W7y8w3

NEPALSomebody’s watching me?Development Knowledge Management and InnovationServices Pvt. Ltd.Kishor Pradhanwww.dekmis.comIntroductionLocated in South Asia, Nepal is a relative latecomeras a republic in democratic circles. After more thana decade of insurgency, the interim constitutionpromulgated in 2007, which is still in force, pavedthe way for the first constituent assembly election(CAE) in 2008. The constituent assembly formedfrom this abolished the more than century-old monarchy.Nepal has been in the process of writing anew constitution since 2008. After the second CAEin 2013 and the formation of the second assembly,it is hoped that in a year or two the people of Nepalwill finally have the pleasure of a new constitutionand a stabilisation of the envisioned federal republicof Nepal.According to the latest Nepal TelecommunicationAuthority (NTA) Management InformationSystem Report published in February 2014, Nepal,with its population of 26,494,504, 1 has an 84.77%telephone penetration rate. The data shows there isa 74.97% mobile penetration rate among telephoneusers. At the moment, Nepal has an internet penetrationrate of 28.63%, with 7,585,761 users. 2The OpenNet Initiative (ONI) reported that Nepalhad little or no internet censorship in 2007. ONIconducted testing from October 2006 through January2007 on six Nepali ISPs, 3 and the tests revealedno evidence of filtering. 4However, four years ago, September 2010 wasa dark period for netizens 5 in Nepal who until thenhad enjoyed a free internet to its fullest extent. Theauthorities, out of the blue and citing the reasonsthat there had been an increase in crime and anti-1 www.cbs.gov.np2 www.nta.gov.np/en/mis-reports-en3 According to the Internet Service Provider Association of Nepalthere are currently 43 internet service providers and nine VSATnetwork service providers in Nepal. www.ispan.net.np/registeredisp-list4 https://opennet.net/research/profiles/nepal5 The term netizen is a portmanteau of the English words internetand citizen. It is defined as an entity or person actively involved inonline communities and a user of the internet, especially an avidone. en.wikipedia.org/wiki/Netizensocial activities using the internet, formed a specialcentral investigation bureau that started clampingdown on internet service providers (ISPs) to trackthe misuse of the internet by their subscribers. 6In 2011 the ISPs were told by the authorities tomonitor their subscribers’ activities and those whofailed to do so were jailed. Since then the governmenthas been monitoring the browsing details ofhigh-bandwidth subscribers. The NTA has directedISPs to provide information on all subscribers whouse a bandwidth of 1 Mbps or more. 7 The Nepalpolice work closely with NTA technicians now in ajoint task force to scan web details of users so thatthey can identify voice over internet protocol (VoIP) 8racketeers.The NTA further made it mandatory for ISPs toinstall filtering software to block websites that are“obscene, seductive and corrupt social morals”.Any content that threatens “religious harmony, nationalsecurity, and goes against values and beliefsof the state” was deemed objectionable enoughto be blocked. 9 Under pressure, the ISPs havebeen providing the police with Multi Router TrafficGrapher (MRTG) 10 data of subscribers for networktraffic monitoring since 2011.Of late Nepali netizens cannot help feeling that“somebody’s watching me” 11 while using the internetor communicating by some other technologicalmeans.Policy perspectivesIn order to assess the policy perspectives regardingprivacy rights and mass communications6 Pradhan, K. (2010, September 20). Can internet be muzzled inNepal? Nepalnews.com. www.nepalnews.com/index.php/guestcolumn/9294-can-internet-be-muzzled-in-nepal7 Mahato, R. (2011, July 22). Surfing under surveillance. NepaliTimes. nepalitimes.com/news.php?id=183958 VoIP is illegal in Nepal, although netizens use Viber, Skype, Tangoand other internet-based voice communication services.9 Mahato, R. (2011, July 22). Op. cit.10 The Multi Router Traffic Grapher (MRTG) is a tool to monitorthe traffic load on network links. MRTG generates HTML pagescontaining PNG images that provide a live visual representation ofthis traffic. oss.oetiker.ch/mrtg/doc/mrtg.en.html11 Somebody’s Watching Me was the title of a song by R&B artistRockwell, released on the Motown label in 1984. The song’s lyricsrelate the narrator’s paranoid fear of being followed and watched.en.wikipedia.org/wiki/Somebody’s_Watching_Mesurveillance in Nepal, primarily three legal or policyprovisions need to be considered.In Article 22 of the Constitution of the Kingdomof Nepal 1990, the right to privacy was addressed asa fundamental right for the first time. The right toinformation was also included in the constitution.Later, the right to privacy was retained in the 2007interim constitution, which remains in force today.Article 28 of the interim constitution states: “Exceptin circumstances as provided by law, the privacy ofthe person, residence, property, document, statistics,correspondence, and character of anyone isinviolable.” However, there is no government authorityto receive complaints regarding violationsof privacy rights, although people may submit applicationsand reports concerning violations of theirprivacy rights to the National Human Rights Commission(NHRC). It is also possible to file a case inthe Nepalese courts regarding violation of the rightto privacy. 12In Chapter 2 of The Right to Information Act of2007 (RTI Act 2007), entitled “Right to Informationand Provisions Regarding the Flow of Information”,Article 3 deals with the right to informationand states: “Every citizen shall, subject to this Acthave the right to information and every citizen shallhave access to the information held in the publicBodies.” 13 The right to information is however stipulatedby defining the parameters of the informationthat can be accessed; notwithstanding anythingprovided for in Sections (1) and (2) of the RTI Act2007, the information held by a public body on certainsubject matters cannot be disseminated. 14The Nepal Electronic Transaction Act of 2008 15serves as the cyber law in Nepal. In general it establisheslegal provisions on the “dos and don’ts”for using ICTs such as computers and the internet,and on the nature of content circulated online. Itprovides for the official and legal application ofelectronic transactions such as digital signatureand certification, but is silent about how privacy12 Privacy International. (2012). Nepal. https://www.privacyinternational.org/reports/nepal13 www.moic.gov.np/acts-regulations/right-to-information-act.pdf14 As per the RTI Act 2007, the subject matters on which informationcannot be disseminated by a public body include informationwhich seriously jeopardises the sovereignty, integrity, nationalsecurity, public peace, stability and international relations ofNepal; which directly affects the investigation, inquiry andprosecution of a crime; which seriously affects the protectionof economic, trade or monetary interest or intellectual propertyor banking or trade privacy; which directly jeopardises theharmonious relationship among various castes or communities;and which interferes with the individual privacy and security ofbody, life, property or health of a person.15 www.tepc.gov.np/uploads/files/12the-electronic-transactionact55.pdfwill be protected. Nevertheless, the cyber law hascritically empowered the authorities more when itcomes to protecting the privacy rights of people.Somebody’s watching me?When the authorities clamped down on ISPs in2010, they said that VoIP is illegal in Nepal but thatmany of the public communications service providerswere and still are rampantly using the internetto provide relatively low-cost calls. The authoritiesargued that, due to the illegal use of the internet foronline calls which bypassed the NTA, it was losingbillions of rupees every year. 16 Who was responsiblefor this was not clear, however, as the ISPs counteredthat they provide the internet bandwidth totheir subscribers – who could be public communicationsservice providers – but they cannot reallymonitor or regulate what the internet bandwidthgets used for.Further, the authorities claimed that the internetwas used for criminal activities, as no record canbe traced of internet calls. At the same time therewere increasing cases of “objectionable” contentbeing posted on websites from Nepal.Rubeena Mahato, reporting on the tougher controlsimposed by the NTA in 2010, emphasised that“MRTG data only allows monitoring the browsingpatterns of users, but could be a stepping stonefor the government to introduce censorship andintrude on private correspondence in the future.” 17Measures taken by the authorities in Nepal forspecific communications surveillance of criminaland objectionable activities are reasonable. Butthe monitoring of MRTG data entails mass communicationssurveillance. Mass communicationssurveillance entails surveillance of personal dataand metadata, or what the International Principleson the Application of Human Rights to CommunicationsSurveillance (IPAHRCS) – adopted througha global consultation with civil society groups,industry and international experts in communicationssurveillance law, policy and regulation in July2013 – defines as “protected information”. Informationthat includes, reflects, arises from or is abouta person’s communications and that is not readilyavailable and easily accessible to the general publicshould be considered to be “protected information”,and should accordingly be given the highestprotection in law. 1816 In July 2014, the exchange rate was approx. 96 Nepali rupees per 1USD.17 Mahato, R. (2011, July 22). Op. cit.18 https://en.necessaryandproportionate.org/text174 / Global Information Society Watch nepal / 175