Tuesday, December 16, 2014

Amended Section 66A / Dhruva Jaishankar

If you are reading this article, you have in all likelihood committed a crime. According to Indian law — specifically, Section 66A of the amended Information Technology Act — you could be facing a fine and a prison sentence of up to three years for having sent “by means of a computer resource or communication device” information that is “grossly offensive or has menacing character” or information you know “to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”
The IT Act’s vagueness and comprehensiveness are troubling at many levels. Instances of Section 66A’s use have been infrequent but arbitrary. Several prominent examples date from 2012, such as a Jadavpur University professor arrested for disseminating a cartoon of Ms. Mamata Banerjee, a businessman in Puducherry charged for a supposedly offensive tweet against a politician, and the arrest of two young women in Maharashtra over comments related to Bal Thackeray’s funeral. Last year, the IT Cell of the Bharatiya Janata Party (BJP) compared the ostensibly draconian nature of Section 66A to the Emergency, with several leaders urging that it be amended or watered down.
Just last week, the Supreme Court requested clarity on Section 66A from the Centre, pointing to the inadequacy of the law and the arbitrariness of its use. The government, in its reply, defended the law: “even a single unlawful/illegal message or image has a potential to tear the social fabric and destroy peace and tranquillity.”
Misconceiving the online sphere
The inadequacies of India’s Internet regime are not relegated to this one particularly contentious piece of legislation. In reality, the Indian state, Indian society, and the Indian economy confront a series of interrelated dilemmas pertaining to the future of the Internet. The manner in which these dilemmas are addressed will be crucial to determining India’s future as an open society, a secure state, and a competitive economy.
Internet-related policy has been difficult to address because of a set of widespread misconceptions and imprecise language. One cardinal misconception is that the Internet is a thing unto itself, to be discussed, debated, and governed in a vacuum. The term “cyber” — whether used on its own or as a prefix — simultaneously insulates these matters from other aspects of public policy while encompassing a startlingly wide variety of issues related to personal and national security, economic development, and global governance. As an increasingly integral part of our day-to-day lives, the Internet is an extension of the offline world, with all its faults and features. And the faults lie not in the cloud, but in ourselves.
India’s digital revolution
The Internet is also here to stay. Mobile technologies have already proliferated widely across the country, a revolution whose implications have yet to be fully internalised. And despite constraints on mobile and broadband infrastructure, Internet use in India continues to expand. The digital revolution is now an integral part of every Indian’s existence — even the poorest of the poor. At the bottom of the pyramid, digital technologies are enabling financial inclusion, improving basic education, and effecting revolutionary changes in the distribution of welfare and social services. At the top, such technologies are advancing commerce, travel, market access, and research and development in unprecedented ways. A stable and open Internet will be inextricably linked to the Indian economy’s ability to grow, innovate, and compete in a global environment.
Disconnect between perceptions
A further misconception — one that is surprisingly widespread in the corridors of power — is that the Internet remains an inherently public space. Yet, as more and more personal information is saved and communicated online, the Internet can no longer be treated in that manner. Users increasingly have their private correspondence, their finances, their personal histories, and their photographs on servers, not on their person. As such, users expect — even if they are not necessarily entitled to — a level of privacy that governments and businesses do not always grant them. Personal violations by other users — incidents of hacking — are treated with opprobrium and are subject to legal action. But there remains a disconnect between Internet users’ perceptions of their own privacy and the ability, authority, and willingness of governments and online businesses to encroach upon it.
Finally, some still believe that the Internet can be — or should be — a completely open and anarchic space. The harsh reality is that, much like the offline world, the Internet is potentially dangerous. For all their unquestionable benefits, digital information and communication technologies can facilitate exploitation, criminality, hate speech, and threats to national security — just as other modes of communication do so in the offline world. The revelation just days ago that Mehdi Masroor Biswas, a Bengaluru-based engineer, was behind the pro-Islamic State Twitter handle @shamiwitness only further reinforces the notion that the Internet cannot remain completely anarchic and ungoverned — untouched by the hand of the state.
India is at present poorly equipped to deal with some of the dilemmas thrown up by these realities. Inadequate laws are but one part of the picture. The IT Act was amended in the wake of the 26/11 attacks in Mumbai, and it was pushed forward with minimal debate and in a climate of insecurity. The end result is so poor as to be simultaneously meaningless and omnipotent, and thus erodes the credibility of our laws and our democracy.
The Indian state is also expanding its capability to monitor communications online — steps that are necessary in the light of the very real threats to civil and national security in India — but with little public discussion as to its implications, and even less thought being given to appropriate oversight. The Centralised Monitoring System (CMS) is one such entity, but in fact several different agencies and ministries have the authority to monitor communications online.
Finally, India — for an economy that is largely dependent on services and small-scale entrepreneurship — is still underutilising the power of the Internet for its economic development. Internet start-ups still face onerous constraints, many of which relate to infrastructure and the regulatory climate. And vested interests resist necessary, and in some cases, obvious changes.
The need for innovation
Fortunately, there are possible solutions at hand to address these challenges. India’s laws on freedom of expression online — specifically Section 66A — need to be brought in line with the “reasonable restrictions” on free speech contained in our own Constitution. Simultaneously, efforts must be made to bridge the gap between public perceptions of Internet use and existing laws. This requires a better understanding by legislators, jurists, and members of the media of the inadequacies of existing legal frameworks. At the same time, better public education of users as to what constitutes illegal online behaviour is necessary. In the absence of such measures, arbitrary arrests and prosecutions for online infractions will continue.
Second, the notion that there is a trade-off between security and freedom must be put to rest. Given the potential for virulent hate speech and digital communications that compromise national security, there will be a continuing need for Indian security, intelligence, and police forces to monitor online communications and take action when necessary in the form of removing content and prosecuting serious violators. But there needs to be adequate oversight in place in the form of independent regulators, Parliament, the media, and the courts. Quis custodiet ipsos custodes ?
Finally, India’s economy — dependent as it is on services and entrepreneurship — will need all the help it can get from the development of a vibrant online marketplace. And yet, for an economy with inherent strengths in services, English language education, and technical skills, India has been remarkably weak in terms of digital innovation. India’s most successful online companies — Flipkart, MakeMyTrip, Rediff — are essentially variants of other online services that have been geared toward the Indian market, while other innovations have essentially involved lowering costs. If India is to compete globally, and if it is to generate tens of thousands of small businesses to ensure employment and growth, incentives and an infrastructure for radical innovation are necessary. The momentum is there in the form of the government’s Digital India campaign, but a closer marriage with Make in India — one that results in a meaningful innovation policy — will undoubtedly be required.

(Dhruva Jaishankar is a fellow with the German Marshall Fund.)

Source : http://www.thehindu.com/todays-paper/tp-opinion/for-better-signage-on-the-cyber-highway/article6691943.ece

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