Making of a digital surveillance State

On December 24, 2018, the Ministry of Electronics and Information Technology invited comments from stakeholders on the draft “Information Technology Intermediary Guidelines (Amendment) Rules, 2018.” These guidelines say that the State can track your Facebook, WhatsApp or any other social media platform to protect national security.

This is an alarming move, especially with regard to an individual’s right to privacy as well as freedom of speech and expression. Services such as end-to-end encryption may no longer be available to users of social media platforms that have more than 50 lakh users or are notified by the government.

The reason given for bringing out such rules, which would replace the Intermediary Rules of 2011, is that the government wants to prevent circulation of fake news or any unlawful content on social media. Incidents such as declaring hartal through WhatsApp messages, without official sanction, led to the loss of life and public property recently. Videos that showcase opinions against public morality and order are other reasons for formulation of such rules. But, this also means there is no more privacy in receiving or forwarding messages that criticise politicians or may be treated as threat to public order.

To understand what these guidelines mean, one must understand exactly who these intermediaries are. The Information Technology Act’s Section 2(1)(w) defines intermediaries to include telecom service providers, internet service providers, web-hosting service providers. Further search engines, online payment sites, online auction sites, online marketplaces and cybercafes are also included in the definition of intermediary.

According to Rule 7 of the draft rules, an intermediary includes not only entities that come under the definition provided by the IT Act, 2000, but is further qualified by the number of users at over 50 lakh. Thus, it is the popular social media platforms that are on the State’s radar. The definition further empowers the State to notify social media platforms, with fewer users, to be bound by these rules. This would include small-scale internet service providers.

The draft rules would enable the government to issue an order to intermediaries to disclose information related to any post or data falling within the ambit of these rules. It mandates intermediaries to disclose any information that the government seeks within 72 hours of its request. It also imposes the liability, on the bound social media platforms, to identify the person responsible for creation of any post that has the capability to provide wrong information or conduct any illegal activities. This authority, if misused by the government, can enable mass surveillance of the digital space, thereby negating the right to privacy as recognised in the J Puttuswamy case.

These rules by the government amount to circumvention of the decision in the Shreya Singhal case. The Supreme Court had struck down Section 66A of the IT Act, 2000, for being drafted in a vague manner and being arbitrary in its application. The section gave the government powers to arrest individuals for generation of messages or forwards which have the potential to create disharmony among sections of society and were ill-intentioned in character. It led to arrests being made for criticism of political leaders or government policies. The Supreme Court realised the scope for misuse of this provision and struck it down as being unconstitutional.

The Shreya Singhal case also addressed the exemption of liability of intermediaries under Section 79 of IT Act, 2000, provided they take down unlawful content from their websites or social media platforms as soon they acquire knowledge of such illegal activity. It is in this context that the draft rules are under consideration.

These draft rules open up possibilities for State surveillance with the mandatorily imposed assistance that social media platforms have to provide. They infringe on the right to privacy by making all communications, opinion, criticisms accessible to the State. If an opinion expresses dissent against a policy, it may be viewed as being unlawful or a threat to national security.

The rules thereby could be used to block opinions and posts on any social, scientific, political or economic issue. Clearly, this would amount to a violation of citizens’ freedom of speech and expression. The freedom of speech and expression not only includes one’s right to speak up his or her mind but also to be informed about alternative views.

As the Supreme Court observed in the Union of India vs Association for Democratic Reforms, freedom of speech and expression includes the right to impart and receive information, which includes freedom to hold opinions”. Therefore, these draft rules have to be interpreted in an objective manner which does not curb the freedom of speech and expression in a liberal democracy.

(The writers are Assistant Professors with the School of Law, Christ Deemed to be University, Bengaluru)