Monday, April 20, 2015

India Could Use Its Historic Free Speech Judgment to Reset Its Position on Internet Governance. Will It?

“The global can never become meaningful unless it is linked to the local,” said Ravi Shankar Prasad, India’s Information and Technology Minister, speaking at 2014’s Cyfy Internet governance conference. For India, local is a billion aspirations. Local, in 2015, implies a constituency that carries greater demographic weight than Europe and the United States combined. Local is 800 million mobile phones, 140 million smart phones and 173 million Internet connections and growing. His statement begs the question—what is going on in India?
There have been five developments that have altered India’s domestic approach to Internet policy since the Minister’s statement. A closer look at these developments could provide some insight into how India should approach international Internet policy debates.
The first development is the historic March 2015 judgment by India’s Supreme Court, whichstruck down Section 66a of India’s Information Technology Act. Section 66a, widely criticized as restricting freedom of expression online, prohibited anyone in India from sending messages using a computer or communication device that could be deemed “grossly offensive,” contained “false information,” or which could “cause annoyance or inconvenience.” This victory, championed by young lawyers and Internet activists, has emboldened not just the small expert pool of people working on Internet policy issues, but also encouraged a wider audience to start participating in Internet debates.
The immediate effect of this new wave of engagement has led to the second development: the public’s unprecedented response to a consultation paper issued by the Indian Telecom Regulatory Authority seeking comment on the regulation of over-the-top services (e.g. multimedia content like Netflix that travels over lines provided by telecoms). Much like the net neutrality debate in the United States, the debate has pitted the telecom industry and some of the larger Internet companies against smaller players and public sentiment, which favor net neutrality.
The third development is the reconsideration of the role of Internet intermediaries in India. Section 79 of the Indian IT Act requires Internet intermediaries to take down content at the behest of a third-party complaint. In light of the recent Supreme Court decision, editorials have begun to appear in leading papers pointing out that blocking, intermediary liability and freedom of expression concerns need to be further balanced to avoid abuse.
The fourth development is the government of India’s decision to use open source software for all its applications and services, in order to bring transparency to the government’s IT procurement process and tackle corruption. The government believes that the ability for anyone to modify the source code of open source software will allow the tailoring of applications to local needs, royalty free. The policy does, however, leave the door open for proprietary software should open source not be available.
The fifth development is the Indian government’s ambitious “Digital India” plan. The plan aims to ensure the delivery of e-governance services to all, build digital infrastructure to enable Internet access, create jobs, and finally, increase electronics manufacturing in India. Interestingly, the government’s press release launching the plan refers to digital infrastructure as a ‘utility’ for every citizen, specifically aimed to deliver high speed Internet to villages, enable “cradle-to-the-grave” digital identities, facilitate mobile banking, create a shareable private space on a public cloud and finally, provide cybersecurity.
Freedom of expression, network neutrality, intermediary liability, open source software and a commitment to provide digital infrastructure as a utility to citizens have all become key points in India’s digital journey. For each of these, a uniquely “Indian” model will have to be sought. The absolutist notion of online free speech held by many U.S. proponents cannot translate to India. Further, India cannot blindly adopt network neutrality rules in a market where almost eighty-five percent of its population lives in the shadow of the digital divide, and may well permit Internet providers to offer services that allow for cheap online access by exempting certain traffic from data caps, a policy known as zero-rating. For emerging countries, accessing and building digital infrastructure are pressing questions, as much as it is important of putting principles like freedom, privacy, development and diversity, among others, into practice. Despite not being a signatory to the NetMundial principles, India, in effect, seems to be building a digital society that subscribes to those very values, in its own unique ways.
Suggesting a UN Committee on Internet Related Policies to handle Internet governance, looking to the International Telecommunication Union to absorb Internet public policy issues and even refusing to officially support the NetMundial Multistakeholder outcome document will undoubtedly remain key moments in India’s international engagement on Internet issues. But it is time to move forward. India must play a leadership role in the development of global Internet policy. The government needs to respond to the demands of its citizens and reset its position on international Internet governance issues, in line with the progressive developments that have occurred at home. In essence, India should be doing a better job at linking the local to the global.

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