Encryption debate is not new: Ramesh panel report can give BJP ammunition

BJP has pointed out, amid criticism from the Opposition, that a panel chaired by a Congress leader had made suggestions to break encryption in 2020

Congress has gone hammer and tongs against the government's new digital rule that obliges all social media platforms to identify the originator of the information but a report by a Parliamentary panel chaired by its own leader last year could give ammunition to BJP to accuse the Opposition party of double-speak.

Sharing the report recommendations on Twitter, the National in-charge of BJP's Information & Technology department Amit Malviya said, "Report of the Adhoc Committee of the Rajya Sabha, under the Chairmanship of Jairam Ramesh, on child pornography and social media, put before the Parliament in Jan 2020, recommended...Why does Congress insist on embarrassing itself again and again?

Going back to 2020, the Committee led by Ramesh after taking submissions from Facebook (that also owns WhatsApp), Google, Twitter, Tik Tok and Sharechat, recommended permitting the breaking of end-to-end encryption to trace distributors of child pornography.

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"The committee recommends modifying the IT (Intermediary Guidelines) Rules 2011 to include the ability to trace the originator or sender of the message shared on end-to-end encryption platforms in cases where the Child Sexual Abuse Material (CSAM) that has been shared has come to the attention of law enforcement agencies."

The overriding view in the Committee then was that the breaking of end-to-end encryption on WhatsApp and other such apps will help law enforcement agencies hunt down distributors of child pornography online.

Malviya's comments come after Congress spokesperson Abhishek Singhvi had called the new social media guidelines "dire, drastic and draconian". "The new rules are a severe blow to the vibrant culture of discourse, deliberation and dissent in India. What the Modi government seeks to implement today, would make the North Korean model of the control of the media blush."

Getting specific, he said, "...Rule 4 obliges all social media platforms to identify the first originator of the information. This introduces the requirement of traceability which would break end-to-end encryption."

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Ramesh, who was the panel Chairman, on May 27 argued on Twitter, "TEXT depends on CONTEXT."

He said the cross-party Ad-hoc Committee he was asked to chair by Rajya Sabha Chairperson M Venkaiah Naidu was to “study the alarming issue of pornography on social media and its effect on children and society as a whole” and the recommendation applies to that alone.

BJP Vice President Vinay Sahsrabuddhe, who was a member of the panel, said, "whatever Jairam Ramesh Committee would have said in those times, the point here is that a sovereign has every right to make laws and implement them."

"Are they going to reveal what kind of algorithms they create and how you are creating them? There is no stakeholder involvement in deciding about their policy. They are now trying to tell us what democracy is. This is not just condemnable but also something which requires for all of us to make these social media intermediaries more accountable and transparent. Abide by the rules that are created," he said.

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In its submission before Delhi High Court, WhatsApp said the traceability rule will break end-to-end encryption and can put the privacy of individuals including journalists to risk.

WhatsApp's stand has been consistent on the matter. Ministry of Electronics and Information Technology, in its presentation before the ad hoc committee of the Rajya Sabha to look into pornography on social media, had pointed this out last year that some platforms like WhatsApp, Signal, etc, cite end-to-end encryption for not cooperating with the Law Enforcement Agencies and they do not honour even lawful requisitions, raising privacy concerns.

In a submission before the panel, HERD ( Health - Education - Rural - Development) Foundation had said that to trace the distribution of Child Pornography, breaking of end-to-end encryption should be permitted.

The representative of Sharechat in his submission before the Committee mentioned that there was a need for a commonly agreed standard between social media companies, both global and domestic to understand the scope of the obligation and the actions to be taken by a platform. He further added that these standards would ensure free and fair regulation of the internet and aid the platform to distinguish between freedom of expression and pornography. Moreover, reporting on compliance with such norms would create transparency on actions taken by platforms to enforce the law of the land.

The representatives of Facebook in their submission submitted that Facebook and Instagram were social media platforms (intermediaries) whereas Whatsapp was an encrypted peer-to-peer messaging service.

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Law Minister Ravi Shankar Prasad, while disagreeing with WhatsApp's privacy argument, says the government respects the Right to Privacy and has no intention to violate it but at the same time, insists that the compliance requirement is necessary for public interest and identifying the first originator of messages.

"It is very important to note that such an order to trace the first originator, under Rule 4(2) of the said guidelines, shall be passed only for the purposes of prevention, investigation, punishment, etc of inter alia an offence relating to sovereignty, integrity and security of India and public order incitement to an offence relating to rape, sexually explicit material, or child sexual abuse material punishable with imprisonment for not less than five years,” the Ministry of Electronics and Information Technology (MeitY) said in its statement.

Experts, however, feel that the government wanting originator details without breaking encryption under new IT rules is impossible. WhatsApp in its petition also argued that since there is no way to predict which message will be the subject of such a tracing order and hence the only way before it is to build the ability to identify the first originator for every message sent in India on its platform, which breaks end-to-end encryption and the privacy principles underlying it.