Who will keep Facebook in check?

Who will keep Facebook in check?

Hello and welcome to a brand new edition
of Tech2 Talks. I’m Ankit and with me is a world-renowned
technology lawyer Mishi Choudhary. Thank you so much for joining us Mishi. Thank you for having me. All the way from New York to Noida. That’s quite a journey. Alright so Mishi is one of the most
outspoken advocacy experts when it comes to keeping the internet a nice, fun, clean
place. I’m not in for clean because cleans definition for different people
means different – open and free do what you want to do. Absolutely. Okay so let’s dive in. Mishi, one of the biggest and most contentious issues
when it comes to the sanctity of the internet right now here in India is what
is potentially going to be amended the section 79 of India’s IT Act and as per
section 79 all technology companies be it Facebook, Google, WhatsApp, Instagram,
YouTube these intermediaries get a certain amount of immunity, where they
are not liable for any illegal or contentious content posted on the
platform, but the government is mulling over the fact that they want to amend
this making these entities and intermediaries culpable for the content
over there. Is this in line with what’s happening globally and what do you think
of this? A little historical perspective would help understand this is not the
first time we have tried to do this. It’s not the act that we are amending. What
happens is every time a law is enacted the Parliament says, “here is a law” but
every law will require certain kind of details how are you going to execute
that law that power is given to the executive which is called subordinate
legislation those are just rules okay the cyber cafes here are the cyber cafes
but the rules will be made by the Ministry of Electronics and Information
Technology and they’ll say you will have this you’ll have Y you will have Z etc.
So here also section 79 provides safe harbor why that concept comes
comes actually from the Silicon Valley where you have section 230 of the
Communications Decency Act and you have DMCA in the US where everybody said if
we’re gonna have platform companies and you’re going to let anybody post any
content so experts and posts something on the content you cannot go and hold
Mark Zuckerberg responsible for a user-generated cut. As much as we would
like to. For everything it’s easy to bash Mark than anyone else but but then you
cannot have any kind of a platform company to be able to operate as a
business because there would be a lot of user generated content and you can’t
monitor it you cannot hold the companies responsible so the Congress in the US
said yeah we’re going to give you immunity and safe harbor for
user-generated content right and that’s that can fall into various categories it
can fall into categories which are unpleasant and it can also be illegal
content like child pornography right so that’s why this was held in India we had
this amazing thing called bazi.com this is the early aughts 2000 ones etc so the
guy who’s the CEO Aneesh comes and he starts baazi calm there is a notorious
thing of something which is called the DPS scandal in India’s way of putting
everything yeah I mean yes so and I attend takes it burns another CD and
starts selling it on baazi.com. It obviously is something you shouldn’t be
putting it out and it’s really bad taste but the police goes and arrests the CEO
he’s come back to India and he’s thinking I’m gonna start a tech business
but then he’s put behind bars and that time the discussion happens it’s like
this is not going to bode very well if you’re going to get into the e-commerce
space are you going to do an internet business so then they do the
same thing which is section 79 which means if you are a tech company you are
not responsible if Ankit decides to put something on it but yes if somebody
brings it to your notice then you should take it down to take it down so let’s go
back to Mr Sibal when he was the IT minister and not Mr Prasad so he also
tried to get certain things to control to remove it’s not very nice and he also
amends the same rules which we are talking today the intermediary liability
rules. What will be these intermediaries liabilities? Whether it’s Facebook or
Google or whatever you want to call them and then he amends them and he also puts
in certain vague terms out there and we were like this is censorship by proxy
you don’t want to censor but you want the ability to call a Facebook and say
yeah we don’t like this thing just remove it right and that time also the
66a thing is going on when people are putting something on Twitter and
Facebook Two girls say something about Bal Thackeray – and getting jailed for it – exactly So I was one of the lawyers we challenged it up to the Supreme Court. The Supreme
Court says not so damn fast 66 days unconstitutional. Your rules use
the same words as 66a can do it get rid of everything you can only and Mr
Sibil’s rules in that and I call it Mr Sibils because executive has the power
to make rules and he was the IT minister at that time so then they say okay now
the Supreme Court says you will have to get a court order or a government agency
will send you an order and say you will take down the content and so it’s only a
court or a government agency’s order which you will listen to if you want to
take down content I’m like in his version where you could write something
that I don’t like Mishi’s face just take it down and he could write or she
could write because it used term any person with it so we do all of this we
cut it’s all over but this is India we love coming back we’re back into the
policy circles our regulatory policy is unpredictable it changes every minute based on what the politics looks like so we
are back to square of minus one here again and we have these rules once again
now the categories have been expanded the initial categories which Supreme
Court had read down have been retained so you’re back here and this time we
have something like traceability also ostensibly the rules are to check spread
of fake news the lynchings have happened – or anything that’s a threat to national
security – which is always a catch-all phrase national security security of
state is a catch-all phrase in every jurisdiction not just India because
because that’s a great way to scare everybody yeah and after the September
11 attacks the US does the same thing Patriot Act comes in we have the Mumbai
attacks in 2008 when without any debate all the amendments are packed into the
IT Act in 2000 December of 2008 2009 they come into effect okay so now what
happens here and the lynching started carrying really catching up last year in
summer the summer of 2018 maybe these rules have only come up as a public
consultation because there was a secret meeting which got leaked and then it
became a public consultation in December of 2018, too late and I think there’s
enough times we’ve seen that the regulations are not used for the purpose
that ostensibly we are told we are going to protect come in and do something
about it but usually slip into the great place which is political censorship then
you see a platform how does a platform get anything they do it’s not a
conspiracy theory it’s everybody knows surveillance capitalism is the only way
Internet makes money we love free stuff everybody loves free stuff you’re not
ready to pay for anything these days so these things are not gonna run on their
own especially on an app like WhatsApp where all kinds of communities
and stakeholders are coming together should there be punitive action if
something wrong happens on the platform or should they just get a complete clean
chit just because they are an intermediary and they are not in control
or in charge of any content being shared on WhatsApp. Try pornography for example
they just put their hands up and say okay hey we have no idea what’s
happening because everything’s end-to-end encrypted we can never track
the source of where this particular information is getting generated or
things like that while of course they do store metadata information of all
WhatsApp users. I’m trying to understand is it always gonna be oh my god here’s a
problem caused by big tech, government wants to weigh in and you know bring in
some order and obviously pass the buck and push the blame on someone and hold
someone accountable accept their own self. What’s it gonna be like? Because
users are at a loss. So um I would say that’s true, but end-to-end encryption
becomes this is not the first time the crypto wars are happening
we fought these wars in the US during the Clinton administration and Philip
Zimmerman wanted to come up with this it’s been proven time and again the
businesses, the e-commerce, and the finances the way it works will not work
if you don’t have end-to-end encryption You and I are entitled to be able to
have secrecy and in our communication and also for our and privacy is divided
into three things and because anonymity also and because it leads to autonomy. If
I don’t have the ability to communicate with whoever I want to keep the content
of it private when I want to and sometimes not about the content but just
to be able to have a conversation with someone who does not want to be known
then I will not have autonomy you tell me if whether it’s a Manmohan Singh or a
Modi is watching me all the time my decision-making is going to change so
much in in the same way like a person sitting in your office and your boss is
always on your shoulder you’re gonna change your behavior a little bit here
and there that means I’m gonna lose my autonomy.
You’re reading is monitored. Your voting is monitored. Your everything
access to online persona’s monitored. Isn’t that happening in some way already? It is but
that does not mean that I’m going to stop saying that I’m entitled to it and
get off my internet. So now what about the responsibility of the big tech company? I’ll come to that.
WhatsApp does have metadata. WhatsApp is not wrong to say if you see something
which is a problem you can screenshot it and just report it. We also have to have
old-fashioned traditional police to actually act you cannot get away to say
our infrastructure our basic people as fill people will not act our authorities
will not do work on time and we are always going to say let’s blame somebody
else about it. Having said that they will have to cooperate at least when the
complaints come to them they will have to get and verify that whatever the
complaints are coming they will have to ask some questions right you don’t want
which happens all the time and we’ve seen it every time that what ends up
happening is it’s always for political censorship. Somebody tweets about a Karti
Chidambaram the police goes and makes an arrest at 5:00 am. A girl is raped how
much time it takes to get an F IR registered?
You’re not going to ignore that and just say that Americans are easy to bash up
and and look at the distinction between what the your local players are saying
and what the foreign players are saying okay so the users are confused showing
the OTT consultation to try PayTM and Reliance Jio say handover the
decryption keys to all government agencies. Facebook or you Google and
Twitter and they’re like they’ve brought in into a different constitutional
system saying yeah but what happens to your rights and didn’t you have just to
put the Swami judgment saying to India you have a right to privacy so how does
the rule of law work here they’re like a rule of law we have to exist as
businesses and data should be localized and we have Indian companies will
protect your data in such a great way and all you users should trust us more
than any of these foreign companies it’s an anti-imperialist
it’s a nationalist thing it’s a protectionist thing now in such a case
although the question is a complicated question and I haven’t said that the
faith the WhatsApp’s of the world will not have to cooperate but you will all
have to work together we also know where a lot of fake news does come from and
those are political parties they’re not going to regulate themselves and this is
a cross-border you will take on Congress you will take a BJP you will take a BJT
you will take an SP a BSP or an OP this is like just let the person throw the
stone who’s and they’re never done any of this we don’t see bad dialogue
happening because there is we know there’s a lot of source which comes from
such station and it’s not that propaganda is a new thing the tools are
new. It can go viral in a matter of minutes. But that happens all the time. It’s not just my
rights against my government but also the demand of a consumer is what keeps
companies and businesses if companies if we will not make demands for privacy
respecting products we will not get privacy respecting products if we don’t
say we want an end-to-end encrypted thing we don’t want your ads to be
poking their business they will not do it but if we don’t do that you can you
can have it always- it’s a land grab yeah fortunately because of those demands we
have products like Signal and products like Slack and Telegram and everything
that’s trying to be different from what we’re gonna take a couple of questions
that folks on LinkedIn have written to me about when I said a meeting Mishi to
talk all things data privacy. Diviansh Naidu writes and says please raise a
question for how to deal with the situation
after privacy or data has leaked on an individual basis and what are these
organizations / governments doing when the privacy is breached to stop someone
from taking advantage of that data. It’s a very specific question. It’s a great
question for for our own purposes as an individual if your data there are
a lot of websites you can look at: have I been pawned? there there’s a Mozilla
there’s a Firefox plugin you can look at those you can find out whether your data
is actually available out there and there are various ways to do it you
could do that and unfortunately I don’t have a blanket answer for our Indian
users I have better answers if you were in the
United States why is it because there are some protections which the United
States citizens do have which we don’t have in India there’s a data protection
bill pending and but right you have some rights but I have seen that that really
doesn’t work I have had many people who told me about my data whether there’s
Aadhaar data or PDM stuff or everything else is here what do I do
the only thing which I can right now say in terms of legal rights you have a few
under the IT Act you will have to pursue them but I don’t want to sound like a
lawyer but unfortunately you will have to get a lawyer involved but a lot of
times what happens is a lot of authorities don’t even know that this
has happened and people don’t exercise their rights so I will urge people to
write just an email citing I have rights under IT Act this
is what I’m demanding do this for me right that’s the first thing you can
basic stuff you can do first find out if your data is leaked. Second you can write
to those people- second I mean I mean there’s also a lot of proactivity or at
least you know a sense of okay I’m listening to you from the cybercrime
cells in India now. They are they are far more empathetic than what they used to
be and a lot of times they’re extremely proactive and responsive – They are we had
an ACP from the Delhi cyber cell for a fake news consultation and he was being
very proactive he talked about it you can make a complaint there also which is
the third point I was gonna say and one should say that but this brings us again
by whoever is asking the question I forget the gentleman’s name but why this
proactive demand for a regulation which is clear and not cumbersome which is
what you were talking earlier. Lawyers like me do make a lot of money in trying to
make it impossible for users to understand what we are writing because
that time I’m serving a client who says I’d like to use everything and
considering there’s no overarching legislation which prevents me from doing
it a lot of companies in India have scooped everything and so that means and
it’s buried but it but that happens everywhere else in the world also but we
right now just concentrating on India so those are buried under a legal lease.
There’s a lot of terms and conditions that’s why the push to say I don’t
understand all of this can you give me like infographics or a listicle like a
BuzzFeed five things you think it should happen we should demand there is a big
historical evidence that food labels nutrition labels right we demanded we
wanted that I want to know how many calories are there what is what crap are
you putting in my food which I’m putting in my body and now if data is whatever
the new if you say oxygen he says well whatever was water I want to know what
are you doing and I make it easy for me I can read a food label and understand
why can’t I read this in a simple way why is a lawyer supposed to be actually
making it so difficult that’s why GDP are in Europe makes it
easy and makes it mandatory that you will have to make it simple even build
new draft goes in our way of Indian drafting like have a zillion details but
so the problem is what I would say to everybody who’s asking
question is make demands about what you want from that come from everybody and
from the government second I would say is demand protection for people not for
data. Data doesn’t need protection everybody will protect your data if I’m
a company and my data center gets breached or my company gets breached I
will do it. When the Sony hack happens those there are CIS, there are see everybody is working on security and because I
want to protect it that’s not what we need. W need people protection. So that’s why any bill
should have a people protection which means if I have to protect me it should
be simple for me to complaint to say do you I have a problem here similarly like
like like in the US, they did that with credit cards for the longest time if I
make a complaint and it’s not the 24 hours 72 hours like India does it it’s
like whenever I make a complaint they will register my complaint if that
transaction has happened and they will refund the money immediately okay and
I’ve made the complaint they’ll investigate and send it that doesn’t
happen here because that’s because that’s again protecting the end user so if
wallet is doing something with my money why do I have to run from pillar to poles?
It should be simple it should be easy that’s why I need law I don’t need law
for government to make grandstanding we will show something to Mark Zuckerberg
how dare he do something what has happened since Cambridge Analytica on
nothing and and Mark saying oh yeah we’re gonna have a war room for the
elections it’s the most important thing for US Congress what has happened here. I
as a user have no time for all of this. I have to have a job. I have a family. I
have other things to do and when I go online I wanna have a good time and I
wanna learn and I want to contribute and I want to just get rid I don’t want to
be harassed as a woman I don’t want to be told which I’m told every day that I
don’t know tech I don’t know law and I don’t know
it should read up a little which is fine I love it because I make money by
teaching other people but it doesn’t matter to me I get but I don’t need a
rape threat I don’t need any of nonsensical stuff you can bombard me
with whatever propaganda you want I just didn’t don’t want a propaganda which
leads to anybody getting killed including somebody who sits in a tiny
village and doesn’t understand what’s going on I want that police to work if I
have a problem and if I somebody is constantly harassing me there is a very
very prominent journalist in India who has been added to every possible group
in WhatsApp without his permission and he has not been able to do anything
and so we as our organization wrote to WhatsApp to say I as a person whenever
I’m asked for anything you ask for my permission why is it that my
extended family who I don’t like because they want to question me about my
marriage my job and my kids all the time can make a group and add me to that but
but they should be able to ask me my second cousin or my aunt should have to
seek permission if I want to be in a family- What did WhatsApp say to that? – By
the same logic we didn’t we made that and we said by the same logic I said a
political group or any group or a health group or a financial group should ask my
permission we have had no response from them and we were not the only
organizations several individual civil society organizations wrote to them to
say so why have you not done that there is a business reason behind it obviously.- The
onboarding has to be so easy – because the businesses will be using it just like a telegram you can speak to them. because now they have amassed billions of users. And they were going to launch it. And there’s WhatsApp Pay.
So I’m not saying that governments are not right in doing what they’re doing
but I will say – that the chances of it being misused for the wrong political
reasons and mileage are far greater – and there is no vision. India does not have a
digital vision. We don’t have a real CTOs office. We
don’t want technocrats like Mr Neal Akane
who thinks Constitution doesn’t exist or whatever his interpretation is. We want
real people who set up a 10-year vision and say we don’t care we want artificial
intelligence an ethical one to be developed in India so we’re going to
have actual Institutes of excellence for artificial intelligence we want our 14
year olds to be learning Python and PHP stack and lamp stack and they can do it.
So we are going to do that we are going to have real Wi-Fi not election promises
and then forgetting about it and then our policies will not be protectionist
policies and my policy is for ten years and so you want a link there is a
lynching thing happening you want to change an intermediary liability rules
you go to the CTOs office City office already has experts not Indian experts.
We are not talking about nationalists we are talking about real pro experts we
are not gonna do the same thing which we are doing, or Raghuram Rajan stays in
America he must not know anything. No it doesn’t matter who the person is, just
look at the substance. You go to the CTO’s office you say, “I want this change”
the CTO says, “yeah but that’s not how we will achieve that vision and my studies
my work is already here. Please go away. We will solve it in another way.” Tells you
how to solve it, but it’s not that the ground is constantly moving under me.
We look forward to hearing a lot more from you Mishi Chaudhary. Thank you so much for
joining us. Thank you for having me. For taking out time from your busy schedule
and finding parking in Noida. You’ve to do something about parking. That’s a life skill unlocked. That’s an achievement unlocked. Well I do drive in India myself.
So I have to put up with all of this, but somebody should think about parking.
Thank you so much for joining us.

10 thoughts on “Who will keep Facebook in check?

  1. I don't understand what tech2 wants to do
    They some time tell how to become pro as gaming channel, how to stream, is facebook responsible what is this

    Plz make video in one field

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