The Supreme Court has allowed transfer of the Madras HC petition for Aadhaar and social media linkage to itself, along with similar petitions pending before other high courts. After hearing arguments around encryption and intermediaries — which are issues under discussion in the Madras HC — the court directed the lawyers to submit a list of all similar matters pending before the high courts. The Supreme Court will then place the matter before an appropriate bench, after the Centre notifies the Intermediary Rules Amendment, which is expected by January 15, 2020.
The Facebook transfer’s petition was being heard by a two-judge bench, consisting of Justice Deepak Gupta and Justice Aniruddha Bose. The matter will now be listed in the last week of January 2020. In an affidavit to the Supreme Court, the Ministry of Electronics and Information Technology (MeitY) yesterday said that the Intermediary Guidelines (Amendment) Rules 2018 will likely be completed by January 15, 2020. It had cited the internet as potent tool to cause “unimaginable disruption to the democratic polity”
Decryption allowed under Section 69, says Venugopal
Attorney General K.K. Venugopal, who was appearing for the State of Tamil Nadu, said the Section 69 of the Information Technology Act already has a provision for decryption. He referred to Section 69(1) of the IT Act, which he said gives the Central or State government the power to issue directions for decryption of any information on a computer resource, and to intercept any information on a computer resource. He read out Section 69(3), which says that the subscriber, intermediary, or person in-charge of the computer resource shall, on order of the agency, shall:
extend all facilities and technical assistance to-
(a) provide access to or secure access to the computer resource generating, transmitting, receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
Looking uncertain, Justice Deepak said intermediaries must help in decryption, but not decrypt. “The government must have their own agency [to decrypt the information],” he said. Justice Aniruddha Bose and Justice Deepak Gupta talked among themselves briefly, after which Justice Deepak Gupta said, “My colleague informs me that the US has an outside agency which decrypts information.
“Nobody prevents the system of decryption, but can we force them [the intermediaries] to decrypt?” “Do the rules require them to to decrypt [information] or to give technical assistance? Is there an obligation on them to decrypt” he asked.
— Justice Deepak Gupta
Venugopal said platforms cannot establish “a non-decryption system” – presumably a reference to end-to-end encryption – “and function in the country”. Both judges said that they are not “technically qualified” to comment on this. But they added that if somebody can develop [a level of] encryption, they can also develop decryption for it. “There’s minute-to-minute development,” Justice Deepak Gupta said. Venugopal said the obligation to decrypt information and not to simply provide technical assistance is present under the IT Act.
You are demanding the platform’s key so that you can open the room: SC
Drawing a careful analogy, Justice Aniruddha Bose said:
“A room is locked. You [the government] want to open the room. The owner of the room is saying ‘open it yourself’, but you [the government] are demanding that they give their own key so that you can open the room.”
Venugopal repeated that intermediaries have to give access to the “entire computer system” under the law. Justice Bose said “but their servers might be located outside India”. Referring to Dr Kamakoti’s submission, Venugopal said, “the IIT professor said it’s absolutely possible, absolutely open”. “Does he [Dr Kamakoti] have to go to their office?” asked Justice Bose.
“[This is] completely wrong!” said Mukul Rohatgi, who was appearing for Facebook.
Section 69 already under challenge in SC; consider only transfer petition, not issues: IFF
Shyam Divan, who was representing Internet Freedom Foundation (IFF), pointed out that Section 69 of the IT Act, and IT (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, are both under challenge by IFF in the Supreme Court.
“The court essentially faces a transfer petition and multiple special leave petitions. I request the court to not go into the issues. If the case is transferred to the Supreme Court, we will continue to assist the SC. If it’s not transferred, we will continue to assist the Madras HC,” he said.
The demands of decryption puts freedoms at stake, he said. The solicitor-general Tushar Mehta has given a timeframe, Diwan said, “the rules may or may not be acceptable, but for the Supreme Court to say anything now may be premature.” This is a “momentous issue of freedom”, and needs a balancing act, he said. “Right of citizens are being trampled upon,” Diwan added. “The court must restrain itself,” he added. Justice Deepak Gupta nodded, apparently in agreement.