Living in a paradox: internet shutdowns in a Digital India

According to a Brookings Institute report, India lost nearly $1 billion (Rs 6,400 crore) between 1 July, 2015 and 30 June, 2016 due to internet shutdowns. The worldwide figure was $2.4 billion in the same period.

Software Freedom Law Centre, India, a Delhi-based non-profit, has now taken up the cause. Last February it launched Internetshutdowns.in, a portal that tracks any ban on internet services – whether mobile or fixed line – in the country.

The initiative is supported by Digital Empowerment Foundation, Internet Democracy Project and IT for Change. According to SFLC, the website was started to provide a one-stop destination for information related to internet shutdowns in India, including maintaining a dynamic internet shutdown tracker.

Update on 19 July: There has been a total of 29 internet shutdowns in the country in 2017.

Catch caught up with SFLC over email to talk about the deplorable state of the internet in India. Here are edited excerpts from the interview:

1. What is and who runs Software Freedom Law Centre?

   SFLC.in is a donor supported legal services organisation, founded in 2010 by our President Mishi Choudhary. We bring together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. We promote innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice, and help policy makers make informed and just decisions with the use and adoption of technology.

2. What constitutes an internet shutdown in India? Like, if just social media is banned, can we call that a shutdown of the internet?

   At SFLC.in, we define an internet shutdown as "a Government-imposed disablement of access to the internet as a whole within a particular locality or localities for any duration of time". Bans on access to particular online content and services like social media are excluded from this definition as they do not constitute a complete denial of access to internet services. Such bans are treated as instances of online censorship.

3. Does shutting down of the internet equal to curtailing freedom of speech? Suppose internet is shutdown in Puducherry, people can still speak out offline, right?

   In the present era, the internet is a key enabler of many fundamental human rights, including the right to freedom of speech and expression, as it is not only a source of information but also a medium for communication that enables people to voice their opinions and dissent. It serves as a platform for free exchange of thoughts and ideas among participants from diverse regions and backgrounds. Hence, when an internet shutdown is imposed, it directly infringes the individual's right to freely express himself in whichever manner he may chose to.

4. Do you think there is every a legitimate excuse/reason to shutdown the internet in India?

   The State government generally imposes internet shutdown in law and order situations in order to prevent rumour mongering. However, our stance is that blanket ban on internet services is not justified in any situation. Even in legitimate cases where the Government might need to restrict communications in the public interest, instead of resorting to extreme measures and shutting down the internet completely, relevant sites and portals may be blocked to restrict rumour mongering and keep the situation under control.

5. Are the frequent shutdowns of the internet hampering Modi's much touted 'Digital India' programme?

   With Digital India programme, the Government aims to transform India into a ‘digitally empowered society’ and a 'knowledge economy'. The internet plays a central role in the Government's vision to make digital infrastructure a core public utility, provide governance and services on-demand, and digitally empower citizens. Frequent shutdowns of the internet affect the basic infrastructure that is required for this digital push.

   For instance, businesses and merchants rely heavily on net-banking facilities for their transactions, and internet shutdowns affect their business severely. All in all, internet shutdowns erode trust in the digital agenda that is being aggressively promoted by the Government, and make for an inhospitable environment to implement such an agenda.

6. Can you point me to the latest data on which cities/states have the highest instances of internet shutdowns?

   As per our Internet Shutdown Tracker, there have been 79 recorded instances of shutdowns in India across 14 states since 2012. Jammu & Kashmir has witnessed the maximum number of internet shutdowns – 31 since 2012. This is closely followed by Gujarat, Rajasthan and Haryana with 9 shutdowns each. We do not currently aggregate shutdown statistics at the district or municipal levels.

   We have not recorded any shutdown in the rest of the states as of today.

6. India has a high proportion of internet shutdowns. What countries are comparable to this, just to give the readers a global view.

   According to the Brookings Institute report, India tops the list of countries for economic impact of internet shutdowns, standing at $968 million. The next country in the list is Saudi Arabia standing at $465 million. Saudi Arabia faced less than half of the losses faced by India in the same duration. Morocco lost $320 million, Iraq lost $210 million, and Brazil lost $116 million. All the other countries in the list including Pakistan, Syria and Turkey, among others, lost less than $100 million.

   In terms of absolute number of shutdowns, the report also points out that during the period July 1^st 2015 to June 30^th 2016, apart from India which faced 22 shutdowns (SFLC.in's tracker records a slightly higher number of 28), Iraq faced the most number of shutdowns i.e. 22, followed by Syria standing at 8 shutdowns, Pakistan at 6 and Turkey at 3.

7. What law/act is the government using to frequently shutdown the internet in India? Is it legal each and every time?

   Internet shutdowns in India are generally imposed under Section 144 of the Criminal Procedure Code, 1973 (CrPC), which grants states the power to issue orders for immediate remedy in urgent cases of nuisance or apprehended danger. While Section 5(2) of the Indian Telegraph Act, 1885 has also been invoked to impose internet shutdowns, these instances are extremely rare, and instances under Section 144 outnumber those under Section 5(2) by a very wide margin. Section 144 of the CrPC can therefore be treated as the enabling provision for internet shutdowns in India.

   A Public Interest Litigation Guarav Sureshbhai Vyas v. State of Gujarat was filed in Gujarat High Court challenging the use of section 144 to impose internet shutdowns when a specialised provision under section 69A of Information Technology Act is already in existence to provision online content restrictions in public interest. However, the court defended the State Government’s authority to impose shutdowns under Section 144 while observing that it is their discretion to exercise the power with prudence, public duty and the sufficiency of action in their view.

   While shutdowns imposed under Section 144 are not illegal per se, the increasing use of this Section is nevertheless a cause for serious concern. For starters, Section 144 has been traditionally used to curb unlawful assemblies in conflict-ridden areas, and it has never been used to shut down any communication system other than the internet.

8. 22 internet services have been shutdown in Kashmir for a month. Is this constitutionally legal? Why only 22 services and not a 'total shutdown'?

   The order blocking 22 social media sites and applications was issued by the Principal Home Secretary of Jammu and Kashmir under Section 5(2) of the Indian Telegraph Act to maintain peace, tranquility and public order in the state. According to the order, these social media platforms were being misused by the anti-national and anti-social elements to transmit inflammatory content.

   Among other things, Section 5(2) permits Central and State Governments to restrict communication services during public emergencies or in the interest of public safety. Whether a given situation qualifies for such action is left to the subjective discretion of the Government. In other words, the Jammu and Kashmir Government blocked the 22 social media services in legitimate exercise of powers conferred under Section 5(2), which means there is no reason at this time to question the Constitutional validity of this action.

   One can only speculate as to why a partial ban was instituted rather than a complete ban on internet access, as has been done in the past. It could be that this was done in order to minimise the effects of the restriction, as a ‘total shutdown’ would deny access to essential services such as banking facilities, healthcare services among others. A social media ban may have been preferred as this in itselfserved the immediate purpose of preventing rumour mongering and maintaining public peace and tranquility.

9. What, in your opinion, does the government gain by shutting down of the internet especially in times of 'Digital India' both for demonetization and other areas.

   The Government has primarily been shutting down the internet to prevent rumour-driven escalations of conflict situations and abusive uses of online platforms that disturb public order and instigate violence. What the Government ostensibly gains out of this is the ability to control the spread of inflammatory content, which in turn makes it easier for law enforcement to tackle existing or anticipated conflicts.

10. Loss of internet means loss of salary for some. Do you think the government will do anything to compensate these people whose livelihood depends on the internet?

    As of now, the Government has not come up with any scheme to compensate the people whose livelihood depends on the internet and who have been adversely affected due to internet shutdowns. There have also been no indications that such a scheme will be implemented in the future.

11. Can the government block specific websites on specific ISPs? Is that a thing in India?

    Yes, the Central Government can block specific websites under section 69A of the Information Technology Act, 2000 read with the relevant Rules. This Section gives the Central government or any officer specially authorized in this behalf, power to block information from public access through any computer resource. This includes specific websites and URLs, and directions under this Section may be issued to any one or more ISPs. The Government has on several occasions exercised its power under this section to block access to specific websites.

12.  Can you give an update on the movement, plans for the future, and any expansion of SFLC and internetshutdowns.in? Any plans to launch an app? Any plans to educate people on internet shutdowns? What are your goals for say the next two years?

    In the short term, our goal is to expand the public’s knowledge of internet shutdowns. SFLC.in is currently growing in size, and internetshutdowns.in will continue to march towards a world without any internet shutdowns. Educating people about internet shutdowns is an on-going effort. We will continue to research, publish relevant data and conduct public events on the topic in order to further spread information about internet shutdowns. We currently do not have any plans to launch a stand-alone app for our website but may consider it depending on the requirements in future.