The internet’s Child And Its Nanny

Censorship  |  6 May 2011  | print

Freedom is the sometimes unruly adopted child of the internet. Its spirit cannot be caged by a shrewish governmental nanny.

Image courtesy: Rodrigo at ToonPool

In the first week of April this year, India’s Department of Information Technology notified drafts of four sets of rules under the Information Technology Act 2000. Two of these, relating to sensitive personal data and guidelines for service providers, have tucked away in them provisions that have gone largely unnoticed. The New York Times had a strong article about these rules, and The Hindu carried an excellent analysis but the rules have otherwise been largely unnoticed by the Indian newspapers, reports being buried on the inside pages. The rules demand closer attention. Their wording is deliberately hazy, and they arm the government with wide unregulated powers against citizens.

The Information Technology (Intermediaries Guidelines) Rules 2011 are meant to control service providers. The wide definition of an intermediary in the amended IT Act includes search engines, cyber cafes, telecom operators, webhosts, ISPs — virtually anybody who provides any kind of digital communication service.¹ The 2011 rules require all “intermediaries” to put in place user agreements prohibiting the hosting, display, uploading, modifying, publishing, transmission, updating or sharing of any information which is, apart from the usual litany of various nefarious activities, “grossly harmful”; “harassing”; “blasphemous”; or “insults any other nation”.² Nobody knows what grossly harmful means or how it differs from being merely harmful; what constitutes blasphemy (imagine Ram and Sita on Facebook); and Pakistan and US bashing are definitely out. What follows is worse. Within 36 hours of being informed of such heinous crimes, the intermediary must remove the offending material.³ It can terminate access rights.⁴ And “when required by lawful order”, the intermediary must provide identifying user information to the government.⁵ The personal information rules,⁶ ostensibly to protect internet users’ privacy, say that sensitive information — financial information, passwords, medical information and (gasp) sexual orientation — is not to be disclosed; unless the government demands it, in which case it must be disclosed.⁷ Read together, these rules allow the government to demand access to everything you do online, and to every bit of information about you that you may have innocently supplied to any online service. The government can spy on you, and can demand that every online service does so too.

We are constantly asked to believe that our government is benevolent and maternal. As recent figures on wiretaps show,⁸ the truth is far more sinister: the government enthusiastically spies on citizens. On 18 April, Freedom House, an independent watchdog organisation set up in 1941 and is an advocate for democracy and human rights released “Freedom on the Net 2011”, its global assessment report of internet and digital freedom. The report has a country-wise breakdown of internet statistics and comparatives. India is rated as “partly free” well behind USA, UK, Germany, Brazil, and, of all places, Estonia.⁹ Since 2009, there has been a slight decline in India’s internet freedom.¹⁰ The report notes that this is related to the 26/11 attacks and Maoist insurgencies, and specifically mentions the IT Act and Rules.

Our government sporadically tries blocking “objectionable” websites through CERT-IN, the Computer Emergency Response Team of the Government of India. Apart from the usual moral policing against “obscene” sites, blocks are also used for political reasons: to censor comments on historical figures and politicians, for example. The Centre for internet & Society, a Bangalore-based advocacy and research group for internet freedom, lists the eleven websites that the Department of Information Technology acknowledges that it has tried to block. At least one is still accessible through a regular ISP,¹¹ and two are news organisations.¹² The approach is often ham-fisted. Recently, users of Typepad, a blogging service from SixApart, found themselves locked out with messages saying that this was on government orders. The government denied the authorisation; but the blocks continued for a few days. The government has, however, in its desire to block a site that alleged mafia links with the police and Maharashtra’s politicians, blocked all sites hosted by that particular webhost (webs.com),¹³ even innocuous ones, and ones that had nothing whatever to do with India. The results are always futile. Blocking websites just doesn’t work. There are countless ways around. Very often, they spring up again somewhere else. Pirates of copyrighted material are not shut down by blocking their sites, but because the companies or persons who run them face huge damages claims awarded by courts. Most of the so-called “blocked” websites are easily accessible using any of these free online tools. In fact, the only way to effectively “block” any part of the internet seems to be to shut it down entirely and take the entire country off the grid. That’s not going to happen simply because it would shut down everything — banks, markets, newspapers, traffic control systems, weaponry, the government itself.

Jim Killock of the Open Rights Group in an article in the Guardian said:

We pointed out how easy it was for individuals to circumvent or for sites to move their URLs. Richard Clayton also outlined the Darwinian principle at play: once you put some sort of block in place, you create an incentive for someone to design an easy way around it, which will inevitably spread. Heavy-handed enforcement of copyright is not the answer when your real goal is to persuade people to buy digital goods and services. To encourage people to part with their money, you have to demonstrate that you have a service worth paying for — as Spotify, Lovefilm or iTunes already do. Website blocking can only legitimately be put in place with thorough judicial processes. Voluntary or expedited procedures risk blocking the wrong sites, being used to censor people and creating unfair means for organisations to stop competitors from trading on the web.

The consequences of not complying with a blocking request are severe: up to seven years in jail for some offences. Worse: there are no provisions for review or appeal against a blocking or disclosure demand, no systems of prior judicial permission or subsequent supervision. The new rules now stretch to make all platforms, even search engines, liable for user content. This is about as sensible as punishing a mailman for carrying a postcard.

These rules operate on three assumptions. First, that the internet is unregulated and anarchic; second, that the very existence of the internet threatens government; and third, that if you use the internet you must be a criminal. Every assumption is wrong.

It’s a popular myth with the government that the internet is unregulated and disorganised. Using democractic mechanisms of discussion and consensus (described as a “bottom up” approach to regulation), different technical groups establish policies and technical standards of self-regulation and organisation for the internet. New standards evolve from the community. These are publicly reviewed, tested, and adopted after a broad consensus is reached. Its open, organic, self-fulfilling nature makes it more effective and more just that the mindless statutes dreamed up by government flunkies with no imagination and less common sense. The internet encourages challenges to orthodoxy, to the status quo and offers the freedom to choose. There are things you can do, things you perhaps shouldn’t, but nothing that you must. In that non-theological sense, the internet is heretical.

The real agenda behind these rules seems to be that the government wants access to certain types of encrypted communications, particularly the Blackberry messaging service with its proprietory protocols developed by Research in Motion. That is an unconscionable invasion of privacy itself; but these rules go much further and extend to every form of electronic communication. The implications are truly frightening.

Perhaps the single greatest communication invention since writing, with opportunities of thought and expression impossible earlier, the internet has changed the way we think, work and live. Nowhere is this more evident than in its power to unite people to a common cause, as recent events from Egypt to Jantar Mantar show. 78% of the respondents to a January 2011 survey by the Economist felt that the internet inherently promotes openness and democracy. When citizens use the internet like this, they are not criminals; they are fighting for freedom. Yet, because such use is so often anti-government, it is seen as criminal. Given those circumstances, any law that arms the government with such broad powers to snoop, and without control or review mechanisms, is one that undermines liberty. Freedom is the sometimes unruly adopted child of the internet. Its spirit cannot be caged by a shrewish governmental nanny.