A Cooperative Approach to Protecting Online Rights by both Governments and Companies, by Elonnai Hickok
Freedom of expression, privacy, surveillance, and intermediary liability are key policy issues in India today.
In response to challenges posed by emerging technologies and associated practices, the government is shaping new policies and standards and undertaking new initiatives to leverage the benefits of such technologies. For example, in 2017, the Supreme Court of India recognized the right to privacy as a fundamental right in the Puttaswamy judgement and in 2018, the SriKrishna Committee proposed a draft Data Protection Bill for the nation. The draft Data Protection Bill articulates a number of rights, such as the right to access data about oneself, the right to seek correction of data, the right to have personal data transferred between companies, and the right to be forgotten. The Bill also contains a tiered model of data localization, with requirements for copies of critical categories of data to be stored in India and for sensitive personal data to be stored in India. Yet, if enacted, these localization requirements could impact the possibility of striking an agreement under the recently enacted U.S. CLOUD Act to facilitate cross border law enforcement access to data. In December 2018, the Ministry of Home Affairs also clarified the ten intelligence agencies that could intercept, monitor, and decrypt communications under section 69(1) of the IT Act.
The government has also recently issued the draft Intermediary Guidelines (Amendment) Rules 2018 under section 79 of the IT Act that would require intermediaries to respond to restriction requests within 24 hours, respond to requests for assistance and information within 72 hours, enable the tracking of users, and take automated and proactive measures to restrict illegal content. There has also been increasing attention on proposed social media monitoring systems meant to address disinformation. For example, the media has reported the Information and Broadcasting Ministry inviting bids from companies to monitor and identify fake news. India has also been cited as having a high number of network shutdowns ordered by authorities.
These policy issues are complicated and global and affect a number of stakeholders. The role of the private sector and the public sector is becoming increasingly intertwined. In many ways, actions of private companies are increasingly affecting private citizens as well as governments and there is a possibility that governments could take heavy-handed measures to regulate and control the content and practices of these companies. In all of this, how can the human rights of individuals be protected and upheld by both governments and companies?
The Centre for Internet and Society has been working on issues around privacy and freedom of expression for a number of years. A part of this work has been collaborating with the Global Network Initiative toward having critical conversations with key stakeholders — companies, civil society, investors, and academy — on how we can learn from each other and collaborate toward enhancing the rights of users online.
The knowledge exchange and shared experiences at the GNI have provided insight into key global policy issues and have allowed us to contextualize such learnings into the Indian context. For example, conversations with companies on the pressures they face in light of government requests for access to data and to remove content has brought learnings on what actions can be expected from companies and clarity into policy recommendations and needed safeguards for governmental policy. The research undertaken by GNI, such as that related to the impact of intermediary liability regimes on the economy and on the impact of network shutdowns, has also provided important insights and analysis into research CIS has undertaken.
Going forward, CIS looks forward to further collaborating and continuing to learn from the community that has been brought together through the Global Network Initiative. The challenges that face policymakers, the public, and the private sector today cannot be solved in silos and require understanding from all stakeholders involved. The Global Network Initiative is taking important steps in creating spaces for such conversations and actions.
Elonnai Hickok is the Chief Operating Officer at the Centre for Internet and Society in India.
