Submission to Court in YouTube Case: May 13, 2014

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Date: May 13, 2014

Writ Petition 958­2013: BytesforAll vs Federation

Lahore High Court

Submitted to:

Justice Syed Mansoor Ali Shah & Justice Atir Mahmood

Honourable Sirs,

Below is a summary of the discourse that has taken place in court over the last year, on lifting the ban on YouTube, and input that has been gathered from stakeholders outside it.

In this regard, two notable events must be mentioned:

1)     The Senate Functional Committee on Human Rights passed a unanimous resolution on April 29, 2014, to lift the ban on YouTube (Annex A)

2)     The National Assembly unanimously passed a resolution to lift the ban on YouTube on May 6, 2014 (Annex B)

In the following pages, is a summary of discussions including proposed solutions.

Thank you.

Farieha Aziz

Director, Bolo Bhi

Summary of hearings and submissions before court:

Policy

–       When Google was approached to remove the offending video, Innocence of Muslims, by Pakistan, the following was Google’s response on why they didn’t block it (as per their letter to Lahore High Court in the YouTube case):

1)     Unless a video violates community guidelines or is flagged by a number of users, nothing is removed from .com

2)     Access to the offending video was restricted in countries where YouTube offers a localized service i.e. country-level domain in compliance with local laws

–       Google has no legal presence in Pakistan and YouTube does not offer a localized service i.e. offers a country-level domain (i.e. youtube.com.pk)

–       In the letter to court, Google stated the decision to localize was based on commercial interests and the legal environment of a country, among others, and for Pakistan, there were no immediate plans to localize

–       What was offered to Pakistan like Bangladesh and Afghanistan where there is no local presence, were interstitials – warning screens before the offending video

What other countries did in response to the objectionable video

–       Upon the request of the following countries, the video was restricted by Google/YouTube in: Indonesia, India, Jordan, Malaysia, Russia, Saudi Arabia, Singapore and Turkey where there exist localized versions of YouTube or the company is registered

–       Pakistan, Bangladesh and Afghanistan – where Google is not registered nor is there a localized version of YouTube – banned YouTube since the video was not restricted

–       All three countries were offered interstitials – warning screens before the offending video marking it as objectionable content

–       While Bangladesh and Afghanistan accepted interstitials and proceeded to lift the ban on YouTube in 2013, Pakistan chose to keep the ban in place

–       Pakistan is the only country – including the only Muslim country – where YouTube is still banned in reaction to the video

SOLUTION: Interstitial screens

Technology

–  According to the Pakistan Telecommunications Authority, the entire website had to be blocked as particular links to the offending video could not be blocked due to technological capability

–  PTA’s response to court on the technological capability was as follows:

1)  YouTube’s traffic is served through HTTPS, which means all sessions are secure and encrypted

2)  While HTTP (unencrypted) links have been blocked, there is no way to block HTTPS traffic

3)  Attempting to tamper with HTTPS traffic (which would not be limited to just YouTube but 
Internet traffic as a whole), would be detrimental to commerce and industry in the country, said a 
PTA official in court

–  Despite this, the government has been in pursuit of filters

–  Filters for HTTPS traffic not only violate privacy but are a security breach, tampering with legitimate 
certificates of websites, leading to the weakening of secure communication online which would have an adverse impact on cyber security, exposing passwords and online transactions such as credit card and banking information

–  PTA Chairman has stated before the Senate that there exists no technology in the world that can block content on the Internet 100% (Annex C)

– This is clear through the use of proxies by citizens to circumvent the ban on YouTube; however, not only are proxies slow but they infect users’ computers with viruses and malwares and not a solution

–       Alternately, Internet Service providers can offer Value Added Services that Internet users can opt for if they want certain material blocked for consumption in their homes or, alternately, employ freely available softwares on their machines that they can manage themselves (Annex D)

SOLUTION: Self-regulation with the help of value-added services by ISPs or free software tools, along with parental control for children and viewer discretion for adults

– – – – –   – – – – –   – – – – –   – – – – –

    The video, Innocence of Muslims, uploaded to YouTube by a user, must be condemned in the strongest words possible. While there are no two views that this video has hurt and offended sentiments, there are better ways of registering a protest against this video than a blanket ban on YouTube. The continuing ban on YouTube in Pakistan, which has been in place for nearly a year-and- a-half now, is depriving the citizens of Pakistan access to a platform where they can not only counter such videos by uploading positive ones about Islam and its teachings, but also utilize this platform for the acquisition of knowledge.

Right to Information

–  YouTube is a global video-sharing platform that hosts content uploaded by users from across the world

–  Before the ban, YouTube was being used by Pakistanis to access various types of content: lectures on Islam to recitations of the Quran; academic lectures shared by Ivy League universities; news bulletins and political talk shows by local media outlets etc

–  Musicians and artists in Pakistan were using it to promote their work across the world

–  Small businesses, start-ups and entrepreneurs were using it to market their work and products

–  YouTube was also a source of entertainment

– Based on a rudimentary analysis of only a limited number of YouTube channels and publicly available data, the following table summarizes categorized viewership of YouTube videos (shared by Khurram Zafar, July 2013):

Add

Click on image for full view

– The ban on YouTube violates citizens’ right to information

Legal Perspective

–  The ban on YouTube was placed through an executive order, issued by the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW), announced by then Prime Minister, Raja Pervez Ashraf on September 17, 2012

–  The IMCEW (whose secretariat is housed under the Ministry of Information Technology & Telecommunications [MOIT]) is not a statutory body constituted through an Act of parliament and derives no legal authority to issue directives to prevent access to any website or content

–  Nevertheless, the IMCEW’s orders are consistently implemented by the Pakistan Telecommunications Authority (PTA) through directives issued to its licensees (Internet Service Providers)

–  PTA, in compliance with an IMCEW order, instructed that an ‘IP-level ban’ be placed on YouTube

–  The PTA Reorganization Act of 1996 also does not give the Authority legal cover to prevent access to 
websites or content (Annex E)

Solutions:

–  A simple marketing principle for the web is this: the more you talk about something, the more traction it gets. In essence what the YouTube ban has done is popularize an otherwise unknown video and filmmaker, and driven traffic to the offending video – contrary to what should have happened

–    Alternately, the simple solution would have been just not to watch the video or any such material; unless one makes an effort to go to the specific URL, the video will not just show up

–     Unlike television, on the Internet, accessing content is a matter of choice; unless one deliberately undertakes the task of searching for a particular video and presses the play button, one cannot watch it

–  In blocking the entire domain, Pakistani citizens have been prevented from accessing a lot of useful content hosted on the platform and continue to suffer as a result

–  Empowering the state to make decisions for what is permissible and what is not sets a dangerous precedent; personal morality and political preferences then become the yardstick

–  Spending millions on filtering technology which for one, does not work, and placing it in the hands of state authorities is equivalent to giving them a carte blanche for setting up roadblocks where they please, restricting access to areas and breaking into citizens’ homes

–  The right to privacy, dignity, security, speech and information will be severely compromised, doled out at the state’s discretion

–  Self-regulation at the home-level is a better option than state regulation

Short-term solution: Interstitials as a solution to lift the ban on YouTube.

Long-term solution: The government and stakeholders work together to enable citizens to better control their access to the Internet, by raising awareness on safe Internet surfing including freely available tools, or alternately work to provide such tools and services, for example value added services, that users can opt for.

Annexure

A: 

Senate Committee Resolution Seeks to Lift YouTube Ban – DAWN

Senate Human Rights Committee Passes Resolution to Lift Ban on YouTube – Bolo Bhi

B: 

NA Unanimously Approves Resolution for Lifting Ban on YouTube – DAWN

NA Unanimously Passes Resolution to Lift Ban on YouTube – Bolo Bhi

Opposition Unites to Lift Ban on YouTube

MOIT Says It Will Comply With Court – But Has It?

C: 

PTA Chairman pleads for YouTube Ban Lifting – The Nation

No Way to Block Internet Content, NA Told – Dawn

D: 

Lifting the YouTube Ban in Pakistan – A Possible Solution by Khurram Zafar

E: 

Why the YouTube Ban is Illegal and Undesirable by Babar Sattar

 See Related Posts Here:

1. Summary of hearings April 12 and 26

2. Submissions to court made by Bolo Bhi up to July 4, 2013 

3. Submission by amicus Khurram Zafar on home-based blocking vs state
blocking

4. Google’s letter to court

5. PTA’s submission to court – July 25:

Part 1

Part 2

Part 3

6. Joint submission by Farieha Aziz and Khurram Zafar

7. Bolo Bhi’s submission to court on educational value of content available on YouTube (Part 1) – August 2, 2013:

Part 1

Part 2: Letters by 4 individuals – August 2, 2013:

Toffee TV

Salman Ansari

Imtiaz Noor

Muhammad Ismail

Interim order by Justice Syed Mansoor Ali Shah

 

Farieha Aziz is a Karachi-based, APNS-awardwinning journalist. She is a co-founder and Director at Bolo Bhi. She has a masters in English literature. She worked with Newsline from July 2007-January 2012 and taught literature to grades 9-12. She served as an amicus curiae in a case filed in the Lahore High Court in 2013, challenging the ban on YouTube, and is currently a petitioner on behalf of Bolo Bhi in a case filed in the Islamabad High Court challenging government's censorship on the Internet and the powers of the regulator. She can be found on Twitter: @FariehaAziz and reached via email: farieha@bolobhi.org

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