Tl;dr
IFF filed RTIs with various state governments seeking copies of internet shutdown orders issued under Section 144, Code of Criminal Procedure, 1973 or the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. While most states gave obfuscatory responses, Bihar was the only state which has provided actual copies of orders. An analysis of the orders provides two interesting insights. First, the orders only direct blocking of specific mass messaging platforms such as Facebook, Twitter, WhatsApp etc. and do not require suspension of internet services in their entirety. Second, while the Rules state that orders must contain reasons explaining why there is a threat of public emergency or threat to public safety, the orders issued by the Bihar Government are extremely vague.
Background
In mid June 2019, IFF filed RTIs with almost all state governments seeking information about internet shutdowns since 2010 under Section 144, Code of Criminal Procedure, 1973 or the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (‘Telecom Suspension Rules 2017’). The responses received from most state governments were highly disappointing with different departments transferring the RTI application to each other endlessly, claiming that no information was available with them or stating that they were an exempt entity under Section 24 of the RTI Act. The Bihar Government was a notable exception and it agreed to provide us access to copies of actual orders issued under the Telecom Suspension Rules 2017.
First, let’s start with the good stuff
We must give the Bihar Government credit when it is due and we appreciate that, unlike many other states, it complied with its obligation to ensure transparency in governance by answering our RTI queries. We were provided copies of 29 orders issued under the Telecom Suspension Rules 2017 in 2017 and 2018.
Much to our surprise, an analysis of these orders revealed that the Telecom Suspension Rules 2017 were being used by the state government to block access to specific mass messaging platforms such as Facebook, Twitter and WhatsApp instead of suspending access to internet services in their entirety. In some aspects, the orders were relatively narrow. For instance, ISPs were only directed to block uploads on YouTube. ISPs cannot usually block specific features on a platform as anything over HTTPS only allows yes/no blocking of the entire website or application. However, for large payloads like video, this may be possible by dropping the connection based on send/receive ratio. In certain other aspects, the orders were open-ended and quite broad. For instance, in addition to specific websites and mobile applications listed by the government, ISPs were also expected to suspend access to “other social networking sites meant for mass messaging.”
Blocking of websites and mobile applications should typically happen under Section 69A of the Information Technology Act, 2000 and Rules made thereunder. However, the powers under Section 69A are only available with the Central Government, and not State Governments. This may have motivated the Bihar Government to resort to the Telecom Suspension Rules 2017 to issue these orders.
Alas, there is much scope for improvement
Under Rule 2(2) of the Telecom Suspension Rules 2017, the competent authority has an obligation to specify reasons for the issuance of an order. Unfortunately, none of the orders we have analysed meaningfully comply with this requirement. All the orders copy paste the same boilerplate language about how the local administration apprehends that anti social elements will spread objectionable content which could cause disaffection and disharmony or incite violence. However, none of the orders mention any specific incidents which have given rise to this apprehension.
As we have previously noted in the context of telecom suspension orders relating to Kashmir, this type of vagueness is deeply problematic because it prevents us from being able to evaluate the “reasonableness” and “proportionality” of these restrictions. This demonstrates how opacity in the use of powers under the Telecom Suspension Rules 2017 is a pan-India problem.
Parliamentary questions have revealed that the Central Government does not maintain any record of internet shutdowns ordered by State Governments and it has not conducted any review of the working of the Telecom Suspension Rules 2017. Unless there is official recordkeeping and periodic review of the social, economic and political impact of internet shutdowns, we fear that arbitrary use of these extraordinary powers will continue. IFF and other civil society organizations such as SFLC have tried to bring about greater transparency and accountability in the telecom suspension process through RTIs but the primary responsibility for proactive disclosure of shutdown orders must remain with the government.
Important Documents
- Copy of orders issued under the Telecom Suspension Rules 2017 by the Bihar Government (link)