- A private meeting with a proposal to threaten our fundamental rights: On December 24 2018, the Indian Express reported that in a private meeting with a few social media companies and industry representatives the Ministry of Electronics and IT (MEITY) proposed disturbing changes to an online law that would result in grave censorship and surveillance for Indians. We that very day published the full text of these proposed changes with an influential analysis that guided public debate.
- A "public" consultation : Shortly after it, MEITY announced a public consultation on the proposed changes. These were proposals to make changes to the liability exemptions for online platform or service provider. An intermediary is any service providers which transmits, hosts and publishes user content. So it can be your ISP, email provider, social media platform, or any web-service which allows you to post, upload and publish. These platforms because of their technical ability to connect us to others, host our data, publish it, help us realise our freedom of speech, they mediate our online experience, impact our privacy and hold great power.
- Recall these proposed changes, start afresh: Yesterday we sent our submission to MIETY noting the problems with the proposed changes. Our clear demand is that instant consultation with the proposed changes needs to be withdrawn. We fear this exercise is expending energy and resources on the basis of draft legal rules that lack any clear rationale that has been articulated by MEITY. The proposals themselves are substantively harmful to our fundamental rights as we explain in our submissions. We instead advocate for a fresh exercise with a white paper to update our legal rules. IFF believes that our government should protect people rather than merely seeking greater powers over a few dominant online platforms.
This has to be the most peculiar public consultation we have participated till now. Usually public consultation exercises are done with an approach paper or first trying to understand what specific harms, benefits, or policy objectives we are trying to fulfil. Only after that is done some legal provisions are identified for change or introduction. This is not the case with the consultation on the proposed changes to the Information Technology Intermediary Guidelines Rules, 2011 (the IT Rules). On December 24, 2018 the Indian Express put out a report that revealed some proposed changes were put in a private meeting to a select number of social media platforms and industry bodies.
The same morning we published the full text of these proposed changes. We noted problems early on with these proposed changes on grounds of privacy and free expression giving feedback rule by rule. This was widely covered by the press and became a major news story coming shortly after the MHA notification. Later in the evening that very day, MIETY announced a public consultation on the same rules. This was without any approach paper or explaining the rationale of the suggested changes. We found this to be not only strange, but also harmful to public confidence as internet users, who will face the impact of these changes the most were de-prioritised where feedback was first sought from large, private online platforms.
We object to the substance of these proposed changes which result in undermining our fundamental rights by turning online private intermediaries into policing agencies by – breaking encryption; empowering the government to gather more personal data; using risky automated filtering; and sending monthly reminders to behave ourselves. We clearly put across our demand to recall these proposed changes and end this consultation. It is not going to lead to any meaningful change or addressing the range of harms which today require a balanced policy conversation which should then move towards legal changes.
This is drawing scarce resources and time in a critical year for our digital freedoms. We need to seriously address issues of online content censorship, privacy, discrimination and due process. The present approach both in process and substance is misguided and even harmful.
Our detailed submissions emphasise on three principal pillars which are summarised below.
- Respect fundamental rights: MIETY must respect the fundamental rights of internet users and treat them as the primary stakeholders in this conversation. This flows specifically from according respect to the Shreya Singhal judgement, which not only struck down Section 66A as unconstitutional (which is not being complied with), but also according due respect to its directions on intermediary liability. Further, MIETY must act on the findings of the Committee on Subordinate Legislation to the 15th Lok Sabha which required changes to the Intermediary Rules to reduce vagueness.
- Act within the jurisdictional mandate: Second, most of the changes suggested are beyond the jurisdiction of MEITY. It must also remember the limited jurisdictional ambit as this present exercise is to change rules which can only be framed within the confine of the parent provision that is Section 79. Hence, making prescriptions for, introducing traceability that breaks encryption, automated filtering of user content or prohibiting the display of content such as vaping devices falls outside its jurisdictional mandate and results in further vagueness.
- Press for meaningful disclosure that leads to accountability: Third, to secure the fundamental rights of users the approach to take towards online intermediaries should start with meaningful transparency and accountability. Here, it is important for the public to know the processes, standards and internal decision making followed especially by large social media platforms. MIETY must urgently commence this process by requiring such disclosures that are made public on grounds of safeguarding the privacy and speech of millions of users who use the internet today.
- Operationalise the expert body tasked with this function: Fourth, the CRAC (Cyber Regulations Advisory Committee) which is a statutory body under the Information Technology Act, 2000 should be reconstituted with prominent membership of civil society organisations and should be tasked with coming up with a white paper on the future of the Information Technology Act, 2000. We believe that rather than diluting intermediary liability which requires to be safeguarded further protections to internet users is necessary.
Link to our documents
- Our Work: We are a civil liberties advocacy organisation focusing on technology and fundamental rights. Working across the spectrum -- with expertise in free speech, digital surveillance and privacy, net neutrality and innovation -- we champion human freedom in the digital space. Our aim is to ensure that people in the world's largest democracy are able to use technology with liberty and justice guaranteed under the Constitution of India.
- Transparency: As a non-profit registered under Section 80G of the Income Tax Act we go beyond regulatory requirements for greater accountability and transparency. We publish detailed financial information and supplement that with monthly updates on social media of our fundraising and expenses. We view our donors as a community and remain in touch with them with monthly email updates and personal conversations.
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