In a gap of just a year, two social media ‘intermediaries’ have approached two different High Courts on two contentious issues that arose after the Union government started regulating intermediaries.
In July 2021, the government implemented the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules). Among other things, the new rules sought the traceability of messages to their first originator when asked. Meta (Facebook)-owned Whatsapp, the most popular push messaging platform, has gone to the Delhi High Court citing that such a step of breaking encryption would violate the privacy of users, which was guaranteed as a fundamental right by the landmark Supreme Court judgment in KS Puttaswamy v Union of India. This July, the most popular micro-blogging site, Twitter, approached the Karnataka High Court for a judicial review of the take-down requests that were made by the government. In its filing, Twitter has argued that many of the requests for the removal of content fell short of the procedural requirements stipulated by the Information Technology (Amendment) Act, 2008 (IT Act).
Content tracking and content blocking are at the heart of the Twitter and Facebook cases. Individually, they are related to technology, but collectively, they signify the direction the Indian digital conversation is going in.
While in the Facebook case, the Delhi High Court will deal with the technical possibility of traceability around existing rules, in the Twitter case, the Karnataka High Court will decide on issues based around censorship and freedom of expression.
Both are seminal judicial events as concerns grow about the need to regulate tech giants.
India’s 17,338 legal demands between 2012 and 2021 account for 7% of the global legal demands to Twitter.
Where Is India's Digital Ecosystem Going?
Both these cases come as concerns grow about the need to regulate tech giants, which have become the key medium for the spread of hate speech and fake news. These platforms are guided by the provisions of Section 79 of the IT Act and are thus categorised as ‘intermediaries’, thereby enjoying immunity as long as they don’t get involved in the inception, transmission and reception of any content.
However, over the years, it has been seen that certain online content may end up disturbing public order in the real world. In such cases, intermediaries are slow to take problematic content down on their own or respond to requests from users and the government. The guidance for the take-down requests to the intermediaries has primarily been based on the terms of usage that these platforms provided rather than primacy to the laws of the land.
As a response to the emerging situation, the government introduced the IT Rules in February 2021 (implemented in May 2021), which put in place many provisions that could resolve the gap between content flowing through the networks and the response from the intermediaries to the satisfaction of the users and governments. But many saw the requirements of the IT Rules as more than just making the intermediaries accountable; they seemed to be missing the principle of proportionate application as well as hinging on facets that would be difficult to implement technically, or which may even fall short of the free speech standard.
Content tracking and content blocking are thus at the heart of the Twitter and Facebook cases. Individually, they are related to technology, but collectively, they signify the direction in which the Indian digital conversation ecosystem is going.
The IT Rules have defined 'significant social media intermediaries' as those having more than 50 lakh users. The rules require them to enable the identification of the first originator of information within India on their platform if a court or a competent authority orders them to do so. Such orders would be issued only when less intrusive means have failed to trace the first originator – and only on specified grounds, including the prevention, detection, and investigation of certain offences, such as those relating to national security, public order, and sexual violence.
Understanding WhatsApp Encryption
While Whatsapp has argued that such an action is not possible without breaking encryption, a handful of technology experts have asserted that it is possible to trace a message without compromising with encryption. These views are primarily based on the expert opinion of Professor V Kamakoti of IIT Madras in the PIL filed by Anthony Clement Rubin in the Madras High Court in 2018. But the fact is that such an assertion has neither been proved in any quarters nor peer-reviewed.
Whatsapp adopted the Open Signal Protocol (OSP) in 2014, a year after the protocol was developed as a response to the Patriots Act in the US, which required messaging platforms to share the decryption key with agencies when ordered. The OSP uses a so-called ‘ratchet’ system that changes the key after every message and generates a secret key. Since generating this secret key requires access to the users’ private keys, it exists only on the two devices involved in the channel. Thus, not even WhatsApp or Facebook themselves can see or listen to the communication channel across its platform. While the reasons why the Indian government is calling for traceability may be genuine, doing so might not be possible unless Whatsapp has a different protocol in place.
Free Speech vs 'National Interest'
In the Twitter case, content take-down requests are premised on Section 69A of the IT Act, which allows a designated officer of the government to seek content removal by a government agency or an intermediary in the interest of the sovereignty and 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 cognisable offence relating to the above. However, there is a clear pluralistic procedure for such steps.
It is true that Twitter has to abide by the law of the land if it wants to operate in India, and that the government has the responsibility of maintaining internal law and order. So, any content that can threaten peace on the ground needs to be removed. But at the same time, public order and national security cannot become an excuse for crushing dissent or unfavourable viewpoints.
Also, and more importantly, selective application of Section 69A will only imperil democratic institutions. Given that as a nation, India has been flagged by multiple transparency reports as having the highest number of content take-down directives, the concern is genuine.
India’s 17,338 legal demands between 2012 and 2021 account for 7% of the global legal demands to Twitter, and there are arguments that this is proportionate to India’s user base, which makes up for 7% of Twitter users.
Both the Facebook and the Twitter cases are thus seminal judicial events where two High Courts will decide on two very important aspects of the digital ecosystem. While in the former, the Delhi High court will deal with the issue of the technical possibility of traceability around existing regulations, in the Twitter case, the Karnataka High Court will have to decide what content can be censored by the government and whether ‘anti-government’ content is part of the fundamental right to freedom of expression.
(Subimal Bhattacharjee is a commentator on cyber and security issues around Northeast India. He can be reached @subimal on Twitter. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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