On June 27, the Madras High Court approved Internet Freedom Foundation’s (IFF) plea to act as an intervener in the ongoing case that is now examining ways in which cybercrime might be curbed with the assistance of social media companies. The hearing lasted for more than an hour in Court No. 3, and saw representation from the government of Tamil Nadu, TRAI, Facebook, WhatsApp, Twitter, and Google. The next hearing is on July 24, 2019. Kapil Sibal and Arvind Datar are expected to appear for WhatsApp.

This case had originally been filed in 2018 as a PIL by Antony Clement Rubin (writ petition no. 20774/2018) and Janani Krishnamurthy (W.P. No. 20214/2018) that sought a writ mandamus (special order by court) to ‘declare the linking of Aadhaar or any one of the Government authorized identity proof as mandatory for the purpose of authentication while obtaining any email or user account’.

In an earlier hearing, the division bench constituting Justices S. Manikumar and Subramonium Prasad had expanded the scope of the PILs to include issues including curbing cybercrime and intermediary liability within the ambit of the legal proceedings.

IFF becomes an intervener

In its petition dated June 12, 2019, IFF had requested to be impleaded in the W.P. No. 20774 as an intervener as the issues discussed in the case ‘require expertise in areas of technology, policy, law and regulation which range from surveillance, intermediary liability, privacy and the freedom of speech and expression of individuals’. The objectives of IFF align with this need. As an intervener, IFF seeks to ‘submit further material … which may aid it [the court] in reaching its decision’. IFF argued in its petition that less restrictive measures should be explored before ‘requiring an authentication measure that is likely to cause more harm than good’.

During the proceedings, IFF was represented by Suhrith Parthasarathy. Parthasarathy described IFF as a ‘charitable organisation’ that focuses on digital rights of the people on being asked by Justice Manikumar. The counsel for Twitter, Senior Advocate Sajan Poovayya, opined on IFF”s role and told the court, ‘We support them in free speech, etc. Indian Media [Internet Freedom] Foundation has brought something to the table.’

In response to the Madras High Court’s approval of IFF’s petition to act as an intervener, Apar Gupta, IFF’s executive director, said, ‘Given the pervasive use of social media in our lives and the existing told to harvest and utilise data for marketing purposes, not to mention, individualised advertisements, the entire gathering of personal data itself has been a constant cause for concern in the last few years. Adding Aadhaar to this cocktail for the purpose of verification of identity would arguably cause further harm.’

The IFF petition also included a reference to its earlier plea to the Supreme Court that prayed for ‘additional safeguards in its challenge to the constitutionality of Section 69 of the IT Act’. Section 69 is the one that enables the government and legal enforcement agencies ‘to issue directions for interception or monitoring or decryption of any information through any computer resource’ for security reasons. Refusal by the subscriber or intermediary to assist the government agencies is a punishable offence.

Court on Aadhaar

Right at the outset of the hearing on June 27, Justice Manikumar reiterated the Supreme Court order and told the petitioners, ‘Aadhaar is a government record used only for social welfare schemes. You cannot have the government linking it with social media.’ By saying this, he reiterated the Supreme Court’s September 2018 decision to strike down Section 57 of the Aadhaar Act.

The petitioner’s lawyer, B. Karthikeyan, told MediaNama after the hearing that the PIL that the petitioners are seeking ‘effective monitoring to break anonymity’. In a phone conversation, Antony Clement Rubin had told MediaNama that in the absence of any verification process, ‘no one is held responsible’ for abusive and derogatory posts and remarks made on social media. This is why, he had petitioned the court to mandate linking Aadhaar, or any other government ID, with all social media and/or user accounts. He had further called upon the court to ‘appoint an special and skilled task force to monitor into the rising instances of all sorts of cyber defamations and cyber stalking [sic]’.

TRAI: A regulator or a licensor?

Peer Mohamed, the advocate for TRAI, petitioned the court to release TRAI from the matter as a respondent. He argued that as a licensing body, TRAI had been unnecessarily impleaded in the proceedings. Mohamed later told MediaNama that it is only on matters of licence that TRAI comes in; social media does not need licences and thus TRAI has no role to play in the proceedings.

When Mohamed repeated TRAI’s plea to be released from the matter later on in the hearing, Justice Prasad asked, ‘What is the urgency to get out of this matter?’ There was no reply. The judges ultimately did not release TRAI. Readers should note that TRAI is not a licensor, but a regulator.

NB: Justice Manikumar checked with the advocates of social media if the court could take it for granted that all of them were co-consulting [on this case]. Senior Advocate N. L. Rajah, representing WhatsApp, had nodded his assent on behalf of counsels from Twitter, Facebook, and Google.  

Tamil Nadu government’s late submission

After the hearing on June 6, Madras High Court had directed the government to ‘furnish a report as the information, sought for, from Social Media Intermediaries, the number of requests made to the Social Media intermediaries, nature of requests, and the response of the social media intermediaries’. The Tamil Nadu made this submission only a day before the last hearing, that is, on June 26.

Facebook’s counsel, Pavit Singh Katoch, told the court, ‘We have got 1600 requests [in the Tamil Nadu government’s report] to review. Therefore, it will take us some time to review.’ Senior Advocate P. S. Raman, who was present for the first half of the hearing on behalf of Google, told the court, ‘They [the Tamil Nadu government] have given us numbers. We need time to figure out who these people are … and to make sense of these numbers.’

While initially reluctant to grant them a hearing date in the last week of July, the division bench eventually scheduled the next hearing for July 24, 2019. The social media companies have to reply to the Tamil Nadu government’s report by July 17, 2019.

Understanding the technology at play

Justice Manikumar repeatedly asked Senior Advocate N. L. Rajah, counsel for WhatsApp, about Senior Advocate Arvind Datar, who is representing WhatsApp for W.P. No. 20214. Datar had argued for WhatsApp along with Senior Advocate Kapil Sibal (representing WhatsApp for W.P. No. 20774) and said that it was impossible to track the sender of a WhatsApp message, including the original sender of a forwarded message. Datar and Sibal had previously argued on behalf of Facebook and WhatsApp, respectively, during Karmanya Singh Sareen v. Union of India (pending).

While seeking an adjournment, Rajah told the court, ‘There are certain portions of the judgement … which only he [Datar] can argue’. Justice Manikumar ostensibly wanted Datar to explain how WhatsApp’s underlying encrypting and potentially decrypting technologies worked. Rajah argued, ‘It is not about whether it [decryption] can be done. There is also the question of legality involved.’

When Justice Manikumar said, ‘We want to hear from Mr Datar before we go on’, Rajah replied, ‘That we could have done if we had received this information [report from the Tamil Nadu government].’

The division bench also made several references to Dr V. Kamakoti, professor of computer science and engineering at IIT Madras. At the behest of the court order on April 25, the Chief Secretary of the Tamil Nadu government, Dr Girija Vaidyanathan, had convened a meeting between social media companies and law enforcement agencies on May 22. At this meeting, Dr Kamakoti, who is also a member of the National Security Advisory Board under the PMO, had suggested that WhatsApp should consider including the phone number of the originator of a message whenever a message is being forwarded, according to status report of the meeting submitted by Facebook. Keeping this in mind, Justice Manikumar told WhatsApp to take the professor’s assistance. He further said, ‘You are assisted by technologists, we are not’, to which Rajah immediately quipped, ‘We are assisted by law’.

Rajah again argued, ‘We are protecting privacy. The moment we decrypt it [privacy is compromised].’ TO this, Justice Manikumar said, ‘If you have problem decrypting, talk to the professor.’

Twitter inputs

Poovayya told the court that when it comes to the IT Act, ‘When intermediaries are not in compliance, they must fall in line. If they are compliant, the law may need to change,’ Poovayya argued. He further talked about the need to implement a ‘holistic solution’ to the problem of intermediaries given that an ISP such as Airtel, and a social media website such as Twitter, under the current law, are both intermediaries. However, when dealing with law enforcement agencies, their roles and responses to requests for information differ greatly.

Intermediary Liability

Justice Prasad pointed out that the law enforcement agencies currently don’t have a proper regime when it comes to requisitioning information from intermediaries. ‘In such a case, can the High Court intervene, and regulate till the law is put in place?’ he mused. To this, Rajah argued, ‘[Law enforcement agencies] can petition through proper channels. It is not a technological problem.’

Twitter’s counsel Poovayya told the court that the Intermediaries Guidelines (Amendment) Rules, 2018 had been circulated in December 2018. ‘Intermediaries gave their inputs, citizens also gave inputs. They should notify it,’ He told the court. Justice Manikumar agreed with him and said, ‘Some time limit should be fixed.’ Neither Venkataswamy Babu, the lawyer for Union of India, Ministry of Communications, Ministry of Electronics and IT, and Ministry of Law and Justice, not E. Manoharan, the government of Tamil Nadu’s lawyer, had no response to that. In fact, the court order dated June 6 directed Babu and Mohamed ‘to ascertain from the Central Government as to the progress made in the deliberations on Information Technology (Intermediaries Guidelines (Amendment) Rules, 2018)’

The question remains what should be done till these amendments are passed in the Parliament. ‘Either the intermediaries should come forward with something,’ Justice Manikumar remarked.

On the point of law enforcement agencies seeking information from intermediaries, Poovayya drew everybody’s attention to a format that the Supreme Court had allegedly approved. He said that during one of the meetings of the social media companies with law enforcement agencies, it emerged that the law enforcement agencies weren’t following the formice. He cited page 21, comment (c), of the record of the discussion. ‘If it [the request] is not in a format that intermediaries understand, [the fault is law enforcement agency’s],’ he argued.

At this, Katoch, Facebook’s counsel, pointed out that the format had not been approved by the Supreme Court. Confusion reigned for a few seconds as Justice Manikumar smirked. Justice Prasad, however, dismissed the lack of approval by SC. ‘If SC doesn’t approve it, how does it matter if the Ministry of Home Affairs wants it in a particular format?’

‘We won’t lower the wall’

WhatsApp repeatedly used the metaphor of the wall to argue that if they start decrypting content for law enforcement agencies, it would ‘lower the wall’ of privacy and data protection that WhatsApp promises to its users, and set a dangerous precedent for other agencies to follow. Justice Prasad told them, ‘We are not asking you to lower the wall. It is only that high for WhatsApp. For others, it is not that high.’

Justice Prasad focused the debate on the question of traceability. ‘With WhatsApp, till how far do you backtrack? The question is — is that possible?’ Rajah responded that the police and defence do it, but if WhatsApp does it, it would make the information channels porous. To this Justice Prasad replied, ‘You can differentiate between law enforcement agency of a country and a private individual.’

The continuing metaphor of the wall got on the nerves of a member in the court, prompting them to whisper to their colleague, ‘Stop with the wall. This is NOT Game of Thrones.’