Reviewing the important developments in Information and Communication Technology (ICT) policy space in 2015
The month of March saw the Supreme Court of India strike down Sec 66A of the Indian IT Act. This section was inserted as an amendment to the IT Act in 2009. It was a piece of legislature that had been bought in by the UPA government without any debate in the Parliament and defended with all its might by the present NDA government, not to mention oft abused to serve political vested interest over genuine cases of cyber-crimes. In its judgement the Supreme Court criticized the section for its vague wordings and emphasized that having clarity in definitions helps to prevent arbitrary and discriminatory enforcement of law.
The judges also observed that the possibility of application of Section 66A for purposes not sanctioned by the constitution cannot be ignored and hence rendered it void and unconstitutional. The Supreme Court however upheld the constitutionality of Section 69A that allows for blocking of content over the internet (through an elaborate procedure) and Section 79A that holds the intermediary responsible for removal of content over the platform where it is hosted. This judgement does not translate into a “freedom-to-post-anything” scenario as there are provisions in the Indian Penal Code which when read with other provisions of the IT Act can be used to punish cyber stalking, voyeurism and acts inciting religious or communal hatred.
TRAI(ing) to shoot the messenger
What followed next was a consultation paper proposing regulation of Over-the-Top (OTT) applications in India rolled out by the Telecom Regulatory Authority of India (TRAI). The vibrant debate on Net Neutrality that it spawned would never have happened without this paper. It provided a rallying point for the various stakeholders in this domain to voice their views on this issue, effectively bringing out the issue of Net Neutrality from the power lobbies to the “walls” of the average netizen in India.
The paper argued that most of the OTT applications are offered for free to the end users and market valuation of these applications is based on their large user base. Stakeholders investing in OTT service providers may push for monetizing these services in future and this may come at the cost of the customer’s interests, it is therefore necessary to bring in checks and balances that ensure adequate customer protection. The public reaction to this paper (over a million emails sent to TRAI by citizens) had the underlying message that the TRAI should work towards ensuring that the Internet remains a bastion of free speech and expression while being a market place of ideas instead of making it an aggregation of walled pockets that restrict user interaction than enabling it.
Decoding the nitty-gritty of Digital India initiative
Digital India, an ambitious project of the NDA government aimed at transforming India into a digitally empowered society and knowledge economy was launched in July. Provisioning of high-speed broadband connectivity as a utility to citizens with priority for rural areas, making government and citizen-facing services available online and digital empowerment are the stated objectives of the project. It subsumes many existing government schemes, restructures them for implementation in a synchronized manner with a focus on improvement of processes with minimal cost overheads. The main difference between Digital India and similar programmes in the past is the movement away from the sector-specific programs and towards a holistic implementation that covers the entire digital ecosystem in the country.
In August the Supreme Court referred to a larger constitutional bench, a petition opposing the Aadhar Card (Unique Identification Program) on the grounds that collection of biometric data of the citizens is a violation of the “Right to Privacy”, implied under Right to Life (Art 21) of the Indian Constitution. The interim order had made it clear that enrolling for Aadhar Card was entirely voluntary and lack of it should not be used as a reason to exclude any citizen from receiving any benefits due. While the larger bench did rule in October that the card can be used for Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), all types of pension schemes, employee provident fund and the Prime Minister Jan Dhan Yojana, it did not allow its use by stock exchanges and phone companies to curb financial irregularities, black money and terrorism. The case bought to the fore the pressing need of a “Privacy” legislation in the country, the contours of which have been demarcated by the Justice Shah Commission in 2012.
Decrypting the National Encryption policy
The draft National Encryption policy was rolled out by the Department of Electronics and Information Technology (DietY) in early September. The paper was a halfhearted attempt of the government to define standards for encryption of stored and in-transit data, by proposing that end users should store plain text copies of such communications for 90 days and present it to the government as and when asked for. The fact that a high-end technology like encryption found its way into public policy discourse is a commendable task unto itself. However, nature of the technology that the policy tried to regulate is very dynamic and coercive regulation may end up throttling its development and growth instead of promoting it. So strong was the public reaction to the policy that it was withdrawn by DietY in a span of less than four days. This public reaction also sent out a strong message that the government needs to work hand in hand with technologists and subject matter experts if it aims to convert good intentions into sound policy actions.
How to pay for what is “Basically Free”?
Just while the year was ending, TRAI came out with another consultation paper, seeking public inputs on the Differential Pricing for Data Services. While the fate of the first paper is still not known, this new paper aims to address the issues of differential pricing and transparency in data tariff offerings. One reassuring change in the present paper is the reference to Telecom Service Providers (TSPs) as Data Service Providers, which denotes a more holistic approach than the platform-specific approach adopted earlier by TRAI. Without directly naming Facebook’s Free Basics and Airtel’s Zero, the paper goes into detail to explain why these two models are the primary suspects under the regulator’s radar. The paper notes that in the long term such business models may create “gate keepers” out of TSPs that will be able to determine user access to content by upward or downward variations, making some content prohibitively expensive to access while some other content to be available for free.
The mixed nature of events in 2015 was accentuated by the fact that while the Internet Freedom Report published by the Freedom House showed that the state of freedom over the internet in India was improving, the Facebook Government Request Report showed that India presently leads the world with a staggering 15,155 requests to remove content in 2015 (H1), up from 5832 in 2014 (H2). Around 73% of all the global requests for removing content on Facebook are from India. Whether the repeal of Sec 66A will meet its intended objective of allowing free speech on social media platforms or will the government agencies continue engaging in a covert form of online censorship on platforms that are hailed as the next frontiers of freedom of speech, will be clear in data from subsequent reports.
2016 also promises to be an exciting year in the ICT public policy discourse. The TRAI is expected to clarify its stand on the access versus neutrality debate; a policy document on the proposed regulation of cab aggregation apps like Uber & Ola is in the offing. The buzz of excitement around announcement made by Google and Facebook CEOs for free Wi-Fi on train stations and partnership in the Digital India program will need to face the realities of on ground implementation. How governments react to technological advances that move much faster than policy and legislations will define the future of the ICT growth in India.
The Old Wonk 