On regulating geospatial information

A license-permit raj for maps

My responses to Times of India’s Kim Arora on the draft Geospatial Information Regulation Bill, 2016.

The wording in the draft bill is way too general and could cover anything from school children’s maps, to digital maps used by consumers to navigate, to more specialised commercial/scientific usage. Such a general wording will defeat any policy intention and create a morass of bureaucracy and corruption. With that kind of wording, anything is possible. Lawyers will have a field day.

There is a case for the government to insist that all companies and individuals in India must represent India’s boundaries accurately according to our government’s official position. However, this purpose does not require a license-permit-enforcement raj that the bill will end up creating. A simple law that imposes penalties for deliberate misrepresentation of boundaries will suffice.

As it stands, the bill will harm innovation in the IT and tech sector, raise costs for farmers and industry and create a lot of petty corruption. This is not a bill that is consistent with PM Modi’s stated vision of Digital India and Startup India.

Read her report that also quotes the indefatigable Nikhil Pahwa.

On net neutrality and the national interest

Net neutrality might be an optimum compromise in the absence of full liberalisation of the telecom industry

This is a comment I wrote for the Hindi newspaper Naidunia (Indore). Given that Takshashila might submit an official response to the TRAI public consultation on the subject, it is important to state that this is my personal opinion.

The ongoing debate on net neutrality reveals clashes of several public goals and interest groups. Should service providers have the freedom to sell products of their choice to customers of their choice, or should they not have this freedom? Do consumers have the right to use internet services as they have always been used to? Should the open “ethos of the internet” continue to remain so even after it has passed out of the US government’s management and into the hands of the international community? Will an internet with different lanes for different traffic remain the internet as we know it? Should application and content providers like Facebook, Twitter and WhatsApp enjoy greater profits despite making much smaller investments than telecom service providers?

The issue is complex and entangled, and we should resist the temptation to see it as a fight between good guys and bad guys. There is nothing wrong in corporations trying to maximise their profits as long as they conduct business in a legal and ethical manner. It would be wrong to project telecom service providers who are seeking to improve their profitability as villains. Similarly, it is rather pointless for them to look at over-the-top (OTT) services like Facebook and begrudge them their profits. Different industries have different risks and different rewards. Consumers too cannot claim that things should be as they are and every change is a negative development.

So what should we make of this issue? I would like to answer this question by asking “what is India’s national interest with regard to IT in general and the internet in particular?”. There are three aspects to our national interest:

First, given that less than one in ten Indians has access to broadband, it should be a national priority to increase penetration. There is a correlation between broadband penetration and economic growth rate. India’s development needs our economy to leapfrog into the information age: for this we need reliable, affordable services. So when thinking about net neutrality at this stage, the government must give the highest priority to ensuring the maximum number of people take up broadband in the shortest duration possible.

This, however, should not come as a result of price regulation. Fixing prices and a government that worships at the altar of “low cost” will result in damage. Low prices should come as a result of market forces and competition.

Second, given that India’s IT industry is an engine for growth and development, we must ensure that it remains globally competitive. The industry is worth more than 100 billion dollars and employs more than 10 million people. There are thousands of startups in the country aiming to become the next Infosys and FlipKart. Our IT policy should not create more hurdles for entrepreneurs and ensure that they have the best possible start to build world-class companies. Without Net Neutrality, the risk that startups will face even greater “unfair disadvantages” against established firms is higher.

Third, it is in the public interest for the telecom and mobile service provider industry is healthy and competitive. In the past decade, the regulators pursued the goal of forcing the telecom providers to lower user tariffs. While India has one of the lowest costs of telecom services in the world, the service quality is patchy. Calls drop frequently. Broadband service often is of lower speed and suffers outages. Billing services are terrible. Anyone who has tried calling the customer service helpline of any telecom provider will attest to the fact that it is very difficult to get anything done. All this is because telcos are cutting costs in these areas. There are few lucrative or premium services left where they can increase their profitability. The only protection they enjoy is through licensing — the government limits the competition they face.

When deciding what to do about net neutrality, we must keep all three considerations in mind, and optimise them simultaneously. If the government opens up the telecom service market to greater competition, perhaps by issuing unlimited licenses, then there is a case to allow them the freedom to discriminate among customers. As the state-owned carrier, BSNL can provide a neutral internet. However, if the government does not open the sector to further competition, therefore shielding the telecom service providers from more competition, then mandating net neutrality provides a reasonable approach to promoting the public interest.

The current debate calls for the government to review the entire licensing regime and consider full liberalisation of the telecom industry.

The genesis of a draconian section

Bad laws pave the way for worse ones

You only have to look at Section 66A of the Information Technology (IT) Act 2008 to realise that it is so badly worded that it not only permits draconian abuse by the government but allows individuals to get fellow citizens arrested for merely sending an electronic message that they consider grossly offensive. Don’t take this blogger’s word for it. Read it yourself.

It is obviously ultra vires of the Constitution’s Article 19, which enshrines freedom of speech as a fundamental right. If a statute renders “blasphemy” a crime in the Republic of India—as the IT Rules for Intermediaries, 2011, which draw their authority from the IT Act, have done—then it doesn’t take a legal genius to notice that a lot of things have gone ultra vires of the Constitution. The higher courts ought to strike it down when the matter comes up for hearing in a few public interest litigations that are in the works.

The question is how did this appalling section make it into the statutes in the first place? Here’s where it gets murky. By all accounts, the IT Act was sought to be amended in 2006, when Dayanidhi Maran was the IT minister. The concern at that time was over hacking and circulation of covertly-shot pornographic videos on mobile phones. An expert committee, of which Kiran Karnik, then the chairman of NASSCOMM was a member, recommended changes to the Act. In its Summary Report it said:

“Language of Section 66 related to computer related offences has been revised to be in lines with Section 43 related to penalty for damage to computer resource. These have been graded with the degree of severity of offence when done by any person, dishonestly or fraudulently without the permission of the owner. Sometimes because of lack of knowledge or for curiosity, new learners/Netizens unintentionally or without knowing that it is not correct to do so end up doing certain undesirable act on the Net. For a country like India where we are trying to enhance the positive use of Internet and working towards reducing the digital divide, it need to be ensured that new users do not get scared away because of publicity of computer related offences. Section 43 acts as a reassuring Section to a common Nitizen (sic). IT Act in order to ensure that it promotes the use of e-commerce, e-governance and other online uses has been cautious not to use the word cyber crime in the text.” [Expert Committee’s Summary Report at MCIT, doc]

This, however, does not sound like an explanation for the wording of Section 66A. That’s because it explains the Expert Committee’s draft of Section 66, which is very different from what eventually went into the amendment.

Somewhere between then and the report being tabled in the Lok Sabha for vote, during Andimuthu Raja’s controversial tenure IT minister, the wordings were changed. We do not at whose behest these changes were made. We do not know why. The Union Cabinet and the Ministry of Communications and IT are accountable, of course, but there is no transparency at all on the motives and the actors behind these changes. If there were national security reasons, they should at least have been mentioned as reasons. Without transparency, we will not be wrong in assuming that the draconian measures were intentionally introduced to stifle free speech and target political opponents of the parties in power. CIS India’s Pranesh Prakash has more on where they got the wording from in his detailed deconstruction of the offending section.

There’s worse.

Shouldn’t one of the hundreds of members of parliament noticed this section for its potential abuse, and flagged the issue? Shouldn’t the parties in Opposition, from the BJP to the Communists to the various regional parties, held the Government’s feet to the fire? After all, that’s what the parliament is for. How could this Bill make it past the two houses of Parliament, where there still are many individuals with the knowledge, inclination and position who could have intervened? Well, because it was passed in mindless haste at the fag end of the 2008 Winter Session of Parliament, when eight bills were passed in a mere seven minutes!

This happened because of the anti-defection laws introduced in the 1980s has turned Parliament from a debating chamber to a puppet theatre where the MP’s strings are pulled by the party leaderships. Bills are passed more through political deal-making between the party leaderships than through debate. It was not always like this. It changed because of one bad law. So bad is that law that it is hard to change it, because changing it requires the consent of the very party leaderships that it will disempower. Shanti Bhushan, now associated with India Against Corruption, was one of its drafters. It was enacted by the Rajiv Gandhi government.

This begs the question. How seriously can we take the laws made by a parliament that overlooked such a flagrant assault on our fundamental rights? The legitimacy of every single law, every single section made by this parliament is suspect. That does not mean citizens can disregard them. It means citizens ought to scan every bit of legislation going in and coming out of parliament with extreme diligence. This is where the work of neutral research bodies like PRS Legislative Research becomes extremely useful. It’s out there, for those willing to pay attention and act.

Parliament must redeem itself. If it wants to restore its credibility, parliamentarians should act in ways that corrects their big mistake. They must get rid of Section 66A in its entirety.

Related Link: See what Kiran Karnik says in on NDTV 24X7’s We The People show, where I was also a panelist.

On NDTV: On the draconian cyber law

The draconian Information Technology Rules have created an environment that threatens our freedom

What about free speech, which makes it possible for me to disparage the IT rules as being poorly considered? Under the new rules, users cannot post material online that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwiseunlawful in any manner”.

And who gets to decide what constitutes any of the above? No, not a magistrate or even a government officer. Anyone can send a notice to the owner of a website giving notice of a violation under any of the loose, subjective criteria. It then must be taken down within 36 hours.

Complain about bad service from an airline on your blog, and they can send a take down notice claiming it is defamatory, libellous or disparaging. In the hands of the easily outraged, aggressively hypersensitive and competitively intolerant sections of our population this will have the effect of further chilling freedom of expression. Moreover, the inclusion of the word blasphemy in that list makes you wonder which country we are in.

Actually, we don’t need these new rules to protect us from libel, paedophiles or incitement to violence. There are existing laws for that. A libel is a libel whether committed on paper or in ether. These rules, though, have the unacceptable consequence of stifling free speech. They weaken the ordinary citizen and put another coercive tool in the hands of the powerful and the intolerant. They must be reviewed. [Nitin Pai/DNA]