The Supreme Court transferred to itself on Tuesday a batch of petitions pending in various high courts seeking to link social media accounts with Aadhaar and develop a mechanism to trace originators of fake news, even as it gave three months to the government to frame rules for social media companies so that they are bound to share information with investigation agencies probing a criminal act.
On Monday, the Centre said it would finalise rules for intermediaries by January 2020.
The order by a bench of justices Deepak Gupta and Aniruddha Bose came on a transfer petition filed by Facebook and WhatsApp (owned by Facebook). The two contended that the linking of social media accounts with Aadhaar would violate the privacy judgement delivered by a nine-judge bench in 2017. The three high courts where the petitions are pending are Madhya Pradesh, Maharashtra and Tamil Nadu.
The Centre contested this argument and said terrorists and criminals cannot claim right to privacy. A balance has to be struck between right to privacy and national interest, the government added, and said intermediaries cannot allow their platforms to be used for terror crimes.
Even Tamil Nadu government, which had earlier opposed transfer of the case pending before the state high court (as it had already held 15 hearings in the matter) before agreeing to it on Tuesday, supported the Centre and said social media firms should not operate in India if they don’t have the ability to decrypt the encrypted information.
{{/usCountry}}Even Tamil Nadu government, which had earlier opposed transfer of the case pending before the state high court (as it had already held 15 hearings in the matter) before agreeing to it on Tuesday, supported the Centre and said social media firms should not operate in India if they don’t have the ability to decrypt the encrypted information.
{{/usCountry}}Social media and digital companies that operate platforms contend that they are intermediaries, and should not be held responsible or asked to regulate content. The court after hearing the arguments in brief posted the matter for further hearing to the third week of January 2020.
“The intermediaries can’t come into the country, establish their system which is subject to decryption and then say it can’t be done, that they cannot facilitate decryption. This is an offence under our law which is a very serious one. Otherwise they should not come to the country,” Attorney General KK Venugopal told the bench on behalf of Tamil Nadu government.
Venugopal read out from the Information Technology Act, 2000 and the subsequent rules amended in 2009 that mandated intermediaries such as Whatsapp, Facebook etc to extend all cooperation to the authorities. “There are elaborate rules provided in the IT Act as amended by the 2009 rules that provide for decryption of data. These provisions have not been challenged so far. So for these intermediaries to say it is beyond the powers of the government is something wholly unacceptable,” country’s top law officer said.
But justice Gupta seemed to differ from the AG’s interpretation of the law. He said though section 69 mandated that the intermediaries extend all facilities and technical assistance to the government, they were not required to decrypt the information.
“As far as decryption of the data is concerned, it is for the Government to create its own independent mechanism to deal with the issue,” the judge said.
“...You (government) can also have some agency to do encryption,” justice Gupta said. Justice Bose added it was for the government to justify its argument that the intermediaries were bound to decrypt the information.
“Let’s say it is like a locked door. You are daring them to open it. They (intermediaries) are saying open it yourself. The question is whether they (intermediaries) are obligated to give the key to you,” Justice Bose said.