On 20 August this year, the Supreme Court agreed to hear a petition from Facebook for transfer of cases seeking the linking of Aadhaar number with the profile of social media users. These cases have been pending before Madras, Bombay and Madhya Pradesh high courts.
The apex court, while admitting Facebook’s plea, has issued notices to the Union government, Google, Twitter and YouTube among others.
While entertaining the petition for transfer, the Supreme Court allowed the hearing in Madras High Court to continue on the linkage of social media user profiles with Aadhaar. It, however, said the final order will not be passed.
The Madras High Court is faced with a curious case at hand since two petitioners — Clement Rubin and Janani Krishnamurthy — filed separate public interest litigations (PILs) pleading that Aadhaar numbers be linked with social media accounts.
The two have also sought another option: making it mandatory for a user to provide government-authorised identity proof for authentication while obtaining a user account.
Rubin was a member of the Jallikattu Monitoring Committee to ensure that bulls were not ill-treated during events related to the sport.
In view of this, he was subject to abuses on social media besides threats. Rubin approached the police but abuses and threats continued.
Vexed by police inaction, the activist petitioned the Madras High Court, which ordered the police to arrest the people concerned. But when the police expressed their inability, the case was dismissed.
Unwilling to give up, Rubin then petitioned the High Court again to link Aadhaar numbers with social media accounts. Though a two-judge bench is hearing his petition, the judges have pointed out at the Supreme Court ruling last year that allows the use of Aadhaar numbers only for social welfare schemes.
Krishnamurthy filed a writ of mandamus (asking the court to order the government) to link Aadhaar number with social media accounts as she was trolled on Facebook. Her petition was tagged along with that of Rubin.
Krishnamurthy, like Rubin, is an animal rights activist and works for the Kodaikanal Society for the Protection and Care of Animals. She and Rubin have been targets of abuses for over three years that forced them to approach the court for remedy.
The suspicion is that it could be a single person who is trolling them using different user accounts. Police have not been helpful and say they could act only in cases of child pornography and terrorism.
On its own, the two-judge bench has expanded the scope of the petitions to include issues such as curbing cybercrime and intermediary liability protections or safe harbour. The case has now come to be known as the “WhatsApp traceability” case.
Safe harbour mandates social media platforms such as WhatsApp, YouTube, and others to conduct basic due diligence in informing their users about terms and conditions. However, these platforms merely act as a conduit for transfer of messages between users and they are not liable for a user misusing the platform.
With the High Court widening the scope of the petitions, a lot of interest has been generated, particularly with rights group, Facebook, Twitter, Google and Internet Freedom Foundation arguing against any traceability.
While hearing the petitions, the Madras High Court has obtained the views of Dr V Kamakoti, Professor, Computer Science Department, IIT Madras. He is a member of the National Security Advisory Board that is part of the Prime Minister’s Office (PMO).
Dr Kamakoti got involved in this case after the then Tamil Nadu chief secretary Girija Vaidyanathan convened a meeting of social media companies and law enforcing agencies on 25 April on the orders of the High Court.
Justices S Manikumar and Subramonium Prasad, who comprise the High Court bench, asked Dr Kamakoti to make a formal submission of his views. They were submitted on 31 July. He has now been roped in by the court to assist the bench on technical matters.
Dr Kamakoti’s view is that traceability is technically possible. He has suggested that the originator's phone number or ID be made visible to the recipients through a tag. While WhatsApp has been saying that it is not possible since the messages on its platform are encrypted, Dr Kamakoti has said that the end-to-end encryption is a latest addition only.
Those who support the IIT professor’s view wonder if the privacy of a person was to be affected by the traceability, then how are messages allowed to be forwarded to other users.
The Tamil Nadu government has argued that the High Court should decide between what is business decision to encrypt messages and law. It has told the court that end-to-end encryption is not necessary for WhatsApp as a business.
The state government has made it clear that it does not favour Aadhaar number to be linked to social media accounts for authentication. At the same time, it wants a "semblance of traceability that will help in investigating crimes".
Tamil Nadu counsels have told the Supreme Court and Madras High Court that until two years ago, WhatsApp didn’t have end-to-end encryption. They have argued that sometimes information on WhatsApp tends to incite social unrest.
Tamil Nadu government is pointing out at the damage caused by viral WhatsApp and Facebook messages at Ponnamaravathi village in Pudukottai district on 19 April this year. The messages contained derogatory remarks against a particular community and its women, leading to violence.
But critics of Dr Kamakoti’s suggestion argue that phone number identification has little value and it can be anonymously acquired from services like Google Voice, Viber, and Skype. Traceability may not be a deterrent, they say.
However, some like IIT Bombay Professor Manoj Prabhakaran, who has made submissions before the High Court on behalf of Internet Freedom Foundation, say that viral messages on social media can be made public for people to take note of them. Spam filters can be created to identify unreliable messages and users can be discouraged from sharing them.
Education and media literacy to make people aware of the effects of the spread of fake news can go a long way, they argue.
During the hearings, the Information Technology Department of Tamil Nadu government submitted a report on the data requests made to social media companies and their responses. Data shows that fairly a large number of requests have not been met.
Requests for traceability seem justified in the wake of how social media has been misused particularly in Tamil Nadu. Various protests and agitations have been triggered through social media and a lot of fake news has been circulated.
Social media is being misused in Tamil Nadu and Kerala by anti-national elements to foment trouble and engineer unrest. For example, some of the people who left Kerala to join terror group ISIS used the social media platform Telegram to communicate.
This has forced those who support traceability of social media messages calling for measures to protect society. Privacy cannot be an issue at the cost of society or the nation, they argue.
India and especially Tamil Nadu will hear more on the “WhatsApp Traceability” issue as the High Court will continue hearing petitions of Rubin and Krishnamurthy.
M.R. Subramani is Executive Editor, Swarajya. He tweets @mrsubramani
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