The Center defended the legal validity of its new IT rule in Delhi’s High Court requiring messaging apps, such as WhatsApp, to “trace” the first author of the information, saying the law allows it to wait. that these entities create a secure cyberspace. and tackle illegal content either itself or by helping law enforcement agencies.
The Center said Section 87 of the Information Technology Act gave it the power to formulate Rule 4 (2) of the Intermediary Rules – which mandates a major social media intermediary to enable identification of the first sender of information in the “legitimate interest of the State”. reduce the threat of fake news and crimes concerning national security and public order as well as women and children.
In its affidavit filed in response to WhatsApp’s challenge to the rule on the grounds that the encryption breach infringes the privacy of its users, the Center claimed that the platforms “monetize user information for commercial / commercial purposes. do not have the right to claim that they protect privacy “.
“The petitioners (WhatsApp and Facebook), being multi-billion dollar companies, almost singularly based on the retrieval, possession and storage of private data of natural persons across the world and subsequently their monetization, can not claim any representative right to privacy on behalf of natural persons using the platform, ”says the affidavit filed by the Department of Electronics and Information Technology.
The Center said the reasons regarding the technical difficulties cannot be an excuse for denying compliance with the country’s law and if a platform does not have the means to track down the “first author” without breaking the encryption, then it is the platform which “should develop such a mechanism” within the framework of a broader public mission.
“The Rule does not contemplate that platforms break end-to-end encryption. The Rule only contemplates the platform to provide the contact details of the first sender by any means or mechanism available with the platform. If the platform does not have such means, the platform should develop such a mechanism given the widespread prevalence of platforms and the broader public duty, ”the affidavit said.
The Center stated that “if the intermediary is not able to prevent or detect criminal activity taking place on its platform, then the problem lies in the architecture of the platform and the platform. form must rectify its architecture and not expect a change in legislation. The reasons for “technical difficulties” cannot be an excuse for refusing to respect the law of the land. “
In August, a bench led by Chief Justice DN Patel called for the Center’s position on the WhatsApp petition challenging the new rule on the grounds that it violates the right to privacy and is unconstitutional.
WhatsApp’s parent company Facebook has also issued a similar challenge to the rule.
In its plea, WhatsApp said that the traceability requirement required it to “break end-to-end encryption” and thus undermine the fundamental rights to privacy and freedom of expression of hundreds of millions of citizens. using its platform to communicate privately and securely.
The Center, in its response, said the WhatsApp petition is not sustainable because a challenge to the constitutionality of an Indian law is not sustainable at the request of a foreign business entity.
He further asserted that Rule 4 (2) is an “embodiment of the competing rights of Indian citizens” and aims to preserve the “rights of vulnerable citizens in cyberspace who may be or are victims of cybercrime”.
The Center said there are checks and balances to ensure the rule is not misused or invoked in cases where other less intrusive means are effective in identifying the author of the information.
The identification of the first perpetrator relates only to viral content relating to heinous crimes, as specified in the rule, and does not identify all users or citizens, he said.
“If the 2021 IT rules are not implemented, law enforcement will find it difficult to trace the origin of the false messages and these messages will infiltrate other platforms, thus disrupting the peace and the ‘harmony in society, leading to more public order problems,’ the affidavit stated. .
The Center also said that in the event of legal proceedings having a message on the platform as evidence, WhatsApp would lose the defense of “intermediary protection”, but that “does not mean that WhatsApp will be found guilty and its officials would be legally responsible. ”.
“Courts can include WhatsApp as a defendant and consider ‘contributory negligence’ and ‘vicarious liability on WhatsApp and its officers” (under section 85). Such responsibilities will only flourish when such a case arises and WhatsApp is designated as an entity that is sufficiently proven to have contributed to the commission of the crime, ”he added.
The center also said that the Supreme Court itself had asked the central government to “take all necessary measures to identify those who create and disseminate electronic information” on certain offenses such as sexual abuse.