Kunal: Mr. Apar Gupta is the Executive Head of the Internet Freedom Foundation, an Indian digital liberty organisation which seeks to ensure that technology respects the ethos of fundamental rights. He has completed his post-graduation from the Columbia University, School of Law and has been working extensively on public interest issues like strategic litigation and the organisational campaigns and collectives. As a lawyer, he majorly looks after digital rights cases on privacy and censorship, constitutional challenges to Section 66A of the IT Act, the right to privacy, and Aadhar, and representing public interest litigants. Beyond the court of law, he has worked extensively with activists and set up digital campaigns on net neutrality, against defamation laws and safeguarding privacy. He has also authored a book on the IT Act, 2000. He remains committed to advancing the values of the Constitution of India in a digitally mediated society. Thank you for being here, Mr. Gupta. We are so very happy to have you here with us.
Apar: It is my pleasure and I look forward to this interview, engaging with people who are not the gen-z but digital natives, given the term and chronology of the work that I deal with. And secondly, I would like to emphasise that young organisations which are involved in social work are huge beneficiaries of fundamental rights and technology. So, I am looking forward to this conversation with you.
Kunal: Thank you so much. I shall start the interview with the first question being extremely general in nature and a little personal as well. What does internet freedom mean to you?
Apar: I will tell you about my personal journey. I come from a very privileged background wherein I had access towards digital technologies. As a child one of the first things which your parents give you is either a toy or educational material and I often got them through purposes of technology. For instance, I had Atari Control which had the physical black joys fitted with a red button to play ping pong and subsequently I have played all the roleplaying games which were there on computers. I have seen broadband access which was established earlier through shared accounts, telephone lines and the modem speeds to increase. And today you have this magic which you call Wi-Fi. Edward Snowden has also put such experience in his book. Incidentally, he and I share the same year of birth-1984.
Essentially all these waves of technology allowed me to develop my personality, exploring a world in which I knew that there are certain things I like, certain things I would flourish in, a space of joy, a space of exploration of my personality. And this is what internet freedom means to me as a person, which I think needs to be there for a lot of others in India who today don’t have access to the internet. And when they do get access to the internet, they should get it in a manner in which their fundamental rights are secured. They are safe and secure in those environments in which they can explore through exercises of free speech and expression and yet at that same point they don’t feel trapped within the ecology of digital systems, social media platforms, and doom scrolling.
Kunal: Right, I think that is a very interesting way to put it and it often comes from our own experiences. Because you mentioned that you have seen technology evolve over the years, therefore you know. I don’t know if I know that much about the time before technology because I grew up with it. I was born in ‘95, so by the time I reached class 9th-class 10th, laptops and internet, data and Wi-Fi were not a very big thing but it was coming up. I still remember we used to have those broadbands to have the internet. But I think the quantum of accessibility to the internet in the last couple of years has increased quite massively. I still remember the time when a 3MB internet used to be there for an entire month and now, if we have it on our devices, 1GB is there for a day. I think the more we are getting exposed to it, the more important it is for us to secure the space as well. Don’t you agree with it?
Apar: I completely agree. Your anecdotal inference about access expanding in the last few years is supported by data which is published every quarter by the Telecom Regulatory Authority of India which notes a substantial increase from 300M to close to 700M active internet connections in India. That is a spectacular growth and it has taken place at a price point which is very competitive, which is allowing more and more people to connect. In fact, governments across political differentiations and across political spectrum support internet access as a right. However, there are core challenges to it. Firstly, there are still a large number of people who remain unconnected. For instance, our own organisation worked on bringing internet access to close to four lakh people in Andaman & Nicobar Islands; quite often who were having very slow speeds and very high costs of internet. Beyond this we need to recognise that a large part of India remains unconnected because of the underlying digital infrastructure, the network infrastructure. Most people access the internet through smartphones, again according to data published by the Department of Telecom and the TRAI. So, the cost of the smartphone today is equivalent to an average Indian’s six months’ pay, even for the low end smartphones and feature phones. Therefore, we need to make accessibility universal. That is the first thing.
The second thing is, when the access does come along. It needs to come along in a mode and manner that the internet is secured and cannot be switched off and taken away or code oceans of it because itis a public space and shouldn’t be guarded or walled off to us for access. So, our organisation also works on reforms on issues such as internet shutdowns, website blocking and ensure that the environment is safe and secure because there are so many young Indians who are using it to explore their political values. And how do you learn political values except through debates, discussions, even though essentially criticising others in an extremely strong language? I think that is a part of our journey as individuals growing up in a diverse society such as India. I hope we can achieve the goal of 100% coverage and it overcomes the barriers of social inequality. Itis great that the government has also started mapping it on lines of discriminatory access right now, as it is present along the lines of gender, caste as well as other socio-economic factors. So, not caste or socio-economic but at least on lines of gender it has started counting, but we need to universalise it. That is my primary and first message. And the second is when access comes along, it needs to come along to what? Right? Water is great and needs to be given to everyone but it should mean to the fitness of that quality of water that it is consumable by people who are living in affluent neighbourhoods, metropolitan cities, same as those who are living in villages and other residential spaces which may not be that affluent. Hence, we need to universalise internet access and make sure its quality also retains that public character.
Kunal: Right. As you just mentioned the work that your organisation is doing, I just wanted to ask how has the journey been like so far for you running Internet Freedom Foundation, what have been the challenges and how have you overcome them so far?
Apar: So, Kunal I was talking to you before this call and you were saying how your own non-profit came about. I would like to disclaim my own contribution here because I am only a placeholder here for the efforts which are led by a wider team. And that wider team was the “Save the Internet” movement. If you remember, there was a video put out on network neutrality, I was a part of that movement. I was a lawyer alongside Ramanjeet Singh Chima and amba Kak who designed how people should correspond with the TRAI to ensure that your internet service provider cannot charge you in a discriminatory manner for the websites that you access. ISPs like Airtel and Vodafone at that point of time were arguing that they should be able to go beyond your monthly bills and charge you more if you stream videos from YouTube, for instance or if you do video calls over Zoom. And they were saying that is because if you use these kinds of services, our servers get stressed and itis more and more beneficial to these large companies rather than us, we need to charge the consumer more. But by itself it would result in shaping of internet behaviour where people would stop using and utilising certain services, innovation would go down, and by itself it would become a very restricted space. Network neutrality is a global principle and by working with other activists, stand-up comedians, technologists who set up the platforms, we could send the petitions to TRAI, and that is how the “Save the Internet” movement was built. There were several people and co-founders who were part of it and the IFF was registered as a body to take that movement forward. Any movement which arises at a particular point in time where there is high amount of public awareness, one may notice that the public awareness around the issue shifts to another issue, given that we as a society face so many broad challenges. But the people who are committed and who lead that movement, it becomes incumbent upon them as a responsibility to take forward the trust, the faith, and the support entrusted in them by the public which supported them initially as an organisation. IFF is actually a product and was birthed through the “Save the Internet” movement, and over the past few years we have grown our mandate beyond network neutrality to core principles of the Indian Constitution. If you look at the Preamble to the Constitution, it talks about four primary values which are liberty, equality, fraternity, and social justice. And technology today ties in with all four of them. So, our work has now expanded towards it, more tangibly if you go to our website at internetfreedom.in on free expression, privacy and data protection, innovation, and net neutrality remains an issue which we continue working on. We are also getting into new areas, which are election interference, artificial intelligence, digital identity, disinformation, facial recognition, because technology is growing and it is impacting all of our fundamental rights. So, the IFF is today an advocacy-oriented organisation which does civic literacy on these issues as these issues are new and technical. Additionally, it takes all that awareness which is generated towards a responsible engagement with institutional stakeholders.
This journey has been beneficial, we changed a movement to an organisation, and today as an organisation in a governance structure we have the co-founders of the movement as the trustees and we have a staff size and contractors which number close to 12. We strategically litigate before courts. We reach out and provide support to parliamentarians as well as members of state assemblies to participate in public consultation processes. We always make sure our work is transparent, accountable in the public domain and make active outreach to bridge the divide between public policy and the public.
Kunal: I think it sounds very, very interesting and this is surely the work that has been going on. I first came to know about, as you mentioned, net neutrality through the video because it spends by the length so many conversations, and at that time even I wasn’t fully aware about what this issue is. It was a very new area for me but slowly and steadily I started reading about it, I became more and more aware about it. And as you mentioned, there has been a lot more awareness about the issue than there was a couple of years back. So, I think young people now are also becoming aware about their digital rights. As you very rightly mentioned, our social rights are very much connected to our digital rights as well.
Moving to the third question. What do you think is the consequence of the current state of laws and policies for the governance of digital space?
Apar: One basic principle we often come towards this conversation is, technology is marching ahead and laws are catching up to them but the thing is sometimes laws by themselves are catching up because we haven’t created institution, not for our future, but for our present. What I mean by institutions are regulatory bodies, which can look at them adequately. For example, in India we still don’t have a data protection authority. Data as we know intersects with each element of our life. So, that is a conversation which is ongoing right now in the Parliament within a joint parliamentary committee. Once we get that kind of legislation and the framework in place, we can hopefully have a data protection authority or a privacy commission which can be an institutional body to prescribe regulations, create incentives, do user-literacy across India with millions of Indians who are getting connected every day, and will just ensure good norm-keeping. Just think about it like industrialisation, because we think of internet as the great disruptor of our lives, providing opportunities, but also challenging our ways of work, and being as a social change which is taking place so dramatically every day in each part of our life, be it professional or personal and that is the way to visualise it, think about it. These laws need to be centered within our constitutional values and need to forward a democratic vision in which each individual is the repository of power and has a degree of fundamental rights and yet at the same point, it fits with the largest rooms. So, we need to make these laws, we need to re-evaluate our laws also. For instance, in free speech and expression, given that there are so many people who have come online, and the internet is fundamentally a democratic technology with two-way communication in which for the first time so many people can broadcast to a very large number of Indians with a smartphone. Otherwise, earlier you needed to print pamphlets for instance, right? And you needed to distribute them, a very high cost in terms of logistics, right?
Kunal: Right!
Apar: Now just take your magazine itself. You are distributing it digitally. Now where it will go? Your costs are lower for distribution. You don’t need to send it by courier post. And just the thing- when you start becoming speakers on the internet, as active citizens, who are taking part in this democratic discourse, should some of our speech provisions, which restrict speech and are vague- should they stand? Don’t they pose a risk to every ordinary Indian? And is criminality and criminal penalties the right way to only think about it? This is not to think that people should be permitted to abuse, should be able to do ten-twenty thousand things they do on a daily basis which may be socially undesirable or may even be illegal, right? Like threats of violence, especially abuse which is directed towards women, and minorities. But at the same point of time, we need a rational realisation in our laws on certain very clear offences where democratic countries across the world have passed them, such as criminal defamation and sedition. So, I would say our laws first need to be created for better regulation along first principles, it gives a level of predictability to users as well as producers who are Indians, we do both, right? And secondly, the number of criminal penalties and impact on free expression need to be also better considered considering all of us today our speakers and we are brought as casters, and we are participating in the larger democratic sphere.
Kunal: Absolutely. It is a very interesting way to put it because recently I was just reading the number of cases of criminal defamation that are going up on the internet and somewhere we need to actually, you know, I understand that there is a definition laid by the law on defamation. But there is a civil case for defamation and a criminal case for defamation. And as a lawyer myself, I haven’t been able to completely comprehend why the same crime is being processed on two different grounds, and most importantly, what is the need for it. I think that as an ordinary citizen, what often I see and comprehend is the use of these laws in curbing free speech, and putting the defamation cases.
Apar: As a practicing lawyer, I have defended several journalists and platforms on this. I was actually the lawyer for Eshwar Perry who exposed IIPM. I took those learnings and I was also the lawyer for the Foundation of Media Professionals and we constitutionally challenged Section 499 of the IPC which resulted in a judgment called Subramanian Swamy v. Union of India. But let us just take a step back. On the basis of this experience, I would also like to tell you about the work the IFF has done to follow up on it. Firstly, defamation is an injury to somebody’s reputation and injuries to somebody’s reputation have been historically viewed in the context of somebody coming from a very high status and position in the society, not people like you and me, being basically knighted lords, or ladies of virtue. And essentially what was happening in Victorian England was this entire practice of duels where if anybody’s name was besmirched by private letters which became public or rumours spread, they could challenge the other person to a duel by pistol or a sword. Thereby the underlying presumption was that the church and the lord would be overlooking the more virtuous one and the person who would prevail in that battle, who would not die. Would essentially either repair their honour, or the statement that they made which was alleged by the complainant to be defamatory as a ground of inviting the other to fight on that word would essentially be proven true, so it would not be defamation. It was resulting in a huge loss of life for the landed gentry and the elite in Victorian England, which is why the criminal offence of defamation was made, because it needed to have a level of a very strong criminal sanction attached to it. Clearly, we are not in medieval England anymore, right? So, what is the underlying basis of the law lacks justification? However, at the same point in time, you have the civil law of defamation.
Criminal leads to punishment which is imprisonment. Civil leads to monetary fines and injunctions. Injunctions can be a very technical form of saying that you won’t say that again, you’ll publish an apology, you’ll issue a retraction. And the monetary fine can be essentially used to repair your reputation but can’t be punitive. For instance, you can’t essentially ask for a hundred crores etc. to repair your reputation because the person just won’t be able to pay it. You are not creating a debt-rid man, you are creating a very, very strong penalty, again, and usually people do make mistakes. They shouldn’t essentially be declared insolvent for saying something defamatory. There needs to be proportionality to what they have said in terms of punishment. All these problems, how do we fix them? We essentially launched a campaign called “The Speech Bill”, with the office of Tathagat Satpathy who was a Member of Parliament, and he filed a bill called the “Protection of Speech and Reputation Bill”. It is also essential to understand that people’s reputations are important. If someone spreads a rumour about you and you are at a very stage in your life and you have done considerable amount of work, it can impact you negatively. However, simultaneously, there ought to be certain principles which are codified in law. Criminal defamation needs to be repealed, civil defamation needs to be reformed, and the only way this can be done is through an act of Parliament and I have worked on it. We drafted this bill, it was submitted as a private members’ bill, and private members’ bills are never passed in Parliament. They are expressions, quite often you can just visualise in thought when the country gets ready for this conversation. But as more and more people get connected, we are in fact reaching this stage when people will be ready for this conversation. So, we believe that content laws fundamentally interact with the internet, with more publications and more people coming online. And due to these reasons, we supported the speech bill effort, and we believe that this private member’s bill will not pass from Parliament to law any time in the foreseeable future as the bill has also lapsed with the new session of Parliament. Despite these odds, we hope that it sparks a longer public policy conversation and will keep a working one there consistently. Thank you so much, Kunal for opening up this conversation around defamation. And I welcome more people to explore the resources we put around on internetfreedom.in around the “Speech Bill” campaign and also look at the campaign which still has a Twitter handle which was curated by a lot of people and demonstrated that defamation is much more characterised by its abuse rather than serving the needs of the people whose reputations are genuinely injured. We need this kind of legal reform.
Kunal: Do you think that the current developments like the DNA Bill, face recognition etc. technology are challenging the nature of technology and data mining in India?
Apar: Privacy has been articulated by the Supreme Court in the Puttaswamy judgment which essentially links to all our fundamental rights and privacy is expressed in philosophical terms concerning our autonomy, dignity, and liberty. Autonomy basically means that whenever you want to enter decisions, you have a high degree of self-control to do it. For instance, the shirt that I am wearing and the colour I am choosing is my discretion. I am not straitjacketing to uniform by any other quality and as an adult I need to be open towards doing it. Similarly, it intersects with other areas of my life such as my diet, people that I need and I broach friendships with, collegiality with. So, the level of compulsion in my individual behaviour is not to a degree if I am not doing something illegal, right? Yet, at the same point in time, as we live in a society, there is a need for a certain degree of social control. Laws will be passed, for instance smoking is bad and the government will then come out with regulations which prohibit it. So, where do you draw these lines on the basis of the right to privacy becomes an impact in a much murky way when it comes to personal data which is why we need a personal data protection law that follows these principles which are expounded in the right to privacy judgment.
Secondly, the technology advances which are taking places quite often lie on the extraction of personal data and sometimes are also economic incentives for its extraction given that personal data is valuable and companies can make money out of it. Sometimes, they collect more information than necessary. What is essential is the purpose to which we consent, which is one of the bedrock principles of privacy in the data context that you have to seek a person’s consent before taking any kind of personal information. It needs to be tied to a purpose and objective and there needs to be reasonable safeguards for which we need legal regulations. Certain recent deployments such as facial recognition, on which IFF runs but tracker is really concerning because facial recognition is an inaccurate technology and even if it becomes accurate it will lead to what we call a ‘chilling effect’. Suppose you are always under watch in public spaces and in the public- private boundary as much as it is there, even in public spaces we may like to engage in certain conduct for instance, whistle, tap or just stroll. It will be visiting people in very tough contexts, just imagine yourself every time passed by a police person or thana, don’t you feel to come in an upright position, that is a chilling effect: of almost involuntary physical action. So, when you are always under watch, you are essentially under the supervision of a higher authority and it takes away a person’s individuality. We do not trust that law enforcement but we should question it because they have so much power over us. When we are completely under their gaze at all times, it becomes deindividualising. There is a lot of literature on it- IFF documents deployment in facial recognition technology across India through the project PANOPTIC, or you can go on panoptic.in to check more details. There are very well developed petition which urge the Prime Minister’s office to ban this technology in terms of deployment with police but not ban it for our own personal use for instance, to pay sun laws because technology is something we really believe in, we believe in its power, its promise. We disagree when it undermines our fundamental rights and whose deployments are done without a piece of law, and law is necessary because it limits how much you didn’t do fines and also provides safeguard, and none of this exists with respect to facial recognition technology. Some other deployments of the technology have been concerning, by and large I would like to reinstate the positive value of technology in our lives and also comment, a lot of innovators, technologists and start-ups which are specially in India based on banks who are the core supporters of Indian Freedom Foundation believing in constitutional rights and are trying to integrate those values into work.
People call me a hopeless idealist; I think that is the only way people survive today’s world. I also think an alternative to this dystopia in which one’s symbolism is their own political outlook, it slowly starts seeping into personal lives and that is not the way to live, especially in a country like Indian which is not only based on individual freedom but also on community values.
Kunal: I think that is rightly put and when you are mentioning about facial recognition being everywhere, that reminds me of 1984 by George Orwell and this entire idea of ‘Big Brother is watching’, like somebody above you is always watching and I think the manner in which I always look at these thing is like technology in itself isn’t always bad it’s the manner or the purpose for which the technology is being used. The facial recognition when we use it on our personal mobile phones, it’s a great technology; our hands are busy and my camera will look and automatically turn on but at the same time when it’s done for a purpose which is violating individual liberty and freedom, then it’s the same technology at the end of the day, but it changes the entire dynamics. Another thing I want to comment about is being the idealistic person, I think that is what we need more and more in our society. There are thousands of reasons for being cynical about how society is progressing but even if you find one reason to be hopeful, I think that is more than enough to just hang on to it and just keep going because if we also give up then who is going to be there because somebody needs to stand up for these ideas and broader vision about the sort of the country we want to lead and live in. So, I completely agree with you.
Apar: And to add on that our idealism needs to be chartered also pragmatism and much more realistic assessment of work and this is what we do at IFF, so we are not looking at immediate outcomes, there are no days when we do not feel a sense of anger, irritation but our larger outlook and strategy needs to be built of good field, of looking at what we can do and optimism provides us that kind of motivation to do it. For instance, look at internet shutdowns which are taking place all over India and India is possibly the world leader on it. Internet shutdown which took place in Jammu and Kashmir was after the repeal of article 370 and the conversion of that territory into two Union territories around August. Thereafter there was an internet shutdown of 500 days and we went to the Supreme Court assisting other bodies in close to four rounds of litigation but what we gained through that is not only the restoration but incremental positive change because prior to this litigation there was no obligation of transparency in which when you shut down the internet there is no requirement on the government to publish this order, to provide reasons as to why it was shutting down the internet and it limited the space of time. So, I know this is not a victory, but this is an incremental positive movement and we need to be more patient and I say this to young people: let your anger feed that patience, let you anger and irritation actually turn into a level of determined optimism that yes, you’ll win and set up 10 to 20 IFFs. This what India needs right now, and there is space for advocacy, you can have your advocacy which also very radical, which calls out and actually challenges unjustified exercises of power which is not within a democratic framework. You can bring your own political ideology but you need to committed, need to be patient and you need to build constituency and finally it needs to be done within the constitutional framework. Most of my colleagues at IFF are actually in their mid to early twenties and very committed to the work.
We are going beyond words into actual action, look at our Instagram page or reddit page, all outreach mechanisms have been created and developed not only as social media but actually as civic literacy and constituency building where conversations happen organically. We have volunteers who actually translate this entire principle of privacy into regional Indian languages. Let us volunteer more and contribute to the larger goal, critique but be gentle because the other person has their unique and diverse life experiences.
Kunal: I agree. I still remember, before starting ITISARAS I used to be extremely frustrated, so angry all the time about how things are happening, why are we putting these definitions on things like culture, adding structured background to this and I still remember the conversation I had with a senior who recommended one thing to me and I think that mantra kind of changed my outlook. His entire statement was “Kunal look I get it that you are angry, frustrated, just channelise all that anger and frustration to create something productive, not just for yourself but for society at large”. I did not get it earlier but in retrospect I think I have been acting on that mantra all this time. Whenever I feel angry or frustrated, I just try to channelise it into something much larger than me, to create something which is much more substantial and actually be productive on my way. This is what, I think, we have tried to do with our work so far. It is important to be idealistic but it’s also important to be a little bit pragmatic in your approach on how you are going to achieve the target you aspire to reach by a particular time.
Apar: That is really beneficial for me to hear, Kunal. It brings one more learning which I think a lot of people who are young need to have. So, I have benefitted in my life just like you, Kunal, from mentors, and they don’t need to be there all the time, right? They can be people who you can reach out to in parts of your life when you are essentially presented with a crossroad. If you forgive my reference to one of the cult classics The Matrix, take the red or the blue pen, and all we need to search for is the multiple morphosis that will be there in our lives because young people who are more experienced than us have so much learning potential, so much passion, a new way of looking at things. They often recast societies completely, however at same the time there are certain things and values which are important to learn from history. Your instructors can be derivative, your morphosis can come through reading, through perception and self learning, it can also come through people. Learn about your field and re-do that every day in technology because technology changes every day. Therefore, a good mentor is usually very valuable to your journey of professional growth and it has been very core to our work at IFF. A good mentor can also be an expert from social media where you go beyond the surface chatter and diving more deeper into the subject areas which are resonating very passionately with you.
Kunal: Right. My next question would be about the manipulation that is being done to the digital spaces for politicised navigation. How do you think the entire territory is being chartered right now in India?
Apar: I will take this in three parts. First is a bit philosophical and that is basically because you talked about 1984 by George Orwell. Orwell basically says that society will be controlled in his novel, in which there is an autocratic society. An autocratic society as per dictionary definition means that you don’t have any personal space or boundaries, it doesn’t mean that it is from the ‘left’ or ‘right’, but is status of power is always watching you, always controlling your behaviour by taking away core parts of your individuality like books, music because they give you a sense of thought or dynamism that ‘hey! I don’t need to walk in a straight line, maybe I can hop, maybe I can spin’ and that is something which is inconvenient to autocrats because that is diversity. So, for administrators as any excel sheet which may fill, you like very clean variables but imagine those variables are human beings and that is the larger premise of George Orwell’s 1984. On the flip side, there is Aldous Huxley who says that society will not only be controlled by this kind of powerful penalty, control and restraint but can also be controlled by what he called is ‘soma’, drugging with more and more. Imagine there is a stick and a carrot, and what is soma today but social media. You open social media and its engineered, it’s practically engineered to the point where you spend more and more time there. This is the philosophical aspect and if you want to read more there is a great contrast to that given by a writer who works in public education, Neil Postman. He has written a book called Amusing Ourselves to Death. He basically talks about how cable broadcast news is not news, it is infotainment. While infotainment is actually devaluing journalism, he says that a lot of people are not controlled by censorship as much as they are controlled by media ecology which feeds them junk rather than nutritious value. We can carry on with a carb heavy diet or a balanced diet and we enjoy the carb heavy diet quite often. This ends the philosophical aspect, let’s come to practicality. Most social media companies today are built on fundamental economic premise; they are essentially advertisers which use your personal data to create your profiles, these profiles have elements of your personal data which demonstrate your personal habits, traits and, you may not even realise, the granularity to which this is regularly gathered, there are persistently AV tests so essentially pushed two messages to you and see how much time you are spending, how you are engaging with that content and there is technology to the level where it can be tracked as well and smartphones may also have sensors in which your intensity of your touch can be recorded. Imagine the dating app you are on, even the time spent in flipping, even the battery usage and how you react, all of the device permissions feeding into specific points are profiling you. So, they are not going into who you like and who do you not like, it is telling these social media companies, why you like someone, how much you like someone or not, are you lying to yourself because the actual behaviour is contrasting to what you say so, they can infer that, all based on sensor and the data which incessantly gathers everything through smartwatches, cell phones, Alexa; sometimes it just needs somebody else who is in your presence and that is why you sometimes are creeped out while having a conversation with your friend and saying, “why is this Instagram ad showing that to me, I did not even add that person I only met them, why are they recommended to me?” as if you are being stalked. This kind of surveillance apparatus is actually fed by an economic basis in which ads can be served better if you spend more time on it. Engineers spend time in extraction and devising this but also in terms of ensuring that you spend more and more time. So, both elements match – your time spent and the data extracted. Now, political parties provide a very interesting layer on top of it. Disinformation sits on top of that. Given how they are funded opaquely today by electoral bonds, which are not transparent, we do not know the donor details. As per statistics published by the Association for Democratic reforms, very high number of criminal undertrials, and there is a larger criminalisation, are historic of people who are represented in local assemblies as well as in Parliament. It stretches beyond the original prosecution for illegal dharna to alleged cases of murder and very serious criminal offences. They are using it in a way which is quite often manipulative to the extent where it is making people believe things which are not there or increasing polarity in environment in which there is a ‘us versus them’ divide, in which there is a tribalism. Whereas both don’t realise that it is quite often similar governance processes which are being followed. They are insufficient and don’t serve the needs of the people, quite often more used by political parties which are in power because they can garner larger resources. Therefore, let us also recognise that disinformation is the core challenge, again the Internet Freedom Foundation prior to 2019 general elections worked with a range of other established non-profits including the association for democratic reforms, common cause and authored a joint letter which is endorsed by two former chief election commissioners. It first proceeded with transparency in funding of political parties because those funds were primarily being used towards election campaigns which would be organised digitally. Registration was mandatory for everyone who was affiliated with that process; prescription of penalties and prevention of dark money (unaccounted money) from funding via third party affiliations was done. What we need is free and fair elections, accuracy and prevention of any kind of appeals towards communal passions or hate speech during the conduct of elections. I believe that the everyday polarity on social media is very destructive towards our shared vision of India, where we all disagree but ultimately agree on the end goals because it is turning people, Indians, against each other.
Kunal: Right. I think from our conversation that we had so far, let me ask this last question which is a little twisted. How do you think mass surveillance strategy can be used for the betterment of society and its governance? Number one, is it possible that it can be used, number two, how?
Apar: I believe mass surveillance strategy by itself is very rude, are expression of desire of social control and essentially one needs to always view it from the perspective that it is a trade off and that is the framing adopted by people who essentially pose it for the benefit of security but when we objectively analyse it as per available empirical evidence it shows that they are costly, inefficient, and they don’t work on pure metrics. So, the Snowden revelations reveal that billions of dollars were invested but they weren’t able to catch up anyone due to mass surveillance activities more or less and objectively mass surveillance is not as effective as targeted surveillance and we all have this presumption that mass surveillance will be beneficial but it is not because its ultimately public money number one we should consider.
Secondly the alternatives may be much more human rights preserving, and at the same time effective. So, let’s contrast for instance the CCTV cameras versus street lights, think about which is the better alternative, which would you rather have – better street lighting all over the city which have high incidence of crime like Delhi or CCTVs everywhere? Imagine those CCTVs feeds are then given to RWAs and market associations. Now, break it down further, who do you think are elected and will have access to the feeds in the RWAs and the local market associations and then think what is the justification of the CCTVs itself, women safety? But who is watching the feed? and imagine that as young people who will possibly want to rent out premises will want to have their friends over for a Sunday lunch, and you are already dealing with a landlord but what if you play music a little loudly, what if your neighbours don’t like it. So, one needs to look at it very objectively, mass surveillance by itself, and by any objective standards do not satisfy these thresholds, limited surveillance does and limited surveillance how can it be done?
Surveillance essentially is an activity in which a person does not know that they are being watched, that is what distinguishes it from the principal framework of data protection in which a person knows and then gives consent. In surveillance when you have targeted surveillance it needs to be under certain safeguards. Firstly, there needs to be oversight which needs to be played by Parliament, Parliament needs to know every now and then who is being surveilled at least in terms of aggregate figures so financial allocations can be made because that is a democratic promise – accountability. We are eventually in a country in which you are voting some people rather than certain people who are not voted get to watch over us all the time and have no accountability. Secondly, it needs to go prior to a judge who may be in High Court and examines the reasons why each individual is being surveilled. This then provides an opportunity for a degree of probable evidence and some threshold along with some process being there and due deference being there for a state security region, this can be done very well. We have fleshed out an entire model actually which is part of the ‘Indian Privacy Code’ which is on saverprivacy.in. We explain why mass surveillance is bad, it does not satisfy objectives standards of utility going beyond our principle objections which are presently human rights because we think it’s just bad. This all flows from not only our local but global understandings which are there and international framework. We pose that individualised surveillance which is there needs to be, as per a defined process, prior the judicial scrutiny and Parliamentary oversight. This model bill has also been introduced as a private members bill in two different versions. First by Dr. Shashi Tharoor from the Indian national Congress and second by Dr. Ravi Kumar from the DMK. Hence, I would invite people who more legally inclined to look at this process and then also share feedback with us.
Kunal: I think I have had a quick read of Dr. Tharoor’s version of the bill but I will surely be checking out the bill submitted by Dr. Ravi Kumar as well. Thank you so much Apar, this has been an incredible interview, I learnt so much and I am sure the people who are going to watch it are going to learn a lot about digital space, its freedom, the work and the contribution that IFF has done over the couple of years towards it and the work it will be doing in the future as well. I am so very grateful to you for agreeing to be a part of this interview and thank you so much!
Apar: It was an absolute pleasure! Thank you so much, Kunal and your entire team. I wish you the very best. We need more young organisations all across India which advance towards social welfare, we need greater empathy and I am very glad that you reached out to us. Please do let us know how we can also support you. If anybody who is watching this interview has any thoughts or comments, we are always open to feedback. In fact, all of us stand on very public forum at forum.internetfreedom.in. I request you send in messages there. You can see our financial funds’ transparency, all of our work, you can question us, criticise us. It is a place for sustained conversation. Our entire staff is there, we like getting feedback, you can also tell us why don’t you do this, why don’t you do that; we are always very democratic in our own ways of functioning and looking towards including it further, especially with the partnership of more young people. Thank you so much Kunal, it has been an absolute pleasure.
Kunal is a Delhi based lawyer & policy analyst and has been working in the social sector since the last seven years. He is the Founder of ITISARAS and currently presides as the Chairman of the Governing Body of the organisation.