“The state’s becoming a lot smarter when it comes to attacking rights” said researcher Bedavyasa Mohanty at Medianama’s first #PolicyNext conference on June 27th in Delhi, to get an overview of the internet and technology policy space. One of the focus areas of the discussion was the debate on rights versus the state; see our coverage of the event here. He likened rights versus the state to “David and Goliath, individual rights versus the state.“ Nehaa Chaudhari of Ikigai Law said, in the context of Aadhaar, that denial of service was an effective tool that the state adopted time and again.

The panel extensively discussed the idea of rights vis-a-vis the insurmountable growth of technology, the state’s need to collect citizens’ data, business interests of enterprises, and even the classist division in rights.

Please note that quotes aren’t verbatim, and have been edited for clarity.

State vs rights: ‘Not infringing free speech should be easy for the state’

Malavika Raghavan of Dvara Research said that ensuring civil rights should be an easy thing for the state to do. “It’s much easier to guarantee civil political rights for the state because it just doesn’t have to infringe your speech,” she said.

Mohanty on the other hand said that the state has constantly shifted narratives and is becoming smarter in attacking rights.

”The State is also shifting narratives by itself and deploying those shifting narratives. The draft encryption policy in 2014 faced a huge uproar, but that didn’t happen with the Data Protection Bill. So, the objective remains the same, but the narratives are constantly shifting and the state’s becoming a lot smarter when it comes to attacking rights”
– Bedavyasa Mohanty, Researcher

Beni Chugh from Dvara Research who was seated in the audience said, “One pattern that has come out in both the panels is that perhaps the citizen state contract is much weaker when the state is leading the citizen’s privacy and also the principal agent model is much weaker when the state is dealing with corporations who might have an impact on citizens’ privacy.”

Talking about Rebecca McKinnon’s study that ranked telecom and internet companies from 27 countries on the aspect of privacy, an audience member Shubhodeep Jash from New America said that only two companies participated in the India. However, he wasn’t sure about the disclosures made by them. “Did Airtel report specifically as to how many shutdown requests came to them in 2017-2018?” he asked. Another audience member, Arun P, research scholar at the University of Delhi pointed out that “Puttaswamy did discuss about necessity and proportionality, but the problem with our surveillance law is it does not even give basic statistical information of number of requests they have sent, the requests they have received in response from the companies.”

Bedavyasa Mohanty, Researcher

Tech vs rights: ‘Tech is everywhere, which is why it’s all the more important for us to get this right’

Mohanty argued that while there is a lot of talk about individual rights and the state’s role in it, we often forget how seemingly unstoppable developments in technology often undermine basic human rights. “It’s really difficult to keep up with the rapid evolution of technology. The truth is that the people who innovate and create technology are often able to direct the narrative around it. And then individual rights come as an afterthought,” said Mohanty.

“Lawyers keep focusing on individual rights and policy-making being central to the country’s development, but they in fact, aren’t central to how technology develops”
– Bedavyasa Mohanty, Researcher

Tech is increasingly becoming all-pervasive. It’s not a vertical sector, it’s everywhere – your data, the internet, free speech, the whole gamut, which is why it’s all the more important for us to get this right,” Chaudhari said. 

“Only the person building the product knows how it can be deployed, and therefore I think that you need to be responding to user harm and user right and not override those. You can’t expect the user to say build your encryption standard in this particular way so that when there’s a third party server accessing my chats, that’s a completely incomprehensible standard, and I think there are good ways to build around that just by using principles, using rights and holding people accountable to principles, rights and harms and then leaving them to build technology”
– Malavika Raghavan, Dvara Research

Business vs rights: Can businesses in India have rights?

“From the perspective of tech companies, both startups and big tech companies are essentially looking at two things. One, they’re looking for a certainty of the process and an idea or visibility of the regulator’s thinking,” Chaudhari said before adding “The second is the content of the regulation itself.”

For Chaudhari, however, “in the past two years, we’ve been lacking on at least one of these two counts. No matter which tech policy instrument I pick up, there have been very few, that I would say, have got right on both levels, on the process of getting through the regulation itself as well as the content of the regulation.”

The harm done to businesses by failing on one of these two fronts would eventually befall on the users and the general public, according to Chaudhari.

“Most of the conversation today has unfortunately become that of industry versus the state and that’s actually a failure on all of our parts. When the industry is affected, you are also fundamentally talking about harms to the user”
– Nehaa Chaudhari, Ikigai Law

Nehaa Chaudhari, Ikigai Law

Collective vs individual rights: ‘Individual privacy is seen as a decadent for a collective’

Chaudhari said that the idea of collective rights goes hand in hand with the argument of national interest, that we are seeing play out a lot these days. Talking about the Srikrishna Committee’s Data Protection Bill and the E-commerce Policy, she said that the former seems to be still grounded in the notion of individual rights according to the Puttaswamy framework, while the latter is completely opposite to it. “The Shrikrishna Committee said that the Data Protection Bill is a concept that we need to think about a little bit more…We’re talking about the individual being in control of their information,” she added

“The e-commerce policy draft just does a complete u-turn, because it takes you to a property rights ground it has been working on and starts talking about data ownership, which is then tricky territory. The e-commerce policy is more of a collective rights argument”
– Nehaa Chaudhari, Ikigai Law

Mohanty said, “One of the things that we’ve seen in the e-commerce policy in terms of demand for community data is that the government believes it doesn’t have enough data, and so for example, they want traffic data from Google maps or from Uber and say that that’s community data belonging to the Government of India.”

Nikhil Pahwa, Founder & editor, MediaNama, said that “the national security narrative is becoming overbearing and how can we protect rights in the environment that we are in. Individual privacy is seen as decadent, a problem for a collective, and the integrity of the state to be maintained.”

Class vs rights: ‘Rights were never championed by the most powerful in India’

Do rights mean different to different classes in the society, and should the fundamental ideas of privacy and right to speech be not constant and cut across class divides?

Malavika said that there is a difference in the way India perceives rights as opposed to how western countries like the US do. For her, this distinction is drawn because rights in the US were never championed by the state, but by powerful people in the society, unlike here in India.

“India went straight into constitutional rights and in countries like the US, it is always championed by the most powerful in society. As each interest group gained rights, women’s movement boomed more, gay rights movement boomed more, but whereas for us I find one reason perhaps in the political framework, it [privacy] is more expendable, is funnily enough it was not necessarily always championed by the most powerful, by the ones who could monetise at the most,” she said

“We do low-income household stories. I would love to actually have some other think tank or research agency do high-income stories – like just the picture of a guy, at the end of the day and he’s is in a 3-piece suit…  he can’t make a phone call because his phone is blocked … I think that would resonate with the people making policy.”
– Malavika Raghavan, Dvara Research

Malavika Raghavan, Dvara Research

Referring to Aadhaar biometric authentication, Nikhil Pahwa said, “One joke I had made around the time the Aadhaar debate was – because low-income people were being deprived of rations – let’s make it [Aadhaar authentication] mandatory for flights. Every time it’s going to fail, someone won’t be able to take a flight. Then we’ll see what happens,” he said.

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MediaNama’s first #PolicyNext conference, held in Delhi, was supported by Internet Society (APAC), OYO, Google, Amazon, Mozilla and Facebook. Digital Empowerment Foundation was the community partner for the event.