Defender of your Digital Freedom

All Posts | Feb 19,2019

Submission on Surveillance Industry and Human Rights to the UN Special Rapporteur

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression had invited comments on the surveillance industry and human rights. In 1993 the United Nations Commission on Human Rights established the mandate of the Special Rapporteur that included gathering information on violations, responding to credible information, making recommendations and contributions to provision of technical assistance or advisory services by Office of the United Nations High Commissioner for Human Rights (OHCHR) to better promote and protection right to freedom of opinion and expression.

Last date for submissions from States, civil society, private businesses, and other interested stakeholders was 15th February 2019. The Special Rapporteur requested concise comments on domestic regulatory framework on development, marketing, deployment, facilitation and use of surveillance technologies. The aim of this exercise is to study obligations and responsibilities of States and businesses in the light of human right standards.

We have made our submissions highlighting the domestic laws, regulations, judicial decisions on the use of surveillance technologies in India and their consistency with human rights standards. These submission detailed below will be posted on the OHCHR website at the time of the report’s publication.

All Posts | Jul 14,2018

Meet the latest threat to public safety: Cheating during examinations

On Thursday, July 12, 2018, it was reported by several media outlets that the Rajasthan Police had obtained permission from the Government to suspend Internet Services for two consecutive days i.e. 14th and 15th July as a precautionary measure to prevent cheating during the Police Constable recruitment examinations. Despite initial reports that the shutdowns would remain confined to areas within a five kilometer radius of examination centers, Internet services are likely to remain unavailable across most if not all of the state owing to the apparent infeasibility of hyper-localized shutdowns. The Udaipur Superintendent of Police was quoted by UdaipurBlog as saying, “On both 14th and 15th July, Internet services would be unavailable in the city. Initially, we tried to ban Internet services in only those areas of the city where the centers of these exams were. But since the city has 24 exam centers, it would be difficult to ban Internet in specific areas. Hence, it is possible that the Internet would be unavailable in the entire district.

While Internet shutdowns have become almost a standard state response during law and order situations in India, it is still highly unusual to see a shutdown being imposed to prevent cheating during examinations. That being said, this is not the first time an Internet shutdown was ordered in Rajasthan to prevent cheating during examinations. Earlier this year on 11th February, 2018, Internet services were suspended in the districts of Jalore, Dhaulpur and Sikar for several hours to prevent cheating during the Rajasthan Eligibility Examination for Teachers (REET).

It is worth taking a look at this point at the legal framework governing Internet shutdowns in India, so as to understand how shutdowns come to be imposed for reasons such as preventing cheating during examinations. The relevant laws to consider are Section 5(2) of the Indian Telegraph Act, 1855 (hereinafter, “the Act”), and the Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017 (hereinafter, “the Rules”).

According to Section 5(2) of the Act, Central/State Governments or their authorized officers can, among other things, prevent the transmission of any telegraphic message or class of messages during a public emergency or in the interest of public safety, if it is considered necessary or expedient in the interest of (1) sovereignty and integrity of India; (2) security of the State; (3) friendly relations with foreign states; (4) public order; or (5) preventing incitement to the commission of an offence. As the term “telegraph” is very broadly defined under the Act, Section 5(2) can be interpreted to authorize Internet shutdowns as well.

The procedure to be followed when suspending Internet services under the authority of Section 5(2) is specified by the Rules. According to the Rules, Internet services can be suspended only by a reasoned order issued in writing by the Central or State Home Secretaries, or by an authorized officer not below the rank of Joint Secretary in unavoidable circumstances. The Rules also specify among other things that the Centre and States shall constitute Review Committees that will meet within five working days of the issue of Internet shutdown orders to review compliance with Section 5(2) of the Act.

It is evident from the language of both the Act and the Rules that suspension of telegraph/telecom/Internet services was contemplated only as a response to public emergencies or in the interest of public safety. A vast majority of Internet shutdowns recorded in India since 2012 have also been consistent with this line of thought, as the primary motivation behind these shutdowns has been preventing the circulation of rumors and misinformation online that in turn could escalate law and order breakdowns. While it would take an incredible stretch of logic to say that “cheating during examinations” constitutes a public emergency or threat to public safety, the fact that such terms and others employed by Section 5(2) of the Act are undefined in the Telegraph Act or elsewhere means that it is entirely up to the subjective interpretation of the issuing authority to determine what qualifies as a public emergency or threat to public safety. Though the Central and State Review Committees established by the Rules are meant to prevent overbroad interpretations of the Act, the efficacy of this review process is entirely questionable as the Committees are required to convene only within five working days of the issue of Internet shutdown orders, by which time most shutdowns would already have been imposed and lifted. Even if the Committee were to determine in such a situation that an Internet shutdown was wrongfully imposed, the damage would already have been done, rendering the finding moot.

Of all the countries in the world, India has the distinction of being home to the highest number of Internet shutdowns, that too by a very wide margin. According to our Internet Shutdowns Tracker, 70 shutdowns were recorded across India in 2017 alone, and there have already been at least 68 shutdowns halfway into 2018. If Internet shutdowns continue to rise in number and frequency as they have rapidly done since 2012, the future of a Digital India will be in serious jeopardy. Internet shutdowns, even as a state response to law and order situations, must be urgently reevaluated considering the extent of harm it causes to the economy and the larger society. It is imperative for our law makers and enforcers understand that Internet shutdowns, while offering an extent of control in the short term, will cause incredible damage to the nation in the long term if left unchecked.

All Posts | Apr 27,2017

22 social media websites blocked in Kashmir valley for up to one month

On Wednesday, April 26, 2017, the Jammu and Kashmir Government directed Internet Service Providers to block access to 22 social media sites in the Kashmir Valley for up to one month. The move reportedlycame in the wake of widespread circulation of videos depicting abuse of Kashmiris by Indian military personnel, which fueled unrest in the Valley. As per orders issued by J&K’s Principal Home Secretary R K Goyal, the following list of 22 websites stands blocked for a period of one month or until further orders, whichever is earlier:

  1. Facebook
  2. Twitter
  3. WhatsApp
  4. QQ
  5. WeChat
  6. Qzone
  7. Tumblr
  8. Google+
  9. Baidu
  10. Skype
  11. Viber
  12. Line
  13. Snapchat
  14. Pinterest
  15. Telegram
  16. Reddit
  17. Snapfish
  18. YouTube (uploads)
  19. Vine
  20. Xanga
  21. Buzznet
  22. Flickr

The order, issued under Section 5(2) of the Indian Telegraph Act, 1885 read with Rule 419A of the Indian Telegraph Rules, 1951, noted that social media is increasingly being used by anti-national elements to disturb public order and tranquility, that such misuse of social media comes with no accountability on the part of the miscreants, that such incidents have been observed to cause large-scale damage to life and property, and that the use of these social media sites therefore needs to be immediately regulated/curbed.