Where Did Our Map Regulations Come From
India’s map regulations impose restrictions on the cross-border transfer of maps or map data - despite the global shift to cloud-based consumption. I investigate the origins of these arcane regulations to try and figure out how they came about and what can be done to set it right.
This article was first published in The Mint. You can read the original at this link.
One of the more frustrating aspects of being a technology lawyer in India is having to explain India’s medieval map regulations to clients. India insists on imposing physical restrictions on the movement of maps, oblivious to the fact that the entire world consumes maps over the cloud. Map businesses struggle to modify their service models to deal with this and, more often than not, find themselves overstepping the line.
So, a couple of years ago, I decided to probe this issue more thoroughly—to try and make an argument for a more modern approach to map regulation.
Any analysis of India’s map regulations has to start with the Map Policy of 2005, a loosely worded quasi-legislative document that is the closest thing we have to a map law. The policy itself makes no mention of export restrictions. Instead, those restrictions are buried in paragraph 2(d) of the Guidelines to the Map Policy which makes reference to Customs Notification No. 118-Cus/F.No.21/5/62-Cus.I/VIII, dated 4 May 1963. This is the primary legal document that spells out the prohibition on the export of maps of a scale larger than 1:250,000.
As I dug deeper, I discovered that this notification had actually been amended twice, once in 1980 and then in 2002. The 1980 amendment prohibited the export of maps on microfilm. This didn’t make any sense to me. The 1963 notification was worded broadly enough to prohibit the export of maps in any medium. That’s the reason why everyone assumes it applied to the Internet. Why then, did the government felt the need to issue a separate notification to prohibit the export of maps on microfilm?.
The answer to that question, I later discovered, lies in Section 11, the provision of the Customs Act under which the 1963 notification was issued. Section 11 regulates the export of “goods" and has always only been seen to apply to physical goods. The government, being well aware of this fact, must have realized that, if it wanted to restrict the export of maps on microfilm, it would have to do so under a specific notification. Hence the 1980 amendment. So does this imply that the export of maps on all other media is permitted? Dare we hope that the transfer of map data over the Internet is not prohibited as we have been led to believe?
Before we get to that, let’s spend some time on the second amendment to the 1963 notification because, at first glance, it seems to contradict the conclusions we have come to so far. The 2002 notification permits the export of non-digitized large scale GSI (Geological Survey of India) maps and seems to imply that digitized GSI maps cannot be exported. This didn’t fit with the provisions of Section 11 or my analysis of the 1980 amendment.
But what if that is not the correct way to interpret the notification? After all, digitized maps have never been restricted under Section 11. On the other hand, ever since the 1963 notification, non-digitized maps have been restricted. Viewed from that perspective, it makes perfect sense that the government issued an amendment exempting non-digitized maps from the restrictions of the 1963 notification without seeing the need to spell out the same exemption for the already unrestricted digitised maps.
There is one final, perplexing dimension to this discussion and that has to do with the Map Policy itself.
The Map Policy was issued in 2005, well after both the amendments to the 1963 Notification. At the time, the government was aware of the fact that the 1963 amendment had been liberalized. Yet, the Map Policy refers only the 1963 amendment and uses the unmodified text of that notification to frame an absolute prohibition on the export of maps out of the country. It is hard to explain why the government chose to selectively highlight only those notifications that support a restrictive map export regime when the legal reality is far more liberal.
Armed with this analysis, I decided to seek a clarification from the government, taking it through my research and what I thought was the incontrovertible logic of my arguments. All I wanted from it was a clarification that the law does not prohibit businesses from serving map information to customers over the Internet.
It took me a year to navigate through the corridors of North Block and answer every question that was put to me. In the end I think I convinced the government.
But at the eleventh hour, when it seemed like I was finally going to get the clarification I needed, I was abruptly informed that map restrictions had been imposed by the ministry of defence, ministry of finance and ministry of external affairs, and any change in policy would need the concurrence of all those ministries.
And that, without any further explanation, was that!
