restrictions129 even though the government reportedly had tried to block VPNs as well.130 On 7 August 2017, the Government of India released, quietly and without any preceding public consultation, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017. The rules have been framed under section 7 of the Indian Telegraph Act, 1885, which reads: 7. Power to make rules for the conduct of telegraphs.— 1) The Central Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act for the conduct of all or any telegraphs established, maintained or worked by the Government or by persons licensed under this Act. (2) Rules under this section may provide for all or any of the following among other matters, that is to say: […] (b) the precautions to be taken for preventing the improper interception or disclosure of messages; […] (k) any other matter for which provision is necessary for the proper and efficient conduct of all or any telegraphs under this Act. Rule 2(1) of the new rules reads: Directions to suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent authority), and in unavoidable circumstances, where obtaining of prior direction is not feasible, such order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be: Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the confirmation from the competent authority within 24 hours of issuing such order: 129 Hindustan Times. (2017, 27 May). J-K government lifts ban on social media in Kashmir. Hindustan Times. www.hindustantimes. com/india-news/j-k-government-lifts-ban-on-social-media-inkashmir/story-U9dfX6tswZhmrqTYFITk5J.html 130 Kashmir Post. (2017, 4 May). Cyber Cell begins snapping VPN’s: Blocking the blocked. Kashmir Post. www.kashmirpost.org/2017/05/04/ cyber-cell-begins-snapping-vpns-blocking-the-blocked Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of confirmation from the competent authority within the said period of 24 hours. Any directions for suspension of services in addition need to be reviewed within five days by a Review Committee set up by the union or state government. Insofar as the rules provide a clearer procedure for network shutdowns and limit the authorities that can impose them, taking this power away from district-level authorities, they seem a step forward. However, seeing that both the authority who can order a shutdown and the Committee that reviews that order are from within the executive, there remains cause for concern. As the rules do not specify what can be considered a “public emergency” or a “threat to public safety”, broad concerns around public order and public safety will likely continue to trump concerns for freedom of expression and other human rights, at enormous cost to the latter. As they can rarely be considered a solution that is necessary and proportionate, internet shutdowns should only be resorted to in the most extreme of circumstances. It is unlikely, however, that these rules will ensure that shutdowns will indeed become such an exception. Rather, they seem to legitimise the practice, even if they may perhaps help to somewhat reduce the number of shutdowns in the future. Moreover, while the rules regulate “temporary” shutdowns, they do not provide any restrictions on the time period for which an order for suspension can be valid. In addition, while the reasons for an order of suspension of services need to be recorded in the order, the rules do not make it mandatory for the government to make those reasons public. ISPs are committed to follow government orders to shut down services as per their licence agreements. For example, the Unified Licence Agreement states explicitly that the government has: the right to take over the service, equipment and networks of the Licensee (either in part or in whole of the service area) in case any directions are issued in the public interest by the Government of India in the event of a National emergency/war or low intensity conflict or any other eventuality. Conflicts such as those in Kashmir and the NorthEast are of the low intensity variety. In addition, ISP licence agreements note explicitly that the government reserves the right to keep any area out of the operation zone of the service if implications of security so require. 76 / Unshackling Expression