To preserve freedoms online, amend the IT Act
Look into the mechanisms that allow the government and ISPS to carry out online censorship without accountability
The issue of blocking of websites and online services in India has gained traction after internet users reported that services like Reddit and Telegram were inaccessible on certain Internet Service Providers (ISPS). The befuddlement of users calls for a look into the mechanisms that allow the government and ISPS to carry out online censorship without accountability.
Among other things, Section 69A of the Information Technology (IT) Act, which regulates takedown and blocking of online content, allows both government departments and courts to issue directions to ISPS to block websites. Since court orders are in the public domain, it is possible to know this set of blocked websites and URLS. However, the process is much more opaque when it comes to government orders.
The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, issued under the Act, detail a process entirely driven through decisions made by executive-appointed officers. Although some scrutiny of such orders is required normally, it can be waived in cases of emergencies. The process does not require judicial sanction, and does not present an opportunity of a fair hearing to the website owner. Notably, the rules also mandate ISPS to maintain all such government requests as confidential, thus making the process and complete list of blocked websites unavailable to the general public.
In the absence of transparency, we have to rely on a mix of user reports and media reports that carry leaked government documents to get a glimpse into what websites the government is blocking. Civil society efforts to get the entire list of blocked websites have repeatedly failed. In response to the Right to Information (RTI) request filed by the Software Freedom Law Centre India in August 2017, the ministry of electronics and information technology refused to provide the entire of list of blocked websites citing national security and public order, but only revealed the number of blocked websites: 11,422.
Unsurprisingly, ISPS do not share this
information because of the confidentiality provision in the rules. A 2017 study by the Centre for Internet and Society (CIS) found all five ISPS surveyed refused to share information about website blocking requests. In July 2018, the Bharat Sanchar Nagam Limited rejected the RTI request by CIS which asked for the list of blocked websites.
The lack of transparency, clear guidelines, and a monitoring mechanism means that there are various forms of arbitrary behaviour by ISPS. First and most importantly, there is no way to ascertain whether a website block has legal backing through a government order because of the aforementioned confidentiality clause. Second, the rules define no technical method for the ISPS to follow to block the website. This results in some ISPS suppressing Domain Name System queries (which translate human-parseable addresses like ‘example.com’ to their network address, ‘93.184.216.34’), or using the Hypertext Transfer Protocol (HTTP) headers to block requests. Third, as has been made clear with recent user reports, users in different regions and telecom circles, but serviced by the same ISP, may be facing a different list of blocked websites. Fourth, when blocking orders are rescinded, there is no way to make sure that ISPS have unblocked the websites. These factors mean that two Indians can have wildly different experiences with online censorship.
Organisations like the Internet Freedom Foundation have also been pointing out how, if ISPS block websites in a non-transparent way (for example, when there is no information page mentioning a government order presented to users when they attempt to access a blocked website), it constitutes a violation of the net neutrality rules that ISPS are bound to since July 2018.
While the Supreme Court upheld the legality of the rules in 2015 in Shreya Singhal vs. Union of India, recent events highlight how the opaque processes can have arbitrary and unfair outcomes for users and website owners. The right to access to information and freedom of expression are essential to a liberal democratic order. To preserve freedoms online, there is a need to amend the rules under the IT Act to replace the current regime with a transparent process that makes the government accountable for its decisions that aim to censor speech on the internet.