India’s new digital rules are bad news for democracy

In 2014, ahead of the general election that would sweep him into power, Narendra Modi said he had a dream. He envisioned, he said, “a Digital India, where access to information knows no barriers.”

In the seven years since, a number of obstacles have emerged. India’s broadband speed is now among the slowest in the world and internet penetration is below 50 per cent, with a stark digital divide becoming clearer in a world forced online by COVID-19. The country needs to invest in this form of connectivity. As the number of internet users continues to swell, the value creation offered by the digital-services industry promises a huge economic windfall, because a more connected population is more empowered and has greater access to knowledge, skills and commerce. As such, wide internet access can be a major boost for a country’s standard of living. But technical infrastructure is not the only limitation. Problems also come from the government’s incessant wielding of internet-shutdown powers to constrict and damage internet freedom.

The data compiled by the Software Freedom Law Center (SFLC), a Delhi-based digital rights group, show that the number of internet shutdowns has jumped from three in 2012 to five in 2013, six in 2014, 14 in 2015, 31 in 2016, 79 in 2017, 134 in 2018, 106 in 2019 and 132 in 2020. Between Modi’s election in 2014 and 2017, 79 internet shutdowns were due to the BJP and its allies at the national, state or district levels. Since 2016, every year India has resorted to internet shutdowns more than any other country worldwide, for two official reasons — public safety and public order. In 2017, the government amended the Indian Telegraph Act of 1885 to specify that the law now allowed “the temporary suspension of telecom services”.

In 2019, internet shutdowns were used to complicate communication among protesters against the Citizenship Amendment Bill — even though their demonstrations were legal and peaceful. In January, access was restricted seven times on the main sites of the ongoing farmers’ protests. Shutdowns are an effective way to control the narrative by curbing communication between protestors, and preventing them from disseminating information about their cause online. That is to say the shutdowns are an excellent tool for a government that wants to suppress dissent.

India shuts down its internet far more frequently than any other democracy in the world. Top10VPN, which monitors global internet access, describes India as being the most restrictive of its citizens’ access to the internet, ahead of authoritarian regimes like Belarus, Myanmar, and Azerbaijan. It also estimated that internet shutdowns in 2020 cost India the equivalent of around Rs 2 crore per hour.

Most notoriously, in the aftermath of the abrogation of Article 370 on August 5, 2019, the government suspended internet access in Jammu and Kashmir. While some landlines were restored and, subsequently, some mobile services too, social media and high speed internet were not, for security reasons. Limited 2G connectivity to a few “whitelisted” websites was restored on January 25, 2020, and 4G was restored as late as February 5. This lack of connectivity has had devastating effects on the economy, health and education, especially during the COVID-19 lockdown. Even the Supreme Court’s ruling that the “freedom of internet access is a fundamental right” did not make the government think twice about its extended internet blackout — a decision that ruined livelihoods and put the lives of medical patients at risk by making the communication of critical health data impossible.

But internet is not the only collateral casualty of the government’s attempt to control information. Freedom House — the US-based non-profit that conducts research on democracy and human rights — asserts that India’s freedom of expression has declined severely and consistently for three straight years, pointing to internet shutdowns alongside the digital targeting of government critics and the promotion of disinformation by political leaders.

Social media is a case in point. On February 25, the government issued a notification outlining a new set of rules intended to regulate digital firms, including social-media platforms and streaming companies. Among other actions, these rules require firms to preserve user data for six months (double the previous requirement); comply with government orders to trace the origin of social media content (including on broad grounds like “public order”); respond within 15 days to any person complaining against content hosted by the provider and allow users to “voluntarily” verify their accounts, introducing worries about companies making such verification de facto mandatory. Indeed, this requires firms to offer a voluntary service for users to “verify” their accounts (like Twitter does with the blue-tick). This provision also exists in Section 28(3) of the Personal Data Protection Bill as tabled in December 2019. This may imply the collection of personal user data. As with Aadhaar, although beginning as a voluntary mechanism, social-media firms may make it increasingly necessary for viewers, opening the door to increasing control over user behaviour.

The Bill did not explain its purpose, but it can be read as violating the principle of data minimisation i.e. the principle that firms shouldn’t collect more data than necessary to fulfil their purpose, as argued by internet researchers Tanaya Rajwade and Gurshabad Grover. Last but not least, the new rules stipulate that OTT and digital-news outfits must register details of their company and accounts with the government, sparking concerns about press freedom. The rules also introduce a criminal penalty, noting that failing to comply can result in prosecution under the IT Act and the Indian Penal Code, and empower the Ministry of Information and Broadcasting to immediately block content if it is deemed that “no delay is acceptable”.

The Internet Freedom Foundation, a digital-rights non-profit, has lambasted the new regulations as being “anti-democratic and unconstitutional”. They characterise the expansion of the IT Act’s scope to include news media and OTT platforms as being an executive amendment of a parliamentary act, and thus impermissible under the Constitution. They also criticise a new ethics code that firms must abide by, particularly a clause warning firms to “exercise due caution and discretion” when featuring issues related to race or religion, an overly broad rule that can encourage self-censorship. The rules also outline the creation of a three-tiered “self-regulating” grievance-redressal system for firms to ensure adherence to the ethics code. But in truth, the system is overseen entirely by officials of a wide range of government ministries, effectively granting judicial powers to the executive.

The introduction of these rules expands the already considerable control the Indian government’s executive branch maintains over digital entities. With the increasing repression faced by protestors and print as well as electronic media, the digital realm has become one of the last arenas of mostly free speech in India. These rules, by ramping up the liability of digital firms for the content that they host or produce, will likely have a severe impact on free expression and privacy, contributing to the rapidly shrinking space for dissent in India today.

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