Chaudhuri on IIPM and J&K Police on Afzal Guru approached courts seeking takedown of online material

An investigation by The Hindu into the recent blocking of online content related to Arindam Chaudhuri’s IIPM and the hanging of Afzal Guru shows that on February 14 and 15, the Department of Telecom, on orders from various courts, issued as many as three different lists to Internet service providers (ISPs) and telecom service providers (TSPs), asking them to block access to URLs, Facebook pages and YouTube videos. On these two days alone, the number of blockings and takedown items totalled 164. (See chart)

The first list on February 14 included 55 Facebook pages almost entirely linked to Afzal Guru. The second list was divided into two parts: The first part ‘A’ included 72 https, of which the first item related to content on the UGC website: http://www.ugc.ac.in/pdfn/3604913_English.pdf. The remaining 71 included news items, blog spots, critiques and articles on Faking News, Rediff, First Post, Outlook, The Caravan, Indian Express, The Times of India, The Economic Times, and others, mostly related to IIPM. Additionally, 5 URLs in the second part were linked to courts and justice-related information, including two related to the Bombay High Court. On February 15, the DoT issued the third list containing 30 Facebook pages, again almost entirely linked to Afzal Guru and two connected links on YouTube.

Courts order takedowns

Senior officials in the government told The Hindu that the blockings were ordered by courts — which the DoT and CERT-IN were obliged to implement. While it is well known that Arindam Chaudhuri went to court to challenge what he believed was “defamatory content” against IIPM, the second set of blockings was based on a court order procured by the J&K police. A deeper analysis reveals that the ordering of such wide-ranging blocking was a tad hurried — without notice being served on either the DoT/DIT or the parties concerned who could have opposed it. The legal procedure requires that once a court order is served, the DoT and CERT-IN will have to implement it unless it is appealed and stayed.

For example, the blockings related to court and justice-related information were all for illegal domains posturing as the Bombay High Court. The request was made by Mukund Pawar of the Mumbai Crime Branch and served by the Esplanade Court, Mumbai, a senior DoT official told The Hindu.

Furthermore, unless the orders invoke specific sections of the IT Act, which defines the circumstances under which online content can be removed, their very tenability may be in question.

Investigation reveals that blocking of URLs, pages and websites in the past too occurred because courts passed orders in or without the presence of the affected parties. These orders are then posted by lawyers of companies to individual ISPs without informing the DoT or CERT-IN, circumventing established procedures.

The ISPs, who are licensed by the DoT, have made token protest, preferring to let the DoT engage with the Law Ministry to enlighten the courts on the procedure to be followed for blockings, takedowns and blackouts.

The current case shows that there is a serious breakdown in procedural due diligence at the judicial and lawyers’ level before orders are passed — and served — sometimes directly on ISPs.

ISPs lack technology

A review of recent blockings shows that the technological shortcomings of the ISPs are also responsible for the widespread blocking of entire websites rather than specific items, content or pages/paragraphs. Though the DoT and CERT-IN orders specify takedowns of only URLs and not entire websites, most ISPs are unable to comply with them since a majority of them do not possess expensive technical software, enabling targeted blocking of individual items. This results in either no blocking, or blanket blocking at Domain Name Servers (DNS) which block the entire website as against a particular URL or item. The current procedure shows that most ISPs depend on International Internet Bandwidth Providers to block URLs at the gateway level. However, if that fails, the blocking can only be enabled by the ISPs across the entire website.

The item-specific content blocking software is available from companies such as Fortinet or Net Suite but is seemingly priced in the range of Rs. 1.5 crore-2 crore, which a majority of the ISPs find prohibitive.

No established procedure

An analysis of the recent court orders shows a mix of reasons leading to blockings and takedowns — ranging from genuine national security and civil order concerns to those related to copyright, privacy and defamation. Currently courts do not follow a nuanced yet uniform countrywide legal procedure to distinguish among various types of appeals. Unless courts follow a process of blocking specific items, only after hearing the parties, and implement orders through CERT-IN or the DoT, such repeats, as in the Arindham Chaudhuri matter will continue to occur. This is especially true in matters of copyright, privacy and defamation.

Until August last year, the ISPs had received orders to block nearly 400 URLs. In several cases, even High Courts have issued ex-parte orders relating to the blocking of URLs and YouTube items, based on Commercial Interest Petitions, such as pirated movies.

Contrary to popular belief, in the current instance, the DoT and CERT-IN did not order blocking of their own accord. Instead, the government has decided to appeal the court order related to IIPM blockings. Several web experts confirmed to The Hindu that blocking of online items is itself outdated since the same items can be accessed through proxy servers.

Sources believe that there is an urgent need for comprehensive talks among the DoT, the Law Ministry, DIT and industry to streamline procedures for online blocking.

This article has been corrected for an editing error.