The long wait of the Indian citizen for a law to protect the right to privacy is a wait for Godot. This has come with increasing costs. In this unfolding theatre of the absurd. WhatsApp, the messaging service owned by Facebook (infamous for breaching privacy ) has filed a case against the GoI to protect the privacy of its users! This was in response to a deadline to comply with the Indian governments’ new rules for social media intermediaries. The new rules mandates platforms to make provisions for ‘identification of the first originator of the information and nominate India based employees as points of contact. These rules are meant to curtail the spread of child porn, rape videos and other serious crimes.
These companies spent millions of USD to undermine privacy protections and influence legislative initiatives globally that can potentially hit their profit margins.
In its plea, WhatsApp argues that the traceability provision is unconstitutional and against people’s fundamental right to privacy. On the face of it, WhatsApps explanations posted in the FAQ that identification of the first originator would break the end to end encryption meant to preserve user privacy. Lead to “who-said-what and who-shared-what” data for billions of messages daily agencies appear justified. These measures appear as genuine initiatives against mass surveillance to uphold the privacy of its users. Except ironically, FB, a company with other BigTech are industries based on surveillance capitalism.
Surveillance capitalism is an economic system that commodifies personal data for profiling individuals. These companies spent millions of USD to undermine privacy protections and influence legislative initiatives globally that can potentially hit their profit margins. They also work closely with the intelligence organisations and the military of the parent nation. This global surveillance against terrorism has economic, political, intelligence and military aims. Other nations that include American allies have increasingly taken multiple measures to limit the power of these companies.
Twitter labelling the tweets has clearly tread on a thin line that is legally grey. That Twitter may still prove to be correct is not what is of import. The very act of a foreign platform judging a matter with legal implications has clear political overtones and sovereignty implications.
Another crisis that has evolved parallelly with profound political and national security implications are the actions of Twitter, another social media giant. In a political slugfest of accusations and counter-accusations between the two main national parties, the BJP and the Congress. The BJP alleged that a ‘toolkit’ was created by the Congress party to tarnish the governments handling of the pandemic. This was allegedly a fake accusation as per the Congress party. Twitter has labelled the ruling party’s national spokespersons tweet as ‘manipulated media‘ after the Congress functionaries approached them with evidence. The Congress party also filed an FIR alleging the accusations are false and defamatory, and the matter is under investigation. Twitter labelling the tweets has clearly tread on a thin line that is legally grey.
That Twitter may prove to be correct is not what is of import. The very act of a foreign platform judging a matter with legal implications has clear political overtones and sovereignty implications. In cacophonic democracies, it is not uncommon for politicians to make false accusations and conspiracies abound in besmirching the fair name of opponents. This is an unpleasant reality of all societies and such matters are cognisable crimes under the law. A label indicating that the allegation is under investigation is what a regulatory mechanism should mandate and would do better justice in similar circumstances for the future.
Social media platforms need regulation while upholding the right to free speech is evident. Jurisdiction, the ability to investigate transgressions and impose costs is key to all laws. In the case of social media, this involves data localisation as jurisdiction is territorial. Mere data localisation will be insufficient if user privacy is not maintained. Users will always bypass technical controls to access platforms that will afford them privacy. A robust privacy law wherein limitations are by judicial review instead of executive fiat is the way ahead. Social media are platforms that can rapidly influence populations, spread divisive narratives, choke or censor selected posts. These abilities make them ideal for waging Information Warfare.
The art of ‘divide et impera‘ in the information age is practiced more subtly and with finer craft.
The standoff with social media comes at a time where multiple crises besiege the nation. The LAC standoff, the massive second wave of the pandemic, two back to back cyclones and the resultant economic impact are all crises that require urgent attention. The nation has to address all these on a war footing. In times of crisis, others will try their best to accentuate political divides for competitive advantages was always known. Data is all about power, and privacy involves the people taking back that power and moderating its uses. These measures will be contested by the corporates who have gained immense wealth by exploiting these unregulated data flows.
Social media platforms have given voice and empowered citizens globally. That should not prevent us from addressing the downside of social media platforms. Twitter and other big data companies are dual role platforms that were designed to give a competitive advantage to the US in Information Warfare. This is achieved by weaponising free speech and accentuating political divisions globally. The art of ‘divide et impera‘ in the information age is practiced more subtly and with finer craft. India needs to fight this war intelligently by careful legislative initiatives and narratives that highlight the democratic and constitutional credentials of the nation. They should now legislate the privacy law at the earliest, as delay will increase the costs. A stitch in time saves nine.