India And Tech Companies Clash Over Censorship, Privacy And 'Digital Colonialism'

June 10, 2021 / 9:21 am

MUMBAI AND SAN FRANCISCO — One night last month, police crowded into the lobby of Twitter's offices in India's capital New Delhi. They were from an elite squad that normally investigates terrorism and organized crime, and said they were trying to deliver a notice alerting Twitter to misinformation allegedly tweeted by opposition politicians.

But they arrived at 8 p.m. And Twitter's offices were closed anyway, under a coronavirus lockdown. It's unclear if they ever managed to deliver their notice. They released video of their raid afterward to Indian TV channels and footage shows them negotiating with security guards in the lobby.

The May 24 police raid — which Twitter later called an "intimidation tactic" — was one of the latest salvos in a confrontation between the Indian government and social media companies over what online content gets investigated or blocked, and who gets to decide.

While the Indian constitution includes the right to freedom of speech, it also bans expression or publication of anything that risks India's security, public order or "decency." But the government of Prime Minister Narendra Modi has introduced a long list of new IT rules going beyond this. They require social media platforms to warn users not to post anything that's defamatory, obscene, invasive of someone else's privacy, encouraging of gambling, harmful to a child or "patently false or misleading" — among other things.

If the government orders it, platforms are required to take down such material. The rules also require platforms to identify the original source of information that's shared online or, in the case of messaging apps, forwarded among users. Company executives can be held criminally liable if the platforms don't comply.

Many tech companies are aghast. They say these rules violate their users' freedom of expression and privacy, and amount to censorship. Free speech advocates warn that such rules are prone to politicization and could be used to target government critics.

But India — with nearly 1.4 billion people — is one of the tech companies' biggest markets. The country's hundreds of millions of internet users present a ripe business opportunity for companies such as Twitter and Facebook, especially since they're banned from operating in China.

And India's government — like others around the world — knows this, says Jason Pielemeier, policy and strategy director at the Global Network Initiative, a coalition of tech companies and other groups supporting free expression online.

"Over time, the governments have become more and more sophisticated in terms of their understanding of the pressure points that large internet companies have and are sensitive to," he says. "Those companies have also, to some extent, become more sensitive as they have increased the revenue that they generate in markets all around the world. And so where you see companies having large user bases and governments increasingly dissatisfied with those companies' responsiveness, we tend to see situations like the one that is currently flaring up in India."

Some companies, including Google, Facebook and LinkedIn, have reportedly complied, at least partially, with the new rules, which took effect May 25. Others are lobbying for changes. Twitter says it's "making every effort to comply" but has asked for an extension to do so. WhatsApp, owned by Facebook, has sued the Indian government.

"Intimidation tactics" by Indian police

The police raid last month on Twitter's offices in New Delhi came amid squabbles between India's two biggest political parties, accusing each other of spreading misinformation.

Politicians from Modi's Bharatiya Janata Party, or BJP, had been tweeting screenshots of what they claimed was a "media toolkit" used by their main rival, the Indian National Congress party, to amplify online complaints about Modi's handling of the COVID-19 crisis. Twitter's rules about platform manipulation prohibit users from "artificially amplifying" messages.

But the screenshot BJP politicians were tweeting of this alleged "toolkit" was fake. Some of India's most reputable fact-checkers concluded it was a forgery. After its own investigation, Twitter slapped a "manipulated media" label on those tweets by BJP politicians.

The government then asked Twitter to remove that label. Twitter did not. Police raided its offices three days later.

"We, alongside many in civil society in India and around the world, have concerns with regards to the use of intimidation tactics by the police in response to enforcement of our global Terms of Service, as well as with core elements of the new IT Rules," a Twitter spokesperson wrote in a statement emailed May 27 to NPR and other news organizations.

To many observers, it looked like the Indian government was trying to drag Twitter publicly into a dispute between rival political parties, by sending the police to serve Twitter executives with a notice that could have been sent electronically — especially during the pandemic.

"Serving a notice of that kind, in the form that played out, just confirms the idea that this is just theater," said Mishi Choudhary, a technology lawyer and founder of India's Software Freedom Law Center.

Choudhary says the optics are troubling. It looks like the Indian government has rewritten the country's IT rules to endow itself with extraordinary powers to silence its critics online. In February, on orders from the Indian government, Twitter blocked more than 500 accounts — but then reversed course when it realized many belonged to journalists, opposition politicians and activists.

More recently, the Indian government demanded that social media companies remove news articles or posts referring to the B.1.617 coronavirus variant as the "Indian variant." (The WHO has since renamed this variant, which was first identified in India, as "Delta").

"The government has been trying to either block handles or curb dissent," Choudhary says. "Both the government and [social media] companies are claiming they're protecting users, when it's convenient for them, but users are really the ones left without much power."

A "double standard" for India?

Modi's government published its new IT rules on Feb. 25 and gave social media companies three months to comply. So the rules took effect May 25. Twitter is asking for another three-month extension.

"We will strive to comply with applicable law in India. But, just as we do around the world, we will continue to be strictly guided by principles of transparency, a commitment to empowering every voice on the service, and protecting freedom of expression and privacy under the rule of law," a Twitter spokesperson said in the May 27 statement.

One of the requirements Twitter finds most onerous is that it name an India-based chief compliance officer who would be criminally liable for content on the platform. The company says it's worried about its employees in that situation.

Indian government officials say Twitter has already had three months to comply with this and the rest of the requirements.

"You are a giant, earning billions of dollars globally! You can't find a technological solution?" India's IT minister, Ravi Shankar Prasad, recently said on India's CNN-News18 channel.

Prasad acknowledged that India's social media rules might be more onerous than what tech companies are used to in the United States. But India is a place where mob violence has erupted over rumors shared on social media. The government needs to take extra precautions, he said. And big tech companies could comply with these rules, he insisted, if they really wanted to.

"The same Twitter and social media companies are complying with all the requirements in America! In Australia! In Canada! In England!" Prasad said. "But when it comes to India, they have a double standard."

Tech executives have been grilled about misinformation by members of the U.S. Congress. But when India summons them, they often don't show up. Choudhary says this has fueled anger among Indian politicians, who fume that they're not taken seriously.

"The companies say, 'Our servers are in California. So we don't have this information.' Or, 'We can't come and talk to you,'" she says. "That gives the government justification to say, 'How can you monetize our users, but when we want to have a discussion with you, you claim you're only a sales office?'"

India has reason to be sensitive to the threat of being taken advantage of by foreign powers. It has a colonial past. Even before Great Britain ruled India, a foreign corporation, the East India Company, pillaged it for centuries.

Choudhary calls what big tech companies are doing in India "digital colonialism."

"It's now the Silicon Valley 'bros' who think they can tell us what to do and what not to do," Choudhary says.

In a particularly harshly worded statement issued May 27, the Indian government called Twitter a "private, for-profit, foreign entity" that needs to "stop beating around the bush and comply with the laws of the land." It accused Twitter of "seek[ing] to undermine India's legal system" and blamed the company for what it called "rampant proliferation of fake and harmful content against India."

Growing demands to restrict online speech

Last weekend, the Indian government appeared to reject Twitter's request for an extension. It sent the company what it called "one final notice" as a "gesture of goodwill," urging the tech giant to comply with the new social media rules. The government warned of "unintended consequences" if Twitter refuses to comply.

Nigeria's government recently banned Twitter after the company took down a tweet from President Muhammadu Buhari that appeared to threaten separatists. There are fears that India could do the same.

For Twitter, that would be a blow not just to its business interests, but to its avowed commitment to fostering public conversation.

"As much as these kinds of centralized corporate platforms can be frustrating in a number of ways, they are, when it comes down to it, the place where the majority of the world interacts," says Jillian York, director for international freedom of expression at the Electronic Frontier Foundation.

"Years ago, I would have said that companies should stand up to authoritarian governments to tell them, 'Hey, block us if you want to, but we're not going to comply with these restrictions,'" she says. "But as time has gone on, that's become less and less of a viable option. ... For some people, these are really vital channels for accessing a global audience, for reaching people outside of their normal space, especially during the pandemic."

In India, for example, people took to Twitter to source medical supplies and raise money during a devastating COVID-19 resurgence.

On Monday, a Twitter spokesperson told NPR that the company remains "deeply committed to India," has been "making every effort to comply" with the new IT rules and has been sharing its progress with the Indian government.

The same day, Twitter also disclosed to a Harvard University database that it had restricted access within India to four accounts — including those of a hip-hop artist and a singer/songwriter — that had criticized the Modi government online. To comply with Indian law, Twitter sometimes blocks content in India but allows it to remain visible outside the country.

Twitter and other companies face pressure from other governments too. Around the world, free speech advocates say, there are increasing demands to restrict certain types of speech and for governments to play a greater role in regulating online platforms.

Germany, for example, has a law requiring social media platforms to act quickly to take down illegal speech or face financial penalties.

In the U.S., Democrats are pushing companies to curb misinformation, while Republicans have turned their own complaints about social media censorship into laws like one passed in Florida last month that bars platforms from banning politicians.

A new form of mass surveillance?

Another part of the showdown between India's government and tech companies hinges on privacy.

The government wants to be able to trace misinformation that's shared online. So as part of its new IT rules, it's asking social media companies to be able to identify the "first originator" of any piece of information. It says it will ask for that information only in rare cases where a potential crime is suspected to have been committed.

WhatsApp filed a lawsuit over this last month in the Delhi High Court. The company says it's unable to provide "first originator" information unless it traces every message on its platform — which would amount to what it called "a new form of mass surveillance."

"To comply, messaging services would have to keep giant databases of every message you send or add a permanent identity stamp — like a fingerprint — to private messages with friends, family, colleagues, doctors, and businesses," WhatsApp wrote in an FAQ about traceability on its website. "Companies would be collecting more information about their users at a time when people want companies to have less information about them."

Experts say messaging apps like WhatsApp and Signal would likely have to break their end-to-end encryption — which ensures only the sender and recipient, not the company or anyone else, can read a message — to comply with Indian law. Namrata Maheshwari, an India-based lawyer and policy consultant for the Center for Democracy and Technology, predicts that will have a "chilling effect" on free speech.

"This is problematic for users' right to privacy, because the core promise of end-to-end encryption is that users can communicate safely and securely without any unauthorized access by any third party, including the service provider," she says.

Maheshwari says the WhatsApp lawsuit is one of many filed in various high courts across India challenging India's new IT rules. They bring a key third party — judges — into the ongoing standoff between the Indian government and social media companies. The lawsuits will be decided over several months, or even years.

"As far as the question of who the stronger entity here is, I actually think it's now the Indian courts," she says. "The battleground has moved."