Global Perspectives: India’s Draconian New Digital Media Laws and the Responsibilities of U.S. Tech Companies

Brief # 49 – Technology

Global Perspectives:

India’s Draconian New Digital Media Laws and the Responsibilities of U.S. Tech Companies

By Scout Burchill

June 17, 2021

Policy Summary

In late May, the Indian government enacted sweeping new laws to regulate social media companies and digital platforms. The laws will require digital content providers, from Twitter and Facebook to Netflix and independent news organizations, to remove content that government authorities find objectionable within 36 hours of being flagged. This includes anything that threatens “the interests of the sovereignty of India,” and other vague signifiers such as morality, decency and incitement.

Tech companies must also appoint local representatives, called grievance officers, within the country to cooperate with government orders and respond to user complaints. Nicknamed the “hostage-taking law” by free expression advocates, this requirement can put employees in a dangerous position in which they are subjected to threats and even detainment and prosecution if they refuse to comply with government requests or hand over users’ personal information.

Another provision of the law requires companies to provide information about users to the Indian government, including from encrypted messaging applications like Whatsapp. This provision forces applications to keep track of the “first originator” of a message, even if it is widely shared or forwarded, so that authorities can track down the sources of speech they find objectionable. Whatsapp is currently waging a legal battle in Indian courts over this regulation.

Championing these new laws as “progressive” and “liberal,” government officials and allies argue that these new regulations are necessary in order to “curb misuse,” “combat fake news,” and make tech companies more “responsible and accountable.” These talking points clearly attempt to couch these draconian new measures in the language of a surging global tech backlash that is emerging within governments and societies around the world, and particularly in the United States and Europe.

Analysis

These new internet regulations are sure to produce a chilling effect on India’s democracy and are in lock step with the slow erosion of democratic rights in India and across the globe. India had already become an unrivaled world leader in internet shutdowns, particularly targeting the Kashmir region, which experienced the longest internet shutdown in any democracy ever two years ago. Still, these new laws pose a unique threat to global tech governance. As the largest democracy in the world and a massive market for tech companies, the consequences of these new regulations will ripple far and wide, educating and emboldening other would-be digital authoritarian states to take similar aggressive measures in order to crack down on dissent, target enemies and control civil society.

While these new regulations have been floating around for some time now, recent events have greatly exacerbated tensions between social media companies and the Modi government. In the past year alone, the protests of farmers against new agricultural laws and the government’s mismanagement of the pandemic has turned social media platforms into spaces where opposition voices have been outspoken and able to organize. Through social media, the farmer’s protest captured the attention of the world, gaining the support of celebrities like Rihanna and activists like Greta Thunberg. Social media also served as an important tool during the worst months of the pandemic, helping organizers track down critical medical supplies and allocate them to those most in need. The Modi government has not taken these challenges to its authority lightly. Tensions reached an all time high late last month when Indian police raided Twitter’s offices after the company labeled a member of the ruling party’s false allegations against an opposition party as manipulated media.

No platform better illustrates social media’s fall from grace in India than Twitter. In 2014, Modi announced his election victory first on Twitter, writing “India has won.” The Modi government was quick to integrate social media into its governing practices through various initiatives that lent a sense of immediacy and responsiveness to the new government’s interactions with citizens. Twitter also became weaponized by pro-government forces for much more nefarious purposes, co-opting it as a platform for trolling, manipulation and targeted harassment. Similar to the government sponsored troll armies in Turkey and Saudi Arabia, the Modi government built up its own cyber troops to coordinate trending topics, manufacture narratives, mobilize supporters and engage in targeted harassment campaigns against dissidents and journalists. However, Twitter, cutting both ways, was also harnessed by activists and others to voice opposition, expose corruption and state violence, air controversies and societal problems, and organize.

By 2018, Twitter had become an incredibly polarized and contested space even as its user base in India continued to grow. Jack Dorsey’s visit to India around the same time was the stuff of PR spokespeople’s nightmares. Dorsey met with Modi in a sweatshirt and sneakers, crossing his legs in a manner traditionally regarded as disrespectful, and later when meeting with feminist activists he was photographed holding a sign that read, “smash the brahmanical patriarchy,” a shot at both the entrenched patriarchial system as well as the caste system in India.

The controversies that engulfed Dorsey’s visit capture quite well the precarious position Twitter and other U.S. based tech companies find themselves in in foreign markets where democracy is on the decline. Eager to make everyone happy, they end up infuriating everyone instead. While activists demand that these companies stop amplifying misinformation, manipulation and violent threats, governments are increasingly pressuring them to work in service of their power by complying with more censorship requests, take down orders, and inquiries into private and personal information.

The truth is, tech companies want it both ways, too. They want access to massive markets all over the world, but they also don’t want to become censors and informants or political actors. Over the past few years this dynamic has played out time and time again, in which Twitter or some other platform refuses to comply with government orders, receives plaudits for their principled stance, holds out for a bit, but then ultimately caves to government pressure and profit losses. Recent reporting has revealed considerable infighting within Facebook over the company’s willingness to censor and suppress on behalf of foreign governments. This poses a difficult dilemma for both U.S. tech companies and potential models of good global tech governance.

As a preface to this issue, it’s important to dispel any illusions about the nature of these companies. They are first and foremost corporations and will unfailingly act in accordance with their corporate interests. However, as U.S. entities, often subsidized by taxpayer dollars and the U.S. government, perhaps we should start asking whether they should be held to higher standards of practice around the world. There are some obvious caveats to this question. The notion that U.S. companies should or could operate as principled actors and promoters of democratic values around the world is a naive one, especially given their track records abroad. Furthermore, defying democratically elected governments, even if they are acting undemocratically, is a serious infringement of a nation’s sovereignty. Despite the fact that U.S. corporate interests have not always been so stellar at respecting the sovereignty of other nations, openly defying democratically elected governments would be counter-productive, to say the least.

One possible, and admittedly idealistic, solution would be to establish a code of conduct that U.S. tech companies must abide by when policing speech online. Rather than bowing to local laws that suppress speech and invade privacy, perhaps social media companies should be compelled to abide by international standards of human rights and free expression wherever they operate. This would mean these companies would have to become a lot more transparent about the decisions they make and own up to the fact that they will be cut out of certain markets entirely. Unfortunately, as calls for more censorship, content moderation and tracking prevail in the United States, this may become an increasingly untenable position for the U.S to champion on the world stage.

Furthermore, the danger of this approach would be that governments refuse to allow these open, free spaces to operate in their country, resulting in fewer places where people can voice their opinions or dissatisfactions. The worldwide internet would become even more balkanized and fractured and in many places may even become a space completely controlled by government decrees. The moral upside, however, would be that U.S. companies would not be complicit in the oppression and censorship of people abroad. A pretty principled stance if there was any.

As a side note, any argument making the case that if American companies don’t censor and suppress, then a worse actor will, should be rejected outright. This notoriously disingenuous argument is almost always used to justify moral failings and corporate greed.

Another, perhaps more democratic and consensus based approach, would be to develop a multilateral framework of global digital rights and ethics. Democratic nations should lead the charge in formulating a model of global governance for online content moderation that ensures the internet remains an open and free place. They could promote this vision through international organizations and partnerships. Far be it from the United States or any other country to dictate what another society finds offensive, but companies and digital service providers should not be made complicit in perpetuating state violence, oppressing civil societies, and violating basic human rights and dignities. Far easier said than done, this would require America to wrestle with its own demons and rediscover its faith in free speech and open societies.

Engagement Resources

Article 19

https://www.article19.org/

Access Now

https://www.accessnow.org/

NGOs Fighting for Freedom of Expression Globally

https://globalfreedomofexpression.columbia.edu/non-governmental-organizations/

Resources:

India’s New Laws – Western Press

https://www.nytimes.com/2019/02/14/technology/india-internet-censorship.html

https://time.com/5946092/india-internet-rules-impact/

https://www.theguardian.com/world/2021/mar/11/wolf-in-watchdogs-clothing-indias-new-digital-media-laws-spark-censorship-fears