Govt trying to make inroads into the fundamental right of privacy, says BN Srikrishna – The Economic Times

Clipped from: https://economictimes.indiatimes.com/tech/technology/govt-trying-to-make-inroads-into-the-fundamental-right-of-privacy-says-bn-srikrishna/articleshow/83096473.cmsSynopsis

Srikrishna described the face-off between the central government and global social media platforms over the new IT rules as well as other attempts to gag voices speaking against the government as an ‘undeclared emergency’.

By mandating social media apps like WhatsApp to enable traceability of the originator of messages under the new Intermediary Guidelines the centre is “trying to make inroads into the fundamental right of privacy,” BN Srikrishna, retired Judge of the Supreme Court told ET. The demand is not legal unless it is backed by legislation passed by the Parliament, he said.

Describing recent developments –the face-off between the central government and global social media platforms such as Twitter and WhatsApp over the new IT rules as well as other attempts to gag voices speaking against the government — as an “undeclared emergency” in the country, the retired judge said, “I still think it is a free country but I am getting more and more doubtful about it.”

He questioned the government’s actions including demand for traceability from WhatsApp, the Delhi Police team’s visit to the Twitter office when the company failed to remove tags on specific tweets by ruling party politicians as well as FIRs filed against people for criticising the government on social media.

“Everything I say on social media does not make me a traitor or a person who hates my country. If I criticise the government on oxygen shortage, does it make (one) anti-national or a criminal,” said Srikrishna, who chaired the committee that drafted the Personal Data Protection (PDP) Bill that was submitted to the government in July 2018 and is yet to be turned into law.

He pointed to the lack of a robust privacy policy that is leading to “scattered” policies by the government. If the PDP Bill was in place, it would clearly lay down the privacy requirements for companies, user rights, mechanisms for government surveillance and establish a regulator for concerns.

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“The problem with the government of India is that they always put the cart before the horse and gets into a mess like they did with Aadhaar. They should have had a privacy policy first. Same is the issue here,” he said in an exclusive interview on Sunday.

Highlighting what he termed as the lack of necessary safeguards under the current IT rules, Srikrishna said requirements such as traceability can open up unregulated access to the private messages of people.

A law passed by the Parliament, which specifies the strict “circumstances under which the right of privacy will be subject to restrictions” and its applicability on social media or OTT platform is the right way to approach the issue, he said.

All developed countries, be it Australia or the EU have privacy policies which empower them to get companies like Google to agree to certain demands from the State. “Today we are shooting in the dark. There is no focused data protection or data privacy policy,” he pointed out.

The idea behind the PDP Bill was to have it all under one statute, so that “persons who have been affected can have a recourse, the governments under certain circumstances can have a resource, and there could be a regulator who would constantly monitor it.”

On the question of whether social media companies should have the power to take editorial calls and moderate content as per their company policies, Srikrishna said that “they are private entities” and those who do not agree with the polices are free to leave them. “So, the market principle is everyone is free to display their wares, if you don’t like mine, you can go to the next shop.”

As far as the government’s demand for viewing content for national security reasons is concerned, he said that “I am entitled to say anything, this is freedom of speech. But if I talk about some terrorist activity, that is actionable. That is the only thing for which they can have access. In order to have that there must be tangible evidence before you can access my telephone. We should have a law which controls it…”

He added that in the PDP draft submitted by his panel, there were sections dealing clearly with when and how government or investigation agencies can gain access to personal data such as in instances like terror funding.

“Unfortunately, it has been three years since the draft was submitted,” he said.

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