The Supreme Court has decided to examine whether social media intermediaries such as Facebook and WhatsApp should facilitate the State to access encrypted and private social media conversations of citizens, purportedly to fight crime and terror.
A Bench of Justices Deepak Gupta and Aniruddha Bose on Tuesday transferred to itself several pending cases in various High Courts on the issue and scheduled the hearing for the last week of January 2020 before an appropriate Bench.
The court is waiting for the Centre to notify its revised Information Technology Intermediaries Guidelines (Amendment) Rules by January 15. These Rules, said the government, were borne out of the present-day necessity to usher in a stricter regime and more cooperation to combat the spread of pornography, sedition, hate, fake news, “anti-national activities and terror online.
Justice Bose said the issue concerned individual privacy versus national interest.
“A terrorist cannot claim privacy,” submitted Attorney General of India K.K. Venugopal, along with Tamil Nadu Advocate General Vijay Narayan and Additional Advocate General Balaji Srinivasan.
Solicitor General of India Tushar Mehta said the government’s move to gain more access into social media was not a “ploy” and was triggered by a deep concern for the sovereignty of the nation. It was stemmed out of national interest.
“The government has no intention to invade the privacy of innocents,” Mr. Mehta said. Intermediaries need to cooperate with the government to secure the nation against terror.
“Your Lordships have to find a balance between national interest, sovereignty and police investigation with individual privacy,” Mr. Mehta explained.
Mr. Mehta was reacting to submissions made by senior advocate Shyam Divan, for Internet Freedom Foundation, that the case was momentous and affected personal freedom. “The rights of citizens cannot be trampled upon,” Mr. Divan submitted.
Mr. Venugopal said Parliament had empowered the government through Section 69 (1) of Information Technology Act to lawfully intercept, monitor and decrypt information through a computer resource if “satisfied that it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence”.
“Now social media intermediaries can’t come into the country and say they can’t allow decryption,” Mr. Venugopal argued.
Justice Gupta remarked that the section only allowed the government to lawfully decrypt information and did not entail any obligation on the part of the social intermediary concerned.
The AG responded that the government did not want any technical assistance from the intermediary to crack encrypted social media traffic to fight crime. All it wanted was for the online platforms to facilitate access.
“They will give us facilities to access the information, to access the entire counter system in which they are recording,” Mr. Venugopal submitted.
“Not so simple. I don’t have the key,” senior advocate Mukul Rohatgi, for WhatsApp, responded to the argument.
Justice Bose said the hardware may be located outside the country.
“Let them say so, we will take care of that,” Mr. Venugopal replied.
Mr. Rohatgi said the social media intermediaries were under no obligation to disclose details of private accounts. This would breach privacy.
Justice Bose put matters in perspective, saying the social intermediaries could not claim protection under the fundamental rights of 19(1)(a) and (g) — right to free speech and right to practise any profession. “You are not an Indian citizen,” Justice Bose explained.
“I am not on my protection but on the protection of the rights of my clients (social media account holders),” Mr. Rohatgi clarified.
In a recent affidavit, the government said the Internet had emerged as a potent tool to cause unimaginable disruption to the democratic polity.
The government affidavit was explaining to the apex court the need to revise Rules to regulate social media intermediaries. The affidavit filed by the Union Ministry of Information Technology said the regulatory regime required to be ramped up considering the “ever-growing threats to individual rights and nation’s integrity, sovereignty and security”.
The court hearing was based on a petition filed by social media giant Facebook for transfer of pleas concerning the linking of social media accounts to Aadhaar. Facebook and WhatsApp have argued that this would lead to loss of individual privacy. The Tamil Nadu government — one of the cases is pending in the Madras High Court — has argued that social media should be more transparent and cooperative with the police for purposes of crime detection, national security and so on.
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