“There will come a time when it isn’t ‘They’re spying on me through my phone anymore. Eventually, it will be ‘My phone is spying on me.” - Philip K. Dick
While many have heard the news that WhatsApp, Instagram, and Twitter be banned a few days ago, the majority are unaware of the reason behind this news. This write-up aims to discuss the insights and details behind the chaos.
On February 25, the government issued the Information Technology Rules (Guidelines for Intermediaries and the Code of Ethics for Digital Media), 2021 which shall replace the Information Technology Rules (Guidelines for Intermediaries) 2011. According to the new rules the social media platform, referred to as intermediaries, must establish the Complaints Repair and Compliance Mechanism, an Indian Complaints Officer, a Chief Compliance Officer, and a Nodal Contact Person. Additionally, these platforms are required to submit monthly reports on complaints received from users and how many have been resolved. Another requirement is that instant messaging apps like WhatsApp, are required to have provisions for tracking the first sender of the message.
If these intermediaries fail to comply with any of these requirements, this will take away the immunity provided to them under Section 79 of the Information Technology Act, 2000. This section provides a ‘safe haven’ for intermediaries under which intermediaries must not be held accountable for the actions of users on its platform as long as they adhere to the guidelines prescribed by the government. The protection referred to in this section is not granted if the intermediaries, despite being directed by the State, do not provide for the immediate withdrawal of the material in question.
REASONS FOR ENACTMENT OF RULES
In recent decades, our country has seen an increase in the use of social media, consequently, the abuse or misuse of social media has also increased to spread fake news; disseminating obscene content to harass women; mark defamatory statements, etc. The Supreme Court in Prajwala v. Union of India & Ors. (2015)[i], maintained a petition as a Suo moto writ, directed the government to work on and define the guidelines necessary to eliminate child pornography, obscene videos, and images from publication on different platforms. Following this, the Supreme Court in Facebook v. Union of India & Ors. (2019)[ii], ordered the Ministry of Electronics and Information Technology to respect the timeline for the completion and notification of the new rules. An Ad-hoc committee of the Rajya Sabha was formed and recommended that arrangements be made to identify the first author of the message regarding the obscene content that had the worst effect on society.
PRIVACY ISSUES WITH THESE RULES
One of the main problems with these rules is that they tend to violate our right to privacy. The new rules of sub-rule (2) of rule 5 want intermediaries that provide services mainly of a messaging nature to trace the first originator of the message. This means that intermediaries such as WhatsApp, Signal, etc. who currently use end-to-end encryption to protect user privacy will have to breach it. In tracing the first sender of any message, intermediaries will need to archive information and trace each individual message as it is quite uncertain which message the government will call inappropriate in the future. Thereby, the government is trying to use these intermediaries as a source of mass surveillance. An additional major risk is that even if applied, it is not infallible and could easily lead to human rights violations. The intermediaries will have to deliver in the name of the people who also have not created anything and have only shared it out of concern or simply sent it to verify its veracity. If someone simply downloaded an image or took a screenshot of it from an email or any other source and then sent it on WhatsApp, they would be called the first author. For this reason, many innocent people would have been involved in the investigation or been tried and even jailed for sharing something that was problematic in the eyes of the government.
The government justifies itself by suing Facebook against the Union of India & Ors. (2019), but if these rules are implemented, they will be against the Supreme Court ruling in the Life Insurance Corpn case. of India v. Prof. Manubhai D. Shah (1992)[iii]. In this case, the Supreme Court has elevated “the freedom to circulate one's opinions as to the lifeline of any democratic institution”. The court further added that “any attempt to stifle, suffocate or gag this right would ring a death knell for democracy” and “help usher in autocracy or dictatorship”. Therefore, it is very important to critically examine these barriers imposed by these rules.
The traceability provision violates the right to privacy enshrined in Article 21 of the Indian Constitution. Forcing WhatsApp to track down the first author would violate the privacy of every WhatsApp user in India. E2E encryption means that messages between two people are not accessible to any other entity, including the social media intermediary. Any compromise on the design of E2E encryption undermines the previously existing privacy of communications on messaging apps, as guaranteed by end-to-end encryption. WhatsApp also argued that the provision on traceability does not qualify the triple test provided for in Puttaswamy I[iv], namely, i) legality; ii) legitimate purpose of the State, and iii) proportionality test. It also highlighted the absence of judicial review in Article 4 (2).
The Information Technology Rules (Intermediate Guidelines and Digital Media Code of Ethics), 2021, are essentially seeking to change the way millions of people across India access the internet. Many new rules that are being introduced can be defined as a model of online surveillance and censorship. These rules that come at a time when people want to share fewer data raise a lot of concerns. The government’s concern for social media regulation isn't bad, but these regulations that come at the expense of ordinary people’s right to privacy are not a good idea. These rules also hinder the right to free speech, whenever a citizen has to think before having a private conversation, to have an opinion, to disagree, it would be a warning that our democracy is undermined.