Imagine a makeshift stall peddling pirated CDs, DVDs and other mediums of music, movies and software. Now imagine a new law that tries to put the stall out of business by disrupting the transport service that takes people to the store, preventing the banks from processing the money that the stall owner tries to deposits and preventing the stall owner from using the stall for any other revenue generating work. Translate this into the online world and you get a rough idea of the scope of the “Stop Online Piracy Act” (SOPA) bill that was introduced in the US House of Representatives and the equivalent “PROTECT IP Act” (PIPA) bill that was introduced in the US Senate in late 2011.
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“India along with many other countries from the Middle East and Indonesia opposed the grant of the domain in the first place, and we would proceed to block the whole domain, as it goes against the IT Act and Indian laws,” said a senior official at the ministry of IT. “Though some people have said that segregation is better, and some countries allow it. But for other nations transmission and direct distribution of such content goes against their moral and culture,” he added.
There seems to be nothing official about the statement, other than that it was uttered by “a senior official at the ministry of IT” but it wouldn’t be surprising that this is indeed the stand of the ministry on this matter, especially if precedence is considered.
The Information Technology (Amendment) Act, 2008 that the official mentions, defines the prohibition on “lascivious” and “sexually explicit” in Chapter Paragraphs 67 and 67 A as:
67. Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description fora term which may extend to three years and with fine which may extend to five lakhrupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
67 A Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees andin the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
Not surprisingly, the Act does not define or clarify as to what constitutes transmission and publishing but what is interesting is that paragraph 69 provides the intermediaries (like ISPs) protection from liability (up to an extent) of the content it is carrying. This means that as long as the .xxx domains are hosted outside India, by organisations without a presence in India, there doesn’t seem to be any automatic way for the block to be set in place unless the provisions in paragraph 69 A are exercised by the government:
69A. (1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereigntyand integrity of India, defence of India, security of the State, friendly relations with foreignStates or public order or for preventing incitement to the commission of any cognizableoffence relating to above, it may subject to the provisions of sub-section (2), for reasons tobe recorded in writing, by order, direct any agency of the Government or intermediary toblock for access by the public or cause to be blocked for access by the public any informationgenerated, transmitted, received, stored or hosted in any computer resource.
Given that the most likely interpretation of paragraph 67 does not make it a crime to view (not transmit or publish) pornography online, the stage is set for a good tussle between the government and those who object to the moral policing by the government. Also interesting is the attitude of the government to non-.xxx domains that host pornographic material. The use of .xxx domains is voluntary and it is unlikely that pornographic content will be confined to the sTLD. So far the government has not actively blocked every pornographic content online, so a question that someone wanting to question the .xxx block could ask, is why they are being singled out.
Those who have been following the saga of the .xxx TLD application within ICANN would remember the warning provided by the Governmental Advisory Committee (GAC) of ICANN when they stated in their San Francisco Communique (pdf):
the GAC would like to inform the ICANN Board that an introduction of a .xxx TLD into the root might lead to steps taken by some governments to prohibit access to this TLD. The GAC therefore calls the Board’s attention to concerns expressed by experts that such steps bear a potential risk/threat to the universal resolvability and stability of the DNS.
The GAC must be doing the “We told you so!” dance. Blocking/filtering exists at various scales and at various levels though most do not happen at the DNS level. Given that blocking of the .xxx domain will most likely involve a DNS level block and the history of incorrectly implementing blocks and filters by Indian ISPs, it is not far-fetched to be alarmed that the stability of the DNS is threatened, as pointed out by the GAC. What would of course follow is a cat and mouse game between technically savvy users would try and consider ways to circumvent the block (there are several ways based on how the blockis implemented) and the government/ISPs that tries to prevent “depravation and corruption”.
Interesting times :)]]>