Today, Indians depend on the internet to receive government salaries, get grants, and find gig work. Moreover, the internet is a panacea for self-expression and access to knowledge for under-represented communities. These are not new assertions, but they are worth reemphasizing as the future regulatory guardrails for the internet will have unprecedented impacts on all sectors of society. While government efforts to make the internet open, trustworthy, accountable, and secure are noteworthy, rules need to be clearly objective, crafted after broad consultation, and in the public interest.
Clear goals and strong public hearings
Tech policy solutions are sometimes devised as a quick response to identified or presumed harms, but are often divorced from clear goals. This is exemplified by recent attempts by governments to regulate generative AI models. The Ministry of Information Technology’s AI advisory required technology companies to seek government permission before deploying “untested or untrusted” AI products, but was later revised to remove this requirement following backlash from the industry. The revised advisory also mandated watermarking of AI-generated content to address concerns around deepfakes. Watermarking AI content has been accepted as an ineffective solution to the problem. The process did not consult affected stakeholders, and the government has yet to articulate concerns raised by companies and civil society. If one of the goals of the advisory was to address deepfakes online, it has failed.
Similarly, in a proceeding currently pending before the Bombay High Court, the government has amended rules to make it mandatory for online platforms to remove content marked as misinformation by a government-appointed fact-checking unit. After the High Court refused to grant an interim stay on setting up of the fact-checking unit, the Supreme Court, on appeal, stayed the measure citing its impact on free speech online. Despite the amendment’s adverse impact on free speech, the government has argued in court hearings that such measures are essential to combat harmful misinformation without considering more effective measures such as countering misinformation with counter-speech or issuing government clarifications. Setting clear objectives and considering multiple approaches to solve specific challenges would lead to robust and forward-looking policymaking.
Regulations cannot serve their intended purpose without a thorough understanding of the subject matter. Pre-legislative consultation and stakeholder feedback can help bridge this gap. Recently, there has been a lack of transparent public hearings for the drafting and presentation of bills in Parliament. Consultations in policymaking are essential to address the prevailing information asymmetry among stakeholders. Stakeholder views need to be collected and synthesized in a report or white paper and made public to enable their engagement in the legislative and policy process.
Recent consultation activities on the Data Protection Act, Internet Platform Regulation and the Digital Competition Bill have been mired in opacity. Stakeholders’ views and identities have not been disclosed, and meetings with industry and civil society have typically been invitation-only. This erodes trust and weakens accountability. A credible strategy for tech regulation must be built on robust public consultation practices.
In the public interest
As technology impacts different strata of society, it is crucial that technology policies are aligned with the public interest. Welfare schemes may be geared towards the public interest, but they still do not serve the public interest. For example, in 2020, the government made the use of contact tracing app Aarogya Setu mandatory across the board during the pandemic despite raising a number of concerns including effectiveness, data privacy, and consent. In response to the concerns raised, the government issued a protocol in the form of an executive order containing guidelines for data processing and sharing, without prior consultation, explanation, or legislative backing.
As another example, India’s recently enacted Data Protection Act did not include a standard exemption to protect the activities of journalism organizations from claims of arbitrary privacy violations. The government has not said why such a provision, which was included in earlier drafts, was removed from the law. Balancing journalistic speech with privacy considerations is an important public interest issue that merits statutory intervention. Similarly, rules requiring services such as WhatsApp to be able to trace messages to their original senders are not only contrary to citizens’ general privacy rights, but, as several observers have noted, are also unenforceable due to WhatsApp’s well-established end-to-end encryption. Governments need to explain why such policy measures are essential to achieve their intended goals and are preferable to alternative measures that are less intrusive.
Recent reports suggest that the Ministry of Information and Broadcasting (MIB) has proposed to bring “professional content creators” under the ambit of the Broadcasting Services (Regulation) Bill. However, there is no clarity on how this category will be defined and qualified. Concerns have been raised about the impact of such regulation on freedom of speech and diversity of viewpoints, which will have a direct impact on public interest.
Conclusion
India’s presidency of the G20 has helped the world recognise the country as a leader in technology deployment and innovation. However, policy decisions that are not firmly rooted in the public interest will create an insecure digital ecosystem, stifle innovation and discourage private investment. Trust and accountability will help build better regulation and a safer online user experience. The government must invest in building relationships with civil society, academia and experts. To position India as a global leader, especially in the global south, the new government must outline clear objectives, engage in inclusive consultations and put the public interest first.
