Saturday, 3 November 2007

Internet Regulation in Karnataka: Some insights from the Police

Sarai I-Fellowship Post 4.2

Thanks to the assistance of Prof. Ramarkrishna, a faculty member here at NLSIU Bangalore, I was able to meet Detective Inspector Vinayak of the Karnataka Police and ask several questions of him regarding Internet regulation here in the State of Karnataka. He answered most of my questions, though he did indicate that he'd prefer that I not maintain an audio recording since he thought that it would be more appropriate that I recorded one with his superiors instead.

What I gathered from him is as follows. With regards as to whether there is any specific sanction for the regulatory framework here concerning cybercafes here, there is a government order to that effect. This government order (which one should remember is an exercise of rule creation by the executive; not clear sanction by the legislature) apparently mandates that cybercafes have to maintain information as to their users, and that to in a prescribed register format. Supposedly, this government order was passed under the Information Technology Act, 2000 though I personally maintain that the Act in fact does not provide any such clear authority. Inspector Vinayak also stated that the Secretary, Information Technology & Biotechnology has been designated as the adjudicatory authority here in this state, meaning that all civil matters in Karnataka coming under the Information Technology Act come to him.

With respect to the issue of the regulation of access to certain forms of online content, mainly the classic example of pornography, I was told that there are no special rules here in Karnataka concerning access. According to Inspector Vinayak, accessing such materials was generally not a crime and hence not a matter of concern to the Karnataka Police. However, with respect to the issue of whether the usage of cybercafes to access pornographic online content was an issue as important to the Karnataka Police as it is to the Mumbai Police (whose concern for the same is quite well reported), he said that while it was not as deep a concern it still had to be kept in mind that exhibition of such content in a public place was as offence under the Indian Penal Code in the view of the Karnataka Police. On the issue of publishing such content online, he said that there was one case taken on by the Karnataka Police concerning the maintenance of a website with such material, though he wasn't clear as to the details.

He was aware of the notification empowering CERT-In as the nodal agency for all website blocking requests, and in response to a query of mine said that there had been no such website blocking requests from Karnataka as per his knowledge. As to the matter of how the Karnataka Police engage with Internet Service Providers (ISPs), it is apparently the case that these ISPs provide direct evidence of access and physical addresses of users when requested to do so by the police. The exact manner in which such requests were framed was not clear, though he seemed to indicate that is was mostly done in the course of investigation of specific cases.

Friday, 2 November 2007

A glimpse into CERT-IN: An interview with Dr. Gulshan Rai

Sarai I-Fellowship Post 4.1

I had first met Dr. Gulshan Rai back in early 2006 when I was part of the Law and Technology Committee here at the National Law School, to publicize the first issue of the Indian Journal of Law and Technology. Dr Rai is an official with the Department of Information Technology, Ministry of Communications and Information Technology, Government of India, heading (at least at that time) ERNET (Education Resource Network) and part of the cyber laws drafting section, but far more famous for his role as head of the Computer Emergency Response Team for India, commonly knows as CERT-In. Originally set up on the pattern of Computer Emergency Response teams worldwide to deal with matters pertaining to analyzing and issuing advisories concerning internet security matters (i.e. with respect to viruses, worms, cracking attempts on servers etc), CERT-In was later oddly enough empowered to review requests for blocking website and order for the same to be complied with by means of Notification G.S.R.181(E) issued by the Department of Information Technology, Ministry of Communications and Information Technology on 27th February 2003. Granted this, plus Dr. Rai's considerable history with respect to technology law legislation in India owing to his involvement in the drafting of the Information Technology Act, 2000 I thought he would be a perfect person to interview in order to get into a glimpse of the plans and general approach towards Internet regulation matters at the central level of the Department of Information Technology.

I've posted a rough draft transcript of the audio record of my interview with Dr. Gulshan Rai in June 2007 up on Google Documents here. Once I convert the audio record into a usable digital format, I'll try posting that along with a further cleaned up version of the transcript.

Without going into every detail, the interview was quite interesting in several respects. Perhaps the most noticeable was the constant assertion that the Indian Government did not seek to "censor" the Internet in any way. That term in fact seemed to be anathema with Dr. Rai repeatedly going out of his way to state that it was the Government's aim to censor online content. Arguably, this would seem to be a fallout of the immense negative publicity that the Government in general and CERT-In specifically received due to the blog blocking controversy of July, 2006. Trying to find out more about that incident specifically was a dead end, with him pointedly stating that he did not want to touch upon that the details of that matter at all. He did reveal two interesting points though. Firstly, with respect to the authority under which the aforementioned notification was made empowering CERT-In to act as a nodal agency for site blocking, he said that it was under Section 67, dealing with obscenity, and Section 69, which actually only deals with the power to intercept and decrypt information. This is interesting since it seems to confirm the argument that the notification really doesn't have any explicit legislative authority, since these sections of the Information Technology Act doesn't talk about the general power to block sites anywhere. Secondly, on the point of dissent to site blocking, especially in relation to the blocking of blogs in July 2006, he put the source of all the protest raised as originating from bloggers who had lost access to their facilities and to the media, but of whom the latter had changed its stance concerning Internet regulation now. Essentially, citing Barkha Dutt of NDTV as an example for some reason, he said that incidents of defamation and stalking using networking sites like Orkut had made people change their minds since they were aware that the use the Internet "to malign anybody!". Using this, he seemed to be indicating that the need for the Government so have structures and mechanisms in place by which online content could be dealt with in certain circumstances was now accepted by the Indian public. However, with the exception of instances of defamation, he seemed to be strenuously avoid indicating in clear terms what other instances would necessitate the exercise of the power of the Government regulate Internet content, most notably with regards political speech and possible security related matters.

Notably, Dr. Rai seemed to agree with the oft-quoted position that the cultural background of nations such as the United States (of particular interest due to the fact of the regulation of speech and expression on the Internet being particularly focused upon and subject to oft-successful challenges) being different than that of India meant that we have to look at such matters in somewhat a different way owing for our particular conceptions regarding permissible speech. Yet, he went out of his way to dissuade any comparisons to China, stating that it was a dictatorship while India was a democracy. This emphasis on India's democratic protection of free speech even went to the point of claiming that it was more free than that of the US! Its an interesting reaction to all the negative publicity concerning the actions of the Indian Government in recent times with respect to Internet regulation.

It seemed to be a well accepted point from his various statements that the Internet was definitely regarded by the Government to be situated within the ambit of the power of the State to regulate. However, what seemed to be lacking here vis-a-vis such situations in other comparative nations was the clarity (at least with respect to what's accessible generally by the public) as to the rationale and authority for such regulation by the State, along with the question of whether any clear, explicit policy statements for how the State planned to engage in the same in the future. He was not able to clearly say as to how various proposed state level laws concerning the regulation of cybercafes were going to be taken up and coordinated, and also as to whether and how Parliament was going to address such issues in the form of legislation besides the proposed Information Technology Act Amendments (Notes: This was before the latest draft amendments, which now refer to CERT-In with respect to website blocking). He was clear however that encryption was one matter that the State had situated within its network of control. On the more sensitive matter of installing controls at the level of gateway servers in India, he placed it within the realm of the hypothetical and hence not answerable. More interestingly, he said that he had no information at all concerning the monitoring of Internet communication in India - he did not in any way say that it was in fact no happening but instead claimed that he knew nothing about it. It would seem that in that respect, the Indian State refuses to allow any peek into many aspects of its instruments and structures of power and control over speech and expression on the Internet. Its therefore an issue that begins with transparency as to current structures and proposed mechanisms, and whether the State can in fact do so as per the restrictions cast on it by our constitutional norms and legal framework.

Wednesday, 31 October 2007

New content..

Sarai I-Fellowship Posts 4 & 5

Sorry for the long delay in uploading new content; I've been stuck with lots of things ranging from travel, exams, and falling sick, which have somewhat added to the general inertia I have on posting about the status of my work. I'm now uploading the entries for posts 4 & 5 regarding my research. The entries dealing with post 4 are concerned with my findings drawn from my interviews of Dr. Gulshan Rai (Scientist G-HOD, Department of IT, Govt. of India, and Head, CERT-IN) and also one with an official with the Karnataka Police.

The post 5 entries are my observations from the interviews I had with certain officials of the Delhi Police, along with lots of findings concerning the extent of Internet regulation in that can be tracked from public documents and reports. The last entry will also chart out the new rough time-line of regulation of speech and expression on the Internet by the Indian State.

With the entries under posts 4 and 5, you see a shape emerging as to the form of regulation by which the Indian State has chosen to control speech and expression on the Internet in the national context. In our now bordered Internet, where the founding libertarian belief that the Internet was beyond the power of the nation state to regulate has lost credence, the Indian State has been steadily and quietly expanding its structure of regulation. Flowing from vague legislative authority in the form of the Information Technology Act passed by Parliament in 2000, executive agencies have sought to ensure that Internet regulation takes place not only with respect to online content, subject to opaque control in the form of website blocking requests decided by agencies such as CERT-In; but also control over the infrastructure of the network itself. This network information infrastructure (NII; a term coined by Giampiero Giacomello) is dominated at every stage by the Indian State, which had from the outset sought to regulate ISPs as well as cybercafes. We see regulation happening at the central level, with notifications empowering agencies such as CERT-In to coordinate and sanction direct acts of censorship by issuing website blocking instructions to ISPs, and the creation of ISP license agreements which not only call for compliance with such broad censorship powers, but which also call for frighteningly invasive forms of communication monitoring and interception at the level of the ISP complexes themselves.

What is most notable about all of this perhaps is not as much the potentially Orwellian powers that the Indian State has granted itself, but rather the near abysmal public awareness and protest against the same. The Indian State is in fact particularly vulnerable to public outrage based on claims of violation of our rights to free speech and expression, as typified by its response to the widely recognized public outrage against the blog blocking incident of July 2006. As a result of this, the Indian State seems to be determined to avoid any public inquiry into its regulatory framework vis-a-vis speech and expression on the Internet, which can be seen in my observations from my interview with Dr. Gulshan Rai of CERT. The executive was stung by the outrage triggered in the blog blocking incident into being more careful and circumspect, but it still considers the continuance, and arguably also an expansion, of its regulatory framework (based on extremely flimsy legal authority) necessary and without opposition.

The Centre is only one part of the matter, with there state governments also taking up the mantle of having to regulate matters which touch upon speech and expression on the Internet in India, most notably with regards the framework in which cybercafes operate. In their vitally important role of being cheap publicly available providers of access to the Internet, cybercafes have been systematically brought withing the ambit of local jurisdiction by the police acting on behalf of state governments. In certain cases, as in Karnataka, this is given some clarity in the form of a government order, dubiously authorized supposedly under the provisions of the Information Technology Act, putting in place a structure by which the state monitors usage of such fora, with details having to be maintained in registers of "prescribed formats".

A new practice with respect to blog entry titles..

I'll be now posting the exact post number for all my Sarai Independent Fellowship posts in the main entry itself instead of in the title; my observation that this was leading to rather bland entries in my blog index was reconfirmed by a complaint in that regard from the.soliptist. Anyway, here's to more interesting blog entry titles!!!

And needless enthusiasm! :-)

Monday, 2 July 2007

Sarai I-Fellowship Post 3.3 - An episode of NDTV's "We the People" on Policing the Net

NDTV's rather famous "We the People" program anchored by Burkha Dutt took up the subject of Internet Regulation in India recently, with an episode on it titled "Policing the Net: Desirable or Possible?". The run that I saw was telecast on the NDTV 24x7 channel on 10th June, 2007. I've decided to take up my observations of the discussions on the program here since its a somewhat rare example of moderated public discussion on the subject of regulation of speech and expression on the Internet in India (granted admittedly that the show may not have perhaps represented all the primary stakeholders and cross-stream of views on the subject here in India).

The panelists who were there adding their specific opinions to the debate were (I apologize in advance for any incorrect spellings of names or designations here!); Shalini Gosh (Prof. of Mass Communications at Jamia Millia University), Pawan Duggal (Advocate), Shivam Vij (Journalist with Tehelka, blogs at and Subimal Bhattacharjee (representing of the Govt. of India) among others. I'll try to highlight some of the important points that I observed during the entire program below. Its not a transcript, but since I couldn't obtain a copy of the show from NDTV it's the best that I can give for now.

One interesting point that struck me as I started watching was Pavan Duggal's claim that bloggers fell under the definition of "internet service providers" under the Information Technology Act, 2000. From what I've seen and reviewed of the law, thats not really the case and actually a rather excessively wide interpretation of the term ISP under the law. What Pavan Duggal was trying to say (as brought out when asked to explain the position put forward by him in layman's terms) was that bloggers are liable for what they put up online. I gather thats actually a reference to defamation law, as well as possible the offenses concerning obscenity and other publication relation crimes, rather than ISP liability under the IT Act.

Shohini Gosh was then focused on for a bit, and she spoke on two aspects of the problem with regulating speech and expression, namely that there are different categories of speech and the difficulty in making effective means to permissibly restrict the same. Pawan Duggal seemed to disagree with this, saying that he had a problem with this "Chalta Hai" (translation- "it goes on") attitude since whatever was said on the Net was archived and accessible even after 10 years. He termed this as coming under the ambit of what he termed as the "Google effect", in what I'm assuming is a reference to the search engines ability to easily bring up and also store cache pages containing the reference in question. Of course, while this is an important point (the Internet's ability to easily distribute content widely at practically no cost with considerable data retention), it seemed to me to be more pandering to the hysteria of the Net's wide reach rather than a real balanced view of the interests involved.

Taking on from this, Burkha Dutt then brought up the subject of online anonymity, questioning the reason as to why was it psychologically important to so many Internet users. Shivam Vij answered this by saying that it allowed for freedom of speech, by allowing for views to be put forward without fear of consequences. Interestingly, this is a general view that the US Judiciary has placed considerable importance on in numerous cases pertaining to freedom of speech and expression, linking the ability to remain anonymous to the constitutional right to freedom of speech and expression since it allows for citizens to speak up freely without fear of the consequences of being targeted for their views.

When it came to analyzing the power of the Government, the 2003 Notification of the Central Government empowering CERT-IN to act as a nodal agency for deciding blocking requests was taken up. While the government representative tried to dodge any criticism of the same by saying that "clear guidelines were given" with respect to this power, it was countered by Shivam Vij's observation that this was only a procedure put down on paper to grant the process an appearance of legitimacy, with many issues including that of transparency not being addressed by the government.

In a response by an unnamed member of the audience, it was said that technology had just added a new dimension to the issue of guiding people, and that banning things would not be an effective alternative to "handhold youth" in such cases. Interestingly, most of the program focused on the effects that the Net had on minors (in addition to the issue of defamation) rather a broad analysis of the issues of possibly obscene speech and hate speech.

Also interestingly, comparisons between the Internet and TV were often made, including comments as to how if the online video clip (I think on YouTube) of Mahatma Gandhi were shown on a medium like TV, the consequences would be significant and action would be taken. I find such analogies problematic because in most cases, the Internet requires actual seeking out on the part of the viewer, rather than the general lack of control one has (besides changing channels) over what might be shown via TV programs. This lack of distinction is important considering what Shivam Vij then went on to point out, that under the planned Convergence Bill he was given to believe that the Government could apply it to online content hosted by bloggers as well, and take action against them. This wasn't really then addressed in the course of the show. Mr Bhattacharjee has of course earlier in response to the discussion of the video clip of Mahatma Gandhi gone on to say that he was the Father of our Nation, and that "we must not allow anyones father to be denigrated like that" or something to the same. Note that he doesn't refer to any specific law that such content violates, just that bland statements as to the status of Mahatma Gandhi. This is somewhat problematic given that restrictions on freedom of speech are meant to be exceptions to the rule, flowing from specific criteria.

Burkha Dutt then posed the question of whether the Internet should be continuously treated as a separate medium. This is an odd question in two ways; firstly in that she isn't clearly stating how exactly and in what manner it's being treated as a separate medium and secondly in that she doesn't really address the point as to the Internet indeed being a fundamentally different medium that print, cinema, or television. Thus, it makes Pavan Duggal's response to this, that the Net "can't be treated as a Wild West anymore!" even more out of place. He also said something as to how he favored an "enabling legislation" though, which he didn't clarify at all.

Shalini Ghosh's statement then that freedom of speech entailing the willingness to accept even shocking speech then stands as an interesting general position in counter. This seemed to set up the stage for a broad range of similar responses from the audience in the open round. One person said that the public outrage against the Gandhi video was merely an example of jingoism while another said that pornography was a personal choice, which must be respected provided that children were protected. Interestingly, the show producers saw fit to prepare a short media segment on children watching porn online, which was somewhat classically dramatic and alarmist.

Considerably more was said, but I didn't really observe anything of substantial input in the same. The two points that I did note towards the closing were the following statements.

"The problem is more of the human condition rather than a medium"

"When new sites are blocked, we cannot know why, how, when etc"

Hence, it seems that there isn't a clear single track of public opinion concerning regulation of speech and expression on the Internet in India. There's a considerable amount of alarm-ism, arguably promoted by the traditional media in response to certain incidents of obscene content being used to harass people and children watching pornography, but there still seems to be considerable willingness amongst many to allow online content to not be subject to constant regulation.

Sunday, 1 July 2007

Sarai I-Fellowship Posting 3.2 - Review and analysis of "National Governments and Control of the Internet: A Digital Challenge"

This book is written by Giampiero Giacomello, a post-doctoral associate at Cornell University and a visiting professor at the University of Bologna. It's a somewhat contemporary (circa 2005) cross country comparative study of what the author terms as the issue of "internet control". Giacomello essentially seeks to lay out the rationale behind and the structure by which national governments in a selected group of western liberal democratic states seek to control the Internet and how it relates to fundamental civil rights in addition to economic activities. As he notes, the reason why democracies are for more interesting to study with respect to internet control in this context is that unlike autocracies (whom he argues seek to control all communications if possible by default), democratic states see far more development of the world's "information infrastructure" and due to their constitutional limitations, actually see competition between the Internet stakeholders and state interests. If you'll note, this goes back to the central reason behind my own research outline, in that the need to study how the Indian State regulates speech and expression on the Internet is because its constitutional structure envisages a restriction on the state's ability to interfere in the area of speech and expression. To put it in simpler terms, democratic states are more interesting to study and present more complex policy questions because they do not have the unfettered right to restrict speech and expression under their constitutional structures. Autocratic states are arguably unrestricted by constitutional quandaries of this sort and hence pose questions more related to transparency in determining and measuring restrictions along with the issue of circumventing censorship rather than matters pertaining to accepting policies under law.

Giacomello is primarily an international relations scholar; the linkage between the subject of Internet control and his own area of specialization in international relations in to do with the similarity between the development of the Internet with that of the International System (the issues of International involvement in Internet Governance and jurisdiction concerns which would normally pop to mind as normal linkages in such a situation actually get very little attention in this book). Essentially, he argues that the common feature of the early Internet with the International System was that of anarchy. He then tracks the effect that this had on national governments, quoting the Economist in saying that "National Governments found its [the Internet's] libertarian culture and contempt for national borders subversive and frankly terrifying". He then, like Wu and Goldsmith in "Who Controls the Internet", notes throughout his book how the Internet's initial chaotically libertarian environment was slowly but steadily weakened and regulated by national governments. Like them, Giacomello essentially gives us a view of the present which has seen the death of the initial libertarian dogma that the Internet was by its very nature impossible to regulate.

The reasons that he posits for the question of why national governments would want to control what he considers to be a difficult to control medium are twofold; the social theory linking control with power, which pertains to what is referred as "the sense of the information environment and, secondly, the history of state control in different forms over communication media (including primarily the extensive control regimes over such media in Europe). He argues that the belief that the Internet was sought to be controlled merely because it was a new communication medium to be incomplete and only a partial answer.

Giacomello splits the problem of "control to protect" into two forms. Firstly is with regards controlling what he terms as the national information infrastructure (NII) which includes the Internet as an integral part, and secondly the aspect of controlling online content. Thus, we have to look at controlling the infrastructure through which Internet communication is possible in a given state, i.e. the NII, along with the direct regulation of online content as two aspects of the same "control to protect" agenda followed by liberal democratic states. The importance of this split is again primarily of importance to liberal democratic states, because direct content regulation is more difficult to justify under their constitutional frameworks. Thus, they often begin the process of Internet control by regulating the NII as the same is often not as legally restricted and controversial as direct curbs on content which might violate the right to free speech and expression.

This is important, because I believe that the Indian state has also followed this approach, consciously or not, in how it has regulated the Internet in India. Access to the Internet at its outset in India was regulated, by virtue of the fact that it was being provided solely by VSNL, a government owned telecom monopoly. This gave the government direct control over the NII as such, which continued considerably even after this area was opened up to private players as part of the general liberalization of the telecom sector. All new players had to sign license agreements with the Department of Telecom which placed considerable conditions on their operation, including duties beyond the general onus to comply with Indian laws to the point where they were directly called upon to cooperate with blocking content if so ordered by the Department of Telecom. This is an explicit clause of the Internet Service Provider (ISP) Agreement. Essentially, the nature of the Indian State's economic regulatory apparatus in controlling such infrastructure providers, including the telecom sector, has seen the pervasive control of the Indian State in controlling the National Information Infrastructure in India. It has been from this generally pervasive control that the Indian State bases its growing direct and indirect control of speech and expression of the Internet in India.

Sunday, 24 June 2007

Sarai I-Fellowship Posting 3.1 - Review and analysis of "Who Controls the Internet: Illusions of a Border-less World"

The title of Jack Goldsmith and Timothy Wu's book, "Who Controls the Internet: Illusions of a Border-less World" puts across their point of view across rather succinctly. They begin by examining the views concerning the Internet during the early and mid Nineties, the initial heady days of the Internet's growth. The Internet was by and large free from any form of regulation by nation states at that point, and the view prevalent then among people connected with the growth of the Internet and users exploring the medium was that the Internet could simply NOT be regulated by nation states. It was a new space as such which was more or less the subject of internal norms and consensus amongst individual stakeholders and away from the realm of law and executive control.

The book goes on to singularly demolish the idea that the Internet today exists as a libertarian paradise. Its argument is that with its growth, the Internet was faced with the simple need to be accommodated in the legal framework laid out by nation states just like previous mediums. While the manner in which these frameworks interacted with the Internet was different from previous new media (especially transmission spectrum based media such as radio and TV), it still worked in a manner which essentially enfolded itself within the rubric of the legal system of the state. Part of the reason for this conceivably seems to be the side-effects of the growth of e-commerce, but a considerable amount of attention came because content on the Internet (i.e. speech and expression) began to draw so much attention and concern, especially due to the reach of the Internet and the fact that it was a new medium/space which few understood, that the State.

As a side comment of my own, we can see that the same also essentially explains the introduction of the Indian State into the sphere of the Internet, with the regulations imposed due to commercial interests (the erstwhile government owned VSNL's attempts to censor Internet telephony) and occasional early police concerns moving on to formalized regulation in the form of the Information Technology Act of 2000, which by and large sought to "facilitate" e-commerce and put in place what may be termed as minimum standards concerning content (not only censoring content, but also legally controlling digital encryption).

I'll talk more about their overall conclusions as part of my next post where I link it up with another book in this area, specifically dealing with a academic understanding of Internet Regulation by Nation States.