Day 5 Arguments: 22 October 2019
In a significant development, the Bench comprising Justices Deepak Gupta and Aniruddha Bose today allowed the transfer petitions filed by Facebook. As a result, the petitions pending before the Madras and Madhya Pradesh High Courts in relation to the regulation of internet intermediaries will now be heard by the Supreme Court. Additionally, the Bench also directed that all petitions pending in the Supreme Court on similar issues be transferred to it.
Confusion over the duty of intermediaries to provide assistance
A better part of today’s hearing was devoted to the Bench clarifying the scope of Section 69 of the Information Technology Act, 2000. The provision, among other things, provides for the power of government to issue directions for decryption of computer systems for purposes of national security. It also requires internet intermediaries to provide assistance to the government vis a vis decryption if they are called upon to do so.
Referring to the provision, Justice Bose observed that while the government is empowered to decrypt computer systems, the extent of co-operation required from the intermediaries was unclear. For instance, the provision does not clarify whether intermediaries are obligated to provide decryption keys upon request, stated Justice Bose.
Responding to Bench’s observations, Attorney General KK Venugopal (AG) submitted that since the provision itself has not been challenged, it had to be given full effect. Thus, he submitted that intermediaries cannot turn down requests from the government for decryption.
As regards AG’s submissions that the provision has not been challenged, Sr. Adv. Shyam Divan (appearing for the Internet Freedom Foundation) submitted that this was incorrect. He pointed out that the same was challenged in another petition pending before the Supreme Court.
On the issue of intermediary obligation under Section 69, Sr. Adv. Mukul Rohatgi (appearing for Facebook) clarified that they were expected to provide assistance only to the ‘extent possible’. Thus, if a request for decryption key was made, intermediaries were obligated to provide it only if they possessed one. He argued that Facebook and WhatsApp did not have decryption keys to their systems and could not possibly provide it to the government. In this regard, he relied on Rule 13 (3) of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. As per it, any direction to the intermediary shall be limited to the extent it has control over the decryption keys.
Union seeks three months’ time for notifying rules
In the last hearing, the Bench had directed the Union to file an affidavit with the time frame for framing guidelines to regulate internet intermediaries. Today, the Union submitted that it would require approximately three months’ time to finalise and notify these guidelines.
On another note, Sr. Adv. Shyam Divan cautioned the Bench against making any determination on the ambit of Section 69 or the amendments to intermediary guidelines at this stage of the hearing. He pointed out how such adjudication will have an impact on the fundamental rights of internet users.
In view of the complex technological as well as legal questions involved, the Bench was inclined to transfer the petitions to itself. It then directed that the matter be listed for hearing in the last week of January 2020, by when the Union is expected to notify the guidelines.
(Court reporting by Avinash Amarnath)