A digital rights agenda after a refresh: IFF writes to the new ministers

Tl;dr

This week, the Union cabinet saw a major reshuffle. This included new ministers for MEITY, MOC, and MIB. We wrote to the new ministers, welcoming them to their new role and highlighting key areas that need to be addressed.

Background

On Wednesday, 7th July, the Union Cabinet witnessed a reshuffle, with numerous new Ministers being initiated into the Cabinet and various portfolios being reallocated. Amidst all this churning, two appointments stand out for us:

1. Ministry of Electronics and Information Technology & Ministry of Communications: Ravi Shankar Prasad was replaced as the Minister for both these Ministries by Ashwini Vaishnaw.
2. Ministry of Information and Broadcasting: Prakash Javadekar was replaced as the Minister of Information and Broadcasting by Anurag Thakur.

We welcome the new ministers. Digital technologies play a key part in the lives of everyday Indians, and so ensuring that the use of such technologies is geared towards the needs of citizens is an important task. This makes the job of the Ministry even more important.

However, while the ministers may have changed, the underlying demands haven’t. Thus, we view this reshuffle more as a ‘refresh’. Now, if we look at the meaning of the word ‘refresh’ in the technical sense, then we see that what happens is that the system clears up completed and pending tasks, and updates itself to receive the latest information. We hope that with the introduction of the new ministers, something similar will happen in the functioning of the Ministries, especially with respect to the protection of digital rights and in addressing the current challenges.

Thus, we have written to the new ministers, offering our assistance on such matters and helping advance India’s digital revolution in a manner that enshrines fundamental constitutional rights at its core. Below, we delineate some of the core concerns and issues we believe the Ministries must pick up.

The Ministry of Communications

The most pressing issues facing the new Minister for Communications are:

1. Inadequate digital Infrastructure: While India’s internet penetration is improving, evidence from government reports suggests that the country has a long way to go before attaining universal internet penetration. For example, TRAI’s ‘The Indian Telecom Services Performance Indicators October – December, 2020’ report states that India has 795.18 million internet subscribers, which indicates an internet penetration rate of only 58.51%. Rural-urban disparities prevail, as indicated the rural penetration rate of 34.69%, with 308.17 million rural internet subscribers, is not even one third of the urban penetration rate of 103.98%, with 487.01 million urban internet subscribers. Furthermore, given that around 37,439 villages in India are still not covered by telecom service providers, it is clear India’s digital infrastructure requires further expansion. Such measures must especially focus on under-serviced areas, for which better usage of the Universal Service Obligation Funds is imperative.
2. Low digital literacy: Existing schemes for digital literacy have also witnessed slow progress. For example, the Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMDISHA) has identified 4.54 crore target candidates, a low number for a country with a population like that of India. Out of these, only 2.71 crore candidates had been certified as of 17th March 2021. Thus, there is an urgent need to address the digital divide not only by expanding India’s digital infrastructure but also by focusing on comprehensive digital literacy.
3. Routine Internet shutdowns by governments: Another significant issue is the prevalence of internet shutdowns. Between 2012 and 2019, the Indian government has shut down the internet in various parts of the country approximately 374 times, with 2019 and 2020 witnessing an estimated 106 and 129 shutdowns respectively - causing $2.4 billion in losses. India accounts for 70% of total global losses caused by internet shutdowns. This indicates that internet shutdowns are not being used as a last resort, and are instead deployed aggressively. Compliance with the honourable Supreme Court’s judgement in Anuradha Bhasin v Union of India is also low, as several internet shutdowns have been imposed without publishing the underlying orders and have even refused to provide this information in response to RTI application. The amendments to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 also fail to promote active compliance. Thus, we urge the Ministry to enforce greater transparency and accountability in the blocking process, beginning by ensuring that shutdown orders are proactively published.
4. Need to effectively implement net neutrality: Lastly, the regulation and enforcement of net neutrality is also in need of improvement. A recent study has shown that that the website blocklists of licensed internet service providers across India are widely inconsistent with one another, suggesting that a larger pattern wherein internet providers are either a) not complying with blocking orders under section 69A of the Information Technology Act, 2000 or b) arbitrarily blocking websites without legal orders. Here too, compliance with the decision of the honourable Supreme Court in Anuradha Bhasin is low, as blocking orders issued under section 69A are not easily accessible. This is compounded by the lack of implementation of the Telecom Regulatory Authority of India’s (TRAI’s) recommendations regarding ‘Traffic Management Practices and Multistakeholder Body for Net Neutrality’, leading to further regulatory confusion. Thus, it is important to address issues of net neutrality in line with the goals of the Secure India mission by operationalizing the recommendations of the TRAI.

The Ministry of Electronics and Information Technology

The most pressing issues facing the new Minister of Electronics and Information Technology are:

1. Intermediary liability and the IT Rules: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have faced significant criticism on several grounds. While we understand the need for robust regulations and acknowledge the inclusion of certain progressive provisions, on the whole, the IT Rules are undemocratic, unconstitutional, and regressive. Thus, the IT Rules must be withdrawn. Till a broader and more comprehensive digital governance framework is implemented, intermediary liability can be regulated by the Information Technology (Intermediaries guidelines) Rules, 2011.
2. Updating the IT Act: When the Information Technology Act, 2000 was originally passed, the aim of the Act was to govern e-commerce in India. However, the legislation does not address the dynamic complications that come with the exponential growth in technology. Thus, there is a need to draw up a comprehensive new framework for digital governance in India that takes into account the technological, policy, and legal developments that have taken place in the last few years. Thus, a process for updating the Information Technology Act, 2000 must be made public This would involve conducting large scale consultations with various stakeholders as well setting out a position paper on the future of the Act on the basis of inputs by technical and legal experts.
3. Greater transparency with respect to content blocking: One of the key issues that the new framework must address is the lack of transparency with regards to content blocking orders issued under section 69A of the Information Technology Act, 2000. Often, orders are not made publicly available. In many cases even the originators of the content in question do not receive such a notice.  By securing greater accountability in all such cases, the honourable Ministry can ensure a fuller expression of citizen’s fundamental right to the freedom of expression, and also foster greater public trust in the commitment of the Ministry to balance this freedom with the safety of Indians online.
4. Curb data breaches: Another significant concern is the increasing number of data breaches that have plagued the country. The average data breach in India in 2020 cost Rs 14 crore an increase of 9.4% from 2019. The per-unit data cost increased by 10% to Rs 5,522. The report also noted that the average time to both detect and contain a breach went up from 221 days to 230 days and from 77 to 83 days respectively. This indicates a significant amount of information and data loss for users. Meanwhile, existing mechanisms under the IT Act may be inadequate, while no proactive measures for ensuring the security of data have been specified. Thus, it is necessary to provide statutory measures for data security and strengthen the powers of the Indian Computer Emergency Response Team to ensure proactive action against data breaches.

The Ministry of Information and Broadcasting

The most pressing issues facing the new Minister of Information and Broadcasting are:

1. Digital news media, OTT content, and the IT Rules: The IT Rules also grant administrative powers to the Ministry of Information and Broadcasting have faced significant criticism. Currently, the Ministry is regulating such content under Part III of the IT Rules, which have been issued under the Information Technology Act, 2000 (IT Act). However, the IT Rules in this regard are ultra vires their parent legislation, since the IT Act never contemplated digital news media platforms and over-the-top video streaming platforms at all, nor does it grant any powers to the Ministry of Information & Broadcasting.We urge that due to the injury to creativity, artistic freedom and the ability for the production of new age content the Ministry may consider withdrawing the IT Rules. As a second step, you may further consider commencing a broader exercise of public consultation within the purview of appropriate legislation.
2. Press freedom: Recent media reports have spoken about rising attacks and threats on members of the press fraternity in response to their reportage, particularly in the online sphere. Such threats also include prosecutions under criminal law, including using archaic provisions of law such as sedition. Human Rights Watch in its 2021 report has noted that several journalists faced criminal cases for reporting on Covid-19, while PEN Canada’s Report on The Use of India’s Laws to Suppress Free Speech identified overbroad censorship law and oppressive prosecution procedures as some of the key issues. As a result, India has been facing a sharp downward curve in its press freedom rankings in recent years, and is currently Rank 142 in 2021. Thus, we have asked the Ministry to consider the possibility of enacting a law to protect journalists and engage with criminal law reforms presently being led.

Important Documents

1. IFF’s letter to the Minister of Communications regarding ‘Inputs for advancing digital rights in achieving a Digital India’ (link)
2. IFF’s letter to the Minister of Electronics and Information Technology regarding ‘Inputs for advancing digital rights in achieving a Digital India’ (link)
3. IFF’s letter to the Minister of Information and broadcasting regarding ‘Inputs for advancing digital rights in achieving a Digital India’ (link)