Aadhaar, social media linking: SC transfers all cases to itself

New Delhi: The Supreme Court on Tuesday transferred to itself petitions seeking the linking of social media profiles with identity proof, including Aadhaar.

The petitions that the Supreme Court transferred are currently before Madras, Bombay and Madhya Pradesh high courts.

The social media platforms — Facebook, WhatsApp and others had moved the top court seeking the transfer of cases pending before different high court to the apex court.

Noting that the draft Information Technology Intermediaries Guidelines (Amendment) Rules, 2018, are likely to be completed by January 15, 2020, a bench of Justice Deepak Gupta and Justice Aniruddha Bopse directed the listing of the matter in the last week of January 2020 before an appropriate bench. The
draft Information Technology Intermediaries Guidelines (Amendment) Rules are intended to check the misuse of social media platforms and make them share with the investigating agencies the decrypted messages of the people under probe.

The court directed the registry to place the matter before the Chief Justice of India for the listing of the matter before a bench.

The hearing on Tuesday saw both the Centre and the Tamil Nadu government asserting that intermediaries were mandated under the Section 69 of the Information Technology Act to provide the investigating agencies with decrypted messages, the social media platforms resisted it saying that they could not be fastened with such obligations.

Attorney general K.K.Venugopal appearing for Tamil Nadu said that “once they (social media platforms) have come here, they can’t say that they can’t decrypt the messages.”

Citing the provisions of Information Technology Act, Mr Venugopal said that the law  provides for decryption of data and information and these sections of the IT Act have not been challenged and thus intermediaries cannot claim they cannot decrypt.

Raising doubts whether intermediaries are under legal obligation to provide the decrypted messages, Justice Gupta said, “Prima facie, we don’t agree. We may agree with you eventually, but we do not agree straightway that they are mandated to share information.”

Citing the example of the United States, Justice Gupta said that the government can have its own agency for decrypting of the messages.

Justice Bose said “it is like there is a closed door and they are saying you can open the room. But you want the keys to it too. The question however is whether they are under legal obligation to give you (govt) the key?”

Opposing attorney general’s submission that intermediaries were obliged to provide the decrypted messages, senior counsel Mukul Rohatgi appearing for one of the social media platforms cited 2011 Rules to contend that they were under no obligation to share the decrypted messages. He said that they don’t have the key to decrypt the messages.

Solicitor general Tushar Mehta said that one had to take a balanced approach — balancing the national interest including security with individual privacy. He said that there could be no privacy for those engaged in acts of terror.

Senior counsel Shyam Divan appearing for Internet Freedom Foundation urged the court to hold its hands from passing any order as they are used by the government to interfere with the privacy of the people.

The ministry of electronics and information technology has told the Supreme Court that as “Internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity, it was felt that the extant rules to be revised for effective regulation of intermediaries keeping in view the ever growing threats to individual rights and nation’s integrity, sovereignty, and security.”