The recent curbs on social networking websites in India demonstrate the unpredictability of the legal environment, both for businesses and the citizens. Whether its the Government of India's (GoI) insistence on getting access to corporate emails and text messages sent via BlackBerry devices, or changing stances on "pre-screening" user generated content, the authorities seem to be doing a tap dance around legal issues. The implementation of rules seems surreptitious as they are bent conveniently in the name of "security".
The North-east exodus related disturbances presented a public disorder situation which had a new characteristic. This time around, the platforms of communications and reporting had changed. The social networking websites provided voice to anyone and everyone who had an internet connection, thereby the chatter of the street transposed online and could be read widely. The communal hatred of the society started reflecting in people's online communication as well. The GoI, crippled by its inexperience of social media and plagued by the nervousness of the situation, offered a knee jerk response, that of issuing a blanket ban of at least 300 websites and various twitter accounts.
Well you wonder---shouldn't GoI be dealing with this episode by using the power of the Net to support and protect its citizens by combating rumor with truth, told reliably by a govt people can trust? Instead, in order to disguise its inefficiency, it is not only resorting to censorship, which won't work, it is trying to force people to keep the censorship secret, which is corrosive of the very idea of democracy.
An analysis of the orders issued by the Ministry of Communication & IT makes it difficult to discern the intentions of the authorities. The specific URLs sought to be blocked included the domains of Facebook, Twitter, YouTube, BlogSpot, WordPress, Google Plus, Wikipedia, Times of India, Al Jazeera, FirstPost and other websites.
Section 69A of the Information Technology Act, 2000 provides the Central Government, the power to block access by the public of any information, to maintain public order or for preventing incitement to the commission of any cognizable offense amongst other things.
The governing rules which lay out the procedure to carry out such blocking, provide that, any such direction for blocking can only be given by the Secretary, Department of Information Technology, on a recommendation made by a Designated officer in an emergent situation.
This interim direction is then supposed to be reviewed by a committee consisting of Joint Secretaries from the Ministry of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team, to analyze if the response was appropriate considering the seriousness of the situation. A final order can only be issued by the Secretary, Department of Information Technology after receiving a report from this committee.
Such elaborate rules requiring the involvement of officials at such high levels, from various departments of the Government were formulated, to prevent misuse of the power to block access. However, all these communications were signed by a Director (DS-II)of the Department of Telecommunications and not a Joint Secretary. While the letter instructs Licensees to block specific URLs, it also requests them to refrain from mentioning these URLs in their compliance letters. Implying that the censorship should be kept secret.
A Director level officer issues a non-reasoned order, instructs the licensees to omit the details from an official compliance report, the process rests in a black hole and we shut down half the internet?
Are the authorities abandoning the Rule of law, the very principle of democratic government? or these tedious rules are to stay on the books when results can be achieved "merely by asking", as the over-zealous ISPs seem to comply? or rules are being followed in some covert way, we don't understand?
The communications used to block access not only fail to show legal authority for these orders, but they also try to subvert the requirements of law. Blocking actions must be documented by those who perform them. Time and again we have seen the desire of the authorities to cover such attempts. If that's the kind of 'emergency' to which they are referring, then we have a bigger problem than some malevolent rumor-mongering.
The problem of combating rumor is a classic problem, for which more speech is a time tested and appropriate approach. GoI, instead of fulfilling its duty of supplying accurate, useful information by channels that every Indian citizen can benefit from, in the interest of public safety and social order, is telling people to send fewer SMSs. Instead of deploying an efficient public communication strategy, it is busy issuing orders to censor the world wide web.
The current methods will gain some co-operation from multi-national social networking businesses, who are eager to demonstrate that they are good community participants. They will behave responsibly regardless of whether the government policy is well judged and they will follow the law. But in the long run, it is impossible to ask them, given the volume of communication in the global internet, to substitute silence for the government's responsibility to inform its citizens.
In the 21st century, you cannot censor your way to public tranquility.
Various Civil Society organizations including Sflc.in have been trying to help GoI, DIT in particular, in making responsible policies with respect to Intermediary Liability Rules. But how do we work with a government to make appropriate rules when they show they won't follow them? Is the Government being ill-served by its advisers, who are leading it into a position in which they cannot expect people of good will, who have believed in the Government's seriousness to take seriously anything it says or does?
When economists talks about regulatory overbearance and warn about a regulation a day keeping the business away, there are lessons to be learned for all sectors. This micro management of the public discourse through businesses will only push India out of the global discussion and not lead to any kind of public tranquility. The cataclysmic cost to the economy, to the free speech ideas, and a tarnished international image of the largest democracy will be hard to ignore. This will only turn us into a society incapable of achieving anything, economic prosperity, liberty or security.
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