India has created a new cyber cell” for tackling trolls that attack women online. But, Suhrith Parthasarathy asks, if people are no longer allowed to use pseudonyms, will an important freedom disappear?

THE RIGHT TO anonymity is under threat in India. Being anonymous online is said by politicians to be harmful, giving trolls free rein to attack women without being identified. But some see anonymity as an essential democratic right and fear what will happen if it disappears.

In July, India’s women and child development minister, Maneka Gandhi, announced the creation of a new cyber cell”, a government committee that will monitor instances of women being abused by online trolls.

I want to remove anonymity on Twitter, as well,” Gandhi said last December, in an interview with a news channel, where she spoke about the prospect of online policing. You should be responsible for what you say and the consequences that follow.” Although the presently established cell would not specifically target anonymous users, the fear is that any move which ultimately seeks to regulate the internet would harm the right to remain anonymous of both dissenters and members of marginalised communities. Maintaining a veil of anonymity allows people to speak freely, unhindered by a fear of a backlash from either the state or from the society at large.

I really appreciate that Maneka Gandhi has taken up this issue. There is a real problem with online abuse, but we have to be careful how we tackle this,” Anja Kovacs, the director of the Delhi-based think-tank Internet Democracy Project told Index. Law enforcement in all countries tends to make citizens believe that anonymity is somehow harmful. But democracy virtually demands anonymity. It’s crucial for both the protection of privacy rights and the right to freedom of expression. So any initiative that seeks to police the internet mustn’t make anonymity impossible.”

The importance of protecting anonymous speech in a democracy was perhaps best stated by the US Supreme Court in a 1995 ruling, McIntyre v. Ohio Elections Commission.

Anonymity is a shield from the tyranny of the majority,” Justice John Paul Stevens wrote for the majority. “[…] It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation […] at the hand of an intolerant society.”

In some ways article 19(1)(a) of India’s Constitution mirrors the US Constitution’s First Amendment. It guarantees its citizens a right to free speech and expression. But the following clause, article 19(2), permits the state to make reasonable restrictions” on the right in the interests, among other things, of morality, sovereignty and integrity of the state, public order, friendly relations with foreign states, and so forth. It is this limiting clause, which is often used to justify restraints on expression. And Kovacs is not the only one who thinks anonymity is a vital right that could be under threat. Frank La Rue, then UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, said, in 2011, anonymity was critical to the protection of privacy and free speech rights.

In India, legitimate speech has often been curtailed by the government on grounds that, at best, can be described as inconveniencing the state, by invoking the limiting clause in article 19(2). Is anonymity next on this list?

There is a worry that, under the guise of protecting women and other marginalised sections from abusive trolling, these limitations would no longer allow anonymity. Rega Jha, the editor of BuzzFeed India, who has been subjected to vast amounts of abuse on social media in the past, expressed particular scepticism of systems aimed at combatting trolling.

India doesn’t have a good track record of appropriately using well-intentioned laws intended to protect its citizens online,” she said. Even laws intended to protect women have ended up manifesting as boundaries on freedom of expression … If the state is empowered to bring people out of anonymity for committing crimes online, anonymity’s function in safeguarding freedom of expression is rendered basically useless.”

In India, as Kovacs pointed out, it isn’t merely the fear of the state that makes the protection of anonymity important. There are women and members from others marginalised groups who blog and tweet anonymously. They write through pseudonyms, out of fear induced by their families, and because of the societal norms. In 2013, the IDP think-tank spoke to a number of women who blog and tweet anonymously with a view to avoiding confrontations with family and peers. Tripti, a young blogger talks about her experiences on Facebook – where she is not anonymous – as stressful’, given the pressure of judgement’ and that people don’t take kindly to frank opinions.’” The report observes: In this way, her blog, which she runs under a pseudonym, frees her’ from these pressures. Through these examples, it is possible to see that women may choose to be anonymous online as a direct consequence of the abuse or harassment.”

One anonymous blogger, who uses the pseudonym @GabbbarSingh on Twitter told Index it wasn’t originally a conscious choice of his to remain anonymous. It was like any other parody handle primarily for comic relief,” he said. When the followership grew, there was this itch to come out and revel in this new found online fame … But at the same time I realised the powers of anonymity. And chose to remain so, as it gave me a soft immunity’ from my employers, partners and family.”

Particularly when making points of political interest, @GabbbarSingh said he often receives criticism for remaining anonymous. A common refrain is: can you say that without hiding behind the cloak of anonymity?,” he said. But that’s often when the debater runs out of arguments.” While he recognises that anonymity can have harmful consequences, when it’s used as a means to troll and abuse other users online, @GabbbarSingh believes that state control of the internet can be a double-edged sword.

This is because, in India, systems aimed at tackling crime on the internet often tend to strike at anonymity. Kovacs cited the example of the draft encryption policy released by the Indian government’s department of electronics and information technology in September last year. They have since withdrawn these draft rules after a lot of protest from activists,” said Kovacs. But it’s clear they wanted encryption to be weak. For example, the policy to force people to store all encrypted information for 90 days, if implemented as law, would substantially weaken anonymity and internet user security.”

There is in India today no law, as instructed by the UN special rapporteur on freedom of expression, which specifically recognises that individuals are free to protect the privacy of their digital communications by using encryption and anonymity tools. This gives rise to fears that measures such as Maneka Gandhi’s, which are aimed at a larger policing of the internet, could damage the rights of people who want to maintain their anonymity. Although there might be circumstances in which the state can lawfully intervene to force someone to come out of a cloak of anonymity, there is a belief that such powers could be exploited to protect the private interests of government. Drawing a proper balance, therefore, between protecting anonymity and fighting abusive trolls, becomes a tricky exercise.

The state could demand compromised anonymity because it perceives a crime’ in someone tweeting threats, sure, but also if it chooses to perceive a crime’ in someone criticising a ruling party, expressing homosexuality, political dissent, or any of an array of inconvenient national truths,” Jha told Index. It feels like if this power exists, anonymity wouldn’t serve its noblest purpose in a democracy anymore – allowing citizens to express the important truths that are dangerous to voice with a name and face attached.”

Lawyer and free speech expert Gautam Bhatia provides an answer to this apparent impasse. According to him, the only principled way to tackle hate speech on the internet, while preserving a larger right to anonymity, would be to grant the judiciary powers to look beyond the veil of anonymity when a person abuses his or her anonymity to engage in illegal speech. He suggests a procedure similar to that adopted by the court authorised by the US Foreign Intelligence Surveillance Act, which decides on a case-by-case basis whether to award a warrant for executive surveillance. You can have a dedicated lawyer to oppose demands for de-anonymising, like what was proposed for the American FISA court,” Bhatia told me. The default should be that you lose the protection of anonymity when you engage in unlawful speech; [but] it should not be the other way round, that you lose the protection of anonymity in order to prevent you from potentially engaging in unlawful speech.”

Originally published in Index on Censorship.