Lateral Surveillance and New IT rules, 2021


Indian Cyber Crime Coordination Centre (I4C), under the Ministry of Home Affairs (MHA), launched the Cyber Crime Volunteers Program. The program aims to allow citizens to register themselves as “Cyber Crime Volunteers’’ in the role of “Unlawful Content Flaggers.” It targets to rope in around 500 persons to flag unlawful content on the Internet and report them to the National Cybercrime Reporting Portal. It will help law enforcement agencies in identifying, reporting, and in the removal of illegal or, unlawful online content. The State Nodal Officer of States or, UTs also reserves the right to take legal action against the Volunteer, in case of violation of terms and conditions of the Program.

Such surveillance where the states are enabling few citizens to carry out surveillance on other citizens is referred to as Lateral Surveillance or Pier to pier surveillance. Traditionally, we refer to vertical surveillance where The state and its law enforcement, and the intelligence agencies are keeping a watch on citizens and monitoring their data, behavior, and activity in the name of national security. Vertical surveillance is legitimized by laws and by the constitution to protect the security of the country, and to maintain public order, here the balance of power is clearly in the hands of states. If the right of citizens violated, there are some legal routes available with the citizens to hold the state accountable.

Lateral surveillance is not new, many countries and many governments have practiced it for many years. Back in the 1970s, United States has launched a Neighborhood Watch program, to promote community Policing through which community members were asked to keep an eye out for criminal activity and report them accordingly to the law enforcement authorities. In the state of Uttar Pradesh, the government has launched an application known as ‘C-Plan’ through which certain individuals are identified with the state, and they are empowered at village levels to report any communal tensions, land disputes, or other law and order related problems to the law enforcement authorities. Recently during the pandemic in a controversial move, the Karnataka government published personal details that include, the home address including thousands of international passengers who were supposed to under home quarantine and asked the neighbors to watch on them and report the violations to the local administration.

Threat

Lateral surveillance could be inherently dangerous because of its potential for misuse, abuse, and the potential to exclude other citizens. Around the world, the government has enabled community watch, to keep an eye on certain citizens and unlawful activities, especially in domains where the state can not have an omnipresent presence. serves the purpose of law enforcement.

  • Hurts Privacy: Lateral surveillance is used to further emotional objectives such as community building and strengthening relationships with neighbors where emotional and social factors act as a driving force, thus creating a situation where privacy may be undermined for the betterment of the community. It is nothing short of direct violation of the Right to Privacy, which is a guaranteed fundamental right under article 21 since the verdict of the Historic Puttaswamy case.
  • Social Discriminatory: Surveillance technologies not only act as a tool for social control but also as a tool for social exclusion. Lateral surveillance thus makes it easier to discriminate between those who conform to the social norms of the majority.
  • Culture of Distrust: State-sponsored lateral surveillance is harmful as it creates a culture of ‘hate’, ‘fear’, and ‘constant suspicion’ against an ‘enemy.’ This culture places a duty on people to ‘keep an eye out for ‘their safety, and this heightens the fear of crime in society.
  • Widen Faultlines in Society: Such perceived threats tend to increase intolerance, prejudice, xenophobia, and casteism in our society, and, consequently, the expression of free speech and behavior. It could also a violation of the Fundamental Right to Free Speech and Expression, which has been guaranteed under article 19 of the constitution.

Such self-proclaimed defenders of the country could misuse to report any activity which according to them is unlawful and against the interest of the national security. It gives them discretion, to define what is unlawful according to their biases and prejudices, which could result in the social exclusion of several other citizens. In the state’s eyes, the volunteers are responsible citizens, whereas those who reported could be presumed to be violators. That would push the citizens to confirm the majority ideology, be it concerning their version and interpretations of nationalism, or religion, caste, or language, such rise in majoritarianism will increase intolerance in the country, and the divide that exists in the society. These divides could be communal divide, caste-based divide, linguistic divide, and regionalism divide, etc.

The government has recently notified the Information Technology rules of 2021 under which the intermediaries have been mandated by the government, to take down any offensive content, that has been flagged by the government. According to new IT rules, OTT platforms and social media platforms are obligated to take down any offensive unlawful content based on the direction of the government within a short period.

Citizen has posted on social media, criticizing the government and senior leaders of the government. If criticism is genuine, and not instigating any violence, then such right to criticize to the government has been guaranteed under article 19 of the Indian Constitution. Similarly, if a citizen expressing critical views about religion or any social issue, as long as they don’t instigate violence, are also protected under the fundamental rights of article 19.

A cyber volunteer aligns with the ruling party, with majoritarian interest, then he might report this genuine criticism, to the intimidation, discrimination, and exclusion of the citizens. The new IT rules, 2012 would violate the Actual Knowledge Doctrine. That was brought out by the Supreme Court in the landmark Shreya Singhal case, in which the Supreme Court declared the controversial section 66A of the IT Act to be unconstitutional. As under this provision, the state was empowered to take down any offensive content, and the lack of definition of what is offensive led to its discretionary usage by the state. As a result, any genuine criticism of the government was also deemed to be offensive and anti-national. Individuals posting any such content were been booked by the authorities in direct violation of fundamental rights under article 19.

According to the Actual Knowledge Doctrine, intermediaries should take down the content only after having enough knowledge that the court has ordered such removal of content. However, the new IT rules allow the government to direct the intermediaries to take down any offenses without even waiting for judicial orders.

So, when you club the new IT rules allows with the cybercrime volunteer program, the citizens and their basic fundamental rights would be left at the mercy of few cybercrime volunteers and the state, and they may not be able to exercise sufficient legal remedies in order to protect and defend their fundamental rights and hold the state accountable.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

In 2018, the Supreme Court (SC) had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imagery, videos, and sites in content hosting platforms and other applications. As a result, the government formed an Ad-hoc committee to study the alarming issue of pornography on social media and how it affects children and society as a whole. The committee recommended enabling identification of the first originator of such content.

To implement the committee recommendations government issued guidelines for intermediaries such as Social Media intermediaries, News Publishers, and OTT Platforms and Digital Media, etc. To exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000.

New Guidelines for Social Media/Intermediaries

  • Intermediaries shall appoint a Grievance Officer to deal with complaints and share the name and contact details of such officers. Grievance Officer shall acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt.
  • Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that expose the private areas of individuals, show such individuals in full or partial nudity or sexual act, or is like impersonation including morphed images, etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf.
  • Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer, all of whom should be residents in India.
  • Officers also need to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively.
  • Significant social media intermediaries shall enable identification of the first originator of the information, for prevention, detection, investigation, prosecution, or punishment of an offense related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order punishable with imprisonment for a term of not less than five years.

Rules for News Publishers and OTT Platforms and Digital Media

The OTT platforms, called the publishers of online curated content in the rules, would self-classify the content into five age-based categories- U (Universal), U/A for 7+, U/A for 13+, U/A for 16+, and A for Adult.

  • Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A.” Shall prominently display the classification rating specific to each content or program together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every program enabling the user to make an informed decision, before watching the program.
  • They would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Program Code under the Cable Television Networks Regulation Act 1995 thereby providing a level playing field between the offline (Print, TV) and digital media.
  • A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation. Level-I: Self-regulation by the publishers; Level-II: Self-regulation by the self-regulating bodies of the publishers; Level-III: Oversight mechanism.
  • Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall decide on every grievance received within 15 days.
  • There may be one or more self-regulatory bodies of publishers, shall be headed by a retired judge of the SC, a High Court, or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
  • Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

(Pictures from google)

Published by Neel Kamal

My name is Neelkamal. Here, I will provide the content effective for everyone who want to learn more and more. And if you want, I am open for your suggestion to write on. I have done M.Sc in Biotechnology and also read about the Political, Social, Environmental issues. So, my blog will surrounds upon topics related to these subjects.

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