Centre for Internet and Society

TV versus Social Media: The Rights and Wrongs

sunil — 2013-01-21T03:09:56Z

For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a toilet, and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Sunil Abraham's guest column was published in the Tribune on January 20, 2013.

Many in traditional media, especially television, look at social media with a mixture of envy and trepidation. They have been at the receiving end of various unsavoury characters online and consequently support regulation of social media. A common question asked by television anchors is "shouldn't they be subject to the same regulation as us?" This is because they employ the 'principle of equivalence', according to which speech that is illegal on broadcast media should also be illegal on social media and vice versa. According to this principle, criticising a bandh on national TV or in a newspaper op-ed or on social media should not result in jail time and, conversely, publishing obscene content, in either new or old media, should render you a guest of the state.

Given that Section 66-A of the Information Technology Act, 2000, places more draconian and arguably unconstitutional limits on free speech when compared to the regulation of traditional and broadcast media, those in favour of civil liberties may be tempted to agree with the 'principle of equivalence' since that will mean a great improvement from status quo. However, we must remember that this compromise goes too far since potential for harm through social media is usually very limited when compared to traditional media, especially when it comes to hate speech, defamation and infringement of privacy. A Facebook update or 'like' or a tweet from an ordinary citizen usually passes completely unnoticed. On rare occasion, an expression on social media originating from an ordinary citizen goes viral and then the potential for harm increases dramatically. But since this is the fringe case we cannot design policy based on it. On the other hand, public persons (those occupying public office and those in public life), including television journalists, usually have tens and hundreds of thousands friends and followers on these social networks and, therefore, can more consistently cause harm through their speech online. For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a public or residential toilet and therefore employing the 'principle of equivalence' will result in overregulation of new media.

Ideally speech regulation should address the asymmetries in the global attention economy by constantly examining the potential for harm. This applies to both 'speech about' public persons and also 'speech by' them. Since 'speech about' public persons is necessary for transparent and accountable governance and public discourse, such speech must be regulated less than 'speech about' ordinary citizens. Let us understand this using two examples: One, a bunch of school kids referring to a classmate as an idiot on a social network is bullying, but citizens using the very same term to criticise a minister or television anchor must be permitted. Two, an ordinary citizen should be allowed to photograph or video-record the acts of a film or sports star at a public location and upload it to a social network, but this exception to the right of privacy based on public interest will not imply that the same ordinary citizen can publish photographs or videos of other ordinary citizens. Public scrutiny and criticism is part of the price to be paid for occupying public office or public life. If speech regulation is configured to prevent damage to the fragile egos of public persons, then it would have a chilling effect on many types of speech that are critical in a democracy and an open society.

When it comes to 'speech by' those in public office or in public life - given the greater potential for harm - they should be held more liable for their actions online. For example, an ordinary citizen with less than 100 followers causes very limited harm to the reputation of a particular person through a defamatory tweet. However, if the very same tweet is retweeted by a television anchor with millions of followers, there can be more severe damage to that particular person's reputation.

Many in television also wish to put an end to anonymous and pseudonymous speech online. They would readily agree with Nandan Nilekani's vision of tagging all - visits to the cyber cafe, purchases of broadband connections and SIM cards and, therefore, all activities from social media accounts with the UID number. I have been following coverage of the Aadhaar project for the past three years. Often I see a 'senior official from the UIDAI' make a controversial point. If anonymous speech is critical to protect India's identity project then surely it is an important form of speech. But, unlike the print media, which more regularly uses anonymous sources for their stories, television doesn't see clearly the connection between anonymous speech and free media. This is because many of the trolls that harass them online often hide behind pseudonymous identities. Television forgets that anonymous speech is at the very foundation of our democracy, i.e., the electoral ballot.

For more details visit http://editors.cis-india.org/internet-governance/blog/sunday-tribune-january-20-2013-sunil-abraham-tv-vs-social-media

Online Censorship: How Government should Approach Regulation of Speech

sunil — 2012-12-05T07:06:52Z

Why is there a constant brouhaha in India about online censorship? What must be done to address this?

Sunil Abraham's article was published in the Economic Times on December 2, 2012.

Of course, we must get the basics right â€” bad law has to be amended, read down by courts or repealed, and bad implementation of law should be addressed via reform and capacity building for the police. But most importantly those in power must understand how to approach the regulation of speech.

To begin with, speech is regulated across the world. Even in the US â€” contrary to popular impression in India â€” speech is regulated both online and offline.

However, law is not the basis of most of this regulation. Speech is largely regulated by social norms. Different corners of our online and offline society have quite complex forms of self-regulation.

The harm caused by speech is often proportionate to the power of the person speaking â€” it maybe unacceptable for a politician or a filmstar to make an inflammatory remark but that very same utterance from an ordinary citizen may be totally fine.

To complicate matters, the very same speech by the very same person could be harmful or harmless based on context. A newspaper editor may share obscene jokes with friends in a bar, but may not take similar liberties in an editorial.

The legal scholar Alan Dershowitz tells us, "The best answer to bad speech is good speech." More recently the quote has been amended, with "more speech" replacing "good speech".

Censorship by the state has to be reserved for the rarest of rare circumstances. This is because censorship usually results in unintended consequences.

The "Streisand Effect", named after the singer-actor Barbra Streisand, is one of these consequences wherein attempts to hide or censor information only result in wider circulation and greater publicity.

The Maharashtra police's attempt to censor the voices of two women has resulted in their speech being broadcast across the nation on social and mainstream media. If the state had instead focused on producing good speech and more speech, nobody would have even heard of these women.

Circumventing Censorship

Peer-to-peer technologies on the internet mimic the topology of human networks and can also precipitate unintended consequences when subject to regulation. John Gilmore, a respected free software developer, puts it succinctly: "The Net interprets censorship as damage and routes around it."

Most of the internet censorship in the US is due to IPR-enforcement activities. This is why Christopher Soghoian, a leading privacy activist, attributes the massive adoption of privacy-enhancing technologies such as proxies and VPNs (virtual private networks) by American consumers to the crackdown on online piracy.

In India, and even when the government has had legitimate reasons to regulate speech, there have been unintended consequences.

During the exodus of people from the North-east, the five SMS per day restriction imposed by the government resulted in another exodus from SMS to alternative messaging platforms such as BlackBerry Messenger (BBM), WhatsApp and Twitter.

In both cases the circumvention of censorship by the users has resulted in a worsening situation for law-enforcement organisations â€” VPNs and applications like WhatsApp are much more difficult to monitor and regulate.

Mixed Memes

Regulation of speech also cannot be confused with cyber war or security. Speech can occasionally have security implications but that cannot be the basis for enlightened regulation.

A cyber war expert may be tempted to think of censored content as weapons, but unlike weapons that usually remain lethal, content that can cause harm today may become completely harmless tomorrow. This is unlike a computer virus or malware. For example, during the exodus, the online edition of ET featured the complete list of 309 URLs that were in the four block orders issued by the government to ISPs.

However, this did not result in fresh harm, demonstrating the fallacy of cyber war analogies. A cyber security expert, on the other hand, may be tempted to implement a 360Â° blanket surveillance to regulate speech, but as Gilmore again puts it, "If you're watching everybody, you're watching nobody."

In short, if your answer to bad speech is more censorship, more surveillance and more regulation, then as the internet meme goes, "You're Doing It Wrong".

For more details visit http://editors.cis-india.org/internet-governance/blog/economic-times-december-2-2012-sunil-abraham-online-censorship

The Five Monkeys & Ice-cold Water

sunil — 2012-10-30T10:43:38Z

The Indian government provides leadership, both domestically and internationally, when it comes to access to knowledge.

This article by Sunil Abraham was published in Deccan Chronicle on September 16, 2012.

Our domestic patent policy ensures that generic medicines are available and largely affordable not only within India but also in Africa and elsewhere. It also allows Indians to consume a wide range of technological innovations without worrying about legal bans that are an otherwise common feature in the developed countries, thanks to phenomena such as the ongoing mobile phone patent wars.

Copyright policy, including the last amendment of the copyright act, has ensured that fair dealing and the rights of students, researchers, disabled, etc., are protected. Texts, audio and video for education and entertainment are relatively affordable, especially in comparison to other countries in the Asia-Pacific.

Even at the World Intellectual Property Organisation, other developing countries look to India for guidance. The interventions of the copyright registrar G.R. Raghavender and the Indian team won praise during the most recent round of negotiations for the Treaty for the Visually Impaired. An excellent example of India's soft power protecting public interest at home and abroad.

In diametrical contrast, India has a terrible track record when it comes to freedom of expression, especially expression mediated by networked technologies such as telecommunications and the Internet.

Our policy-makers seem determined to extinguish the privacy of communications and also anonymous/pseudonymous speech through such devices as Know Your Customer (KYC) and data retention requirements for accessing the Internet through cyber-cafes, mobile phones, dial-up or broadband, ban on open wi-fi networks, plans to tie together Aadhaar and NATGRID and Central Monitoring System (CMS) to track a citizen using his/her UID across devices, networks and intermediaries, and requiring real-time interception equipment to be installed at all network and data centres.

All these without any horizontal privacy law or a data protection law that is compliant with international best practices. Security hawks argue that this pervasive, multi-tiered surveillance regime helps thwart criminal and terrorist attacks, but its poor design extracts a terrible price in terms of freedom of expression.

Citizens who cannot express themselves anonymously and privately begin to censor themselves, seriously undermining our democracy, which is most importantly founded on an anonymous expression, the electoral ballot.

In addition, in April 2011, rules under the amended IT Act were notified for intermediaries that have a chilling effect on free speech via unclear and unconstitutional limits on freedom of expression, encouragement of private censorship without any notice to those impacted, missing procedure for redress, and lack of penalties for those who abuse the rules to target legitimate speech. This was followed by calls for proactive censorship of social media, which caused much outrage amongst the twitterati.

Even when the government had legitimate grounds (the recent exodus of North-East Indians) to censor free speech, it overreached and acted incompetently, cracking down on parody accounts on social media rather than carefully configuring the text message ban. As if that weren't enough, the government beats up a cartoonist and jails him for sedition.

There’s a plan behind such attacks on free speech. The powerful in India, with their fragile egos, can afford expensive lawyers who can ensure that for those who dare to speak their mind, “the process is the punishment”, as Lawrence Liang of the Alternative Law Forum put it. Needless to say, cartoonists and others that dare to speak their mind cannot usually afford the time and expense of courts.

An experiment featuring monkeys, bananas and ice-cold water, commonly attributed to the late American psychologist Harry Harlow, explains what’s being attempted by those who attack free speech. First, five monkeys are put in a cage with bananas hanging from the top that can be reached by climbing a ladder. Every time one of the monkeys try to climb the ladder, ice-cold water is thrown on all of them. Soon, the monkeys learn not to climb the ladder.

Then, one of them is replaced with a monkey that has never been drenched with ice-cold water. When the new monkey tries to climb the ladder, the other four monkeys attack it and prevent it from reaching the banana. This is continued till all the original monkeys are replaced with new ones.

When that’s done, although none of the monkeys left in the cage has ever been drenched with ice-cold water, they continue to enforce the regulation on themselves. This is what has happened in China. This is what is being attempted here – to social engineer the Indian netizen.

For more details visit http://editors.cis-india.org/internet-governance/www-deccan-chronicle-sep-16-2012-sunil-abraham-the-five-monkeys-and-ice-cold-water

To regulate Net intermediaries or not is the question

sunil — 2012-08-26T06:12:48Z

Given the disruption to public order caused by the mass exodus of North-Eastern Indians from several cities, the government has had for the first time in many years, a legitimate case to crackdown on Internet intermediaries and their users.

Sunil's column was published in the Deccan Herald on August 26, 2012.

There was, of course, much room for improvement in the manner in which the government conducted the censorship. But the policy question that becomes most pertinent now is: do we need to regulate Internet intermediaries further? The answer is yes and no.

There are areas where these intermediaries need to be regulated in order to protect citizen and consumer interest. But to deal with rumour-mongering and hate speech, there is sufficient provisions in Indian law to deal with the current disruption in public order and any similar disruptions in the future.

It is a common misunderstanding to assume that all civil society organisations that advocate civil liberties on networked technologies are regulatory doves that wish to dismantle regulation of the private sector and allow them complete free hand for innovation and, perhaps, causing harm to public interest.

The opposite is also not necessarily true. We are not hawks, those that believe in maximal regulation of the private sector. The state should regulate the private sector in areas where the citizens are unable to protect their own interest and self-regulation is inadequate. But there are many other areas where regulation needs to be dismantled in the interests of citizen and public interest.

Dr Rohan Samarajiva, founder of a Colombo-based regional policy think tank LIRNEasia, explains this best using the ‘law of soft toys’. When his daughter was young he told her that in Sri Lanka there was a law which mandated that every time she got a new soft toy, she would have to necessarily give away another one.

The regulatory lesson here is: the mandate for regulation cannot keep endlessly expanding. As the government moves into new areas of regulation, it should also exit other older areas where regulatory rupee is providing limited returns. These decisions should be based on evidence of harm caused to citizens and consumers. The following are a list of areas where regulation is required for Internet intermediaries:

Privacy: India needs the office of the privacy commissioner established and an articulation of national privacy principles through the enactment of the long awaited Privacy Act. This privacy commissioner should be able to investigate complaints against intermediaries, proactively investigate companies, order remedial action and fine companies that violate the principles and other policies in force. Remedial action could require change in policies, features, data retention policies and services etc.

Competition: Many of these intermediaries have been taken to court on anti-trust complaints, fined and subjected to remedial action by regulators in America and Europe.

Earlier this year, BharatMatrimony.com has filed a complaint against Google at the Competition Commission of India (CCI) alleging anti-competitive practices in its Adwords program. In addition, based on a report submitted by Consumer Unity & Trust Society (CUTS), a civil society organisation, CCI has initiated an investigation into Google's search engine for anti-competitive practices. If they are found guilty of breaking competition law they could be fined up to 10 per cent of their turnover.

Speech: Article 19(2) of the Constitution permits Parliament to enact laws that place eight categories of reasonable restrictions on speech. Unfortunately, the Information Technology Act and its associated rules attempts to expand these restrictions and in addition does not comply with the principles of natural justice. Ideally, all those impacted by the censorship should be informed and should be able to seek redress and reinstatement for the censured speech.

The policy sting operation conducted by the Centre for Internet and Society (CIS) last year demonstrated that intermediaries are risk-averse and tend to over-comply with takedown notices. There is a clear chilling effect on speech online and it is important that the Act and rules be amended at the earliest.

Intellectual Property: Policies that fall under this inappropriate umbrella term for many differently configured laws make the yet unproven fundamental assumption that granting limited monopolies to rights holders, usually corporations, will result in greater innovation. However, citizen and consumer interest is protected through provisions for exceptions and limitations in laws such as copyright, patent, trademarks etc. Some examples of these safeguards that guarantee access to knowledge in Indian law include compulsory licences, patent opposition, fair-dealing etc.

There are many other areas where special treatment may be required for intermediaries. For example tax law needs to handle evasion techniques like the Double Irish and the Dutch Sandwich. Given my lengthy wish-list of regulation of Internet intermediaries, why then has CIS become an NGO member of the Global Network Initiative?

This is because I believe that technological development happen too quickly for us to purely depend on government regulation. Self-regulation has an important role to play in keeping up with these rapid changes. As self-regulatory norms mature they could be formalised into policy by the government.

Therefore, I consider it a privilege that CIS has been accepted as a member of this self-regulatory initiative and we influence GNI norms using our Indian perspective. However, when self-regulation fails to protect public interest, then the government must step in to regulate Internet intermediaries.

For more details visit http://editors.cis-india.org/internet-governance/www-deccan-herald-aug-26-2012-to-regulate-net-intermediaries-or-not-is-the-question

Censoring the Internet: A brief manual

sunil — 2012-08-24T09:39:03Z

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.

Published in Tehelka on August 23, 2012.

When: 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.

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.

How: 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.

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.

Who: 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.

Why: 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.

Sunil Abraham is the Executive Director of Bangalore based research organisation, the Centre for Internet and Society.

For more details visit http://editors.cis-india.org/internet-governance/www-tehelka-com-sunil-abraham-august-23-2012-censoring-the-internet

Open letter to Hillary Clinton on Internet Freedom

sunil — 2012-09-04T08:28:02Z

Last month I wrote an open letter to Hillary Clinton. It was based on a presentation I that I made during a panel discussion at a Google sponsored conference titled Internet at Liberty 2012 in Washington DC on May 24, 2012.

Sunil Abraham's article was published in Thinking Aloud on July 17, 2012

The question that my panel tried to grapple with was "In a world where nearly nine out of ten Internet users are not American, what is the responsibility of United States institutions in promoting internet freedom?" My co-panelists were Cynthia Wong who is with the Centre for Democracy and Technology, Mohamed El Dahshan a writer and journalist, Dunja Mijatovic the OSCE Representative on Freedom of the Media.

Internet freedom is a curious subject. It is a technology specific liberty - for a moment consider television freedom. The US has more Muslims than India has Christians. But Indian television in the average hotel comes in hundreds and there are at least 3 channels of Christian preaching. But US television in hotels is usually less than 50 channels with no channels of Islamic preaching. In fact even the reception of secular channels from the Islamic World like Al Jazeera is still difficult in America. Can we accuse the US of not having television freedom since their television features Christian evangelists but not Muslim evangelists? Should it be part of India's foreign policy to evangelize television freedom given that there is a large domestic industry with clear international potential?

In an ideal world - citizens will possess technology-neutral freedom to communication and expression. But nothing can be farther from the truth. Communication technologies are regulated using a plethora of policies and practices and very often these have a chilling effect on freedoms.

The following is my response to the technology-specific demands for deregulation from the US Government.

Text of the Open Letter[2]

Recognise Access to Knowledge (A2K) as pre-condition for freedom of expression: There is no difference between aggressive enforcement of imbalanced and obsolete intellectual property laws and censorship. The need of the moment is not more enforcement to protect obsolete business models against the everyday practices of ordinary netizens but rather the reform of intellectual property law (levies, broader exceptions and limitations, pools, statutory and compulsory licenses, prizes etc.) to keep pace with innovations in technology and the production of knowledge and culture.

Recognise privacy as pre-condition for security: The alleged tension between privacy and security is a false dichotomy. Blanket surveillance by design compromises security. Surveillance is like salt in cooking — essential in very small quantities but dangerous even if slightly in excess. Blanket surveillance technologies are only going make things easier for — and will only serve as targets for — current and future online villains.

Don't lose the moral high-ground: Remember, with great power comes great responsibility. Other countries are waiting to cherry pick from your worst practices. Also don't use trade agreements to selectively export components of US policy without the accompanying safeguards for civil liberties and rights. Citizens in oppressive and authoritarian states are depending on the US government, courts and civil society to protect their rights online. Don't undermine their capacity to shame their governments by holding up the US as the example of 'how to get things right'. They urgently need the US government to lead by example.

Recognise that freedom of expression has become a trade issue: This is unfortunate but this is true — thanks to the precedent set by the developed world when it came to asymmetric trade negotiations. Just as the US is interested in protecting the interests of its corporations in global markets — other governments are keen protect the interests of their own corporations. The optimal solution in this case is where all countries and corporations are equally unsatisfied. This will remain a continuing discussion.

Address developing country anxieties around critical internet infrastructure: Security by obscurity will no longer do — security by transparency through open standards, technologies and governance is the only way to fears and build a trust-worthy and secure Internet for all of us. For example, there is urgent need to develop standards for supply chain audits of information infrastructure. The US has dealt with the fear of back doors by banning the use of hardware and software from countries it does not trust. The developing world is not sure if there are back-doors in hardware and software manufactured by US corporations.

Time has comes to address this and other related anxieties.

Appreciate diversity in nomenclature: 'Freedom' and 'liberty' may be appropriate terms to use in the United States of America. But openness may be more in countries that are not yet full and robust liberal democracies. The Internet Governance Forum for example uses 'openness' instead of 'freedom'. Openness is also preferred because it includes 'freedom of expression', 'freedom of information' (also known as right to information, access to information or public and 'free knowledge' (free software, open standards, open content, open access, open data, open educational resources, etc.)

Don't be too instrumental in your interventions: Don't undermine the local credibility of like-minded civil society, think-tanks and research organisations by being too directive in your support. Managerialism will undermine reform of policies and practices in information societies and so does inappropriate/premature monitoring and evaluation (for example, looking for explicit attribution in terms of casual connections between your actions and outcomes). There is a need to support greater reflexivity in the global information society by developing institutional capacity in developing countries through unrestricted funding. True critical thinking is the foundation of both scientific progress and open societies. Go out of your way to find and support those who disagree with you. Protect the plural foundation of our networked society!

Video

Sunil Abraham was a speaker along with Cynthia Wong, Mohamed El Dahshan and Dunja Mijatovic in Plenary IV Debate 3 at the Internet at Liberty 2012 event organised by Google on May 24, 2012.

View the video on YouTube

For more details visit http://editors.cis-india.org/internet-governance/open-letter-to-hillary-clinton

ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ

sunil — 2012-06-18T11:19:35Z

ಸ್ವತಂತ್ರ ತಂತ್ರಾಂಶ ಪ್ರತಿಷ್ಠಾನದ ಸ್ಥಾಪಕ ರಿಚರ್ಡ್ ಸ್ಟಾಲ್‌ಮನ್ ಡಿಆರ್‌ಎಂ (ಡಿಜಿಟಲ್ ರೈಟ್ಸ್ ಮ್ಯಾನೇಜ್‌ಮೆಂಟ್) ಎಂಬ ಪರಿಕಲ್ಪನೆಯನ್ನು `ಡಿಜಿಟಲ್ ರೆಸ್ಟ್ರಿಕ್ಷನ್ ಮ್ಯಾನೇಜ್ಮೆಂಟ್` ಎಂದು ಬಿಡಿಸಿಡುತ್ತಾರೆ. ಅವರ ದೃಷ್ಟಿಯಲ್ಲಿ ಇದು ಡಿಜಿಟಲ್ ಹಕ್ಕುಗಳ ನಿರ್ವಹಣೆಯಲ್ಲ. ಡಿಜಿಟಲ್ ನಿರ್ಬಂಧಗಳ ನಿರ್ವಹಣೆ. ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ಬಳಕೆದಾರನ ಹಕ್ಕುಗಳನ್ನು ನಿಯಂತ್ರಿಸುತ್ತದೆ.

The article was published in Prajavani on June 9, 2012

ಕಾಪಿ ರೈಟ್ ಹೊಂದಿರುವವನಿಗೆ ಬಳಕೆದಾರನ ಹಾರ್ಡ್‌ವೇರ್, ಸಾಫ್ಟ್‌ವೇರ್ ಮತ್ತು ಅದರಲ್ಲಿ ನೋಡುವ, ಆಲಿಸುವ ಮತ್ತು ಓದುವ ವಸ್ತು-ವಿಷಯದ ಮೇಲೆಯೂ ನಿಯಂತ್ರಣ ಹೇರುವ ಅನೈತಿಕ ಅಧಿಕಾರವನ್ನು ಕೊಟ್ಟು ಬಿಡುತ್ತದೆ ಎಂಬುದು ಸ್ಟಾಲ್‌ಮನ್ ಅವರ ಅಭಿಪ್ರಾಯ.

ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರು ಈ ಡಿಆರ್‌ಎಂ ತಂತ್ರ ತಮ್ಮ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುತ್ತದೆ ಎಂದು ಹೇಳುತ್ತಾರಾದರೂ ಇದು ಜಾರಿಯಲ್ಲಿರುವ ಅನೇಕ ದೇಶಗಳ ಉದಾಹರಣೆಯನ್ನು ಮುಂದಿಟ್ಟುಕೊಂಡು ನೋಡಿದರೆ ಬಳಕೆದಾರನ ಮಟ್ಟಿಗೆ ಡಿಆರ್‌ಎಂ ಜ್ಞಾನದ ಬಾಗಿಲುಗಳನ್ನು ಮುಚ್ಚುತ್ತದೆ ಎಂಬುದೇ ನಿಜ.

ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆಯನ್ವಯ ಅಸ್ತಿತ್ವದಲ್ಲೇ ಇರದ ಹಕ್ಕುಗಳನ್ನು ಈ ಡಿಆರ್‌ಎಂ ಕಾಪಿರೈಟ್‌ನ ಮಾಲೀಕರಿಗೆ ನೀಡಿಬಿಡುತ್ತದೆ. ಅಂಗವಿಕಲರು ತಮಗೆ ಓದಲು ಅನುಕೂಲವಾಗುವ ಮಾಧ್ಯಮಕ್ಕೆ ಒಂದು ಪುಸ್ತಕವನ್ನು ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಂಶೋಧಕರು ಪುಸ್ತಕ ಅಥವಾ ಈ ಬಗೆಯ ಜ್ಞಾನದ ಮಾಧ್ಯಮಒಂದರಲ್ಲಿರುವ ವಿಷಯವನ್ನು ತಮ್ಮ ಸಂಶೋಧನೆಗೆ ಬಳಸಿಕೊಳ್ಳುವುದು, ಹಾಗೆಯೇ ಸಿನಿಮಾ, ಸಾಫ್ಟ್‌ವೇರ್ ಇತ್ಯಾದಿಗಳನ್ನು ವೈಯಕ್ತಿಕ ಬಳಕೆಗಾಗಿ ಉಳಿಸಿ ಇಟ್ಟುಕೊಳ್ಳಲು (ಬ್ಯಾಕ್‌ಅಪ್) ಬೇಕಾದಂತೆ ಪರಿವರ್ತಿಸಿಕೊಳ್ಳುವುದು, ಸಾಫ್ಟ್‌ವೇರ್‌ನಂಥ ಉತ್ಪನ್ನ ಗಳನ್ನು ಅವುಗಳನ್ನು ಉದ್ದೇಶಿತ ಉಪಯೋಗ ಕ್ಕಿಂತ ಭಿನ್ನ ಬಗೆಯಲ್ಲಿ ಬಳಸುವುದು, ಉದ್ದೇಶಿತ ವೇದಿಕೆಗಳಿಗಿಂತ ಭಿನ್ನವಾದ ವೇದಿಕೆಗಳಲ್ಲಿ ಬಳಸಲು ಸಾಧ್ಯವಾಗುವಂತೆ ಸಾಫ್ಟ್‌ವೇರ್‌ಗಳಂಥ ಉತ್ಪನ್ನಗಳನ್ನು ರಿವರ್ಸ್ ಇಂಜಿನಿಯರಿಂಗ್ ಮಾಡುವಂಥ ಕ್ರಿಯೆಗಳಿಗೆ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ಅನುವು ಮಾಡಿಕೊಡುತ್ತದೆ.

ಆದರೆ ಡಿಆರ್‌ಎಂ ತಂತ್ರಜ್ಞಾನ ಕಾನೂನುಬದ್ಧವಾಗಿಯೇ ಇರುವ ಈ ಎಲ್ಲಾ ಕೆಲಸಗಳಿಗೂ ತಡೆಯೊಡುತ್ತದೆ.2011ರ ತಿದ್ದುಪಡಿಯೊಂದಿಗೆ ಹೊಸ ರೂಪ ಪಡೆದುಕೊಂಡಿರುವ 1957ರ ಕಾಪಿರೈಟ್ ಕಾಯ್ದೆ ತಂತ್ರಜ್ಞಾನದ ಮೂಲಕ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವ ವಿಧಾನಕ್ಕೆ ಕಾನೂನಿನ ಮಾನ್ಯತೆಯನ್ನು ನೀಡಿದೆ.

ತನ್ನ ಹಕ್ಕಿನ ಉಲ್ಲಂಘನೆಯನ್ನು ತಡೆಯುವು ದಕ್ಕಾಗಿ ಕಾಪಿರೈಟ್ ಮಾಲೀಕ ಅಳವಡಿಸಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಹ್ಯಾಕ್ ಮಾಡುವಂಥ ಕೆಲಸ ಮಾಡಿದವರಿಗೆ ಎರಡು ವರ್ಷಗಳ ಕಾರಾಗೃಹ ವಾಸದಂಥ ಶಿಕ್ಷೆಯೂ ಹೊಸ ಕಾನೂನಿನಲ್ಲಿದೆ. ಹಾಗೆಂದು ಈ ಕಾನೂನು ಬಹಳ ಋಣಾತ್ಮಕವಷ್ಟೇ ಆಗಿದೆ ಎನ್ನಲು ಸಾಧ್ಯವಿಲ್ಲ.

ಇದರಲ್ಲಿ ಮೂರು ಅತಿ ಮುಖ್ಯ ಧನಾತ್ಮಕ ಅಂಶಗಳಿವೆ. ಮೊದಲನೆಯದ್ದು ಸಾರ್ವತ್ರಿಕ ಲಭ್ಯತೆಯ ವಸ್ತು-ವಿಷಯಗಳನ್ನು ಈ ಬಗೆಯ ತಂತ್ರಜ್ಞಾನ ಉಪಯೋಗಿಸಿ ಬಳಕೆದಾರರನ್ನು ನಿರ್ಬಂಧಿಸಲು ಅವಕಾಶವಿಲ್ಲ. ಎರಡನೆಯದ್ದು ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಯನ್ನು ಪರೀಕ್ಷಿಸುವ ಉದ್ದೇಶದಿಂದ ನಡೆಸಲಾಗುವ ಹ್ಯಾಕಿಂಗ್ ಅಪರಾಧವಲ್ಲ. ಮೂರನೆಯದ್ದು ಹೀಗೆ ತಂತ್ರಜ್ಞಾನದ ಮಿತಿಗಳನ್ನು ಬಳಸಿಕೊಳ್ಳುವ ಮತ್ತೊಂದು ತಾಂತ್ರಿಕ ವಿಧಾನವನ್ನು ಆವಿಷ್ಕರಿಸುವುದನ್ನು ಕಾನೂನು ತಡೆಯುತ್ತಿಲ್ಲ.

ಒಂದು ವಿಡಿಯೋ/ಆಡಿಯೋ ಕಂಪೆನಿ ಒಂದು ಡಿವಿಡಿಯನ್ನು ಕೇವಲ ಮೈಕ್ರೋಸಾಫ್ಟ್ ಮೀಡಿಯಾ ಪ್ಲೇಯರ್‌ನಲ್ಲಿ ಮಾತ್ರ ವೀಕ್ಷಿಸಲು ಅಥವಾ ಆಲಿಸಲು ಸಾಧ್ಯವಿರುವಂತೆ ಡಿಆರ್‌ಎಂ ಮಾಡಿದ್ದರೆ ಲೀನಕ್ಸ್ ಹೊಂದಿರುವ ಬಳಕೆದಾರರು ಅದನ್ನು ತಮ್ಮ ಕಂಪ್ಯೂಟರ್‌ಗಳಲ್ಲಿ ನೋಡಲು ಸಾಧ್ಯವಿರುವಂತೆ ಪರಿವರ್ತಿಸಿ ಕೊಳ್ಳುವುದು ಅಪರಾಧವಲ್ಲ. ಇಲ್ಲಿ ಕಾಪಿರೈಟ್ ಉಲ್ಲಂಘನೆಯಾಗುವುದಿಲ್ಲ.

ಹಾಗೆಯೇ ಆಡಿಯೋ ಪುಸ್ತಕವೊಂದನ್ನು ಬಿಡುಗಡೆ ಮಾಡಿರುವ ಕಂಪೆನಿ ಅದನ್ನು ಅಂಧರು ಬಳಸಿಕೊಳ್ಳಲಾಗದಂತೆ ಡಿಆರ್‌ಎಂ ಬಳಸಿದ್ದರೆ ಅಂಧರಿಗೆ ಅದನ್ನು ತಮಗೆ ಬೇಕಾದ ಸ್ವರೂಪಕ್ಕೆ ಪರಿವರ್ತಿಸಿಕೊಂಡು ಬಳಸುವ ಸ್ವಾತಂತ್ರ್ಯವನ್ನು ಕಾಯ್ದೆ ನೀಡುತ್ತದೆ. ಹಾಗೆಯೇ ಗೆಳೆಯನೊಬ್ಬನಿಂದ ಪಡೆದ ಡಿಆರ್‌ಎಂ ಇರುವ ಡಿವಿಡಿಯಿಂದ ಶಿಕ್ಷಕರೊಬ್ಬರು ತಮ್ಮ ತರಗತಿ ಅನುಕೂಲಕ್ಕಾಗಿ ಪ್ರತಿ ಮಾಡಿಕೊಂಡು ವಿಡಿಯೋ ಕ್ಲಿಪ್‌ಗಳನ್ನು ರೂಪಿಸಿದರೂ ಅದು ಅಪರಾಧವಾಗು ವುದಿಲ್ಲ. ಹಾಗೆಯೇ ತಂತ್ರಜ್ಞನೊಬ್ಬ ಅಂತರ ಜಾಲಸಂಪರ್ಕವನ್ನು ಬಳಸಿ ಆಡಬಲ್ಲ ಕಂಪ್ಯೂಟರ್ ಗೇಮ್ ಒಂದರಲ್ಲಿ ಸ್ಪೈವೇರ್ ಇದೆ ಅನುಮಾನಿಸಿ ಅದರ ಆಕರ ಸಂಕೇತಗಳನ್ನು ನೋಡಿ ಬದಲಾಯಿಸಲು ಪ್ರಯತ್ನಿಸಿದರೆ ಅದು ತಪ್ಪಲ್ಲ.

ಈ ಸವಲತ್ತನ್ನು ಭದ್ರತಾ ಏಜನ್ಸಿಗಳೂ ಬಳಸಿಕೊಳ್ಳಲು ಸಾಧ್ಯವಿದೆ. ಹಾಗೆಯೇ ಜಾಗತಿಕ ಮಾರುಕಟ್ಟೆಯಲ್ಲಿರುವ ಪ್ರಖ್ಯಾತವಾಗಿರುವ ಒಂದು ಸಾಫ್ಟ್‌ವೇರನ್ನು ಹೋಲುವಂಥದ್ದೇ ಉತ್ಪನ್ನವನ್ನು ಬೆಂಗಳೂರಿನ ಉತ್ಸಾಹಿಯೊಬ್ಬ ರೂಪಿಸಿ ಜಾಗತಿಕವಾಗಿ ಮಾರಾಟ ಮಾಡಲು ಹೊರಟರೂ ಅದನ್ನು ನಿಯಮ ತಪ್ಪು ಎನ್ನುವುದಿಲ್ಲ. ಆದರೆ ಇದರಲ್ಲಿ ಆತ ಅನುಕರಿ ಸುತ್ತಿರುವ ಉತ್ಪನ್ನ ಬಳಸಿರುವ ಆಕರ ಸಂಕೇತಗಳು ಇರಬಾರದಷ್ಟೇ.

ಎಲ್ಲವನ್ನೂ ಮಸಿ ನುಂಗಿತು ಎಂಬಂತೆ ಈ ಕಾಯ್ದೆಯಲ್ಲಿರುವ ಎರಡು ಋಣಾತ್ಮಕ ಅಂಶಗಳು ಅದರ ಧನಾತ್ಮಕತೆಗೆ ದೊಡ್ಡ ಮಿತಿಯನ್ನು ಹೇರಿಬಿಟ್ಟಿವೆ. ನಿರ್ದಿಷ್ಟ ಉತ್ಪನ್ನವನ್ನು ಪರಿವರ್ತಿಸಲು ಬೇಕಿರುವ ತಂತ್ರಜ್ಞಾನವನ್ನು ಒದಗಿಸುವ ಕಂಪೆನಿಗಳು ಅದನ್ನು ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆ ಎಂಬ ದಾಖಲೆಗಳನ್ನು ಇಟ್ಟುಕೊಳ್ಳಬೇಕೆಂಬ ನಿಯಮವಿದೆ.

ಅಂದರೆ ಇದೊಂದು ಬಗೆಯಲ್ಲಿ ಪರೋಕ್ಷವಾಗಿ ಈ ತಂತ್ರಜ್ಞಾನವನ್ನು ಬಳಸುವುದರ ಮೇಲೆ ಹೇರಿರುವ ನಿಯಂತ್ರಣದಂತಿದೆ. ಯಾರಿಗೆ ಮಾರಿದ್ದೇವೆಂಬ ದಾಖಲೆಯನ್ನು ಕಡ್ಡಾಯವಾಗಿ ಇಟ್ಟುಕೊಳ್ಳುತ್ತಾ ಹೋಗುವ ಕ್ರಿಯೆಯೇ ಮಾರಾಟ ಗಾರರ ಉತ್ಸಾಹಕ್ಕೆ ತಣ್ಣೀರೆರಚುತ್ತದೆ.

ಹಾಗೆಯೇ ಬಳಕೆದಾರರು ತಮ್ಮ `ಪರಿವರ್ತಿಸುವ ಹಕ್ಕನ್ನು` ಚಲಾಯಿಸಲು ಅಗತ್ಯವಿರುವ ಸವಲತ್ತು ಒದಗಿಸುವುದಕ್ಕೆ ಕಾಪಿರೈಟ್ ಮಾಲೀಕರನ್ನು ಬಾಧ್ಯಸ್ಥರನ್ನಾಗಿಸಿಲ್ಲ. ಅಂದರೆ ಬಳಕೆದಾರನಿಗೆ ಹಕ್ಕಿದೆ. ಆದರೆ ಅದನ್ನು ಚಲಾಯಿಸುವ ಅವಕಾಶದ ಬಗ್ಗೆ ಮಾತ್ರ ಖಾತರಿ ಇಲ್ಲ ಎಂಬ ಸ್ಥಿತಿ ಇದೆ.

ಲೇಖಕರು ಸೆಂಟರ್ ಫಾರ್ ಇಂಟರ್‌ನೆಟ್‌ಅಂಡ್ ಸೊಸೈಟಿಯ ಕಾರ್ಯನಿರ್ವಾಹಕ ನಿರ್ದೇಶಕರು

English translation below:

Digital Restrictions Management

As Richard Stallman the founder of the Free Software movement puts it the correct expansion of the acronym DRM is Digital Restrictions Management and not Digital Rights Management. According to his analysis DRM is used to limit the rights of consumers and enables rights-holders to exercise unethical control over the consumer's hardware, software and content.

Even though copyrights holders will tell us that DRM helps cut down on wilful and unwitting infringement. For consumers and members of the general public evidence from other countries reveal that DRM in most cases undermines access to knowledge. DRM permits the copyright holder to claim rights that don't exist as per copyright law and to restrict fair dealing (also referred to as far use) guarantees. Fair dealing protections include access by the disabled, use in research or academic context, archiving or making a personal backup, reverse engineering for academic reasons to to create interoperable/competing products/services etc.

The 2012 amendment to the Indian Copyright Act 1957 has resulted in legal recognition for effective technological measures [also called Technological Protection Measures or TPMs] and rights management information [RMI] applied for protecting the rights of the copyright-holder. Circumvention of such a measure could result in a 2 year jail term and a fine.

The DRM provisions per the amendment does three things correctly. One, it does not allow copyright-holder to use technological measure as a means to enclose public domain content or secure rights that are not granted to them under the Act. Two, any circumvention to exercise limitations and exceptions under the fair dealing provisions of the Act is not considered to be an offence. Three, it does not criminalise the creation of circumvention technologies. Unfortunately, however the Amendment also gets two things wrong. One, there are onerous recording keeping mandates for those providing circumvention technologies to consumers and members of the general public. Two, the provision does not make the rights-holder responsible for providing the means to consumers and members of the general public who wish to exercise their right to circumvention.

Suppose a movie studio released DVD version of its films with DRM that only worked with Microsoft Windows operating system. Those who bought the DVD but ran GNU/Linux or any other operating system would then have a right to circumvent the DRM and republish the content in an video encoding format. This would not be considered an offence because the customer is not attempting any copyright infringement.

Suppose a publishing house only released audio versions of its books with DRM that prevented accessibility to the content by the disabled. Another newly-introduced exception specifically for the disabled would apply if the rights-holder has ignored the disabled as a market but not making available accessible versions of their content. In other words, the disabled have a right to make accessible versions for themselves and therefore circumvent the DRM if necessary.

Suppose the very same movie studio also ensured that the DRM on its DVDs prevented customers from extracting video clips. If a teacher borrowed the film from a friend and then used circumvention technology to copy and paste video clips into her classroom presentation. This would not be considered an offence as she was only taking advantage of an exception meant for educational institutions.

Suppose a security researcher suspected the DRM technology in network enabled gaming console contained spy-ware. He would have the right to circumvent the DRM and reverse engineer the source code of the console in order to audit the code for the existence of back-doors. This exception will also be used by law enforcement agencies and military/intelligence organisations to purge our supply-chain of electronic infrastructure of spy-ware.

Finally assume a young entrepreneur from Bengaluru wanted to make a competing and yet interoperable product based on an existing product with global market penetration. Assume that the developers of the existing product used DRM to keep their source code and file format inaccessible to competitors. Again under the latest amendment our friend would have the right to circumvent the DRM as long as the code he write is not copied from the existing product.

For more details visit http://editors.cis-india.org/a2k/digital-restrictions-management

Copyright Amendment: Bad, but Could Have Been Much Worse

sunil — 2012-06-15T12:29:39Z

The changes to the Copyright Act protect the disabled - but are restrictive about cover versions and web freedom, writes Sunil Abraham in this article published in the Business Standard on June 10, 2012.

When the Copyright (Amendment) Act, 2012, was passed unanimously by the Lok Sabha on May 22, it meant that there was little reason for celebration, some not-so-great news, and a lot of pretty bad news.

The only real reason for unqualified celebration is the amendment’s introduction of a robust exception for the disabled. It is bleeding-edge policy formulation, as it is right up there alongside the Treaty for the Visually Impaired currently being negotiated at the World Intellectual Property Organisation (WIPO). The Indian exception is more robust: first, it is disability-neutral, unlike the treaty which only addresses the needs of the print-impaired; and second, it is works-neutral, unlike the treaty which only addresses books and printed works. In brief, given the very limited circulation of copyrighted works amongst the disabled, they now can convert inaccessible works to accessible formats and share them with each other on a non-profit basis. No royalty needs to be paid to the rights-holders for this conversion and the resultant access. Other reasons to celebrate include the newly introduced exception for non-commercial lending and the extension of fair dealing (or fair use) to all works.

Now for some middling news. The Digital Rights Management provision makes it an offence punishable with a fine and a two-year jail term to circumvent “effective technological measures” (also called Technological Protection Measures) and remove “rights management information” (RMI). The provision protects public interest since it does not allow rights-holders to claim rights unavailable under copyright law, and does not prevent consumers and citizens from benefiting from the various fair dealing (or fair use) exceptions and limitations.

Unfortunately, the provision mandates onerous record-keeping for those providing circumvention technologies, and also does not insist that the rights-holder provide the means for circumvent when the consumer or citizen legitimately needs to do so.

The first piece of bad news is that an inadequate “safe harbour” provision has been introduced for Internet intermediaries. Like the Information Technology Act, the Copyright Act has also gotten the configuration of the intermediary liability regime wrong. This was the opportunity to finally protect common carriers, platforms for social media and commons-based peer-production (such as free software and open content). In short, search engines are finally legal in India, and so are ISPs, virtual private network providers and content delivery networks.

But unfortunately, social media platforms such as Facebook and peer-production platforms like Wikipedia are not afforded sufficient immunity to thrive as real-time participatory platforms. The take-down procedure is designed to provide instant relief to rights-holders, as intermediaries are supposed to remove content immediately. They have the option of reinstating content if the take-down notice is not followed within three weeks by a court order. This mechanism will have a chilling effect on free speech — given that Indian internet service providers very obviously privilege the interests of intellectual property rights-holders over those of the ISPs’ customers — as most recently illustrated by their over-compliance with certain John Doe court orders emerging from the Madras High Court.

The second piece of bad news is the extension of the term of protection for photographs. It has gone from being “sixty years after publication” to “sixty years after the death of the photographer”. Sixty years from publication was already in excess of the Agreement on Trade-Related aspects of Intellectual Property Rights (the TRIPS Agreement). Now we are in excess of WIPO Copyright Treaty requirements, even though India is not a signatory. The possibility of grandchildren earning royalties does not serve as an incentive for shutterbugs to take more photos or better photos. It is not even clear if one can monetise the average photo after the first decade. Therefore, the global public domain has been substantially impoverished, without any evidence that this will make the photographers reciprocally wealthier.

It does not stop there. In the age of hip-hop, trance, jhankar beats and turntables, one would have hoped that our law-makers would at least get the provision for “cover versions” or “remixes” right. Cover versions in India are doubly useful both in terms of aesthetics and profits — and yet the relevant provision can only be described as mediaeval. Cover versions can be produced only after a gap of five years; they have to be restricted to the same medium as the original; payment from them must be made in advance for 5,000 copies (should all those who sang commercially viable cover violations of “Kolaveri Di” be considered lawbreakers?); and there are strict limits on what are acceptable alterations to the original. The “alterations” have to be “reasonable” and “technically necessary”. Today, affordable yet sophisticated multimedia technologies allow teenagers to build professional sound recording studios in their bedrooms — and our government is seeking to restrict them to boring word-for-word and note-for-note covers.

And it gets worse. Bowing to pressure from foreign publishers’ associations, the government deleted the “parallel importation” provision at the last minute. The inclusion of this provision would have made it clear that works reproduced with the rights-holders’ permission in other countries could be imported into India. Foreign publishers and their lobbyists went all-out with a propaganda campaign predicting a dystopia filled with pirated books, surplus books dumped from overseas and starving, uncompensated authors. Had our government not caved, this clarification in law would have gone a long way in dismantling distribution monopolies and made the market much more competitive. The resultant increase in choice and reduction in cost would have benefited everyone. Human Resources Development Minister Sibal promised both Houses during the passage of the amendment that he would revisit this, and let’s hope he does so — especially for our libraries and our second-hand book stores, and for the students and disabled amongst us.

The writer is at the Centre for Internet and Society, Bangalore. sunil@cis-india.org

Click to read the original published by Business Standard.

For more details visit http://editors.cis-india.org/a2k/copyright-amendment

Two Tales of Transparency!

sunil — 2012-04-11T12:09:01Z

In a single week, two global Internet giants announce transparency efforts that have direct implications for privacy and free speech.

One, Google replaces 60 odd privacy policies with a single one across its products apparently to provide a unified experience for consumers, advertisers and law enforcement agencies. Google says that it is trying to make its privacy policy more accessible and transparent to its users and that nothing has changed. This is indeed true, as the respective privacy policies were modified when Google acquired these products. Google spent USD 1.9 billion acquiring 79 companies in 2011. This year's company filings state "we expect our current pace of acquisitions to continue.” Their multi-year acquisition spree has spawned 60 odd products that collect personal information. And beyond Google core offerings like Search, News, YouTube and Orkut – their advertising networks Adsense and Double Click keep tabs on you as you visit millions of other websites. This advertiser cum share-holder sweet spot has been created by centrally storing 9 months of comprehensive logs tied to IP address and other device details for all accounts. A blanket surveillance dream-come-true for rogue state actors. Even in most democratic regimes this far exceeds legally mandated data retention requirements. Fans will point out that Google's transparency record on user information requests, data retention and data portability is unmatched across the industry. But that is just saying that you are less evil than Microsoft and Facebook. In June 2007, Google reduced data retention from 24 to 18 months and in a letter to the European Commission privacy regulators it said “we ... firmly reject any suggestions that we could meet our legitimate interests in security, innovation and anti-fraud efforts with any retention period shorter than 18 months.” But come August 2008, Google reduces data retention from 18 months to 9 months in what it called an attempt to address regulatory concerns. Like Europeans, Indian citizens could also benefit if our law makers were to enact horizontal privacy statute and establish the office of the privacy commissioner. In an ideal world, a pro-consumer or pro-citizen Indian privacy commissioner would create evidence based policy and reduce data retention to say 6 weeks. If unfortunately, we go by the precedent set by multi-tiered blanket surveillance provisions in the IT Act, it looks like policy-makers have bought the flawed “more is better” argument emerging from business press cheerleaders of the global surveillance industry.

Two, Twitter announces technical capabilities to censor tweets using geo-location to be in compliance with legal orders from different jurisdictions. Again very little has changed. Twitter has in the past complied with legal orders. In terms of transparency – Twitter has adopted pretty high standards. It will notify the author about the removal and other users from that country with message stating that the tweet has been withheld. Which some predict will precipitate a Streisand effect. In addition, Twitter has expanded its partnership with ChillingEffects.org to publicly archive these legal orders. Some activists wonder if Twitter's role in the Arab Spring would have been undermined if it implemented legal orders from the Mubarak regime. Unfortunately for Twitter, initial praise for this comes from China's state-run newspaper and from the Thai government. But to be fair, unlike Google above, Twitter is sticking to absolute legal minimum. The use of the US jurisdiction in the past, as a free speech haven did benefit activists in authoritarian regimes but perhaps SOPA and PIPA signals the end of that. In India, given the draconian IT Act this could result in blocking of heavy metal tweets on account of them being “blasphemous” or Twitpics of Cartoons against Corruption for being an “annoyance”. Both offenses which are significant dilutions from the previous standards of “incitement of hatred” or “defamation”. There are two part to the solution here, one, Twitter giving the best fight it can to protect free speech and two, Indian citizens petitioning their MPs for the amendment of the IT Act.

For more details visit http://editors.cis-india.org/internet-governance/two-tales-of-transparency

Patented Games

sunil — 2012-03-08T12:14:22Z

Some prefer Steve Jobs, patron saint of perfection, others prefer Nicholas Negroponte, messiah of the masses. While Mr Jobs may be guilty of contributing to the digital divide, Mr Negroponte may have contributed to bridging it with his innovation: the One Laptop Per Child, also known as the $100 laptop or XO. Sunil Abraham's column was published in the Economic Times on 8 March 2012.

Much ink has been spilt celebrating the contributions of both, but if we were to judge them by utilising evidence from the market, their technologies are used by a rather thin section of the pyramid.

For this writer, however, the real heroes are entrepreneurs from China and Taiwan who make technology that is used by millions of Indians and other consumers across the globe. Sometimes it comes with domestic branding and with all the right peripherals - for example, in India, the Popkorn, which costs only Rs 6,699. It features support for two SIM cards, a receiver for analogue terrestrial television, a receiver for FM radio, a 3.2-megapixel camera, boom-box style internal speakers and, most impressively, a pica projector. It ships with a tripod stand, external speakers, a torch and a laser pointer. It is a classroom in a box. At other times, it comes as a Shanzhai clone of a branded product - for example, the Blackcherry, at one-sixth the price-point with twice the number of cameras as the Blackberry. Some Shanzhai phones support four SIM cards and ship with a spare battery.

Dual- and quad-SIM support is critical in developing countries, especially Africa, where regulation has failed to rationalise interconnection costs. Most of the global south is yet to harvest the digital dividend, so TV reception is very useful indeed. And the additional battery is invaluable for rural entrepreneurs who are not sure whether their next halt will sync with the local load-shedding schedule.

The same with the focus on audio capabilities, reflecting the communal usage patterns. Unlike many expensive big-brand phones that require purchase of additional software, these phones often have in-built support for a wide variety of proprietary and open file formats.

These products are unavailable in the US and Europe because they would be sued out of the market by rights-holders or snuffed out by enforcement activities. David Drummond, Google's chief legal officer, says "smartphones might involve as many as 2,50,000 (largely questionable) patent claims". But there are three important differences for the Indian consumer. One, many of these patents are registered in the US, Europe and Japan and, therefore, prevent others from securing those patents in other jurisdictions. But it does not prevent Indian or Chinese entrepreneurs from using the patents. Two, unlike the US patent law, the Indian Patent Act does not consider "mathematical or a business method or computer program per se or algorithms" as inventions. And three, Indian courts, unlike their US and European counterparts, are less likely to grant injunctions preventing sale or use of any device.

Patent pools are a century-old policy tool for reducing royalties and uncertainty for manufacturers and consumers. In 1917, the US government forced aircraft patent-holders, including the famous Wright Brothers, into a patent pool that allowed 60 firms to produce planes at reduced royalty costs without worrying about litigation. Since then, the US government has issued thousands of compulsory licences in many different domains. Patent pools do exist in some areas of mobile technologies such as GSM and video file formats, but more patent pools are needed.

The Chinese government has used standards policy in the past to reduce outgoing royalties on information and communication technologies. They promoted or mandated indigenous standards either as a negotiating tactic with rights-holders or to benefit from cross-licensing of domestic IP. Some standards include TD-SCDMA, as an alternative to Qualcomm's CDMA, EVD as an alternative to the DVD standard, and CBHD as an alternative to Sony's Blu-ray. The potential savings were quite significant. In the words of Ma Jun, Deutsche Bank's chief China economist, "There is almost no profit for Chinese DVD makers as they have to pay about $7 in licensing fees to foreign patent holders per DVD player, which are sold at around $20 only - both at home and abroad."

In addition to patent and standards policy, royalty caps have been used to ensure access to innovative technologies. Till the end of 2009, the Indian government had imposed a royalty cap of 5% on domestic sales and 8% on exports. If a company wanted to pay higher royalties, permission had to be secured from an inter-ministerial Project Approval Board. Between 1991 and 2009, only 8,062 approvals were granted, indicating our government was keen to reduce outgoing royalties. Policymakers could reconsider reintroducing such royalty caps for devices that cost less than $200.

(The author is with the Centre for Internet and Society)

Read the original published in the Economic Times

For more details visit http://editors.cis-india.org/a2k/patented-games

Do we need the Aadhar scheme?

sunil — 2012-02-03T10:11:24Z

"Decentralisation and privacy are preconditions for security. Digital signatures don’t require centralised storage and are much more resilient in terms of security", Sunil Abraham in the Business Standard on 1 February 2012.

We don’t need Aadhar because we already have a much more robust identity management and authentication system based on digital signatures that has a proven track record of working at a “billions-of-users” scale on the internet with reasonable security. The Unique Identification (UID) project based on the so-called “infallibility of biometrics” is deeply flawed in design. These design disasters waiting to happen cannot be permanently thwarted by band-aid policies.

Biometrics are poor authentication factors because once they are compromised they cannot be re-secured unlike digital signatures. Additionally, an individual’s biometrics can be harvested remotely without his or her conscious cooperation. The iris can be captured remotely without a person’s knowledge using a high-res digital camera.

Biometrics are poor identification factors in a country where the registrars have commercial motivation to create ghost identities. For example, bank managers trying to achieve targets for deposits by opening benami accounts. Biometrics for these ghost identities can be imported from other countries or generated endlessly using image processing software. The de-duplication engine at the Unique Identification Authority of India (UIDAI) will be fooled into thinking that these are unique residents.

An authentication system does not require a centralised database of authentication factors and transaction details. This is like arguing that the global system of e-commerce needs a centralised database of passwords and logs or, to use an example from the real world, to secure New Delhi, all citizens must deposit duplicate keys to their private property with the police.

Decentralisation and privacy are preconditions for security. The “end-to-end principle” used to design internet security is also in compliance with Gandhian principles of Panchayat Raj. Digital signatures don’t require centralised storage of private keys and are, therefore, much more resilient in terms of security.

Biometrics as authentication factors require the government to store biometrics of all citizens but citizens are not allowed to store biometrics of politicians and bureaucrats. The state authenticates the citizen but the citizen cannot conversely authenticate the state. Digital signatures as an authentication factor, on the other hand, does not require this asymmetry since citizens can store public keys of state actors and authenticate them. The equitable power relationship thus established allows both parties to store a legally non-repudiable audit trail for critical transactions like delivery of welfare services. Biometrics exacerbates the exiting power asymmetry between citizens and state unlike digital signatures, which is peer authentication technology.

Privacy protections should be inversely proportional to power. The transparency demanded of politicians, bureaucrats and large corporations cannot be made mandatory for ordinary citizens. Surveillance must be directed at big-ticket corruption, at the top of the pyramid and not retail fraud at the bottom. Even for retail fraud, the power asymmetry will result in corruption innovating to circumvent technical safeguards. Government officials should be required by law to digitally sign the movement of resources each step of the way till it reaches a citizen. Open data initiatives should make such records available for public scrutiny. With support from civil society and the media, citizens will themselves address retail fraud. To solve corruption, the state should become more transparent to the citizen and not vice versa.

UIDAI’s latest 23-page biometrics report is supposed to dispel the home ministry’s security anxieties. It says “biometric data is collected by software provided by the UIDAI, which immediately encrypts and applies a digital signature.” Surely, what works for UIDAI, that is digital signatures, should work for citizens too. The report does not cover even the most basic attack — for example, the registrar could pretend that UIDAI software is faulty and harvest biometrics again using a parallel set-up. If biometrics are infallible, as the report proclaims, then sections in the draft UID Bill that criminalise attempts to defraud the system should be deleted.

The compromise between UIDAI and the home ministry appears to be a turf battle for states where security concerns trump developmental aspirations. This compromise does nothing to address the issues raised by the Parliamentary Standing Committee on Finance, headed by the Bharatiya Janata Party’s Yashwant Sinha.

Read the original published in the Business Standard on 1 February 2012

For more details visit http://editors.cis-india.org/internet-governance/do-we-need-the-aadhar-scheme

Sense and Censorship

sunil — 2012-01-31T06:15:38Z

The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. This article by Sunil Abraham was published in the Indian Express on 20 January 2012.

In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

The writer is executive director of the Bangalore-based Centre for Internet and Society

Read the original published in the Indian Express

For more details visit http://editors.cis-india.org/internet-governance/sense-and-censorship

The Quixotic Fight to Clean up the Web

sunil — 2012-01-26T20:53:02Z

The ongoing attempt to pre-screen online content won’t change anything. It will only drive netizens into the arms of criminals, writes Sunil Abraham in this article published in Tehelka Magazine, Vol 9, Issue 04, Dated 28 Jan 2012.

GOOGLE AND Facebook’s ongoing case in the Delhi High Court over offensive online content is curious in three ways. First, the complaint does not mention the IT Act, 2000. Prior to the 2008 amendment, intermediaries (in this case, Google, Facebook, etc) had no immunity. But after the amendment, intermediaries have significant immunity and are not considered liable unless takedown notices are ignored.

Second, it is curious that the complaint does not mention specific individuals or groups directly responsible for authoring the allegedly offensive material. Only intermediaries have been explicitly named. If specific content items have been submitted in court then it is curious that specific accounts and users have not been charged with the same offences.

Three, Delhi-based journalist Vinay Rai claims that takedown notices and requests for user information were ignored by the intermediaries. As yet, unpublished research at the Centre for Internet and Society has reached the exact opposite conclusion. We sent fraudulent takedown notices to seven of the largest intermediaries in India as part of a policy sting operation. Six of them over-complied and demonstrated no interest in protecting freedom of expression. Our takedown notices were complied with even though they were largely nonsensical. It is therefore curious that Rai’s takedown notices were ignored.

Under Section 79 of the IT Act, the intermediary must not “initiate the transmission”, “select the receiver of the transmission” and “select or modify the information contained in the transmission”. In other words, they must not possess “actual knowledge” of the content. This would be absolutely true if intermediaries acted as “dumb pipes” or “mere conduits”. But today, they have reactive “human filters” ensuring conformance to community guidelines that often go beyond constitutional limits on freedom of expression.

For example, Facebook deletes breastfeeding photographs if a certain proportion of the breast is visible, despite numerous protests. Intermediaries also use proactive “machine filters” to purge their networks of pornography and copyright infringing content. In order to retain immunity under the IT Act, intermediaries would have to demonstrate that they have no “actual knowledge”. This would also imply that they cannot proactively filter or pre-screen content without becoming liable for illegal content.

More sophisticated “machine filters” will continue to be built for social media platforms as computing speeds increase and costs decrease dramatically. But there will be significant collateral damage — the vibrancy of online Indian communities will be diminished as legitimate content will be removed and this in turn will retard Internet adoption rates. Free media, democratic governance, research and development, culture and the arts will all be fundamentally undermined. So whether pre-censorship is technically feasible is an irrelevant question. The real question is what limits on freedom of expression are reasonable in the Internet age.

The legal tussle is yet another chance for reflecting on the shortcomings of the IT Act

Censorship is like prohibition, illegal content will persist, the mafia will profit and ordinary citizens will be implicated in criminal networks. Use of anonymising proxies, circumvention tools and encryption technologies will proliferate, frustrating network optimisation efforts and law enforcement activities.

This is yet another opportunity for reflecting on the shortcomings of the ITAct. A lot of the confusion and anxiety today emerges from vague language, unconstitutional limits on freedom of expression, multi-tiered blanket surveillance provisions, blunt security policy measures contained in the statute and its associated rules. The next Parliament session is the last opportunity for MPs to ask for the rules for intermediaries, cyber cafes and reasonable security practices to be revisited. The MP who musters the courage to speak will be dubbed a superhero.

As told to Shonali Ghosal. Sunil Abraham is Executive director, centre for internet and society and can be contacted at sunil@cis-india.org. The original article was published in Tehelka.

Illustration by Sudeep Chaudhuri

For more details visit http://editors.cis-india.org/internet-governance/quixotic-fight-to-clean-the-web

US Clampdown Worse than the Great Firewall

sunil — 2012-01-26T20:42:14Z

If you thought China’s Internet censorship was evil, think again. American moves to clean up the Web could hurt global surfers, writes Sunil Abraham in this article published in Tehelka, Volume 8, Issue 50, 17 December 2011.

TWO PARTICULARLY terrible pieces of legislation — the PROTECT-IP Act and the Stop Online Piracy Act (SOPA) — have been introduced in the US Senate and House of Representatives. If passed, the US administration will be empowered to shut down specific websites using the same four measures it employed in its failed attempt to shut down WikiLeaks — domain name system (DNS) filtering, blocking financial transfers via financial intermediaries, revoking hosting and sanitising search engine results. SOPA represents the perfect policy interest overlap between a State clamping down on freedom of expression and IPR-holders protecting their obsolete business models. After all it was Bono who publicly articulated the unspoken desire of many right-holders: “We know from China’s ignoble effort to suppress online dissent that it’s perfectly possible to track content.”

China fortunately only censors the Internet for its own citizens, the Great Firewall does not, for example, prevent access to knowledge by Indian netizens. SOPA will enable the US to censor the global Internet unilaterally. The Great Firewall can be circumvented using tools like Tor, but SOPA will in many ways make its targets disappear for the average user. DNS filtering, even when implemented in a single country, has global consequences. DNS, one of the foundational mechanisms of the Internet, is an address look-up service that allows users to translate domain names (e.g. cisindia.org — easier for humans to remember) into IP addresses (e.g. 202.190.125.69 — easier for machines). The most critical servers in the global DNS hierarchy are the root servers, or today’s server clusters. Mandated DNS filtering would result in some DNS servers returning different IP addresses than other DNS servers for certain domain names. With PROTECT-IP and SOPA, these global consequences would be at unprecedented levels given that seven of the 13 server clusters that constitute the DNS root fall within US jurisdiction. We already have some indication where this is headed. The US Immigration and Customs Enforcement Agency announced recently that it has seized 150 domain names for alleged IPR infringement.

We must remember that IPR policy in some countries has been configured in public interest to take advantage of the exceptions and limitations afforded by the TRIPS (trade-related aspects of IPR) agreement. In others, even though the letter of the law goes beyond TRIPS requirements, access by ordinary citizens is protected because of poor enforcement of these maximalist policies. E-commerce platforms that sell Micromax, Karbonn, Spice and Lava mobile phones that are manufactured in China may be taken offline because an American court is convinced of patent infringement. An online publisher of George Orwell’s books, which are public domain in Russia, India and South Africa but still under copyright in the US and Europe, may have its Paypal account blocked.

After the witch-hunt against WikiLeaks, policymakers have realised the extent of American hypocrisy

In the recent past, activists in authoritarian regimes and democracies with draconian Internet laws have leveraged US Internet freedom rhetoric. This was first deployed by Hillary Clinton in early 2010 after Google’s melodramatic withdrawal from China. Even then, many observers were convinced that this was just selective tokenism and the real agenda was domination of global markets by US-based MNCs. Today, after the witch-hunts against WikiLeaks and Anonymous, global policymakers have realised the extent of American hypocrisy.

Fortunately, opposition for SOPA has cut across traditional political and ideological divides — libertarians, liberal human rights organisations and political conservatives who believe in small government and also modern- day capitalists like Google, Facebook and Twitter. Let us pray that Kapil Sibal registers his protest with the Obama administration to protect the online aspirations of millions of Indian citizens and entrepreneurs.

Read the original published in Tehelka here

For more details visit http://editors.cis-india.org/internet-governance/us-clampdown

That’s the unkindest cut, Mr Sibal

sunil — 2011-12-12T04:59:00Z

There’s Kolaveri-di on the Internet over Kapil Sibal’s diktat to social media sites to prescreen users’ posts. That diktat goes far beyond the restrictions placed on our freedom of expression by the IT Act. But, says Sunil Abraham of the Centre for Internet and Society, India is not going to be silenced online.

Thanks to leaked reports about unpublicised meetings that communications minister Kapil Sibal had with social media operators – or Internet intermediaries, to use legalese — such as Facebook, Google and Indiatimes.com, censorship policy in India has gained public attention, and caused massive outrage.

According to The New York Times India Ink reportage, quoting unnamed sources from the Internet intermediaries, Mr Sibal demanded proactive and pre-emptive screening of posts that people make on social media sites, ostensibly to filter out or remove “offensive” content and hate speech. In a television interview, however, the minister denied he wanted to censor what Indians thought and shared with others online.

One is tempted to believe him. He was, after all, the amicus for the landmark People’s Union of Civil Liberties (PUCL) wiretapping judgment of 1996, which is pivotal to protecting our civil liberties when using communication technology in India.

Last week, though, Mr Sibal came out in public with his demands, saying that there was a lot of content that risked hurting the sensibilities of people and could lead to violence. “It was brought to my notice some of the images and content on platforms like Facebook, Twitter and Google are extremely offensive to the religious sentiments of people ...”We will not allow Indian sentiments and religious sentiments of large sections of the community to be hurt,” he said.

There was even a threat of state action if Internet companies did not comply with demands to screen content before it was posted online.

The NYT blogpost said, however, quoting executives from the Internet companies Mr Sibal had reportedly met, that the minister showed them a Facebook page that maligned Congress president Sonia Gandhi and told them, “This is unacceptable.”

Google responded to Mr Sibal by releasing its Transparency Report, saying that out of 358 items that it had been requested to remove between January and June 2011, only eight requests pertained to hate speech, while as many as 255 complaints were against “government criticism”.

Indian netizens raged against Mr Sibal, and very quickly #IdiotKapil Sibal was ‘trending’ on Twitter, with thousands posting comments against attempts to ‘censor’ Internet content. Much has changed, in Mr Sibal’s reckoning, between 1996 and 2011.

So, what’s all the fuss over ‘pre-screening’ and what’s at stake here? Critics of Mr Sibal say, our freedom of speech and expression is under threat. They see a pattern in the way the government has sought to impose rules and restrictions on Internet and telecommunications players, with demands on BlackBerry-maker RIM to give it access to its users’ email and messenger content, on telecom players to install electronic surveillance equipment and let the government eavesdrop as it sees fit, and on the likes of Google and Yahoo to part with email content and users’ details.

It all started with the amendments to the Information Tech-nology Act 2000 in 2008. Together, they constitute damaging consequences for citizens, including the creation of a multi-tier blanket surveillance regime, inappropriate security recommendations, and undermining freedom of speech and expression.

The amendments passed in 2008 — without any discussion in Parliament – did solve some existing policy concerns, but simultaneously introduced new ones. For instance, Section 66, introduced during this amendment, criminalises sending offensive messages through any ICT-based communication service.

Offensive messages are described as “grossly offensive, menacing character..... or causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.” These terms are not defined in the IT Act or in any other existing law, rules or case-law, except for a couple of exceptions such as what constitutes “criminal intimidation”. These limits on the freedom of expression go well beyond Article 19(2) of the Constitution, which only permits “reasonable restrictions...in 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.”

If Mr Sibal himself were to don his lawyer’s coat again and launch a legal challenge to Section 66, in all likelihood, courts in India would strike it down as unconstitutional.

Section 79, which was amended, brought into being an intermediary liability regime. This was in part precipitated by the arrest of Avnish Bajaj, the former CEO of bazee.com in December 2004 for the infamous Delhi Public School MMS clip which was being sold on his e-commerce platform. Policy-makers were, however, convinced to follow international best practices and grant intermediaries immunity under certain conditions.

Just as the postal department is not considered liable for the content of letters or telecom operators liable for the content of phone conversations, Internet intermediaries, too, were to be considered “dumb pipes” or “common carriers” of content produced and distributed by users. Intermediaries therefore earned immunity from legal action so long as they acted upon take-down notices, or written requests for deletion of illegal content.

Section 79 was further clarified in April this year when the Intermediaries Guidelines Rules were notified. Stakeholders from the technology industry, media and civil society had sent feedback to the Department of Information Technology under the Ministry of Communication and Information Technology in February, but DIT choose to ignore the feedback and finalised rules with serious flaws in them. For one, a standardised “Terms of Service” that focused on limits on free expression had to be implemented by all intermediaries – forcing a one-size-fits-all approach.

Content that was 'harmful to minors' was not permissible regardless of the target market of the website. All intermediaries were supposed to act upon take-down notices within 36 hours, something that a Google may be able to do, but an average blogger could not.

Two, the vague terms introduced in Section 66A were left undefined. Intermediaries were asked to sit on judgment on the question of whether an article, image or video was causing 'inconvenience'.

Three, all principles of natural justice were ignored – the person responsible for posting the content would not be informed, s/he would not be given an opportunity to file a counter-notice to challenge the intermediary’s decision in court.

Four, the rules left it open for economically or politically motivated actors to seriously damage opponents online using fraudulent take-down notices, instead of treating abuse of the take-down notice system as an offence.

How the take-down system terrorises free expression on the Internet was illustrated when the Centre for Internet and Society, where this author works, undertook a research project. A pro-bono independent researcher who led the exercise sent fraudulent take-down notices to seven Internet companies in India. These included some of the largest and most popular Indian and foreign search engines, news portals and social media platforms.

Although they all employ the most competent lawyers in the country, six of the seven intermediaries over-complied, confirming our worst fears. In one case, a news portal deleted not just the specific comment that was mentioned in the take-down notice but 14 other comments as well. Most importantly, it must be pointed out, the comment identified in the take-down notice was itself an excellent piece of writing that could not be construed as “offensive” by any stretch!

In the single exception to the rule, one e-commerce portal refused to act upon a take-down notice trying to prevent the sale of diapers on the grounds that it was “harmful to minors”, rightly dismissing the notice as frivolous. But that exception simply proved a rule: Private intermediaries use their best lawyers to protect their commercial interests, but are highly risk-averse and do not value freedom of expression, unless it affects their bottomline.

Proactive and pre-emptive screening of social media content, as Mr Sibal has demanded, will only further compromise online civil liberties in what’s already a dismal situation. In short, we move from a post-facto to a pre-emptive censorship regime.

In fact, given the magnitude of the task of pre-screening in a nation with a 100 million Internet users and growing, such an intense censorship regime will mean not only that what Indian citizens say or post will be censored by private companies, but those private companies will, in turn, use machines to screen what humans are saying and doing! After all, otherwise, companies would require armies of human censors to screen the millions of posts that are made on Twitter and Facebook every minute.

But the Supreme Court has held that even the executive arm of government cannot engage in censorship prior to publication, let alone ordering private companies to do so. In any case, it’s a policy that’s bound to fail, for both technical reasons and for its failure to take into account human motivations.

Machines, as we know, continue to be poor judges of the nuances of human expression and will likely cause massive damage to the idea of public debate. Humans, on the other hand, will begin to circumvent machine filters – for example, content labelled as PRON instead of PORN will go through.

Draconian crackdown on certain types of fringe content is likely to have the counterproductive result of the general society developing an unhealthy obsession for exactly such content. Despite the comprehensive censorship controls in Saudi Arabia, for instance, pornography consumption is rampant, usually accessed via pirated satellite TV and circulated using personal computing devices and mobile phones.

But all is not lost yet, perhaps. Faced with the barrage of criticism, Mr Sibal has now called for public consultations on the issue of pre-screening content. There’s hope yet for freedom of speech and expression in India. Thanks to the Internet, a throwback to 1975 simply does not look possible.

Sunil Abraham is executive director of the Centre for Internet and Society, Bengaluru. He wrote this article in the Deccan Chronicle on December 11, 2011. Read the original here

For more details visit http://editors.cis-india.org/internet-governance/unkindest-cut-mr-sibal