Open Access Research Article
E-COMMERCE AND CONSUMER PROTECTION
Published Paper
Article Details
E-COMMERCE AND CONSUMER
PROTECTION
AUTHORED BY -
D. P. HARITHA SRIVIDHYA,
B.A B. L
(Hons); LLM (IPL), Research Scholar, Department Of Law,
Bharath
Institute Of Higher Education And Research, Chennai.
CO-AUTHOR - DR. NAGESWARA RAO.
Aienaparthi. Associate Professor,
M.A., M.A., LLM, BED., PHD In Law, Department Of Law,
Bharath Institute Of Higher Education And Research, Chennai.
B.S.C, B.L,
M.B.A, L.L.M, Research Scholar, Department Of Law,
Bharath Institute Of Higher Education And
Research, Chennai
End-to-end
encryption has become the norm as the messages sent between two persons are
protected along with their privacy. However, the IT Rules, 2021 has
incorporated a rule wherein, in order to help the criminals to be prosecuted
and also for surveillance, traceability provision has been included. This
provision states that the messaging service provider such as WhatsApp to
identify the first originator of the information in order for the government to
examine their social media platforms.
Therefore, since tracing of the first originator of the information is carried out by the messaging providers, the provision is otherwise known as traceability provision. In this project,
we will be dealing with what are the possible methods that can be employed by
the messaging service providers in
order to implement this provision and whether such methods will intrude into an
individual ?s right to privacy.
Key Words: IT
Act, 2000, IT Rules, 2021,
Traceability, Social Media,
Right to Privacy
INTRODUCTION
End-to-end encrypted
(E2EE) messaging has been widely in use post 1990s given the urge to safeguard
an individuals? privacy. E2EE messaging
enables participants to send messages that could be read only by them and the receivers.[1]
The shared content
remains inaccessible even to the service providers thereby allowing the users to enjoy freedom of expression. This
is mainly required for some professions like
journalism, law, research
and for members of the minority
community to communicate freely.[2]
In the contrary there are
situations where it is necessary to access the personal data or certain important communications to help intelligence
agencies or other organisations investigate crimes and it becomes difficult for them to access the information due to encryption.[3]
To find a solution,
government agencies levied various laws and regulations to curtail E2EE systems. However, it has not been possible
to enforce such stringent measures and thus they have resorted to mutually
collaborate with the industries to reach agreeable
solutions.
The Government of India shared a draft National Encryption Policy in the year 2015 (withdrawn
later) and requested the sharing of encrypted information with the government upon request.[4] The
recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 („2021
Rules?) has been criticized much mainly due to
enforcing regulations that tend to threaten freedom of expression and
the use of E2EE.[5]
A detailed discussion of
Rule 4(2) that focusses on „traceability? is presented here. The Rule instructs
messaging providers to enable making
it easier to identify the initial originator of any message delivered through their platforms in response to
a lawful court or government order.[6]
Although this move from
the government does not aim to ban E2EE, the clause of traceability creates privacy-related issues. This
paper will discuss the background of traceability with some case examples, different implication measures followed by
messaging platforms to uphold
traceability, legality and constitutionality of traceability and alternative
suggestions to existing problems of maintaining privacy.
HISTORY AND BACKGROUND OF IT RULES, 2021
The initial hiccup was
with the introduction of online intermediaries in the Information Technology Act, 2000 („IT Act?).
Intermediaries are like third-party agencies that receive, store and transmit data on behalf of
another agency, and they are usually exempted from liability for the transmitted data.[7]
n order to find a
solution for the rise in spread of fake news and rumours, the Ministry of Electronics and Information Technology
took an effort to amend the guidelines. In 2018, the Ministry released a draft Intermediary Guidelines (Amendment)
Rules[8] that facilitated for tracing the identity of content creators
by the intermediaries for information sent through their platform upon request from the
government.[9] This amendment faced a lot of angst
and criticism as it was seen to intrude into the sender?s
privacy and freedom
of expression.[10]
Apart from this, a
petition was filed in the Madras High Court in the year 2019 that requested linking
of social media accounts with identity proofs authorized by the Government.[11] However, the court denied approval
for this request which led to a series of discussions that pointed
out the Draft Rules that
supported traceability.[12]
Thus the Court looked out
for suggestions from technical experts regarding the identification of the first originator of a message without
breaking its encryption and the solution for
obtaining traceability on E2EE messages
was submitted by Professor V. Kamakoti.[13]
Another development was
from the creation of an ad hoc committee
in 2019 by the Rajya Sabha to handle
problems related to child sexual abuse on social media.[14] The report insisted on breaking the encryption to identify the first originator in cases concerned
with the distribution of child sexual abuse materials.[15]
Thus in 2021, based on previous developments the traceability requirement
was detailed in the 2021 Rules. It mandates the social media intermediaries (mainly
messaging service providers) to “enable the identification
of the first originator” in response to a judicial order. This allows for the intermediaries to
abide to the request of certain agencies to carry out decryption when necessary.[16]
The Rule also clarifies
on the types of crimes that require
such action and it includes
investigating and preventing crimes that would impact national security,
rape, child abuse and sexually
explicit content. Also, the Government can issue such an order only if there is
no other alternative, the intermediaries have the choice
of not revealing the message
contents and they are supposed to find the first originator of a message in Indian territory.
UNDERSTANDING TRACEABILITY AND METHODS OF IMPLEMENTING TRACEABILITY PROVISION
User privacy and security
have been the priority for online messaging service providers and the best possible way to maintain
confidentiality is by using end-to-end encryption.[17] This enables the messages to be delivered to the recipients without
its leakage while being carried across the internet. It not only ensures security
and privacy but also confidentiality, authentication, integrity and
secrecy.[18]
Rule 4(2) of the 2021
Rules speaks of traceability only in cases where the message contents are already known to the Government and only demands
for identification of the first originator.
In case there is no originator the first person to spread the message will be
termed as the “absolute originator”.
If there are multiple people who distributed the same message independently then they will be known as
“relative originators”.[19]
The various methods of
identifying the originator is not mentioned in the mandate and thus it is up to the messaging service providers?
discretion to rely on a method to identify the first originator. Some of the methods
followed to facilitate traceability include:
i.
NOT USING E2EE:
Simply not using E2EE by
the messaging services enables easy identification of the first originator from their stored data.
By searching their database, they can also identify
the absolute and relative originators. This may seem like an easy option; however, this threatens the privacy and security for the users as it makes it possible for the service
providers to access all personal information shared over their
interface.
ii.
HASHING:
This is a mathematical
operation that enables conversion of the message contents into unique strings of characters that cannot
be decrypted easily. The messages will be stored
by the service providers in hashes and will be retrieved to facilitate
traceability upon a lawful order.
unique feature includes
the creation of a list of offensive hashes by the service providers that can be categorized under
the blocklist so that the messages with such
hashes will not be delivered.
The drawback of this
method is that hashing is not as good as E2EE and anybody can easily guess the message from accessing the hashes. Thus, it does not provide
complete confidentiality. Another problem is that the hashes are
generated at end-user device and
there is no way the server can alter it. The end-users may provide incorrect hashes and tamper the coding making it
impossible for the service providers to decode
the message.
iii.
ATTACHING ORIGINATOR INFORMATION:
When messages are shared
between two parties, it is not only about the content of the message may be available to the service
providers. They also have information on the
size of the message, the originator, absolute
originators and receivers
with their locations.[20]
This is referred to as
metadata that can be crucial in case of confidential messages. Ensuring additional privacy to users requires restriction of the amount of
metadata that is available to the
messaging service providers.[21] The report by Prof. Kamakoti to address traceability mentioned the use
of adding metadata consisting of details of the originator of a message.[22]
The details could be any
identifier that can help in tracing the originator like mobile number, username, IMEI of device used. The
details can either be attached to the message
making it visible to all users or it can be encrypted and made visible only to the service providers.
Both methods were
discussed in detail by Prof. Kamakoti and it was suggested that this could help in identifying the originator without
knowing the content
of the message that was shared. However, one drawback was that it
could help in identifying only the actual
and relative originators and not the
absolute originators.
LIMITATIONS IN IMPLEMENTING TRACEABILITY:
·
The user identifiers usually
used by the messaging service
providers are weak identifiers
like mobile number or email address that can be registered anonymously and cannot be trustable sources.[23]
This makes it difficult to pinpoint
on the originators as the identifiers may not belong to the actual sender of the message. The information and sender
details can also be forged making
it difficult to identify the source of the messages.
·
The
absolute originator may not be the actual creator of a message and could have simply copied the content from any other
source like an image or a screenshot. Thus the
identifier information has very weak attribution in correctly identifying the
source of a message.
·
According to the 2021 Rules, it identifies the first originator from India as the originator of a message in situations
where the first originator is located outside
India.[24]
This has received much criticism as
it does not seem alright to let go of an actual first originator due to geographical limitations. The service
providers however argue that they will have to face legal challenges globally
as they will not be having all necessary
originator information in their database and they will finally end up in assuming
the first originator.
ANALYSING CONSTITUTIONAL VALIDITY OF TRACEABILITY PROVISION
Ø INFRINGEMENT OF PRIVACY
As per Puttaswamy v. Union of India[25],
any sort of restraint on an individual that affects his/her privacy must
satisfy the following criteria:[26]
1)
Legality: As per Article 21 of the Indian
Constitution, it is clear that by way of procedure
established by law the state has the power to take away the rights conferred under this article. Since right to privacy
is a fundamental right[27], the same can be restrained through procedure established by law. IT Act reserves
for the Cental Government a
power to make rules.[28]
Further, it is imperative to understand that an executive notification
will not be termed as a valid law.
A valid law shall be the law that is passed by the Parliament and an executive notification cannot be a valid
law.[29]
Therefore, in this case, since 2021 Rules,
is a delegated legislation that has a character of executive notification[30],
it is safe to say that 2021 Rules
cannot be termed as a valid law as determined by the judgment referred
hereinabove.
2) Legitimate State Aim: One needs to look into the goals of the state and whether
such goals can be achieved
based on the aims of implementing them.[31] In
this case, the goal
of the state is surveillance and prevention of cybercrimes and whether these goals can
be justified to override the right
of privacy.
3)
Suitability & Necessity: As per this test, one needs to evaluate as to whether the goals of the state can be achieved based
on the measures that could be realistically taken
by the state. The necessity and proportionality test is often used in
international human rights issues[32] wherein the court evaluates whether
the measures taken by the state in
order to achieve a certain goal is necessary and proportional to the realistic goal that
was aimed to be achieved by the state.
In this case, it can be stated that the goal to be achieved is predominantly prevention of cybercrimes and some of the measures to be taken as
mentioned above such as doing away
with E2EE or hashing or attaching originator information to the messages is suitable not proportional to achieve the goal.[33]
4)
Balancing the right and interference thereof:
This test basically ensures
the balancing of achieving the
purpose with respect to the social importance of preventing the constitutional rights.[34] Therefore, since two rights collide
in this case, one being the state having the right to protect its citizens by preventing cybercrimes on one hand, on the other hand it is important
to recognise the right of privacy enshrined under
Article 21 of the Indian Constitution.[35] Scholars say that the state “should
not compel service providers or
hardware or software vendors to build surveillance or monitoring capability into their systems or to collect or retain
particular information purely for state communications surveillance purposes”.[36]
Further, it is important to understand that data protection is an
integral component of informational privacy,
which is part of fundamental right to privacy.[37] Cardinal
principle of data protection is data minimisation.[38]
5)
Procedural Safeguard: Basis the above analysis, the order passed under Section 69 of the IT Act is one of the procedure that is followed in order
to enable the social media
intermediaries to provide originator information apart from the judicial order. This order that is passed under section 69
of the abovementioned Act lacks judicial oversight and because of which it can be grossly
misused.[39]
Also, it is imperative to note that section 69, IT Act is under constitutional challenge.[40]
In Peoples Union of Civil Liberties v. Union of India[41],
the Supreme Court of India laid down
certain guidelines in order to act as procedural safeguards against an arbitrary surveillance power
laid down under section 5 (2) of the Indian Telegraph Act.
Ø DELEGATED LEGISLATION
Delegated
legislation cannot exceed the scope of the enabling provision of the parent
act.[42] Traceabilty provision that has been
introduced through 2021 Rules is an exercise of delegated legislation under section 69A and
section 79 of the IT Act. In Maharashtra State Board v. Paritosh Kumar[43],
the Supreme Court of India has laid down three step test in order to assess the constitutionality of the
delegated legislation, these are:
a)
whether
the provisions of such regulations fall within the scope and ambit of the power
conferred by the statute on the delegate;
b)
Whether
the rules framed by the delegate are to any extent inconsistent with the
provisions of the parent act;
c)
Whether
these rules infringe any fundamental rights.
Applying these steps, it can be
established that the delegated legislation we are concerned here which is the
2021 Rules is framed above the rule-making power provided under the IT Act.
In National Stock Exchange Member v
Union of India[44], the Delhi High Court clarified the hierarchy of legal norms. It held that
generally, the lower norm (delegated legislation in this case) would be declared ultra vires the higher norm (the law
passed by the Parliament) in case of
conflict between the two. Thus, the traceability requirement in 2021 rules can
be seen as ultra vires of
the parent Act.[45]
CONCLUSION
Based on the above analysis, it can
be understood that the traceability provision affects an individual and restrains right to privacy in case the provision
has to be implemented by the social
media intermediaries. Further, it is a personal opinion that government should
not ban end to end encryption since
that protects privacy of an individual from the hands of social media intermediaries and the
government.
The
traceability requirement for minimum standards
of information security
is an extraordinary move by India. Issues such as mob lynchings
and child pornography are legitimate
concerns; however ordering WhatsApp and other social media intermediaries, to implement
traceability provision does
not align with our constitutional framework on the right to
privacy. The state has failed to demonstrate the necessity and proportionality
of the traceability requirement. The
rule also suffers from a lack of procedural safeguards, further being unconstitutional in nature.
Traceability can only be deployed by the government to justify disproportionate
information requests.[46]
There are certain other ways in which
the government can achieve its goals of surveillance and prevention of cybercrimes, these are, firstly, they can have
targeted end device hacking through lawful
means as one of the mechanism and secondly, the government should
have mutual legal assistance treaties with other nations in order to get information of the originator.
On the point of encryption, the
government should realise the importance of it with respect to human rights and it helps an user from the
clutches of government intervention or corporate surveillance. Therefore, the government should
take an approach
that respects individual right and should move away from undermining the importance of
encryption. Further, the government
should pave way for more private and secure communications of individuals on the internet
and regulations should be in accordance with the abovementioned points.
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Article Information
E-COMMERCE AND CONSUMER PROTECTION
Authors: D. P. HARITHA SRIVIDHYA, DR. NAGESWARA RAO, P. GAYATHRI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/06
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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