Freedom of Expression
The arrest of comedian Apoorwa Kshitiz Singh once again raised questions regarding freedom of speech; a right guaranteed by the Nepal Constitution. Singh was arbitrarily arrested on charges of attacking and defaming the Newa culture, practices and hurting the sentiments of the Newa community during his standup comedy performance in September 2022. While the issue garnered much media attention, there were also varied perspectives of people in social media to mainstream media concerning freedom of expression and speech. However, it is true that the existing identity struggles of different marginalized communities due to casteism, racism, misogyny, homophobia and other deeply rooted social problems make free speech a really sensitive issue. The nuances that free speech vs identity politics present require individuals who believe in free speech to pay attention to these grey areas while making their points either in speech, comedy or any form of art. Their concern should be “punching up” and questioning the authoritative status quo rather than “punching down” and further victimizing the already marginalized communities. Thus, detaining someone because of their ‘artistic’ expression is a curtailment of freedom of expression, which is not a healthy practice for a democratic country like ours.
Similarly, the Election Code of Conduct, 2079 has been made public for the upcoming Federal and Parliamentary election happening in November. The Code contains provisions for stakeholders, including political parties, civil servants, media and journalists, and the public. However, the Nepal Election Commission (NEC) is recruiting and preparing a team of soldiers, police forces and an advertisement board to monitor citizens’ expression on social media. Citizens are discouraged to share any negative, sarcastic and hateful expressions through vlogs and opinion pieces. This authoritative move by the Election Commission is governed by the state’s authoritative practice of control and surveillance over citizens’ expressions, and exercising power over the responsibility and work of the Federation of Nepali Journalists.
Likewise, one of the youth groups/organizations from Janakpur submitted an appeal letter to the Provincial Chief to restrict/ban the use of TikTok. The letter mentions that spending ample time on Tiktok, one of the popular social media apps, is making people leave their responsibilities behind. Many women and marginalized populations have sought freedom by making and uploading Tiktok videos. Such a restrictive ban on the app in the name of “obscenity” comes from the protective and patriarchal notions of having control of their sexuality, which goes against the boxes of traditional and societal norms. Attempts as such restrict individuals’ right to freely express their agency to choose devices and mediums for information and entertainment.
E-Governance/ Digital Nepal
E-sim cards have recently been launched and are distributed in Nepal. E-sims have recently gained acclaim for its operation of a virtual sim, as they are automatically embedded in the phone itself (without a physical chip), these being outlined as a way of marketing. However, we need to question if this shift in technology is worth adopting given its lack of accessibility and possible security risks among users. Though Nepal Telecom has provided mobile users with free service to switch their existing pre-paid and post-paid networks to eSIM, given that the embedded chip supports only premium mobile phones such as the latest iPhone series and limited models of Galaxy series says a lot about technological advancements being not user-friendly and being compatible to those with financial access to resources. The lack of physicality also gives serves as a possible privacy and security concern since the sim cannot be hidden and can be easily tracked. Such technology is a downfall for activists, women rights defenders, queer folks, and marginalized who are mostly targeted by the state.
Since September, Nepal Telecom Authority (NTA) also started implementing the Mobile Device Management System (MDMS), which has been postponed since the Mobile Device Management System Bylaws were first issued in 2018. The NTA has been sending verification messages to the sim card holders whose mobile phones/devices are registered in Nepal.
MDMS is a centralized government-owned system under the NTA, which stores the database of records (synced with the Equipment Identity Register) of mobile phone owners that are registered through telecom operators in Nepal. Though this initiative is “believed” to minimize the illegal imports of mobile phones through grey markets, mobile theft and criminal activities that are often carried out using mobile phones, such a project does more harm than good when looked through the lens of data privacy and security.
Since Nepal lacks the technical and financial resources in building this management system, it tendered with a Malaysian firm Nuemera, the lowest second bidder, to design/ develop and operate MDMS in Nepal. The only reason as to why Mobilion Trade International, the lowest bidder was not chosen was because the firm was a local partner to Ncell. Nuemera in 2017 landed in Malaysia’s largest data leak that included personal details of emails, billing addresses and mobile numbers of nearly 46.2 million subscribers which were compromised in the year 2014-15. In the name of budgetary constraints and for the authority’s conducive purposes, NTA’s choice of awarding a firm with poor records of ethical standards shows that Nepal pays little to no attention to the security of users’ personally identifiable information. In addition, the MDMS Bylaws negligence regarding the privacy of data reveals the ambiguity in the language used in the clauses such as the disclosure of MDMS data except when permitted by the “authority” through written or directive without stating to whom the data will be handed. The provisions also state the “safeguarding of data through unauthorized access”. However, the previous history of Nuemera, which is working in the overall operation of the MDMS, is already a compromise of users’ data security and is a paradox on its own.
Likewise, there are other initiatives in making the country adopt digitized processes such as one of the schools in Bharatpur has started to use a smart attendance system where students’ arrival and departure are informed via text message to parents. Although with good intentions, such a system could violate students’ privacy with increased surveillance upon them.
As the date for the 2022 Nepalese general elections was announced in the month of August, there has been substantial news coverage on the topic. While most of the news focus particularly on party campaigns and alliances, there has been some, albeit limited, discussion of digital elements in the elections.
Despite mounting pressure to modernize the voting system, the Election Commission stated that it will not be using voting machines (EVMs) for the upcoming elections. Major parties have cited possible fraud, lack of time to educate voters about the machines, and increased expenses as reasons for which they are reluctant to adopt such a system. On the opposite side, proponents of the system argue that EVMs can result in faster vote counting, less likelihood of invalid votes, higher turnout and increased accessibility. Voting machines were used in a pilot test in polling booths in Kathmandu during the 2008 Constituent Assembly elections, and the results were fairly promising. However, the discourse around EVMs often fails to address concerns about voters’ privacy, i.e. privacy of individual data and information throughout the election and beyond. Issues of where, when, how and how long the data is stored are questions to be thought of. Adding to that, using the principles of a secret ballot is equally important along with including the use of free and open-source software, randomization of ballot IDs and shuffling of votes before the tallying process, among others.
While EVMs will not be used for the upcoming elections, the government did pilot an online application program for the electoral roll in eight districts. To this date, no governmental institution has published an analysis of the pilot program, but there were still significant concerns related to accessibility and privacy. The collection of biometric data, a concern of its own in both the mentioned respects, was still physical, which meant that it still was impossible to completely access online. This also meant that Nepali citizens abroad could not register to vote, despite a 2018 Supreme Court ruling that the nearly 4 million Nepalese abroad had the right to vote. This online method of registering for the electoral roll also fails to inform voters about how their data is being used. As the government moves forward with the electoral list, updating the list to correct any errors or add new updates, these matters need to be taken into account.
Similarly, allegations of fraud in the recent local elections surfaced in the news coverage. Particularly, members of the ruling Nepali Congress surrounded the Election Commission building to protest alleged fraud in the electoral roll. Protestors have pointed to the ‘suspicious paperwork’ of thirteen individuals and alleged that thousands of names in the electoral list are fake. If these claims are true, voters’ personal data security also could be a big concern here. In the case of Nepal, voters’ data and information are not taken into account infringing their right to privacy and confidentiality. Since data from electoral rolls are used to micro-market campaigns for voters by political parties, making sure the data is kept safe should be a significant concern while investigating voter fraud.
The election authority of Nepal refused to either endorse or reject the use of social media in campaigning for the election. In recent times, Nepali political candidates either use social media to post their own campaigns, including Facebook and Twitter posts about key issues, or use the internet to post campaign advertisements. However, this can lead to several issues, including the aforementioned micro-marketing, spreading misinformation about political candidates or the legitimacy of the election, and online violence such as trolling, doxing and swatting.
Likewise, under the supervision of the Prime Minister, the government is planning to form an e-governance commission without proper policy formation. The commission is said to regulate the necessary digital framework in the country and the members of the commission will be responsible for making any decision over it. Such an initiative also brings concerns over online security, curtailment of freedom of expression and speech and gender discriminatory laws as we’ve seen the case in the past, when digital laws and bills, such as the IT bill were formulated.
E-Passport/ National ID Card
Distribution of NID cards has started from nearby places in Sunsari- Itahari municipality with conveniently managed collection stations. Media reports suggest that the making of multiple cards such as National IDs, voters’ cards and others are contributing to citizens’ psychological and physical burden, who are continuously struggling to get these cards, and these are also a socio-economic burden to the nation/state. There is also a huge gap between people with and without citizenship certificates. Those wanting to receive their citizenship in their dignified names and identities, especially people from Dalit and LGBTIQ+ communities, still fall under a significant portion of the population struggling to get the Citizenship certificate. On the other hand, registration of a National ID card comes with a cost of serious data privacy concerns as biometric registration, such as fingerprint, retina scan, photos, etc is a pre-requisite, without the government stating as to where and how the data is stored, for how long it is retained and what are measures to safeguard millions of data. Concerns about individual data and privacy are an issue that the government is regularly ignoring.
There is also news of complications in the registration of both NID and passports from all over the country. People are obliged to follow this mandatory rule and complicated process which only adds up frustration and there are also incidents of rising in fraud caused by middlemen in Kathmandu. Police were able to arrest some of them but people are more drawn to these middlemen in the hope of getting a passport faster. Though promised as an easy process medium to access easy service, NID and E-passport registration seem to make the process more time-consuming and expensive for the public. The ‘easy online registration’ for every form of identities which is supposed to be making registration quicker and less stressful but it is becoming more complex for the public in terms of time and expenses.
In the progress report of a program under the Rural Telecommunication Development Fund, the government has claimed that there is access to free internet services in every ward in the country at all the local levels, community schools and health organizations. This project was introduced with the aim to provide free internet for two years at the local levels where the internet connection was established. Though free internet service for two years provides access to the internet as claimed by the government, however, if provided for a limited time fails to address the issue of the digital divide existing in the country. The digital divide in terms of accessibility is not only limited to the rural /urban but also extends to different categories of marginalization like class, gender, sexuality, disability, ethnicity, language, tech, literacy, autonomy and proficiency.
Meanwhile, Sharada Municipality of Salyan District became a ‘digital municipality’ in recent months. Services such as applications, reporting and signatures were digitalized for greater accessibility. Not only does the digitalization of bureaucracy does make it quicker and more accessible, but it also reduces the power of bureaucrats by delegating some of their responsibilities and powers to machines. While these policies are often implemented under the guise of removing ‘street-level bureaucrats’ and rooting out corruption, due to the importance of cyberspace in the daily lives of people, it can lead to a high level of surveillance. If digitalization is done with care, reflecting on the principles of the internet as a democratizing force, rather than a centralizing force, it could be beneficial for a large population.
In-driver, a US-based ride-sharing app that has not been registered in Nepal has been conducting riding services through the app for the past few months. It is popular among users because of the service of bargaining at the price for a ride but the company has not provided a contact number for either customers or riders yet. It is unsafe for both rider and user in terms of physical harm (as they fail to provide insurance when encountering accidents) as well as digital-personal data protection as the app doesn’t ensure data security. According to the law, a foreign company has to be registered before it starts business in Nepal. However, this is unlikely the case for In-driver as it is still an unregistered company working in Nepal, further adding concerns about the large collection and storage of users’ data.
Privacy and Security
In July, Finance Minister Janardan Sharma was reinstated to his position after an 11-member committee cleared him of corruption allegations. However, opposition groups demanded that his call details be released. While the call details were ultimately kept private, the discourse around it revolved around the right to privacy of government officials, like Sharma. But one should question whether this is a genuine plea for the protection of a fundamental human right, or a partisan call reserved for politicians. After all, a major argument against releasing the call details was how this was not a criminal investigation. Perhaps, journalists, lawyers and politicians should remember that it’s not just high-profile people who have the right to privacy; everyone, including those under criminal investigation, deserves the right to privacy.
In August, the parliament passed a bill to place the Central Bureau of Statistics under the Prime Minister’s Office. The department (now dubbed Statistics Office) was previously under the supervision of the National Planning Commission (NPC), an advisory body of the Government of Nepal. While the independence of the office in its previous form is debatable ─ the NPC was led by the Prime Minister too ─ this move effectively places the collection and publication of statistics under the complete control of the government. Some of the consequences this could include are partisan bias in data collection process to influence electoral prospects via gerrymandering, exaggerating effects of policies and so on. Another concern is that the government can take a much more overt approach to surveillance with statistics collection under its belt.
In early August, Nepal Police raided a call centre and arrested several foreign citizens alleging that they had been running an illegal scamming operation. One observation in regard to this arrest is that it follows a long history of racial profiling of Chinese citizens as criminals of call centre fraud. This has massive ramifications as it bolsters xenophobia and hate in our communities. The lack of concrete laws about cybercrime could also benefit misuse of the laws by both police looking to restrict the freedom of expression, and scammers looking to benefit from vulnerable populations.
There were also instances of strangers being friends with people, sexting them and using the nudes to blackmail them. This blackmail can be considered image based-sexual abuse/exploitation or sextortion. Due to how laws around sexuality are framed in Nepal, considering anything sexual as “immoral” “obscene”, that could further endanger queer, trans and gender non-conforming folks. A large part of media pre-dominantly covers such news in such a way that puts blame on the “character” of the person sending the sexual content rather than questioning the non-consensual dissemination or the breach of privacy of the individual (s) in the case.
Likewise, an interview of a 9-year-old child explaining her philosophical views and expression on the internet garnered many likes, views and shares, but at the same time also received trolls and negative comments against the child. The child’s expression, a virtue which is supposed to be said or expressed by adults was something people could not take in. Children have the right to freely use the internet in a just and safe manner, the same as adults.