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.

Sarai I-Fellowship Posting 3.0

The summarized form of my third Sarai Independent Fellowship post (uploaded onto the Sarai Reader List on 23rd June, 2007) is given below. Note that this is essentially an intro to the detailed sub-posts that I'm publishing here on this blog subsequently, which will be up in a day (apologies for the delay; I've had to travel somewhere urgently on short notice).

"Hello all,

I'm extremely sorry for the considerable delay on my part in putting up this third post of mine. I've set up a blog at http://stateoftheweb.blogspot.com where I've put up an expanded write-up on this post. I've decided to only post summaries here on the Readers-List in order to cut down on the amount of material you all have to read at one go here. I'll post a summary of each entry here on the list so you all know when I make a new post there along with an idea of what the expansive post is about. The expansive notes for this post will be up on my blog in a day or so. But without further adieu, let me give you a summarized update on what I've been doing. I've got several books examining the subject of how the Internet is regulated, and specifically how the nation state relates to this.

I've currently read "Who Controls the Internet" by Goldsmith and Wu, whose essential argument supported by their research is that the Internet is well within the ambit of regulation by national governments. This is a counter to a very widespread view among the initial users, developers, and entrepreneurs of the Internet that it was an essentially libertarian space which couldn't be subject to regulation, especially that of traditional nation states. There are other writers dealing with this subject that I'm currently reading, these being Lessig in "Code 2.0", and Giacomello in "National Governments and Control of the Internet". You'll find a detailed look at all of this in my blog. I've also put up a rough chronology of the known "active" attempts by the Indian State to regulate speech and expression on the Internet across the years till now on my blog as well.

An interesting glance into the Indian psyche concerning speech and the Internet was presented by a recent episode of "We the People" on NDTV. The striking feature about all of that was the absolute lack of any clear mention of the fundamental right to freedom of speech and expression with relation to Internet activity. I've posted a detailed look on it on my blog, and I'm trying to obtain a copy of the programme along with any research and production note to add to the archival material that I'll submit. I'd appreciate any help on how to go about to obtain this from NDTV if anyone has experience on how such things work.

I'm currently planning on interviewing people next week in Delhi. The person that I'm meeting first is Dr Gulshan Rai, who's with the Department of IT and a name most people know in relation to the blocking of certain blogs last year by the Government of India. I also try meeting heads of Internet Service Providers in Delhi. What I want to do though is survey these providers along with local establishments such as Internet cafes in order to see how they are subject to regulation by the local administration and police."

Sarai I-Fellowship 2nd Posting

Continuing the process of uploading the posts I had made on the Sarai Readers-List onto this blog, here's my second I-Fellowship post (originally posted on May 3rd, 2007) where I talked about my initial research into the judicial approach towards Internet Speech in the United States, the EU, and India.

"Hello again everyone,

This is to my second and somewhat late post on my Sarai-CSDS
I-Fellowship project on the Regulation of the Internet by the Indian
State. I apologize for my posting somewhat later than my scheduled
date.

I'm currently in the stage of still studying the various already
document instances of internet regulation by the Indian State and
moreover, the general legal and policy frameworks towards the
protection of speech and expression on the Internet. I've come across
a wide array of matter on the latter, especially connected with the
American legal track record with the same. A lot of this stems from
the famous US case of Reno v. ACLU (available at
http://www.law.cornell.edu/supct/html/96-511.ZS.html among other
places) which essentially clearly established the Internet as a medium
where freedom of speech and expression were protected in a manner such
that a statute which interfered with the adult citizen's speech and
expression on the Internet was unconstitutional.

This essentially started a whole line of cases where the US judiciary
has protected the Internet from legislative enactments which would
have chilled the exercise of the right to freedom of speech and
expression on it. The reason why I've spend some time carefully
analyzing this case and the various bits of academic commentary on it
is to essentially clearly cull out how legal systems which protect the
exercise of freedom of speech and expression engage with the Internet
with a focus on regulation by governments. We can clearly see the
explicit recognition and engagement of the US judiciary with the
Internet, with somewhat positive developments also coming about in the
EU with the European Court of Human Rights at least acknowledging that
Internet users have a clear right of privacy and protection for the
same.

The problem with India on this point is quite clear; no Indian Court
has ever been called to adjudicate on the issue of the protection of
the right of freedom of speech and expression flowing under Article
19(1)a of the Indian Constitution with relation to the Internet. Its
not exactly a case of tabula rasa though; its not very well known but
the Bombay High Court appointed a committee in suo moto writ petition
no. 1611 of 2001 which presented a report in 2002 on measures
recommended to protect minors from pornographic and obscene material
on the Internet. The report is available online at
http://www.cyquator.com/html/vol1.pdf and is definitely worth a read
to anyone interested in this area. It essentially advocated a system
whereupon minors should be protected by filtering software installed
at computers designated for them at cybercafes and on home computers.
It for the first time referred to the precedent established by the US
case of Reno v. ACLU and said that measures such as blocking sites was
not legally acceptable nor feasible.

I'm currently working on several other points connected with the
jurisprudence of freedom of speech on the Internet and I'll post them
as they coalesce into a more distinct shape."

Sarai I-Fellowship 1st Posting

Here's a copy of my first Sarai Independent Fellowship Posting on Regulation of the Internet by the Indian State. This was posted to the Sarai Readers List (reader-list@sarai.net) on May 28th 2007:

"Hello all,

I'm Raman Jit Singh Chima, and I'm currently a B.A.LL.B. (Hons) student at the National Law School of India University, Bangalore. This my first post regarding the Sarai Independent Fellowship project that I'm working on this year, which deals with the subject of the regulation of the Internet by the Indian State through legal structures and mechanisms.

I've attempted to chart out below a rough outline of my project in terms of its objectives and methodology along with its current status. (I'll tried to keep it a bit short here in this post; if anyone wants a detailed look at my project outiline I'll be more than happy to mail it to you at your request):-

The Internet may seem to be a rather radically free and chaotic space/medium of expression, but what most scholars (and indeed recent experiences) have shown that is far from immune to regulation. While there are indeed many forms of regulation and by different actors, its the role of the State that I want to examine here. The main reason behind that is that the regulation of areas connected with speech and expression by authority in the form of the State is supposed to be restricted so as to protect the right of freedom of speech and expression. In order to protect anything though, you need to clearly establish the manner in which the State is engaging with it currently and it this point that underscores my project.

I'm trying to to chart out the empirical aspects of Internet regulation in India and its linkages with normative frameworks. The focus of this project is thus on the following two goals;

Firstly, to track out and study the manner in which the Indian State regulates the Internet through legal structures and connected mechanism (both through formal legal rules as well as through informal measure such as police regulation of cyber-cafes, control over Internet Service Providers etc).

Secondly, to analyze how this regulatory framework relates to the constitutional safeguards with respect to the limitations on state action viz. free speech and expression and whether it respects these constraints.

I'm currently in the stage of examining textual sources for information about censorship law and practice in general in India as well as information about Internet regulation overall. I'd be really interested in comments and ideas, especially with regards sources of information that any of you might think may be useful. I'm specifically interested in knowing about instances of regulation of the Internet by the Indian State which any of you might have instanced happening at a lower level (like in terms of cyber-cafes, city police notices and raids etc) and not only nation wide censorship instances such as the blocking of blogs and yahoogroups (though if you know of instances other than the most recent blog ban and the earlier Kyunhun group case it would be of tremendous use).

Also, I planned out my project with the idea of basing any findings and analysis on clear evidence about actual instances of the Indian State regulating or at least seeking to regulate the Internet in everyday life in a manner prejudicial to freedom of speech. Thus suggestions as to people who would be good to interview in this regard would be really useful, though I'm currently limited to physical meetings/field work being possible only in Bangalore (or in Delhi during June or October)."