Time to reassess what is good, what is bad, and what is ugly about India’s tech regulation Three sets of issues emerge here – understanding the nature of technology-linked risks, assessing the challenges to governance, and being imaginative in embracing new modes of regulation.
The emergence of new technologies has digitalised markets, societies and nations. Once perceived as a strength, this proliferation of technology is now also a vulnerability. It has made tech-governance more political and social, and less about the traditional modes of regulation such as permissions, standards and tariffs.
India is among the most technology adept nations, a function of its people’s comfort with IT products and services as well as its late-mover advantage. It must now engage with a spectrum of evolving needs around law and regulation. This is necessary to accelerate population-scale opportunities and address widespread risks.
Three sets of issues emerge here – understanding the nature of technology-linked risks; assessing the challenges to governance; and being imaginative in embracing new modes of regulation.
Three sets of issues emerge here – understanding the nature of technology-linked risks, assessing the challenges to governance, and being imaginative in embracing new modes of regulation.
Improved access is credited with enabling financial inclusion, efficiency in education and healthcare, and fostering local e-commerce as well as global trade. However, a large user base is also a double-edged sword. As a result, corrective interventions need to be nimble and at digital velocity and population scale. Legacy regulation is simply ineffective.
This is best illustrated by problems plaguing social media platforms. A 2021 study found a high rate of social media misinformation in India, and attributed this in part to the country’s higher Internet penetration rate, driven by smart phones. Between June-July 2021 alone, Facebook received 1,504 user complaints in India – with a significant proportion of these related to bullying, harassment or sexually inappropriate content. Concerns are also emerging across other digital ecosystems, such as online gambling and crypto-assets. The mobile phone is a communication device, a crime scene and also an unsafe personal space.
Several state-level laws regulate or entirely prohibit betting and gambling. However, research suggests India is among the top five countries in terms of income potential from online gambling, and that the domestic online casino market may grow by 22 per cent each year. People from several states, such as Maharashtra, Telangana and Karnataka, are among the most frequent visitors to online gambling websites. The market for illegal betting and gambling in India is highly lucrative, with some estimating its value at USD 150 billion.
Offshore gambling websites often channel black money, engage in illicit transactions and launder wealth through financial intermediaries. Their operators are invariably based outside India, which makes it difficult to enforce the writ of the state. Recent investigations by bodies like the Enforcement Directorate have revealed instances of locals being hired to open bank accounts and trade through various online wallets, revealing gaps in due diligence mechanisms.
For the digital economy to flourish, it is important to evolve approaches that help resolve systemic and structural risks. It is time to reassess what is good, what is bad and what is ugly in this new digital landscape. Online gaming and online gambling must not be conflated. Similarly blockchain and sensible DeFi must not be clubbed with predatory crypto-gaming. After all, if we don’t embrace disruptive technology markets through sensible regulation, others will. A failure to capitalise may see India lose key avenues for economic growth and investment. India risk environment will then be shaped by external jurisdictions, some inimical to the country.
For instance, there are approximately 15 million crypto-asset investors in India, with total holdings of INR 400 billion. However, the regulatory and policy uncertainty has compelled crypto-asset entrepreneurs and exchanges to look to operate in more favourable markets. Exchanges such as Cryptokart, Koinex and ZebPay have exited the Indian market. ZebPay, for instance, is now headquartered in Singapore. In late 2021, many crypto-asset founders in India were considering moving their businesses to either the UAE or Singapore.
What we need today is new thinking and a new imagination of the digital world as not merely a virtual extension of the real, but an entirely different paradigm.
By banning cryptocurrencies altogether, nations such as China have missed the bus. India must leverage its position as the world’s third-fastest growing technology hub and seize the opportunity created by Beijing’s command and control ethos that is antithetical to innovation. India can and should become a global norms shaper in tech.
Tech regulation at population scale is akin to writing a new constitution for a digital nation. What we need today is new thinking and a new imagination of the digital world as not merely a virtual extension of the real, but an entirely different paradigm. There needs to be a clear-eyed understanding of what is legal, what is illegal and what may be illegal and yet requires regulations to serve and protect users and citizens.
To use a real-world analogy, since the 1990s, many countries including India have consistently distributed condoms and undertook safety campaigns among sex-workers without legalising prostitution or made available safe syringes to drug users without legalising the act. For governments and regulators, the role is no longer one of a gatekeeper that has the ability to prevent or permit activities online; it is becoming more of an ecosystem shaper and reducer of public bads.
By taxing cryptocurrency assets but not recognising these as legal tender, India has shown some welcome flexibility. It would do well to retain this nimbleness and become a co-curator of relatively safe tech platforms, services and products of the future that respond to Indian jurisdiction rather that off-shore the production of risks along with the rewards.
In the third decade of the twenty-first century, democracies face a new adversary — technology. Technology was once seen as a force for good, which could bridge the gap between the state and restless streets. Today, owned and controlled by large enterprises and extra-territorial governments, that very technology sometimes undermines the foundations of democracy, where it functions as a public sphere and a vibrant information exchange.
Much of the world has blearily woken up to big tech’s ambitions, expansion and unaccountable power to shape the human condition. A few companies, dotted on America’s West Coast (henceforth referred to as big tech), now possess the ability to harness the digital gold rush — along with the equally overwhelming influence on discourse in democratic societies. In parallel, a rising China, with its rapid successes in building a vibrant technology ecosystem, has unleashed plans to dominate innovation, high technology and the global perceptions ecosystem (henceforth referred to as red tech).
Technology from the West Coast of the United States and technology that seeks to serve the Chinese Communist Party (CCP) have both chosen to pursue their defined objectives with little thought for constitutional systems and laws in third countries. As such, much of the democratic world is at risk of being caught in the vice-like grip of big tech and red tech. It is, therefore, time for democratic societies to discover and examine means to secure an open and free global technological ecosystem that serves all shades of democracy.
Technology from the West Coast of the United States and technology that seeks to serve the Chinese Communist Party (CCP) have both chosen to pursue their defined objectives with little thought for constitutional systems and laws in third countries.
Why the Battle for Tech Matters
The threat that big tech poses to democracy is multifaceted. First, major social media platforms — Twitter, Facebook, Google and others — curate, promote and curtail information received by and, indeed, even the opinions of citizens in democratic societies. This power over speech and expression, and therefore over our politics and polity, is unrivalled in history (Baer and Chin 2021). While US steel, big oil and big tobacco were brought to heel by domestic regulations and national governments, the transnational reach of big tech has made it much harder to circumscribe (Lago 2021).
Operating outside rules and regulations prescribed by sovereign constitutions, social media platforms now exercise a worrying level of influence without accountability. Big tech has deplatformed controversial political figures such as Donald Trump (Byers 2021); censored content, a decision that internal ombudsmen disagree with (Eidelman and Ruane 2021); and has encouraged an engagement-based content ranking system that has allowed everything from disinformation about coronavirus disease 2019 (COVID-19) to hate speech to spread (Harris 2021). Platforms are free to decide whether they function as private hosting platforms or providers of a vital public utility; they cannot be both. Yet, they pick and choose between the two functions as it suits them.
National governments have not been asleep at the wheel. From New Delhi to Canberra, they have tabled regulations to rein in social media behemoths. In every instance, platform enterprises have chosen to obstruct, obfuscate and outmanoeuvre regulatory efforts (Clayton 2021). Left unregulated, our digital commons may become a noxious space that suffocates democracy, rather than being the promised breath of fresh air.
The future of democratic societies will also be decided by the contest with China in high technology. This competition runs deeper than China’s desire to build “national champions” that can outcompete the Googles and Apples of the world. To Beijing, China’s technology capabilities directly serve interests, ideologies and inclinations of the CCP (Tyagi 2021). Even as the Great Firewall of China allows the CCP monopoly control over ideas and over truth among its own citizens, China’s ever-increasing reach and economic expansion provides the party the ability to pervert and undermine the public sphere of other nations.
Platforms are free to decide whether they function as private hosting platforms or providers of a vital public utility; they cannot be both.
From harnessing artificial intelligence (AI) in the form of facial recognition technologies to vastly expand its citizen surveillance system (Davies 2021) to deploying those very capabilities against Uighur minorities in Xinjiang (Mozur 2019), the CCP will not shy away from deploying tech to reinforce strict authoritarian control at home. Overseas, “wolf warriors” (Martin 2021) insert themselves into every global debate of consequence and Chinese money power prevents Western media or social media from acting against such insidious and troubling participation that aggravates cleavages in other societies.
As China’s economic influence and technological capabilities have grown, it has sought to influence and manipulate global publics. China’s official media, governmental entities and diplomats have leveraged open platforms such as Twitter to peddle disinformation on the origins of COVID-19 (Associated Press 2021). China’s influence operations have also extended to election interference in Taiwan (Kurlantzick 2019), and they are increasingly inserting themselves in other countries as well. According to Freedom House, China has used its technological capabilities, in tandem with its economic and political power, to launch a massive influence operation that is gaming democracies from the inside out (Cook 2020).
Red tech is clearly an extension of the CCP’s global ambitions. For example, global standards bodies and multilateral organizations have been flooded with standards proposals by Chinese tech firms that would enshrine CCP values into the fundamental architecture of the internet (Gargeyas 2021). At the United Nations, Huawei and other Chinese state-owned enterprises have led advocacy for a “New IP” to replace the existing TCP/IP (Transmission Control Protocol/Internet Protocol) structure of the internet (Gross and Murgia 2020). Industry analysts have expressed concern that this new structure, with inbuilt controls that would allow for vastly increased governmental interference, is fundamentally at odds with the open internet of today.
According to Freedom House, China has used its technological capabilities, in tandem with its economic and political power, to launch a massive influence operation that is gaming democracies from the inside out (Cook 2020).
The ascendance of Chinese standards and tech also worries global actors for other reasons. While the United States and the European Union have enabled the creation of penetrated and argumentative democracies — wherein all countries and civil society organizations can advocate for the regulation of big tech or the promulgation of General Data Protection Regulation (GDPR) standards — China has no equivalent political structure. In fact, China’s intemperate wolf warrior diplomacy, which has precipitated clashes with Australia (Ryan 2020), Sweden (BBC News 2018) and France (Seibt 2021), among others, demonstrates that China has little tolerance for dissenting views or for reciprocal tolerance of criticism.
The Regulatory Void
Despite the high stakes and clear threat, regulation has failed to keep up. Major powers have not come to the fundamental realization that regulations must be both political and functional. Technology regulations driven by industry may have prized functionality, but both big tech’s subversion of regular constitutional processes and democratic debate as well as red tech’s brazen advancement of the CCP’s agenda demand regulation to recognize and return to its political roots.
Part of the reluctance to commit to a more political vision of regulation stems from overdependence on a China that dominates major global economies and the tech innovation ecosystem (Pletka and Scissors 2020). Given the massive size of the Chinese market, its capable and growing technology product and service lines, and Beijing’s willingness to use market access as leverage, many dither in enforcing regulations that exclude Chinese technology from specific sectors and functions. Others feel that government interference and politicization in regulatory matters could result in the fracturing of the global tech innovation ecosystem altogether (Schneider-Petsinger et al. 2019).
Technology regulations driven by industry may have prized functionality, but both big tech’s subversion of regular constitutional processes and democratic debate as well as red tech’s brazen advancement of the CCP’s agenda demand regulation to recognize and return to its political roots.
However, the return to more political regulation to oversee technology in the days ahead is inevitable. Simply, it is part of a well-established historical cycle. As Caetano Penna (2022) points out, every technological revolution has generated cycles of exuberance that leave contemporary social forces and political institutions in disarray. Only later does society mobilize to reshape institutions to suit a new era. Such regulation in service of societal goals has always been a key determinant in the evolution of industrialized societies. The spread of communication technologies in the boom from the 1980s to 2008 represented a cycle of exuberance. Today, however, technology possesses the power to fundamentally remake, disrupt and destabilize societies. AI-enabled machines threaten to put millions out of work and social media platforms, with a little Chinese help, have the potential to undermine democracies.
What Does a More Political Vision Look Like?
States, civil societies and general publics will have to take back control of the conversation over technology from tech companies. Part of this process will be nationally led and the rest multilateral. Domestic polities need to debate and hammer out a national consensus on some key issues, including on whether to enshrine privacy as a fundamental right. Assuming privacy is guaranteed, what level of privacy would suit their purposes? Who should own and have access to data? Who decides, and through what process, whether particular ideologies and groups should have access to the public commons?
In parts of the world where this debate is ongoing, robust data protection and privacy laws have been framed. While Canada now holds major tech platforms to the same transparency standards as traditional broadcasting groups (Solomun, Polataiko and Hayes 2021), Australia (Choudhury 2021) and India (Saran 2021) have adopted more stringent social media rules aimed at forcing big tech to comply with national-level regulations and directives on content. Nations would also have to debate the merits and benefits of the existing open internet model versus competing visions such as China’s New IP proposal. Each of these decisions would require clear choices by citizens who have, thus far, been excluded from conversations by governing elites and technology companies.
Domestic polities need to debate and hammer out a national consensus on some key issues, including on whether to enshrine privacy as a fundamental right.
At the multilateral level, bringing politics back into regulation will help safeguard data and democracies. An excellent example of political regulation is the European GDPR data architecture. Even firms outside the European Union that provide services to EU citizens find themselves subject to the European Union’s fundamentally political vision of privacy for its citizens (Nadeau 2020). The GDPR has also allowed for another political choice: flows of data will be free within the European Union but will be subject to protections upon leaving its borders.1 In effect, the European Union has erected a robust regime of protection that privileges countries that share a similar vision of privacy and data protection.
The European Union’s economic, political and normative leverage, popularized through the “Brussels effect,” has effectively forced other regimes to make way for it, with numerous countries enacting similar procedures. As such, the European experience in norms and standards setting is useful. Countries that share similar political visions of internet governance, disinformation and other aspects of technology policy can come together multilaterally to make the vision prevail globally. And disruptive players such as China, still new to the standards game, must make their peace with liberal democratic norms — or risk being left out in the cold.
Robert Fay suggests key digital powers come together to form a multilateral body, the Digital Stability Board (DSB), which would enact digital policy in much the same way that the Financial Stability Board helps design and monitor the implementation of key financial policies while assessing risks and vulnerabilities in the global financial system (Emanuele 2021). A DSB would lead discussion on regulating data value chains, countering misinformation and the development of cutting-edge technologies such as AI (ibid.). Given the transnational nature of the challenge posed by big tech’s dominance, a forum such as the DSB would be well suited to lay down the rules of the road on regulation and reining in major tech platforms.
Countries that share similar political visions of internet governance, disinformation and other aspects of technology policy can come together multilaterally to make the vision prevail globally.
While such a DSB would be useful to manage hostilities with powers such as China, another interesting proposal comes in the form of a group of 1o leading democracies, or D10. Proposed by British Prime Minister Boris Johnson (Fisher 2020), a D10 grouping would significantly source equipment for key technologies such as 5G from countries within the partnership. It could also develop a shared approach on key threats facing democracies, including countering disinformation, penalizing purveyors of influence operations such as China (or even Russia and other countries) and devising workable regulations for social media platforms that strike a balance between fighting fake news and preserving freedom of expression.
Ultimately, the introduction of the D10 to digital policy debates would signify a shared political vision, born out of democratic values, toward building the digital economy and regulating malcontents in the system. Good, old-fashioned democratic politics remains a primary driver even in the digital age. Wolves and wolf warriors hunt in packs; open societies need to respond with similar unity of purpose.
This piece builds on an intervention by Samir Saran at the Summit for Democracy on December 10, 2021.
The scramble for gold on the Internet has transferred control of vast swathes of cyberspace to a very small and select group: Big Tech. This has made ‘significant social media intermediaries’ highly profitable ad businesses that have grown amid non-existent privacy and weak intermediary liability laws. They make the market, grow the market, and shape market rules. No ad business, or any business in history—not even Big Oil or Big Tobacco—has held so much power over consumers and the economy. This perverse power is, perhaps, the single biggest challenge that nations and peoples will have to grapple with. Accountable Tech must be India’s leitmotif in 2023 as it presides over the G-20, and a robust digital republic its sovereign mission as its turns 75 next year. This will need sensible politics, sophisticated policies, and a return to first principles.
Concentration of wealth is a competition issue and an economic policy question. Left unregulated, it brings about inequality in income and opportunity. But concentration of power when it comes to discourse—what is promoted, shared or suppressed—should be more worrying. Safe-harbour provisions in the United States along with self-regulation principles have allowed Big Tech to cherry pick what is to be acted on and what is to be ignored, effectively making it the arbiter of permissible speech. For example, anti-vaccine Twitter users have thrived during the pandemic, while, sometimes, less dangerous actors have had their posts labelled. In January, Angela Merkel, Chancellor of Germany, denounced the de-platforming of then US President Donald Trump by Twitter. “The right to freedom of opinion is of fundamental importance,” Merkel’s Chief Spokesperson, Steffen Seibert said, “Given that, the Chancellor considers it problematic that the President’s accounts have been permanently suspended.”
The issue here is not whether Merkel agreed or disagreed with Trump’s tweets. The question is—who censors him, how, and with what process and level of transparency? For the Chancellor and for many, Twitter cannot choose for itself when it seeks to be a provider of public goods, and when it is a private messenger eligible for intermediary protections. When governments around the world describe digital connectivity as a ‘utility’, information lines cannot be disrupted by religious, cultural or ideological filters. Like water, electricity and roads, significant social media will have to serve all, even those its management and owners disapprove of.
[Platforms] cannot choose for [themselves] when they seek to be a provider of public goods, and when they are a private messenger eligible for intermediary protections.
The instances when utilities (say electricity and water) are denied or disconnected are specific, rare and regulated. Even in the information age, only the state and its three pillars have this right. Global Big Tech is not part of this constitutional arrangement. There are checks and balances in place, with legal recourse available for all within the state and for external actors as well. Any alternative to this constitutional setup would be akin to legitimising foreign influence operations in domestic affairs. In an extreme, for a country that is almost perpetually in election mode, it would be tantamount to election interference. This may seem like hyperbole, but it is closer to the truth than we suspect. For instance, if an electoral candidate makes an incendiary speech on a physical stage, the Election Commission, law enforcement agencies and the judiciary act against him—not the private company that has set up the stage or the power utility that has provided an electricity connection to the mike. Is the online equivalent being honoured by Big Tech?
Regulation of Big Tech across democratic setups
Australia gets this. In February, it passed the News Media Bargaining Code. The code encourages intermediary tech firms to negotiate deals with media outlets, effectively mandating that Facebook and Google pay news firms for content. The law was passed after a protracted battle between the Australian government and social media firms. It escalated when Facebook removed content of certain Australian news agencies, several official government handles, emergency services, and civil society organisations from its platform. Prime Minister Scott Morrison held firm: “These actions will only confirm the concerns … about the behaviour of Big Tech companies who think they are bigger than governments and that the rules should not apply to them.”
Canada, too, is making moves to curtail the wealth and discourse monopoly currently enjoyed by Big Tech. Just this week, Canadian lawmakers passed Bill C-10, which seeks to regulate the kind of content media streaming services prioritise on their platforms. The Bill, which is yet to be passed by the Senate, aims to make digital streaming platforms at par with traditional broadcasting services; the latter are obligated to increase the visibility and “discoverability” of Canadian content, and to set aside part of their profits to support a fund that promotes original Canadian productions.
Across the pond from the Americas, the European Union is also actively working towards mitigating the risks posed by the monopoly of Big Tech. Margrethe Vestager, Vice President of the European Commission for A Europe Fit for the Digital Age, has stated that tech giants, “have the power to guide our political debates, and to protect—or undermine—our democracy.” In December 2020, Vestager and her office tabled the Digital Services Act (DSA), which seeks a systemic assessment of the varied social, economic and constitutional risks posed by the services provided by Big Tech.
The most decisive move yet has come from Poland, which has proposed a law to ‘limit’ the censorship tendencies of the tech giants. Soon after the deplatforming of Donald Trump by Twitter, Prime Minister Mateusz Morawiecki wrote on Facebook: “Algorithms or the owners of corporate giants should not decide which views are right and which are not. There can be no consent to censorship.” The new proposed law provides for a special mechanism for those whose content or profiles have been blocked/deleted by social media platforms, where they can complain directly to the platform, which is obligated to respond within 24 hours. After a review by a specially constituted “Freedom of Speech Council”, deleted content can be restored by order. If platforms do not comply, they can face a heavy fine of up to 50 million zloty (US $ 13.4 million).
Regulatory Frameworks in India
India, too, must take some tough calls. The vision of Digital India has advanced—from only four unicorn companies in 2014, India had 12 in just 2020 alone. Regulation must keep pace with this economic and social reality. It is absolutely critical that the Privacy and Data Protection (PDP) Bill, currently being examined by a Parliamentary Joint Committee be brought forth and enacted as law. Without the umbrella framework of the PDP bill, India’s regulation of Big Tech will be ad hoc, and may be misconstrued as a political instrument.
The vision of Digital India has advanced—from only four unicorn companies in 2014, India had 12 in just 2020 alone. Regulation must keep pace with this economic and social reality.
With respect to regulating intermediaries, the Indian government initiated a public consultation process in December 2018 and invited submissions from the public to the Ministry of Electronics and Information Technology. A spectrum of civic, industry and academic actors participated. The rules were notified in February 2021, specifying clear compliance requirements within three months. Yet, the reaction of Big Tech platforms has been to delay, stall and obfuscate compliance.
It is high time that the actions of these companies were subject to systematic and rigorous Parliamentary oversight; but for that to happen, legislation is needed. Indian law and policy are rooted in our Constitutional principles. Indian policies on digital governance are no different, but they now need the imprimatur of Parliament to truly be effective. And should there be questions and grievances regarding the scope and constitutionality of the law, the courts of India will be the ultimate judge.
The objective of regulatory frameworks is to safeguard public interest, even (or perhaps especially) if it involves eroding the bottomlines of powerful vested interests. To once again quote the EU Commission’s Magrethe Vestager (in an intervention at a technology policy panel at the Raisina Dialogue earlier this year), regulating Big Tech, “Is a job, not a popularity contest”.
Perhaps, the real limitation is one of our imagination. In our minds, Silicon Valley is forever a happy, sunshine place, led by geeky, long-haired wunderkinds in t-shirts and flip-flops. The reality is Big Tech’s instincts today are driven by a single-minded sense of territoriality and collective impatience for different governance systems. For them, their ‘code is law’ and it is universal. That is at the crux of it.
In Lord Byron’s poem, Childe Harold’s Pilgrimage (1812), the protagonist Harold, contemplating the grandness of the Colosseum, imagines the condemned gladiator, dignified yet forlorn, butchered for the entertainment of a boisterous, blood lusty Roman crowd out on a holiday.
Public spectacles of suffering are integral to the discourse of power. The perverse imagery and messaging surrounding the suffering seeks to intimidate and suppress the subaltern’s agency to perpetuate ethnic dominance and social control. It pivots around an elevated moral sense of the ‘self’. In his seminal work, When Bad Things Happen to Other People, John Portmann argues that it is not unusual to derive gratification over the suffering of the ‘other’, particularly when the native feels that the suffering or humiliation of the ‘other’ is deserved. The suffering then becomes fair recompense for transgressions real and imagined, and the accompanying sense of justice and closure brings forth feelings of gratification.
India is reeling in the aftermath of the second wave of COVID-19. As death reaps rich dividends cutting across class and covenant, the country is engaged in a determined fightback. The developments have made global headlines, and, in equal measure, triggered global concern. Apocalyptic images of mass pyres and victims in their death throes, replete with tales of ineptitude, profiteering and callous attitudes, have made front page news and have become television primetime in much of the trans-Atlantic press, conforming to reductive stereotypes that have informed three centuries of relations with the Orient. The ‘self-inflicted’ suffering is then ‘fair recompense’.
New technologies are radically transforming our idea of community – and subsequently statehood. How will future states look like? And how should they look like? Disaster researcher Malka Older, author of the highly acclaimed cyberpunk thrillers “Infomocracy” and “Null States” will discuss digital governance with Shoshana Zuboff. Since the early 1980s Zuboff’s career has been devoted to the study of the rise of the digital, its individual, organizational, and social consequences. She coined the term “commercial surveillance” and is now working on her book “Master or Slave? The Fight for the Soul of Our Information Civilization”. This final discussion about new forms of digitalized governance and its impact on the individual will be moderated by one of the world’s leading experts on cyber security Samir Saran, Vice President of the Observer Research Foundation in Delhi.