By Aditi Agrawal and Nikhil Pahwa

“I was like how can something like this happen, and people can get away with it?”

Antony Clement Rubin was distraught.

An animal activist since 2000, in January 2017, he had become a part of the Jallikattu Monitoring Committee. At that time, one particular page on social media had posted derogatory posts about him, and as the page spread, it included threats, stating that he “should take care.”

So he did what anyone facing cyberbullying should do. He went to the police.

“I went ahead to the police commissioner’s office and filed a complaint in the concerned department. So, they said okay, we’ll get back to you and they never got back.”

But the posts on the page kept coming.

“So again I went and gave a complaint, [and] again they were not responding.”

He got one slice of insight, though.

“They told me one thing, that, only [on issues of] child pornography or terrorism, will Facebook respond,” and that “there are memes, abusive posts about [the Commissioner of Police]”, and the police couldn’t do anything about it for over two years.

“So I said that that’s pretty ridiculous and I went to the court.”

It didn’t end there, though.

He asked the Madras High Court to insist that the police find the person who was posting abusive content against him on the page. The Court directed the police, to get him, but “what the police said was that we can’t do anything”. And they closed the case.

Rubin decided that, on a long-term basis, something has to be done. “The perpetrator, anyone, can post anything abusive, and then once it is deleted, it is over, no one can do anything. So that’s not cool. There is someone who has been abused. There is a victim in this case. What is the victim going to achieve? So this is not justice.”

Rubin’s solution? Aadhaar.

“So I said, okay, let’s ask the government, approach the court, asking them to link Aadhaar. That way, not only Aadhaar, in my case Aadhaar was more of an eye candy, and any other government-related ID card to be attached to the social media utility services, even Google, Paytm, etc. So that there is traceability, so the originator can be traced. So then they will be more responsible in posting content online. So that’s how the case started. This is one of my prayers. The second is to form a committee, to handle these [issues] — to form a task force to deal with these situations.”

Where this case is now

This case had originally been filed in 2018 as a Public Interest Litigation by Rubin, with S. V. Pravin Rathinam as his lawyer, (writ petition no. 20774/2018) and Janani Krishnamurthy (Writ Petition. 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”.

The case is being heard by a division bench of Justices S. Manikumar and Subramonium Prasad. In the last hearing on June 27, Justice Manikumar reiterated the Supreme Court ruling on Aadhaar, and told the petitioners that, “Aadhaar is a government accord used only for social welfare schemes. You cannot have the government linking it with social media”.

Traceability is still on the table, though. The division bench had also expanded the scope of the PILs to include issues including curbing cybercrime, and intermediary liability. Intermediary Liability protections, or safe harbour, allow platforms to operate at scale, as long as they do basic due diligence in informing their users about terms and conditions, and act merely as a conduit for transfer of messages or commerce between one user and another. This has allowed messaging apps, social media platforms, user generated video sites, Reddit, Quora, Wikipedia, GitHub, and even ISPs to operate at scale, because they don’t have the liability for user behavior. During the last hearing, Justice Manikumar had said that, “Some time limit should be fixed” by when the Ministry of Electronics and Information Technology notifies its Amendments to the IT Rules which enforce traceability on intermediaries.

That, we’re told, is behind the Ministry’s push to have the rules ready for the minister to sign off and notify, by the end of July 2019.

Antony Clement Rubin on anonymity, dissidence, end-to-end encryption etc

(NB: excerpted from our conversation with Rubin)

On Facebook’s language challenges: “When you post something in Hindi or a local language in India or any other language, they don’t understand that. In fact, I can abuse anyone in local language, and if I report that particular post, they will say that it doesn’t violate our community standards. And the post will continue to remain, and the person who is posting it goes scot-free.”

Delays in response: The task force will determine “the timeline of finding the perpetrator. So that way, you know, if someone reports something, if you will take a year to [get a response] from Facebook …” “The court also observed that, Ponparappi — a very small, remote village in Tamil Nadu — one guy from a lower caste started posting something on WhatsApp, a very derogatory post. This circulated in [on] WhatsApp, like wildfire, and [there was] a huge law and order situation in that area. The police found out through their own networks who sent the forwards, who was the originator. They were able to track it [him] down. But again, if it is still anonymous, you know, the perpetrator would have still gone scot-free.”

On negotiating between traceability versus and anonymity giving voice to vulnerable communities (like dissidents, the LGBT community, the #MeToo campaign etc): “You can’t dismiss a number of people who are not being affected. For example, if you are considering [those being bullied] as a small number, and because of traceability a fewer people getting affected [than vulnerable communities using platforms to speak up], I don’t agree on that because the volume of people who voice their concerns is quite huge. It is just that it is not properly documented. Like even police don’t want to record a complaint on that. You know, the whole point of volume of people being affected by cyberbullying, cybercrime abuse, cyber abuse and so many other things.” “[On] both sides there are equally good numbers, probably more numbers which have not yet come out. Definitely, I am in support of the whole LGBT community. But again, my point here is that when there is a victim, and when the victim is seeking redressal, we owe her.”

Is it necessary to put traceability on every single individual on social media and is it a proportionate response? “This access to data is only obtained once you raise an official complaint or get a court order. It’s not like I am going to be looking for data that is going to be open source. So this is going to be, like, for example, I am a victim of something, I got to the police, file a related complaint and approach the court to get the details. I think if I am right, under IT Act or Evidence Act, I think these guys are supposed to give anyone data requested from an agency. They are supposed to give the data because when there is a complaint is raised. So even over here, Facebook could technically give an IP, but they were refusing. I definitely respect privacy, but what happens if I am a victim of cyber bullying. What happens to me in that case?”

On end-to-end encryption, and Whatsapp and traceability: “So again, the aspect of end-to-end encryption, as much as it helps law enforcement agencies, as Kapil Sibal said, the judges communication, the legal communication, that brings up the question of national security. You know terrorists can also probably use it. Isn’t it a national concern then? So terrorists communicating using the same platform as army men, our uniformed services are not able to track these guys, isn’t that making the country vulnerable in that case? Am I right or wrong? Because that’s the flip side then.”

“They did say that [that WhatsApp doesn’t have the technology to trace the originator], but I am sure you are aware of the bug that was recently found in WhatsApp that people’s data was open. So, I am sure there’s a way they haven’t found yet. Probably now that Prof. Kamakoti [from IIT Madras] has been roped in to advise the Court rather, so that might help them.” “So the observation made by WhatsApp, I think Kapil Sabil’s argument is that we can’t do it. You know, encryption is the whole deal. So tomorrow if the government says you will be banned if you don’t decrypt, or at least, give the genesis of the forward basically, they will definitely fall in [line]. Whatever I have heard from experts from IIT Madras, you know people who are very tech savvy, I am not very tech savvy, they say that it is possible. It is just a structural difference to embed the number in WhatsApp.”

On his next steps, given that the Madras High Court has categorically refused to link Aadhaar to social media accounts: “Now the court has at least asked whatever I have asked, asking that the perpetrator, the originator of the whole crime should be caught. I am not saying that give the entire data to the government so that the government can have access. For example, what ethnic group is there in which area so that they can promote their political agenda — I am not asking for that. I am asking when there is a crime happening, where there is this platform that is part of the whole crime, why not they try to help the department, help the victim in a way so they get redressal, so that it doesn’t happen. This particular page is abusing people constantly and it’s still there because it doesn’t violate Facebook community standards.”

Read more about the case here and here.