Proactive tracking will ‘make suspects out of people’: Petitioner of 66A SC judgment

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The government’s move to ask ‘significant social media intermediaries’ to have automated tools to proactively track certain words is akin to “active hunting”, and will “make suspects out of people”, privacy activist and lawyer Shreya Singhal told The Indian Express.

It was on Singhal’s plea that the Supreme Court had in 2015 struck down Section 66A of the Information Technology Act, saying that the provision “clearly affects” the fundamental right to freedom of speech and expression, guaranteed by the constitution.

Other provisions announced in the new guidelines for social media intermediaries last week, such as messaging apps needing to “enable the identification of the first originator of the information on its computer resource”, would end up weakening overall security, harm privacy and contradict the principles of data minimisation endorsed in the IT Ministry’s draft Data Protection Bill, according to Udbhav Tiwari, public policy advisor at Mozilla Corporation.

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“Say one of the track words is interfaith marriage or love jihad, then you are criminalising your entire population … your entire citizenry you are making a suspect and from that suspects’ pool, you have a crime already. You want to attribute that crime to some people,” said Singhal.

A two-judge Bench of (now retired) Justice J Chelameswar and Justice Rohinton F Nariman had in their judgment in the Section 66A case also said that phrases like “annoying”, “inconvenient” and “grossly offensive” were extremely vague in nature and that what one person found offensive may not be as offensive to the other.

The new guidelines for social media intermediaries, announced by the Centre on February 25 put the onus of using “technology-based measures, including automated tools or other mechanisms to proactively identify information” related to rape, child sexual abuse or any conduct related to that, whether explicit or implicit.

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The same clause, however, also says that social media intermediaries will also have to use the same tools to proactively track information that has previously been removed or access to which has been disabled by a court order or an order of the government agency. These include information which may impact sovereignty and integrity of India, security of the State, friendly relations with foreign states or public order, according to the new guidelines.

“Say the rules are in place and they put into that automated tracking the phrase ‘toolkit’. Can you imagine how many arrests would have been made? There was so much outrage on one tweet,” said Singhal.

The latest guidelines for social media intermediaries have also drawn objections from several privacy experts and lawyers, with some saying they could “undermine the principles of open and accessible internet, the fundamental right of privacy and freedom of speech and expression enshrined in the Constitution”.

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“The traceability provision as provided in Rule 5(2) will undermine end-to-end encryption services offered by instant messaging applications. Although it requires a judicial order or an order issued under Section 69 of the Information Technology Act, 2000, this does not solve the problem when the encryption technology itself is compromised,” said Prasanth Sugathan, legal director, at Software Freedom Law Centre, India.

The new guidelines for social media intermediaries also mandate that platforms that have over 50 lakh registered users in India and are primarily in the business of messaging “shall enable the identification of the first originator of the information on its computer resource” if such an order is passed by a competent court or by the government under Section 69 of the IT Act.

Tiwari, in a blogpost, said, “When the first originator is from outside India, the significant intermediary must identify the first originator within the country, making an already impossible task more difficult. This would essentially be a mandate requiring encrypted services to either store additional sensitive information or/and break end-to-end encryption.”

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Though there has been no judicial challenge to the rules so far, most experts are of the opinion that some stakeholders, who are directly impacted by the rules, will approach the courts sooner than later. “I hope it does not withstand judicial scrutiny. They have completely obfuscated the whole of judiciary here. Earlier, you had to file a police complaint if you had anything objectionable. Here you have set up this one board where anyone can file a complaint, which is reviewed by administrators who may not have a judicially trained person,” said Singhal.

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