By Mishi Choudhary & Eben Moglen
GoI-Twitter hostilities are a variation on a current geopolitical theme. Social media platforms offer simple consumer-facing digital services ‘for free’, but actually in return for mind-boggling quantities of personal data they can exploit and monetise. They are coming to the end of their extraordinary laissez-faire relationship with the world’s democratic governments.
These companies’ data and messaging services have transformed electoral politics more completely than TV did 60 years ago. So political parties and officials need them. In the authoritarian world, governments’ need has been expressed in the creation of local providers (Yandex, Tencent, et al) who answer to one state master. But in North America, Europe and India politics hemmed in the state to one extent or another, for the benefit of platforms.
No longer. The system of mass data exploitation that Shoshana Zuboff first named Surveillance Capitalism is eroding democracy. And states are responding.
GoI’s confrontation with Twitter, then, is just one of many efforts to exert what governments throughout the democratic world call ‘public interest’ against these companies.
There are some distinctive features to be observed in India’s case. But similarities across countries are more important. The most important similarity is that these are territorial struggles between governments and platforms – and the loser is always users, that is, the people.
No matter how hard governments bear down, no matter how much platforms spend on lawyers and PR armies to wear states down, in the end, faced with the final offer, social media companies always fold.
Not since Google abandoned China in 2010 – a decision it has since intensely regretted – has any platform been willing to forego a national or supranational market in order to resist government pressure. Unless their immense resources can secure victory by attrition, private power decides to lose every time.
But here is the interesting bit. They don’t lose their own terrain. The essence of their strategy is giving up users’ rights in order to secure their business. Politicians who run governments, meanwhile, seek (let us be euphemistic) ‘influence’ over the people, whom they can learn about, propagandise, measure and inflame most effectively in their role as users, with the assistance of platforms.
These similarities aside, it is also true the fight between GoI and Twitter is the most cartoonish. Yes, Twitter has dragged its feet, bought much space for virtue demonstrations on its concerns about users’ privacy, and even went so far as to comply with the requirements of US copyright law with Ravi Shankar Prasad’s account. Prasad is definitely not American, but his ability to tweet depends on servers located in US territory.
Notwithstanding these, plus Twitter’s unforgivable publication in its own web pages of a world map that did not correctly show India’s national borders, the company has not in fact refused to perform any act definitively ordered by GoI, regardless of the effect on users’ rights.
Various governments in India haven’t been measured. There is no other advanced democracy in which the relationship with one platform is mediated through FIRs against the company’s national executives – that too on trivial claims brought by local police addressing non-local matters.
All these charades end the same way, by transferring power away from users, and getting divvied up between states and platforms. Electronic democracy, if we want to have it, is not this kind of ‘democracy’ and not this kind of electronics.
People must demand from their governments that they receive benefits of digital transformation, with their power to govern themselves with respect to their rights under the rule of law increased, not traded away for ‘convenience’. That means using technology, politics and law in concert for true public interest. To do so means beginning by defining users’ rights.
Users’ rights include, the Supreme Court has taught us, a fundamental right to privacy. They include, as the Kerala high court has taught us, a fundamental right to use the Net, which means to be free from arbitrarily imposed shutdowns or barriers to access.
These rights should include a right to make our own services – person to person or household to household services on a Net that doesn’t discriminate against self-developed services in favour of those provided by platforms or telecom companies.
Our right to make our own internet is as important, symbolically and technically, as the right to make our own salt. We have a right as users to speak to one another outside the earshot of platforms and the state. Our reading should never be surveilled by anybody, though the design of the network itself makes that impossible to achieve by technology alone.
From these rights emerges the necessity that users must always have an independent seat at the table when their primary rights are being bargained over by a state and a platform. Neither of the latter two think preservation of user rights, let alone user interests, is truly a priority. We need a civil society robust and well-organised enough to hold these big players accountable.
Mishi Choudhary is a New York-based technology lawyer, and Eben Moglen, Professor, law and legal history, Columbia University
Views expressed above are the author’s own.
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