Power play to bring the digital ecosystem to heel

Recently, the Ministry of Electronics and Information Technology has framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The rules broadly deal with the regulation of social media and over-the-top (OTT) platforms and digital news.
These rules have recently come into effect. Consequently, WhatsApp has filed a petition in the Delhi High Court alleging that the mandate for traceability violates the privacy rights of Indian citizens, by rendering WhatsApp unable to provide encrypted services.

The rule imposes an obligation on significant social media intermediaries providing a messaging function to ensure the traceability of the originator of information on their platforms.
Failure to do so will result in intermediaries being held responsible for illicit content on their platforms.

Government has come up with the following stand against the petition of Whatsapp group:

Privacy is not an absolute right.
Traceability obligation is proportionate and sufficiently restricted.
New Rules mandate traceability only in the case of significant social media intermediaries(user threshold of 50 lakh users) and subject to an order being passed by a court or government agency.
The provision will be used only in the absence of any alternatives.

It is true that privacy is not an absolute right, but as noted by the Supreme court in the K.S. Puttaswamy case, any restriction on Right to Privacy must be necessary, proportionate and include safeguards against abuse.
Hence, general obligation to enable traceability as a systemic feature across certain types of digital services is neither suitable nor proportionate.
Another issue with the rules is that they lack effective safeguards to provide any system of independent oversight over tracing requests made by the executive. Hence, prone to misuse by government agencies.
Anonymity from the government is required especially for whistle-blowers and Journalists. Hence, deciding whether to remove anonymity should be done by Judiciary.
Weakening of encryption systems has its own cost especially in the general digital ecosystem.
The present regulation of the government will thus result in compromising privacy and security of all individuals, not only criminals.
Thus ill-considered regulation such as the new IT Rules is not the way forward.

There are alternative means of securing relevant information like accessing unencrypted data such as metadata and other digital trails from intermediaries to investigate online offences. Government should take help from them.
There are already vast and overarching surveillance powers of the Government as recognised even by the Justice B.N. Srikrishna Committee.
Even at present the ability to access encrypted data under the IT Act. Section 69(3) of the Information Technology Act and Rules 17 and 13 of the Information Technology Rules, 2009 require intermediaries to assist with decryption where they have the technical ability to do so and where law enforcement has no alternatives.

Draft version of the Rules released in 2018 on which present regulations are based, faced a lot of opposition from numerous stakeholders ranging from service providers, academia, and civil society organisations.
The new Rules should have been put for consultation before being notified.
Also the rules should also be accompanied by an explanatory memorandum explaining the rationale for regulation.
Undoubtedly there are numerous problems in the digital ecosystem, but an ill-considered regulation which appears to have little basis in evidence or care for consequences is not the way forward.
Indeed, the only truly democratic and relatively long-term solution would be for legislative change along multiple avenues, including in the form of revising and reforming the now antiquated IT Act, 2000.

https://www.thehindu.com/opinion/op-ed/power-play-to-bring-the-digital-ecosystem-to-heel/article34693088.ece

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