The Govt’ Has No Intention Of Breaking Encryption: Rakesh Maheshwari, Meity

India Education Diary, May 08, 2021

Speaking in CUTS webinar, ‘Discussing the Information Technology (Intermediary Guidelines) Rules, 2021 (rules) from the Lens of Consumer Welfare and Ease of Doing Business (EoDB)’, Dr Amar Patnaik, Hon. Member of Parliament, & Member, Joint Parliamentary Committee on the Personal Data Protection Bill 2019 (PDPB), stated that the PDPB once passed, would be the overarching law for personal data protection, and the rules should be consistent with it. He also emphasised on the need for building state capacity for effective implementation of the rules and the PDPB.

Mr Rakesh Maheshwari, Group Coordinator and Head – Cyber Law, Ministry of Electronics & Information Technology (MeitY), presented a holistic view of the rules, and clarified that the rules have a clear objective of curbing the spread of problematic unlawful information on intermediary platforms, such as revenge porn and related contents, to ensure safety of people particularly that of women and children.

He further asserted that the government has no intention to force intermediaries to break end-to-end encryption, through the rules.

The rules are likely to reduce the EoDB for intermediaries, issues pertaining to which were highlighted by Mr Ashish Aggarwal, Vice President – Public Policy, NASSCOM. These pertained to: low thresholds for significant social media intermediaries, lack of clarity on classification of intermediaries and standard operating procedure.

He called for more time for compliance, proactive engagement between stakeholders, and adoption of a case by case or customised approach for regulation.

Other speakers included Mr Daniel Castro, Vice President, Information Technology & Innovation Foundation, Mr Gurshabad Grover, Senior Researcher, Centre for Internet Society, Ms Jhalak Kakkar, Program Manager, Centre for Communication Governance, and Mr Srinivas Kodali, Independent Researcher. They pointed out the various lacunas in the rules from the lens of consumer welfare.

Emphasis was placed on the need of judicial oversight on executive orders of content takedown, in order to avoid arbitrary discretion of the government in removing content. It was further opined that the rules in their current form are an example of excessive delegated legislation, and its provisions should ideally have been finalised after a Parliamentary debate, considering its possible ramifications on the fundamental right to privacy, as well as freedom of speech & expression.

A comparison of similar rules prevalent in more advanced jurisdictions was also made, and a few international good practices were discussed.

Amol Kulkarni, Director Research, CUTS, acknowledged the need for fixing accountability in case of misuse of intermediary platforms for spreading problematic content. As the way forward, he recommended the adoption of scientific regulation making, by using tools such as Cost-Benefit Analysis to ensure that the costs of implementing the regulations, do not outweigh the intended benefits emanating from them.

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