After the Supreme Court has given the central government three months till January 15, 2020, to bring in guidelines regulating digital platforms and social media, a relatively free cyber India will now have to grapple with new restrictions. Expectedly, this has once again sparked the debate on the need of citizens’ safety from dangerous content versus the need to safeguard privacy and free speech of social media users.
On one hand, there are images of an unregulated cyber world, which has spawned exploitative child pornography, as also allowed terrorists like ‘Jihadi John’ of the ISIS to live stream his brutal beheadings. On the other hand, in a world where governments have a huge surveillance machinery, further regulation through linking social media accounts to government-monitored networks, will mean an end to individual privacy. Governments across the world use the dark end of the Internet that hosts terrorism and violence, and the prevalence of fake news to justify throttling of free internet.
INTERNATIONAL DEBATE
At one end of the spectrum is the People’s Republic of China where the powerful Cyberspace Administration of China (CAC) has created the great ‘Firewall of China’ through as many as 61 restrictive practices. Exactly a year ago, it scrubbed and erased nearly 1,000 accounts and news sites for “spreading politically harmful information, maliciously falsifying (Chinese Communist) party history, slandering heroes and defaming the nation’s image.”
On the other end is the US law and practice, which guarantee free speech to all platforms including social media based on the First Amendment to the US Constitution. It is part of the Bill of Rights, promulgated in 1791, and prevents the government from making laws that restrict practice of religion, or abridge the freedom of speech or the press.
The First Amendment is absolute, and the US Supreme Court has often decided extreme cases where the right to sell even pornography by vendors have been protected under this covenant. Protection under the First Amendment is protection from government regulation.Reasonable restrictions on their own platforms by tech companies have been allowed by a slew of laws and judgements of the US Supreme Court. However, the power of private snooping, and the recent case of Cambridge Analytica stealing data from Facebook profiles to manipulate election results, has now set up a clamour for regulation of gargantuan private platforms like Google and Facebook.
DRAFT REGULATION
Back home, the existing draft (Information Technology Intermediaries Guidelines (Amendment) Rules, 2018) moved last Christmas, sanctions a government invasion. It authorizes the government to direct internet companies to take down content deemed inappropriate. Enforcement agencies will also be required to trace and report within 72 hours the origin of ‘objectionable’ content and will have to disable that user’s access within 24 hours.
Some of the provisions will turn the internet companies into content censors as “intermediaries” are required to “proactively” purge their platforms of “unlawful” content or else potentially face criminal or civil liability.
KK Venugopal, attorney general on behalf of the government, told the Supreme Court that if the tech companies were not ready to stop abuse of the apps and services, they should not have come to India. This was in response to WhatsApp pointing out that the encryption technology, where messages could only be read by the sender and receiver, could not be cracked by the company as it too did not have the decryption keys.
The unique selling proposition (USP) of platforms like WhatsApp,Telegram and ‘Signal’ is the privacy it offers; and if the government has the decryption key, there is no business left. Finally, does the individual need any further curbs to his rights?As it is the government’s surveillance and powers to bring illegal acts to book are widespread. They flow from a variety of statutes. Defamation for instance is defined in Section 499 of Indian Penal Code (IPC), 1860.
Similarly, Section 153A of IPC provides arrest and three years of imprisonment for acts that breach harmony between different religious or which disturb public tranquility.Digital platforms cannot wash their hands off illegal acts committed on their platforms, but there has to be specific definition of what is illegal and how to remedy it.
Currently, the Ministry of Electronics and Information Technology has catch-all nets like the following in its affidavit to the Supreme Court: "As Internet has emerged as a potent tool to cause unimaginable disruption… it was felt that the extant rules be revised for effective regulation of intermediaries, keeping in view the ever-growing threats to individual rights and nation’s integrity, sovereignty and security."
Any content that the government does not agree with can be denounced as endangering the nation’s integrity, security and sovereignty, and banned out of hand. The exception of ‘interference’ will unfortunately become the rule.
1,000 accounts and news sites were scrubbed and erased in China for spreading politically harmful information, maliciously falsifying (Chinese Communist) party history, slandering heroes