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#NAMA: Does traceability meet the Puttaswamy test? What kind of procedural safeguards do we need?

“Even though there is some equivocation in our judgements, I am going to take the maximalist position and say that the ‘necessity’ has been defined as necessary in a democratic society, one that respects the privacy of communications,” said Prasanna S, an advocate, on whether the demand for traceability meets the Puttaswamy proportionality test. "In this case, the question would be whether in such a society, the state can effectively order and establish a regime where corporations and non-state entities aid and abet state surveillance." If traceability is challenged, the issue will be whether it's a vision compatible with a democratic society, he added. Prasanna S was speaking at MediaNama’s discussion on Intermediary Liability in Delhi on October 23. The discussion was conducted in partnership with Centre for Communications Governance at NLU Delhi, and with support from Google, Facebook, and Friedrich Naumann Foundation. There’s an argument to be made that the demand for traceability will not pass the Puttaswamy proportionality test, and there's an equally strong argument that it will, according to Sarvjeet Singh from CCG-NLU Delhi. After the Puttaswamy test of legitimate aim and suitability are passed, the necessity test determines if there's a means to achieve the goal that is less restrictive on the right. In the case of traceability, the question would be if there is a way for the government to get the data, without breaking end-to-end encryption, Singh said. “Some people are saying that because there’s no other way to get the information about who the originator was,…

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