This story, originally published on February 10, 2021, was republished on February 12, 2021.Twitter’s current game of chicken with the Narendra Modi government over the fate of a number of tweets and accounts is a culmination of the increasing messiness that has marked how online content is removed by the Centre under Section 69A of the Information Technology Act.Over the last four years, the government’s decision to block full hashtags, whole Twitter accounts and seemingly innocuous content under legal provisions that deal with weighty matters such as the “sovereignty and integrity of India” have raised legitimate questions about the transparency surrounding the blocking process.Today, both Twitter and the Centre are locked in a strange stalemate, with the government threatening jail-time for Twitter’s executives in India, and the social media company reiterating its commitment to balancing the removal of content with the idea of protecting public conversation.Matters spiraled ten days ago, when Twitter blocked over 200 tweets and handles that the Narendra Modi government wanted removed from public view. Within hours of doing this though, the social media network surprisingly went on to restore some of the accounts and tweets – including the handles of Caravan magazine and Kisan Ekta Morcha – in a move that drew the ire of the IT ministry and threats of jail time for the company’s executives.The social media company appears to have drawn a line in the sand – an act the IT ministry describes as declining to “abide and obey” a direct order issued by the Government of India.Twitter, remarkably, has chosen to remain defiant, issuing a public statement that the safety of its employees was a “top priority”, but that the “tweets must continue to flow”.Also read: Bad Girl Diplomacy Takes Ministry of External Affairs By StormBut how did we get here and what are the likely outcomes to the face-off?Section 69A provides for blocking public access to information when the “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 sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”.How transparent has the government been?Several experts have rightly raised concerns over the secrecy that is built into the Section 69A process. The accompanying rules state that all requests and complaints received under this process, along with the action taken, must remain confidential.However, the Lumen database filings give us a broad picture of what the Modi government wants censored on Twitter at least.We know that from 2017 to 2020, on average, Twitter received a Section 69A order every once in three months.We know that the Centre has wanted full hashtags like #KashmiriUnrest or #KashmirNow blocked, even though they can obviously be used in a wholly lawful manner. We know it also invoked Section 69A to block tweets on India’s cow vigilantes and for handles that reported on Lutyens insider gossip to be taken down.We know that in August 2019, which is when Article 370 was revoked, the Centre issued its highest-ever number of orders in a single month (nine).We know that the honourable blocking committee, which has representatives from a number of ministries and government departments, sits even when there are just a handful of tweets that need to be blocked – a meeting of the committee in April 2018 resulted in just one tweet being blocked. We know that Section 69A also has been applied to media houses and across the political spectrum too. In particular, supporters of the Narendra Modi government and Section 69A should note that blocking orders were reportedly issued in 2017 for a tweet put out by news agency ANI (which was quoting a statement by Kashmiri separatist leader Mirwaiz Umar Farooq). Also read: Time to Regulate Big Tech Monopoly Over Information, Commerce and PowerA separate order in 2020, as The Wire exclusively reported, also resulted in Twitter taking down a tweet put out by BJP leader Tejasvi Surya on Islamic terrorism. At the time, the young parliamentarian did not respond to requests for comment on whether he would appeal the content removal order. It’s also important to note that our insight into Section 69A has reduced drastically over the last four years, in part because the Modi government has cracked down on Twitter.As the image below shows, in 2017, Twitter used to publish full letters that it received from the IT ministry, even if they were redacted to protect the privacy of the IT ministry’s bureaucrats. From 2017 to 2020, transparency surrounding Section 69A block has reduced.This quickly stopped after the government got upset, citing the confidentiality clauses built into the Section 69A process. From 2018 onwards, the Lumen database only contained PDF file that indicated what content was taken down as a result of Section 69A and not the full list of tweets and handles that the Modi government wanted blocked. In late 2020, the Section 69A labelling stopped too, with the Lumen filings merely saying that content had been removed due to provisions of the IT Act, 2000.In a nutshell, the blocking process is messy and there are legitimate questions to be asked as to why it is so opaque. How does a blocking order come into existence?The act of generating a Section 69A blocking order, outlined here in detail on the IT ministry’s website, is rather simple. A ‘designated officer’ of the government receives complaints, usually from the nodal officer of a government department or agency. This officer forwards it along to the blocking committee – which he chairs and also comprises bureaucrats from the law ministry, home affairs ministry and I&B ministry among other departments – and sends a notice to the intermediary.A brief and simplified overview of the process.This notice basically asks the intermediary to depose before the committee and submit their “reply and clarification” at a specified date.The committee then makes its recommendations to the IT secretary through the designated officer, in the process specifically evaluating whether the offending content falls within the ambit of Section 69A.The IT secretary finally decides, choosing either to block the online content or deny the request.The rules for Section 69A also lay out an emergency mechanism, where the IT secretary is allowed to pass an ‘interim blocking order’ at the recommendation of the designated officer. A blocking committee, however, needs to be convened within 48 hours of passing of the interim order and recommendations should be sought by it, following which the IT secretary will pass a final order.Finally, the rules also carve out a gap for a ‘review committee’ that must meet every once in two months to examine previous orders that have been issued under Section 69A. This committee has the power to revoke previous blocking orders and thus can overrule the decision taken by the IT ministry. Now, what happened almost two weeks ago, that triggered the current stand-off between Twitter and the Modi government? This timeline is, in part, pieced from the IT ministry’s reply to Twitter last week:1. On January 31, 2021 – a few days after the Republic Day mayhem and two days after the police in three BJP-ruled states filed sedition cases against the Caravan’s editors – the IT ministry passed an interim order that asked for the blocking of 257 URLs (tweets and accounts) and one hashtag.In other words, it used the ‘emergency’ mechanism provision noted above. The given reason was that the offending content had spread “misinformation” about farmer protests and could lead to imminent violence and a public order situation.2. The IT ministry claims that although details of the interim blocking order were communicated to Twitter by 3 pm on January 31, the social media giant did not take action until a little before 3 pm on February 1, i.e. almost 24 hours later.The ministry alleges that Twitter waited until a few minutes before the blocking committee convened on February 1 and the company’s advocate deposed before the committee.3. It’s unclear what Twitter’s lawyers conveyed at the committee meeting – nor do we know how the bureaucrats sitting there felt about it – but the social media giant then went on to unblock some of the tweets and accounts that had been blocked on February 1 evening. Sources familiar with Twitter’s thinking, however, said that the company made its position that the content the government wanted blocked was “free speech and newsworthy”.Issues to considerThe back-and-forth between Twitter and the IT ministry raises several concerning questions about how the government views transparency and freedom of expression as it pertains to the Section 69A process.On freedom of speechIt’s clear that when the designated officer asks the intermediary to appear before the committee and submit its “reply and clarifications”, the government is not looking to be challenged in any way with regard to its decision. In his reply to Twitter on February 2, Pronab Mohanty, the designated officer at the IT ministry, notes that there exists no “statutory requirement to provide or demonstrate justifications or material to the intermediary while passing orders under Section 69A”. In fact, Mohanty goes on to say that it is “astonishing” that Twitter is even commenting on “significant issues relating to freedom of speech” as it relates to the power of the Centre under Section 69A.On blocking full accounts, aka the ‘proportionality’ argumentSecondly, the IT ministry’s perception of Section 69A is that it is preemptive in nature. It’s not designed to punish people who put out offending content, but to prevent damage to the integrity, defence and sovereignty of India.The ministry uses this argument to bring up how impractical it is to segregate content at the “tweet level” – i.e., the natural question of why the IT ministry feels that the Caravan’s handle should be blocked and not just the allegedly offending tweets.Also read: After Trump, Should Twitter Also Ban All the Dictators?The government notes that if it lets up on this, the handles could carry out a devious plan of mixing bad and normal content.“It may be noted that the said mechanism [blocking individual tweets and not accounts] would not achieve the intended goal as the handles would designedly mix provocative tweets/illegal contents with normal content. In this situation, it will not be possible to segregate the same…. In this event, the entire pre-emptory purpose behind Section 69A will be defeated,” Mohanty’s letter notes.Furthermore, the ministry notes that any handle which uses the hashtag ‘ModiPlanningFarmerGenoicde’ is one that acts in a manner that is prejudicial to public order and thus deserves to be blocked in whole.Plugging the holesThere are two problems with the stances put forth by the IT ministry on both issues. Firstly, there are clear examples of tweets that in no way could be construed as attracting Section 69A provisions but were still taken down and hashtags that were ordered to be taken down, even though they could be used in ways that would not propagate illegal activity.Even in the most recent controversy, Prasar Bharati boss Shashi Shekhar Vempati’s account was taken down for a brief period of time and then later restored quickly, with media reports indicating that it was a mistake and had been taken down inadvertently because he had put out a tweet asking how “ModiPlanningFarmerGenocide” was allowed to stay up. Was Vempati’s handle on the list of accounts that was handed to Twitter? Or did it remove accounts but still put up the usual disclaimer of the handle being ‘withheld’ in response to a legal demand, which is indicative of Section 69A or a court order? Surely, either way, this indicates that all is not well in the blocking process and the IT ministry would do well to allow more deliberation during the blocking committee meetings, which includes listening to the intermediary that presents a defence.Secondly, and more importantly, the Centre needs to allow greater transparency with regard to its Section 69A blocking orders. For example, the Caravan magazine has categorically stated it did not use the offending farmer genocide hashtag. If the Centre is dead set on removing full Twitter accounts and hashtags – and not offending tweets – then it leaves news publications like the Caravan with no option but to move the courts. In this case, it doesn’t have to, as Twitter seems to have drawn a line in the sand – but suppose it hadn’t? It’s difficult for affected parties to challenge the blocking order, as the Internet Freedom Foundation has pointed out, if the blocking order is not in the public domain.“The [blocking] directions themselves, which would contain the reasons for why the accounts have been directed to be suspended, have not been made public. This directly impacts the users of the accounts with respect to their fundamental rights to freedom of speech and expression and access to judicial remedies. Furthermore, it is in breach of the directions of the Supreme Court in the Shreya Singhal (paras 117, 118, & 119) and Anuradha Bhasin Judgements (paras 15, 16, 17, & 18) that recognise the public’s right to receive public information and any censorship for it being as per principles of transparency and proactive disclosures,” the New Delhi-based digital rights think-tank noted.How will this game end?It is clear that with the latest Section 69A blocking orders, Twitter believes the Modi government has crossed a line and that not complying with a valid legal order is worth its company’s officials potentially going to jail. The company is emboldened, in part, by the recent change of government in the US – after all, a strong Twitter is one that doesn’t have a president breathing down its neck and threatening further regulation.For the Modi government, it has quickly become a question of pride. Locking up Twitter’s employees in India isn’t a good look for the world’s largest democracy and it’s unlikely to do so. But it’s unclear if the government has the political will to take the obvious, and more principled, stand of having senior ministers of the Central government simply quit the platform.What, then, does the end game look like? One school of thought is that the IT ministry never expected Twitter to stick to its guns, even though it still may fold, which now puts the government in an awkward position. After all, Twitter’s latest statement is that it wants formal dialogue with the IT ministry – even as it continues to engage the Centre from a “position of respect” – but that the “tweets must continue to flow”. It also added that it had formally communicated that it had received the ministry’s “non-compliance” notice.The Wire has learned that IT ministry secretary will have a video conference meeting with a senior Twitter officials from later this week, but it’s unclear how matters can be solved without one side climbing down from the very public positions they have taken so far.In other words, Twitter is not yet ready to move the courts and legally challenge the blocking orders on behalf of all those affected by the February 1 ban, but it has left the option open, if only to protect its employees from being arrested. The IT ministry, on the other hand, may have jumped the gun with the threat of penal action and seemingly has no more cards to play other than to act on its threat. This ultimately places the government on unsure footing.It is likely that the controversy will be ultimately resolved with Twitter blocking most of the 257 tweets and handles on the farmer’s protest, but leaving out the more prominent ones that it is willing to fight for. The government won’t press further, public memory will fade and Twitter will get on with blocking other tweets that the ministry asks for from time to time. The government’s latest Section 69A order was issued just yesterday with regard to pro-Khalistani accounts, where action is already being taken by Twitter. This would mean that the can is effectively kicked down the road, with Twitter winning a small victory and the government symbolically losing face. The larger issues surrounding Section 69A, however, will remain untouched.
