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All Posts | Aug 27,2018

Panel Discussion at APrIGF 18: Internet Restrictions in Asia Pacific Region and How to Mitigate.

The Asia Pacific Regional Internet Governance Forum (APrIGF), 2018 was held in Port Vila, Vanuatu from 13th to 16th August.

Each year, the APrIGF serves as a multistakeholder platform for discussion, exchange and collaboration at a regional level and also where possible, to aggregate national IGF discussions that ultimately advance the Internet governance development in the Asia Pacific region.

This year, on the Day 3, 16th August 2018 Mr. Maheeshwara Kirindigoda (ISOC Sri Lanka) organized a panel discussion titled “Internet Restrictions in Asia Pacific Region and How to Mitigate.” The Panel constituted Mr. Maheeshwara Kirindigoda (ISOC Sri Lanka), Mr. Waqas Hassan (PTA, ISOC Islamabad), Mr. Shreedeep Rayamajhi (ICANN, ICT4D, Rayznews) and Ms. Tripti Jain (SFLC.in). The discussion was moderated by Mr. Rajnesh Singh (APrIGF, ISOC Asia Pacific)

The panelists for the session focused on three main issues:

  • How Internet Restrictions or Shutdowns have become a Global concern?;

  • Why is the Government resorting to the idea of Internet Shutdown; and

  • What are the effective ways to mitigate the issues/reasons for shutdowns instead of resorting to such shutdowns?

Mr. Rajnesh Singh began with an introduction to the issue of Internet restrictions or shutdowns and how these order for bans affect people globally. He then went on to cite various instances of shutdowns across the globe highlighting concerns arising from these impositions. He also brought to notice that Access to Information & Communication Technology is a Human Right, sanctioned through ITU by United Nations. In this sense, Internet shutdown result in a denial of human rights.

Tripti Jain (SFLC.in) shared experiences from India with respect to Internet Shutdowns. She emphasized that India has seen the highest number of Internet Shutdowns in the world. She then mentioned that SFLC.in has been recording shutdowns since 2012. SFLC.in has recorded 375 instances of Internet shutdowns so far on their tracker, located at https://internetshutdowns.in/. She then highlighted that the numbers from their tracker may not be accurate because it is based primarily on information from secondary sources, i.e newspapers and reports from individuals. Therefore, the tracker fails to take into account many unreported instances of Internet shutdowns. She also discussed the failure of government and the private sector to record and report report instances of Internet Shutdowns in India. She mentioned SFLC.in’s research and stated that we have filed an RTI (Right to Information Application) this summer to the Home Department of Rajasthan (a large state in India) as a result of which we found that there have been over 26 instances of Internet Shutdowns in 8 months that were not reported by newspapers. She discussed the procedural and executive concerns regarding legal provisions to impose Internet Shutdowns in India.

Mr Waqas Hassan discussed about the scenario in Pakistan with respect to Internet Shutdowns/ Restrictions. Mr. Hassan was representing the Government on the Panel and from his experience, he stated that one must always amicably engage with the government in order to reach a desired consensus. He also highlighted that over the years Pakistan has seen positive changes and that there has been a considerable decrease in the number of shutdowns ordered, however there's still a long way to go. While talking about restrictions on the Internet, he mentioned about the Judicial stances during the times of spread of misinformation.

Mr. Maheeshwara dealt with concerns of Sri Lanka along with the rest of the world with respect to the issue of Internet restrictions. He emphasized upon the reasons behind such orders. He cited various occasions on which Internet shutdowns were imposed across various parts of the world. He identified that Governments across the world have claimed national security as the primary reason to impose Internet shutdowns. He also discussed how most shutdowns are politically driven.

Mr. Shreedeep discussed his concerns with increasing number of Internet shutdowns in India and across the globe. He also stressed upon the economic impact of these shutdowns.

Key Takeaways:

  • Internet Shutdowns have become a global concern in today’s digital age with a rapidly rising number of shutdowns across various nations.

  • Governments of the world often claim national security as the primary reason to push the kill switch, however in various nations including India, Internet shutdowns are often ordered for frivolous reasons such as prevention of cheating during examinations.

  • It has also been observed that Internet Service Providers and websites often attempt to notify their users before restricting access for maintenance of their networks. However, when Governments order shutdowns, there is often no prior notice.

  • The ripple effects of orders to impose an Internet shutdown are very severe. It leads to economic loss, lives are at risk during riots and disasters, it hampers education and affects healthcare, and the ability to exercise one’s rights such as free speech is hampered, among others.

  • There is a need to study the effectiveness of Internet Shutdowns to ensure national security viz-a-viz economic loss ensued by the state in the process.

All Posts | Aug 09,2018

Parliament ’s last opportunity to Modify/Annul Telecom Suspension Rules 2017?

Prior to the notification of Temporary Suspension of Telecom Services, Internet shutdowns were ordered under two statutes i.e Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885. The situation changed after the promulgation of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter, the Telecom Suspension Rules) by the Ministry of Communications, on August 7th, 2017. These Rules conferred powers upon competent Government authorities to order blanket network outages in districts and states of India,these Rules are the only directions to suspend telecom services in India.

According to these Rules, directions to suspend telecom services shall not be issued except by an order made by a ‘competent authority’. Thus, according to Rule 2(1) the directions to suspend the telecom services shall be made only under these Rules and according to the procedure mentioned therein. This also implies that directions for suspension of telecom services, consequently network shutdowns, may not be ordered under any other provision of law, including Section 144 of CrPC 1973.

Though, these Rules lay down an elaborate procedure to suspend telecom services, there are still several areas of concern.

Firstly, these Rules were drafted by the Executive without any public consultation. When Rajya Sabha MP. Mr Husain Dalwai questioned the Government in the Parliament about the consultation process that was undertaken in finalizing these Rules, the Government responded saying that there was a consultation with the Ministries of Home Affairs, Finance, Communications, Electronics and Information Technology and NITI Aayog. This implies that there was no public consultation. Not only there was a lack of public consultation, there was no consultation with the state governments as well. Despite the fact that Internet Shutdown orders are imposed to maintain law and order in states and the fact that Public order and Police are mentioned as items under State list as per Schedule VIII of the Constitution of India, none of the states were consulted in the formulation of these rules.

Secondly, the Rules allow suspension of Telecom services during a public emergency or in the interest of public safety. While the terms “public emergency” and “public safety”, at least one of which must be present to issue an Internet shutdown order, are not defined under the Telegraph Act or any other law, they were interpreted by the Supreme Court of India in the matter of People's Union for Civil Liberties v. Union of India[fn]AIR 1997 SC 568[/fn] to mean "the prevalence of a sudden condition or state of affairs affecting the people at large calling for immediate action", and "the state or condition of freedom from danger or risk for the people at large" respectively. Even with the Supreme Court’s guidance, these terms remain open to broad interpretation by the Government, and there is no objective standard to determine if a given situation qualifies as a public emergency or threatens public safety.

Thirdly the Rules provide that the oversight of telecom suspension is to be carried out by a single Review Committee, which comprises entirely of the members of the Executive. This severely compromises the independence and impartiality due to apparent conflict of interest when the authorization, conduct and review is carried out by a single arm of Government machinery. The public oversight principle is therefore not complied with.

Fourthly, there is a concern with respect to implementation of these Rules. We discovered this when we filed an application under Right to Information Act 2005 to the Rajasthan Home Department in April 2018, asking the following question among others:what is the exact number of Internet Shutdowns that were ordered in Rajasthan during 07.08.2017 to 01.05.2018?”. We received a response from the Home Department stating that our applications had been forwarded to various district-level departments, and that we would be receiving the requested information from those departments. We received responses from various district Police Commissioners and District Magistrates, instead of Secretary of the Rajasthan Home Department. This implies that the Internet shutdown orders are being issued by the District Magistrates and District Police Commissioners in spite of the Rules being in force.

Fifthly, 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.

Lastly, the new Rules also fail to accommodate the principle of transparency. There is no provision under the Rules which provide for notification of shutdowns in press or official gazettes. Considering that TSPs offering Internet services in the country do not consistently issue notifications before shutdowns are imposed, users in affected areas are often caught unaware and have little to no time to make arrangements to mitigate the impact of shutdowns.

This concludes that though these Rules are better than the archaic provision of Section 144 of Criminal Procedure Code, 1973, a provision of law which was clearly not designed to oversee State actions like Internet shutdowns. But at the same time, these rules continue to sustain various flaws that need to be addressed.

A Rajya Sabha MP, Mr. Husain Dalwai, introduced a statutory motion asking for annulment of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter, the Telecom Suspension Rules) on July 31st 2018 in the Rajya Sabha. Though the motion has been admitted in the Rajya Sabha, it has not been listed in the list of business of the Rajya Sabha yet. There are only two days before the end of this monsoon session and these days are the last two days for a discussion on this motion.

At the end of every session of Rajya Sabha, the Secretariat publishes a list of Statutory Rules and Orders made under the delegated powers of legislation, laid on the Table of the Rajya Sabha during that session and the period during which modification can be made in those rules and orders.[fn]Chapter 26, Rajya Sabha at Work, List of Statutory Orders laid during a session, Page no. 794(23 of 59) https://rajyasabha.nic.in/rsnew/rsat_work/archive/chapter-26.pdf [/fn]

Similarly, after introduction of Telecom Suspension Rules 2017, the Secretariat on Tuesday, December 26, 2017, after the end of Winter session 2017, issued a bulletin stating that The Telecom Suspension Rules made under the delegated powers of legislation and published in the Gazette were laid on the Table of the Rajya Sabha during the week ending December 15, 2017. The Orders will be laid on the Table for a period of 30 days, which may be comprised in one session or in two or more successive sessions. Members can move a motion for modification/annulment before the expiry of the session, immediately, following the session in which the laying period of 30 days is completed.[fn]Section 7, Indian Telegraph Act 1885, Power to make rules for the conduct of telegraphs: Subsection 11 Clause (5) states, “[Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days [which may be comprised in one session or in two or more successive sessions, and it, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]"[/fn] The Rules were laid in Winter Session that convened on 15th December 2017 and ended on 5th January 2018 which means 22 days and 14 sittings in Rajya Sabha. As per the bulletin the period of 30 days for tabling a statutory order continued in the budget session. Therefore, the end of this session would mark an end to the opportunity for the Parliament to modify / annul these Rules.

Thus, noting the emergency of the situation, it is important for the Business Advisory Committee of Rajya Sabha [ a Committee that recommends the time that should be allocated for the discussion of the stage or stages of such Government Bills and other business as the Chairman in consultation with the Leader of the House may direct for being referred to the Committee.] If no time is allotted to the motion in concern, this motion will lapse and these Rules can no longer be challenged in Parliament.

 

 

All Posts | Jul 14,2018

RTI reply from Rajasthan Home Department reveals 26 unreported Internet Shutdowns

We at SFLC.in have been tracking incidents of Internet shutdowns across India in an attempt to draw attention towards the number and frequency of shutdowns, which are imposed for reasons ranging from curbing unrest to preventing cheating during examinations. This data is made publicly available in the form of an interactive Internet Shutdown Tracker hosted on our dedicated website www.internetshutdowns.in, which also features additional resources on the topic. (more…)

All Posts | Feb 09,2017

[Press Release]: ‘Internetshutdowns.in’ launched by SFLC.in as a one stop destination for resources on Internet shutdowns in India

‘Internetshutdowns.in’ launched by SFLC.in as a one stop destination for resources on Internet shutdowns in India

New Delhi, February 8: Delhi-based not-for-profit legal services organization SFLC.in today launched ‘internetshutdowns.in’, a new portal to provide policy makers, academics, media-persons and the public at large with a repository of instances where blanket bans on Internet services, either mobile or fixed line, were imposed in India. Till date, their data reflects 62 incidents of Internet shutdowns across various regions in 12 states in the country, with 30 being reported in 2016 itself, and 4 instances in the first month of 2017.

‘Internetshutdowns.in’ also hosts a continually-updated Internet Shutdown Tracker for India. This tracker offers detailed records of all Internet shutdowns reported from 2013 and presents this data on an interactive map. It also contains resources such as an analysis of the legality of such incidents in the country, along with a study of these shutdown trends in India based on the medium that was restricted, duration of shutdown, as well as the nature of the measure, i.e. if it was a preventive or reactive action. It revealed that the number of shutdowns increased more than two fold from 14 in 2015 to 30 in 2016.

Mishi Choudhary, President and Legal Director at SFLC.in said, “There is a global consensus that access to Internet is a human right, in a digital and connected world. Yet, many countries block Internet services as responses to conflict situations, or even for trivial reasons such as to prevent cheating during examinations. Unfortunately, these shutdowns not only imperil civil liberties, but also grievously hurt the economy, as a recent report by the US policy think-tank Brookings Institution showed. The shutdowns in 2015-16 cost Indian businesses an estimated amount of $968 million (Rs 6,485 crore). As the pace of shutdowns increases, the costs will mount, particularly given the new emphasis on transactions by Internet payment systems linked to Aadhaar. Shutdowns are a very imprecise means of achieving any social end, imposing immense collateral damage. In democracies, essential social facilities should not be turned off by the State, which acts in the peoples’ interests. The dependence on mobile Internet services for public safety and order, education, business, and family life is a fact of our existence. It should not be intentionally broken by government, pursuing one form of ‘law and order’ at the expense of all other social functioning.”

“Internet shutdowns are a global, not merely an Indian problem,” said Ms Choudhary. “SFLC.in has been working with Access Now on its global campaign to study and reverse the adoption of shutdown policies around the world. We acknowledge their assistance and leadership in this area.”

This resource portal also provides users with the option to report an Internet shutdown in their vicinity to keep the shutdown tracker up to date with disruptions SFLC.in has recently written to the Additional Secretary of Ministry of Electronics and Information Technology, Dr. Ajay Kumar requesting him to take requisite action to ensure that stable and reliable Internet services are assured to citizens, especially at a time when the Digital India programme is encouraging e-governance initiatives and the Government is advocating for transactions through cashless modes.

Per SFLC.in’s record, the state of Jammu and Kashmir has experienced highest number of shutdowns (27 since 2012). Out of the total 62 shutdowns recorded since 2012, 44 were targeted at mobile Internet services, 8 targeted both, fixed-line and mobile Internet services, while no conclusive information was available for 10 incidents and no shutdowns targeting fixed-line services alone were recorded during their period of study.