As the Indian government is confronted with a global snooping scandal with over 300 journalists, politicians and bureaucrats on the list of those surveilled by the state, the Modi government had intensified its bid to rampage through the country’s latest Internet Technology laws.
While the central government claims that the new laws are aimed at quelling the crisis of misinformation in the country by targeting sources, social media giants, alternative media platforms and privacy activists claim that the laws will bring them under direct government oversight giving enormous power to the executive to crackdown on privacy and dissent–leading to increased censorship.
Announced in February this year–the laws came into effect in May they apply to social media companies, streaming platforms and digital news publishers. Making it easier for the government to order social media platforms with over 5 million users to take down content that is deemed unlawful. Individuals now can request that companies remove material. If a government ministry flags content as illegal or harmful it must be removed within 36 hours. Noncompliance could lead to criminal prosecutions. Tech companies also must assign staff to answer complaints from users, respond to government requests and ensure overall compliance with the rules.
At the heart of the enforcement of the rules has been a long standing confrontation with Twitter, a lawsuit from communication giant WhatsApp over ending encryption and exposing its users. There have been over thirteen different cases filed in multiple courts in India demanding that the laws must be halted in the environment for shrinking digital freedom as India moves towards ending internet privacy for its citizens.
The Rules consist of three parts. Part I of the Rules is preliminary and provides definitions. Part II empowers the Government to exercise control over intermediaries such as Facebook, Twitter, Google and Whatsapp. Lastly, Part III regulates publishers of news and current affairs (“Digital News Media”) and publishers of online curated content (“OTT platforms”). Part II of the Rules has serious implications on the freedom of speech and expression and the right to privacy of users of the internet: Rules permit social media intermediaries (such as Facebook) to decide whether any content uploaded by a user violates any law in force and if it does, the entity can terminate the access or usage rights of the user.
The main contention against the law lies in the traceability clause. The rules state that social media intermediaries must enable tracing of the originator of information on their platform if required by a court of competent jurisdiction or a competent authority. Which will lead to the identification of the “first originator” of a message. To implement this rule, entities will have to “fingerprint” each message and this may defeat end-to-end encryption. As a consequence, the privacy of every user will be compromised to investigate crimes committed by a miniscule-minority.
Gurshabad Grover, a technologist and legal researcher, writing on network security & privacy explained, “The Information Technology (IT) Act empowers the Indian Government to carry out online censorship and surveillance in a secretive way that concentrates power in the hands of the executive. These provisions do not require review from the judiciary or any independent body, creating massive potential for abuse. Separately, the ‘traceability’ mandate on messaging services will seriously undermine communication privacy. While the use is limited to serious crimes, the history of the abuse of draconian national security laws portends that ‘traceability’ will just create new avenues of surveillance for the government to trace down dissenters.
The rules and their compliance have been witnessing a tussle with Twitter as the new laws mandate the social media intermediaries to establish a grievance redressal mechanism by which users may complain against any content and a grievance officer has to dispose of such complaints within 15 days. While Twitter has finally adhered to the requirements this battle is likely to continue amid the ongoing cases against the norms. Over thirteen cases have been filed by concerned activists and several media platforms with the prime concern of the stakeholders being that the rules have been introduced without even a parliamentary discussion pushing India into a “rag-tag” group of dictatorial regimes across the world.
The Center has been issued notices from the High Courts of four different jurisdictions, and has preferred not to reply to any of them. They have instead, as mentioned, filed a plea in the Supreme Court to club all the High Court cases, and transfer them to the Supreme Court.
Apar Gupta, executive director of the Internet Freedom Foundation, says he worries the rules will lead to numerous cases against internet platforms and deter people from using them freely, leading to self-censorship. Many other critics say Modi’s Hindu nationalist government is imposing what they call a climate of “digital authoritarianism.”
Centre for Internet Society points out that intermediaries tend to over-comply with such takedown requests to limit their liability and this has a chilling effect on free speech and expression of all users. Rules require significant social media intermediaries to develop automated tools to censor content.
The rules will also regulate digital media platforms– According to the analysis of the Internet Freedom Foundation—The Code of Ethics mandates OTT Platforms to “take into consideration India’s multi-racial and multi-religious context” and exercise “due caution” when portraying any racial or religious group. If they do not exercise “due caution” their content may be blocked by the Inter-Departmental Committee. This obligation on OTT Platforms is vague and has a “chilling effect” because vague laws by their very nature, are overbroad and cover within their ambit both unlawful and legitimate speech.
Udbhav Tiwari public policy advisor for Mozilla, focusing on data governance and content regulation points out, “While it is clear that effective platform accountability requires urgent changes in law, these rules will do more harm than good and should urgently be withdrawn. The recent challenges to these Rules in courts, including by platforms such as WhatsApp, clearly demonstrate that this tussle is far from over and will take a few years, if not longer, to play out. India’s intermediary liability regime demonstrates a clear desire to rein in the leeway enjoyed by large foreign social media companies so far, including the influence they have on public discourse. From mandating locally present compliance and grievance redressal staff to harsh content takedown and user data sharing timelines, many aspects of these rules can be utilised to pressure such companies to better comply with government requests, including the possible threat of criminal sanctions. In their current form, without any independent judicial oversight, they will have a chilling effect on both the public and private communication that takes place on these platforms.”
While previous attempts of regulating the internet by the government did not specify dire consequences upon the intermediaries, the newer set of rules threaten to take away the immunity of the platforms leading to severe crisis and a potential initiation of criminal action against the companies. The rush to implement the new rules at the cost of user privacy and dangers of surveillance has assumed far greater importance as journalists, activists and the fundamental pillars of democracy face direct attack of censorship by the Indian state.
(Sumedha Pal is a New Delhi-based journalist. Courtesy: CounterPunch.)
