Citing concerns about the citizens’ right to privacy, Lok Sabha MP Mahua Moitra has filed an impleadment application in the Madras High Court to make her submissions against the abrogation of an individual’s right to privacy. In the absence of any law regarding data protection, she has called any analysis of steps to be taken for decryption or linkage of government identification with online accounts “premature”. MediaNama has reached out to Moitra for comment.

As of now, IFF is the only intervener in the case. A Chennai-based communications platform, KPost, has filed an impleadment application which hasn’t been heard in the court so far. The next hearing is tomorrow.

Problems with linking govt IDs to social media accounts

In her filing to the court, Moitra highlighted the following problems with linking social media accounts to Aadhaar/government identification, or compulsory decryption or de-anonymisation of end-to-end encrypted communication:

  1. Invasion of privacy in private spheres of life as almost every Indian citizen relies on such platforms for daily communication.
  2. Chilling effect on the usage of such platforms by Indian citizens
  3. Problem of digital profiling: Linking all such information to a single unique identifier could be used to create digital profile, which could then be used to influence us in different ways
  4. Greater intrusion by Big Tech into people’s private lives: Companies such as Facebook, WhatsApp and Google already have an unprecedented amount of personal and private data on citizens. Any mandatory linkage to government identification could worsen their intrusion into people’s personal lives.

Kamakoti’s proposal undermines privacy

In his technical submission made on July 31, Kamakoti had made two proposals:

  1. Make the originator’s number visible to all recipients; or
  2. Encrypt the sender’s phone number in the metadata of the message that can be decrypted only by WhatsApp, using a key held in escrow, after relevant court orders are produced by the law enforcement agencies

Apart from the “technical feasibility problems” with Kamakoti’s proposal, Moitra has said that His proposals would not deal with the problem of fake news, and instead erode users’ privacy:

  1. Phone number of the originator will not lead to the source of the message: Technically skilled people would be able to mask their own numbers through different means or link them to others’ numbers, while laypeople would be made more vulnerable as their contact information is spread, a concern that both WhatsApp and the intervener Internet Freedom Foundation (IFF) cited in their responses to Dr Kamakoti’s proposal.
  2. Backdoor access to WhatsApp’s encrypted data undermines privacy: Creating a backdoor access to all encrypted data within WhatsApp would undermine the privacy of the entire platforms, and make it more vulnerable to hacking, a concern that WhatsApp had also highlighted in its submission.

Without data protection law, this is a premature discussion

Moitra wrote that without a robust privacy legislation, any discussion about abrogation of online privacy is premature. The Personal Data Protection Bill, which contains the framework to assess exceptions to the right to privacy, has been in the draft stage for over a year. This framework is based on the 3-fold requirement that the Supreme Court’s landmark judgement on privacy had introduced to assess if the right to privacy should be restrained. As per the judgement, any restraint on privacy must have: a law to justify it, a legitimate state aim, and should be proportional to the needs of the state.

Apart from being the Trinamool Congress MP from West Bengal, Moitra is also a member of the recently constituted Parliamentary Standing Committee on Information Technology which is headed by Shashi Tharoor.

  • In August, she had raised questions about the delays in the Personal Data Protection Bill during the Zero Hour in Parliament.
  • In 2018, she had petitioned the Supreme Court challenging the Centre’s move to set up a social media hub that would analyse and monitor social media communication in and originating from India.
  • In 2017, she had filed a petition in the Supreme Court against Rule 2(b) of PMLA that mandated Indians to link their bank accounts with their Aadhaar numbers.

Read our detailed coverage of the case here.