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Law in the Internet Society
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Fighting Internet Shutdowns-- By NiveditaMukhija - 11 Oct 2019Government DoublespeakOn August 5, the Indian Government announced the revocation of Article 370 of the Indian Constitution, which grants a semi-autonomous status to the state of Kashmir. Soon after, all Internet and telephone services were suspended indefinitely in the state. This is not the first time Kashmir has faced an Internet blackout. In 2019 alone, there were 55 instances of complete or partial blackouts in the region. But this has been the longest blockade: even as of writing of this essay, Internet services in the region have only been partially restored. Kashmir is not an isolated case anymore – authoritarian governments are increasingly restricting complete or partial access to the Internet. The official reasons given by governments in these cases are coated in the familiar language of ‘national security’, ‘law and order’ and ‘preventing misinformation’. However, recent research has shown that not only are such blackouts ineffective in maintaining law and order, but they may even contribute to an increase in chaos, misinformation, and violence. The real rationale of such governments seems to be to silence the voices of the people, to suppress dissent and to quell protests. Communication blackouts enable governments to have control over the narrative and over the flow of information, and to make sure that there are no records of state activities they may want to cover up.What are our Options?Under international human rights law, restrictions on free speech must pass the three-prong test of legality, necessity and proportionality. Given that such restrictions are often taken as ‘precautionary measures’, such prior restraint also requires the government to clearly show that there is an imminent danger of public disorder. Often, overbroad and outdated legislations relied upon to shut down the internet do not pass these criteria: a case in point is the Indian Telegraph Act, 1885, drafted by an imperial government to quell any signs of a dissent, and passed in an era when technology did not have the bearing it does on life today. Such laws enable governments to rely on vague concepts of ‘national security’ and ‘public order’ to justify their actions, and frequently lack a sunset clause, adequate safeguards, and mechanisms to ensure transparency. Thus, while these shutdowns may be procedurally legal, the underlying legislations, with their arbitrary and unjust mechanisms, do not meet the test for substantive due process. It is natural to look to the judiciary to uphold constitutional and human rights in the face of such measures. However, when faced with such a challenge, the Indian Supreme Court's response was limited. On the one hand, it recognized that the right to freedom of speech and expression and the right to carry on trade or business, using the medium of Internet, is constitutionally protected. It also asked the government to publish the Internet shutdown orders and review them to ensure they are reasonable, proportional, and not for an indefinite period of time. On the other hand, the judgment fell short of calling the long siege illegal, and did not provide much relief to the people of Kashmir. In response, the government merely issued a new shutdown order allowing 2G access to a limited number of government-approved websites, predictably excluding all social media. In an autocratic regime where the judiciary sides with the authorities, how can Internet shutdowns be fought then? It could be argued that international pressure can be used to pressurize the government to roll back such shutdowns, but major players in world politics have not pressed down on the issue, perhaps as a reflection of the increasingly illiberal political climate across the world.Speak Up While You CanIt appears that the only recourse citizens have in such a situation to safeguard their rights is to organize themselves, protest, and resist the shutdowns. The perception that the Internet is a first-world right is still entrenched in developing countries, and the governments there have taken advantage of that perception. However, the reality is that in a country like India, consisting of 560 million Internet users, such shutdowns bring life to a grinding halt. Until the telephone lines were restored, residents of Kashmir had no means to communicate with their family or friends outside the heavily militarized state, and no one could reach them for help. The healthcare services were severely disrupted as patient data and medication details are often stored online. All work and education was suspended, with the state in a terrifying, silent limbo. A recent report puts the economic cost of Internet shutdowns in India at 1.3 billion dollars last year. Communication blackouts thus become a kind of ‘infrastructural war’, a form of modern political violence directed against civilians. In 2017, when the government of Cameroon shut the Internet to stifle protests over discrimination faced by Anglophones, a massive grassroots campaign, #bringbacktheinternet was launched by Internet activists, and soon spread across the country and beyond. Faced with increasing pressure, the government was forced to restore the Internet after three months. Of course, not all protests are successful – large-scale protests across India over the enactment of the controversial Citizenship Amendment Act have not yielded any meaningful engagement or action from the government. And the government of Cameroon has imposed more Internet shutdowns since then. However, there is inherent value to protesting, even if it is unsuccessful in the short-run. Protesting signals to the government that people’s rights cannot be violated. It is required to co-opt more people in the society, bring awareness of the value of Internet to people’s lives, and put this issue on the global map. It is required to speak up for those who cannot due to the shutdowns, before our own ability to speak up is blocked. Protesting for any right strengthens the democratic process, but in the case of the Internet, the stakes are higher: by protesting for the right to access Internet, citizens are protesting not only for all the rights dependent upon it, directly or indirectly, but also for a crucial medium of protest itself.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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