The IT Review Board did not disapprove of a single government social media takedown order: RTI

The Ministry of Electronics and Information Technology (MeitY) told parliament in July that it had issued 1,122 orders to block Twitter content through June this year.

In 2021, that figure stood at 2,851 — up from 2,731 in 2020 and 1,041 in 2019 — showing a steady rise in takedown orders against the microblogging platform. Now, a Right to Know (RTI) request filed by this reporter reveals that since 2009, the panel reviewing these restraining orders has not ordered the release in a single case.

Section 69A of the Information Technology (IT) Act 2000 empowers MeitY to block information in any computing resource in order to protect several national interests such as sovereignty, public order and to prevent the incitement to a recognizable offence. Although the Computers Act 2000 allows MeitY to order the blocking of content, the rules thereunder guide the process MeitY must follow to issue such orders. Due process is detailed in the Information Technology (Procedure and Safeguards for Blocking Public Access to Information) Rules 2009 (IT Rules 2009).

What is the review board and what does the RTI reveal?

Rule 14 of these 2009 IT Rules states that the Review Committee shall meet “at least once every two months” and record its findings on whether blocking instructions issued by MeitY under these Rules comply with the provisions of the Computers Act 2000. The rules empower the committee to “cancel the instructions and issue an order to unblock said information” if it is of the opinion that the blocking instructions do not comply with the article 69A of the computer law of 2000.

The committee consists of the Cabinet Secretary as the Chairman and the Legal Affairs Secretary and the Secretary of the Department of Telecommunications as its two members.

Responding to RTI’s query for the total number of times the review panel disapproved of a blocking order and ordered access restored, Dr. Gaurav Gupta of MeitY’s Cyber ​​Law Division said that “so far, MeitY has not received any such communication in which the blocking order is revoked based on a disapproval of the review committee”.

In other words, since the rules were established in 2009, the Review Panel has not passed a single order revoking a content takedown order. Experts say this is a cause for great concern.

What are the problems with India’s censorship framework?

Raman Chima, policy director for Asia at Access Now, an organization that advocates for people’s digital civil rights internationally, said it was remarkable that no orders were overturned by this committee. Calling the censorship review system “systematically broken”, Chima said: “A message is sent saying you block, we’ll deal with it.”

We sent out a questionnaire to MeitY and will update this article if and when we receive a response.

Digital rights experts have argued that the IT Rules of 2009 and India’s censorship framework offer little protection against the misuse of censorship laws. The RTI revealed that while the rules required the committee to review every blocking order passed by the MeitY, rescind the orders if they seem irrational and even order content to be unblocked, none of this has been done in the last few years. last 13 years.

“I’m not surprised,” said Krishnesh Bapat, a lawyer working for digital rights group Internet Freedom Foundation. “IT rules do not provide sufficient safeguards against the use of arbitrary powers by the state. The committee is not functioning properly. It is also impossible for the committee to review the huge number of blocking orders issued by MeitY.

Between 2014 and March 2022, MeitY issued around 27,000 blocking orders across all platforms, including Twitter, YouTube and Facebook. Nearly 10,000 of them were issued in 2020 alone. The review committee must meet at least once every two months. It is therefore difficult for him to carefully examine the hundreds, if not thousands, of restraining orders submitted to him.

The members of the committee also have different functions in their respective ministries and are not dedicated to this sole purpose, further hampering any effective review of restraint orders.

Experts believe that another reason that makes the committee dysfunctional is that its members have no independence. “The cabinet secretary and the other two secretary-level officers will not want to overrule an order passed by another secretary-level officer. It makes the committee dysfunctional,” Bapat said.

Lack of transparency, a major obstacle

A major hurdle in the entire censorship framework is the requirement for “strict confidentiality” under Rule 16 regarding all requests and complaints received and the actions taken in this regard.

Another RTI filed by this reporter with the MeitY revealed that neither the Cabinet Secretariat (the chair of the review board) nor the MeitY keep any records relating to the review board. As a result, scrutiny of their work by digital rights groups like Access Now and IFF is severely hampered.

“In violation of internationally accepted standards, India does not even inform the person that their account or content has been blocked. The copy of the order which details all the reasons why the blocking was necessary is kept confidential citing Rule 16. It doesn’t make sense. How can you dispute an order if you don’t have a copy of it in the first place?” Bapat asked.

Other major democracies, including the United States and countries in Europe, do not give their federal governments such broad direct powers to issue executive orders to restrict or block web content.

When asked why the government insists on absolute secrecy in the entire process, Chima said the government does not want the public to know exactly who or what it is blocking – a phenomenon known as the effect Streisand, where “an attempt to remove something only attracts more attention – and the government might be embarrassed. “The current censorship framework is routinely loaded to avoid scrutiny or pushback,” Chima said.

Recently, the Delhi High Court ordered MeitY to share a copy of one of these blocking orders with the owner of a satirical website that was banned in September 2018 by the Center. Experts believe this sets a good precedent.

Chima believes that such an opaque procedure is unconstitutional. “It is a well-established principle of law that rules (IT Rules 2009) made under a parent law (IT Act 2000) cannot override the parent law. Nor can the rules prevail over Parliament. Nowhere in the computer law is strict confidentiality provided. Additionally, the RTI Act trumps all legislation and requires disclosure of records,” Chima told BOOM.

Telecommunications and technology companies threatened by regulation

The big technology and telecommunications industries have tried to introduce transparency. As a rule, Twitter notifies its users if it receives a legal request to remove content. Chima said technology and telecommunications companies have reported concerns about arbitrary blocking orders placed by MeitY.

He said: “Only the telecom and tech companies know what’s going on in these review boards and every time there’s an attempt to back down, the government threatens them with regulatory action.”

In recent years, confrontations between big tech companies and the central government have escalated. Recently, Twitter announced that it is suing the Indian government for ordering the removal of certain content which it considers an “abuse of power”.

The lack of transparency in the whole process and any attempt to infuse it are frowned upon, experts worrying about the negative implications this has on India’s already deteriorating freedom of expression.

What safeguards does India require for content blocking?

Bapat told BOOM that a separate committee mandated under the 2009 IT Rules to provide a fair hearing to an individual before ordering a takedown, is also dysfunctional. With no fair hearing, and the review committee only automatically approving restraining orders, people have no recourse to appeal.

Experts said the entire censorship framework needed an overhaul, where the focus should be on restricting sweeping state powers and increasing checks and balances. Chima is of the opinion that the whole process of censorship should be within the purview of a sitting judge. This, he said, would ensure some independence and perceived impartiality in the entire censorship process.

The government must also reach out to the person whose content it is offering for takedown and provide them with a fair hearing. If he decides to block, provide a copy of the order. This will allow them to appeal the decision if necessary, a fundamental requirement under the principles of natural justice.

Chima said the government must also explore “less intrusive means” before ordering the removal of its content and that reviews of such orders must take place periodically.

Saurav Das is a freelance investigative journalist. He tweets @OfficielSauravD.

This article is republished from BOOM under a Creative Commons license. Read the original article.

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