On Kill Switches, Media Silence, and Governmental Super-Powers – A Comment on Vadodara

(Image Source: https://flic.kr/p/5V1h4R)

The following is a post on the recent disconnection of mobile internet, bulk SMS and bulk MMS services by the government in Vadodara in light of social unrest and riots. It’s a bit of a long post, and therefore has been divided into sections – the first part details the factual background of the issue, the second part contrasts it with Hong Kong, the third part considers the legal perspective, and the final two parts are my comments on it. My sincere thanks to Swaraj Paul Barooah for his helpful comments on the post.

Background

In the past week, two very different cities have found themselves in the midst of social upheaval, and both of these cities have dealt with it in two very different ways. One is Hong Kong, and the other is our very own Vadodara. Hong Kong is under the influence and control of China, a country well known for its censorship policies. On the other hand, India is a country that claims to respect fundamental rights. But the practical extent to which these rights are protected has been under question for quite a while, in the specific context of the Internet.

According to reports, the Gujarat government has cut off mobile internet in the city of Vadodara. The order apparently came from the Home Department, and bans mobile internet and bulk SMSs and MMSs, though broadband services remain untouched. Details of the order, the why, who, where, and wherefores, have not been released to the public yet.

Even so, to my knowledge, the only law which allows the government to take such a step is Section 144 of the Criminal Procedure Code. While Section 69A of the Information Technology Act allows the government to block public access to a resource, it does not allow the government to cut off mobile internet. or bulk SMSs and MMSs. There are two problems with that, though. The first is that Section 144 can only be enforced by the Central Government, meaning that the Home Ministry in this case was inherently incapable of issuing such an order. Secondly, Section 144 is supposed to be used on occasions in which the situation threatens law and order. Just how extreme such a situation must be for the Government to utilise this principle apparently varies. On the one hand, this would seem to be a drastic step, cutting off a large chunk of the communication services for people. On the other, this is the same section that was used to ban Vishwaroopam last year.

To Contrast, Hong Kong

Compare this with the situation in Hong Kong. Last weekend, on learning that the government may be backing out of its promise for open elections, pro-democracy protestors took to the streets. The protests had played out as much on the Internet as they had on the streets, spreading through WordPress manifestos and civil disobedience guides, Twitter posts, Instagram photos, and Facebook memes. Many protests were organised using Firechat, which uses something called Mesh Networking, a decentralised peer-to-peer-network based messaging system very much similar to Bitcoins, which uses Bluetooth or Wifi to establish connections directly between phones. And while information regarding the protests has been restricted in mainland China (for instance, Instagram has now been blocked and Vine is also facing issues), the Hong Kong government has not blocked Internet access, mobile or otherwise. And the medium of the Internet, specifically mobile internet, played a huge role in getting out information about what was actually happening on the ground through live tweets and Instagram picture, as compared to various news reports.

A Legal Perspective

Here, then, it would be easy to conclude that the Gujarat government should not have blocked, and perhaps the government should never block, mobile internet. But there is another perspective to the issue here, that of the government. It must be noted here that the riots allegedly started when someone posted a morphed picture of a shrine. Notably, the government has taken care not to switch off broadband access, and has only switched off mobile internet services. It has only tried to cut off mass communication, cutting off mobile internet for services such as WhatsApp and Facebook Messenger. The rationale behind this is that there are persons who are using these mediums to spread messages inciting violence, directly affecting the riots, and cutting off the medium cuts off their access. Furthermore, the connections have been cut off only temporarily, and will be back online on Tuesday.

On the other hand, the context of the disconnection of mobile internet in this case raises is a question regarding the restrictions being placed on the Freedom of Expression, on the dissemination of information, and communication between persons. The government has also cut off a crucial medium of journalism, including citizen journalism. This is especially important since a vast majority of people from the economically lacking sections of society do not have broadband access and rely mainly on mobile internet. Specifically in Gujarat, 96.38 lakh people, about 21.81 percent of the population, accessed the internet from their mobiles, as of 2013.

But the fact remains that the right to free speech can be restricted under the reasonable restrictions permitted in the Constitution if such speech was to incite violence. Furthermore, the situation is complicated by the fact that the government’s actions were aimed at ensuring public order, which is permitted in Indian law, as given in the case of Santokh Singh v. Delhi Administration (a very detailed discussion on this issue is available here, courtesy of Gautam Bhatia).

Also relevant here is the 2011 report of United Nations Special Rapporteur Frank La Rue on the promotion and protection of the right to freedom of opinion and expression, noted as being the first international recognition of the Right to Internet Access. In his report, the Special Rapporteur placed special emphasis on the right of an individual to express him or herself through any media. However, the Special Rapporteur goes on to note that such a right to freedom of expression may be limited if such a limitation is prescribed by law, aims , namely, (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals, and must be proved to be necessary and the least restrictive means possible to achieve the said aim.

But crucially, the speech here is actually intended to incite violence. So, arguably, the restrictions placed by the government are perfectly valid in law, keeping aside the issue that such an order can only be given by the Union Government. Then why is it that it just doesn’t seem right?

The Actual Issue

In his article on MediaNama, Nikhil Pahwa asks three core questions that help us arrive at the true heart of the matter. “Should my freedom be curtailed by the State’s inability to curb violence and maintain peace?”, “Why isn’t the police using the Internet to identify the individuals who might be inciting violence instead of shutting off the medium?” and “Can’t the police counter misinformation by using the same medium to share information?”

The true effectiveness of countering misinformation through sharing the correct information would actually be debateable, as riots like these are based more on inflamed emotions and opinions than facts, which is exactly why the Government blocked these mediums, to prevent the spread of rumours.

The answer to why the government is taking such a step, and why that is a problem, lies in the first and second questions. The government is switching off mobile internet and bulk SMSs and MMSs because it is unable to pick out people using them to incite violence. The very fact that the order was given, necessarily means that the government failed to find and stop the culprits. If the government was to argue otherwise, that would simply mean that the kill switch was flipped even though it was not necessary. (Interesting side point: In an article on the Central Monitoring System (CMS) earlier this year it was noted that while the government has all the technical capabilities it needs to monitor communications, it lacks the personnel necessary to do so. Furthermore, this does make one wonder what the entire CMS system is for, if not for tracking down who is using mobile internet, bulk SMSs or MMSs to incite hatred during a riot? ).

The Fear

The government, then, is cutting off mobile internet because it is easier for it to do so, as compared to actually finding the persons who are using the medium to incite violence. In my personal opinion, rights such as the Right to Freedom of Speech or the Right to Communicate should rarely, rarely, be restricted, if ever, and only if they are absolutely necessary. The track record of the government in this record is a bit patchy – as Saikat Datta noted (as quoted by Nikhil in the article mentioned above), the government had taken similar steps in 2012 during the North-East exodus, only to realise that online information was not even responsible for the panic.  I could understand the government cutting off the services in question if that was absolutely necessary, but there does not seem to be enough information on the riots to know whether the ban was disproportionate or not.

And this brings me to my next point – the media silence surrounding this issue. The Vadodara ban is barely being discussed in the mainstream media; its coverage as of right now being limited to mentions in the Times of India, MediaNama and Hindustan Times. And the last time the government used the kill switch, it used it to shut down internet access in parts of Kashmir to prevent Kashmiri leaders from addressing a United Nations Human Rights Council sideline event via video link in Geneva, an incident that, despite its importance, is highly underreported – I could barely find any mentions of it online!

The media silence along with the possible misuse of the kill switch by the government, lead me to what is perhaps the actual issue at hand. There is a fear of the government that we have all experienced ever since the Snowden leaks, and ever since CMS and Netra came to the limelight. Cutting off an entire medium of communication must necessarily be seen a drastic, last-resort step, because it is. Even understanding the reasoning of the government and the strong argument of public order in place here, there is a fear here, a fear that this creates a precedent that, if misused, may be absolutely terrifying. There is a fear, that what we are seeing here just might be the beginning rolls on a slippery slope.

(Comments/feedback/corrections welcomed.)

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