#India – Threat of exclusion, and of surveillance #UID #Aadhaar

• The Statesman
• 02 Jul 2013

The aadhaar project has become the bane of average Indians, threatening their access to all manner of services. basic questions have sometimes been asked and almost never been answered, says
Usha Ramanathan, in the first of a multi-part series.
The Unique Identity (UID) project has been around for over four years. The Unique Identification Authority of India (UIDAI) was set up by an executive notification dated 28 January 2009 and came into its own after Mr Nandan Nilekani was appointed as chairperson in July 2009. Now it has, as some observers say, become an experiment being conducted on the entire  country.
In its early stages, it was marketed, simply, as giving the poor and the undocumented an identity. It was to be voluntary, and an entitlement. But, it is evident even from the Strategy Overview document of the UIDAI that it was never intended to be an entitlement that people may choose to adopt or ignore. That document said that “enrolment will not be mandated”, but went on to add: “This will not, however, preclude governments or registrars from mandating enrolment”. So, the potential for compulsion was built into the architecture of the project. Starting in 2012, voluntariness began to be eroded, and threats of exclusion from services and entitlements began to be bandied about. By January 2013, a virtual panic was set off when it was announced that various services and entitlements would not be accessible to persons who did not have a UID number.
Mr Nilekani has said time and again that half the population is expected to be enrolled by the end of 2014; yet, there have been warnings that people without a UID number may find themselves unable to access benefits and subsidies if they did not have it, if a bank account had not been opened, and if the UID number were not embedded in the bank account. So, subsidy for cooking gas, kerosene, and scholarships, for instance, became dependent on having a bank account seeded with the UID, or aadhaar, number. In case anyone wonders what the UIDAI has to do with these decisions, it is the chairperson of the UIDAI, Mr Nilekani, who chaired the committees that recommended these changes. The reports are in the public domain.
From its inception, the UID project has been about creating the ‘database resident’. The website of the Department of Information Technology, which has been renamed as Department of Electronics and Information Technology, modestly carrying the acronym DeitY, has said all along that “Project UID, a Planning Commission initiative, proposes to create a central database of residents, initially of those above the age of 18 years”. Except, that the UIDAI got more ambitious and wanted everyone, from the newborn to the oldest resident, on its database. And it was always intended to converge various databases to construct a profile of the individual, and to this effect the website of DeitY says that “the project envisages provision of linking of existing databases, as well as providing for future additions, by the user agencies”. The MoUs between the UIDAI and various registrars that include the state governments, oil companies, banks and the Registrar-General of India, who is in charge of census and the National Population Register and socio-economic and caste census, not only provide for various additional fields of data being collected during enrolment, but also for having the UID number appended to each such database.
As for biometrics, documents reveal that when the decision was made to use fingerprints and iris for enrolment, there was no knowledge about whether these biometrics would work in India, given the demographic and environmental conditions. In fact, it has since been found that with age the fingerprint fades, that manual labour makes the fingerprint difficult to read, that malnourishment-induced cataract blights an estimated 8-10 million people, and so on. In fact, as recently as 23 April 2013, Mr Nilekani said in his speech at the Centre for Global Development in Washington: “We came to the conclusion that if we take sufficient data, biometric data of an individual, then that person’s biometric will be unique across a billion people. Now we have to find that out. We haven’t done it yet. So we’ll discover it as we go along.” First, the conclusion. Then they will wait to find out! That is why some observers of the project have been saying that it is an experiment being conducted on the entire population. The consequences of failure have not been discussed, although, in a talk at the World Bank in Washington on 24 April 2013, Mr Nilekani said in response to a question about what he thought was the greatest downside risk to the UID: “To answer the question about what is the biggest risk,” he said “in some sense, you run the risk of creating a single point of failure also.”
There is more to cause concern, and much to be answered about UID.
(The writer is an academic activist. She has researched the UID and its ramifications since 2009.)
LEGALITY
The UID project is proceeding without the cover of law. There is only the notification of January 2009 which says the UIDAI “owns” the database, but which says nothing about how it may be used, or what will happen if it fails or if there is identity fraud, or some outside agency gains access to the database. A Bill was introduced in Parliament in December 2010, after the project had been launched and data collection had begun. The Bill collapsed in December 2011 when the Parliamentary Standing Committee found it severely defective, and after it found that the Bill and the project needed to be sent back to the drawing board. There is no sign yet of a Bill, and any protection that the law may offer is non-existent. There is no law to protect privacy either.
Convergence and snooping
The UIDAI, and Mr Nilekani, have refused to address the probability of surveillance, convergence, tracking, profiling, tagging and intrusions into privacy that is likely to result from the creation of the database of residents and the intended convergence. The link between technology, databases, governmental power and corporate involvement in creating, maintaining, managing and using databases has produced various scenarios of surveillance that we ignore at our peril. PRISM is such a stark demonstration of the ambitions that can fuel a state that the UIDAI can no longer just say `no comment’ when asked about the surveillance potential being created.
In the same period, the state has already set up agencies such as the Natgrid, NCTC, NTRO, CCTNS, MAC which will use the potential for convergence of databases that the UID makes possible. In April 2011, the government made rules under the IT Act 2000, by which it would be able to access any data held by any “body corporate”. More recently, we have been hearing about the CMS, or the Central Monitoring System, speaking to a surveillance and control approach that will have the state snooping on us with no oversight, no prior permission, no answerability at any time to anyone.
The companies engaged by the UIDAI to manage the database include L1 Identity Solutions and Accenture. The UIDAI, in response to an RTI request, has claimed that they have no means of knowing that these are foreign companies, given the process of their selection! Yet, a search on the internet reveals the closeness between the L1 Identity Solutions and the CIA, and that after a recent transaction, it is part-owned by the French government; while Accenture is in a Smart Borders Project with the US Department of Homeland Security. Data security, personal security, national security and global surveillance are all drawn into a ring of concern, but remain unaddressed.

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India should not delay enacting a Privacy Act #mustshare

It is time the government stopped twiddling its thumbs and took action

Livemint

First Published: Mon, Jun 10 2013.

Illustration: Shyamal Banerjee/Mint

By modern standards of civility governments snooping on citizens is considered abhorrent behaviour. The admission by the US government that it has been collecting billions of pieces of information world-wide, especially personal data and emails, has thus been greeted by shock and anger. Indian citizens, too, have been subjected to this sweep, carried out under the Foreign Intelligence Surveillance Act, or Fisa.

It is time the government of India stopped twiddling its thumbs and took strong measures such as enacting a Privacy Act to protect the rights of citizens.

An 8 June report by The Guardian suggests that 6.3 billion reports were collected from India. The investigation followed reports that the US has been monitoring communications between US and foreign nationals over the Internet for years under a project called “prism”. The Guardian said it has acquired classified documents about a data-mining tool called “boundless informant” that was used by the US National Security Agency that details and even maps by country the voluminous amount of information it collects from computer and telephone networks.

Reacting to earlier reports on the same issue, US director of national intelligence, James R. Clapper, issued a media release on 6 June, stating that The Guardian and The Washington Post articles “contain numerous inaccuracies”, but acknowledged that, “section 702 is a provision of Fisa that is designed to facilitate the acquisition of foreign intelligence information concerning non-US persons located outside the US…” The US government simultaneously clarified that the usage of such information or metadata (analytics of the humungous amounts of data intercepted) is used only after a due legal process.

Nevertheless, this assurance provides little comfort given that around 40 countries filter the Internet to varying degrees, including democratic and non-democratic governments. YouTube and Gmail (both from Google), BlackBerry maker Research In Motion Ltd, WikiLeaks, Skype (now a Microsoft product), Twitter and Facebook have all been censored, at different times, in China, Iran, Egypt and even India.

In April, the Union government began rolling out a central monitoring system, or CMS, which will enable it to monitor all phone and Internet communication in the country. Human Rights Watch in a 7 June media release described CMS as “chilling, given its reckless and irresponsible use of the sedition and Internet laws”.

Cybersecurity experts caution that while US and European Union citizens have recourse to law under their own domestic privacy policies, India has no such safeguard. The obvious agency to take a lead in the design, framing and enactment of such a law is, of course, the Union government. But it is hard to expect the government to take any initiative in the matter as—like any government—it would want to have the capabilities to intercept private communication of citizens. On 25 April 2011, the government in a media release admitted that provisions for authorization of interception are contained in section 5(2) of the Indian Telegraph Act, 1885, read with Rule 419 (A) of the Indian Telegraph Rules, 1951, as well as in section 69 of the Information Technology Act, 2000, read with the Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.

The release also pointed out that the Supreme Court, in its order of 18 December 1996, had upheld the constitutional validity of interceptions and monitoring under section 5(2) of the Indian Telegraph Act, but added that telephone tapping would infringe the Right to Life and Right to Freedom of Speech and Expression enshrined in articles 21 and 19(1)(a), respectively, of the Constitution of India, unless permitted under the procedure established by law.

However, these guidelines are implemented more by way of an exception rather than as a rule.

The trouble here is that while the law is clear, it has multiple exceptions built into it that allow the government to do as it pleases. The safeguards thought of by the judiciary are not sufficient to protect the privacy of citizens. It is too much to hope that the government will adhere to privacy norms on its own. Three things need to happen in case India is ever to have a reasonable chance at a decent privacy law. One, citizen awareness and activism have to assume a much higher level than what prevails now. Two, public representatives—legislators, especially in Parliament—have to realize that privacy is a right that is at par with other rights and should not be trampled at will. Finally, at an appropriate juncture, the higher judiciary should take a look at the issue carefully once again. Continuous judicial scrutiny of the government is, for now, the only viable option to check abuses of privacy.

Does India need a privacy law? Tell us at views@livemint.com

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SC – No arrest for posts on social sites without permission #ITact #Censorship

PTI

In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had issued advisory not to arrest a person in such cases without prior approval of a senior official.

The Supreme Court on Thursday said that no person should be arrested for posting objectionable comments on social networking sites without taking prior permission from senior police officials.

The apex court, which refused to pass an order for a blanket ban on the arrest of a person for making objectionable comments on websites, said state governments should ensure strict compliance of the Centre’s January 9 advisory which said that a person should not be arrested without taking permission from senior police officials.

“We direct the state governments to ensure compliance with the guidelines (issued by Centre) before making any arrest,” a bench of justices B.S.Chauhan and Dipak Misra said.

It said the court cannot pass an order for banning all arrest in such cases as operation of section 66A (pertaining to objectionable comments) of the Information Technology Act has not been stayed by the apex court which is examining its constitutional validity.

In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to arrest a person in such cases without prior approval of a senior police officer.

The advisory issued by the Centre says that, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”

The apex court was hearing an application seeking its direction to the authorities not to take action for posting objectionable comments during the pendency of a case before it pertaining to constitutional validity of section 66A of the Information Technology (IT) Act.

The section states that any person who sends, by means of a computer resource or communication device, any information that was grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine.

The petition was also filed regarding the arrest of a Hyderabad-based woman activist, who was sent to jail over her Facebook post in which certain “objectionable” comments were made against Tamil Nadu Governor K.Rosaiah and Congress MLA Amanchi Krishna Mohan. After filing of the petition, she was released by a district court at Hyderabad.

Jaya Vindhayal, the state general secretary of People’s Union for Civil Liberties (PUCL), was arrested on May 12 under section 66A of the IT Act for the “objectionable” post.

According to the police, she had also allegedly distributed pamphlets making objectionable allegations against Rosaiah and Mohan before posting the comments online.

The matter was mentioned before the bench by law student Shreya Singhal, seeking an urgent hearing in the case, saying the police is taking action in such matters even though a PIL challenging validity of section 66A is pending before the apex court.

She had filed the PIL after two girls–Shaheen Dhada and Rinu Shrinivasan–were arrested in Palghar in Thane district under section 66A of IT Act after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it.

On November 30, 2012, the apex court had sought response from the Centre on the amendment and misuse of section 66A of IT Act and had also directed the Maharashtra government to explain the circumstances under which the 21-year-old girls were arrested.

Pursuant to the notice issued by the apex court, the Centre had informed it that the controversial provision in the cyber law under which two girls were arrested for Facebook comments did not curb freedom of speech and alleged “high handedness” of certain authorities did not mean that it was bad in law.

The Ministry of Communication and Information Technology in its affidavit had said that an advisory had been issued to all the state governments, saying that due diligence and care may be exercised while dealing with cases arising out of the alleged misuse of cyberspace.

The Maharashtra Government in its reply had said the arrests of girls in Thane district were “unwarranted” and “hasty”, which “cannot be justified“.

The state government had also submitted an affidavit stating that the Thane police SP (Rural) had been suspended for arresting the two girls despite the instruction by the IGP not to take such action.

The court had earlier issued notices and sought responses from governments of Delhi, West Bengal and Puducherry where a professor and a businessman were arrested under section 66A of the Act for a political cartoon and tweeting against a politician respectively.

Keywords: social network, Facebook posts, Rinu Srinivasan, Facebook post row, online comments, IT Act

 

PUCL condemns arrest of Jaya Vindhyalaya #Vaw #ITAct

PUCL CONDEMNS ARREST OF JAYA VINDHYALA, PUCL – AP STATE PRESIDENT:PUCL DEMANDS RELEASE AND DROPPING OF CHARGES

————————————————————————-
The PUCL National Executive meeting in Delhi today strongly condemns the arrest by the AP police of Ms. Jaya Vindhyala, State President, PUCL AP at 7.30 am today (12th May, 2013) in Hyderabad. Ms. Jaya Vindhyala has been exposing the corruption of the Chirala MLA, and other senior officials of AP.

The PUCL strongly believes that the arrest of Ms. Jaya Vindhyala is a vindictive action of the state police meant only to silence the growing voice and demand for fair, independent investigation into the corrupt deals of the Chirala MLA as also other high dignitaries and officials.

The PUCL feels that the timing of the arrest on a Sunday is to ensure that no legal recourse like bail can be availed by Ms. Jaya. The PUCL questions the need for the state police to arrest Ms. Jaya Vindhyala especially in view of the Supreme Court directions in
the case of `Joginder Kumar vs State of UP’, (1989) that arrest of a person need not be effected if the person will appear before the police on summons and there is no danger of the person absconding, threatening witnesses or tampering with evidence. This is not the case in the case of Ms. Jaya Vindhyala who is a widely respected person, and is a senior and well known Advocate of the AP Bar and is a well known human rights defender.
It is revealing to note that the three FIRs registered by the Chirala police against Ms. Jaya, includes offences under section 307 (attempt to murder), 506 (threatening with intention to kill), 120-B (Conspiracy) IPC and Information Technology Act. These provisions are routinely abused and misused by the police to foist false cases and in the cases against Ms. Jaya, we learn, are all based on false allegations not making out any of these offences.

The PUCL has also learnt that 9 other members of PUCL – AP have also been named in the FIR and the police is hunting them down.

The PUCL demands the immediate release of Ms. Jaya Vindhyala and closure of all the cases against her, as also other PUCL members, in Prakasham district.

(V. Suresh)
National General Secretary, PUCL

 

WHAT SHE SHARE DON FACEBOOK IS BELOW

 

https://www.facebook.com/media/set/?set=a.518246704900792.1073741844.100001464027378&type=1

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#Mumbai – After sexual harassment at workplace, woman faces online slander #Vaw

MEENA MENON, The Hindu, April 11,2013

 

First it was sexual harassment at workplace. Next comes a slanderous campaign on the Internet.  For this former employee of auditing firm KPMG, life has become hell since 2007. Now Aditi (name changed) is fighting with the Mumbai cyberpolice who are doing little on her 2012 complaint seeking action against websites which hosted offensive and abusive comments against her.

Trial yet to begin

While the sexual harassment case led to the arrest of a KPMG partner in 2007 and the filing of a charge sheet in December that year, the trial is yet to begin. Aditi has little doubt that the defamation in the cyber realm is an extension of workplace harassment. She had to wage a fight to ensure that the defamatory comments were removed by the Department of Telecom after a magistrate’s order in December 2012, three years after her complaint.  The cyberpolice are yet to complete their probe into a first information report registered against Google, a website 498a.org and an individual whose comments appeared on that website.

In September 2007, after a Mumbai daily revealed her name while reporting on the sexual harassment case, she was subjected to verbal abuse on the Internet. She filed a complaint with the cybercrime cell on October 9, 2007. While the comments were removed from public view soon after, they started appearing on other sites like 498a.org and Save the Indian Family (SIFS).  She wrote to Google, which removed the links to websites like 498a.org. Later, when the comments reappeared, Google wrote to her saying it could not block the URLs.

‘Total lie’

A second complaint was filed at the cyberpolice station at Bandra in 2010. The  police closed the earlier complaint terming it a civil one,  without informing her, stating the accused was not identified. Aditi claims this is a complete lie as her 58-page complaint had given details of the websites that carried the comments. She filed a fresh complaint in April and May 2012 against Google and Nabble, on whose websites the offensive comments reappeared, and thereafter the links were removed from Nabble. She sent legal notice to Google for not deleting the links.

Thanks to the extensive cyberdefamation, Aditi now finds it difficult to get a new job and she is being termed a ‘legal terrorist’. “I am only fighting for my right to dignity but such baseless slander with no action by the police created lot of problems,” she says.

Police can block websites

Under Section 69 A of the Information Technology (IT) Act, the police have the power to block offensive websites, but they did nothing. She was made to file yet another complaint in May 2012 on the same issue. The defamatory comments were  removed by the DoT after the Chief Metropolitan Court passed an order in November 2012 directing Cert-In (the Computer Emergency Response cell under the Ministry of Communications and Information Technology) to block 10 URLs. The police finally registered an FIR only in November 2012 against an individual whose name and email ID appeared with offensive comments on nabble.com, unidentified persons who wrote abusive remarks on google.com and 498a.org. They were charged under Section 500 of the IPC and Sections 34 and 66 A, B and C of the Information Technology Act. She filed a query under the Right to Information Act on the progress in the case, and the police replied in January 2013 that they could not give any detail since it would impede investigation. When The Hindu contacted senior inspector N.K. More of the cyberpolice station, who is investigating the case, he declined to comment.

The police claim they cannot make headway since 498a.org and other sites are not responding to their summons. However, The Hindu got detailed email responses from 498a.org and an organisation called Rakshak Foundation, which is connected to it. Piyush Singh, a volunteer from Rakshak, in response to emailed questions, called from the U.S. and admitted that the cyberpolice had sent the organisation a letter in July 2012. It called up the police last year to clarify that it would forward the police complaint to 498a.org.

Both connected

Investigations reveal that a link on 498a.org marked ‘donate’ takes you to Rakshak saying: “We need your help and support to keep actively helping falsely implicated and stressed families for free. All Donations are made to Rakshak Foundation (registered NGO at California, USA), which supports 498a.org. Rakshak Foundation is 501(c)(3) certified and hence the donations are tax-exempt. Rakshak Foundation’s EIN # is 71-1033875.”

A phone call to a number listed on the 498a.org website in Mumbai elicited the response that they were volunteers only to help people and all administrative decisions were taken by the Rakshak Foundation in the U.S.  Mr. Singh said Rakshak collected funds for 498a.org since it was a website and not an organisation. Rakshak started public policy research in 2006-07 and found out about 498a.org.

Volunteer’s claim

However, a volunteer from 498a.org who wished to remain anonymous, said in an email interview that the website was not connected to the Rakshak Foundation.  The website relied on volunteers to help those who are aggrieved by the misuse of 498a. Since 498a.org is a website, donations used to be collected through Rakshak. “Rakshak is not funding us. 498a.org and Rakshak are not connected.” At least this volunteer has not seen emails from the cyberpolice seeking information and said 498a.org did not have any interest in defaming anyone.

Aditi managed to obtain, on her own, a lot of details including of the people who had founded Rakshak.  Her poser to the police: Whether a website registered outside India can carry out activities in India through volunteers and get away without complying with the law of the land?

 

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• Thanks to cyber defamation, she finds it difficult to get new job and is being termed ‘legal terrorist’
• Police claim websites are not responding to their summons

 

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Mumbai cyber police yet to act on her complaints against websites

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#India- Here is why section #66A does not ‘protect’ women #FOE #Censorship

by Danish Raza , FIRSTPOST Dec 12, 2012

One of the arguments Union Minister for Communication, Information and Technology, Kapil Sibal, often gives to justify Section 66A of the Information Technology (IT) Act is that it is an essential tool in fighting the online harassment of women. “Many kinds of threats can be given on the Internet which cannot be given on a normal communication network. Therefore, the nature of the law has to be different,” reiterated the minister in an interview to NDTV in November 2012.

Online harassment is indeed a serious problem for women. In April this year, for instance, Chennai based writer and activist Meena Kandasamy found herself at the receiving end of sexually charged verbal abuse and threats of violence in response to a 15 April tweet, which said: “Was at the Osmania university beef eating festival. Awesome experience in spite of violence by ABVP.”

In reactionary tweets, totaling more than a hundred, she was called a variety of names including “bitch,” “whore,” and “terrorist.”

“Bloody bitch, u shud be gang raped and telecasted live. That will be awesome experience (sic),” was an example of one such tweet by @sidhh 108.

In October, singer Chinmayi Sripada lodged a complaint with Chennai police that she was getting casteist and vulgar comments about both her and her mother from six twitter handles. “Most of my tweets were misquoted to give a feeling that I am against Tamil, Tamil Tweeters and bloggers and also against Sri Lankan Tamils. Some even started tagging me on Facebook,” Sripada told The Hindu.

This threatening online environment is an extension of real life in terms of the attitude towards the fairer sex. “Just like in real life, women are expected not to comment online about political issues or anything which needs application of the brain. Signs of struggle of power between two genders are very much visible online,” says Vidyut Kale, a Mumbai based blogger, who has received cuss words, rape and death threats. “By the way, education has got nothing to with it,” she adds.

Reuters

While the Internet can be a hostile place for both sexes, women face additional sexist abuse in a way that men do not. “Trans people who have written both as male and female bloggers, for example, have reported a sharp difference between the two in terms of the abuse they received, and the way in which attacks became more personalised and gender-based after blogging as a woman. There certainly is a trend here,” says Dr Anja Kovacs of the Internet Democracy Project, a Delhi based initiative for online freedom of speech which is conducting a study on online harassment.

However, Sibal is wrong to cite online abuse of women as a justification for section 66A of IT Act, which advocates of online freedom of speech claim is a classic case of the cure being worse than the disease.

Moreover, when section 66A was inserted into the IT Act in 2008, the purpose was not to safeguard women from abuse or stalking. According to Kiran Karnik, former president of NASSCOM and member of the expert committee which suggested changes in the IT Act, the amendments proposed by the expert committee were benign, but the Parliamentary standing committee made the law much tighter in its over-enthusiasm.

“Things were added on the pretext of taking care of spam, defamation and that gave huge power to security agencies,” Karnik told NDTV.

Thus, Kapil Sibal’s ‘protect our women’ argument is a post facto and expedient rationale for the amendments.

The argument is also not based on any kind of supporting evidence, and for one simple reason: the government does not maintain any data on the number of complaints filed by women under section 66A.

Except for the case of Chinmayi Sripada — where the police took action against two men allegedly harassing her — there are few other known cases where a woman has taken recourse to section 66A to fight cyber abuse.

In stark contrast, there are many cases illustrating the misuse of 66A: the arrests of cartoonist Aseem Trivedi for lampooning national symbols on his website and Professor of Jatavpur university for mocking Mamata Banerjee on Facebook, the detention of a Puducherry businessman for tweeting that Karti Chidambaram has amassed more wealth than Robert Vadra, and the infamous Palghar case where two girls were arrested under section 66A because they believed that the death of Bal Thackeray did not call for a city-wide bandh.

“After the Shaheen Dada and Rinu Srinivasan case, we know it [66A] is not protecting women, it is jailing some of them who speak. I doubt if anyone who is flaunting Hindutva and threatening gang rape and butchering or calling for a Hindu style fatwa on a writer is going to be going to jail anytime soon,” says Kandasamy.

Therefore, even if we take into consideration Sibal’s argument that Internet is a different beast which wields much more power than traditional media and hence we need a separate law, 66A is so vaguely worded that it can be used at will — not to protect women but to punish those who speak out. If the intent is to crack down on online abuse, then the law has to be sharply and
narrowly defined, and in a way that it does not infringe on the freedom of speech.

Besides, there are many provisions in the Indian Penal Code (IPC) which deal with similar offences against women, points out Delhi based lawyer Apar Gupta. “IPC Section 509 deals with words, gestures or acts intended to insult the modesty of a woman. This can be invoked in cases of online abuse of women as well.”

Other parts of penal law may apply as well, including section 499 which deals with defamation, sections 503 which deals with criminal intimidation and and 507 which addresses criminal intimidation via an anonymous communication.

“I think the only space that has any semblance of the free media is the Internet. Section 66A is the only way they are going to go about silencing people who speak their mind. This protecting woman is such a nice facade,” concludes Kandasamy.

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Cyber police station files FIR under 66A against Sagar Karnik

SPECIAL CORRESPONDENT, The Hindu Dec 2. 2012

On a counter-complaint by K.V. Jaganathrao and his AI colleague held in May after a plaint by Karnik

The cyber police station at the Bandra Kurla Complex (BKC) on Friday registered a first information report (FIR) under Section 66A of the Information Technology (IT) Act against Sagar Karnik of the Air India Cabin Crew Association (AICCA). This was done on a counter complaint on July 3 by K.V. Jaganathrao, who, along with his Air India colleague, was arrested in May after a complaint filed by Mr. Karnik for posting provocative messages on social networking websites.

While Mr. Jaganathrao and Mayank Sharma were arrested on Mr. Karnik’s complaint in May and jailed for 12 days, no action was taken after the counter-complaint was filed in July with the cyber police station against Mr. Karnik. The FIR filed on Friday Mr. Karnik had posted derogatory comments on Facebook and Orkut, which were defamatory and insulting to the complainant.

Intra-union rivalry

Mr. Jaganatharao’s statement recorded at the cyber police station in connection with his complaint refers to intra-union rivalry between Kiran Pawaskar, former Shiv Sainik and present Nationalist Congress Party MLC, who wanted to control the AICCA, and himself and Mr. Sharma. The statement says that after differences over the elections to the AICCA, from March 2011 to June 2012, Mr. Karnik abused Mr. Jaganathrao many times on Facebook.

On November 1, 2011, Mr. Karnik said he had a gun and also said he would get Mr. Jaganathrao arrested by the cyber police station. There were other abusive words and comments on Facebook as well as an open threat to kill him, Mr. Jaganathrao said. However, Mr. Karnik, after issuing this threat, went and complained to the cyber police station in Bandra that he was being threatened by Mr. Jaganathrao, leading to the two arrests.

Mr. Jaganathrao told The Hindu that after they were released on bail, he submitted a complaint along with a dossier of web links to social networking sites, which show the abuse by Mr. Karnik, to the cyber police station in July. “The police took four months to register an FIR against Karnik, which means they have not investigated the matter properly and if there is an FIR against Karnik, why were we arrested in the first place,” he asked.

‘Lascivious and defamatory’

The first complaint against them was made by Mr. Pawaskar on July 1, 2011 to senior police officer Vishwas Nangre Patil. Later, Mr. Karnik filed an FIR on March 29, 2012 accusing Mr. Jaganathrao and Mr. Sharma of uploading lascivious and defamatory content on Facebook and Orkut against him and politicians and also threatening him with death, apart from insulting the national flag. They were charged under Section 506(2) of the Indian Penal Code and Sections 66 A and 67 of the Information Technology (IT) Act, apart from Section Two of the Prevention of Insults to National Honour Act, 1971.

Meanwhile, Mr. Jaganathrao and Mr. Sharma had met Niket Kaushik, Additional Police Commissioner, in October to raise the issue of their arrest by the cyber police station. Mr. Jaganathrao and Mr. Sharma wrote to him demanding to know if any action was initiated against the police officers who allegedly did not seek the approval of their superiors to make an arrest under Section 66 A of the IT Act.

Mr. Kaushik did not respond to calls.

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#India- Sibal’s Law: ‘Grossly offensive’ and of ‘menacing character’ #censorship #foe #fos

courtsey jasrajbhatti at jasrajbhatti.com

November 01, 2012 10:41 IST, Rediff.com

‘Kapil Sibal has passed a law that anyone posting anything “offensive” on Twitter can be jailed for three years. That’s section 66A of the IT Act amended by United Progressive Alliance [ Images ] II in 2008.’

‘It’s a cognisable offence so you have to be arrested and apply for bail. As though you had committed murder!’ notes Shivam Vij.

So an aam aadmi tweeted that the Union finance minister’s son Karti P Chidambaram [ Images ] has amassed more wealth than Robert Vadra, and voila, he gets arrested! Chidu Jr tweets: ‘Free speech is subject to reasonable restrictions. I have a right to seek constitutional/legal remedies over defamatory/scurrilous tweets.’

Except that, as far as is known, the businessman whose Web site describes him as ‘The Young Politician’, has not charged the writer of the ‘defamatory’ tweet with defamation. Why not?

Because he’d have to prove defamation in court. Because the person won’t be arrested right away. Because Chidu Sr’s esteemed colleague Shri Kapil Sibal [ Images ] has passed a law that anyone posting anything ‘offensive’ on Twitter can be jailed for three years. That’s section 66A of the IT Act amended by United Progressive Alliance II in 2008.

It’s a cognisable offence so you have to be arrested and apply for bail. As though you had committed murder!

If the same allegation was made on wall graffiti or by Arvind Kejriwal at a press conference, nobody would go to jail. But say it on Twitter and the long arm of the law gets a little longer.

Why is it that Subramanian Swamy can make strong corruption allegations against Karti P Chidambaram, as he did back in April, but Chidu Jr won’t put Subramanian Swamy in jail?

An aam aadmi, however, is not dangerous to politicians. The Tamil Nadu police even wanted to keep the man in jail ‘on remand’ for 15 days, but a magistrate granted him bail.

This proves what a lot of us have been arguing: That the real and only intent of Kapil Sibal’s draconian Internet laws is to crush dissent, is to tell people that talking about the Congress party‘s corruption is not allowed.

Welcome to 1975, or was it 1984?

While various aspects of growing Internet censorship in India [ Images ] have been commented on, it appears that the most dangerous one of them has not received sufficient attention. That’s because it’s a draconian aspect of the Information Technology Act which many thought wouldn’t be misused. After all we aren’t China.

But alas, our blanket faith in the inherent goodness of the Indian democratic system allows our rulers to trample upon our rights. That is how Communications Minister Kapil Sibal can grin and claim, every now and then, that he is not for censorship and control over the Internet. He can lie through his teeth and we allow him to get away with it.

Section 66A of the Information Technology (Amendment) Act, 2008, came into force in 2010. The section makes punishable with three years in jail posting online ‘any information that is grossly offensive or has menacing character.’

There’s more to it. A non-bailable arrest warrant for you if you upload information that you knew was false, but you posted it only to cause ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.’

Yes, annoyance and inconvenience.

There have already been at least three cases of misuse of this section, before even Kapil Sibal’s colleague’s son put it to use.

In April 2011, the West Bengal [ Images ] police arrested Jadavpur University Professor Ambikesh Mohapatra for merely forwarding on e-mail a cartoon making fun of Chief Minister Mamata Banerjee [ Images ], using a reference to a Satyajit Ray [ Images ] detective story. It reached Mamta Banerjee and she was offended.

Sibal’s Law was used and the cartoonist was in jail.

Other charges — such as defamation and insulting women under the Indian Penal Code — were not cognisable, so it was only Sibal’s Law that treated him like, well, a gross offender.

Similarly, Congress and Dalit activists in Maharashtra [ Images ] targeted cartoonist Aseem Trivedi for his anti-corruption cartoons that he displayed at the MMRDA grounds in Mumbai [ Images ] in December 2011. Their real intent, it seems, was to show the Anna Hazare movement as being anti-national. They charged him with the cognisable offence of sedition, but also with Sibal’s Law — because the cartoons were also available online.

His Web site cartoonsagainstcorruption was shut down in less than 24 hours, using another bit of Sibal’s Law, the intermediary liability rules. Aseem found himself in jail for a few days in September.

More recently, a Chandigarh resident Heena Bakshi was angry with the local police for not doing much to recover her stolen car. She posted an angry message on the Facebook page of the Chandigarh police. It said:

‘You people kill us with your ‘nakaas’ n check points. Harassing us if we are just driving around at night. But you have no f*****g clue when somebody steals that car from under your eyes. The police started questioning me. If I was making this whole **** up or if someone actually stole it.‘

Does she deserve jail for this? Well, Sibal’s Law came to the aid of the Chandigarh police. I don’t know if Ms Bakshi has found her car yet.

In all these cases it is clear that the powers-that-be — politicians and government – are using Sibal’s Law to muzzle our voices, to silence dissent, to discourage we the people from expressing out anger against the government.

If this is not the Emergency mindset, what is it?

I find Kapil Sibal’s eyebrows offensive. I can’t put him in jail for that but he can put me in jail for saying as much online. If his law did not apply only to the Internet, but to everything, then that would be fair. In such a fair world I would be able to apply Section 66A against the gross offence his eyebrows cause me.

Sibal announces every other week censorship is not his intent. He says it as if we are supposed to be grateful to him for that. As if we should burst into screams of joy, ‘All hail Indian democracy!’ But the above examples show that Internet censorship is very much his intent.

In other words, he spreads a lie every time he claims censorship is not his government’s intent. If he was to say this on the Internet I would be able to apply his own law on him and have him arrested!

As I said, section 66A includes this as punishable, cognisable offence: ‘Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will, persistently makes by making use of such computer resource or a communication device.’

The government has appropriated to itself the task of deciding what is reasonable speech and what is unreasonable speech. That task should belong to the courts and the Indian Penal Code is enough for that.

If the tweet is defamatory, Chidu Jr should file a defamation case. There is no need for any special law for the Internet. The need for special Internet laws is felt by the powerful who realise that criticism and dissent are no longer the monopoly of a pliable, corporate media.

Those troubled by the aam aadmi‘s uncontrollable criticism include the corporate media. Senior television journalists like Barkha Dutt and Sagarika Ghose constantly complain about online trolling and ‘hate speech’. They have thus helped build an environment in favour of Sibal’s Law — ‘causing annoyance’, ‘menacing character’, ‘grossly offensive’ are all good descriptors of how the powerful see online dissent.

These journalists have thus favoured draconian laws while paying lip service to free speech by arguing that while corporate media is covered by legal restrictions online media seems to be a free-for-all.

But I am also only demanding equality. Mamta Banerjee walked out of a Sagarika Ghose show in Kolkata [ Images ]. She was offended by the questions posed to her. She was also offended by the cartoon a professor forwarded on e-mail.

While the professor had to go to jail and seek bail and will be doing the rounds of the courts to defend himself, Sagarika Ghose has not been charged with the cognisable offence of ‘causing annoyance’ or being ‘grossly offensive’ to Mamata Banerjee.

If Sibal’s Law applies to a professor, why should it not apply to an editor? Is CNN-IBN Deputy Editor Sagarika Ghose more equal before the eyes of the law than a professor who imparts education?

I have a point Sagarika, don’t you think so? If my question annoys you, please don’t use Sibal’s Law against me.

Shivam Vij

Related articles

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Stakeholders steadfast on changes in IT Rules #Censorship

Kapil Sibal – World Economic Forum Annual Meeting Davos 2009 (Photo credit: World Economic Forum)

SHALINI SINGH, The Hindu

 Google, Facebook absent at meeting; working group to redraft objectionable language

The refusal by either companies or MPs to shed their reservations about the proposed changes in the Information Technology (Intermediary Guidelines) Rules, 2011, which are part of the IT Act, 2000, has led to Telecom Minister Kapil Sibal agreeing to engage in larger consultation. Accompanied by Minister of State Sachin Pilot, DIT Secretary J. Satyanarayana and Gulshan Rai, a senior functionary in the DIT, at a roundtable meeting here on Thursday, Mr. Sibal said it was not the government’s intention to regulate free speech or content. “We will set up a smaller group represented by all the stakeholders, civil society, lawyers, academics, cybercafés, MPs, and then tweak these rules in such a way that they are acceptable to everybody. Everybody must work together since the rules are required and due diligence must be done. There must be clarity with respect to due diligence, and the contours of liability must be clarified.”

The meeting, called at a day’s notice, was attended by a handful of MPs, representatives of industry and industry associations and lawyers. Civil society and the technical community were conspicuous by their absence. According to Sunil Abraham of the Centre for Internet and Society, civil society organisations were not invited and attempts to elicit an invitation from the DIT were spurned.

In a presentation on the process of formulating the IT Rules, including their consistence with Indian law, guidelines of mega Internet companies, and approach papers submitted by industry associations, the government used Google and Twitter’s transparency data to showcase the point that India stood out globally as the country which had made the least requests for removal of content.

The audience disagreed with the government’s claim that the Lok Sabha Committee on Subordinate Legislation had already scrutinised the rules, pointing out that it was meeting only on August 13, to discuss the issue.

Change in language

Stakeholders were unwilling to yield ground on their demands for a change in the language that is currently included in various Sections of the Rules. Of the 25 MPs whose names appeared on the list of invitees, only two made it to the meeting. Rajeev Chandrasekhar, an independent MP from Bangalore, said the IT Rules are an overreach on the law, lend themselves to misuse and cast an enormous liability on intermediaries. The issue needs to be discussed in greater detail by experts.

Trinamool Congress MP Derek O’Brian said freedom of the Internet must be protected at all costs especially since most content is user-generated. He agreed on the need for a mechanism to decide on the removal of harmful content but sought the involvement of State governments in making such decisions.

The Federation of Indian Industry and Commerce said it had consulted nearly 50 of its members whose consensus represented the need to remove some wrinkles from Section 3, especially 3(2) Section 79, and asked that a smaller working group of experts be set up to make those changes. Then the document should be put up for a wider consultation, especially with civil society.

NASSCOM, apex body for BPO and IT industries, wanted a clarification on the 36-hour clause. They also expressed concern about the interpretation, which may lead companies such as BPO and cloud computing to be treated as ‘intermediaries’, as well as reconstitution of the Cyber Regulations Advisory Committee or an appropriate redress body.

There was wide-ranging opposition to Section 3(2), especially with regard to the broad interpretation of the words ‘blasphemous’, ‘defamatory’, ‘ethnically objectionable’, and ‘disparaging’. Mr. Sibal showed a Yahoo ‘terms of service’ document wherein similar terms were used by the company.

‘Light touch regulation’

Defending itself, Yahoo said it expected a ‘light-touch regulation’ instead of the current rules. It raised several objections to Section 3. Yahoo was opposed to the fact that the onus of deciding what content should be kept or taken down was placed on intermediaries. It also pointed to the cost element involved. It was clarified that Yahoo was already in court, where it has appealed the constitutionality of Section 3(7).

Though Google and Facebook are known to have major concerns with the Rules, their representatives did not attend the discussion.

The CII raised questions about safe harbour and the issue of liability on the intermediary when it is forced to remove one private party’s content at the request of a second private party.

Due diligence burdensome

The Cyber Café Association said it was too small an entity to engage in detailed due diligence of the kind necessitated under the Rules. It would therefore be necessary to incorporate its views while redrafting the rules.

ISPs made a strong point about the confusion created by multiple orders from different courts being sent directly to service providers, and whether this entire piece could be better organised by way of procedure.

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• No, we’re not trying to censor the Internet: Sibal #Joke (kractivist.wordpress.com)

No, we’re not trying to censor the Internet: Sibal #Joke

New Delhi: Government has no plan to manage content on Internet but there should be a mechanism to redress complaints of aggrieved citizens, Telecom and Information Technology Minister Kapil Sibal said.

He also asserted the country has the sovereign right to bring all media networks, including social media, under Indian laws.

“The government will not be involved in managing anything. We do not want to interfere, we do not want to manage but if there are citizens who are aggrieved they should have a redressal mechanism,” Sibal said during a round-table on Information Technology (Intermediaries Guidelines) Rules 2011.

The round-table saw participation from Members of Parliament, Internet companies and industry bodies like CII, FICCI and Assocham.

Kapil Sibal in this file photo. Naresh Sharma/Firstpost

“All networks have to be subject to Indian laws. That is are our sovereign right” he said, adding that social media also needs to work with various stakeholders to ensure that it exercises due diligence in context of content that is hosted on it.

He said the government will organise many such round- tables with participation of all stakeholders in order to evolve a consensus on the matter.

“The good part is that the government is saying that it is not looking at censorship, not looking at controlling or managing the content. I think those statements are very important,” Nasscom President Som Mittal said.

Trinamool Congress MP Derek O’ Brien said as Internet is a people’s medium so its freedom should be maintained.

He, however, added there should be a mechanism to check harmful content but states should be consulted on defining any such matter.

PTI