IFF releases Legislative Brief on Digital Rights for Winter Session 2021

tl;dr

Before the commencement of the Winter Session of the Indian Parliament, we have prepared our second Legislative Brief on Digital Rights. In our brief, we highlight some of the focus areas within the larger issues of data protection and digital rights that call for the extensive deliberation in the houses of the Parliament.

Introduction

As per bulletins by the Lok Sabha and Rajya Sabha secretariats, the Winter Session of the Parliament will commence on the 29th of November and end on the 23rd of December. 19 days have been allocated for the sittings of the Parliament:

• November: 29th & 30th
• December: 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, & 23

Last time out, the Monsoon Session of the Parliament had to be curtailed early due to frequent protests and disruptions. In our review of the Monsoon session, we had looked at the impact of these disruptions, while also noting the lack of willingness on the part of the government to discuss the Pegasus scandal as well as the back and forth over the Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021.

Now, while the Prime Minister may have expressed a desire to see quality debate during the Winter Session, this session too is likely to be a fractious one, as key issues such as the farmer protests, political violence, inflation, and the enhanced jurisdiction of the Border Security Forces are expected to come to the fore. Several important reports, such as the report of the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019, are also expected to be tabled. In this brief, we take a look at the Winter Session through the lens of digital rights.

Potential areas of parliamentary deliberation

The importance of digital rights has grown leaps and bounds in recent times. As such it is anticipated that the Parliament will deliberate upon some of the most important concerns related to digital rights. This pans across proposed legislation, rules as well as real time issues.

• The Personal Data Protection Bill, 2019: The report of the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 is scheduled to be released during the first week of the winter session, as per the motion adopted by the Lok Sabha on 23rd July, 2021. The Committee has already received 5 extensions, and it is likely that the report will be submitted during the Winter Session, especially since media reports indicate that all deliberations seem to have been completed.
• The DNA Technology (Use and Application) Regulation Bill, 2019: The DNA Technology (Use and Application) Regulation Bill, 2019 was scheduled to be considered during the monsoon session of the Parliament. The Standing Committee on Science and Technology had submitted its report along with notes of dissents from two members of the Committee. The report highlights several of the concerns regarding privacy and data protection. However, the overall applicability of the bill is not commensurate with the Personal Data Protection Bill and triggers serious concerns regarding DNA based surveillance.
• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been notified and are expected to be tabled in this session. Manifestly, the 2021 Intermediary Rules not only lack any clear rationale but also go beyond the scope of the parent statute. This especially undermines the observations of the Supreme Court of India in Shreya Singhal v. Union of India which upheld that it is not under the constitutional scheme for the State to curtail freedom of speech beyond the scope of Article 19(2). The current Rules, which are mired in imprecise language, impose arbitrary obligations of content regulation, traceability and decryption upon intermediaries which in turn jeopardise the freedom of speech and expression as well as the right to privacy of the users. On 22nd July, Rajya Sabha MP Binoy Viswam submitted a statutory motion to annul the IT Rules. However, the motion lapsed due to non-allocation of any business time. Further, on July 27, another Rajya Sabha MP MV Shreyams Kumar also moved a statutory motion to annul the Rules on grounds of their being unconstitutional and the concern around them, though this too lapsed.
• Facebook Disclosures: Two whistleblowers, Ms. Frances Haugen and Ms. Sophie Zhang, have come forward with claims that Facebook is well aware of the harm its platforms cause to its users but chooses to not do everything in its power to stop this, as it would hurt the company’s bottom line. In September 2021, Haugen submitted eight complaints to the US Securities and Exchange Commission’s Office of the Whistleblower which allege that Facebook is knowingly withholding information and research about its shortcomings from the public and its investors. Another whistleblower, who testified before the UK parliamentary committee on the Online Safety Bill, is former Facebook data scientist, Ms. Sophie Zhang. According to Zhang, Facebook is “allowing authoritarian governments to manipulate political discourse”. Disclosures relevant to India include information on how the spread of misinformation and hate speech is not being actioned upon despite having knowledge.
• MeitY writes to Facebook: Following the disclosures by Frances Haugen, MeitY has written to Facebook Inc. requesting additional details of its algorithms and the processes it deploys. It must be noted that the ‘Facebook Files’ had a dedicated section on India in which the whistleblowers had specifically raised concerns over the company's processes while dealing in India. Several media reports also indicate that the government has also asked Facebook to provide details of steps taken to safeguard users interests and rights particularly in cases of hate speech and fake news.

Priority issues of digital governance

Beyond these issues, there exist certain persistent issues of digital governance that need to be addressed on a priority basis:

• Legislative Frameworks for Privacy: As India’s digitalisation proceeds further, the need for a robust and comprehensive data protection law becomes even more urgent. The Personal Data Protection Bill, 2019 has witnessed several rounds of consultation, and, as stated earlier, the Joint Parliamentary Committee on the Bill will be submitting its report in the first week of the Winter Session. However, several issues remain unresolved.
• COVID-19 and technology: The distressing second wave of the COVID-19 pandemic manifested the gaping divide between the technologically sound and technologically deprived population of India like never before. Right from the unilateral dependence on the web or mobile applications like Co-WIN for registrations for vaccination or the Aarogya Setu for undertaking long distance travel to the ubiquity of Aadhar card for accessing almost every essential health service, the enmeshing of technology for access to COVID related services have proven to be ill-timed and a hindrance for a large section of the citizens.
• Free speech and platform governance: While the Indian Constitution guarantees the right to freedom of speech and expression as a fundamental right to every citizen, it also ties it up to “reasonable restrictions” under Article 19(2). The loose verbiage in the latter has often resulted in excessive online platform governance and censorship. The thin line between allowing free speech and curtaining hate speech often gets debilitated.
• Internet access, internet shutdowns, and net neutrality: India has a long way to go with regards to internet access. However, these lacunae exist not just with respect to digital infrastructure and internet access, but also due frequent internet shutdowns and a lack of net neutrality.
• Surveillance & facial recognition technology: As a country where legislation around personal data protection and privacy continue to be emergent, threats of misuse of private information remain rather compelling, as we saw with the Pegasus scandal. Not only does the discretion to authorise surveillance lie solely with the executive, the judiciary too has not explicitly countered the use of surveillance technology by admitting evidences procured through such means as long as it is consented to and is relevant to the case; all this while there is no quantifiable proof of accuracy of the evidences derived out of surveillance.
• Digital technologies, social justice, and public welfare: The transformative effects of digital technology are a driving force for transformation in today’s India, and we must ensure that the benefits of such technology are not limited to only a certain section of the society. The Supreme Court of India, in Anuradha Bhasin v. Union of India, has also highlighted that the internet is a medium to exercise fundamental rights provided by the Constitution of India. As such, the implementation of digital technology across sectors such as health, education, agriculture, and finance must be done in a manner that centres the needs of the intended beneficiaries: the citizens of India.

This is just a sneak peak at some of the issues we have looked at in our brief. For more analysis, statistics, and insight into future legislative developments related to digital rights, see here!

Important documents

1. IFF’s Legislative Brief on Digital Rights - Winter Session 2021 (link)
2. Shareable Graphic on the Winter session (link)
3. IFF’s Legislative Brief on Digital Rights - Monsoon Session 2021 (link)
4. Monsoon Session 2021: A Digital Rights Review (link)

This is IFF’s second attempt at drafting a Legislative Brief. The drafting of this brief was informed and indeed inspired by our conversations with various stakeholders and civil society organisations. We ask legislators, politicians, and public policy practitioners, as well as the citizens of India, to provide us with inputs and feedback about how we can improve this brief here.