Note: A significant development since this post: Indian Government Blocks Typepad, Mobango, Clickatell

As a part of the rules being finalized to supplement India’s Information Technology Amendment Act 2008, rules are being included that will indirectly allow the Indian government to control content being published on the Internet. This is hardly surprising: last week, at the CII Content Summit, three government functionaries – Information & Broadcasting (I&B) Minister Ambika Soni, TRAI Chief JS Sarma and I&B Secretary Raghu Menon, had all mentioned concerns about content on the Internet, even as they tried to downplay content regulation:

– Sarma said that “How do you control the Internet? That is baffling and challenging, and it is fraught with issues of freedom and security. Security in terms of physical security and others. This will have to be studied over the course of next few months or the next year or so.”

– Menon pointed towards the UK and issues of pornography, saying that the IPTV Association in the UK is in contact with the ISPs to ensure that the ISPs provide regulated content. People who are concerned about this, they’re approaching the ISPs for what is appropriate or not. This is a subject which is outside the purview of the ministry I work in.”

Menon works in the I&B Ministry, and this modus operandi of dealing with ISPs would be the mandate of the Ministry of Information Technology, which is putting into place these rules for regulating content through ISPs. A few things to note from the rules (download) that have been drafted:

1. Definition of Blogs, Bloggers & Users: This is tricky: blogs do two things – they publish content, and have user generated content in the form of comments. at one level, they are a publisher, and at another, an intermediary. The guidelines however, clearly define a blogger only as a user, and that a blog is “a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video.” This is generic, and could mean any online publication, including ours, and online publishers would also come under the ambit of the definition of the term ‘users’. What is odd, is that the rules specifically define blogs and bloggers, when there is no apparent reason for doing so.

2. What can they block you for? There’s a problem with how wide the offenses under which you can be blocked, are defined. ISP’s and other intermediaries have to notify users (including online publishers and bloggers) not to use, display, upload, modify, publish, transmit, update, share or store any information that:

– (a) belongs to another person; (d) infringes any patent, trademark, copyright or other proprietary rights;

Our Take: this should be covered under the Copyright Act, not IT Act.

– (b) is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (g) causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

Our Take: There goes most of the Internet. Using phrases like ‘objectionable’, ‘disparaging’, annoyance and inconvenience, which are highly subjective, the government has given itself the power to block anything they want. Remember that if someone publishes a libelous comment, or a hateful comment, for which an online publisher should be an intermediary, the Government has the power to block the publisher. This post might annoy the government, so there goes MediaNama.

– (j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

Our Take: Clearly, a move that seeks to ensure that gives the Indian government has the same powers as a Hosni Mubarak had in Egypt, and was in a position to block access to any site that might be used to organize demonstrations. Again, remember that telecom operators are also intermediaries, so it impacts all mobile connections.

– (f) discloses sensitive personal information of other person or to which the user does not have any right to”

Our take: what happens to social networking sites, which are full of such information (particularly photographs published without explicit consent)? What of whistleblowing blogs or sites – does this give the Indian government, for example, the right to block Wikileaks in India, if they find that details of Swiss Bank account holders has been disclosed?

How they’ll block sites

The government has taken adequate measures to ensure that the process by which a request for blocking of sites goes through several check-points (page 29 onwards of these rules; pdf): Any complaint that has been sent to a Nodal officer can only be forwarded to a Designated Officer after it has the approval of the Chief Secretary of the concerned State or Union territory. Then the request is looked into by a Committee, which has a Designated Officer as its chairperson, and representatives not below the rank of Joint Secretary in the Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team. An order can be issued by the Secretary (Department of IT) to intermediaries (ISP), via the designated officer, to block access to the sites.

However, in case of an emergency (page 31 of these rules; pdf), the Designated Officer can expedite the blocking of any site by submitting a specific recommendation to the Secretary, Department of Information Technology, though this will have to be examined by a committee within 48 hours. The other instance is in case a court issues orders blocking of certain information on the web.

So, what does this mean?

It means that given that the Indian government is unable to control content on the Internet, it is giving itself enough powers to control access of its citizens to that content, by controlling the ISPs. The process by which it can block sites is fairly bureaucratic, and it will be difficult for a request from a normal citizen to be entertained. But what is alarming is that the government itself has enough opportunity, given how vague the reasons for blocking are, to block anything it wants to block. While you can hope for some maturity, we’d like to remind you what can go wrong if any entity in that chain of command is incompetent, or has malicious intent: in 2006, following orders to block certain sites, access to all blogs was blocked.

I’ll repeat what I said then – how can a few people decide what we get to view online?

Downloads:

– IT Act 2000

– IT(Amendment) Act, 2008

– IT Act Rules

– The Draft rule under section 79-Due diligence observed by intermediaries guidelines

Also read: How India’s Draft Cybercafe Rules Could Strangle Public Internet Access