On Monday, The Indian Express reported on the Centre’s proposal to amend the Intermediary Rules, 2011, that govern how online platforms and internet service providers adhere to the Information Technology Act, 2000. The proposed rules give the government the power to censor a wide range of information it considers objectionable and break the encryption of online content to trace its origin. Security experts fear this could lead to pre-publication censorship, hurting the very idea of free speech on the internet.
In August 2017, the Centre set up a 15-member expert panel to propose amendments to the Information Technology Act. The members are required to submit individual recommendations by the end of this year. Scroll.in spoke to three of these members to better understand the processes involved in amending the Intermediary Rules.
All said they had not been consulted about the draft rules, the most contentious of which require online platforms to actively deploy technology to track content that seems to be unlawful and to break end-to-end encryption conventions in order to track the sources of contentious social media posts and messages.
The members questioned how intermediaries such as social media platforms and internet service providers could be allowed to determine what constitutes lawful content, since this is a function of the state and the judiciary.
“As far as deciding unlawful content is concerned, how can servers of intermediary platforms be turned into courts?” one of them asked.
The experts, who would only speak anonymously, pointed out that the problem of fake news and how to hold intermediaries responsible for it has been on the panel’s agenda since it was formed. But they did not know specific rules were being drafted to track content deemed unlawful and break end-to-end encryption. These specific rules, they added, were never discussed with them nor were their recommendations sought.
Tool of surveillance?
Rules framed under a law do not have parliamentary oversight. This is what makes the proposed changes even more worrying. Already, the existing 2011 rules prohibit the hosting and publishing of content considered unlawful. In the draft, the term is expansively defined. The rules direct the intermediary to “observe following due diligence”:
Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that,
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
Clearly, these norms give the government wide room to regulate online content. The proposed changes make it a a legal obligation for online platforms to trace the source of such content to fix responsibility. The draft amendment to Section 5 states that “the intermediary shall enable tracing out of the originator of the information on its platform as may be required by government agencies who are legally authorised”.
Citing national security, the government has already allowed 10 central agencies to intercept, monitor and decrypt any information generated from any computer in the country.
The government could justify the proposed changes to the 2011 rules by pointing to the potential of fake news to create social discord. However, the language of the proposed provisions could allow them to become a tool of surveillance by government agencies.
Who, for example, is to decide what is libelous? To those in power, even fair criticism may seem like libel. Making it compulsory for online platforms to identify the origins of particular content and share that information with the government would have a chilling effect on free speech on the internet.
Curbing fake news
In India as elsewhere, most online platforms have laid out community guidelines that broadly adhere to the country’s legal, social, political, cultural and ethical parameters.
If a piece of content attracts complaints or becomes controversial, the platform assesses it against its guidelines and, if it is deemed to violate them, takes it down. Some platforms also employ algorithms that prevent certain content, say nudity, from being published in the first place. “But to decide whether something is lawful or not is a whole different game and the decision would often be challenged,” one of the experts said.
Another member of the panel noted that the Information Technology Act already has provisions to compel intermediaries to share information with government agencies. In addition, he said, some members have recommended that online platforms be directed to install servers in India to reduce legal wrangles over jurisdiction. Over the last few months, there have been several cases where police have expressed their inability to find online offenders because of intermediaries have refused to cooperate. The police have said companies such as Google were refusing their requests for logs of Internet Protocol addresses, a number assigned to each device connected to the internet. The companies claimed that the messages the authorities have wanted to track had originated outside India.
Some panel members have also recommended hash value tracking, the expert said. A hash value is a unique numeric value that identifies every unit of data. Hash value tracking could limit the circulation of fake news to a large extent without violating privacy, he added, since it does not require breaking end-to-end encryption, a feature that is the very foundation of platforms such as WhatsApp. This means the content of the data being tracked would not be exposed to third parties, the expert explained, unlike what the proposed rules entail.
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