Traceability Provision of New IT Rules 2021

Context: Government of India has referred to the 2019 Supreme Court order to justify the introduction of Traceability Provision in the IT (Information Technology) Rules, 2021.

• The Traceability Provision requires the social media platforms to compulsorily identify the first originator of the information in India, upon government or court order.

Recent Issue

About the 2019 Supreme Court order

• In 2019, the SC was hearing a petition filed by Facebook. SC showed concern at the utilisation of social media for committing crime.

The court had said that social media had become a source for activities such as

• Pornography
• Criminals use it to sell weapons, drugs
• Hate and violence are shared and
• Some messages on social media may even threaten national sovereignty.

Hence, the court had asked to bring a well-framed policy to allow the Government to get information about the first originators of messages. It was to apply to major social media intermediaries with end-to-end encryption technology.

• End-to-end encryption ensures that no one can read the message, except for the sender and the receiver.
• However, the court had also said that the Decryption policy should not invade the individual’s Right to Privacy. Hence, the order underlined that traceability should be restricted to “specific circumstances”.

Arguments against the Traceability Provision of IT Rules,2021

• Compromises Privacy of Individual: The traceability provision compromises the privacy of each user. Because there is no way to predict which message would be subject to a tracing order from the government.
• Against Doctrine of Proportionality: The principle says that It is a principle where courts examine processes of the administration for reaching or recalling a decision. Proportionality means that the action should not be more drastic than it ought to be for obtaining the desired result.
• A court can examine whether the executive could achieve the goal (i.e. elimination of the threat to security and sovereignty of the nation by social media) by adopting less drastic measures.
• Subordinate Legislation: The 2021 IT Rules is subordinate legislation under the Information Technology Act,2000. But neither the Act nor any other law requires a social media intermediary using end-to-end encryption to reveal the identity of the first originator of a message.
• However, the subordinate law has overshot the original intent and boundaries of the parent Act.