during the tenth plenary session, that the Chairman suggested his global solution for Article 1.1 – a clarification that this would not apply to content. This solution was contested by several countries, withdrawn and then reinstated (in the eleventh plenary) after many countries explained that their assent to Article 5A was dependant on the existence of the Article 1 clarification about content (see above for details).</p>
<p style="text-align: justify; ">There was also some debate about whether Article 5A should use the term ‘robustness’ or the term ‘security’ (eg. The United States clarified that its preference was for the use of ‘resilience and robustness’ rather than security). The Secretary General referred to this disagreement, and said that he was therefore using both terms in the draft. The title of Article 5A was changed, in the eleventh plenary, to use both terms, instead of only referring to security.</p>
<p><b>3. Does Article 5B apply to spam content on the Internet? </b></p>
<p style="text-align: justify; ">The text of the amended treaty talks of ‘unsolicited bulk electronic communications’ and does not use the term ‘spam’[Article 5B says that ‘Members should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services’].If this phrase is read in isolation, it may certainly be interpreted as being applicable to spam. Commentators like <a href="http://avri.doria.org/tagged/WCIT/page/2">Avri Doria</a> have pointed to sources like<a href="http://www.itu.int/osg/csd/intgov/resoultions_2010/PP-10/RESOLUTION_130.pdf"> Resolution 130 of the Plenipotentiary Conference of the International Telecommunication Union</a> (Guadalajara, 2010) to demonstrate that ‘unsolicited bulk electronic communications’ ordinarily means spam. However, others like<a href="http://globalvoicesonline.org/2013/01/02/wcit-and-its-relationship-to-the-internet-what-lies-ahead/"> Enrique A. Chaparro</a> argue that it cannot possibly extend to content on the Internet given the language used in Article 1.1(a). Chapparo has explained, that given the exclusion of content, Article 5B it authorizes anti-spam mechanisms that do not work on content.</p>
<p style="text-align: justify; ">Article 5B, which discusses ‘unsolicited bulk electronic communications’, must be read with Article 1, which is the section on purpose and scope of the ITRS. Article 1.1 (a) specifies that the ITRs “do not address the content-related aspects of telecommunications”. Therefore it may be argued that ‘unsolicited bulk electronic communications’ cannot be read as being applicable to content on the Internet.</p>
<p style="text-align: justify; ">However, many continue to be concerned about Article 5B’s applicability to spam on the Internet. Although some of them that their fear is that some states may interpret Article 5B as applying to content, despite the contents of Article 1.1(a), many have failed to engage with the issue in the context of Article 1.1(a).</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Article 5B is inextricably linked with the amendment to Article 1.1. Mexico asked specifically about what the proposed amendment to Article 1.1 would mean for Article 5B: “I’m referring to the item which we’ll deal with later, namely unsolicited bulk electronic communications. Could that be referred to as content, perhaps?”. The Chairman responded saying, “This is exactly will solve the second Article 5B, that we are not dealing with content here. We are dealing with measures to prevent propagation of unsolicited bulk electronic messages”.<sup></sup></p>
<p style="text-align: justify; ">The amendment to Article 1.1 was withdrawn soon after it was introduced. Before it was reintroduced, Sweden said (at the eleventh plenary) that it could not see how Article 5B could apply without looking into the content of messages. The United States agreed with this and went on state that the issue of spam was being addressed at the WTSA level, as well as by other organisations. It argued that the spam issue was better addressed at the technical level than by introducing it in treaty text.</p>
<p style="text-align: justify; ">The amendment excluding content was reintroduced during the twelfth plenary. The Chairman explicitly stated that it might be the way to get Articles 5A and 5B approved.</p>
<p style="text-align: justify; ">The word ‘spam’ was dropped from the ITRs in the eight plenary, and “unsolicited bulk electronic communications” was used instead. However, in the eleventh plenary, as they listed their reasons for not signing the newly-amended ITRs, Canada and the United States of America referred to ‘spam’ which suggests that they may have viewed the change as purely semantic.</p>
<p><b>4. Does the resolution on Internet Governance indicate that the ITU plans to take over the Internet?</b></p>
<p style="text-align: justify; ">Much controversy has arisen over the plenary resolution ‘to foster an enabling environment for the greater growth of the Internet’. This controversy has arisen partly thanks to the manner in which it was decided to include the resolution, and partly over the text of the resolution. The discussion here focuses on the text of the resolution and then describes the proceedings that have been (correctly) criticized.</p>
<p style="text-align: justify; ">The history of this resolution, as <a href="http://www.circleid.com/posts/20121217_wcit_and_internet_governance_harmless_resolution_or_trojan_horse/">Wolfgang Kleinwächter</a> has explained, is that it was part of a compromise to appease the countries which were taking positions on the ITU’s role in Internet governance, that were similar to the <a href="http://files.wcitleaks.org/public/Merged%20UAE%20081212.pdf">controversial Russian proposal</a>. The controversial suggestions about Internet governance were excluded from the actual treaty and included instead in a non-binding resolution.</p>
<p style="text-align: justify; ">The text of the resolution instructs the Secretary General to “to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multi-stakeholder model of the Internet as expressed in § 35 of the Tunis Agenda”. This paragraph is particularly controversial since of paragraph 35 of the <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a> says “Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.” Kleinwächter has pointed out that this selection leaves out later additions that have taken place with progression towards a multi-stakeholder model.</p>
<p style="text-align: justify; ">The resolution also resolves to invite member states to “to elaborate on their respective positions on international Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunication/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups”.</p>
<p style="text-align: justify; ">A little after its introduction, people began expressing concerns such as the <a href="https://www.accessnow.org/blog/2012/12/12/wcit-watch-just-taking-the-temperature-a-late-night-resolution-on-the-inter">Secretary General may treat the resolution as binding</a>, While the language may raise cause for concern, it is important to note that resolutions of this nature are not binding and countries are free to opt out of them. Opinions vary about the intentions that have driven the inclusion of this resolution, and what it may mean for the future. However commentators like Milton Mueller have scoffed at these concerns, pointing out that the resolution is harmless and may have been a <a href="http://www.internetgovernance.org/2012/12/13/what-really-happened-in-dubai/">clever political maneuver</a> to resolve the basic conflict haunting the WCIT, and that <a href="http://www.internetgovernance.org/2012/12/18/itu-phobia-why-wcit-was-derailed/">mere discussion of the Internet in the ITU harms no one</a>.</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">Egypt and Bulgaria suggested that the resolution refer to paragraph 55 of the Tunis agenda instead of paragraph 35, by inserted the following text “”Recognizing that the existing arrangements for Internet Governance have worked effectively to make the Internet the highly robust, dynamic and geographically diverse medium it is today, with the private sector taking the lead in day-to-day operations and with innovation and value creation at the edges.” The US was also quite insistent on this language (although it did also argue that this was the wrong forum to discuss these issues).</p>
<p style="text-align: justify; ">The Chairman was willing to include paragraph 55 in addition to paragraph 35 but Saudi Arabia objected to this inclusion. Finland suggested that the resolution should be removed since it was not supported by all the countries present and was therefore against the spirit of consensus. The Secretary General defended the resolution, suggesting both that it was harmless and that since it was a key component of the compromise, eliminating it would threaten the compromise. South Africa and Nigeria supported this stand.</p>
<p style="text-align: justify; ">It was during this debate that the procedural controversy arose. Late into the night, the Chairman said there was a long list of countries that wished to speak and said “I just wanted to have the feel of the room on who will accept the draft resolution”. He proceeded to have countries indicate whether they would accept the draft resolution or not, and then announced that the majority of the countries in the room were in favour of retaining the resolution. The resolution was then retained. Upon Spain’s raising the question, the Chairman clarified that this was not a vote. The next day, other countries raised the same question and the Chairman, while agreeing that the resolution was adopted on the basis of the ‘taking of temperature’ insisted that it was not a vote so much as an effort to see what majority of the countries wanted.</p>
<p style="text-align: justify; "><b>5. Does the human rights language used in the preamble, especially the part about states’ access to the Internet, threaten the Internet in any way?</b></p>
<p style="text-align: justify; ">The preamble says “Member States affirm their commitment to implement these Regulations in a manner that respects and upholds their human rights obligations”, and “These Regulations recognize the right of access of Member States to international telecommunication services”. The text of the preamble can be used as an interpretation aid since it is recognized as providing context to, and detailing the object and purpose of, a treaty. However if the meaning resulting from this appears to be ambiguous, obscure, absurd or unreasonable, then supplementary means such as the preparatory work for the treaty and the circumstances for its conclusion may also be taken into account.</p>
<p style="text-align: justify; ">Therefore anyone who is concerned about the impact of the text inserted in the preamble must (a) identify text within the main treaty that could be interpreted in an undesirable manner using the text in the preamble; and (b) consider preparatory work for the treaty and see whether it supports this worrying interpretation. For example, if there were concerns about countries choosing to interpret the term ‘human rights’ as subordinating political rights to economic rights, it would be important to take note of the Secretary General’s emphasis on the <a href="http://www.un.org/en/documents/udhr/index.shtml">UDHR</a> being applicable to all member states.</p>
<p style="text-align: justify; ">Initially, only the first insertion about ‘human rights obligations’ was part of the draft treaty. The second insertion, recognizing states’ rights followed after the discussion about human rights language. Some states argued that it was inconsistent to place human rights obligations on states towards their citizens, but to leave out their cross-border obligations. It was immediately after this text was voted into the draft, that the United States, the United Kingdom and other countries refused to sign the ITRs. This particular insertion is phrased as a right of states rather than that of individuals or citizens, which does not align with the language of international human rights. While it may not be strictly accurate to say that human rights have traditionally been individual centric (since collective rights are also recognized in certain contexts), it is certainly very unusual to treat the rights of states or governments as human rights.</p>
<p><i>Some highlights from the plenary session discussions</i></p>
<p style="text-align: justify; ">The United States of America and the Netherlands wanted to include language to state explicitly that states’ international human rights obligations are not altered in anyway. This was to clarify that the inclusion of human rights language was not setting the ITU up as a forum in which human rights obligations are debated. Malaysia objected to the use of human rights language in the preamble right at the outset, on the grounds that the ITRs are the wrong place for this, and that the right place is the ITU Constitution. It even pointed to the fact that jurisprudence is ever-evolving, to suggest that the meaning of human rights obligations might change over time. These were the two major perspectives offered towards the beginning of the discussion.</p>
<p style="text-align: justify; ">The Chairman underlined the fact that the Universal Declaration of Human Rights is already applicable to all UN countries. He argued that reflection of these principles in the ITRs would help build universal public faith in the conference.</p>
<p style="text-align: justify; ">The first traces of the states’ access rights can be seen in Cuba’s intervention at the ninth plenary – Cuba argued that limiting states’ access to public information networks amounted to infringement of human rights. At the fourteenth plenary, Nigeria proposed on behalf of the African group that the following text be added to the preamble “And recognize the right of access of all Member States to international telecommunication networks and services." Countries like China which had been ambivalent about the human rights language in the preamble, were happy with this move away from an individual-centric understanding of human rights, to one that sees states as representative of people.</p>
<p style="text-align: justify; ">The United States was express in its dissent, and said “human rights obligations go to the individual”. Sweden was also not happy with the proposal and argued that it moved away from well-established human rights language that affirmed existing commitments to drafting new human rights language.</p>
<p style="text-align: justify; ">It was an amended version of the African group proposal that finally found its way into the preamble. It was supported by many countries such as China, Nigeria and Sudan, who took the position that group rights are included within human rights, and that governments represent their citizens and therefore have rights on their behalf. This position was strenuously disputed by states like the USA, Switzerland, United Kingdom and Canada.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs'>https://cis-india.org/internet-governance/blog/five-faqs-on-amended-itrs</a>
</p>
No publisherchinmayiWCITInternet GovernanceFeaturedITUHomepageInformation Technology2013-01-30T05:36:26ZBlog Entry‘The IT Act is fine, but its interpretation is not’
https://cis-india.org/news/dna-bangalore-december-19-2012-the-it-act-is-fine-but-its-interpretation-is-not
<b>Several organisations such as the Alternate Law Forum and Centre for Internet and Society are campaigning to amend the IT Act 2000. However, SV Raghavan, scientific secretary, office of PSA to the government of India, stated that the law in place is fine but the stakeholders need to be educated on implementing it better.</b>
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<p>The article was<a class="external-link" href="http://www.dnaindia.com/bangalore/report_the-it-act-is-fine-but-its-interpretation-is-not_1779394"> published</a> in DNA on December 19, 2012.</p>
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<p style="text-align: justify; ">Raghavan, who was at the National Institute of Advanced Studies (NIAS) in the Indian Institute of Science (IISc) on Tuesday to give a lecture on cyber security, specifically singled out the controversial Section 66 that can hold a person viable for posting ‘offensive’ content online. The IT Act 2000 is constituted to keep such law breakers under check.</p>
<p style="text-align: justify; ">“The IT Act 2000 gives specific powers to some of the law agencies to take action. In cyberspace, nearly 90% of the users don’t come with any malicious intentions. Now there is a large concerted effort across the country, to teach policemen how to apply this law and interpret it. There is also an effort to teach the judiciary to interpret the law correctly, so that the right people are held accountable,” he said.</p>
<p style="text-align: justify; ">“No matter what you do, when the law is written in English, sometimes it comes across two dimensional and the original intent of the law may be lost, which is why there are agencies who are dedicated to teaching the judiciary on how to interpret it,” he added.</p>
<p style="text-align: justify; ">As for cyber security amongst civilians, vigilance is simply all it takes.</p>
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For more details visit <a href='https://cis-india.org/news/dna-bangalore-december-19-2012-the-it-act-is-fine-but-its-interpretation-is-not'>https://cis-india.org/news/dna-bangalore-december-19-2012-the-it-act-is-fine-but-its-interpretation-is-not</a>
</p>
No publisherpraskrishnaInternet GovernanceInformation Technology2012-12-21T10:08:43ZNews ItemSection 66-A, Information Technology Act, 2000: Cases
https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases
<b>In this blog post Snehashish Ghosh summarizes the facts of a few cases where Section 66-A, Information Technology Act, 2000, has been mentioned or discussed.</b>
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<p>There has been numerous instances application of the Section 66-A, Information Technology Act, 2000 (“ITA”) in the lower courts. Currently, there are six High Court decisions, in which the section has been mentioned or discussed. In this blog post, I will be summarizing facts of a few cases insofar as they can be gathered from the orders of the Court and are pertinent to the application of 66-A, ITA. </p>
<p><strong> Sajeesh Krishnan v. State of Kerala (Kerala High Court, Decided on June 5, 2012)</strong></p>
<p> Petition before High Court for release of passport seized by investigating agency during arrest</p>
<p> In the case of Sajeesh Krishnan v. State of Kerala (Decided on June 5, 2012), a petition was filed before the Kerala High Court for release of passport seized at the time of arrest from the custody of the investigating agency. The Court accordingly passed an order for release of the passport of the petitioner.</p>
<p>The Court, while deciding the case, briefly mentioned the facts of the case which were relevant to the petition. It stated that the “gist of the accusation is that the accused pursuant to a criminal conspiracy hatched by them made attempts to extort money by black mailing a Minister of the State and for that purpose they have forged some CD as if it contained statements purported to have been made by the Minister.” The Court also noted the provisions under which the accused was charged. They are Sections 66-A(b) and 66D of the Information Technology Act, 2000 along with a host of sections under the Indian Penal Code, 1860 (120B – Criminal Conspiracy, 419 – Cheating by personation, 511- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, 420 – Cheating and dishonestly inducing delivery of property, 468 – Forgery for purpose of cheating, 469 – Forgery for purpose of harming and 201 – Causing disappearance of evidence of offence, or giving false information to screen offender read with 34 of Indian Penal Code, 1860)</p>
<strong>Nikhil Chacko Sam v. State of Kerala (Kerala High Court, Decided on July 9, 2012)<br /><br /></strong>
<p>Order of the Kerala High Court on issuing of the summons to the petitioner</p>
<p> In another case, the Kerala High Court while passing an order with respect to summons issued to the accused, also mentioned the charge sheet laid by the police against the accused in its order. The accused was charged under section 66-A, ITA. The brief facts which can be extracted from the order of the Court read: “that the complainant and the accused (petitioner) were together at Chennai. It is stated that on 04.09.2009, the petitioner has transmitted photos of the de facto complainant and another person depicting them in bad light through internet and thus the petitioner has committed the offence as mentioned above.”</p>
<p><strong> J.R. Gangwani and Another v. State of Haryana and Others (Punjab and Haryana High Court, Decided on October 15, 2012)</strong></p>
<p> Petition for quashing of criminal proceedings under section 482 of the Criminal Procedure Code, 1973</p>
<p> In the Punjab and Haryana High Court, an application for quashing of criminal proceeding draws attention to a complaint which was filed under Section 66-A(c). This complaint was filed under Section 66-A(c) on the ground of sending e-mails under assumed e-mail addresses to customers of the Company which contained material which maligned the name of the Company which was to be sold as per the orders of the Company Law Board. The Complainant in the case received the e-mails which were redirected from the customers. According to the accused and the petitioner in the current hearing, the e-mail was not directed to the complainant or the company as is required under Section 66-A (c).</p>
<p>The High Court held that, “the petitioners are sending these messages to the purchasers of cranes from the company and those purchasers cannot be considered to be the possible buyers of the company. Sending of such e-mails, therefore, is not promoting the sale of the company which is the purpose of the advertisement given in the Economic Times. Such advertisements are, therefore, for the purpose of causing annoyance or inconvenience to the company or to deceive or mislead the addressee about the origin of such messages. These facts, therefore, clearly bring the acts of the petitioners within the purview of section 66A(c) of the Act.”</p>
<strong>Mohammad Amjad v. Sharad Sagar Singh and Ors. (Criminal Revision no. 72/2011 filed before the Court of Sh. Vinay Kumar Khana Additional Sessions Judge – 04 South East: Saket Courts Delhi)<br /><br /></strong>
<p> Revision petition against the order of the metropolitan magistrate</p>
<p> In a revision petition came up before the Additional Sessions Judge on the grounds that the metropolitan magistrate has dismissed a criminal complaint under Section 156(3) of the Criminal Procedure Code without discussing the ingredients of section 295-A, IPC and 66-A, IT Act.</p>
<p>In this case, the judge observed that, “...section 66A of Information Technology Act (IT Act) does not refer at all to any 'group' or 'class' of people. The only requirement of Section 66A IT Act is that the message which is communicated is grossly offensive in nature or has menacing character.” He also observed that the previous order “not at all considered the allegations from this angle and the applicability of Section 66A Information Technology Act, 2000 to the factual matrix of the instant case.” </p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases'>https://cis-india.org/internet-governance/blog/section-66-a-information-technology-act-2000-cases</a>
</p>
No publishersnehashishIT ActInternet GovernanceInformation Technology2012-12-06T09:20:51ZBlog EntryList of Chairman and Members of CRAC
https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac
<b>Notification on the constitution of the "Cyber Regulation Advisory Committee"</b>
<p align="center">LIST OF CHAIRMAN AND MEMBERS OF CYBER REGULATION ADVISORY COMMITTEE</p>
<p align="center">NOTIFICATION<a href="#_ftn1">[1]</a></p>
<p align="right">17th October, 2000</p>
<p><i>In exercise of the powers conferred by section 88 of the Information Technology Act, 2000 (21 of 2000) the Central Government hereby constitute the “Cyber Regulation Advisory Committee”, consisting of the following, namely: – </i></p>
<p>1. <a href="#_ftn2">[2]</a>[Minister, Communication and Information Technology] - Chairman</p>
<p>2. Secretary, Legislative Department - Member</p>
<p>3. Secretary, <a href="#_ftn3">[3]</a>[Ministry of Communication and Information Technology, Department of Information Technology] - Member</p>
<p>4. Secretary, Department of Telecommunications - Member</p>
<p>5. Finance Secretary - Member</p>
<p>6. Secretary, Ministry of Defence - Member</p>
<p>7. Secretary, Ministry of Home Affairs - Member</p>
<p>8. Secretary, Ministry of Commerce - Member</p>
<p>9. Deputy Governor, Reserve Bank of India - Member</p>
<p>10. Shri T.K. Vishwanathan, Presently Member Secretary, Law Commission - Member [<i>sic</i>]</p>
<p>11. President, NASSCOM - Member</p>
<p>12. President, Internet Service Provider Association - Member</p>
<p>13. Director, Central Bureau of Investigation - Member</p>
<p>14. Controller of Certifying Authority - Member</p>
<p>15. Information Technology Secretary by rotation from the States - Member</p>
<p>16. Director General of Police by rotation from the States - Member</p>
<p>17. Director, IIT by rotation from the IITs - Member</p>
<p>18. Representative of CII - Member</p>
<p>19. Representative of FICCI - Member</p>
<p>20. Representative of ASSOCHAM - Member</p>
<p>21. <a href="#_ftn4">[4]</a>[Scientist “6”, Department of Information Technology] - Member Secretary</p>
<p> </p>
<p>2. Travelling Allowance/Dear Allowance, as per the Central Government rules, for non-official members shall be borne by the Ministry of Communication and Information Technology, Department of Information Technology.</p>
<p>3. The Committee may co-opt any person as member based on specific meetings</p>
<p align="center">_______________________</p>
<p><br clear="all" /></p>
<hr align="left" size="1" width="33%" />
<p><a href="#_ftnref1">[1]</a> <i>Vide </i>G.S.R. 790(E), dated 17th October, 2000</p>
<p><a href="#_ftnref2">[2]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.</p>
<p><a href="#_ftnref3">[3]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Minister, Information Technology”.</p>
<p><a href="#_ftnref4">[4]</a> Subs. by G.S.R. 839(E), dated 23rd December, 2004 for “Senior Director, Ministry of Information Technology”</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac'>https://cis-india.org/internet-governance/resources/chairman-and-members-of-crac</a>
</p>
No publishersnehashishIT ActInternet GovernanceInformation Technology2012-12-02T06:22:25ZPageGovt tweaks enforcement of IT Act after spate of arrests
https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests
<b>The government on Thursday tweaked the law to make it tougher for citizens to be arrested for online comments that are deemed offensive after recent arrests came in for heavy criticism by Internet activists, the media and other groups.</b>
<hr />
<p style="text-align: justify; ">Surabhi Agarwal's article was <a class="external-link" href="http://www.livemint.com/Politics/hJLTj0OG2oXS1W64jE20bL/Govt-tries-to-tighten-application-of-cyber-law.html">published in LiveMint</a> on November 29, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">This took place just before the Supreme Court was to hear a public interest litigation seeking an amendment to the Information Technology (IT) Act.</p>
<p style="text-align: justify; ">Complaints under the controversial Section 66A of the IT Act, which criminalizes “causing annoyance or inconvenience” online or electronically, can be registered only with the permission of an officer of or above the rank of deputy commissioner of police, and inspector general in metro cities, said a senior government official.</p>
<p style="text-align: justify; ">The government, however, has not amended the terms in the section that are said to be vague and subject to interpretation.</p>
<p style="text-align: justify; ">The public interest litigation against Section 66A filed by student Shreya Singhal came up in chief justice <a href="http://www.livemint.com/Search/Link/Keyword/Altamas%20Kabir">Altamas Kabir</a>’s court on Thursday. The matter will be heard on Friday.</p>
<p style="text-align: justify; ">Two girls near Mumbai were arrested last week for criticizing on <a href="http://www.livemint.com/Search/Link/Keyword/Facebook">Facebook</a> the shutdown in the city for Shiv Sena chief <a href="http://www.livemint.com/Search/Link/Keyword/Bal%20Thackeray">Bal Thackeray</a>’s funeral. Earlier in November, a businessman in Puducherry was arrested for comments made on <a href="http://www.livemint.com/Search/Link/Keyword/Twitter">Twitter</a> against finance minister <a href="http://www.livemint.com/Search/Link/Keyword/P.%20Chidambaram">P. Chidambaram</a>’s son <a href="http://www.livemint.com/Search/Link/Keyword/Karti%20Chidambaram">Karti Chidambaram</a>.</p>
<p style="text-align: justify; ">According to people present at the meeting of the cyber regulatory advisory committee on Thursday, the Union government will issue guidelines to states with respect to the compliance of the new enforcement rules soon. The people didn’t want to be named. An official said the move was not related to the case.</p>
<p style="text-align: justify; "><a href="http://www.livemint.com/Search/Link/Keyword/Pranesh%20Prakash">Pranesh Prakash</a>, policy director at the Centre for Internet and Society think tank, said that while the change in the law is a step in the right direction and will eliminate a lot of frivolous complaints, more needs to be done to make the legislation specific.</p>
<p style="text-align: justify; ">Chief justice Kabir said the apex court was considering taking suo motu cognisance of recent incidents.</p>
<p style="text-align: justify; ">Singhal contended in her plea that “the phraseology of section 66A of the IT Act, 2000, is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence, falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution.”</p>
<p style="text-align: justify; ">She submitted that “unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country.”</p>
<p style="text-align: justify; ">The PIL was argued by Mukul Rohatgi, who said in his opening remarks that Section 66A was vague. Terms such as “offensive” and “annoyance” should be clearly defined as the section is part of criminal law, he said.</p>
<p style="text-align: justify; ">Senior advocate Harish Salve, who was also present during the hearing, said India guaranteed the right to “annoy” and there was no need to have a separate law.</p>
<p style="text-align: justify; ">Salve, who is in the process of filing an intervention on behalf of some technology companies, added that the section needed to be narrowed to specifically cater to private messages sent electronically and not social media communications.</p>
<p style="text-align: justify; ">He said the existing law of defamation should suffice and could be extended to include electronic communications. According to a lawyer who is part of the team representing Singhal, the petition also demanded that the law be made non-cognisable so that the police can’t make an arrest without an order from a magistrate.</p>
<p style="text-align: justify; ">“There has been a lot of misuse and abuse of the law recently and we want it to be struck down absolutely and also the court to issue guidelines,” he said.</p>
<p style="text-align: justify; ">Apart from the incident at Palghar in Thane district involving the two girls, Singhal’s PIL referred to an April incident in which a professor of chemistry from Jadavpur University in West Bengal, <a href="http://www.livemint.com/Search/Link/Keyword/Ambikesh%20Mahapatra">Ambikesh Mahapatra</a>, was arrested for posting a cartoon concerning chief minister <a href="http://www.livemint.com/Search/Link/Keyword/Mamata%20Banerjee">Mamata Banerjee</a> on a social networking site.</p>
<p style="text-align: justify; ">She also referred to the Puducherry case as well as the May arrests of two <a href="http://www.livemint.com/Search/Link/Keyword/Air%20India">Air India</a> Ltd employees, <a href="http://www.livemint.com/Search/Link/Keyword/V.%20Jaganatharao">V. Jaganatharao</a> and <a href="http://www.livemint.com/Search/Link/Keyword/Mayank%20Sharma">Mayank Sharma</a>, by the Mumbai Police under the IT Act for posting content on Facebook and <a href="http://www.livemint.com/Search/Link/Keyword/Orkut">Orkut</a> against a trade union leader and some politicians.</p>
<p style="text-align: justify; ">Singhal has sought guidelines from the apex court to “reconcile Section 41 and 156 (1) of the Criminal Procedure Code (CPC) with Article 19 (1)(a) of the Constitution” and that offences under the Indian Penal Code and any other legislation, if they involve the freedom of speech and expression, be treated as a non-cognizable offences for the purposes of Sections 41 and 156 (1).</p>
<p style="text-align: justify; ">Section 41 of CPC empowers the police to arrest any person without an order from a magistrate and without a warrant in the event that the offence involved is a cognizable offence. Section 156 (1) empowers the investigation by the police into a cognizable offence without an order from a magistrate.</p>
<p style="text-align: justify; ">The government official present at the cyber regulatory advisory committee said the expressions used in Section 66A had been taken from different statutes around the world, including the UK and the US.</p>
<p style="text-align: justify; ">“There has been a broad consensus that the parameters of the law concerned might be in order but from a procedural standpoint there might be difficulty,” the official said.</p>
<p style="text-align: justify; ">Prakash said that while some of the terms in the section may be taken from legislation overseas, the penalty imposed under the Indian law is far more stringent at three years of imprisonment than, for instance, six months under the UK law. “Criminal offences can’t be put at the same level as something which causes insult.”</p>
<p style="text-align: justify; ">The cyber regulatory advisory committee meeting was attended by minister for communications and information technolgy Kapil Sibal, and secretaries of the department of telecommunications and information technology, besides representatives of technology companies such as Google and Facebook, industry associations and civil society.</p>
<p style="text-align: justify; ">The official also said that the situation will be reviewed every three to four months based on “ground realities”.</p>
<p style="text-align: justify; ">A government official said on condition of anonymity that the decision to revive the cyber regulatory advisory committee had been taken at a meeting in August. Section 66A was put on the agenda since it was the subject of much debate, he said. The meeting, however, was not a pre-emptive measure ahead of the PIL that was taken up in the Supreme Court. The official also said that the government will spell out its position in court in favour of the legislation.</p>
<p>
For more details visit <a href='https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests'>https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests</a>
</p>
No publisherpraskrishnaSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorshipInformation Technology2012-11-30T08:27:01ZNews ItemInterview with Pranesh Prakash
https://cis-india.org/news/livemint-november-30-2012-video-interview-with-pranesh-prakash
<b>Pranesh Prakash of the Centre for Internet and Society talks to Mint’s Surabhi Agarwal about the controversial Section 66A of the IT Act and the government’s decision to tweak it. </b>
<hr />
<p>This video was <a class="external-link" href="http://origin-www.livemint.com/Multimedia/NXN6HB1L1UOLFyI8mwXUEJ/Video--Interview-with-Pranesh-Prakash.html">published in LiveMint </a>on November 30, 2012:</p>
<hr />
<p><iframe frameborder="0" height="315" src="http://www.youtube.com/embed/TqDX3Y0jFhc" width="420"></iframe></p>
<p>
For more details visit <a href='https://cis-india.org/news/livemint-november-30-2012-video-interview-with-pranesh-prakash'>https://cis-india.org/news/livemint-november-30-2012-video-interview-with-pranesh-prakash</a>
</p>
No publisherpraskrishnaSocial MediaFreedom of Speech and ExpressionInternet GovernanceVideoCensorshipInformation Technology2012-11-30T06:58:39ZNews ItemThousands go online against 66A
https://cis-india.org/news/dnaindia-nov-29-2012-apoorva-dutt-thousands-go-online-against-66a
<b>An online petition aimed at amending section 66A of the Information Technology (IT) Act and re-examining internet laws has garnered 3,000 signatures since it began on Tuesday — two days before Kapil Sibal, telecom and IT minister, chairs a meeting with the cyber regulation advisory committee.</b>
<hr />
<p style="text-align: justify; ">This article by Apoorva Dutt was <a class="external-link" href="http://www.dnaindia.com/mumbai/report_thousands-go-online-against-66a_1771070">published in DNA on November 29, 2012</a>. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">An online petition aimed at amending section 66A of the Information Technology (IT) Act and re-examining internet laws has garnered 3,000 signatures since it began on Tuesday — two days before Kapil Sibal, telecom and IT minister, chairs a meeting with the cyber regulation advisory committee.</p>
<p style="text-align: justify; ">The petition, anchored on Change.org, a platform for social initiatives, was started by Bangalore-based advocate Gautam John after two girls were arrested for their Facebook post on imposing a bandh in the city on the day Shiv Sena chief Bal Thackeray was cremated. Following their arrests, Shaheen Dhada has deleted her Facebook account while her friend Rini Srinivasan who merely liked the post has opened a new account on the social networking site. However, she has vowed to refrain from making political statements.</p>
<p style="text-align: justify; ">John is blunt about the legislative effect an online petition can have. l Turn to p8.</p>
<p style="text-align: justify; ">“Honestly, I don’t believe that a petition can change laws, but it gives concerned citizens a platform for documenting their concern in such troubling scenarios. To some extent, this sort of petition can represent a civil society’s point of view. No more can a government authority say ‘only NGOs care about an issue’. Now they know – thousands of ordinary people care,” John said.</p>
<p style="text-align: justify; ">Pranesh Prakash, policy director at the Centre For Internet and Society in Bangalore, points out the flaws in section 66A that have been exploited in cases like the Palghar incident. “Section 66A is very broadly-worded and the punishment (three years imprisonment) is excessive,” he said. “The law was borrowed – that too badly – from a British law. There are many a things greatly flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the winter session of Parliament.”</p>
<p style="text-align: justify; ">The petition also aims to organise a meeting of the civil society stakeholders to look into these concerns. A similar meeting was scheduled to be held in August, but it did not take place.</p>
<p style="text-align: justify; ">Sudarshan Balachandran of Change.org is the lead campaigner and organiser of the petition. He hopes to hand over a copy of the petition to Sibal during the meeting on Thursday. “Sibal has gone on record to say that they will examine the law, and if they feel it doesn’t work, it will be junked. So I am hopeful,” said Balachandran.</p>
<p>
For more details visit <a href='https://cis-india.org/news/dnaindia-nov-29-2012-apoorva-dutt-thousands-go-online-against-66a'>https://cis-india.org/news/dnaindia-nov-29-2012-apoorva-dutt-thousands-go-online-against-66a</a>
</p>
No publisherpraskrishnaSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorshipInformation Technology2012-11-30T06:40:38ZNews ItemAmnesty International calls for review of 66A of IT act
https://cis-india.org/news/business-standard-november-28-2012-nirmalya-behera-amnesty-international-calls-for-review-of-66a-of-it-act
<b>The review seeks to bring the Act in line with international human rights law standards on freedom of expression.</b>
<hr />
<p>This article by Nirmalya Behera was <a class="external-link" href="http://www.business-standard.com/india/news/amnesty-international-calls-for-review66ait-act/197621/on">published in the Business Standard</a> on November 28, 2012.</p>
<hr />
<p style="text-align: justify; "><span><span>Joining in the row over arrest of two girls in Maharastra for <a href="http://www.business-standard.com/india/prof_page.php?search=Facebook&select=1" target="_blank">Facebook</a> comments, the human rights group, Amnesty International, has called for review of the Section 66A of the Information Technology Act, 2000. </span></span></p>
<p style="text-align: justify; ">In a letter to Kapil Sibal, Union minister for Communications and Information Technology, the London based human right watchdog has asked for reviewing the section and bringing it in line with international human rights law standards on freedom of expression.</p>
<p style="text-align: justify; "><span><span>The human rights group and the Centre for Internet and Society believe that Section 66A, which was amended in 2008, is not in line with the constitution of India and internationally accepted standards on freedom of expression. They termed the section as imprecise and over board.<br /><br />Amnesty has also called for laying down clear and comprehensive explanations of the restrictions on free speech either in the IT act or in the rules in order to prevent the abuse of the provision by various state law enforcement officials and frame the explanations after consulting it with the public.<br /><br />“The Internet should be a force for political freedom, not repression. People have the right to seek and receive information and to express their peaceful beliefs without fear, or interference. But under Section 66A, even a peaceful posting could lead to a prison sentence of up to three years”, it said in its letter.<br /><br />It may be noted that two girls- Shaheen Dhada and her friend Renu Srinivasan were arrested on November 19, after Dhada had lamented in a Facebook post about the shutdown in Mumbai due to Bal Thackeray's funeral and were later released on bail. </span></span></p>
<p>
For more details visit <a href='https://cis-india.org/news/business-standard-november-28-2012-nirmalya-behera-amnesty-international-calls-for-review-of-66a-of-it-act'>https://cis-india.org/news/business-standard-november-28-2012-nirmalya-behera-amnesty-international-calls-for-review-of-66a-of-it-act</a>
</p>
No publisherpraskrishnaInternet GovernanceInformation Technology2012-11-30T06:19:45ZNews ItemFixing India’s anarchic IT Act
https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act
<b>Section 66A of the Information Technology (IT) Act criminalizes “causing annoyance or inconvenience” online, among other things. A conviction for such an offence can attract a prison sentence of as many as three years. </b>
<hr />
<p style="text-align: justify; ">Pranesh Prakash's article was <a class="external-link" href="http://www.livemint.com/Opinion/ji3XbzFoLYMnGQprNJvpQL/Fixing-Indias-anarchic-IT-Act.html">published in LiveMint</a> on November 28, 2012.</p>
<hr />
<p style="text-align: justify; "><span><span>How could the ministry of communications and information technology draft such a loosely-worded provision that’s clearly unconstitutional? How could the ministry of law allow such shoddy drafting with such disproportionate penalties to pass through? Were any senior governmental legal officers—such as the attorney general—consulted? If so, what advice did they tender, and did they consider this restriction “reasonable”? These are some of the questions that arise, and they raise issues both of substance and of process. </span></span></p>
<p style="text-align: justify; "><span><span>When the intermediary guidelines rules were passed last year, the government did not hold consultations in anything but name. Industry and non-governmental organizations (NGOs) sent in submissions warning against the rules, as can be seen from the submissions we retrieved under the Right to Information Act and posted on our website. However, almost none of our concerns, including the legality of the rules, were paid heed to. </span></span></p>
<p style="text-align: justify; ">Earlier this year, parliamentarians employed a little-used power to challenge the law passed by the government, leading communications minister Kapil Sibal to state that he would call a meeting with “all stakeholders”, and will revise the rules based on inputs. A meeting was called in August, where only select industry bodies and members of Parliament were present, and from which a promise emerged of larger public consultations. That promise hasn’t been fulfilled.</p>
<p style="text-align: justify; ">Substantively, there is much that is rotten in the IT Act and the various rules passed under it, and a few illustrations—a longer analysis of which is available on the Centre for Internet and Society (CIS) website—should suffice to indicate the extent of the malaise.</p>
<p style="text-align: justify; ">Some of the secondary legislation (rules) cannot be passed under the section of the IT Act they claim as their authority. The intermediary guidelines violate all semblance of due process by not even requiring that a person whose content is removed is told about it and given a chance to defend herself. (Any content that is complained about under those rules is required to be removed within 36 hours, with no penalties for wilful abuse of the process. We even tested this by sending frivolous complaints, which resulted in removal.)</p>
<p style="text-align: justify; "><span><span>The definition of “cyber terrorism” in section 66F(1)(B) of the IT Act includes wrongfully accessing restricted information that one believes can be used for defamation, and this is punishable by imprisonment for life. Phone-tapping requires the existence of a “public emergency” or threat to “public safety”, but thanks to the IT Act, online surveillance doesn’t. The telecom licence prohibits “bulk encryption” over 40 bits without key escrow, but these are violated by all, including the Reserve Bank of India, which requires that 128-bit encryption be used by banks. These are but a few of the myriad examples of careless drafting present in the IT Act, which lead directly to wrongful impingement of our civil and political liberties. While we agree with the minister for communications, that the mere fact of a law being misused cannot be reason for throwing it out, we believe that many provisions of the IT Act are prone to misuse because they are badly drafted, not to mention the fact that some of them display constitutional infirmities. That should be the reason they are amended, not merely misuse.</span></span></p>
<p style="text-align: justify; ">What can be done? First, the IT Act and its rules need to be fixed. Either a court-appointed amicus curiae (who would be a respected senior lawyer) or a committee with adequate representation from senior lawyers, Internet policy organizations, government and industry must be constituted to review and suggest revisions to the IT Act. The IT Act (in section 88) has a provision for such a multi-stakeholder advisory committee, but it was filled with mainly government officials and became defunct soon after it was created, more than a decade ago. This ought to be reconstituted. Importantly, businesses cannot claim to represent ordinary users, since except when it comes to regulation of things such as e-commerce and copyright, industry has little to lose when its users’ rights to privacy and freedom of expression are curbed.</p>
<p style="text-align: justify; ">Second, there must be informal processes and platforms created for continual discussions and constructive dialogue among civil society, industry and government (states and central) about Internet regulation (even apart from the IT Act). The current antagonism does not benefit anyone, and in this regard it is very heartening to see Sibal pushing for greater openness and consultation with stakeholders. As he noted on the sidelines of the Internet Governance Forum in Baku, different stakeholders must work together to craft better policies and laws for everything from cyber security to accountability of international corporations to Indian laws. In his plenary note at the forum, he stated: “Issues of public policy related to the Internet have to be dealt with by adopting a multi-stakeholder, democratic and transparent approach” which is “collaborative, consultative, inclusive and consensual”. I could not have put it better myself. Now is the time to convert those most excellent intentions into action by engaging in an open reform of our laws.</p>
<p style="text-align: justify; "><i>Pranesh Prakash is policy director at the Centre for Internet and Society.</i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act'>https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act</a>
</p>
No publisherpraneshFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorshipInformation Technology2012-11-30T06:33:58ZBlog EntryDoT Blocks Domain Sites — But Reasons and Authority Unclear
https://cis-india.org/internet-governance/blog/dot-blocks-domain-sites
<b>Earlier this year, ISPs such as Airtel and MTNL blocked a number of domain sites including BuyDomains, Fabulous Domains and Sedo.co.uk. Whereas the Indian Government and courts have previously issued orders blocking websites, these actions have generally been attributed to issues such as posting of inflammatory content or piracy of copyrighted material. However, the reasoning behind blocking domain marketplaces such as the above mentioned sites is not clear.</b>
<p style="text-align: justify; ">These websites offer users various tools to buy and sell domain names and simplify the purchasing process. Users on <a href="http://broadbandforum.in/airtel-broadband/79130-websites-blocked-on-airtel-broadband-2.html#post644518">India Broad Band forum</a> and websites like <a href="http://www.medianama.com/2012/08/223-indiablocks-airtel-blocks-youtu-be-short-url-proxy-domain-marketplace-sites/">Medianama</a> reported that these domain sites were not accessible and the following message was displayed instead — "<i>This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications</i>".</p>
<h3 style="text-align: justify; ">.In Registry’s Anti-Abuse Policy</h3>
<p style="text-align: justify; ">If the issue at hand is one of abusive registrations, it would fall under the <a href="http://www.inregistry.in/Policies/IN_Anti_Abuse_Policy">.IN Domain Anti-abuse Policy</a> adopted by the National Internet Exchange of India (NIXI) and the .in registry. This policy states that NIXI will have the right to <i>"deny, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status"</i> if necessary. This raises a question as to why the Department of Telecommunications (DoT) would issue directions to block these domain marketplaces instead of cancelling their registration or placing it on hold under the policies adopted by NIXI.</p>
<p style="text-align: justify; ">A second, more important question would be whether the DoT has the power to block websites or take action under NIXI’s anti-abuse policy. NIXI and the .in registry both work under the aegis of the Department of Electronics and Information Technology. In addition, the Information Technology Act, 2000 ("the IT Act") is the only legislation that provides the authority to block a website and this authority is bestowed upon the Secretary, Department of Information Technology.</p>
<h3 style="text-align: justify; ">Information Technology Act</h3>
<p style="text-align: justify; ">Section 69-A of the IT Act authorizes the central government to issue directions/orders to block public access to any information generated, transmitted, received, stored or hosted in any computer resource i.e., block websites. Such orders can be issued if the authorized officer finds that it is necessary to do so in the India’s sovereign and national interests or in the interest of public order. These interests include defence, security of the state, friendly relations with foreign neighbours and preventing incitement to the commission of an offence.</p>
<p style="text-align: justify; ">The procedures and safeguards that are to be followed before issuing an order to block a website are detailed in the <a href="https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009">Information Technology (Procedure and Safeguards for blocking for access of information by public) Rules, 2009</a> ("the rules"). The rules provide that upon receiving a complaint, the concerned organization for the blocking of access to information shall examine the complaint to ensure that there is a need to take action under the reasons mentioned above. If such action is found necessary, a request if forwarded and a committee established as per the rules reviews any requests made to block access to any information. During this review, there is also provision for a notice and reply procedure. This allows for the person controlling the online publication of such information to appear before the committee and respond to the request or make any clarifications regarding the information.</p>
<p style="text-align: justify; ">The recommendations of the committee are then sent to the Secretary of the Department of Information Technology who further directs an agency of the government or the intermediary to block the relevant content/website. The rules also provide procedures for blocking access in case of an emergency and in cases where court orders directing the blocking of information have been issued.</p>
<p>Whereas the ideas of sovereign interest and public order are admittedly very broad, there is no clear explanation as to what actions of domain sites/marketplaces such as BuyDomain and sedo.co.uk would be considered to impinge upon either. Neither is there any information available regarding why the DoT considers this to be the case.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/dot-blocks-domain-sites'>https://cis-india.org/internet-governance/blog/dot-blocks-domain-sites</a>
</p>
No publishersmitaInternet GovernanceInformation TechnologyCensorship2012-11-21T10:03:39ZBlog EntryInformation Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009
https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009
<b>G.S.R.781 (E).-- In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, read with sub-section (2) of section 69A of the Information Technology Act 2000, (21 of 2000), the Central Government hereby makes the following rules, namely:</b>
<p style="text-align: justify; ">1. Short title and commencement.-- <br /> (1) These rules may be called the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.<br /> (2) They shall come into force on the date of their publication in the Official Gazette.<br /><br /> 2. Definitions.-- <br /> In these rules, unless the context otherwise requires,-<br /> (a) "Act" means the Information Technology Act, 2000 (21 of 2000);<br /> (b) "computer resource" means computer resource as defined in clause (k) of sub-section (1) of section 2 of the Act;<br /> (c) "Designated Officer" means an officer designated as Designated Officer under rule 3;<br /> (d) "Form" means a form appended to these rules;<br /> (e) "intermediary" means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;<br /> (f) "nodal officer" means the nodal officer designated as such under rule 4;<br /> (g) "organisation" means -<br /> (i) Ministries or Departments of the Government of ;<br /> (ii) state Governments and Union territories;<br /> (iii) any agency of the Central Government, as may be notified in the Official Gazette, by the Central Government;<br /> (h) "request" means the request for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource;<br /> (i) "Review Committee" means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951.<br /><br /> 3. Designated Officer.-- <br /> The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a Joint Secretary, as the "Designated Officer", for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under sub-section (2) of section 69A of the Act.<br /><br /> 4. Nodal officer of organisation.-- <br /> Every organisation for the purpose of these rules, shall designate one of its officer as the Nodal Officer and shall intimate the same to the Central Government in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India and also publish the name of the said Nodal Officer on their website.<br /><br /> 5. Direction by Designated Officer.-- <br /> The Designated Officer may, on receipt of any request from the Nodal Officer of an organisation or a competent court, by order direct any Agency of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69A of the Act.<br /><br /> 6. Forwarding of request by organisation.-- <br /> (1) Any person may send their complaint to the Nodal Officer of the concerned organisation for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource:<br /> Provided that any request, other than the one from the Nodal Officer of the organisation, shall be sent with the approval of the Chief Secretary of the concerned State or territory to the Designated Officer:<br /> Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory.<br /> (2) The organisation shall examine the complaint received under sub-rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules.<br /> (3) The Designated Officer shall not entertain any complaint or request for blocking of information directly from any person.<br /> (4) The request shall be in writing on the letter head of the respective organisation, complete in all respects and may be sent either by mail or by fax or by e-mail signed with electronic signature of the Nodal Officer:<br />Provided that in case the request is sent by fax or by e-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail.<br /> (5) On receipt, each request shall be assigned a number alongwith the date and time of its receipt by the Designated Officer and he shall acknowledge the receipt thereof to the Nodal Officer within a period of twenty four hours of its receipt.<br /><br /> 7. Committee for examination of request.-- <br /> The request alongwith the printed sample content of the alleged offending information or part thereof shall be examined by a committee consisting of the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team appointed under sub-section (1) of section 70B of the Act.<br /> <br /> 8. Examination of request.-- <br /> (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications, if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary.<br /> (2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (1), before the committee on such specified date and time, the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.<br /> (3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or fax or e-mail signed with electronic signatures to such foreign entity or body corporate and any such foreign entity or body corporate shall respond to such a notice within the time specified therein, failing which the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.<br /> (4) The committee referred to in rule 7 shall examine the request and printed sample information and consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act and that it is justifiable to block such information or part thereof and shall give specific recommendation in writing with respect to the request received from the Nodal Officer.<br /> (5) The designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information alongwith the details sent by the Nodal Officer, to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India (hereinafter referred to as the "Secretary, Department of Information Technology").<br /> (6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Government or the intermediary to block the offending information generated, transmitted, received, stored or hosted in their computer resource for public access within the time limit specified in the direction:<br /> Provided that in case the request of the Nodal Officer is not approved by the Secretary, Department of Information Technology, the Designated Officer shall convey the same to such Nodal Officer.<br /><br /> 9. Blocking of information in cases of emergency.-- <br /> (1) Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.<br /> (2) In a case of emergency nature, the Secretary, Department of Information Technology may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.<br /> (3) The Designated Officer, at the earliest but not later than forty-eight hours of issue of direction under sub-rule (2), shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.<br /> (4) On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.<br /><br /> 10. Process of order of court for blocking of information.-- <br /> In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.<br /><br /> 11. Expeditious disposal of request.-- <br /> The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.<br /><br /> 12. Action for non-compliance of direction by intermediary.-- <br /> In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.<br /><br /> 13. Intermediary to designate one person to receive and handle directions.-- <br /> (1) Every intermediary shall designate at feast one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.<br /> (2) The designated person of the Intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.<br /><br /> 14. Meeting of Review Committee.-- <br /> The Review Committee shall meet at least once in two months and record its findings whether the directions issued under these rules are in accordance with the provisions of sub-section (1) of section 69A of the Act and if is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and issue order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.<br /><br /> 15. Maintenance of records by Designated Officer.-- <br /> The Designated Officer shall maintain complete record of the request received and action taken thereof, in electronic database and also in register of the cases of blocking for public access of the information generated, transmitted, received, stored or hosted in a computer resource.<br /><br /> 16. Requests and complaints to be confidential.-- <br /> Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.<br /><br />FORM<br />[See rule 6(2)]<br />A. Complaint<br />1. Name of the complainant: --___________________________________________<br />(Person who has sent the complaint to the Govt./Nodal Officer)<br />2. Address :________________________________________________________<br />________________________________________________________________<br />City :______________________ Pin Code:______________<br />3. Telephone :______________ (prefix STD code) 4. Fax (if any):__________<br />5. (if any):_____________________________<br />6. Email (if any):_____________________________________________<br />B : Details of website/ computer resource/intermediary/ offending Information hosted on the website<br />(Please give details wherever known)<br />7. URL / web address :________________________________<br />8. IP Address :___________________________<br />9. Hyperlink:____________________________<br />10. Server/Proxy Server address :__________________________________<br />11. Name of the Intermediary :___________________________________<br />12. URL of the Intermediary :____________________________________<br />(Please attach screenshot/printout of the offending information)<br />13. Address or location of intermediary in case the intermediary is telecom service provider, network service provider, internet service provider, web-hosting service provider and cyber cafe or other form of intermediary for which information under points (7), (8), (9), (10), (11) and (12) are not available.<br />_______________________________________________________<br />_______________________________________________________<br />_______________________________________________________<br />C. Details of Request for blocking<br />14. Recommendation/Comments of the Ministry/State Govt :______________________<br />________________________________________________________________________<br />________________________________________________________________________<br />15. The level at which the comments/ recommendation have been approved<br />(Please specify designation):__________________________________________<br />16. Have the complaint been examined in Ministry/State Government: Y/N<br />17. If yes, under which of the following reasons it falls (please tick):<br />(i) Interest of sovereignty or integrity of <br />(ii) Defence of <br />(iii) Security of the State<br />(iv) Friendly relations with foreign States<br />(v) Public order<br />(vi) For preventing incitement to the commission of any cognisable offence relating to above<br />D. Details of the Nodal Officer forwarding the complaint alongwith recommendation of the Ministry/State Govt. and related enclosures<br />18. Name of the Nodal Officer:_____________________________________________<br />19. Designation :___________________________________________________<br />20. organisation :________________________________________________________<br />21. Address : ______________________________________________________<br /> City :______________________ Pin Code:______________<br />22. Telephone:________________(prefix STD code) 23. Fax (if any):____________<br />24. (if any):_____________________________<br />25. Email (if any):_____________________________________________<br />E. Any other information :<br />F. Enclosures :</p>
<p style="text-align: justify; ">1.<br /> 2.<br /> 3<br />Date: Place: Signature<br /><br /></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009'>https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009</a>
</p>
No publishersmitaInternet GovernanceInformation Technology2012-11-21T09:32:36ZPageTyping in Indic Languages from Mobiles made Easy!
https://cis-india.org/openness/blog-old/typing-in-indic-languages-from-mobiles
<b>A new app is up for typing in Indic languages from mobile phones. This is is available online at: http://bitly.com/indictyping and supports on iOS. Android version is to be released soon.</b>
<hr />
<p class="quoted"><i>"There are two hard things in computer science: cache invalidation, naming things, and off-by-one errors."</i><br /><b>Phil Karlton</b></p>
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<p style="text-align: justify; ">Yuvi Panda smiles saying this. <a href="http://www.mediawiki.org/wiki/User:Yuvipanda">Yuvi Panda</a>, a former Wikimedia Foundation contractor and developer was here in our Delhi office and I had an opportunity to spend some time discussing some of the technical problems that we have been facing.</p>
<p style="text-align: justify; ">One of the major setback most people have with their phones is the lack of language support and lack of typing support for Indic languages. Fortunately most of the new generation phones support Indic languages. Three of the major operating systems used currently by most phones are Android, Windows, Blackberry and iOS. Android being an open source operating system has extensive community support and developments which is something we were primarily hopeful while starting this project. Windows phones also have a good number of user base in India and support for Indic languages on Windows is really good. Though iOS has good support for Indic display there is no support for typing. IOS, Windows and Blackberry all being proprietary have really less community support and any tool available on these app market would be proprietary. So, our idea was to start a cross platform app which will use the available jQuery ime used for Indic typing for Indic Wikipedias and sister projects.</p>
<p style="text-align: justify; ">Currently, most of the Indic language Wikipedias use a typing tool called <a href="http://www.mediawiki.org/wiki/Extension:Narayam">Narayam</a> ( "Narayam" is a Malayalam word which refers to a metal stylus that was used for writing on palm leaves and papyrus in ancient days). By default the typing scheme for most of the language wikipedias is set to transliteration or phonetic. An Indian mobile user would normally type his own language using Roman letters from a mobile. "और दोस्त सब ठीक है?" in Hindi would be typed as "Aur dost sab thik hai?" when someone pings a friend on facebook or sends a text message. Now with the new typing tool you need to type "aur dosta saba thiika hai?" to get the same text in Devanagari script. This typing scheme is almost same like the phonetic typing most people use for regional languages on mobile which is why typing won’t be much of difference. In terms of usability most people would use the typed text either for web search in regional languages, Facebook posts, tweeting or even sending mails and text messages.</p>
<p style="text-align: justify; ">The detailed procedure for typing using this tool is documented at: <a href="http://goo.gl/HdVJW">http://goo.gl/HdVJW</a>. Indic typing tool is available at: <a class="external-link" href="http://bitly.com/indictyping">http://bitly.com/indictyping</a></p>
<p style="text-align: justify; "><b>Scan the QR code below using your QR code application to go "Indic typing tool".</b></p>
<p><img src="https://cis-india.org/openness/blog-old/QRCodeIndictypingtool.png" title="QR Code for Indic typing tool" height="193" width="193" alt="QR Code for Indic typing tool" class="image-inline" /></p>
<h3>Developer speaks:</h3>
<p>This is a simple tool that lets you type in your native language on mobile phones. Currently only iOS devices are supported.</p>
<p>The tool is a simple wrapper around Wikimedia Foundation <a href="https://wikimediafoundation.org/wiki/Language_Engineering_team">Language Engineering</a>'s <a href="http://github.com/wikimedia/jquery.ime">jquery.ime</a> project. It simply adds a much easier to use (on a mobile device) language selector, and makes it available offline (on iOS devices).</p>
<h3>Quick links:</h3>
<ul>
<li>Source code: <a class="external-link" href="https://github.com/yuvipanda/indic-typing-tool">https://github.com/yuvipanda/indic-typing-tool</a></li>
<li>Test the app and report the bugs directly on <a class="external-link" href="https://github.com/yuvipanda/indic-typing-tool/issues">GitHub</a> or on <a class="external-link" href="http://goo.gl/sBiaF">Meta</a>.</li>
<li>Credits: <a class="external-link" href="http://yuvi.in/">YuviPanda</a>, <a class="external-link" href="https://meta.wikimedia.org/wiki/User:Psubhashish">Subhashish Panigrahi</a>, <a class="external-link" href="http://meta.wikimedia.org/wiki/User:Santhosh.thottingal">Santhosh Thottingal</a></li>
</ul>
<p>
For more details visit <a href='https://cis-india.org/openness/blog-old/typing-in-indic-languages-from-mobiles'>https://cis-india.org/openness/blog-old/typing-in-indic-languages-from-mobiles</a>
</p>
No publishersubhaAccess to KnowledgeWikimediaWikipediaOpennessInformation Technology2013-07-17T09:02:46ZBlog EntryInformation security policy on govt agenda
https://cis-india.org/news/live-mint-politics-surabhi-agarwal-nov-6-2012-information-security-policy-on-govt-agenda
<b>As an increasing quantity of sensitive information is transmitted through electronic channels, the government is considering putting in place an internal information security policy to reduce the risk of leaks and counter possible cyber attacks, said three government officials involved in discussions on the proposal.</b>
<hr />
<p>Surabhi Agarwal's article was <a class="external-link" href="http://www.livemint.com/Politics/TyFgDxthlTap5XwzA84gdO/Information-security-policy-on-govt-agenda.html">published</a> in LiveMint on November 6, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">The policy will include new guidelines on top of the standards set out by the Official Secrets Act, 1923, and mandate safeguards for each category of information on how it should be transmitted, stored and preserved. The categories are “top secret”, “secret”, “confidential”, “restricted” and “official use only”.</p>
<p style="text-align: justify; ">Experts argue that given the easy portability of such information and its vulnerability to hackers, the policy should have been in place much sooner.</p>
<p style="text-align: justify; ">The Official Secrets Act seeks to protect sensitive information including official communications, sketch plans, documents and other information pertaining to government functioning. Gaining wrongful access to information deemed to be an official secret or unauthorized use of such information are regarded as offences.</p>
<p style="text-align: justify; ">Given that the law was enacted almost a quarter century before independence, it had no provisions to deal with electronic transmission of such information made possible by technological advances in subsequent decades, said cyber expert <a href="http://www.livemint.com/Search/Link/Keyword/Pawan%20Duggal">Pawan Duggal</a>.</p>
<p style="text-align: justify; ">One of the three government officials cited above said the aim of the proposed internal information security policy is to protect classified information that’s transmitted electronically much as it is done currently in the paper format.</p>
<p style="text-align: justify; ">"As more information is getting transmitted in the electronic format, we have to put in place procedures, guidelines, policies and standards for protecting that information in the electronic format," the official said.</p>
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<p><iframe frameborder="0" height="315" src="http://www.youtube.com/embed/mbEt4qd0fnA" width="320"></iframe><br /><br />From the newsroom: Securing government information</p>
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<p style="text-align: justify; ">The discussions, being anchored by the home ministry, have been under way for some time and the policy should be finalized in the “next few months”, the official said.</p>
<p style="text-align: justify; ">A second official said the policy will lay down the dos and don’ts for government officers on how information has to be transmitted, stored and preserved in the electronic format. “In case of a breach, the investigation agencies can then look into whether the requisite safeguards were followed or not,” the official said. The proposal follows a rash of attacks on government computer systems that exposed their vulnerability to hackers.</p>
<p style="text-align: justify; ">Former minister of state for communications and information technology <a href="http://www.livemint.com/Search/Link/Keyword/Sachin%20Pilot">Sachin Pilot</a> told Parliament recently that between December 2011 and February 2012, a total of 112 government websites had been hacked.</p>
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<p style="text-align: justify; ">A third government official, who also didn’t want to be identified, said that every government official would have to follow standard procedures in electronic transmission of information.</p>
<p style="text-align: justify; ">“The moment one’s computer is connected to the Internet, it is part of a global network, so attackers in the cyber space know which information can be stolen from where if the necessary deterrents are not in place,” the official said.</p>
<p style="text-align: justify; ">Sensitive information such as tax matters and intellectual property issues are part of the information that’s transmitted electronically by government offices, which if leaked can have market implications as well as an impact on governance, experts said.</p>
<p style="text-align: justify; ">“The government leaks like a sieve,” said <a href="http://www.livemint.com/Search/Link/Keyword/B.G.%20Verghese">B.G. Verghese</a>, a visiting professor at New Delhi-based Centre for Policy Research.</p>
<p style="text-align: justify; ">“This is a step and they are trying to lay some ground rules to regulate a process that fits in with concepts of law, good governance, Constitution, privacy and prevents any wrongdoing,” Verghese said.</p>
<p style="text-align: justify; ">The proposed policy, when put in place, will be a step forward so long as it does not dilute the powers available to citizens under the Right to Information Act, said <a href="http://www.livemint.com/Search/Link/Keyword/Sunil%20Abraham">Sunil Abraham</a>, executive director of Bangalore-based research organization Centre for Internet and Society.</p>
<p style="text-align: justify; ">Currently there are several concerns centred on electronic transmission, including questions about who is responsible for information, especially its unauthorized use. “This could help establish an audit trail,” Abraham said.</p>
<p style="text-align: justify; ">The first government official quoted above stressed that although cyber security and information security cut across each other, the two concepts are different.</p>
<p style="text-align: justify; ">“Cyber (security) is basically about devices and networks, whereas information security is very particularly about the information which travels on the net,” this official said. Reinforced cyber security will be an additional benefit once the information security policy comes into force, he said.</p>
<p>
For more details visit <a href='https://cis-india.org/news/live-mint-politics-surabhi-agarwal-nov-6-2012-information-security-policy-on-govt-agenda'>https://cis-india.org/news/live-mint-politics-surabhi-agarwal-nov-6-2012-information-security-policy-on-govt-agenda</a>
</p>
No publisherpraskrishnaInternet GovernanceInformation Technology2012-11-08T06:18:28ZNews ItemOne. Zero.
https://cis-india.org/digital-natives/www-indianexpress-com-one-zero
<b>The digital world is the world of twos. All our complex interactions, emotional negotiations, business transactions, social communication and political subscriptions online can be reduced to a string of 1s and 0s, as machines create the networks for the human beings to speak. So sophisticated is this network of digital infrastructure that we forget how our languages of connection are constantly being transcribed in binary code, allowing for the information to be transmitted across the web. </b>
<hr />
<p style="text-align: justify;">Nishant Shah's article was <a class="external-link" href="http://www.indianexpress.com/news/one.-zero./1003149/0">published</a> in the Indian Express on September 16, 2012</p>
<hr />
<p style="text-align: justify;">Indeed, we have already reached a point where we don’t even need to be familiar with code to perform intimate functions with the machines that we live with, as they respond to us in human languages. While this human-machine duality has been resolved with the presence of intuitive and interactive interfaces that allow us to seamlessly connect to the person(s) at the other end of a digital connection, there is another binary that still remains at the centre of much discussion around all things digital.</p>
<p style="text-align: justify;">This is the duality of the Real and the Virtual. In geekspeak, this particular separation has been coded as a divide between RL (Real Life) and VR (Virtual Reality). This separation between the two is so naturalised that it has become a part of our everyday imagination where things that happen online are ‘out there’ and ‘an escape’ whereas things that are offline, are ‘real’ and ‘believable’. However, as digital technologies become pervasive and ubiquitous, these lines between RL and VR have blurred. Especially with new technologies of augmented reality and simulated layers like Google Goggles or even location-based services on your smartphone that help you navigate through the offline world, it is becoming difficult to clearly say what is online and what is offline.</p>
<p style="text-align: justify;">There are two questions that help demonstrate this blurring of boundaries very clearly. The first is an existential one, something that doesn’t crop up often in conversations, but suddenly haunts you on at 2 pm on an idle Thursday: Who are you, when you are online? A famous cartoon on the web had two dogs sitting on a connected computer, their paws on the mouse, and telling each other, ‘On the internet, nobody knows you are a dog’. But in the hyper-connected world that we live in, everybody knows exactly who we are, even as we ourselves are confused about where our bodies end and where our digital extensions and avatars begin. Things that we do in RL affect and shape the ways in which our avatars evolve on social networking sites. The interactions that our avatars have with other digital objects map back on our understanding of who we are and how we dress our bodies. Even when we are not connected, our avatars interact, constantly, not only with other avatars in the system, but also machines and artificial intelligence scripts, and robots and networks, masquerading as ourselves even outside our knowledge. We might be tagged, liked, shared, transmitted and morphed; we might be photoshopped, reduced to a tweet, condensed to a status message, embodied in an avatar on our favourite role playing game, or hovering as a signature to emails. These are all parts of us, but they are not just extensions of us. These are things that not only stand in for us but also shape the ways in which we understand ourselves and how we connect to the world.</p>
<p style="text-align: justify;">The second question crops up regularly in digitally mediated conversations. When your parents call you on the cell phone, or your friend messages you on the Blackberry, or your colleague pings you on Skype or your IRC buddies see you on a chat channel. As our modes of access have become mobile and devices of access have become portable, we can never really clearly answer the question, ‘Where are you right now?’. It is a question worth dwelling on. Where are you when you are walking down a street, using GPRS data on your cellphone, and a friend uses a Voice Over IP service like Whatsapp to ask you, ‘Where are you right now?’. Are you on the street? On your phone? On an application? Located somewhere on a server? Bits of data on a high-speed optic fibre, zooming across the ionosphere? Depending upon who is asking the question, you would be able to and in fact have to give a different answer about where you are when you are online.</p>
<p style="text-align: justify;">This blurred duality might be seen as confusing, taking away the assurance of our body and our geography from everyday practices. In fact, one of the reasons why the digital revolution has been so well received is because these technologies facilitate an almost seamless transfer of ideas, emotions and connections across the different realms of RL and VR, offering us new ways of thinking about being human, being social, and being connected. The strength of the digital is in this coupling together, of the hitherto irreconcilable realms of our life in messy and enchanting ways, giving us new opportunities to think about who we are and where we are in our quotidian lives.</p>
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For more details visit <a href='https://cis-india.org/digital-natives/www-indianexpress-com-one-zero'>https://cis-india.org/digital-natives/www-indianexpress-com-one-zero</a>
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No publishernishantResearchers at WorkInformation TechnologyDigital Natives2015-04-24T11:50:32ZBlog EntryConstitutional Analysis of the Information Technology (Intermediaries' Guidelines) Rules, 2011
https://cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules
<b>Ujwala Uppaluri provides a constitutional analysis of the Information Technology (Intermediaries' Guidelines) Rules notified in April 2011, and examines its compatibility with Articles 14, 19, 21 of the Constitution of India.</b>
<h2>Summary of Salient Provisions</h2>
<p style="text-align: justify; ">The <b>Information Technology (Intermediaries’ Guidelines) Rules, 2011</b> (‘<b>the Intermediary Guidelines</b>’)<b> </b> were notified in April, 2011 as rules enacted in exercise of powers conferred under section 87(2)(zg) read with Section 79 of the Information Technology Act, 2000 (as amended) (‘<b>the IT Act</b>’).</p>
<p style="text-align: justify; ">Rule 2 of the Intermediary Guidelines imports definitions for key terms from the IT Act. Notably, this includes an importation of Section 2 (w) by <b>Rule 2 (i)</b>, which defines “intermediary” broadly in the following terms:</p>
<p style="text-align: justify; ">“<i> “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;</i>”<i> </i></p>
<p style="text-align: justify; ">Rule 3 whose margin note indicates that it is limited to due diligence measures to be adhered to by intermediaries nevertheless also raises other liabilities by creating a regime to censor content, pre-publication as well as once content has been made publically available online.</p>
<p style="text-align: justify; "><b>Sub-rule (2) of Rule 3</b> inventories the classes of content which are deemed actionable, with only clause (i), clause (c), clause (e) and, arguably clause (h), of that rule addressing the national interest, public order and security restrictions cognizable under Article 19(2) of the Constitution. The remainder of grounds includes private claims such as content which “belongs to another person”<a href="#fn1" name="fr1">[1]</a>, or otherwise infringes proprietary rights<a href="#fn2" name="fr2">[2]</a>, or is “defamatory”<a href="#fn3" name="fr3">[3]</a>. Still others are terminologically indeterminate and purely subjective, with the terms “grossly harmful”, “harassing” and “disparaging” being examples.</p>
<p style="text-align: justify; ">This sub-rule also includes a number of redundancies. While there is reference to libelous as well as defamatory content in clause (b), it is well established that Indian law does not admit of the former concept, instead dissolving the common law distinction between the two to treat them alike.<a href="#fn4" name="fr4">[4]</a> There is also clause (e), which prohibits content which is all ready illegal for violating the provisions of an existing statute and the residuary phrasing of the clause (b)’s reference to content which is “otherwise unlawful in any manner whatever”.</p>
<p style="text-align: justify; ">The sub-rules immediately following the list in Rule 3(2) address the consequences of users publishing content listed in that rule:</p>
<p style="text-align: justify; "><b>Sub-rule (3) of rule 3</b> provides that intermediaries will not knowingly deal in any manner whatsoever, whether by hosting, publication, transmission or otherwise, with any content of the types that are listed in the previous clause.</p>
<p style="text-align: justify; "><b>Sub-rule (4) of rule 3</b> creates a complaints mechanism in respect of content incompatible with Rule 3 (2) by requiring intermediaries to disable access to offending content within 36 hours of obtaining knowledge themselves or on being brought to “actual knowledge” by an “affected person”. The Intermediaries Guidelines do nothing to clarify what would amount to “actual knowledge”, to indicate in unambiguous terms, which parties would have sufficient <i>locus</i> to bring complaints in order to be deemed an “affected person” for the purposes of these provisions or to suggest that there is a procedure or timeline for action by the intermediary, such that requirements such notice to the author of the content and time for the preparation of a defence by the author and/or the intermediary are accounted for. Rule 3 (4) also requires that all information which is taken down be preserved, along with “associated records” for a duration of atleast ninety days for investigative purposes.</p>
<p style="text-align: justify; "><b>Sub-rule (5) of rule 3 </b>mandates that intermediaries inform users that non-compliance with the Intermediary Guidelines, <i>inter alia</i>, is a ground for the exercise of their right to terminate access or usage rights and remove non-compliant content.</p>
<p style="text-align: justify; ">Finally, <b>sub-rule (11) of rule 3 </b>requires intermediaries to name Grievance Officers to receive complaints on any matters relating to the computer resources made available by the intermediary, including for non-compliance or harm in terms of Rule 3 (2). This officer is bound to respond to the complaint within one month from the date of receipt of the complaint.</p>
<p style="text-align: justify; ">In the result, the Intermediary Guidelines create a two-track system by which private censorship is legitimized online. In the first place, intermediaries can take down content on their own motion where they are of the opinion that the content falls under any of the grounds enumerated in Rule 3 (2) or, alternatively, do so in response to a complaint, in terms of Rule 3 (4).</p>
<p style="text-align: justify; ">In addition to the provisions relating to censorship, the Intermediary Guidelines also provide for information to be given over to government agencies making a request with lawful authority and in writing under <b>sub-rule (7) of rule 3</b>, for data protection measures in accordance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 notified under Section 43A of the IT Act to be adhered to (<b>sub-rule (8) of rule 3</b>) and for intermediaries to report and share information realting to cyber security with CERT-In (<b>sub-rule (9) of rule 3</b>).</p>
<h2>Areas of Infirmity</h2>
<p style="text-align: justify; ">It is doubtful whether the Intermediary Guidelines could pass constitutional muster, on several grounds:</p>
<h3>Compatibility with Article 19 (1) (a) and (2)</h3>
<p><i>(a) Applicability of Article 19 (2) to Rule 3 (2) Grounds</i></p>
<p style="text-align: justify; ">In <i>Romesh Thappar v. State of Madras</i><a href="#fn5" name="fr5">[5]</a> the Supreme Court held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to propogate and disseminate ideas. It also held that very narrow and stringent limits govern the permissibility of legislative abridgment of the right of free speech. Ordinarily, any abridgement of free speech by means of censorship must be compatible with one or more of the grounds provided for under Article 19 (2), and the Supreme Court held in <i>Express Newspapers (Private) Ltd. v. Union of India</i><a href="#fn6" name="fr6">[6]</a>that limitations on the exercise of the Article 19(1)(a) right which do not fall within Article 19(2) cannot be upheld.</p>
<p style="text-align: justify; ">Further, the right to free speech applies across all media, and the internet is no exception. In <i>Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal</i><a href="#fn7" name="fr7">[7]</a>, the Supreme Court reflected the understanding that where media are different, such that the treatment accorded to them must be different in accordance with that indicia of difference, it will treat them as such in order to uphold fundamental rights. More specifically, in <i>Ajay Goswami v. Union of India</i><a href="#fn8" name="fr8">[8]</a>, the Supreme Court opined (in <i>obiter</i>) that the internet, as a unique medium of expression, deserved a different standard of protection than other mediums that have preceded it.</p>
<p style="text-align: justify; ">Rule 3 (2) of the Intermediary Guidelines, which lists the grounds for censorship, is not complaint with Article 19 (2) for two reasons:</p>
<p style="text-align: justify; "><i>First</i>, many of the grounds mentioned have no constitutional basis whatsoever. Rule 3 (2) prohibits, <i>inter alia</i>, content which “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”, in addition to content which is simply illegal, and should be actionable <i>ex post</i> rather than prohibited <i>ex ante </i>(content infringing intellectual property under Rule 3 (2) (d), for example). Most of the terms employed are not legal standards, but merely subjective indicators of personal sensitivities, while still others though legal do not figure in Article 19 (2). Since the whole scheme of the Intermediary Guidelines is premised on these extra-constitutional grounds, they are, as a whole, subject to being to being struck down.</p>
<p style="text-align: justify; "><i>Second</i>, the restriction is unreasonable because instead of preserving rights online in accordance with <i>Ajay Goswami</i>, the Intermediary Guidelines unjustifiably abridge the right to speak and receive information on the internet. The Intermediary Guidelines overreach in their scope, by including as actionable content which is not itself punishable when communicated via any other medium. For example, disparaging speech, as long as it is not defamatory, is not criminalised in India, and cannot be because the Constitution does not allow for it. Similarly, content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.</p>
<p style="text-align: justify; "><i>(b) Nature of Censorship: Directness of Censorship and Legitimacy of Private and Prior Censorship</i></p>
<p style="text-align: justify; ">In judging whether a statute is constitutional, the effect that the statute will have on the fundamental rights of citizens must be examined. The Supreme Court held in <i>Bennett Coleman & Co. v. Union of India</i><a href="#fn9" name="fr9">[9]</a> that the test was to examine whether the <i>effect</i> of an impugned action was to abridge a fundamental right, notwithstanding its object.</p>
<p style="text-align: justify; ">Further, while it is true in light of the Supreme Court’s holdings in <i>Prakash Jha Productions v. Union of India</i><a href="#fn10" name="fr10">[10]</a><i> </i>that pre-censorship is permissible within the Indian constitutional scheme, this permissibility is qualified. Prior censorship may be undertaken only within closely regulated circumstances, such as under the grounds in the Cinematograph Act, 1952, and even then, only by an appropriately empowered governmental entity.</p>
<p style="text-align: justify; ">The Intermediary Guidelines create mechanisms for the abridgement of the freedom of speech which amount to indirect and unjustifiable prior censorship, contrary to Article 19 (2):</p>
<p style="text-align: justify; "><i>Firstly</i>, while the state does not itself censor under these rules, it has empowered private, commercial entities to do so <i>vide </i>the Intermediary Guidelines. These rules thus transfer the executive power of censorship to private intermediaries. This amounts to an indirect form of censorship for the purposes of the <i>Bennett Coleman </i>test and has the result of increased censorship on the Internet because the state granted legislative sanction to such a system, although it does not censor by itself or through a state agency. The Intermediary Guidelines, and specifically Rule 3 (4) read with Rule 3 (2), place a burden on intermediaries to decide on the lawfulness of content as a pre-condition for their statutory exemption from liability. An intermediary, on receiving a complaint, to ensure that it continues to receive the protection offered by Section 79 of the IT Act, will be forced to disable access to the content posted by a user. Thus, the direct effect of the rules will be strict censoring of content posted on-line by users. The rules will have a direct effect on the fundamental right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution unreasonable restrictions on fundamental rights, that are imposed by a statute or executive orders are liable to be struck down as unconstitutional.</p>
<p style="text-align: justify; "><i>Secondly</i>,<i> </i>while prior censorship is permissible only in a strictly limited range of cases, the Intermediary Guidelines allow for an unrestrained and unlimited degree of prior and arguably invisible censorship. Rule 3 of the Intermediary Guidelines clearly envisages such a system of prior censorship. Whereas the consequences for passively displaying content incompatible with Rule 3(2) would be a complete waiver and dissolution of the Section 79 immunity that would ordinary accrue to neutral intermediaries, intermediaries or complainants have no obligation in respect of ensuring the tenability of complaints and the grounds cited in them. The Intermediary Guidelines do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request. Further, the inclusion of a residuary clause in Rule 3 (2) (b) allowing pre-censorship of content which is “unlawful in any manner whatever”, also indicates that the Intermediary Guidelines allow the use of the exceptional instrument of not only allows private censorship, but that they actively encourage it as the default rule rather than the exception without any justification whatsoever.</p>
<p style="text-align: justify; "><i>(c)</i><i> Vagueness and Overbreadth: Possibility for Over-Censorship</i></p>
<p style="text-align: justify; ">Vagueness in the terms of a restriction to free speech is grounds for it to be struck down, even where the ground is apparently broadly constitutional. The Supreme Court held in <i>Sakal Papers (P) Ltd. v. Union of India</i><a href="#fn11" name="fr11">[11]</a> that the Constitution must be interpreted in order to enable citizens to enjoy their rights to fullest measure, subject to limited permissible restrictions. In <i>Romesh Thapar</i><a href="#fn12" name="fr12">[12]</a><i> </i>the Supreme Court also held that a legislation authorizing the imposition of restrictions on free speech in language wide enough to cover restrictions which are permissible as well as extra-constitutional will be held to be wholly unconstitutional.</p>
<p style="text-align: justify; ">The grounds listed in Rule 3 (2) of the Intermediary Guidelines are highly subjective, private interest grounds which are not defined either in the Intermediary Guidelines or in the IT Act itself. These include terms such as “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”. Consequently, the Intermediary Guidelines constitute unreasonable restrictions on freedom of speech, with Rule 3 (2) containing vague terms which, in addition to falling beyond the purview of Article 19(2), cover only private and subjective grounds, incapable of objective definition or application.</p>
<p style="text-align: justify; ">Further, the Intermediary Guidelines do no precisely define the term “affected person” employed in Rule 3 (4). Thus, complaints from <i>any</i> party, including those uninvolved or unaffected by content must all be complied with, without qualification.</p>
<p style="text-align: justify; ">In the result, the vagueness of the grounds in Rule 3 (2) and the diffuse terminology of “affected person” leaves Rule 3 (2) grounds serving as placeholders for whatever claim a complainant, having no <i>locus</i> whatsoever, chooses to bring, without regard for whether it is constitutional or even legal. Online content is thus treated as presumptively illegal and take down of content as the presumptive course of action. Additionally, there is a further consequence to the vagueness and overbreadth of the terms in Rule 3 (2): because of the indeterminacy in the grounds listed thereunder, intermediaries tasked with enforcing the law will tend to err on the side of caution and censor, rather than keep speech accessible online. There is empirical evidence to show that cautious intermediaries will over-censor and over comply with complaints in order to avoid liability under Section 79 of the IT Act.<a href="#fn13" name="fr13">[13]</a></p>
<p style="text-align: justify; "><i>(d) Contravention of International Human Rights Norms & Horizontal Application</i></p>
<p style="text-align: justify; ">The censorship regime constructed by the Intermediary Guidelines is non-compliant not only with domestic requirements under the Constitution, but also with India’s obligations under international human rights law under Articles 19 of the Universal Declaration of Human Rights (‘<b>UDHR</b>’) and the International Covenant on Civil and Political Rights (‘<b>ICCPR</b>’), under the UN Human Rights Council’s Report of the Special Rapporteur Frank La Rue on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2011)<a href="#fn14" name="fr14">[14]</a>(‘<b>Special Rapporteur’s Report</b>’) and the UN Human Rights Council Resolution on Internet Freedom (2012)<a href="#fn15" name="fr15">[15]</a> (‘<b>UN Internet Freedom Resolution</b>’).</p>
<p style="text-align: justify; ">While the ICCPR as well as the UDHR guarantee a right to free speech “through any…media of…choice” in their respective Articles 19, the Special Rapporteur’s Report and the UN Internet Freedom Resolution recognize the need for special efforts to be undertaken by states to preserve free speech on the internet. The former document justifies censorship only in the most limited circumstances and makes specific mention of the commercial interests that may be implicated in delivering free speech.</p>
<p style="text-align: justify; ">Through the Intermediary Guidelines, the Indian state creates a system by which the right to free speech can be systematically violated by private and undisclosed entities and even empowers them to do so, without imposing any constitutional safeguards whatsoever. Thus, egregious violations of the right to free speech and expression are a direct and inevitable consequence of the Intermediary Guidelines. To the degree that the Indian Supreme Court has enagaged with free speech online, it appears from <i>Ajay Goswami </i>that it would apply standards consistent with international law obligations to rectify the Intermediary Guidelines to meet them.</p>
<p style="text-align: justify; ">Further, the Indian Supreme Court has held, where necessary for their true enjoyement, that fundamental rights may involve a degree of horizontality in their application. In other words, private action could be guided by fundamental rights, such as in <i>Vishaka v. State of Rajasthan</i><a href="#fn16" name="fr16">[16]</a> which evidences the Supreme Court’s willingness to hold that private entities could be held to constitutional and international human rights law standards where that is necessary for the real rather than illusory enjoyment of fundamental rights.</p>
<p style="text-align: justify; ">As a result, the Intermediary Guidelines are also liable to be struck down for their failure to recognize and account for the role of private interests while empowering them with the right to curtail fundamental rights.</p>
<h3>Compatibility with Article 21</h3>
<p style="text-align: justify; "><i> (a) Adverse Impact on Privacy (and consequently on Free Speech)</i></p>
<p style="text-align: justify; ">A constitutional right to privacy has been read into Article 21’s guarantee of life and personal liberty in several instances by the Supreme Court. The State is consequently under an obligation to refrain from interfering, whether by itself or through any of its agencies, with private lives and spaces. By the same coin, laws which encourage unwarranted state or societal intrusions into private life will contravene the victim’s Article 21 right. In <i>People’s Union for Civil Liberties v. Union of India</i>,<a href="#fn17" name="fr17">[17]</a> the Supreme Court held that Article 21 privacy protected individuals against the interception and monitoring of private communications by the state in the absence of sufficient safeguards.</p>
<p style="text-align: justify; ">Also, an individual’s privacy interests in information relating to him are not dissolved merely because information is not confidential or because another entity has some property interest in that information. In <i>District Registrar and Collector, Hyderabad v. Canara Bank</i><a href="#fn18" name="fr18">[18]</a>, the Supreme Court recognized that even where the search of private documents was concerned, Article 21 protected “persons not places”, <i>i.e.</i>, that the privacy interest did not vest in property or communications but, rather, in the rightsholder himself.</p>
<p style="text-align: justify; ">The Intermediary Guidelines include no limits whatsoever on the scope of disclosures that government agencies can demand or expect to retain, in contravention of Article 21.</p>
<p style="text-align: justify; ">Specifically, Rule 3 (4), which requires data retention for a statutory minimum of ninety days of content taken down as well as “associated records”, violates users’ rights to privacy. In addition to the financial and technical burden (in storing and securing data) imposed by the Intermediary Guidelines in requiring potentially unlimited data retention by intermediaries, there is no clarity as to what or how much information precisely must be held in the form of “associated records”. Instead of subjecting data to limited and closely qualified retention by private intermediaries, and thus limiting the impairment of the fundamental right to privacy to the minimum possible degree necessary, Rule 3 (4) imposes blanket data retention requirements.</p>
<p style="text-align: justify; ">Further, Rule 3 (7), which makes any information held by an intermediary subject to being disclosed to the government upon request is also inconsistent with the requirement that the right to life and personal liberty be violated only in accordance with fair, just and reasonable procedures. Notwithstanding that Rule 3 (7) is consistent with Section 67C of the IT Act and specific rules framed in regard to the surveillance of communications, it is also unconstitutional because it fails to include any safeguards whatsoever in the process of surveillance. These would include, as minimum obligatory conditions in light of <i>PUCL</i>, the requirement that the surveilled be informed of the surveillance and be allowed to challenge its propriety <i>ex ante </i>or its procedural regularity <i>ex post</i>, or atleast administrative or judicial review <i>ex parte</i>.</p>
<p style="text-align: justify; "><i>(b) Non-compliance with Due Process and Natural Justice Requirements</i></p>
<p style="text-align: justify; ">Article 21 explicitly includes a due process guarantee. This means that the right to life and personal liberty, and its constituent rights, can be interfered with only through constitutionally consistent procedures. A cornerstone of fair procedure, compliant with the rule of law, is the notion of natural justice. Consequently, Article 21 contemplates that the procedure by which fundamental rights are curtailed will satisfy natural justice principles.</p>
<p style="text-align: justify; ">In <i>Maneka Gandhi v. Union of India</i>,<a href="#fn19" name="fr19">[19]</a> the Supreme Court held that natural justice was not a rigid or mechanical term, but one that referred to those practices and principles that would ensure<i> </i>“fair play in action”<i>.</i> In addition the Court held that all deviations<i> </i>from natural justice requirements must be supported by a sufficiently justificatory “compelling state interest”. Specifically, in <i>Union</i> <i>of</i> <i>India</i> <i>v.</i> <i>Tulsiram</i> <i>Patel</i><a href="#fn20" name="fr20">[20]</a>, the Supreme Court held that the principle of natural justice required the satisfaction of the <i>audi alteram partem</i> rule, which consisted of several requirements, including the requirement that a person against whose detriment an action is taken be informed of the case against him and be afforded a full and fair opportunity to respond. Finally, in <i>M.C. Mehta v. Union of India</i><a href="#fn21" name="fr21">[21]</a> the Supreme Court held that the absence of due notice and a reasonable opportunity to respond would vitiate any holding to the rightsholder’s detriment. <i> </i></p>
<p style="text-align: justify; ">The Intermediary Guidelines fail to satisfy the requirement of natural justice, and particularly the rights to prior notice as well as that of the affected party to a hearing:</p>
<p style="text-align: justify; ">By requiring that content be taken down swiftly (within 36 hours of complaint, under Rule 3 (4)) and by failing to require the author of the content to be informed of the complaint and its contents, the Intermediary Guidelines violate the author’s right to notice and consequently affect his/her right to prepare and present a defence at all. In practice, authors of content which is the subject of a complaint may never know of the complaint or even of the fact of the take down, given the absence of any mechanism under the rules by which they could have been informed. In a scheme for silent, invisible censorship, authors are never afforded an opportunity to challenge the take down, just as they have no opportunity to rebut the initial complaint. In addition, at any event, it is the intermediary, a biased private entity whose immunity under Section 79 of the IT Act could be called into question based on the outcome, who must make the determination as to the legality of the content.</p>
<p style="text-align: justify; ">While there is nothing to prohibit intermediaries from informing authors on the receipt of a complaint, the limited time within which action must be taken means that such intermediaries would risk liability for non-compliance with the compliant and a waiver of their Section 79 immunity, where the content is not taken down, whether because communication does not occur within the 36 hour timeframe or because an author elects to resist takedown. By creating a system in which takedowns necessarily occur in response to complaints, irrespective of their legitimacy, the Intermediary Guidelines presume and rule in favour of the complainants and in favour of (private) censorship instead of presuming in favour of the preservation of the fundamental right to free speech, or even maintaining neutrality between the two ends.</p>
<h3 style="text-align: justify; ">Compatibility with Article 14</h3>
<h2></h2>
<h2></h2>
<p style="text-align: justify; ">The guarantee of “equal protection of laws” requires equality of treatment of persons who are similarly situated, without discrimination <i>inter se</i>. It is a corollary that that persons differently situated cannot be treated alike. <i>In</i><i> E.</i><i> P.</i><i> Royappa</i><i> v. State</i><i> of</i><i> Tamil</i><i> Nadu</i><a href="#fn22" name="fr22">[22]</a><i> the</i><i> Supreme</i><i> Court</i><i> held</i><i> that arbitrary or unfair actions necessarily run counter to Article 14. The Supreme Court explained in M/S</i><i> Sharma</i><i> Transport</i><i> v.</i><i> Government</i><i> of</i><i> Andhra Pradesh</i><a href="#fn23" name="fr23">[23]</a><i> that</i> arbitrary actions are actions which are unreasonable, non-rational done capriciously or without adequate determining principle, reason or in accordance with due judgment. In addition, Article 14 also requires that state action be reasonable. I<i>n</i><i> Mahesh</i><i> Chandra</i><i> v.</i><i> Regional</i><i> Manager,</i><i> U.P.</i><i> Financial</i><i> Corporation</i><a href="#fn24" name="fr24">[24]</a><i> it was held that discretion must be exercised objectively, and that what is not fair or just will be unreasonable, and subject to being struck down as unconstitutional.</i>Additionally, Article 14 also requires that the basis upon which classifications are undertaken for the purposes of same or differential treatment be reasoned and fair. The Supreme Court held in <i>Sube Singh v. State of Haryana</i><a href="#fn25" name="fr25">[25]</a> that the state’s failure to support a classification on the touchstone of reasonability, with the existence of intelligible differentia or the rational basis of achieving a stated object, will be ground for it to be held arbitrary and unreasonable. Finally, all state action having the potential to curtail Article 14 must be reasonable, justifiable, undertaken in <i>exercise of </i>constitutional powers and be informed and guided by public interest. The Supreme Court held to this effect i<i>n</i><i> Kasturi</i><i> Lal</i><i> Lakshmi</i><i> Reddy</i><i> v.</i><i> State</i><i> of</i><i> Jammu</i><i> and</i><i> Kashmir</i><a href="#fn26" name="fr26">[26]</a>.</p>
<p style="text-align: justify; ">The Intermediary Guidelines contravene Article 14 on the following grounds:</p>
<p style="text-align: justify; "><i>First</i>, intermediaries who are not similarly situated are treated alike. Rule 2 (i) imports the IT Act’s omnibus definition of the term “intermediary”, such that all classes of intermediaries, ranging from intermediaries which control the architecture of the internet and the hardware which enables it to run (such as ISPs and DNS providers) to intermediaries that enable content creation, sharing and communications online (such as email clients, content aggregators, social networking services and content hosts), are empowered to censor and are required to comply with complaints regarding content. Intermediaries, for the purposes of the IT Act and the Intermediary Guidelines, thus refer to a large and disparate group of providers of services enabling access to as well as use of the Internet. Reasoned state action must recognize that their liabilities must necessarily vary with the specific type of service that each provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with Article 14.</p>
<p style="text-align: justify; "><i>Second</i>, the Intermediary Guidelines treat the same or similar content across media differently, without apparent justification. More specifically, users of the internet are unfairly discriminated against. All of the Rule 3 (2) grounds which are not explicitly mentioned in Article 19 (2) in particular reflect this discriminatory, unreasoned treatment. To illustrate, the prohibition under Rule 3 (2) on the display of any content online when it relates to gambling treats speakers using the internet differently from speakers communicating this content via any other medium of communication. Given that nothing in the nature of the medium itself attaches a new or different character to the content, criminality or liability must attach to such content in a medium-neutral fashion. So, while content qualifying as seditious under law remains so across media, whether it be print, audio or video broadcast or online, the same as not the case for communications on the internet. In other words, while gambling itself may be prohibited under law, speech or expression involving it is nowhere prohibited under law. While such content is legal and protected across print and broadcasting media, the same content is liable to take down online. This would amount to discriminatory treatment of equal content <i>merely</i> because speakers choose the internet, and the speech occurred online.</p>
<p style="text-align: justify; "><i>Third</i>, the Intermediary Guidelines accord unrestrained discretion in the curtailment of fundamental rights to <i>private </i>functionaries, without any guidance whatsoever. This should have been the sole reserve of the state. In addition to the lack of guidance, the breadth of the grounds for censorship in Rule 3 (2), some of which are<i> themselves incapable of precise and non-subjective application</i>, means that private censorship can occur to an arguably unlimited degree. Expecting compliance with such terms, and attaching liability (for intermediaries) or a curtailment of fundamental rights (for generators of content), without the provision of a right to challenge or even, more fundamentally, be informed is both unreasonable and arbitrary.</p>
<p style="text-align: justify; ">Similarly, Rules 3 (4) and 3 (5) empower intermediaries to take down content without providing any realistic opportunity of hearing to its author. Intermediaries are accorded an adjudicatory role to the intermediary in deciding questions whether or not authors can access their fundamental right to free speech in the process. This role is ordinarily reserved for competent courts or administrative authorities, which are subject to constitutional checks and balances and a general obligation to preserve and promote fundamental rights. Assigning such functions to a self-interested private entity without any accountability whatsoever is both unreasonable as well as arbitrary.</p>
<p style="text-align: justify; "><i>Finally</i>, the Intermediary Guidelines fail to account for the public interest because they directly restrict the public’s freedom of speech and expression, without any justifiable reason, and privilege the personal and not necessarily constitutional sensitivities of private complainants instead. Rule 3(3) in effect vests an extraordinary power of censorship in intermediaries, entities which operate on the basis of private interest and outside the limits of administrative or even the most basic human rights control. Safeguards must apply to power-bearers to the degree and in the manner required in relation to the nature of the power, rather than its holder, if fundamental rights are to be legislatively preserved. While the Supreme Court in <i>A.K. Kraipak v. Union of India</i><a href="#_ftn27">[27]</a> extended the applicability of natural justice principles from judicial bodies alone and quasi-judicial bodies to administrative bodies as well, the applicability of such principles still remains limited to state entities. In other words, there is an acknowledged difficulty in applying public law standards to private, commercial entities.</p>
<p style="text-align: justify; ">The Intermediary Guidelines thus vest the right to abridge core fundamental rights (under Articles 14, 19 and 21) in private delegates operating outside public law controls that constrain the scope in which the power can be exercised and ensure that citizen interest can be preserved. In the alternative, they also failed to provide for other safeguards to prevent abuse to the detriment of fundamental rights private delegates of governmental power, even as they granted such powers in unlimited terms. As a result, the Intermediary Guidelines evidence thoughtless, arbitrary, unreasoned and unjust state action.</p>
<h3 style="text-align: justify; ">Vires vis á vis the Parent Act</h3>
<p style="text-align: justify; ">While it is permissible within the constitutional scheme for legislative functions of the Parliament to be delegated to a degree, they may be struck down on several grounds. In general, per <i>Indian</i><i> </i><i>Express</i><i> </i><i>Newspapers</i><i> </i><i>(Bombay)</i><i> </i><i>Pvt.</i><i> </i><i>Ltd.</i><i> </i><i>v.</i><i> </i><i>Union</i><i> </i><i>of</i><i> </i><i>India</i><a href="#_ftn28">,[28]</a> subordinate legislation can be challenged not only on any of grounds on which the parent legislation is vulnerable to challenge, but also on the grounds that it does not conform to parent statute, that it is contrary to other statutes or that it is unreasonable, in the sense that it is manifestly arbitrary. Notably, the Court also held here that subordinate legislation is liable to being struck down where it fails to conform to constitutional requirements, or, specifically that “it offends Article 14 or Article 19 (1) (a) of the Constitution”.</p>
<p style="text-align: justify; ">It is a well-accepted proposition that delegated legislation which travels outside the scope of its enabling law will not stand as valid. It was held in <i>Agricultural</i><i> </i><i>Market</i><i> </i><i>Committee</i><i> </i><i>v.</i><i> </i><i>Shalimar</i><i> </i><i>Chemical</i><i> </i><i>Works</i><i> </i><i>Ltd </i><a href="#_ftn29">[29]</a> that a delegate cannot alter the scope of the act under which it has been it has been empowered to make rules, or even of a provision or principle included there under. In <i>State</i><i> </i><i>of</i><i> </i><i>Karnataka</i><i> v</i><i>.</i><i> </i><i>Ganesh</i><i> </i><i>Kamath</i><a href="#_ftn30">[30]</a> the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”. Similarly, in <i>KSEB</i><i> </i><i>v.</i><i> </i><i>Indian</i><i> </i><i>Aluminium</i><i> </i><i>Company</i><a href="#_ftn31">[31]</a>, it held that“subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute”.</p>
<p style="text-align: justify; ">The Intermediary Guidelines were enacted under Sections 79(2) and 87(2)(zg) of the Information Technology Act, 2000 (as amended). While the latter provision explicitly grants the Central Government rule-making powers by which it can lay out guidelines to be followed by intermediaries in order to comply with Section 79(2), it appears that the rules in their current form appear to have been drafted based on a misunderstanding of Section 79.</p>
<p style="text-align: justify; ">Section 79(2) itself merely clarifies the circumstances in which intermediaries can claim that intermediaries are not liable for content where they do not initiate the transmission of potentially actionable content or select its recipient, modify its contents and observe all necessary “due diligence” requirements under the IT Act and rules.</p>
<p style="text-align: justify; ">The extent to which the Intermediary Guidelines alter the intent and scope of section 79 (or other provisions of the IT Act, in some cases) clearly leaves them <i>ultra vires</i> the parent statute. The specific instances of deviation by the Intermediary Guidelines from the IT Act are listed below:</p>
<p style="text-align: justify; "><i>First</i>, Rule 3 (3) is ultra vires section 79 of the IT Act. Where this rule expressly prohibits the hosting, publication or initiation of transmission of content described in Rule 3 (2), section 79 does not intend any prohibition. All that it does is to waive the immunity otherwise accorded to intermediaries where the conditions specified are not satisfied. In other words, the section is optional, rather than mandatory and punitive: whether or not an intermediary can claim immunity will depend on whether it chooses to comply with section 79 (2).</p>
<p style="text-align: justify; "><i>Second</i>, Rule 3 (4) requires intermediaries to take steps to disable access to within 36 hours of receiving a complaint in relation thereto. This is inconsistent with section 69B of the IT Act, which lays down in detail, the procedure to be followed to disable access to information. Since section 69B is statutory law, Rule 3 (4), being mere delegated legislation, will have to yield in its favour.</p>
<p style="text-align: justify; "><i>Third</i>, Rule 3 (7) is <i>ultra</i><i> </i><i>vires</i> sections 69 and 69B, and falls outside the scope of section 79 (2). Rule 3 (7) provides that intermediaries must comply with requests for information or assistance when required to do so by appropriate authorities. This provision has no relation to the contents of section 79, which regulates intermediaries’ liability for content, and under which these rules were notified. In addition, rules have already been issued under the properly relevant sections, namely sections 69 and 69B, to provide a procedure to be followed by the government for the interception, monitoring, and decryption of information held by intermediaries. Rule 3 (7) is not consistent with the rules under sections 69 and 69B, as it removes all safeguards that those rules included. Under the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption) Rules 2009, for instance, permission must be obtained from the competent authority before an intermediary can be directed to provide access to its records and facilities while Rule 3 (7) makes intermediaries answerable to virtually any request from any government agency.</p>
<p align="left"><b> </b></p>
<hr align="left" size="1" width="33%" />
<p>[<a href="#fr1" name="fn1">1</a>]. Rule 3 (2) (a).</p>
<p>[<a href="#fr2" name="fn2">2</a>]. Rule 3 (2) (d).</p>
<p>[<a href="#fr3" name="fn3">3</a>]. Rule 3 (2) (b)</p>
<p>[<a href="#fr4" name="fn4">4</a>]. Section 499, Indian Penal Code, 1860 (“Defamation” is defined to include both written and spoken words).</p>
<p>[<a href="#fr5" name="fn5">5</a>]. AIR 1950 SC 124.</p>
<p>[<a href="#fr6" name="fn6">6</a>]. AIR 1958 SC 578.</p>
<p>[<a href="#fr7" name="fn7">7</a>]. AIR 1995 SC 1236.</p>
<p>[<a href="#fr8" name="fn8">8</a>].(2007) 1 SCC 170.</p>
<p>[<a href="#fr9" name="fn9">9</a>]. AIR 1973 SC 106.</p>
<p>[<a href="#fr10" name="fn10">10</a>]. (2011) 8 SCC 372.</p>
<p>[<a href="#fr11" name="fn11">11</a>]. AIR 1962 SC 305, ¶31.</p>
<p>[<a href="#fr12" name="fn12">12</a>]. <i>Supra, </i>n.5.</p>
<p>[<a href="#fr13" name="fn13">13</a>]. Centre for Internet & Society, <i>Intermediary Liability in India</i><i>: Chilling Effects on Free Expression on the Internet 2011</i> <i>available at</i> cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet/intermediary-liability-in-india.pdf.</p>
<p>[<a href="#fr14" name="fn14">14</a>]. UN Document no. A/HRC/17/27.</p>
<p>[<a href="#fr15" name="fn15">15</a>]. UN Document no. A/HRC/20/.13.</p>
<p>[<a href="#fr16" name="fn16">16</a>]. AIR 1997 SC 3011.</p>
<p>[<a href="#fr17" name="fn17">17</a>]. AIR 1997 SC 568.</p>
<p>[<a href="#fr18" name="fn18">18</a>]. (2005) 1 SCC 496.</p>
<p>[<a href="#fr19" name="fn19">19</a>]. 1978 SCR (2) 621.</p>
<p>[<a href="#fr20" name="fn20">20</a>]. AIR 1985 SC 1416.</p>
<p>[<a href="#fr21" name="fn21">21</a>]. AIR 1999 SC 2583.</p>
<p>[<a href="#fr22" name="fn22">22</a>]. AIR 1974 SC 555.</p>
<p>[<a href="#fr23" name="fn23">23</a>]. AIR 2002 SC<i> </i>322<i>.</i></p>
<p>[<a href="#fr24" name="fn24">24</a>]. AIR 1993 SC 935<i>.</i></p>
<p>[<a href="#fr25" name="fn25">25</a>]. (2001) 7 SCC 545, 548, ¶10.</p>
<p>[<a href="#fr26" name="fn26">26</a>].1980 AIR 1992.</p>
<p>[<a href="#fr27" name="fn27">27</a>]. <i>AIR</i> 1970 SC 150.</p>
<p>[<a href="#fr28" name="fn28">28</a>]. AIR 1986 SC 515.</p>
<p>[<a href="#fr29" name="fn29">29</a>]. AIR 1997 SC 2502.</p>
<p>[<a href="#fr30" name="fn30">30</a>]. (1983) 2 SCC 40.</p>
<p>[<a href="#fr35" name="fn31">31</a>]. AIR 1976 SC 1031.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules'>https://cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules</a>
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No publisherujwalaInternet GovernanceIntermediary LiabilityInformation Technology2012-10-31T08:44:41ZBlog Entry