UPSC MAINS 2019: Tougher scanning, looser encryption: What new rules want from Web Firms?

Tougher scanning, looser encryption - What new rules want from Web Firms

 

Topic: Tougher scanning, looser encryption: What new rules want from Web Firms?

Topic in Syllabus: General Studies Paper 3: Science & Technology

Tougher scanning, looser encryption - What new rules want from Web Firms

Context:

The government recently published 609 pages of suggestions and comments from a range of relevant parties on a new set of guidelines for intermediaries that it issued at the end of last year. The Intermediaries Guidelines (Amendment) Rules, 2018 could have a farreaching impact on the way social media websites, and the Internet as a whole, operate in India. Counter-comments will be accepted until February 14.

 

More about on news:

  • The Rules, read under Section 79 of the Information Technology Act, 2000, make ‘intermediaries’ such as Facebook, Google, WhatsApp, and others responsible for actively monitoring the content they host.
  • They also ask the intermediaries to allow the tracing of information on their platforms by government agencies — a requirement that could create difficulties in the India operations of global end-to-end encrypted products like WhatsApp or Signal.
  • Internet companies with more than 50 lakh users will be required to register themselves in India, and have an office in the country.

 

Intermediaries meaning:

  • Intermediaries are entities that store or transmit data on behalf of other persons, and include internet or telecom service providers, and online market places.
  • The Information Technology Act was amended in 2008 to provide exemption to intermediaries from liability for any third party information, among others.
  • The IT (Intermediary Guidelines) Rules, 2011 were framed under Section 79(2) of the Act to specify the due diligence requirements for intermediaries to claim such exemption.
  • In 2018, a discussion was raised in Parliament on incidents of violence due to misuse of social media platforms.
  • The Minister of Electronics and Information Technology responded that the Ministry plans to revise the intermediary guidelines to respond to emerging challenges.
  • The Ministry has now released draft amendments to the 2011 Rules, which amend the due diligence requirements for intermediaries.

 

Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018:

  • The Intermediary Guidelines Rules, 2011 require intermediaries to prohibit users from hosting certain content on its platform (e.g. obscene content). The Draft Rules prohibit a new category of information, i.e., content which threatens ‘public health or safety’.
  • Intermediaries must, within 72 hours, provide assistance to any government agency. Further, they must enable tracing of the originator of the information on their platform.
  • Intermediaries must deploy technology-based automated tools to identify and remove public access to unlawful information. Further, intermediaries with more than fifty lakh users must incorporate a company in India.

 

Key features of Information Technology [Intermediaries Guidelines (Amendment) Rules 2018:

 

Prohibited Categories:

  • The Rules require each intermediary to publish terms of use.
  • These terms of use are required to prohibit the user from hosting certain content, including content that is grossly harmful or obscene.
  • The Draft Rules prohibit a new category of information which threatens ‘public health or safety’, and includes promotion of cigarettes or tobacco products or consumption of intoxicants including alcohol and nicotine.

 

Removal of content:

  • Any intermediary must, on receipt of a court order or on being notified by the government, remove access to unlawful content.
  • These are acts related to the sovereignty of India, security, and public order, among others.
  • Such removal must be done by the intermediary within 24 hours.
  • Further, intermediaries must also deploy automated tools to identify and remove public access to unlawful content.

 

Assistance:

  • Intermediaries must provide assistance to government agencies (based on a lawful order), within 72 hours.
  • Further, they must enable tracing of the originator of the information on its platform.

 

Registered physical presence:

  • Certain intermediaries must be incorporated in India, under the Companies Act, 2013. These are those with more than fifty lakh users or as notified by the government. 
  • They must also have a permanent office in India, and designate persons for coordination with government agencies.

 

Monitoring:

  • The Rules make ‘intermediaries’ such as Facebook, Google, WhatsApp, and others responsible for actively monitoring the content they host.
  • All intermediary companies will have to deploy technology based automated tools or mechanisms for this purpose.
  • This should help in proactively identifying and removing or disabling public access to unlawful information or content.

 

Tracing:

  • On issue of a lawful order, the intermediary shall, within 72 hours of communication, provide such information or assistance as asked for by any government agency.
  • The lawful order could be in matters of state security, cyber security, or investigation of any offence.
  • For many companies, the provision could mean choosing between breaking their end-to-end encryption in India and stopping the service in the country altogether.

 

Content:

  • Earlier, it was only content that is grossly harmful, defamatory, obscene, etc that was to be filtered.
  • But now, in addition, intermediaries must also filter content that
  • threatens public health or safety
  • promotes cigarettes or any other tobacco products or consumption of intoxicant including alcohol
  • promotes Electronic Nicotine Delivery System (ENDS) and like products that enable nicotine delivery
  • Any content which threatens critical information infrastructure is also not allowed under the new Rules.

 

Non-compliance:

  • Companies will have to inform their users at least once every month that in case of non-compliance, their accounts and content would be removed.
  • However, companies are uncertain as to how exactly this would be achieved.

 

Registrations:

  • All players with more than 5 million users in India have to be incorporated under The Companies Act.
  • The companies will need to have a permanent registered office in India with a physical address.
  • Besides the 5 million-plus firms, the provision can be extended to any intermediary, which is specifically notified by the Government.

 

Key issues and analysis:

 

Bar on content threatening public safety may violate the right to free speech:

  • The Rules provide that the intermediary must prohibit publication of certain types of content in its user agreements. The Draft Rules prohibit a new category of information which threatens ‘public health or safety’. 
  • This may violate Article 19(1)(a) of the Constitution which guarantees the right to free speech and expression. Article 19(2) permits this right to be restricted on six grounds, including in the interest of public order, or national security.

 

Requiring intermediaries to identify and remove content may be unreasonable:

  • The Draft Rules provide that intermediaries must deploy technology based automated tools for identifying and removing access to unlawful information or content.
  • This provision may be contrary to the reasoning of the Supreme Court in a recent judgement.
  • In 2015, the Supreme Court examined Section 79(3)(b) of the Information Technology Act, 2000. This provision required intermediaries to remove or disable access to certain types of content on the basis of user requests.  
  • The Supreme Court stated that it would be difficult for intermediaries to judge the legitimacy of each item given high volumes of content.

 

Requiring intermediaries to register if they have more than fifty lakh users:

  • The Draft Rules provide that certain intermediaries must be incorporated in India, under the Companies Act, 2013.
  • These are intermediaries with more than fifty lakh users or those notified by the government. The rule does not clarify how the number of users will be calculated.

 

Limitations:

  • End-to-end encryption ensures that no one can read the messages shared between two users. This includes government, third-party, cyber criminals, and the company itself.
  • The tracing rules could amount to making it impossible for these firms to work in India in their current nature.
  • For many startups in India, monitoring and removing content might not always be viable or possible, given the resources that would be required.
  • The 5 million-users specification is unclear whether they mean monthly active users or daily active users.

 

Sample Question:

Critically examine the Intermediaries Guidelines (Amendment) Rules, 2018? And discuss how these new rules will help to battle fake news and social media interactions?


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