Apar Gupta, Rohin Garg write: Ashwini Vaishnaw must implement broader digital governance framework. Process of updating IT Act must be made public.
After the revamp of the Union council of ministers, several fresh faces have graced the cabinet raising hopes of a new policy direction. While chances of a policy reset, or the motives for the reshuffle, remain debatable, the governance challenges are certain. The ongoing pandemic has made the lives of millions of Indians, as well as government policy, shift focus towards a digital environment. Unfortunately, this has also been reflected in a consistent media harping on the ongoing conflict between social media companies and the government. A lot of this has been concentrated on the issue of Twitter’s compliance.
In fact, political commentary has largely juxtaposed the change of Ravi Shankar Prasad at the helm of the Ministry of Electronics and Information Technology with his inability to bring the matter to a resolution. While such a dispute may provide for the gripping excitement of a public drama, it causes distraction. Today, there is a burgeoning list of governance businesses that go far beyond the ministry that is now headed by Ashwini Vaishnaw. A closer look at these issues may help advance an agenda that promotes both digital rights and innovation in India.
The first, and pivotal, issue for consideration is that of access. There is little quarrel on the larger policy goal of increasing internet access. However, the performance has been dismal and targets are being missed. According to the latest Telecom Regulatory Authority’s report capturing data till December 2020, the rural penetration rate of 34.69 per cent, with 308.17 million rural internet subscribers, is not even one-third of the urban penetration rate. This is substantiated by a parliamentary reply in February 2021, that close to around 37,439 villages in India are still not covered by telecom service providers. Existing schemes for digital literacy have also witnessed slow progress. For example, the Pradhan Mantri Gramin Digital Saksharta Abhiyaan (PMGDISHA) has identified 4.54 crore target candidates, which itself is a low number. Out of these, only 2.71 crore candidates had been certified as of March, 2021.
Another related issue is internet shutdowns, where data shows that between 2012 and 2019, state governments have shut down the internet in various parts of the country approximately 374 times, with 2019 and 2020 witnessing an estimated 106 and 129 shutdowns respectively — causing $2.4 billion in losses. Here, there is widespread non-compliance by state governments with the Supreme Court’s judgement in Anuradha Bhasin v Union of India that required publication of internet shutdown orders. Finally, despite the large public movement for net neutrality in India years ago, the enforcement body recommended by the Telecom Regulatory Authority is yet to be formed. On internet shutdowns and net neutrality, there have been little to no policy proposals or movement towards improvement.
Proceeding towards the more contentious issues of social media regulation, the Ministry of Electronics and IT has invested considerably in the Information Technology Rules, 2021. The IT Rules are jointly administered by the Ministry of Information and Broadcasting that is now headed by Anurag Thakur. The Ministry of I&B regulates online news portals and video streaming services under these rules. However, rather than leading to clear regulatory principles, these have only led to uncertainty and dispute. Today, close to 14 individual constitutional challenges are pending before different high courts. These are the very IT Rules which hope to regulate not only Twitter, but substantial parts of the Indian internet. However, they emerge from the absence of any clear legislative power and end up hurting the rights of users. It is no one’s case that social media is perfect, but the nature of the problems presented by it requires large scale reform, while recognising its utility.
To walk towards solutions, the IT Rules must be withdrawn. Till a broader and more comprehensive digital governance framework is implemented, intermediary liability can be regulated by the pre-existing legislative frameworks refined by the Supreme Court in the case of Shreya Singhal v Union of India. More importantly, the process for updating the Information Technology Act, 2000 must be made public. This would involve conducting large-scale consultations with various stakeholders as well as setting out a position paper on the future of the IT Act. A larger, participative vision for legislative action, rather than a daily prime time duel with Twitter, will resolve continuing issues of website blocking and encryption in a rights respecting manner.
Another significant concern is the increasing number of data breaches from Air India to Domino’s. According to a report in this paper, the average data breach in India costs Rs 14 crore and the average time to both detect and contain a breach went up to 221 days and 83 days respectively. This indicates a significant amount of data loss for users with further risks of financial crimes. There have been little to no policy movements to address these lapses, as they have seemingly been put off on the premise of an incoming Data Protection law. This much belated Data Protection Bill will suffer from further delays. The Joint Parliamentary Committee piloted by Meenakshi Lekhi will require a change in leadership given her recent appointment to a ministerial berth. So, does the Ministry of Electronics and IT have a plan to address privacy risks as more Indians get connected while services gather user data in a completely unregulated manner?
Probing questions to, rather than narrow personality analysis of, the new ministers is vital to ensure the growth of the Indian internet into a healthy forum that enshrines our constitutional values. This is reflected in the recent G-7 Open Societies Declaration to which India is a party that states within its first point, “Human rights for all, both online and offline”.
This column first appeared in the print edition on July 14, 2021 under the title ‘Reshuffle and digital rehash’. Gupta is Executive Director and Garg is an Associate Regulatory and Parliamentary Counsel at Internet Freedom Foundation