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Dr Sudhir Krishnaswamy is Professor of Law, West Bengal National University of ­Juridical Sciences

New internet guidelines go against democracy

The number of active Internet users has grown exponentially in the last five years and it is anticipated that India will house over 100 million Internet users by 2015.

hile the 2G scam and the hugely successful 3G auctions have kept the focus on the mobile telecommunications space, there has been a quiet but explosive transformation of the Internet in India. The number of active Internet users has grown exponentially in the last five years and it is anticipated that India will house over 100 million Internet users by 2015 — the third largest community in any country. While access to the Internet may still be less than 10% of the population Internet communication is poised to have a big impact on Indian public discourse as well as shape the development of the Internet worldwide. Live streaming of the recently concluded World Cup of Cricket was a significant live web event. The Anna Hazare led India Against Corruption campaign gathered strong support on Facebook and trended significantly on Twitter. While no Indian event has made it to Akamai's Top Ten world events list, this is likely to happen in due course.

The rapid growth of Internet users in India is accompanied by a shift in the demographic composition of users. Today there are more users of the Internet in towns with less than five lakh population than in the eight Metros. The overwhelming number of new users is young with college students being the largest discrete user group. Significantly, cybercafé and office use of the Internet is growing more rapidly than other modes of Internet access.

However, it is likely that access through mobile devices will dominate the Internet growth story this decade. It is against this backdrop of the Internet story in India that we need to assess the latest notifications by the Ministry of Information Technology under the Information Technology Act 2000.

On 11 April 2011 the Ministry of Information Technology published four notifications dealing with Electronic Service Delivery; Security and Privacy; Intermediaries and Cyber Cafes respectively. In this column I analyse the regulatory approach to intermediaries and the cyber café that are two significant gatekeepers of the Internet.

The proposed Intermediaries Guidelines move away significantly from the safe harbour models adopted in the primary legislation. These guidelines require that Intermediaries — which include ISPs and network service providers like Google or Facebook — to incorporate terms and conditions in their user agreement to prevent any offensive speech, intellectual property violations and any violation of a law in force. Further, the intermediary is expected to resolve any complaints within 36 hours with no requirement of a court order. Hence, the intermediary is transformed into an arbiter of the legality and appropriateness of the communication. The Guidelines specifically provide that an intermediary must assist all authorised government agencies to provide access to information or assist the investigation of any such agency.

Given the nature of regulatory pressure that the state can bring to bear on a business entity, the Intermediaries Guidelines can fundamentally reshape the nature of the Internet in India.

The new Cyber Café's regulations seek to enhance the existing regulatory framework in three ways. First, the definition of the "User" has been expanded to include not only the person who avails or accesses the computer resource but also other persons jointly participating in availing or accessing the computer resource. Anthropological studies of cyber café usage in India confirm that shared usage is common like the use of a community TV. The imposition of strict identity and registration requirements will hinder such communal use. Secondly, all users have to produce formal identity cards to be self-authenticated, be photographed and this log has to be maintained for a period of one year. Further, the Rules provide that the cyber café owner must maintain logs of all the websites visited by each user and the logs of proxy servers maintained at the Café for a period of one year. These regulations allow cyber café owner's to possess significant amounts of private information to the detriment of users. Thirdly, all cyber café's must not have partitions higher than four feet and screens should be oriented towards public spaces. The requirement that all café's install filtering software and prevent illegal downloads effectively outsources censorship and law enforcement to a private actor.

atekeepers of the Internet are the ciphers that select, organise and channelise communication. The intermediary and the cyber café are vital nodes in the access and flow of communications through the Internet that shape of the character of this medium of communication. The new guidelines on Internet regulation in India must be seen as a pre-emptive strike against the Internet's promise of a revolutionary communications medium. The mobilisation of strong public disapproval of these guidelines and the development of an appropriate regulatory framework consistent with our constitutional and political values of our democracy demand immediate attention.

Dr Sudhir Krishnaswamy is Professor of Law, WB National University of Juridical Sciences.

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