The debate surrounding the IT Rules, 2021

  • WhatsApp moved the Delhi High Court against the IT Rules.
  • It argued specifically against Rule 4(2) that mandates that a “significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order. 
  • A “significant social media intermediary” is one with more than 50 lakh registered users.

ARGUMENTS OF THE GOVERNMENT

  • A release by the Ministry of Electronics and IT has said that the traceability measure will be used by law enforcement as the “last resort” and will come by only in specific situations, such as “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India... or child sexual abuse material, punishable with imprisonment....”
  • The assertion suggests that this requirement is in line with the Puttaswamy judgment that clarified that any restriction to the right of privacy must be necessary, proportionate and include safeguards against abuse.
  • The press release further said that it is the responsibility of intermediaries to find an alternative method to protect user privacy, with or without the use of encryption.

ARGUMENTS AGAINST THE GOVERNMENT

  • The Government can already seek access to encrypted data under Section 69 (3) of the IT Act, and Rules 17 and 13 of the 2009 Surveillance Rules. 
  • These rules require intermediaries to assist with decryption when they have the technical ability to do so and when law enforcement has no other alternative.
  • The Government can access unencrypted data such as metadata, and other digital trails from intermediaries.
  • The trouble with enforcing traceability is that without safeguards such as having any independent or judicial oversight, government agencies could seek any user’s identity on vague grounds. 
  • This could compromise the anonymity of whistle­blowers and journalistic sources, who can claim to be acting in the public interest.
  • The Rules fail to provide any system of independent oversight over tracing requests made by the executive.




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