The Union government has recently issued a fresh FAQ on the contentious new IT rules, stating that they are consistent with the right to freedom of speech and expression guaranteed by the Constitution, and do not place additional obligations on users. IT ministry said the rules have a clear focus on protecting the online privacy of individuals, and that even with regard to the identification of the first originator of messages, safeguards are in place to ensure that the privacy of users is not violated.
However, the Internet Freedom Foundation (IFF) has rebutted the claims made by the Union government, one by one. The first claim that IFF looks to fact check is that the Ministry of Electronics and Information Technology said that it called for public consultation on the amendments to the previous version of the intermediary rules. However, IFF has pointed out that while a draft was put out in 2018, the actual rules that were brought out were vastly different from the draft, which never mentioned regulating digital news players. “Thus, the public did not even know that the Union Government was contemplating to regulate content not on social media,” it said.
The government’s FAQ says that the new IT Rules enhances the online safety of women and children. However, IFF said that while the objective is important, the Rules go beyond what is necessary, “and in fact end up undermining the constitutional rights of citizens online.” It added that because there was no proper consultation process, the rules could not take in the inputs of women’s rights groups who would have had a better understanding.
One of the biggest oppositions to the IT Rules is that it undermines the right to privacy, and the Union government has claimed the opposite. IFF, in its rebuttal, said the rules “seriously undermine the right to privacy,” including the weakening of end-to-end encryption on messaging apps.
The Union government claimed the requirement for messaging platforms to trace the originator of a message has not been brought in with an intention to break or weaken encryption, and companies are free to come up with alternative technological solutions to implement this rule. IFF said that as per the rules notified, it is “incorrect to suggest” that identifying the originator is only required upon receiving directions.
Earlier this year, Facebook-owned WhatsApp approached the Delhi High Court challenging the rule that requires the messaging app to make provisions to identify the first originator of any information. WhatsApp had said the traceability provision would break end-to-end encryption and fundamentally undermine people's right to privacy.
IFF said that any platform will have to enable traceability for all texts as it cannot predict which message may receive an order to trace the originator of the message. It also added that contrary to the government’s claim that there are safeguards in place for user privacy, the safeguards are insufficient and have the “overall effect of weakening encryption protocols in respect of all messages.”
Another claim made in the FAQs is that platforms do not have the authority to identify users or information on their own without an order. Calling it an “entirely false statement,” IFF said that there is no rule that prohibits the platform from doing this on its own.
“End-to-end encryption is offered as a service by certain messaging related intermediaries and is not mandated by any Rules, though it is the privacy standards in mobile-based chat applications,” IFF added.
The FAQs also say that the rules are consistent with the right to free speech and expression, to which IFF said that it seeks to overturn intermediary liability.
“The Rules restore the position of the intermediaries as exercising private censorship. The Rules are sanctioning a scheme that dilutes the intermediary liability regime that Shreya Singhal protected and preserved. The government has shifted the burden of decision making regarding what content should be taken down from itself/the courts to private intermediaries, reinstating their status of ‘super-censors’,” IFF said.