AudiencScapes

By Gayatri Murthy

Democratic India’s rising economy has been perceived as a welcome counterforce to the rise of the neighboring, authoritarian and restrictive regime in China. But recent legislation on internet censorship in India represents one example on a growing list of government actions that increase surveillance of new media and shrink the overall space for dissent within Indian civil society. While the government signaled its willingness to reconsider the new rules on Monday of this week, advocates for internet freedom remain concerned.

For the last two months, the mainstream media in India seemed completely consumed by the public trials of the high-profile citizens and government officials accused in the infamous 2G telecommunication spectrum scandal. 

An unprecedented growth in access to modern telecommunication services (mobile, internet) and the transformation of the country into an IT software services hub are cornerstones of the Indian success story. “Being bangalored” is a verb even President Barack Obama is not shy to use.  And so, when the most successful industry of India was revealed to be majorly corrupt, we looked for democratic vindication by watching corrupt politicians pay for their crimes on 24/7 news channels. If something was not right in our technocratic democracy, than we were certainly going to watch it being fixed LIVE.

Yet, while we were glued to our news channels, the government was quietly clamping down on freedom of speech and information.

In April, the Indian government released a draft amendment to the Information Technology Act, passed in 2000, that would impose restrictions on online “intermediaries” -- defined as those who store, transmit or provide services related to electronic messages -- for protecting citizen privacy, ensuring cyber security and preventing incitement to violence.

The proposed amendment places the sole onus of blocking inflammatory content published online (on blogs, etc.) on search engines and web-hosting service providers. These intermediaries are obligated to block content or information that “threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence…” It also places stringent rules on cyber cafes to keep records of citizen information to facilitate government surveillance of any citizen when necessary.

Shouts and Murmurs of Objection
Released in April, the proposed amendment hasn’t gone entirely unnoticed. Google has signaled its objection to the amendment, calling it “too prescriptive.” In a recent memo (reviewed by the WSJ and other websites- see here), Google complained that the vague language of the amendment might potentially enforce banning of material that might not even be constitutionally illegal in India.
 
Although television channels largely ignored this news story, Indian newspapers (notably The Hindu) have published cautionary editorials (also see here, here, and here).

The People’s Union of Civil Liberties, an Indian civil liberties organization also suggested that it might investigate the constitutionality of the amendment and look to judicial recourse if necessary.

Finally relenting, the Indian government said on Monday, that it is now considering revisions to the proposed amendment. They will look into reducing the liability placed on “intermediaries,” according to the Minister for Communications and Information Technology Kapil Sibal. (Incidentally, he was recently appointed after the former minister A Raja was implicated in granting unfair licenses to telecom companies).

While Sibal’s comments cast an uncertain light on the amendment’s future, it is important to understand the possible implications of the amendment if the language remains unchanged.

Proposed Information Technology Rules 101  

The complete list of rules proposed by the amendment is a mixed bag -- some are actually beneficial for the online public. But others are particularly alarming for their impact on Indians’ freedom of expression.
Here are the main rules: (Source: Economic Times- India)

1.    Greater security for private data: Any entity that collects, or handles, personal information should get permission from citizens before sharing their information. Sensitive personal data includes passwords, financial information, physical, physiological, medical records and biometric information. While this means more financial and administrative burdens for all national and international BPOs who maintain records, it also means greater protection of citizens’ personal information.

2.    Requirement to maintain records: All electronic service providers must maintain transactions, receipts, vouchers in specific formats that should be produced for inspection and audit. While this increases costs for intermediaries, it does ensure a more secure online environment for users.

3.    Explicitly published rules by intermediaries: All intermediaries -- including telecom services providers, network providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online marketplaces and internet cafés -- must publish rules, regulations, privacy policies and user agreements for easy access. This both protects intermediaries in the event of a legal dispute, as well as through full disclosure, places the onus on an informed user.

While the rules stated above seem to be moving toward a more mature internet regime, others infringe on rights that all citizens should enjoy in democracies:

4.    Removal of inflammatory blogs: If an intermediary receives a complaint about an inflammatory blog or article that it hosts, the new rules give it 36 hours to respond, and they must save all objectionable content for records for 90 days. For this, each intermediary must actually hire a grievance officer as well. While this might facilitate quick resolution of disputes, it can potentially curb freedom of speech if controversial blogs or articles are removed out of fear of government interference. Baseless complaints might be heeded if they are made by powerful people in the government.

5.    Government access to information at any time: While the amendment protects citizen information from being misused by corporate entities, it gives the government full access to that private information: The government will be entitled to access without a court warrant simply on the basis of a written request that states the information is required for the investigation of a crime.

6.    Control over internet access: The new amendment places control over who can access the internet in public places. All internet cafés (popularly known as cyber cafés in India) must maintain records of all users and customers for an entire year. Cubicles must face the open area of the café and there is even a restriction on how high their walls can be (4.5 feet high).  These cafés could be inspected by a government agency at any time. Users might also face problems of access without an ID card and minors must be accompanied by an adult.

A Shrinking Space for Expression
India enacted its first IT Act in 2000. At that time, it was a very basic law that dealt mostly with legal recognition of electronic documents, digital signatures, cyber crime and punishment. The Act was significantly amended in 2008 when it was expanded to include cyber terrorism and information security.
As some of the rules in the recent proposed amendment make clear, the government now seems to be using the rubric of cyber terrorism and sovereignty to enforce stringent privacy norms that place sole onus on private intermediaries to facilitate government surveillance of any citizen.

Censorship of news and information sources is certainly not new to India. Its darkest phase occurred less than 40 years ago, during the 1975 emergency rule, protested by newspapers publishing blank pages.

Despite a vibrant and diverse media space – more news channels than most countries, and hundreds of newspapers in dozens of languages -- the issue of government control is not fully resolved in democratic, plural India. In fact, even today, non-state radio stations continue to be prohibited from broadcasting news in the country and are confined to music and entertainment programming.

Quite contrary to logic, as India has experienced well-documented economic growth in recent years, there has been a noticeable shrinking space for dissent (see a new book called “The Intolerant Indian”) in civil society. In the last year itself, there have been three high-profile cases of censorship: Popular fiction has been attacked and banned from college syllabi, benign intellectual comment has been met with violent reactions, and human rights activists have been sent to jail for sedition.  Interestingly, campaigns on the internet against Binayak Sen, the doctor and human rights activist accused of aiding Maoist rebels, did contribute eventually in raising public awareness and increasing pressure on government authorities to grant him bail.

In other news, last month, the Indian authorities also placed blank white stickers over the map of Kashmir in 30,000 copies of the May 21st issue of The Economist magazine – alleging wrongful depiction of borders between India and Pakistan. This is the second time The Economist has been chastised by Indian authorities for the Kashmir map issue -- in December 2010, the entire issue was banned by the censors.

Will ICT4D Suffer?
The new media space is especially vulnerable in the current environment. It is new, burgeoning and still not available to all. And so, while ensuring the individual’s right to sharing their information is a welcome improvement; perhaps placing responsibility on website operators to ensure cyber security and controlling access to the internet in cyber cafés does not seem as mature.

In affluent urban spaces today, cyber cafés are being replaced by smart phones in every pocket and broadband connections in every high-rise; but it is tragically, the rural and less affluent India that stands to be more affected by draconian lawmaking. Indeed, internet access has grown 20 times in the last five years. But while 100 million Indians uses the internet (small slice of the 1.21 billion), 30 million of these use cyber cafés to access the internet. (Source: The Economic Times, India).  

Internet access (100 million) in India is nowhere near as widespread as mobile access (close to 800 million subscribers), especially in rural areas. But studies show that, a particular feature of the Indian case has been, that, consequent to commercial rise of new media technologies, is the subversion of social stratifications and increased initiatives to bring these technologies to marginalized segments.

And so, these anti-defamatory rules almost always curb free expression; but on top of this, bureaucratic hurdles on intermediaries might also curb developmental entrepreneurship in this sector -- particularly with initiatives such as cyber cafés in rural areas.

Considering the contribution of the telecom sector to India’s success story, both commercially and socially, this seems to sound a lot like shooting oneself in the foot.
 

Gayatri Murthy is a Research Assistant for the AudienceScapes Project and helps in analyzing the AudienceScapes data, writing the Country Profiles and overall maintenance of the website. You can reach her at murthyg@intermedia.org