The Ministry of Electronics and Information Technology (MEITY) recently told the Parliament in July that it had issued 1,122 orders to block Twitter content till June this year. In 2021, this figure stood at 2,851 — against 2,731 in 2020 and 1,041 in 2019 — showing a steady rise in content takedown orders against the micro-blogging platform. Now a Right to Information (RTI) request filed by this reporter reveals that since 2009, the committee mandated to review such takedown orders has not ordered unblocking in a single case.
Section 69A of the Information Technology (IT) Act, 2000 empowers MEITY to block information in any computer resource to protect several national interests like sovereignty, public order, and to prevent incitement of cognisable offence. While the IT Act 2000 empowers MEITY to order blocking of content, the rules made thereunder guide the process MEITY must follow in issuing such orders. The due process is detailed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (IT Rules 2009).
What is the review committee and what does the RTI reveal?
Rule 14 of this IT Rules 2009 states that the review committee shall meet "at least once in two months" and record its findings on whether the blocking directions issued by MEITY under these rules are in accordance with the provisions of the IT Act 2000. The rules empower the committee to "set aside the directions and issue order for unblocking of said information" if it is of the opinion that the blocking directions are not in accordance with Section 69A of IT Act 2000.
The committee consists of the cabinet secretary as the chairman and the secretary of legal affairs and the secretary of the Department of Telecommunications as its two members.
Replying to the RTI query that sought to know the total number of times the review committee disapproved a blocking order and ordered restoring of access, Dr Gaurav Gupta of the Cyber Law Division of MEITY said that "so far, MEITY did not receive any such communication wherein blocking order is revoked based on a disapproval from the Review Committee".
In other words, since the rules were made in 2009, the review committee has not passed a single order revoking a content takedown order. Experts say this is a cause of great concern.
What are the problems with India's censorship framework?
Raman Chima, the Asia policy director at Access Now, an organisation that advocates for digital civil rights of people internationally, said it was remarkable that not a single order had been overturned by this committee. Calling the censorship review system "systematically broken", Chima said, "A message is being sent across saying you block, we'll handle it." We sent a questionnaire to MEITY and will update this article if and when we receive a response.
Digital rights experts have maintained that the IT Rules 2009 and India's censorship framework provide little safeguard against the overuse of censorship laws. The RTI revealed that while the rules required the committee to review each blocking order passed by the MEITY, set aside orders if they seem irrational and even order unblocking of content, none of this was done in the past 13 years.
"I am not surprised", said Krishnesh Bapat, a lawyer working for the digital rights advocacy group Internet Freedom Foundation. "The IT Rules do not provide sufficient safeguards against the use of arbitrary powers by the state. The committee does not function properly. It is also impossible for the committee to review the humongous number of blocking orders issued by MEITY."
Between 2014 to March 2022, MEITY issued around 27,000 blocking orders across platforms, including Twitter, YouTube, and Facebook. Almost 10,000 of them were issued in 2020 alone. The review committee is required to meet at least once in two months. This makes it difficult for it to carefully scrutinise the hundreds, if not thousands of blocking orders before it.
The members of the committee also have different functions in their respective ministries and are not dedicated for this sole purpose, which further hinders any effective review of blocking orders.
Experts feel that another reason that makes the committee dysfunctional is that its members have no independence. "The cabinet secretary and the other two secretary-level officers will not want to overrule an order passed by a fellow secretary-level officer. This makes the committee dysfunctional," Bapat said.
Lack of transparency a major hurdle
A major hurdle in the entire censorship framework is the requirement for "strict confidentiality" under Rule 16 regarding all requests and complaints received and actions taken thereof.
Another RTI filed by this reporter with MEITY has revealed that neither the cabinet secretariat (the chair of the review committee) nor MEITY maintains any records relating to the review committee. As a result, detailed scrutiny of their work by digital rights advocacy groups like Access Now and IFF is severely hampered.
"In contravention to internationally accepted standards, India does not even inform the person that their account or content has been blocked. The copy of the order that details all the reasons why the blocking was necessary is kept confidential citing Rule 16. This does not make sense. How can you challenge an order if you do not have a copy of it in the first place?," Bapat asked.
Other major democracies—including the US and countries in Europe—do not give their federal governments such wide direct powers to issue executive orders to restrict or block web content.
When asked why the government insists on absolute secrecy in the entire process, Chima said that the government does not want the public to know who or what exactly they are blocking—a phenomenon known as the Streisand effect, where "an attempt to suppress something only brings more attention to it—and government could be left embarrassed. "The current censorship framework is systematically loaded to avoid any scrutiny or pushback," Chima said.
Recently, the Delhi High Court ordered MEITY to share a copy of one such blocking order to the owner of a satirical website that was banned in September 2018 by the Centre. Experts feel this sets a good precedent.
Chima believes that such an opaque procedure is unconstitutional. "It is a settled principle of law that rules (IT Rules 2009) made under a parent legislation (IT Act 2000) cannot overrule the parent legislation. Neither can the rules overrule parliament. Nowhere in the IT Act does it stipulate strict confidentiality. Also, the RTI Act overrides all legislations and mandates disclosure of record," Chima told BOOM.
Telecom and tech companies threatened with regulations
Big tech and telecom industries have made attempts to bring in transparency. As a policy, Twitter informs its users if it receives a legal request for content takedown. Chima said that the tech and telecom companies have flagged concerns about arbitrary blocking orders passed by MEITY.
He said, "Only the telecom and tech companies know what is going on in these review committees and whenever there is an attempt to push back, the government threatens them with regulatory action."
Over the past few years, confrontations between major tech companies and the central government have increased. Recently, Twitter announced that it is suing the Indian government for ordering certain content takedowns that it alleges is an "abuse of power".
The lack of transparency in the entire process and any attempts to infuse so are frowned upon, experts are concerned about the negative implication this has on India's already deteriorating freedom of speech.
What safeguards does India require for content blocking?
Bapat told BOOM that a separate committee mandated under the IT Rules 2009 to provide a fair hearing to an individual before ordering a takedown, is also dysfunctional. In the absence of a fair hearing, and the review committee only rubberstamping blocking orders, people have no recourse for an appeal.
Experts said the entire censorship framework needs an overhaul, where the focus needs to be on restricting the state's broad powers, and increasing checks and balances. Chima is of the view that the entire censorship process must come under the purview of a sitting judge. This, he feels, would ensure a certain extent of independence and perceived unbiasedness in the whole censorship proIndiacess.
The government must also reach out to the person whose content it proposes to a takedown, and provide them with a fair hearing. In case it decides to go ahead with the blocking, provide a copy of the order. This will allow them to appeal the decision if required—a basic requirement under the principles of natural justice.
Chima said that the government must also explore "less intrusive means" before ordering a takedown of one's content and that reviews of such orders must happen periodically.
(Saurav Das is an independent investigative journalist. He tweets @OfficialSauravD.)