IFF questions the legality of Tripura Police’s direction to block accounts on Twitter

tl;dr

On November 3, 2021, in connection with a case registered under the stringent Unlawful Activities Prevention Act, 1967, the West Agartala Police issued a notice to Twitter Inc under Section 91 of the Code of Criminal Procedure. By way of the notice, the Police directed Twitter Inc. to block 68 Twitter pages/accounts and sought information related to them, including personal information such as browsing details and user registration details. We wrote to the Police pointing out that the notice dated November 3, 2021, is vague and that the Police is not empowered to direct blocking of pages/accounts on Twitter. We have sought immediate withdrawal of the notice.

Background

On October 26, 2021, reports of communal violence emerged from the State of Tripura. The reports were followed with the National Human Rights Commission asking the Tripura Government for a report on the violence and the Tripura High Court taking suo moto cognizance of the violence. After that, 4 Delhi-based lawyers prepared and published a report on the reported communal violence based on a fact-finding mission. The West Agartala Police registered an FIR against the 4 Delhi-based lawyers, amongst others, under the stringent Unlawful Activities Prevention Act, 1967.

On November 3, 2021, in connection with the case against the lawyers, the West Agartala Police issued a notice (‘the Notice’) to Twitter Inc under Section 91 of the Code of Criminal Procedure (‘CrPC’). By way of the Notice, the Police directed Twitter Inc. to block 68 Twitter pages/accounts, many of which reported instances of communal violence or protested against the same. In relation to these accounts, the Police also sought information regarding - 1) user registration details; 2) browsing log details from the date of registration till date; 3) lists of IP addresses from which the users had logged on; 4) mobile numbers attached to these accounts, including verified mobile numbers added for security reasons; and 5) a list of the accounts that the users had linked into the Twitter account. Reports state that similar notices were also issued to Facebook and Youtube.

It is noteworthy that non-compliance with these directions of the Police is punishable under Section 175 of the Indian Penal Code, 1860. Under Rule 3(1)(j) of IT Rules 2021, Twitter Inc. is obligated to provide the information sought within seventy-two hours of the receipt of the notice.

IFF’s representation on the legality of notice dated November 3, 2021

We wrote to the Officer-In-Charge, West Agartala Police Station, pointing out the legal infirmities with the notice dated November 3, 2021. In the representation, we pointed out the following:

  1. The Police cannot direct Twitter Inc. to block pages/accounts: Section 91 of the CrPC does not empower the Police to direct intermediaries such as Twitter Inc. to block content on the internet. The limited purpose of Section 91 is to enable the production of a document necessary for an investigation or inquiry. The power to issue directions to block content on the internet is provided under Section 69A of the Information Technology Act, 2000. According to that provision, a direction to block content on the internet may only be given by the Central Government while complying with the safeguards provided under Information Technology (Procedure and safeguards for blocking for access of information by public) Rules, 2009. Thus, by way of the Notice, West Agartala Police has sought to exercise a power it does not possess.
  2. The Notice suffers from vagueness and overbreadth: The Notice offers no explanation for requiring large amounts of information, including personal information such as browsing log details and user registration details linked to the 68 pages/accounts on Twitter. The omnibus explanation that the posts on these pages have a 'potential to flare up communal tension in Tripura' is insufficient to justify the need for securing the kind of data sought by the notice. Moreover, as the pages/accounts are different from each other, the rationale for seeking information related to them should have been explained separately. This is especially because an examination of the pages/accounts indicates that several posts only report instances of communal violence or protest against the same. Neither of these activities constitutes a criminal offence or relate to an ongoing investigation.
  3. The Notice violates the right to privacy and has a chilling effect on speech: Details such as user registration details, browsing log details and IP addresses are personal information. According to the decision of the Hon’ble Supreme Court in K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1, such details may only be disclosed if the State demonstrates that it is lawful, necessary, proportionate and least restrictive to do so. The Notice fails to do so. Moreover, overbroad notices to intermediaries demanding personal information of users under threat of sanctions for non-compliance have a chilling effect on how persons use such platforms and encourage self-censorship, whittling away the fundamental freedom of expression.

In view of these concerns, we urged the West Agartala Police to:

  1. Withdraw the Notice insofar as it directs Twitter Inc. to block the Twitter pages/accounts and demands access to personal information of users. Also, withdraw any other similar notice requiring intermediaries to block content on the internet.
  2. Explain why personal details regarding each of the pages/accounts mentioned in the Impugned Notice are necessary for investigation purposes.
  3. Henceforth ensure that police power is not used to whittle down free speech.

We hope that the West Agartala Police will provide due consideration to our concerns, and we will keep you updated on this matter.

Important Documents

  1. Notice to Twitter Inc under Section 91 of the Code of Criminal Procedure (link)
  2. IFF’s representation to West Agartala Police dated November 8, 2021 (link)