The government’s move to amend section 79 of the Information Technology Act, 2000 to make social media platforms more accountable has the experts divided over its need and timing. The proposed amendments are aimed at social media platforms like WhatsApp, Facebook or Google which would need comply with government’s direction in providing information and assistance within 72 hours of request made with regard to origin of any content deemed unlawful and remove it. While some see the proposed measures are an attempt by the government to snoop on private citizens, others see them as too late and too little in terms of guaranteeing security.
The ministry of electronics and information technology (Meity), which is piloting a consultation process with industry stakeholders, meanwhile defended its stance stating that while it is committed to freedom of speech and expression and privacy of its citizens; instances of misuse of social media by criminals has brought new challenges which need to be tackled. The basic elements of the proposed changes are that social media platforms apart from being required to give information and assistance to any government agency within 72 hours of request; will also need to trace the originator of the information on their respective platforms; the platforms will need to remove access to “unlawful acts” as ordered by an appropriate government agency; and the platforms need to deploy automated tools to remove, disable access to unlawful information or content.
Further, such rules will apply to social media platforms having more than 5 million users and they need to have a permanent registered office in India and appoint a nodal point of contact for 24×7 coordination with law enforcement agencies. What has raised the hackles of Internet activists and a section of technology experts is that it arms the government with powers to armtwist social media platforms and curb freedom of expression.
“I regard the proposed changes as intrusive and retrograde. Instead of worrying about the message, we are targeting the messenger. The approach of the government is impractical and will require monitoring on a very high scale. In such situations implementation and response end up being arbitrary or selective and lacking credibility,” Mahesh Uppal, a telecom and technology analyst said.
But cyber law expert, Pawan Duggal disagrees. “It’s a great step forward for enforcing Indian rules on the foreign firms like WhatsApp. State power will consolidate and force foreign entities to comply with Indian law. However, it is a retrograde step backward for common citizens of the country. It has failed to address the anomaly of not providing effective remedy to affected netizens for acts done in cyber space.” Duggal said.
He added, “The earlier rules notified in 2011 mandated intermediaries to act on consumers complaints within 36 hours. However, it was stuck down by the Supreme Court in 2015 in the Shreya Singhal case. We were hoping that the government will amend the Act and bring it back for common citizens, who want their complaints for illegal/unwarranted content to be addressed by the intermediaries, but 72 hours is a long time in a country where there are no cyber courts”.
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Technology expert and former adviser to the Telecom Regulatory Authority of India (Trai), SN Gutpa, while welcoming the move to regulate social media platforms said that the government should desist from making piecemeal changes and work out a comprehensive policy on intermediaries. “While there is a set of rules for the telecom operators, there is none for intermediaries. The government should make a set of regulations for intermediaries but it should be comprehensive, not piecemeal, which seems to be the current practice,” Gupta said.
The genesis of the current deliberations of the government with industry stakeholders is incidents of lynching and violence which it believes occurred due to rumours of fake news which spread from WhatsApp. The government subsequently asked WhatsApp to check the spread of false messages on its platform and the social media platform did take a number of steps like restricting the number of times a message could be forwarded and adding a forward label to forwarded messages. However, the social media platform expressed its inability to trace the origin of such messages seeking refuge in its privacy rules and stating that the messages are encrypted and it cannot read them.
Technology experts, however, maintain that while messages on WhatsApp are end-to-end encrypted and cannot be read by WhatsApp, the company can trace the origin of the messages through source code. Source codes are used in mobile phones and e-mail networks to trace messages. While in phone networks it is called call data record, in e-mails it is called internet protocol data record (IPDR).
However, for such traceability there needs to be a domestic entity which is bound by local laws mandating how long the data is stored by the company concerned. For instance, today WhatsApp is not registered as a company in India. There’s no policy on local data storage and for what time period. Though WhatsApp cooperates with investigating agencies upon a complaint, globally also it is not regulated as to how long it needs to store data.
