Understanding Digital Rights in India: An Interview with lawyer Mishi Choudhary

Mishi Choudhary is a technology lawyer and digital rights activist. In 2010, she founded Software Freedom Law Centre India (SFLC.in), a legal services organisation that follows a multi-stakeholder approach towards promotion of open access to knowledge and protection of digital rights. Ms. Choudhary was named Asia Society’s Asia 21 Young Leaders in 2015. She was recently elected to the IFEX Council for 2019-2021. The council oversees policy and strategy matters on behalf of the members of IFEX, a global network of freedom of expression activists and organisations.

Digital Rights Monitor spoke with Ms. Choudhary on the sidelines of the IFEX Strategy Conference 2019 in Berlin in April about her organisation’s work on documenting network shutdowns in India, the weaponisation of social media, and the role of technology companies.

Digital Rights Monitor (DRM): If you could please tell us about what got you interested in working on Internet shutdowns in India and how has that effort evolved over time?

Mishi Choudhary (MC): The organisation I founded in India, Software Freedom Law Centre, already worked on digital civil liberties, free speech, privacy, surveillance, and data protection. We would document instances of website blocking and content takedown, and while we were doing that, around 2012 we started noticing that in some parts of the country complete (internet) black-outs were happening. But they were very few and far between. Because we were already documenting content takedowns and website blocking, so we thought we would also start (documenting Internet shutdowns). So we started a tiny project; one person used to work on it part-time.

But in 2015 we started seeing a spike in the number of shutdowns. So much so that we are in 2019 today and 28 shutdowns have already happened and we’re only in April of this year. So when we started seeing the spike, in 2016 we thought it was more than usual and it would be much easier to have a visual representation to get (the message across). We got a separate domain and made a tracker. As you see, it is a map of India and if you click on any of the states, then a menu comes up that tells you how many shutdowns in which area, which state, and what were the reasons.

Once we started collecting data and analysing it, the data analytics told us a bunch of other different things, and it became a big project on its own. Sadly the reasons why we started are not very encouraging. But it’s also because the state never announces that there is going to be a shutdown so the public does not have any information. There is no official data issued from either the federal government or state governments so this is our way of documenting what’s going on.

DRM: In Pakistan, we have faced a similar issue of network shutdowns and the government often claims it is to prevent terrorism. When you noticed the spike in network shutdowns in India in 2015, what were the factors driving these shutdowns?

MC: You’ll see that Jammu and Kashmir has the highest number of shutdowns and this is excluding the two annual shutdowns which happen on Republic Day and Independence Day… In the country, we started noticing, what was being communicated to us by law-enforcement agencies, was that because of the ease of communication of private messaging platforms, such as WhatsApp, or ease of organising through social media platforms, it was much simpler and easier whenever there was perhaps a protest or any kind of march of people to get more and more people together in one space within the span of a few hours, which was not possible earlier. And because the process of blocking a platform or one website or one app is cumbersome, so (the authorities) found it much easier to tell the telecomm service providers to shut the entire net down. This is mostly to prevent the law-and-order situation from breaking down; they are always thinking that riots will break out and they want to control the number of people in the crowd. (This is the case) majority of the time, but not always. (Network shutdowns have taken place to prevent) cheating in examination quite a few times. It changes, but if you see the majority, that’s the reason that is given.

DRM: Do you think the shutdowns impeded people’s right to peaceful assembly or were these mostly violent protests or mobs that had to be controlled?

MC: We analysed the data based on whether these were reactive or proactive events. Whether the order for shutdown was issued when something was already happening and then they thought it could exacerbate into a much more violent situation or these were proactive ones where they thought permission had been granted for a march but they now feared that it might become something bigger, so they were doing it beforehand as a matter of precaution. It is not always one or the other.

However, I think, what they have now found is an easy way of bringing everything down in one go. It’s like a big kill switch.

Here’s another thing: because India is a federal form of government, the rules to shut down the net were under the central government. But police power is under the state governments. So now they have cleverly started using the Indian Penal Code and (the powers vested in) the state governments. So you have to go state by state and you can’t do everything sitting from the central government.

Although the central government, after looking at our data, revised those rules and issued fresh instructions about how (Internet shutdowns) would be done, but it is cumbersome, it’s bureaucratic, and it still has not had much impact. The state governments continue to do what they do, and they are like, “Don’t tell us how to do our jobs; law and order is our situation… (and in situations such as these) we don’t care about free speech and expression.” And they also say that these are perhaps temporary measures so why are you complaining. But the longest shutdowns have happened in the state of West Bengal and in Jammu and Kashmir.

DRM: Has there been litigation against these Internet shutdown orders?

MC: Interestingly, we moved the Supreme Court long ago. There was a matter which had come from the state of Gujarat. It went to the Supreme Court, but (at) that time the Supreme Court did not think it was a serious enough issue to do anything and they didn’t intervene.

Thereafter the numbers have gone up, and because (the shutdowns) are being issued in the states, so now they have to be challenged in the state high courts. So, for example, in the Rajasthan High Court there is a petition which was moved to say that there is no correlation between cheating in examination and shutting down the entire net.

If you also see, the current government (the Narendra Modi-led Bharatiya Janta Party government, which recently finished its tenure) announced a lot of things to bring Indians online. There is a Digital India campaign by the government of India. There are lots of services – passport and taxation etc. – going online. So they have not even thought about how you are going to reconcile this (with Internet shutdowns). Because now, this is worse than a curfew. Because you are bringing the entire economic life, educational life, whether it is the banks, educational institutions, commuting, (you’re bringing it to a standstill). If you are going to encourage people to use the Internet and then you can turn the switch off whenever you feel like (it), then you are bringing everybody to their knees.

DRM: You have spoken about the weaponisation of social media in India. What are the most pressing concerns that the Indian civil society is facing due to the use of social media by political parties or extremist groups and how has the response been?

MC: In the 2014 elections, the current ruling party used social media very effectively and the admirable part of their campaign was that they were using social media as one of the tools that helped them amplify their other messages. But they also learned quite a bit in terms of data collection, (and) data analytics… That taught us quite a bit about how a political party will use social media to win elections.

Thereafter what started was a very organized way of harassment of a lot of people online and this was targeted a lot at women. Obviously not just limited to women, but (among those who were targeted were also) a lot of journalists, a lot of influential voices. So this is (an) organised group of people (perpetrating the harassment) but also the use of bots etc. (Their objective) was to basically kill the discourse and also to discredit any voice which spoke in opposition to any of the policies or (even) just questioned the policies.

So that changed the environment to a place where anyone who said anything was always asked in India to go to Pakistan. I would love to go. Not because I think that is my native country but because I like to go to different countries and I like people from every place. But it started being used as, “Oh, if you don’t like this country, then go to another country.” Which is an immature way of responding to anything.

And of course the religious divides were also being exploited. But it mostly meant… (First of all), social media is not really a place to have nuanced discussions. We’ve all falsely believed that this has democratised our speech and this is now the place to have policy discussions so we think that 140 or 280 characters are enough to decide bigger, larger issues which we have not been able to solve in so many years. So that happens. The platforms love it. In fact, if it was not for the last year, year and a half, when the Western democracies woke up, no one would have taken it seriously.

India is a very interesting country for that matter. I was saying this long ago in DC that India will tell you what the rest of the world will do and everyone was like, “Ehhh, not interested. Do you know anything about China? Let’s talk about China.” Because the US is obsessed with China but it doesn’t understand that that’s not the only place where the new century is being written. And India, because it is a democracy, and (because) it has leap-frogged into embracing the cloud-to-mobile architecture in a very different way so it is almost like a petri dish of watching what will happen and we saw that happening in 2015-16 but nobody paid attention.

But then Mr. Trump came to power, and then obviously if something happens in America, their lives are more important than ours so it got attention.

What we watched (in India) was misinformation and online harassment… mostly by organized teams of one political party or the other, and that meant those tools were being used by those in power, who already have power… And I am not sure about other countries, but at least in India the mainstream media has stopped investing in investigative journalism. All they care about is yelling and screaming, (and having) discussions like FOX News on primetime… but they take their cues from what’s trending on Twitter or what’s happening on Facebook. Instead of going and digging stories on the ground, which is their job. When cacophony of the street starts to dictate the discourse of what will be discussed on primetime (TV) and what will next day be printed in the mainstream media, then the language of the street also starts percolating everywhere and proliferates how we talk, so the discourse level really came down and it became fine to dismiss press with profanity and terms not really worthy of any dignified way of communication.

Everything became a lot about what your affiliation is, which party you support, whether you are a man or a woman, what your personal preferences are, what you eat, what you drink, who you love, all the things that shouldn’t matter in an evidence-based policy discussion. I tweeted a few days ago, it was one of the most popular tweets I sent, I said if on Twitter you say something about the ruling party then you are an anti-national and if you say something about the opposition party, then you are a bhakt and nobody ever wants to talk about just the issue. I may not be affiliated with either of these parties and I may be interested in one issue particularly. But that does not happen.

Then of course there was WhatsApp. In 2016, there was a UP (Uttar Pradesh, a state in India) election, which is a very divisive election, and reports started coming out how WhatsApp had been used to actually form groups and do targeted messaging based on caste, based on region, and also using dialects from the regions.

If you were, for example, from Bundelkhand and if crop failures was your issue, so the messaging would be (designed to be) what appeals to your heart. There is a newspaper article (for which reporters) went about and interviewed people. They interviewed an auto rickshaw guy and he said he started receiving messages about his Muslim neighbour and he said he didn’t believe it because he had grown up with them. But if you keep receiving different messages, it doesn’t appeal to our conscious mind but it stays with your subconscious mind and you are like maybe they did it or not. Now, that is a very clever psychological way of playing. And then of course it (turned to) morphing of pictures and photoshopping, and everyone is confused now because you want to encourage private communications but you do not want all this stuff to be floating.

The companies have not been helpful at all. The companies have taken the developing world only to milk them for money and sales.

I will say most nonprofits, who work on digital rights issues based out of the US, have no idea what is important or what is not. All they care about always is free speech and expression in their context, so large nonprofits have done such a dis-service and I have no qualms about saying it that on the digital rights issue, Facebook (and) Google they bought everybody. Funding is fine, but they also lost their souls. So each time the Western nonprofits will come and teach us about how free speech and expression is so important, which we understand and we fight for in our countries, but if it leads to lynching, if it leads to real-life violence then you can’t have the same answers all the time, and can’t blow hot and cold in the same breath as they do. So we have all created this mess and… today we are here and we are paying a much higher price than we thought.

DRM: What are your demands from the social media platforms?

MC: I think the social media platforms are definitely waking up to the idea that life is not going to stay the same for everyone, so my demands are transparency about practices. Honest conversations. My demands are your policy should not be dictated from Menlo Park or Cupertino or wherever in the US. Every place has context. And the people they hire even in these countries (outside the US) are also living in some ivory towers of their own so they must get on ground and understand what the realities and context are.

The other thing is that they will have to rethink their business models. Surveillance capitalism is not something that humanity wants. People have realised this is not the Internet we want. We want to communicate with our family and friends; we want to share pictures; we like cat videos, and we like to use these tools for the betterment (of society). We are not going to sell ourselves and ruin our democracies which we have worked hundreds of years for, and we don’t want to keep fighting based on these divisions that are arbitrary and artificial. (The social media companies) cannot understand that they are a much more integral part of societies all over the world than they pretend to be.

So honest conversation, rethink your business model, stop selling our soul for everything. If you make a little less money, you are not going to be living on the streets. You are so smart, you built these (social media platforms), think about something else other than just advertising.

I do have a demand of the governments. People will not tolerate all of this for all times to come. Divisions, religion and caste, and nations and patriotism will only last a little while because at the end of it, people want to have food on the table, have the freedom to talk, love, eat, marry who they want to, and go about their business. And so if (the governments) are not going to be concentrating on actual issues, people will throw them out.


Editor’s note: The questions and answers have been edited for brevity and clarity.

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