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Traceability Provision in New IT Rules 2021

Traceability Provision in New IT Rules 2021

Why in news?

  • Recently, messaging platform WhatsApp has moved the Delhi High Court to challenge the traceability provision in the New IT Rules 2021.
  • Earlier the Ministry of Electronics and IT (MeitY) had sent a notice to WhatsApp asking it to withdraw a controversial update to its privacy policy which might be a threat to Data Protection of Indians.

Background

  • In 2018, the Supreme Court had observed that the Indian Government may frame necessary guidelines to eradicate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.
  • In 2020, an Ad-hoc committee of the Rajya Sabha submitted its report on the issue of social media pornography and its effect on children and society as a whole. The report recommended tracing the originator of such content.
  • In 2020, the GOI also brought OTT platforms under the ambit of the Information and Broadcasting Ministry.

What are Traceability Provisions?

  • It requires intermediaries to enable identification of the first originator of information on their platforms.
  • Rule 4(2) of the Intermediary Rules states 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 or an order passed by a competent authority under the Information and Technology (IT) Act 2000.
  • Failure to comply with this requirement would take away the indemnity provided to social media intermediaries under Section 79 of the IT Act.

Arguments against the Traceability Provision of IT Rules,2021

  • Subordinate Legislation: The 2021 IT Rules is subordinate legislation under the Information Technology Act,2000. But neither the Act nor any other law requires a social media intermediary using end-to-end encryption to reveal the identity of the first originator of a message. However, the subordinate law has overshot the original intent and boundaries of the parent Act.
  • Compromises Privacy of Individual: The traceability provision compromises the privacy of each user. Because there is no way to predict which message would be subject to a tracing order from the government.
  • Against Doctrine of Proportionality: The principle says that It is a principle where courts examine processes of the administration for reaching or recalling a decision. Proportionality means that the action should not be more drastic than it ought to be for obtaining the desired result. A court can examine whether the executive could achieve the goal (i.e. elimination of the threat to security and sovereignty of the nation by social media) by adopting less drastic measures.

Important Provision Made In The IT Rules 2021

  • The Rules mandate duties such as removal of non-consensual intimate pictures within 24 hours.
  • The rules also mandates publication of compliance reports to increase transparency.
  • Rules provides for setting up of a dispute resolution mechanism for content removal.
  • It provides for adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

End-to-End Encryption vs Traceability

  • End-to-end encryption was designed to help ensure that nobody other than the person you are talking to can know that you sent a particular message. This is the exact opposite of traceability, which would reveal who sent what to whom.
  • End-to-end encryption is a system of communication where only the communicating users can read the messages.
  • Traceability would force private companies to collect and store who-said-what and who-shared-what for billions of messages sent each day. This will require platforms to collect more data than they need, solely for the purpose of turning it over to law enforcement agencies.

ALSO READ : https://www.brainyias.com/high-resolution-computed-tomography-hrct/

Mussoorie Times

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