18 February 2019

[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.)

11 February 2019

[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.


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

7 January 2019

[Link] State Intervention in the Development of Digital India

Sidharth Chopra and I write about the role of the State in shaping how eCommerce and communications via new technologies operate:

Controlling people or ideas or goods is no longer as easy as it once was. That does not mean that control is not required: we know all too well that people can organise themselves into a lynch mob using modern technology just as easily as they can organise themselves into a friendly neighbourhood yoga club. Technology tends to be agnostic to the motivations of its users, and once it is publicly available, to try to suppress its use is a fool’s errand. 
This is not a question of one’s political affiliations but a question of what one wants the structure of the state to look like. The modern nation-state has, since its inception, been geared to control flows of people, ideas, goods, and capital. Technology challenges state control. Nonetheless, if the aim is to facilitate the emergence of Digital India, we would do well to focus on arresting the potential problems technology creates without erecting regulatory barriers which would hamper the development of technology and the progress attendant to it.

The entire article was published at Bar and Bench [update] and republished by Medianama.


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