In 2014, while campaigning for the general elections, Narendra Modi claimed that he had a dream. He envisioned, "a Digital India, where access to information knows no barriers."
The Digital India program has been on a steady upward trend, accomplishing various milestones along the way. These accomplishments span a wide range of fields, including broadband highway construction, universal mobile connection, public internet access programs, and e-governance, to name a few.
However, India is far from realizing this dream. We have faced a number of obstacles when it comes to creating a digital India. In a world compelled online by COVID-19, India's broadband speed is currently among the slowest in the world. Internet penetration is below 50%, revealing a significant digital gap. The Internet Penetration Rate refers to the percentage of a country's or region's total population that uses the Internet. There were 624.0 million internet users in India as recorded in January 2021.
A more connected populace is more empowered and has better access to knowledge, skills, and commerce. The digital-services industry offers a large economic benefit due to the steady rise in the number of internet users. As a result, widespread internet connectivity can significantly improve a country's level of living. However, the technical infrastructure(or lack thereof) isn't the sole constraint.
The new IT rules of India might hamper privacy and data safety on the internet. Large social media giants such as Google, Facebook, and WhatsApp have already complied with the Centre's new social media laws. Twitter has failed to provide the IT ministry with the name of its chief compliance officer. To find what the new rules are, we have discussed them in full depth here.
Are the new IT rules undemocratic?
Days after the Centre issued a gazetted notification outlining new rules for regulating digital media content, legal experts slammed the rules as 'draconian' and 'undemocratic.' According to the Internet Freedom Foundation, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 will "change the way the internet will be experienced in India."
The three-tiered grievance redressal system will include self-regulation by publishers to address grievances within 15 days. Self-regulation by publishers' self-regulating bodies to address grievances not resolved in a fortnight, and oversight by the Ministry of Information and Broadcasting (MIB) to establish an inter-departmental committee to hear grievances.
In the case of OTT platforms and social media sites, the ultimate authority for all online content will remain with the government. According to cyber law expert Pavan Duggal, the new restrictions have the potential to affect individuals' personal privacy and data privacy.
The establishment of these new rules adds to the Indian government's executive branch's already extensive jurisdiction over digital companies. With the growing suppression of protestors and print and electronic media, the internet domain has become one of India's remaining bastions of mostly free speech. These policies will certainly have a significant influence on free expression and privacy. It will contribute to India's rapidly narrowing space for dissent today. It will increase the liability of digital enterprises for the content that they host or produce.
End- to end encryption Under New IT Law
What does it mean?
The most secure approach to interacting privately and securely online is with end-to-end encryption. End-to-end encryption prevents anyone in the middle from accessing private conversations by encrypting messages on both ends of a discussion.
No one can view the content of your message if you use E2EE to send a message to someone. Not hackers, not the government, and not even the firm that enables your communication.
This is in contrast to most firms' existing encryption. Encryption merely secures data in transit between your device and the company's servers. It is the best possible way to achieve data privacy and is much more effective than regular encryption.
What do the new rules state?
The new guidelines have made it obligatory for major social media intermediaries to be able to identify the information's originating source. This is mainly applicable to those that provide services largely in the type of message. This necessitates traceability, which would render end-to-end encryption useless.
To comply with the Indian government, social media platforms would have to restructure their encryption mechanisms. They will have to track the 'originators' of all communication received over the network. This Rule will apply to any information that is deemed a danger to national security. Any information on crimes such as rape and child sexual abuse will also be included.
Authorities can issue directives to a social media platform for the interception, monitoring, or decryption of any information.
How will this affect us?
Many services (Whatsapp, Signal, Telegram, and others) save minimum user data for electronic information exchange and employ end-to-end encryption. This is to give users trust, security, and privacy.
Millions of Indians use these to protect themselves from identity theft, code injection assaults, and other risks. Encryption is becoming increasingly vital as more aspects of our life require our personal data to be pooled and analyzed on a scale never before imaginable. Moreover, due to the pandemic, all our work is done through social media sites.
"Due to excessive vagueness in the rules, there is a possibility of over-compliance by social media companies to escape liability. The collateral damage here is citizen free speech and privacy, which will be unconstitutionally hampered as a result," the Internet Freedom Foundation, a collective of legal and policy experts, noted.
Why is the rule criticized?
When taken out of context, the goals of this stipulation appear admirable. Traceability advocators will argue that it is the only way to battle potentially deadly "fake news". Track down the source of illicit materials such as child pornography can also be done through it.
The first and most obvious rebuttal is that specialists all around the world have stated that these efforts are ineffective. We lack sufficient legislative monitoring or judicial monitoring of surveillance, and the newest laws would be a massive increase of the government's power over ordinary persons, disturbingly similar to China's banning and breaking of user encryption.
Moreover, the functioning of this tracking mechanism can lead to circumstances with a dangerous end. For example, if a user takes a screenshot of a message that they have seen or received and forwards it to someone else on an app like KOO or WhatsApp; or even sees something on Twitter and forwards the link to WhatsApp. Any technology in the world would only be able to trace back to this individual. However, he is nowhere close to the originator of the message.
Problem with Criminal Justice System of India
Some instances of the problem with the criminal justice system in India are - Irshad Ali, an informer for the special cell of the Delhi Police and the Intelligence Bureau, who was wrongly accused in a criminal case in Vinay Tyagi versus Irshad Ali (2012) when he refused to comply with an unfair demand made by them.
The case of Adambhai Sulemanbhai Ajmeri & Ors against the State of Gujarat (2014), which relates to the 2002 Akshardham temple attack, is the most harrowing example of police wrongly accusing people. Six people were charged by the Gujarat police, and three were sentenced to death, two to life imprisonment, and the final five years to prison by a POTA court in 2006. A division bench of the SC acquitted them all in 2014. It took them nearly 12 years to get justice from the hangman's noose to freedom.
Considering the way, in which the Indian Government and Criminal justice system has worked in recent years, it is possible for an innocent person to be prosecuted for an offensive message.
Takedown Mechanism Under New IT Law
What does it mean?
The necessity that important intermediaries, like Facebook, Twitter, Instagram, etc., submit themselves to a strict takedown process is another problem. Platforms such as Facebook and Twitter must designate a number of senior individuals to be in charge of responding to government takedown orders and other directives. Any takedown orders from the government must be accomplished within 36 hours of receiving said order.
The IT Rules made it mandatory for significant social media intermediaries to deploy technology-based measures, such as automated tools or other mechanisms, to proactively identify information depicting any act or simulation in any form depicting rape, child sexual abuse, or conduct, whether explicit or implicit.
While these automatic technologies are now suggested to be used in the case of severely unacceptable content, such as portrayals of rape or child sexual abuse, the prospect of such a measure is unsettling. When technological modifications are made to systems in a hurry, they experience function creep.
The use of automated techniques will be expanded beyond cases of sexual assault and child sexual abuse material. This will be a slippery slope. It is quite possible for government agencies to use tools such as facial recognition and automated taking down of posts to their benefit.
The Central Bureau of Investigation, for example, urged social media companies to employ PhotoDNA, a technology method for identifying child sexual abuse material, to follow suspects in ordinary criminal investigations in 2019.
How will this affect us?
The development of censorship tools based on artificial intelligence (AI) is fraught with dangers. This includes the immature and imperfect nature of AI in its current state of the art.
The use of artificial intelligence, as a takedown mechanism, is going to need social media intermediaries to store and examining enormous amounts of user-generated content. This saved data could possibly have nothing to do with content that has to be removed or restricted on the social media platform.
Furthermore, in the development of AI, coding biases frequently lead to discrimination, overbreadth, and a lack of accountability and transparency. This is especially concerning because AI is attempting to restrict and monitor a user's fundamental right to freedom of speech and expression.
Use of UAPA
It is practically impossible that these new rules would be free of selective application and misuse over the years. Even laws such as UAPA over the past years have been largely selective - the law is made to imprisoned without trial anyone who is critical of the government. It leaves little to imagine what such rules would shape our country’s social media to be in the coming years.
So far, no one has been labeled a "terrorist" under the UAPA. However, several well-known figures in society, journalists, and students who opposed the Citizenship (Amendment) Act or CAA and were believed by the state to hold opposing views to the government are currently being examined with the purpose to prosecute under UAPA. According to the National Crime Records Bureau Report 2018, individuals prosecuted under UAPA had a conviction rate as low as 14.5 percent in 2015 and as high as 49.3 percent in 2017.
The types of people detained under UAPA are an indicator of the law's indiscriminate usage. Akhil Gogoi, a Right to Information Act activist; Safoora Zargar, a research scholar from Jamia Millia Islamia; Anand Teltumbde and Gautam Navlakha, both have made vital contributions to the protection of India's most vulnerable communities, the Dalits and Adivasis and others are among the worrying examples.