Context:
-
The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 came into force.
-
The social messaging platform (whatsapp) has moved to the Delhi High court against the new rules, especially the traceability provision.
What is Traceability Provision?
-
It requires significant social media intermediaries to identify the first originator of the information on its platform if required by judicial order.
-
A significant social media intermediary is one with more than 50 lakh registered users.
Why does the Government want to invoke traceability provision?
-
It will use the provision as a tool of last resort for special situations.
-
This includes prevention, detection, investigation, prosecution, or punishment of an offense related to the sovereignty and integrity of India, child sexual abuse material, etc.
-
As per the government, such usage would be in line with the Puttaswamy judgment.
-
The judgment demands that any restriction to the right of privacy must be necessary, proportionate, and should have safeguards against abuse.
Concerns associated with Traceability provision:
-
Against User’s Privacy: Compliance will require Whatsapp to break its end-to-end encryption service that allows messages to be read-only by the sender and the receiver. Breaking this would violate a user’s privacy.
-
Information already shared:
-
The government can already seek access to encrypted data under Section 69(3) of the IT Act.
-
Rules 17 and 13 of the 2009 Surveillance Rules require intermediaries to assist with decryption:
-
when they have the technical ability to do so and
-
when a law enforcement agency has no other alternative.
-
-
-
No Judicial Oversight: New rules don’t have any independent or judicial oversight. This would allow the government to seek any user’s identity on vague grounds. This could compromise the anonymity of whistle-blowers and journalistic sources.
The Government needs to revisit its position on traceability commitments of intermediaries. It should revise the IT Act, 2000 in line with the international standards and pass the long-pending Data Protection Bill.