Backdoor Tracking - End to Fundamental User Privacy?

 

Privacy in today's cyber world is an essential aspect of life but the right to privacy has been under attack internationally in recent years, as seen by the fact that encryption technology faced various challenges throughout the world in 2020 alone. From the proposal of a bill in the United States Senate requiring a bypass in any encryption technology to the suspension of ProtonMail in Russia. India is no exception to this trend, with the introduction of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which proposes to make the tracing of content mandatory that is shared on social media. This could mean the decline of end-to-end encryption. 

Traceability- an end to encryption

Tracking and Monitoring the data has been going on since the inception of controversial section 5 of the Indian Telegraph Act, 1885, which sanctioned interception and monitoring of communication. 

Section 69 of the Information Technology Act of 2000 previously permitted the central or state government to monitor and collect data from any computer system for the sake of cybersecurity. The interception may be carried out if the government is satisfied that it is "in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above…" Section 69 was also supported by the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009. Rule 9 of the 2009 rules allow for "Direction of interception, monitoring, or decryption of any specific information" from "any class of persons."

The looming threat on privacy as a right for the citizens has been realised by the latest IT rules titled, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Rule 4(2) states:

"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 passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009".

The rule enforces message tracing through the identification of the first originator by requiring major social media intermediaries to implement software upgrades to ensure that the first originator can be tracked concerning every message sent through that intermediary. The issue stems not just from the IT regulations of 2021, but also from the IT rules of 2009 when Rule 13 required the intermediary to offer "decryption assistance." In a transfer petition filed by Facebook in the Supreme Court in 2019, KK Venugopal argued on behalf of the Tamil Nadu Government that Rule 13 obliged the intermediary to offer any sort of assistance to law enforcement.

Right to Privacy

In Justice K.S. Puttaswamy (Retd.) v. Union of India a nine-judge bench of the apex made it clear that the Right to Privacy is an innate part and is enshrined in Article 21, further in that case the court elucidated that the Right to Privacy in as such should only be curbed by a procedure established by law and that such a law adheres to Principles of Natural Justice. The apex court also introduced a 4 step test for the judicial scrutiny of any law that curbs the Right to privacy. The Test includes (i) Legitimate aim Test, (ii) Rational Nexus test, (iii) Necessity test and (iv) Balancing test.

                 

Case Citation:  Justice K.S. Puttaswamy (Retd.) v. Union of India ((2017) 10 SCC 1)

By: Vyom Kaushik

        (Legal Intern, WCSF)

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