LEGAL COLLAR AROUND THE NECK OF INTERNET
Image source: Pixabay
In the last few decades, the human race has witnessed few of the most magical transformations. If I am asked, I would say that the best part about human race and science is its interdependence. The former births the latter and in return the latter makes convenient the former’s life by changing it forever. To go back in time and think of the person who invented the wheel, little was known that a wheel would change the entire course of human existence. Science does get a little scary and tricky at times; after all we humans are perfectly capable of creating something we have zero control over collectively as a society. What if what we create today comes to haunt our tomorrow? What when this science starts overwhelming us and we fall short on ways to regulate it? What would we do when it becomes a lifestyle? Today, internet has taken over our lives in such an inevitable way, that the state of Kerala, recognizing it as a basic human right is to provide high speed internet to the poor. India’s biggest blessing and challenge is its diversity, may it be of people, their languages or their opinions. Where, in the North most state of India, the internet remains suspended, in the same country towards the end of the land in south, they are preparing for it to be celebrated.
The internet is important since a
layperson today makes use of four to five basic applications in order to get in
touch with their folks, majorly used are messengers and social media
applications like whats-app, Facebook with messenger, Instagram, Twitter,
Telegram etc. Till few years back, the most upgraded form of technology brought
to use for communication was telephone and simple text messages using cellular
phones and from the present when I take a look back, I feel life couldn’t have
been simpler. What changed the face of technology is the World Wide Web.
World Wide Web in the most simplest of terms
is figuratively an invisible web spread across the world through which people
are interconnected.
If it is as simple as a connection
portal, then how did internet take over the most of our lives? The most
substantial of all reasons is convenience of place and time. Unlike the
traditional mediums of communication, internet has a 24 * 7 availability, be a
person on their bed, car or using the water closet! Secondly, it is least time
consuming, can be used for reading news, watching TV to payment of bills. That
is how internet runs our lives these days, the efficiency of work increases,
researches have become wide, bill payments are instant and food is free.
However, when the face of convenience is removed, one sees the underlying
implications of these services.
Underlying implications of these services:
As
we say, there is a cost to be paid for everything; excluding the monetary cost,
there are in many other forms that we as consumers pay. Starting with our
privacy! The permissions we provide to all these applications and cookies we
accept to the advertisements we see on our screen while browsing the net,
everything has a purpose. For instance, while wanting to book a flight ticket, one
browses for the same, the next thing, they start receiving messages from travel
companies regarding bookings. How does this happen exactly? Well this is where
the advertisements play a part. To explain it in the most non -technical
language, I would say that while you are searching something on the net, in one
corner, occupying some tiny space rests this advertisement. This tiny
advertisement is a small window through which the operator can see you and
trace your actions. And then the data collected is brought to use. These
advertisements are mostly seen on browsers and social media applications.
End-to-end
encryption:
What is this end-to-end encryption and
how does this benefit us netizens? How does it function? Think of it as a
tunnel, the first opening of which is the screen of the sender whereas the
second is only at the screen of the receiver, and that is how whats app promises
full proof protection to your privacy. We discussed the correlation between advertisement and privacy above,
the next thing to learn is the correlation between advertisements and their
impact on users.
Advertisements and their impact on
users:
What
mostly impacts people are political advertisements. Ahead of the UK’s General
Election and as the most awaited Presidential Election of the US approach, twitter divided the netizens by saying it is banning
political advertisements. As, “it
believes that political message reach should be earned, not bought”. On one
side, where it seems fair because political advertisements when seen
frequently, irrespective of the personal opinion does impact the subconscious
mind of an individual and of society in the bigger frame. However, sadly, even
though Twitter maybe is playing its part by not selling or allowing to sell
political opinions, it isn’t the only fish in the ocean and hence this decision
shall impact the smaller section of politics. As this makes it difficult to
reach out to people with political advertisements using twitter, but you see,
it makes it difficult to reach out to people, even for those with organic and
uncontaminated messages. Since these smaller parties in their adolescent age
have shallow pockets, only those are ruled out, whereas the fully grown whales
opt for other costlier media like Television.
How do the most cautious of us end up giving
permissions to these operators and admins? Answer lies in the agreements that
we sign before using any application or online services. We as consumers aren’t
given any say in it; these agreements are more of TAKE IT OR LEAVE IT nature
and are legally are called standard form contracts.
Standard form
contracts:
In such contracts, the consumer or to say
buyer is left mute with no say as there is no space left for negotiation. The
Standard Form Contract is a close relative of the “agree and proceed” box. This
acts as a bouncer that stops you from using the application or web page. It is a
pre – requisite for using the product. Logically and legally, the consumer
should have a say, no? However, since these applications and services are
online, with no face to face interaction in between the consumer and the
seller, it would be utterly tedious to draft customized contracts for these
widely spread clientele. And the giant companies taking advantage of the same
purposely opt for bulky contracts which lean in favour of the companies than
the consumer.
POLICIES AROUND THE WORLD TO REGULATE INFORMATION ON
INTERNET:
According
to the research paper,” ILLEGAL AND HARMFUL CONTENT ON THE INTERNET” published
by the European Union, these are the
reasons as to why internet needs to be regularized regardless of its benefits.
• National
security (instructions on bomb-making, illegal drug production, terrorist activities);
• Protection of minors (abusive forms
of marketing, violence, pornography);
• Protection of human dignity
(incitement to racial hatred or racial discrimination);
• Economic security (fraud,
instructions on pirating credit cards);
• Information security (malicious hacking);
• Protection of privacy (unauthorized
communication of personal data,
electronic harassment);
• Protection of reputation (libel,
unlawful comparative advertising);
• Intellectual property (unauthorized
distribution of copyrighted works,
e.g. software or music)[1]
In order to regulate these services and the content
provided, the service providers will have to be put in a box. The first major
issue being, there isn’t just one person or entity which is a service provider
here, followed by the nature of services provided. They differ and vary, from e
– mails to soft media. What we need is a code of conduct for these network
providers. The scenario around the world as per the research paper by Peng Hwa Ang of the Nanyang
Technological University Singapore is:
United States of America:
All
electronic communication in the USA is regulated by the Federal Communications
Commission. In general the United States, in line with the free speech
principle expressed in the First Amendment, has minimal content regulations. It
does not mean, however, that the US has no regulations for the
Internet.
France:
France
has attempted to regulate the Internet through using a mechanism established
for policing the Minitel. It has proposed using inspectors of its famous
Minitel to prowl the Minitel system inspecting content to ensure that
information providers comply with the terms of their contract with France
Télécom. If the approach is implemented, France
will join countries in the Communist bloc to manually inspect Internet content
as a matter of course.
Currently,
however, the legal position is uncertain because the section of the French law
that created the policing mechanism was declared unconstitutional for vagueness
by the French Conseil Constitutionnel (Constitutional Council) [ibid].
Singapore:
Singapore has
adopted a multipronged approach to Internet censorship. First, the Singapore
Broadcasting Authority, which regulates Internet content, has said that the regulations
are targeted only at the function of the Internet that is of a broadcast
nature. Second, it has adopted the peculiar, perhaps even unique, idea of the
class license: certain classes of content are deemed to be automatically
licensed provided a code of practice is abided by. In effect, censorship is
after, not before, publication. Matters of race, religion and politics are
given special attention on the Internet. When the code is breached, the license
is revoked.
China:
China has
publicly declared that it is looking at Singapore's attempts at media
regulation. China's regulations, however, go much further than Singapore's:
only the comp and sci newsgroups are allowed; access is through filters and
even then using a handful of government-controlled access providers; besides
pornography, political and linguistic matters are also censored.
Germany:
Germany recently
drafted a "multimedia" law that, among other things, censors
pornography and anti-Semitic propaganda. Acts already prohibited in Germany--such
as denying the Holocaust, distributing hard-core pornography to minors and
conducting fraudulent business--will also be illegal in electronic form.
Others:
The European
Commission has recommended a voluntary code of conduct on the Internet, and
suggests using labeling and filtering along the lines of PICS (Platform for
Internet Content Selection). There are however, at least two problems. First,
the labeling and filtering systems are not compatible. Second, the European
Union has to develop a framework to clarify the administrative rules and
regulations that apply to access and content providers.[2]
The
enactments which govern the internet and telecommunication Industry in India
are:
·
The Indian Telegraph Act, 1885
(Telegraph Act)
·
The Wireless Telegraphy Act, 1933
(Wireless Act)
·
Telecom Regulatory Authority of India,
1977 (TRIA Act)
·
Information Technology Act,2000 (IT Act)
·
The Indian Penal Code, 1860 (IPC)
·
Indian Contract Act, 1872
Irrespective
of the existence of all the above enactments it seems that our government along
with Judiciary is a little overwhelmed with the present scenario in the country
pertaining to the internet and the occurrences associated to it. The most
recent example being the revelation by Whatsapp confirming that an Israeli spyware, called Pegasus, was
used by operators to spy on journalists and human rights activists in India.
The first question arises, is the government within its legal rights to do so? K. N. Govindacharya, an RSS ideologue, over the Pegasus
NSO row, filed a Public Interest Litigation against Facebook, Whatsapp, MEITY
and the Union of India, alleging whatsapp of having committed perjury.
In the affidavit in reply to the PIL
by K. N. Govindacharya, Whatsapp took a very diplomatic and generic stand by
highlighting its End – to – End Encryption as the key feature and by pointing
out that the attacker group did not have a decryption key. However, the
deponent did say that there was vulnerability in the application, which the
Israeli group exploited, for their benefit, which happened only after the
messages were decrypted on the receiver’s devices.
In
another PIL filed in the SC, the
notification issued under Section 69 (1) of the Information Technology Act,
2000, read with rule 4 of the IT (Procedure and Safeguards for Interception,
Monitoring and Decryption of Information) Rules, 2009, was challenged saying
that the concerned provisions will empower the government to get inside any
gadget used by any citizen, and that surveillance on the same was needed. And
that the order allows the central agencies and authorities to directly
intercept and hack a person’s privacy. In
this matter too, the deponent filing the affidavit in reply maintained a
generic tone by saying that the impugned order rather limited the scope of
surveillance than encouraging it liberally. Also that there is no blanket
permission granted to any agency and that the surveillance is required to
counter threats to National Interests.
Since, the crust of
both the PILs above is Sec 69 of the Information Technology
Act, 2000 (IT Act) , let us read it::
o
69 Power to issue directions
for interception or monitoring or decryption of any information through any
computer resource. -
o
(1) Where the Central
Government or a State Government or any of its officers specially authorised by
the Central Government or the State Government, as the case may be, in this
behalf may, if satisfied that it is necessary or expedient to do in the
interest of the sovereignty or integrity of India, defence of India, security
of the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence relating to
above or for investigation of any offence, it may, subject to the provisions of
sub-section (2), for reasons to be recorded in writing, by order, direct any
agency of the appropriate Government to intercept, monitor or decrypt or cause
to be intercepted or monitored or decrypted any information generated,
transmitted, received or stored in any computer resource.
o
(2) The procedure and
safeguards subject to which such interception or monitoring or decryption may
be carried out, shall be such as may be prescribed.
o
(3) The subscriber or
intermediary or any person in-charge of the computer resource shall, when
called upon by any agency referred to in sub-section (1), extend all facilities
and technical assistance to-
o
(a) provide access to or
secure access to the computer resource generating, transmitting, receiving or
storing such information; or
o
(b) intercept, monitor, or
decrypt the information, as the case may be; or
o
(c) provide information
stored in computer resource.
o
(4) The subscriber or
intermediary or any person who fails to assist the agency referred to in
sub-section (3) shall be punished with imprisonment for a term which may extend
to seven years and shall also be liable to fine.][3]
The
subject matter of the second PIL mentioned above is the official order of 20th
December 2018, by the Cyber and Information Security Division of the Ministry
of Home Affairs, which enlists 10 authorities empowered to bring to use sec 69
of the said act. The link to the impugned order has been provided in the
footnotes.[4]
The powers under sec 69 provided to the agencies are direct,
which means, the said agencies do not need to place an application, formally
placing a request before a judicial magistrate or any judicial officer for a
warrant or permission to intercept with the privacy of the individual in
question. The authorities concerned to the said section of the IT Act are of
administrative nature, which naturally lack the training a Judicial Officer
undergoes. Hence, it cannot really be promised that the principles of equity,
good conscience and natural justice will be kept in mind before passing an
order for intercepting the privacy of some individual involved. If the agencies
are required to make a case beforehand then the fear of arbitrariness and
draconian utilization of the impugned provision shall be reduced, if not
eliminated. The entire purpose of having multiple wings in the government is to
decentralize the power from a single wing’s hand and if the same principle is
kept in mind, it definitely shall make the concerned agencies answerable to a
higher authority, making them liable for their actions.
To
conclude, let us keep aside the impact that the internet has
on a digital native’s life, let’s look into the other loopholes it has. To
quote a few that we so often see but ignore, you must have come across a tiny
tab at the end of the screen whence you open Google photos asking you, if two
different pictures are of the same person? We, so unconsciously agree but what
it internally does is send the software back a message saying, “well done you
have identified two angles of a same person” a leap for better facial
recognition. We have so involuntarily but knowingly stopped developing
photographs to store as memories, rather we need Google reminding us every
year, on the same date, the memory you had or a moment you captured.
In the beginning of the paper, we discussed
how once we search for a plane ticket, we have travel companies pushing out
advertisements but do you also know that the common trick used by frequent
explorers is to search for online tickets in the incognito mode, so that there
isn’t a hike in price when they get to confirmation. Political bureaucrats
exploit a user’s social preferences, likes and follows to such an extent that
we are so often let with the impression that the majority is on our side.
The next major hack would not be of
our social media and interactions accounts or our smart devices. We are sliding
into an era where the stage is set for an upcoming act of the human brain hack
and psychological alternation of the thinking capacity; collectively, we as a
human race are becoming less smart. Even at our present times of this
continuous automation of technology, how very blinded are we to not see and not
assume that in the end the mighty corporations may only team up to profit from
all the free services they provide us, in exchange of our human behavioral pattern
that we so easily display to them. Imagine waking up to see that your photo
backed up app has logged you out and insists on an initial deposit to avail
access to your photos, it is at that moment the significance of a digital
printed photograph will be recognized. In conclusion, the mass is at the end of
getting affected. Eventually, the question thus lies, whether it is going to be
in the aspect where we have recognized the internet as our fundamental right,
while understanding the implications that come along with it and framing other
laws for the subsidiaries or ignoring the same, voluntarily giving the knightly
corporations and the government control over our pseudo private lives.
If we choose the former the only
prevailing solution is that we have sufficient laws regulating the areas that
need to be regulated. This however, could turn to be a challenge as this
virtual world is ever expanding. This demands increased measures to govern the
different areas of function.
The thought-provoking part of this
issue isn’t the claim that Internet Access is a human right, but
rather the exceptionally broad portrayal of the scope it will have once
the government regulations are fit into the system. There should be clear and
unambiguous regulations brought to balance between the privacy of an individual
and the degree of authority bound upon him.
The country wise internet freedom
that we have discussed above will always be in consonance with the law of the
land and never contradict its grundnorm; however, as we have seen that the
government will always have an upper hand in the name of National Security, it
has to be made sure that the laws and its provisions are made plausible not
only legally but morally as well.
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