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or any other content, messages, or communicationsinfringing copyright, intellectual property etc. inany form, from being carried on [their] network, consistentwith the established laws of the country.”Furthermore, if specific instances of infringementare reported by enforcement agencies, the serviceprovider must disable the content immediately. 20 Inthe case of India, requirements for the provision oftechnical assistance in surveillance and retention ofcall detail records 21 and subscriber information arealso included in the operating licences for serviceproviders. 22Social networks: Social networks such asLinkedIn, Facebook and Twitter – which are oftenmultinational companies – are not necessarily subjectto the legal intermediary liability requirementsof multiple jurisdictions, but they are frequentlyfaced with requests and orders for user informationand removal of content requests. To address thesepressures, some companies filter content on a countrybasis. In June 2014 LinkedIn was criticised in themedia for complying with orders from the Chinesegovernment and filtering content in the region. 23Similarly, Twitter was criticised by civil society forwithholding content in Russia and Pakistan in May2014, though in June 2014 the company reversedits decision and reinstated the withheld content. 24Social media platforms are also frequently and increasinglyused by law enforcement and the statefor collecting “open source intelligence”. 2520 Licence Agreement for Provision of Unified Access Services AfterMigration from CMTS, Section 40.3. www.auspi.in/policies/UASL.pdf21 Call record details consist of information about a subscriber’suse of mobile and broadband networks and can include: callednumbers, subscriber name and address, date and time of the startand end of a communication, type of service used (SMS, etc.),international mobile subscriber identity, international mobileequipment identity, location details. For more information see:Afentis Forensics, “Telephone Evidence: Mobile telephone forensicexaminations, Billing Records, Cell Site Analysis”. afentis.com/telephone-evidence22 Licence Agreement for Provision of Unified Access Services AfterMigration from CMTS, Section 41.10. www.auspi.in/policies/UASL.pdf23 Mozur, P. (2014, June 4). LinkedIn Said it Would Censor in China.Now That It Is, Some Users are Unhappy. The Wall Street Journal.blogs.wsj.com/chinarealtime/2014/06/04/linkedin-said-it-wouldcensor-in-china-now-it-is-and-some-users-are-unhappy24 Galperin, E., & York, J. (2014, June 23). Twitter Reverses Decisionto Censor Content in Pakistan. Electronic Frontier Foundation.https://www.eff.org/deeplinks/2014/06/twitter-reversesdecision-censor-content-pakistan25 Open source intelligence has been widely recognised as anessential tool for law enforcement and security agencies. Opensource intelligence is derived from information that is publiclyavailable from sources such as the internet, traditional media,journals, photos, and geospatial information. For more informationsee: Central Intelligence Agency. (2010, July 23). INTellingence:Open Source Intelligence. Central Intelligence Agency. https://www.cia.gov/news-information/featured-story-archive/2010-featured-story-archive/open-source-intelligence.htmlTechnology, intermediary liabilityand state surveillanceWhen intermediaries implement legal requirementsfor the blocking or filtering of content, they do so byemploying different techniques and technologiessuch as key word filtering software, firewalls, imagescanning, URL databases, technologies that enabledeep packet inspection, etc. 26 Similarly, complyingwith legal mandates for interception or monitoringof communications also requires intermediaries toinstall and use technology on their networks. Aspointed out by La Rue, technologies used for filteringalso facilitate monitoring and surveillance asthey have the ability to identify and track words,images, websites and types of content, as well asidentify individuals using, producing or associatedwith the same. 27 For example, YouTube offers copyrightholders the option of YouTube’s “Content ID”system to manage and identify their content on theplatform. Actions that copyright owners can choosefrom include muting audio that matches the musicof copyrighted material, blocking a video from beingviewed, running ads against a video, and trackingthe viewer statistics of the video. These options canbe implemented at a country-specific level. 28Removing the service providerfrom surveillanceWhile some governments are placing obligationson intermediaries to assist with surveillance, othergovernments are removing such obligations fromservice providers through surveillance measuresthat seek to bypass service providers and allowgovernments and security agencies to directly interceptand access information on communicationnetworks, or measures that require service providersto allow security agencies a direct line intotheir networks. For example, India is in the processof implementing the Central Monitoring System,which is envisioned to allow security agencies todirectly intercept communications without the assistanceof service providers. Though this systemremoves obligations on service providers to assistand be involved in specific instances of surveillance,it also removes a potential safeguard – where26 Bloxx. (n/d). Whitepaper: Understanding Web FilteringTechnologies. www.bloxx.com/downloads/US/bloxx_whitepaper_webfilter_us.pdf27 Frank La Rue, Report of the Special Rapporteur on the promotionand protection of the right to freedom of opinion and expression,United Nations General Assembly, 17 April 2013. www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf28 YouTube, “How Content ID Works”. https://support.google.com/youtube/answer/2797370?hl=enservice providers can challenge or question extralegalor informal requests for surveillance. In the2014 Vodafone Law Enforcement Disclosure Report,the company notes that in select countries,law enforcement and authorities have direct accessto communications stored on networks. 29The question of jurisdictionJurisdiction and the applicability of local law is atension that arises in the context of intermediaryliability and surveillance. Some facets of this tensioninclude: to what extent do legal restrictionson content apply to multinational platforms operatingin a country? To what extent can states accessthe communications passing or being stored in itsterritory? And to what extent do domestic protectionsof fundamental rights – including freedomof expression and privacy – apply to foreigners aswell as nationals? The OHCHR in The Right to Privacyin the Digital Age shed some light on thesequestions, drawing upon a number of internationalinstruments and firmly asserting that any interferencewith the right to privacy must comply with theprinciples of legality, proportionality and necessity,regardless of the nationality or location of theindividual. 30 Tensions around mass surveillance offoreign citizens and political leaders, and a lack oflegal constructs domestically and internationallyto address these tensions, have led to questionsof direction and the future of internet governance– discussed at forums like NETmundial, whereprinciples relating to surveillance and intermediaryliability were raised. 31 Similarly, in March2014, the US announced plans to relinquish theresponsibility of overseeing the body tasked withregulating internet codes and numbering systems.This move has raised concerns about a backlashthat could result in the division and separationof the internet, facilitating mass surveillance andcontent control. 3229 www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement.html30 Report of the Office of the United Nations High Commissioner forHuman Rights: The Right to Privacy in the Digital Age, 30 June2014. www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf31 Powles, J. (2014, April 28). Big Business was the winnerat NETmundial. wired.co.uk. www.wired.co.uk/news/archive/2014-04/28/internet-diplomacy-netmundial32 Kelion, L. (2014, April 23). Future of the Internet Debatedat NetMundial in Brazil. BBC. www.bbc.com/news/technology-27108869State surveillance and intermediaryliability: The impact on the user and the roleof the companyGovernment-initiated content restrictions and surveillanceof individuals’ online communications,transactions and interactions have widely been recognisedas having a negative impact on users’ rightto privacy and a chilling effect on freedom of speech.Depending on the target and reasons, such actionsby governments can have deeper human rightsimplications – if, for example, dissenting voices, activistsand journalists are targeted. The gravity andclear human rights implications of actions relatedto intermediary liability and surveillance highlightthe complexity of these issues. Numerous cases existof individuals being identified and persecutedfor speech shared or communicated online, and theidentification of these individuals being facilitatedby internet companies. For example, Yahoo! hasbeen heavily criticised in the international mediafor providing the Chinese government in 2006 withuser account details and the content of communicationsof political dissident and journalist Shi Tao– allowing police to identify and locate Shi and subsequentlyimprison him for ten years. 33 Instancessuch as the Shi Tao case demonstrate the complexityof issues related to intermediary liability andsurveillance and raise questions about reasonableexpectations regarding internet company practicesand responses (particularly multinational companies),adequate national legislation, internationalguidelines, and appropriate public response. As notedin The Right to Privacy in the Digital Age, “theGuiding Principles on Business and Human Rights,endorsed by the Human Rights Council in 2011,provide a global standard for preventing and addressingadverse effects on human rights linked tobusiness activity. The responsibility to respect humanrights applies throughout a company’s globaloperations regardless of where its users are located,and exists independently of whether the Statemeets its own human rights obligations.” This is ahigh standard that intermediaries must adhere to.Some companies such as Google, 34 Facebook, 3533 MacKinnon, R. (2007). Shi Tao, Yahoo!, and the lessons forcorporate social responsibility. rconversation.blogs.com/YahooShiTaoLessons.pdf34 Google Transparency Report. www.google.com/transparencyreport35 Facebook Global Government Requests Report. https://www.facebook.com/about/government_requests48 / Global Information Society Watch Thematic reports / 49