Above: Photo by Anil Shakya
Though the Supreme Court has okayed proposals to check online sexual abuse of women and children, internet giants have been casual in implementing them
Hopelessly irresponsible.” “Everything is money.” “Are you mouthpieces of your clients or citizens of this country?” “You are trying to make a fool of everybody.” “You can’t put the people of this country to ransom.” “We are not at your mercy.” “Your government is doing nothing, you just have meeting after meeting, while people are getting lynched; nobody seems to be bothered.” “Let it happen, as long as it doesn’t happen to me, it is all right seems to be your attitude.”
These words of Justice Madan B Lokur of the Supreme Court on July 27 are, to many regulars in his Court, nothing more than clichés. But for those seeking to understand the anguish of the judge uttering these words, they underline the exasperation of the judiciary in bringing about much-needed regulation of the internet and social media which are playing havoc with India’s social and moral fabric. The sense of urgency and the deadlines are understandable as Justice Lokur will be retiring on December 30 this year, before which he wants to ensure that his judicial initiatives bear some results.
On February 18, 2015, a bench comprising Justices Lokur and UU Lalit, popularly known as the Social Justice bench, received a letter from Prajwala, an NGO, about videos of sexual violence being circulated in abundance. After hearing the counsel for the parties, the Supreme Court passed an order on March 22, 2017, constituting a committee to assist and advise it on the feasibility of ensuring that videos depicting rape, gangrape and child pornography (CP) were not available for circulation. This was to protect the identity and reputation of the victims and also because circulation of such videos cannot be in public interest.
A 20-member committee comprising various stakeholders was constituted under the chairmanship of Dr Ajay Kumar, then additional secretary, ministry of electronics and information technology. The stakeholders included representatives of Facebook, Google, Yahoo, Microsoft, and WhatsApp. The committee commenced its proceedings on April 5 last year and met on a day-to-day basis. It sought the advice of experts, who made presentations. Susie Hargreaves, CEO, and Fred Langford, deputy CEO, Internet Watch Foundation, UK; Professor Venkatesh Babu, IISc, Bengaluru; John Shehan, National Center for Missing and Exploited Children, US; and Atul Kabra, security expert, FireEye, Bengaluru, were some of the experts it consulted. It also received inputs from experts in other countries.
After a threadbare discussion, a comprehensive report was submitted to the Court by the committee in two volumes. All the parties before the Committee agreed on certain recommendations based on proposals made during the deliberations. These proposals were quite elaborate (see box).
On January 8, the Court noted in its order that an online cyber crime reporting portal had been developed with the access name www.cyberpolice.gov.in and that this was undergoing a security audit and testing and trial. The Court expected that it would be operational soon. “Certain features will be made operational by January 10, 2018, and offered to public such as anonymous reporting of CP/rape/gang rape content and online registration of cyber complaints which will be forwarded to the concerned state/UT police authorities for appropriate action,” the Court said, quoting the centre’s submission.
Tightening the noose
On March 22, 2017, the Supreme Court passed an order constituting a committee to assist it on the feasibility of ensuring that videos of sexual violence were not available for circulation. The stakeholders included representatives of Facebook, Google, Yahoo, Microsoft, and WhatsApp. These were its proposals:
- Search engines should expand the list of key words which may possibly be used by a user to search for child pornography (text message shorthand for CP) content. The words should also be in Indian languages.
- They should be expanded to cover RGR content (text message shorthand for rape and gang rape).
- Mechanism should be created for reporting and maintenance of data in India.
- There is a need to create a Central Reporting Mechanism (India’s hotline portal), as in other countries like the US, with NCMEC. Any person/organisation should be able to report any CP and RGR content in India with ease with a provision for anonymous reporting.
- A hash bank for RGR content should be created (under the charge and control of the ministry of home affairs, Government of India, or through authorities or NGOs authorised by it).
- The centre is to formulate parameters for identifying RGR content to ensure expeditious identification and removal.
- A reporting mechanism must be created at a central level, preferably with the CBI, to also receive information of any CP/RGR content being circulated in social media or any other platform over the internet.
- The cell will regularly engage with represented companies and the NCMEC for upgradation of technology, technical support, and so on.
- Technology similar to Project Arachnid, a web crawler developed by the Canadian Centre for Child Protection, should be availed of for identifying India-based CP and RGR content. (Project Arachnid helped reduce online availability of child sexual abuse material. It detects images and videos based on confirmed digital fingerprints of illegal content. When such material is identified, a notice is sent to the hosting provider to request its immediate removal.)
- Content hosting platforms, search engines and the centre are to work together in formulating a process for identifying and initiating a take-down of all CP/RGR content.
- A sub-project to be created within Project CCPWC (Cyber Crime Prevention against Women and Children) for eliminating CP/RGR to undertake the following: An online portal proposed to provide for anonymous reporting of CP/RGR; a separate hotline for reporting identified CP/RGR content; centre to authorise specific authority for receiving complaints of CP/RGR online and for initiating action within specified timelines; authority to also have specified processes for intimating police stations for registration of FIR and prosecutions; a team to immediately verify such tips and issue directions to service providers for removal of such content; it is recommended that this be handled by the CBI and not by the local police; centre to create tipper list of NGOs.
- Creation of infrastructure/ training/ awareness building: centre to form regulations for reporting of identified CP/RGR imagery online. Internet companies should provide technical support and assist in capacity building of the relevant agencies, including law enforcement and NGOs through a series of training on online crime investigation; centre to allocate funds for this purpose; centre/CHPs/search engines to create awareness for judiciary, prosecutors and law enforcement authorities; centre to set up processes for expeditious initiation of prosecution against users for identified CP/RGR content; identify rogue sites by an independent agency and block these sites. To prevent the circulation of such imagery, the government can block any additional sites/ applications if they do not remove such content on their own.
Certain other features were likely to be made operational by February 10 on providing status update of complaints to registered complainants, portal access to other stakeholders willing to register for providing inputs on CP/rape/gangrape content and maintaining the hashtag of obscene content, the Court noted in its order. It also said that Facebook was developing or has developed a new “proactive detection” technology for real time screening through artificial intelligence. Facebook was asked to file an affidavit in this regard.
On April 16, the Court required Yahoo, Facebook Ireland, Facebook India, Google India, Google Inc., Microsoft and WhatsApp to let it know the progress made pursuant to the recommendations accepted by these entities as mentioned in the report. None of these entities filed anything in this regard nor were they ready with any response.
For much of 2017-18, the hearings in the case were held in-camera by the Court in deference to the pleas of the parties, as they were debating the proposals submitted and agreed to by them. Since July, the hearings are once again open to the public so that it acts as a check on the parties, who continue to defy the Court-imposed deadlines for compliance with its orders.
On July 27, the inaction of these internet giants so irked the Court that it told them that for each day of non-compliance, it proposed to impose a fine of Rs 5 lakh on them individually. The Court had already imposed a fine of Rs 1 lakh on each of them for delay in filing affidavits. This forced the companies to assure the bench that the proposals would be complied with in letter and spirit within 30 days.
“We expect the ministry of home affairs of the Government of India to ensure compliance including any steps that are required to be taken by the Government of India,” the bench underlined in its order. Hearing of the case will resume on August 27 and all eyes will be on the Court.