The article deals with the issues involved in the traceability requirement of the originator of information on social media platform as per new IT Rules.

Traceability clause and issues involved

• Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 imposes certain obligation on significant social media intermediaries.
• Rule 4(2) puts an obligations to ensure traceability of the originator of information on their platforms.
• Consequently, WhatsApp has filed a petition in the Delhi High Court.
• WhatsApp contends that the mandate for traceability violates the privacy rights of Indian citizens, by rendering WhatsApp unable to provide encrypted services.

Government’s response

• The Government primarily relies on the argument that: privacy is not an absolute right, and that the traceability obligation is proportionate, and sufficiently restricted.
• Notably, the new Rules mandate traceability only in the case of significant social media intermediaries i.e. those that meet a user threshold of 50 lakh users, which WhatsApp does.
• Traceability is also subject to an order being passed by a court or government agency and only in the absence of any alternatives.
• While it is indeed true that privacy is not an absolute right, the Supreme Court of India in the two K.S. Puttaswamy decisions of 2017 and 2018 has laid conditions for restricting this right.
• In Puttaswamy cases, the Supreme Court clarified that any restriction on this right must be necessary, proportionate and include safeguards against abuse.

Issues with traceability

• Not proportionate: A general obligation to enable traceability as a systemic feature across certain types of digital services is neither suitable nor proportionate.
• No safeguard against abuse: The Rules lack effective safeguards in that they fail to provide any system of independent oversight over tracing requests made by the executive.
• This allows government agencies the ability to seek any messaging user’s identity, virtually at will.
• Presumption of criminality:  Weakening encryption — which a traceability mandate would do — would compromise the privacy and security of all individuals at all times, despite no illegal activity on their part, and would create a presumption of criminality.

Way forward

• Explore the alternatives: The Government already has numerous alternative means of securing relevant information to investigate online offences including by accessing unencrypted data such as metadata, and other digital trails from intermediaries.
• Already has ability to access encrypted data: The surveillance powers of the Government are in any case vast and overreaching, recognised even by the Justice B.N. Srikrishna Committee report of 2018.
• Importantly, the Government already has the ability to access encrypted data under the IT Act.
• Notably, Section 69(3) of the Information Technology Act and Rules 17 and 13 of the Information Technology Rules, 2009 require intermediaries to assist with decryption where they have the technical ability to do so, and where law enforcement has no alternatives.
• Judicial scrutiny of Section 79 of IT Act: The ability of the government to issue obligations under the guise of “due diligence” requirements under Section 79 of the IT Act must be subject to judicial scrutiny.
• Legislative changes needed: The long-term solution would be for legislative change along multiple avenues, including in the form of revising and reforming the now antiquated IT Act, 2000.

Consider the question “What are the issues involved in the traceability of the originator of the information on social media platforms as mandated by the new IT Rules 2021? Suggest the way forward.”

Conclusion

While, undoubtedly, there are numerous problems in the digital ecosystem that are often exacerbated or indeed created by the way intermediaries function, ill-considered regulation of the sort represented by the new intermediary rules is not the way forward.

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