Mapping the Cycle of Internet Censorship in India, by Devdutta Mukhopadhyay, Internet Freedom Foundation
Twitter: @internetfreedom
GNI members work together to leverage each other’s unique expertise and perspectives to advance and protect freedom of expression and privacy in the ICT sector around the world. The six GNI-Internews Fellows have each designed a research project that draws on the unique affordances of this multistakeholder model of collaboration. By pursuing this research throughout their term, fellows apply their GNI participation directly to issues of importance to them.
Internet shutdowns and website blocking are two prominent tools used by the Indian government which pose a threat to an open and free Internet. While there is a considerable amount of literature analyzing the legal provisions that empower the government to use these tools, there is a lack of primary data that would shed light on how these legal provisions are being applied in practice and how challenges against Internet shutdowns and website blocking play out in courts.
Primary data collection about Internet shutdowns and website blocking in India could form the basis of future policy advocacy and litigation. Here at Internet Freedom Foundation we have tried collecting data on shutdowns and censorship by filing requests with government departments under the Right to Information Act, 2005 (RTI Act) and the findings have often strengthened our submissions before policymakers and courts.
For instance, our analysis of Internet shutdown orders issued in Bihar, an eastern state in India, revealed that the state government was actually using the legal framework for Internet shutdowns to temporarily block specific mass messaging platforms during periods of unrest instead of suspending Internet services in their entirety. These Internet shutdown orders from Bihar were subsequently relied upon by petitioners in the constitutional challenge against the six month long communication shutdown in Jammu & Kashmir to demonstrate that an all encompassing ban on Internet services was disproportionate.
Sometimes even rejection of RTI requests can spur action and we have seen this in the context of litigation to reform India’s opaque and unaccountable website blocking system. The constitutionality of India’s website blocking framework was upheld by the Supreme Court of India in 2015 in Shreya Singhal v. Union of India because it provided pre-decisional hearing prior to blocking of any website and required website blocking orders to contain written reasons.
However, these safeguards have proved to be inadequate because the website blocking process is entirely controlled by the executive through bureaucrats without any oversight by the judiciary. Moreover, the confidentiality requirement present under existing law prevents individuals from even accessing website blocking orders. This system of secret censorship by executive decree was recently challenged by the creator of a satirical website before the Delhi High Court after his RTI request for a copy of the order directing blocking of his website was rejected by government officials.
During the course of the GNI-Internews Fellowship, I hope to collect and analyse primary data on Internet shutdowns and website blocking in India by identifying existing data sets and filing applications under the RTI Act for new data. The recent judgement of the Supreme Court of India in Anuradha Bhasin v. Union of India mandates disclosure of Internet shutdown orders, and this precedent makes a response to our queries more probable rather than the usual claim of exemptions.
In addition to filing RTI requests, this project will also involve reaching out to Internet service providers and industry associations to understand what internal processes and technical mechanisms they reference while implementing Internet shutdown orders and website blocking orders. There is major inconsistency in blocking of websites across different Internet service providers, and therefore, it is also important to examine the practices being adopted by private industry players.
To explain the complete lifecycle of Internet shutdowns and website blocking in India, this project will document and analyze strategies used by litigators to challenge these measures before constitutional courts. India is witnessing a rise in strategic public interest litigation on digital rights issues with increased reliance on individual testimonies and technical expert evidence in the tradition of the Brandeis Brief and learnings from these cases will form an important part of the project.
The final output of this project will take the form of two short policy papers on website blocking and Internet shutdowns in India which highlight on-the-ground realities and litigation strategies, and suggest reforms based on international best practices. I also intend to make the underlying primary data publicly available so it can be used by other civil society groups for research, policy advocacy, and litigation.
