Ajay Patri

Ajay Patri is a writer and lawyer who works as a Programme Associate at the Takshashila Institution. His research interests lie at the intersection of technology and policy.

A Duty to Question Fake News

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The discourse around fake news often focuses on the ones disseminating it. Organised troll factories, chatbots, media houses with questionable integrity, elected leaders who like to play fast and loose with facts: the list is endless. But it is equally important to look at individuals, the targets and consumers of fake news, and ask what they should do when bombarded by inaccurate information.

This was the subject of a short essay titled The Ethics of Belief, written in 1877 by the mathematician and philosopher William K. Clifford. He sets a very high standard for people to follow, as is evident from the following line:

…it is wrong, always, everywhere, and for anyone, to believe anything upon insufficient evidence.

Clifford justifies the need for such an ethical duty for three reasons. One, and the simplest of them all, a wrongful belief can dictate wrongful action. Second, it can foster a bad habit where individuals become credulous believers, their sense of discernment dulled by a tendency to accept whatever is presented to them. And three, the larger social reason of human actions and thoughts being a form of common property, and thus to be considered both a privilege and a responsibility.

Regardless of how convincing one finds Clifford’s reasons, what makes his position relevant for the current age is its flipping of the discourse. By presenting the questioning of beliefs as an ethical duty, the essay gives primacy to individuals. It remains to be seen if this framing can be used to arrive at a public policy solution to the problem of fake news.

Understanding Witch Hunts

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One of the signs of good literature is the ability to stay relevant with the passage of time. Arthur Miller’s play The Crucible, written in the 1950s, uses the Salem witch trials as an allegory for the paranoia surrounding Communism in the US after the end of the Second World War. It is a testament to the strength of the play that it resonates just as strongly in the world of today, with the fears around fake news and the targeting of individuals and communities.

The play has a fairly straightforward narrative (minor spoilers to follow): a group of young women lie and claim that certain members of their town are indulging in witchcraft. This sets off a chain of events both absurd and scary, with the accused being presumed guilty until they either confess (leading to a loss of reputation and property) or refute the charge (leading to a death sentence).

As I read the play, two things struck me as being particularly relevant for understanding the nature of witch hunts in general.

One, the women who accuse others do not create a new divide in their society but instead widen existing ones. They allow the townsfolk to give voice to their prejudices and social distrust, something that normal bounds of propriety would have otherwise prevented them from acting upon.

Two, and a related point, is that the people who back the claims of the women often have baser reasons for doing so. This includes the pursuit of material profit at the cost of a neighbour’s, petty dislike, or to right perceived historical slights. In other words, these people are self-aware. They are not acting for the “right reasons,” even if they claim otherwise.

The Police Should Not Police Hate Speech

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A recent report (of which I was a co-author) looked at the way in which hate speech provisions in the Indian Penal Code, 1860 (the IPC) need to be reconfigured to fulfil their function and prevent their abuse. The report recommended replacing certain existing provisions in the IPC with narrowly constructed alternatives that do away with vague standards and instead hold liable only that speech which incites violence.

As I think more about how this will be an improvement on the status quo, I also believe that more must be done to further reduce the scope for abuse. One way of achieving this is by rethinking the way these hate speech provisions (in particular, sections 153-A, 295-A, and 505 of the IPC) are categorised under the Code of Criminal Procedure, 1973 (the CrPC).

These provisions are cognizable offences at present. What this means is that a police officer receiving a complaint about one of these offences can arrest anyone without an order or a warrant from a magistrate. The subjective satisfaction of a police officer that this entails is a recipe for disaster. This is particularly so for complaints regarding hate speech, where there is a need to evaluate the content of the speech itself and its proximity to violence before taking any action. It is too much to expect police officers to perform this function. Thus, in addition to reworking the provisions of the law, it would be prudent to classify them as non-cognizable offences under the CrPC to ensure an additional layer of scrutiny.

What Hate Speech Is Not

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The CEO of Twitter, the social media platform, recently found himself the subject of some heckling on, irony be damned, Twitter. The reason was a photograph taken of Jack Dorsey holding a poster that read ‘Smash Brahmanical Patriarchy.’ Some claimed that this amounted to hate mongering and hate speech, a notion that is as misguided as it is dangerous.

To begin with, the plain text of the poster is not directed against any individual and arguably, it does not target a particular community either. What it does is call for the end of a regressive tradition of patriarchy that anyone can subscribe to.

Which brings us to the second point: the inordinate amount of focus on the use of the word ‘smash’ and how this is tantamount to a call for violence. It is almost as if the hecklers have seen one too many movies containing a certain green-skinned comic book character who likes to wreak havoc and now cannot help but associate the said word with violence. In reality, the word is little more than an example of the usage of a forceful verb.

This examination of the plain text of the poster must also be seen in the context of what the intent behind it was. In the Shreya Singhal judgement, the Indian Supreme Court looked at the conditions under which the right to freedom of speech and expression can be restricted. It held that speech and expression that amounts to either discussion or advocacy, howsoever unpopular, cannot be restricted. The only valid ground is that of incitement. Can the language of the poster be categorised as incitement? Clearly not, judging by a measured understanding along the lines of the first two points above. Does it fall within the scope of discussion or advocacy? Yes.

Thus, the claims of hate mongering and hate speech against the poster are ill-founded. Their attempt to lower the bar for the freedom of speech and expression is as regressive for society as the patriarchy that they implicitly champion.

Consent by Default

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Trello, the project management app, updated its terms of service recently. This is the notification it used to convey the change to its users:

We’ve replaced the Trello Terms of Service with the Atlassian Cloud Terms of Service. Learn more about the changes here.

By clicking “I Agree” or otherwise continuing to use Trello, you agree to these new terms. If you don’t want to agree to the new terms, you may delete your Trello account. [emphasis supplied]

The highlighted portion assumes consent by default. This is an admittedly loose usage of the term consent because it is questionable if what is being assumed here can even be called consent. For example, would such language be valid if the draft Personal Data Protection Bill, 2018 were to be in effect in its current form? The Bill says that for processing of personal data based on consent to be valid, the consent must have five features. It must be free, informed, specific, clear, and capable of being withdrawn. Are these features present in the language used? The answer is no.

Would this be covered under any of the other grounds for processing data that do not require consent under Chapter III of the Bill? The answer is no again. Besides, a company’s claim of relying on a different ground for processing will be undermined by the fact that they are also providing users with the option of providing their consent. A larger question that needs to be asked here is how often should an individual be required to provide her consent after she is already subscribed to a product or service.

For now, the clumsy framing of the highlighted language might land a company using it in a tricky situation when the law comes into effect. This only goes to show that the data protection landscape is still hazy and much care and foresight will be required when drafting the legalese to govern it.

Reevaluating Citizenship

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Last week saw the European Union raise concerns about golden passports, schemes that amount to little more than a sale of citizenship by some EU member-nations to rich individuals in lieu of investments. The EU is understandably worried that many individuals with questionable credentials could use a golden passport to enter and operate in the region. This is an excellent opportunity to wonder aloud about what citizenship entails in today’s world, particularly because there have been plenty of other cases in the past year alone that drive home the need for more clarity on the subject.

First, there was the case of Roman Abramovich, a Russian billionaire, being granted Israeli citizenship and using that to enter the UK when the extension of his original visa was held up by red tape and tensions between the two countries. Israel grants citizenship to any person of the Jewish faith who wishes to relocate to the country and a person holding an Israeli passport can visit the UK without a visa for short periods. But is not a citizenship based on religious denomination an anachronism? Religion remains a powerful identifier but should it be a sufficient condition to gain citizenship of a country?

Second, the conversation following France’s football World Cup win earlier this year shows the need to distinguish between citizenship and nationalism. Hamsini Hariharan has written about this nationalism debate before in the Pragati Express. However, what would be of interest is to know how many of the victorious French squad hold dual-citizenship, something that is recognised by France. If the answer is yes, how would it affect the existing conversation?

Third, and not really connected to citizenship, is the farcical case of Boris Becker, the former tennis player seeking immunity from bankruptcy proceedings by claiming he has a diplomatic passport from the Central African Republic, which the latter denied. While there are genuine reasons for the continued existence of diplomatic immunity, an illustrative list of other cases from the past shows that the system can be abused. And, in the context of this post, if an individual with sufficient funds and influence manages to gain not just citizenship but also diplomatic immunity, there is surely a need to revisit the Vienna Convention on Diplomatic Relations to see if a change to the status quo is necessary.

Closer home, two features of Indian citizenship bear mentioning. One, the absence of dual-citizenship. Two, the absence of a monetary component, be it through net worth or investments in the country, to become a naturalised citizen under the Citizenship Act, 1955. These are sound positions, lending citizenship an exclusivity while at the same time avoiding the pitfalls that come with ascribing a monetary value to it. It would be interesting to see if the world moves towards a similar system in the future.

Note: It would remiss to end this post by only mentioning the positives of Indian citizenship without mentioning the recent furore over the register of citizens in Assam, which surely demands a better way of being handled than stripping four million people of their citizenship.

Deontology and Dogma

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When I read the Stanford Encyclopaedia of Philosophy entry on Deontological Ethics, I was struck by a phrase that brought out the distinction between deontology and consequentialism. It states that in deontology,

…the Right is said to have priority over the Good.

Does this mean that deontology as an ethical discourse is vulnerable to the influx of dogmatic positions masquerading as the Right? I ask this because deontology depends on a pre-emptive determination of whether a particular act passes the necessary ethical muster. This can lead to a regressive agenda hijacking the discourse and becoming the norm, suppressing dissident voices in the process.

In its defence, the article does provide a more nuanced study of deontology. It can be argued that a hijacking of the discourse would be antithetical to the way deontology is meant to function. For example, true agency is not being exercised in the agent-centric version of deontology if an individual is merely following the norms set by others. Similarly, a regressive position is unlikely to be in the interests of the subject matter of an act in the patient-centric version of deontology. Both of these are valid arguments for a continued engagement with deontological thought, particularly given some of the benefits that this discourse brings to the table.

That said, these discussions around ethical positions often take place in an ideal setting. This approach fails in a setting where actors do not necessarily spend a lot of time introspecting on the merits and demerits of their actions. Of course, this fallibility can be extended to any ethical standpoint that requires an individual to be aware of his actions. What this means for the study of ethical discourses is a different question altogether.

Note: If this short post seems muddled in its reasoning, it is because my thoughts on the subject are still in a state of flux. I do hope to attain more clarity on this in the future.

Frederick Douglass and Some Lessons for the Present

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Too often political speeches aim to temporarily rouse the passions of those who listen without making any attempt to be a record for posterity. To be prescient requires an understanding of human nature and the wisdom to foresee the future that is beyond the ability of many who engage in rhetoric. This cannot be said of Frederick Douglass, the American social reformer and abolitionist, and his speech What to the Slave is the Fourth of July?, delivered all the way back in 1852 but which remains timely even now.

The speech is a great piece of oration. It deserves to be read for the strength of its purpose and the clarity of its vision. Here are the two things in it that stood out for me, aspects that resonate in today’s world.

One, when Douglass refuses to engage in argument and reason with those who support slavery. Instead, he says he will rebuke such people and lay bare their faults as individuals. These are his words:

At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.

This is a position that is reminiscent of many of the so-called liberal elites today (exemplified, in the US at least, by several late-night show hosts). The reasoning goes that the people you are in opposition to hold values that you disdain so much that it makes no sense to try and reason with them, to engage in a conversation with the aim of persuading them to your line of thinking. Is this the best method to adopt? I do not have an answer to this yet.

Two, and a more unambiguous lesson at that, is that Douglass is critical of his nation’s hypocrisy when it comes to liberty: extolling it as one of the foundations on which the nation is built and at the same time depriving millions of their liberty under the institution of slavery. He does not mince his words when talking about these national inconsistencies. If someone were to utter the sort of harsh words that Douglass uses today, they are likely to be branded unpatriotic. But as Douglass’ example shows, calling out the ills of your nation is an act of patriotism itself. For only when you know where you are going wrong as a nation can you correct your course.

Note: For more information about Douglass’ life, I would recommend this episode from BBC’s In Our Time.

The Conundrum of Informed Consent

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I read The Immortal Life of Henrietta Lacks recently, a masterful book about the real-life story of a woman named Henrietta Lacks who died of cervical cancer in the 1950s. Before her death, Henrietta’s cancer cells were collected by doctors at the Johns Hopkins Hospital and it was found that they had a remarkable capacity to grow and proliferate. The sheer scale of the scientific achievements that followed and which owed a measure of credit to HeLa, as the cells came to be known, is immense. The crux of the book, however, is that Henrietta Lacks never gave informed consent to the harvesting of cells from her body.

Towards the end of the book, the author juxtaposes Henrietta’s case with that of other individuals, like Ted Slavin, who recognise the potential that parts of their bodies have for research and medical advancement, and ensure that they have control over who uses the tissue in question and under what circumstances.

The following text from the book, centred around these examples, is one of the best enunciations of the dilemma of informed consent that I have read:

“This is a capitalist society,” says Wayne Grody. “People like Ted Slavin took advantage of that. You know, the way I see it is, if you think of doing that on the front end, more power to you.”

The thing is, people can’t “think of doing that on the front end” unless they know their tissues might be valuable to researchers in the first place. The difference between Ted Slavin, John Moore, and Henrietta Lacks was that someone told Slavin his tissues were special and that scientists would want to use them in research, so he was able to control his tissues by establishing his terms before anything left his body. In other words, he was informed, and he gave consent. In the end, the question is how much science should be obligated (ethically and legally) to put people in the position to do the same as Slavin. Which brings us back to the complicated issue of consent. [emphasis from the text]

New Perspectives for Independence Day

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Last week, India celebrated more than seventy years of being independent. This is a fact that Indians should be proud of and we are, judging by the articles and news segments that are common during this time of the year. At the same time, it is useful to not look at the country’s independence and its progress in isolation. Taking a step back and looking at the experiences of other countries can provide an interesting perspective on our own journey and offer some lessons for the future. I thought of this as I came across some literature about Kenya over the past few weeks.

First was the novel A Grain of Wheat by Ngũgĩ wa Thiong’o, set during the time Kenya became independent in the sixties as well as the long period of emergency that preceded it. While the book illuminates much about how Kenya gained independence and how ordinary Kenyans approached it, what took me by surprise were the multiple references to India. India, by then, had already been an independent nation for the better part of two decades and was a model of resistance for people still struggling against colonialism elsewhere. One of the characters in the book makes repeated references to Gandhi and the spirit of non-violence that contributed to India’s liberation. There are also less charitable references to Indians vying with the Europeans to seize local markets at the cost of the indigenous population.

The second was about the prosecution service in Kenya which is, on paper, an excellent and well thought out mechanism. It provides for the Director of Public Prosecutions to be a Constitutional position answerable to the Parliament with adequate safeguards against executive interference. It is also a relatively recent system, with the current version of the Kenyan Constitution having been in force for less than ten years. It shows the advantage of learning from the mistakes of other countries. For instance, as was pointed out to me, it would be difficult for India, without a Presidential form of government and with the anti-defection rule in place, to adopt a similar model even if it guarantees to be an upgrade on our existing system.

So, to recap the lessons learnt: one, we should be mindful of our influence and our power in being role models for other countries. And two, wherever possible, we should take advantage of being late to the party by adopting systems and institutions that do not carry the heavy burden of legacy while being best-suited for our unique needs.

Public Transport and Nudges

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The messages in the Bangalore metro urging people to give up their seats to those who need them more are an excellent example of a nudge adopted to mould the behaviour of commuters. They are also a cautionary tale on the need for nudges to have the right messaging.

This is what the infographic says:

Please give up these seats for persons with disabilities, the elderly, women with children or pregnant women.

There does not seem to be much wrong with this at first glance. But a closer look reveals something disquieting:

Please give up these seats for persons with disabilities, the elderly, women with children or pregnant women. [emphasis supplied]

Why did it have to say women with children? Does this not act as a subtle propagation of existing gender roles for child rearing? This unfortunate state of things could have been easily avoided by the use of a gender-neutral expression, say, persons with children. What is infuriating is that a similar expression is, in fact, used earlier when a reference is made to individuals with disabilities. That this was not done for the other part of the message shows just how entrenched societal norms are when it comes to child rearing and the scale of the task before us to effect a change in them.

Hard and Soft Data Localisation

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Last year, when conversations were taking place on the kind of data protection framework India should adopt following the landmark privacy judgement, one issue kept turning up over and over. It seemed strange that the Justice Srikrishna Committee was seriously considering data localisation when most evidence suggested it did not protect citizens from foreign governments or agents and was harmful to the economy. It was little surprise then that the draft Personal Data Protection Bill released last week revealed a strong data localisation mandate.

Looking at the provisions around this in the proposed law, I see a distinction between two types of data localisation: a hard data localisation and a soft one.

Hard data localisation can be seen in Sec. 40(2):

40(2) The Central Government shall notify categories of personal data as critical personal data that shall only be processed in a server or data centre located in India.

This is the stereotypical notion of data localisation, one that completely restricts the ability of an entity to transfer data outside a set territory.

Soft data localisation, on the other hand, can be seen in Sec. 40(1) of the Bill:

40(1) Every data fiduciary shall ensure the storage, on a server or data centre located in India, of at least one serving copy of personal data to which this Act applies.

While this is not a complete restriction on cross-border data transfers like the previous one, it does impose costs on a data fiduciary. These costs, which might take the form of setting up local servers or procuring the services of an entity that provides local storage, is a real and tangible one. When the inevitable criticisms of the data localisation mandate in the Bill make it to the headlines, I hope this softer variant also attracts equal attention.