The Government has been intermittently asking social media firms such as WhatsApp to ‘trace’ certain messages, in the interests of preventing fake news and misinformation. Justice Sri Krishna recently indicated that it is not fair for the government to require the ‘tracing’ of messages by social media platforms, as that makes inroads into user privacy.
Another regulation required by the government of social media firms has been the appointment of a compliance officer within the country to deal with redress of data breach, the assumption being that the release of personal information will be only for the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or maintenance of public order.
While most of the social media firms have complied with this requirement, some have not, contending that such requests if made inappropriately or frequently may actually result in breach of personal data of citizens at large.
The recent spate of regulation by the government of India over “tracing of the originator” of messages, beg a fundamental question: What is the “purpose” or “intention” behind this move by the government? The European Union General Data Protection Regulation defines purpose as “the personal information that is collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes.”
Both the social media firms that collect and process personal data of natural persons and the government that oversees data governance have an obligation to abide by the above-mentioned principles.
Data Protection Bill
Our Personal Data Protection Bill (PDPB 2019) defines purpose, though the term “further processing” has been left out, which could provide some leeway to either the requester (the government) or the social media firm (data fiduciary). Our PDPB specifies penalties on non-compliance to both the data fiduciary and the State, but the enforcement of the same is a question mark. It is this ambivalence that contributes to mistrust between social media firms and the government.
The government, before enforcing the laws on the data fiduciaries, need to make it clear that due process will be followed for such data requests and that they will be vetted properly before issuing them. This requires the State to build a “trustworthy” relationship with data fiduciaries as well as data subjects.
In this context, the usage of social media tools in India is quite revealing: WhatsApp has about 400 million active Indian users (about four times that in the US where it is headquartered); about 300 million Facebook users are active in India (about 100 million more than the US); about 250 million YouTube users in India (about 50 million more than the US).
With such a large market share, these significant data fiduciaries have an obligation to abide by the law of the land, in the interest of the data subjects in India at large. The recent stand taken by some of the data fiduciaries indicates that they are using their significant market power to defy rules of the land in which they operate.
While a democratic country such as India always has legal recourse and the judiciary to oversee undue exercise of power by the State, this should not be taken as the first step by the data fiduciaries, as has been recently done.
Similar to the State, these firms also need to create a “trustworthy” relationship with data subjects and the State. In this they should take into account the need for preventing the spread of misinformation, which is a problem much bigger than the pandemic itself.
Technology has its own benefits — in the midst of a pandemic we have access to WhatsApp, Facebook, and Twitter for SOS calls! Who in the 1918 Spanish Flu had this luxury during a period of extreme distress and isolation/quarantine? In prolonged periods of lockdown in the current era, what would happen to the mental health of people who are just forced to stay home?
There can be no dispute that we need social media to enable us to emerge out of this crisis; to come to terms with whatever losses we have had to face due to the pandemic, and to connect with our friends and peers. We now cannot imagine life without these social media tools.
The government should regulate these social media platforms, but not to the extent that it is difficult for them to do business in India. We need social media, just like we need electricity. We do not shun electricity just because we may get a shock in the event of grounding. We should not reject nuclear power just because it can be used to make atom bombs. We cannot throw the baby out with the bathwater please.
Sridhar is Visiting scholar, University of Southern California, and Kala is Fulbright Nehru fellow, UCLA. Views are personal