As the Narendra Modi government threatened to do away with net neutrality in 2016, a social media-led movement forced it to stop in its tracks. Similarly, the popular outrage in 2012 against Section 66A, the anti-free speech element of the Information Technology Act, resulted in its eventual scrapping by the Supreme Court in 2015.
It is time for India to have another Save The Internet movement. Amid a dead opposition, a co-opted media, and a government high on power, internet freedom is once again under threat. And so we, the people of India, must speak up for our freedom or regret for a very long time.
The attack on internet freedom in India is multi-pronged.
1. Surveillance: The Pegasus scandal has just reminded us how serious is the issue of privacy breach. Often trigger-happy when it comes to ordinances, the Modi government is in no hurry to bring an over-arching privacy law, leave alone a data protection law.
The existing data protection rules under the IT Act are not enough. It is telling that the government doesn’t even feel the need to defend itself on the issue of privacy, because the citizens, the media, and the opposition are not making any noise about it. Given that the Supreme Court has declared privacy as a fundamental right, an idea which the Modi government had opposed in court and later held it was still not an “absolute right”, it is high time India had a strong privacy law that protects us from hackers as well as government surveillance.
It is possible that through Pegasus’ WhatsApp malware alone, hundreds of thousands of anti-establishment persons may have been targeted, all the data from their phones reaching the powers that be. While reports say the number of users targeted in India was only around 121, this figure pertains to snooping during only a two-week period in 2019. An anonymous Facebook blogger, Humans of Hindutva, has revealed that he was similarly targeted in 2017.
And the Pegasus spyware scandal may just be the tip of the iceberg. There are 10 central agencies allowed to invade our privacy for law enforcement, and there are no privacy laws regulating the misuse. The Supreme Court judgment of 1997 ensuring safeguards on wire tapping extends only to interception by government agencies, not by private organisations like the NSO Group. And even when government agencies do it, who’s to check if all the surveillance is legally vetted and allowed?
The result of such surveillance has a chilling effect on free speech. Afraid of state surveillance, people may not feel safe to criticise the government even in the privacy of their homes.
2. Encryption: Many felt safe communicating on WhatsApp because the messages are supposedly encrypted. The Modi government wants encryption to go. It wants WhatsApp (and others who may use end-to-end encryption such as Apple’s iMessage and FaceTime) to have the option to decrypt messages. Attorney General K.K. Venugopal recently said in the Supreme Court: “A terrorist cannot claim privacy. For Facebook and WhatsApp to say they cannot decrypt (the messages) is not acceptable.”
Yes, national security is important. But if the government wants us to take its claims seriously, how about a privacy law first? It is a joke to say that we should trust the government that it will not use decryption channels to invade the privacy of its critics and of opposition leaders. The Pegasus episode is proof of how real the fear of state surveillance is.
If the government has its way and gets Facebook-owned WhatsApp to loosen its encryption, it wouldn’t mean safety because terrorists and financial criminals will always be in tune with the latest technologies to evade surveillance. The ones suffering breach of privacy and surveillance, therefore, will be gullible citizens.
Online privacy is our right, and we thus need end-to-end encryption.
3. Data localisation: The Modi government says the digital data of Indians should be stored on servers located in India. Facebook, WhatsApp, Twitter, even Mastercard and Visa, must all have their servers physically located in India, and not spread across the world. For financial transactions, the Reserve Bank of India has already made it mandatory. The argument is one of privacy and protection of data against foreign surveillance.
But the risk, once again, is of privacy violation. Once all the data is stored in India, the government will have an easier time getting all our personal data out of internet companies. Currently, there is at least a modicum of a process whereby the government asks internet companies to reveal private data for legal purposes which often requires a court order.
There are many instances when these companies have refused to reveal private data without a legal process. Once all the data is stored in India, the government can enact laws, use regulatory arbitrage, and pressurise social media companies to divulge information about our private lives.
4. Arrested for online speech: Across India, people continue to be arrested for trivial things like criticising the BJP or RSS leaders. In 2017 and 2018 alone, 50 such arrests were made. State governments and private groups and individuals routinely file cases resulting in arrest of people under various laws for social media posts deemed “offensive”. The most recent high-profile case was that of Prashant Kanojia, a Delhi-based journalist who had merely shared a video of a woman claiming to have been in love with Uttar Pradesh Chief Minister Yogi Adityanath. It took the Supreme Court’s intervention to have Kanojia granted bail. Not all such cases have the privilege of capturing the national media’s attention.
There may sometimes be good reasons for filing cases, like over incitement to violence. More often than not, the arrests seem to be political. A man in West Bengal was recently arrested for criticising Chief Minister Mamata Banerjee on Facebook; because his post was deemed “derogatory”. More than 100 cases have been filed in Kerala for social media posts criticising Kerala Chief Minister Pinarayi Vijayan.
There was a lot of noise about the UPA government’s use of the draconian Section 66A of the IT Act under which anyone could be arrested for “objectionable” social media posts, whatever that means. The BJP had opposed it too. But when the BJP-led NDA came to power, it defended 66A before the Supreme Court. While the SC struck down the provision, police across India continue to arrest people under a law that doesn’t even exist.
5. Blocking of websites: As of 2017, there are more than 23,000 URLs blocked in India and the list keeps growing. In the absence of any debate and discussion over these, the Modi government blocks whatever it likes, making due process look like a sham. Companies and individuals get court injunctions to block URLs in the name of copyright violations or defamation, often without giving the affected parties a chance to respond. From pornography to copyright claims, the range of blocked content is a rather broad one.
6. Internet shutdowns: The first response of state and central governments in India to any mass unrest is to shut down the internet in that area. India has seen more internet shutdowns than any other country in the world: 350 and counting since 2012, according to InternetShutdowns.in. Internet connectivity in the Kashmir Valley has been shut for three months now.
A simple cost-benefit analysis will show that internet shutdown is a net loss for free speech, rights and economic activity. To tackle a few protests and law and order incidents, is it really fair to deny the right to internet access to millions of people?
7. Content regulation: The Rashtriya Swayamsevak Sangh saw a Netflix show called Leila, which is critical of the sort of majoritarianism the RSS espouses. So, the Modi government now wants to regulate online streaming platforms like Netflix, Hotstar, and Amazon Prime Video. Is there anything the government doesn’t want to “regulate”?
Given the kind of Constitution India has, we deserve better on freedom of speech and expression. It is a universal human right, not something to be enjoyed at the mercy of the government of the day. The Modi government is also in the process of framing a social media content policy that, one fears, will further restrict free speech.
Fighting for one’s rights is a daily battle. Not fighting for them is bound to make us surrender our rights to the government. And the government may be of any colour: from the Congress to the CPI(M) to the YSRCP to the TMC to the BJP. If there’s one thing that unites political parties in power, it is the compulsive desire to invade people’s privacy and curb dissent. We need to speak up and speak out before it’s too late.
Views are personal.