You are reading it here first: Seeking to get the Facebook transfer petition dismissed, Vijay Narayan, the Advocate General of the State of Tamil Nadu which is listed as respondents 6-7 in the Facebook transfer petition, filed the State’s response with the Supreme Court today. He also filed an application with the Supreme Court asking it to let the Madras High Court hear the WhatsApp traceability case, and pass any required order.

MediaNama readers might recall that at the last Supreme Court hearing on the transfer petition, the Court had said that the Madras HC could not pass as effective order because of which, in the subsequent hearing at the Madras HC, the matter was adjourned.

The State of Tamil Nadu submitted that the transfer petition is based on “frivolous” grounds, “suppress[es] material facts and documents”, “has been filed in a clearly malafide manner”, and is “a bid to scuttle the proceedings before the [Madras] High Court”.

The transfer petition will be heard in the Supreme Court tomorrow, September 13.

Tamil Nadu government’s arguments

1. Privacy is a ‘red herring’ by Facebook: Calling Facebook’s argument about user privacy a “red herring”, the TN government cited the Cambridge Analytica scandal and Facebook’s business model which is “the use and commercialisation of users [sic] data” which is then “shared with businesses and political parties for targeted advertising”.

2. Exception to the right to privacy in Puttaswamy judgement: Citing the maintenance of law and order exception under the Puttaswamy judgement, the TN government wrote that “the concept of reasonable restrictions/limitations to fundamental rights is a concept that flows from the Constitution itself”.

3. Madras High Court case has dismissed Aadhaar-social media linkage: The basis for filing the transfer petition is that all four petitions pending before High Courts of Madras, Bombay and Jabalpur seek linking of Aadhaar to social media accounts. Calling it an “absolute misrepresentation before this [Supreme] Court”, they said that the Madras High Court had “effectively abandoned the prayer with respect to linking of social media accounts with Aadhaar”. They cited the High Court’s August 28, 2018 order in which the division bench had expanded the scope of the writ petition.

“14. On the facts and circumstances of this case, and in exercise of powers under Article 226 of the Constitution of India, we are of the prima facie view that the Information Technology Act, 2000 Act and rules made thereunder, have to be implemented, in letter and spirit, and therefore, decide to enlarge the scope of the writ petition.”

They also cited the High Court’s August 21, 2019 order:

(14) Though prayers in WP.Nos.20774 and 20214 of 2018 are for a direction to the respondents therein to direct linking of Aadhar or any other identity proof, as mandatory with the social media, after going through the contents of the counter affidavit, filed by the Additional Commissioner of Police, Central Crime Branch, Chennai and the need to have effective implementation of the provisions of the Information Technology Act, 2000 and the rules framed thereunder, towards effective and proper investigation, we expanded the scope of the writ petitions, and decided not to address the prayers as such in the writ petitions, more so, taking note of the decision of the Hon’ble Supreme Court in K.S.Puttaswamy Vs. Union of India reported in (2019) 1 SCC 1.

(18) While clarifying that the scope of the instant writ petitions has been expanded for effective implementation of the provisions of Information Technology Act, 2000 and the rules made thereunder, insofar as prevention and detection of crimes and investigation and not as prayed for in WP Nos.20774 and 20214 of 2018, we deem it fit to adjourn the hearing of the writ petitions. [All emphases by the Tamil Nadu government]

4. Madras High Court focusing on crime prevention and traceability: The State of Tamil Nadu has written that the question before the HC is now about “the prevention and detection of crimes”, “traceability of originator information to counter fake news and mob violence in the State”, and “sharing details with law enforcement agencies” crime detection and prevention. It wrote that the HC is now considering if large social media companies comply with the IT Act, 2000.

5. Arguments in Madras HC have matured: The Madras HC impleaded other Big Tech companies, and interveners “including Professor V. Kamakoti from IIT Chennai as well as the Internet Freedom Foundation”. The TN government cited the court-ordered May 22 meeting between law enforcement agencies and social media companies as well.

6. Proceedings in Bombay and Jabalpur High Courts at nascent stage: The submission said that even notices have not been issued in the writ petitions before the other High Courts. Readers should note that notices have been issued to respondents, and received, in the case before the Bombay High Court, which was filed in October 2018. In the case before Jabalpur High Court, filed in July 2019, no notices have been issued.

7. Transfer all cases to Madras HC, or stay proceedings in other courts: Tamil Nadu has suggested to the SC to transfer all these cases to the Madras HC, where the case has already matured, or stay the proceedings before Bombay and Jabalpur High Courts “pending outcome” before the Madras HC.

8. Petition challenging Aadhaar Ordinance validity has no effect on the transfer petition: A writ petition, that challenged the constitutionality of the Aadhaar and other Laws (Amendment) Ordinance, 2019, has no bearing on the transfer petition. Readers should note that this petition was included in the matter by the SC division bench, not Facebook.

9. Why didn’t Facebook seek to transfer the case earlier? Citing the “advanced stage” of proceedings before the Madras HC, the State of Tamil Nadu wrote that the matter is “ripe for hearing”. Facebook submitted to the jurisdiction of the Madras HC (order dated October 31, 2018) and has been actively participating in the proceedings. At that time, the petition before Bombay High Court had already been filed. By not filing a transfer petition before this time, it is a “clear abuse of process of this [Supreme] Court”.

10. Transfer petition filed because WhatsApp cannot trace: Citing Kapil Sibal’s, WhatsApp counsel, argument that it is technologically impossible for WhatsApp to enable traceability, the State of Tamil Nadu wrote that is despite the requests made by authorities and report filed by Dr Kamakoti.

11. Social media companies do not cooperate with law enforcement agencies: The TN government submission said that the companies do not provide information in good faith despite operating on Indian soil. The submission also gave details of responses by social media companies to law enforcement agencies’ requests:

Response rate to content requests made by law enforcement agencies

Response rate for account information and IP log requests

In their application to let Madras HC hear the case out, and pass a fitting order, the TN government cited 34 instances where WhatsApp did not comply with the requests made by Tamil Nadu’s law enforcement agencies.

Deep dive: Facebook Transfer Petition | WhatsApp Traceability Case