Observers fear intermediary rules that include proactive monitoring, user verification and tight timelines that dictate how quickly a company should take down material authorities deem questionable.
Freedom of expression advocates in India say they are concerned about the future of online dissent and privacy following recent government measures on internet use and governance.
In recent months, discussions have focused on the updated intermediary rules and a new data protection bill.
Through the intermediary rules, the government is looking at changing regulations on the liability placed on companies and social media networks for content posted by end users. Intermediary companies are defined as those on which two or more users interact and have more than five million users, such as Github, Wikipedia, Facebook, Twitter and YouTube. The data protection bill, meanwhile, seeks to protect citizens from companies and government agencies possessing their data without consent.
Observers fear the developments will have a negative impact on the country’s 500 million-plus internet users. They come at a time when the ruling Hindu nationalist party, the Bharatiya Janata Party (BJP), is facing international condemnation for its ongoing communication lockdown in Kashmir, and amid large-scale protests across India against its Citizenship Amendment Act (CAA). Anti-CAA protestors say the bill is anti-Muslim and against the country’s secular constitution.
Udbhav Tiwari, a public policy adviser at Mozilla based in Delhi, told TRT World: “The upcoming changes to the intermediary guidelines and the new data protection bill will have a wide ranging impact on how users will experience the internet in India."
In the current form, he said: “The draft intermediary guidelines pose a serious threat to the freedom of expression, anonymity and privacy of India users and should be urgently reformed. The draft data bill, meanwhile, is still quite weak on the government and leaves the legal vacuum around surveillance in India intact, which is incompatible with effective data protection.”
Apar Gupta is the executive director of the Delhi-based public advocacy organisation, Internet Freedom Foundation. He added: “Internet freedom has been rapidly declining in India. This is not only undermining individual liberty, it's also undermining the promises of several core government policies such as ‘digital India’, which hopes to deliver a high amount of government services through digital mediums as well as encourage a great amount of service sector industries.”
A final draft of the intermediary rules is expected to be published in the coming weeks. While some elements may be tweaked, analysts say they are concerned that many of the problematic aspects will remain.
Tiwari said some of the main issues with the intermediary rules include proactive monitoring, user verification and tight timelines that dictate how quickly a company should take down material authorities deem questionable. He says the provision mandating the traceability of the originator - which will require the company to share with the government from whom the information on its platform originated - could have a major impact on privacy, and ultimately the ability for users to express online dissent.
“The government started looking at the issue after a number of people were lynched to death because of rumours that were spread via Whatsapp,” he explained. “The government said they would need to regulate social media platforms more to find out who was starting these rumours. This is an issue the government is serious about fixing so these changes are almost certainly going to be enacted soon. This may end up impacting encryption, which in turn would impact the privacy of users, their ability to be anonymous and their ability to confidentially communicate with each other.”
The data protection bill was introduced in Parliament two months ago and is now under review by a joint parliamentary committee. The bill seeks to protect personal data, requiring companies and government agencies to get consent from citizens before collecting and processing their data.
Tiwari says that “while it is quite strong on companies and will lead to meaningful ways for users to exercise their fundamental right to privacy”, there are concerns around the independence of the data protection authority, data localisation, forced data transfers of non personal data and optional verification of identity for social media users.
One of the major concerns, however, is that the bill empowers the state to exempt itself from any provision of the law for many reasons, including for ‘national security and public order’. It has led to claims that the bill is ‘dangerous’ and that it could turn India into an ‘Orwellian state’.
Gupta said: “There are big concerns that the reform provisions and the existence of these large categories of exemptions on government entities will be ineffective in predicting the power imbalance that exists today in India, where the government has immense powers to gather personal and sensitive information about citizens.”
The moves come at a time when India’s reputation for online freedom under Prime Minister Narendra Modi has taken a big hit. Last year, research from the Internet Shutdown Tracker showed that India had shut down the internet nearly 100 times last year - more than any other democracy in the world. Indian-administered Kashmir has now been without the internet for six months, and the communication blockade continues to have large-scale impact on everyday communication, local businesses and the tourism industry. Anti-CAA protests in major Indian cities have also triggered temporary internet switch-offs.
Gupta added: “The digital medium of communication is increasingly being seen by the government as something it wants to control to, to ensure that a level of political control and messaging is possible. This is having the natural consequences of undermining fundamental rights towards free expression as well as privacy. It is undeniable that internet freedom in India is under threat today and 2020 maybe one of the most pivotal years in which in any meaningful measure is retained, or if it completely vanishes.”