According to the IT Rules, any platform with more than 50 lakh registered Indian users is a significant social media intermediary. With 75 crore iPhone users, why isn’t iMessage being considered as one?
In response to an RTI filed by MediaNama on the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021 applicability to Apple’s iMessage services, the Ministry of Electronics and Information Technology (MeitY) said that ‘any messaging platform falling under the definition of intermediary in IT Act will fall under the ambit of the IT rules, 2021’.
MediaNama had asked the Ministry, “Does Apple iMessage fall under the ambit of the new IT rules, 2021? If yes, please provide a status of its compliance. If no, please state why it does not fall under the ambit of IT rules, 2021.”
The Ministry’s RTI reply also said that it “does not maintain compliance status of all intermediaries”.
What is iMessage? iMessage is a messaging service from Apple exclusively available to iPhone users. While the user base of iMessage is not clear, there are an estimated 75 crore iPhone users in India for whom iMessage is available as an optional service
Why this matters: The IT rules enforce a traceability mandate on Significant Social Media Intermediaries (SSMIs) which says that as a last resort mechanism, an order may be passed requiring an intermediary to identify the first originator of a message. However, the contents of the message in this regard will not need to be disclosed and for messages originating outside of India the first originator will be the first originator within Indian territory. This would break the end-to-end encryption services that messaging platforms like WhatsApp and iMessage provide.
IT rules not applicable to Apple’s iMessage say sources
On May 26, when the new IT rules came into effect, MeitY had sent a letter to all significant social media intermediaries (SSMIs) i.e. social media intermediaries with more than 50 lakh registered users in India, for details on their compliance with the regulations. On Thursday, The Indian Express reported that MeitY has withdrawn its letter to Apple seeking details on its compliance with the new IT rules, specifically with respect to its iMessage service. The report cites sources saying that the letter was withdrawn after the Ministry reached a conclusion that since iMessage is not a standalone messaging app that can be downloaded on any device, it is not being “primarily or solely” considered as an entity separate from Apple.
“Unlike other messaging apps like, say, WhatsApp, can anyone download iMessage on their phone and use it? If that logic is to be applied, even food delivery platforms, and especially gaming platforms provide an option of chatting with other gamers. Should they also be considered a social media intermediary then? The answer is no,” a senior government official is quoted as saying in the news report.
In the report, a senior industry expert said that with regards to the criteria for qualifying as an SSMI, there is no question that iMessage would qualify as one. “Whether it comes coupled with a device or not, the fact is that iMessage is seen as a messaging service across the world,” they said.
What do the IT Rules say?
Under the rules, a social media intermediary is defined as one that “primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”.
Non-compliance with these rules might result in the loss of safe harbour protection granted to intermediaries, according to Sub-section 1 of Sec 79 (A) of the Information Technology Act, 2000.
The IT rules require messaging apps to –
- Appoint key managerial roles: Social media intermediaries must appoint a chief compliance officer, nodal contact person, and resident grievance officer, all of whom must be Indian residents and employees of the platform.
- Enable traceability: Messaging apps must also enable the identification of the first originator of a message.
Have other intermediaries complied with the IT Rules?
At present, multiple social media platforms like WhatsApp and Twitter are engaged in legal battles with the government over the IT rules. WhatsApp has challenged the constitutionality of the rules and said that the rules go beyond the scope of the parent act (Information Technology Act, 2000). Another end-to-end encrypted messaging platform Signal Messenger has also not complied with the IT rules yet.
Considering the definition of an SSMI, it would be odd if the rules are applicable to platforms like WhatsApp and Signal, but not to iMessage. An official from the IT Ministry had earlier told MediaNama that the rules do not discriminate between messaging platforms and that it applies equally to all.
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