by Safwat Zargar, for Scroll.in. Crossposted with permission from Scroll.in

Internet service providers in the Valley are asking customers for written undertakings saying they will not access VPN applications. Army personnel allegedly check the phones of youth for VPN apps.

The 17-year-old boy from South Kashmir’s Kulgam district has a smartphone but he does not carry it during the day. When he goes out, he carries a simpler device with reduced functionality. “It’s just to avoid the attention of the army,” explained the teenager, who lives in Kulgam’s Damhal Hanjipora area. “They stop people and check their phones. I heard many were beaten up by the army when they found VPN apps installed in their phones.”

Virtual Private Networks, or VPN, allow users to mask their location and browse the internet more securely.

In Kashmir, there has been a surge in interest in VPN applications after the government recently allowed access to only 329 “whitelisted” websites after nearly six months of internet shutdown. The government has not explained why access was restored to such a limited number of websites. With many popular social media sites not being included on the government’s whitelist, Kashmiris have turned to VPN applications to get around the restrictions.

In South Kashmir, this has given rise to a new kind of tension between civilians and the army. According to residents in several Kulgam villages, army personnel allegedly check the phones of youth for VPN apps. If such apps are found, the youth are allegedly thrashed.

“Sometimes, they just seize your phone and ask you to collect it from the [army] camp,” said a teenager in Kulgam district’s Pombai village. “Who dares go to the camp to collect his phone?”

‘Using VPN to spread terrorism’

Sanam Aijaz, a television journalist, was travelling from Srinagar to Pulwama on Monday when he was stopped by army personnel at a checkpoint near Lethpora area on the Srinagar-Jammu national highway. “He asked me if I had a phone and if I was using any VPN app,” said Aijaz. “I thought maybe he doesn’t have a VPN and wants to use the internet or talk to his family. When I told him I am using one, he got furious. He abused me and told me – you are using this VPN to spread terrorism. I told him it’s a VPN, not an AK 47.”

According to Aijaz, he would have been beaten up if a local policeman near the checkpoint had not recognised him. “He intervened and told him [the army personnel] that he’s a journalist,” Aijaz said. “Only then did they return my phone and let me go.”

Scroll.in contacted the army for a response to allegations that its personnel were monitoring VPN use. “Army personnel are not involved in any action of this nature,” said army spokesperson Rajesh Kalia.

Keeping phones ‘clean’

In Damhal Hanjipora, the fear of being caught with VPN applications has been fuelled by a fresh incident. On the afternoon of February 1, personnel of the army’s 9 Rajputana Rifles unit in Noorabad allegedly swooped down on the area’s main market. “They thrashed everyone,” said a shopkeeper in the market. “Whoever they found in the market, they beat up. We don’t know what the reason was.”

Several reasons have been floated. “Some said Hizbul Mujahideen posters had appeared in the market during the night,” continued the shopkeeper. “Others said one of the army personnel had made a lewd comment about a local woman, triggering an argument between village residents and the army. Others said it was because of mobile internet.”

A senior police officer in Kulgam district confirmed an army “confrontation” with local residents. “The matter was resolved amicably” after the police intervened, he claimed.

According to him, the army reacted after a stone allegedly hit a soldier on patrol. “It was just a minor issue and there were no serious injuries,” said the officer. No case was registered in the incident, he added.

The 17-year-old teenager who leaves his smartphone at home when he steps out had a different account. His father was beaten up, he said. “They just dragged him from a shop and beat him ruthlessly,” the teenager said. “He had injuries on his shoulder and hand.”

The incident, and rumours that the army was snatching phones, had prompted many teenagers to keep their phones “clean”, explained the teenager.

In Wari Pora village, also part of Damhal Hajinpora area, a man in his early 20s said he uninstalls VPN applications on his phone every time he goes out. “I haven’t been stopped by the army but I want to ensure that they don’t find one on my phone if they stop me at a checkpoint,” he explained. “My father advised me to carry a simple phone if I am going out. So I use VPN only at night.”

No ‘misuse of internet’

Another way in which VPN use is being controlled in Kashmir is through written undertakings taken from broadband internet users. Broadband remains barred to most ordinary Kashmiris, who must rely on slow 2G internet on mobile phones. But organisations and companies providing essential services have been allowed access to broadband.

Private internet service providers in Kashmir say they asking for a written undertaking from such users, promising that their internet connections will not be used to access social networks, proxies or VPN applications.

The undertaking also says that no wireless internet or WiFi access will be given to the customer and only a Local Area Network of LAN-based wire connection would be functional. LAN refers to a network of connected devices that exist within a specific location.

There are more conditions in the undertakings reviewed by Scroll.in. “No encrypted file containing any sort of video/photo will be uploaded” and the customer “will be responsible for any kind of breach and misuse of internet”. The customer also promised “complete access to all its contents and infrastructure as and when required by security agencies”.

An official from a major internet service provider in Srinagar claimed they had not been prompted by security agencies to ask their customers for guarantees. “These undertakings are for our own record and the copies of the undertaking will remain with us,” he said. “No agency has asked us to do this. We are doing it on our own.”

But another official, from a different private internet service provider in Srinagar, said a copy of the undertaking had to be submitted to the government. “Basically, we have guidelines from the government to take an undertaking from a customer,” he explained. “Obviously, they can’t say it openly. Otherwise, why would internet service providers be demanding them all of a sudden?”

These written undertakings had first come to light in November, when around 80 internet connections were restored to various outlets, including hotels, tour and travel operators, guesthouses and government offices in Kashmir. “At that time, the internet restoration was entirely supervised by the police’s cargo unit and the directions for restoration would come from IG’s [inspector general’s] office,” said the major Srinagar internet service provider. “So the declarations would go to the police. The client had to go to the police first and then we got mails from the police approving restoration.”

A senior police officer in Srinagar said it was the government which involved the police in internet restoration back in November. “At that time, some companies had approached the government saying that they were suffering a lot due to internet blockade,” he explained. “Their point was that they had nothing to do with messaging and social media and were purely concerned with connecting with their clients. It was they who gave undertakings to the government that if internet was restored, they would not misuse it. They would use it for business purposes only.”

The system has changed since then, he claimed. “Now, it’s between the subscriber and the telecom service provider,” said the police officer. But the content of the undertakings that appeared in November and those signed by customers now has not changed much.

Legality of the undertaking

None of the government orders on the restoration of internet services in Jammu and Kashmir talks about a written undertaking. They just mention that internet service providers shall be responsible for ensuring access to “whitelisted sites only.” This list is composed largely of government and “utility” websites.

The order issued by Shaleen Kabra, principal secretary to the government of the Union Territory of Jammu and Kashmir, on January 24 said: “All those who are provided access to the internet shall be responsible to prevent any misuse, for which they shall take all the necessary precautions, including change of accessibility credentials, maintaining records etc., along with the precautions as already directed.”

The snapping of internet and telecom services is governed by sections of the Indian Telegraph Act, 1885, and Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

Lawyers point out that there is no legal precedent or justification for the undertakings. “This is shocking,” said Shreya Singhal, an advocate at the Delhi High Court. “These undertakings are prima facie illegal and can be challenged.”

Singhal, whose petition in the Supreme Court led to the striking down of the draconian Section 66A of Information and Technology Act, 2000, said the undertakings violated fundamental rights. “As observed by the Supreme Court recently, now the right to internet is a fundamental right,” she explained. “Under the guise of these undertakings, they are trying to hamper, hinder and completely dislodge my rights.”

She was also critical of the way the government had implemented the Supreme Court’s January 10 order, where it was directed to review the internet shutdown. “Saying that we are restoring internet and 2G and asking for undertakings is completely opposite,” she said. “It’s a farcical thing that they are doing, this odd compliance and non-compliance of the Supreme Court order. This is completely wrong. It can’t be that you are giving one right and then actually taking away three more.”

Privacy violation

Sarfaraz Wani, an advocate at the Jammu and Kashmir High Court, specifically criticised the clause promising security agencies access to a customer’s content and infrastructure. “It violates your privacy,” he said. “And as observed by the Supreme Court in various judgments, like Aadhaar, the right to privacy is considered a facet of the right to life. So, by way of judgments, the right to privacy is also a fundamental right.”

The fact that these undertakings were taken discreetly also cast doubts on their legality, Wani added. “An undertaking can’t be taken in this arbitrary manner,” he said. “They are not showing it anywhere. It doesn’t follow the reasonable, just procedure.”

Another lawyer in Srinagar said that such undertakings reflected the executive’s overwhelming dominance over the judiciary and the legislature. “This undertaking is just an executive order and it’s not legally valid,” he remarked. “But given how things in Kashmir have been happening, I am not surprised.”

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This post was originally published at Scroll.in. Crossposted here with permission.

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Note: The headline has been changed and minor edits have been made by MediaNama.