Kiran Jonnalagadda of the Internet Freedom Foundation on the fight for net neutrality, the freedom of the Web, and regulations that aim to constrict it.
BY GOVIND KRISHNAN V.
Kiran Jonnalagadda is the co-founder of HasGeek, a startup in Bangalore that organises technology conferences and hangouts for like-minded hackers. In 2015, Kiran was one of the movers behind the Save Internet Campaign, which succeeded in mobilising one of India’s biggest online protests for net neutrality.
The campaign succeeded in getting the Telecom Regulatory Authority of India (TRAI) to recommend against differential pricing for Over-the-Top-services and Facebook’s Free Basics. TRAI received more than 10 lakh emails in support of net neutrality. Jonnalagadda talks about how the campaign led to the creation of a permanent activist organistaion that campaigns online for Internet and digital rights, India’s problems with online freedom of expression, digital privacy and internet censorship.
Edited excerpts from an interview:
Tell us about the work you have been doing.
I am a volunteer trustee of the Internet Freedom Foundation (IFF). It was was set up after the Save the Internet campaign. Mainly because in the process of running the campaign we realised that we were in the slightly unusual position of running a successful campaign in a country which is supposed to have a long history of civil liberties movements. But how come nobody became successful in this case? (Net Neutrality) And how come a network of unorganised volunteers doing this in their spare time actually found success? One of the realisations was that while we have multiple civil liberties streams, none of them represent Internet-based rights. This gap has remained unaddressed for way too long. One thing I remember about non-profits and NGOs that deal with the Internet, they have an unfortunate problem. As a foreign funded corporate, you can’t do activism, things that influence policy.
And oppose the government.
Yeah. It is difficult for NGOs as foreign-funded entities to do anything that opposes the government because your funding can be cut off. Of all the organisations we expected would step up and do something, none were effective in influencing government in changing policy. And we stepped into that role.
If I remember right, it was a very close thing, too close for comfort. Could that have been avoided if NGOs had been free to campaign against the TRAI consultation paper?
I think the very close thing was the TRAI’s decision—essentially the short deadlines TRAI imposed. These groups were very supportive, but there was a gap. It was a gap we managed to fill better than anyone else. For us it was a moment of realisation that we should start something.
If the Trump administration repeals net neutrality laws in America, would it effect the situation in India?
It is the media that has interpreted they want to repeal net neutrality. They have not made any statement so far. There is a lot of media hype about Ajit Pai, chairman of the FCC (Federal Communications Commission) being a threat to net neutrality. But his statements have been more nuanced. That the regulations the FCC has enacted won’t stand in court. That we want to get rid of them before we are embarrassed in court.
If there is a move against net neutrality in the US, would it have an impact in India?
No. India is ahead of the US. We have a far more enlightened chairman right now (TRAI) and the rules that we have are stronger than the US has. Especially in terms of zero rating and price-based discrimination. The US doesn’t have regulations against price-based discrimination. They have been on the verge of doing it for some time. Tom Wheeler wanted to implement it, but did not get around to doing it. Ajit Pai seems likely to dismantle what has been done so far, but he himself has not made a statement to that effect. It has been media interpretation. But the same sentiment came out when Tom Wheeler was appointed. Lots of people said he was going to destroy net neutrality, but he made it better. We don’t know this man yet so I wouldn’t be quick to judge. But everybody is kind of pessimistic about what is going to happen.
What were the problems with the draft encryption policy that the Indian government had proposed? What would it have led to?
It would have killed the Internet. The Internet would not have worked if the policy was in effect. It would mean in effect, that every citizen in this country, including the government would have been in violation of the law. You can’t implement that law. What you can do is violate it.
What were the major issues?
The fact that it required encryption keys to be stored with the government is infeasible. There is no way you can implement anything of that sort. It capped encryption at a very low standard. That’s also infeasible. Websites will not work if it goes lower than it is. Your browser will refuse to connect to a server that is using a low-grade security key these days. So essentially what would happen is that the government would declare that the Internet is illegal and everyone would continue to use the Internet.
But whatever reportage was there then did not make the issue so clear.
Yes, most people did not understand the implications of what happens when you implement what it actually says.
What is intermediary liability and content filtering?
The principle of intermediary liability is that is Facebook liable for what is said on its platform? Technically they should not be. They have no control over what is being said. As long as they make reasonable attempts to help uphold the law.
There have been attempts to bring in intermediary liability in India at various points.
Because it is an easy arm twisting tactic. A company that doesn’t have a presence in India, that is not registered in India, that does not have to answer to Indian courts, so what do you do? So obviously the government strong arms them by saying we will force you to become liable in India, because that is the one hold that we have on you. The moment a company sets up an operation in India for ad sales or whatever else, that company becomes a target for Indian laws anyways. In that sense, intermediary liability is a tactic used to control entities that do not do business in India, but the easier way to solve the problem is to open up the economy.
But Facebook and Google do business in India. And intermediary liability will have to apply to everyone. You can’t pick and choose.
Yes but the law chooses (to act) on the basis of which entity it is upset about. That is how government works.
But in terms of technology if India chose to go forward with intermediary liability, what would be the effect?
Companies will move out of India. Any small company that finds it easier to do business out of India, rather than inside India, will just get out of the country.
What about companies like Facebook and Google? Do they have too much invested to leave?
Well Google left China despite all their investment because they decided it was not worth it.
If you look at what happened with Wikipedia, it is a classic example. Wikipedia opened operations in India officially a few years ago. And shut down quickly. What they realised was that as Wikipedia is a community edited resource the Wikimedia foundation has no control over the contents of any page. And they do not try to enforce control. The entire purpose of their existence is keep Wikipedia alive. Not to decide what is on it. That the community does. The moment they opened operations in India, saying we want to hire Indian developers, to continue to maintain Wikipedia, to evangelise local media editions, to help build a community that builds knowledge in local languages, they started getting hit with lawsuits saying there is something in Wikipedia that is offensive.
So what did they do? They shut down operations and said we will not touch India. The net result has been that Wikipedia’s growth in India has been stunted, and local language pages haven’t developed.
To generalise, are Indian laws on privacy, freedom of expression, defamation etc outdated and an obstacle to the growth of tech?
Yes, absolutely, yes. Not just tech, but an obstacle to the growth of the market.
Another issue you have been campaigning for is a privacy law.
We definitely need a privacy law. Because the situation we have is that anyone can collect your data and there are no controls. We need a right to privacy that is well defined. Right now it has been interpreted in the Constitution by the Supreme Court. But the government when implementing Aadhaar argued against it and said Indian citizens do not have a right to privacy because it is not mentioned in the Constitution. When we are dealing with privacy, this is not a technological problem at all, it is a legal problem.
Defamation and hate speech laws. How do they affect what is happening on social media?
The Internet has introduced a new problem. You can be offended anywhere. Look at the way defamation law has been designed, with the idea that the offended party is somewhere close enough to get offended. If it is a public speech, you must have been in the audience to get offended. If it is a newspaper, for most of history, newspapers for the longest period of history have been not national newspapers, but local newspapers. National newspapers are a relatively recent phenomenon, because there is obviously the problem of transmitting news to somewhere far off in time. It is only in the last 50 years or so that we have seen that. Defamation is a concept dating back much longer than that. The Internet means you can be offended anywhere in the world. You can file a case in your locality regardless of where the offending party is located. And the way the court system works is that if you do not turn up for the hearing, you are by default the loser. Which means you can choose to be offended in Assam and file a case there.
This is what happened in the IIPM case against The Caravan, which was filed in Assam.
Exactly. Part of the approach of filing that case in Assam was that the offended party was not IIPM. The offended party was an agent of IIPM who sells IIPM admissions there. [They claimed] that their business was affected because IIPM’s reputation took a hit. That’s a gambit used to file cases in a remote location. That is a method used to abuse the law in the age of the Internet. It obviously started with the age of the national newspaper but it has become far worse with the Internet because anyone posting on Facebook can offend anyone else anywhere else in the country.
What is the possible solution?
Amend the law. IFF is backing a campaign called ‘The Reformation of Speech Bill’. The website is www.speechbill.in. Unfortunately because of the way the law works in India, you can’t see an actual draft of the law. Until it is presented in Parliament it is illegal to present it to the public. It has been waiting to be presented in Parliament, but thanks to demonetisation and the current ongoing ruckus, it’s not being heard. Tatagatha Satpathy (MP, Dhenkanal, Odisha) will be presenting the Bill. It is coming up as a private member’s Bill which means it has a slim chance of passing. But nevertheless it’s an effort. You have to start somewhere. But hopefully if the Bill gets presented, it might get picked up by a political party and pushed. So that it gets a little bit more momentum.
Given that political parties in India don’t see a constituency in freedom of expression…
Well it affects them also, right?
Because of the cases filed?
They can’t campaign and point out corruption. If you notice the tactics currently in use in Parliament, Rahul Gandhi makes a statement against Modi or Arvind Kejriwal makes a statement against Modi, they always do it inside the House. Inside the House, the law (defamation) does not apply. But the moment they step out of the House, they make no further comments, watch the telecast.
What does the Bill say?
It says make defamation a civil offence instead of a criminal offence. Make it a monetary penalty. That is one part. The other part is, why should cases be filed in random parts of the country? They should be filed where the affected parties are. The Bill also seeks to define what constitutes actual defamation a little more clearly. Can we revisit the definition of defamation in such a way that says that some things are just freedom of expression.
Do you think there should be different guidelines for defamation or hate speech on social media?
That would be dangerous.
Why do you say that?
We are already in a situation where Facebook has more consumers than TV. Why should TV be held to a higher standard? Look at Donald Trump. He has been abusing people on Twitter. He doesn’t care for TV. When Twitter has much more impact, why should it be held to a lower standard than TV?
The government has been blocking random websites. One does not even know for what reason even.
Yes, the websites that have been blocked, the list is secret. The government has not revealed a list of which sites it has blocked. Even under RTI. It is considered a national secret. Essentially the DoT (Department of Telecommunications) issues block orders to the ISPs. And the ISPs because they are licensed from the DoT to operate, have to comply. But the orders are a secret.
Is anyone thinking of legally challenging it?
The IFF will get to it at some point. We have to find a way we can do this because, part of the way blocking works is a court order. A court can order that a website be blocked, what are usually called John Doe orders. A movie is released and the director decides that he would preemptively block all torrent websites to ensure it is not pirated.
Does DoT have the legal right to do this?
It is part of the licence agreement that ISPs have with DoT. The agreement says that if the government wants you to block something, you block it. Then there are rules issued on the licence agreement. One of them says 40-bit is the encryption limit. What is used now is 250-bit encryption.
So every ISP is in violation?
Yes. There are a bunch of problems like this, all relating to the fact that nobody can apply it and nobody cares.
So it’s a potential tool for harassment?
Yes, exactly. Everyone is doing something in violation of the law in India. So there is no authoritative list of blocked websites available. (Internet activists) are working on a list of blocked websites as a public resource so that at least the information is available. And there is a flip side to this. Websites have been blocked that are not on the block list. This happens a lot. This happens with random websites because the ISP did an incompetent job of blocking. When you get the blocking orders, you can’t just block a URL. Because as an ISP, first of all you don’t know which URL a person is trying to access till they make a connection to the website. The way http works is that you connect to a particular IP address and say give me this URL which is supposed to be hosted by this IP address.
Until the connection happens and data transfer happens you don’t even know what URL is being requested. The only way to know is by sniffing traffic, using what is called deep packet inspection. You examine the contents of a particular packet and say that a user is trying to access a particular URL that you have to block. And then cut the traffic. That is the mechanism that, say, Airtel uses, where they block only the URLs that the government has ordered blocked. But deep packet inspection is expensive because it consumes CPU power to look at every single packet being transferred. What most ISPs do is just block the IP address.
But if you block an IP address, you block every single website hosted on that IP address. That happens a lot. The problem is, who notices and who complains?
Because there is no public record of which ISPs are blocking which websites, it hurts consumer choice?
Obviously, but now if one person notices out of a million users, how much voice does one person have? And it is also in violation of the ISPs licence agreement. You can’t block random websites. That violates net neutrality. What is happening with the net neutrality consultation that is going on right now, one of the ideas that we are pushing, is to ensure that they can’t block random websites.
Are you pushing for a net neutrality law?
Net neutrality is an ongoing consultation that TRAI is working on. TRAI does not have the authority to enforce net neutrality. TRAI can only make a recommendation to DoT saying, we think this is what you should do, so please go ahead and do it. TRAI can regulate pricing. And that’s what they have done. Last year’s victory that we had was only TRAI doing only what they could do as per the law. For net neutrality regulations, which is about speed based and access based discrimination, they do not have the right, they must take it to DoT.
To implement it, DoT does not have to bring in legislation?
No, because they can use the licence agreement. The license agreement allows them to define rules.
Wouldn’t net neutrality be more robust if there is legislation backing it?
Yes. But that’s a much larger goal, right? Much more long-term. It takes so much more effort to get to the point of legislation. TRAI is the first step, it is easier to work with, Parliament is harder.
Don’t you think that IFF’s Internet only strategy for campaigning on these issues has its own limitations?
It does, obviously. That is why we are doing more interesting things. In Hyderabad we are going to a law college, where we are going to be talking to law students and telling them about the importance of our work and say please participate. We are doing this progressively. We are going to engineering colleges, law colleges and explaining to students, saying this is the time in your life to get involved.
The orange fulminator continues to hog the limelight with his pyrotechnics but the real world keeps breaking through our state of thrall from time to time—with a bomb blast in ...
The initial announcement that rendered their savings useless came as a shock and spelled disaster to the powerless poor, with no bank accounts and debts to usurers. But ...
Number of issues 12 nos | Yearly cover price INR 600 | Yearly offer price INR 400