A ludicrously worded petition filed by Kamlesh Vaswani before the Supreme Court asks the government to ensure that all online pornography is blocked in India. The petition proclaims that pornography is “worse than Hitler, worse than AIDS, cancer or any other epidemic”. It is surprising that such a petition has been entertained at all and is being taken seriously.
Although the petition was filed over a year ago, the hearings still have much ground to cover. Some parties are yet to reply and the final arguments have not been made. The next hearing is on Thursday.
The Supreme Court, in the meantime, has permitted the government to ask the Cyber Regulation Advisory Committee for its views on this colourful petition. A look at the committee’s composition makes it clear that its members may not be the best people to offer solutions in a case that has important bearings on freedom of expression in India.
Who is not on CRAC?
The Cyber Regulation Advisory Committee was constituted on 17 October, 2000, under Section 88 of the Information Technology Act, 2000. After meeting twice in 2000 and 2001, it let several years go by with no meetings at all. It was reconstituted in 2012.
The IT Act envisages a committee consisting of “official and non-official members representing the interests principally affected or having special knowledge of the subject-matter as the Central Government may deem fit”. It is meant to advise the government on rules and other purposes under the IT Act.
Although the statute permits a diverse membership, the committee’s composition is confined to government and industry members and the odd technical member. This is clear if you look at the minutes of the committee’s last meeting on September 5. There is no-one with any expertise in human rights or constitutional law with the capacity to offer an independent opinion in the interests of citizens. The consequences of this also are visible in the minutes. Except for a brief intervention from Kamlesh Bajaj of NASSCOM, the committee did not consider the wider impact of content blocking on freedom of expression.
The Lok Sabha’s committee on subordinate legislation said this about the CRAC in 2013: “It is not clear... whether, in the reconstituted CRAC, there are members representing the interests of principally affected or having special knowledge of the subject matter as expressly stipulated in Section 88(2) of the IT Act.”
The records of CRAC’s meeting last September begin with a factual error as the Committee describes itself as consisting of “members from all sections of the Society, including Government, Industry, Civil Society and Academy”. Unless the Computer Society of India, a technical body, can be seen to represent civil society and academic interests, there are no civil society or academic members in CRAC.
The committee’s findings and the manner in which they are framed pose a serious threat to human rights. It is unwise to leave decisions implicating freedom of expression to a committee devoid of members who might press for safeguards against state-led interference in human rights.
Who will decide the list of porn sites?
The Minister of Communication and Information Technology, Ravi Shankar Prasad, who was chairing the CRAC meeting, invited the Internet and Mobile Association of India, an industry association, to prepare a list of pornographic content to be blocked by all the Internet Service Providers in India. Although the words used suggest that IAMAI is to “monitor and collect the list of pornography sites from various sources”, these sources are not specified.
The words used in the minutes also imply that IAMAI will be the final arbiter of which sites contain content that justifies their blocking at the Internet Service Provider level so that they are not visible in India. Having prepared the list, IAMAI is to hand it over to the Department of Electronics and Information Technology, so that it may initiate action to block these websites.
The list of blocked websites in India is not ordinarily put before the judiciary or the public, shrouding the process in opacity. The blocking process under the IT Act requires maintenance of confidentiality and makes it difficult for online intermediaries or the Internet Service Providers to divulge what content has been blocked. This information is not even revealed upon the filing of a Right to Information request. This greatly reduces opportunities to hold the government accountable when legitimate expression is blocked. It also offers extensive opportunity for over-censorship of Internet content.
Who should make constitutional decisions?
Whether a particular website contains constitutionally protected information that we as citizens have the right to receive is a decision for constitutional courts to make, not an industry organisation. Additionally, since industry organisations are inevitably subject to government influence in the form of permits, taxation and regulation that can affect their profits, they are hardly in a position to make these decisions as independently as courts would.
A constitutional court must not outsource its judgement on freedom of expression online to an industry association even if it convenes others to help make this decision. It must also avoid allowing the executive to take over this role, determining without any transparency what content is blocked. This, unfortunately, is how content blocking takes place in India: it is an opaque system in which the executive is able to avoid any scrutiny or accountability for its decisions. In such a situation, the executive could easily take to blocking political speech, citing public interest, without anyone realising what is going on.
This system of blocking websites has been challenged before the Supreme Court in separate petitions that have been clubbed with the Shreya Singhal case. If freedom of expression online is to receive any meaningful protection, the Supreme Court will need to consider how public scrutiny and accountability may be built into the Indian system for blocking online content.
Hopefully, the Supreme Court of India will read CRAC’s decision with some scepticism, bearing in mind the serious flaws in its composition and the dramatic threat to freedom of speech and expression if an industry association is asked to lead efforts to determine what speech may be blocked.
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