Why Indian Prime Minister Modi Won Big

The Prime Minister of India, Narendra Modi has done it again. In the results of the general election announced Thursday, and as he did five years ago, Modi has achieved another absolute majority for his party, the Bharatiya Janata Party (BJP) — winning over 300 seats in the Lok Sabha, the lower house of parliament. The United Progressive Alliance, a coalition dominated by the Indian National Congress, polled only 52 seats in a stunning repudiation of a party that has dominated much of Indian politics since partition and independence in 1947.

Once again, Modi has confounded the pundits, whose established wisdom was that he would struggle to maintain clear leadership and would likely need to form a coalition to govern. They perceived increasing unpopularity due to the Goods and Services tax imposed in July of 2017, which was a burden for small companies and caused much confusion. Further, they cited the demonetization of 86% of the currency in circulation in November of 2016, instituted to address so-called black money, which caused panic and chaos. Depressed farm income and weak job creation in the manufacturing sector were also viewed as negatives for Modi’s reelection prospects. Moreover, among the intelligentsia and media was the widespread view that the secular stature of India, as affirmed in the Preamble of its Constitution adopted in 1949, was being challenged by the BJP — dubbed in the Indian press as the Saffron Party. The color saffron is known to represent renunciation and abstinence in Hinduism, and it symbolically appears in the Indian tricolor. So why did Modi achieve another landslide victory in spite of conventional wisdom?

First, Modi has proven himself to be a master of branding, with much attention to a meticulous, manicured, and well-tailored self-image. Presenting himself as an anti-elitist with humble origins as a chaiwalla or tea seller, Modi has taken on decades of entrenched protocol and bureaucracy. Observers might even say that in terms of optics for some of the general public, Modi is India and India is Modi. Modi has adroitly leveraged the color saffron in public forums. Near the end of the election process, he retreated to Kedarnath in the Himalayas, known for a temple dedicated to Lord Shiva of the Hindu trinity — where he meditated in a saffron shawl for 17 hours. Symbolically, Modi’s seat is the holy city of Hinduism, Varanasi, known for its Kashi Vishwanath Temple on the banks of the Ganges River also dedicated to Lord Shiva.

Second, much of the electorate seems skeptical of the Nehru Gandhi dynasty, which has ruled India for many years since 1947. Modi’s main challenger Rahul Gandhi, great grandson of Jawaharlal Nehru, India’s first prime minister, and grandson of Indira Gandhi, represented values of the Congress Party, likely perceived as legacy. Those values sustained India for many years after independence: democratic socialism, secularism and inclusivity, government control of the economy, social justice, and suspicion of private enterprise. Indeed, it has been said that Nehru was like a huge banyan tree, under which there was shade and protection — but where nothing could grow. Having witnessed the fruits of economic deregulation since the early 1990s, the predominantly Hindu middle class has now affirmed the benefits of free markets: consumerism, capital formation, and competition.

Third, Modi has presented himself as a protector of India against its adversaries. In mid-2017, the Indian Army and Chinese People’s Liberation Army stood face to face high in the Dongkya Range at Doklam, an area disputed by China and Bhutan, an ally of India. Indian troops moved in to block construction of a road by the Chinese in support of Bhutan, in a dramatic standoff. More recently, in February the Indian Air Force retaliated against targets in Pakistan for a terrorist attack in Pulwama, Kashmir. This was in response to suicide bomber that killed about 40 Indian security personnel. Jaish-e-Mohammed, a Sunni radical organization seeking to evict India from Kashmir, announced its responsibility for the attack. In both these incidents, India projected an aggressive military posture to defend its interests.

Successful branding, the sun setting on a political dynasty, and Indian nationalism were decisive forces behind Modi’s victory. Already a strong figure in India, Modi has emerged even stronger with his back-to-back election majorities. In terms of geopolitics, India is pro-American and should continue to be a valued U.S. partner to offset China, counter Islamist extremism, and promote trade and direct investment.

Frank Schell is a business strategy consultant and former senior vice president of the First National Bank of Chicago. He was a Lecturer at the Harris School of Public Policy, University of Chicago and is a contributor of opinion pieces to various journals.

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Author: Frank Schell

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The Government’s Indictment of Julian Assange Poses a Clear and Present Danger to Journalism, the Freedom of the Press, and Freedom of Speech

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The century-old tradition that the Espionage Act not be used against journalistic activities has now been broken. Seventeen new charges were filed yesterday against Wikileaks founder Julian Assange. These new charges make clear that he is being prosecuted for basic journalistic tasks, including being openly available to receive leaked information, expressing interest in publishing information regarding certain otherwise secret operations of government, and then disseminating newsworthy information to the public. The government has now dropped the charade that this prosecution is only about hacking or helping in hacking. Regardless of whether Assange himself is labeled a “journalist,” the indictment targets routine journalistic practices.

But the indictment is also a challenge to fundamental principles of freedom of speech. As the Supreme Court has explained, every person has the right to disseminate truthful information pertaining to matters of public interest, even if that information was obtained by someone else illegally. The indictment purports to evade this protection by repeatedly alleging that Assange simply “encouraged” his sources to provide information to him. This places a fundamental free speech right on uncertain and ambiguous footing.

A Threat To The Free Press

Make no mistake, this not just about Assange or Wikileaks—this is a threat to all journalism, and the public interest. The press stands in place of the public in holding the government accountable, and the Assange charges threaten that critical role. The charges threaten reporters who communicate with and knowingly obtain information of public interest from sources and whistleblowers, or publish that information, by sending a clear signal that they can be charged with spying simply for doing their jobs. And they threaten everyone seeking to educate the public about the operation of government and expose government wrongdoing, whether or not they are professional journalists.

Assistant Attorney General John Demers, head of the Department of Justice’s National Security Division, told reporters after the indictment that the department “takes seriously the role of journalists in our democracy and we thank you for it,” and that it’s not the government’s policy to target them for reporting. But it’s difficult to separate the Assange indictment from President Trump’s repeated attacks on the press, including his declarations on Twitter, at White House briefings, and in interviews that the press is “the enemy of the people,” “dishonest,” “out of control,” and “fake news.” Demers statement was very narrow—disavowing the “targeting” of journalists, but not the prosecution of them as part of targeting their sources. And contrary to the DOJ’s public statements, the actual text of the Assange Indictment sets a dangerous precedent; by the same reasoning it asserts here, the administration could turn its fervent anti-press sentiments into charges against any other media organization it disfavors for engaging in routine journalistic practices.

Most dangerously, the indictment contends that anyone who “counsels, commands, induces” (under 18 USC §2, for aiding and abetting) a source to obtain or attempt to obtain classified information violates the Espionage Act, 18 USC § 793(b). Under the language of the statute, this includes literally “anything connected with the national defense,” so long as there is an  “intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” The indictment relies heavily and repeatedly on allegations that Assange “encouraged” his sources to leak documents to Wikileaks, even though he knew that the documents contained national security information.

But encouraging sources and knowingly receiving documents containing classified information are standard journalistic practices, especially among national security reporters. Neither law nor custom has ever required a journalist to be a purely passive, unexpected, or unknowing recipient of a leaked document. And the U.S. government has regularly maintained, in EFF’s own cases and elsewhere, that virtually any release of classified information injures the United States and advantages foreign nations.

The DOJ indictment thus raises questions about what specific acts of “encouragement” the department believes cross the bright line between First Amendment protected newsgathering and crime. If a journalist, like then-candidate Trump, had said: “Russia, if you’re listening, I hope you’re able to find the [classified] emails that are missing. I think you will probably be rewarded mightily by our press,” would that be a chargeable crime?

The DOJ Does Not Decide What Is And Isn’t Journalism

Demers said Assange was “no journalist,” perhaps to justify the DOJ’s decision to charge Assange and show that it is not targeting the press. But it is not the DOJ’s role to determine who is or is not a “journalist, and courts have consistently found that what makes something journalism is the function of the work, not the character of the person. As the Second Circuit once wrote in a case about the reporters’ privilege, the question is whether they intended to “use material—sought, gathered, or received—to disseminate information to the public.”  No government label or approval is necessary, nor is any job title or formal affiliation. Rather than justifying the indictment, Demers’ non-sequitur appears aimed at distracting from the reality of it.

Moreover, Demers’ statement is as dangerous as it is irrelevant. None of the elements of the 18 statutory charges (Assange is also facing a charge under the Computer Fraud and Abuse Act) require a determination that Assange is not a journalist. Instead, the charges broadly describe journalism–seeking, gathering and receiving information for dissemination to the public, and then publishing that information–as unlawful espionage when it involves classified information.

Of course news organizations routinely publish classified information. This is not considered unusual, nor (previously) illegal. When the government went to the Supreme Court to stop the publication of the classified Pentagon Papers, the Supreme Court refused (though it did not reach the question of whether the Espionage Act could constitutionally be charged against the publishers). Justice Hugo Black, concurring in the judgment, explained why:

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Despite this precedent and American tradition, three of the DOJ charges against Assange specifically focus solely on the purported crime of publication. These three charges are for Wikileaks’ publication of the State Department cables and the Significant Activity Reports (war logs) for Iraq and Afghanistan, documents which were also published in Der SpiegelThe GuardianThe New York TimesAl Jazeera, and Le Monde, and republished by many other news media.

For these charges, the government included allegations that Assange failed to properly redact, and thereby endangered sources. This may be another attempt to make a distinction between Wikileaks and other publishers, and perhaps to tarnish Assange along the way. Yet this is not a distinction that makes a difference, as sometimes the media may need to provide unredacted data. For example, in 2017 the New York Times published the name of a CIA official who was behind the CIA program to use drones to kill high-ranking militants, explaining “that the American public has a right to know who is making life-or-death decisions in its name.”

While one can certainly criticize the press’ publication of sensitive data, including identities of sources or covert officials, especially if that leads to harm, this does not mean the government must have the power to decide what can be published, or to criminalize publication that does not first get the approval of a government censor. The Supreme Court has justly held the government to a very high standard for abridging the ability of the press to publish, limited to exceptional circumstances like “publication of the sailing dates of transports or the number and location of troops” during wartime.

A Threat to Free Speech

In a broader context, the indictment challenges a fundamental principle of free speech: that a person has a strong First Amendment right to disseminate truthful information pertaining to matters of public interest, including in situations in which the person’s source obtained the information illegally. In Bartnicki v. Vopper, the Supreme Court affirmed this, explaining: “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. … [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

While Bartnicki involved an unknown source who anonymously left an illegal recording with Bartnicki, later courts have acknowledged that the rule applies, and perhaps even more strongly, to recipients who knowingly and willfully received material from sources, even when they know the source obtained it illegally. In one such case, the court rejected a claim that the willing acceptance of such material could sustain a charge of conspiracy between the publisher and her source.

Regardless of what one thinks of Assange’s personal behavior, the indictment itself will inevitably have a chilling effect on critical national security journalism, and the dissemination in the public interest of available information that the government would prefer to hide. There can be no doubt now that the Assange indictment is an attack on the freedoms of speech and the press, and it must not stand.

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Author: David Greene

Rep. Thompson Works to Secure Our Elections

Foreign adversaries and domestic dirty tricksters can secretly hack our nation’s electronic voting systems. That’s why information security experts agree we must go back to basics: paper ballots. We also need “risk-limiting audits,” meaning mandatory post-election review of a sample of the paper ballots, to ensure the election-night “official” results are correct. EFF has long sought these reforms.

A new federal bill is a step in the right direction: H.R. 2660, the Election Security Act. It was introduced on May 10 by Rep. Bennie Thompson, Chair of the House Homeland Security Committee; Rep. Zoe Lofgren, Chair of the House Administration Committee; and Rep. John Sarbanes, Chair of the Democracy Reform Task Force.

This bill would help secure our democracy from digital attack in the following ways:

  • It requires paper ballots in all federal elections. In any post-election dispute, these paper ballots are the official expression of voter intent. Each voter may choose whether to mark their paper ballot by hand, or by using a device that marks paper ballots in a manner that is easy for the voter to read.
  • It authorizes expenditure of $1 billion in the coming year to pay for the transition to paper ballot voting systems, and an additional $700 million over the next six years.
  • It authorizes expenditure of $20 million to support risk-limiting audits.
  • It authorizes expenditure of $180 million over nine years to improve the security of election infrastructure.
  • It authorizes $5 million for research to make voting systems more accessible for people with disabilities.
  • It requires the creation of cybersecurity standards for voting systems
  • It creates a “bug bounty” program for voting systems.

This is a good start. The bill would be even stronger if it adopted key parts of another election security bill, introduced last week by Sen. Wyden with 14 Senate co-sponsors. As EFF recently wrote, that bill would not only require paper ballots and help pay for paper ballots and tabulation machines, it would also require risk-limiting audits, ban the connection of voting machines to the internet, and empower ordinary voters with a private right of action to enforce new election security rules.

Congress must act now to secure our voting systems, before the next federal elections. We thank both Rep. Thompson and Sen. Wyden for leading the way.

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Author: Adam Schwartz

Digital Advertising, Consumer Privacy and More

Digital ads—and control of the user data that makes them so profitable—are the heart of the consumer privacy debate. Earlier this week, the U.S. Senate Judiciary Committee held a hearing titled “Understanding the Digital Advertising Ecosystem and the Impact of Data Privacy and Competition Policy” to grapple with these complicated and often conflicting ideas.

Judiciary Committee Chairman Senator Lindsey Graham opened the hearing by asking the panelists if Congress should pass a federal privacy law at all, and if they thought we should have “one national standard”—a potentially dangerous idea, as it could preempt stronger existing state laws. The panelists more or less supported a single national law, though we were glad to see Dr. Johnny Ryan argue that a federal law should preempt state law only to the extent that it provides greater protections. Dr. Fiona M. Scott Morton further clarified that even with a strong federal standard, states were still going to want to regulate on top of the law.

Troublingly, when discussing whether or not states should be able to create their own protections for consumers, Chairman Graham said, “It’s my job to make sure we have a viable [digital advertising] industry when this is all done.” But enacting a law that would protect the advertising industry at the expense of his constituents and their privacy is antithetical to the Chairman’s job. Previous hearings on data privacy have featured witness panels stacked with industry advocates, and corporate interests threatening to hollow out existing data privacy laws. Consumers are relying on Congress to resist this pressure, not bow to it.

The rest of the hearing turned to discussions of the role competition plays in a healthy innovation landscape, how to engineer meaningful consent, and who actually owns users’ data.

In his opening statement, Dr. Johnny Ryan urged the Committee “to enact strong privacy rules so that a healthy marketplace can develop. Give consumers freedom to choose the companies and services they want to reward.” He reiterated this point in response to many questions over the course of the hearing, arguing that if people truly had a choice in the services they use online, it would allow them to deny the use of their data in operations which they found unacceptable, which would, in turn, undermine those business models.

In EFF’s letter to the NTIA on consumer privacy, we advocated for a consumer data privacy law that would allow users to delete and port their data, and we argued that interoperability between platforms would give consumers a real choice about what services to use. As Dr. Scott Morton mentioned, the real benefit to the social media platforms is that “all your friends” are also on the platform, but if your friends go elsewhere, you will too. Forcing interoperability among social media platforms, like the way the FCC once mandated interoperability between instant messaging platforms, would provide an incentive to compete for users.

The discussion of consumer choice in the marketplace also led some Senators to question how to achieve meaningful user consent for use of their data. Several Senators correctly noted that the “choice” of either allowing data collection or not visiting a website at all is not a real choice. Brian O’Kelly emphasized this illusion of choice, saying that users in Europe are just getting trained to click “yes” on cookie pop-ups. Further, he said, “If you gave me the choice of getting robbed, I’d say no. But why give me the choice? Just make robbery illegal.” We agree: notice and consent is not enough protection for users and any consumer data privacy law must also limit the data that companies can collect.

Some elected officials (including the Governor of California) seem to think it would also be a good idea to allow users to directly profit from the sale or use of their data. We disagree. In this hearing, Senator Coons brought up the idea of allowing users to treat their own personal data as a thing to be bartered away in exchange for benefits from companies. Fortunately, the witnesses pushed back on this troubling idea. While it may sound appealing, putting this idea into law would treat privacy not as the a fundamental human right it is, but as a luxury item to be enjoyed by the people who can afford it.

While it’s difficult to draw one or two discrete conclusions from this hearing, it’s heartening to see Senators wrestling with thorny questions and having a real conversation with experts. We look forward to many more of these conversations in the future.

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Author: India McKinney

Congress Can End the Digital Divide or Replace It with a Speed Chasm with Its Broadband Infrastructure Bill

The House Energy and Commerce Committee held its first hearing on a major infrastructure bill called the “Leading Infrastructure for Tomorrow’s (LIFT) America Act,” which authorizes $45 billion in broadband infrastructure money. Such a massive infusion of federal dollars would reshape the United States communications market and help put the United States on more even footing with the EU and Asian market.

However, there is a real danger of lowering expectations of what can and should be done with a massive federal investment as a means of rigging who receives the federal dollars. If Congress does dedicate an enormous sum of money to build broadband infrastructure, it is important that it goes towards infrastructure that can withstand the test of time. As currently drafted, the legislation makes some concrete steps in that direction, but EFF finds that some areas need improvement in order to really make this bill about building infrastructure for the 21st century.

The Positives and Areas for Improvement in the LIFT Act

One of the most valuable provisions in the legislation is the creation of a $5 billion low-interest financing vehicle for broadband infrastructure projects. United States is missing a vibrant “open access fiber” industry like what exists in the EU and other parts of the world. Part of the problem is that we do not have a dedicated funding source for long-term focused broadband infrastructure planning that would support the construction efforts of non-traditional broadband market actors. Where it exists—sadly only in limited areas of the United States—this approach to broadband has taken root with incredible results. In Utah, for example, there are eleven options for $ 50-gigabit symmetrical services. In fact, some telecom analysts predict that open access fiber providers might be able to connect rural communities with zero, subsidies should long-term low-interest financing be made available.

The legislation focuses on “unserved areas,” which are defined as areas that do not have access to 25 Mbps download and 3 Mbps upload. Under this bill, 40 billion dollars in federal funds would be granted through a reverse auction (meaning whoever can build it the cheapest) to an entity that can deliver speeds of at least 100 Mbps download and 20 Mbps upload. This is a problematic plan, as instead of spending more for long-term, better infrastructure, we’d get low-cost improvements to nearly obsolete technology. This shortchanges these communities by not giving them the best Internet access—Internet access with speeds to handle whatever future technology brings—but by merely extending the life of slow, bad service.

If the goal is to make this a one-time infusion of taxpayer money to end the digital divide, then Congress must invest in the future. As former FCC Commissioner Mignon Clyburn testified before the Energy and Commerce Committee, “Congress should be investing taxpayers’ money in infrastructure that will deliver high-speed broadband of at least one Gigabit, future-proof symmetrical service.” EFF supports such an amendment to the legislation in order to overcome the speed chasm that exists among different broadband network technologies.

The Speed Chasm

In an interview with Professor Susan Crawford, Peter Rubin of WIRED summed up the massive discrepancy of potential capacity reachable by fiber optics as compared to copper, cable, and wireless networks as the “speed chasm.” Essentially, fiber optics have capacity potential that leaves other legacy networks like copper and coaxial cable in the dust. While we do not know the exact difference, what we do know is fiber has a capacity that is orders of magnitude greater than legacy efforts.

Some will argue to Congress that it is better to get slower speeds out to more people on the cheap, which means subsidizing incremental improvements to legacy copper and cable networks. The problem though is as consumption and demand for Internet products and services continue to increase, the legacy networks have no financially feasible way to keep pace with exponential growth absent transitioning to fiber due to the capacity differences.

Fiber optics are also incredibly cost efficient once deployed. This is because fiber to the home (FTTH) has the potential to be a “future proof” network infrastructure that probably will not have to be replaced for decades. We see evidence of this when analyzing the financials of the world’s fastest ISP (EPB Chattanooga) when it upgraded from a one-gigabit fiber network to a 10-gigabit network in 2016. You barely see a change in capital expenditures while profits continue to rise year after year and likely future advancements in capacity will be even cheaper by comparison as it leverages advancements in computer technology.

Congress Has an Enormous Opportunity to Bring Millions of Americans into the 21st Century of Broadband Access

EFF supports efforts that seek to connect all Americans to fiber infrastructure, which can support gigabit and 10-gigabit networks today with unknown potential to expand into the future. Giving everyone access to affordable high-speed broadband will ensure that everyone benefits from the Internet as both creators and distributors of content and culture. But under-investing and lowering expectations on what should be built will only put a temporary, and expensive, band-aid on the problem of the digital divide.

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Author: Ernesto Falcon

3 Times Media Falsely Claimed Russiagate Transparency Would End The Republic

As the media carry water for sources who selectively released information to perpetuate a false conspiracy theory, it is worth remembering other recent times they claimed that transparency would have devastating results.

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Author: Mollie Hemingway