Centre for Internet and Society

Submission on India's Draft Comments on Proposed Changes to the ITU's ITRs

pranesh — 2012-12-07T04:15:56Z

Given below are the responses from the representatives of civil society in India (The Society for Knowledge Commons, Centre for Internet & Society, The Delhi Science Forum, Free Software Movement of India, Internet Democracy Project and Media for Change) to the Government of India's proposals for the upcoming WCIT meeting, in December 2012, in Dubai.

Our detailed comments on India's draft proposals can be found here. Also read the final version of Indian Government's submission to ITU on November 3, 2012.

Background

We believe that, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

Some of the proposed changes to the ITR's could have a significant negative impact on the openness of the Internet.

In addition, the processes related to the WCIT lack openness and transparency: the WCIT / ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents, contrary to established principles of Internet governance as laid down in the Tunis Agenda and as supported by the Indian government at several national and international fora. The WCIT process needs to be improved both at the domestic and global level. We urge the Indian government to support a more open process in the future, with respect to deliberations that will have a significant impact on the people.

We recognise that concerns regarding cyber-security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, we believe that as a number of parallel processes are working on these specific issues, these need not be brought under the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to the infrastructure layer that has traditionally been the area of its focus and not the content or the application layer of the Internet. Any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora.

We note that the proposal ARB/7/24 defines an "operating agency" as "any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service" and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. We call on the Indian government to ensure that the term "operating agency" is defined in a narrower or more restrictive manner and only used in exceptional cases. Normally, the obligations of member states should be with respect to "recognised operating agencies" and not omnibus all "operating agencies".

Follow-up

We would like to note that we have never officially received this document directly from the Indian government. In view of the support the Indian government continually espouses for multi-stakeholder Internet governance, this is a matter of deep regret.

We are aware that the official closing date for proposals is early November. However, we also know that several governments intend to submit proposals right upto the beginning of the WCIT meeting. In addition, several governments have included civil society representatives on their official delegation.

We therefore call upon the Department of Telecommunications to organise an open consultation with civil society representatives, to discuss both India's proposals and the comments of various civil society representatives on them, in greater depth, as part of DoT’s preparation for the WCIT meeting and in line with India's espoused commitment to multi-stakeholderism. We look forward to discussing our inputs with the Government to make the decision making process on governance more participatory and inclusive.

For more details visit https://cis-india.org/internet-governance/blog/submission-on-indias-draft-comments-on-proposed-changes-to-itus-itrs

Statement of Civil Society Members and Groups Participating in the "Best Bits" pre-IGF meeting at Baku in 2012

pranesh — 2012-12-07T08:06:25Z

The Centre for Internet & Society was one of the signatories for this submission made to the ITU on November 16, 2012.

Read the statement of civil society members and groups participating in the “Best Bits” pre-IGF meeting at Baku in 2012

We thank the Secretariat of the ITU for making the opportunity to submit our views.

Nevertheless, the process of the revision of the International Telecommunication Regulations (ITRs) has not been sufficiently inclusive and transparent, despite some recent efforts to facilitate public participation. Fundamental to the framing of public policy must be the pursuit of the public interest and fundamental human rights, and we urge Member States to uphold and protect these values.

We as civil society organizations wish to engage with the World Conference on International Telecommunication (WCIT) process in this spirit. Member States, in most cases, have not held open, broad-based, public consultations in the lead up to the WCIT, nor have they indicated such a process for the WCIT itself.

In order to address this deficiency, and at a minimum, we would urge:

All Member States and regional groups to make their proposals available to the public in sufficient time to allow for meaningfulpublic participation;
All delegates to support proposals to open sessions of the WCIT meeting to the public;
The ITU Secretariat to increase transparency of the WCIT including live webcast with the video, audio, and text transcripts, as far as possible, to enable participation by all, including persons with disabilities;
The ITU Secretariat, Member States, and regional groups to make as much documentation publicly available as possible on the ITU's website, so that civil society can provide substantive input on proposals as they are made available;
Member States to encourage and facilitate civil society participation in their national delegations;
The ITU to create spaces during the WCIT for civil society to express their views, as was done during the WSIS process.

Given the uncertainty about the nature of final proposals that will be presented, we urge delegates that the following criteria be applied to any proposed revisions of the ITRs.

That any proposed revisions are confined to the traditional scope of the ITRs, where international regulation is required around technical issues is limited to telecommunications networks and interoperability standards.
There should be no revisions to the ITRs that involve regulation of the Internet Protocol and the layers above.
There should be no revisions that could have a negative impact on affordable access to the Internet or the public's rights to privacy and freedom of expression.

More generally we call upon the ITU to promote principles of net neutrality, open standards, affordable access and universal service, and effective competition.

Signatories:

Access (Global)
Association for Progressive Communications (Global)
Bangladesh NGOs Network for Radio and Communication (Bangladesh)
Bytes for All (Pakistan)
Center for Democracy and Technology (United States of America)
Centre for Community Informatics Research (Canada)
Centre for Internet and Society (India)
Collaboration on International ICT Policy for East and Southern Africa (Eastern and Southern Africa)
Consumer Council of Fiji (Fiji)
Consumers International (Global)
Dynamic Coalition on Internet Rights and Principles (IRP) (Global)
Electronic Frontier Finland (Finland)
Imagining the Internet Center (United States of America)
Instituto Nupef (Brazil)
Internet Democracy Project (India)
Internet Research Project (Pakistan)
Global Partners and Associates (United Kingdom)
GobernanzadeInternet.co (Colombia)
ICT Watch Indonesia (Indonesia)
Instituto Brasileiro de Defesa do Consumidor / Brazilian Institute for
Consumer Defense (Brazil)
InternetNZ (New Zealand)
IT for Change (India)
Media Education Center (Armenia)
ONG Derechos Digitales (Chile)
OpenMedia (Canada)
Public Knowledge (United States of America)
Thai Netizen Network (Thailand)
Ginger Paque (Venezuala)
Nnenna Nwakanma (Côte d'Ivoire)
Sonigitu Ekpe (Nigeria)
Wolfgang Kleinwächter (Denmark)

For more details visit https://cis-india.org/internet-governance/blog/statement-of-civil-society-members-and-groups-at-best-bits-pre-igf-meeting

Submission by Indian Civil Society Organisations on Proposals for the Future ITRs and Related Processes

pranesh — 2012-12-07T08:00:19Z

The Centre for Internet & Society was one of the signatories of this submission which was sent in November 2012, in response to the International Telecommunication Union's call for public comments in relation to the revision of International Telecommunication Regulations that are to take place at the ITU's World Conference on International Telecommunications in Dubai from December 3 to 14, 2012.

We, the undersigned civil society organisations from India, respectfully acknowledge the important role that the ITU has played in the spread of telecommunications around the world. However, we are concerned about the lack of transparency and openness of the processes related to the WCIT: the WCIT/ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents. The documents that are publicly available show that some of the proposals might deal with Internet governance. According to established principles as laid down in the Tunis Agenda - which process the ITU helped to lead - Internet governance processes are required to be multistakeholder in nature. The WCIT and ITU processes require urgent improvement with regard to openness, inclusiveness and transparency. While we appreciate the current opportunity to share our comments, we would like to encourage the ITU and its Member States to adopt a genuine multistakeholder approach at the earliest.

As mentioned, we do welcome the current opportunity to share our thoughts. Though this list is not exhaustive, some of our major concerns are as follows:

We believe that, given the historical development of present methods of internet regulation, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to aspects of the physical layer that have traditionally been the areas of its focus. The ITRs scope should not be expanded to other layers, nor to content - any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora. In addition, it is crucial that “ICTs” and the term “processing” be excluded from the definition of telecommunication as this clearly opens up the possibility for Member States to regulate/attempt to regulate the “content/“application” layer on the internet at the ITU.

We also recommend that provisions regarding international naming, numbering, addressing and identification resources will be restricted to telephony, as should provisions regarding transit rate, originating identification and end-to-end QoS. Provisions regarding the routing of Internet traffic should not find a place in the ITRs at all.

We recognise that concerns regarding cyber security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, as these are being discussed in many other fora, we believe that the ITRs are not the best place to address these. Their inclusion here could inhibit the further evolution and expansion of the Internet. We also believe that any fora discussing cyber security should be multistakeholder, open and transparent.

We note that the proposal ARB/7/24 defines an “operating agency” as “any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service” and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. The term “operating agency” should be defined in a narrower or more restrictive manner and, irrespective of its exact definition, only be used in exceptional cases. Normally, the obligations of member states should be with respect to “recognised operating agencies” and not omnibus all “operating agencies”.

Signed:

Centre for Internet and Society
Delhi Science Forum
Free Software Movement India
Internet Democracy Project
Knowledge Commons (India)

For more details visit https://cis-india.org/internet-governance/blog/submission-on-proposals-for-future-itrs-and-related-processes

Response to RTI on Decisions of the Cyber Regulation Advisory Committee

pranesh — 2013-01-09T15:26:26Z

The Department of Electronics & Information Technology, Ministry of Communications & Information Technology responded to a right to information (RTI) application filed by Saket Bisani on behalf of the Centre for Internet & Society on July 13, 2012 through notification No. 14(110)/2012-ESD, dated October 3, 2010.

No. 14(110)/2012-ESD
M/o Communiciations & Information Technology
Department of Electronics & Information Technology
Electronics Niketan, 6, CGO Complex
New Delhi-110003

Dated:3.10.2012

Subject: RTI application received from Shri Saket Biswani

With reference to your RTI application dated 13.7.12 requesting for the following information.

Question

a) Please provide me a list of the dates of each meeting of the CRAC held from October 18, 2000 till July 13, 2012?

b) Please provide me copies of the minutes of every meeting held by the Cyber Regulation Advisory Committee from October 18, 2000 till July 13, 2012.

c) Provide me the list of all policy decisions that the CRAC has advised the Central Government on under section 88(3) (a) of the Information Technology.

d) Provide me a list of all policy decisions that the CRAC has advised the Central Government on under section 88(3)(a) of the Information Technology Act, 2000.

The information as received from the custodian of the information is placed below:

Answer

a) The meetings of CRAC were held on 6^th March, 2001 and 17-18 March, 2001.

b) Minutes of these two meetings of CRAC are attached.

c) No such advice was given by CRAC to DeitY under section 88(3)(a).

d) Information is attached.

(A.K. Kaushik)
Additional Director & CPIO
(E-Security & Cyber Laws)

To: Shri Saket Bisani
No. 194, 2^nd 'C' Cross,
Domlur 2^nd Stage
Bangalore-560 071

Minutes of the First Meeting of the Cyber Regulation Advisory Committee (CRAC) held on March 6, 2001, at Electronics Niketan, under the Chairmanship of Hon’ble Minister* (IT) Shri Pramod Mahajan.

(List of Participants enclosed as Annexure-A)

The chairman welcomed the participants to the First Meeting of the Committee. In his opening remarks he hoped that the Committee would play a constructive role in the implementation of the Information Technology Act.
While introducing the Agenda (circulated ahead of the meeting), Controller of Certifying Authorities (CCA) made a short presentation on proposed "Regulation.; under section 89 of the IT Act" consisting of 18 proposed Regulations, Smart Card as token carrying Keys, and various suggested Amendments to the IT ACT 2000.
During the ensuing discussions, participants sought some time to study and collate associated inputs from their respective colleagues/specialists before offering any concrete suggestions/recommendations. Chairman agreed to the suggestions and postponed the meeting to 11:00 AM on the March 17, 2001 at the same venue. Based on the recommendation of Secretary (IT), members were requested to forward their inputs, if any, through e-mail within a weeks time to the following:

For Regulations wider section 89 of IT Act	For amendments to IT Act 2000
Shri K.N. Gupta (CCA) Room No. 4006, Electronics Niketan 6 CGO Complex New Delhi 110003 e-mail:kgupta@mit.gov.in Tele: 436 3073 Fax: 439 5982	Shri A.B. Saha (Member Secretary) Room No. 2055, Electronics Niketan 6 CGO Complex New Delhi 110003 e-mail:saha@mit.gov.in Tele: 436 0958 Fax: 436 2924

Meeting ended with a vote of thanks to the Chair.

Minutes of the Second Meeting of the Cyber Regulation Advisory Committee (CRAC) held on 17-18 March, 2001 at Electronics Niketan, New Delhi under the Chairmanship of Hon'ble Minister (IT), Shri Pramod Mahajan.

(List of Participants enclosed as Annexure-A)

The chairman welcomed the participants to the second meeting of the Committee to consider further the draft regulations proposed by the Controller of Certifying Authority (CCA). ' " ~
During the ensuing discussions, following general recommendations/decisions were arrived at governing the overall formulation of the regulations that are necessary to bring about infrastructure facilitating activities envisaged under the IT Act 2000:

a) Any regulation to be framed by the Controller draws its authority only from Section 89(2) of the Act. Moreover, such regulations should complement the Rules already framed under the Section 87 of the Act.

b) To keep pace with the changing technology and standards, CCA may publicly notify/modify necessary specifications of technology, standards and procedures at regular interval (say, January of every year). Moreover, to adhere to the "principles of minimal governance", if any particular necessity emerges for inclusion of newer manifestations of any existing standard/technology/procedure, Controller should respond within ninety (90) days after receiving any specific request in writing, failing which it will deemed to have obtained his concurrence.

c) The commercial practices/interests may form the essential pedestal for the certification process. Aspects of cross-certification may preferably be left to the purview of the concerned market forces. However, the necessary interoperability will essentially be "market-driven" and not "authority-driven". This will also ensure that formulated rules and regulations stay in tune with market realities.

d) Strict adherence to open standards should be ensured to avoid emergence of monopoly of any kind.

e) Considering cost sensitiveness of the requisite digital signature certificate, families of technologies varying in convenience, reliability, availability, robustness, etc. may be allowed to inter-operate. However, CCA may undertake public awareness campaign to promote desirable best practices from time to time.

f) The minimal regulations facilitating activities envisaged in the Act is desirable. Some of the proposed provisions can also be ensured in the form of "terms & conditions" governing the operations of Certifying Authorities.

g) Emergence of guidelines governing smooth functioning may be better left to publications brought out by industry associations, public-minded professionals etc. Formulating rules and regulations in these regards should be minimal.

3. After framing the draft compilation of the requisite regulations in accordance with the conventional legal form in terms of content as well as structure with the assistance of the Ministry of Law, the regulations may be brought to the Ministry of Information Technology for approval.

4 The Committee considered the 18 regulations proposed in Agenda Item No.1 and the statement reproduced below contains the decision taken against each proposal.

SI	Item	Conclusions
1	Regulation 1 Standardising on two key-pairs for PKI in the country. Key-pair generation for subscribers by CAs.	Regulation not required. Encryption Key pair not part of the IT Act. Already covered under Rule 3, 4 & 5 of notified CA Rules. Subscriber should be at liberty to bring his key pair that CA may verify before acceptance. (Section 40 of the Act)
2	Regulation 2 Encryption key-pair of subscribers to be maintained by CAs in a database and made available to enforcement and law agencies under directions of the Controller.	Regulation not required. IT Act is silent regarding encryption.
3	Regulation 3 Disclosure Record of CA.	Disclosure may be done every six months. Necessary format for disclosure may be notified from time to time. (Para 2(f) above)
4	Regulation 4 Encryption Key Pair of CA to be made available to the Controller.	Regulation not required in accordance to conclusions against 1 & 2 above.
5	Regulation 5 Cross-Certification with foreign CAs.	As per recommendation 2(c) above.
6	Regulation 6 Terms and Conditions subject to which license shall be issued by the Controller to the prospective CAs.	Can be merged with regulation 11. As per the recommendation mentioned in 2(c) above.
7	Regulation 7 Standards that may be considered for different activities associated with the CAs functions including standardization of contents of the Certificates to be issued by CAs and standardization of the Certificate Revocation List.	As per the recommendation 2(b) above.
8	Regulation 8 Information to be made publicly available by a CA on its website. Notice of suspension or revocation of license.	CA must harness all form of networks and other practical media, and not only Internet, for disclosure to its subscriber and other interested parties.
9	Regulation 9 Standardisation of Certificate Practice Statement.	Agreed.
10	Regulation 10 Compromise of subscribers Digital Signature Key-Pair	Agreed.
11	Regulation 11 Description of classes of Certificates.	Shall be merged with regulation 6 above. In addition to 3 classes of certificates as identified by international bodies, the regulation should be open to additional classes of certificates, if required.
12	Regulation 12 Cross-Certification of CAs.	It should be market-driven. (Recommendation 2(c) above).
13	Regulation 13 Incorporation of Controllers Public Key Certificate as the "root” in all web browsers in the country.	Regulation not required. Need for integrating Controller's root key in the browsers may not be feasible.
14	Regulation 14 Minimum key length for CAs and subscribers.	Agreed for the provision of 1024 bits for subscriber/end-user and 2048 bits for CAs key pair.
15	Regulation 15 Audit of applicants to include manpower audit as well. Liability of CAs towards subscribers on account of their negligence.	Regulation not required. Audit provision has already been covered under Rule 31 of CA rules notified by MIT.
16	Regulation 16 Storage of Key-Pairs of CAs. Distribution of Key-Pairs / Certificates of subscribers by CAs.	Not to be regulated. Recommendation 2(e) above shall be followed.
17	Regulation 17 Documents to be submitted to the Controller along with the application for obtaining license to operate as CA.	Already covered under rule 10 of CA rules notified by MIT. Any additional information can be sought through the recourse of public notices from time to time.
18	Regulation 18 Upon acceptance of PKC by a subscriber, the PKC shall be published by the CA as required under the IT Act for access by the subscribers and relying parties. The CA will ensure the transmission of PKC and CRLs to the National Repository to be maintained by the Controller.	Agreed.

Meeting ended with a vote of thanks to the Chair.

Annexure - A

First sitting of the second meeting of the “Cyber Regulation Advisory Committee” held on 17th March 2001 to consider adjourned agenda of the first meeting held on 6ft March 2001

List of Participants

Sh Pramod Mahajan, Minister, Information Technology - Chairman
Sh.S.C Jain , Secretary, Legislative Department
Sh Vinay Kohli, Secretary, Ministry of Information Technology
Sh. N. Parameswaran, DDG(LR), Department of Telecommunications
Dr. Jaimini Bhagwati, Ministry of Finance
Maj.Gen. M. G. Datar, Addl.D.G, IT, Army HQ, Ministry of Defence
Sh Mukesh Mittal, Dy Secy, Ministry of Home Affairs
Sh T A Khan, Sr. Dir, NIC, Ministry of Commerce
Sh. K.R Ganapathy,CGM-IC,RBI

10. Sh.S.R-Mittal,Adviser,DIT, Reserve Bank of India

11. Sh Dewang Mehta, President, NASSCOM

12. Sh Amitabh Singhal, President, Internet Service Providers Association

13. Sh LN Behra, DIG, Director, Central Bureau of Investigation

14. Sh K N Gupta, Controller of Certifying Authority

15. Sh. Qamar Ahmed. Addl.C.P/Crime, DG Police by rotation from the States

16. Prof. R S Sirohi. I1T Delhi, Director, IIT Delhi

17. Sh.Sanjay Dhawan, ExecDirector,KPMG, Representing CII

18. Sh. M.A.J.Jeyaseelan, Secretary, FICCI

19. Sh. Subimal Bhattacharjee, Vice President ARGUS, Representing ASSOCHAM

20. Sh A B Saha, Senior Director, Ministry of IT - Member Convener

First sitting of the second meeting of the “Cyber Regulation Advisory Committee” held on 18th March 2001 to consider adjourned agenda of the first meeting held on 6ft March 2001

List of Participants

Sh Pramod Mahajan, Minister, Information Technology - Chairman
Sh.N.L. Meenu, Jt. Secretary, Legislative Department
Sh Vinay Kohli, Secretary, Ministry of Information Technology
Sh. N. Parameswaran, DDG(LR), Department of Telecommunications
Dr. Jaimoni Bhagwati, Ministry of Finance
Maj.Gen. M G Datar, Ministry of Defence
Sh Mukesh Mittal, Dy Secy, Ministry of Home Affairs
Sh T A Khan, Sr. Dir, NIC, Ministry of Commerce
Sh. K.R Ganapathy,CGM-IC,RBI

10. Sh Dewang Mehta, President, NASSCOM

11. Sh Amitabh Singhal, President, Internet Service Providers Association

12. Sh LN Behra, DIG, Director, Central Bureau of Investigation

13. Sh K N Gupta, Controller of Certifying Authority

14. Sh. Dinesh Bhatt, Dy. Police Commissioner, Delhi

15. Prof. R S Sirohi. I1T Delhi, Director, IIT Delhi

16. Sh.Sanjay Dhawan, ExecDirector,KPMG, Representing CII

17. Sh. M.A.J.Jeyaseelan, Secretary, FICCI

18. Sh. Subimal Bhattacharjee, Vice President ARGUS, Representing ASSOCHAM

19. Sh A B Saha, Senior Director, Ministry of IT - Member Convener

For more details visit https://cis-india.org/internet-governance/resources/deity-response-to-rti-on-decisions-of-crac

Draft nonsense

pranesh — 2012-12-03T09:08:10Z

Seriously flawed and dodgily drafted provisions in the IT Act provide the state a stick to beat its citizens with.

Pranesh Prakash's op-ed was published in the Times of India on November 24, 2012.

Section 66A of the Information Technology Act once again finds itself in the middle of a brewing storm. It has been used in cases ranging from the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti Chidambaram case, the Chinmayi case, to the current Bal Thackeray-Facebook comments case. In all except the Karti Chidambaram case (which is actually a case of defamation where 's. 66A' is inapplicable), it was used in conjunction with another penal provision, showing that existing laws are more than adequate for regulation of online speech. That everything from online threats wishing sexual assault (the Chinmayi case) to harmless cartoons are sought to be covered under this should give one cause for concern. Importantly, this provision is cognisable (though bailable), meaning an arrest warrant isn't required. This makes it a favourite for those wishing to harass others into not speaking.

Section 66A prohibits the sending "by means of a computer resource or a communication device" certain kinds of messages. These messages are divided into three sub-parts : (a) anything that is "grossly offensive or has menacing character";(b) information known to be false for the purposes of "causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" and is sent persistently;or (c) "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages". This carries with it a punishment of up to three years in jail and a fine without an upper limit. As even non-lawyers can see, these are very broadly worded, with use of 'or' everywhere instead of 'and', and the punishment is excessive. The lawyers amongst the readers will note that while some of the words used are familiar from other laws (such as the Indian Penal Code), they are never used this loosely. And all should hopefully be able to conclude that large parts of section 66A are plainly unconstitutional.

If that is so obvious, how did we end up getting this law? We copied (and badly at that) from the UK. The sad part is that the modifications that were introduced while copying are the bits that cause the most trouble. The most noteworthy of these changes are the increase in term of punishment to 3 years (in the UK it's 6 months); the late introduction (on December 16, 2008 by A Raja) of sub-section (c), meant as an anti-spam provision, but covering everything in the world except spam;and the mangling up of sub-section (b) to become a witches brew of all the evil intentions in this world.

Further, we must recognise that our Constitution is much stronger when it comes to issues like free speech than the UK's unwritten constitution, and our high courts and Supreme Court have the power to strike down laws for being unconstitutional, unlike in the UK where Parliament reigns supreme. The most the courts can do there is accommodate the European Convention on Human Rights by 'reading down' laws rather than striking them down.

Lastly, even if we do decide to engage in policy-laundering, we need to do so intelligently. The way the government messed up section 66A should serve as a fine lesson on how not to do so. While one should fault the ministry of communications and IT for messing up the IT Act so badly, it is apparent that the law ministry deserves equal blame as well for being the sleeping partner in this deplorable joint venture. For instance, wrongfully accessing a computer to remove material which one believes can be used for defamation can be considered 'cyber-terrorism'. Where have all our fine legal drafters gone? In a meeting, former SEBI chairman M Damodaran noted how bad drafters make our policies seem far dumber than they are. We wouldn't be in this soup if we had good drafters who clearly understand the fundamental rights guaranteed by our constitution.

There are a great many things 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 2008 winter session of Parliament. For far too long the Indian government has spoken about "multi-stakeholder" governance of the internet at international fora (meaning that civil society and industry must be seen as equal to governments when it comes to policymaking for the governance of the internet). It is about time we implemented multi-stakeholder internet governance domestically. The way to go forward in changing this would be to set up a multi-stakeholder body (including civil society and industry) which can remedy this and other ridiculously unconstitutional provisions of our IT Act.

For more details visit https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense

Fixing India’s anarchic IT Act

pranesh — 2012-11-30T06:33:58Z

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.

Pranesh Prakash's article was published in LiveMint on November 28, 2012.

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.

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.

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.

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.

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.)

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.

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.

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.

Pranesh Prakash is policy director at the Centre for Internet and Society.

For more details visit https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act

Breaking Down Section 66A of the IT Act

pranesh — 2012-12-14T09:51:17Z

Section 66A of the Information Technology Act, which prescribes 'punishment for sending offensive messages through communication service, etc.' is widely held by lawyers and legal academics to be unconstitutional. In this post Pranesh Prakash explores why that section is unconstitutional, how it came to be, the state of the law elsewhere, and how we can move forward.

Back in February 2009 (after the IT Amendment Act, 2008 was hurriedly passed on December 22, 2008 by the Lok Sabha, and a day after by the Rajya Sabha[1] but before it was notified on October 27, 2009) I had written that s.66A is "patently in violation of Art. 19(1)(a) of the Constitution of India":

Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different from the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.

I stand by that analysis. But given that it is quite sparse, in this post I will examine s.66A in detail.

Here's what s. 66A of the IT (Amendment) Act, 2008 states:

66A. Punishment for sending offensive messages through communication service, etc.,
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.[2]

A large part of s.66A can be traced back to s.10(2) of the UK's Post Office (Amendment) Act, 1935:

If any person —
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

Section 66A bears a striking resemblance to the three parts of this law from 1935, with clauses (b) and (c) being merged in the Indian law into a single clause (b) of s.66A, with a whole bunch of new "purposes" added. Interestingly, the Indian Post Office Act, 1898, was never amended to add this provision.

The differences between the two are worth exploring.

Term of Punishment

The first major difference is that the maximum term of imprisonment in the 1935 Act is only one month, compared to three years in s.66A of the IT Act. It seems the Indian government decided to subject the prison term to hyper-inflation to cover for the time. If this had happened for the punishment for, say, criminal defamation, then that would have a jail term of up to 72 years! The current equivalent laws in the UK are the Communications Act, 2003 (s. 127) and the Malicious Communications Act 1988 (s.1) for both of which the penalty is up to 6 months' imprisonment or to a maximum fine of £5000 or both. What's surprising is that in the Information Technology (Amendment) Bill of 2006, the penalty for section 66A was up to 2 years, and it was changed on December 16, 2008 through an amendment moved by Mr. A. Raja (the erstwhile Minister of Communications and IT) to 3 years. Given that parts of s.66A(c) resemble nuisance, it is instructive to note the term of punishment in the Indian Penal Code (IPC) for criminal nuisance: a fine of Rs. 200 with no prison term.

"Sending" vs. "Publishing"

J. Sai Deepak, a lawyer, has made an interesting point that the IT Act uses "send" as part of its wording, and not "publish". Given that, only messages specifically directed at another would be included. While this is an interesting proposition, it cannot be accepted because: (1) even blog posts are "sent", albeit to the blog servers — s.66A doesn't say who it has to be sent to; (2) in the UK the Communications Act 2003 uses similar language and that, unlike the Malicious Communication Act 1988 which says "sends to another person", has been applied to public posts to Twitter, etc.; (3) The explanation to s.66A(c) explicitly uses the word "transmitted", which is far broader than "send", and it would be difficult to reconcile them unless "send" can encompass sending to the publishing intermediary like Twitter.

Part of the narrowing down of s.66A should definitely focus on making it applicable only to directed communication (as is the case with telephones, and with the UK's Malicious Communication Act), and not be applicable to publishing.

Section 66A(c)

Section 66A(c) was also inserted through an amendment moved by Mr. Raja on December 16, 2008, which was passed by the Lok Sabha on December 22, 2008, and a day after by the Rajya Sabha. (The version introduced in Parliament in 2006 had only 66A(a) and (b).) This was done in response to the observation by the Standing Committee on Information Technology that there was no provision for spam. Hence it is clear that this is meant as an anti-spam provision. However, the careless phrasing makes it anything but an anti-spam provision. If instead of "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages" it was "for the purpose of causing annoyance and inconvenience and to deceive and to mislead the addressee or recipient about the origin of such messages", it would have been slightly closer to an anti-spam provision, but even then doesn't have the two core characteristics of spam: that it be unsolicited and that it be sent in bulk. (Whether only commercial messages should be regarded as spam is an open question.) That it arise from a duplicitous origin is not a requirement of spam (and in the UK, for instance, that is only an aggravating factor for what is already a fine-able activity).

Curiously, the definitional problems do not stop there, but extend to the definitions of "electronic mail" and "electronic mail message" in the 'explanation' as well. Those are so vast that more or less anything communicated electronically is counted as an e-mail, including forms of communication that aren't aimed at particular recipients the way e-mail is.

Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.

Section 66A(b)

Section 66A(b) has three main elements: (1) that the communication be known to be false; (2) that it be for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (3) that it be communicated persistently. The main problem here is, of course, (2). "Annoyance" and "inconvenience", "insult", "ill will" and "hatred" are very different from "injury", "danger", and "criminal intimidation". That a lawmaker could feel that punishment for purposes this disparate belonged together in a single clause is quite astounding and without parallel (except in the rest of the IT Act). That's akin to having a single provision providing equal punishment for calling someone a moron ("insult") and threatening to kill someone ("criminal intimidation"). While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalised (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. However, the question arises whether you need a separate provision in the IT Act for that. Criminal intimidation is already covered by ss. 503 and 506 of the IPC. Similarly, different kinds of causing danger are taken care of in ss.188, 268, 283, 285, 289, and other provisions. Similarly with the other "purposes" listed there, if, for instance, a provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like "annoyance", and should not be made "persistent". (At any rate, s. 505(1) of the IPC suffices for hoax bomb threats, so you don't need a separate provision in the IT Act).

I would argue that in its current form this provision is unconstitutional, since there is no countervailing interest in criminalising false and persistent "insults", etc., that will allow those parts of this provision to survive the test of 'reasonableness' under Art.19(2). Furthermore, even bits that survive are largely redundant. While this unconstitutionality could be cured by better, narrower wording, even then one would need to ensure that there is no redundancy due to other provisions in other laws.

Section 66A(a)

In s.66A(a), the question immediately arises whether the information that is "grossly offensive" or "menacing" need to be addressed at someone specific and be seen as "grossly offensive" or "menacing" by that person, or be seen by a 'reasonable man' test.

Additionally, the term "grossly offensive" will have to be read in such a heightened manner as to not include merely causing offence. The one other place where this phrase is used in Indian law is in s.20(b) of the Indian Post Office Act (prohibiting the sending by post of materials of an indecent, obscene, seditious, scurrilous, threatening, or grossly offensive character). The big difference between s.20(b) of the IPO Act and s.66A of the IT Act is that the former is clearly restricted to one-to-one communication (the way the UK's Malicious Communication Act 1988 is). Reducing the scope of s.66A to direct communications would make it less prone to challenge.

Additionally, in order to ensure constitutionality, courts will have to ensure that "grossly offensive" does not simply end up meaning "offensive", and that the maximum punishment is not disproportionately high as it currently is. Even laws specifically aimed at online bullying, such as the UK's Protection from Harassment Act 1997, can have unintended effects. As George Monbiot notes, the "first three people to be prosecuted under [the Protection from Harassment Act] were all peaceful protesters".

Constitutional Arguments in Importing Laws from the UK

The plain fact is that the Indian Constitution is stronger on free speech grounds than the (unwritten) UK Constitution, and the judiciary has wide powers of judicial review of statutes (i.e., the ability of a court to strike down a law passed by Parliament as 'unconstitutional'). Judicial review of statutes does not exist in the UK (with review under its EU obligations being the exception) as they believe that Parliament is supreme, unlike India. Putting those two aspects together, a law that is valid in the UK might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Art.19(2). That raises the question of how they deal with such broad wording in the UK.

Genealogy of UK Law on Sending 'Indecent', 'Menacing', 'Grossly Offensive' Messages

Quoting from the case of DPP v. Collins [2006] UKHL 40 [6]:

The genealogy of [s. 127(1) of the Communication Act] may be traced back to s.10(2)(a) of the Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character. That subsection was reproduced with no change save of punctuation in s.66(a) of the Post Office Act 1953. It was again reproduced in s.78 of the Post Office Act 1969, save that "by means of a public telecommunication service" was substituted for "by telephone" and "any message" was changed to "a message or other matter". Section 78 was elaborated but substantially repeated in s.49(1)(a) of the British Telecommunications Act 1981 and was re-enacted (save for the substitution of "system" for "service") in s.43(1)(a) of the Telecommunications Act 1984. Section 43(1)(a) was in the same terms as s.127(1)(a) of the 2003 Act, save that it referred to "a public telecommunication system" and not (as in s.127(1)(a)) to a "public electronic communications network". Sections 11(1)(b) of the Post Office Act 1953 and 85(3) of the Postal Services Act 2000 made it an offence to send certain proscribed articles by post.

While the above quotation talks about s.127(1) it is equally true about s.127(2) as well. In addition to that, in 1988, the Malicious Communications Act (s.1) was passed to prohibit one-to-one harassment along similar lines.

The UK's Post Office Act was eclipsed by the Telecommunications Act in 1984, which in turn was replaced in 2003 by the Communications Act. (By contrast, we still stick on to the colonial Indian Post Office Act, 1898.) Provisions from the 1935 Post Office Act were carried forward into the Telecommunications Act (s.43 on the "improper use of public telecommunication system"), and subsequently into s.127 of the Communications Act ("improper use of public electronic communications network"). Section 127 of the Communications Act states:

127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he —
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he —
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Currently in the UK there are calls for repeal of s.127. In a separate blog post I will look at how the UK courts have 'read down' the provisions of s.127 and other similar laws in order to be compliant with the European Convention on Human Rights.

Comparison between S. 66A and Other Statutes

Section 144, IPC, 1860

Power to issue order in urgent cases of nuisance or apprehended danger

...obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity

Babulal Parate v. State of Maharastra and Ors. [1961 AIR SC 884] (Magistrates order under s. 144 of the Cr. PC, 1973 was in violation of Art.19(1)(a) of the Constitution).

A special thanks is due to Snehashish Ghosh for compiling the below table.

Section	Term(s)/phrase(s) used in 66A	Term(s)/ phrase(s) used in similar sections
Section 66A (heading)	Punishment for sending offensive messages through communication service, etc	Section 127, CA, 2003, "Improper use of public electronic communications network"
Section 66A(a)	Any person who sends, by means of a computer resource or a communication device	Section 1(1), MCA 1988, "Any person who sends to another person..."
Section 66A(a)	Grossly offensive	Section 1(1)(a)(i), MCA 1988; Section 127(1)(a),CA, 2003; Section 10(2)(a), Post Office (Amendment) Act, 1935; Section 43(1)(a), Telecommunications Act 1984; Section 20, India Post Act 1898
Section 66A(a)	Menacing character	Section127(1)(a),CA, 2003
Section 66A(b)	Any information which he knows to be false	Section 1(1)(a)(iii), MCA 1988 "information which is false and known or believed to be false by the sender"; Section 127(2)(a), CA, 2003, "a message that he knows to be false"
Section 66A(b) “purpose of...”	Causing annoyance	Section127(2), CA, 2003
	Inconvenience	Section 127 (2), CA, 2003
	Danger
	Insult	Section 504, IPC, 1860
	Injury	Section 44 IPC, 1860, "The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property."
	Criminal intimidation	Sections 503 and 505 (2), IPC, 1860
	Enmity, hatred or ill-will	Section 153A(1)(a), IPC, 1860
	Persistently by making use of such computer resource or a communication device	Section 127(2)(c), CA, 2003, "persistently makes use of a public electronic communications network."
Section 66A(c)	Deceive or to mislead	-

Notes
MCA 1988: Malicious Communications Act (s.1)
CA: Communications Act 2003 (s.127)
*Replaced by Communications Act 2003

[1]. The Information Technology (Amendment) Bill, 2008, was one amongst the eight bills that were passed in fifteen minutes on December 16, 2008.
[2]. Inserted vide Information Technology Amendment Act, 2008.

This was re-posted in Outlook (November 28, 2012)

For more details visit https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act

Section 66A of the Information Technology Act

pranesh — 2012-11-25T13:34:26Z

Note: The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

66A. Punishment for sending offensive messages through communication service, etc.

Any person who sends, by means of a computer resource or a communication device,—

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

For more details visit https://cis-india.org/internet-governance/resources/section-66A-information-technology-act

Arbitrary Arrests for Comment on Bal Thackeray's Death

pranesh — 2013-01-02T03:42:37Z

Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray's death. Pranesh Prakash explores the legal angles to the arrests.

Facts of the case

This morning, there was a short report in the Mumbai Mirror about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:

Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.

The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.

“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.

What provisions of law were used?

There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"¹ in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant section 295A of the IPC ("outraging religious feelings of any class") and section 66A of the IT Act ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal's Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)

Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.² Section 66A of the IT Act is cognizable and bailable.

Update: Some news sources claim that section 505(2) of the IPC ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.

Was the law misapplied?

This is clearly a case of misapplication of s.295A of the IPC.³ This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book Shivaji: Hindu King in Islamic India happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.

Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).⁴ That 'liking' is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the 'freedom of speech and expression', so even non-verbal expression is protection.

Role of bad law and the police

In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who 'liked' her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in demanding that such police officers should be punished.

Rule of law

Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju's article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?⁵

This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.

This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.

Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one's digital signature if one doesn't pay up a penalty that's been imposed.↩
The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn't an automatic right to be enjoyed by paying a bond-surety amount set by the police.↩
Section 295A of the IPC has been held not to be unconstitutional. The first case to challenge the constitutionality of section 66A of the IT Act was filed recently in front of the Madurai bench the Madras High Court.)↩
One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.↩
This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.↩

This blog entry has been re-posted in the following places

Outlook (November 19, 2012).
KAFILA (November 19, 2012).

For more details visit https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A

Feedback to Draft Copyright Rules, 2012

pranesh — 2012-10-04T04:53:47Z

The Centre for Internet & Society submitted its written comments on the Draft Copyright Rules, 2012 to Mr. G.R. Raghavender, Registrar of Copyrights & Director (BP&CR), Ministry of Human Resource Development.

G.R. Raghavender
Registrar of Copyrights & Director (BP&CR)
Copyright Office
Department of Higher Education
Ministry of Human Resource Development
4th floor, Jeevan Deep Building,
Parliament Street
New Delhi — 110001

Dear Sir,

This submission contains comments from the Centre for Internet and Society on the Draft Copyright Rules, 2012. I apologize for the slight delay in submitting these.

Yours sincerely,
Pranesh Prakash
Policy Director
Centre for Internet and Society

Relinquishment of Copyright

Analysis

The law in India allows anonymously and pseudonymously created works to be copyrighted as well, as is clear from section 23 of the Copyright Act. However, rule 8 as it currently is does not allow such authors to relinquish copyright. Relinquishment of copyright is a very different kind of act from registration of copyright, and hence it is not necessary to seek the same categories of information from both. Certain categories of information sought during registration of copyright ("class of work", "language of the work", "nationality of author") are required not because they help identify a work, but because they help in indexing the work ("class of work", "language of work") or in ensuring that the work is copyrightable in India ("nationality of author"). Such considerations do not matter when it comes to relinquishment of copyright, i.e., when a work is allowed to pass into the public domain. Further, technological progress has made it difficult to determine the answer to a question like "country of first publication", "nationality of the publisher", etc. If a work has been uploaded by an author on to his blog, is the publisher the author or the person hosting the blog? If an Indian author residing in India first publishes a work on the server located in Argentina, is the country of first publication India or Argentina? The answer to these questions does not make a difference to the issue of relinquishment of copyright. The only information that is required for relinquishment of rights is a) what work is being put in the public domain, b) by whom, c) from when.

Furthermore, the current requirements of rule 8 cannot easily be satisfied by using most of the popular means of relinquishing copyright (such as the CC0 — Creative Commons Zero — licence).

Recommendations

Rule 8 be modified to read: A public notice issued by an author relinquishing his or her rights as per subsection (1) of section 21 of the Copyright Act, shall include the following details: (a) Title of the work (b) Full name, or pseudonym, in case the work has not been created anonymously (c) Date of issuance of the notice (d) If copyright in the work is registered under section 45, the registration number.

Rule 9 be modified to read: Any one of the following shall constitute public notice of relinquishment of copyright: i. Mentioning of the notice on the work, or cover of the work, or in the metadata of the work if the work is electronic; or ii. Publication in a newspaper; or iii. Publication by the author on a publicly-accessible website

Rule 10 be modified to add the following sentence: The author shall forward a copy of the public notice to the Registrar of Copyright if copyright in the work has been registered under section 45 and on receiving such notice, the Registrar of Copyright shall post the same on the website of the Copyright Office.

Statutory Licence for Cover Versions

Analysis

Rule 34(2) is redundant and does not contain any detail not already present in the existing proviso to section 31C(1) of the Copyright Act. Additionally, Rule 35 also does not contain any detail not already present in the existing parent provision, section 31C of the Copyright Act.

Recommendations

Rules 34(2) and 35 be deleted.
Rule 37 should be modified to add a sub-rule requiring maintenance of records online.

Indexes

Analysis

In rule 71(3), it requires that the indexes be maintained in the form of cards. These are presumably physical cards. It is unclear why the rule should not require the maintenance of these indexes online to facilitate search by the public. Further entries 13 and 14 of Schedule II are from a time when the transaction costs incurred by the Registrar of Copyright for providing extracts from an Index were non-negligible, and hence it would have been necessary to charge a person for such services. With the capabilities of electronic systems, such retrievals are almost costless, and can be done without the intervention of the Registrar of Copyright. Hence entries 13 and 14 should not be made applicable to online retrievals. If copyright societies can be required to provide information free of costs on their websites (as per rule 65), the Registrar of Copyright should be required to do so too.

Recommendation

Modify sub-rule (3) of rule 71 to read: "Every Index shall be available online as a downloadable database, with an online search facility."

Modify the second sentence in rule 72 to read: "The online search or inspection of the Register of Copyrights and Indexes can be utilised free of cost."

Storage of Transient or Incidental Copies of a Work

Analysis

It is not clear enough from the language of rule 74 that it applies only to s.52(1)(c) and not to s.52(1)(b). Since only s.52(1)(c) has a complaints mechanism, this should be made clear.

Importantly, to protect the interest of the public, the intermediaries should be asked to give public notice regarding the alleged infringing copy to ensure that the take-down mechanism is not abused, and secondly to ensure that the public can independently verify that intermediaries are following the requirement in rule 74(4) of restoring storage of the work if no court order is forthcoming within 21 days.

Lastly, there is no clear precedent in India to treat a uniform resource identifier (URI) as 'place' for purposes of section 51(a)(ii) of the Copyright Act, 1957. Therefore it is necessary to further clarify the meaning of the term 'place' as used in current Rule 74(2)(d). This would be best served by using the correct technological term ("URI") instead of the word "place".

Recommendation

Modify sub-rule (1) of rule 74 to: "Any owner of copyright may give a written complaint as per clause (c) of subsection (1) of section 52 of the Copyright Act to a person who has facilitated..."

Add sub-rule (6) to rule 74: "The person responsible for storage shall put up a public notice thereby notifying all persons requesting access to the alleged infringing copy by stating reasons for restraining such access whether during the period of 21 days from the complaint from the copyright owner, or pursuant to an order from a competent court."

Modify rule 74(2) to read: "Details of the specific uniform resource identifier (URI) where transient or incidental storage of the work may be taking place."

Making or Adapting the Work by Organizations Working for the Benefit of Persons with Disabilities

Analysis

Rule 75 requires organizations making use of the exception granted under s.52(1)(zb) to maintain records. This could not have been the intention of the legislature in passing s.52(1)(zb), since that provision does not require any maintenance of records. Indeed, none of the exceptions ennume-rated in s.52(1) require the maintenance of records. This is in contrast with s.31B, which is also applicable to organizations working for the benefit of persons with disabilities, but only those that are doing so as a for-profit venture. Rule 29(6) already requires the Registrar of Copyright to notify the grant of a licence under s.31B in the Official Gazette. That provision may be modified to add that the Registrar of Copyright maintains these records in a centralized database that can be queried online.

Recommendations

Delete rule 75, and modify rule 29(6) to include a centralized database.

Technological Protection Measures

Analysis

Most experts seem to hold that s.65A of the Indian Copyright Act does not affect circumvention tools, as it only deals with the act of unauthorized circumvention and not with the tools, in sharp contrast with s.1201(a)(2) of the Digital Millennium Copyright Act in the US, which criminalises the "manufacture, import, offer to the public, provision, or otherwise trafficking in any [circumvention] technology, product, service, device, component, or part thereof". The Indian law has conciously chosen not to emulate the DMCA in this respect, as the WIPO Copyright Treaty does not require it.

The broad understanding of "facilitation" contained the Copyright Rules unfortunately seem to undermine this clear distinction. If facilitation is understood to include offer to the public, provision, or distribution, as seems to be the case in Rule 79(3) and 79(4), then law becomes unworkable with each and every website that allows for the downloading of any software that can be used to play DVDs, etc., must specifically keep a register of downloaders from India. This is unnecessary, and goes beyond the intent of s.65A, which is to cover those who actively facilitate circumvention and not those who make available the tools to circumvent. This distinction should not be blurred.

Recommendation

Delete sub-rules (3) and (4) of rule 79.

For more details visit https://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012

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

pranesh — 2016-04-24T11:48:49Z

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

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

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

pranesh — 2016-04-24T11:56:49Z

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

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

Analysing Latest List of Blocked Sites (Communalism & Rioting Edition)

pranesh — 2012-09-06T11:52:47Z

Pranesh Prakash does preliminary analysis on a leaked list of the websites blocked from August 18, 2012 till August 21, 2012 by the Indian government.

Note: This post will be updated as more analysis is done. Last update: 23:59 on August 22, 2012. This is being shared under a Creative Commons Attribution-NonCommercial licence.

How many items have been blocked?

There are a total of 309 specific items (those being URLs, Twitter accounts, img tags, blog posts, blogs, and a handful of websites) that have been blocked. This number is meaningless at one level, given that it doesn't differentiate between the blocking of an entire website (with dozens or hundreds of web pages) from the blocking of a single webpage. However, given that very few websites have been blocked at the domain-level, that number is still reasonably useful.

Please also note, we currently only have information related to what telecom companies and Internet Service Providers (ISPs) were asked to block till August 21, 2012. We do not have information on what individual web services have been asked to remove. That might take the total count much higher.

Why have these been blocked?

As far as I could determine, all of the blocked items have content (mostly videos and images have been targeted, but also some writings) that are related to communal issues and rioting. (Please note: I am not calling the content itself "communal" or "incitement to rioting", just that the content relates to communal issues and rioting.) This has been done in the context of the recent riots in Assam, Mumbai, UP, and the mass movement of people from Bangalore.

There were reports of parody Twitter accounts having been blocked. Preliminary analysis on the basis of available data show that parody Twitter accounts and satire sites have not been targetted solely for being satirical. For instance, very popular parody Twitter accounts, such as @DrYumYumSingh are not on any of the four orders circulated by the Department of Telecom. (I have no information on whether such parody accounts are being taken up directly with Twitter or not: just that they aren't being blocked at the ISP-level. Media reports indicate six accounts have been taken up with Twitter for being similar to the Prime Minister's Office's account.)

Are the blocks legitimate?

The goodness of the government's intentions seem, quite clearly in my estimation, to be unquestionable. Yet, even with the best intentions, there might be procedural illegalities and over-censorship.

There are circumstances in which freedom of speech and expression may legitimately be limited. The circumstances that existed in Bangalore could justifiably result in legitimate limitations on freedom of speech. For instance, I believe that temporary curbs — such as temporarily limiting SMSes & MMSes to a maximum of five each fifteen minutes for a period of two days — would have been helpful.

However it is unclear whether the government has exercised its powers responsibly in this circumstance. The blocking of many of the items on that list are legally questionable and morally indefensible, even while a some of the items ought, in my estimation, to be removed.

If the government has blocked these sites under s.69A of the Information Technology Act ("Power to Issue Directions for Blocking for Public Access of Any Information through any Computer Resource"), the persons and intermediaries hosting the content should have been notified provided 48 hours to respond (under Rule 8 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009). Even if the emergency provision (Rule 9) was used, the block issued on August 18, 2012, should have been introduced before the "Committee for Examination of Request" by August 20, 2012 (i.e., within 48 hours), and that committee should have notified the persons and intermediaries hosting the content.

Importantly, even though many of the items on that list are repugnant and do deserve (in my opinion) to be removed, ordering ISPs to block them is largely ineffectual. The people and companies hosting the material should have been asked to remove it, instead of ordering Internet service providers (ISPs) to block them. All larger sites have clear content removal policies, and encouraging communal tensions and hate speech generally wouldn't be tolerated. That this can be done without resort to the dreadful Intermediary Guidelines Rules (which were passed last year) shows that those Rules are unnecessary. It is our belief that those Rules are also unconstitutional.

Are there any egregious mistakes?

Yes, there are numerous such examples of egregious mistakes.

Most importantly, some even people and posts debunking rumours have been blocked.
Some of the Twitter accounts are of prominent people who write for the mainstream media, and who have written similar content offline. If their online content is being complained about, their offline content should be complained about too.
Quite a number of the links include articles published and reports broadcast in the mainstream media (including a Times Now report, a Telegraph picture gallery, etc.), and in print, making the blocks suspect. Only the online content seems to have been targeted for censorship.

There are numerous mistakes and inconsistencies that make blocking pointless and ineffectual.

Some of the items are not even web addresses (e.g., a few HTML img tags were included).
Some of the items they have tried to block do not even exist (e.g., one of the Wikipedia URLs).
An entire domain was blocked on Sunday, and a single post on that domain was blocked on Monday.
For some Facebook pages, the secure version (https://facebook.com/...) is listed, for others the non-secure version (http://facebook.com/...) is listed.
For some YouTube videos, the 'base' URL of YouTube videos is blocked, but for other the URL with various parameters (like the "&related=" parameter) is blocked. That means that even nominally 'blocked' videos will be freely accessible.

All in all, it is clear that the list was not compiled with sufficient care.

Despite a clear warning by the DIT that "above URLs only" should be blocked, and not "the main websites like www.facebook.com, www.youtube.com, www.twitter.com, etc.", it has been seen that some ISPs (like Airtel) have gone overboard in their blocking.

Why haven't you put up the whole list?

Given the sensitivity of the issue, we felt it would be premature to share the whole list. However, we strongly believe that transparency should be an integral part of all censorship. Hence, this analysis is an attempt to provide some much-needed transparency. We intend to make the entire list public soon, though. (Given how porous such information is, it is likely that someone else will procure the list, and release it sooner than us.)

Why can I still access many items that are supposed to be blocked?

One must keep in mind that fresh orders have been issued on a day-by-day basis, that there are numerous mistakes in the list making it difficult to apply (some of these mistakes have been mentioned above), and the fact that that this order has to be implemented by hundreds of ISPs.

Your ISP probably has not have got around to enforcing the blocks yet. At the time of this writing, most ISPs don't seem to be blocking yet. This analysis is based on the orders sent around to ISPs, and not on the basis of actual testing of how many of these have actually been blocked by Airtel, BSNL, Tata, etc.

Additionally, if you are using Twitter through a client (on your desktop, mobile, etc.) instead of the web interface, you will not notice any of the Twitter-related blocks.

So you are fine with censorship?

No. I believe that in some cases, the government has the legal authority to censor. Yet, exercising that legal authority is usually not productive, and in fact there are other, better ways of limiting the harms caused by speech and information than censorship. Limiting speech might even prove harmful in situations like these, if it ends up restricting people's ability to debunk false rumours. In a separate blog post (to be put up soon), I am examining how all of the government's responses have been flawed both legally and from the perspective of achieving the desired end.

So what should the government have done?

Given that the majority of the information it is targeting is on Facebook, Youtube, and Twitter, the government could have chosen to fight alongside those services to get content removed expeditiously, rather than fight against them. (There are some indications that the government might be working with these services, but it certainly isn't doing enough.)

For instance, it could have asked all of them to expedite their complaints mechanism for a few days, by ensuring that the complaints mechanism is run 24x7 and that they respond quickly to any complaint submitted about communal incitement, spreading of panic, etc. This does not need the passing of an order under any law, but requires good public relations skills and a desire not to treat internet services as enemies. The government could have encouraged regular users to flag false rumours and hate speech on these sites. On such occasions, social networking sites should step up and provide all lawful assistance that the government may require. They should also be more communicative in terms of the help they are providing to the government to curtail panic-inducing rumours and hate speech. (Such measures should largely be reactive, not proactive, to ensure legitimate speech doesn't get curtailed.)

The best antidote for the rumours that spread far and wide and caused a mass movement of people from Bangalore to the North-Eastern states would have been clear debunking of those rumours. Mass outreach to people in the North-East (very often the worried parents) and in Bangalore using SMSes and social media, debunking the very specific allegations and rumours that were floating around, would have been welcome. However, almost no government officials actually used social media platforms to reach out to people to debunk false information and reassure them. Even a Canadian interning in our organization got a reassuring SMS from the Canadian government.

It is indeed a pity that the government notified a social media engagement policy today, when the need for it was so very apparent all of the past week.

And what of all this talk of cybersecurity failure and cyber-wars?

Cybersecurity is indeed a cause of concern for India, but only charlatans and the ignorant would make any connection between India's cybersecurity and recent events. The role of Pakistan deserves a few words. Not many Pakistani websites / webpages have been blocked by the Indian government. Two of the Pakistani webpages that have been blocked are actually pages that debunk the fake images that have been doing the rounds in Pakistan for at least the past month. Even Indian websites like Kafila have noted these fake images long ago, and Ayesha Siddiqa wrote about this on August 5, 2012, and Yousuf Saeed wrote about it on August 13, 2012. Even while material that may have been uploaded from Pakistan, it seems highly unlikely they were targeted at an Indian audience, rather than a Pakistani or global one.

Domain	Total Number of Entries	Tuesday, August 21, 2012	Monday, August 20, 2012	Sunday, August 19, 2012	Saturday, August 18, 2012
ABC.net.au	1				1
AlJazeera.com	4		4
AllVoices.com	1				1
WN.com	1				1
AtjehCyber.net	1				1
BDCBurma.org	1	1
Bhaskar.com	1			1
Blogspot.com	4			3	1
Blogspot.in	7	1	3		3
Catholic.org	1			1
CentreRight.in	2	2
ColumnPK.com	1			1
Defence.pk	4		2	1	1
EthioMuslimsMedia.com	1				1
Facebook.com (HTTP)	75	36	7	18	14
Facebook.com (HTTPS)	27		3	23	1
Farazahmed.com	5	1			4
Firstpost.com	2		1	1
HaindavaKerelam.com	1			1
HiddenHarmonies.org	1		1
HinduJagruti.org	2		1	1
Hotklix.com	1			1
HumanRights-Iran.ir	2				2
Intichat.com	1	1
Irrawady.org	1			1
IslamabadTimesOnline.com	1				1
Issuu.com	1				1
JafriaNews.com	1				1
JihadWatch.org	2		2
KavkazCenter	1			1
MwmJawan.com	1				1
My.Opera.com	1	1
Njuice.com	1		1
OnIslam.net	1				1
PakAlertPress.com	1	1
Plus.Google.com	4				4
Reddit.com	1		1
Rina.in	1				1
SandeepWeb.com	1		1
SEAYouthSaySo.com	1				1
Sheikyermami.com	1				1
StormFront.org	1				1
Telegraph.co.uk	1				1
TheDailyNewsEgypt.com	1				1
TheFaultLines.com	1				1
ThePetitionSite.com	1	1
TheUnity.org	1				1
TimesofIndia.Indiatimes.com	1		1
TimesOfUmmah.com	1				1
Tribune.com.pk	1	1
Twitter.com (HTTP)	1			1
Twitter.com (HTTPS)	11			1	10
Twitter account	18		16	2
TwoCircles.net	2			2
Typepad.com	1		1
Vidiov.info	1		1
Wikipedia.org	3			3
Wordpress.com	8	1	3	2	2
YouTube.com	85	18	39	14	14
YouTu.be	1			1
Totals	309	65	88	80	75

The analysis has been cross-posted/quoted in the following places:

LiveMint (September 4, 2012)
The Hindu (August 26, 2012)
Wall Street Journal (August 25, 2012)
tech 2 (August 25, 2012)
China Post (August 25, 2012)
The Hindu (August 24, 2012)
LiveMint (August 24, 2012)
Global Voices (August 24, 2012)
Reuters (August 24, 2012)
Outlook (August 23, 2012)
FirstPost.India (August 23, 2012)
IBN Live (August 23, 2012)
News Click (August 23, 2012)
Medianama (August 23, 2012)
KAFILA (August 23, 2012)
CIOL (August 23, 2012)

For more details visit https://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

Data-Driven Journalism, Data Literacy & Open Government — Talk at CIS

pranesh — 2012-07-31T06:08:55Z

The Open Knowledge Foundation and the Centre for Internet and Society invite you to an informal talk by Lucy Chambers and Laura Newman on 'Data-Driven Journalism, Data Literacy, and Open Government'.

The Government of India recently passed a policy that requires all departments to start opening up data to the public, and NIC is working towards consolidating this on a single website. This workshop would focus on exchanging information on how such data are used by journalists elsewhere, and what can be done in India to drive journalism using data.

Details

The Open Knowledge Foundation is an international not-for-profit with a mission to open up the world's data, build data-literacy and promote evidence-based policy making. Working in 3 broad fields open-government, open research and open cultural heritage the activities of the foundation are focused around projects, working groups and local meetups.

The talk will be very informal, and focus on Data Journalism (datajournalismhandbook.org), but will also touch on data management for governments (ckan.org), the teaching of data literacy (schoolofdata.org) and explaining the meaning of the numbers behind government expenditure (openspending.org).

More Details

The Data Journalism Handbook was born at a 48-hour workshop at MozFest 2011 in London. It subsequently spilled over into an international, collaborative effort involving dozens of data journalism's leading advocates and best practitioners including from the Australian Broadcasting Corporation, the BBC, the Chicago Tribune, Deutsche Welle, the Guardian, the Financial Times, Helsingin Sanomat, La Nacion, the New York Times, ProPublica, the Washington Post, the Texas Tribune, Verdens Gang, Wales Online, Zeit Online and many others. Ms. Chambers was one of the
editors of the book.

Additional Links

Data Journalism Handbook - Online Version:http://bit.ly/Istv8c

Examples of data-driven journalism:http://bit.ly/8KwHR

Data-Driven Journalism mailing list: http://bit.ly/hUOQX3

For more details visit https://cis-india.org/openness/data-driven-journalism-data-literacy-and-open-govt

Centre for Internet and Society

Submission on India's Draft Comments on Proposed Changes to the ITU's ITRs

Background

Follow-up

Statement of Civil Society Members and Groups Participating in the "Best Bits" pre-IGF meeting at Baku in 2012

Signatories:

Submission by Indian Civil Society Organisations on Proposals for the Future ITRs and Related Processes

Response to RTI on Decisions of the Cyber Regulation Advisory Committee

Draft nonsense

Fixing India’s anarchic IT Act

Breaking Down Section 66A of the IT Act

Term of Punishment

"Sending" vs. "Publishing"

Section 66A(c)

Section 66A(b)

Section 66A(a)

Constitutional Arguments in Importing Laws from the UK

Genealogy of UK Law on Sending 'Indecent', 'Menacing', 'Grossly Offensive' Messages

Comparison between S. 66A and Other Statutes

Section 66A of the Information Technology Act

Arbitrary Arrests for Comment on Bal Thackeray's Death

Facts of the case

What provisions of law were used?

Was the law misapplied?

Role of bad law and the police

Rule of law

Social Media Regulation vs. Suppression of Freedom of Speech and Expression

Feedback to Draft Copyright Rules, 2012

Relinquishment of Copyright

Analysis

Recommendations

Statutory Licence for Cover Versions

Analysis

Recommendations

Indexes

Analysis

Recommendation

Storage of Transient or Incidental Copies of a Work

Analysis

Recommendation

Making or Adapting the Work by Organizations Working for the Benefit of Persons with Disabilities

Analysis

Recommendations

Technological Protection Measures

Analysis

Recommendation

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

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

Analysing Latest List of Blocked Sites (Communalism & Rioting Edition)

How many items have been blocked?

Why have these been blocked?

Are the blocks legitimate?

Are there any egregious mistakes?

Why haven't you put up the whole list?

Why can I still access many items that are supposed to be blocked?

So you are fine with censorship?

So what should the government have done?

And what of all this talk of cybersecurity failure and cyber-wars?

Consumers International IP Watchlist 2012 — India Report

Summary

Data-Driven Journalism, Data Literacy & Open Government — Talk at CIS

Details

More Details

Additional Links