The Supreme Court has decided to transfer to itself from several High Courts all the cases concerning the decryption of WhatsApp messages and the tracing of their original senders, along with the cases demanding the linkage of Aadhaar and social media profiles. The court acted on the plea of Facebook, the parent company of WhatsApp, that different High Courts could have contrarian views and therefore the Supreme Court should hear the cases. Facebook also argued that only the apex court could exercise jurisdiction with credibility on issues that may have a global impact.
Meanwhile, the government has notified the Supreme Court that it plans to finalise by January 2020 laws regulating social media. These laws are expected to include provisions that would require intermediaries, i.e., the entities that store or transmit data on behalf of other persons, to deploy automated tools and make their platforms subject to observation of various probe agencies to ensure that any unlawful content can be identified and removed, and the original source of such content duly recognised. Privacy advocates believe that these steps would be the harbinger of a surveillance state. Nonetheless, the encryption features and the right to privacy are not intended to be shields for unlawful agents ranging from terrorists and drug peddlers to the propagators of fake news, slander and child pornography to enable them to act with impunity in the digital space. It is worth remembering that more than half of India’s electorate received some variant of misinformation via social media outlets in the month leading to the 2019 general election. There have been incidents of mob violence resulting from the spread on WhatsApp of digital disinformation on issues such as cattle smuggling and child abduction. Facebook still opposes the government’s demands with the view that the compliance requires it to make significant and expensive alteration of its product from a technology standpoint. It also fears that the decryption of WhatsApp’s secure messaging service would make it a less trusted source of communication and argues that the steps compromise on the safety and privacy of users. This could dent its bottom line, Facebook argues. The linkage of Aadhaar to social media profiles is expected to be challenged, especially because the current Aadhaar Act only allows unique personal identification for schemes and subsidies funded out of the Consolidated Fund of India. Along with this, the Supreme Court in 2018 had allowed the mandatory usage of Aadhar only for verifying PAN numbers and Income Tax returns. The government can overcome these legal hiccups with minor amendments. Nevertheless, it should not be overlooked that all the popular social media platforms including Facebook, WhatsApp, Instagram, Twitter, and Tik Tok are foreign-owned. These technology giants with an international market spread cannot be expected to prioritise India’s security or privacy concerns.
The government has aggressively tried to make Aadhaar mandatory wherever it is possible. But the linkage of hundreds of millions of the unique 12-digit numbers to social media accounts serves no useful purpose. Attempting to do that in the absence of operational data protection and localisation laws would be counterproductive, and will only create newer avenues for data security breaches. The government should not shy away from its responsibilities and should bring in the proposed intermediary guidelines. Meanwhile, any thoughts on linking these intermediary accounts to Aadhaar or any other government ID should be discarded. This is to ensure that the mass communication and social media apps operating within India facilitate information flow, without compromising civil and privacy rights or national security.