Asheeta RegidiAug 21, 2019 15:55:01 IST
The latest Aadhaar-Facebook case brings up two persistent issues in the digital world: the first of the conflict between law enforcement and people’s fundamental rights and second of the near pervasive linking of Aadhaar.
Despite a long-drawn battle before the Supreme Court, which had resulted in major curtailments on such use and linking of Aadhaar, proposals for new uses of Aadhaar keeping emerging. The most recent has been the proposed linking of Aadhaar with the voter ID. Now, the proposed linking of Aadhaar with social media accounts has resurfaced, via the filing of a petition before the Supreme Court to transfer all ongoing cases advocating this to one forum.
Notably, the Madras High Court, which has been hearing some of these cases, has expressed reluctance with such linking. As such, the focus has currently shifted to enabling traceability of the messages, through a worrying recommendation that phone numbers be tied to messages via a tag. Governmental support to Aadhaar linking, however, means that the proposal hasn’t yet been dismissed.
Intermediaries have traditionally been extremely reluctant about sharing user information with governmental authorities. The online world and the anonymity it offers gives people the freedom to express even what they may normally be reluctant to. The Internet Freedom Foundation in its affidavit in this case, for instance, cites the #MeToo movement as an instance of this.
The freedom of speech combined with the right to privacy, however, have the opposite effect when accorded to a criminal. Victims of cybercrimes are often faced with the dilemma of having no means to identify the perpetrators on account of the protection they are accorded due to these rights. Lack of cooperation of the social media companies, the inability to pressurise these companies since they are located overseas and the lack of proper mutual legal assistance treaties are just some of the issues that come up.
There is definitely a strong need to resolve this issue, but steps being taken towards resolving it have increasingly been turning towards refuting the privacy as well as the freedom of speech of everyone.
Previous cases like the Tehseen Poonawalla case and the In Re: Prajwalla Letter case, which dealt with serious issues like fake news, lynching and the circulation of rape videos, led to directions from the Court on dealing with these issues. These directions, in turn, led to new draft intermediary rules, which included provisions for tighter content removal deadlines, requiring automated content monitoring and deletion, and governmental suggestions of introducing traceability of messages.
The current cases advocate the linking of Aadhaar. These cases, unlike past cases such as the Lokniti Foundation case for Aadhaar-SIM linking, have been filed by animal rights activists and others who have been victims of cybercrimes like trolling, defamation, etc. on social media. Their difficulties in taking their attackers to task led them to file suit, and seek out a way to identify the perpetrators easily.
While it is without question that intermediary liability needs an overhaul, this should not be at the cost of people’s fundamental rights. Linking of Aadhaar or any other identification document with social media accounts creates this issue, by effectively removing anonymity and helping people be positively identified. This leads to the loss of a significant advantage people have towards exercising their right to freedom of speech online.
Given the verdict of the Supreme Court in the Aadhaar case last year, enabling such a linking however will be difficult, requiring a law in order to support it. The striking down of the court direction for Aadhaar-SIM linking can be recalled here since that direction did not amount to a law. Even the mandatory linking of Aadhaar with bank accounts had been struck down.
Challenges apparent in the linking of Aadhaar number with social media profiles
The private use of Aadhaar itself has been controversial since the striking down of Section 57 of the Aadhaar Act. The limited eKYC provisions, which has been allowed only for banks and other regulated entities are indicative of this. The use of Aadhaar, further, has mainly been restricted to receiving government benefits such as the Section 7 benefits.
It is thus difficult, legally, to find a way to permit Aadhaar-social media linking within the ambit of the Supreme Court’s verdict on Aadhaar. Even if a method is found, how such linking will be implemented is not without issues. For instance, will people be required to disclose their actual Aadhaar numbers to the social media companies, given that even for KYC, Aadhaar numbers are to be redacted? Given the many privacy concerns with the data in the hands of these companies, this sensitive information in their hands is just one more thing to worry about.
Second, how are the social media companies to verify the linking done? For instance, will they be required to undergo an actual KYC procedure, requiring offline verification of Aadhaar? Given the restrictions on carrying out Aadhaar authentication at present for Section 7 benefits and by banks, it can be assumed that access to the Central Identities Data Repository (CIDR) to carry out biometric authentication will not be permitted for social media companies. Carrying out a KYC procedure will certainly have a major impact on the companies, much like the similar struggles faced by mobile wallet companies.
In addition, a question arises as to how accounts that are not linked are to be dealt with. The consequences for these are unclear at present. The closest parallel that can be drawn is with the Supreme Court’s striking down of the provision in relation to withholding banks accounts that were not linked. However, there, the act in relation to bank accounts was seen as a deprivation of property, and it is unclear what the stance the Court will take in relation to the same in relation to social media accounts.
The government needs to move away from relying on Aadhaar and linking as a one-stop solution for issues ranging from terrorism (SIM linking), money laundering (bank account linking), electoral fraud (voter ID linking) and now cybercrime (social media account linking). It is without question that a solution is required, but it is increasingly worrying as the solutions move toward deprivation of fundamental rights and the first steps towards a possible surveillance state.
The author is a lawyer specialising in technology, privacy and cyber laws.