Want to use a map? Go get a licence first

BY SMARIKA KUMAR| IN Law and Policy | 12/05/2016
Like earlier regulatory attempts, the draft Geospatial Bill is yet another response by the state to its bafflement about the Internet and how to govern it.
SMARIKA KUMAR calls it absurd and misguided

 

On May 4, 2016, the Ministry of Home Affairs released a draft of The Geospatial Information Regulation Bill 2016 which, according to the Note to the Stakeholders and Citizens attached to it, aims “to regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to affect the security, sovereignty and integrity of India.”

This Bill, interestingly, comes in the footsteps of concerns around different kinds of content on the web and on the Internet and their regulation in the country, which have been aired for a few years now. There was the Shreya Singhal case, which concerned the constitutionality of Section 66A of the Information Technology Act, 2008 that sought to criminalise, among other things, speech on the Internet which causes “offence” and “annoyance or inconvenience” to others.

Then there was the whole debate on net neutrality and the licensing of Over-the-Top (OTT) services including web  content apps like Facebook, Viber and Whatsapp, which saw the state, once again, raising its concerns about the implications of content circulating over the Internet. The Consultation Paper issued by the Telecom Regulatory Authority of India (TRAI) in this regard outlines this concern as follows: “Communication OTTs can entirely unintentionally cause disturbance and affect the social fabric. Of course, there is also the possibility of deliberate misuse of communication OTTs, to sow disharmony and discord. The recent inflammatory text messages and depictions through videos/photos circulated in Bangalore using various apps/ SMS, targeting students from the North East is but one such example” (see para 3.24, Consultation Paper).

It is in the wake of such developments that the framing of this new Geospatial Information Regulation Bill needs to be considered. Like these other attempts before it, this Bill is also another response by the state to its bafflement about the Internet and how to govern it. And like the other attempts, the Geospatial Bill is also not well-thought out. Here are some salient features of the Bill which make it problematic for citizens’ rights and media freedom.

 

Excessively wide scope of regulation

The Geospatial Bill seeks to regulate “geospatial information”.  But what constitutes “geospatial information?” Section 2(e) of the Bill defines it as the following:

Geospatial Information means geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition; or graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto including surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes;”

As one can notice, this definition is so expansive that it has the ability to cover everything from the Google maps you use on your phone (which would be covered by the part of the definition which says, “geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition”) to a rough sketch of the route you might draw for a friend of yours for her to get to your place from the bus stop (which would be included in “graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth”). Also, one wonders what happens to outline maps, which kids in schools all over the country purchase and use to map various locations in the country, for their history and geography lessons? It is not very clear.

To seek to regulate at this level of detail is a truly mind-boggling task, if not impossible. How does the state ever hope to enforce such a law? These things remain a mystery and, given our experience of living in this country, we can easily guess that enforcement of such a law might border on the illegal.

 

Back to the Licence Raj? 

It is a funny thing that the current government tries so hard to distinguish itself from the Congress Party but now seeks to replicate the very legal institution which has characterized the rule of the Congress in all the decades before now, viz. a licensing system. And in this particular case, a media licensing system.

Section 3 of the Geospatial Bill sets up a “Security Vetting Authority” to grant a licence for any newly acquired “geospatial imagery or data including value addition of any part of India” (see Section 3(1) of the bill) and for already acquired “geospatial imagery or data of any part of India” (see Section 3(2. Basically, this means that to create any kind of map or map form, one will need to seek a licence from the Security Vetting Authority which is proposed to be granted “within three months from the date of receipt of an application made”.

Upon careful reading, it is clear that the Bill actually requires a licence not just for the creation of maps, but also for their use.  This is clear from the wording of Section 4 when it states:

“Save as otherwise provided in this Act, rules or regulations made thereunder, and with the general or special permission of the Security Vetting Authority, no person shall disseminate or allow visualization of any geospatial information of Indiaeither through internet platforms or online services, or publish or distribute any geospatial information of India in any electronic or physical form.”

In the age of the Internet, preventing people from publishing and distributing the geospatial information of India “in any electronic or physical form” without a licence, in the manner that this section lays down, will amount to basically preventing people from sharing maps both online and electronically. And since the entire value of a map, like that of any expressive form, lies in sharing, such an embargo will also mean that maps cannot be used online (because online sharing and use of maps will always entail creating a copy of it on your own computer system) without a licence.

Of course, what the terms “publish” and “distribute” might mean under this Bill have not been defined either, but that lack of conceptual clarity is only to be expected from such a badly drafted piece of legislation.

 

What happens to Google Maps and services which use them?

As explained above, Google Maps, being a kind of online map, will be affected by the Geospatial Bill since it will be included under a service which publishes and distributes “geospatial information of India in any electronic or physical form.” While it is true that regulation concerning the “correct depiction” of India’s maps has existed for a long time now (as under the National Map Policy 2005), when it comes to online maps, global positioning data, and satellite maps especially, the government has been lax in enforcing these regulations. It is in this poorly implemented regulatory environment that Google Maps and services like Ola, Uber, and Swiggy which use them on their apps, have functioned.

With this Bill, the government is indeed looking to tighten this regulatory environment, as is evident when it carves out a specific enforcement mechanism (including the creation of an Enforcement Authority - see Chapter VI of the Geospatial Bill). But this should not be a ground to protest merely against the better implementation of this regulation (as this article seems to suggest), for who would not want laws to be better implemented? The fault, or the problem, lies in the law itself which has deeply colonial flavour and can be traced as a part of a series of laws, with colonial continuities, which have been enacted to control the flow of information in India.

If we criticized the new Geospatial Bill merely on the grounds that it seeks better implementation of the principles of information control, what kind of legal principles would we be carving for ourselves from a long-term point of view? This kind of approach may be dubbed pragmatic -  pragmatic in the sense of a band-aid solution only - but it will also be foolhardy. Because in law, as in life, if we choose our principles based merely on the immediacy of the problem, we will never have any fixed principles upon which to create a legal structure or a philosophy. Our foundations will be continuously shifting and how sustainable an approach to good lawmaking is that?

Moreover, it is not clear whether the licence needs to be applied for by a person or entity each time they create or plan to create a new map, or whether once a licence is granted, it entitles the licensee to make as many maps as possible. Section 9(1) of the Geospatial Bill reads, “Any person who wants to acquire, disseminate, publish or distribute any geospatial information of India, may make an application alongwith requisite fees to the Security Vetting Authority for security vetting of such geospatial information and license thereof to acquire, disseminate, publish or distribute such Geospatial Information in any electronic or physical form.” This does not make it clear whether such “any person” has to make a new application every time they wish to “acquire, disseminate, publish or distribute any geospatial information of India.”

 

Criminalization of the use of unlicensed maps

Section 12 of the Geospatial Bill states: “Whoever acquires any geospatial information of India in contravention of section 3, shall be punished with a fine ranging from Rupees one crore to Rupees one hundred crore and/or imprisonment for a period up to seven years.”

In this manner, the Bill criminalises any contravention of its licensing provisions and lays down, among other things, that anyone who creates, publishes or distributes unlicensed maps will be subject to a jail sentence of up to seven years. This seems like harsh punishment for such a violation.

One of the more terrifying features of the Geospatial Bill is how it seeks to lock down information about India by preventing it from being shared in or with people in other countries. Section 5 of the Bill reads:

Save as otherwise provided in any international convention, treaty or agreement of which India is signatory or as provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall, in any manner, make use of, disseminate, publish or distribute any geospatial information of India, outside India, without prior permission from the Security Vetting Authority.

This means that the Bill basically prevents any sharing or dissemination of maps of India or its territories even outside the territory of India without a licence from the Security Vetting Authority. Not just that, one may not share such maps without an appropriate licence with any person residing outside India.

In an increasingly connected world, this borders on the ridiculous. Imagine not being able to send a map of your city, for example, to a friend of yours residing in the US, without first applying for the relevant licence from the Security Vetting Authority! Such a provision seems more appropriate to North Korea than India. 

 

Smarika Kumar is an independent legal researcher and was formerly with the Alternative Law Forum, Bangalore.

 

 

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