Centre for Internet and Society

India's Online Freedom Advocates Hail Court Ruling on Free Speech

praskrishna — 2015-03-27T01:43:22Z

Online freedom advocates in India are hailing a court ruling that struck down a controversial law seen as infringing free speech on the Internet. But in a country expected to have the world’s largest number of web users by 2018, some concerns about net censorship remain.

The blog post by Anjana Pasricha was published by Voice of America on March 24, 2015. Sunil Abraham is quoted.

The 24-year old law student, Shreya Singhal, who spearheaded the legal battle for overturning the harsh law, said it was the arrest of two young women in 2012 for a seemingly innocuous Facebook post that prompted her to petition the Supreme Court. One woman had criticized a shutdown in Mumbai after the death of a Hindu nationalist leader Bal Thackeray, the other “liked” her post.

Like millions of others, Singhal was alarmed at their detention because she says she could have been the one to post the innocuous comment.

“It [the law] was punishing people for expressing their views on the Internet, whereas if they did it or they did it on TV or they did nit in newspapers, they would not get arrested for the same views,” she said.

Scrapping the law on Tuesday, India's Supreme Court said the Information Technology Act was vaguely worded, and did not explain what could be “inconvenient" or “grossly offensive.” The judgment said the law was liable to have a chilling effect on free speech as it strikes at the root of liberty and freedom of expression.

The law had raised alarm bells after several people were arrested in recent years for posting “objectionable content.” In the latest instance, a 16-year-old boy in Uttar Pradesh state was arrested and released on bail for posting an “insulting” remark about regional party leader, Azam Khan. Among others who were picked up under the law were a professor in Kolkata and a cartoonist in Mumbai.

The previous government, which passed the law, said it was necessary to combat abuse and defamation on the Internet, but critics said it was used by political parties to suppress dissent and criticism.

The Supreme Court ruling also made it tougher for the government to order Internet companies to remove online content.

Sunil Abraham of Bangalore-based Center for Internet and Society says local and foreign Internet companies have faced growing pressure for putting up content deemed offensive in India.

“According to Facebook's latest transparency report, takedown requests and information requests from the Indian government continue to grow, and that is worrying. But that part of the law has been read down. Now when the government sends the takedown notice, it has to be accompany the takedown notice with a court order,” said Abraham.

But free speech campaigners say concerns about online censorship have not completely gone away. The Supreme Court has upheld a law that allows the government to block websites, saying there are sufficient safeguards.

Campaigners like Sunil Abraham think otherwise. “Lack of transparency makes it impossible for anybody to tell whether the government is censoring the Internet in a proportionate manner, whether it is working to truly address the real harms that emerge from bad content online. When the court in India bans books or movies, the judgments of these courts are made available to the public."

"But if when it comes to website blocking, this transparency requirement is missing. In fact, the law has secrecy provisions, which prevents ISP’s that receive these block orders from making them available in the public domain,” said Abraham.

The young student, Singhal, who led the legal battle, said she was “overwhelmed” at the victory for online freedom.

“We are such a diverse society in India with so many diverse and different opinions. It is inherent in us, it is part of us, this democracy, this debate we have,” she said.

Her views were echoed on Twitter and Facebook by people in India, a country of 1.2 billion people where Internet access is growing rapidly.

For more details visit http://editors.cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech

India's Supreme Court Axes Online Censorship Law, But Challenges Remain

subha — 2015-03-27T02:38:20Z

The Supreme Court of India took a remarkable step to protect free expression on March 24, 2015, striking down controversial section 66A of the IT Act that criminalized “grossly offensive” content online. In response to a public interest litigation filed by Indian law student Shreya Singhal, the court made this landmark judgement calling the section “vague”, “broad” and “unconstitutional”. Since Tuesday's announcement, the news has trended nationally on Twitter, with more than 50,000 tweets bearing the hashtags #Sec66A and #66A.

The blog entry by Subhashish Panigrahi was originally published by Global Voices Online on March 25, 2015. Pranesh Prakash is quoted.

Section 66A allowed police to arrest any person who sent online communications deemed “grossly offensive” or known to be false. This has enabled the government take down many websites with allegedly objectionable content. Among various cases since the law was updated in 2008, two people were arrested for making comments on Facebook regarding India's prime minister Narendra Modi and one man was arrested for commenting on public service closures following the death of political leader Bal Thakrey.

The now-defunct Section 66A reads as follows:

66-A. 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; or
(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.

Internet rights advocate and lawyer Pranesh Prakash, who works with the Center for Internet and Society in Bangalore, has been one of the law's most outspoken critics in recent years. Immediately following the ruling, he tweeted:

Nikhil Pahwa, independent journalist and founder of the MeddiaNama blog, offered his take on the ruling:

This is a great decision for freedom of speech in India…66A is far too vague, and lends itself to arbitrary implementation by the police, especially phrases like “grossly offensive”, annoyance, inconvenience, ill will. Remember that even the right to offend is an integral part of free speech.

Journalist and author Sagarika Ghose sarcastically wondered if the government of India would retroactively offer recompense for all of the actions taken against citizens for violating 66A.

Some were playful in their response to the decision. Siddharth Sing set out to “test” the efficacy of the ruling with a tweet mocking prominent public figures in Indian politics:

Section 69, which provides authorities with the power to censor websites that “create communal disturbance, social disorder, or affect India's relationship with other countries” was upheld however. The Court has yet to clarify this decision. CIS India's Pranesh Prakash tweeted:

Unfortunately 69A (website blocking) has been upheld despite many issues, incl lack of transparency. Need to read full judgment to see why.

— Pranesh Prakash (@pranesh_prakash) March 24, 2015

Tuesday's decision comes after the government of India was heavily criticized in January 2015 for blocking 32 websites in the country.

For more details visit http://editors.cis-india.org/internet-governance/blog/global-voices-march-25-2014-subhashish-panigrahi-indias-supreme-court-axes-online-censorship-law-but-challenges-remain

What 66A Judgment Means For Free Speech Online

geetha — 2015-03-27T16:50:43Z

This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law.

Geetha Hariharan's article was originally published in the Huffington Post on March 26, 2015.

This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon suo moto determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.

The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery: Wendy Doniger's The Hindus: An Alternative History was banned for hurting religious sentiments, publisher Orient Blackswan fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan faced harsh criticism for his novel One Part Woman and chose to slay his authorial identity.

"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."

The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries prefer to tread a safe path, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has blocked websites in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, Shaheen Dhada and her friend were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.

Section 66A: No longer draconian

In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of Section 66A on grounds, inter alia, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and these were heard jointly by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.

"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."

Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.

With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in Article 19(2).

What speech is protected?

There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.

" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."

Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.

For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.

Section 69A and website blocking

Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.

"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."

Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.

Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.

Section 79 and the intermediary as a judge

Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.

"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."

This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. Previous studies have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in Otto-Preminger Institut, the freedom to "offend, shock and disturb".

In Shreya Singhal, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.

With Shreya Singhal, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!

For more details visit http://editors.cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online

SC has set a high threshold for tolerance: Lawrence Liang

praskrishna — 2015-03-28T16:18:18Z

Lawyer-activist Lawrence Liang on why SC upheld section 69A and the implications of striking down section 66A.

The article by Dhamini Ratnam was published in Livemint on March 28, 2015. Lawrence Liang gave his inputs.

Tuesday marked a landmark in the fight for free speech in our country, as the Supreme Court struck down the contentious section 66A of the Information Technology Act of 2000. The section, which was introduced through an amendment in 2009, penalized those who wrote messages online that could be deemed as being false or grossly offensive. However, the apex court turned down a plea to strike down sections 69A (procedure for blocking websites) and 79 (exemption from liability of intermediaries) of the same law. Lawrence Liang, a lawyer who co-founded the Alternative Law Forum in Bengaluru, a fellow at the Centre for Internet and Society, and author of The Public is Watching: Sex, Laws and Videotape and A Guide to Open Content Licenses, spoke in an interview on the wide-ranging implications of the judgement. Edited excerpts:

What was the impetus to fight section 66A?

Over the past few years, there have been numerous cases in which section 66A has been used in bad faith against individuals online. One of the cases that became well-known by virtue of just how ridiculous it was involved the arrest of Shaheen Dhada and her friend Renu Srinivasan (which led petitioner Shreya Singhal to file a public interest litigation in the Supreme Court that eventually led to this judgement), but there have been more, so it was inevitable that a law as draconian as section 66A would be challenged for its constitutional validity.

The judgement begins by noting a distinction between three forms of speech—discussion, advocacy and incitement—and says discussion and advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution (all citizens shall have the right to freedom of speech and expression). Only when they reach the level of incitement can they be legitimately prohibited. While the judgement does not provide a new definition of incitement, it affirms what was laid down in the Rangarajan test (1989), in which the courts had established that for censorship to be justified, the “expression of thought should be intrinsically dangerous to the public interest”. There should be an immediate and direct relation between speech and effect.

The court said that section 66A is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. The courts have also historically held that Article 19(1)(a) is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. However, I would say that the court missed an opportunity to consider the blocking of websites under section 69A.

Why did the court uphold section 69A, and which other parts of the IT Act did it examine?

If section 66A was found to be arbitrary, then the procedure for blocking websites, as laid out in section 69A, is also beset with similar problems. The court, however, upheld this section and the rules under the IT Act on the grounds that there are internal safeguards and reasonable procedures. This section allows the government to block any site or information that violates Article 19(2) of the Constitution (which enables the legislature to impose certain restrictions on free speech).

The problem is that often there is no hearing or notice given to the owner of information, there is no transparency since blocks can happen on a confidential basis and these can have serious implications for the right to receive information.

The court read down section 79, which used to provide an intermediary exemption from liability with the exception that if it received “actual knowledge” of any illegal content, it was obliged to act within 36 hours. A study by the Centre for Internet and Society showed that even on sending frivolous takedown notices, intermediaries tended to comply to be on the safe side. The court’s decision has read down section 79 now to mean that “actual knowledge” means either an order of a court or the government. It moves it away from a subjective determination by intermediaries.

The court could have, like it did with section 79, retained section 66A while clarifying a procedure that would maintain a balance between the need sometimes to block and public interest, and transparency.

What does the judgement open up for the free speech debate?

The judgement speaks of chilling effects, because if one is not careful, one runs the risk of endangering political discourse through self-censorship. This is terrible for a democratic culture, which is premised on the ability to debate and dissent. Much of the use of section 66A has been politically motivated to silence criticism, and the judgement goes a long way towards promoting a culture of critique.

As the first major Supreme Court case on free speech in the 21st century, it sets the tone on how we think of free speech in a context where every individual with a smartphone is potentially a writer, a publisher and a distributor. By setting a high threshold for what is tolerated in online speech, it ensures that the online space is not doomed to be infantilized.

What position must the law take to protect rights and minority identities?

I think it is important to distinguish between different effects of speech. The court has merely reaffirmed a position that has been held in India for a long time (such as through the Ram Manohar Lohia judgement of 1960, which interpreted what “restriction made in the interests of public order” in Article 19(2) means). In other words, if someone is inciting violence, especially if they have the power to effect such violence (such as a politician), then their speech can be regulated, but the court also held that the idea of threat to public order is often imaginary.

For instance, in what way would Shaheen Dhada’s post on Facebook have incited violence? (In November 2012, Dhada, then a student and based in Palghar, Maharashtra, had written a post on Facebook commenting on the state of shutdown that followed politician Bal Thackeray’s death. Her comment was liked by her friend Srinivasan, and both of them were charged under section 66A.) So, the court is distinguishing between speech that is critical and speech that is dangerous. There are laws that deal with the latter, such as 153A and 295A of the IPC (Indian Penal Code).

It must be noted, however, that provisions also suffer from the same vice of vagueness. What we need is a more nuanced understanding of hate speech that addresses speech that incites violence or hatred against a community, but one in which the test is not of subjective hurt sentiment. The problem with hate speech laws is that they collapse questions of law and order with questions of subjective hurt, and we run the risk of becoming a republic of hurt sentiments where anyone can claim that their sentiments are hurt, especially their religious sentiments.

What happens to existing cases that are being tried under section 66A, such as the one against the organizers and participants of the All India Bakchod Roast?

Court judgements do not necessarily have retrospective effect, so cases that have been filed will continue. We must also remember that the cases filed under section 66A were also accompanied by other provisions. Of course, a judgement as significant as this, which completely delegitimizes section 66A, will have a profound impact on the ongoing cases insofar as they relate to the offence under the section, but the other charges remain.

For more details visit http://editors.cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance

66A DEAD. LONG LIVE 66A!

praskrishna — 2015-04-01T02:11:27Z

Last Tuesday, Twitter CEO Dick Costolo walked into Prime Minister Narendra Modi's office. India's most compulsive and most-followed tweeter, Modi, as Gujarat chief minister, had protested when the Manmohan Singh government blocked the micro-blogging site of a few journalists. Modi had blacked out his own Twitter profile and tweeted: “May God give good sense to everyone.”

The article by Soni Mishra was published in the Week on March 28, 2015. T. Vishnu Vardhan gave his inputs.

Today, with 11 million followers on Twitter, and 27.6 million likes on Facebook, Modi rules the virtual world and India. He received Costolo warmly and told him how Twitter could help his Clean India, girl child and yoga campaigns. Impressed, Costolo told Modi how Indian youth were innovating on Twitter.

But, the greatest and the most fundamental boost for all social media in India was being effected a few minutes drive away from the PMO. Ironically, in the Supreme Court of India, Modi's lawyers were defending a law made by the United Progressive Alliance government—section 66A of the Information Technology Act, which curbed free speech on social media.

Anything posted on the internet can go viral worldwide and reach millions in no time, argued Additional Solicitor General Tushar Mehta. While the traditional media is ruled by licences and checks, social media has nothing, he said. Finally, Mehta made an impassioned plea that the government meant well. Section 66A will be administered reasonably and will not be misused, he assured the court.

It seemed he, and the government, had forgotten an old saying: if there is a bad law, someone will use it. Luckily for India, and its liberal democracy, the judges saw a bad law and struck it down. “If section 66A is otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general,” said the bench comprising Justice Rohinton Nariman and Justice J. Chelameswar.

The fact is that 66A was knee-jerk legislation. Almost as thoughtless and compulsive as a netizen's derisive tweet. On December 22, 2008, the penultimate day of the winter session, the UPA government had got seven bills passed in seven minutes in the Lok Sabha; the opposition BJP had played along.

One of the bills was to amend the IT Act. It went to the Rajya Sabha the next day, when members were hurrying to catch their trains and flights home for the year-end vacation. They just okayed the bill and hurried home.

The argument then was that there was no need to discuss the bill as it had been examined by a standing committee of Parliament. Indeed, it had been. But, the committee, headed by Nikhil Kumar of the Congress, had met only for 23 hours and five minutes. Nine of its 31 members had not attended a single meeting. Ravi Shankar Prasad, the current Union minister for IT, was one among the 31.

Apparently, everyone wanted the bill, so did not bother to apply their minds. Only a CPI(M) member, A. Vijayaraghavan, had a few dissenting suggestions to the committee report. No one else bothered to mull over a law that was “unconstitutional, vague” and which would have a “chilling effect” on free speech.

Once the law was made, it was constable raj across India. Shaheen Dhada from Palghar simply commented on Facebook about a Shiv Sena bandh on the death of Bal Thackeray. Her friend Rinu Srinivasan liked it. The two teenagers were bundled into a police station. Rinu still remembers with a chill how “a mob of about 200 people gathered outside the police station that day.” This was when the Congress was ruling Maharashtra.

Jadavpur University professor Ambikesh Mahapatra was picked up by the police in Trinamool Congress-ruled West Bengal in April 2012, for posting a cartoon ridiculing Chief Minister Mamata Banerjee. “I was thrashed several times in police custody,” said the professor, who got relief from the West Bengal Human Rights Commission.

Vickey Khan, 22, was arrested in Rampur, UP, for a Facebook post on Samajwadi Party leader Azam Khan. Rampur is, of course, Khan's pocket borough. The Uttar Pradesh Police, controlled by the Samajwadi Party government, also arrested dalit writer Kanwal Bharti from Rampur for criticising the UP government's suspension of IAS officer Durga Shakti Nagpal in 2013.

At least 30 people in AIADMK-ruled Chennai have been booked under 66A; four of them this year. Ravi Srinivasan, general secretary of the Aam Aadmi Party in Puducherry, was picked up in October 2012 for his tweets on Karti Chidambaram, son of then Union home minister P. Chidambaram. “He was not even in India when I tweeted,” said Ravi. “He sent the complaint by fax from abroad and everything happened [fast] as Puducherry is a Union Territory and can be controlled by the home ministry.”

Whistleblower A. Shankar of Chennai was pulled up by the Madras High Court for the content on his blog, Savukku. The Orissa Police, controlled by the Biju Janata Dal (BJD) government, took Facebook to court in 2011 asking who created a Facebook page in the name of Chief Minister Naveen Patnaik. It is another thing that the page had no content.

Indeed, there had been stray political voices opposing the law. In Parliament, the CPI(M)'s P. Rajeeve, the BJD's Jay Panda and independent MP Rajeev Chandrasekhar pushed several times for scrapping 66A. Panda moved a private members bill, and Rajeeve moved a resolution. “I only wish we in Parliament had heeded the people's voice and repealed it, instead of yet again letting the judiciary do our work for us,” Panda said after the law was scrapped.

Finally, it was left to a young law student, Shreya Singhal, to move the Supreme Court on behalf of the Palghar girls. Singhal pointed out that several provisions in 66A violated fundamental rights guaranteed by article 19(1)(a)—the right to freedom of speech and expression. Several more cases followed and, finally, the court heard them together.

Indeed, Justices Nariman and Chelameswar have been extremely restrained in their comments. But, the fact that Parliament had not applied its mind comes through in the judgment.

The court “had raised serious concerns with the manner in which section 66A of the IT Act has been drafted and implemented across the country,” pointed out Supreme Court lawyer Shivshankar Panicker. Added Kiran Shanmugam, a cyber forensic expert and CEO of ECD Global Bengaluru: “The law lacked foresight in estimating the magnitude of the way the electronic media would grow.”

Apparently the government, too, knew it was defending the indefensible, and tried to win the case highlighting the benign nature of the democratic state. But, the court was not impressed. “Governments may come and governments may go, but section 66A goes on forever,” the judges noted. “An assurance from the present government, even if carried out faithfully, would not bind any successor government.”

Clearly, Mehta was defending the indefensible, a law that, the court found, would have a “chilling effect on free speech”. Moreover, as the judges found out, the new law did not provide even the safeguards that the older Criminal Procedure Code had provided. “Safeguards that are to be found in sections 95 and 96 of the CrPC are also absent when it comes to section 66A,” the judges said. For example, according to the CrPC, a book or document that contained objectionable matter could be seized by the police, but it also allowed the publisher to move court. The new law did not provide even such a cushion.

All the same, the court was careful and did not overturn the entire law. It scrapped section 66A, and section 118(D) of the Kerala Police Act, but upheld section 69A and section 79 of the IT Act, which too had been questioned by the litigants (see box on page 45).

The judgment has set the cyberworld rocking. “I am so happy now, I do not know how to express it,” said Rinu, now an audio-engineering student in Kerala. Shaheen is married and lives in Bengaluru. Vickey Khan is relieved. “Some people had told me that I could be jailed for three years,” he said. But, Azam Khan took it out on the media and said it “favours criminals”.

Karti, who claims to be a votary of free speech, however, wants “some protection” against defamation. “I filed a complaint in an existing provision of law,” he said. “If that provision is not available, then I will have to seek other provisions to safeguard my reputation.”

Mahapatra is still apprehensive. “The government will still try to harass me,” he said. “But I know that in the end I will win.” Shankar of Chennai called it “a huge relief for people like me, who are active on social media.” Ravi Srinivasan, who locked horns with Karti, said he felt “relieved and happy”.

The hard rap on the knuckles for their legislative laxity has sobered the political class. The Congress, the progenitor of 66A, admitted that the vagueness of the law was its undoing. “If in a particular area, the local constabulary took action to stifle dissent, it was never the purpose of the act,” said Congress spokesperson Abhishek Manu Singhvi. The Modi government officially welcomed the judgment, and its spokespersons are blaming the UPA for the law.

Apparently, the scrapped law was made after a series of grossly offensive posts appeared on the social media five years ago. “If such content is not blocked online, it would immediately lead to riots,” said a law ministry official, who said the posts had been shown to the court, too. He said the government would take some time to draft a new law.

But, is a new law required? Opinion is still divided. What if someone is defamed on the net? “There are defamation laws which can deal with these,” said T. Vishnuvardhan, programme director, Centre for Internet and Society, Bengaluru. “Also, the IT Act has various provisions. If somebody misuses your picture on social media, you can report it to the website immediately. The website is liable to take action on it within 36 hours.”

Smarika Kumar of Bengaluru-based Alternative Law Forum said the scrapping of 66A does not mean one can post anything online. “The Supreme Court has said that speech can be censored when it falls under the restrictions provided under article 19(2) of the Constitution,” she said. “But, if you prevent speech on any other ground, it is going to be unconstitutional.”

But, even critics of 66A think a replacement law is needed. Said Rajeev Chandrasekhar: “The government needs to act quickly and create a much more contemporaneous Act, via multi-stakeholder consultations, general consensus and collaboration, so that there is less ambiguity and freedom of expression is preserved.”

Senior Supreme Court advocate Pravin H. Parekh said, “As the cyberworld is growing day by day and there is increase in the number of social media users, we do require a proper mechanism which can regulate the expression of views on the internet.”

The government is putting forth the argument of national security. “If the security establishment says the present act is not sufficient, we will look into it. The government will consider it, but only with adequate safeguards,” said Ravi Shankar Prasad.

That will call for a legislative process undertaken in a cool and calm house, and not hurried through when the members are ready to hurry home.

Sound judgment

Thumbs down
The Supreme Court set aside section 66A of the IT act, which says any person who sends offensive, menacing or false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, or uses email to trouble its recipient or deceive him/her about the origin of such messages, can be punished with a jail term up to three years and a fine.

The court also struck down section 118(d) of the Kerala Police Act, which says any person who makes indecent comments by calls, mails, messages or any such means causing grave violation of public order or danger can be punished with imprisonment up to three years or a fine not exceeding Rs10,000, or both.

Thumbs up
The Supreme Court upheld section 69A of the IT act, which allows the government to block the public's access to information in national interest and penalise intermediaries [telecom or internet service providers and web hosting services] who fail to comply with the government's directives.

Section 79 of the IT Act, which deals with intermediaries' exemption from liability in certain cases, too, was upheld.

With R. Prasanan, Mini P. Thoma, Ajay Uprety, Lakshmi Subramanian, Rabi Banerjee and Sharmista Chaudhury

For more details visit http://editors.cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a

If you thought India is a country where freedom of speech and expression are fundamental rights, think twice!

praskrishna — 2015-04-04T15:52:42Z

Having contributed significantly in growing pollution and corruption indices, there's one place where India seems to hold the top spot is: imposing restrictions on social media contents. There have been over 5,800 restriction requests recorded in the second half of 2014, as per Facebook's Government Requests Report.

The article was published in Business Insider on March 17, 2015. Pranesh Prakash was quoted.

Economic Times has reported that data and content restrictions across the globe are on the rise and India seems to have topped the list. The content restrictions from India have been constantly on the rise—it rose to 5,832 from 4,960 in the first half.

Things are not any different across the globe. "The amount of content restricted for violating local law increased by 11% over the previous half, to 9,707 pieces of content restricted, up from 8,774," said Monika Bickert, Facebook's head of global policy management, and Chris Sonderby, deputy general counsel, in a statement on the social networking website.

Other countries from where Facebook has observed an increased number of content restrictions requests are Turkey and Russia. Surprisingly, FET reported that the number of content restriction requests from Pakistan came down to 54 in the second half of 2014 from 1,773 in the first half.

It is worth noting that India is the second largest market for Facebook, with 112 million users until last year, second only to the United States. While these figures are alarming, counsel for the Software Freedom Law Centre told ET , "...it would have been better if Facebook had also given us more information on the kind of data that was being asked for. Now we only have consolidated figures. So what kind of data was asked for, that would have been more useful."

Pranesh Prakash, policy director at the Centre for Internet and Society, on the other hand, feels that the number of content restriction requests is not only high on an absolute number, but even on a per-user basis.

For more details visit http://editors.cis-india.org/internet-governance/news/business-insider-march-17-2015-if-you-thought-india-is-a-country-where-freedom-of-speech-and-expression-are-fundamental-rights-think-twice

What Does Facebook's Transparency Report Tell Us About the Indian Government's Record on Free Expression & Privacy?

pranesh — 2015-04-05T05:08:37Z

Given India's online population, the number of user data requests made by the Indian government aren't very high, but the number of content restriction requests are not only high on an absolute number, but even on a per-user basis.

Further, Facebook's data shows that India is more successful at getting Facebook to share user data than France or Germany. Yet, our government complains far more about Facebook's lack of cooperation with Indian authorities than either of those countries do. I think it unfair for any government to raise such complaints unless that government independently shows to its citizens that it is making legally legitimate requests.

Since the Prime Minister of India Shri Narendra Modi has stated that "transparency and accountability are the two cornerstones of any pro-people government", the government ought to publish a transparency report about the requests it makes to Internet companies, and which must, importantly, provide details about how many user data requests actually ended up being used in a criminal case before a court, as well as details of all their content removal requests and the laws under which each request was made.

At the same time, Facebook's Global Government Requests Report implicitly showcases governments as the main causes of censorship and surveillance. This is far from the truth, and it behoves Facebook to also provide more information about private censorship requests that it accedes to, including its blocking of BitTorrent links, it's banning of pseudonymity, and the surveillance it carries out for its advertisers.

For more details visit http://editors.cis-india.org/internet-governance/blog/what-does-facebook-transparency-report-tell-us-about-indian-government-record-on-free-expression-and-privacy

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?

jyoti — 2015-04-17T23:59:34Z

Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.

The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.

Conditions qualifying intermediary for exemption and obligations not related to exemption

The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a “marketplace of ideas”. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.

S. 69A grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The 2009 rules allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.

There are two key aspects of both these provisions that must be noted:

a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”

b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes “intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.” The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.

Subjective Determination of Knowledge

The provisions for exemption laid down in S. 79 do not apply when they receive “actual knowledge” of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down “upon obtaining knowledge by itself” and “brought to actual knowledge” under Rule 3(4) in the same manner as 79(3)(b).

Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term “unlawful acts” and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, “the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”

By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with takedown requests from non-government entities and has made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2).

Procedural Safeguards

The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order.

Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices.

Accountability

The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.

Transparency

The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India.

The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content.

The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists.

For more details visit http://editors.cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability

Freedom struggle 2.0

pranesh — 2015-04-27T01:23:44Z

In the face of the debate on net neutrality, here is a look at the consequences of not having a free, equal, and private internet.

The article was published in the Hindu on April 25, 2015. Pranesh Prakash gave his inputs.

There has been so much noise surrounding net neutrality (generously helped along by All India Bakchod’s explanatory video) that by now even my technology-abhorring grandmother knows something is rotten in the state of Denmark.

However, let us recap: net neutrality refers to a free and open Internet that lets us utilise every channel of communication without bias or — heaven forbid — having to pay extra dough. Paid sites and subscriptions excluded of course; the owners have to send their kids to college, you know. As to the Importance of net neutrality, it is “... a democratic principle (in line with the right to equality in our Constitution) and it is important for freedom of speech and expression,” says Pranesh Prakash of the Centre for Internet and Society.

“Evolving technologies cannot be regulated” was one of the opening lines of Almost Human, a science fiction/crime series that did not survive its debut season. A profound statement, especially in the light of the blistering debate over net neutrality. A debate that has the Twitterati frothing at the mouth and primed to spew sarcasm at those against them in what is being perceived as a battle of epic proportions. Sample these: @Roflindian: What if this net neutrality debate was a clever ploy by telcos to merrily push up rates? And we’ll be like — anything for net freedom! @GabbbarSingh: Someone should launch a start-up just to announce its support to #NetNeutrality “We at Random-Word-with-no-vowels support #NetNeutrality”. @madversity: Net Neutrality has become so popular in Delhi in just three days Aunties want to know where it is available so they can wear it for Karva Chauth.

The battle for net neutrality, in India at least, looks to have exacerbated suddenly in the past few weeks. In truth, however, the issue has been brewing for quite a while, fanned by the Federal Communications Commission’s (FCC) penchant for preparing sheaves of rules and regulations, sundry disputes and discourses by the Reddit demigods and anyone who owns a blog or a YouTube channel, the Bitcoin mafia’s complacent insistence on being the saviour of the web as we know it, and the rumours and filtered nuggets of news surrounding Google’s plans for a mobile virtual network operator (MVNO).

Here, then, are the main antagonists of our piece: telecom company Airtel (post its announcement of the ostensibly unpopular Airtel Zero plan, so much so that the CEO decided to grace Airtel’s users with an e-mail to “clear the air”) and Telecom Regulatory Authority of India (TRAI) that has taken to pitting Davids (consumers) against Goliaths (telecom companies) by floating a paper (subject to discussion and a cannonade of indignant e-mails) containing “some of the strangest and some ridiculously biased statements”, as Nikhil Pahwa succinctly put it in a MediaNama piece.

According to Airtel’s CEO, their “vision is to have every Indian on the Internet. There are millions of Indians who think that the Internet is expensive and do not know what it can do for them… We know that if we allow them to experience the joys of the Internet they will join the digital revolution.” Noble thought, but the sentiment is marred by the sordid matter of blunt. “Airtel Zero is a technology platform that connects application providers to their customers for free. The platform allows any content or application provider to enrol on it so their customers can visit these sites for free. Instead of charging customers we charge the providers who choose to get on to the platform.” In effect, restricting the freedom of the consumer to choose what site he/she wishes to use.

And I wish telecoms would stop bandying about the word “free” like confetti at a wedding. ‘100 free SMSes per day! Only at Rs. 50 a month!’ Well, I’m still losing Rs. 50, aren’t I? Why would you insult my intelligence by telling me my 100 SMSes are free then? “Customers are free to choose which website they want to visit, whether it is toll free or not. If they visit a toll free site they are not charged for data. If they visit any other site normal data charges apply.” Well, pray tell us plebians, Mr. CEO, since companies like Flipkart, NDTV and others have already abandoned the Airtel Zero ship, and a Google probably mightn’t consider coming aboard, having bigger fish to fry (i.e. its MVNO plans), does not your unequal treatment of these websites go against the very backbone of net neutrality?

The debate on net neutrality has more far-reaching consequences, however, than just having to shell out extra to exchange annoying Whatsapp group messages all day long or Skyping with your significant other. The absence of neutrality will result in a barrage of unregulated technologies and the unprecedented growth of the deep web (the portion of Internet content that is not or cannot be indexed by regular or standard search engines — typically comprising around 90 per cent of data presently available on the World Wide Web). Most of the deep web is a fairly innocuous place, consisting of anything from library catalogues to your private folder of dead baby jokes, but it is also a lair of (mostly) undetectable criminal activity (case in point, the recent shutdown of Silk Road, an online black market for your every requirement, and I mean every requirement).

The deep web, naturally, is the best illustration of “a free, equal, and private Internet” (when its powers are harnessed for good, not evil) and so is its most popular currency — Bitcoin. A Bitcoin is, in the concise words of Danny Bradbury (in an informative CoinDesk piece), “a payment mechanism designed to level the playing field, driving out unnecessary costs and making it possible for even the lowest income members of society to participate in the economy. But it relies on a free and open Internet to do so.” And vice versa. Researchers have been working on a way to make micropayments and encryption work together without privacy or bandwidth compromise via mesh networks (faster connections through nearby peers, thus leading to net neutrality, and further to telecoms becoming skittish). However, steady price gains for Bitcoin as well as altcoins (alternative cryptocurrencies to bitcoin) are undeniable proof that telecoms may have to bow to the inevitable.

Also, in the absence of a free and open Internet, organisations like Wikileaks and Anonymous would abound with alacrity. While some would call that an excellent development, there are those who would want to banish Internet altogether from our fair land, making the aam junta cower, tremble and rage by turns at the usurping of its digital rights.

Another thing that seems to be troubling very few, especially in the wake of the wave of acrimony against Airtel, is Google’s plans to expand into the MVNO market. Google, so goes the news, is planning to go into partnership with Sprint and T-Mobile to further its plans of becoming a wireless carrier. While Google already provides free or subsidised Internet with Project Loon and Google Fiber, the new move could easily prove a challenge to net neutrality. Some see the move as harmless — in fact, for the greater good. Evidenced by a senior software engineer of my acquaintance who, since Google makes money by tracking user information and behaviour online and doesn’t prioritise certain kinds of traffic on the Internet access it provides currently, doesn’t see them having any incentive to do so in the cellular space. In fact, he finds the Google MVNO a fascinating move, especially since Sprint and T-Mobile have far fewer subscribers than ATT or Verizon — meaning that the MVNO provider is at the mercy of these MNOs and that, were Google to be successful with this, it means the MNOs are losing selling power. An interesting irony in the context of net neutrality. On the other hand, a researcher at Centre for Internet and Society and former tech journalist is of the opinion that Google may try to push its services since that has always been the case with corporates, whether they provide CSR freebies or diversify their business.

After all, “Who decides what we consume? What if tomorrow the government decides everyone watching YouTube is wasting their time, or [those] watching cricket should be doing something better? That starts to tread into censorship...” says Vijay Anand of The Startup Centre. I suppose all we can do is keep hope animatedly existent as to the triumph of the freedom in our webspace and spam TRAI’s inbox with as many e-mails as we can.

Net Neutrality

Net neutrality is a principle that says Internet Service Providers (ISPs) should treat all traffic and content on their networks equally.

How does net neutrality affect you?
The internet is now a level-playing field. Anybody can start up a website, stream music or use social media with the same amount of data that they have purchased with a particular ISP. But in the absence of neutrality, your ISP might favour certain websites over others for which you might have to pay extra. Website A might load at a faster speed than Website B because your ISP has a deal with Website A that Website B cannot afford. It’s like your electricity company charging you extra for using the washing machine, television and microwave oven above and beyond what you are already paying.

Why Now?

Late last month, Trai released a draft consultation paper seeking views from the industry and the general public on the need for regulations for over-the-top (OTT) players such as Whatsapp, Skype, Viber etc, security concerns and net neutrality. The objective of this consultation paper, the regulator said, was to analyse the implications of the growth of OTTs and consider whether or not changes were required in the current regulatory framework.

Key Players
Internet Service Providers like Airtel, Vodaphone, Reliance... The Telecom Regulatory Authority of India which lays down the rules for telecom companies The Internet companies like Facebook, Google, whatsapp and other smaller startups You, the consumer

What is an OTT?
OTT or over-the-top refers to applications and services which are accessible over the internet and ride on operators' networks offering internet access services. The best known examples of OTT are Skype, Viber, WhatsApp, e-commerce sites, Ola, Facebook messenger. The OTTs are not bound by any regulations. The Trai is of the view that the lack of regulations poses a threat to security and there’s a need for government’s intervention to ensure a level playing field in terms of regulatory compliance.

For more details visit http://editors.cis-india.org/internet-governance/news/the-hindu-zara-khan-april-25-2015-freedom-struggle

Roundtable: Identifying and Limiting Hate Speech and Harassment Online

praskrishna — 2016-08-09T13:31:58Z

Japreet Grewal attended this event organized by Software Freedom Law Centre at Constitution Club Of India, Rafi Marg, New Delhi on July 28, 2016.

See the original report published by SFLC here.

SFLC.in organized a roundtable discussion on 28^th July, 2016 in New Delhi to initiate a focused and collaborative dialogue around the increasingly important issues of online harassment and hate speech. This roundtable was intended as the first in a series of discussions around said issues, and was attended by representatives from various stakeholder groups including intermediary platforms, civil society groups, and media houses, along with individuals who had personally experienced such online abuse & harassment. The core objective of this discussion was to recognize and understand the vast range of concerns that exist in this sphere, in an effort to develop a framework for the regulation of such activities, without stepping on the right to freedom of expression. The discussion was conducted under Chatham House rules so as to facilitate an uninhibited exchange of views.

Over the course of the event, the complex and multifaceted nature of its overarching theme unraveled, as the discussion moved from underlying social constructs, to responsibilities of intermediary platforms, adequacy of existing laws, sensitization of everyday users and effective handling of grievances by law enforcement agencies. At the very outset, it was highlighted that social media platforms, with their increasing popularity, are being considered centralized hubs for businesses and others. However, individuals, communities & institutions often find themselves at the receiving end of sustained abuse and threats either on grounds of their actual or perceived characteristics, or over their online expression. The dynamic discussion that ensued brought to light significant concerns that would require a collaborative effort across stakeholder groups to address. For the sake of clarity, we are categorizing these learnings under the following heads:

Conceptual understanding of online harassment and hate speech: It was discussed at length that hate speech and speech that culminates in harassment on the online sphere, are reflective of the social outlook of the country at large. Women were seen as more frequent targets of harassment in the form of rape threats, sexual remarks, and name calling, whereas men are mostly called out for their beliefs and opinions. When discussing hate speech relations, it was considered important to take note of the power dynamics at play amongst the stronger groups, and the vulnerable ones. Limiting such content gets specially complicated considering the apprehension that in an effort to monitor hate speech and harassment, free speech may get stifled. The paradox of anonymity being an enabler of free speech, as well the reason for unabashed harassment adds yet another layer of complexity to the issue. Moreover, it was felt that a nuanced distinction needed to be made regarding the systematic attacks by online mobs against a particular person, as opposed to hateful and/or harassing speech that engages on a one to one level. This all culminated in a realization that this issue goes beyond the online domain, into the societal mindset that is amplified on the Internet, and that the faint line between free speech, and hateful & harassing speech is very difficult to pin-point.
Role of intermediaries: It was the opinion of the representatives of intermediary platforms at the roundtable that the current legal frameworks in the country are sufficient to tackle this issue and they should operate in compliance with such laws. While the specific terms of service may differ in terms of permissible content depending on the type of service being provided by the intermediary, these platforms do invariably keep a check on the content being generated and evaluate them for compliance with the applicable terms of service. Additionally, platforms that have the option of users creating & generating their own content, give the user various tools such as block, filter, un-follow, and other customized options to moderate the content they receive. though the intermediaries, in their own words ‘ are not a delete squad, but a compliance team’, it was said that they ran the perpetual risk of either censoring content that should not have been censored, or not censoring enough of the content that should have been censored. This incentivizes them to exercise zero-tolerance policies in certain areas such as child sexual abuse or terrorism, and resort to immediate take down of content related to such themes. However, in spite of the sheer volume of material that is generated and reported, it was felt that a completely automated approach cannot be followed for filtering hateful and harassing content that violates terms of service Taking down content and expression requires processing various factors that determine the context of that material, and this calls for a subjective approach that requires a set of human eyes. Therefore, the intermediaries do have tools for users that protect them from hate and harassing speech, and they work with certain safety experts to ensure that the users feel safe while using their services.
Adequacy of legal frameworks: A distinction was drawn over the course of the discussion between hate speech as a social as opposed to a legal concept. For legal purposes, speech would not attract penalties until it incites a real threat of violence and civic disorder. However, the law is not sufficiently equipped to deal with speech that does not incite violence, but causes psychological damage. It was undisputed that the concerns in this area cannot be solved by creating more statutes. Going down this road could lead to the creation of a Section 66A equivalent that would lead to censorship through law and cause a chilling effect on freedom of expression. It was emphasized that the existing laws have adequate provisions, but a strict implementation is required.
Response from law enforcement agencies: An evaluation of this point led to the conclusion that people who are harassed online, or are the targets of hate speech, are hesitant to approach the police and law enforcement agencies for their help. There have been instances where the police is unable to help due to the limited application of laws in such cases, as mentioned above.
Possible remedies: As a part of this roundtable, SFLC.in had proposed a set of best practices aimed at limiting hateful and harassing content online. These were intended as self-regulatory measures that could be followed by intermediaries functioning as speech platforms, where users could create and publish content without pre-filtrations. Amongst the measures that was discussed extensively was the practice of promoting ‘counter speech’ on the platforms that are most frequently used to spread hateful propaganda and harassment. This was generally seen as an effective counter-measure deserving further exploration, and one of the intermediaries mentioned a project they were formulating on ‘counter radicalization’. However, concerns were raised with respect to the identification of areas that would benefit from counter speech, and its effectiveness with respect to mob attacks. Another unique approach suggested by the participants was to ‘vaccinate’ first time users by educating them about the enormity and complexity of the Internet, including intiation of such users to the idea that freedom of expression online often crosses over to hate speech and harassment. This would act as an initiation process to understand the working of the Internet and the prevalence of hateful and harassing content on its numerous speech platforms, so that first-time users are not discouraged from using the Internet merely due to the presence of negative content. An interesting suggestion for the platforms was to work towards a mechanism that is more offender centric, and facilitates the tracking of repeat offenders along with providing tools of blocking for users.

This roundtable served in exploring the many layers of hateful and harassing speech that runs across roles and responsibilities of various stakeholder groups and concerns that are deeply entrenched in our societal outlook. The increasing frequency and amount of such content on the Internet is an indication of the urgent need to collaborate and develop a framework for limiting such speech, while balancing the fundamental right to freedom of expression. We thank all the participants and appreciate their valuable contributions that facilitated a better understanding of the overall theme.

For more details visit http://editors.cis-india.org/internet-governance/news/roundtable-identifying-and-limiting-hate-speech-and-harassment-online

Google Policy Fellowship Programme: Call for Applications

praskrishna — 2012-05-24T15:38:28Z

The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Fellowship Focus Areas

Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.
Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public.
Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.
Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.
Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.

Frequently Asked Questions

What is the Google Policy Fellowship program?
The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.

I am an International student can I apply and participate in the program? Are there any age restrictions on participating?
Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.

Are there citizenship requirements for the Fellowship?
For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?
In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.

I am an International student can I apply and participate in the program?
In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.
I graduate in the middle of the program. Can I still participate?
As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work?*

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates

What is the program timeline?

June 27, 2012	Student Application Deadline. Applications must be received by midnight.
July 18, 2012	Student applicants are notified of the status of their applications.
August 2012	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
September 2012	Mid-term evaluations; Google issues mid-term stipends.
October 2012	Final evaluations; Google issues final stipends.

For more details visit http://editors.cis-india.org/internet-governance/google-policy-fellowship

Freedom of Expression Scholars Conference 2

praskrishna — 2014-06-04T04:48:22Z

Yale Law School organized the Freedom of Expression Scholars Conference 2 from May 2 to 4, 2014. Pranesh Prakash participated as a discussant in the session "Speech and Safety Laboratories".

Click to see the agenda here.

List of Participants

A
Tabatha Abu El-Haj - Associate Professor of Law, Drexel University School of Law
BJ Ard - Thomson Reuters Resident Fellow, Information Society Project, Yale Law School
Enrique Armijo - Associate Professor of Law, Elon University School of Law

B
Jack Balkin - Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Director, Yale Information Society Project
Derek Bambauer - Associate Professor of Law, University of Arizona College of Law
Jane Bambauer - Associate Professor of Law, University of Arizona College of Law
Vincent Blasi - Corliss Lamont Professor of Civil Liberties, Columbia Law School
Joseph Blocher - Associate Professor, Duke Law School
Nicholas Bramble - Senior Policy Fellow, Google
Kiel Brennan-Marquez - Resident Fellow, Information Society Project, Yale Law School

C
Alan Chen - Professor of Law, University of Denver College of Law
Danielle Citron - Professor of Law, University of Maryland Francis King Carey School of Law

D
Deven Desai - Associate Professor of Law, Thomas Jefferson School of Law

F
Stephen Feldman - Jerry W. Housel / Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming College of Law

G
Hillary Greene - Professor of Law, University of Connecticut School of Law
James Grimmelmann - Professor of Law, University of Maryland Francis King Carey School of Law

H
David Han - Associate Professor of Law, Pepperdine University School of Law
Thomas Healy - Professor of Law, Seton Hall University School of Law

I
John Inazu - Associate Professor of Law and Political Science, Washington University School of Law

K
Margot Kaminski - Executive Director, Information Society Project, Yale Law School
Leslie Kendrick - Associate Professor of Law, University of Virginia School of Law
Jeremy Kessler - David Berg Foundation Fellow, Tikvah Center for Law & Jewish Civilization, New York University
Randy Kozel -Associate Professor of Law, University of Notre Dame Law School

L
Laura Little - Charles Klein Professor of Law, Temple University Beasley School of Law

M
Greg Magarian - Professor of Law, Washington University Law School
Jonathan Manes -Associate Research Scholar in Law and Abrams Clinical Fellow, Informaiton Society Project, Yale Law School
Toni Massaro - Regents' Professor, University of Arizona, James E. Rogers College of Law
Kerry Monroe - Law Ph.D. Candidate, Yale Law School

N
Helen Norton - Associate Dean for Academic Affairs and Associate Professor of Law, University of Colorado School of Law

P
Mary-Rose Papandrea - Professor, Boston College Law School
Pranesh Prakash - Postgraduate Associate in Law and Access to Knowledge Fellow, Information Society Project, Yale Law School
Tamara Piety - Professor of Law, University of Tulsa College of Law

R
Neil Richards - Professor of Law, Washington University School of Law
Lee Rowland -Staff Attorney, ACLU Speech, Privacy and Technology Project

S
Esteve Sanz - Resident Fellow, Information Society Project, Yale Law School

T
David Thaw - Visiting Assistant Professor, University of Connecticut School of Law
Alexander Tsesis - Professor of Law, Loyola University School of Law
Andrew Tutt - Law Clerk and Visiting Fellow, Yale Information Society Project

W
Felix Wu - Associate Professor of Law, Cardozo School of Law

Z
Tim Zick - Mills E. Godwin, Jr. Professor of Law, Willian & Mary Law School

For more details visit http://editors.cis-india.org/news/freedom-of-expression-scholars-conference-2

Re:publica 2014: Looking for Freedom

praskrishna — 2014-06-04T05:37:57Z

Re:publica in partnership with DAIMLER, Global Innovation Gathering, Microsoft and Science:Lab organized this conference at Berlin from May 6 to 8, 2014.

Pranesh Prakash was a speaker at the session "The Architecture of Invisible Censorship: How Digital and Meatspace Censorship Differ". Click to read the full list of speakers here.

For more details visit http://editors.cis-india.org/news/re-publica-2014-looking-for-freedom

Should the censors tighten Savita Bhabhi’s hook?*

praskrishna — 2012-05-02T06:31:11Z

"Should the censors tighten Savita Bhabhi's hook, asks a blog entry published in Churumuri on May 1, 2012.

GAGAN KRISHNADAS writes from Bangalore: With the Information Technology (Intermediaries Guidelines) Rules, 2011 in place, internet censorship has gone high and degree of criminality has fallen down. Be it Kapil Sibal or Mamata Banerjee, the people at the helm of power are trying to gain a control over internet.

The effect of existing law: To put it in simple terms, if anybody finds a particular post on this blog illegal, he/she may bring it to the notice of the owners of this blog. If the blog owner does not take any action within 36 hours, the liability on the content immediately shifts to the owner of the blog.

If at all there are about 200 ‘take down’ requests in a day, the blog owner surely cannot ascertain the legality of the content within 36 hours. Surely, the owner will find it convenient to remove the content instead of contesting the claim.

Resistance: The resistance for the said rules was not strong until recently when Kapil Sibal became vocal on pre-censorship on internet.

On April 21, there was a press conference in New Delhi by Knowledge Commons, Software Freedom Law Center, Delhi Science Forum, Save Your Voice Campaigm, Internet Democracy Project, Center for Internet and Society, Free Software Movement India, IT for Change, and Alternative Law Forum.

Two events were organised in Bangalore on the same day to voice against Internet Censorship. Let me juxtapose how media professionals and Free Software Movement people respond on the issue.

Senior Journalist Paranjoy Guha Thakurtha said: “This is a matter of considerable concern. It is known to a relatively small section because; ordinary people do not understand the intricacies. It is a matter of freedom of speech and hence it concerns not just the netizen, but every citizen. At the legal and larger philosophy, Article 19 lays down reasonable restrictions like public order, national security and so on. But who decides these reasonable restrictions on the internet?”

Mahesh Murthy, went a step ahead to declare: “I feel there should be no censorship of any kind of information, be it Savitha Bhabi or pornography or a hate speech. All such information already exists in the society. By censoring them, you are not achieving any results. The Abhishek Manu Singhvi’s alleged sex video was removed from Youtube just within 5 hours, but if someone hosts it on Piratebay, it’s almost impossible to censor.”

Na Vijayashankar said that the internet cannot be left unregulated and at the same time the regulation should not take away the basic rights of the citizens. He recalled that right from the initial days of the internet, he advocated for an internet law made by the netizens themselves, because the lawmakers hardly understand the technology.

Soon after the meeting, I moved to the town hall to participate in a protest convened by the representatives of Free Software Movement of Karnataka (FSMK) along with Software Freedom Law Centre (SFLC). The crowd predominantly comprised of Engineers and Engineering students.

I was surprised that the Engineers also had acquired a good understanding of the rules which are in detriment of their interest. While the group of media persons was more worried about censorship and freedom of speech, the ambit of concerns was larger with the Freedom Software advocates.

Senthil from the Free Software Movement of Karnataka was skeptical about similar laws being passed in other jurisdictions. Recently, USA was on its way for passing the controversial SOPA/PIPA legislations which was halted due to public pressure.

People have used internet to question the established governments, be it wikileaks, networking during the Egypt revolution or Lokpal movement. Senthil feels that the intermediary guidelines would be a hindrance in taking technology to the people.

Member of Parliament, P. Rajeeve has introduced a motion in the Rajya Sabha calling for the Internet censorship law passed last year (“Intermediary Guidelines Rules”) to be annulled. This motion will be taken up once the Budget Session 2012 reconvenes, and will need the support of the majority of both Houses to be passed.

Until the Parliament meets again, we the netizens and citizens need to ask our MPs to support the motion when it is introduced.

(Gagan Krishnadas is a post-graduate student at the National Law School of India University, Bangalore)

Read the original post.

For more details visit http://editors.cis-india.org/news/should-censors-tighten-savita-bhabi

Good Intentions, Recalcitrant Text - I: Why India’s Proposal at the ITU is Troubling for Internet Freedoms

geetha — 2014-11-02T15:13:45Z

The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.

At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled a draft proposal on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“Draft Resolution”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.

Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:

First, it is troubling for India that present network architecture has “security weaknesses” such as “camouflaging the identity of the originator of the communication”;[1] random IP address distribution also makes “tracing of communication difficult”;[2]
Second, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;[3]
Third, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;[4] similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.[5]

In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:

First, to develop and recommend a ‘traffic routing plan’ that can “effectively ensure the traceability of communication”;[6]
Second, to collaborate with relevant international and intergovernmental organisations to develop an “IP address plan” which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;[7]
Third, to develop and recommend “a public telecom network architecture” that localizes both routing[8] as well as address resolution[9] for local/domestic traffic to “within the country”.

Admittedly, our Draft Resolution is intended to pave a way for “systematic, fair and equitable allocation” of, inter alia, naming, numbering and addressing resources,[10] keeping in mind security and human rights concerns.[11] In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “concentration of control over Internet resources”, though “certain governments” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “roadmap for the systematization” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the Geneva Plan of Action, 2003.

Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. First, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s NSA files and the absence of adequate protections against government incursions or excesses into privacy,[12] either in international human rights law or domestic law, such text is troublesome. Second, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and finally, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.

In this post, I will address the first concern of human rights implications of our Draft Resolution.

Unintended Implications for Privacy and Freedom of Expression:

India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:

Pream. §(e): “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”;
Pream. §(h): “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. Snowden used Tor while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is reported to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were coerced into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the NSA and GCHQ have tried to break Tor; the Russian government has offered a reward to anyone who can.

Far be it from me to defend Tor blindly. There are reports suggesting that Tor is being used by offenders, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after Snowden’s revelations, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been recognized by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution The Right to Privacy in the Digital Age. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…”.

Erosion of privacy has a chilling effect on free speech [New York Times v. Sullivan, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s Information Technology (Guidelines for Cyber Cafe) Rules, 2011, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to dismantle the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in McIntyre v. Ohio Elections Commission [514 U.S. 334 (1995)].[13] Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, wrote Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).

So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and prima facie violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.

To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in Weber & Saravia v. Germany [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that enables surveillance without sufficient safeguards is prima facie unreasonable and disproportionate. Re: anonymity, in Delfi AS v. Estonia [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication” to test the validity of government’s restrictions.

The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for all IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been arbitrary, and traceability may give rise to a host of new worries.

In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of WHOIS records and registries with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a licence to operate and offer services.

If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as traceroute or IP look-up that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.

If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.

[1] Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.

[2] Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

[3] Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.

[4] Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.

[5] Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.

[6] Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.

[7] Op. §1, Draft Resolution; see note 3.

[8] Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.

[9] Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.

[10] Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”

[11] Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.

[12] See, for instance, Report of the Office of the High Commission for Human Rights (“OHCHR”), Right to Privacy in the Digital Age, A/HRC/27/37 (30 June 2014), ¶34-35, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. See esp. note 30 of the Report, ¶35.

[13] Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; ex. see Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.

For more details visit http://editors.cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms