Saturday, 10 January 2015

Ban Everything, Arrest Anyone

The core of information revolution is internet. It has become the driving wheel of knowledge transmission and has explored the span of possibilities of human interactions by dismantling every possible barrier to communication. Lately, this space being a "global common" has become the new battleground of the traditional conflict forms like governance, terrorism, communalism, issues of free speech and expression, piracy and transparency (with cyber dimension applied to them). These conflicts can be broadly divided into 3 categories (similar to their interaction areas):

1. Government to Government- It includes Cyber wars, spying, sabotage. The counter offensive and defensive cyber security systems has put the world into another race resembling to the arms race, nuclear race and space race. Few of the examples are Stuxnet virus and flame virus against Iran. Recent issues over internet governance and control over ICANN are another emerging dimension representing control over the critical internet architecture.

2. Government vs People: Lately, internet has been the powerful tool to mobilize people as witnessed in the recent India's elections 2014. It has been a potent tool in governance. With the increasing internet penetration, government is merging its various programmes with information technology to increase transparency and citizen participation. There has been rising debate over national security vs right to privacy all over the world. PRISM revelation is the case in point. In India there has been a debate over clashes between article 19 and Section 66A of IT act. We will delve deep into this issue in context of India later in this article.

3. People vs people: defamation, bullying, identity theft, stalking, pornography are also getting more popular in the cyber world due to the inherent advantages of anonymity, secrecy, borderlessness and an exponential rate of multiplicity of the content. The spreading of rumors on internet via social media has been a major cause of recent communal riots (Assam riots, Mujjafarnagar riots) causing enmity.

In the next section, we will dig deep into the matters related to government regulations on internet and social media at the legal front.

Government regulations on internet (Section 69A of IT act)

Indian government created the Information Technology (IT) Act to provide a legal framework to regulate Internet use and commerce, including digital signatures, security, and hacking. The act criminalizes the publishing of obscene information electronically and grants police powers to search any premises without a warrant and arrest individuals in violation of the act. A 2008 amendment to the IT Act reinforced the government's power to block Internet sites and content and criminalized sending messages deemed inflammatory or offensive. Supplementary to this, "IT rules 2011" were adopted which require Internet companies to remove any content that is deemed objectionable (including defamatory, hateful and harmful to minors) within 36 hours of being notified by the authorities. Since then, Government has made use of these provisions many times. One of the first Government bans was on all file hosting websites by ISPs to prevent piracy of film Singham in 2011. With the growing discontent among people against government (during India against corruption movement), there was bulk of content produced criticizing the government, to which Indian government responded by asking several social media sites to "prescreen user content from India and to remove disparaging, inflammatory content before it goes online, and this pre screening should be carried out by human beings instead of relying on technology". This request was seen negatively by Indian netizens. Fortunately, this request was deemed impossible to serve by the social media companies.

Apart from ban on websites, individuals were also targeted. Ban on cartoons by Aseem Dwivedi against corruption was a case to the point. As far as judicial intervention is concerned, Madras high court has passed an order saying that entire websites cannot be blocked on the basis of "John Doe"(anyone's) orders. Yet, government has shown reluctance to even discuss the "draconian" provisions of IT act. The annulment motion in Parliament against 2011 IT Rules was not carried out. GoI played a reactive role during Assam violence of 2012 by blocking around 200+ specific URLs. This was the then the highest level of censorship in India.

If we talk in latest context, 2014 has been the year with highest number of websites blocked. In mid of 2014, Sony entertainment requested blocking of more than 400 file sharing websites, to which permission was granted for 219 sites. In November 2014, Government banned access to most of the porn sites. India witnessed maximum user content blocks(4000+ requests) as per the report released by facebook. Recently, with the notification of DoT(Department of Telecom) orders, 32 URLs including Pastebin, video sharing sites Vimeo and DailyMotion, Internet archive site and a web-based software code repository), have been blocked under Section 69A of the Information Technology Act, 2000 as they could host terror content relating to ISIS.

These statistics are shocking in the largest democracy of the world, where free speech and expression are our basic rights.

Then what is the reason behind this and what should be done?

One reason could be just the sheer number game. India has one of the largest growing user group on social media. And there is going to be increased interest in governing what is being said on social media. Yet,  the main reason for this might be that we live in a great paradox of information regimes. On the one hand, we claim to be a fully democratic state and granting freedom of speech and expression as enshrined in our constitutional rights. At the same time,  government is not being seen as very pro-free speech and expression on social media as per the above statistics. Also given a very conservative social ethos in the country, a large number of people do use practices that might be objectionable- like stalking, accessing pornographic content etc. We are driving towards maturity in the democracy regime, there is likely to be more upheaval generated by people and anti-state actors.

Thus, the role of government cannot be denied to maintain public order. Having said that, there is no doubt that censorship is the worst form of control. It only enables stifling of free speech and takes away one of our most fundamental rights of self-determination and expression. But, the means used should be as much transparent as possible.

Also, technology needs to be comprehended in a holistic manner. Banning the whole domain of just to block few blog posts is not justified. The blocked entities should be URLs that should also be as minimum as possible(as also ruled by the Madras high court).

It has been experienced that these blocks are temporary in nature, e.g, the recent blocking of github, vimeo website didn’t even last for a week( from 25th December, 2014 to 1st January, 2015), thus not that effective in nature practically. Yet, It was without consultation and was specific to few service providers (vodafone), it only erode the confidence due to governments' arbitrary acts.
Also there is need for a proactive approach instead of reactive as seen in most of the bans (after Assam violence it took 4 days to remove the rumors from internet).
Some experts  also feel that there should not be any restrictions but awareness should be put in place which includes citizen participation and their engagement. Moreover, greater clarity over rules and laws with healthy discussion will imbibe confidence among netizens and other stakeholders.

Social media and Fundamental rights (Section 66A vs Article 19)

Section 66A dictates punishment for any person who sends, by means of a computer resource or a communication device-
At the legal front, the SC at present is involved in hearing a petition filed by the internet and Mobile Association of India challenging section 66A and section 80 of the IT Act which deal with the punishment to those violating the law. Meanwhile, the government has upheld its right in a petition before the court to issue take down notices to control and restrict certain content and has called it "reasonable restrictions" so as to prevent chaos or disharmony in the society.
It is also true that Section 66A is being misused today as shown in the figure below.

Pic courtesy :

How is it justified?

Pic courtesy :

What are the flaws with the current setup?
There is no clear definition of the words annoyance, inconvenience which are dependent on the person who is tagged in that defamation process and subjected to arbitrary interpretation. It also uses the word 'transmitted' rather 'send' which made ambiguity between the sender and the service provider. Moreover, there are overlapping areas between Section 66A and other IPC sections, like, criminal intimidation is already covered by IPC sections 503 and 506, so overriding or applying the same. Section 81 of the IT Act further complicates the matter. It says that it is a special law and the provisions of this law prevail over anything inconsistent therewith contained in any other law in force, thus giving it overarching powers.

What can be done?
There should not be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation. The terms should be clearly defined. The later part of 66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required.
Government gave the guidelines after the facebook girls arrest- "the concerned police officer of police station may not register any complaints unless he has obtained prior approval at the level of an officer not below the DCP rank in urban and rural areas and IG level in metros". It was a commendable step and in future also this needs to be ensured that excessive powers should not be given to a single authority. The more the transparency in regulating internet and its content, the more will it prosper.


To sum up, I would say, we have to accept the fact that internet is emerging as a new battleground for various kind of conflicts. But outright ban is not the solution, it is happening only because it is a new technology and clear rules of the game are not established yet. This is not a new phenomenon and has happened in the past every time a new technology has surfaced. So we need to sit down and devise universally acceptable standards and guidelines which strike a fine balance of preserving free speech, privacy and transparency while at the same time protecting people’s lives and dignity, maintaining national security and safeguarding intellectual property. The policy of "Ban Everything" is not an alternative to good policy implementation.

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