Modi advances against big tech in India and expands censorship – 09/26/2023 – World

Freedom of expression in India suffered yet another setback, this time with the approval of the Digital Personal Data Protection Act in August.

The legislation allows the government to block access to certain online platforms — “when it is in the public interest” — and weakens the Right to Information Law by allowing authorities to deny the provision of data considered personal, such as, for example, public employee salaries.

This is the latest chapter in Prime Minister Narendra Modi’s attack on digital freedoms in India.

Experts and activists warn of what they see as growing digital authoritarianism in the country. Since 2021, the government of Modi’s BJP party has adopted a series of laws and regulations to increase control over digital platforms and online media.

The Data Protection Law obliges any fiduciary — companies and bodies that collect, store or process data — to “provide information” required by the government. As news sites can be considered fiduciary, the legislation opens up the possibility of violating principles such as the confidentiality of sources and even the privacy of subscribers and financiers of the publication.

The same law establishes that, if a vehicle violates the rules twice, it can be blocked from public access. Previous versions of the law provided for exceptions for journalistic outlets, such as the European Union’s General Data Protection Law – but the final approved text did not.

It is, therefore, another way of censoring online content in India, which was already subject to the Information Technology Act of 2000. This legislation already allowed the government to block content that was considered a threat “to the sovereignty and integrity of India, the security of the State and public order”.

The alleged objective of the data protection law is to regulate big tech and punish leaks of sensitive data. However, the legislation provides exemption from liability for the government and authorizes the Executive to use citizens’ data for purposes for which it did not obtain explicit consent — in cases of “national security” or even to offer public services such as social benefits and subsidies .

This in a country where the government is massively collecting data from its citizens, storing biometric data and information about the health, vehicles and finances of all Indian citizens.

“How does the government intend to use this data?” asks Salman Waris, a lawyer specializing in technology and managing partner of TechLegis, an office focused on the sector. “India is on the same path as China, which is profiling all its citizens and using that information as it sees fit.”

In 2021, India adopted the draconian Information Technology (IT) Rules. Platforms now have new obligations to be entitled to the so-called “safe harbor” – immunity from liability for illegal content posted by third parties, unless after non-compliance with a government removal order, similar to the Marco Civil da Internet in Brazil.

The rules require platforms to remove content within 36 hours of a State order and provide information required by security agencies. They also require that big techs have local representatives to respond to any government requests. This last requirement is even considered a form of “taking hostages”, as Indian officials can end up in prison if they do not comply with orders.

Also to guarantee the “safe harbor”, platforms are required to inform users about content that is prohibited from publishing, such as posts that threaten India’s sovereignty and integrity, that disrupt relationships with friendly countries, that incite violence, that disturb public order and violate decency and morality.

Another measure provided for in the rules, which is being questioned in court, is the traceability of messages in applications such as WhatsApp, Telegram and Signal. It requires the identification of the first person who sent a certain message, if requested by the government. According to the companies, it ends encryption and the confidentiality of information.

The rules came in the wake of growing clashes between the Modi government and big tech. In February 2021, the country was taken over by protests against the new agricultural laws, and the government ordered the removal of profiles and posts critical of the prime minister. At first, the platforms resisted, which angered the Modi government. When Twitter labeled a post by a member of the ruling party as “manipulated media”, the company was the target of a police raid and its employees received threats of arrest. The platform ended up relenting and removed 500 profiles.

In 2022, an amendment to the IT Rules tightened the grip even further. In addition to informing users about prohibited content, platforms should “make reasonable efforts” to prevent such posts, which involves actively filtering and taking down content.

In April 2023, a new amendment went further and determined that government-related content classified as “false” by a state fact-checking body must be removed from internet platforms — in practice, giving censorship power to the Modi government.

“It is a threat to press freedom, as an investigative report pointing out acts of government corruption can be removed with the excuse of being [considerada] ‘fake news'”, says Prateek Waghre, policy director at the Internet Freedom Foundation.

In January this year, the Modi government invoked the laws and ordered YouTube to remove excerpts from the BBC documentary “India: The Modi Question” from the air within 36 hours. The work deals with the prime minister’s participation in violent conflicts between Muslims and Hindus in the state of Gujarat, in 2002, when he was chief minister (equivalent to governor). Modi also ordered X (formerly Twitter) to remove posts that contained links to the documentary and named 50 such posts.

According to a member of the government, the documentary should be taken down because it undermined the “sovereignty and integrity of India” and had the potential to impact “public order”.

Now, the Indian government is preparing to vote on the new Digital India Law, which determines that big techs will only have immunity if it is granted directly by the government, as if it were a license.

“The government is using India’s market size [837 milhões de assinantes de internet, atrás apenas da China] as leverage for negotiation. If you don’t follow orders, [as plataformas] are out of the market”, says Waris, from TechLegis.

Meanwhile, India remains the country that blocks the most internet in the world — according to Access Now, there were 84 interruptions last year. In second place came Ukraine, a country at war, with 22 blockades.

Jyoti Panday, researcher at the Internet Governance Project at the Georgia Institute of Technology (USA), says she understands the need for regulation of big tech. “Without the threat of legislation, they do nothing, we’ve seen that.” But for her, India is creating the worst kind of regulation. “There needs to be legislation focused on transparency. The way the law has evolved in India, it has concentrated all power in the hands of the government.”

Waghre, from the Internet Freedom Foundation, makes another consideration. “We don’t want platforms to have the power to decide what is free speech. But do we want the government to have that power?”

When contacted, the Indian embassy did not comment until the publication of this report. On social media, Minister of State for Information Technology, Rajeev Chandrasekhar, defended the Data Privacy Act. “The new law will protect the rights of all citizens, allow the innovation economy to expand, and empower the government to have legitimate access [a dados] in cases of [ameaça] national security and emergencies”.

He also countered criticism against the 2023 amendments. “If [as plataformas] will have immunity, they need to obey. There cannot be an excuse to escape responsibility. It is not an attempt to censor content.”