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Posts by Vijayashankar Na

Intricacies of Net Neutrality and Need for a Constitutional Amendment

After three weeks of intense debate, the discussion on Section 66A has passed onto the next stage of what further action is required to be taken. Further discussions will perhaps resume based on what the Government does or what Supreme Court does suo moto. In the meantime an equally raging debate has emanated on the issue of Net Neutrality.

Knowingly or unknowingly the Supreme Court bench on Section 66A has already declared that any content posted through internet or mobile either on a website or to another person by way of communication are to be considered as “Free Speech” and can be regulated only within the exceptions provided by Article 19(2). The Net Neutrality debate cannot therefore be discussed ignoring this legal position.

A proposal by Airtel to introduce a data plan which may provide incentives for subscribers to visit specified websites with a subsidized cost has sparked off a debate on whether this move is a step towards breaking the net neutrality.

The Airtel proposal is now with TRAI which has called for public views. DeiTY has also formed its own committee to deliberate on the issue and the media is adding colour to the debate.  www.netneutrality.in has taken up a crusade against the proposal and invited the public to submit responses to the consultation paper published by TRAI. The last date for submission of comments is 24th April 2015. Copy of the consultation paper is available here.

A beautiful and informative video has been prepared and posted on you tube by AIB (All India Backchod) that explains the concept.

In short, “Net Neutrality” is a concept which demands that “There should be no discrimination built into access of data on the Internet”.  All data should be considered equal. I should not be asked to pay more for accessing one website than another.

Today it may appear that the Airtel Zero Plan is only a commercial deal between a few websites and Airtel and the consumer will get a lower charge to use some data services and pay higher charges to use some other data services.

But once the idea of charging more for WhatsApp and Skype is admitted, the commercial interests will slowly dig their heels and ensure that all decisions on the Internet would be determined by how much paisa you can pay to the service provider. It will usher in a new era of “Corruption” in the internet access system in which smaller players have no chance to survive.

The Digital divide between the digital haves (established players on the web space who can pay for easy access to their resources by public) and the digital have nots (who cannot pay this additional tax) will widen.

For example, the bandwidth may be diverted by the service providers in such a manner that if you want to visit  a preferred website and pay Rs x per KB of data,  you will pay Rs 2x (or more) per KB of data if you want to visit www.naavi.org or www.prpoint.org. There is no doubt that ICICI Bank will ensure that accessing State Bank of India would be more expensive.

All Government websites will be reduced to second class sites since no body in the Government will take the lead to pay extra to Airtel and other service providers just to keep parity with private sector. Smaller people will lose out because they will not have the resources to compete.

In the end, all “Money Haves” will become “Digital haves” and create a cartel. If anybody expects that consumers will benefit by being able to visit some websites for free or at below par rates, they will be fools. For the business, the subsidy they pay to the service provider today is an investment for the future and they will recover far more from the same consumer in some manner even if they have to wait a little to eliminate other smaller players.

Alternatively if every body with money power registers their sites with all the the service providers, for better service to their customers, there will be a new licensing regime managed by the private sector and the consumer will end up picking up higher cost for all the services. This will be a second level domain licensing system which will kill the Internet as we know till today permanently.

In fact, several years ago, a similar attempt was made by Internet Service Providers to block VOIP services. The issue was partially resolved by bringing it under the licensing parameters but the discrimination still persists.

Already this discrimination is being practiced in different forms. One example may be the system of Google Ads where by certain links are placed ahead of  search results. Many Apps run a free version supported by Ads and a paid version where Ads are removed.

The Digital TV transmission is another area where the service providers call the shots and maintain a differential pricing for different channels.

The debate therefore is an intricate battle between free speech advocates and the commercial interests.

In fact some free speech advocates who supported Scrapping of Section 66A as a curb to freedom of speech,  have already switched to  supporting the Airtel Plan on the grounds of “Freedom to do business”.  Commercial interests have a great power to corrupt our long term vision. We need to guard against it.

While we complain about discrimination on the Internet, we must remember that this is the last bastion of the “Equal Rights for All” principle. Though we swear by our constitution and say all Citizens are equal, we find various excuses to discriminate one citizen against the other. The entire system of reservations whether it is based on caste or religion or gender, they are all based on an acceptance that some are more equal than others.

Our Supreme Court swears by Article 19(1) and at the same time allows a Section 498A to be present in our laws which is a monument of gender based discrimination in law. If Airtel announces that they will provide concessions and reservations to certain caste and religion, then all our politicians will start speaking of our Constitution and why net neutrality should not be applied in our country. Even our Courts will uphold such arguments because such discrimination is in built in our constitution which has long given up its principle of “Equality and Justice for all”.

As long as this hypocrisy remains in our system, it is difficult to prevent the gradual breaking down of net neutrality concept.

If we want to preserve the net neutrality, we need to fight for an “Amendment to our Constitution” to incorporate “Access to Internet at a minimum bandwidth as a fundamental right”. Like the thoughts that prevail in some EU counties, Internet should be free and available to every citizen. May be a reasonable cost is acceptable but not with an inbuilt discrimination.

We therefore need to fight the current Airtel plan under three fronts.

The immediate requirement is to get the proposal rejected by TRAI because it is a curtailment of freedom of speech by cost manipulation and anti constitutional under Article 19(1) of our constitution.

Secondly, we need to set up a “Netizens Rights Commission” which is a long standing demand of Naavi.org first raised after the 2008 amendments to ITA 2000 in the context of Section 69A and then again as a “Charter of Demands by Netizens”.

Thirdly the Parliament has to debate a constitutional amendment to incorporate the requirements of the Digital India and the Right of Netizens.

I would invite all the net neutrality protagonists now to come together and start a process for writing a draft  “Constitution for the Netizens of India” which is truly representing democratic principles of “Freedom and Equality for all” which is not present in the current constitution that guides us as Citizens of India. Such a constitution for the Netizens of India can completely ignore the caste, creed and religion of people and treat all Netizens as equal. A template for such a Cyber Democracy was also presented through these columns long time back and have been consigned to the archives. We may revive it now and create a constituent assembly of the Netizens of India to write the Constitution for the Netizens of India. Then probably we will be able to develop a draft which can be integrated into our existing constitution or can be a model on which our existing Constitution can be made a constitution of a “Democratic,Non Discriminatory Society”

Naavi

 

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All Articles on Section 66A at one place

Over the last one month, several articles have appeared on Naavi.org and also elsewhere discussing Section 66A. In order to have all these articles at one place, I am trying to put together this page with links to both articles within Naavi.org and outside (through Google)

Articles in Naavi.org:

Site Search Google (New Posts) :66A:

Site Search Google (Old Posts) :66A:

Google Search Section 66A+vijayashankar

 

Google Bing
Google News Section 66A

Google Web Section 66A

Google Videos Section 66A

Google Images Section 66A

Bing Web Section 66A

 Bing News Section 66A

Bing Videos Section 66A

Bing Images Section 66A

 

 

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Options before Government.. after Section 66A being struck down

The two member bench of the Supreme Court of India consisting of honourable Justices J.Chelameswar and R.F.Nariman, struck down Section 66A of ITA 2000/8 on March 24, 2015, in their judgement in the batch of petitions lead by Shreya Singhal Vs Union of India on the grounds of it being anti constitutional.

Though this decision was hailed by many as a victory for free speech, Naavi.org considered that the decision represented a mistake on the part of the bench identifying that Section 66A was responsible for the arrest of some innocent persons in certain cases highlighted by different petitioners which were considered by the Court.

According to our perception, the arrests were made by ignorant, uninformed,unintelligent policemen under political pressure and the  Court was unable to call the bluff of the Policemen. They instead endorsed the correctness of their decision, found all the fault on the presence of the section in the statute and killed it.

The fact that the sudden removal of the section has been greeted  as a “Freedom to Abuse” has created a void in law and could have adverse consequences on India’s progress in the digital space has been well recognized.

We suppose even those who hailed the decision as “Victory for Freedom of Speech” will agree that it was unfortunate that offences such as Cyber stalking, Cyber bullying, Spamming and Phishing have been either removed from the books or have been made dependent on IPC.

I suppose even the honourable judges who gave the judgement should have realized by this time that their decision to refuse reading down and opting for striking down was an unwarranted use of excessive judicial force.

As an academician, I am  still unhappy that Supreme Court made a mistake and that has gone on record as a precedent and will haunt us in the days to come. Certain words which the judgement has said on the “Vice of vagueness”, “Judicially Trained minds coming to dramatically opposite conclusions” , and the debatable approach of the Court ignoring the “intent of a section” as expressed in the title and the words by arbitrary interpretations from the definitions clause will be ringing in the Courts in subsequent proceedings as “Precedents” until such time it is modified in a new Judgement. This will proliferate the effect of an erroneous decision for a long time.

Now the ball is before the Government which has to think of the next steps and determine how to respond to the situation they have been pushed into.

It has been reported that the Ministry of Home in the Union Government has taken the first steps to respond with the formation of an internal committee to consider re drafting the provisions.

See news report

Hopefully the Government will find a quick fix solution since the larger issue of comprehensively amending the ITA 2000/8 will take a long time.

In this connection it is possible that the Government may think of an ordinance to introduce a new Section 66A though the opposition as always may keep objecting for their political reasons.

Though the drafting of a new Section 66A through an ordinance will be an easy option for the Government, the Supreme Court taking up a self review and reading down the section would have been a better option to erase the impression that Supreme Court misread the section and came to a wrong decision which was corrected by the new legislation.

However, in the end, it is the goal attained which is important.. though the means to attain were less optimal….

….(With apologies to Mahatma Gandhi who held the “means” as important as the “goals”)

We therefore welcome the move of the Government and urge it to complete the re drafting of the new Section 66A which should address the concerns related to “Offences committed with Messages sent through internet, Communication devices etc”.

While redrafting, the following explanations can be added to the section

1. This section shall address to information which is sent from one person to another using the medium of  internet or any communication device and shall not include content posted on a website or a blog or social media vehicles.

2. “Information” used in this section shall mean only such information that has an effect to deprave and corrupt the minds of the recipient and incite him to contravene any law in force and not such information which are expressions of scientific, literary or such other matters pertaining to the betterment of society.

3.Nothing in this section shall affect the freedom of speech as guaranteed under the Article 19(1) of the Constitution.

4. Sending a “Grossly Offensive” or “Annoying” message in the context of this section means  intentionally sending any communication with words, silence or otherwise that is intended to cause mental anxiety, mental agony or mental disturbance to the recipient beyond a level of tolerance any ordinary prudent person under similar circumstances is considered capable of tolerating and thereby inciting him to commit an offence.

These explanations could also be presented as an addition to a “suggested new draft” which the Government may submit for a “Curative Petition” before the same bench or for a “Review” before a larger bench of the Supreme Court and if accepted, the need for an ordinance, Bill and its notification would be avoided. If required, the Court can “Read down” the section to incorporate these explanations into the section.

This may be the quick and most efficient solution for the problem that has now arisen.

 

Naavi

Also Read : Section 66A of the IT Act likely to be back in softer avatar

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Aftermath of SC decision on Shreya Singhal V Union of India: Section 66A impact

The Advanced Center for Research, Development and Trainin in Cyber Laws and Forensics, (ACRDTCLF) of the National Law School of India University (NLSUI), Bangalore held a round table on 11th April 2015 to discuss the aftermath of the Supreme Court decision on Shreya Singhal v Union of India  case in which Section 66A of ITA 2008 was struck down.

Several Professors from NLSUI and industry experts participated in the deliberations. NLSUI is in the process of collating the views and developing a white paper on the impact of the decision.

During the deliberations, Professor Nagaratna presented the details of the judgement and her views on the impact. This was followed by a presentation by a research student, Ms Saachi Poudal on the impact of the decision on the society on women and children in particular. Mr Srikumar, former DGP of Karnataka and former CVC provided his views from the law enforcement perspective. Naavi provided his perspective on the jdugement as a long time observer of the Cyber Law scenario. Professor T V Subbarao shared his views as an expert in Constitutional matters along with Professor S.B.N. Prakash. Mr S Balasubramanya of TCS and Mr Ranganath of IBM presented the industry views on the judgement particularly on Section 79. Mr Shivakumar, advocate presented the views from the Human Rights perspective.

All the participants were unanimous in their view that the Judgement was erroneous for multiple reasons> Many felt that the way out is for a new drafting. Naavi indicated that if new law has to be drafted it has to be a comprehensive revision of ITA 2008 and is unlikely to be completed before a couple of years. Alternatives suggested were for filing of a curative petition or a review. Since this was a two member bench decision, it was felt that there is a scope for a review by a larger bench.

NLSUI will consolidate the view after which the future course would be determined.

Naavi

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The Chilling Effect that the Supreme Court has left: Section 66A impact

In its judgement on Shreya Singhal Vs the Union of India, the two member bench of the Supreme Court has accused that the Section 66A of ITA 2008 has a chilling effect on the freedom of expression in the country.

It says “Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect in free speech would be total”.

These are strong words and coming from the mouth of the Supreme Court, it is a huge indictment of the section.

However with due respect  to the Court, I beg to differ and differ as strongly to say that it is not that Section 66A would have a chilling effect on the society if endorsed, but it is this judgement which will have a chilling effect on the Digital Society if it is not reviewed.

What the judgement has shown is that if the Judges start a trial with a pre-disposition that a certain conclusion is the correct decision , then everything seems to point out to the same direction. Logic appears to flow in everything towards one side of the argument. In the end there is a Deja Vu statement..

This is very much evident in this judgement and it makes a great academic exercise to analyze the judgement.

For example, when the admissibility of the petition was discussed it is reported that the Judges said, “We ourselves wanted to take up this issue”. ..

What they also implied was, Thank you, you have given us an opportunity to say what we always wanted to say … that Freedom of Speech is everything for a democratic society…Internet is a domain where freedom of speech must thrive…etc..

These  are good statements to make and are welcome..But at the same time this also means we are not concerned about Cyber Crimes.. and on the plight of the victims of cyber crimes…Whatever crimes can be committed with free speech on Internet… are to be tolerated… .

What the Court has done through this judgement is that they have considered “All information placed on Internet as Speech protected by Article 19(1) of the Constitution”. Such information may be a website, may be a blog, may be the  Social media such as Facebook and Twitter, may even be the “Clicking of I Like” on the face book page.

In reading this judgement, I am reminded of the story which most of us have heard in our childhood..about  a boy who had prepared for an essay on “Cow” and in the examination. He was asked to write an essay on “Coconut tree” for which he was not prepared. he wrote, ” There was a tall Coconut tree and a Cow was tied to the coconut tree… and went on to write everything else about the Cow”. He passed with flying colours.. as the story goes..

I find that this judgement is similar. The Court wanted to strike down Section 66A because it perhaps in good faith and wisdom felt was the cause for the plight of the Palghar girls, Cartoonists in Lucknow and Kolkata and the Puducherry tweeter. It then started hearing the case and once the hearing was over, wrote down its erudite judgement upholding free speech. Since it wanted some peg to hang the new judgement on which the Court has spoken many many times in the past, it took Section 66A and hanged it.

Without going deep into the judgement in this article, I list down my observations.

1. Section 66A is a very narrow section that addresses only certain type of electronic documents such as E Mails and messages sent through a mobile like device. It is not entirely an Internet matter and includes mobile devices and perhaps a closed network within a corporate intranet. even in this category of messages it picks only on some messages which have the properties such as “Being Grossly offensive or Menacing”, “False and sent persistently”, “Sent to deceive and to mislead the origin of an email”.

Despite this clarity, the Court saw the entire gamut of information in this section and said it affects scientific, literary and other discussion and advocacy. It is clear that the Court jumped to several conclusions not based on the facts before it.

The judgement therefore is ab-initio built on an incorrect perception of the section and its objectives. It was unfortunate that the Government was unable to place its views properly because every body went with the assumption that Police who filed the 10 odd FIRs which were the subject matter of so much animosity on Section 66A, were correct and all the mistake was in the Section itself which was “draconian” and “meant to curb freedom of speech”.

This was therefore a judgement which was heavily influenced based by the prior judgement of the Policemen and not based on an independent assessment.

2. The Court never worried about the fact that if an offensive section is removed, it is the victims of the cyber crimes who would be adversely affected and they are also part of our Citizenry. They are also in much large numbers than the petitioners of this case. If a series of annoying SMS messages saying “I Love You” are sent to a newly married lady at all times of the day including when she is sleeping with her husband, it is unbelievable that this Court declares that to be “Free Speech”.

Tomorrow if that girl commits suicide, it would perhaps be a considered as  victory for the free speech by all those who are hailing this judgement.

I wish the Court wakes up before such a tragedy happens and if such an unfortunate thing happens then it should haunt all those who are today hailing this judgement as a “Land Mark” and upholding the highest principles of democracy.

3. What is surprising is that at many places it appears that the Judgement conveniently picks up points that support its view and forgets points that are not favourable. It is like finding excuses just to reach the pre determined goal. There is no consistency across  the judgement.

At one place it says other sections are less vague than Section 66A  in what appears to be a misplaced faith on other sections. It agrees that Internet presents an intelligible differential with Print and other media but does not agree that there can be laws for the Cyber Space which are different from IPC.

It appears that the Court has complete faith in IPC and if the same words are used in IPC, they are considered precise and  acceptable but not in ITA 2000 where they are considered vague. There is  justification that words such as “annoyance” are part of the word “nuisance” in IPC and are therefore acceptable but not in ITA 2008 where they are used to describe independent offences. I am not sure how  “nuisance” is less vague than “annoyance”.

What is clear however is that the Court is familiar with IPC and not so familiar with technology and ITA 2008 and hence it looks at IPC as clear and ITA 2000 as vague and nebulous. Through out the judgement it is surprising that there are no references to any Computer Abuse Acts of other countries.

4. The judgement discusses at length the concept of “Public Order” just to demolish Section 66A and say the section cannot be saved under that point. But it fails to discuss at length “incitement to an offence”.

My reading is that many criminal acts such as an assault or  murder actually happen because of rage and anger induced on a person by the victim for some reason. For example the father of a girl may resort to murder because the daughter elopes with a boy because he is “annoyed” to such an extent that he commits a criminal act. This is how “annoyance” can be an “incitement to offence”. Similarly annoyance through SMS/E Mail can also incite the recipient to commit an offence.

The Court refuses to even consider such possibilities of how “Annoyance” or “inconvenience” or “insult” or Injury”, danger, obstruction, criminal intimidation, enmity, hatred or illwill etc can lead to an incitement to an offence. If the Court had been able to give adequate weightage to mental aspects of criminals before they commit a crime,  they would have considered that the section 66A  is saved by Article 19(2) under “incitement to offence” clause.

5. The Court simply refuses to exercise its mind and give meaning to expressions such as “persistently”, “Grossly offensive” etc.

For its own reasons which are difficult for us to understand, it resorts to comments such as will 8 times be considered “persistent”?..and so on. Even when other Courts have interpreted words such as “Grossly Offensive”, this Court finds an argument to reject it saying if two judges can differ then there must be some thing wrong with the word.

Have we not heard about two judges of a bench coming to diametrically opposite views on the same set of facts, law and evidences? What is vague in such cases? is it the law or the words used in the law or words used by witnesses?..

Is it not desirable that such different opinions exist even amongst judges? If not, why do we have an appeal Court over turning the verdict of a subordinate court?

In coming to such conclusions as the Court has done,  the Court gives a feeling that there is no consistency in the thinking that flows across the judgement.

6 The final blow to the Section 66A comes with the refusal to read down the section and consider severability. It is as if the Court wants nothing less than the striking down of the section and this is not negotiable though the two other equally contentious aspects of ITA 2000 before the court namely the Section 79(3) and 69A were considered negotiable.

7. What leaves a Chilling effect on the community is a feeling that this judgement has demonstrated that even the Supreme Court can commit gross errors of judgement which we normally associate with the lower Courts.  The utmost faith all of us have in looking upto the Supreme Court of India for delivery of Justice however late it comes and however expensive it is has been lost.Unfrtunately, when a lower Court makes a mistake we hope there is a higher Court to correct it. But if the Supreme Court make a mistake, we have no where to go..

This leaves us in a state of depression that we have a Judiciary which is unable to interpret ITA 2000 beyond what we already know in the form of IPC.

When we think that in the coming days, the Government is pitching for E Commerce led growth, and the same Court has to interpret terms like the Internet of Things, Big Data, Smart Cities and crimes associated with such terms, we wonder where will they be able to search for terms in IPC which they can understand in the context of Cyber Space.

Long long time ago, before the birth of ITA 2000, Naavi  was advocating “Cyber Laws for the Netizens and by the Netizens” for the simple reason that those who donot know what is cyber space may not be able to write suitable laws. Today the Judgement confirms that more than those who draft the laws, if the Judges of the physical space cannot interpret the laws of the cyber space and exhibit a “role set” in meta society laws such as IPC, the future looks bleak.

About two months back, I released an article on Cyber Law Vision 2018 required for India to one of the magazines of a law college. Now after this judgement, it appears that this vision is shattered.

The casualty of this judgement in the long run is the development of our economy in the digital area and the archaic laws which our archaic Courts will be unable to interpret in the new environment. This will in turn will pull down our development. Just as  few years back,  an MNC in Gurugaon pulled out from India and shifted its operations to Australia because they felt that Indian Police cannot interpret Cyber Crimes, the future generation of corporate entities may shift out of India  to countries which provide them an environment of  law and order (which includes judiciary) that they can trust.

In fact, if we have to resurrect this depressing scenario we need to not only upgrade our ability to interpret existing laws but also upgrade our Constitution itself.

I donot think there is any reason that we should not consider the Constitution which was drawn much before the concept of Cyber Space was known should not be amended to include new concepts that are relevant for the cyber age. We need to start discussions in this direction.

I would therefore call upon the Government to consider a Constitutional amendment rather than a simple amendment to ITA 2000/8 to accommodate the needs of the coming society. Without such a basic change in our legal infrastructure, any amendment to ITA 2000/8 would be only a half hearted attempt which is unlikely to bring about any significant change.

I wish the Chief Justice of India recognizes the developing situation and order a suo-moto review of the judgement  to restore the faith and confidence we all have in the Indian judiciary and lost because of this Landmark judgement.

Naavi

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National Law School, Bangalore to deliberate on the “Aftermath of Section 66A Removal”

Considering the importance of assessing the impact of recent Suprme Court’s decision in the case of Shreya Singhal vs Union of India1 , the Advanced Centre for Research, Development and Training in Cyber Laws and Forensics [ACRDTCLF], National Law School of India University, Bengaluru is conducting a Consultation Programme on the theme “AFTERMATH OF SUPREME COURT’S DECISION IN SHREYA SINGHAL VS UNION OF INDIA” on 11th April 2015 at Bangalore.

The programme aims to come up with a white paper on the programme theme and also propose necessary changes to law and present the same to Department of Electronics and Information Technology, Ministry of Information Technology, Government of India, New Delhi for further action.

Following persons are expected to share their views:

1. Dr. T. V. Subba Rao, Senior Professor, NLSIU

2. Dr. S.B.N Prakash, Senior Professor, NLSIU

3. Dr. V. S. Mallar, Senior Professor, NLSIU

4. Shri. R. Sri kumar, Former DGP, Karnataka

5. Shri. Na. Vijayashankar, Cyber Law Consultant, Bengaluru

6. Shri. M. D. Sharath, Dy S.P., Cyber Police Bengaluru

7. Shri. S. Balasubramanya, Vice President, TCS Bengaluru

8. Shri. Ranganath M. A, Consultant, IBM Bengaluru

9. Dr. Nagarathna. A., A., Chief Investigator, ACRDTCLF, NLSUI

Dr. R. Venkata Rao, Vice Chancellor, NLSIU will be inaugurating the half day workshop.

Naavi

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