The #TikTokBan : A Few Thoughts

With the disclaimer that I don't & have never used the app, #TikTokBan seems worrying to me not least because I haven't seen anyone establish a clear correlation between a ban & countering child abuse, the desire to do which prompted the ban, unless I'm mistaken.

There definitely are problems with evidence-based policy https://t.co/uK8yAQsQSp but if you're arguing for something like #TikTokBan on the basis that it'd help counter child porn, perhaps ask how and why and what makes a specific app suitable for being so banned but not other apps.

The trouble with porn-related regulation is that although there are forms of porn that are clearly morally & legally indefensible, pushing them off easily-accessible platforms doesn't necessarily get rid of the porn itself. It makes it less visible: out of sight and out of mind.

Making it out of sight is not always the best way to counter indefensible porn. The worst abusers will find ways to access it & making the porn publicly-invisible can also push those who feature in it to the fringes of public consciousness. In the case of child porn: abused kids.

Maybe there is good reason for a #TikTokban. The arguments in favour I've seen so far seem to stem from a visceral and entirely understandable desire to make child porn disappear. But making it disappear from an app or making the app itself disappear may not be enough to protect kids.

It is hard to protect children. It is even harder to protect children who are not visible to the public.

We need to ask more questions about what the best course of action is, and whether a ban like #TikTokBan is appropriate given that it may not protect abused children and definitely has free speech implications.

And, then, of course, there is the argument that children are being or could be targeted as consumers of porn. Which takes one down a rabbithole trying to negotiate what is and isn't appropriate. And legal. Here too it's worth asking: who's affected? How? Where's the evidence?

We've gone down this road many times trying to ban porn. Claiming that we're protecting children. Claiming that we're countering violence against women. Remember the 857-site ban? https://t.co/zBSBrum4QW We've asked questions. Just not always the right ones. And not  enough.

This isn't about any specific case or app or technology in isolation. It's about its being high time we started interrogating who exactly we're trying to protect with porn bans, how we're going about it, and whether bans have their intended effect.

If there's anyone who deserves protection when it comes to porn, it's those who feature in it -- children and adults -- and those who are exposed to it as children.

The #TikTokban discussion will ebb soon enough. The issues it raises will however remain.

(Edited and cross-posted from Twitter.)

[Link] The Cumulative Effect of Recent Internet Regulation

My colleague, Sidharth Chopra, and I write about recent regulatory measures in light of how 'combination of social control and economic protectionism could assist in keeping the citizens in check by chilling speech and encouraging self-censorship'.

Pro-protectionist arguments for Internet regulation, particularly from Indian industry, can seem reasonable at first glance. Unfortunately, in their fine print, these arguments often say less about “Indians benefitting” than they do about “keeping non-Indians out” which, of course, assumes, without any demonstrable basis, that threats to Indians primarily come from beyond the country’s borders.
Such arguments are, essentially, the result of real-world fallacies being transposed on to the digital realm completely oblivious not only of how interconnected the world now is to everyone’s benefit, and but also oblivious of what most threatens individual Indians: the invasion of privacy and the impingement of free speech. Issues and not actors.
[....]
Purely commercial considerations aside, the worldview from which advocacy for such enhanced regulation emerges is, at best, insular and, at worst, xenophobic. It isn’t at all surprising that its expression is often accompanied by articulations of nationalism. After all, insularity and nationalism tend to complement each other.
[....]
What is at stake here is not just a decision as to the viability of a set of soporific rules but a decision as to the kind of society we want to continue as. Whether we aim for social control and perhaps homogenisation, or whether we continue to celebrate the plurality and freedom embedded in the Constitution. We have a choice to make and we would do well not to make it lightly, or to allow it to be made for us while we look away.

This article was published at Medianama on February 11, 2019, and at Bar and Bench on February 12, 2019.

(This post is by Nandita Saikia and was first published at IN Content Law.)

[Note] On Relying on the Constitutionalism and Institutions...

We didn't hear as much about constitutional law(yers) even a few years ago because we had relative stability. That was a good thing. Constitutional law is not meant to be a spectacle: it's stodgy and you don't ordinarily look at it closely except when things go wrong.

It's been in focus in recent years. Not just in India but across vast swathes of the world. Not coz we're negotiating the creation of a better world. But coz we're exploring the limits of power. We're testing whether checks and balances work; we're finding they don't always.

So many of us had faith or hope that institutions backed by constitutions would uphold law and establish fairness. So that we'd not be saying #neveragain once more. That hope has largely failed us.

The rule of law, we're having to learn once again, may mean nothing when the law is flawed, when institutions fail... And institutions can fail not just because of those who people them but because they apply the rule of law.

There are no easy answers to constitutional issues or institutional problems. There shouldn't be quick fixes... they're invariably bad fixes.

Not everything is meant to be a breaking-news ticker. Not everything has a single-point solution as sections of the media would seemingly have us believe. Neither the law nor an institution alone can or will be a saviour.

We need nuance, and we need to be able to acknowledge and engage with complexity. Now more than ever.

We are endlessly told that due process is important as is the rule of law, and it’s true that they’re important. What’s also important is to ask what constitutes the rule of law, who frames laws, how… 

Whatever comes next, if the promise of the Constitution is to be upheld, it is imperative that legal processes be devised keeping the most vulnerable in mind and ensuring that they are not sidelined or marginalised. 

There has never been any doubt that the rule of law can create social structures and impart certainty in social relations but it doesn’t follow that such structures should be created or that they are justifiable. .... Social order is not always social justice. 

...as I've argued not so long ago in relation to the historical baggage of 'due process' and the asymmetries which privilege generates.

For adulation of legal process, the rule of law, & the grid of institutions which form the constitutional framework of the state to make sense, we must critically assess how they work & how power is distributed.

So far, we've spectacularly failed to engage with such issues.

Fin

(This post is by Nandita Saikia and has been cross-posted from SocMed.)