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Understanding intermediary guidelines wrt encryption from the lens of consumer welfare

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Abstract

This paper brings forth a consumer perspective on the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT rules), in India, which place obligations on Significant Social Media Intermediaries (SSMI) to enable identification of originators of certain content on their platforms. While it is important to fix accountability in case of misuse of digital platforms for spreading problematic content, the same should not risk consumer welfare on parameters of privacy and data protection. The requirement of identifying originators of content is likely to weaken End to End Encryption. This may in turn infringe upon the privacy of consumers, thereby denting their trust on data driven digital technology enabled services. Section 1 of the paper gives a background to the run-up to the revised IT rules, while Sect. 2 gives an overview of encryption. Section 3 deep dives into a consumer perspective on encryption, and explains the likely adverse impact of mandatory originator identification on consumer welfare. The paper concludes with Sect. 4, which gives a few recommendations for the way forward.

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Notes

  1. Statista, available at: https://www.statista.com/statistics/278341/number-of-social-network-users-in-selected-countries/.

  2. Government reveals stats on social media users, available at: https://www.indiatoday.in/technology/news/story/government-reveals-stats-on-social-media-users-whatsapp-leads-while-youtube-beats-facebook-instagram-1773021-2021-02-25.

  3. Available at: https://www.meity.gov.in/writereaddata/files/GSR314E_10511%281%29_0.pdf.

  4. Rajya Sabha expresses concern over social media platforms spreading fake news, available at: https://rstv.nic.in/113588.html.

  5. Guidelines, SOPs soon to check child pornography, removal of images of rapes from websites, available at: https://www.indiatvnews.com/news/india-guidelines-sops-soon-to-check-child-pornography-removal-of-images-of-rapes-from-websites-492499.

  6. Available at: https://www.meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf.

  7. Supreme Court to MeitY: What’s the Status of Intermediary Guidelines? Available at: https://www.medianama.com/2019/09/223-supreme-court-to-meity-intermediary-guidelines-status/.

  8. Available at: https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/71/140/0_2020_2_16.pdf.

  9. Section 2(1)(w) of the IT Act 2000: "Intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.

  10. Report Summary, available at: https://prsindia.org/policy/report-summaries/alarming-issue-pornography-social-media-and-its-effect-children-and-society-whole.

  11. Available at: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf.

  12. Section 87 of the IT Act pertains to Power of Central Government to make rules.

  13. Available at: https://www.meity.gov.in/writereaddata/files/itbill2000.pdf.

  14. About end-to-end encryption. Available at: https://faq.whatsapp.com/general/security-and-privacy/end-to-end-encryption/?lang=en. For further details, please refer: https://scontent.whatsapp.net/v/t39.8562-34/122249142_469857720642275_2152527586907531259_n.pdf/WA_Security_WhitePaper.pdf?ccb=1-5&_nc_sid=2fbf2a&_nc_ohc=OoNQIjAa6kQAX9iqH67&_nc_ht=scontent.whatsapp.net&oh=1fce82dd33e12e39c9f8ddeb957e336a&oe=611C2119.

  15. The Personal Data Protection Bill 2019. Available at: http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf.

  16. Joint Committee on the Personal Data Protection Bill, 2019. Available at: http://loksabhaph.nic.in/Committee/CommitteeInformation.aspx?comm_code=73&tab=1.

  17. Available at: https://www.trai.gov.in/sites/default/files/Recommendation_14092020.pdf.

  18. https://cuts-ccier.org/the-govt-has-no-intention-of-breaking-encryption/. Webinar’s video recording is available at: https://www.youtube.com/watch?v=WAV0coVqbVk.

  19. Analysis of The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021, available at: https://www.mondaq.com/india/media/1044644/analysis-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021.

  20. India proposes alpha-numeric hash to track WhatsApp chat, available at: https://economictimes.indiatimes.com/tech/technology/govt-proposes-alpha-numeric-hash-to-track-whatsapp-chat/articleshow/81638939.cms?from=mdr.

  21. WhatsApp sues Government of India, says new IT rules mean end to privacy, available at: https://economictimes.indiatimes.com/tech/technology/whatsapp-sues-india-govt-says-new-it-rules-mean-end-to-privacy/articleshow/82963637.cms?utm_source=newsletter&utm_medium=email&utm_campaign=.

  22. Understanding Consumers’ Perspective on Encryption. Available at: https://cuts-ccier.org/pdf/survey-finding-understanding-consumers-perspective-on-encryption.pdf. A total of 2113 users of instant messengers were surveyed.

  23. Question asked to respondents: On which platforms have you been exposed to different kinds of problematic content? This was a multiple-choice question, with pre-defined options. 87% = Sum of number of respondents being exposed to different kinds of problematic content on social media and search engines, multiplied by 100, divided by number of respondents being exposed to different kinds of problematic content on all platforms, i.e., social media, search engines and instant messengers.

  24. Questions asked to respondents: Given that your chats are end to end encrypted, which of the following do you think can still access your instant messaging chats, even if they are not the intended recipients? Hypothetically, if end to end encryption is removed, which of the following do you think will be able to access your chats and calls, even if they are not the intended recipients? Respondents were explained the meaning of end-to-end Encryption, and then asked the second question. Respondents were asked to choose between five options, which were subsequently given scores at the time of data analysis: Very Unlikely (− 2); Somewhat Likely (− 1); Don’t Know or Not Sure (0); Somewhat Likely (+ 1); and Very Likely (+ 2).

  25. Questions asked to respondents: With whom do you exchange different kinds of information (pre-defined) through instant messaging services? Hypothetically, if end to end encryption is removed, what information and with whom would you continue to exchange through instant messaging services? Respondents were explained the meaning of end-to-end Encryption, and then asked the second question.

  26. Directions of Controller to a subscriber to extend facilities to decrypt information. (1) If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign Stales or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource. (2) The subscriber or any person in-charge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1), extend all facilities and technical assistance to decrypt the information. (3) The subscriber or any person who fails to assist the agency referred to in sub-section (2) shall be punished with an imprisonment for a term which may extend to 7 years.

  27. Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code (Rules 2021, available at: https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021.

  28. Explainer: How the New IT Rules Take Away Our Digital Rights, available at: https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights.

  29. Justice K S Puttaswamy (Retd.) and Another vs. Union of India and Others SC WP(C) No. 494 of 2012.

  30. Statutory motion moved against IT intermediary rules, available at: https://www.thehindubusinessline.com/news/national/statutory-motion-moved-against-it-intermediary-rules/article35593821.ece.

  31. Also, Member of the Joint Parliamentary Committee (JPC) on the PDPB, and Member, Ad-hoc Committee of the Rajya Sabha to study the alarming issue of pornography on social media and its effect on children.

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Authors and Affiliations

  1. Consumer Unity and Trust Society (CUTS), D–217, Bhaskar Marg, Bani Park, Jaipur, 302 016, India

    Sidharth Narayan & Amol Kulkarni

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  1. Sidharth Narayan
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  2. Amol Kulkarni
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Correspondence to Sidharth Narayan.

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Narayan, S., Kulkarni, A. Understanding intermediary guidelines wrt encryption from the lens of consumer welfare. CSIT 9, 159–164 (2021). https://doi.org/10.1007/s40012-021-00339-2

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  • DOI: https://doi.org/10.1007/s40012-021-00339-2

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