India’s upcoming intermediary guidelines have become a key topic for global stakeholders, like Wikipedia and WhatsApp. Daphne Keller, the Director of Intermediary Liability at Stanford’s Center for Internet and Society and a former Associate General Counsel for Google, speaks to Karishma Mehrotra about how the trends in India’s technology legislation fit into a global picture.
How does India fare in your research and teaching on technology regulation?
India and a couple of other countries like Brazil and Argentina were world leaders in their sophistication while thinking about how the laws that regulate technology are in effect laws that regulate ordinary individuals in our everyday lives.
I teach my students about the Shreya Singhal vs. Union of India ruling. It is one of the four most important globally-leading cases about the question, ‘If the Constitution puts obligations on governments to protect citizen’s rights, how does that constraint the laws that the government can pass to regulate speech platforms?’ If governments are asking, how much can we just tell private companies to regulate speech, Shreya Singhal says the answer is not that much. It’s really important that government authorities regulate speech, and when they fail in their authority, they can’t pass the buck to private companies.
How does Shreya Singhal compare to the other cases?
On the one hand, the European cases come up against a backdrop of a relatively detailed legislative system. On the other, the Argentina case has no legislative backdrop. The court was forced to start from zero and build what it thought the rules for platform liability should be by reasoning from first principles. India is kind of in-between.
With the upcoming introduction of new liability rules in India, how are you seeing these questions change around the world at this moment?
I think it’s part of a global shift towards much more pessimism about internet technology. The result was that they took things that sound like solutions and they’ve written down very cursory ideas for public review. For example, making the platforms proactively monitor for bad things, and effectively breach encryption.
In India, the conversation is not just around takedown requests, but more about the government requests for information — which is also an aspect of the draft intermediary guidelines. How do these topics relate?
At a higher level, there is always a profound connection between privacy and free expression. When a government wants something to disappear, that’s usually also a moment when they want to know who is the person who said this. Takedown requests and data access requests or surveillance requests very much go together.
What are the technical ramifications of breaking encryption?
If you break encryption in order to let the government in, you are also creating a security vulnerability that lets the bad guys in. I don’t know of any technologists that think you can do one without the other.
What are your insights into how American MNC’s operate in India?
There is a question here of the ultimate motivations of market-driven companies. I think the key question is who has leverage over Facebook or Google or Twitter or Apple. If they want access to a particular market a very lucrative market, and that government says you can’t come into this market until you do x, y, or z, then we have to be realistic about the motivations that the companies have in that circumstance.
The most extreme example of that is if they want access to the market in China, what accommodations are they willing to make? You get examples like Apple’s Apple store taking out news apps or removing the Taiwanese flag from the emoji keyboard.
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