New Delhi: Digital rights advocacy groups and legal experts have questioned the Indian government’s move to join six other countries, including the US, in calling on tech companies to allow backdoor access to encrypted communication, asking if such a statement was issued with legal consultation.
The UK home department, this Sunday, issued a joint statement signed by governments of Australia, Canada, India, Japan, New Zealand and the US, calling on tech companies to work with governments and find solutions to ensure the safety of citizens, without eroding user privacy or cyber security.
Prasanth Sugathan, legal director at Software Freedom Law Centre, said India’s step in this direction is of “grave concern” and “problematic” as it gives excessive powers to governments and easy access to information of users who rely on Signal and WhatsApp to communicate on sensitive matters.
“This will endanger users of encrypted communications including journalists, civil right activists and whistleblowers. Any claims about protecting privacy and data protection fall flat in view of the attempts to destroy freedom to communicate,” he said.
The Internet Freedom Foundation (IFF) has filed an RTI with the ministries of home affairs, external affairs and electronics & IT, asking if any legal opinion was sought before becoming a signatory and whether the government plans to introduce any legislation pursuant to the becoming a signatory.
“It comes as a surprise to us that India has issued a joint statement with other countries calling for backdoor access and weakening of end-to-end encryption standards,” said Apar Gupta, lawyer and executive director, IFF. “Moreover, it is not clear which ministerial office has signed the document, whether its external affairs, or home affairs, or MeitY.”
The joint statement of seven countries further said: “End-to-end encryption is implemented in a way that precludes all access to content, even to investigate the most serious crimes, including terrorism, and child sexual exploitation and abuse”.
While encryption is vital and privacy and cyber security must be protected, that should not come at the expense of wholly precluding law enforcement, and the tech industry itself, from being able to act against the most serious illegal content and activity online, it added.
Legal experts say meddling with end-to-end encryption to provide backdoor access is against the citizen’s right to privacy. India does not have judicial oversight on surveillance and the Personal Data Protection Bill does not address the issue of state surveillance.
“Although targeted surveillance by the government is permissible in certain situations, as per the IT Act and the Telegraph Act for law enforcement purposes, there is no proper judicial oversight over such requests,” said Shashank Mohan, project manager at Centre for Communication Governance, National Law University, Delhi.
“Overarchingly, the Supreme Court has declared the right to privacy as a fundamental right, which clearly includes the right to informational and communication privacy,” he said.
India has long been demanding that WhatsApp allow access to security agencies to trace the origin of messages used as a trigger to commit illegal acts such as riots, mob violence etc. The US social media major has pushed back, saying such a move will violate its privacy protocols. India is now banking on the pending amendments to the intermediary guidelines, which will make social media platforms responsible for ensuring traceability of messages and also mandate the setting up of a grievance officer in the country, else be liable to face even jail terms for violations.
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