The Centre for Internet and Society
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Creativity, Politics, and Internet Censorship
http://editors.cis-india.org/raw/creativity-politics-and-internet-censorship-20160525
<b>In collaboration with Karnataka for Kashmir, we organised a discussion on 'Creativity, Politics and Internet Censorship' on May 25, 2016. Mahum Shabir, a legal activist and artist, Mir Suhail, political cartoonist with Kashmir Reader and Rising Kashmir, and Habeel Iqbal, a lawyer who has worked with several justice groups in Kashmir, shared some of their work and experiences. This discussion was organised as part of Port of Kashmir 2016, a series of events bringing together a small collective of people using different modes of art and activism to address crucial challenges to free speech and democracy in the state. </b>
<p> </p>
<img src="https://raw.githubusercontent.com/cis-india/website/master/img/MahumShabirHandwara.jpg" alt="null" />
<h6>Mahum Shabir talking about the Handwara case. Source: Swar Thounaojam.</h6>
<p> </p>
<p>The discussion began with Mahum Shabir giving an overview of the work at the Jammu Kashmir Coalition of Civil Society, specifically on the Handwara case. She spoke of the role of the internet, and social media in particular, in perpetuating the gaze of the state, while also bringing up the larger question of how media propagates a certain way of looking at Kashmir, particularly women, marginalised groups and victims of violence. Internet blockades and media censorship pose several obstacles for the circulation of information, resulting in the need for surreptitious ways of communication as a necessary way to counter predominant narratives in the discourse around occupation. The implications of these for the rights of women in particular, the curbs on freedom at different levels, and the undercurrent of violence that is prevalent in everyday life, came up as significant questions.</p>
<p>Mir Suhail presented some of his cartoons, and shared some poignant personal experiences of growing up in a state under military occupation. His works reflect his concerns about a changing society, from understanding strife as an almost normalised state of existence, to now a phase of industrialization and control of resources. He spoke on the politics of exercising creative freedom in the present, and his attempt to encourage conversations on contemporary issues through his art. The role of technology in facilitating these conversations is as crucial as it is contentious, for it also brings up questions of surveillance and privacy;his art tries to navigate through some of these questions in different ways.</p>
<p>Habeel Iqbal, a lawyer who has worked on the Shopian and Handwara cases, spoke on some of the legal aspects of censorship and surveillance related issues in Kashmir, particularly in instances involving social media. He discussed some of the challenges faced by activists, social workers and political groups in working on certain cases, particularly in gathering and circulating information or in writing about sensitive issues. Self-censorship is often the only option for people working on these issues, as he elaborated through some personal experiences.</p>
<p>The discussion included questions on the possibilities opened up by privacy tools, such the use of encryption and to the extent to which they affect communication. Access to these technologies is a factor here; besides, transparency is also a goal for most human rights organisations working in the state. Social media, and social messaging apps in particular often function as an alternative to mainstream media as a means of communication, and it is interesting to see the questions it opens up for censorship. Examples of activism using not just the internet, but the network (through USBs and hard drives) were also discussed. The responses to such forms of activism, from across the world were interesting to engage with, as it tries to tackle predominant perceptions about the state. The economic aspects of different strategies of censorship and surveillance, through curfews and blockades and its broader implications for socio-economic development in the state were also discussed. The talk provided several insights into the problems and challenges to freedom of speech, the censorship of ideas, and its repercussions for creative freedom and politics in Kashmir.</p>
<p> </p>
<img src="https://raw.githubusercontent.com/cis-india/website/master/img/MirSuhailPostcards.jpg" alt="null" />
<h6>Postcards of cartoons by Mir Suhail. Source: Swar Thounaojam.</h6>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/creativity-politics-and-internet-censorship-20160525'>http://editors.cis-india.org/raw/creativity-politics-and-internet-censorship-20160525</a>
</p>
No publishersneha-ppResearchers at WorkPracticeArtCensorship2016-06-17T07:07:40ZBlog EntryContent takedown and users' rights
http://editors.cis-india.org/internet-governance/blog/content-takedown-and-users-rights-1
<b>After Shreya Singhal v Union of India, commentators have continued to question the constitutionality of the content takedown regime under Section 69A of the IT Act (and the Blocking Rules issued under it). There has also been considerable debate around how the judgement has changed this regime: specifically about (i) whether originators of content are entitled to a hearing, (ii) whether Rule 16 of the Blocking Rules, which mandates confidentiality of content takedown requests received by intermediaries from the Government, continues to be operative, and (iii) the effect of Rule 16 on the rights of the originator and the public to challenge executive action. In this opinion piece, we attempt to answer some of these questions.</b>
<p style="text-align: justify;" class="normal"> </p>
<p style="text-align: justify;" class="normal">This article was first <a class="external-link" href="http://https://theleaflet.in/content-takedown-and-users-rights/">published</a> at the Leaflet. It has subsequently been republished by <a class="external-link" href="https://scroll.in/article/953146/how-india-is-using-its-information-technology-act-to-arbitrarily-take-down-online-content">Scroll.in</a>, <a class="external-link" href="https://kashmirobserver.net/2020/02/15/content-takedown-and-users-rights/">Kashmir Observer</a> and the <a class="external-link" href="https://cyberbrics.info/content-takedown-and-users-rights/">CyberBRICS blog</a>. </p>
<p style="text-align: justify;" class="normal"><strong><br /></strong></p>
<p style="text-align: justify;" class="normal"><strong>Introduction</strong></p>
<p style="text-align: justify;" class="normal">Last year, several Jio users from different states <a href="https://www.medianama.com/2019/03/223-indiankanoon-jio-block/">reported</a> that sites like Indian Kanoon, Reddit and Telegram were inaccessible through their connections. While attempting to access the website, the users were presented with a notice that the websites were blocked on orders from the Department of Telecommunications (DoT). When contacted by the founder of Indian Kanoon, Reliance Jio <a href="https://in.reuters.com/article/us-india-internet-idINKCN1RF14D">stated</a> that the website had been blocked on orders of the government, and that the order had been rescinded the same evening. However, in response to a Right to Information (RTI) request, the DoT <a href="https://twitter.com/indiankanoon/status/1218193372210323456">said</a> they had no information about orders relating to the blocking of Indian Kanoon.</p>
<p style="text-align: justify;" class="normal">Alternatively, consider that the Committee to Protect Journalists (CPJ) <a href="https://cpj.org/blog/2019/10/india-opaque-legal-process-suppress-kashmir-twitter.php">expressed concern</a> last year that the Indian government was forcing Twitter to suspend accounts or remove content relating to Kashmir. They reported that over the last two years, the Indian government suppressed a substantial amount of information coming from the area, and prevented Indians from accessing more than five thousand tweets.</p>
<p style="text-align: justify;" class="normal">These instances are <a href="https://www.hindustantimes.com/analysis/to-preserve-freedoms-online-amend-the-it-act/story-aC0jXUId4gpydJyuoBcJdI.html">symptomatic</a> of a larger problem of opaque and arbitrary content takedown in India, enabled by the legal framework under the Information Technology (IT) Act. The Government derives its powers to order intermediaries (entities storing or transmitting information on behalf of others, a definition which includes internet service providers and social media platforms alike) to block online resources through <a href="https://indiankanoon.org/doc/10190353/">section 69A</a> of the IT Act and the <a href="https://meity.gov.in/writereaddata/files/Information%20Technology%20%28%20Procedure%20and%20safeguards%20for%20blocking%20for%20access%20of%20information%20by%20public%29%20Rules%2C%202009.pdf">rules</a> [“the blocking rules”] notified thereunder. Apart from this, <a href="https://indiankanoon.org/doc/844026/">section 79</a> of the IT Act and its allied rules also prescribe a procedure for content removal. <a href="https://cis-india.org/internet-governance/files/a-deep-dive-into-content-takedown-frames">Conversations</a> with one popular intermediary revealed that the government usually prefers to use its powers under section 69A, possibly because of the opaque nature of the procedure that we highlight below.</p>
<p style="text-align: justify;" class="normal">Under section 69A, a content removal request can be sent by authorised personnel in the Central Government not below the rank of a Joint Secretary. The grounds for issuance of blocking orders under section 69A are: “<em>the interest of the sovereignty and integrity of India, defence of India, the security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence relating to the above.</em>” Specifically, the blocking rules envisage the process of blocking to be largely executive-driven, and require strict confidentiality to be maintained around the issuance of blocking orders. This shrouds content takedown orders in a cloak of secrecy, and makes it impossible for users and content creators to ascertain the legitimacy or legality of the government action in any instance of blocking.</p>
<p style="text-align: justify;" class="normal"><strong>Issues</strong></p>
<p style="text-align: justify;" class="normal">The Supreme Court had been called to determine the constitutional validity of section 69A and the allied rules in <a href="https://indiankanoon.org/doc/110813550/"><em>Shreya Singhal v Union of India</em></a>. The petitioners had contended that as per the procedure laid down by these rules, there was no guarantee of pre-decisional hearing afforded to the originator of the information. Additionally, the petitioners pointed out that the safeguards built into section 95 and 96 of the Code of Criminal Procedure (CrPC), which allow state governments to ban publications and persons to initiate legal challenges to those actions respectively, were absent from the blocking procedures. Lastly, the petitioners assailed rule 16 of the blocking rules, which mandated confidentiality of blocking procedures, on the grounds that it was affecting their fundamental rights.</p>
<p style="text-align: justify;" class="normal">The Court, however, found little merit in these arguments. Specifically, the Court found that section 69A was narrowly drawn and had sufficient procedural safeguards, which included the grounds of issuance of a blocking order being specifically drawn, and mandating that the reasons of the website blocking be in writing, thus making it amenable to judicial review. Further, the Court also found that the provision of setting up of a review committee saved the law from being constitutional infirmity. In the Court’s opinion, the mere absence of additional safeguards, as the ones built into the CrPC, did not mean that the law was unconstitutional.</p>
<p style="text-align: justify;" class="normal">But do the ground realities align with the Court’s envisaged implementation of these principles? Apar Gupta, a counsel for the petitioners, <a href="https://indianexpress.com/article/opinion/columns/but-what-about-section-69a/">pointed</a> out that there was no recorded instance of pre-decisional hearing being granted to show that this safeguard contained in the rules was actually being implemented. However, Gautam Bhatia <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/">read</a> <em>Shreya Singhal </em>to make an important advance: that the right of hearing be mandatorily extended to the ‘originator’, i.e. the content creator.</p>
<p style="text-align: justify;" class="normal">Additionally, Bhatia also noted that the Court, while upholding the constitutionality of the procedure under section 69A, held that the “<em>reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.</em>”</p>
<p style="text-align: justify;" class="normal">There are two important takeaways from this. <em>Firstly</em>, he argued that the broad contours of the judgment invoke an established constitutional doctrine — that the fundamental right under Article 19(1)(a) does not merely include the right of expression, but also the <em>right of access to information. </em>Accordingly, the right of challenging a blocking order was not only vested in the originator or the concerned intermediary, but may rest with the general public as well. And <em>secondly</em>, by the doctrine of necessary implication, it followed that for the general public to challenge any blocking order under Article 226, the blocking orders must be made public. While Bhatia concedes that public availability of blocking orders may be an over-optimistic reading of the judgment, recent events suggest that even the commonly-expected result, i.e. that the content creators having the right to a hearing, has not been implemented by the Government.</p>
<p style="text-align: justify;" class="normal">Consider the <a href="https://internetfreedom.in/delhi-hc-issues-notice-to-the-government-for-blocking-satirical-dowry-calculator-website/">blocking</a> of the satirical website DowryCalculator.com in September 2019 on orders from the government. The website displayed a calculator that suggests a ‘dowry’ depending on the salary and education of a prospective groom: even if someone misses the satire, the contents of the website are not immediately relatable to any grounds of removal listed under section 69A of the IT Act.</p>
<p style="text-align: justify;" class="normal"> Tanul Thakur, the creator of the website, was not granted a hearing despite the fact that he had publicly claimed the ownership of the website at various times and that the website had been covered widely by the press. The information associated with the domain name also publicly lists Thakur’s name and contact information. Clearly, the government made no effort to contact Thakur when passing the order. Perhaps even more worryingly, when he <a href="https://internetfreedom.in/delhi-hc-issues-notice-to-the-government-for-blocking-satirical-dowry-calculator-website/">tried</a> to access a copy of the blocking order by filing a RTI, the MeitY cited the confidentiality rule to deny him the information.</p>
<p style="text-align: justify;" class="normal">This incident documents a fundamental problem plaguing the rules: the confidentiality clause is still being used to deny disclosure of key information on content takedown orders. The government has also used the provision to deny citizens a list of blocked websites , as responses to RTI requests have proven <a href="https://cis-india.org/internet-governance/blog/rti-application-to-bsnl-for-the-list-of-websites-blocked-in-india">time</a> and <a href="https://sflc.in/deity-provides-list-sites-blocked-2013-withholds-orders">again</a>.</p>
<p style="text-align: justify;" class="normal">Clearly, the Supreme Court’s rationale in considering Section 69A and the blocking rules as constitutional is not one that is implemented in reality. The confidentiality clause is preventing legal challenges to content blocking in totality: content creators are unable access the orders, and hence are unable to understand the executive’s reasoning in ordering their content to be blocked from public access.</p>
<p style="text-align: justify;" class="normal">As we noted earlier, the grounds of issuing a blocking order under section 69A pertain to certain reasonable restrictions on expression permitted by Article 19(2), which are couched in broad terms. The government’s implementation of section 69A and the rules make it impossible for any judicial review or accountability on the conformity of blocking orders with the mentioned grounds under the rules, or any reasonable restriction at all.</p>
<p style="text-align: justify;" class="normal"><strong>The Way Forward</strong></p>
<p style="text-align: justify;" class="normal">From the opacity of proceedings under the law, to the lack of information regarding the same on public domain, the Indian content takedown regime leaves a lot to be desired from both the government and intermediaries at play. </p>
<p style="text-align: justify;" class="normal">First, we believe the Supreme Court’s decision in <em>Shreya Singhal v. Union of India</em> casts an obligation on the government to attempt to contact the content creator if they are passing a content takedown order to an intermediary. <em>Second</em>, even if the content creator is unavailable for a hearing at that instance, the confidentiality clause should not be used to prevent future disclosure of information to the content creator, so that affected citizens can access and challenge these orders.</p>
<p style="text-align: justify;" class="normal">While we wait for legal reform, intermediaries can also step up to ensure the rights of users online are upheld. On receiving formal orders, intermediaries should <a href="https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass">assess</a> the legality of the received request. This should involve ensuring that only authorised agencies and personnel have sent the content removal orders, that the order specifically mentions what provision the government is exercising the power under, and that the content removal requests relate to the grounds of removal that are permissible under section 69A. For instance, intermediaries should refuse to entertain content removal requests under section 69A of the IT Act if they relate to obscenity, a ground not covered by the provision.</p>
<p style="text-align: justify;" class="normal">The representatives of the intermediary should also push for the committee to grant a hearing to the content creator. Here, the intermediary can act as a liaison between the uploader and the governmental authorities.</p>
<p style="text-align: justify;" class="normal">The Supreme Court’s recent decision in <a href="https://indiankanoon.org/doc/82461587/"><em>Anuradha Bhasin v. Union of India</em></a><em> </em>offers a glimmer of hope for user rights online<em>. </em>While the case primarily challenged the orders imposing section 144 of the CrPC and a communication blockade in Jammu and Kashmir, the final decision does affirm the fundamental principle that government-imposed restrictions on the freedom of expression and assembly must be made available to the public and affected parties to enable challenges in a court of law.</p>
<p style="text-align: justify;" class="normal"> The judiciary has yet another opportunity to consider the provision and the rules: late last year, Tanul Thakur <a href="https://internetfreedom.in/delhi-hc-issues-notice-to-the-government-for-blocking-satirical-dowry-calculator-website/">approached</a> the Delhi High Court to challenge the orders passed by the government to ISPs to block his website. One hopes that the future holds robust reforms to the content takedown regime.</p>
<p style="text-align: justify;" class="normal"> We live in an era where the ebb and flow of societal discourse is increasingly channeled through intermediaries on the internet. In the absence of a mature, balanced and robust framework that enshrines the rule of law, we risk arbitrary modulation of the marketplace of ideas by the executive.</p>
<p style="text-align: justify;" class="normal"><em> </em></p>
<p style="text-align: justify;" class="normal"><em>Torsha Sakar and Gurshabad Grover are researchers at the Centre for Internet and Society.</em></p>
<p style="text-align: justify;" class="normal"><em>Disclosure: The Centre for Internet and Society is a recipient of research grants from Facebook and Google.</em></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/content-takedown-and-users-rights-1'>http://editors.cis-india.org/internet-governance/blog/content-takedown-and-users-rights-1</a>
</p>
No publisherTorsha Sarkar, Gurshabad GroverInternet FreedomInternet GovernanceIntermediary LiabilityCensorship2020-02-17T05:18:25ZBlog EntryContent Removal on Facebook — A Case of Privatised Censorship?
http://editors.cis-india.org/internet-governance/blog/content-removal-on-facebook
<b>Any activity on Facebook, be it creating an account, posting a picture or status update or creating a group or page, is bound by Facebook’s Terms of Service and Community Guidelines. These contain a list of content that is prohibited from being published on Facebook which ranges from hate speech to pornography to violation of privacy. </b>
<p style="text-align: justify; ">Facebook removes content largely on the basis of requests either by the government or by other users. The <a href="https://www.facebook.com/help/365194763546571/">Help section</a> of Facebook deals with warnings and blocking of content. It says that Facebook only removes content that violates Community Guidelines and not everything that has been reported.</p>
<p style="text-align: justify; ">I conducted an experiment to primarily look at Facebook’s process of content removal and also to analyse what kind of content they actually remove.</p>
<ol> </ol><ol>
<li style="text-align: justify; ">I put up a status which contained personal information of a person on my Friend List (the information was false). I then asked several people (including the person about whom the status was made) to report the status — that of being harassed or for violation of privacy rights. Seven people reported the status. Within half an hour of the reports being made, I received the following notification:<br />"Someone reported your <a href="https://www.facebook.com/sugarquill/posts/10152265929599232" target="_blank">post</a> for containing harassment and <a href="https://www.facebook.com/settings?tab=support&item_id=10152265934819232&notif_t=content_reported">1 other reason</a>."<br /><br />The notification also contained the option to delete my post and said that Facebook would look into whether it violated their Community Guidelines.<br /><br />A day later, all those who had reported the status received notifications stating the following:<br /><br />"We reviewed the post you reported for harassment and found it doesn't violate our <a href="https://www.facebook.com/communitystandards" target="_blank">Community Standards</a>." <br /><br />I received a similar notification as well.</li>
<li style="text-align: justify; ">I, along with around thirteen others, reported a Facebook page which contained pictures of my friend and a few other women with lewd captions in various regional languages. We reported the group for harassment and bullying and also for humiliating someone we knew. The report was made on 24 March, 2014. On 30 April, 2014, I received a notification stating the following:<br /><br />"We reviewed the page you reported for harassment and found it doesn't violate our <a href="https://www.facebook.com/communitystandards" target="_blank">Community Standards</a>.<br /><br />Note: If you have an issue with something on the Page, make sure you report the content (e.g. a photo), not the entire Page. That way, your report will be more accurately reviewed."<br /><br />I then reported each picture on the page for harassment and received a series of notifications on 5 May, 2014 which stated the following:<br /><br />"We reviewed the photo you reported for harassment and found it doesn't violate our <a href="https://www.facebook.com/communitystandards" target="_blank">Community Standards</a>."</li>
</ol>
<p style="text-align: justify; ">These incidents are in stark contrast with repeated attempts by Facebook to remove content which it finds objectionable. In 2013, a homosexual man’s picture protesting against the Supreme Court judgment in December was <a href="http://www.ndtv.com/article/india/heated-debate-after-facebook-allegedly-deletes-photograph-of-gay-sikh-kissing-a-man-460219">taken down</a>. In 2012, Facebook <a href="http://www.blouinartinfo.com/news/story/816583/facebook-censors-pompidous-gerhard-richter-nude-fueling-fight">removed artwork</a> by a French artist which featured a nude woman. In the same year, Facebook <a href="http://www.dailymail.co.uk/news/article-2146588/Heather-Patrick-Walker-Facebook-ban-pictures-baby-son-died.html">removed photographs</a> of a child who was born with defect and banned the mother from accessing Facebook completely. Facebook also <a href="http://www.huffingtonpost.com/2013/02/20/facebook-breast-cancer-tattoo-photo-double-mastectomy_n_2726118.html">removed a picture</a> of a breast cancer survivor who posted a picture of a tattoo that she had following her mastectomy. Following this, however, Facebook issued an apology and stated that mastectomy photographs are not in violation of their Content Guidelines. Even in the sphere of political discourse and dissent, Facebook has cowered under government pressure and removed pages and content, as evidenced by the <a href="http://www.firstpost.com/living/facebook-bows-to-pak-pressure-bans-rock-band-laal-anti-taliban-groups-1560009.html">ban</a> on the progressive Pakistani band Laal’s Facebook page and other anti-Taliban pages. Following much social media outrage, Facebook soon <a href="http://www.dawn.com/news/1111174/laals-facebook-page-now-accessible-to-pak-based-internet-users">revoked</a> this ban. These are just a few examples of how harmless content has been taken down by Facebook, in a biased exercise of its powers.</p>
<p style="text-align: justify; ">After incidents of content removal have been made public through news reports and complaints, Facebook often apologises for removing content and issues statements that the removal was an “error.” In some cases, they edit their policies to address specific kinds of content after a takedown (like the <a href="http://www.guardian.co.uk/media/2008/dec/30/facebook-breastfeeding-ban">reversal of the breastfeeding ban</a>).</p>
<p style="text-align: justify; ">On the other hand, however, Facebook is notorious for refusing to take down content that is actually objectionable, partially evidenced by my own experiences listed above. There have been complaints about Facebook’s <a href="http://www.theguardian.com/lifeandstyle/2013/feb/19/facebook-images-rape-domestic-violence">refusal to remove</a> misogynistic content which glorifies rape and domestic violence through a series of violent images and jokes. One such page was removed finally, not because of the content but because the administrators had used fake profiles. When asked, a spokesperson said that censorship “was not the solution to bad online behaviour or offensive beliefs.” While this may be true, the question that needs answering is why Facebook decides to draw these lines only when it comes to certain kinds of ‘objectionable’ content and not others.</p>
<p style="text-align: justify; ">All of these examples represent a certain kind of arbitrariness on the part of Facebook’s censorship policies. It seems that Facebook is far more concerned with removing content that will cause supposed public or governmental outrage or defy some internal morality code, rather than protecting the rights of those who may be harmed due to such content, as their Statement of Policies so clearly spells out.</p>
<p style="text-align: justify; ">There are many aspects of the review and takedown process that are hazy, like who exactly reviews the content that is reported and what standards they are made to employ. In 2012, it was revealed that Facebook <a href="http://gawker.com/5885714/inside-facebooks-outsourced-anti-porn-and-gore-brigade-where-camel-toes-are-more-offensive-than-crushed-heads">outsourced</a> its content reviews to oDesk and provided the reviewers with a 17-page manual which listed what kind of content was appropriate and what was not. A bare reading of the leaked document gives one a sense of Facebook’s aversion to sex and nudity and its neglect of other harm-inducing content like harassment through misuse of content that is posted and what is categorised as hate speech.</p>
<p style="text-align: justify; ">In the process of monitoring the acceptability of content, Facebook takes upon itself the role of a private censor with absolutely no accountability or transparency in its working. A <a href="https://fbcdn-dragon-a.akamaihd.net/hphotos-ak-xpa1/t39.2178-6/851563_293317947467769_1320502878_n.png">Reporting Guide</a> was published to increase transparency in its content review procedures. The Guide reveals that Facebook provides for an option where the reportee can appeal the decision to remove content in “some cases.” However, the lack of clarity on what these cases are or what the appeal process is frustrates the existence of this provision as it can be misused. Additionally, Facebook reserves the right to remove content with or without notice depending upon the severity of the violation. There is no mention of how severe is severe enough to warrant uninformed content removal. In most of the above cases, the user was not notified that their content was found offensive and would be liable for takedown. Although Facebook publishes a transparency report, it only contains a record of takedowns following government requests and not those by private users of Facebook. The unbridled nature of the power that Facebook has over our personal content, despite clearly stating that all content posted is the user’s alone, threatens the freedom of expression on the site. A proper implementation of the policies that Facebook claims to employ is required along with a systematic record of the procedure that is used to remove content that is in consonance with natural justice.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/content-removal-on-facebook'>http://editors.cis-india.org/internet-governance/blog/content-removal-on-facebook</a>
</p>
No publisherjessieFacebookInternet GovernanceCensorshipPrivacy2014-06-16T05:23:09ZBlog EntryCommunications from DeitY regarding blocking of Traffic emanating from IP addresses from States assessed to be sensitive in the current prevailing situation
http://editors.cis-india.org/internet-governance/resources/september-4-dot-mha-regional-twitter-blocking
<b></b>
<p class="Bodytext21" style="text-align: center; ">(<span style="text-decoration: underline;">D</span>S Cell)</p>
<p class="Bodytext21" style="text-align: right; ">No.813-7/25/2011-DS</p>
<p class="Bodytext21"><b>Subject: Communications from DeitY regarding blocking of Traffic emanating from IP addresses from States assessed to be sensitive in the current prevailing situation.</b></p>
<p class="Bodytext21"><b>Notes on pre pages (24/N to 25/N) may kindly seen.</b></p>
<p class="Bodytext30" style="text-align: justify; ">PUC at (70/C) is a communications [D.O No - 6(30)/2012-CLFE dated 23/08/2012] from Secretary, Department of Electronics & Information Technology. It has been communicated that Ministry of Home Affairs has sent an Office Memorandum No. II/21021/221/2012-IS-II/M dated 23.08.2012 (copy enclosed). MHA has requested that <i>"Twitter Inc may be directed to all traffic emanating from IP addresses in the States assessed by the Central Intelligence Agencies to be sensitive in the current prevailing situation viz. Kerala, Assam, Tamil Nadu, Andhra Pradesh, Maharashtra. Karnataka, Gujarat and Uttar Pradesh by 6.00 PM today. In case of non- compliance of this geographical specific blocking which flows from sensitive assessment of prevailing situation, then Twitter may be blocked on All India level"</i>.</p>
<p class="Bodytext1" style="text-align: justify; ">2. Department of Telecom has been requested to consider the technical feasibility of the request of MHA and advice the DIT accordingly. In this regard feedbacks have been collected from the major service providers on the following issues:</p>
<p class="Bodytext1" style="text-align: justify; ">(i) allocation of State-wise IP address<br />(ii) technical feasibility of specific area wise /state wise blocking of website/URL.</p>
<p class="Bodytext1" style="text-align: justify; ">Feedbacks received from Tata Communications, (67/C & 73/C) Bharti<br />Airtel (68/C & 77/C), BSNL (75/C), Reliance Communications (72/C),<br />IDEA (76/C) & ISPAI (74/C). These comments are compiled as below</p>
<table class="plain">
<tbody>
<tr>
<th>Sr.</th><th>Name of the company</th><th>Comments on state-wise IP address allocation & specific area wise /state-wise blocking of website/URL.</th>
</tr>
<tr>
<td>1</td>
<td style="text-align: justify; ">Tata<br />Communications<br /><br /></td>
<td style="text-align: justify; ">TCL does not allocate IP addresses to its customers on a state-wise basis and there is no IP Address range specific to any of the States of India.<br />Specific area wise /state wise blocking of website /URL is technically not feasible.<br /></td>
</tr>
<tr>
<td>2</td>
<td>BSNL</td>
<td style="text-align: justify; ">IP addresses in the BSNL Network is as<br />below.<br />1) Leased line:- On national Basis<br />2) Wimax/CDMA.GSM - on Zonal Basis<br />3) ADSL Broadband :- On Circle basis.<br /><br /></td>
</tr>
<tr>
<td>3</td>
<td>M/s Bharti Airtel</td>
<td>
<p style="text-align: justify; ">IP addresses are allocated internally hubwise. In mobile network, we have 7 hubs and the IP address pools are internally allocated to different hubs.</p>
<p style="text-align: justify; ">The blocking of website/ URL can be done at the gateway only as:<br />1) There is no state wise IP pool allocation to the customers, and;<br />2) Airtel has deployed URL blocking system at Chennai and Mumbai Internet gateway.</p>
</td>
</tr>
<tr>
<td>4</td>
<td>M/s Reliance Communications</td>
<td style="text-align: justify; ">IP addresses are not allotted Statewise. <br />The blocking has been implemented at the Gateway locations. Hence specific area wise /' stale wise blocking of website / URL is not possible.<br /></td>
</tr>
<tr>
<td>5</td>
<td style="text-align: justify; ">M/s Idea</td>
<td style="text-align: justify; ">Currently our ISP operation can't block region wise as we give bulk service to GGSN and are in a way blind to the traffic distribution after GGSN. We can only block sites/links at gateway level which will affect the complete GGSN.</td>
</tr>
<tr>
<td>6</td>
<td style="text-align: justify; ">Internet Service Providers<br />Association of India (ISPAI)<br /></td>
<td style="text-align: justify; ">We would like to inform that it is technically not feasible to block website/URL area wise / state wise.</td>
</tr>
</tbody>
</table>
<p class="Bodytext1" style="text-align: justify; ">With reference to aforesaid feedbacks from Internet Service Providers Association of India (ISPAI) and major Internet Service Providers it has come out that in the present scenario Internet Service Providers having majority of Internet subscribers have not allocated IP addresses area wise /state-wise and it would not be possible for them at present to carry out specific area wise /slate-wise blocking of website/URL.</p>
<p class="Bodytext1" style="text-align: justify; ">3. In view of above it is proposed to reply to Secretary, DeitY as per draft placed at (.l?/C).</p>
<p class="Bodytext1">Put up for kind considerations and approval please.</p>
<p class="Heading121" style="text-align: right; ">(Subodh Saxena)</p>
<p class="Heading121" style="text-align: right; ">Dir.(DS-II)</p>
<p class="Heading121">DDG(DS)</p>
<p class="Bodytext1">Member (T)</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/resources/september-4-dot-mha-regional-twitter-blocking'>http://editors.cis-india.org/internet-governance/resources/september-4-dot-mha-regional-twitter-blocking</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceCensorship2012-09-11T14:27:46ZPageComments on the Draft Rules under the Information Technology Act
http://editors.cis-india.org/internet-governance/blog/comments-draft-rules
<b>The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.</b>
<h2><em>Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008</em></h2>
<p><em><strong>Submitted by the Centre for Internet and Society, Bangalore</strong></em></p>
<p><em><strong>Prepared by Ananth Padmanabhan, Advocate in the Madras High Court</strong></em></p>
<h2>Interception, Monitoring and Decryption</h2>
<h3>Section 69</h3>
<p>The section says:</p>
<ol><li>Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource. </li><li>The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.</li><li>The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-</li></ol>
<p> (a) provide access to or secure access to the computer resource
generating transmitting, receiving or storing such information; or</p>
<p>
(b) intercept, monitor, or decrypt the information, as the case may be; or</p>
(c) provide information stored in computer resource.
<ol><li>The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. <br /></li></ol>
<p><strong><br /></strong></p>
<p><strong>Recommendation #1</strong><br />Section 69(3) should be amended and the following proviso be inserted:</p>
<p class="callout">Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,</p>
<p class="callout">“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. </p>
<p><br />The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.</p>
<p>To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary. </p>
<p><br /><strong>Recommendation #2</strong><br />Section 69(4) should be repealed.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.</p>
<p>Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.</p>
<p>Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.</p>
<p>This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.</p>
<p> </p>
<h3>Draft Rules under Section 69 <br /></h3>
<p><strong>Rule 3</strong><br />Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:</p>
<p>Provided that in emergency cases – <br />(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or <br />(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;</p>
<p>the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be. </p>
<p><br /><strong>Recommendation #3</strong><br />In Rule 3, the following proviso may be inserted:</p>
<p class="callout">“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation </strong><br />Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.</p>
<p>Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.</p>
<p><br /><strong>Recommendation #4</strong><br />The following should be inserted after the last line in Rule 22:</p>
<p class="callout">The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation</strong><br />The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69. </p>
<p> </p>
<h2>Blocking of Access to Information</h2>
<h3>Section 69A</h3>
<p>The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section. <br />The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.</p>
<p> </p>
<p><strong>Section 69A(3)</strong><br />The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.</p>
<p> </p>
<p><strong>Recommendation #5</strong><br />The penalty for intermediaries must be lessened.</p>
<p> </p>
<p><strong>Reasons for Recommendations </strong><br />The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.</p>
<p>The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.</p>
<p> </p>
<h3>Draft Rules under Section 69A</h3>
<p><strong>Rule 22: Review Committee</strong><br />The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.</p>
<p><br /><strong>Recommendation #6</strong><br />A permanent Review Committee should be specially for the purposes of examining procedural lapses. </p>
<p><br /><strong>Reasons for Recommendation </strong><br />Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met. <br /><br /></p>
<h2>Monitoring and Collection of Traffic Data</h2>
<h3>Draft Rules under Section 69B</h3>
<p>The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.</p>
<p>The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.</p>
<p><br /><strong>Grounds for Monitoring </strong><br /><strong>Rule 4</strong><br />The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:<br />(a) forecasting of imminent cyber incidents;<br />(b) monitoring network application with traffic data or information on computer resource;<br />(c) identification and determination of viruses/computer contaminant;<br />(d) tracking cyber security breaches or cyber security incidents;<br />(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;<br />(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;<br />(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;<br />(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;<br />(i) any other matter relating to cyber security.</p>
<p><br /><strong>Rule 6</strong><br />No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).</p>
<p><br /><strong>Recommendation #7</strong><br />Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.</p>
<p><br /><strong>Reasons for Recommendations </strong><br />The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered. <br /><br /><strong>Rule 24: Disclosure of monitored data </strong><br />Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :<br />(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.</p>
<p><br /><strong>Recommendation #8</strong><br />Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi). </p>
<p><br /><strong>Reasons for Recommendations </strong><br />Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended. </p>
<p><br />The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.</p>
<p> </p>
<h2>Manner of Functioning of CERT-In</h2>
<h3>Draft Rules under Section 70B(5)</h3>
<p>Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.<br />The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:</p>
<p><br /><strong>Definitions</strong><br />In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.</p>
<p><br /><strong>Recommendation #9</strong><br />The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.</p>
<p><br /><strong>Reasons for Recommendation</strong><br />“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization. </p>
<p><br />Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.</p>
<p><br /><strong>Rule 13(4): Disclosure of Information </strong><br />Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.</p>
<p><br /><strong>Recommendation #10</strong><br />Burden of necessity for disclosure of information should be made heavier. </p>
<p><br /><strong>Reasons for the Recommendation</strong><br />Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required. </p>
<p><br /><strong>Rule 19: Protection for actions taken in Good Faith </strong><br />All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.</p>
<p><br /><strong>Recommendation #11</strong><br />CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for. </p>
<p><br /><strong>Reasons for the Recommendation </strong><br />Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.</p>
<p> </p>
<h3>Draft Rules under Section 52</h3>
<p>These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.</p>
<p><br /><strong>Recommendation #12</strong><br />Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.</p>
<p>Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.</p>
<p> </p>
<h3>Draft Rules under Section 54</h3>
<p>These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.</p>
<p> </p>
<h2>Penal Provisions</h2>
<h3>Section 66A</h3>
<p>Any person who sends, by means of a computer resource or a communication device,<br /> (a) any information that is grossly offensive or has menacing character; or<br /> (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,<br /> (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,<br />shall be punishable with imprisonment for a term which may extend to three years and with fine.<br />Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.</p>
<p>While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.</p>
<p><br /><strong>Recommendation #13</strong><br />The section should be amended and words which lead to ambiguity must be excluded.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary. </p>
<p><br /><strong>Recommendation #14</strong><br />A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc. </p>
<p> </p>
<p><strong>Reasons for the Recommendation </strong><br />The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.</p>
<p>Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.</p>
<p> </p>
<h3>Section 66F</h3>
<p>The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character. <br />Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision, <br />“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”</p>
<p>This provision suffers from several defects and hence ought to be repealed. </p>
<p><br /><strong>Recommendation #15</strong><br />Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:</p>
<p class="callout">“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”</p>
<p class="callout"> </p>
<p><strong>Reasons for the Recommendation </strong><br />The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.</p>
<p>To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above. <br /><br /></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-draft-rules'>http://editors.cis-india.org/internet-governance/blog/comments-draft-rules</a>
</p>
No publisherpraneshIT ActEncryptionIntellectual Property RightsIntermediary LiabilityPublicationsCensorship2011-09-21T06:13:42ZBlog EntryComments on the Cinematograph (Amendment) Bill, 2021
http://editors.cis-india.org/internet-governance/blog/comments-on-the-cinematograph-amendment-bill-2021
<b>In this submission, we examine the constitutionality and legality of the Cinematograph (Amendment) Bill, 2021, which was released by the Ministry of Information and Broadcasting. </b>
<p dir="ltr"> </p>
<p dir="ltr">This submission presents comments by CIS on the Cinematograph (Amendement) Bill, 2021 (“the Bill”) which were released on 18 June 2021 for public comments. These comments examine whether the proposed amendments are compatible with established constitutional principles, precedents, previous policy positions and existing law. While we appreciate the opportunity to submit comments, we note that the time allotted for doing so was less than a month (the deadline for submission was 2 July 2021). Given the immense public import in the proposed changes, and the number of stakeholders involved, we highlight that the Ministry of Information and Broadcasting (MIB) should have provided more time in the final submission of comments. </p>
<p> </p>
<p dir="ltr">Read our full submission <a class="external-link" href="https://cis-india.org/internet-governance/cinematograph-act-amendments-bill">here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-on-the-cinematograph-amendment-bill-2021'>http://editors.cis-india.org/internet-governance/blog/comments-on-the-cinematograph-amendment-bill-2021</a>
</p>
No publisherTanvi Apte, Anubha Sinha and Torsha SarkarBroadcastingConstitutional LawCopyrightCensorship2021-07-05T05:59:52ZBlog EntryComment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting
http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment
<b>The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.</b>
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<p>Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.<br /><br />And I would like to congratulate Prof. Sirenelli on his excellent presentation.<br /><br />I would like to flag a few points, though:</p>
<ol><li>One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.</li><li>The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights</li><li>The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.<br /></li></ol>
<p>I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment'>http://editors.cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightPrivacyFreedom of Speech and ExpressionIntellectual Property RightsPiracyCensorshipWIPO2011-12-01T11:59:45ZBlog EntryClash of the cyberworlds
http://editors.cis-india.org/news/down-to-earth-latha-jishnu-dinsa-sachan-moyna-january-15-2013-clash-of-the-cyber-worlds
<b>In an increasingly digital world, the issue of Internet freedom and governance has become hugely contested. Censorship and denial of access occur across the political spectrum of nations, even in liberal democracies. </b>
<hr />
<p>The article by Latha Jishnu, Dinsa Sachan and Moyna was published in <a class="external-link" href="http://www.downtoearth.org.in/content/clash-cyberworlds?page=0,0">Down to Earth magazine's January 15, 2013 issue</a>. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; ">In run-up to the just-concluded World Conference on International Telecommunications in Dubai, there was a frenzied campaign to ensure that governments kept their hands off the Internet. It was feared the International Telecommunications Union, a UN body, was aiming to take control of the Internet. That hasn’t happened. But the outcome in Dubai has highlighted once again the double speak on freedom by countries that claim to espouse it and by corporations interested in protecting their interests, says Latha Jishnu, who warns that the major threat to the Internet freedom comes from the wide-ranging surveillance measures that all governments are quietly adopting. Dinsa Sachan speaks to institutions and officials to highlight the primacy of cyber security for nations, while Moyna tracks landmark cases that will have a bearing on how free the Net remains in India.</p>
<p style="text-align: justify; ">For months now a little-known UN agency, the International Telecommunication Union (ITU), has been looming large in cyberspace, portrayed as an evil force plotting to take over the Internet and threatening to destroy its freedom by rewriting archaic regulations. ITU, set up in 1865, is primarily a technical body that administers a 24-year-old treaty, International Telecommunication Regulations (ITRs), which are basic principles that govern the technical architecture of the global communication system.</p>
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<td style="text-align: justify; ">How did the 193-nation ITU, which regulates radio spectrum, assigns satellite orbits and generally works to improve telecom infrastructure in the developing world, turn into everyone’s favourite monster in the digital world? The provocation was ITU’s World Conference on International Telecommunications (WCIT) in Dubai, where ITRs were proposed to be revised. Leaked documents of the proposals made to ITU had shown that statist countries like Russia and China, known for their crackdown on Internet freedom, had put forward proposals to regulate digital “crime” and “security” aspects that are currently not regulated at the global level for want of consensus on balancing enforcement with protection of individual rights. <br /></td>
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<p style="text-align: justify; ">Other proposals were about technical coordination and the setting up of standards that enable all the devices, networks and software across the Internet to communicate and connect with one another. Although ITU secretary general Hamadoun I Touré had emphasised that the Dubai WCIT was primarily attempting to chart “a globally agreed-upon roadmap that offers future connectivity to all, and ensures sufficient communications capacity to cope with the exponential growth in voice, video and data”, there was widespread scepticism among developed countries.</p>
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<p><b><span>Online subversion in India</span></b></p>
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<p style="text-align: justify; ">AT the seventh annual meeting of the Internet Governance Forum in Baku, Azerbaijan, last November, Minister for Communications and Information Technology Kapil Sibal was a star turn. He made an elevating speech about the need to put in place a “collaborative, consultative, inclusive and consensual” system for dealing with policies involving the Internet.</p>
<p style="text-align: justify; ">India, with 125 million Internet users—a number that “is likely to grow to about half a billion over the next few years”—would be a key player in the cyberworld of tomorrow, he promised.</p>
<p style="text-align: justify; ">According to the minister, Internet governance was an oxymoron because the concept of governance was for dealing with the physical world and had no relevance in cyberspace. These were high sounding words that crashed against the reality of India’s paranoia over online subversion.</p>
<p style="text-align: justify; ">For starters, Sibal flew into a media blitz over Google’s transparency Report which ranked India second globally in accessing private details of its citizens. Even if it was a far second behind the US, it was an embarrassing revelation for the government which appears to have been rather enthusiastic in seeking information on the users of its various services. Such user data would include social networking profiles, complete gmail accounts and search terms used. In the first half of 2012, India made 2,319 requests related to 3,467 users compared with 7,969 requests by the US. Globally, Google clocked a total of 20,938 requests for user data.</p>
<p style="text-align: justify; ">A few days down the line there was a public explosion over the arrest of two young women in Palghar, near Mumbai, for posting a prosaic comment on Facebook over Bal Thackeray’s death. Thanks to the deliberately vague wording of Section 66A of the IT Act, such arrests have become common and Rajya Sabha devoted a whole afternoon to discuss the impugned legislation and seek its withdrawal. Sibal’s response has been to issue guidelines on the use of this Section which civil society organisations say will do nothing to sort out matters.</p>
<p style="text-align: justify; ">Then there are the IT (Intermediaries Guidelines) Rules, 2011, issued under Section 79 of the IT Act, which have been used indiscriminately by business interests to shut down websites, resulting in unbridled censorship of the Internet time and again. Although a motion for its annulment was moved in Parliament by Rajya Sabha member P Rajeeve, it was withdrawn after Sibal promised to talk to all stakeholders. A host of MPs have termed the rules a violation of right to freedom of speech besides going against the laws of natural justice. The promised meeting of stakeholders has not yielded any results and censorship on grounds of possible online piracy continues. In this regard, India is more restrained than the US which has pulled down huge numbers of domains on the ground they were violating intellectual property by selling pirated goods.</p>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/userdata.png" alt="User Data" class="image-inline" title="User Data" /></p>
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<p style="text-align: justify; ">Western global powers, behemoth Internet companies, private telecom corporations and almost the entire pack of civil liberties organisations came together in a frenzied campaign to ensure that ITU kept its hands off the Internet. Massive online petitions were launched, backed by Internet companies such as search engine Google and social networking service Facebook. The Internet, they said, should not become an ITU remit because it would change the multi-stakeholder approach, which currently marks the way the Internet is governed, and replace it with government control that would curb digital freedom. Not only did the US administration oppose the revision of ITRs, the US Congress also passed a rare unanimous resolution against the WCIT proposals.</p>
<p style="text-align: justify; ">In the end, it was an anti-climax: nothing much came of these proposals. Although WCIT was marked by high drama—a walkout by the US and six European countries, a show of hands on a contested but innocuous resolution and an unexpected vote—the “final acts” (<a href="http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf">http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf</a>) or the changes in ITRs make no mention of the I word. Not once. The 30-page document states at the outset that “these regulations do not address the content-related aspects of telecommunications” —an indirect reference to the Internet.</p>
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<th><img src="http://editors.cis-india.org/home-images/32_20130115.jpg" alt="World Internet Usage" class="image-inline" title="World Internet Usage" /></th>
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<p>Ultimately, it was a triumph of the US-led position even if 89 of the 144 eligible countries signed it. Most of the developed countries refused to sign it. Nor, unexpectedly, did India, and thereby hangs a curious tale. Officials who were privy to the negotiations told Down To Earth that India was all set to sign the new ITRs when its delegation got last-minute instructions from Delhi not to endorse them. “It was unexpected and a let-down for India and our global allies,” confesses an official of the Ministry of Communications & IT. “There was nothing in the final document that we had objections to.” According to the grapevine, Minister for Communications and Information Technology Kapil Sibal was facing pressure from two sides: the US Administration and domestically from civil society, Internet service providers and the private telecom players who had objected to India’s proposals on ITRs. The US is known to be keeping a close eye on what India decides to do on the new treaty which it can still ratify.</p>
<p>In the Dubai treaty, the only ITR that does impinge on the Net is (Article 5B) on unsolicited bulk electronic communications or spam. But even here, what it merely states is that member-states should endeavour to take necessary measures to prevent the “propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.”</p>
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<p style="text-align: justify; ">In many ways, what took place during the hectic days before and during the December 3-14 WCIT was in a broad sense a replay of the Cold War scenario of the good (freedom-loving countries) versus evil (authoritarian or autocratic regimes), although alliance may have shifted in the two blocs. What is clear is that a larger geopolitical fight is playing out with the Internet as disputed terrain. American analysts themselves have pointed out that the “US got most of what it wanted. But then it refused to sign the document and left in a huff.”</p>
<p style="text-align: justify; ">Even the innocuous Article 5A, which calls on members “to ensure the security and robustness of international telecommunication networks”, was interpreted by US delegation head Terry Kramer as a means that could be used by some governments to curb free speech!<br /><br />As an outraged Saudi delegate said, “It is unacceptable that one party to the conference gets everything they want and everybody else must make concessions. And after having made many concessions, we are then asked to suppress the language which was agreed to. I think that that is dangerous. We are on a slippery slope.” The final outcome: all the contentious issues were relegated to resolutions, which have no legal basis.</p>
<p style="text-align: justify; ">Indeed, the US has managed to get its way on most issues: protecting the mammoth profits of its Internet companies and ensuring that control of the Internet address system, now done by a group based in the US, will not be shared with other ITU members. And, the likes of Google (2011 profit: $37.9 billion) and Facebook will not have to pay telecom companies for use of their networks to deliver content.</p>
<p><b>Challenges of securing cyberworld</b></p>
<p style="text-align: justify; ">E-commerce in India, where every tenth person is online, is on the rise—and, consequently, crime on the Internet. In 2011, the country’s nodal agency for handling cyber crime, Indian Computer Emergency Response Team, tackled 13,301 incidences of security breach. The incidents ran the gamut from website intrusions, phishing to network probing and virus attacks. Further, in 2009, 2010, 2011 and 2012 (until October), there were 201, 303, 308 and 294 cyber attacks respectively on sites owned by the Indian government. Most notably, hacker group Anonymous defaced the website of Union Minister of Communications and Information Technology, Kapil Sibal.</p>
<p style="text-align: justify; ">To beef up cyber security, the Union ministry plans to pump in Rs 45 crore in 2012-13. It also put up a draft cyber security policy for public comments in 2011. Currently, cases involving cyber security and crime are handled under the IT Act of 2000 (Amendment 2008) and the Indian Penal Code.</p>
<p style="text-align: justify; ">But will the government go about its business of securing the Net in a responsible manner? There is scepticism. Section 69 of the Act gives any government agency the right to “intercept, monitor or decrypt” information online. Chinmayi Arun, assistant professor of law at National Law University in Delhi, said at the Internet Governance Conference held at FICCI in October that crimes like defamation are not on the same page as cyber terrorism, and “we have to question whether they warranty invasion of privacy”. She added that the workings of the surveillance system has to be made more open to build public trust.</p>
<p style="text-align: justify; ">Pranesh Prakash, policy director at Centre for Internet and Society (CIS) in Bengaluru, draws attention to a fundamental flaw in the section. “Government is allowed to wire tap under the Telegraph Act, 1885. But the Act lays out specific guidelines for such an action. For example, you can only tap phones in the case of a ‘public emergency’ or ‘public safety’ situation. The IT Act does not put such limitations on interception of information,” he says.</p>
<p style="text-align: justify; "><b>Cyber security and ITU</b></p>
<p style="text-align: justify; ">A few months prior to the controversial World Conference on International Telecommunications in Dubai, countries, including Russia and Arab states, had proposed measures that would, through International Telecommunication Union (ITU), grant disproportional power to countries to control the Internet in the name of security measures. Several proposals, most notably those of India and Arab States, explicitly stated in the proposed Article 5A that countries should be able to “undertake appropriate measures, individually or in cooperation with other Member States” to tackle issues relating to “confidence and security of telecommunications/ICTs”. It raised alarm among civil society. US-based think tank Center for Democracy and Technology (CDT) said in its report dated September, 2012, that cyber security does not fall under the ambit of International Telecom Regulations, and some countries would misuse such privileges for “intrusive or repressive measures”.</p>
<p style="text-align: justify; ">The proposal by African member states recommended that nations should “harmonise their laws” on data retention. In other words, intermediaries would have to retain public data for a long period so that governments can access it whenever they please. With regard to this, CDT noted, “Not only do national laws on data retention vary greatly, but there is ongoing controversy about whether governments should impose data retention mandates at all.”</p>
<p style="text-align: justify; ">A clause in the Arab proposal on routing said, “A Member State has the right to know how its traffic is routed.” Currently, the way Internet works, senders and recipients do not know how data between their computers travels or is routed. However, enabling countries to have control over routing has its dangers. CDT notes, “(This) would simply not work and could fundamentally disrupt the operation of the Internet.” Internet traffic travels over an IP network. While travelling, it is fragmented into small packets. Packets generally take a different path across interconnected networks in many different countries before reaching the recipient’s computer. CDT notes providing routing information to countries would require “extensive network engineering changes, not only creating huge new costs, but also threatening the performance benefits and network efficiency of the current system”. Although routing was not part of India’s proposal, Ram Narain, deputy director general at the department of telecommunications, told Down To Earth it was one of the country’s concerns.</p>
<p style="text-align: justify; ">However, to civil society’s partial relief, such draconian cyber security clauses were not adopted in the new itr treaty. Two clauses added to the treaty, Article 5A and 5B, address some cyber security concerns. Titled “Security and robustness of networks”, Article 5A urges countries to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks”. Article 5B talks about keeping tabs on spam.</p>
<p style="text-align: justify; ">Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers, says while he would have preferred that the two clauses were kept out of the new treaty, they do not seem harmful. “They are a much toned down version of what Arab states and Russia had suggested,” he says.</p>
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<p style="text-align: justify; ">This is one reason India, Brazil and other democracies from the developing world also want a change in ITRs. They want the Internet behemoths to pay for access to their markets so that such revenues can be used to build their own Internet infrastructure.</p>
<p style="text-align: justify; ">In the furious debate on keeping the Net free of international control even hawk-eyed civil society organisations prefer to ignore the monetary aspects of Net control. Some analysts believe that maintaining the status quo is not so much about protecting the values of the Internet as about safeguarding interests, both monetary and hegemonistic. Such an assessment may not be wide of the mark if one joins the dots. Google, says a Bloomberg report of December 10, “avoided about $2 billion in worldwide income taxes in 2011 by shifting $9.8 billion in revenues into a Bermuda shell company, almost double the total from three years before”. It also said that the French, Italian, British and Australian governments are probing Google’s tax avoidance in its borderless operations.</p>
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<th><img src="http://editors.cis-india.org/home-images/Top10Internet.png" alt="Top 10 Internet" class="image-inline" title="Top 10 Internet" /></th>
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<p style="text-align: justify; ">What is clear, however, is that a number of countries for reasons springing from different motivations, appear determined to undermine America’s control of the outfits that now define how the Internet works. Although the US maintains that ICANN (Internet Corporation for Assigned Names and Numbers) is a private, non-profit corporation, it is overseen by the US Commerce Department. According to People’s Daily, what the US spouts about Net freedom is so much humbug. In an August 2012 report, the leading Chinese daily claimed the US “controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the US, leading to American hegemonic monopoly over the world’s Internet”.</p>
<p style="text-align: justify; ">It also highlighted a fact that has slipped below the radar. During the Iraq invasion, the US government asked ICANN to terminate services to Iraq’s top-level domain name “.iq” and thereafter all websites with the domain name “.iq” disappeared overnight. It charges the US with having “taken advantage of its control over the Internet to launch an invisible war against disobedient countries and to intimidate and threaten other countries”.</p>
<p style="text-align: justify; ">While this may be true, the irony is that China, with its great firewall of censorship, is in no shape to position itself as a champion of freedom. Like other authoritarian countries, it will do everything to police the Net and control it.</p>
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<p style="text-align: justify; ">The right of countries and peoples to access the Net was highlighted in Dubai when some African countries raised the issue of US control of the global Internet. Some of these, such as Sudan, have long been complaining about Washington’s sanctions that entail denial of Internet services. ITU officials point out that Resolution 69, first passed in the 2008 meeting, invoked again in 2010 and dusted off once again for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecom/ ICT facilities, services and applications”. Says Paul Conneally, head of Communications & Partnership Promotion at ITU, “The real target of these resolutions are US sanctions imposed on nations that are deemed bad actors. These sanctions mean that people in those countries—not just the government, mind you, but everyone, innocent and guilty alike—are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc.”</p>
<p style="text-align: justify; ">The catalogue of Sudan’s complaints shows at least 27 instances in 2012 when companies from Google to Microsoft and Paypal to Oracle cut off their services to the African country. This might explain why major companies would be opposed to the resolution on a right to access Internet services. Such a right would allow countries to use ITRs to compel them to provide services they might otherwise have preferred not to. But so far all such sanctions appear to have been a decision of the US Administration.</p>
<p style="text-align: justify; ">The problem of the digital divide, in fact, did not get the headlines it should have. Africa accounts for just 7 per cent of the 2.4 billion people who use the Net worldwide and penetration in the region is just 15.6 per cent of the population. Compare this with North America where over 78 per cent are linked to the digital world and Touré’s logic about the ITU’s mandate appears reasonable.</p>
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<td><b><span>When Apple censors the drone war</span></b>
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<p style="text-align: justify; ">NETIZENS know that the Internet suffers from the depredations of government, hackers and viruses. But not many are aware that companies are as prone to taking legitimate stuff off the Net on the flimsiest grounds. In the case of Apple it could have been misplaced patriotism or plain business sense that prompted it to block an app which monitors drone strike locations in November last year.</p>
<p style="text-align: justify; "><img align="left" alt="image" class="standalone-image" height="279" src="http://www.downtoearth.org.in/dte/userfiles/images/36_20130115.jpg" width="141" />The App Store rejected the product, calling it “objectionable and crude”. Drones+ (see photo) is an application that simply adds a location to a map every time a drone strike is reported in the media and added to a database maintained by the UK’s Bureau of Investigative Journalism. Josh Begley, a graduate student at New York University, who developed the app, says it shows no visuals of war or classified information.</p>
<p style="text-align: justify; ">All it does is to keep its users informed about when and where drone attacks are taking place in Pakistan and Afghanistan. “This is behavior I would expect of a company in a repressive country like China, not an iconic American company in the heart of Silicon Valley,” says a petition to the company CEO. Did Apple’s censorship have anything to do with the fact that it received huge contracts from the Pentagon? US legislators have joined the protests against Apple.</p>
<p style="text-align: justify; ">The most brazen act of corporate censorship occurred in August 2012 with NASA’s livestream coverage of the Curiosity rover’s landing on Mars in the space agency’s $2.5 billion mission. A news agency, Scripps, coolly claimed as its own the public domain video posted on NASA’s official YouTube channel that documented the epic landing (see our opening visuals). “This video contains content from Scripps Local News, who has blocked it on copyright grounds. Sorry about that,” said a message on NASA’s blackened screen. So much for the strict US laws aimed at curbing online piracy!</p>
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</tbody>
</table>
<p style="text-align: justify; ">Touré noted that the revised ITRs would see greater transparency in global roaming charges, lead to “more investment in broadband infrastructure” and help those with disabilities. But he was hopeful that the new treaty signed in Dubai would make it possible for the 4.5 billion people still offline to be connected. “When all these people come online, we hope they will have enough infrastructure and connectivity so that traffic will continue to flow freely,” Touré said.</p>
<p style="text-align: justify; ">But should ITU govern the Net? Not in its entirety, according to experts. For one, ITU until the Dubai meeting was far from being transparent and does not allow participation of civil society or other stakeholders in its negotiations unless they are part of the official delegation of the member-states. In fact, even critics of the current system, who think the system is lopsided and hypocritical, believe ITU needs to reform itself and confine to the carrier/infrastructure layer of the Internet. Nor should it get into laying down standards which is done by Internet Engineering Task Force (IETF) and the naming and numbering that is managed by ICANN.</p>
<p style="text-align: justify; ">But Conneally counters this by asking what would happen if the US decided to deny domain name root zone to Iran because of its bad human rights record. “Suppose it ordered Verisign to remove .IR from the DNS root and make it non-functional. Would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?”</p>
<p style="text-align: justify; ">Who then should ensure that the Internet is run in a free and open manner? Should it be the Internet Governance Forum (IGF)? But IGF is to be an open consultative forum that cannot by itself govern. It brings in participation for any or all Internet-related policy processes but it by itself was never supposed to do policy or governance.</p>
<p style="text-align: justify; ">Parminder Jeet Singh, executive director of ItforChange, says whoever governs is the government for that purpose. “This truism is significant in the present context, because there is an attempt by those who really control/ govern the Internet at present, largely through illegitimate and often surreptitious ways, to confuse issues around Internet governance in all ways possible, including through abuse of established language and political principles and concepts.”</p>
<p style="text-align: justify; ">ITforChange is a Bengaluru institution working on information society theory and practice, especially from the standpoint of equity, social justice and gender equality, and it is that perspective which informs Singh’s suggestions. “What we need are safeguards as, for instance, with media regulation. The Internet, of course, is much more than media. It is today one of the most important factors that can and will influence distribution of economic, social and political power. Without regulation it will always be that those who currently dominate it will take away the biggest pie.</p>
<table class="listing">
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<td><b><span>Surveillance club</span></b>
<div></div>
<p style="text-align: justify; ">Eight Indian companies are among the 700 members of European Telecommunications Standards Institute. The group works with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure. It also hosts regular meetings on lawful interception</p>
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<tbody>
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<td><b> Wipro Technologies </b></td>
<td><b> Associate Service Providers</b></td>
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<td>• HCL Technologies Limited</td>
<td>• Associate Consultancy for Co./Partnership</td>
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<td>• Accenture Services Pvt Ltd</td>
<td>• Observers</td>
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<td>• CEWiT</td>
<td>• Associate Research Body</td>
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<td>• Saankhya Labs Pvt Ltd</td>
<td>• Associate Manufacturers</td>
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<td>• Sasken Communication</td>
<td>• Associate Manufacturers</td>
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<td>• Technologies</td>
<td></td>
</tr>
<tr>
<td>• SmartPlay Technologies</td>
<td><b>Associate Consultancy for Co./Partnership</b></td>
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<td>• TEJAS NETWORKS LTD</td>
<td>• Associate Manufacturers</td>
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</tbody>
</table>
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<p style="text-align: justify; ">Other critics of the current system concede that bringing governments on board, especially authoritarian and statist powers which the digital world threatens, would give them perverse incentives to control it. But this threat should be met not by insisting that the Internet needs no governance or regulation, but by safeguards that ensure equitable access and benefits, Singh stresses.</p>
<p style="text-align: justify; ">While the jury is out on the question whether the new ITRs will make any material difference to the way, and if at all, the Net will come under added government oversight and intervention, developments elsewhere show that ITU is not the main threat to digital freedom.</p>
<p style="text-align: justify; ">The irony is that while cyber security is contentious in ITU, other international organisations, such as the UN Office on Drugs and Crime (UNODC) and a clutch of influential telecom industry associations, are pushing for surveillance programmes that ensure policing of a high order with sophisticated infrastructure to monitor online communications. A host of countries already have such systems in place and are pressuring countries like India to fall in line.</p>
<p style="text-align: justify; ">A UNODC report, titled ‘The use of the Internet for terrorist purposes’, has detailed how countries can and should use new technology for online surveillance—all in the name of anti-terrorism. The report discusses sensitive issues such as blocking websites and using spyware to bypass encryption and also urges countries to cooperate on an agreed framework for data retention.</p>
<p style="text-align: justify; ">At the same time, powerful industry bodies, such as ATIS (Alliance for Telecommunications Industry Solutions) and the European Telecommunications Standards Institute (ETSI), are reported to be working with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure, according to Future Tense, a project which looks at emerging technologies and how these affect society, policy and culture. It says India is under pressure from another industry organisation, the Telecommunications Industry Association (TIA), “to adopt global standards for surveillance”, calling on the country’s government to create a “centralized monitoring system” and “install state-of-the-art legal intercept equipment”.</p>
<p style="text-align: justify; ">TIA is a Washington-based trade group which brings together companies such as Nokia, Siemens Networks and Verizon Wireless, and is focused on issues related to electronic surveillance and is developing standards for intercepting VOIP and data retention alongside with ETSI and ATIS. At least seven Indian companies are members of ETSI, which is said to hold international meetings on data interception thrice a year.</p>
<p style="text-align: justify; ">Add to this chilling list the International Chamber of Commerce. It is reported to be seeking the establishment of surveillance centre hubs of several countries to help governments intercept communications and obtain data that is stored in cloud servers in foreign jurisdictions. Given this backdrop why are the US and its cohorts creating a ruckus on ITRs?</p>
<p style="text-align: justify; ">It would also mean that by focusing on ITRs and ITU as a major threat to Internet freedom civil society may be jousting at windmills.</p>
<h2 style="text-align: justify; ">Malice and freedom of speech</h2>
<p><i>Two suits highlight the challenge of treading between the two</i></p>
<p style="text-align: justify; ">Among the many legal cases in India related to the use and misuse of the world wide web, two stand out for involving web giants and provoking sharp reaction. These are the cases registered in Delhi district courts in December 2011, objecting to chunks of content—portraying prominent political figures and religious places among others in a certain light—hosted on websites. One was filed by a Delhi journalist, Vinai Rai, requesting the court to press criminal charges against 21 web agencies, including Google, Facebook and Yahoo! India. The other, filed by a social activist, M A A Qasmi, was a civil suit requesting action against 22 web agencies. Both mentioned that the content on the websites was inflammatory, threat to national integrity, unacceptable, and created enmity, hatred and communal discord.</p>
<p style="text-align: justify; "><img alt="Source: Google Transparency Report" height="233" src="http://www.downtoearth.org.in/dte/userfiles/images/37_20130115.jpg" title="Source: Google Transparency Report" width="457" /></p>
<p style="text-align: justify; ">A year on, tangible impact has not been much. The number of accused in the civil case has come down to seven web agencies and in the criminal case the government is yet to issue summons to the companies concerned (see ‘The case so far’). However, these litigations are seen as landmarks in the recent history of the Internet and its interaction with societies and governments. The cases—especially off-the-record comments by the judiciary suggesting blanket ban and pre-screening of all content—provoked a debate on the freedom of expression and Indian cyber laws.</p>
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<p style="text-align: justify; "><span>The case so far </span></p>
<p style="text-align: justify; "><b>JANUARY 13, 2012:</b> Delhi High Court dismisses petition by Google and Facebook asking to be absolved of criminal charges filed in district court</p>
<p style="text-align: justify; "><b>JANUARY 20:</b> High Court asks for reply from Delhi Police in response to plea by Yahoo! India challenging district court summons</p>
<p style="text-align: justify; "><b>FEBRUARY 16:</b> Court refuses to stay proceedings against Facebook and Google but allows them to be represented by counsel</p>
<p style="text-align: justify; "><b>MARCH:</b> Court dismisses criminal charges against Yahoo! India and Microsoft but says the charges can be revived if new evidence comes to light. Sets aside summons</p>
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<p style="text-align: justify; ">Malicious content exists on the web and may even need to be taken down, but the laws used to remove malicious content can also be used to curb political speech, thus, infringing on the right to freedom of expression, says Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers.</p>
<p style="text-align: justify; ">Some like Pranesh Prakash of non-profit Centre for Internet and Society believe the IT Rules are at odds with the IT Act and give powers for censorship. He explains that the IT Act, 2000, provides for protection of intermediaries; web browsers, social networking sites and websites cannot be held responsible for what a third party publishes on their forums—“similar to the way in which we cannot sue a telephone agency or a post office for someone else making use of these platforms to harass or defame another person”. But the IT rules of 2011 watered down this protection.</p>
<p style="text-align: justify; ">Supreme Court advocate and cyber law expert Pavan Duggal explains how. The Act states once a complaint is made against certain content, the web agency hosting it must notify the person who put up the content, verify the content and judge whether it needs to be removed. But the rules state that once the web agency is notified it must remove the content within 36 hours or it could be prosecuted for not acting on the complaint. The rules have gone beyond the Act’s scope, especially vis-a-vis privacy and data protection, leaving no scope for hearing out the accused, he says.</p>
<p style="text-align: justify; ">The disjunct between the Act and the rules is being contested in various spheres, including Parliament. But there is a bright side too. Duggal believes the cases have brought pertinent issues, like free speech and privacy concerns, into the public domain. Ramanjeet Chima, policy adviser for Google, says freedom of expression is paramount for Google but the recognition of local sentiments is also being given equal weightage.</p>
<p style="text-align: justify; ">Senior advocate Sidharth Luthra, who was representing Facebook in the Delhi High Court, wonders whether the existing Indian laws are in tune with the ever-changing online world. Unwilling to comment on the case, he says the law is limited in its scope, while technology is not. Refusing to comment on the cases, the Google adviser emphasised the need to use the existing provisions of big web agencies to address grievances regarding content.</p>
<p style="text-align: justify; ">The Internet “is not the wild wild west”; all content, users and viewers can be traced, Duggal cautions. Since the Internet can impact political issues government is increasingly looking for ways to control it. “There is no ideal solution but it is evident that some monitoring and regulation are required, and in all parts of the world all regimes are in the process of addressing this,” he says.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/down-to-earth-latha-jishnu-dinsa-sachan-moyna-january-15-2013-clash-of-the-cyber-worlds'>http://editors.cis-india.org/news/down-to-earth-latha-jishnu-dinsa-sachan-moyna-january-15-2013-clash-of-the-cyber-worlds</a>
</p>
No publisherpraskrishnaSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2013-01-15T06:57:48ZNews ItemCIS Welcomes Standing Committee Report on IT Rules
http://editors.cis-india.org/internet-governance/blog/cis-welcomes-standing-committee-report-on-it-rules
<b>The Centre for Internet and Society welcomes the report by the Standing Committee on Subordinate Legislation, in which it has lambasted the government and has recommended that the government amend the Rules it passed in April 2011 under section 79 of the Information Technology Act.</b>
<hr />
<p style="text-align: justify; "><a class="external-link" href="http://www.prsindia.org/uploads/media/IT%20Rules/IT%20Rules%20Subordinate%20committee%20Report.pdf">Click to read</a> the Parliamentary Standing Committee Report on the IT Rules. A modified version was <a class="external-link" href="http://www.ciol.com/ciol/news/185991/cis-welcomes-panels-anti-govt-stand-it-rules">published in CiOL</a> on March 27, 2013.</p>
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<p style="text-align: justify; ">These rules have been noted by many, including CIS, Software Freedom Law Centre, and Society for Knowledge Commons, and many eminent lawyers, as being unconstitutional. The Standing Committee, noting this, has asked the government to make changes to the Rules to ensure that the fundamental rights to freedom of speech and privacy are safeguarded, and that the principles of natural justice are respected when a person’s freedom of speech or privacy are curtailed.</p>
<h3 style="text-align: justify; ">Ambiguous and Over-reaching Language</h3>
<p style="text-align: justify; ">The Standing Committee has noted the inherent ambiguity of words like "blasphemy", "disparaging", etc., which are used in the Intermediary Guidelines Rules, and has pointed out that unclear language can lead to harassment of people as has happened with Section 66A of the IT Act, and can lead to legitimate speech being removed. Importantly, the Standing Committee recognizes that many categories of speech prohibited by the Intermediary Guidelines Rules are not prohibited by any statute, and hence cannot be prohibited by the government through these Rules. Accordingly, the Standing Committee has asked the government to ensure "no new category of crimes or offences is created" by these Rules.</p>
<h3 style="text-align: justify; ">Government Confused Whether Rules Are Mandatory or Advisory</h3>
<p style="text-align: justify; ">The Standing Committee further notes that there is a discrepancy in the government’s stand that the Intermediary Guidelines Rules are not mandatory, and are only "of advisory nature and self-regulation", and that "it is not mandatory for the Intermediary to disable the information, the rule does not lead to any kind of censorship". The Standing Committee points out the flaw in this, and notes that the language used in the rules is mandatory language (“shall act” within 36 hours). Thus, it rightly notes that there is a "need for clarity on the aforesaid contradiction". Further, it also notes that there is "there should be safeguards to protect against any abuse", since this is a form of private censorship by intermediaries."</p>
<h3 style="text-align: justify; ">Evidence Needed Against Foreign Websites</h3>
<p style="text-align: justify; ">The government has told the Standing Committee that "foreign websites repeatedly refused to honour our laws", however, it has not provided any proof for this assertion. The government should make public all evidence that foreign web services are refusing to honour Indian laws, and should encourage a public debate on how we should tackle this problem in light of the global nature of the Internet.</p>
<h3 style="text-align: justify; ">Cyber Cafes Rules Violate Citizens’ Privacy</h3>
<p style="text-align: justify; ">The Standing Committee also pointed out that the Cyber Cafe Rules violated citizens’ right to privacy in requiring that "screens of the computers installed other than in partitions and cubicles should face open space of the cyber café". Unfortunately, the Standing Committee did not consider the privacy argument against retention of extensive and intrusive logs. Under the Cyber Cafe Rules, cyber cafes are required to retain (for a minimum of one year) extensive logs, including that of "history of websites accessed using computer resource at cyber café" in such a manner that each website accessed can be linked to a person. The Committee only considered the argument that this would impose financial burdens on small cybercafes, and rejected that argument. CIS wishes the Committee had examined the provision on log maintenance on grounds of privacy as well."</p>
<h3 style="text-align: justify; ">Government’s Half-Truths</h3>
<p style="text-align: justify; ">In one response, the government notes that "rules under Section 79 in particular have undergone scrutiny by High Courts in the country. Based on the Rules, the courts have given reliefs to a number of individuals and organizations in the country. No provision of the Rules notified under Sections 43A and 79 of the IT Act, 2000 have been held <i>ultra vires</i>."</p>
<p style="text-align: justify; ">What the government says is a half-truth. So far, courts have not struck down any of the IT Rules. But that is because none of the High Court cases in which the vires of the Rules have been challenged has concluded. So it is disingenuous of the government to claim that the Rule have "undergone scrutiny by High Courts". And in those cases where relief has been granted under the Intermediary Guidelines, the cases have been ex-parte or have been cases where the vires of the Rules have not been challenged. The government, if it wants to defend the Rules, should point out to any case in which the vires of the Rules have been upheld. Not a single court till date has declared the Rules to be constitutional when that question was before it.</p>
<h3 style="text-align: justify; ">Lack of Representation of Stakeholders in Policy Formulation</h3>
<p style="text-align: justify; ">Lastly, the Standing Committee noted that it is not clear whether the Cyber Regulatory Advisory Committee (CRAC), which is responsible for policy guidance on the IT Act, has "members representing the interests of principally affected or having special knowledge of the subject matter as expressly stipulated in Section 88(2) of the IT Act". This is a problem that we at CIS also noted in November 2012, when the CRAC was reconstituted after having been defunct for more than a decade.</p>
<p style="text-align: justify; ">CIS hopes that the government finally takes note of the view of legal experts, the Standing Committee on Delegated Legislation, the Parliamentary motion against the Rules, and numerous articles and editorials in the press, and withdraws the Intermediary Guidelines Rules and the Cyber Cafe Rules, and instead replaces them with rules that do not infringe our constitutional rights.</p>
<hr />
<p style="text-align: justify; "><i>The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness, and engages in academic research on digital natives and digital humanities. It was among the organizations that submitted evidence to the Standing Committee on Subordinate Legislation on the IT Rules</i>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/cis-welcomes-standing-committee-report-on-it-rules'>http://editors.cis-india.org/internet-governance/blog/cis-welcomes-standing-committee-report-on-it-rules</a>
</p>
No publisherpraneshIT ActPrivacyFreedom of Speech and ExpressionInternet GovernanceFeaturedCensorshipHomepage2013-04-03T10:54:52ZBlog EntryChilling Effects and Frozen Words
http://editors.cis-india.org/internet-governance/chilling-effects-frozen-words
<b>What if the real danger is not that we lose our freedom of speech and expression but our sense of humour as a nation? Lawrence Liang's op-ed was published in the Hindu on April 30, 2012. </b>
<p>While freedom of speech and expression is an individual right, its actualisation often relies on a vast infrastructure of intermediaries.</p>
<p>In the offline world, this includes newspapers, television channels, public auditoriums, etc. It is often assumed that the internet has created a more robust public sphere of speech by doing away with many structural barriers to free speech. But the fact of the matter is that even if the internet enables a shift from a ‘few to many' to a ‘many to many' model of communication, intermediaries continue to remain important players in facilitating free speech. Can one imagine free speech on the internet being the same without Twitter, social networks or Youtube?</p>
<p>One way of thinking of the infrastructure of communication is in terms of ecology, and in the ecology of speech — as in the environment — an adverse impact on any component threatens the well-being of all. The idea of cyberspace as a commons is a much cherished myth and in the early days of the internet we were perhaps given a glimpse into its utopian possibility. But we would be deluding ourselves if we believed that the problems that plague free speech in the offline world (including ownership of the avenues of speech) are absent in cyberspace. Recall in recent times that one of the most effective ways in which various governments retaliated to the leaking of official secrets on WikiLeaks was by freezing Julian Assange's PayPal account.</p>
<h3>Direct & Indirect Controls</h3>
<p>It may be useful to distinguish between direct controls on free speech and indirect or structural controls on free speech. India has had a long history of battling direct and indirect controls on free speech and with a few exceptions the interests of the press have often coincided with the interests of a robust public sphere of debate and criticism.</p>
<p>In the late 1950s and early 1960s, a number of large media houses battled restrictions imposed on the press by way of control of the number of pages of a newspaper, regulation of the size of advertisements and the price of imported newsprint. On the face of it, some of these restrictions may have seemed like commercial disputes but the Supreme Court rightly recognised that indirect controls could adversely impact the individual's right to express himself or herself as well as to receive information freely.</p>
<p>In the online context, there has also been a similar recognition of the role of intermediaries in providing platforms of speech and it is with this view in mind that a number of countries have incorporated safe harbour provisions in their information technology laws.</p>
<p>Section 79 of the Information Technology Act is one such safe harbour provision in India which provides that intermediaries shall not be liable for any third party action if they are able to prove that the offence or contravention was committed without their knowledge or that they had exercised due diligence to prevent the commission of such offence or contravention. But this safe harbour has effectively been undone with the passing of the Information Technology (Intermediaries guidelines) Rules, 2011.</p>
<p>The rules clarify what standard of due diligence has to be met by intermediaries and Sec. 3(2) of the rules obliges intermediaries to have rules and conditions of usage which ensure that users do not host, display, upload, modify, publish, transmit, update or share any information that is in contravention of the Section. This includes the all too familiar ones (defamatory, obscene, pornographic content) but also a whole host of new categories which could be invoked to restrict speech (“grossly harmful,” “blasphemous,” “harassing,” “hateful”).</p>
<p>As is well known, any restriction on speech in India has to comply with both the test of reasonableness under Article 19(2) of the Constitution, as well as ensuring that the grounds of censorship are located within 19(2). Even though there are laws regulating hate speech in India, blasphemy is not a category under Art. 19(2) and has hitherto not been a part of Indian law. Some of the other categories such as “grossly harmful” suggest the people who drafted the rules seem to have taken a constitutional nap at the drafting board.</p>
<p>Sec. 3(4) of the rules provides that any intermediary who receives a notice by an aggrieved person about any violation of sub rule (2) will have to act within 36 hours and where applicable will ensure that the information is disabled. In the event that it fails to act or to respond, the intermediary cannot claim exemption for liability under Sec. 70 of the IT Act. It is worth noting that most intermediaries receive from hundreds to thousands of requests from individuals on a daily basis asking for the removal of objectionable material. The Centre for Internet and Society conducted a “sting operation” to determine whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on free expression.</p>
<p>In the course of the study, frivolous takedown notices were sent to seven intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled. The takedown notices which were sent by the researcher were intentionally defective as they did not establish how they were interested parties, did not specifically identify and discuss any individual URL on the websites, or present any cause of action, or suggest any legal injury. Of the seven intermediaries to which takedown notices were sent, six over-complied with the notices, despite the apparent flaws in them.</p>
<h3>Caution</h3>
<p>Even in cases where the intermediaries challenged the validity of the takedowns, they erred on the side of caution and took down the material. While a number of intermediaries would see themselves as allies in the fight against censorship, more often than not intermediaries are also large commercial organisations whose primary concern is the protection of their business interests. In the face of any potential legal threat, especially from the government, they prefer to err on the side of caution. The people whose content was removed were not told, nor was the general public informed that the content was removed.</p>
<p>The procedural flaws (subjective determination, absence of the right to be heard, the short response time) coupled with the vague grounds on which such takedowns can be claimed, clearly point to a highly flawed situation in which we will see many more trigger happy demands for offending materials to be taken down.</p>
<p>We have already slipped into a state of being a republic of over sensitivity where any politician, religious group or individual can claim their sentiments have been hurt or they have been portrayed disparagingly, as evidenced by the recent attack and subsequent arrest of Professor Ambikesh Mahapatra of Jadavpur University for posting cartoons lampooning Mamata Banerjee.</p>
<h3>Nervous State</h3>
<p>In the era of global outsourcing it was inevitable that the state censorship machinery would also learn a lesson or two from the global trends and what better way of ensuring censorship than outsourcing it to individuals and to corporations. The renowned anthropologist, Michael Taussig, once compared the state to a nervous system and it seems that the Intermediary rules live up to the expectations of a nervous state ever ready to respond to criticism and disparaging cartoons.</p>
<p>What if the real danger is not even that we lose our freedom of speech and expression but we lose our sense of humour as a nation?</p>
<p>The evident flaws of the rules have been acknowledged even by lawmakers, with P. Rajeeve, the CPI(M) M.P., introducing a motion for the annulment of the rules. The annulment motion is going to be debated in the coming weeks and one hopes that the parliamentarians will seriously reconsider the rules in their current form.</p>
<p>When faced with conundrums of the present it is always useful to turn to history and there is reason to believe that while censorship has a very respectable genealogy in Indian thought, it has also been accompanied in equal measure by a tradition of the right to offend.</p>
<p>In his delightful reading of the <em>Arthashastra</em>, Sibaji Bandyopadhay alerts us to the myriad restrictions that existed to control Kusilavas (the term for entertainers which included actors, dancers, singers, storytellers, minstrels and clowns). These regulations ranged from the regulation of their movement during monsoon to prohibitions placed on them, ensuring that they shall not “praise anyone excessively nor receive excessive presents”. While some of the regulations appear harsh and unwarranted, Bandyopadhay says that in contrast to Plato's <em>Republic</em>, which banished poets altogether from the ideal republic, the <em>Arthashastra</em> goes so far as to grant to Kusilavas what we could now call the right to offend. Verse 4.1.61 of the <em>Arthashastra</em> says, “In their performances, [the entertainers] may, if they so wish, make fun of the customs of regions, castes or families and the practices or love affairs (of individuals)”. One hopes that our lawmakers, even if they are averse to reading the Indian Constitution, will be slightly more open to the poetic licence granted by Kautilya.</p>
<p><a class="external-link" href="http://www.thehindu.com/opinion/lead/article3367917.ece?homepage=true">Click</a> for the original published in the Hindu on April 30, 2012. Lawrence Liang is a lawyer and researcher based at Alternative Law Forum, Bangalore. He can be contacted at <a class="external-link" href="mailto:lawrence@altlawforum.org">lawrence@altlawforum.org</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/chilling-effects-frozen-words'>http://editors.cis-india.org/internet-governance/chilling-effects-frozen-words</a>
</p>
No publisherLawrence LiangFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-04-30T07:32:17ZBlog EntryCentre blocks 32 websites for security reasons, restores some later
http://editors.cis-india.org/internet-governance/news/the-hindu-businessline-december-31-2015-s-ronendra-singh-
<b>The Centre on Wednesday asked Internet Service Providers (ISP) to block 32 websites citing national security concerns, especially from terror group ISIS.</b>
<p class="body" style="text-align: justify; ">The article by S. Ronendra Singh was <a class="external-link" href="http://www.thehindubusinessline.com/features/smartbuy/tech-news/centre-blocks-32-websites-for-security-reasons-restores-some-later/article6742568.ece">published in the Hindu Businessline</a> on December 31, 2014. Pranesh Prakash gave his inputs.</p>
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<p class="body" style="text-align: justify; ">The move created a flutter on social networking sites, as most of the Web sites, such as archive.org, vimeo.com, github.com, pastebin.com, codepad.org and paste2.org, were being used by global communities like application developers for free movies and books, coders and text sharing.</p>
<p class="body" style="text-align: justify; ">By late evening, some sites were restored.</p>
<p class="body" style="text-align: justify; ">Sources in the Ministry of Telecommunications and Information Technology confirmed the development and told <i>BusinessLine</i>: “It was based on some national security issues, and we cannot compromise with our nation’s security….”</p>
<p class="body" style="text-align: justify; ">A senior official from the Department of Telecommunications (DoT) said the directive had come from a Mumbai court after the Maharashtra Anti-Terrorism Squad (ATS) had approached it to block some Web sites carrying anti-India content.</p>
<p class="body" style="text-align: justify; ">The matter came to light after a circular, purportedly sent by DoT to ISPs, showed up on social networking sites, listing the sites, along with some screen shots. Incidentally, the said circular had edited out the letter head, date and the signature below. The ruling Bharatiya Janata Party’s IT cell head, Arvind Gupta, tweeted saying ‘the Web sites that have been blocked were based on an advisory by the Anti-Terrorism Squad, and were carrying anti-India content from ISIS’.</p>
<p class="body" style="text-align: justify; ">However, later in the evening, Gupta, in his tweet said, some of the Web sites such as vimeo.com have been restored because they have removed ‘objectionable content and/or cooperated with the on going investigations’.</p>
<p class="body" style="text-align: justify; ">However, the blocked Web sites raised a furore in the social media wherein people said the Government should amend the laws than do such things.</p>
<p class="body" style="text-align: justify; ">“The problem isn’t just about the specific sites that are blocked; the problem is always about the bad law + process relating to #GoIBlocks,” Pranesh Prakash, Policy Director at Centre for Internet and Society tweeted. He said the 69A Rules (of the IT Act 2000) does not allow for transparency, accountability and time-limits on blocks, so it is easily misused by the Government, the courts and individuals.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/the-hindu-businessline-december-31-2015-s-ronendra-singh-'>http://editors.cis-india.org/internet-governance/news/the-hindu-businessline-december-31-2015-s-ronendra-singh-</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionSocial MediaInternet GovernanceCensorship2015-01-02T14:13:03ZNews ItemCensorship makes India fall two places on global internet freedom chart
http://editors.cis-india.org/news/dna-india-sep-27-2012-dilnaz-boga-censorship-makes-india-fall-two-places-on-global-internet-freedom-chart
<b>A recently released global report on the internet freedom rated India 39th in 2012, a slip from two places last year.</b>
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<p>The article by Dilnaz Boga was <a class="external-link" href="http://www.dnaindia.com/india/report_censorship-makes-india-fall-two-places-on-global-internet-freedom-chart_1745778">published</a> in DNA on September 27, 2012.</p>
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<p style="text-align: justify; ">The report titled, Freedom on the net 2012 (FOTN): A global assessment of internet and digital media by Freedom House, a Washington-based monitoring group conducted a comprehensive study of internet freedom in 47 countries.</p>
<p style="text-align: justify; ">Quoting Bangalore-based Centre for Internet and Society, the report said 309 specific items (URLs, Twitter accounts, img tags, blog posts, blogs, and a handful of websites) have been blocked by the government. But officially, the government has admitted to blocking 245 web pages for inflammatory content hosting of provocative content.<br /><br />Ketan Tanna, India analyst for Freedom House told DNA, “A reflection of the downward spiral in the freedom on the net that Indians enjoy is evident in the upward revision of scores for India in the FOTN 2012 report. India was one of the only 4 of the 20 countries that “recently experienced declines” and are democracies. The other three are Mexico, Turkey and South Korea.”<br /><br />Internet usage in India continues to increase, with tens of millions of new users getting online each year. According to the International Telecommunications Union, internet penetration was 10% — or about 120 million people at the end of 2011. Among internet users, 90 million were ‘active,’ accessing it at least once a month (70 million urban and 20 million rural).<br /><br />The report has mentioned that in India, “amid several court cases regarding intermediaries’ responsibility for hosting illegal content, much evidence has surfaced that intermediaries are taking down content without fully evaluating or challenging the legality of the request”.<br /><br />Citing an example, Tanna said in December 2011, the website Cartoons against Corruption was suspended by its hosting company after a complaint filed with the Mumbai police alleged that the site’s cartoons ridiculed parliament and national emblems. “As a result of such dynamics, large swaths of online content are disappearing, and the losses are far more difficult to reverse than the mere blocking of a website,” he added.<br /><br />More common than website blocking is the removal of content based on judicial orders, government directives, and citizen complaints. This phenomenon that has increased in recent years and in some cases, targeted content on political, social, and religious topics, the report said.<br /><br />The Indian authorities had submitted 68 removal requests covering 358 items between January and June 2011. According to Google, 255 items related to what it categorised as “government criticism,” while 39 involved defamation and 8 pertained to hate speech.<br /><br />In January, responding to a freedom of information request, the home ministry reported that the government orders 7,500 to 9,000 phone interceptions per month, the report disclosed. Criticising this practice and the government’s disregard for the Constitution, the data revealed, “Established guidelines regulate the ability of state officials to intercept communications, but India lacks an appropriate legal framework and procedures to ensure proper oversight of Intelligence agencies’ growing surveillance and interception capabilities, opening the possibility of misuse and unconstitutional invasion of citizens’ privacy.”<br /><br />As another method of controlling speech and activism online, governments have imposed temporary shutdowns of the internet or mobile phone networks during protests or other sensitive times. Localised internet shutdowns and mobile phone shutdowns occurred in India due to security concerns, the report said.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/dna-india-sep-27-2012-dilnaz-boga-censorship-makes-india-fall-two-places-on-global-internet-freedom-chart'>http://editors.cis-india.org/news/dna-india-sep-27-2012-dilnaz-boga-censorship-makes-india-fall-two-places-on-global-internet-freedom-chart</a>
</p>
No publisherpraskrishnaSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2012-09-27T10:37:47ZNews ItemCensorship and sensibility in India
http://editors.cis-india.org/news/the-national-feb-6-2013-samanth-subramanian-censorship-and-sensibility-in-india
<b>The past few weeks in India have seen films, an all-girl rock band, a fashion show, a Booker prize-winning novelist and a reputed academic become targets of harassment, legal action or threats of violence.
</b>
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<p style="text-align: justify; ">This article by Samanth Subramanian was <a class="external-link" href="http://www.thenational.ae/news/world/censorship-and-sensibility-in-india">published</a> in the National on February 6, 2013. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; ">The most prominent case involved <i>Vishwaroopam</i>, a Tamil film that will be released in Tamil Nadu on Friday after a two-week delay. The film was blocked by the state government after some Muslim groups protested that it depicted Muslims in poor light. The director, Kamal Haasan, had to agree to cut seven scenes.</p>
<p style="text-align: justify; ">"The culture of taking offence has acquired an epidemic proportion, and we are moving in a direction where nothing, it seems, is a safe topic," said Salil Tripathi, who wrote the 2009 book <i>Offence: The Hindu Case</i>, on how Hindu fundamentalists have succeeded in censoring and banning many cultural works and teachings.</p>
<p style="text-align: justify; ">"If India doesn't step back from this abyss, it will begin to resemble the dictatorships where people speak in coded language, where real thoughts go underground," Mr Tripathi added.</p>
<p style="text-align: justify; ">On Sunday, a fashion show in the southern city of Visakhapatnam was cancelled after the Vishwa Hindu Parishad (VHP), a right-wing Hindu group, protested against women modelling dresses bearing images of Hindu deities.</p>
<p style="text-align: justify; ">In Delhi, an art gallery had to temporarily shut down on Monday after the VHP called for a ban on a retrospective of the modern nude because the exhibit included "indecent pictures". The VHP's women's wing, the Durga Vahini, harrassed women who were smoking and drinking in a restaurant in Mangalore last week.</p>
<p style="text-align: justify; ">Meanwhile, on Sunday, a Muslim cleric in Kashmir a fatwa against Pragaash, an all-girl high school rock band that was deemed "un-Islamic". The band has dissolved, although Omar Abdullah, the chief minister of Jammu and Kashmir, defended them last weekend on Twitter, saying: "I hope these talented young girls will not let a handful of morons silence them."</p>
<p style="text-align: justify; ">Last week, the author Salman Rushdie cancelled a visit to a literary festival in Kolkata, citing security concerns after protests by Muslim groups. The fair's organisers subsequently denied having invited him. Yesterday, the Indian Christian Republican Party complained to the police that <i>Kadal</i>, a new movie set in a Tamil Catholic fishing community, shows a framed picture of Jesus Christ being thrown to the floor.</p>
<p style="text-align: justify; ">These instances have sparked widespread criticism of what an editorial last week in <i>The Hindu </i>newspaper called India's "flourishing outrage industry". In the <i>International Herald Tribune,</i> the columnist Manu Joseph called modern India "a paradise for those who take offence".</p>
<p style="text-align: justify; ">The Indian constitution guarantees freedom of speech and expression, but it is not without caveat. The constitution allows for "reasonable restrictions" on this right, in the interests of "public order, decency or morality".</p>
<p style="text-align: justify; ">Further, the Indian Penal Code contains two laws that have been invoked repeatedly to cramp free speech.</p>
<p style="text-align: justify; ">Section 295A punishes those who "outrage [the] religious feelings of any class" by spoken, written or visual means, with a fine or a prison term of up to three years.</p>
<p style="text-align: justify; ">Section 505(2) promises a similar punishment to those who make "statements creating or promoting enmity, hatred or ill-will between classes" on grounds of religion, caste, language or race.</p>
<p style="text-align: justify; ">Nikhil Mehra, a lawyer who practises in the Supreme Court, said both laws are antiquated holdovers from colonial India.</p>
<p style="text-align: justify; ">"The problem is that these laws are so broadly worded that cases can be impossible to quash, because it is difficult for a judge to take the view that some piece of speech does not promote enmity between groups," Mr Mehra said.</p>
<p style="text-align: justify; ">"I'd say there's no chance that these laws will be struck off the books," he said. "Politically, nobody will do it, because we have such a huge vacuum of leadership that nobody has the guts to step up and suggest such changes."</p>
<p style="text-align: justify; ">Pranesh Prakash, policy director at the Bangalore-based Centre for Internet and Society, has extensively analysed cases where these laws are applied in conjunction with India's information technology act, which governs online speech.</p>
<p style="text-align: justify; ">"Given India's history of communal violence, it would be extraordinary for courts to directly criticise such laws," Mr Prakash said. But these laws are two among many "patently unconstitutional laws" in India's statute books, he pointed out.</p>
<p style="text-align: justify; ">"How could it be constitutional to prevent the free broadcast of news over radio, for instance, or to prohibit speech online that causes 'annoyance'?" Mr Prakash said. "Not only are antiquated and speech-restricting laws not being struck off, more such laws are being added to the statute books all the time."</p>
<p style="text-align: justify; ">An example, he said, was section 66a of the information technology act, which aims to curtail "offensive messages" online but is often used to target dissidents and even posts on social media.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/the-national-feb-6-2013-samanth-subramanian-censorship-and-sensibility-in-india'>http://editors.cis-india.org/news/the-national-feb-6-2013-samanth-subramanian-censorship-and-sensibility-in-india</a>
</p>
No publisherpraskrishnaInternet GovernanceCensorship2013-03-06T04:09:02ZNews ItemCensoring the Internet: A brief manual
http://editors.cis-india.org/internet-governance/www-tehelka-com-sunil-abraham-august-23-2012-censoring-the-internet
<b>Blocking websites on the Internet should be proportionate to harm they intend. However, the government of India's approach is against the principles of natural justice.</b>
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<p style="text-align: justify; ">Published in <a class="external-link" href="http://www.tehelka.com/story_main53.asp?filename=Ws230812Internet.asp">Tehelka</a> on August 23, 2012.</p>
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<p style="text-align: justify; "><b>When:</b> Speech should be regulated when there is harm, or when there is clear and imminent harm. The extent of regulation must be in proportion to the harm.</p>
<p style="text-align: justify; ">The mass exodus of people from the Northeast, from certain Indian-cities is clear indication of a ‘public order’ crisis. The government of India, for the very first time, has legitimate reasons for cracking down on intermediaries such as Google and Facebook and their users, unlike in the past when only the egos of politicians, bureaucrats and others in public office or public life were at stake. In most cases temporary restrictions on speech are sufficient to mitigate harm. When potential for harm has dissipated the restrictions should be lifted. Whilst videos and images related to the violations of the human-rights to the Rohingya community might be sensitive material today, there is no reason why such content should be blocked forever, unlike, for example, in the case of child pornography.</p>
<p style="text-align: justify; "><b>How:</b> Does this mean that the Internet rules that were notified in April last year were future-looking policies justified in retrospect? No. When a block is implemented, or a takedown is complied with, three types of notices are required — either immediately or after the imminent harm has been prevented. First, the censored individuals/groups should be informed, so that they can seek redressal and reinstatement; second, those trying to consume the censored material must be warned; and third, the general public has a right to know either immediately or in due course.</p>
<p style="text-align: justify; ">Even in authoritarian states like Saudi Arabia, visitors to blocked websites are given clear reasons why the website was blocked along with contact details to seek redressal. There are, also, safe harbour provisions for intermediaries, meaning that they absolve themselves of liability in exchange for acting upon takedown orders sent by non-state actors. Suitable safeguards are required to prevent over-compliance by intermediaries, and the resulting chilling effect on free speech as demonstrated by CIS's research. The intermediary liability rules under the Indian IT Act 2008 have no such safeguards and therefore does not comply with principles of natural justice.</p>
<p style="text-align: justify; "><b>Who:</b> Block and takedown orders need to be very specific. The advisory note issued to Internet intermediaries by the Department of Electronics and Information Technology, Ministry of Communications & Information Technology on the 17 August did not mention details such as URLs, user accounts, group names and content identifiers. Most of the censored material at first glance, appears to be communal in nature. Unfortunately, there are several URLs from mainstream media publications, a few Wikipedia pages and also at least two blog entries debunking rumours in the list, perhaps because of oversight. Images of unrelated human rights violations featuring people with similar racial features are being used to fuel the current rumours. However, blocking all websites featuring such images will not stop such rumour mongering. Censorship must be targeted and proportionate to the potential harm.</p>
<p style="text-align: justify; "><b>Why:</b> Speaking aloud just once in the analog world could either result in harm or good. Imagine shouting “bomb” in a crowded airport. The network effect of technologies such as SMS, social media and micro-blogging amplifies the impact of speech. Article 19(2) of the Constitution of India lists eight reasons for which reasonable restrictions may be applied to the right to free speech. This applies to both analog and speech mediated via networked technologies. Some of these restrictions such as 'public order' and 'incitement to discrimination, hostility or violence' are part of international treaties such as the International Covenant on Civil and Political Rights. Fringe phenomenon and exceptional circumstances should not be the basis for formulating policy. For example — knives used as murder weapons does not necessitate regulations on cutlery. Similarly, criminalising rumour mongering will not prevent false information from going viral, online, and disrupting public order. Videos and photos are doctored and manipulated for a wide variety of legitimate reasons. The existing law regulating speech in the interests of public order are sufficient to deal with the circulation of falsehoods on social media.</p>
<p style="text-align: justify; "><i>Sunil Abraham is the Executive Director of Bangalore based research organisation, the Centre for Internet and Society</i>.</p>
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For more details visit <a href='http://editors.cis-india.org/internet-governance/www-tehelka-com-sunil-abraham-august-23-2012-censoring-the-internet'>http://editors.cis-india.org/internet-governance/www-tehelka-com-sunil-abraham-august-23-2012-censoring-the-internet</a>
</p>
No publishersunilPublic AccountabilityInternet GovernanceCensorship2012-08-24T09:39:03ZBlog EntryCan Uber, Ola apps be blocked? Govt fighting cyber odds
http://editors.cis-india.org/internet-governance/news/hindustan-times-siladitya-ray-june-4-can-uber-ola-apps-be-blocked
<b>The Delhi government is trying to block taxi hailing apps like Uber and Ola Cabs, but is it really possible?</b>
<p style="text-align: justify; ">The article by Siladitya Ray published in the <a class="external-link" href="http://www.hindustantimes.com/technology-topstories/can-the-uber-ola-apps-be-blocked/article1-1354921.aspx">Hindustan Times</a> on June 4, 2015 quotes Sunil Abraham.</p>
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<p style="text-align: justify; ">Taxi aggregators are in the firing line over passenger safety again after a 21-year-old Delhi woman alleged she was molested by a driver in an Uber cab near Gurgaon on Saturday morning.</p>
<p style="text-align: justify; ">The allegation came just six months after a 25-year-old financial analyst was allegedly raped in an Uber cab in Delhi, over which the victim took the cab aggregator's parent company to court in the US.</p>
<p style="text-align: justify; ">Following an order from the Delhi government, the Department of Telecommunication had issued an order to Internet Service Providers to block the websites and apps of taxi hailing aggregators like Uber, TaxiForSure and Ola Cabs.</p>
<p style="text-align: justify; ">But Internet Service Providers (ISP) have apparently expressed inability to block Uber, Ola as the web services feature strong end-to-end encryption.</p>
<p style="text-align: justify; "><b>How ISPs block sites</b></p>
<p style="text-align: justify; ">Often when an ISP blocks a website it severs your connection with the domain name. For example if ISPs want to block Google they simply block your access to <a href="http://www.google.com">www.google.com</a> (i.e. Google's domain name), pretty simple. But if you are using an app like Google Now there is no domain name involved here the app talks directly to the server through using some form of encryption.</p>
<p style="text-align: justify; ">If we were to use an analogy, think of the ISP as a bridge that connects you to the web. The sites can be thought of as cars and their domain names as license plates. If the ISP wants to block a car with a certain license plate from going through it can do so with ease. But if a car's number plates are obscured (encryption) then ISP cannot block the car from passing through.</p>
<p style="text-align: justify; "><b>Uber and Ola</b></p>
<p style="text-align: justify; ">Most users book cabs from Ola or Uber using the company's apps, which use strong encryption effectively making their data virtually undetectable to ISPs.</p>
<p style="text-align: justify; ">"It's possible to block apps but it's much more difficult than before. Earlier you had to deal with a finite set of IP addresses but now these services are hosted on multiple cloud servers," said Sunil Abraham, the executive director of Bangalore based research organisation, the Centre for Internet and Society. "The ISPs themselves don't want to go through the pain of blocking these apps so they are asking the government to give them a solution," he added.</p>
<p style="text-align: justify; ">The government and the Department of Telecommunication are fighting near improbable odds in their endeavor to block these services on the web.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/hindustan-times-siladitya-ray-june-4-can-uber-ola-apps-be-blocked'>http://editors.cis-india.org/internet-governance/news/hindustan-times-siladitya-ray-june-4-can-uber-ola-apps-be-blocked</a>
</p>
No publisherpraskrishnaInternet GovernanceBlockingCensorship2015-06-14T09:52:28ZNews Item