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My first reaction as I stepped out of court number 3 after the Supreme Court of India pronounced its historic judgment on freedom of speech online yesterday, was one of disappointment. As much as there was joy that there won’t be arbitrary and unconstitutional arrests for offending and annoying speech online, the judges believe that there need to be special laws for the Internet. Secret blocking remains via Section 69, and I’m not convinced that the way they have written down Section 79 and its rules is the right approach.

First, on Section 69: The Supreme Court believes that there are sufficient checks and balances built into Section 69A of the IT Act. Here’s how the Section 69A process works:

The central government has to have a designated officer “not below the rank of a Joint Secretary” for the purpose of issuing direction for blocking under Section 69. Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the Designated officer. The complaint shall be examined by a Committee of Government Personnel who first have to make all reasonable efforts to identify the originator or intermediary (hosting companies/ISPs/telecom operators/Social Media sites/publications) who has hosted the information. The intermediary will be asked to appear before the committee within 48 hours. The committee will consider whether the request is covered by 69A, and if it is, the Designated Officer has to submit the recommendation to the Secretary, Department of IT, who can approve such requests, which will be sent to the intermediary to block.

In cases of emergency, the blocking may take place without any hearing, and the Designated Officer shall bring the interim direction to the committee.

A Review Committee shall meet at least once in two months and record its findings as to whether directions issued are in accordance with Section 69A(1).

The Supreme Court believes that this means that there are sufficient checks and balances in place, and has deemed Section 69 constitutionally valid.

Our Take

1. There aren’t enough checks and balances: where’s the accountability?
– What if the Central government’s Nodal and Designated officer are the same, then what?
– If all the executives in the Committee are largely from the Ministry of Home Affairs and the DoT, who are involved in issuing the orders, then what?
– If someone in the Review committee ever dissents on a particular order, does it make a difference if the rest are in favour? Will we ever know of the dissent? Will anyone ever dissent?
– If the person asking for the block or directed by the government to block is the same person who decides, or is of the same department, how can we be sure of a fair hearing?
– Will a government appointed committee of government executives ever oppose a government order?

Governments are known to fix committees so they are aligned with their own leaning. Where are the external checks and balances for Section 69? Who watches the watchdogs – the Review Committee?

The status of Section 69 is as bad as the US FISA courts, if not worse. At least the FISA court has judges.

2. Where’s the transparency? One aspect of Freedom of Expression is the right to receive that expression. If something is blocked, don’t we deserve to know that it’s been blocked instead of getting a 404 error? Even Kuwait has a placeholder page. If the government issues a press release on book bans, why not one on website blocks? Why doesn’t it maintain a list of sites that are blocked?

If my site is blocked, don’t I have the right to know why it’s been blocked? Mobango.com, a company owned by the People Group (Shaadi.com), was blocked in India for six months and didn’t know why for the longest time. Where was their Committee hearing? Where was the hearing for Vimeo, Github, Dailymotion (read), Imgur (read)? Shouldn’t they be informed of the process of getting a block removed?

If the blocking can be done, under Section 69, without a court order, why does one need a court order to get the block removed?

Transparency will ensure accountability. What the Supreme Court of India has done is ensured that the Government of India can secretly block sites without judicial and public accountability.

 

 

Note: The tweets were added later.

Image Credit: Flickr user Russell Higgs