Wednesday, April 27, 2011

New internet rules open to arbitrary interpretation

Six years after an e-commerce CEO's arrest for a pornographic CD sold from his website, the government has introduced a liability on intermediaries such as Facebook and Google to "act within 36 hours" of receiving information about offensive content.

Fresh guidelines, which are part of Information Technology (guidelines for cyber cafe) Rules 2011, will require cyber café owners to "tell users" not to surf websites that contain "pornographic or obscene material". Experts termed the rule arbitrary, saying that watching pornography is not an offence in India.

According to the rules notified on April 11, all cyber cafes in the country will have to register with an "agency as notified" by the government. While some of the guidelines deal with the security threat posed by "anonymous internet users", most aim to make sure that people don't use cyber cafés to access pornographic material.

One glaring example of an ill-thought-out provision is the prohibition on saying something that is "insulting any other nation". Since this expression has been mentioned without any qualifications, it could be invoked against anybody who talks disparagingly about other countries.

Apart from encroaching on free speech, the subjective notion of insulting a nation — as opposed to valid criticism — opens scope for arbitrariness and politically motivated interpretation. The authorities may not, for instance, take action against any content that is bashing Pakistan but may be touchy about similar attacks on the US.

Since such violations and the remedial action taken on them could become a subject of police probe, the rules state that "the intermediary shall preserve such information and associated records for at least 90 days for investigation purposes".

Given their legal repercussions, activists termed the new rules "draconian". Pranesh Prakash of Centre of Internet and Society alleged, "The rules seek to expand government's reach to control content on the internet. This is neither reasonable nor constitutional as the rules undermine the free speech guaranteed by the Constitution."

The intermediaries are also required to appoint a grievance officer and publish his contact details as well as the mechanism by which "users or any victim who suffers" can notify their complaints. The grievance officer is required to redress the complaints within one month of the receipt of the complaint.

Industry sources hold that the 36-hour deadline imposed on the intermediaries to take action on complaints would unduly affect their freedom as service providers in the Indian jurisdiction. A Google spokesperson told TOI that the proposed guidelines could be "particularly damaging to the abilities of Indians who are increasingly using the internet in order to communicate, and the many businesses that depend upon online collaboration to prosper."


Pawan Duggal, a lawyer who specializes in IT laws, said the new guidelines were arbitrary. "Watching pornography is not illegal in India," he said. "It's absurd to ask cyber café owners to tell their customers not to access pornographic material even as law allows individuals to access adult websites unless it's not child pornography. The new rules require a second look."

The new rules suggest café owners install filtering software and keep a log of all websites accessed by customers for at least one year. Café owners have also been asked not to build a cabin/cubicle with a height of more than four and half feet. In a cyber café where there are no cubicles, "owners will have to place computers with the screens facing outward" or towards open space. The move is aimed at reducing privacy a cyber café user can get.

Duggal said if implemented earnestly, the new rules will put most of cyber café owners out of business.

Internet activists termed the guidelines "unconstitutional". Pranesh Prakash, a programme manager with Centre of Internet and Society, said the rules will violate privacy and will hamper internet users' ability to freely express themselves.

The new rules make it mandatory for user to carry an identity card. Cyber café owners have been asked to give user logs to the "registration agency" every month as well keep these records along with the log of websites accessed at the cyber café safe for a period of one year. A few café owners said that technically, it would be a daunting task to keep a record of every website accessed using their computers for a year.

While minors, if carrying identity cards have been permitted to use computers in a cyber café, they won't be allowed inside cubicles if not accompanied by guardians or parents. There is also provision of photographing cyber café users using a webcam or other device. The photographs will have to be authenticated by the user. Prakash said that photographing users raises serious privacy questions, especially in the case of children.