Policy POINT: Big Internet Week
Cutting through the khichdi of new IT rules and WA case against the government
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
Pre-concept needed: Safe harbour
Safe harbours are globally accepted protections for intermediary platforms like social media and micro-blogging sites. In India, the protection comes under Section 79 of the IT Act.
Section 79 says any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
This protection shall be applicable if the said intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message and does not modify any information contained in the transmission.
Let’s break the new rules down:
Who is an Intermediary?
Intermediaries are entities that store or transmit data on behalf of other persons. Intermediaries include internet or telecom service providers, online marketplaces, and social media platforms.
So basically - Twitter, Facebook, WhatsApp, Netflix etc are all intermediaries - they connect “source of information” to the “receiver of information”
What are the guidelines?
The social media platforms will have to appoint compliance officers from India.
The streaming platforms including Netflix, Amazon Prime and others will have to appoint a grievance redressal officer based in India
Companies to include representatives from the various ministries and form a committee to regulate the content.
Committee will have the sole power to take actions on complaints of the violation of codes.
Removal of Unlawful Information
Enabling Identity of the Originator:
Significant social media intermediaries (more than 50L users) providing services primarily in the nature of messaging shall enable the identification of the first originator of the information.
Required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order.
WhatsApps Lawsuit against the Govt:
Pre-concept needed:
Case: Justice K. S. Puttaswamy (Retd.) V Union of India
The right to privacy is widely considered one of the basic human rights and the same is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
What is the WhatsApp case about?
WhatsApp (WA) Case is against the trace-ability clause in the IT rules ie Point 6 mentioned above.
This originator must be disclosed if required by An order from the
Court
or the government.
Such order will be passed for specified purposes including investigation of offences related to
sovereignty and security of the state,
public order, or
sexual violence.
Why is this an issue?
WA say its unconstitutional basis the Puttaswamy judgment and that it will violate the privacy of users.
How? WA contents that it will lead to mass surveillance
Why? WA is end to end encrypted, so no third party, not even WA can read your messages. This is why if you don’t back up your messages, you lose them when you change your phone.
If the message is encrypted how will WA trace the origin?
This the core of the argument - WA cannot track just one message.
It will have to Tag, Track and Store each and every message to able to produce the message needed by law enforcement ie Mass surveillance
The other method would WA having to re-engineer the app for India to remove the end to end encryption. While India is a large market, no company will create an app for just India, especially in a connected world
It will also have risks of impersonation, hacking and people being targetted for bonafide errors or mistakes. Digital fingerprinting is not fool-proof - imagine you don’t forward, but copy and paste a message - Would that make you an originator?
The global trend is towards privacy
What is the government’s stance?
Any operations being run in India are subject to the law of the land.
WhatsApp’s refusal to comply with the guidelines is an act of defiance of a measure whose intent can certainly not be doubted.
The right to privacy is not absolute and comes with “reasonable restrictions”
Conclusion:
The rules and WA case will impact everyone and almost all messaging and social media apps.
The WA forwards on “all calls being recorded” is fake - the data is still encrypted. But the fear can tell you how the rules may impact privacy and our right to share our opinion safely and freely.
Sovereignty and security of the state, public order, are vague terms and subject to interpretations.
Broad data on users
WhatsApp users: 53 Crore
YouTube users: 44.8 Crore
Facebook users: 41 Crore
Instagram users: 21 Crore
Twitter users: 1.75 Crore