LIST OF MAJOR TECH POLICY DEVELOPMENTS IN INDIA – 2020
1. Timeline of Internet shutdown in Jammu & Kashmir (213 days, Aug 4 2019 to 4 March 2020)
An internet shutdown was imposed on 4th August 2019, prior to abrogration of Article 370 of the Constitution by a Presidential order 272 dated 5th August 2019. The State of Jammu and Kashmir was bifurcated into the Union Territories of Jammu & Kashmir and Ladakh. A preventive shutdown was imposed in the state. The shutdown in Kargil was lifted on 27th December 2019 but continues in other parts of the state.
The beginning of the communication blockade saw landlines as well as Mobile services restricted. Subsequently the ban on landlines was lifted but suspension of mobile internet continued in the valley. On 25th January 2020, 2G services were restored in the valley for verified users. Only whitelisted websites could be accessed and social media remains prohibited. The services were snapped again the same day on account of security concerns for Republic Day, 2G services for whitelisted websites were later restored on 26th January 2020 at 4PM. On 4th March 2020, a new order was passed by the administration of J&K, whitelist was removed but internet could only be accessed using 2G on verified SIM’s. As of this day, 4G is available only in 2 districts in the UT, rest of the UT is still operating on 2G.
2. National Cyber Security Strategy, 2020
The National Security Council Secretariat had invited submissions/comments for the proposed National Cyber Security Strategy, 2020. The 2020 strategy is an attempt to revise and strengthen the National Cyber Security Policy 2013 and was based on the vision to “ensure a safe, secure, trusted, resilient and vibrant cyber space for our Nation’s prosperity.”
The Secretariat sought comments based on the following “Pillars of Strategy“:
a. Secure (The National Cyberspace)
b. Strengthen (Structures, People, Processes, Capabilities)
c. Synergise (Resources including Cooperation and Collaboration)
3. Anuradha Bhasin vs Union of India
On January 10, the Hon’ble Supreme Court in this landmark judgment on internet shutdowns directed that internet shutdown orders must adhere to the principle of proportionality and must be temporary in nature. The Supreme Court also recognized that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected. This declaration would make it easier to challenge shutdown orders in future. The Court also emphasized on the need for transparency and mandated that internet shutdown orders need to be published. (A detailed analysis of the judgment can be found here)
4. Report of Ad-Hoc Committee Against Online Pornography
The Rajya Sabha’s ex-officio Chairperson Venkaiah Naidu had constituted an ad-hoc committee during the winter session of 2019 to “study the alarming issue of pornography on social media and its effect on children and society as a whole” under the chairpersonship of Mr. Jairam Ramesh. The committee tabled its report on February 3, 2020.
One of the recommendations in technological measures was to include the traceability requirement in the IT (Intermediary Guideline) Rules, 2011 and allow breaking of end-to-end encryption to trace distributors of child pornography.
5. Delhi Police’s Use of Facial Recognition
Home Minister Mr. Amit Shah informed Lok Sabha and Rajya Sabha earlier in March that the Delhi Police had identified approximately 1100 people using facial recognition technology. These people were identified for their alleged involvement in the Delhi riots. It was also admitted in the Parliament that the data from voter IDs and other information was also used to carry out facial recognition.
6. Aarogya Setu app
The Ministry of Electronics and Information Technology (“MEITY”) rolled out its “Aarogya Setu” application (“the App”) for Android and iOS platforms. The app aims at providing users information as to whether they are prone to a COVID-19 infection by tracing their movements and analysing their proximity to COVID-19 positive persons. The app requires the user to submit the user’s geo-data. It also uses bluetooth to connect to other registered users and from the network thus formed, analyse whether the user has come in contact with anyone who has been tested positive. The app, as per its terms of service is intended to “notify, trace, and suitably support” a registered user regarding COVID-19 infection.
7. BECIL Tender and Government Surveillence
On 10.04.2020, the Broadcast Engineering Consultants India Limited (BECIL) which is a central public sector enterprise under the Ministry of Information and Broadcasting, floated a Request For Expression of Interest (EOI) inviting companies for the supply of medical devices. The list of devices included a sensitization chamber, test kits, rescue team GPS location monitoring systems and N95 masks. On the same date, BECIL also issued a Corrigendum to the EOI which added three more products to the list. The new entrants being tracking tools for patients, online high fever scanning tools and handheld thermal imaging systems. The most controversial tool in the document is the COVID-19 patient tracking tool which reportedly would be in the form of a wrist band/wearable device. The second tool is the hand-held thermal imaging system which is required to be able to take temperatures from a distance of 2-5 meters and should have a secure digital memory card slot with a capacity of up to 32 gigabytes. The third tool, the online thermal fever sensing system, has a face detection feature, video and audio recording with a minimum of one month of video footage being recorded. The development of tools and technologies indicated in the tender raises several questions about data protection and government surveillance during a pandemic. (Read more here)
8. Petition in the Karnataka High Court Against Aarogya Setu
SFLC.in’s advisory board member Mr. Anivar A Arvind filed a petition in the Karnataka High Court, challenging the voluntary-mandatory imposition of Aarogya Setu and invasion of privacy rights in the absence of specific legislation governing data collection and processing by it. He is represented by Senior Advocate Colin Gonsalves, Counsels from SFLC.in, Advocate Clifton D’ Rozario, Advocate Avani Choksi, and Advocate Ali Zia Kabir in the matter.
Till now the Government of India through the Ministry of Railways, Airports Authority of India, and Ministry of Civil Aviation has stated on record that Aarogya Setu is not mandatory to avail rail or air services. The Airports Authority of India also had to revise their state-wise quarantine guidelines which had initially made Aarogya Setu mandatory. Similarly, Bangalore Metro Rail Corporation Limited (BMRCL) withdrew its initial statement that Aarogya Setu was mandatory for metro commuters. The Ministry of Housing and Urban Affairs also amended their draft Standard Operating Procedure (SoP) which had made Aarogya Setu mandatory for metro commuters. The now notified SoP by Ministry of Housing and Urban Affairs states that the installation of Aarogya Setu is advisable in nature.
In addition to this, the Karnataka High Court, on 19.10.2020 passed an order stating that no service or benefit will be denied by state or state instrumentalities to any citizen for not installing Aarogya Setu. The court has now reserved its judgment in the matter
9. Petition in Calcutta High Court Against Arbitrarily imposed internet shutdown
On 12th May 2020, without any advance notice to the citizens, Internet services were cut off in some parts of Hoogli district in West Bengal, following communal riots. From the information that was received by SFLC.in, it was found that the internet was suspended using Section 144 of Criminal Procedure Code, 1973. The legally prescribed manner of imposing an internet shutdown is through the procedure laid down in Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 which were notified in 2017. The shutdown for 6 days during a public health crisis had a detrimental impact on people as their education, livelihood and day to day activities were brought to a halt.
SFLC.in filed a Writ Petition before the Calcutta High Court challenging the order of arbitrary imposition of internet shutdown. The matter got listed on 15th May 2020 before the Bench comprising of Hon’ble Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee. A special sitting of the division bench took place on 16th May 2020 at 11AM. During the course of the hearing, a number of contentions were raised by both sides. The Bench was assured by the Advocate General appearing on behalf of the state that no further extension of the shutdown would be ordered. The matter is pending for final arguments.
10. Foundation for media professionals vs Union territory of Jammu and Kashmir (11th May 2020)
In a case filed before the Hon’ble Supreme Court, the new and revised orders of internet restrictions post the Anuradha Bhasin judgment were challenged as being violative of the direction laid down in the said judgment and the Temporary suspension of telecom services (Public emergency and Public safety) Rules, 2017. The Supreme court reiterated that the “compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored”. Reflecting on the national character of the concerns at the border that have merited these restrictions, the Court constituted a Special Committee, in place of the Review Committee provided for in Rule 2(5) of the Suspension Rules 8, to look into the prevailing circumstances and immediately determine the necessity of continuing the impugned restrictions (A copy of the letter sent by SFLC.in to the special committee can be accessed here).
11. Ban on Chinese Mobile Apps
The Central Government on June 29, banned 59 apps which were developed by Chinese firms, stating concerns that the apps were involved in activities which threatened the sovereignty and integrity of India. The ban was imposed in the backdrop of border skirmishes between India and China earlier in June. (Read more here)
12. NITI Aayog’s working document on #AIForAll
The NITI Aayog released its working document on “Responsible AIforAll” on July 21st, 2020 for discussion with stakeholders on the subject. The document serves as an important groundwork on ethics of AI in India as well as for legislative considerations which have to be taken into account while drafting legislation on AI. The report was initially accepting public comments till July 31st, 2020 and it was only later that the time period for consultation was extended to August 28th, 2020. India is still in the nascent stage of exploring the use of Artificial Intelligence and its impact on citizens. It is therefore important to give a time period that is sufficient to all stakeholders for them to be able to give their comments.
Later, the NITI Aayog also rolled out #AIForAll: Enforcement Mechanisms which proposes setting up an Oversight Body for Artificial Intelligence governance in India.
13. Report on Non-Personal Data Governance Framework
A committee of experts under the Chairpersonship of Mr. Kris Gopalakrishnan was constituted to deliberate on the Non-Personal Data Governance Framework. It was constituted to study the various issues involving non-personal data and to make specific suggestions for consideration of the central government on the regulation of non-personal data. It published its report on July 12, 2020 and sought comments on the Report till September 13th, 2020.The Report attempts to define non-personal data, and proposed several concepts including the concept of community, public and private data, non-personal data authority, data trusts, data businesses, and data custodians etc.
14. Facebook – WSJ Revelation
The Wall Street Journal in August reported that Ankhi Das, the public policy head for India, South & Central Asia at Facebook, had opposed putting in place hate speech restrictions on some individual accounts, fearing adverse impact on Facebook’s business prospects. The controversy raised several questions about the way Facebook was moderating content in India while also creating a political and public relations crisis for the company. The company subsequently issued a statement in October, stating that Ankhi Das was stepping down to pursue her interest in public service. (Read more here)
15. Summons to Facebook by the Delhi State Assembly’s Peace and Harmony Committee
In August, the Peace and Harmony Committee constituted by the Delhi State Assembly, said that it had received numerous complaints against Facebook in relation to its failure to contain hateful content in India. The panel which was chaired by Member of Legislative Assembly Raghav Chadha, decided to take cognizance of the issue. The Committee was formed with the mandate to “maintain and promote an irenic atmosphere in the city” and to establish a “conducive milieu of concordance, peace and pacification between different communities”. The committee found that the allegations against Facebook were “extremely serious in nature” which could lead to “serious adverse fallouts” and it then sent summons seeking appearance of Facebook officials, including Ankhi Das. Facebook did not appear for the meeting on September 15 after which the committee issued a second notice on September 18, asking Vice President of Facebook India Mr. Ajit Mohan to appear before it on September 23. (Read more here)
On September 22, Ajit Mohan filed a plea before the Hon’ble Supreme Court, challenging the Notices dated September 10 and September 18 which were issued by the Committee. During the course of the hearing in before the apex court, the central government took a stand that the action of the Delhi Assembly Committee in conducting an inquiry against Facebook, was without jurisdiction. On December 3, the Delhi Assembly Committee approached the Supreme Court, seeking to intervene in the case and the committee was directed to file its reply within four weeks. (Read more here)
16. Consultation on Data Empowerment and Protection Architecture
The NITI Aayog released the draft Data Empowerment and Protection Architecture for consultation in September, 2020. The draft document argues that “India needs a paradigm shift in personal data management” and proposes a consent framework that would allow individuals and small businesses to “access, control and share personal data” with third party institutions. The draft framework aims to come up with a new governance model by allowing seamless exchange of personal data using consent managers.
17. India Joins Five Eyes Alliance In Statement Against End-to-End Encryption
India and Japan joined the five eyes alliance in a statement against end-to-end encrypted platforms. The statement stated that E2E encryption poses “significant challenge to public safety” and therefore, companies should build backdoors for law enforcement agencies.
18. IT Parliamentary Committee Discusses Internet Shutdowns in Delhi and Bihar
In October, the Parliamentary Standing Committee on Information Technology discussed the impact of internet shutdowns. As per the schedule, the Committee heard representations from the Union Home Ministry, and state governments of Delhi and Bihar. At least a total of ten members attended the meeting.
19. Twitter and Ladakh geo-tagging error
The controversy arose on October 18, when users on twitter indicated that their posts while being in Ladakh, were shown geo-tagged in China. In other words, the company was found to have indicated parts of Indian territory as being in China. Twitter at the time said that the issue had been fixed. Subsequently, Ms. Meenakshi Lekhi accused the company of disrespecting India’s sovereignty when the representatives from Twitter appeared before the parliamentary panel to explain their side of the story. Twitter wrote an apology letter which was sent to the Joint Committee on Personal Data Protection Bill. Twitter also mentioned in its apology that the issue would be resolved by Nov. 30. (Read More here)
20. RAISE 2020 – Mega virtual summit on Artificial Intelligence (AI)
Prime Minister Shri. Narendra Modi inaugurated a five day global cirtual summit from 5-9 October, called Responsible AI for Social Empowerment RAISE 2020. The summit was organized to facilitate exchange of ideas on the use of AI for social transformation, empowerment and inclusion in areas such as healthcare, agriculture, education and smart mobility. During the course of the summit the Prime Minister said that AI will unlock the potential of each person and will empower them to contribute more effectively to the society. He further urged the participants to exchange ideas and chart a common course for the adoption of Artificial Intelligence. (Read more here)
21. Right to be Forgotten Order by the Odisha High Court
The Odisha High Court recognized that there is no statute in India which provides for right to be forgotten while dismissing a bail application filed by a rape accused. The court derived an analogy with toothpaste and stated that “the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in”. The court also recognized that the right to be forgotten is a “thorny issue” in terms of practicality and technological nuances.
22. Amendment to the Telecom Suspension Rules
The central government amended the Telecom Suspension Rules on November 10, to specify a 15 day time limit for the internet shutdown orders. The amendment was notified without any public consultation and it fails to incorporate procedural safeguards laid down by the Supreme court in the Anuradha Bhasin Judgment, such as requiring proactive publication and periodic review of internet shutdown orders. Further, the choice of 15 days as the appropriate length of time for the validity of a suspension order will limit the utility of the recent amendment since most internet shutdowns do not last for 15 days.
23. The amendment to the Kerala Police Act
An Ordinance which was issued on November 21, sought to amend the Kerala Police Act (a state-level criminal law), adding a new Section 118A. This provision sought to punish any kind of “communication” – including statements, articles, social media posts, etc – which threatens, abuses, humiliates or defames a person or class of persons. The punishment for this offence was up to three years’ imprisonment and/or a fine up to Rs 10,000. Activist Anoop Kumaran who had earlier challenged Section 118(d) of the Kerala Police Act, 2011, filed a petition in the High Court of Kerala with legal assistance provided by SFLC.in’s legal team. The petition challenged the amendment on various grounds such as the similarity with the stuck down sections 66A of the IT Act, 2000 as well as Section 118 (d) of the Kerala Police Act, 2011. The petitioner was represented by SFLC.in before a bench comprising of Chief Justice Mr. S. Manikumar and Justice Shaji P. Chali. On 22 December 2020 the High court closed the challenges to Section 118A of Kerala Police Act after the repeal of the provision (More information can be found here).
24. Regulation of OTT Platforms
Vide a gazette notification published on 11.11.2020, the Union government brought the Over The Top (OTT) platforms, or video streaming service providers such as Netflix, Amazon Prime and others, under the ambit of the Ministry of Information and Broadcasting. The Cabinet Secretariat made an amendment to the Government of India (Allocation of Business) Rules to include “Films and Audio-Visual programmes made available by online content providers” and “News and current affairs content on online platforms” under the I&B Ministry.
Currently, there is no law or autonomous body governing or regulating digital content. Under the said notification, online films, digital news and current affairs content will not be covered within the purview of the I&B Ministry headed by Prakash Javadekar.
25. Mobile App block
On November 24, 2020, the Ministry of Electronics and Information Technology issued an order under section 69A of the Information Technology Act blocking access to 43 mobile apps. This action was taken based on the inputs regarding these apps for engaging in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. Earlier on June 29, the Government of India had blocked access to 59 mobile apps and on September 2, 118 more apps were banned under section 69A of the Information Technology Act for the same reason. In 2020, other websites that have been blocked by the Government include, Stand With Kashmir, New York Times, Sikhs For Justice and the web browser duckduckgo. (A legal analysis can be found here and a time line of events can be viewed here)
26. Questions raised in Parliament:
N Uttam Kumar Reddy, a Congress MP from Telangana, asked the Home Ministry if the internet blockade — which has existed in J&K in one way or another since August 2019 — has affected citizens’ access to healthcare and education. Minister of State at the Home Ministry G Kishan Reddy, also a Telangana MP, had no concrete figures to give. He claimed the businesses continued to have access to the internet through fixed line connections and internet kiosks. He also said 2G internet speeds were sufficient for Covid-19 control measures.
BJP MP C.M. Ramesh also asked the Ministry of Electronics and Information Technology (MEITY) about the number of websites it has blocked in the recent past.
27. Twitter representatives grilled over anti-court posts
On November 19, the joint Parliamentary Committee on Data Protection Bill grilled the representatives from Twitter on the issue of “selective removal and suspension of accounts”, citing the example of tweets written by an Indian stand-up comedian, against the Supreme Court of India. Twitter was asked to give an explanation in respect of its policies governing suspension of user accounts and the removal of “offensive” tweets. Twitter was also asked if some content got promoted over others because of algorithmic or manual intervention. In relation to the controversy, the Chairman of the standing committee on Information and Technology, Mr. Shashi Tharoor raised questions about the mandate of the joint committee and whether it could take up an issue like this or not. (Read more here)
28. India’s Unique ID For Health : The Health ID and the Health Data Management Policy (December, 2020)
The Ministry of Health and Family Welfare released the Health Data Management Policy under the National Digital Health Mission. The Policy has laid down rights of a data principal, data sharing, regulation, maintenance of Electronic Health Records, Health Information Providers etc. The project intends to digitize the entire healthcare ecosystem of India. This would be done by creating digital health records and creating and maintaining registries for healthcare professionals.
29. Legal Challenge to the operation of surveillance systems NETRA, NAGTRID and CMS (December, 2020)
The Center for Public Interest Litigation and Software Freedom Law Center, India approached the Delhi High Court, challenging the operation and execution of three surveillance projects namely Centralized Monitoring System (CMS), Network Traffic Analysis (NETRA) and National Intelligence Grid (NATGRID) which collectively and separately seek to spy on the communication of citizens in India. The Writ Petition states that the surveillance projects violate the right to privacy of citizens under Article 21 of the Constitution of India and are violative of the principles which were laid down in the Puttaswamy Judgment. The admission hearing took place on December 2 when the Government was asked to file its reply within a period of three weeks. (More details can be found here)
30. Facebook and Farmer Protests
On 20.12.2020, the official Facebook account of ‘Kisan Ekta Morcha page’ which belongs to a farmers group involved in the protest against Central farm laws, was allegedly blocked by Facebook during a live broadcast. President of Swaraj India Shri Yogendra Yadav alleged that during a Facebook live, they received a notification saying that the Facebook page has been unpublished. In a tweet, Mr. Yadav shared a screenshot of the message which was displayed on the Kisan Ekta Morcha page which said “Your page has been unpublished. This is because Kisan Ekta Morcha goes against Community standards on spam. We have these standards to prevent things such as false advertising, fraud and security breaches.” The page was restored subsequenltly. Facebook issued a clarification on December 21 where it said that an error on its part caused the blocking of the accounts used by farmers who were protesting against the new agricultural laws. (Read more here and here)