Vanakkam! Updates on the Aadhaar-social media linkage and encryption PIL before the Madras HC

As some of you may remember, the Madras High Court had permitted IFF to intervene in an ongoing public interest litigation regarding linking of Aadhaar with social media accounts. You can read more about why we decided to intervene in this case here. There was a hearing in the matter today, i.e. 24 July 2019, and IFF was represented by its legal team consisting of Suhrith Parthasarthy, Arun Mohan and Surasika, with our Executive Director, Apar Gupta also being present in person.

What is at stake?

This case is extremely important because the Hon’ble High Court is considering a wide remit of issues, and not just Aadhaar and social media linking.  These include encryption, intermediary liability and use of automated tools to take down illegal content.

The outcome of this litigation could lead to a change in the product design of major social media platforms because law enforcement agencies want the Hon’ble High Court to direct these companies to devise a mechanism to trace the originator of a message. In this regard, a specific proposal has been made by Dr. V. Kamakoti who is a Professor at IIT Madras to include the phone number of the originator of a message whenever a message is forwarded.

In its written submission to the Hon’ble High Court, IFF has emphasized that any restrictions on the use of social media platforms must be proportionate and they should arise from a deliberative and consultative process that takes into account the concerns of all stakeholders. We have highlighted how changing the product design of social media platforms to include the phone number of the originator of the message would undermine the freedom of speech of internet users. Anonymity is an important part of freedom of speech because otherwise, individuals would be too reluctant to discuss controversial subjects in the public domain. The right to anonymous speech is especially important for whistleblowers, abuse survivors, activists and others belonging to marginalized groups who may face harassment if their identity was disclosed.

What happened at today’s hearing?

Today, senior legal counsels appearing for WhatsApp and Facebook made extensive arguments on the central point of traceability. On our part, we filed and placed a substantive response which addresses a broad range of issues which have arisen including concerns regarding digital surveillance, encryption and content takedowns. During oral arguments, based on submissions made by the lawyers for social media platforms, the Hon’ble High Court expressed the view that it may even examine the existing level of compliance and legal vacuum under the IT (Intermediary Guidelines) Rules.

Prof. Kamakoti’s technical inputs which formed part of the Government’s common report have been directed to be filed by the Hon’ble High Court. This promises to be interesting and we will respond to it. The next date of hearing in this case is 21 and 22 August 2019.

Important Documents

  1. IFF’s submission in response to the Government’s common report (link)

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