- Background: Facebook had filed a transfer petition before the Supreme Court seeking transfer of Antony Clement Rubin v. Union of India because similar petitions for linking of Aadhaar with social media accounts were pending before multiple High Courts. However, during the proceedings, the Madras High Court had actually dropped the original prayer for Aadhaar linkage and shifted its focus to identifying the originator of information on end to end encrypted platforms like WhatsApp.
- Tamil Nadu’s Surprise Move: After initially arguing against the transfer, the Attorney General who was appearing for Tamil Nadu said that the State Government was withdrawing its objections to the transfer petition. In light of this, the Supreme Court allowed the transfer petition and directed it to be listed after mid January 2020.
If there is a Lock, must there be a Key?
The Attorney General who was appearing for the State of Tamil Nadu began the arguments by saying that Section 69 of the IT Act, 2000 and Rule 13 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009 impose an obligation on intermediaries to decrypt. The Division Bench of Deepak Gupta J. and Aniruddha Bose J. agreed that decryption was possible and the Government was empowered to seek it because “if there is a lock, there must be a key.” However, there was some confusion regarding whether the intermediary had an obligation to decrypt or if it had an obligation to provide assistance to law enforcement for decryption.
Need for Judicial Restraint
Amidst this, Mr. Shyam Divan, who was the Senior Advocate appearing for IFF, pointed out that the constitutionality of Section 69 and the Rules had been challenged by IFF in another writ petition seeking surveillance reform and the matter was pending adjudication (Read more here). He further cautioned the Court against making any observations regarding encryption or the proposed amendments to the IT (Intermediaries Guidelines) Rules, 2011 because these issues have a major impact on the privacy and free speech of millions of Indians. He urged the Court to exercise restraint because any incidental observations made by the Court may be misconstrued as a justification to impose disproportionate restrictions on fundamental rights. He also highlighted that the scope of a transfer petition is very limited and the merits of such complex issues cannot be discussed at this stage.
Man in the Middle
Mr. Mukul Rohatgi, who was the Senior Advocate appearing for Facebook, stated that WhatsApp could not decrypt private messages shared on its platform because the key required to decrypt the message was only available with the user, and not with WhatsApp. He stated that the obligation under the IT (Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009 was to provide assistance with decryption to the extent possible and it was not an absolute mandate. He further argued that while some of the parties such as IFF were pro-privacy and others like the Government were anti-privacy, social media companies were caught in the middle because some users want their communication to be private and secure while others want the police to have more powers to investigate cyber crimes.
After initially arguing against the transfer, the Attorney General informed the Court that he had received new instructions and the State of Tamil Nadu was withdrawing its objections to the transfer. Due to this new-found consensus, the Court allowed the transfer petition and directed it to be listed after mid January 2020. In its affidavit filed yesterday, MeitY has stated that the proposed amendments to the IT (Intermediaries Guidelines) Rules, 2011 will be notified by 15 January 2020, and the Court decided to wait till then to let the executive branch address this complex policy issue first.