If the government secures a ruling against the company, it could result in the censorship of numerous platforms and establish a worldwide precedent.
IN JUNE, TWITTER received an ultimatum from the Indian government to remove some 39 accounts and content from its platform. Sources familiar with the order say it outlined that if Twitter refused to comply, its chief compliance officer could face criminal proceedings. They say it also stated that the company would lose its “safe harbor” protections, meaning it would no longer be protected from liability for the content created by its own users. This is an escalation of a series of “blocking orders,” or content removal orders, sent by the Indian Ministry of Electronics and Information Technology, which have increased significantly in the past 18 months. Last week, Twitter responded: It will take the Indian government to court. While the dispute itself deals with only specific accounts and pieces of content, experts told WIRED that its outcome could have major repercussions, and serve as a “bellwether for this ongoing battle about internet freedom,” says Allie Funk, research director for technology and democracy at Freedom House.Twitter’s lawsuit focuses particularly on section 69A of India’s Information Technology laws. Passed in 2000, the laws allow the government to issue blocking orders, requiring an intermediary–in this case, Twitter–to remove content that the government deems a risk to India’s security or sovereignty. The court filing is not yet public, but it asserts that the government’s requests are excessive, sometimes targeting entire accounts, according to sources familiar with the filing. Jason Pielemeier, executive director at the Global Network Initiative, says that Twitter’s lawsuit has implications beyond social media platforms. “It will reverberate for all intermediaries,” he said. “Intermediaries as defined by Indian law include mobile network operators as well as ISPs. So it’s really applicable to everyone who could be seen as a choke point for content restriction or censorship.” Should Twitter lose in court, it could open the way for the government to censor whole websites, as well as media on streaming platforms like Netflix or Amazon Prime, and could make it harder for platforms and companies to push back. “Around 2010 or 2011, the government framed the rules for those earlier powers,” says Raman Jit Singh Chima, senior international counsel and Asia Pacific policy director at Access Now. These newer additions to the law in 2009 prevented platforms from publicly disclosing the blocking orders they received. “Even at that time, there was a lot of criticism saying that the rules gave all the power to the executive branch.” Twitter’s case does not seek to challenge the constitutionality of 69A, but instead alleges that some of the blocking orders do not meet the government’s own standards for establishing why content needs to be removed, and that such orders violate users’ rights to free speech.Because India’s IT laws allow the government to issue blocking orders in secret, it makes it particularly difficult for individual users to understand why their content is being censored or to seek to reverse the government’s decision. In 2018 the government issued a blocking order for the satirical website www.dowrycalculator.com, owned by journalist Tanul Thakur, who was not informed why the site was blocked and started a legal battle to find out. The government asserted that Thakur’s site promoted dowries, which are illegal in India but persist in many places regardless. In 2018 Thakur told Outlook India that the site was meant to point out this “prominent social evil.” “I wanted something funny, entertaining but which also pokes fun at the patriarchal structure of society,” he said, noting that if the government officials had gone through the site, they might have realized it was satire. “But they examined only what was on the surface.”In May, the Delhi High Court ruled that the Ministry of Electronics and Information Technology had to produce a copy of the original blocking order for Thakur. But individual users and public interest groups have no insight into the blocking orders, and few have the time or resources to sustain a four-year legal battle for transparency, as Thakur did. This has left big tech companies like Twitter in the unique position of being a major bulwark against government censorship. “The only entities who really know the nature of the problem and the deeply troubling human rights-harming blocking orders we’re seeing are the government itself and the tech companies,” says Chima.Funk says that “strategic litigation” like Twitter’s case can be one of the most effective—and sometimes only—avenues to protect the rights of users, challenge invasive surveillance, or reverse an internet shutdown.More than most other social media companies, Twitter has consistently pushed back on censorship. In February 2021 India introduced new IT rules that required social platforms to respond to government takedown requests within 15 days and appoint a local representative who could be held legally responsible if the company did not comply with blocking orders.Initially Twitter resisted some of the government’s blocking orders and was slow to appoint an in-country representative. In May 2021, shortly after Twitter labeled a tweet posted by Bharatiya Janata Party (BJP) spokesperson Sambit Patra as “manipulated media,” police searched Twitter’s offices in Delhi and Gurgaon. By July, the Indian government said the company’s lack of compliance meant that it would lose its safe harbor protections. By August, Twitter capitulated. “The government is not shy about using police power to send the signal that employees will be under threat,” said Mishi Choudhary, legal director at the Software Freedom Law Center. “It is censorship by proxy on steroids.”India is Twitter’s third largest market after the US and Japan. But Choudhary says that tech companies have, in part, brought some of this government scrutiny on themselves by not engaging with civil society or governments outside Western markets in the same way as they do in the US or Europe. “Even when there were genuine concerns of content takedowns or other matters, companies did not deal with the government of India in a serious, respectful manner,” says Choudhary. “Of course the government wants to control the narrative, but that’s not always the case. Sometimes, even for serious matters, people would call us up and say, ‘Do you know, somebody at Facebook?’ ‘Do you know somebody at Twitter? We would like an issue to be addressed.’ If that continues, you’re going to see some kind of exercise of state power.” Twitter’s lawsuit comes as Prime Minister Narendra Modi’s right-wing BJP government clamps down more widely on dissent, going so far as to allegedly surveil activists using the NSO Group’s notorious Pegasus spyware. Mohammad Zubair, cofounder of the nonprofit fact-checking organization Alt News, was arrested on June 27 for a 2018 tweet that authorities said insulted Hindu religious beliefs. Alt News has regularly taken an adversarial stance with the Modi administration, fact-checking right-wing misinformation networks that often support the BJP. Just five days before his arrest, Zubair said that he received a notification from Twitter that his account had received a blocking order from the government. A representative from Twitter declined to say whether Zubair’s account was one of the blocking orders the company is challenging. “There are members of India’s ruling political party at the federal level who seem particularly worried that there’ll be increased pressure on right-wing extremist voices in India,” says Chima. “And they have been regularly trying to preemptively intimidate Twitter.” Chima calls the government’s arguments for accountability on the part of tech companies a “dog whistle” intended to warn companies against pushing back on government orders, rather than a call to operate more ethically.“As far back as 2014, we’ve seen a willingness for the government to issue these orders, especially as protesters have used the internet more and more,” says Chima. “From 2020 onward we have seen the government issuing massive numbers of blocking orders.”