In an intriguing case of abuse, a Bengaluru-based programmer was on Monday threatened with a criminal lawsuit for attempting to expose an avaricious program that violated net neutrality.
On June 3, Thejesh GN, an activist and programmer, published screenshots and some text explaining how the Airtel 3G network was inserting some extra lines of code into his browser every time he visited a webpage.
— Thejesh GN (@thej) June 3, 2015
Using a web-based IP tracker, he was also able to find that the code was originating out of the IP address 188.8.131.52 – which belonged to Bharti Airtel Limited.
On June 8, however, he received a cease-and-desist order issued by Flash Networks, Ltd., a company based out of Herzliya, Israel, via their attorneys in Mumbai. The order required that Thejesh remove the description and implications of Anchor.js he had uploaded to GitHub because they violated Flash Networks’ copyright over it. His ‘act’ was alleged to be a criminal offence under the IPC 1860 and Information and Technology Act, 2000.
So I got cease and desist letter for exposing JS injection by big a telco for publishing JS code & screenshots. I will probably remove it 🙁
— Thejesh GN (@thej) June 8, 2015
On June 9, the order was followed by a takedown notice (under the Digital Millennium Copyright Act of the US) posted to GitHub. After this, Thejesh’s files became inaccessible (although a cached version is available). Developers in the country are calling this a case of cyber-bullying.
For an Israeli co. to sue Indian users for merely reporting an unethical (and possibly illegal) practice is intimidation.
— Rohin Dharmakumar (@r0h1n) June 9, 2015
The case’s intrigue stems from the intent of Flash Networks, which it never discusses in its notices. In their C&D order, what the attorneys don’t mention is what Anchor.js enables for Flash as well as, and more importantly, the Airtel network. When Thejesh – or any susceptible user for that matter – visits a webpage on the Airtel 3G network, Anchor.js loads an asset, like an advertisement, on that page.
When the user views or interacts with that asset, whichever entity the asset has been posted by makes some money. In this case, since Flash Networks – the source of Anchor.js – is hosted on Airtel’s IP address, the implication is that Airtel is using Anchor.js to make money for itself using the user’s browsing experience. There is also the additional threat of Flash Networks using its unverified script to trawl for user data.
However, since Thejesh did not intend commercial use of Anchor.js (nor did he expose code that wasn’t already confidential), it’s unclear how Flash’s copyright was infringed. Pranesh Prakash, Policy Director at the Centre for Internet and Society, tweeted that irrespective of how Anchor.js harmed Thejesh’s experience, his act of uploading it to GitHub was protected by the Section 52(1)(ac) of the Indian Copyright Act 1957. It states that
the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied
… shall not constitute an infringement of copyright.
More troublingly, the intent of Flash Networks signals that the ISP is violating net neutrality because a user on the Airtel 3G network sees a website X differently than a user on, say, BSNL, because of the asset loaded by the injected script.
Recently, while the net neutrality debate was surging in India following a controversial policy document from TRAI, Airtel Zero was in the thick of things. It involved Airtel being paid by, say, Facebook to let users access Facebook for free on Airtel networks. The deal violated net neutrality because it implied the preferential treatment of data packets based on their sources.
In fact, Airtel also distanced itself from the order issued by Flash Networks to Thejesh: “We … categorically state that we have no relation, whatsoever, with the notice.” Even so, that the two companies are and have been associated with each other is betrayed by one of Flash’s press releases from 2014 that includes Airtel and Vodafone among its clients.
If the ISP’s complicity is more conclusively established, it is likely to face legal action for violating user privacy. Because the script could also have been injected when people viewed Thejesh’s website via Airtel’s network, the ISP is also liable to have misrepresented his content to his audience.
It has also emerged since Thejesh’s disclosure that Vodafone might also be engaging in similar insertions of third-party software into browsers.
Note: This article was edited on June 9, 2015, to link to a Flash Networks press release and to include Airtel’s statement.