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India’s Cyberspace Maybe Far Behind the Golden Age. Here’s Why

For ‘amrit kaal’ to materialise in the Indian cyberspace, a comprehensive legal remedy must be Govt's top priority

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The celebrations of the 75th anniversary of Indian Independence also dubbed as ‘Azadi Ka Amrit Mahotsav’ which roughly translates to the “elixir of energy of independence,” were ushered in across the nation in a series of spectacular events and festivities preceding 15 August 2022.

According to Prime Minister Narendra Modi, India’s ‘Amrit Kaal’ over the next 25 years will emerge as a “golden era” embarking on a renaissance period, one that will serve as an “elixir of new ideas and pledges” towards the “awakening of the nation."

Amidst the dizzying celebrations, a dispassionate audit of the status of India’s Cyber Ecosystem appears to have slipped through the cracks. The cybersecurity realm, often touted to offer a unique dimension and identity was previously non-existent during the milestone celebrations of our 25th and 50th years of independence. The question, therefore, is – Where is this ‘Amrit Kaal’ in India’s cyberspace?
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Lofty proclamation about India’s repute as a global leader in the sphere aside, how has the nation fared in the cyber realm in terms of a fair, free and open cyberspace for all Indians still remains largely unaddressed.

As far as the leadership status goes, Indians suffer more internet blackouts than citizens of any other nation. Moreover, India is also among the handful of democracies in the world without a robust legislation in place that protects the online privacy of its citizens. The picture appears grim as far as privacy, freedom of speech and expression and an open internet are concerned. Here we discuss five critical issues that severely plague the digital landscape of India.

Data Privacy Is a Fundamental Right

On 3 August, Union Minister for Communications & Information Technology, Ashwini Vaiashnaw withdrew the Data Protection Bill, 2021 from Lok Sabha. A process that began way back in 2017 – to legislate a comprehensive data privacy law that protects the personal information of Indian citizens online.

Five years into this long-drawn process of coming up with a controversial bill that was heavily criticized, the Union government decided to finally roll it back while Indian citizens continue to suffer the lack of a legal remedy against the violations of their digital rights.

This even assumes a greater seriousness given a historic nine-judge Constitutional Bench of the Supreme Court had reaffirmed the fundamental right to privacy in the matter of Justice KS Puttaswamy v Union of India.

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Data Protection in Its Nascent Stage

The Internet Freedom Foundation(IFF), an online platform working towards data privacy rights in its blog states, “While the 2021 version was certainly not perfect, we are concerned that this withdrawal has now brought us closer to where we started in 2018 instead of where we should be in 2022.”

Hence, for an ‘Amrit Kaal’ to materialize in the cyberspace, enactment of a comprehensive legal framework through a transparent and consultative process must be a top priority for the Union government.

Rising Cybercrimes Reported Country-Wide

The National Crime Records Bureau’s (NCRB) latest report published on 1 September 2022 illustrates a worrying picture of cybercrimes, especially against women and minorities.

The report further states that the state of Telangana recorded the highest number of cyber crimes in India in 2021 with 10,303 cases–marking a 105 percent increase between the years 2020 and 2021.

While Uttar Pradesh and Karnataka came on the heels with 8,829 and 8,136 cyber crime cases registered respectively, Maharashtra and Assam followed suit. The national capital of Delhi saw a hike of 111 percent in cyber crime than in the previous year.
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Cyberspace Continues To Remain Unsafe

Despite the police departments across the country setting up dedicated divisions to combat cybercrime, the number of cases has shot up drastically. The data revealed that the majority of these incidents involved internet fraud,phishing, ransomware attacks, online harassment, and the publication of sexual content. Cyber crimes against women include blackmailing or threatening, pornography, publishing obscene sexual materials, cyber bullying, defamation or morphing, and indecent representation of women among others.

In the absence of adequate legal provisions or trained law enforcement personnel to swiftly deal with complaints that keep pace with the rapidly evolving nature of cyber crimes, citizens have little recourse as victims of the abovementioned crimes.

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Pegasus Heralds An Age of Surveillance

The now-withdrawn Data Protection Bill had also incurred severe criticism for the absence of any surveillance reforms within its framework.The issue of online surveillance on citizens and the lack of legal protection remains among the most severe challenges for India’s cyberspace.

‘The Pegasus Project’ – an investigation by a global media consortium including the Indian outfit, The Wire published on 18 July 2021 revealed that the Israeli spyware firm NSO group targeted over 300 verified Indian mobile telephone numbers including those used by ministers, opposition leaders, journalists, activists, lawyers and others through their spyware– Pegasus. The NSO group, in all its official communications, has maintained that it only sells its spyware to governments and law enforcement agencies.

Protests erupted, parliament sessions were disrupted and the matter reached the Supreme Court. A Committee of Experts appointed by the apex court submitted its report on 25 August, in a sealed envelope to the bench.

The then Chief Justice of India, NV Ramana read some parts of the Report, and revealed that it states that malware was found in 5 out of 29 phones, but that the Report couldn’t confirm if the said malware was Pegasus.

The IFF which provided legal assistance to a number of journalists in challenging the use of Pegasus in their phones, states in its blog, that despite this shocking revelation, the Report will be kept in the sealed envelope also adding that this his was a matter where transparency is of utmost importance, but the recent trend of submitting documents in sealed envelopes was undermining transparency efforts, including in this case, which weren’t even made available to the Government of India.

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Freedom of Speech Under Threat

Alongside privacy, freedom of speech forms a vital pillar for a truly open and vibrant cyberspace. However, regular incidents of censorship, website blockings, prosecution of citizens via struck down laws continue to stymie the digital realm.

The Supreme Court had struck down Section 66A of the Information Technology (IT)Act, 2000 holding it unconstitutional in March 2015 and violative of Article 19(1)(a) that advocates the right to freedom of speech and expression.

Section 66A penalized sending "offensive messages" via online communication.This provision was often abused to target political dissidents or citizens posting comments on social media platforms deemed critical of some political leader or party.

Years after the Supreme Court judgment, law enforcement agencies across India continue to prosecute people under 66A and courts have continued to admit cases under the obsolete section. In a shocking revelation, Zombie Tracker - a platform built by IFF in collaboration with Civic Data Labs - demonstrates that in fact, more cases were registered under Section 66A after the SC judgment than ever before.

It was only after a petition by the People’s Union for Civil Liberties (PUCL) before the Supreme Court, SC directed the counsel for the Union of India on 5 September to write to States where Section 66A cases are pending, on behalf of the Supreme Court of India, and impress upon them the need to take remedial measures.

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Facial Recognition: A Bane Over Boon

A grave concern that flies under the radar as far as media attention or political activism is concerned is the mushrooming of Facial Recognition Technology (FRT). Its proliferation has occurred in a variety of areas, from catching criminals to taking attendance to scanning passengers at airports.

Why is this a major cause for worry? For four primary reasons.

First, this is happening without any underlying legal framework. FRTs operate in a legal vacuum in the absence of a data protection law or FRT specific regulations.

Second, the technology suffers from accuracy and reliability issues. The harms of misidentifying (false positive) and failure to identify (false negative) have led several technology giants like Amazon and IBM to suspend their FRT products.

Third, issues of bias and discrimination have been observed globally where people of colour, minorities and women have been misidentified disproportionately. This can have a chilling effect on freedom of speech and lead to profiling of citizens.

Fourth, FRT systems compromise privacy. A detailed research paper by policy expert Smriti Parsheera states, “One of the most worrying use cases from a privacy perspective is the pervasive use of CCTV cameras along with FRTs, which can allow for almost real-time tracking of a person, or at least create the perception of such tracking, which is sufficiently harmful in itself.”

Data collected by the Panoptic Tracker, a platform run by the IFF, shows a staggering 125 FRT systems installed across India at a cost of over Rs 1.46 thousand crore.

One of the themes of 'Azadi ka Amrit Mahotsav' is ‘Resolve @75’ which states that “the journey to 2047 requires each one of us to rise up and play our part as individuals, groups, civil society, institutions of governance etc.” This message should apply as much to India’s cyberspace as it does to the physical land where the government plays its part to ensure it is a fair and equitable space for all.

“Only through our collective resolve, well laid out action plans and determined efforts will ideas translate into actions,” the theme adds. The Centre would do well to heed its own resolve as India takes its first step into a new era.

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(Sushovan Sircar is an independent journalist. He tweets @Maha_Shoonya. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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