Do the Prime Minister's Selfies Belong to Twitter and Facebook?

On 28 September 2015, during a townhall meeting with Mark Zuckerberg, Facebook’s chief executive officer, at the company’s headquarters in San Francisco, Prime Minister Narendra Modi  dispensed advice to political leaders across the world,“Social media se bhagne se kuch hone wala nahi hai”—there is nothing to be gained by running away from social media.“Today, because of social media, governments are being stopped from committing mistakes,” he continued, “They are given a chance to fix mistakes.” While the prime minister’s commitment to social media remains indubitable, a public interest litigation has revealed that his enthusiasm for such platforms could prove to be a mistake that his government may soon be forced to fix.

At present, of the 52 ministries under the Indian government, at least 24 have a Facebook page, and 20, an account on Twitter. These include the ministries of external affairs, finance, railways, human resource development, and information and broadcasting. The Prime Minister’s office (PMO) operates its own Facebook and Twitter accounts, with close to 9 million and 8 million subscribers respectively. Both accounts bear Modi’s formidable gaze as their profile pictures, and both post photographs from the prime minister’s numerous public appearances along with regular updates that extol the various schemes introduced by his government. Given the manner in which social media has carved its space in mainstream public discourse, these accounts are often the subject of news and debate, serious or otherwise.

In June 2012—two years before the Bharatiya Janta Party came to power—KN Govindacharya, the former general secretary of the party, filed a petition with the Delhi High Court. Writ petition number 3672, which is still pending in the high court, attempted to investigate, among other things, the use of social media by the Indian government and the organisations that come under its purview. It questioned in particular, the nature of the agreements between social networking services and the government.

On 20 October, I had a brief conversation with Govindacharya over the phone. The idea for this petition, he told me, first took root when he heard about the Indian Mujahideen, a militant group, using social media and email to communicate with its members. “Technology is an instrument, and it can be used by either side. Precautions must be there—the cyber laws need to evolve. The government must shed its indifference and apathy, and take responsibility,” he said. To this end, Govindacharya’s petition demands that companies such as Google and Facebook set up servers in India, so that their content may be monitored and controlled from here. It also argues that social media companies should pay service tax for using data that belongs to Indians.

The petition goes on to contend that the “government is using the social media networks for official communication.” It raises questions pertaining to the “unlawful clauses of agreement entered into by the government,” with such networks, whereby they get the rights for commercial usage of data, leading to “illegal financial gains.”

The objective, according to Virag Gupta—a cyberlaw specialist and the advocate representing Govindacharya—is “to enforce [sic] law of land in the cyber world which is impacting India through foreign companies in a big manner, including economic implications.”

Nearly 40 hearings have taken place since the petition was first filed. The latest one was held last month, on 28 October, during which a high court bench comprising of judges Badar Durrez Ahmed and Sanjeev Sachdeva asked the centre to submit an affidavit along with the contracts that currently govern its relationship with services such as Facebook, Whatsapp, and Youtube. It also asked the petitioner to submit a short note consisting of the arguments that he planned to raise against the centre within a week, so that the centre would have two weeks to prepare its response. The next hearing is scheduled for 18 November.

Eight days before this hearing, on 15 October, the agreement pertaining to the government’s accounts on Facebook and Twitter was submitted by the centre to the court. However, the bench did not accept these contracts based on an objection by Gupta, who said, “There are certain clauses such as those relating to data policy which do not form part of the contract submitted by them [the centre]. It cannot be accepted in this form.” The accounts used by the government agencies on social networks, he alleged, came under the standard contract that is valid for individual users of such websites. According to this agreement, the intellectual property rights (IPR) for all data uploaded from the government’s accounts—“Including,” Gupta said, half in jest, “the PM’s selfies”—are acquired by the companies at no cost.

Gupta emphasised that the government’s implicit compliance with such contracts meant that its “use of social media is illegal.” He went on to elaborate upon how these agreements would mean that the government is violating certain provisions of the Constitution such as Article 299, which elaborates on the contractual liability of the state; Article 19, which guarantees the freedom of speech and expression to the citizens of India and; Article 21, according to which “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The contracts would also be in violation of the Public Records Act, 1993, that aims to “regulate the management, administration and preservation of public records of the Central Government.” Section 4 of this act explicitly states that “No person shall take or cause to be taken out of India any public records without the prior approval of the Central Government; Provided that no such prior approval shall be required if any public records are taken or sent out of India for any official purpose.”

Gupta then waxed eloquent about the magnitude of the profits these foreign companies earn through Indian users and the advertisement revenues generated. The government, he added, unwittingly or otherwise, appears to be helping their cause. Illustrating this point, he mentioned a notice that was issued by the ministry of women and child development to invite an “Expression of Interest” for a “Social Network Management Agency” that would “set up a complete social networking management system for the Ministry and manage the same” on a contractual basis. This agency would work with the target of ensuring that “the social media site of the Ministry have [sic] at least 5,00,000 followers/persons liking the contents within a period of 12 months from the date of start of operation.” Such targets, Gupta believed, could possibly lead to the creation of fake profiles—which he emphasised, would not only be unlawful, but would also result in more activity on these networks, and consequently, more money. The petition claims that other ministries have issued similar notices to appoint private agencies to manage their social media accounts.

Beyond these technicalities and potentially dangerous oversights, the petition also highlights that government employees use of private email clients such as Gmail and Yahoo by for official purposes. The government acknowledged this practice itself,  in an office memorandum that was released by the Ministry of Communications and Information Technology on 27 November last year.

Gupta showed me a brief interview with Ajay Kumar, the director general of the National Informatics Centre (NIC), which was published on 28 October in the Hindi edition of India Today. The NIC maintains the official email server of the government, and Kumar stated in the interview that the organisation’s present systems could only accommodate around 6 lakh accounts. The NIC hopes to extend this number to 50 lakh by March 2016. According to a report in The Hindu, the central government has 31 lakh employees. Of these, category D employees—who are not eligibile to receive email addresses—comprise 29.37 percent, or approximately 9 lakh employees. Even if one were to exclude the employees of the various state governments, these figures suggest that of the 22 lakh central government employees eligible for official email accounts, at least 16 lakh might be using other email clients, since the NIC can only support up to 6 lakh accounts. Earlier this year, Hillary Clinton, a potential presidential candidate for the United States elections in 2016, faced severe scrutiny after revealing that she used a personal email account to conduct government business during her tenure as the secretary of state between 2009 and 2013, in what was termed a “serious breach” by government officials.

Following a similar line of reasoning, Gupta termed this practice illegal, citing the IPR issues, not unlike the ones that plague the government’s contracts with social media companies and potential data breaches that may endanger sensitive information of sovereign importance while being transmitted through private servers based abroad. Apart from being in violation of the Public Records Act, the use of these email accounts, Gupta told me, is also in conflict with the National Email Policy, 2014,which mandates that “All organisations, except those exempted under clause 14 of this policy, should migrate their e-mail services to the centralized deployment of the IA [implementing agency, which in this case is the NIC] for security reasons and uniform policy enforcement.” Clause 14 of the policy states, “Organisations, including those dealing with national security, that currently have their own independent mail servers can continue to operate the same, provided the e-mail servers are hosted in India.” Furthermore, the petition claims that according to the All India Services (Conduct) Rules, 1968, “An obligation has been imposed on every member of the service that they will defend and uphold the sovereignty and integrity of India, the security of State, public order, decency and morality.” The rules, the petition notes, “further [put] an obligation to refrain from doing anything which is or may be held to be contrary to any law, rules, regulations and established practices in the country.” It concludes that government employees are breaching these rules through the use of private email accounts “by accepting illegal terms for agreements with private respondents.”

Gupta explained that the government can neither surrender nor transfer the commercial usage rights of such data—deemed public records according to a report titled Framework and Guidelines for Use of Social Media for Government Organisations that was released by the Department of Electronics and Information Technology (DeitY), Ministry of Communications and Information Technology, in 2012. Within this context, the petition states that the government,“by signing such agreements gives express permission for usages of components like cookies, pixels, and local storage, which not only endanger Public Records but also may lead to the collapse of the Indian Government’s computer network system.” It goes on to demand, “For such violation and lapses, guilty officials to be earmarked who are liable to be punished under the provisions of the Official Secrets Act.” The petition also claims the precedent of Sachidananda Pandey versus State of West Bengal and others,1987whereby the Supreme Court held that government property cannot be given for commercial usage without charging revenue or licence fee. Additionally, it points towards the aftermath of the Snowden leaks in 2013, claiming that “countries like Germany and Russia have started using typewriters for confidential communication due to threat from social media and internet network [sic], which are controlled by US Giants.”

These problems, Gupta asserted, become particularly relevant in the context of the “Digital India” and “Make in India” programmes the current dispensation is spearheading. He reiterated what Govindacharya had told me: ”You can’t stop technology, it keeps on moving—the laws and systems need to evolve alongside.” Meanwhile, its social media presence notwithstanding, the PMO did not prove to be very accessible. No one answered the official telephone number despite numerous attempts. The questionnaire I registered as grievance number 1,33,834 on the PMO’s website through an official form on the portal (no official email address was listed) with queries regarding the discrepancies and oversights discussed in the petition, has received no reply so far.