In an increasingly digital world, the issue of Internet freedom and governance has become hugely contested. Censorship and denial of access occur across the political spectrum of nations, even in liberal democracies. In the run-up to the just-concluded World Conference on International Telecommunications in Dubai, there was a frenzied campaign to ensure that governments kept their hands off the Internet. It was feared the International Telecommunications Union, a UN body, was aiming to take control of the Internet. That hasn’t happened. But the outcome in Dubai has highlighted once again the double speak on freedom by countries that claim to espouse it and by corporations interested in protecting their interests, says Latha Jishnu, who warns that the major threat to the Internet freedom comes from the wide-ranging surveillance measures that all governments are quietly adopting. Dinsa Sachan speaks to institutions and officials to highlight the primacy of cyber security for nations, while Moyna tracks landmark cases that will have a bearing on how free the Net remains in India
Clash of the cyberworlds
For months now a little-known UN agency, the International Telecommunication Union (ITU), has been looming large in cyberspace, portrayed as an evil force plotting to take over the Internet and threatening to destroy its freedom by rewriting archaic regulations. ITU, set up in 1865, is primarily a technical body that administers a 24-year-old treaty, International Telecommunication Regulations (ITRs), which are basic principles that govern the technical architecture of the global communication system.
How did the 193-nation ITU, which regulates radio spectrum, assigns satellite orbits and generally works to improve telecom infrastructure in the developing world, turn into everyone’s favourite monster in the digital world? The provocation was ITU’s World Conference on International Telecommunications (WCIT) in Dubai, where ITRs were proposed to be revised. Leaked documents of the proposals made to ITU had shown that statist countries like Russia and China, known for their crackdown on Internet freedom, had put forward proposals to regulate digital “crime” and “security” aspects that are currently not regulated at the global level for want of consensus on balancing enforcement with protection of individual rights.
Other proposals were about technical coordination and the setting up of standards that enable all the devices, networks and software across the Internet to communicate and connect with one another. Although ITU secretary general Hamadoun I Touré had emphasised that the Dubai WCIT was primarily attempting to chart “a globally agreed-upon roadmap that offers future connectivity to all, and ensures sufficient communications capacity to cope with the exponential growth in voice, video and data”, there was widespread scepticism among developed countries.
|Online subversion in India
AT the seventh annual meeting of the Internet Governance Forum in Baku, Azerbaijan, last November, Minister for Communications and Information Technology Kapil Sibal was a star turn. He made an elevating speech about the need to put in place a “collaborative, consultative, inclusive and consensual” system for dealing with policies involving the Internet.
India, with 125 million Internet users—a number that “is likely to grow to about half a billion over the next few years”—would be a key player in the cyberworld of tomorrow, he promised.
According to the minister, Internet governance was an oxymoron because the concept of governance was for dealing with the physical world and had no relevance in cyberspace. These were high sounding words that crashed against the reality of India’s paranoia over online subversion.
For starters, Sibal flew into a media blitz over Google’s transparency Report which ranked India second globally in accessing private details of its citizens. Even if it was a far second behind the US, it was an embarrassing revelation for the government which appears to have been rather enthusiastic in seeking information on the users of its various services. Such user data would include social networking profiles, complete gmail accounts and search terms used. In the first half of 2012, India made 2,319 requests related to 3,467 users compared with 7,969 requests by the US. Globally, Google clocked a total of 20,938 requests for user data.
A few days down the line there was a public explosion over the arrest of two young women in Palghar, near Mumbai, for posting a prosaic comment on Facebook over Bal Thackeray’s death. Thanks to the deliberately vague wording of Section 66A of the IT Act, such arrests have become common and Rajya Sabha devoted a whole afternoon to discuss the impugned legislation and seek its withdrawal. Sibal’s response has been to issue guidelines on the use of this Section which civil society organisations say will do nothing to sort out matters.
Then there are the IT (Intermediaries Guidelines) Rules, 2011, issued under Section 79 of the IT Act, which have been used indiscriminately by business interests to shut down websites, resulting in unbridled censorship of the Internet time and again. Although a motion for its annulment was moved in Parliament by Rajya Sabha member P Rajeeve, it was withdrawn after Sibal promised to talk to all stakeholders. A host of MPs have termed the rules a violation of right to freedom of speech besides going against the laws of natural justice. The promised meeting of stakeholders has not yielded any results and censorship on grounds of possible online piracy continues. In this regard, India is more restrained than the US which has pulled down huge numbers of domains on the ground they were violating intellectual property by selling pirated goods.
Western global powers, behemoth Internet companies, private telecom corporations and almost the entire pack of civil liberties organisations came together in a frenzied campaign to ensure that ITU kept its hands off the Internet. Massive online petitions were launched, backed by Internet companies such as search engine Google and social networking service Facebook. The Internet, they said, should not become an ITU remit because it would change the multi-stakeholder approach, which currently marks the way the Internet is governed, and replace it with government control that would curb digital freedom. Not only did the US administration oppose the revision of ITRs, the US Congress also passed a rare unanimous resolution against the WCIT proposals.
In the end, it was an anti-climax: nothing much came of these proposals. Although WCIT was marked by high drama—a walkout by the US and six European countries, a show of hands on a contested but innocuous resolution and an unexpected vote—the “final acts” (http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-12.pdf) or the changes in ITRs make no mention of the I word. Not once. The 30-page document states at the outset that “these regulations do not address the content-related aspects of telecommunications” —an indirect reference to the Internet.
Ultimately, it was a triumph of the US-led position even if 89 of the 144 eligible countries signed it. Most of the developed countries refused to sign it. Nor, unexpectedly, did India, and thereby hangs a curious tale. Officials who were privy to the negotiations told Down To Earth that India was all set to sign the new ITRs when its delegation got last-minute instructions from Delhi not to endorse them. “It was unexpected and a let-down for India and our global allies,” confesses an official of the Ministry of Communications & IT. “There was nothing in the final document that we had objections to.” According to the grapevine, Minister for Communications and Information Technology Kapil Sibal was facing pressure from two sides: the US Administration and domestically from civil society, Internet service providers and the private telecom players who had objected to India’s proposals on ITRs. The US is known to be keeping a close eye on what India decides to do on the new treaty which it can still ratify.
In the Dubai treaty, the only ITR that does impinge on the Net is (Article 5B) on unsolicited bulk electronic communications or spam. But even here, what it merely states is that member-states should endeavour to take necessary measures to prevent the “propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.”
In many ways, what took place during the hectic days before and during the December 3-14 WCIT was in a broad sense a replay of the Cold War scenario of the good (freedom-loving countries) versus evil (authoritarian or autocratic regimes), although alliance may have shifted in the two blocs. What is clear is that a larger geopolitical fight is playing out with the Internet as disputed terrain. American analysts themselves have pointed out that the “US got most of what it wanted. But then it refused to sign the document and left in a huff.”
Even the innocuous Article 5A, which calls on members “to ensure the security and robustness of international telecommunication networks”, was interpreted by US delegation head Terry Kramer as a means that could be used by some governments to curb free speech!
As an outraged Saudi delegate said, “It is unacceptable that one party to the conference gets everything they want and everybody else must make concessions. And after having made many concessions, we are then asked to suppress the language which was agreed to. I think that that is dangerous. We are on a slippery slope.” The final outcome: all the contentious issues were relegated to resolutions, which have no legal basis.
Indeed, the US has managed to get its way on most issues: protecting the mammoth profits of its Internet companies and ensuring that control of the Internet address system, now done by a group based in the US, will not be shared with other ITU members. And, the likes of Google (2011 profit: $37.9 billion) and Facebook will not have to pay telecom companies for use of their networks to deliver content.
|Challenges of securing cyberworld
E-commerce in India, where every tenth person is online, is on the rise—and, consequently, crime on the Internet. In 2011, the country’s nodal agency for handling cyber crime, Indian Computer Emergency Response Team, tackled 13,301 incidences of security breach. The incidents ran the gamut from website intrusions, phishing to network probing and virus attacks. Further, in 2009, 2010, 2011 and 2012 (until October), there were 201, 303, 308 and 294 cyber attacks respectively on sites owned by the Indian government. Most notably, hacker group Anonymous defaced the website of Union Minister of Communications and Information Technology, Kapil Sibal.
To beef up cyber security, the Union ministry plans to pump in Rs 45 crore in 2012-13. It also put up a draft cyber security policy for public comments in 2011. Currently, cases involving cyber security and crime are handled under the IT Act of 2000 (Amendment 2008) and the Indian Penal Code.
But will the government go about its business of securing the Net in a responsible manner? There is scepticism. Section 69 of the Act gives any government agency the right to “intercept, monitor or decrypt” information online. Chinmayi Arun, assistant professor of law at National Law University in Delhi, said at the Internet Governance Conference held at FICCI in October that crimes like defamation are not on the same page as cyber terrorism, and “we have to question whether they warranty invasion of privacy”. She added that the workings of the surveillance system has to be made more open to build public trust.
Pranesh Prakash, policy director at Centre for Internet and Society (CIS) in Bengaluru, draws attention to a fundamental flaw in the section. “Government is allowed to wire tap under the Telegraph Act, 1885. But the Act lays out specific guidelines for such an action. For example, you can only tap phones in the case of a ‘public emergency’ or ‘public safety’ situation. The IT Act does not put such limitations on interception of information,” he says.
Cyber security and ITU
A few months prior to the controversial World Conference on International Telecommunications in Dubai, countries, including Russia and Arab states, had proposed measures that would, through International Telecommunication Union (ITU), grant disproportional power to countries to control the Internet in the name of security measures. Several proposals, most notably those of India and Arab States, explicitly stated in the proposed Article 5A that countries should be able to “undertake appropriate measures, individually or in cooperation with other Member States” to tackle issues relating to “confidence and security of telecommunications/ICTs”. It raised alarm among civil society. US-based think tank Center for Democracy and Technology (CDT) said in its report dated September, 2012, that cyber security does not fall under the ambit of International Telecom Regulations, and some countries would misuse such privileges for “intrusive or repressive measures”.
The proposal by African member states recommended that nations should “harmonise their laws” on data retention. In other words, intermediaries would have to retain public data for a long period so that governments can access it whenever they please. With regard to this, CDT noted, “Not only do national laws on data retention vary greatly, but there is ongoing controversy about whether governments should impose data retention mandates at all.”
A clause in the Arab proposal on routing said, “A Member State has the right to know how its traffic is routed.” Currently, the way Internet works, senders and recipients do not know how data between their computers travels or is routed. However, enabling countries to have control over routing has its dangers. CDT notes, “(This) would simply not work and could fundamentally disrupt the operation of the Internet.” Internet traffic travels over an IP network. While travelling, it is fragmented into small packets. Packets generally take a different path across interconnected networks in many different countries before reaching the recipient’s computer. CDT notes providing routing information to countries would require “extensive network engineering changes, not only creating huge new costs, but also threatening the performance benefits and network efficiency of the current system”. Although routing was not part of India’s proposal, Ram Narain, deputy director general at the department of telecommunications, told Down To Earth it was one of the country’s concerns.
However, to civil society’s partial relief, such draconian cyber security clauses were not adopted in the new itr treaty. Two clauses added to the treaty, Article 5A and 5B, address some cyber security concerns. Titled “Security and robustness of networks”, Article 5A urges countries to “individually and collectively endeavour to ensure the security and robustness of international telecommunication networks”. Article 5B talks about keeping tabs on spam.
Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers, says while he would have preferred that the two clauses were kept out of the new treaty, they do not seem harmful. “They are a much toned down version of what Arab states and Russia had suggested,” he says.
This is one reason India, Brazil and other democracies from the developing world also want a change in ITRs. They want the Internet behemoths to pay for access to their markets so that such revenues can be used to build their own Internet infrastructure.
In the furious debate on keeping the Net free of international control even hawk-eyed civil society organisations prefer to ignore the monetary aspects of Net control. Some analysts believe that maintaining the status quo is not so much about protecting the values of the Internet as about safeguarding interests, both monetary and hegemonistic. Such an assessment may not be wide of the mark if one joins the dots. Google, says a Bloomberg report of December 10, “avoided about $2 billion in worldwide income taxes in 2011 by shifting $9.8 billion in revenues into a Bermuda shell company, almost double the total from three years before”. It also said that the French, Italian, British and Australian governments are probing Google’s tax avoidance in its borderless operations.
What is clear, however, is that a number of countries for reasons springing from different motivations, appear determined to undermine America’s control of the outfits that now define how the Internet works. Although the US maintains that ICANN (Internet Corporation for Assigned Names and Numbers) is a private, non-profit corporation, it is overseen by the US Commerce Department. According to People’s Daily, what the US spouts about Net freedom is so much humbug. In an August 2012 report, the leading Chinese daily claimed the US “controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the US, leading to American hegemonic monopoly over the world’s Internet”.
It also highlighted a fact that has slipped below the radar. During the Iraq invasion, the US government asked ICANN to terminate services to Iraq’s top-level domain name “.iq” and thereafter all websites with the domain name “.iq” disappeared overnight. It charges the US with having “taken advantage of its control over the Internet to launch an invisible war against disobedient countries and to intimidate and threaten other countries”.
While this may be true, the irony is that China, with its great firewall of censorship, is in no shape to position itself as a champion of freedom. Like other authoritarian countries, it will do everything to police the Net and control it.
The right of countries and peoples to access the Net was highlighted in Dubai when some African countries raised the issue of US control of the global Internet. Some of these, such as Sudan, have long been complaining about Washington’s sanctions that entail denial of Internet services. ITU officials point out that Resolution 69, first passed in the 2008 meeting, invoked again in 2010 and dusted off once again for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecom/ ICT facilities, services and applications”. Says Paul Conneally, head of Communications & Partnership Promotion at ITU, “The real target of these resolutions are US sanctions imposed on nations that are deemed bad actors. These sanctions mean that people in those countries—not just the government, mind you, but everyone, innocent and guilty alike—are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc.”
The catalogue of Sudan’s complaints shows at least 27 instances in 2012 when companies from Google to Microsoft and Paypal to Oracle cut off their services to the African country. This might explain why major companies would be opposed to the resolution on a right to access Internet services. Such a right would allow countries to use ITRs to compel them to provide services they might otherwise have preferred not to. But so far all such sanctions appear to have been a decision of the US Administration.
The problem of the digital divide, in fact, did not get the headlines it should have. Africa accounts for just 7 per cent of the 2.4 billion people who use the Net worldwide and penetration in the region is just 15.6 per cent of the population. Compare this with North America where over 78 per cent are linked to the digital world and Touré’s logic about the ITU’s mandate appears reasonable.
|When Apple censors the drone war
NETIZENS know that the Internet suffers from the depredations of government, hackers and viruses. But not many are aware that companies are as prone to taking legitimate stuff off the Net on the flimsiest grounds. In the case of Apple it could have been misplaced patriotism or plain business sense that prompted it to block an app which monitors drone strike locations in November last year.
The App Store rejected the product, calling it “objectionable and crude”. Drones+ (see photo) is an application that simply adds a location to a map every time a drone strike is reported in the media and added to a database maintained by the UK’s Bureau of Investigative Journalism. Josh Begley, a graduate student at New York University, who developed the app, says it shows no visuals of war or classified information.
All it does is to keep its users informed about when and where drone attacks are taking place in Pakistan and Afghanistan. “This is behavior I would expect of a company in a repressive country like China, not an iconic American company in the heart of Silicon Valley,” says a petition to the company CEO. Did Apple’s censorship have anything to do with the fact that it received huge contracts from the Pentagon? US legislators have joined the protests against Apple.
The most brazen act of corporate censorship occurred in August 2012 with NASA’s livestream coverage of the Curiosity rover’s landing on Mars in the space agency’s $2.5 billion mission. A news agency, Scripps, coolly claimed as its own the public domain video posted on NASA’s official YouTube channel that documented the epic landing (see our opening visuals). “This video contains content from Scripps Local News, who has blocked it on copyright grounds. Sorry about that,” said a message on NASA’s blackened screen. So much for the strict US laws aimed at curbing online piracy!
Touré noted that the revised ITRs would see greater transparency in global roaming charges, lead to “more investment in broadband infrastructure” and help those with disabilities. But he was hopeful that the new treaty signed in Dubai would make it possible for the 4.5 billion people still offline to be connected. “When all these people come online, we hope they will have enough infrastructure and connectivity so that traffic will continue to flow freely,” Touré said.
But should ITU govern the Net? Not in its entirety, according to experts. For one, ITU until the Dubai meeting was far from being transparent and does not allow participation of civil society or other stakeholders in its negotiations unless they are part of the official delegation of the member-states. In fact, even critics of the current system, who think the system is lopsided and hypocritical, believe ITU needs to reform itself and confine to the carrier/infrastructure layer of the Internet. Nor should it get into laying down standards which is done by Internet Engineering Task Force (IETF) and the naming and numbering that is managed by ICANN.
But Conneally counters this by asking what would happen if the US decided to deny domain name root zone to Iran because of its bad human rights record. “Suppose it ordered Verisign to remove .IR from the DNS root and make it non-functional. Would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?”
Who then should ensure that the Internet is run in a free and open manner? Should it be the Internet Governance Forum (IGF)? But IGF is to be an open consultative forum that cannot by itself govern. It brings in participation for any or all Internet-related policy processes but it by itself was never supposed to do policy or governance.
Parminder Jeet Singh, executive director of ItforChange, says whoever governs is the government for that purpose. “This truism is significant in the present context, because there is an attempt by those who really control/ govern the Internet at present, largely through illegitimate and often surreptitious ways, to confuse issues around Internet governance in all ways possible, including through abuse of established language and political principles and concepts.”
ITforChange is a Bengaluru institution working on information society theory and practice, especially from the standpoint of equity, social justice and gender equality, and it is that perspective which informs Singh’s suggestions. “What we need are safeguards as, for instance, with media regulation. The Internet, of course, is much more than media. It is today one of the most important factors that can and will influence distribution of economic, social and political power. Without regulation it will always be that those who currently dominate it will take away the biggest pie.”
Eight Indian companies are among the 700 members of European Telecommunications Standards Institute. The group works with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure. It also hosts regular meetings on lawful interception
| Wipro Technologies
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|• Accenture Services Pvt Ltd
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|• Saankhya Labs Pvt Ltd
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|• Sasken Communication
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|• SmartPlay Technologies
||Associate Consultancy for Co./Partnership
|• TEJAS NETWORKS LTD
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Other critics of the current system concede that bringing governments on board, especially authoritarian and statist powers which the digital world threatens, would give them perverse incentives to control it. But this threat should be met not by insisting that the Internet needs no governance or regulation, but by safeguards that ensure equitable access and benefits, Singh stresses.
While the jury is out on the question whether the new ITRs will make any material difference to the way, and if at all, the Net will come under added government oversight and intervention, developments elsewhere show that ITU is not the main threat to digital freedom.
The irony is that while cyber security is contentious in ITU, other international organisations, such as the UN Office on Drugs and Crime (UNODC) and a clutch of influential telecom industry associations, are pushing for surveillance programmes that ensure policing of a high order with sophisticated infrastructure to monitor online communications. A host of countries already have such systems in place and are pressuring countries like India to fall in line.
A UNODC report, titled ‘The use of the Internet for terrorist purposes’, has detailed how countries can and should use new technology for online surveillance—all in the name of anti-terrorism. The report discusses sensitive issues such as blocking websites and using spyware to bypass encryption and also urges countries to cooperate on an agreed framework for data retention.
At the same time, powerful industry bodies, such as ATIS (Alliance for Telecommunications Industry Solutions) and the European Telecommunications Standards Institute (ETSI), are reported to be working with government and law enforcement agencies to integrate surveillance capabilities into communications infrastructure, according to Future Tense, a project which looks at emerging technologies and how these affect society, policy and culture. It says India is under pressure from another industry organisation, the Telecommunications Industry Association (TIA), “to adopt global standards for surveillance”, calling on the country’s government to create a “centralized monitoring system” and “install state-of-the-art legal intercept equipment”.
TIA is a Washington-based trade group which brings together companies such as Nokia, Siemens Networks and Verizon Wireless, and is focused on issues related to electronic surveillance and is developing standards for intercepting VOIP and data retention alongside with ETSI and ATIS. At least seven Indian companies are members of ETSI, which is said to hold international meetings on data interception thrice a year.
Add to this chilling list the International Chamber of Commerce. It is reported to be seeking the establishment of surveillance centre hubs of several countries to help governments intercept communications and obtain data that is stored in cloud servers in foreign jurisdictions. Given this backdrop why are the US and its cohorts creating a ruckus on ITRs?
It would also mean that by focusing on ITRs and ITU as a major threat to Internet freedom civil society may be jousting at windmills.
Malice and freedom of speech
Two suits highlight the challenge of treading between the two
Among the many legal cases in India related to the use and misuse of the world wide web, two stand out for involving web giants and provoking sharp reaction. These are the cases registered in Delhi district courts in December 2011, objecting to chunks of content—portraying prominent political figures and religious places among others in a certain light—hosted on websites. One was filed by a Delhi journalist, Vinai Rai, requesting the court to press criminal charges against 21 web agencies, including Google, Facebook and Yahoo! India. The other, filed by a social activist, M A A Qasmi, was a civil suit requesting action against 22 web agencies. Both mentioned that the content on the websites was inflammatory, threat to national integrity, unacceptable, and created enmity, hatred and communal discord.
A year on, tangible impact has not been much. The number of accused in the civil case has come down to seven web agencies and in the criminal case the government is yet to issue summons to the companies concerned (see ‘The case so far’). However, these litigations are seen as landmarks in the recent history of the Internet and its interaction with societies and governments. The cases—especially off-the-record comments by the judiciary suggesting blanket ban and pre-screening of all content—provoked a debate on the freedom of expression and Indian cyber laws.
| The case so far
JANUARY 13, 2012: Delhi High Court dismisses petition by Google and Facebook asking to be absolved of criminal charges filed in district court
JANUARY 20: High Court asks for reply from Delhi Police in response to plea by Yahoo! India challenging district court summons
FEBRUARY 16: Court refuses to stay proceedings against Facebook and Google but allows them to be represented by counsel
MARCH: Court dismisses criminal charges against Yahoo! India and Microsoft but says the charges can be revived if new evidence comes to light. Sets aside summons
Malicious content exists on the web and may even need to be taken down, but the laws used to remove malicious content can also be used to curb political speech, thus, infringing on the right to freedom of expression, says Prasanth Sugathan, senior advocate with Software Freedom Law Centre, an international network of lawyers.
Some like Pranesh Prakash of non-profit Centre for Internet and Society believe the IT Rules are at odds with the IT Act and give powers for censorship. He explains that the IT Act, 2000, provides for protection of intermediaries; web browsers, social networking sites and websites cannot be held responsible for what a third party publishes on their forums—“similar to the way in which we cannot sue a telephone agency or a post office for someone else making use of these platforms to harass or defame another person”. But the IT rules of 2011 watered down this protection.
Supreme Court advocate and cyber law expert Pavan Duggal explains how. The Act states once a complaint is made against certain content, the web agency hosting it must notify the person who put up the content, verify the content and judge whether it needs to be removed. But the rules state that once the web agency is notified it must remove the content within 36 hours or it could be prosecuted for not acting on the complaint. The rules have gone beyond the Act’s scope, especially vis-a-vis privacy and data protection, leaving no scope for hearing out the accused, he says.
The disjunct between the Act and the rules is being contested in various spheres, including Parliament. But there is a bright side too. Duggal believes the cases have brought pertinent issues, like free speech and privacy concerns, into the public domain. Ramanjeet Chima, policy adviser for Google, says freedom of expression is paramount for Google but the recognition of local sentiments is also being given equal weightage.
Senior advocate Sidharth Luthra, who was representing Facebook in the Delhi High Court, wonders whether the existing Indian laws are in tune with the ever-changing online world. Unwilling to comment on the case, he says the law is limited in its scope, while technology is not. Refusing to comment on the cases, the Google adviser emphasised the need to use the existing provisions of big web agencies to address grievances regarding content.
The Internet “is not the wild wild west”; all content, users and viewers can be traced, Duggal cautions. Since the Internet can impact political issues government is increasingly looking for ways to control it. “There is no ideal solution but it is evident that some monitoring and regulation are required, and in all parts of the world all regimes are in the process of addressing this,” he says.
India sets an example
Author(s): Anja Kovacs
When India first circulated an unofficial draft of its proposals for the treaty in September 2012, it looked like India too was in favour of an expansion. Civil society and industry in India were alarmed that the government seemed to plan to support the inclusion in the treaty of ICTs, the Internet’s naming and numbering system and security issues at various levels of the network—each of which could have a dramatic impact on the way Internet functions.
But a subsequent close engagement on their part with the government seems to have borne fruit. The positions that were put forward in Dubai by the Government of India in the end were far more nuanced, effectively taking into account many of the concerns that civil society and industry had put on the table. Sticking points definitely remain. For example, though the government agreed in most cases to restrict the application of provisions regarding security to the physical layer of the Internet, it nevertheless continued to espouse inclusion of provisions regarding spam in the treaty—a move that effectively expands the scope of the treaty to the content layer. Yet many positives can be counted as well. For example, the government also clarified that it sought the inclusion of ICTs in ITRs only to the extent that they relate to the physical layer of the network; other aspects of ICTs, including content, would remain out of the treaty’s purview. Similarly, reflecting another important recommendation, India expressed its support for inclusion in the treaty of language which calls on States to uphold their human rights obligations while implementing ITRs. Both positions are important gains from the perspective of users’ rights and are reflected in the final version of ITRs.
Nuance also marks India’s position on the treaty as a whole. While the country put on record its satisfaction with the text of the treaty and four of the resolutions passed in Dubai, it also expressed its reservations concerning a fifth resolution, which addresses Internet governance in particular. It noted it would hold further consultations with stakeholders within the country to understand the potential impact of this resolution on the Internet before committing to sign the treaty.
The Internet Resolution is indeed problematic, particularly for two reasons. First, it emphasises the role of governments without giving equal recognition to the role of other stakeholders, as has become the tradition in Internet policy making. This is particularly disconcerting as ITU is in any case one of the UN bodies most difficult to access for civil society. Secondly, the resolution was pushed through in a backdoor manner, with the chairperson calling for a show of hands to supposedly “feel the temperature of the room” and then effectively treating that show of hands as a vote. These two elements makes it difficult not to be deeply suspicious of the intentions behind the resolution, even if it is non-binding.
In some ways, the thrust of the resolution in itself should not come as a surprise. For years now, developing countries have been asking the global community to make good on promises of enhanced cooperation on Internet policy—promises that were first documented in the Tunis Agenda of 2005. India has often played a leading role in such developments. Though its proposal for a UN Committee on Internet Related Proposals might have been misguided, India has made some other, outstanding recommendations to promote enhanced cooperation.
It is precisely because of its leadership role on these issues that India’s reluctance to sign ITRs sends such an important signal to the world community. If India does sign the treaty, the immediate impact on the Internet within the country will likely be small since, to the extent that they affect the Internet, most provisions now integrated in ITRs are already part of local laws and regulations. But as an irrevocably transglobal network, the Indian Internet cannot be seen in isolation, and the Indian government has clearly understood this fact.
By not accepting unconditionally the Internet Resolution—which is unbalanced even if perhaps not an immediate threat—India has made it clear that it is ready to push back against any unwise or inconsiderate proposal for global Internet regulation: the terms of the proposal matter. Moreover, by expressly stating the need to seek the inputs of all stakeholders concerned before making a decision, India has also advocated for a clear commitment to multistakeholderism at all levels of decision-making, exactly as the Tunis Agenda prescribes. It is in a widespread and continuous commitment to these very stances by governments that hope for the survival of the free and open Internet, in India as elsewhere, in fact lies. At the WCIT meeting, India has set a heartening example.
Anja Kovacs directs Internet Democracy Project. A colleague of hers, Rishab Bailey, went to Dubai as part of the Indian delegation. She can be reached at email@example.com
Safeguarding Net neutrality
Author(s): Parminder Jeet Singh
The World Conference on Telecommunications of the International Telecommunications Union (ITU) ended in a showdown in Dubai with the US and some of its allies walking out of the meeting, refusing to sign the new International Telecommunications Regulations (ITRs). They said that they would not allow the ITRs, and, in general, the ITU, to take up Interne- related issues. There was, however, no mention of the Internet in the final draft of the ITRs. The US objected even to some language on security and spam that could apply equally to traditional telecommunications and the Internet.
The excuse for walking out on the treaty by the US seems rather weak. The US appeared to be making a clear point; it did not think that the new global communication systems being built around the Internet needed any global regulation, principles or norm-setting at all. Global free markets are working well and will take care of everything. Evidently, the opposition to developing high-level principles seem to apply only to UN organizations like the ITU, where all the countries are represented. Only last year, the OECD developed high-level principles for Internet policy making. There is also a chapter on Internet in the Anti-Counterfeiting Trade Agreement that the OECD is negotiating.
Where does civil society stand?
Many think that the US committed a diplomatic blunder in walking out of a treaty process where it had got most of what it wanted. In having done so, it may end up hardening the position of other countries against the unilateral control that the US exercises on the root systems of the Internet. In the mid to long term, it may also harm the interests of the US-based trans-national Internet businesses, which form a near oligopoly on the Internet.
On the other hand, there seems to be some logic for the US to take such a hard stance. Stronger intellectual property regimes and leveraging its control over the global Internet are the two principal elements of US's post-industrial age strategy for global domination. Having closely aligned their geopolitical interests with the US, some of the major Northern countries habitually take their cue from US's positions, whatever they may really think of how the global Internet must be governed. Similarly, the big Internet business is understandably closely in line with the US. In fact, Google was 'politically' so active during the WCIT that it earned negative notice from many on this account. What may be more difficult to understand however is why the global civil society active in the Internet governance space has such a complete identification with US's position, a favor rarely extended by civil society to the most powerful political entity in the world.
It is a fact that many authoritarian countries were seeking to use the WCIT to increase statist control over the Internet, with many proposals made in this regard. However, towards the end of the WCIT process, all these proposals were rejected and withdrawn. This victory was won. Almost all the civil society that was associated with the WCIT process had a single point agenda, protecting freedom of expression by allowing no global regulation, or norms and principles building, for the Internet, in any kind of global inter-governmental forum. The danger of curtailed freedom of expression is inherent in development of any principles or policy for a communication space. And these dangers indeed must be guarded against. What the concerned global civil society however mostly misses is that there are equally important issues of economic and social justice that are connected with how the Internet is governed. Internet today has become a major factor in global and sub-global distribution of economic, social, cultural and political resources. Its governance therefore has a strong political economy angle. Obviously, it is the developing countries, with the assistance of progressive civil society actor, that have to develop appropriate political economy based positions regarding the global governance of the Internet. In this regard, a summary view that the Internet should be kept entirely free from all and any policy frameworks is not an acceptable proposition.
Internet also needs regulation
A central political economy issue regarding the global governance of the Internet pertains to preserving its nature as a level playing field. One of the main social impacts of the Internet, and the social-relational paradigm that gets build over it, comes from its horizontolisation of communication. This makes for a level playing field for various kinds of political, economic and cultural actors – big and small. We have seen how the Internet has changed citizen-state relationships, even allowed citizens to organize and overthrow despots; how it has changed the economic landscapes removing many kinds of traditional barriers to entry for newcomers; and, how it has produced local culture industries in many parts of the world. The technical feature of the Internet that makes it as a level playing field is called the net neutrality rule. This rule ensures that the carrier (or the telecommunications infrastructure) is neutral to all content on the Internet, or that all content on the Internet is carried in the same manner, with the same priority and quality.
It isthis feature of the Internet that, for instance, makes for the website of 'Down to Earth; open at the same speed as that of, say, Shell Corporation. So, you can access public interest views on environment issues as easily, and with global reach, as those of highly-resourced agencies, with likely vested interests. Even an individual, if her views find rapid traction on the web, can stand at the same or higher pedestal as these two mentioned sources of information.
The problem is that the hallowed net neutrality principle had begun to be violated all around the world. Content and application companies are getting into exclusive and priority deals with telecom carriers. If this trend continues, the Internet may soon resemble a multi-channel TV, with the open and public part of the Internet consigned to some dark and dusty by-lanes of cyberspace, as Kirana shops are being pushed into by the Malls. The physical world was always cruelly unequal and unjust. The early egalitarian promise of the Internet, so cherished by us, may also soon be lost.
Protecting the net neutrality principle is in many ways a global challenge. The Internet paradigm itself is inherently global and most of its architectural principles get formed at the global level, largely in the US. National level jurisdictions, especially in developing countries, can be greatly constrained in terms of the policy models that they are able to enforce, if these are not in keeping with global trends. Also, Internet traffic connects at international levels, and the principle of net neutrality must also be respected at these international inter-connection arrangements. It is therefore important that, if the principle of net neutrality, and with it the egalitarian potential of the Internet, is to survive, appropriate principles and policy models for net neutrality are developed at the global level.
Global institutions for global norms
ITU is indeed the right place for developing such principles and policy models for ensuring net neutrality, and addressing other issues pertaining to the carrier layer of the Internet (as against applications and content layers). It is important to note that preserving net neutrality essentially requires regulatory intervention, to force telecom companies to give equal treatment to all contents. But this seems to go against the 'no regulation whatsoever' war-cry of the neoliberal forces, with which the global civil society involved in Internet governance seem to have got co-opted, if sometimes unsuspectingly under the blinding show-lights focused on freedom of expression. Civil society needs to understand how much this over-hyped global campaign for freedom of expression is really the freedom for US based Internet companies to make economic extractions from across the world. Going even beyond the net neutrality issue, these global digital behemoths, mostly monopolies and increasingly, vertically integrated businesses, also need various other kinds of public interest regulation. And the basic principles and overall models of such regulation will have to developed and articulated at the global level. The ITU is one forum for addressing issues related to the infrastructure or carrier layer of the new convergent global communication system. Other global forums may need to address issues arising with respect to application and content layers.
It is hoped that global civil society will take the Dubai fiasco as an opportunity to rethink its role in representing and serving the global public interest, with due, if not disproportionate, regard to the rights and interests of those who are economically and socially disadvantaged. It is time to begin developing a positive agenda for global Internet governance that gives equally importance to social and economic rights of the people as is being given to their civil and political rights, especially to freedom of expression.
P J Singh is executive director, ITforChange, an NGO in Bengaluru working on information society theory and practice. He can be reached at firstname.lastname@example.org
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