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Why is Online Anonymity Important—And Does Taking It Away Hurt Fundamental Rights? #NAMA

Experts debate the future of anonymity and privacy in India, exploring the trade-offs between security, free speech, and privacy.

“Even in the offline world, anonymity has helped move ahead various sorts of important events in history,” observed Jhalak Kakkar, Executive Director, Center for Communication Governance, NLU Delhi, at MediaNama’s “Exploring User Verification” roundtable last Thursday. “A famous example is the founding fathers of the United States, who published many of their critiques of British colonial power anonymously. Then before the rise of social media platforms on the Internet in the 1990s, we had bulletin boards where people would post anonymously. That’s where we really saw the rise of people trying to freely talk and call out people in positions of power, corporate abuse, and abuse at workplaces.”

The roundtable explored the future of anonymity and privacy in India, amidst broadening government mandates to “verify” all users online for security reasons, among others. The experts poured over the various human rights and legal concerns that verification mandates produce—which include suppressing free speech, hurting privacy, and disproportionately harming marginalized groups. 

“The fallout of not having adequate anonymity [online] is, of course, the chilling effect on speech, particularly for people from marginalized backgrounds,” Kakkar noted. “[This impacts] Their ability to navigate the Internet, and really use it and leverage it for social benefit and good within their communities..The default has to be privacy, and disclosure of identity should be more of an exception [to the rule].”

“There are some platforms that offer absolute anonymity, there are some platforms that say there has to be absolute verification [of users],” noted advocate Prasanna S. “This availability of platforms is what makes a modern democracy a modern democracy. This preservation of plurality is what is important to preserve democracy. That’s a thought I want to leave the floor with.”

MediaNama hosted this discussion with support from Meta and Truecaller. The Internet Freedom Foundation, CUTS International, Centre for Internet and Society, and the Centre for Communication Governance at the National Law University, Delhi, were MediaNama’s community partners for this event.

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Why are we talking about the right to privacy in a conversation on verification?: That’s because the scope of the right to privacy differs from person to person, answered Senior Resident Fellow at the Vidhi Centre for Legal Policy Lalit Panda. “For example, somebody who thinks that the right to privacy doesn’t appear in any and every category of personal data, but only in those [cases] where there is a reasonable expectation [of privacy], would think that the definition, scope, or trigger for talking about the right to privacy is different from somebody else. That [second] person thinks that the scope of the right to privacy is any personal data at all, and that [privacy] is something you should have control over.”

When are privacy rights triggered in conversations on verification?: That depends on the context and stakes, noted Panda. “For example, when we talk about caller IDs and telephone numbers, the stakes, purely from the question of constitutional law, do not often involve questions of privacy mixed with free speech. For example, nobody who says that I don’t want to be identified by caller ID is that concerned about their free speech. They’re concerned about other things like harassment and discrimination, things which might occur when you are identified by your telephone number.”

Panda was alluding to the roundtable’s discussions on the Indian telecom regulator’s recent proposal for a Truecaller-like caller ID system. The proposal suggests that persons receiving a call automatically know the name of the person making the call. This is reportedly being introduced to protect consumers from unknown or spam callers—but it also makes anonymous calls, or opting-out of identification, impossible, raising privacy concerns for consumers.

“Free speech questions, on the other hand, come up when social media identification might be talked about,” Panda continued. “So, even from a legal point of view, that’s very important, because free speech is triggered. For certain kinds of purposes like [countering] misinformation, you [the government] may want social media IDs [to identify the source of the content]. [But] there is no ground in Article 19(2) [of the Constitution, which lists out restrictions to free speech rights] which directly permits that. So, I just want to make it clear that once a stake like free speech comes up, the constitutional considerations can be different.”

So, for certain online groups, verification mandates can directly harm free speech rights: “The communities that suffer the most kinds of hate speech and abuse online are the ones that are marginalized, or the ones who look towards anonymity and are its biggest proponents as well,” added Vijayant Singh, Principal Associate at Ikigai Law. “On the other hand, you could say that the proponents of more verification are typically communities that are closer to the center of power, and closer to the majority [political culture and/or demographic] as well. Also, a lot of the people that are actually imposing hateful speech or objectionable content on these communities are not even anonymous [users online]. So, the problem itself also demonstrates that politics, society, culture, and how we think of communities are also important considerations when we frame this debate.”

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However, the government often justifies its verification mandates to protect Indians online. This creates somewhat of a trade-off—between security, free speech, and privacy.

“The rationale for platforms, and for platform regulation [that’s shaping up] is that they should know who’s transacting on their platform,” MediaNama‘s Editor Nikhil Pahwa observed, while separately questioning this line of thought. “They should know who’s doing business with them because when something goes wrong, they should be able to tell us [the government, presumably] who they are, or should be able to catch them.”

“[But] If we’re saying there’s a trade-off [between privacy and security], who amongst us are bearing the costs of the trade-off vis-a-vis its benefits?” asked CUTS CCIER’s Research Director Amol Kulkarni. “The benefits [of verification and security] are sort of realized, but the costs are incurred by those who are vulnerable, harassed, victims of abuse, women, and users who do not necessarily want to be identified because of the circumstances they’re in. Because of this trade-off terminology, we’re somehow trying to force them to disclose their identities.”

Verification mandates for security purposes may hurt legal privacy principles:  Referring to the telecom regulator’s caller ID proposal, Pahwa pondered that if “on mobile, we’ve all done our KYCs, what’s the problem in displaying that KYC so people know who’s calling?”

Responding to Pahwa, Prasanna drily noted that “when you did your KYC [for a SIM], you were never told that your name will be displayed for all time to come. In fact, that’s a violation of the first principle of purpose limitation right there! At the time [of filling out the KYC], maybe you would have thought twice before giving your details if you knew that every person you called would know your name.”

A linked point when we’re talking about privacy and anonymity is that of autonomy,” Kulkarni noted. “A phone number could be used by any person in the family [for example]. It may not necessarily legally belong to me, but I may just use the number. But, because of mandatory identity disclosure [if someone else’s name appears on the phone because of how it was filled out during a KYC] then I’m losing the autonomy of that number being linked to me.”

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Is anonymity possible in India?: “Let’s say someone chooses to be anonymous on a platform,” mused public policy expert Deepak Maheshwari. “Suppose they suffer a harm, whether privacy or non-privacy-related. What recourse would they have in that situation? By choosing to be anonymous, are you giving away your right to seek recourse?”

On a separate note, Kakkar observed that “the reality in the Indian context is that anonymity isn’t going to be absolute.” Kakkar referred to the Supreme Court’s landmark Puttaswamy judgment from 2017, where it recognized privacy as a fundamental right. However, it also permitted government infringements on privacy as long as they had a necessary, legitimate, and narrow aim. 

“Drawing from Puttaswamy, the fact that there’s a legal basis in law, and that the government is able to show necessity and proportionality [to infringe on privacy], from a state perspective [that means] there will be circumstances in which they are justified to demand that the identity of the user is [made] available,” Kakkar continued. “However, coming back to those very principles, any law that requires us to disclose user identity has to be targeted and narrowly tailored.”

Important not to compare digital anonymity with the past: The kind of anonymity found in 18th century America isn’t comparable to what the Internet has produced today, argued Pranesh Prakash, Co-founder of the Center for Internet and Society. Responding to Kakkar’s initial comments, Prakash noted that “the American founding fathers are often used as an example of [the importance of anonymity], but that’s mediated pseudonymity. They published under [pseudonymous] names. The publishers knew who they were. The kind of anonymity that’s possible with the Internet, with technologies like Tor where no one can actually trace you back [to your identity], did not really exist in a pre-digital world. We shouldn’t mix up pseudonymity and mediated pseudonymity with anonymity, which I think is a much stronger concept.”

Part 1 of this series explores how notions of private information and privacy rights have shifted over the years. Part 3 discusses how user verification impacts industries. 

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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