Ajit Balakrishnan: Nation-states vs the Web - Part 2

Last Updated: Wed, Sep 19, 2012 19:46 hrs

Indian government officials charged with dealing with the Internet must be feeling relieved this week. Suddenly, they are not the only ones demanding that websites show forbearance in what they carry, and suddenly they are not the only ones seeking information from websites about people who post material.

Last Friday, Twitter was forced to hand over three months’ worth of postings by Malcolm Harris, a 23-year-old who was at the forefront of last year’s protests in New York against Wall Street firms — the “Occupy Wall Street” movement. Judge Matthew Sciarrino of the Criminal Court of New York had demanded these postings, saying in his order that “if you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy”. A tweet, he said, “is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the Internet that now exist”.

Last month, when the Indian government pressed US-based websites to remove content that could have inflamed public sentiment by spreading rumours about the exodus of Assam migrants from Bangalore and other cities, that request was widely interpreted in India as yet another example of government high-handedness with the media. Judge Sciarrino’s orders should give such interpreters food for thought.

Meanwhile, protests against the YouTube video seen as belittling Prophet Muhammad, which started out in Libya with the killing of the US ambassador and two embassy officials, continue unabated in Afghanistan, Bahrain, Bangladesh, East Jerusalem, Egypt, Indonesia, Iran, Iraq, Malaysia, Pakistan, Qatar, Syria, Turkey, the West Bank and Yemen, with US embassies being the target of this rage. This is accompanied by widespread calls in these countries that the offending video be removed.

Suddenly, it looks as if governments worldwide are struggling to deal with content on the Web. What is going on?

US-located internet sites have so far argued that the content uploaded on their sites belongs to the people who upload it, that the sites themselves are mere facilitators or intermediaries, and that blocking such content or turning over information about who posted such content to the authorities would amount to a breach of US laws that guarantee privacy to citizens. In taking this stand, they have been relying on the fact that international law, as written at present, keeps them beyond the reach of other national governments and law courts.

The Harris case, described above, may make a dent in this argument. Judge Sciarrino drew specific attention to differences between different types of information that come into play when a user posts content on an Internet site. “Content” information makes up “the substance, purport, or meaning of that communication”, but the act of posting also generates non-content information — logs about account usage and the mailer header that carries information about which email address the post originated from, IP addresses, browser type used and so on. The latter, according to Judge Sciarrino, is non-content information and may not be eligible to protection under privacy laws as they currently stand in the US. This view could pose interesting consequences for law-enforcement authorities, which usually covet such kind of information, particularly because people who post controversial content usually do so anonymously.

What is coming into sharp relief is that the media, all forms of it, has a love-hate relationship with the power elite. When the media reports things that favour the power establishment, it can count on their support; when its reporting turns the other way, the power elite will pressure it.

“Consider the following,” says the judge in his order against Twitter, “A man walks to his window, opens the window, and screams down to a young lady, ‘I’m sorry I hit you, please come back upstairs.’ At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’ Clearly the answer is relevant and the witness could be compelled to testify. Well, today, the street is an online, information superhighway, and the witnesses can be third-party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.”


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