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Security Concerns: Government’s access to WhatsApp

Court to look into govt. plea for access to WhatsApp chats -(Government’s access to WhatsApp)

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In News: (Government’s access to WhatsApp)

  • The Supreme Court has transferred to itself those petitions, seeking to make social media platforms more accountable in fighting crime and terror by allowing agencies access to encrypted data.
  • The Supreme Court will also hear cases seeking the linking of Aadhar with social media profiles of individuals.
  • It will be the first big legal battle on the right to privacy after the Supreme Court held in a landmark verdict in 2017 that privacy is a fundamental right.

Government's access to WhatsApp
Government’s access to WhatsApp

Debate on Privacy:

  • The counsel for social media organizations claimed that social media intermediaries were under no obligation to disclose details of private accounts as this would be a breach of privacy.
  • However, Justice Bose, stated the social intermediaries could not claim protection under the fundamental rights of 19(1)(a) and (g) right to free speech and right to practice any profession, as they are not Indian citizens.
  • However, the breach of privacy may still apply on the clients (social media account holders) and it is important to protect their rights.

Court’s observation:

  • While the court highlighted that de-encryption, if available easily, could defeat the fundamental right of privacy.
  • Further de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded.
  • At the same time the sovereignty of the state and the dignity and reputation of an individual are required to be protected.

Background: (Government’s access to WhatsApp)

  • Information Technology Intermediaries Guidelines (Amendment) Rules:
    • The Centre is in the process of amending the Intermediaries Guideline Rules, 2011, to make intermediaries more liable towards the content that is published and transmitted on their platforms.
    • The Centre told the Supreme Court that it would finalize a new set of regulations by January-end to check misuse of the internet, which has the potential to cause “unimaginable disruption to democratic polity”.

Affidavit filed by the government:

  • In a recent affidavit, the government sought to explain to the apex court the need to revise rules to regulate social media intermediaries.
  • The affidavit stated that with lower internet tariffs, availability of smart devices and last-mile connectivity, more and more people in India are becoming part of internet/social media platforms.
  • On one hand, technology has led to economic growth and societal development.
  • On the other hand, there has been an exponential rise in hate speech, fake news, public order, anti-national activities, defamatory postings and other unlawful activities using internet/social media platforms.

Question of Law:

  • The two significant questions of law that the court will look into are:
    1. Whether mandatory linking of Aadhaar to social media accounts violates an individual’s right to privacy.
    2. The balance between intermediary liability and free speech.

Arguments by the government:

  • Solicitor General of India said the government’s move was not a “ploy” and was triggered by a deep concern for the sovereignty of the nation and was stemmed out of national interest.
  • A terrorist cannot claim the immunity of privacy and it is important to find a balance between national interest, sovereignty and police investigation with individual privacy.
  • Section 69 of Information Technology Act, 2000, mandated the authorities to lawfully intercept any information transmitted through any computer resource if it the authorities are “satisfied that it is necessary or expedient.
  • Further Privacy is not an absolute right, as the Supreme Court gave it the status of a fundamental right under certain conditions.

The decryption debate:
  • Facebook’s counsel claimed that as per the rules, they would have to give the key only if they have the key, but if they themselves do not have the key, then the rules do not mandate the production of the key.
  • However, the government claimed that it does not want any technical assistance from the intermediary to crack encrypted social media traffic to fight crime. All it wants is for the online platforms to facilitate access.
  • The government is not asking for decryption at all, rather it needs metadata. Metadata is not encrypted, and so metadata that is relevant, and as required by the government, should be provided, which is a government’s right to know.”
  • WhatsApp, on the other hand, has submitted that it is impossible for it to trace the creator of the “questionable content” since it has end-to-end encryption.

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