The legal battle between the Union government and WhatsApp raises several serious questions on privacy and restrictions.
The social media intermediary fears that the restrictions will undermine the right to privacy, while the central government cites national security to justify the restrictions.
There is no denying the fact that privacy is important, but it cannot be allowed at the cost of national security. Striking a justifiable balance between privacy and national security is required, especially in the backdrop of fake news increasingly being circulated on social media.
The government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules on February 25, and accorded three months’ time to social media service providers to comply with the new rules.
The rules mandate the appointment of resident Indians as Chief Compliance Officers and Grievance Officers, besides submitting monthly action-taken reports and introducing provisions to identify the first originator of information (traceability) in cases pertaining to national security.
Certain clauses, like traceability, are impractical and lack transparency. It has to be addressed. But the stand of certain intermediaries against the implementation of the norms is undemocratic.
Rights and responsibilities
Social media intermediaries currently enjoy ‘safe harbour’ cover, a provision that offers them immunity from taking responsibility for content posted by users. Several countries have offered this cover.
Section 230 of the US’s Communication Decency Act, which ensured immunity, helped intermediaries such as Facebook and Twitter to grow worldwide. The tech world refers to this section as the “26 words that made the Internet.”
The safe harbour provision came into effect in India following a 2004 case in Delhi. Avinash Bajaj, the CEO of bazee.com and its manager were jailed after an IIT student had posted a sleaze video on the website.
Bajaj moved the court, arguing that the website was not responsible for the content posted by users. His legal battle led to safe harbour of intermediaries in India.
To avail the safe harbour cover, the intermediaries should comply with the rules the government frames from time to time, according to Sub-section 2(c), Section 19 of the Information Technology Act. The guidelines issued in February fall under this rule.
Social media intermediaries have been enjoying several rights, denied to other media. Their stand against taking up responsibilities and complying with guidelines is unilateral.
Non-compliance with the Intermediary Guidelines and Digital Media Ethics Code would lead to the service providers losing the immunity cover. It would also land officials of intermediaries such as Facebook and Twitter in the dock over user-generated content.
Double standard on privacy issue
WhatsApp had a few weeks ago threatened to cancel accounts that did not accept its new privacy clause. The company later withdrew the threat.
The Union government had then viewed the threat as a challenge to several values sacrosanct to Indians. Ironically, WhatsApp itself has now moved the Delhi High Court against the government, saying the privacy clause in the new guidelines would weaken its end-to-end encryption provision.
The European Parliament had passed the General Data Protection Regulation, guaranteeing stricter data protection. Strangely, WhatsApp allowed those who had not accepted its privacy clause to continue using the cross-platform centralized messaging service in the European Union. The firm, however, preferred to announce in India that it would close the accounts that did not accept its privacy clause.
Encryption v Traceability
WhatsApp is arguing that the new guidelines will weaken its secure end-to-end encryption, which allows only the sender and receiver to access the message. The Centre’s new guidelines require intermediaries to help in tracing the first creator of messages that might affect national security, public order, or those affecting friendly relations with foreign countries, and content on harassment or of explicit sexual nature.
The traceability clause brings with it a set of issues. Chances of misusing the clause is high, and innocent people may face the heat.
The ‘first originator of information’ need not be the one who had created a particular ‘offensive’ message. The sender might have shared the message from some other platform, or downloaded a received message before uploading it back to the same platform. Despite the clause not being fool-proof, it cannot be scrapped altogether.
An alternative mechanism, instead of storing messages of individuals, is now required. WhatsApp has not responded to a Central government suggestion to introduce an alpha-numeric method to tag (hash value) messages, which won’t affect the end-to-end encryption provision.
The Centre has also clarified that the responsibility of introducing a technology to equally ensure traceability and encryption rests with WhatsApp.
Future of officials
WhatsApp appointed a Country Head after the Central government insisted on an India-specific official in 2018. The move was to bring WhatsApp under the country’s legal gambit.
Though Facebook and WhatsApp offered fat pay packets, the firms could not find appropriate persons to head their India operations.
The fear of being slapped with criminal cases discouraged most from accepting the offers. A committee headed by Central Home Secretary Rajiv Gauba had recommended legal action against the India heads of social media platforms on which fake news were circulated.
The companies will face the same issue under the new set of guidelines. Once the safe harbor cover is lifted, officials appointed based on the new norm, might also face criminal cases.
Central minister Ravi Shankar Prasad Ravi Shankar Prasad had told WhatsApp CEO Chris Daniels during an August 2018 meeting that rocket science was not required to trace the origin of a message being circulated on the platform. Following pressure from the government, WhatsApp appointed Komal Lahiri as its grievance official in India that year.
