There's something unusual and unexpected about the order from the Department of Telecommunications to ISPs, for blocking access to pornography in India. View the order here. Some observations: 1. Firstly, it has been issued under Section 79(3)(b), and not under Section 69A of the IT Act. Both provisions were contested in a series of petitions in the Supreme Court of India, along with Section 66A, which was struck down as unconstitutional, while Section 79(3)(b) was watered down. The difference between the two? Section 69A of the IT Act is meant for secret blocking. This allows the government to block access to websites, and it has certain processes in place to ensure that blocks aren't arbitrary, ad hoc or unconstitutional, and there is a review process as well. While we have our doubts about whether such processes will be followed, and believe there needs to be transparency and a process for getting blocks removed, the Supreme Court said that there appear to be enough checks and balances in place to prevent misuse. The process is detailed at the end of this post. Section 79 (3)(b), as Apar Gupta correctly pointed out to me, is actually meant to be a safe harbor provision, and not one that can or should be used for blocking. The idea behind this provision is that if a website gets a notice for taking down certain content, it has to take it down, or be held liable for the content. The intermediary can choose not to take…
