Big Tech playing editor, government demanding traceability, both are problematic. Sending a bunch of cops weakens Delhi’s case
The fault-lines are hardening in what will be a long standoff between Big Tech and the Indian state. On May 25, as the three-month deadline for conforming to the new IT Rules drew to a close, WhatsApp, the Facebook-owned messaging platform, approached Delhi High Court to challenge the traceability provisions in the new rules on grounds that implementing them would infringe on the users’ “fundamental rights to privacy and freedom of speech”. The move comes on the heels of the Delhi Police visit to Twitter’s offices in Delhi and Gurgaon, ostensibly to serve the social media platform a notice after it had flagged some posts by members of the ruling party as “manipulated media”. The police knock makes Delhi look like a bully.
Undoubtedly, social media platforms have much to answer for. They routinely seek refuge under the safe harbour protections afforded to them by Section 79 of the Information Technology Act, according to which intermediaries are not held legally or otherwise liable for any third party information or data made available or hosted on their platform. At the same time, however, their interventions invite the charge that they are arrogating to themselves the job of gatekeepers, and doing so in ad hoc ways. Despite their professions of faith in openness, the decision-making processes of these platforms are shrouded in secrecy. In a polarised discourse, when tweets reflect a political agenda, and do not carry any incitement to violence, what can be the criteria to label or censor content as “manipulated”? How do you decide what to flag among the countless dodgy tweets? Social media platforms cannot shrug off responsibility for users’ actions when convenient, and then sit in judgment using criteria hidden from public view. In a democracy, it must be asked whether the governance of global public platforms can be left in the hands of a few executives with zero accountability and skewed incentive structures.
The manner in which the IT Rules have been framed is also problematic. For one, the government, which is likely to be an appealing party, has set itself up as arbitrator as well. Further, a blanket demand on traceability may allow it to wield power in an arbitrary manner for purposes that remain opaque. Such a demand may also be unnecessary given that social media firms have on various occasions complied with the government’s requests — on issues pertaining to terror, child abuse, and national security, for instance, provisions under the existing Indian Penal Code have been sufficient to elicit cooperation. What may then be required is targeted access, subject to due process cleared by a neutral arbiter. Since WhatsApp has already approached the court on the matter, it is only fitting that the judiciary should help draw up the necessary firewalls.
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