Securing cyber freedom

BRP Bhaskar
Gulf Today

India’s Internet community, now believed to be 300 million strong, heaved a sigh of relief last week as the Supreme Court struck down a notorious legal provision which was hanging over their heads like the sword of Damocles.

The provision, Section 66A of the Information Technology Act, made electronic transmission of messages which are grossly offensive or menacing or aimed at causing annoyance or inconvenience an offence punishable with imprisonment of up to three years and a fine. It was smuggled into the 2000 Act through an amendment, which Parliament passed without close scrutiny.

It was obnoxious for two reasons. One was that it used vague terms such as ‘grossly offensive’ and ‘causing annoyance or inconvenience,’ which could be stretched to cover almost anything.

The other was that it empowered the police to register a case on receipt of a complaint and arrest the alleged offender without even a preliminary enquiry.

The provision was widely misused by the police under the influence of politicians, including those who were not holding any office. At the instance of the Shiv Sena, the Maharashtra police arrested two young women for their disapproval of the Mumbai shutdown in mourning for the party’s founder, Bal Thackeray. A small industrialist in Puducherry was held for a tweet which said former Union minister P Chidambaram’s son, Karti, had made more money than Congress President Sonia Gandhi’s son-in-law Robert Vadra. A Keralite working in a Gulf State was enticed home for circulating the photograph of a palatial building falsely claiming it was Communist Party of India-Marxist leader Pinarayi Vijayan’s house.

In response to a Right to Information Act query a newspaper was informed that in a two-year period 137 cases under Sec 66A were registered in five of Delhi state’s 11 police districts. Data relating to the other districts was unavailable.

India’s Constitution guarantees the citizens freedom of speech and expression but allows the state to place reasonable restrictions on all freedoms in the interests of national security, sovereignty and integrity, friendly relations with other countries, public order, decency or morality. The court held that the restrictions imposed by the vaguely worded Section 66A go beyond the limits of reasonableness and had a chilling effect on free speech.

The court verdict elicited contradictory responses. Avid social media users hailed it as a Magna Carta for our times. Self-appointed protectors of the order mourned that the state was no longer in a position to defend itself against the depredations of irresponsible Net users.

Both responses are based on inadequate appreciation of facts. The best part of the judgement is that the police can no longer arrest a person on the basis of a mere complaint. However, the state can still block writings it does not approve of. Section 69A of the IT Act and the rules framed under it give the government the power to itself block or order intermediaries such as Facebook or internet or telecom service providers to block access to any information generated, transmitted, received, stored or hosted in any computer resource.

Also intact are Section 79 and the rules which cast on the intermediaries a duty to remove or disable access to certain kinds of material within 36 hours of being notified by the government or its agencies. These provisions also exempt the intermediaries from liability if they follow stipulated conditions.

The court let these provisions stand even though, like Section 66A, they are couched in vague terms. However, it said, they must be “read down.” Analysts took this to mean that the intermediaries need act on a government directive only if it is backed by a proper notification or court order.

Critics of the IT Act have argued that no separate cyber law is needed as the ordinary laws of the land have enough provisions to protect national sovereignty and integrity, friendly relations with other countries, public order, decency and morality. However, the court said there could be a separate law to deal with cyber crimes.

The problem really is not the intent of the law but the propensity to misuse its provisions. While the court verdict has reduced the scope for police intervention there is still room for politicians to play around.

Cyber freedom inevitably carries with it the threat of misuse by reckless users. But the consequences of such misuse are often exaggerated. Activities by state and non-state agencies possibly pose far greater threats than malicious individuals. -- Gulf Today, Sharjah, March 31, 2015.

Fight for cyber freedom

BRP Bhaskar
Gulf Today

When the Indian government pushed the Information Technology Act through Parliament in 2000 its main aim was to regulate e-commerce. During the Mumbai terror strike of 2008, the attackers continuously received encrypted messages from their handlers in Pakistan. This prompted it to amend the law to assume more powers. In the emotionally surcharged atmosphere, Parliament approved the loosely worded amendments without even a debate.

The law covers not only public postings on social networks but also private email messages which may cause “annoyance or inconvenience.” Section 66A, incorporated in 2008, makes it a crime to communicate digitally “any information that is grossly offensive or has menacing character.” Anyone found guilty can be fined and jailed for up to three years.

Section 69 allows the government to intercept, monitor or decrypt information conveyed through digital media and Section 69A empowers it to direct the networks to block access to any information through any computer.

Cyber law experts say these provisions bear the influence of two British laws, the Malicious Communications Act of 1988 and the Communications Act of 2003. The colonial hangover which still afflicts the state 65 years after Independence and the police’s propensity to act in the interests of their political masters render such provisions far more dangerous in India than in Britain.

The police often tag provisions of the Indian Penal Code, drawn up by the British rulers in the 19th century, to cyber law cases. Although IPC has undergone a few revisions since the country gained freedom, it retains its character as an instrument of oppression. State governments routinely invoke its provisions regarding sedition against critics of the government. Cyber giants like Google and Facebook have blocked access from India to hundreds of web pages, responding to requests from the government which alleged they contain objectionable material. While it claims the material violates IPC provisions, most of it is critical of prominent politicians rather than of the central and state governments.

When the Communist Party of India (Marxist) was in power in Kerala, the police lured back a young immigrant from a Gulf State who had forwarded to friends a photograph of a mansion which was wrongfully presented as state party secretary Pinarayi Vijayan’s house. Puducherry police recently arrested a small businessman for alleging in a tweet that Union Finance Minister P Chidambaram’s son Karti has amassed more money than Congress President Sonia Gandhi’s son-in-law Robert Vadra, whom anti-corruption campaigner Arvind Kejriwal has accused of profiting from dubious land deals.

The Maharashtra police hauled up Aseem Trivedi, who posted at his website his own cartoons critical of the state of the nation. The sedition charge against him was dropped following a nationwide uproar, but he still faces charges under the IT Act. The West Bengal government arrested a Jadavpur University professor for circulating material lampooning Chief Minister Mamata Banerjee.

Early this month Information Technology Minister Kapil Sibal had brushed aside criticism of the IT Act saying the fault lay with law enforcers, not the law. Offences under Sec 66A are bailable and cops had jailed the accused due to ignorance, he said. “Just because some people act improperly the law cannot be scrapped,” he added.

Netizens reacted angrily to the arrest of Shaheen Dhada, who wrote in Facebook that Mumbai had shut down on the death of Shiv Sena founder Bal Thackeray out of fear, not respect, and her friend Renu Srinivasan, who “liked” the comment. They considered Shaheen’s assessment fair and contrasted it with the news channels’ fawning coverage of the funeral of Thackeray, whom a judicial commission had found guilty of inciting mob violence. Sibal conceded the arrests were illegal.

The public outcry encouraged two Air India employees, who were held in custody for 12 days in May for allegedly making insulting comments about politicians, to come out with the story of their humiliation.

Sibal has convened a meeting on Thursday to review the working of the IT Act. But the fight for cyber freedom may well be long drawn out. While civil society groups want the government to amend the law to protect privacy and legitimate criticism, Sibal appears inclined to stop with writing to the state governments to ensure that cases are initiated only after clearance by designated officers of the rank of Inspector General of Police. This may not improve the situation. Several of the reported cases of misuse of the law were in fact initiated with the knowledge and concurrence of high-ranking officers.--Gulf Today, Sharjah, November 27, 2012.