THE TWEETS JUST DON'T ADD UP !!

Social media has quietly entered our lives, the social fabric including politics, sports and what-have-you. These giants that enjoy the high of extensive customer base and customer addiction have a dark side- they are often haven for many unruly elements to carry on their illegal activities unchecked. Keeping in view the need for proper regulation, the Government of India has notified the  Information Technology (intermediary guidelines and Media Ethics rules) 2021; the thrust being to reign in and bring to book the unruly elements.

What’s the ask ? The IT Rules which were in the marking for over a year and now notified, only require social media giants to appoint Nodal Officer, Chief Grievance Officer and further requires the platform to identify the first originator of the information, if so ordered by a judicial order or a competent authority under section 69 of the Information Technology Act 2000.  How different is it from a law that requires a company registered in India to have a registered office address ?  

Whatsapp and other social media platforms argue (at various fora and their petitions to various courts) that Art 19(1) of the Constitution of India guarantees them the right to privacy and free speech; that it is absolute and hence the new Rules being in violation of the Constitution of India should be struck down. This argument, in my view is entirely misplaced. We are all for free speech. However, even that is subject to the reasonable restrictions imposed on fundamental rights by  Art 19(2).  In the name of free speech, can defamatory speeches  be tolerated?  Same is the case with privacy. Even the Puttaswamy judgement states very clearly that the right to privacy is subject to reasonable restrictions of Art 19(2).

Coming back, the messages whose origin is to be traced are already in public domain and circulating. The ask is that the platform disclose the origin of these messages that is required for investigation of the offence, prosecution of offences that are related to the sovereignty of the State or deal with public order, incitement to offences including those concerning rape, child abuse, sexual offences, etc which are punishable with a term of not less than 10 years. 

It is undeniable that social media platforms are hugely influential today. Can they then desire a regime that confers immunity and comes without riders? What about section 320 of the Communications Decency Act of the United States? All platforms including our favourite Twitter actively work towards content moderation in these countries. Why then the resistance here? Social media must know that the era of only rights and no-responsibilities is over.

Yet another arguement is that no originator can be traced as messages are E-to-E or end to end encrypted and decryption is either not possible or is too complicated to be implemented. But the Rules do not ask for the messages per se – it is only the name and contact coordinates of the accused (involved in any of he heinous crimes) that is to be disclosed to the law enforcement agencies.

This is a global concern and countries have taken their own measures to resolve this problem. For instance EU and the United States have issued a joint statement (December 219) that while encryption is ncesssary for protecting security and privacy, it undermines the ability of law enforcement agencies to protect victims and the public at large. Similarly, New Zealand, Australia, us, EU and Canada issued a joint statement (July 2019) that tech companies should include measures that permit law enforcmenet agencies to gain access to data is a readable and usable format. In Oct 2019 EU adopted a resolution urging Tech companies to permit enforcement authorities to gain access to digital evidence including encrypted evidences.

Given all these developments, there is no case for tech giants to seek shelter under Art 19 and the so-called E-to-E? In fact the ask in India is far less than the compliances expected of them abroad.

Finally, tracing the origin is a matter of using technology- including advanced cryptographic technology attaching an unique hash with every message as suggested by Prof Kamakoti to the Supreme court.

Now that Whatsapp has approached the High court, the proposition of privacy versus access for enforcement will be tested and put to rest once and for all.