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Amid last month's controversy of two girls in Mumbai getting arrested over a Facebook post, a news item concerning a Madras High Court ruling went unnoticed—a pity as it had equally devastating potential consequences.It also represents the ‘behind-the-scenes’ underlying malaise that connects the Facebook/Twitter arrests, the recent Google Transparency Report and the various copyright infringement cases leading to the several illegal episodes of banning websites over the past one year.
The Madras High Court observation in >question, was regarding the problem of copyright infringement in the domestic movie industry and the role that Internet Service Providers (ISPs) such as Airtel and BSNL play in the mess. A little history though first. A sadistic comedy of errors took place after the producers of the Tamil movie ‘3’ lodged a suit with the Madras High Court seeking relief, earlier this year.
The production company had filed for a ‘John Doe’ order (against unknown persons) to crack down on online piracy following the release of the movie ‘3’. The Court ordered the ISPs to come down heavily on infringing content. Despite clarification that only specific infringing URLs should be blocked –several legitimate video-sharing websites were fully banned on-and-off over the course of several months.
Coming back to Monday, the Court, in reply to an application filed by ISPs asking to not be held responsible for copyright infringing content on the Web, said: “Internet service providers have an obligation not to allow infringement to take place by using their services.” An extension of this also means that ISPs will be held liable for infringing content – a SOPA-esque move.
The statements of Justice K Chandru, the above quote is his, who also subsequently dismissed the ISPs’ application, reveal a misguided comprehension of the nature of technology and the Internet as well as a distortion of logic when it comes to law enforcement on the Web. Unfortunately, these shortcomings are not limited to the judiciary, but are indeed found in lawmakers as well. What they seem unable to understand that is that possession and production of copyright infringing material is a crime, everywhere. So is child pornography or any other illicit material that politicians claim the Internet needs scourging from. If a citizen has knowledge of infringing content or child pornography being produced or distributed somewhere, then they have a duty to report it to the police. When ISPs design communication infrastructure, this should be taken into account in the same way it is considered in other industries.
Should Hyundai or Maruti Suzuki or any other car-maker wonder what would happen if their vehicles were used to transport bootlegged DVDs? Are Nikon or Canon forced by court order to build detection and tracking of potential child-pornographic images into their hardware? Do we, as a society, record the names, dates and times when each person enters and leaves a room, just in case we learn that child-pornography was made in that room at a certain date or time? No, we do not.
The network, be it cars, airplanes or the Internet, does not need to take any specific measures based on type of traffic. It should be content-agnostic, acting as a common carrier for any data. If and when a crime occurs, our society should deal with it the same way one deals with any other crime at any other place or time.
Why then does the honourable Justice Chandru believe that Airtel or MTNL should be saddled with a pre-emptive policing role? It is no different than the Indian Government dragging Facebook and Google to the Supreme Court (last December), asking them to implement a pre-filtering system to prevent ‘hateful content’ from getting out. The macabre part of this, which would seem humorous if citizens did not have to suffer for it, is that the content-filtering system lawmakers and the judiciary are asking for is technologically impossible. To be able to accurately and automatically filter content, the software would be required to make human judgments. In other words the software would have to be a type of artificial intelligence which at present exists only in the realm of science-fiction.
Our government seems puzzled by this. “Why is this not possible, it would make things simple,” they think. You can see it in the growing number of requests for content removal in Google’s latest transparency report. You can see it in the arrests of people who spoke out on social media, arrests which were sanctioned by Section 66A of the IT Act.
It is seen when crackdown of copyright infringement through the due course of law is not enough for movie production houses, leading the High Courts to shut down websites despite safe-harbour provision clauses for intermediaries.
What then does this mean for the state of Internet governance in general? Our government wishes to push for a multi-stakeholder model. The Indian government and judiciary has proven to be a singularly inept in understanding the technology surrounding the Internet, no doubt influenced by mass-market movies where anything is possible with the push of a button or the click of a mouse. The real world is slightly different, with freedom of speech being the first victim.
