Blog post by Mishi Choudhary. Please email any comments on this entry to
.
The recent curbs on social networking websites in India demonstrate the
unpredictability of the legal environment, both for businesses and the
citizens. Whether its the Government of India's (GoI) insistence on
getting access to corporate emails and text messages sent via BlackBerry
devices, or changing stances on "pre-screening" user generated content,
the authorities seem to be doing a tap dance around legal issues. The
implementation of rules seems surreptitious as they are bent
conveniently in the name of "security".
The North-east exodus related disturbances presented a public
disorder situation which had a new characteristic.
This time around, the platforms of communications and reporting had
changed. The social networking websites provided voice to anyone and
everyone who had an internet connection, thereby the chatter of the
street transposed online and could be read widely. The communal hatred
of the society started reflecting in people's online communication as
well. The GoI, crippled by its inexperience of social media and plagued
by the nervousness of the situation, offered a knee jerk response, that
of issuing a blanket ban of at least 300 websites and various
twitter
accounts.
Well you wonder---shouldn't GoI be dealing with this episode by using
the power of the Net to support and protect its citizens by combating
rumor with truth, told reliably by a govt people can trust? Instead, in
order to disguise its inefficiency, it is not only resorting to
censorship, which won't work, it is trying to force people to keep the
censorship secret, which is corrosive of the very idea of democracy.
An analysis of the orders issued by the Ministry of Communication & IT
makes it difficult to discern the intentions of the authorities. The
specific URLs sought to be blocked included the domains of
Facebook,
Twitter,
YouTube,
BlogSpot,
WordPress,
Google Plus,
Wikipedia,
Times of India,
Al Jazeera, FirstPost and other websites.
Section 69A of the Information Technology Act, 2000 provides the Central
Government, the power to block access by the public of any information,
to maintain public order or for preventing incitement to the commission
of any cognizable offense amongst other things.
The governing rules which lay out the procedure to carry out such
blocking, provide that, any such direction for blocking can only be
given by the Secretary, Department of Information Technology, on a
recommendation made by a Designated officer in an emergent situation.
This interim direction is then supposed to be reviewed by a committee
consisting of Joint Secretaries from the Ministry of Law and Justice,
Home Affairs, Information and Broadcasting and the Indian Computer
Emergency Response Team, to analyze if the response was appropriate
considering the seriousness of the situation. A final order can only be
issued by the Secretary, Department of Information Technology after
receiving a report from this committee.
Such elaborate rules requiring the involvement of officials at such high
levels, from various departments of the Government were formulated, to
prevent misuse of the power to block access. However, all these
communications were signed by a Director (DS-II)of the Department of
Telecommunications and not a Joint Secretary. While the letter instructs
Licensees to block specific URLs, it also requests them to refrain from
mentioning these URLs in their compliance letters. Implying that the
censorship should be kept secret.
A Director level officer issues a non-reasoned order, instructs the
licensees to omit the details from an official compliance report, the
process rests in a black hole and we shut down half the internet?
Are the authorities abandoning the Rule of law, the very principle of
democratic government? or these tedious rules are to stay on the books
when results can be achieved "merely by asking", as the over-zealous
ISPs seem to comply? or rules are being followed in some covert way, we
don't understand?
The communications used to block access not only fail to show legal
authority for these orders, but they also try to subvert the
requirements of law. Blocking actions must be documented by those who
perform them. Time and again we have seen the desire of the authorities
to cover such attempts. If that's the kind of 'emergency' to which they
are referring, then we have a bigger problem than some malevolent
rumor-mongering.
The problem of combating rumor is a classic problem, for which more
speech is a time tested and appropriate approach. GoI, instead of
fulfilling its duty of supplying accurate, useful information by
channels that every Indian citizen can benefit from, in the interest of
public safety and social order, is telling people to send fewer SMSs.
Instead of deploying an efficient public communication strategy, it is
busy
issuing orders
to censor the world wide web.
The current methods will gain some co-operation from multi-national
social networking businesses, who are eager to demonstrate that they are
good community participants. They will behave responsibly regardless of
whether the government policy is well judged and they will follow the
law. But in the long run, it is impossible to ask them, given the
volume of communication in the global internet, to substitute silence
for the government's responsibility to inform its citizens.
In the 21st century, you cannot censor your way to public tranquility.
Various Civil Society organizations including Sflc.in have been trying
to help GoI, DIT in particular, in making responsible policies with
respect to Intermediary Liability Rules. But how do we work with a
government to make appropriate rules when they show they won't follow
them? Is the Government being ill-served by its advisers, who are
leading it into a position in which they cannot expect people of good
will, who have believed in the Government's seriousness to take
seriously anything it says or does?
When economists talks about regulatory overbearance and warn about a
regulation a day keeping the business away, there are lessons to be
learned for all sectors. This micro management of the public discourse
through businesses will only push India out of the global discussion and
not lead to any kind of public tranquility. The cataclysmic cost to the
economy, to the free speech ideas, and a tarnished international image
of the largest democracy will be hard to ignore. This will only turn us
into a society incapable of achieving anything, economic prosperity,
liberty or security.