AUGUST 20, 2019
NEW DELHI, INDIA – The Indian Supreme Court agreed on Tuesday to consider taking up petitions seeking mandatory Aadhaar verification for social media users in India, a day after it was told that such a measure was required in order to stop “anti-national”, fake, defamatory and pornographic content online.
The petition was moved by social media company Facebook, which urged the top court to take over petitions in three high courts – Madras (Tamil Nadu), Madhya Pradesh and Bombay (Maharashtra).
In all three instances, the petitions relate to demands to link Aadhaar or other government-issued identity documents with internet-based services such as social media, instant communication and emails or track messages – which in turn pose questions pertaining to individual privacy as well as technical feasibility.
Social media companies have said such demands run in contrast with their global principles of offering end-to-end encryption to all users (which means messages cannot be traced in the interest of privacy), while activists have said that accepting such proposals will run afoul of constitutional safeguards on privacy and lead to diminished freedom of speech online.
A Supreme Court bench led by Justice Deepak Gupta issued notices to Centre and the Tamil Nadu government, while fixing September 13 for the next date of hearing. The bench, however, refused to put on hold the hearings in the high courts, but said that they should not pass a final order on the matter.
The most prominent among the three HC cases is the one in Tamil Nadu, where recent hearings have focussed on whether or not it is technically possible for service providers to trace messages in order to curb illegal content.
The Tamil Nadu government, which on Monday said it backed the idea to make social media users authenticate using government-issued ID, opposed Facebook’s plea to move the hearing to the Supreme Court.
“Any forced mandate to link social media would be unconstitutional, looking at the Supreme Court’s own Aadhaar judgment. It is also a policy not in line with international standards on privacy, and has been removed even in other democracies that experimented with it, including South Korea” said Raman Jit Singh Chima, co-founder of advocacy group Internet Freedom Foundation, which has intervened in the PIL in Madras HC.
Attorney General KK Venugopal, representing Tamil Nadu, said the matter was heard 18 times by the HC and it would not be appropriate to transfer it at this stage. He said the SC should give the lower the opportunity to give its final view on an issue raised before it.
He also accused Facebook, which owns popular communication tool WhatsApp, of trying to pre-empt the hearings since the judges had agreed to seek an IIT professor’s opinion on how to trace the originator of a WhatsApp message. The next hearing in the Madras HC was scheduled for Wednesday.
Venugopal said the Tamil Nadu case was not looking into the question of linking Aadhaar with social media platforms but was on a larger issue of how to curb circulation of fake news and messages. Venugopal was of the view that to maintain law-and-order it was necessary to know who creates and circulates a message. He gave the instance of Blue Whale that led youngsters to commit suicide in India. “And till date we are struggling to find out who the source of this game was,” he told the court. The bench made it clear it was not going into the merits of the case but would restrict itself to the issue of transferring the petitions to SC.
It only said: “There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom.”
On its part, Union government representatives, asking not to be named, said that the government has “in-principle” agreed to the suggestion of making Aadhaar mandatory for sign-ups on social media, but a final decision would be taken after a more thorough examination of all aspects.
“The Supreme Court has given a notice to the government on this subject, and we will firm up our opinion after detailed study of the matter. This may also involve certain rights of the state and we need to see how they can be dealt with,” the official, a senior government functionary, said.
The government has always supported the idea of accountability for social media companies in the interest of national security and other matters, this official added.
Representatives of social media companies too were cautious in their response. Speaking on the condition of anonymity, an official with one of the social media companies, said they were committed to helping the government in ensuring their platforms are not misused, but they remain committed to ensuring end-to-end encryption to protect user data and communication. “We have been training both central as well as state government institutions on how to seek information from us. We have already put in processes that limit the number of times a message can be sent and forwarded messages are identified; but maintaining law and order is also the responsibility of society; it does not rest with us alone,” said this person.
Apar Gupta, executive director of the Internet Freedom Foundation, said forcing social media platforms to make messages traceable will undermine freedom of speech on the internet. “Anonymity is an important part of freedom of speech because otherwise, individuals would be too reluctant to discuss controversial subjects in the public domain,” he said.