Big tech big government

Big tech big government

Courts having a hard time balancing privacy with traceability, but don’t forget individual rights.

In India, and in other advanced societies, governments and courts are beginning their reckoning with the extraordinary difficulties posed by presently existing centralised “social media” and the “platform” companies that, by operating these media, are changing human civilisation.

These social media or platform companies surveille the daily social behaviour of billions of individuals – reading their mail, spying on their social interactions, presenting them edited news feeds and personalised advertising, keeping track of everything they read and watch. The companies have acquired a breadth and depth of social power over our impulses and behaviour patterns that exceeds any similar form of influence, private or public, in human history.

This has happened in the blink of an eye on the timescale of history, barely more than a decade. For context, the first Apple iPhone was launched in 2007. The power of these “technology companies” to amplify human emotions; to generate outrage and stoke anger; to channel aggression; above all, to move goods and merchandise, leaves the more traditional powers of law and government staggering, deeply unsure how to respond.

India has been both a pioneer in the human costs and benefits of social media, and in the encounter between the new forces and the law. The Supreme Court’s Puttaswamy judgment, which affirmed the existence of a fundamental right of privacy, sets an important fundamental limit on the use of regulation that infringes that right. Just last month, the Kerala high court recognised that Internet access is also a fundamental right in our contemporary circumstances.

Despite the importance of these and other precedent judgments, the courts are also apparently tempted to demand immediate, ill-considered “solutions” to the problems that exercise of these rights pose.

In the past weeks, during the hearing of a petition filed by Facebook to call forth petitions pending in various high courts, including the one in Madras high court concerning the linking of social media accounts of online users with their Aadhaar numbers, several observations were made by the bench and the bar. Justice Gupta observed, “We just cannot get away by saying that we don’t have the technology. If there is a technology to do it, then there ought to be a technology to stop it.” There have to be strict guidelines. “But my privacy should also be protected. My personal information cannot be entirely disclosed just because some police commissioner asked for it... Requesting you to frame the guidelines as soon as possible.”

Such judicial orders requiring that government devise regulations for rendering “traceable” all social media activity, in order to hold anonymous speakers liable for allegedly defamatory remarks, assume that some simple technical solution can be imposed on the platform companies to solve all the problems that ails the current state of Internet.

Although Justice Gupta wants to protect privacy, unrealistic expectations of breaking encryption and having privacy are compounded by technical misunderstanding and desire for quick fixes. The platform companies, under pressure to respect the privacy rights of their users, have integrated “end to end” encryption into services such as WhatsApp. Because the platform intermediary cannot see the content of the messages it handles, it cannot trace a message as it is forwarded, redistributed or transferred among parties.

Any regulation requiring the intermediary company to render messages traceable, destroying parties’ anonymity, will inevitably also break the company’s laudable attempts to protect the confidentiality of users’ conversations.

Nor are the orders demanding traceability regulations consistent with the courts’ own decisions. The Puttaswamy judgement specifically talks about how privacy postulates a bundle of entitlements and interests that include anonymity. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.

Regulations that comprehensively destroy the anonymity and secrecy of all our communications on social media are not reasonable restrictions of that fundamental right. If the Kerala high court’s view that Internet access is a fundamental right is correct, it also implies that the right cannot be conditioned upon acceptance of privacy-invading regulatory limitations, such as requiring accounts to be associated with Aadhaar numbers. This will be disproportionate and unreasonable.

Moreover, it is hardly appropriate to regard the platform companies, powerful as they are, as the sole source of the problem of social media misuse. All of the world’s largest democracies (including Brazil and the United States as well as India) have experienced unsettling transformations of political campaigning practices in the last half decade. Political parties and other actors have adopted large-scale disinformation and influence campaigns based around opaque social media messaging.

A recent global report on computational propaganda, published by Oxford University researchers, shows the comparative sophistication and intensity of governments to shape and control public opinion by these means. Treating the problem of social media misuse as though it were primarily a problem of private defamation, that can be fully resolved by regulating the platform companies, ignores the much larger problems that are caused by governments, political parties and their supporters. These can only be remedied by strengthening individual rights and limiting governmental power, not by the reverse.

The problems we face are as complex as the changes our technology has wrought. There are no simple answers or quick fixes. We can sympathise with the frustration of Justice Gupta with his smartphone. But impulsiveness by courts and regulators will be self-defeating. It will not solve our problems. It will only add another layer to the triumph of outrage over deliberation that is social media’s most important negative contribution to democracy in our time.