On 6th December 2016, MediaNama had held a discussion in Delhi, on issues related to Internet Shutdowns, with support from Facebook and STAR India . The following are notes based on these discussions. Read Part 1 here.

Shutting down the Internet can have wide-ranging impact, on individuals, businesses, and even the law enforcement authorities who actually enact them in the first place — these aspects are covered in Part 1 of our discussion.

But what exactly drives law enforcement and government authorities to block Internet access in the first place?

Law enforcement challenges

Mahesh Uppal, a telecom consultant, said that it’s impossible to say that widespread Internet access can never cause rumour-mongering to proliferate and cause challenges to law enforcement. He said, “Could we as professionals in the Internet space seriously argue that there are no circumstances ever that this could be an issue? We can’t! So I think the counter-data that we are really talking about is –whether any reasonable person would actually suggest that this is something where threats to security are impossible — using or abusing the Internet. I don’t think anybody can argue that. If you look at what has happened with Snowden, you can look at it the other way around and say that well people genuinely believe that there are security implications of what is going on in the Internet.”

Subho Ray, president of industry association IAMAI, said “Now in practical terms if you’re giving a SP of a district 300 armed guards with the power to fire at people I don’t in principle believe that the guy doesn’t have the power to shut down the Internet in that district.” But he added that law enforcement is increasingly resorting to digital techniques before carrying out traditional investigative techniques. “I have heard cases where people have been kidnapped  in  UP. First thing that a law enforcement officer does is come to your house and say ‘what’s on his Facebook? Track the phone calls’.

“Even before they have gone and spoken to the school and found out where the guy was, what was he doing at that time when he was kidnapped that anybody saw it, the neighbor saw it or not and I know this is becoming a habit increasingly with law enforcement authorities as an alibi. Some of you know [cyber security consultant] Rakshit Tandon, he consults with the UP police — and in every instance, he is the first person to be called. ‘Hack this person’s Facebook and phone and find out who he was speaking to’. Even before they have spoken to his relatives…. So my point is that let’s not allow Internet or mobile calls or digital medium to become an alibi for real empowered people to enforce real law, and real enforcement at the ground level

Adnan Hasnain Alam, a senior consultant at Netsil, was of the opinion that shutdowns may be a wiser choice than individual digital surveillance, as it works out better from a privacy perspective for each person affected, and because governments are hesitant to make shutdowns happen.

“If you don’t use blunt tools, you will actually have to increase surveillance, and that is something that’s kind of an unacceptable to me, because the potential for misuse of individual surveillance is far greater than a blunt tool which is applied to the whole population and the effect is spread [throughout] and the governments are also hesitant to use against everyone.”

Legal issues with shutdowns

Brajesh Jain, an advisor at Spectranet, pointed out that although it is easy for Internet providers to immediately shut the Internet down on government orders, the scope of the area they’re shutting down can be narrower. For instance, he said that with local intelligence, it is possible to map which IP addresses correspond to which area and restrict Internet access in a surgical way that doesn’t affect access to the larger population.

Parul Sharma, an analyst at the National Law University Delhi’s Centre for Communication Governance, pointed out that the standard for restricting free speech is usually on whether the speech in question incites violence. “When it comes to situations like riots etc, when exactly must the state take action is something that is usually deferred to the state or administrative agency on the spot, and they’re the ones who usually decide [what to do]. Having said that, it’s possible to identify situations and train individuals so that they can work within these counters such as– they can judge whether there’s enough incitement to violence happening or not, and train them on these standards that the Supreme Court has set. While the Supreme Court has set those standards, I don’t think every individual law enforcement officer who’s supposed to take this decision would be aware of those standards. So I think educating them on those standards would be an effective way of developing the countours [of their approach]. I don’t think you can identify each and every situation when that trigger actually occurs, but you can set the legal benchmarks and educate them.”

Manish, a research associate at the Centre for Policy Research, pointed out that “Sec 144 is a provision that existed long before the Internet, and Internet shutdowns,” almost a century. He added, “There are five main elements to Sec 144, so when, who, what, why, and how it can be imposed. And some of these are worded in extremely broad terms … The magistrate may direct any person, and in a subsequent sub-section it says it may apply to a specific person or to the public at large. And what does the order contain? It may direct to abstain from a certain act, or take a certain order with respect to property in their position. So it can practically direct you to do anything.

” … It’s been used for everything from installing CCTVs outside liquor shops to before the cyber-café regulations came in requiring cyber café owners to maintain records — the most common use is to prevent public gatherings, so more than five people in a particular place. It’s been used in Muzaffarnagar and elsewhere, in other instances of communal violence, to prevent newspapers from being circulated.”

Madhav Chandavarkar, a research associate at the Takshashila Institution, pointed out that the arguments for shutting down the Internet are similar to those deployed for ‘pre-censoring’ films. He compared the vast influence that films have over the populace to the communal tensions that quick proliferation of misinformation can have in a population. “World developments have shown that no population is capable of handling misinformation,” he said. Note that this discussion was held before Donald Trump’s victory in the US, after which the concept of weaponized misinformation got the now-common name ‘fake news’, which was discussed in a different open house.