A current proceeding earlier before the Madras high court but now transferred to the Supreme Court of India threatens fundamental harm to the freedom of expression on the internet, not only in India but elsewhere in the world. The pending petition seeks to require that Facebook make all WhatsApp messages traceable to their originator through the linkage of identity information (mobile phone or, perhaps, Aadhaar numbers) to all messages exchanged.
It should hardly be necessary – given the Supreme Court’s judgment in Justice KS Puttaswamy and Anr vs Union of India and Ors which confirmed that we have a fundamental right of privacy – to say that this petition must be dismissed as an affront to our basic constitutional freedom.
But technology is hard and law around it complicated, therefore, sweeping statements about terrorism and nationalism are made by counsels in court forcing the judges to become experts in matters far beyond most people’s expertise. They are expected to not only understand the intricacies of technology but also ensure innovation is not curtailed, all along addressing the fear mongering of new uses of technology.
Facebook is also entirely justified in objecting that it could not possibly satisfy such an order without fundamentally compromising the architecture of WhatsApp not only in India, but also throughout the world. WhatsApp is a credible communications system because it provides “end to end” encryption of the messages it carries, ensuring that Facebook itself cannot read the contents of our communications. Facebook can, it is true, determine the identity of any message’s sender and recipient,. The demand for traceability is therefore a demand that Facebook compromises the security of all communications it handles.
By now, many of us are accustomed to observing technologists who find law challenging and lawyers who understand no technology and policy makers who are expected to know it all but are usually lost balancing several competing interests. Most law officers for the government assisting the court nonetheless inform the court that if only Facebook understood its technology as well as they understand it, everybody would see at once that down is up, light is dark and left is right. One submission says that Facebook can be required to add the identity information of each message originator to the message itself before it is “end to end” encrypted, allowing every communication to be traced back through the chain of forwarding to its original source.
Many well-intentioned observers have pinned all their hope on the recently tabled Personal Data Protection Bill, 2019, to protect citizens from the ever broadening reach and greed of companies and other entities for our data. While India does need such a law urgently, in no way can this address the problems being presented by this case where all citizens’ privacy and security is held ransom to check the notoriety of a few malicious players.
Chandrachud J , while Writing the plurality opinion in Puttaswamy, holds that the right to privacy is not independent of the other freedoms guaranteed by Part III of the Constitution. It is an element of human dignity and is an inalienable natural right. He focuses on the informational aspect of privacy, its connection with human dignity and autonomy, and rejects the argument that privacy is an elitist construct. During the course of his opinion, Chandrachud J. makes several observations about privacy in the digital economy, dangers of data mining, positive obligations on the State, and the need for a data protection law. He also raises an important point about the negative and positive elements of privacy. The former restricts the State from unfairly interfering in the privacy of individuals, while the latter obliges it to put in place a legislative framework to restrict others from doing so.
In our view, the Supreme Court should reaffirm that the fundamental right of privacy under Article 19 recognised in Puttaswamy protects both the secrecy and the anonymity of our personal communications, and prevents GoI or its courts from ordering technological intermediaries to breach those rights on its behalf. The government’s law officers should be required to tell the Supreme Court whether they wish to stand behind this witch’s brew, or whether the technologies of totalitarianism are unacceptable in the world’s largest democracy.
Source with edits, revisions, and with additions: Protect right to privacy: Petition to make social media traceable strips the privacy right of all meaning, https://timesofindia.indiatimes.com/blogs/toi-edit-page/protect-right-to-privacy-petition-to-make-social-media-traceable-strips-the-privacy-right-of-all-meaning/
Questions
1. Kunal created a Facebook page using an anonymous account and was constantly uploading political satires on the page. One day he posted very mean things against an MP from Bihar aiming to ridicule him. The government asked Facebook to cooperate in finding the perpetrator. Does Facebook have the option of denying the request according to the authors’ views?
a. Yes, Facebook can deny cooperating as the fundamental right of privacy under Article 19 recognized in Puttaswamy protects both the secrecy and the anonymity.
b. No, Facebook can’t deny the request as fundamental right of privacy under Article 19 recognized in Puttaswamy protects both the secrecy and the anonymity of our personal communications.
c. Yes, Facebook can deny the request as the page is created using a fake account.
d. No, Facebook will have to cooperate as the page admin has violated Indian law by defaming an MP.
2. Personal Data Protection Bill, 2019, is aimed at protection of citizens from the ever broadening reach and greed of companies and other entities for our data; however this doesn’t provide a resolution for the problem raised by the author in the passage, what is the main reason for this according to the authors?
a. Because it is the high headedness of the politicians which is causing these companies to leak our data.
b. Because the law itself allows such interference in the name of security and national interest.
c. Because the law in India is outdated and there is urgency to create data protection mechanism.
d. Internet and data is still not accessible to the majority of population in India.
3. J. Chandrachud raised an important point about the negative and positive elements of privacy, the former restricts the State from unfairly interfering in the privacy of individuals, while the latter obliges it to put in place a legislative framework to restrict others from doing so. What other right as follows have similar characteristics?
a. Right to free speech.
b. Right to life.
c. Right to property.
d. All of the above.
4. Kunal created a Whatsapp account and messaged his friend, a meme mocking the CM of Bihar, his friend after receiving the meme uploaded it on his story and cited the source as unknown. The police got a hold of him and started interrogating him. He confessed that he hadn’t created the meme but he didn’t reveal Kunal’s name either. The police asked Facebook to cooperate in finding the creator of the meme by looking into the inbox of Kunal’s friend. Does Facebook have the option of denying the request according to the authors’ views?
a. Yes, as the Facebook can’t enter into messages of any user.
b. No, the meme was posted online and viewed by so many people, Facebook must help in find the violator. .
c. Yes, as the meme was sent via message hence constitutes personal communication.
d. No, as the meme was ultimately posted publicly so Facebook have to trace the creator.
5. Let assume in the hypothetical above, his friend has given credit to Kunal for the meme while posting it on his stories, does the police now has a basis to pursue an Investigation against Kunal?
a. No, as the friend here could have easily lied about the source.
b. No, as the meme is not signed, someone assertions about its creator is baseless.
c. Yes, as Kunal only has sent the meme in the first place.
d. Yes, as Kunal has been credited the maker of the meme by his friend.
Answers
1. B. The author clearly states that In their view, the Supreme Court in Puttaswamy affirmed the fundamental right of privacy under Article 19 recognized protects both the secrecy and the anonymity of our communication. The fact that Kunal created the page using an anonymous account proves his intent to save his anonymity.
2. B. The author argues that though the bill is imperative it in no way can this address the problems being presented by this case where all citizens’ privacy and security is held ransom to check the notoriety of a few malicious players. Here the notoriety of a few malicious players is in context of users of facebook who use social media to share information regarding terrorism and intend and plan to harm the state machinery. It is further clear from the fact that the Madras court itself gave the judgment under influence of the government counsels sweeping statements about terrorism and nationalism.
3. D. All of the rights have such negative and positive elements attributed to them.
4. C. It is clear from the facts that the Supreme Court in Puttaswamy affirmed the fundamental right of privacy under Article 19 recognized protects both the secrecy and the anonymity of our personal communication. Here the communication is personal and done via Whatsapp.
5. B. That is the problem the author talks about when it states that when a message is end-to-end encrypted, the source or the originator can be identified but the authenticity of the content can’t be verified as it can’t look into the contents of the message.
