Mishi Choudhary, on the three legged stool: Law, Tech & Policy
Interviews

Mishi Choudhary, on the three legged stool: Law, Tech & Policy

Varun Marwah

Mishi Choudhary, is a technology lawyer, Legal Director of the Software Freedom Law Center, New York and the Executive Director of Software Freedom Law Center, India. One of Asia Society’s 21 young leaders of 2015, Mishi Choudhary spends her time between New York and India, representing some of the most significant free software developers in the world.

In this interview with Bar & Bench’s Varun Marwah, Mishi Choudhary talks about a wide range of topics covering, among other things, net neutrality, cyber security and online privacy.

(Edited excerpts)

Varun Marwah: As a lawyer, what does your work entail?

Mishi Choudhary: I divide my time between our practice in New York and India. I am the primary legal representative of many of the world’s most significant free software developers and non-profit distributors, including Debian, the Apache Software Foundation, and OpenSSL. Our practice is a mix of pro-bono and paid work.

We consult with and advise established businesses and startups using free software in the US, Europe, India, Japan, China and Korea. We advise on issues of Free and Open Source Software, software licensing, software patents inter alia.

We also represent many emerging innovators-start-ups helping them meander through complex and seemingly contradictory rules and regulations of privacy laws, electronic information management, terms of service, intermediary liability and intellectual property rights. This learning helps us give back to the society in form of not-for-profit policy work.

The rest of our practice is concentrated on being perched between law, technology and policy, helping policy makers make sound, informed policy.

Varun Marwah: How often does your work take you to the courts?

Mishi Choudhary: If you are a counsel more than a litigating lawyer, your primary endeavour is to find win-win solutions for all parties. In such situations, litigation is expensive and therefore avoided unless push comes to shove. Having said that, if required we do approach relevant courts to defend our clients. We regularly file Amicus Briefs in the U.S. Supreme Court.

In India, we litigate often on behalf of clients. For example, despite the Shreya Singhal judgment, many people are still being prosecuted under Section 66A of the Information Technology Act, and new start-ups are regularly dragged into litigation.

Varun Marwah: What work does SFLC.in do?

Mishi Choudhary: It’s an independent not-for-profit civil society organization that brings together lawyers, policy analysts, technologists, journalists and students to protect freedom in the digital world.

“SFLC.IN promotes innovation and open access to knowledge by helping FOSS developers”
“SFLC.IN promotes innovation and open access to knowledge by helping FOSS developers”

SFLC.IN promotes innovation and open access to knowledge by helping FOSS developers, protects privacy and civil liberties in the digital world through free legal advice, and also helps policy makers make informed and just decisions on technology.

Varun Marwah: How is SFLC.in funded?

Mishi Choudhary: Our practice, friends, and family. Our primary institutional funder is SFLC, New York.

We will soon be launching a supporter program to receive individual donations and crowd source our funding.

Varun Marwah: Thoughts on the Indian regulatory landscape with respect to Internet laws? Is there a huge regulatory void considering the rapid pace of technology ?

Mishi Choudhary: I would say that yes, the Information Technology Act is not sufficient to address the myriad issues that emerging technology is creating. The provisions of the Act are often twisted and turned to serve purposes that it was not designed for.

There is much to be applauded about our adoption of technology and disruption of old frameworks, but without any discussion of law and policy as an inherent part of policy making, we are setting up for disasters of a very different nature.

The ethics of emerging technology will be the ethics of human privacy and we don’t even have clarity on whether Indians have a right to privacy or not.

The ethics of emerging technology will be the ethics of human privacy and we don’t even have clarity on whether Indians have a right to privacy or not. We all talk of ubiquitousness of mobile phones and connecting the world without any discussion on what it means that all behavioural aspects of humans are to be transparent to such machines. It’s important not to be dazzled by technology and lose sight of its effects on individual rights and consumer aspects of what that entails.

One must appreciate the Government’s attempt at streamlining regulatory structures, for example TRAI’s various consultations around broadband proliferation, cloud computing etc. But the conversations sorely lack the multi-disciplinary inputs and nuanced, sophisticated positions.

Varun Marwah: Your views on TRAI’s Prohibition of Discriminatory Tariffs for Data Services Regulations of 2016 (February Regulations)?

Mishi Choudhary: The February Regulations put India and its regulator on the global map, a stance which has been appreciated, applauded all over the world, especially for a democracy like India that is leapfrogging into a technological future. With Reliance Jio’s entry into the market, the falsity of telecommunications service providers losing business is also exposed. World over we are witnessing network neutrality becoming an advertising point with companies.

This summer, BEREC’s final guidelines offer some of the strongest net neutrality protections in the EU. In the U.S., the FCC reclassified broadband Internet service as a telecommunications service in order to preserve net neutrality.

What we need is an overhaul of the regulatory structure. We need lightweight regulation for Wi-Fi providers that focuses on easy entry for smaller players and enables them to empower not only themselves by becoming self-employed but also empower the general population by bringing broadband Internet access to the unconnected. We need to de-license some bands in the spectrum for example de-licensing of TV UHF band is highly significant for middle mile connectivity and for new innovative technologies to emerge.

Varun Marwah: What is your take on Free Basics?

Mishi Choudhary: SFLC.in has had a stance against Free Basics since it was Internet.org. Free Basics by Facebook offered Indians the right to send all their traffic, tied to their personal identifying data, through Facebook servers, thus allowing Facebook to spy on all the Internet traffic of tens of millions of Indian consumers.

“We are not against private players increasing access but we are against letting people with deep pockets becoming gate keepers in choosing winners and losers.”
“We are not against private players increasing access but we are against letting people with deep pockets becoming gate keepers in choosing winners and losers.”

We are not against private players increasing access but we are against letting people with deep pockets becoming gate keepers in choosing winners and losers.

Businesses should be transparent in their motives and not wrap market acquisition strategies in the cozy blanket called charity.

I squirm at the idea that we in the developing world need a poorer internet that is the subset of the real promise of the net.

Fair regulatory pricing of telecommunications tariffs in India would allow the Indian poor access to data service, as they now have access to mobile telephony, at prices they can afford. I think there are many benefits that Facebook and its various products offer but consumers deserve transparency and the option to make informed choices.

Varun Marwah: I personally find it quite disturbing when I receive targeted advertisements.

Mishi Choudhary: I am glad you find it disturbing, but what are you doing about it? If I have to have any success in my work then I have to choose my battles carefully. Right now, my entire endeavour is to make companies more transparent in what they inform their customers. Awareness, education about risks and then the consumer can decide.

I do think there are options; perhaps people are not aware of it. They don’t always have to be on these platforms and there are safer ways of browsing. For example the TOR network, encrypt your emails, ask for decentralized social networking, Firefox with its various plug-ins, using privacy respecting apps like Signal to communicate. Let laziness and convenience not prevent you from controlling your own life and data about you.

Let laziness and convenience not prevent you from controlling your own life and data about you.

In my organization, we only run free and open source software. I don’t have a Facebook account, but I do have a Twitter account. I know what I am putting out; I know what Twitter does with my data. And if I have to share files with my friends and my family, then I use encrypted email and safer platforms.

Varun Marwah: What about Whatsapp? Now that it has end-to-end encryption.

Mishi Choudhary: Yes, but we have seen the recent changes in its privacy policy. You still have time until September 30 to opt out. Users are increasingly getting smarter, many of my young friends tell me how Facebook is for grandparents and parents and not for them. They prefer other services that respect their privacy.

Companies understand they need to maintain the trust of their users and cannot treat them with contempt. If you don’t trust their phone or platform, you will stop using their services and move ahead. Therefore companies have to change.

Varun Marwah: Google has been integrated into our lives now, which is quite troubling.

Mishi Choudhary: If you get troubled then find a solution! There are solutions; they may not be perfect and may make your life a little less convenient but they will offer you more control. Make smart choices.

We recently saw a Citizen Lab report about how a government targeted an internationally recognized human rights defender, Ahmed Mansoor, with the Trident, a chain of zero-day exploits designed to infect his iPhone with sophisticated commercial spyware.

https://citizenlab.org/2016/08/million-dollar-dissident-iphone-zero-day-nso-group-uae/

Varun Marwah: Where do we stand with cyber security rules? Do you think data retention, national security and privacy are somewhat conflicting in nature?

Mishi Choudhary: I don’t think so. I personally think that people who talk about balance and harmonization are well-intentioned people but don’t understand technology. Math doesn’t work differently for good guys and bad guys. I don’t think there is any security without privacy. There is a war starting all over again over encryption where we will hear a lot of rhetoric about national security requires us to rob everyone of privacy. The issues are more nuanced and not as black and white as both sides want us to believe.

Varun Marwah: What about mass surveillance as opposed to targeted its surveillance?

Mishi Choudhary: Each society has an obligation to its citizens to protect them from mass surveillance from an outside Government. And any kind of internal surveillance has to be subject to be the rule of law. No Government can tap phone conversations to settle personal scores. The Government also has an obligation to protect us from itself and the only way it does that is through rule of law. I don’t think that mass surveillance is acceptable in any society at that level.

I want to work for cyber peace because cyber war will only lead to wastage of resources.

Considering the society which we are looking at and whatever is happening in the world in terms of cyber security, I want to work for cyber peace because cyber war will only lead to wastage of resources. There have always been rules about war (the Geneva Convention). We can probably waste another 100 years now appending the word cyber to everything and then pretend as if it’s very different. We can all get hacked, and keep hacking each other including critical national resources. We all have to convene to set rules of cyber peace, no matter what jurisdiction we sit in.

Varun Marwah: How can young lawyers or public policy students contribute?

Mishi Choudhary: Be humble, the pace at which technology is changing the human race is unprecedented so nobody is an expert. Be mindful of the fact that there is a three legged stool on which issues are perched : law, technology and policy. The moment you try to take one leg away, you lose the balance. Maintain your curiosity, practice what you preach in terms of technology. Knowing how to use multiple apps doesn’t make you tech-savvy.

I believe in that imperfect interpretation of Dante’s Inferno that, “The hottest places in hell are reserved for those who, in a period of moral crisis, maintain their neutrality”.

The field is open and hungry; it can accommodate a large number of people and it needs all of you who have perhaps have limited knowledge of the world without technology. It will take time to learn the ropes but that holds true for any field of law.

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