A Web of Regulations: Identity, Censorship & Freedom of Expression in India by Sunil Abraham

//CGCS Media Wire brings you an in depth look at India’s heavy ICT policy & regulation, issues of freedom of expression, the circumstances brought about through implementing the Aadhaar system, and thoughts on crafting a more obedient Netizenry.

//This piece is re-posted in full with permission from Sunil Abraham, the Executive Director of the Centre for Internet and Society in Bangalore,Karnataka, India.

The Indian government both domestically and internationally provides leadership when it comes to access to knowledge. Our domestic patent policy ensures that generic medicines are available and largely affordable not only within India but also in Africa and many other parts of the world. It also allows Indian consumers to access a wide range of technological innovations without worrying about bans which are an otherwise common feature in developed countries thanks to phenomena such as mobile patent wars. Copyright policy, including the last amendment of the Copyright Act has ensured that fair dealing 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. Most recently 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 expressions mediated by networked technologies such as telecommunication and the Internet. Our policy-makers seem hell bent on extinguishing the privacy of communications and also anonymous/pseudonymous speech as seen through:

  1. Requiring ID proof and other Know Your Customer [KYC] requirements before access to Internet either through cyber-cafe, mobile phone, dial-up or broadband.
  2. Banning open WiFi Networks.
  3. Plans for mandating Aadhaar for KYC so that the NATGRID and Central Monitoring System [CMS] can be used to track the same citizen using their UID across devices, networks and intermediaries.
  4. Requiring ID proof for .in domain name registrations.
  5. Mandating data retention by cyber-cafes, telecom operators, ISPs, and during investigations by other Internet intermediaries.
  6. Requiring real-time interception equipment installed at all network and data centres.
  7. Banning bulk encryption of 40 bit and mandatory key escrow for strong encryption.

All this 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 blanket surveillance regime helps thwart multiple criminal and terrorist attacks but its poor design simultaneously extracts a terrible price in terms of free expression and national security. Citizens who cannot express themselves anonymously and privately then begin to censor themselves, seriously undermining our democracy which is most importantly founded on an anonymous expression i.e., the electoral ballot. I will use an ironic example to demonstrate how important this is. The press coverage of the Aadhaar project often features anonymous sources usually from the government or from the business sector. In other words, even to design a world class identity management — anonymous expression is a critical prerequisite.

In addition, in April last year, Rules under the amended IT Act where 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 which caused much outrage amongst the twitterati. Even when the government had legitimate grounds (exodus of North Eastern Indians) to censor expression it overreaches and acts incompetently cracking down on parody accounts on social media rather than carefully configuring the SMS ban thus protecting those directly harmed. And as if there weren’t enough — the government beats a cartoonist at caricature by jailing him for sedition. This is because the powerful in India with fragile egos can afford expensive lawyers who can ensure that — as Lawrence Liang puts it — ‘the process is the punishment’.

In comparison with China, it is still early days for Internet adoption in India. Unlike China the potential for harm from the Internet is limited to about 15 per cent of the population. Why then is the government cracking down so hard when very often there is no clear evidence of harm? This is best explained using an experiment featuring monkeys, bananas and ice-cold water that is commonly attributed to Harry Harlow. First, five monkeys are put into a cage with bananas that can be reached by climbing a ladder. Every time any of the monkeys attempt to climb the ladder all of them are drenched with ice-cold water.  Soon the monkeys learn not to climb the ladder. Then one monkey is replaced with a monkey that has never been drenched with water. When the new monkey attempts to climb the ladder — the other four monkeys attack it thereby preventing it from reaching the banana. This is continued till all the original monkeys are replaced with new ones. Finally, even though none of the monkeys have ever been drenched with ice-cold water — they continue to enforce the regulation. Tax money is being spent to social engineer the Indian netizen.

Given India’s poor track record at home, domestic and global civil society are justifiably skeptical of the Indian proposal at the UN General Assembly for setting up a Committee for Internet-Related Policy (CIRP) to take forward the enhanced cooperation mandate within the Tunis Agenda. Similar apprehensions exist regarding India’s proposals for modifying the International Telecommunication Union Regulations later this December in Dubai. It is time that this unfortunate situation is rectified by laying the foundation for evidence and principle based policy-making through a transparent and accountable multi-stakeholder process.

//Sunil Abraham is the Executive Director of Bangalore based research organisation, the Centre for Internet and Society. He founded Mahiti in 1998, a company committed to creating high impact technology and communications solutions. Today, Mahiti employs more than 50 engineers. Sunil continues to serve on the board.

//Sunil was elected an Ashoka fellow in 1999 to ‘explore the democratic potential of the Internet’ and was also granted a Sarai FLOSS fellowship in 2003. Between June 2004 and June 2007, Sunil also managed the International Open Source Network, a project of United Nations Development Programme’s Asia-Pacific Development Information Programme serving 42 countries in the Asia-Pacific region.

Featured Photo Credit: Attribution Some rights reserved by mikecogh

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