The Shreya Singh verdict from the Supreme Court was announced on the 24th of March 2015. It remains the foremost judgment for free speech on the Internet, even though some parts of it did not go our way. I say “our way” because some of us had spent years pushing back against Section 66A, and in court, I spent some time helping Senior Counsels understand the issues better. It was also, interestingly enough, a case which was being live tweeted by some lawyers, and including by J. Sai Deepak, who I had multiple conversations with about intermediary liability in court. I felt it was my case: I had almost become a petitioner, but instead, recommended my friend Faisal Farooqui to the Software Freedom Law Center, in my stead, because his organisation, Mouthshut, had received hundreds of takedown notices.
I remember walking out of Court number 1 of the Supreme Court after the verdict and feeling despondent. We may have had Section 66A (arrests for posts that were annoying, inconvenient or grossly offensive) taken down, but Section 79A (takedown of content upon notice) was only watered down, and Section 69A (secret blocking) remained protected. Raman and Apar were thrilled and talked some sense into me: a victory like this was unprecedented and significant. The judgment we got here today is one that can be used in free speech cases in the future.
That day (or the next) Sidin Vadukut, twitter star, author and columnist with Mint, and asked on twitter (now x) what the lessons were from the campaign. I had been preparing for the Net Neutrality campaign for almost 3 months, so I thought I’d write it down. Here’s the text of the email (with minor grammatical and typo errors fixed)
Subject: Learnings
Text: tldr: civil society orgs have it all wrong. need to get people involved.
*
Not specific to this case, but learnings from the last two years of watching how the policy space works
There are three levels of advocacy: politics, power and influence. This is in increasing order of perceived impact, decreasing order of credibility. Civil society members essentially focus on power: they create a position of power for themselves, and use perceived influence to push those in political positions to act. For example, an organization like ORF, SFLC or CIS will invite experts from across the globe to speak at small events they organize, invite people of importance in the audience, and through discussion, position themselves as a source of knowledge and connections with experts, to position themselves as experts. They will hold consultations, create research and white papers, and using their expertise, and connect with the media (who they invite for events), try and influence policy makers. They take the sniper approach: target the right people.
Two years ago, a week before the global IGF event in Baku, there were four events in Delhi in the space of a week. The same people, the same audience, the same conversations, the same panelists. They meet regularly. It’s an echo chamber.
In my opinion, this is useful, but likely to fail. Policy makers, given that they are likely to be influenced more by politicians, the industry, the press and people (social media), are likely to lean towards what impacts them the most: whether it is keeping their position of power, ensuring what keeps their paymasters happy, or what keeps the perception right. A few civil society organizations complaining will be seen as irritation, and can be ignored. These are people who will send them white papers, research reports and plead with them rationally about what is to be done.
What they can’t ignore, is people.
If you see how the judgment panned out, 66A was the only part that people cared about. They didn’t care censorship: about 79 and rules which allow takedowns and 69 which allows secret blocking. 66A was declared unconstitutional, 79 was written down, 69 was left as is. There are reasons, but the judges could have found reason to address 79 and 69 too. The massive public sentiment against 66A, reflected by reactions on social media and in the press put pressure on the government and the judiciary. Volume matters.
We worked on aggressively reporting Net Neutrality issues for three years. Nothing happened. Telcos spoke up about wanting to create interconnection charges and charge startups for allowing access to their apps. No one cared. It is when Airtel made VoIP costlier that there was a massive public outcry, there was pressure on TRAI to stop Airtel, pressure on Airtel to change the plan. Airtel brought people on board. We only explained to people why they were wrong, helped them understand. Now, when this goes to the TRAI for consultation, we are up against telecom operators and telco bodies who have been lobbying the TRAI for a year and a half. Telco CEO’s have met them several times, their execs meet the TRAI guys twice a week. TRAI’s policies often take the middle ground, and lean towards the telcos. On Net Neutrality, any middle ground is bad. It’s 8 powerful telcos versus people. My point is, while civil society organizations are taking a sniper approach, wouldn’t a shotgun approach be better? Once the TRAI opens up for submissions on net neutrality, if we can get 10,000 submissions from people like you and me, against 10 from telcos + telecom industry orgs, which way will the TRAI be forced to lean?
That’ll be an interesting experiment, and I’m already on it.
Now there’s some additional context needed here.
Firstly, the differential usage of power, politics and influence is something I learned in organisational dynamics in college in 2004, in terms of how groups and teams work in organisations. We had to do a group presentation on the usage of tactics in power, politics and influence, and their impact on recipients. Instead of applying it to a workplace situation, I took it to a public perception battle at the time that there was a split impending between the Ambani brothers and analysed the strategy behind their communication choices and the impact on how the media reported on it. The group went along with whatever I decided, and we titled it “Reliance and the Art of War”. This was not what the teacher had taught or expected, but I found out a year later that our presentation was being used in other colleges for teaching the concepts.
Secondly, I had being going for TRAI open house discussions since 2007: I knew how the consultation process works, how open house discussions were held, and having reported on, and participated in TRAI consultations, I knew the process. I knew that typically, there were 15-30 submissions to TRAI on most issues. The Internet, I hoped, could help us get to 10,000, so that the regulator understands what people want.
Thirdly, I had had this exact discussion around my frustration with how civil society organisations work, with Apar sometime in December. He had been working on a research project on Civil Society in India, and had interviewed me for it. As you can imagine, I was frustrated that Civil Society orgs didn’t do enough around issues of 66A, 79A and 69A even at that time. I didn’t realise then that they’re built for research, not advocacy, and that research is, in many cases, a weak form of advocacy.
This understanding helped me formulate some of the plans for the Internet Freedom Foundation later.
At that time, though, I didn’t know that there was mayhem just around the corner. The TRAI consultation would begin in a matter of days, not weeks.